Representations and Warranties of the Selling Shareholder. The Selling Shareholder represents, warrants and covenants, solely with respect to himself and the number of Selling Shareholder Shares and the Selling Shareholder Option Shares set forth opposite his name on Schedule I hereto, to each Underwriter that: (a) The Selling Shareholder has valid and unencumbered title to 2,300,000 shares of Class A Common Stock of the Company, that are convertible into 2,300,000 Shares. (b) Such Selling Shareholder will have, valid and unencumbered title to the Shares on each Applicable Closing Date, to be delivered by the Selling Shareholder on such Applicable Closing Date and full right, power and authority to enter into this Agreement and to sell, assign, transfer and deliver the Shares to be delivered by the Selling Shareholder on such Applicable Closing Date hereunder; and upon the delivery of and payment for such Shares on each Applicable Closing Date hereunder, the several Underwriters will acquire valid and unencumbered title to the Shares to be delivered by the Selling Shareholder on such Applicable Closing Date. (c) No filing with, or authorization, approval, consent, license, order, registration, qualification or decree of, any court or governmental authority or agency is necessary or required for the performance by the Selling Shareholder of his obligations hereunder, in connection with the offering, issuance or sale of the Selling Shareholder Shares hereunder or the consummation of the transactions contemplated by this Agreement, except such as has been already obtained or may be required under the Act or the Rules and Regulations, state securities laws or the bylaws and rules of the NASD in connection with the purchase and distribution by the Underwriters of the Selling Shareholder Shares and the Selling Shareholder Option Shares to be sold hereby; (d) The Selling Shareholder has the legal right, power and all authorizations and approvals required by law to enter into the Custody Agreement (as defined in Section 4(j) hereof). This Agreement and the Custody Agreement have been duly executed and delivered by the Selling Shareholder and each such agreement is a legal, valid and binding agreement of the Selling Shareholder; (e) The execution, delivery and performance of this Agreement and the consummation of the transactions contemplated by this Agreement and in the Registration Statement (including the issuance and sale of such Selling Shareholder Shares and the Selling Shareholder Option Shares, if applicable) and compliance by the Selling Shareholder with his obligations under this Agreement and the Custody Agreement, do not and will not, whether with or without the giving of notice or lapse of time or both, conflict with or constitute a breach of, or default or Repayment Event under, or result in the creation or imposition of any lien, charge or encumbrance upon any property or assets of the Selling Shareholder pursuant to any contract, indenture, mortgage, deed of trust, loan or credit agreement, note, lease or any other agreements or instrument, to which the Selling Shareholder is a party or by which he may be bound, or to which any of the property or assets of the Selling Shareholder is subject (except for such conflicts, breaches, defaults, liens, charges or encumbrances that would not have a material adverse effect on the transactions contemplated herein), nor will such action result in any violation of any applicable law, statute, rule, regulation, judgment, order, writ or decree, of any government, government instrumentality or court, domestic or foreign, having jurisdiction over the Selling Shareholder or any respective properties, assets or operations; (f) The Selling Shareholder has not taken and will not take, directly or indirectly, any action which is designed to or which has constituted stabilization or manipulation of the price of any security of the Company to facilitate the sale or resale of the Shares; (g) Neither the Registration Statement, any Preliminary Prospectus, the Prospectus or any amendment or supplement thereto contains any untrue statement of a material fact or omits to state therein a material fact required to be stated therein or necessary to make the statements therein not misleading, in each case to the extent, but only to the extent, that such untrue statement or omission was made in the Registration Statement, any Preliminary Prospectus, the Prospectus or any amendment or supplement thereto in reliance upon and in conformity with written information furnished to the Company by the Selling Shareholder pertaining, as such, for use therein; (h) The Selling Shareholder has no reason to believe that the representations and warranties of the Company set forth in Section 3 are not true and correct in all material respects; (i) The Selling Shareholder will deliver to you prior to or at each Applicable Closing Date a properly completed and executed Internal Revenue Service Form W-8BEN (or other applicable Form W-8; (j) Certificates in negotiable form representing all of the Selling Shareholder Shares and the Selling Shareholder Option Shares to be sold by the Selling Shareholder have been placed in custody under a Custody Agreement, in the form heretofore furnished to you (the "CUSTODY AGREEMENT"), duly executed and delivered by the Selling Shareholder to American Stock Transfer & Trust Company as custodian (the "CUSTODIAN"); (k) The Selling Shareholder is not subject to any order or directive of, or party to any agreement with, any regulatory agency having jurisdiction with respect to him; (l) 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 the arrangements made by the Selling Shareholder for such custody are to that extent irrevocable; the obligations of the Selling Shareholder hereunder shall not be terminated by operation of law, whether by the death or incapacity of the Selling Shareholder or, in the case of an estate or trust, by the death or incapacity of any executor or trustee or the termination of such estate or trust, or in the case of a partnership or corporation, by the dissolution of such partnership or corporation, or by the occurrence of any other event; if the Selling Shareholder or any such executor or trustee should die or become incapacitated, or if any such estate or trust should be terminated, or if any such partnership or corporation should be dissolved, or if any other such event should occur, before the delivery of the Shares hereunder, certificates representing the Shares shall be delivered by or on behalf of the Selling Shareholder in accordance with the terms and conditions of this Agreement and the Custody Agreement and shall be as valid as if such death, incapacity, termination, dissolution or other event had not occurred, regardless of whether or not the Custodian shall have received notice of such death, incapacity, termination, dissolution or other event.
Appears in 2 contracts
Samples: Underwriting Agreement (R&g Financial Corp), Underwriting Agreement (R&g Financial Corp)
Representations and Warranties of the Selling Shareholder. The Selling Shareholder representsrepresents and warrants to, warrants and covenantsagrees with, solely with respect to himself the Company and the number of Selling Shareholder Shares and the Selling Shareholder Option Shares each Underwriter as set forth opposite his name on Schedule I hereto, to each Underwriter that:below in this Section 3.
(a) This Agreement has been duly authorized, executed and delivered by or on behalf of the Selling Shareholder.
(b) The Selling Shareholder has valid and unencumbered title to 2,300,000 shares of Class A Common Stock of the Company, that are convertible into 2,300,000 Shares.
(b) Such Selling Shareholder will have, valid and unencumbered title to the Shares on each Applicable Closing Date, to be delivered by the Selling Shareholder on such Applicable Closing Date and full right, power and authority to enter into this Agreement Agreement, and to sell, assign, transfer and deliver the Shares Offered Securities to be delivered sold by the Selling Shareholder on such Applicable Closing Date hereunder; and and, upon the delivery of and payment for such Shares on each Applicable Closing Date hereunder, the several Underwriters will acquire valid and unencumbered title to the Shares Offered Securities to be delivered sold by the Selling Shareholder pursuant to this Agreement, delivery of such Offered Securities, as directed by the Representatives, to Cede & Co. (“Cede”) or such other nominee as may be designated by The Depository Trust Company (“DTC”), registration of such Offered Securities in the name of Cede or such other nominee and the crediting of such Offered Securities on the books of DTC to the securities account of the Underwriters (assuming that neither DTC nor the Underwriters has notice of any adverse claim (within the meaning of Section 8-105 of the New York Uniform Commercial Code (the “UCC”)) to such Applicable Closing DateOffered Securities), (A) DTC shall be a “protected purchaser” of such Offered 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 Offered Securities and (C) no action based on any “adverse claim,” within the meaning of Section 8-102 of the UCC, to such Offered 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 Offered 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 Section 8-102 of the UCC and (z) appropriate entry to the account of the Underwriters on the records of DTC will have been made pursuant to the UCC.
(c) No filing with, or authorization, approval, consent, license, order, registration, qualification or decree The execution and delivery by the Selling Shareholder of, any court or governmental authority or agency is necessary or required for and the performance by the Selling Shareholder of his its obligations hereunderunder, in connection with the offering, issuance or sale of the Selling Shareholder Shares hereunder or the consummation of the transactions contemplated by this Agreement, except such as has been already obtained or may be required under the Act or the Rules and Regulations, state securities laws or the bylaws and rules of the NASD in connection with the purchase and distribution by the Underwriters of the Selling Shareholder Shares and the Selling Shareholder Option Shares to be sold hereby;
(d) The Selling Shareholder has the legal right, power and all authorizations and approvals required by law to enter into the Custody Agreement (as defined in Section 4(j) hereof). This Agreement and the Custody Agreement have been duly executed and delivered by the Selling Shareholder and each such agreement is a legal, valid and binding agreement of the Selling Shareholder;
(e) The execution, delivery and performance of this Agreement and the consummation of the transactions contemplated by this Agreement and will not contravene or conflict with, result in the Registration Statement a breach of, or constitute a default (including the issuance and sale of such Selling Shareholder Shares and the Selling Shareholder Option Sharesor, if applicable) and compliance by the Selling Shareholder with his obligations under this Agreement and the Custody Agreement, do not and will not, whether with or without the giving of notice or lapse of time or bothtime, conflict with or constitute a breach of, or default or Repayment Event would be in default) under, or result in require the creation or imposition consent of any lien, charge other party to (i) any agreement or encumbrance upon any property or assets of the Selling Shareholder pursuant to any contract, indenture, mortgage, deed of trust, loan or credit agreement, note, lease or any other agreements or instrument, instrument to which the Selling Shareholder is a party or by which he may be bound, it is bound or under which it is entitled to which any right or benefit including any pledge of the property Offered Securities or assets (ii) any provision of the Selling Shareholder is subject (except for such conflicts, breaches, defaults, liens, charges applicable law or encumbrances that would not have a material adverse effect on the transactions contemplated herein), nor will such action result in any violation of any applicable law, statute, rule, regulation, judgment, order, writ decree or decree, regulation applicable to the Selling Shareholder of any government, government instrumentality or court, domestic regulatory body, administrative agency, governmental body or foreign, arbitrator having jurisdiction over the Selling Shareholder, except, in the case of the foregoing clauses (i) and (ii) as would not, individually or in the aggregate, reasonably be expected to materially impact the Selling Shareholder’s ability to perform its obligations under this Agreement. No consent, approval, authorization or other order of, or registration or filing with, any court or other governmental authority or agency, is required for the consummation by the Selling Shareholder of the transactions contemplated in this Agreement, except such as may be required under the Securities Act, applicable state securities or blue sky laws and from the Financial Industry Regulatory Authority, Inc. (“FINRA”) and such other approvals as have been or will be made or obtained on or prior to the First Closing Date.
(d) All information furnished to the Company or the Underwriters by or on behalf of the Selling Shareholder in writing expressly for use in the Registration Statement, the General Disclosure Package or the Final Prospectus is, and on each Closing Date will be, true, correct and complete in all material respects, and on each Closing Date will not, contain any respective propertiesuntrue statement of a material fact or omit to state any material fact necessary to make such information not misleading, assets or operations;it being understood and agreed that the only such information consists of the information with respect to the Selling Shareholder under the caption “Selling Shareholder” in the Registration Statement, the General Disclosure Package and the Final Prospectus (such information, the “Selling Shareholder Information”).
(e) Prior to the completion of the Underwriters’ distribution of the Offered Securities, the Selling Shareholder has not distributed and will not distribute any offering material in connection with the offering and sale of the Offered Securities other than the Registration Statement, the General Disclosure Package and the Final Prospectus.
(f) The Selling Shareholder has not taken and will not take, directly or indirectly, any action which that is designed to or which that has constituted 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;Offered Securities.
(g) Neither the Registration Statement, any Preliminary Prospectus, the Prospectus or any amendment or supplement thereto contains any untrue statement of a material fact or omits to state therein a material fact required to be stated therein or necessary to make the statements therein not misleading, in each case to the extent, but only to the extent, that such untrue statement or omission was made in the Registration Statement, any Preliminary Prospectus, the Prospectus or any amendment or supplement thereto in reliance upon and in conformity with written information furnished to the Company by the Selling Shareholder pertaining, as such, for use therein;
(h) The Selling Shareholder has no reason to believe that the representations and warranties of the Company set forth in Section 3 are not true and correct in all material respects;
(i) The Selling Shareholder will deliver to you prior to or at each Applicable Closing Date a properly completed and executed Internal Revenue Service Form W-8BEN (or other applicable Form W-8;
(j) Certificates in negotiable form representing all of the Selling Shareholder Shares and the Selling Shareholder Option Shares to be sold by the Selling Shareholder have been placed in custody under a Custody Agreement, in the form heretofore furnished to you (the "CUSTODY AGREEMENT"), duly executed and delivered by the Selling Shareholder to American Stock Transfer & Trust Company as custodian (the "CUSTODIAN");
(k) The Selling Shareholder is not subject to any order or directive of, or party to any agreement with, any regulatory agency having jurisdiction with respect to him;
a United States person (las the term is defined in 7701(a)(30) 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 the arrangements made by the Selling Shareholder Internal Revenue Code of 1986, as amended) for such custody are to that extent irrevocable; the obligations of the Selling Shareholder hereunder shall not be terminated by operation of law, whether by the death or incapacity of the Selling Shareholder or, in the case of an estate or trust, by the death or incapacity of any executor or trustee or the termination of such estate or trust, or in the case of a partnership or corporation, by the dissolution of such partnership or corporation, or by the occurrence of any other event; if the Selling Shareholder or any such executor or trustee should die or become incapacitated, or if any such estate or trust should be terminated, or if any such partnership or corporation should be dissolved, or if any other such event should occur, before the delivery of the Shares hereunder, certificates representing the Shares shall be delivered U.S. federal income tax purposes. Any certificate signed by or on behalf of the Selling Shareholder and delivered to the Representatives or to counsel for the Underwriters in accordance connection with the terms and conditions offering of this Agreement and the Custody Agreement and Offered Securities shall be deemed a representation and warranty by the Selling Shareholder to the Underwriters as valid as if to the matters covered thereby with respect to the Selling Shareholder. The Selling Shareholder has a reasonable basis for making each of the representations set forth in this Section 3. The Selling Shareholder acknowledges that the Company, Underwriters and, for purposes of the opinions to be delivered pursuant to Section 9(d), Section 9(e), Section 9(f) and Section 9(g) hereof, counsel to the Company, the Company’s general counsel or any assistant general counsel, the Selling Shareholder and counsel to the Underwriters, will rely upon the accuracy and truthfulness of the foregoing representations and hereby consents to such death, incapacity, termination, dissolution or other event had not occurred, regardless of whether or not the Custodian shall have received notice of such death, incapacity, termination, dissolution or other eventreliance.
Appears in 2 contracts
Samples: Underwriting Agreement (Fiserv Inc), Underwriting Agreement (Fiserv Inc)
Representations and Warranties of the Selling Shareholder. The Selling Shareholder representsrepresents and warrants to the several Underwriters, warrants as of the date hereof and covenantsas of each Closing Date, solely and agrees with respect to himself and the number of Selling Shareholder Shares and the Selling Shareholder Option Shares set forth opposite his name on Schedule I heretoseveral Underwriters, to each Underwriter that:
(a) The Selling Shareholder This Agreement has valid been duly authorized, executed and unencumbered title to 2,300,000 shares of Class A Common Stock delivered by or on behalf of the Company, that are convertible into 2,300,000 SharesSelling Shareholder.
(b) Such 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 any agreement or other instrument binding upon the Selling Shareholder, (ii) the articles of incorporation or bylaws of the Selling Shareholder or (iii) any judgment, order or decree of any governmental body, agency or court having jurisdiction over the Selling Shareholder, except, with respect to clauses (i) and (iii), as would not, individually or in the aggregate, reasonable be expected to have a material adverse effect on the Selling Shareholder’s ability to perform its obligations under this Agreement, and no consent, approval, authorization or order of, or qualification with, any governmental body, agency or court is required for the performance by the Selling Shareholder of its obligations under this Agreement, except for the registration of the Securities under the Securities Act and such consents, approvals, authorizations, orders, filings, registrations or qualifications as may be required under the Exchange Act and applicable state or foreign securities laws in connection with the offer and sale of the Securities.
(c) The Selling Shareholder is, and immediately prior to each Closing Date, the Selling Shareholder will havebe, valid and unencumbered title to the Shares on each Applicable Closing Date, record owner of the Securities to be delivered by the Selling Shareholder on hereunder at such Applicable Closing Date Date, and the Selling Shareholder has full right, power and authority to enter into this Agreement and to sell, assign, assign and transfer and deliver the Ordinary Shares to be delivered by the Selling Shareholder on and the Ordinary Shares in the form of ADSs to be delivered by the Selling Shareholder and to deposit with the Depositary the Ordinary Shares to be sold in the form of the Offered ADSs by such Applicable Selling Shareholder at such Closing Date hereunder; and upon the Date.
(d) Upon delivery of and payment for such Shares on the Securities to the Selling Shareholder at each Applicable Closing Date hereunder, the several Underwriters will acquire valid title to, including a valid “security entitlement” within the meaning of Section 8-501 of the New York Uniform Commercial Code in respect of, the Securities free and unencumbered clear of all liens, encumbrances, equities or claims, and upon delivery of such Securities and payment therefor pursuant hereto, valid title to such Securities, free and clear of all liens, encumbrances, equities or claims, will pass to the Shares to be delivered by the Selling Shareholder on such Applicable Closing DateUnderwriters.
(c) No filing with, or authorization, approval, consent, license, order, registration, qualification or decree of, any court or governmental authority or agency is necessary or required for the performance by the Selling Shareholder of his obligations hereunder, in connection with the offering, issuance or sale of the Selling Shareholder Shares hereunder or the consummation of the transactions contemplated by this Agreement, except such as has been already obtained or may be required under the Act or the Rules and Regulations, state securities laws or the bylaws and rules of the NASD in connection with the purchase and distribution by the Underwriters of the Selling Shareholder Shares and the Selling Shareholder Option Shares to be sold hereby;
(d) The Selling Shareholder has the legal right, power and all authorizations and approvals required by law to enter into the Custody Agreement (as defined in Section 4(j) hereof). This Agreement and the Custody Agreement have been duly executed and delivered by the Selling Shareholder and each such agreement is a legal, valid and binding agreement of the Selling Shareholder;
(e) The executionSelling Shareholder will, delivery and performance prior to each Closing Date, deposit the Ordinary Shares to be represented by the Offered ADSs with the Depositary in accordance with the provisions of this the Deposit Agreement and otherwise complies with the consummation of the transactions contemplated by this Deposit Agreement and in the Registration Statement so that ADSs will be executed (including the issuance and sale of such Selling Shareholder Shares and the Selling Shareholder Option Sharesand, if applicable, countersigned) and compliance issued by the Selling Shareholder with his obligations under this Agreement Depositary against receipt of such Ordinary Shares and delivered to the Custody Agreement, do not and will not, whether with or without the giving of notice or lapse of time or both, conflict with or constitute a breach of, or default or Repayment Event under, or result in the creation or imposition of any lien, charge or encumbrance upon any property or assets of the Selling Shareholder pursuant to any contract, indenture, mortgage, deed of trust, loan or credit agreement, note, lease or any other agreements or instrument, to which the Selling Shareholder is a party or by which he may be bound, or to which any of the property or assets of the Selling Shareholder is subject (except for Underwriters at such conflicts, breaches, defaults, liens, charges or encumbrances that would not have a material adverse effect on the transactions contemplated herein), nor will such action result in any violation of any applicable law, statute, rule, regulation, judgment, order, writ or decree, of any government, government instrumentality or court, domestic or foreign, having jurisdiction over the Selling Shareholder or any respective properties, assets or operations;Closing Date.
(f) The Selling Shareholder has not taken and will not taketaken, directly or indirectly, any action which that is designed to or which that has constituted or would 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;Securities.
(g) Neither The Selling Shareholder has delivered to the Representatives an executed lock-up agreement in substantially the form attached hereto as Exhibit I (the “Lock-up Agreement”).
(h) The Selling Shareholder is not prompted by any information concerning the Company or its subsidiaries which is not set forth in the Registration Statement, any Preliminary Prospectus, the General Disclosure Package or the Prospectus to sell its Securities pursuant to this Agreement.
(i) (i) Each part of the Registration Statement, when such part became effective, did not contain, and, as amended or any supplemented, if applicable, did not or will not, as the case may be, contain at the time of such amendment or supplement thereto contains supplement, any untrue statement of a material fact or omits omit to state therein a material fact required to be stated therein or necessary to make the statements therein not misleading, (ii) the General Disclosure Package, as of the Applicable Time, did 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 light of the circumstances under which they were made, not misleading and (iii) the Prospectus does not or will not, as the case may be, as of the date of the Prospectus and as at each case Closing Date, contain and, as amended or supplemented, if applicable, at the time of such amendment or supplement, will not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in light of the circumstances under which they were made, not misleading; provided that the representations and warranties set forth in this paragraph 3(h) are limited only to information furnished to the extent, but only to Company in writing by the extent, that such untrue statement or omission was made Selling Shareholder expressly for use in the Registration Statement, any Preliminary Prospectusthe General Disclosure Package, the Prospectus or any amendment amendments or supplement thereto in reliance upon supplements thereto, it being understood and in conformity with written agreed that the only such information furnished to the Company by the Selling Shareholder pertainingconsists of Selling Shareholder Information. Each Underwriter, as such, the Company and the Selling Shareholder agree that the “Selling Shareholder Information” with respect to the Selling Shareholder consists solely of the information expressly furnished by the Selling Shareholder for use therein;in connection with the offering the Registration Statement, the General Disclosure Package and the Prospectus, which consists solely of (x) the name, address and number of Ordinary Shares and Restricted Shares owned by the Selling Shareholder, before and after the offering, and (y) the other information with respect to the Selling Shareholder that appears in the table (and corresponding footnotes) under the caption “Selling Securityholder,” in each case, in the Registration Statement, the General Disclosure Package or the Prospectus.
(hi) None of the Selling Shareholder, any of its subsidiaries, or any director and officer thereof, nor to the Selling Shareholder’s knowledge any other employee, 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 that are:
(A) the subject of any Sanctions; or
(B) organized or resident in a country or territory that is the subject of comprehensive territorial Sanctions (including, without limitation, the 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, Crimea, Cuba, Iran, North Korea and Syria).
(ii) The Selling Shareholder has no reason to believe and each of its subsidiaries have not for the past five years, engaged in, and are not now engaged in, any dealings or transactions with any Person, or with any country or territory, that at the representations and warranties time of the Company set forth in Section 3 are not true and correct in all material respects;
(i) The Selling Shareholder will deliver dealing or transaction is or was the subject of Sanctions, except to you prior to or at each Applicable Closing Date a properly completed and executed Internal Revenue Service Form W-8BEN (or other the extent permitted by applicable Form W-8;
(j) Certificates in negotiable form representing all of law. It is understood that the Selling Shareholder Shares does not make or repeat, as appropriate, the representation and warranty contained in this Section 3(j)(ii) and/or the Selling Shareholder Option Shares to be sold representation and warranty given by the Selling Shareholder have been placed in custody under Section 3(j)(ii) to the extent that such provisions are or would be unenforceable or would result in a Custody Agreement, violation of (i) Council Regulation (EC) 2271/96 (including as it forms part of UK domestic law by virtue of the European Union (Withdrawal) Act 2018) and/or any applicable national law or regulation which purports to create liability in respect of such violation in any member state of the European Union or any similar anti-boycott law in the form heretofore furnished United Kingdom. The representations and warranties given in this clause are only sought by and given to you any Underwriter incorporated in or organized under the laws of the Federal Republic of Germany to the extent that to do so would not result in a violation of or a conflict with the German Foreign Trade Regulation (the "CUSTODY AGREEMENT"Außenwirtschaftsverordnung – AWV), duly executed and delivered by the Selling Shareholder to American Stock Transfer & Trust Company as custodian (the "CUSTODIAN");.
(k) 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:
(i) 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 not the subject of Sanctions, except to the extent permitted by applicable law;
(ii) fund or facilitate any money laundering or terrorist financing activities; or
(iii) in any other manner that would cause or result in a violation of any applicable Anti-Corruption Laws, Anti-Money Laundering Laws, or Sanctions by any Person (including any Person participating in the offering, whether as underwriter, advisor, investor or otherwise), it being understood that the Selling Shareholder, to the extent it is subject to Council Regulation (EC) 2271/96, does not make or repeat, as appropriate, the representation and warranty contained in this paragraph 3(k) to the extent that this would result in a violation of the EU Blocking Regulation or any order law or directive of, or party to regulation implementing the EU Blocking Regulation in any agreement with, any regulatory agency having jurisdiction with respect to him;member state of the European Union.
(l) The Shares represented by For the certificates held in custody for the Selling Shareholder under the Custody Agreement are subject to the interests past five years, none of the Underwriters hereunder and the arrangements made by the Selling Shareholder for such custody are to that extent irrevocable; the obligations of the Selling Shareholder hereunder shall not be terminated by operation of law, whether by the death or incapacity of the Selling Shareholder or, in the case of an estate or trust, by the death or incapacity of any executor or trustee or the termination of such estate or trust, or in the case of a partnership or corporation, by the dissolution of such partnership or corporation, or by the occurrence of any other event; if the Selling Shareholder or any such executor or trustee should die or become incapacitatedof its subsidiaries, or if any such estate or trust should be terminateddirector, officer, or if employee thereof, or, to the Selling Shareholder’s knowledge, any such partnership agent or corporation should be dissolvedrepresentative of the Selling Shareholder or of any of its subsidiaries, has (i) taken any action in furtherance of an offer, solicitation, payment, promise to pay, or if authorization of any other such event should occurdirect or indirect unlawful payment or benefit, before the delivery to any foreign or domestic government official or employee, including of the Shares hereunderany government-owned or controlled entity or of a public international organization, certificates representing the Shares shall be delivered by 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, or (ii) violated (a) the U.S. Foreign Corrupt Practices Act of 1977, (b) the UK Bribery Act 2010 and (c) other than immaterial violations, any other applicable anti-bribery or anti-corruption law.
(m) The operations of the Selling Shareholder and its subsidiaries are and have been conducted at all times in accordance material compliance with all applicable Anti-Money Laundering Laws.
(n) No investigation, inquiry, 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, Anti-Corruption Laws, or Sanctions is pending or, to the knowledge of the Selling Shareholder, threatened. The Selling Shareholder and its subsidiaries and affiliates have instituted and maintained and will continue to maintain policies and procedures reasonably designed to promote and achieve compliance with the terms Anti-Corruption Laws, the Anti-Money Laundering Laws and conditions Sanctions.
(o) The Selling Shareholder is a “United States person” within the meaning of this Agreement Section 7701(a)(30) of the United States Internal Revenue Code of 1986, as amended, and is not treated as resident in any non-U.S. jurisdiction for tax purposes (including any double tax treaty arrangement).
(p) The Selling Shareholder (i) has not alone engaged in any Testing-the-Waters Communication with any person other than Testing-the-Waters Communications with the Custody Agreement consent of the Representatives with entities that are reasonably believed to be qualified institutional buyers within the meaning of Rule 144A under the Securities Act or institutions that are reasonably believed to be accredited investors within the meaning of Rule 501 under the Securities Act and shall be as valid as if such death, incapacity, termination, dissolution (ii) has not authorized anyone other than the Representatives to engage in Testing-the-Waters Communications. The Selling Shareholder reconfirms that the Representatives have been authorized to act on its behalf in undertaking Testing-the-Waters Communications. The Selling Shareholder has not distributed or approved any Testing-the-Waters Communication that is a written communication within the meaning of Rule 405 under the Securities Act other event had not occurred, regardless of whether or not the Custodian shall have received notice of such death, incapacity, termination, dissolution or other event.than those listed on Schedule C.
Appears in 1 contract
Samples: Underwriting Agreement (Anheuser-Busch InBev SA/NV)
Representations and Warranties of the Selling Shareholder. The Selling Shareholder represents, represents and warrants to and covenants, solely agrees with respect to himself and each of the number of Selling Shareholder Shares and the Selling Shareholder Option Shares set forth opposite his name on Schedule I hereto, to each Underwriter Underwriters that:
(a) The Selling Shareholder This Agreement has valid been duly authorized, executed and unencumbered title to 2,300,000 shares of Class A Common Stock delivered by or on behalf of the Company, that are convertible into 2,300,000 SharesSelling Shareholder.
(b) Such 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, (ii) the organizational documents of the Selling Shareholder, (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 the case of (i), (iii) and (iv), as would not reasonably be expected to materially impact the Selling Shareholder’s ability to perform its obligations under this Agreement.
(c) No material 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, except as will have been obtained on or prior to the time of delivery of the Shares pursuant to Section 5.
(d) The Selling Shareholder has, and on the Closing Date will have, valid and unencumbered title to 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 on each Applicable Closing Date, to be delivered sold by the such Selling Shareholder on such Applicable Closing Date free and full rightclear of all security interests, power claims, liens, equities or other encumbrances and authority the legal right and power, and all authorization and approval required by law, to enter into this Agreement and to sell, assign, transfer and deliver the Shares to be delivered by the Selling Shareholder on such Applicable Closing Date hereunder; and upon the delivery of and payment for such Shares on each Applicable Closing Date hereunder, the several Underwriters will acquire valid and unencumbered title to the Shares to be delivered by the Selling Shareholder on such Applicable Closing Date.
(c) No filing with, or authorization, approval, consent, license, order, registration, qualification or decree of, any court or governmental authority or agency is necessary or required for the performance by the Selling Shareholder of his obligations hereunder, in connection with the offering, issuance or sale of the Selling Shareholder Shares hereunder or the consummation of the transactions contemplated by this Agreement, except such as has been already obtained or may be required under the Act or the Rules and Regulations, state securities laws or the bylaws and rules of the NASD in connection with the purchase and distribution by the Underwriters of the Selling Shareholder Shares and the Selling Shareholder Option Shares to be sold hereby;
(d) The Selling Shareholder has the legal right, power and all authorizations and approvals required by law to enter into the Custody Agreement (as defined in Section 4(j) hereof). This Agreement and the Custody Agreement have been duly executed and delivered by the Selling Shareholder and each such agreement is a legal, valid and binding agreement of the Selling Shareholder;
(e) The execution, delivery and performance of this Agreement and the consummation of the transactions contemplated by this Agreement and in the Registration Statement (including the issuance and sale of such Selling Shareholder Shares and the Selling Shareholder Option Shares, if applicable) and compliance by the Selling Shareholder with his obligations under this Agreement and the Custody Agreement, do not and will not, whether with or without the giving of notice or lapse of time or both, conflict with or constitute a breach of, or default or Repayment Event under, or result in the creation or imposition of any lien, charge or encumbrance upon any property or assets of the Selling Shareholder pursuant to any contract, indenture, mortgage, deed of trust, loan or credit agreement, note, lease or any other agreements or instrument, to which the Selling Shareholder is a party or by which he may be bound, or to which any of the property or assets of the Selling Shareholder is subject (except for such conflicts, breaches, defaults, liens, charges or encumbrances that would not have a material adverse effect on the transactions contemplated herein), nor will such action result in any violation of any applicable law, statute, rule, regulation, judgment, order, writ or decree, of any government, government instrumentality or court, domestic or foreign, having jurisdiction over the Selling Shareholder or any respective properties, assets or operations;
(f) The Selling Shareholder has not taken and will not take, directly or indirectly, any action which is designed to or which has constituted stabilization or manipulation of the price of any security of the Company to facilitate the sale or resale of the Shares;
(g) Neither the Registration Statement, any Preliminary Prospectus, the Prospectus or any amendment or supplement thereto contains any untrue statement of a material fact or omits to state therein a material fact required to be stated therein or necessary to make the statements therein not misleading, in each case to the extent, but only to the extent, that such untrue statement or omission was made in the Registration Statement, any Preliminary Prospectus, the Prospectus or any amendment or supplement thereto in reliance upon and in conformity with written information furnished to the Company by the Selling Shareholder pertaining, as such, for use therein;
(h) The Selling Shareholder has no reason to believe that the representations and warranties of the Company set forth in Section 3 are not true and correct in all material respects;
(i) The Selling Shareholder will deliver to you prior to or at each Applicable Closing Date a properly completed and executed Internal Revenue Service Form W-8BEN (or other applicable Form W-8;
(j) Certificates in negotiable form representing all of the Selling Shareholder Shares and the Selling Shareholder Option Shares to be sold by the Selling Shareholder have been placed or a security entitlement in custody under a Custody Agreement, in respect of such Shares.
(e) Upon payment for the form heretofore furnished Shares to you (the "CUSTODY AGREEMENT"), duly executed and delivered be sold by the Selling Shareholder pursuant to American Stock Transfer this Agreement, delivery of such Shares, as directed by the Underwriters, to Cede & Co. (“Cede”) or such other nominee as may be designated by the Depository Trust Company (“DTC”), registration of such Shares in the name of Cede or such other nominee and the crediting of such Shares on the books of DTC to securities accounts of the Underwriters (assuming that neither DTC nor any such Underwriter has notice of any adverse claim (within the meaning of Section 8-105 of the UCC) to such Shares), (A) DTC shall be a “protected purchaser” of such Shares within the meaning of Section 8-303 of the UCC, (B) under Section 8-501 of the UCC, the Underwriters will acquire a valid security entitlement in respect of such Shares and (C) no action based on any “adverse claim”, within the meaning of Section 8-102 of the UCC, to such Shares may be asserted against the Underwriters with respect to such security entitlement; for purposes of this representation, 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 custodian a “clearing corporation” within the meaning of Section 8-102 of the UCC and (z) appropriate entries to the "CUSTODIAN");accounts of the several Underwriters on the records of DTC will have been made pursuant to the UCC.
(kf) The Neither the Selling Shareholder nor, to the knowledge of the Selling Shareholder, any director or officer or employee or affiliate of such Selling Shareholder is not currently subject to any order or directive of, or party to any agreement with, any regulatory agency having jurisdiction with respect to him;
(l) The Shares represented by the certificates held in custody for Sanctions; and the Selling Shareholder under will not, directly or indirectly, use the Custody Agreement are subject to the interests proceeds of the Underwriters hereunder and offering of the arrangements made Shares sold by the Selling Shareholder hereunder, or lend, contribute or otherwise make available such proceeds to any subsidiary, joint venture partner or other person or entity, for such custody are to that extent irrevocable; the obligations purpose of financing the Selling Shareholder hereunder shall not be terminated by operation of law, whether by the death or incapacity of the Selling Shareholder or, in the case of an estate or trust, by the death or incapacity activities of any executor or trustee or the termination of such estate or trust, or in the case of a partnership or corporation, by the dissolution of such partnership or corporation, or by the occurrence of any other event; if the Selling Shareholder or any such executor or trustee should die or become incapacitated, or if any such estate or trust should be terminated, or if any such partnership or corporation should be dissolved, or if any other such event should occur, before the delivery of the Shares hereunder, certificates representing the Shares shall be delivered by or on behalf of the Selling Shareholder in accordance with the terms and conditions of this Agreement and the Custody Agreement and shall be as valid as if such death, incapacity, termination, dissolution or other event had not occurred, regardless of whether or not the Custodian shall have received notice of such death, incapacity, termination, dissolution or other eventperson currently subject to Sanctions.
Appears in 1 contract
Samples: Underwriting Agreement (Seacoast Banking Corp of Florida)
Representations and Warranties of the Selling Shareholder. The Selling Shareholder represents, represents and warrants to and covenants, solely agrees with respect to himself and each of the number of Selling Shareholder Shares and the Selling Shareholder Option Shares set forth opposite his name on Schedule I hereto, to each Underwriter Underwriters that:
(a) The Selling Shareholder This Agreement has valid been duly authorized, executed and unencumbered title to 2,300,000 shares of Class A Common Stock delivered by or on behalf of the Company, that are convertible into 2,300,000 SharesSelling Shareholder.
(b) Such Selling Shareholder will have, valid The execution and unencumbered title to the Shares on each Applicable Closing Date, to be delivered delivery by the Selling Shareholder on such Applicable Closing Date of, and full right, power and authority to enter into this Agreement and to sell, assign, transfer and deliver the Shares to be delivered performance by the Selling Shareholder on such Applicable Closing Date hereunder; and 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, or any agreement or other instrument binding upon the delivery of and payment for such Shares on each Applicable Closing Date hereunder, the several Underwriters will acquire valid and unencumbered title to the Shares to be delivered by the Selling Shareholder on such Applicable Closing Date.
(c) No filing withor any judgment, order or authorizationdecree of any governmental body, agency or court having jurisdiction over the Selling Shareholder, and no consent, approval, consent, license, order, registration, qualification authorization or decree order of, or qualification with, any court or governmental authority body or agency is necessary or required for the performance by the Selling Shareholder of his its obligations hereunder, under this Agreement except such as may be required by the securities or Blue Sky laws of the various states in connection with the offering, issuance or offer and sale of the Selling Shareholder Shares hereunder or the consummation of the transactions contemplated by this Agreement, except such as has been already obtained or may be required under the Act or the Rules and Regulations, state securities laws or the bylaws and rules of the NASD in connection with the purchase and distribution by the Underwriters of the Selling Shareholder Shares and the Selling Shareholder Option Shares to be sold hereby;Offered ADSs.
(dc) The Selling Shareholder has and at the legal Closing Date will have (A) good and marketable title to the Ordinary Shares underlying the Offered ADSs to be delivered by the Selling Shareholder, free and clear of any liens, encumbrances, equities and claims and (B) full right, power and all authorizations authority to effect the sale and approvals required delivery of such Offered ADSs.
(d) Upon payment for the Offered ADSs sold by law to enter into the Custody Agreement (as defined in Section 4(j) hereof). This such Selling Shareholder under this Agreement and the Custody Agreement have been duly executed and delivered delivery by such Selling Shareholder to DTC or its agent of the ADSs in book entry form to securities accounts maintained by the Selling Shareholder Underwriters at the DTC or its nominee, and each such agreement is payment therefor in accordance with this Agreement, the Underwriters will acquire a legal, valid and binding agreement securities entitlement (within the meaning of Section 8-501 of the Selling Shareholder;UCC) with respect to such Offered ADSs, and no action based on an “adverse claim” within the meaning of UCC Section 8-102 may be asserted against the Underwriters with respect to such security entitlement if, at such time, the Underwriters do not have notice of any adverse claim within the meaning of UCC Section 8-102.
(e) The execution, delivery and performance of this Agreement and Ordinary Shares represented by the consummation of the transactions contemplated Offered ADSs to be sold by this Agreement and in the Registration Statement (including the issuance and sale of such Selling Shareholder Shares and the Selling Shareholder Option Shares, if applicable) and compliance may be freely deposited by the Selling Shareholder with his obligations under this the Depositary or its nominee in accordance with the Deposit Agreement and against the Custody Agreement, do not and will not, whether with or without issuance of ADRs evidencing ADSs representing such Ordinary Shares so deposited by the giving of notice or lapse of time or both, conflict with or constitute a breach of, or default or Repayment Event under, or result Selling Shareholder.
(f) Except as disclosed in the creation or imposition Time of any lienSale Prospectus and Registration Statement, charge or encumbrance upon any property or assets of the Offered ADSs, as well as the Ordinary Shares underlying such Offered ADSs, delivered at the Closing Date by the Selling Shareholder pursuant to any contract, indenture, mortgage, deed of trust, loan or credit agreement, note, lease or any other agreements or instrument, to which will be freely transferable by the Selling Shareholder is a party or by which he may be bound, or to which any of the property or assets of the Selling Shareholder is subject (except for such conflicts, breaches, defaults, liens, charges or encumbrances that would not have a material adverse effect on the transactions contemplated herein), nor will such action result in any violation of any applicable law, statute, rule, regulation, judgment, order, writ or decree, of any government, government instrumentality or court, domestic or foreign, having jurisdiction over the Selling Shareholder or any respective properties, assets or operations;Shareholder.
(fg) The Selling Shareholder has not taken and will not taketaken, directly or indirectly, any action which is designed to designed, or which has constituted or might reasonably be expected to cause or result in, under the Exchange Act or otherwise, the stabilization or manipulation of the price of any security of the Company to facilitate the sale or resale of Ordinary Shares or the Shares;Offered ADSs.
(gh) Neither The Selling Shareholder has no affiliations or associations with any member of the Financial Industry Regulatory Authority.
(i) There are no contracts, agreements or understandings between the Selling Shareholder and any person that would give rise to a valid claim against the Selling Shareholder or any Underwriter for a brokerage commission, finder’s fee or other like payment in connection with this offering.
(j) Except as disclosed in the Time of Sale Prospectus and the Registration Statement, any Preliminary Prospectusno transaction, stamp, capital or other issuance, registration, transaction, transfer or withholding taxes or duties are payable by or on behalf of the Underwriters in connection with (A) the sale and delivery of the Ordinary Shares represented by the Offered ADSs by the Selling Shareholder, the issuance of such Offered ADSs by the Depositary, and the delivery of such Offered ADSs to or for the account of the Underwriters, (B) the purchase from the Selling Shareholder and the initial sale and delivery by the Underwriters of the Offered ADSs to purchasers thereof, (C) the deposit by the Selling Shareholder of the Ordinary Shares with the Depositary and the Custodian and the issuance and delivery of the ADRs evidencing the Offered ADSs, or (E) the execution and delivery of this Agreement.
(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 information not disclosed in 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 amendment information concerning the Company or supplement thereto contains its subsidiaries which is not set forth in the Time of Sale Prospectus to sell its Ordinary Shares pursuant to this Agreement.
(l) (i) 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 such part became effective, did not contain, and each such part, as amended or supplemented, if applicable, will not contain any untrue statement of a material fact or omits omit to state therein a material fact required to be stated therein or necessary to make the statements therein not misleading, in each case to (iii) the extent, but only to Registration Statement as of the extent, that such date hereof does not contain any untrue statement of a material fact or omission was made 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, (v) the Time of Sale Prospectus does not, and at the time of each sale of the Offered ADSs 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 (vi) 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, except that the representations and warranties set forth in this paragraph do not apply to statements or omissions in the Registration Statement, any Preliminary Prospectus, the Time of Sale Prospectus or the Prospectus or based upon information relating to any amendment or supplement thereto in reliance upon and in conformity with written information Underwriter furnished to the Company in writing by such Underwriter through the Selling Shareholder pertaining, as such, Managers expressly for use therein;.
(hm) The Selling Shareholder has no reason to believe that the representations and warranties of the Company set forth in Section 3 are not true and correct in all material respects;
(i) The Selling Shareholder will deliver to you prior to or at each Applicable Closing Date a properly completed and executed Internal Revenue Service Form W-8BEN (or other applicable Form W-8;
(j) Certificates in negotiable form representing all of the Selling Shareholder Shares and the Selling Shareholder Option Shares to be sold by the Selling Shareholder have been placed in custody under a Custody Agreement, in the form heretofore furnished to you (the "CUSTODY AGREEMENT"), duly executed and delivered by the Selling Shareholder to American Stock Transfer & Trust Company as custodian (the "CUSTODIAN");
(k) The Selling Shareholder is not subject to any order or directive of, or party to any agreement with, any regulatory agency having jurisdiction with respect to him;
(l) 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 the arrangements made by the Selling Shareholder for such custody are to that extent irrevocable; the obligations of the Selling Shareholder hereunder shall not be terminated by operation of law, whether by the death or incapacity of the Selling Shareholder or, in the case of an estate or trust, by the death or incapacity of any executor or trustee or the termination of such estate or trust, or in the case of a partnership or corporation, by the dissolution of such partnership or corporation, or by the occurrence of any other event; if Neither the Selling Shareholder or any such executor or trustee should die or become incapacitatedof its subsidiaries or, to the knowledge of the Selling Shareholder, any director, officer, agent, employee, affiliate, or if any such estate or trust should be terminated, or if any such partnership or corporation should be dissolved, or if any other such event should occur, before the delivery of the Shares hereunder, certificates representing the Shares shall be delivered by or person acting on behalf of the Selling Shareholder in accordance with the terms and conditions or any of this Agreement its subsidiaries is currently subject to any U.S. sanctions administered by OFAC; and the Custody Agreement and shall Selling Shareholder will not use the proceeds of the offering for the purpose of financing the activities of any person known to the Selling Shareholder to be as valid as if such death, incapacity, termination, dissolution or other event had not occurred, regardless of whether or not the Custodian shall have received notice of such death, incapacity, termination, dissolution or other eventcurrently subject to any U.S. sanctions administered by OFAC.
Appears in 1 contract
Samples: Underwriting Agreement (Ctrip Com International LTD)
Representations and Warranties of the Selling Shareholder. The Selling Shareholder represents, represents and warrants and covenantsto the Underwriters, solely with respect to himself itself and the number of Selling Shareholder Option Shares to be sold by it, and agrees that:
a) the Selling Shareholder Option Shares set forth opposite his name on Schedule I hereto, to each Underwriter that:
(a) The Selling Shareholder has good and valid and unencumbered title to 2,300,000 shares of Class A Common Stock of the Company, that are convertible into 2,300,000 Shares.
(b) Such Selling Shareholder will have, valid and unencumbered title to the Shares on each Applicable Closing Date, to be delivered sold by the Selling Shareholder hereunder free and clear of all liens, encumbrances or claims, and immediately prior to the Closing Time the Selling Shareholder will have good and valid title to the Shares to be sold by the Selling Shareholder hereunder free and clear of all liens, encumbrances or claims; and upon delivery of such Shares and payment therefor pursuant hereto, good and valid title to such Shares, free and clear of all liens, encumbrances, equities or claims created by the Selling Shareholder, will pass to the several Underwriters;
b) the Selling Shareholder has placed in custody under a custody arrangement with Xxxxx Fargo Bank Minnesota, N.A. for delivery under this Agreement, securities in negotiable form (with signature guaranteed by a commercial bank or trust company having an office or correspondent in the United States or a member firm of the New York or American Stock Exchanges) representing the Shares to be sold by the Selling Shareholder hereunder;
c) the Selling Shareholder has duly and irrevocably executed and delivered a power of attorney (the "Power of Attorney") appointing certain officers of the Company as attorneys-in-fact, with full power of substitution, and with full authority on the terms set forth therein (exercisable by any one or more of them) to execute and deliver this Agreement and to take such Applicable Closing Date and other action as may be necessary or desirable to carry out the provisions hereof on behalf of the Selling Shareholder;
d) the Selling Shareholder has full right, power and authority to enter into this Agreement and to sell, assign, transfer and deliver the Shares to be delivered by Power of Attorney; the Selling Shareholder on such Applicable Closing Date hereunder; and upon the delivery of and payment for such Shares on each Applicable Closing Date hereunder, the several Underwriters will acquire valid and unencumbered title to the Shares to be delivered by the Selling Shareholder on such Applicable Closing Date.
(c) No filing with, or authorization, approval, consent, license, order, registration, qualification or decree of, any court or governmental authority or agency is necessary or required for the performance by the Selling Shareholder of his obligations hereunder, in connection with the offering, issuance or sale of the Selling Shareholder Shares hereunder or the consummation of the transactions contemplated by this Agreement, except such as has been already obtained or may be required under the Act or the Rules and Regulations, state securities laws or the bylaws and rules of the NASD in connection with the purchase and distribution by the Underwriters of the Selling Shareholder Shares and the Selling Shareholder Option Shares to be sold hereby;
(d) The Selling Shareholder has the legal right, power and all authorizations and approvals required by law to enter into the Custody Agreement (as defined in Section 4(j) hereof). This Agreement and the Custody Agreement have been duly executed and delivered by the Selling Shareholder and each such agreement is a legal, valid and binding agreement of the Selling Shareholder;
(e) The execution, delivery and performance of this Agreement and the Power of Attorney by the Selling Shareholder and the consummation by the Selling Shareholder of the transactions contemplated by this Agreement and in the Registration Statement (including the issuance and sale of such Selling Shareholder Shares and the Selling Shareholder Option Shares, if applicable) and compliance by the Selling Shareholder with his obligations under this Agreement and the Custody Agreement, do hereby will not and will not, whether with or without the giving of notice or lapse of time or both, conflict with or constitute a breach of, or default or Repayment Event under, or result in the creation or imposition of any lien, charge or encumbrance upon any property or assets of the Selling Shareholder pursuant to any contract, indenture, mortgage, deed of trust, loan agreement or credit agreement, note, lease other agreement or any other agreements or instrument, instrument to which the Selling Shareholder is a party or by which he may be bound, the Selling Shareholder is bound or to which any of the property or assets of the Selling Shareholder is subject (subject, nor will such actions result in any violation of any statute or any order, rule or regulation of any court or governmental agency or body having jurisdiction over the Selling Shareholder or the property or assets of the Selling Shareholder; and, except for the registration of the Shares under the Act and such conflictsconsents, breachesapprovals, defaultsauthorizations, liensregistrations or qualifications as may be required under applicable state securities laws in connection with the purchase and distribution of the Shares by the Underwriters, charges no consent, approval, authorization or encumbrances that order of, or filing or registration with, any such court or governmental agency or body is required for the execution, delivery and performance of this Agreement or the Power of Attorney by the Selling Shareholder and the consummation by the Selling Shareholder of the transactions contemplated hereby, except where such default, violation or failure to obtain any such consent, approval, authorization, order or to make such filing or registration would not have a material adverse effect on the transactions contemplated herein), nor will such action result in any violation ability of any applicable law, statute, rule, regulation, judgment, order, writ or decree, of any government, government instrumentality or court, domestic or foreign, having jurisdiction over the Selling Shareholder to consummate the transactions contemplated hereby;
e) to the extent that any statements or omissions made in the Registration Statement, the Prospectus or any respective propertiesamendment or supplement thereto are made in reliance upon and in conformity with written information furnished to the Company by the Selling Shareholder specifically for use therein, assets the Registration Statement and the Prospectus and any amendments or operations;supplements thereto will not, when they become effective or are filed with the Commission, as the case may be, contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading in relation to such written information; and
(f) The the Selling Shareholder has not taken and will not take, directly or indirectly, any action which that is designed to or which that has constituted or that might 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;
(g) Neither the Registration Statement, any Preliminary Prospectus, the Prospectus or any amendment or supplement thereto contains any untrue statement of a material fact or omits to state therein a material fact required to be stated therein or necessary to make the statements therein not misleading, in each case to the extent, but only to the extent, that such untrue statement or omission was made in the Registration Statement, any Preliminary Prospectus, the Prospectus or any amendment or supplement thereto in reliance upon and in conformity with written information furnished to the Company by the Selling Shareholder pertaining, as such, for use therein;
(h) The Selling Shareholder has no reason to believe that the representations and warranties of the Company set forth in Section 3 are not true and correct in all material respects;
(i) The Selling Shareholder will deliver to you prior to or at each Applicable Closing Date a properly completed and executed Internal Revenue Service Form W-8BEN (or other applicable Form W-8;
(j) Certificates in negotiable form representing all of the Selling Shareholder Shares and the Selling Shareholder Option Shares to be sold by the Selling Shareholder have been placed in custody under a Custody Agreement, in the form heretofore furnished to you (the "CUSTODY AGREEMENT"), duly executed and delivered by the Selling Shareholder to American Stock Transfer & Trust Company as custodian (the "CUSTODIAN");
(k) The Selling Shareholder is not subject to any order or directive of, or party to any agreement with, any regulatory agency having jurisdiction with respect to him;
(l) 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 the arrangements made by the Selling Shareholder for such custody are to that extent irrevocable; the obligations of the Selling Shareholder hereunder shall not be terminated by operation of law, whether by the death or incapacity of the Selling Shareholder or, in the case of an estate or trust, by the death or incapacity of any executor or trustee or the termination of such estate or trust, or in the case of a partnership or corporation, by the dissolution of such partnership or corporation, or by the occurrence of any other event; if the Selling Shareholder or any such executor or trustee should die or become incapacitated, or if any such estate or trust should be terminated, or if any such partnership or corporation should be dissolved, or if any other such event should occur, before the delivery of the Shares hereunder, certificates representing the Shares shall be delivered by or on behalf of the Selling Shareholder in accordance with the terms and conditions of this Agreement and the Custody Agreement and shall be as valid as if such death, incapacity, termination, dissolution or other event had not occurred, regardless of whether or not the Custodian shall have received notice of such death, incapacity, termination, dissolution or other event.
Appears in 1 contract
Samples: Underwriting Agreement (Rli Corp)
Representations and Warranties of the Selling Shareholder. The Selling Shareholder represents, represents and warrants and covenants, solely with respect to himself and the number of Selling Shareholder Shares and the Selling Shareholder Option Shares set forth opposite his name on Schedule I hereto, to each Underwriter that:
(a) The Selling Shareholder has valid and unencumbered title to 2,300,000 shares of Class A Common Stock is the sole record owner of the Shares to be sold by such Selling Shareholder under this Agreement; upon delivery of the Shares to be sold by the Selling Shareholder under this Agreement and payment of the purchase price therefor as contemplated by this Agreement, assuming the Underwriters have purchased the Shares for value in good faith and without notice of any adverse claim or actual knowledge of a restriction on transfer, the Underwriters will have acquired all rights of such Selling Shareholder in the Shares free of any adverse claim, any lien in favor of the Company and any restrictions on transfer imposed by the Company. The owner of the Shares, that are convertible into 2,300,000 Sharesif other than such Selling Shareholder, is precluded from asserting against the Underwriters the ineffectiveness of any unauthorized endorsement or instruction, assuming the Underwriters purchased the Shares for value in good faith and without notice of any adverse claim.
(b) Such Upon delivery of and payment for the Shares to be sold by the Company pursuant to this Agreement, good and marketable title to such Shares will pass to the Underwriters, free and clear of all restrictions on transfer, liens, encumbrances, security interests and claims whatsoever other than pursuant to the Shareholders' Agreement, which, with respect to the Firm Shares, will be terminated concurrently therewith.
(c) The Selling Shareholder has, and on the Closing Date will have, valid and unencumbered title to the Shares on each Applicable Closing Date, to be delivered by the Selling Shareholder on such Applicable Closing Date and full right, power legal right and authority to enter into this Agreement Agreement, and to sell, assign, transfer and deliver the Shares to be delivered by the Selling Shareholder on such Applicable Closing Date hereunder; and upon the delivery of and payment for such Shares on each Applicable Closing Date hereunderin the manner provided herein, the several Underwriters will acquire valid and unencumbered title to the Shares to be delivered by the Selling Shareholder on such Applicable Closing Date.
(c) No filing with, or authorization, approval, consent, license, order, registration, qualification or decree of, any court or governmental authority or agency is necessary or required for the performance by the Selling Shareholder of his obligations hereunder, in connection with the offering, issuance or sale of the Selling Shareholder Shares hereunder or the consummation of the transactions contemplated by this Agreement, except such as Agreement has been already obtained or may be required under the Act or the Rules and Regulationsduly authorized, state securities laws or the bylaws and rules of the NASD in connection with the purchase and distribution by the Underwriters of the Selling Shareholder Shares and the Selling Shareholder Option Shares to be sold hereby;
(d) The Selling Shareholder has the legal right, power and all authorizations and approvals required by law to enter into the Custody Agreement (as defined in Section 4(j) hereof). This Agreement and the Custody Agreement have been duly executed and delivered by the Selling Shareholder and each such agreement this Agreement is a legal, valid and binding agreement of the Selling Shareholder;Shareholder enforceable in accordance with its terms, except as rights to indemnity and contribution hereunder may be limited by applicable law or public policy grounds, and except as enforcement (i) may be limited by bankruptcy, insolvency, reorganization or other similar laws affecting creditors' rights generally and (ii) is subject to general principles of equity and public policy (regardless of whether such enforceability is considered in a proceeding in equity or at law).
(ed) The execution, delivery and performance of this Agreement and the consummation of the transactions Other than as contemplated by this Agreement and in the Registration Statement (including the issuance and sale of such Selling Shareholder Shares and the Selling Shareholder Option Shares, if applicable) and compliance by the Selling Shareholder with his obligations under this Agreement and the Custody Agreement, do not and will not, whether with or without the giving of notice or lapse of time or both, conflict with or constitute a breach of, or default or Repayment Event under, or result in the creation or imposition of any lien, charge or encumbrance upon any property or assets of the Selling Shareholder pursuant to any contract, indenture, mortgage, deed of trust, loan or credit agreement, note, lease or any other agreements or instrument, to which the Selling Shareholder is a party or by which he may be bound, or to which any of the property or assets of the Selling Shareholder is subject (except for such conflicts, breaches, defaults, liens, charges or encumbrances that would not have a material adverse effect on the transactions contemplated herein), nor will such action result in any violation of any applicable law, statute, rule, regulation, judgment, order, writ or decree, of any government, government instrumentality or court, domestic or foreign, having jurisdiction over the Selling Shareholder or any respective properties, assets or operations;
(f) The Selling Shareholder has not taken taken, and will not take, directly or indirectly, any action which is designed to to, or which has constituted 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 pursuant to the distribution contemplated by this Agreement, and other than as permitted by the 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;.
(ge) Neither The execution, delivery and performance of this Agreement by the Selling Shareholder, compliance by the Selling Shareholder with all the provisions hereof and the consummation of the transactions contemplated hereby will not require any consent, approval, authorization or other order of any court, regulatory body, administrative agency or other governmental body (except as such may be required under (i) the Act, (ii) the Exchange Act of 1934, or (iii) the securities or Blue Sky laws of the various states) and will not conflict with or constitute a breach of any of the terms or provisions of, or a default under, or any agreement, indenture or other instrument to which the Selling Shareholder is a party or by which the Selling Shareholder or property of the Selling Shareholder is bound, or violate or conflict with any laws, administrative regulation or ruling or court decree applicable to the Selling Shareholder or property of the Selling Shareholder.
(f) Such parts of the Registration StatementStatement under the caption "Principal and Selling Shareholders" which specifically relate to the Selling Shareholder do not, and will not on the Closing Date (and any Preliminary ProspectusOption Closing Date, the Prospectus or any amendment or supplement thereto contains if applicable), contain any untrue statement of a material fact or omits omit to state therein a any material fact required to be stated therein or necessary to make the statements therein therein, in light of circumstances under which they were made, not misleading.
(g) At any time during the period described in paragraph 5(e) hereof, in each case to the extent, but only to the extent, that such untrue statement or omission was made if there is any change in the Registration Statementinformation referred to in paragraph 7(f) above, any Preliminary except as contemplated in the Prospectus, the Prospectus or any amendment or supplement thereto in reliance upon and in conformity with written information furnished to the Company by the Selling Shareholder pertaining, as such, for use therein;will immediately notify you of such change.
(h) The To the best knowledge of the Selling Shareholder has no reason to believe that Shareholder, the representations and warranties of the Company set forth contained in Section 3 6 hereof are not true and correct in all material respects;
(i) The correct; the Selling Shareholder will deliver has reviewed and is familiar with the Registration Statement as filed with the Commission and any preliminary prospectuses contained therein and has no knowledge of any material fact, condition or information not disclosed in such preliminary prospectus which has adversely affected or could adversely affect the condition, financial or otherwise, or the earnings, business affairs, or business prospects of the Company and its subsidiaries considered as one enterprise; to you prior to or at each Applicable Closing Date a properly completed and executed Internal Revenue Service Form W-8BEN (or other applicable Form W-8;
(j) Certificates in negotiable form representing all the best knowledge of the Selling Shareholder Shares and the Selling Shareholder Option Shares to be sold by the Selling Shareholder have been placed in custody under a Custody AgreementShareholder, in the form heretofore furnished to you (the "CUSTODY AGREEMENT"), duly executed and delivered by the Selling Shareholder to American Stock Transfer & Trust Company as custodian (the "CUSTODIAN");
(k) The Selling Shareholder is such preliminary prospectuses do not subject to contain any order or directive of, or party to any agreement with, any regulatory agency having jurisdiction with respect to him;
(l) 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 the arrangements made by the Selling Shareholder for such custody are to that extent irrevocable; the obligations of the Selling Shareholder hereunder shall not be terminated by operation of law, whether by the death or incapacity of the Selling Shareholder or, in the case of an estate or trust, by the death or incapacity of any executor or trustee or the termination of such estate or trust, or in the case untrue statement of a partnership material fact or corporation, by omit to state any material fact necessary to make the dissolution of such partnership or corporation, or by the occurrence of any other event; if the Selling Shareholder or any such executor or trustee should die or become incapacitated, or if any such estate or trust should be terminated, or if any such partnership or corporation should be dissolved, or if any other such event should occur, before the delivery of the Shares hereunder, certificates representing the Shares shall be delivered by or on behalf of the Selling Shareholder in accordance with the terms and conditions of this Agreement and the Custody Agreement and shall be as valid as if such death, incapacity, termination, dissolution or other event had statements therein not occurred, regardless of whether or not the Custodian shall have received notice of such death, incapacity, termination, dissolution or other eventmisleading.
Appears in 1 contract
Representations and Warranties of the Selling Shareholder. The Selling Shareholder representsrepresents and warrants to, warrants and covenantsagrees with, solely with respect to himself and the number of Selling Shareholder Shares and the Selling Shareholder Option Shares each Underwriter as set forth opposite his name on Schedule I hereto, to each Underwriter that:below in this Section 2.
(a) The This Agreement has been duly authorized, executed and delivered by or on behalf of such Selling Shareholder has valid and unencumbered title to 2,300,000 shares of Class A Common Stock of the Company, that are convertible into 2,300,000 SharesShareholder.
(b) Such Immediately following the IPO Conversion and the conversion of multiple voting shares into subordinate voting shares, such Selling Shareholder will have, shall have good and valid and unencumbered title to the Shares on each Applicable Closing Date, Securities to be delivered sold by the Selling Shareholder on such Applicable Closing Date it pursuant to this Agreement, free and full right, power and authority to enter into this Agreement and to sell, assign, transfer and deliver the Shares to be delivered by the Selling Shareholder on such Applicable Closing Date hereunder; and upon the delivery clear of and payment for such Shares on each Applicable Closing Date hereunder, the several Underwriters will acquire valid and unencumbered title to the Shares to be delivered by the Selling Shareholder on such Applicable Closing Dateall Liens.
(c) No filing with, or authorization, approval, consent, license, order, registration, qualification or decree of, any court or governmental authority or agency is necessary or required Upon payment for the performance Securities to be sold by the such Selling Shareholder of his obligations hereunder, in connection with the offering, issuance or sale of the Selling Shareholder Shares hereunder or the consummation of the transactions contemplated by pursuant to this Agreement, except delivery of such Securities, as has been already obtained directed by the Representatives, to Cede & Co. (“Cede”) or such other nominee as may be required designated by The Depository Trust Company (“DTC”) or CDS Clearing and Depository Services Inc. (“CDS”), as applicable, registration of such Securities in the name of Cede or such other nominee and the crediting of such Securities on the books of DTC or CDS to the securities account of the Underwriters (assuming that neither DTC, CDS nor the Underwriters has notice of any adverse claim (within the meaning of Section 8-105 of the New York Uniform Commercial Code (the “UCC”)) to such Securities), (A) DTC or CDS, as applicable, shall be a “protected purchaser” of such Securities within the meaning of Section 8-303 of the UCC, (B) under Section 8-501 of the Act UCC, the Underwriters will acquire a valid security entitlement in respect of such Securities, (C) no action based on any “adverse claim”, within the meaning of Section 8-102 of the UCC, to such Securities may be asserted against the Underwriters with respect to such security entitlement; and (D) the Underwriters will otherwise acquire good and valid title to such Securities free and clear of all Liens; for purposes of this representation, such Selling Shareholder may assume that when such payment, delivery and crediting occur, (x) such Securities will have been registered in the name of Cede or another nominee designated by DTC or CDS, in each case on the Rules and RegulationsCompany’s share registry in accordance with its articles, state securities laws or the bylaws and rules applicable law, (y) DTC or CDS, as applicable, will be registered as a “clearing corporation” within the meaning of Section 8-102 of the NASD in connection with UCC and (z) appropriate entry to the purchase and distribution by account of the Underwriters on the records of DTC or CDS, as applicable, will have been made pursuant to the Selling Shareholder Shares and the Selling Shareholder Option Shares to be sold hereby;UCC.
(d) The Selling Shareholder has the legal right, power execution and all authorizations and approvals required delivery by law to enter into the Custody Agreement (as defined in Section 4(j) hereof). This Agreement and the Custody Agreement have been duly executed and delivered by the Selling Shareholder and each such agreement is a legal, valid and binding agreement of the Selling Shareholder;
(e) The execution, delivery and performance of this Agreement and the consummation of the transactions contemplated by this Agreement and in the Registration Statement (including the issuance and sale of such Selling Shareholder Shares of, and the performance by such Selling Shareholder Option Sharesof its obligations under, if applicable) and compliance by the Selling Shareholder with his obligations under this Agreement and the Custody Agreementwill not contravene or conflict with, do not and will notresult in a breach of, whether or constitute a default (or, with or without the giving of notice or lapse of time or bothtime, conflict with or constitute a breach of, or default or Repayment Event would be in default) under, or result in require the creation or imposition consent of any lienother party to, charge or encumbrance upon any property or assets of (i) the Selling Shareholder pursuant to any contract[articles, indentureby-laws, mortgage, deed of trust, loan or credit limited partnership agreement, notelimited liability company agreement or other organizational documents], lease or as the case may be, of such Selling Shareholder, (ii) any other agreements agreement or instrument, instrument to which the such Selling Shareholder is a party or by which he may be bound, it is bound or to which (iii) any provision of the property applicable law or assets of the Selling Shareholder is subject (except for such conflicts, breaches, defaults, liens, charges or encumbrances that would not have a material adverse effect on the transactions contemplated herein), nor will such action result in any violation of any applicable law, statute, rule, regulation, judgment, order, writ decree or decree, regulation applicable to such Selling Shareholder of any government, government instrumentality or court, domestic regulatory body, administrative agency, governmental body or foreign, arbitrator having jurisdiction over such Selling Shareholder, except, in the case of the foregoing clauses (ii) and (iii) as would not, individually or in the aggregate, reasonably be expected to materially impact such Selling Shareholder’s ability to perform its obligations under this Agreement. No consent, approval, authorization or other order of, or registration or filing with, any court or other governmental authority or agency, is required for the consummation by such Selling Shareholder of the transactions contemplated in this Agreement, except such as may be required under the Securities Act, applicable state securities or blue sky laws and from the FINRA and such other approvals as have been or will be made or obtained on or prior to the Closing Date.
(e) All information furnished to the Company or the Underwriters by or on behalf of such Selling Shareholder in writing expressly for use in the Registration Statement, the Disclosure Package and the Prospectuses is, and on the Closing Date will be, true, correct and complete in all material respects, and did not, and as of the Closing Date will not, contain any respective propertiesuntrue statement of a material fact or omit to state any material fact necessary to make such information not misleading, assets or operations;it being understood and agreed that the only such information consists of the information with respect to such Selling Shareholder under the caption “Principal and Selling Shareholders” in the Registration Statement, the Pricing Disclosure Package and the Prospectuses (such information, the “Selling Shareholder Information”).
(f) The Prior to the completion of the Underwriters’ distribution of the Securities, such Selling Shareholder has not distributed and will not distribute any offering material in connection with the offering and sale of the Securities other than the Disclosure Package and the Prospectuses.
(g) Such Selling Shareholder has not taken and will not take, directly or indirectly, any action which that is designed to or which that has constituted 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;
(g) Neither the Registration Statement, any Preliminary Prospectus, the Prospectus or any amendment or supplement thereto contains any untrue statement of a material fact or omits to state therein a material fact required to be stated therein or necessary to make the statements therein not misleading, in each case to the extent, but only to the extent, that such untrue statement or omission was made in the Registration Statement, any Preliminary Prospectus, the Prospectus or any amendment or supplement thereto in reliance upon and in conformity with written information furnished to the Company by the Selling Shareholder pertaining, as such, for use therein;
(h) The Selling Shareholder has no reason to believe that the representations and warranties of the Company set forth in Section 3 are not true and correct in all material respects;
(i) The Selling Shareholder will deliver to you prior to or at each Applicable Closing Date a properly completed and executed Internal Revenue Service Form W-8BEN (or other applicable Form W-8;
(j) Certificates in negotiable form representing all of the Selling Shareholder Shares and the Selling Shareholder Option Shares to be sold by the Selling Shareholder have been placed in custody under a Custody Agreement, in the form heretofore furnished to you (the "CUSTODY AGREEMENT"), duly executed and delivered by the Selling Shareholder to American Stock Transfer & Trust Company as custodian (the "CUSTODIAN");
(k) The Selling Shareholder is not subject to any order or directive of, or party to any agreement with, any regulatory agency having jurisdiction with respect to him;
(l) 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 the arrangements made by the Selling Shareholder for such custody are to that extent irrevocable; the obligations of the Selling Shareholder hereunder shall not be terminated by operation of law, whether by the death or incapacity of the Selling Shareholder or, in the case of an estate or trust, by the death or incapacity of any executor or trustee or the termination of such estate or trust, or in the case of a partnership or corporation, by the dissolution of such partnership or corporation, or by the occurrence of any other event; if the Selling Shareholder or any such executor or trustee should die or become incapacitated, or if any such estate or trust should be terminated, or if any such partnership or corporation should be dissolved, or if any other such event should occur, before the delivery of the Shares hereunder, certificates representing the Shares shall be delivered Securities. Any certificate signed by or on behalf of the such Selling Shareholder and delivered to the Representatives or to counsel for the Underwriters in accordance connection with the terms and conditions offering of this Agreement and the Custody Agreement and Securities shall be deemed a representation and warranty by such Selling Shareholder to the Underwriters as valid as if to the matters covered thereby with respect to such death, incapacity, termination, dissolution or other event had not occurred, regardless Selling Shareholder. Such Selling Shareholder has a reasonable basis for making each of whether or not the Custodian shall have received notice representations set forth in this Section 2. The Selling Shareholder further acknowledges that the Underwriters will rely upon the accuracy and truthfulness of the foregoing representations and hereby consents to such death, incapacity, termination, dissolution or other eventreliance.
Appears in 1 contract
Samples: Underwriting Agreement (GFL Environmental Holdings Inc.)
Representations and Warranties of the Selling Shareholder. The Selling Shareholder represents, represents and warrants and covenants, solely with respect to himself and the number of Selling Shareholder Shares and the Selling Shareholder Option Shares set forth opposite his name on Schedule I hereto, to each Underwriter that:
(a) The Selling Shareholder has is the lawful owner of the Shares to be sold by it pursuant to this Agreement and has, and on the Closing Date or the Additional Closing Date, as applicable, will have, good, valid and unencumbered clear title to 2,300,000 shares such Shares, free of Class A Common Stock of the Companyany and all restrictions on transfer, that are convertible into 2,300,000 Shares.liens, encumbrances, security interests, equities, claims and other defects whatsoever;
(b) Such The Selling Shareholder has, and on the Closing Date or the Additional Closing Date, as applicable, will have, valid and unencumbered title to the Shares on each Applicable Closing Date, to be delivered by the Selling Shareholder on such Applicable Closing Date and full legal right, power and authority authority, and all authorizations and approvals required by law, to enter into this Agreement and to sell, assign, transfer and deliver the Shares to be delivered sold by it in the Selling Shareholder on such Applicable Closing Date hereunder; and upon the delivery of and payment for such Shares on each Applicable Closing Date hereunder, the several Underwriters will acquire valid and unencumbered title to the Shares to be delivered by the Selling Shareholder on such Applicable Closing Date.manner provided herein;
(c) No filing with, or authorization, approval, consent, license, order, registration, qualification or decree of, any court or governmental authority or agency is necessary or required for the performance by the Selling Shareholder of his obligations hereunder, in connection with the offering, issuance or sale of the Selling Shareholder Shares hereunder or the consummation of the transactions contemplated by this Agreement, except such as has been already obtained or may be required under the Act or the Rules and Regulations, state securities laws or the bylaws and rules of the NASD in connection with the purchase and distribution by the Underwriters of the Selling Shareholder Shares and the Selling Shareholder Option Shares to be sold hereby;
(d) The Selling Shareholder has the legal right, power and all authorizations and approvals required by law to enter into the Custody Agreement (as defined in Section 4(j) hereof). This Agreement and the Custody Agreement have has been duly executed and delivered by or on behalf of the Selling Shareholder and each such agreement is a its legal, valid and binding agreement agreement;
(d) Upon delivery of and payment for the Shares to be sold by the Selling ShareholderShareholder pursuant to this Agreement, good, valid and clear title to such Shares will pass to the Underwriters, free and clear of all restrictions on transfer, liens, encumbrances, security interests, equities, claims and defects whatsoever;
(e) The execution, delivery and performance of this Agreement and the consummation of the transactions contemplated by this Agreement and in the Registration Statement (including the issuance and sale of such Selling Shareholder Shares and the Selling Shareholder Option SharesShareholder, if applicable) and the compliance by the Selling Shareholder with his obligations under this Agreement all the provisions hereof and the Custody Agreementconsummation by the Selling Shareholder of the transactions contemplated hereby will not (i) require the Selling Shareholder to obtain any consent, do not and approval, authorization or other order of, or qualification with, any court or governmental body or agency (except as such may be required under the securities or blue sky laws of the various states or as have been or will notbe obtained), whether with or without the giving of notice or lapse of time or both, (ii) conflict with or constitute a breach of any of the terms or provisions of, or a default or Repayment Event under, or result in the creation or imposition of any lienindenture, charge or encumbrance upon any property or assets of the Selling Shareholder pursuant to any contract, indentureloan agreement, mortgage, deed of trust, loan lease, license or credit agreement, note, lease other agreement or any other agreements or instrument, instrument to which the Selling Shareholder is a party or by which he may be bound, or to which any of the property or assets of the Selling Shareholder or any of its properties is subject bound or (except for such conflictsiii) to its knowledge, breaches, defaults, liens, charges violate or encumbrances that would not have a material adverse effect on the transactions contemplated herein), nor will such action result in any violation of conflict with any applicable federal, state, local or foreign law, statute, rule, regulation, regulation or judgment, order, writ order or decree, decree of any government, government instrumentality court or court, domestic any governmental body or foreign, agency having jurisdiction over the Selling Shareholder or any respective properties, assets or operationsproperty of the Selling Shareholder;
(f) The information in the Registration Statement and Prospectus does not, and will not on the Closing Date or the Additional Closing Date, contain any untrue statement of a material fact or omit to state 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 the Selling Shareholder has agreed to immediately notify the Company if, at any time during the period when a Prospectus is required by law to be delivered in connection with sales of the Shares by an Underwriter or a dealer, there is any material change in such information;
(g) The Selling Shareholder has not taken taken, and will not take, directly or indirectly, any action which is designed to to, or which has constituted 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;
(g) Neither the Registration Statement, any Preliminary Prospectus, the Prospectus or any amendment or supplement thereto contains any untrue statement of a material fact or omits to state therein a material fact required to be stated therein or necessary to make the statements therein not misleading, in each case Shares pursuant to the extentdistribution contemplated by this Agreement, but only to and, other than as permitted by the extentAct, that such untrue statement or omission was made in the Registration Statement, any Preliminary Prospectus, the Prospectus or any amendment or supplement thereto in reliance upon and in conformity with written information furnished to the Company by the Selling Shareholder pertaining, as such, for use therein;has not distributed and will not distribute any prospectus or other offering material in connection with the offering and sale of the Shares; and
(h) The Selling Shareholder has no reason to believe that the representations and warranties of the Company set forth in Section 3 are not true and correct in all material respects;
(i) The Selling Shareholder will deliver to you prior to or at each Applicable Closing Date a properly completed and executed Internal Revenue Service Form W-8BEN (or other applicable Form W-8;
(j) Certificates in negotiable form representing all of the Selling Shareholder Shares and the Selling Shareholder Option Shares to be sold by the Selling Shareholder have been placed in custody under a Custody Agreement, in the form heretofore furnished to you (the "CUSTODY AGREEMENT"), duly executed and delivered by the Selling Shareholder to American Stock Transfer & Trust Company as custodian (the "CUSTODIAN");
(k) The Selling Shareholder is not subject to any order or directive of, or party to any agreement with, any regulatory agency having jurisdiction with respect to him;
(l) 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 the arrangements made by the Selling Shareholder for such custody are to that extent irrevocable; the obligations of the Selling Shareholder hereunder shall not be terminated by operation of law, whether by the death or incapacity of the Selling Shareholder or, in the case of an estate or trust, by the death or incapacity of any executor or trustee or the termination of such estate or trust, or in the case of a partnership or corporation, by the dissolution of such partnership or corporation, or by the occurrence of any other event; if the Selling Shareholder or any such executor or trustee should die or become incapacitated, or if any such estate or trust should be terminated, or if any such partnership or corporation should be dissolved, or if any other such event should occur, before the delivery of the Shares hereunder, certificates representing the Shares shall be delivered Each certificate signed by or on behalf of the Selling Shareholder in accordance with and delivered to the terms and conditions Underwriters or counsel of this Agreement and the Custody Agreement and Underwriters shall be deemed to be a representation and warranty by the Selling Shareholder to the Underwriters as valid as if such death, incapacity, termination, dissolution or other event had not occurred, regardless of whether or not to the Custodian shall have received notice of such death, incapacity, termination, dissolution or other eventmatters covered thereby.
Appears in 1 contract
Representations and Warranties of the Selling Shareholder. The Selling Shareholder represents, hereby represents and warrants and covenants, solely with respect to himself and the number of Selling Shareholder Shares and the Selling Shareholder Option Shares set forth opposite his name on Schedule I hereto, to each Underwriter on the date hereof, and shall be deemed to represent and warrant to each Underwriter on the Closing Date and the Additional Closing Date, as the case may be, that:
(a) The Selling Shareholder has is the lawful owner of the Shares to be sold by such Selling Shareholder pursuant to this Agreement and has, and on the Closing Date and the Additional Closing Date, as the case may be, will have, good and valid and unencumbered title to 2,300,000 shares such Shares, free of Class A Common Stock of the Companyall restrictions on transfer, that are convertible into 2,300,000 Sharesliens, encumbrances, security interests, equities and claims whatsoever.
(b) Such The Selling Shareholder has, and on the Closing Date and the Additional Closing Date, as the case may be, will have, valid and unencumbered title to the Shares on each Applicable Closing Date, to be delivered by the Selling Shareholder on such Applicable Closing Date and full legal right, power and authority authority, and all authorization and approval required by law, to enter into this Agreement and to sell, assign, transfer and deliver the Shares to be delivered by the Selling Shareholder on such Applicable Closing Date hereunder; and upon the delivery of and payment for such Shares on each Applicable Closing Date hereunder, the several Underwriters will acquire valid and unencumbered title to the Shares to be delivered by the Selling Shareholder on such Applicable Closing DateAgreement.
(c) No filing with, or authorization, approval, consent, license, order, registration, qualification or decree of, any court or governmental authority or agency is necessary or required for the performance by the Selling Shareholder of his obligations hereunder, in connection with the offering, issuance or sale of the Selling Shareholder Shares hereunder or the consummation of the transactions contemplated by this Agreement, except such as This Agreement has been already obtained or may be required under the Act or the Rules and Regulationsduly authorized, state securities laws or the bylaws and rules of the NASD in connection with the purchase and distribution by the Underwriters of the Selling Shareholder Shares and the Selling Shareholder Option Shares to be sold hereby;
(d) The Selling Shareholder has the legal right, power and all authorizations and approvals required by law to enter into the Custody Agreement (as defined in Section 4(j) hereof). This Agreement and the Custody Agreement have been duly executed and delivered by the Selling Shareholder and each such agreement is a legal, valid and binding agreement of such Selling Shareholder, enforceable as to the Selling Shareholder in accordance with its terms, except to the extent enforceability may be limited by (i) the application of bankruptcy, reorganization, insolvency and other laws affecting creditors’ rights generally and (ii) equitable principles being applied at the discretion of a court before which a proceeding may be brought, except as rights to indemnity and contribution hereunder may be limited by federal or state securities laws.
(d) None of the sale of the Shares by the Selling Shareholder;
(e) The , the execution, delivery and or performance of this Agreement and the consummation of the transactions contemplated by this Agreement and in the Registration Statement (including the issuance and sale of such Selling Shareholder Shares and the Selling Shareholder Option Sharesof this Agreement, if applicable) and the compliance by the Selling Shareholder with his obligations all the provisions hereof and thereof or the consummation by the Selling Shareholder of the transactions contemplated hereby and thereby (i) requires any consent, approval, authorization or other order of, or registration or filing with, any court, regulatory body or administrative agency or other governmental body, agency or official (except such as may be required under this Agreement and the Custody Agreementsecurities or Blue Sky laws of the various states), do not and will not, whether (ii) conflicts with or without the giving of notice or lapse of time or both, will conflict with or constitutes or will constitute a breach of, of or a default or Repayment Event under, or result in the creation or imposition of under any lien, charge or encumbrance upon any property or assets of the Selling Shareholder pursuant to any contractagreement, indenture, mortgage, deed of trust, loan or credit agreement, note, lease or any other agreements or instrument, instrument to which the Selling Shareholder is a party or by which he may be bound, or to which any of the property or assets of the Selling Shareholder is subject (except for such conflicts, breaches, defaults, liens, charges or encumbrances that would not have a material adverse effect on the transactions contemplated herein), nor will such action result in any violation of any applicable law, statute, rule, regulation, judgment, order, writ or decree, of any government, government instrumentality or court, domestic or foreign, having jurisdiction over the Selling Shareholder or any respective propertiesproperty of such Selling Shareholder is bound or (iii) violates any statute, assets law, regulation, ruling, filing, judgment, injunction, order or operations;decree applicable to the Selling Shareholder or any property of the Selling Shareholder.
(e) The information in the Prospectus under the caption “Selling Shareholder” that specifically relates to such Selling Shareholder does not, and will not on the Closing Date or the Additional Closing Date, if as the case may be, contain any untrue statement of a material fact or omit to state 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.
(f) The Other than excepted activity pursuant to Regulation M under the Exchange Act, such Selling Shareholder has not taken and will not take, directly or indirectly, any action which is that constituted, or any action designed to, or that might reasonably be expected to cause or which has constituted result in or constitute, under the Act or otherwise, stabilization or manipulation of the price of any security of the Company Common Stock to facilitate the sale or resale of the Shares;.
(g) Neither The Selling Shareholder has, and upon delivery of and payment for the Shares to be sold by the Selling Shareholder pursuant to this Agreement will have, good and valid title to or a valid “security entitlement” within the meaning of Section 8-501 of the New York Uniform Commercial Code (the “UCC”) in respect of, the Shares to be sold by the Selling Shareholder hereunder on such Closing Date, free and clear of all liens, encumbrances, equities or claims. Upon payment for the Shares to be sold by the Selling Shareholder, delivery of such Shares, as directed by the Underwriters, to Cede & Co. (“Cede”) or such other nominee as may be designated by DTC, registration of such Shares in the name of Cede or such other nominee and the crediting of such Shares on the books of DTC to securities accounts of the Underwriters (assuming that neither DTC nor any such Underwriter has notice of any adverse claim (within the meaning of Section 8-105 of the UCC to such Shares). For purposes of this representation, the Selling Shareholder may assume that when such payment, delivery and crediting occur, (A) such Shares will have been registered in the name of Cede or another nominee designated by DTC, in each case on the Company’s share registry in accordance with its articles of incorporation, bylaws and applicable law, (B) DTC will be registered as a “clearing corporation” within the meaning of Section 8-102 of the UCC and (C) appropriate entries to the accounts of the several Underwriters on the records of DTC will have been made pursuant to the UCC.
(h) The Selling Shareholder does not have any registration or other similar rights to have any equity or debt securities registered for sale by the Company under the Registration Statement or included in the offering contemplated by this Agreement, except for such rights as are being exercised in the offering contemplated by this Agreement or such rights as have been duly waived.
(i) The Selling Shareholder is not prompted to sell shares of Common Stock by any information concerning the Company that is not set forth in the Registration Statement.
(j) The Registration Statement did not as of the date and time it, any Preliminary Prospectusor the most recent post-effective amendment thereto, if any, was declared effective by the Commission, the Prospectus or will not as of its date and on the applicable Closing Date, the Time of Sale Information did not as of 4:30 pm (New York City time) on the date of this Agreement (the “Applicable Time”), and each Issuer Free Writing Prospectus (including, without limitation, any amendment or supplement thereto contains any road show written communication that is a free writing prospectus under Rule 433), when considered together with the Time of Sale Information, did not as of the Applicable Time, contain an untrue statement of a material fact or omits omit to state therein a material fact required to be stated therein or necessary to make the statements therein therein, in the light of the circumstances under which they were made, not misleading, in each case to ; provided that the extent, but foregoing representation and warranty shall apply only to the extent, extent that such untrue statement any statements in or omission was made in omissions from the Registration Statement, any Preliminary the Prospectus, the Prospectus Time of Sale Information or any amendment Issuer Free Writing Prospectus, as applicable, are statements or supplement thereto in reliance upon and in conformity with written information furnished to the Company by omissions concerning the Selling Shareholder pertaining, as such, for use therein;
(h) The Selling Shareholder has no reason to believe it being understood that the representations and warranties of the Company set forth in Section 3 are not true and correct in all material respects;
(i) The Selling Shareholder will deliver to you prior to any statements or at each Applicable Closing Date a properly completed and executed Internal Revenue Service Form W-8BEN (or other applicable Form W-8;
(j) Certificates in negotiable form representing all of omissions concerning the Selling Shareholder Shares and for the purposes of this Section 6.2(j) refers only to information concerning the Selling Shareholder Option Shares in his capacity as Selling Shareholder, and not to information concerning the Selling Shareholder in his capacity as an officer or director of the Company).
(k) On the Closing Date (and the Additional Closing Date, if any), all stock transfer and other taxes that are required to be paid in connection with the sale of the shares to be sold by the Selling Shareholder to the Underwriters will have been placed in custody under a Custody Agreement, in the form heretofore furnished to you (the "CUSTODY AGREEMENT"), duly executed and delivered fully paid by the Selling Shareholder to American Stock Transfer & Trust Company as custodian (the "CUSTODIAN");
(k) The Selling Shareholder is not subject to any order or directive ofShareholder, or party to any agreement and all laws imposing such taxes will have been complied with, any regulatory agency having jurisdiction with respect to him;
(l) 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 the arrangements made by the Selling Shareholder for such custody are to that extent irrevocable; the obligations of the Selling Shareholder hereunder shall not be terminated by operation of law, whether by the death or incapacity of the Selling Shareholder or, in the case of an estate or trust, by the death or incapacity of any executor or trustee or the termination of such estate or trust, or in the case of a partnership or corporation, by the dissolution of such partnership or corporation, or by the occurrence of any other event; if the Selling Shareholder or any such executor or trustee should die or become incapacitated, or if any such estate or trust should be terminated, or if any such partnership or corporation should be dissolved, or if any other such event should occur, before the delivery of the Shares hereunder, certificates representing the Shares shall be delivered by or on behalf of the Selling Shareholder in accordance with the terms and conditions of this Agreement and the Custody Agreement and shall be as valid as if such death, incapacity, termination, dissolution or other event had not occurred, regardless of whether or not the Custodian shall have received notice of such death, incapacity, termination, dissolution or other event.
Appears in 1 contract
Samples: Underwriting Agreement (American Physicians Service Group Inc)
Representations and Warranties of the Selling Shareholder. The Selling Shareholder representsrepresents and warrants to the several Underwriters, warrants as of the date hereof and covenantsas of each Closing Date, solely and agrees with respect to himself and the number of Selling Shareholder Shares and the Selling Shareholder Option Shares set forth opposite his name on Schedule I heretoseveral Underwriters, to each Underwriter that:
(a) The Selling Shareholder This Agreement has valid been duly authorized, executed and unencumbered title to 2,300,000 shares of Class A Common Stock delivered by or on behalf of the Company, that are convertible into 2,300,000 SharesSelling Shareholder.
(b) Such 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 any agreement or other instrument binding upon the Selling Shareholder, (ii) the articles of incorporation or bylaws of the Selling Shareholder or (iii) any judgment, order or decree of any governmental body, agency or court having jurisdiction over the Selling Shareholder, except, with respect to clauses (i) and (iii), as would not, individually or in the aggregate, reasonable be expected to have a material adverse effect on the Selling Shareholder’s ability to perform its obligations under this Agreement, and no consent, approval, authorization or order of, or qualification with, any governmental body, agency or court is required for the performance by the Selling Shareholder of its obligations under this Agreement, except for the registration of the Securities under the Securities Act and such consents, approvals, authorizations, orders, filings, registrations or qualifications as may be required under the Exchange Act and applicable state or foreign securities laws in connection with the offer and sale of the Securities.
(c) The Selling Shareholder is, and immediately prior to each Closing Date, the Selling Shareholder will havebe, valid and unencumbered title to the Shares on each Applicable Closing Date, record owner of the Securities to be delivered by the Selling Shareholder on hereunder at such Applicable Closing Date Date, and the Selling Shareholder has full right, power and authority to enter into this Agreement and to sell, assign, assign and transfer and deliver the Ordinary Shares to be delivered by the Selling Shareholder on and the Ordinary Shares in the form of ADSs to be delivered by the Selling Shareholder and to deposit with the Depositary the Ordinary Shares to be sold in the form of the Offered ADSs by such Applicable Selling Shareholder at such Closing Date hereunder; and upon the Date.
(d) Upon delivery of and payment for such Shares on the Securities to the Selling Shareholder at each Applicable Closing Date hereunder, the several Underwriters will acquire valid title to, including a valid “security entitlement” within the meaning of Section 8-501 of the New York Uniform Commercial Code in respect of, the Securities free and unencumbered clear of all liens, encumbrances, equities or claims, and upon delivery of such Securities and payment therefor pursuant hereto, valid title to such Securities, free and clear of all liens, encumbrances, equities or claims, will pass to the Shares to be delivered by the Selling Shareholder on such Applicable Closing DateUnderwriters.
(c) No filing with, or authorization, approval, consent, license, order, registration, qualification or decree of, any court or governmental authority or agency is necessary or required for the performance by the Selling Shareholder of his obligations hereunder, in connection with the offering, issuance or sale of the Selling Shareholder Shares hereunder or the consummation of the transactions contemplated by this Agreement, except such as has been already obtained or may be required under the Act or the Rules and Regulations, state securities laws or the bylaws and rules of the NASD in connection with the purchase and distribution by the Underwriters of the Selling Shareholder Shares and the Selling Shareholder Option Shares to be sold hereby;
(d) The Selling Shareholder has the legal right, power and all authorizations and approvals required by law to enter into the Custody Agreement (as defined in Section 4(j) hereof). This Agreement and the Custody Agreement have been duly executed and delivered by the Selling Shareholder and each such agreement is a legal, valid and binding agreement of the Selling Shareholder;
(e) The executionSelling Shareholder will, delivery and performance prior to each Closing Date, deposit the Ordinary Shares to be represented by the Offered ADSs with the Depositary in accordance with the provisions of this the Deposit Agreement and otherwise complies with the consummation of the transactions contemplated by this Deposit Agreement and in the Registration Statement so that ADSs will be executed (including the issuance and sale of such Selling Shareholder Shares and the Selling Shareholder Option Sharesand, if applicable, countersigned) and compliance issued by the Selling Shareholder with his obligations under this Agreement Depositary against receipt of such Ordinary Shares and delivered to the Custody Agreement, do not and will not, whether with or without the giving of notice or lapse of time or both, conflict with or constitute a breach of, or default or Repayment Event under, or result in the creation or imposition of any lien, charge or encumbrance upon any property or assets of the Selling Shareholder pursuant to any contract, indenture, mortgage, deed of trust, loan or credit agreement, note, lease or any other agreements or instrument, to which the Selling Shareholder is a party or by which he may be bound, or to which any of the property or assets of the Selling Shareholder is subject (except for Underwriters at such conflicts, breaches, defaults, liens, charges or encumbrances that would not have a material adverse effect on the transactions contemplated herein), nor will such action result in any violation of any applicable law, statute, rule, regulation, judgment, order, writ or decree, of any government, government instrumentality or court, domestic or foreign, having jurisdiction over the Selling Shareholder or any respective properties, assets or operations;Closing Date.
(f) The Selling Shareholder has not taken and will not taketaken, directly or indirectly, any action which that is designed to or which that has constituted or would 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;Securities.
(g) Neither The Selling Shareholder has delivered to the Representatives an executed lock-up agreement in substantially the form attached hereto as Exhibit I (the “Lock-up Agreement”).
(h) The Selling Shareholder is not prompted by any information concerning the Company or its subsidiaries which is not set forth in the Registration Statement, any Preliminary Prospectus, the General Disclosure Package or the Prospectus to sell its Securities pursuant to this Agreement.
(i) (i) Each part of the Registration Statement, when such part became effective, did not contain, and, as amended or any supplemented, if applicable, did not or will not, as the case may be, contain at the time of such amendment or supplement thereto contains supplement, any untrue statement of a material fact or omits omit to state therein a material fact required to be stated therein or necessary to make the statements therein not misleading, (ii) the General Disclosure Package, as of the Applicable Time, did 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 light of the circumstances under which they were made, not misleading and (iii) the Prospectus does not or will not, as the case may be, as of the date of the Prospectus and as at each case Closing Date, contain and, as amended or supplemented, if applicable, at the time of such amendment or supplement, will not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in light of the circumstances under which they were made, not misleading; provided that the representations and warranties set forth in this paragraph 3(i) are limited only to information furnished to the extent, but only to Company in writing by the extent, that such untrue statement or omission was made Selling Shareholder expressly for use in the Registration Statement, any Preliminary Prospectusthe General Disclosure Package, the Prospectus or any amendment amendments or supplement thereto in reliance upon supplements thereto, it being understood and in conformity with written agreed that the only such information furnished to the Company by the Selling Shareholder pertainingconsists of Selling Shareholder Information. Each Underwriter, as such, the Company and the Selling Shareholder agree that the “Selling Shareholder Information” with respect to the Selling Shareholder consists solely of the information expressly furnished by the Selling Shareholder for use therein;in connection with the offering the Registration Statement, the General Disclosure Package and the Prospectus, which consists solely of (x) the name, address and number of Ordinary Shares and Restricted Shares owned by the Selling Shareholder, before and after the offering, and (y) the other information with respect to the Selling Shareholder that appears in the table (and corresponding footnotes) under the caption “Selling Securityholder,” in each case, in the Registration Statement, the General Disclosure Package or the Prospectus.
(hi) None of the Selling Shareholder, any of its subsidiaries, or any director and officer thereof, nor to the Selling Shareholder’s knowledge any other employee, 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 that are:
(A) the subject of any Sanctions; or
(B) organized or resident in a country or territory that is the subject of comprehensive territorial Sanctions (including, without limitation, the 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, Crimea, Cuba, Iran, North Korea and Syria).
(ii) The Selling Shareholder has no reason to believe and each of its subsidiaries have not for the past five years, engaged in, and are not now engaged in, any dealings or transactions with any Person, or with any country or territory, that at the representations and warranties time of the Company set forth in Section 3 are not true and correct in all material respects;
(i) The Selling Shareholder will deliver dealing or transaction is or was the subject of Sanctions, except to you prior to or at each Applicable Closing Date a properly completed and executed Internal Revenue Service Form W-8BEN (or other the extent permitted by applicable Form W-8;
(j) Certificates in negotiable form representing all of law. It is understood that the Selling Shareholder Shares does not make or repeat, as appropriate, the representation and warranty contained in this Section 3(j)(ii) and/or the Selling Shareholder Option Shares to be sold representation and warranty given by the Selling Shareholder have been placed in custody under Section 3(j)(ii) to the extent that such provisions are or would be unenforceable or would result in a Custody Agreement, violation of (i) Council Regulation (EC) 2271/96 (including as it forms part of UK domestic law by virtue of the European Union (Withdrawal) Act 2018) and/or any applicable national law or regulation which purports to create liability in respect of such violation in any member state of the European Union or any similar anti-boycott law in the form heretofore furnished United Kingdom. The representations and warranties given in this clause are only sought by and given to you any Underwriter incorporated in or organized under the laws of the Federal Republic of Germany to the extent that to do so would not result in a violation of or a conflict with the German Foreign Trade Regulation (the "CUSTODY AGREEMENT"Außenwirtschaftsverordnung – AWV), duly executed and delivered by the Selling Shareholder to American Stock Transfer & Trust Company as custodian (the "CUSTODIAN");.
(k) 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:
(i) 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 not the subject of Sanctions, except to the extent permitted by applicable law;
(ii) fund or facilitate any money laundering or terrorist financing activities; or
(iii) in any other manner that would cause or result in a violation of any applicable Anti-Corruption Laws, Anti-Money Laundering Laws, or Sanctions by any Person (including any Person participating in the offering, whether as underwriter, advisor, investor or otherwise), it being understood that the Selling Shareholder, to the extent it is subject to Council Regulation (EC) 2271/96, does not make or repeat, as appropriate, the representation and warranty contained in this paragraph 3(k) to the extent that this would result in a violation of the EU Blocking Regulation or any order law or directive of, or party to regulation implementing the EU Blocking Regulation in any agreement with, any regulatory agency having jurisdiction with respect to him;member state of the European Union.
(l) The Shares represented by For the certificates held in custody for the Selling Shareholder under the Custody Agreement are subject to the interests past five years, none of the Underwriters hereunder and the arrangements made by the Selling Shareholder for such custody are to that extent irrevocable; the obligations of the Selling Shareholder hereunder shall not be terminated by operation of law, whether by the death or incapacity of the Selling Shareholder or, in the case of an estate or trust, by the death or incapacity of any executor or trustee or the termination of such estate or trust, or in the case of a partnership or corporation, by the dissolution of such partnership or corporation, or by the occurrence of any other event; if the Selling Shareholder or any such executor or trustee should die or become incapacitatedof its subsidiaries, or if any such estate or trust should be terminateddirector, officer, or if employee thereof, or, to the Selling Shareholder’s knowledge, any such partnership agent or corporation should be dissolvedrepresentative of the Selling Shareholder or of any of its subsidiaries, has (i) taken any action in furtherance of an offer, solicitation, payment, promise to pay, or if authorization of any other such event should occurdirect or indirect unlawful payment or benefit, before the delivery to any foreign or domestic government official or employee, including of the Shares hereunderany government-owned or controlled entity or of a public international organization, certificates representing the Shares shall be delivered by 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, or (ii) violated (a) the U.S. Foreign Corrupt Practices Act of 1977, (b) the UK Bribery Act 2010 and (c) other than immaterial violations, any other applicable anti-bribery or anti-corruption law.
(m) The operations of the Selling Shareholder and its subsidiaries are and have been conducted at all times in accordance material compliance with all applicable Anti-Money Laundering Laws.
(n) No investigation, inquiry, 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, Anti-Corruption Laws, or Sanctions is pending or, to the knowledge of the Selling Shareholder, threatened. The Selling Shareholder and its subsidiaries and affiliates have instituted and maintained and will continue to maintain policies and procedures reasonably designed to promote and achieve compliance with the terms Anti-Corruption Laws, the Anti-Money Laundering Laws and conditions Sanctions.
(o) The Selling Shareholder is a “United States person” within the meaning of this Agreement Section 7701(a)(30) of the United States Internal Revenue Code of 1986, as amended, and is not treated as resident in any non-U.S. jurisdiction for tax purposes (including any double tax treaty arrangement).
(p) The Selling Shareholder (i) has not alone engaged in any Testing-the-Waters Communication with any person other than Testing-the-Waters Communications with the Custody Agreement consent of the Representatives with entities that are reasonably believed to be qualified institutional buyers within the meaning of Rule 144A under the Securities Act or institutions that are reasonably believed to be accredited investors within the meaning of Rule 501 under the Securities Act and shall be as valid as if such death, incapacity, termination, dissolution (ii) has not authorized anyone other than the Representatives to engage in Testing-the-Waters Communications. The Selling Shareholder reconfirms that the Representatives have been authorized to act on its behalf in undertaking Testing-the-Waters Communications. The Selling Shareholder has not distributed or approved any Testing-the-Waters Communication that is a written communication within the meaning of Rule 405 under the Securities Act other event had not occurred, regardless of whether or not the Custodian shall have received notice of such death, incapacity, termination, dissolution or other event.than those listed on Schedule C.
Appears in 1 contract
Representations and Warranties of the Selling Shareholder. The Selling Shareholder represents, represents and warrants and covenants, solely with respect to himself and the number of Selling Shareholder Shares and the Selling Shareholder Option Shares set forth opposite his name on Schedule I hereto, to each Underwriter that:
(a) The Selling Shareholder has valid (together with his spouse) is the lawful owner of the Shares to be sold by him pursuant to this Agreement and unencumbered has, and on the Closing Date (and Option Closing Date, if applicable) will have, good and clear title to 2,300,000 shares such Shares, free of Class A Common Stock of all restrictions on transfer, liens, encumbrances, security interests and claims whatsoever, other than pursuant to the CompanyShareholders' Agreement dated October 1, that are convertible into 2,300,000 Shares1994 (the "Shareholders' Agreement") and this Agreement.
(b) Such Upon delivery of and payment for such Shares pursuant to this Agreement, good and marketable title to such Shares will pass to the Underwriters, free and clear of all restrictions on transfer, liens, encumbrances, security interests and claims whatsoever other than pursuant to the Shareholders' Agreement, which, with respect to the Firm Shares, will be terminated concurrently therewith.
(c) The Selling Shareholder has, and on the Closing Date will have, valid and unencumbered title to the Shares on each Applicable Closing Date, to be delivered by the Selling Shareholder on such Applicable Closing Date and full right, power legal right and authority to enter into this Agreement and the Custody Agreement between the Selling Shareholder and American Securities Transfer & Trust, Inc., as Custodian (the "Custody Agreement"), and to sell, assign, transfer and deliver the Shares to be delivered by the Selling Shareholder on such Applicable Closing Date hereunder; and upon the delivery of and payment for such Shares on each Applicable Closing Date hereunderin the manner provided herein and therein, the several Underwriters will acquire valid and unencumbered title to the Shares to be delivered by the Selling Shareholder on such Applicable Closing Date.
(c) No filing with, or authorization, approval, consent, license, order, registration, qualification or decree of, any court or governmental authority or agency is necessary or required for the performance by the Selling Shareholder of his obligations hereunder, in connection with the offering, issuance or sale of the Selling Shareholder Shares hereunder or the consummation of the transactions contemplated by this Agreement, except such as has been already obtained or may be required under the Act or the Rules and Regulations, state securities laws or the bylaws and rules of the NASD in connection with the purchase and distribution by the Underwriters of the Selling Shareholder Shares and the Selling Shareholder Option Shares to be sold hereby;
(d) The Selling Shareholder has the legal right, power and all authorizations and approvals required by law to enter into the Custody Agreement (as defined in Section 4(j) hereof). This Agreement and the Custody Agreement have been duly authorized, executed and delivered by the Selling Shareholder and each such agreement of this Agreement and the Custody Agreement is a legal, valid and binding agreement of the Selling Shareholder;Shareholder enforceable in accordance with its terms, except as rights to indemnity and contribution hereunder may be limited by applicable law or public policy grounds, and except as enforcement (i) may be limited by bankruptcy, insolvency, reorganization or other similar laws affecting creditors' rights generally and (ii) is subject to general principles of equity and public policy (regardless of whether such enforceability is considered in a proceeding in equity or at law).
(ed) The execution, delivery and performance of this Agreement and the consummation of the transactions Other than as contemplated by this Agreement and in the Registration Statement (including the issuance and sale of such Selling Shareholder Shares and the Selling Shareholder Option Shares, if applicable) and compliance by the Selling Shareholder with his obligations under this Agreement and the Custody Agreement, do not and will not, whether with or without the giving of notice or lapse of time or both, conflict with or constitute a breach of, or default or Repayment Event under, or result in the creation or imposition of any lien, charge or encumbrance upon any property or assets of the Selling Shareholder pursuant to any contract, indenture, mortgage, deed of trust, loan or credit agreement, note, lease or any other agreements or instrument, to which the Selling Shareholder is a party or by which he may be bound, or to which any of the property or assets of the Selling Shareholder is subject (except for such conflicts, breaches, defaults, liens, charges or encumbrances that would not have a material adverse effect on the transactions contemplated herein), nor will such action result in any violation of any applicable law, statute, rule, regulation, judgment, order, writ or decree, of any government, government instrumentality or court, domestic or foreign, having jurisdiction over the Selling Shareholder or any respective properties, assets or operations;
(f) The Selling Shareholder has not taken taken, and will not take, directly or indirectly, any action which is designed to to, or which has constituted 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;Shares pursuant to the distribution contemplated by this Agreement, and other than as permitted
(ge) Neither The execution, delivery and performance of this Agreement by the Selling Shareholder, compliance by the Selling Shareholder with all the provisions hereof and the consummation of the transactions contemplated hereby will not require any consent, approval, authorization or other order of any court, regulatory body, administrative agency or other governmental body (except as such may be required under (i) the Act, (ii) the Exchange Act of 1934, or (iii) the securities or Blue Sky laws of the various states) and will not conflict with or constitute a breach of any of the terms or provisions of, or a default under, or any agreement, indenture or other instrument to which the Selling Shareholder is a party or by which the Selling Shareholder or property of the Selling Shareholder is bound, or violate or conflict with any laws, administrative regulation or ruling or court decree applicable to the Selling Shareholder or property of the Selling Shareholder.
(f) Such parts of the Registration StatementStatement under the caption "Principal and Selling Shareholders" which specifically relate to the Selling Shareholder do not, and will not on the Closing Date (and any Preliminary ProspectusOption Closing Date, the Prospectus or any amendment or supplement thereto contains if applicable), contain any untrue statement of a material fact or omits omit to state therein a any material fact required to be stated therein or necessary to make the statements therein therein, in light of circumstances under which they were made, not misleading.
(g) At any time during the period described in paragraph 5(e) hereof, in each case to the extent, but only to the extent, that such untrue statement or omission was made if there is any change in the Registration Statementinformation referred to in paragraph 7(f) above, any Preliminary except as contemplated in the Prospectus, the Prospectus or any amendment or supplement thereto in reliance upon and in conformity with written information furnished to the Company by the Selling Shareholder pertaining, as such, for use therein;will immediately notify you of such change.
(h) The To the best knowledge of the Selling Shareholder has no reason to believe that Shareholder, the representations and warranties of the Company set forth contained in Section 3 6 hereof are not true and correct in all material respects;
(i) The correct; the Selling Shareholder will deliver has reviewed and is familiar with the Registration Statement as filed with the Commission and any preliminary prospectuses contained therein and has no knowledge of any material fact, condition or information not disclosed in such preliminary prospectus which has adversely affected or could adversely affect the condition, financial or otherwise, or the earnings, business affairs, or business prospects of the Company and its subsidiaries considered as one enterprise; to you prior to or at each Applicable Closing Date a properly completed and executed Internal Revenue Service Form W-8BEN (or other applicable Form W-8;
(j) Certificates in negotiable form representing all the best knowledge of the Selling Shareholder Shares and the Selling Shareholder Option Shares to be sold by the Selling Shareholder have been placed in custody under a Custody AgreementShareholder, in the form heretofore furnished to you (the "CUSTODY AGREEMENT"), duly executed and delivered by the Selling Shareholder to American Stock Transfer & Trust Company as custodian (the "CUSTODIAN");
(k) The Selling Shareholder is such preliminary prospectuses do not subject to contain any order or directive of, or party to any agreement with, any regulatory agency having jurisdiction with respect to him;
(l) 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 the arrangements made by the Selling Shareholder for such custody are to that extent irrevocable; the obligations of the Selling Shareholder hereunder shall not be terminated by operation of law, whether by the death or incapacity of the Selling Shareholder or, in the case of an estate or trust, by the death or incapacity of any executor or trustee or the termination of such estate or trust, or in the case untrue statement of a partnership material fact or corporation, by omit to state any material fact necessary to make the dissolution of such partnership or corporation, or by the occurrence of any other event; if the Selling Shareholder or any such executor or trustee should die or become incapacitated, or if any such estate or trust should be terminated, or if any such partnership or corporation should be dissolved, or if any other such event should occur, before the delivery of the Shares hereunder, certificates representing the Shares shall be delivered by or on behalf of the Selling Shareholder in accordance with the terms and conditions of this Agreement and the Custody Agreement and shall be as valid as if such death, incapacity, termination, dissolution or other event had statements therein not occurred, regardless of whether or not the Custodian shall have received notice of such death, incapacity, termination, dissolution or other eventmisleading.
Appears in 1 contract
Representations and Warranties of the Selling Shareholder. The Selling Shareholder represents, represents and warrants to and covenants, solely agrees with respect to himself and each of the number of Selling Shareholder Shares and the Selling Shareholder Option Shares set forth opposite his name on Schedule I hereto, to each Underwriter Underwriters that:
(a) The Selling Shareholder This Agreement has valid been duly authorized, executed and unencumbered title to 2,300,000 shares of Class A Common Stock delivered by or on behalf of the Company, that are convertible into 2,300,000 SharesSelling Shareholder.
(b) Such Selling Shareholder will have, valid The execution and unencumbered title to the Shares on each Applicable Closing Date, to be delivered delivery by the Selling Shareholder on of, and the performance by such Applicable Closing Date and full rightSelling Shareholder of its obligations under, power and authority to enter into this Agreement and to sell, assign, transfer the Power of Attorney and deliver the Shares to be delivered by Custody Agreement of the Selling Shareholder on such Applicable Closing Date hereunder; and will not contravene any provision of applicable law, or any agreement or other instrument binding upon the delivery of and payment for such Shares on each Applicable Closing Date hereunder, the several Underwriters will acquire valid and unencumbered title to the Shares to be delivered by the Selling Shareholder on such Applicable Closing Date.
(c) No filing withor, to the Selling Shareholder's knowledge, any judgment, order or authorizationdecree of any governmental body, agency or court having jurisdiction over the Selling Shareholder, and no consent, approval, consent, license, order, registration, qualification authorization or decree order of, or qualification with, any court or governmental authority body or agency is necessary or required for the performance by the Selling Shareholder of his its obligations hereunderunder this Agreement or the Power of Attorney and 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 offeringoffer and sale of the Shares.
(c) The Selling Shareholder has, issuance or sale and on the Closing Date will have, valid title to the Shares to be sold by the Selling Shareholder and the legal right and power, and all authorization and approval required by law, to enter into this Agreement, the Power of Attorney and Custody Agreement of the Selling Shareholder Shares hereunder or and to sell, transfer and deliver the consummation of the transactions contemplated by this Agreement, except such as has been already obtained or may be required under the Act or the Rules and Regulations, state securities laws or the bylaws and rules of the NASD in connection with the purchase and distribution by the Underwriters of the Selling Shareholder Shares and the Selling Shareholder Option Shares to be sold hereby;by the Selling Shareholder.
(d) The Shares to be sold by the Selling Shareholder has the legal right, power and all authorizations and approvals required by law pursuant to enter into the Custody Agreement (as defined in Section 4(j) hereof). This Agreement and the Custody this Agreement have been duly authorized and are validly issued, fully paid and non-assessable.
(e) The Power of Attorney and Custody Agreement of the Selling Shareholder has been duly authorized, executed and delivered by the Selling Shareholder and each such agreement is a legal, valid and binding agreement of the Selling Shareholder;, enforceable in accordance with its terms, subject to applicable bankruptcy, insolvency or similar laws affecting creditors' rights generally and general principles of equity.
(ef) The execution, delivery and performance of this Agreement and the consummation Delivery of the transactions contemplated Shares to be sold by this Agreement and in the Registration Statement (including the issuance and sale of such Selling Shareholder Shares and the Selling Shareholder Option Shares, if applicable) and compliance by the Selling Shareholder with his obligations under this Agreement and the Custody Agreement, do not and will not, whether with or without the giving of notice or lapse of time or both, conflict with or constitute a breach of, or default or Repayment Event under, or result in the creation or imposition of any lien, charge or encumbrance upon any property or assets of the Selling Shareholder pursuant to this Agreement will pass title to such Shares free and clear of any contractsecurity interests, indenture, mortgage, deed of trust, loan or credit agreement, note, lease or any other agreements or instrument, to which the Selling Shareholder is a party or by which he may be bound, or to which any of the property or assets of the Selling Shareholder is subject (except for such conflicts, breaches, defaultsclaims, liens, charges or encumbrances that would not have a material adverse effect on the transactions contemplated herein), nor will such action result in any violation of any applicable law, statute, rule, regulation, judgment, order, writ or decree, of any government, government instrumentality or court, domestic or foreign, having jurisdiction over the Selling Shareholder or any respective properties, assets or operations;equities and other encumbrances.
(fi) The Selling Shareholder has not taken Each document, if any, filed or to be filed pursuant to the Securities Exchange Act of 1934, as amended (the "Exchange Act") and incorporated by reference in the Prospectus complied or will not take, directly or indirectly, any action which is designed to or which has constituted stabilization or manipulation comply when so filed in all material respects with the Exchange Act and the applicable rules and regulations of the price of any security of the Company to facilitate the sale or resale of the Shares;
Commission thereunder, (gii) Neither the Registration Statement, any Preliminary Prospectuswhen it became effective, the Prospectus did not contain and, as amended or any amendment or supplement thereto contains supplemented, if applicable, will not contain any untrue statement of a material fact or omits omit to state therein a material fact required to be stated therein or necessary to make the statements therein not misleading, (iii) the Registration Statement and the Prospectus comply and, as amended or supplemented, if applicable, will comply in each case to all material respects with the extentSecurities Act and the applicable rules and regulations of the Commission thereunder and (iv) the Prospectus does not contain and, but only to the extentas amended or supplemented, that such if applicable, will not contain any untrue statement of a material fact or omission was made omit to state a material fact necessary to make the statements therein, in the Registration Statementlight of the circumstances under which they were made, any Preliminary Prospectusnot misleading, the Prospectus or any amendment or supplement thereto in reliance upon and in conformity with written information furnished to the Company by the Selling Shareholder pertaining, as such, for use therein;
(h) The Selling Shareholder has no reason to believe except that the representations and warranties of the Company set forth in Section 3 are this paragraph 2(g) do not true and correct in all material respects;
(i) The Selling Shareholder will deliver apply to you prior to statements or at each Applicable Closing Date a properly completed and executed Internal Revenue Service Form W-8BEN (or other applicable Form W-8;
(j) Certificates in negotiable form representing all of the Selling Shareholder Shares and the Selling Shareholder Option Shares to be sold by the Selling Shareholder have been placed in custody under a Custody Agreement, omissions in the form heretofore Registration Statement or the Prospectus based upon information relating to any Underwriter furnished to the Company in writing by such Underwriter through you (the "CUSTODY AGREEMENT"), duly executed and delivered by the Selling Shareholder to American Stock Transfer & Trust Company as custodian (the "CUSTODIAN");
(k) The Selling Shareholder is not subject to any order or directive of, or party to any agreement with, any regulatory agency having jurisdiction with respect to him;
(l) The Shares represented by the certificates held in custody expressly for the Selling Shareholder under the Custody Agreement are subject to the interests of the Underwriters hereunder and the arrangements made by the Selling Shareholder for such custody are to that extent irrevocable; the obligations of the Selling Shareholder hereunder shall not be terminated by operation of law, whether by the death or incapacity of the Selling Shareholder or, in the case of an estate or trust, by the death or incapacity of any executor or trustee or the termination of such estate or trust, or in the case of a partnership or corporation, by the dissolution of such partnership or corporation, or by the occurrence of any other event; if the Selling Shareholder or any such executor or trustee should die or become incapacitated, or if any such estate or trust should be terminated, or if any such partnership or corporation should be dissolved, or if any other such event should occur, before the delivery of the Shares hereunder, certificates representing the Shares shall be delivered by or on behalf of the Selling Shareholder in accordance with the terms and conditions of this Agreement and the Custody Agreement and shall be as valid as if such death, incapacity, termination, dissolution or other event had not occurred, regardless of whether or not the Custodian shall have received notice of such death, incapacity, termination, dissolution or other eventuse therein.
Appears in 1 contract
Samples: Underwriting Agreement (Mastec Inc)
Representations and Warranties of the Selling Shareholder. The Selling Shareholder represents, represents and warrants to and covenants, solely agrees with respect to himself and each of the number of Selling Shareholder Shares and the Selling Shareholder Option Shares set forth opposite his name on Schedule I hereto, to each Underwriter Underwriters that:
(a) The Selling Shareholder This Agreement has valid been duly authorized, executed and unencumbered title to 2,300,000 shares of Class A Common Stock delivered by or on behalf of the Company, that are convertible into 2,300,000 SharesSelling Shareholder.
(b) Such Selling Shareholder will have, valid The execution and unencumbered title to the Shares on each Applicable Closing Date, to be delivered delivery by the Selling Shareholder on such Applicable Closing Date of, and full rightthe performance by the Selling Shareholder of its obligations under, power and authority to enter into 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 sell, assign, transfer and deliver the deposit of the Shares to be delivered sold by the Selling Shareholder on such Applicable Closing Date hereunder; (the "CUSTODY AGREEMENT") and the consummation of the transactions contemplated thereby will not contravene any provision of applicable law, or the Last Will and Testament of Alfred I. duPont, by which the Sellinx Xxxxxxxxxxx xxs established, or any agreement or other instrument binding upon the delivery of and payment for such Shares on each Applicable Closing Date hereunder, the several Underwriters will acquire valid and unencumbered title to the Shares to be delivered by the Selling Shareholder on such Applicable Closing Date.
(c) No filing withor any judgment, order or authorizationdecree of any governmental body, agency or court having jurisdiction over the Selling Shareholder, and no consent, approval, consent, license, order, registration, qualification authorization or decree order of, or qualification with, any court or governmental authority body or agency is necessary or required for the performance by the Selling Shareholder of his its obligations hereunder, in connection with the offering, issuance or sale of the Selling Shareholder Shares hereunder under this Agreement or the consummation of the transactions contemplated by this Custody Agreement, except such as has been already obtained or may be required under by the Act securities or the Rules and Regulations, state securities Blue Sky laws or the bylaws and rules of the NASD various states in connection with the purchase offer and distribution by the Underwriters sale of the Shares.
(c) The Selling Shareholder Shares has, and on the Selling Shareholder Option 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 hereby;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 or a security entitlement in respect of such Shares.
(d) The Selling Shareholder has the legal right, power and all authorizations and approvals required by law to enter into the Custody Agreement (as defined in Section 4(j) hereof). This Agreement and the Custody Agreement have has been duly authorized, executed and delivered by the Selling Shareholder and each such agreement is a legal, valid and binding agreement of the Selling Shareholder;.
(e) The execution, delivery and performance of this Agreement and the consummation Delivery of the transactions contemplated by this Agreement and in the Registration Statement (including the issuance and sale of such Selling Shareholder Shares and the Selling Shareholder Option Shares, if applicable) and compliance to be sold by the Selling Shareholder with his obligations under and payment therefor pursuant to this Agreement will pass valid title to such Shares, free and the Custody Agreement, do not and will not, whether with or without the giving of notice or lapse of time or both, conflict with or constitute a breach of, or default or Repayment Event under, or result in the creation or imposition clear of any lien, charge or encumbrance upon any property or assets adverse claim within the meaning of Section 8-102 of the Selling Shareholder pursuant to any contract, indenture, mortgage, deed of trust, loan or credit agreement, note, lease or any other agreements or instrumentNew York Uniform Commercial Code, to which the Selling Shareholder is a party or by which he may be bound, or to which any each Underwriter who has purchased such Shares without notice of the property or assets of the Selling Shareholder is subject (except for such conflicts, breaches, defaults, liens, charges or encumbrances that would not have a material an adverse effect on the transactions contemplated herein), nor will such action result in any violation of any applicable law, statute, rule, regulation, judgment, order, writ or decree, of any government, government instrumentality or court, domestic or foreign, having jurisdiction over the Selling Shareholder or any respective properties, assets or operations;claim.
(f) The Selling Shareholder has not taken and will not take, directly or indirectly, any action which is 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 security of the Company to facilitate the sale or resale of the Shares;.
(gi) Neither To the best of the knowledge of the Selling Shareholder, after due inquiry, the Registration Statement, any Preliminary Prospectuswhen it became effective, the Prospectus did not contain and, as amended or any amendment or supplement thereto contains supplemented, if applicable, will not contain any untrue statement of a material fact or omits omit to state therein 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 each case to all material respects with the extentSecurities Act and the applicable rules and regulations of the Commission thereunder and (iii) the Prospectus does not contain and, but only to the extentas amended or supplemented, that such if applicable, will not contain any untrue statement of a material fact or omission was made omit to state a material fact necessary to make the statements therein, in the Registration Statementlight of the circumstances under which they were made, any Preliminary Prospectusnot misleading, the Prospectus or any amendment or supplement thereto in reliance upon and in conformity with written information furnished to the Company by the Selling Shareholder pertaining, as such, for use therein;
(h) The Selling Shareholder has no reason to believe except that the representations and warranties of the Company set forth in Section 3 are this paragraph 2(g) do not true and correct apply to statements or omissions in all material respects;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.
(ih) The Selling Shareholder will deliver to you prior to or at each Applicable Closing Date a properly completed and executed Internal Revenue Service Form W-8BEN (or other applicable Form W-8;
(j) Certificates the statements in negotiable form representing all the Base Prospectus under the caption "Alfred I. duPont Testamentary Trust," xxx xx xxx Xxxxpectus Supplement under the captions "Summary -- Alfred I. duPont Testamentary Trust" xxx "Xxlling Shareholder" insofar as such statements constitute summaries of the Selling Shareholder Shares and legal matters, documents or proceedings referred to therein, fairly present the Selling Shareholder Option Shares to be sold by the Selling Shareholder have been placed in custody under a Custody Agreement, in the form heretofore furnished to you (the "CUSTODY AGREEMENT"), duly executed and delivered by the Selling Shareholder to American Stock Transfer & Trust Company as custodian (the "CUSTODIAN");
(k) The Selling Shareholder is not subject to any order or directive of, or party to any agreement with, any regulatory agency having jurisdiction information called for with respect to him;
(l) The Shares represented by such legal matters, documents and proceedings and fairly summarize the certificates held in custody for the Selling Shareholder under the Custody Agreement are subject matters referred to the interests of the Underwriters hereunder and the arrangements made by the Selling Shareholder for such custody are to that extent irrevocable; the obligations of the Selling Shareholder hereunder shall not be terminated by operation of law, whether by the death or incapacity of the Selling Shareholder or, in the case of an estate or trust, by the death or incapacity of any executor or trustee or the termination of such estate or trust, or in the case of a partnership or corporation, by the dissolution of such partnership or corporation, or by the occurrence of any other event; if the Selling Shareholder or any such executor or trustee should die or become incapacitated, or if any such estate or trust should be terminated, or if any such partnership or corporation should be dissolved, or if any other such event should occur, before the delivery of the Shares hereunder, certificates representing the Shares shall be delivered by or on behalf of the Selling Shareholder in accordance with the terms and conditions of this Agreement and the Custody Agreement and shall be as valid as if such death, incapacity, termination, dissolution or other event had not occurred, regardless of whether or not the Custodian shall have received notice of such death, incapacity, termination, dissolution or other eventtherein.
Appears in 1 contract
Samples: Underwriting Agreement (St Joe Co)
Representations and Warranties of the Selling Shareholder. The Selling Shareholder represents, represents and warrants to and covenants, solely agrees with respect to himself and each of the number of Selling Shareholder Shares and the Selling Shareholder Option Shares set forth opposite his name on Schedule I hereto, to each Underwriter Underwriters that:
(a) The Selling Shareholder This Agreement has valid been duly authorized, executed and unencumbered title to 2,300,000 shares of Class A Common Stock delivered by or on behalf of the Company, that are convertible into 2,300,000 SharesSelling Shareholder.
(b) Such 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, (ii) the organizational documents of the Selling Shareholder, (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 the case of (i), (iii) and (iv), as would not reasonably be expected to materially impact the Selling Shareholder’s ability to perform its obligations under this Agreement.
(c) No material 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, except as will have been obtained on or prior to the time of delivery of the Shares pursuant to Section 5.
(d) The Selling Shareholder has, and on the Closing Date will have, valid and unencumbered title to 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 on each Applicable Closing Date, to be delivered sold by the such Selling Shareholder on such Applicable Closing Date free and full rightclear of all security interests, power claims, liens, equities or other encumbrances and authority the legal right and power, and all authorization and approval required by law, to enter into this Agreement and to sell, assign, transfer and deliver the Shares to be delivered by the Selling Shareholder on such Applicable Closing Date hereunder; and upon the delivery of and payment for such Shares on each Applicable Closing Date hereunder, the several Underwriters will acquire valid and unencumbered title to the Shares to be delivered by the Selling Shareholder on such Applicable Closing Date.
(c) No filing with, or authorization, approval, consent, license, order, registration, qualification or decree of, any court or governmental authority or agency is necessary or required for the performance by the Selling Shareholder of his obligations hereunder, in connection with the offering, issuance or sale of the Selling Shareholder Shares hereunder or the consummation of the transactions contemplated by this Agreement, except such as has been already obtained or may be required under the Act or the Rules and Regulations, state securities laws or the bylaws and rules of the NASD in connection with the purchase and distribution by the Underwriters of the Selling Shareholder Shares and the Selling Shareholder Option Shares to be sold hereby;
(d) The Selling Shareholder has the legal right, power and all authorizations and approvals required by law to enter into the Custody Agreement (as defined in Section 4(j) hereof). This Agreement and the Custody Agreement have been duly executed and delivered by the Selling Shareholder and each such agreement is a legal, valid and binding agreement of the Selling Shareholder;
(e) The execution, delivery and performance of this Agreement and the consummation of the transactions contemplated by this Agreement and in the Registration Statement (including the issuance and sale of such Selling Shareholder Shares and the Selling Shareholder Option Shares, if applicable) and compliance by the Selling Shareholder with his obligations under this Agreement and the Custody Agreement, do not and will not, whether with or without the giving of notice or lapse of time or both, conflict with or constitute a breach of, or default or Repayment Event under, or result in the creation or imposition of any lien, charge or encumbrance upon any property or assets of the Selling Shareholder pursuant to any contract, indenture, mortgage, deed of trust, loan or credit agreement, note, lease or any other agreements or instrument, to which the Selling Shareholder is a party or by which he may be bound, or to which any of the property or assets of the Selling Shareholder is subject (except for such conflicts, breaches, defaults, liens, charges or encumbrances that would not have a material adverse effect on the transactions contemplated herein), nor will such action result in any violation of any applicable law, statute, rule, regulation, judgment, order, writ or decree, of any government, government instrumentality or court, domestic or foreign, having jurisdiction over the Selling Shareholder or any respective properties, assets or operations;
(f) The Selling Shareholder has not taken and will not take, directly or indirectly, any action which is designed to or which has constituted stabilization or manipulation of the price of any security of the Company to facilitate the sale or resale of the Shares;
(g) Neither the Registration Statement, any Preliminary Prospectus, the Prospectus or any amendment or supplement thereto contains any untrue statement of a material fact or omits to state therein a material fact required to be stated therein or necessary to make the statements therein not misleading, in each case to the extent, but only to the extent, that such untrue statement or omission was made in the Registration Statement, any Preliminary Prospectus, the Prospectus or any amendment or supplement thereto in reliance upon and in conformity with written information furnished to the Company by the Selling Shareholder pertaining, as such, for use therein;
(h) The Selling Shareholder has no reason to believe that the representations and warranties of the Company set forth in Section 3 are not true and correct in all material respects;
(i) The Selling Shareholder will deliver to you prior to or at each Applicable Closing Date a properly completed and executed Internal Revenue Service Form W-8BEN (or other applicable Form W-8;
(j) Certificates in negotiable form representing all of the Selling Shareholder Shares and the Selling Shareholder Option Shares to be sold by the Selling Shareholder have been placed or a security entitlement in custody under a Custody Agreement, in respect of such Shares.
(e) Upon payment for the form heretofore furnished Shares to you (the "CUSTODY AGREEMENT"), duly executed and delivered be sold by the Selling Shareholder pursuant to American Stock Transfer this Agreement, delivery of such Shares, as directed by the Underwriters, to Cede & Co. (“Cede”) or such other nominee as may be designated by the Depository Trust Company (“DTC”), registration of such Shares in the name of Cede or such other nominee and the crediting of such Shares on the books of DTC to securities accounts of the Underwriters (assuming that neither DTC nor any such Underwriter has notice of any adverse claim (within the meaning of Section 8‑105 of the UCC) to such Shares), (A) DTC shall be a “protected purchaser” of such Shares within the meaning of Section 8‑303 of the UCC, (B) under Section 8‑501 of the UCC, the Underwriters will acquire a valid security entitlement in respect of such Shares and (C) no action based on any “adverse claim”, within the meaning of Section 8‑102 of the UCC, to such Shares may be asserted against the Underwriters with respect to such security entitlement; for purposes of this representation, 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 custodian a “clearing corporation” within the meaning of Section 8‑102 of the UCC and (z) appropriate entries to the "CUSTODIAN");accounts of the several Underwriters on the records of DTC will have been made pursuant to the UCC.
(kf) The Neither the Selling Shareholder nor, to the knowledge of the Selling Shareholder, any director or officer or employee or affiliate of such Selling Shareholder is not currently subject to any order or directive of, or party to any agreement with, any regulatory agency having jurisdiction with respect to him;
(l) The Shares represented by the certificates held in custody for Sanctions; and the Selling Shareholder under will not, directly or indirectly, use the Custody Agreement are subject to the interests proceeds of the Underwriters hereunder and offering of the arrangements made Shares sold by the Selling Shareholder hereunder, or lend, contribute or otherwise make available such proceeds to any subsidiary, joint venture partner or other person or entity, for such custody are to that extent irrevocable; the obligations purpose of financing the Selling Shareholder hereunder shall not be terminated by operation of law, whether by the death or incapacity of the Selling Shareholder or, in the case of an estate or trust, by the death or incapacity activities of any executor or trustee or the termination of such estate or trust, or in the case of a partnership or corporation, by the dissolution of such partnership or corporation, or by the occurrence of any other event; if the Selling Shareholder or any such executor or trustee should die or become incapacitated, or if any such estate or trust should be terminated, or if any such partnership or corporation should be dissolved, or if any other such event should occur, before the delivery of the Shares hereunder, certificates representing the Shares shall be delivered by or on behalf of the Selling Shareholder in accordance with the terms and conditions of this Agreement and the Custody Agreement and shall be as valid as if such death, incapacity, termination, dissolution or other event had not occurred, regardless of whether or not the Custodian shall have received notice of such death, incapacity, termination, dissolution or other eventperson currently subject to Sanctions.
Appears in 1 contract
Samples: Underwriting Agreement (CapGen Capital Group III LP)
Representations and Warranties of the Selling Shareholder. The Selling Shareholder represents, represents and warrants to and covenants, solely agrees with respect to himself and each of the number of Selling Shareholder Shares and the Selling Shareholder Option Shares set forth opposite his name on Schedule I hereto, to each Underwriter Underwriters that:
(a) The Selling Shareholder This Agreement has valid been duly authorized, executed and unencumbered title to 2,300,000 shares of Class A Common Stock delivered by or on behalf of the Company, that are convertible into 2,300,000 SharesSelling Shareholder.
(b) Such The Selling Shareholder has, and on the Closing Date will have, valid and unencumbered title to 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 on each Applicable Closing Date, to be delivered sold by the Selling Shareholder on such Applicable Closing Date free and full rightclear of all security interests, power claims, liens, equities or other encumbrances and authority the legal right and power, and all authorization and approval required by law, to enter into this Agreement and to sell, assign, transfer and deliver the Shares to be delivered sold by the Selling Shareholder on or a security entitlement in respect of such Applicable Closing Date hereunder; and upon the delivery of and payment for such Shares on each Applicable Closing Date hereunder, the several Underwriters will acquire valid and unencumbered title to the Shares to be delivered by the Selling Shareholder on such Applicable Closing DateShares.
(c) No filing with, or authorization, approval, consent, license, order, registration, qualification or decree of, any court or governmental authority or agency is necessary or required Upon payment for the performance Shares to be sold by the Selling Shareholder pursuant to this Agreement, delivery of his obligations hereundersuch 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 connection 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 the offeringrespect to such security entitlement; for purposes of this representation, issuance or sale of the Selling Shareholder may assume that when such payment, delivery and crediting occur, (x) such Shares hereunder will have been registered in the name of Cede or another nominee designated by DTC, in each case on the consummation 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 transactions contemplated by this Agreement, except such as has been already obtained or may be required under UCC and (z) appropriate entries to the Act or the Rules and Regulations, state securities laws or the bylaws and rules accounts of the NASD in connection with several Underwriters on the purchase and distribution by records of DTC will have been made pursuant to the Underwriters of the Selling Shareholder Shares and the Selling Shareholder Option Shares to be sold hereby;UCC.
(d) The Selling Shareholder has no reason to believe that the legal right, power representations and all authorizations and approvals required by law to enter into warranties of the Custody Agreement (as defined Company contained in Section 4(j) hereof). This Agreement 1 are not true and correct, is familiar with the Registration Statement, the Time of Sale Prospectus and the Custody Agreement have been duly executed Prospectus and delivered by the Selling Shareholder and each such agreement is a legalhas no knowledge of any material fact, valid and binding agreement of the Selling Shareholder;
(e) The execution, delivery and performance of this Agreement and the consummation of the transactions contemplated by this Agreement and condition or information not disclosed in the Registration Statement (including Time of Sale Prospectus or the issuance and sale of such Selling Shareholder Shares and the Selling Shareholder Option Shares, if applicable) and compliance by the Selling Shareholder with his obligations under this Agreement and the Custody Agreement, do not and will not, whether with or without the giving of notice or lapse of time or both, conflict with or constitute a breach ofProspectus that has had, or default or Repayment Event undermay have, or result in the creation or imposition of any lien, charge or encumbrance upon any property or assets of the Selling Shareholder pursuant to any contract, indenture, mortgage, deed of trust, loan or credit agreement, note, lease or any other agreements or instrument, to which the Selling Shareholder is a party or by which he may be bound, or to which any of the property or assets of the Selling Shareholder is subject (except for such conflicts, breaches, defaults, liens, charges or encumbrances that would not have a material adverse effect on the transactions contemplated herein)Company and its subsidiaries, nor will such action result in any violation of any applicable law, statute, rule, regulation, judgment, order, writ or decree, of any government, government instrumentality or court, domestic or foreign, having jurisdiction over the Selling Shareholder or any respective properties, assets or operations;
(f) taken as a whole. The Selling Shareholder has is not taken and will not take, directly prompted by any information concerning the Company or indirectly, any action its subsidiaries which is designed not set forth in the Time of Sale Prospectus to or which has constituted stabilization or manipulation of the price of any security of the Company sell its Shares pursuant to facilitate the sale or resale of the Shares;this Agreement.
(ge) Neither the The Registration Statement, any Preliminary Prospectuswhen it became effective, the Prospectus did not contain and, as amended or any amendment or supplement thereto contains supplemented, if applicable, will not contain any untrue statement of a material fact or omits omit to state therein a material fact required to be stated therein or necessary to make the statements therein not misleading, (i) 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, (ii) the Time of Sale Prospectus does not, and at the time of each case sale of the Shares in connection with the offering when the Prospectus is not yet available to prospective purchasers and at the extentClosing Date (as defined in Section 5), but only to the extentTime of Sale Prospectus, that such as then amended or supplemented by the Company, if applicable, will not, contain any untrue statement of a material fact or omission was made omit to state a material fact necessary to make the statements therein, in the Registration Statementlight of the circumstances under which they were made, any Preliminary 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 (iv) the Prospectus or any amendment or supplement thereto in reliance upon and in conformity with written information furnished to the Company by the Selling Shareholder pertainingdoes not contain and, as suchamended or supplemented, for use 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;
(h) The Selling Shareholder has no reason to believe , in the light of the circumstances under which they were made, not misleading, except that the representations and warranties of the Company set forth in Section 3 are this paragraph (g) do not true and correct in all material respects;
(i) The Selling Shareholder will deliver apply to you prior to statements or at each Applicable Closing Date a properly completed and executed Internal Revenue Service Form W-8BEN (or other applicable Form W-8;
(j) Certificates in negotiable form representing all of the Selling Shareholder Shares and the Selling Shareholder Option Shares to be sold by the Selling Shareholder have been placed in custody under a Custody Agreement, omissions in the form heretofore Registration Statement or the Prospectus based upon information relating to any Underwriter furnished to the Company in writing by such Underwriter through you (the "CUSTODY AGREEMENT"), duly executed and delivered by the Selling Shareholder to American Stock Transfer & Trust Company as custodian (the "CUSTODIAN");
(k) The Selling Shareholder is not subject to any order or directive of, or party to any agreement with, any regulatory agency having jurisdiction with respect to him;
(l) The Shares represented by the certificates held in custody expressly for the Selling Shareholder under the Custody Agreement are subject to the interests of the Underwriters hereunder and the arrangements made by the Selling Shareholder for such custody are to that extent irrevocable; the obligations of the Selling Shareholder hereunder shall not be terminated by operation of law, whether by the death or incapacity of the Selling Shareholder or, in the case of an estate or trust, by the death or incapacity of any executor or trustee or the termination of such estate or trust, or in the case of a partnership or corporation, by the dissolution of such partnership or corporation, or by the occurrence of any other event; if the Selling Shareholder or any such executor or trustee should die or become incapacitated, or if any such estate or trust should be terminated, or if any such partnership or corporation should be dissolved, or if any other such event should occur, before the delivery of the Shares hereunder, certificates representing the Shares shall be delivered by or on behalf of the Selling Shareholder in accordance with the terms and conditions of this Agreement and the Custody Agreement and shall be as valid as if such death, incapacity, termination, dissolution or other event had not occurred, regardless of whether or not the Custodian shall have received notice of such death, incapacity, termination, dissolution or other eventuse therein.
Appears in 1 contract
Representations and Warranties of the Selling Shareholder. The Selling Shareholder represents, represents and warrants to and covenants, solely agrees with respect to himself and each of the number of Selling Shareholder Shares and the Selling Shareholder Option Shares set forth opposite his name on Schedule I hereto, to each Underwriter Underwriters that:
(a) The Selling Shareholder This Agreement has valid been duly authorized, executed and unencumbered title to 2,300,000 shares of Class A Common Stock delivered by or on behalf of the Company, that are convertible into 2,300,000 SharesSelling Shareholder.
(b) Such Selling Shareholder will have, valid The execution and unencumbered title to the Shares on each Applicable Closing Date, to be delivered delivery by the Selling Shareholder on such Applicable Closing Date of, and full rightthe performance by the Selling Shareholder of its obligations under, power and authority to enter into 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 sell, assign, transfer and deliver the deposit of the Shares to be delivered sold by the Selling Shareholder on such Applicable Closing Date hereunder; (the "CUSTODY AGREEMENT") and upon the delivery consummation of the transactions contemplated thereby will not contravene any provision of applicable law, or the Last Will and payment for such Shares on each Applicable Closing Date hereunderTestament of Alfred I. duPont, the several Underwriters will acquire valid and unencumbered title to the Shares to be delivered by which the Selling Shareholder on such Applicable Closing Date.
(c) No filing withwas establxxxxx, xx xxx xxreement or authorizationother 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, and no consent, approval, consent, license, order, registration, qualification authorization or decree order of, or qualification with, any court or governmental authority body or agency is necessary or required for the performance by the Selling Shareholder of his its obligations hereunder, in connection with the offering, issuance or sale of the Selling Shareholder Shares hereunder under this Agreement or the consummation of the transactions contemplated by this Custody Agreement, except such as has been already obtained or may be required under by the Act securities or the Rules and Regulations, state securities Blue Sky laws or the bylaws and rules of the NASD various states in connection with the purchase offer and distribution by the Underwriters sale of the Shares.
(c) The Selling Shareholder Shares has, and on the Selling Shareholder Option 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 hereby;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 or a security entitlement in respect of such Shares.
(d) The Selling Shareholder has the legal right, power and all authorizations and approvals required by law to enter into the Custody Agreement (as defined in Section 4(j) hereof). This Agreement and the Custody Agreement have has been duly authorized, executed and delivered by the Selling Shareholder and each such agreement is a legal, valid and binding agreement of the Selling Shareholder;.
(e) The execution, delivery and performance of this Agreement and the consummation Delivery of the transactions contemplated by this Agreement and in the Registration Statement (including the issuance and sale of such Selling Shareholder Shares and the Selling Shareholder Option Shares, if applicable) and compliance to be sold by the Selling Shareholder with his obligations under and payment therefor pursuant to this Agreement will pass valid title to such Shares, free and the Custody Agreement, do not and will not, whether with or without the giving of notice or lapse of time or both, conflict with or constitute a breach of, or default or Repayment Event under, or result in the creation or imposition clear of any lien, charge or encumbrance upon any property or assets adverse claim within the meaning of Section 8-102 of the Selling Shareholder pursuant to any contract, indenture, mortgage, deed of trust, loan or credit agreement, note, lease or any other agreements or instrumentNew York Uniform Commercial Code, to which the Selling Shareholder is a party or by which he may be bound, or to which any each Underwriter who has purchased such Shares without notice of the property or assets of the Selling Shareholder is subject (except for such conflicts, breaches, defaults, liens, charges or encumbrances that would not have a material an adverse effect on the transactions contemplated herein), nor will such action result in any violation of any applicable law, statute, rule, regulation, judgment, order, writ or decree, of any government, government instrumentality or court, domestic or foreign, having jurisdiction over the Selling Shareholder or any respective properties, assets or operations;claim.
(f) The Selling Shareholder has not taken and will not take, directly or indirectly, any action which is 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 security of the Company to facilitate the sale or resale of the Shares;.
(gi) Neither To the best of the knowledge of the Selling Shareholder, after due inquiry, the Registration Statement, any Preliminary Prospectuswhen it became effective, the Prospectus did not contain and, as amended or any amendment or supplement thereto contains supplemented, if applicable, will not contain any untrue statement of a material fact or omits omit to state therein 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 each case to all material respects with the extentSecurities Act and the applicable rules and regulations of the Commission thereunder and (iii) the Prospectus does not contain and, but only to the extentas amended or supplemented, that such if applicable, will not contain any untrue statement of a material fact or omission was made omit to state a material fact necessary to make the statements therein, in the Registration Statementlight of the circumstances under which they were made, any Preliminary Prospectusnot misleading, the Prospectus or any amendment or supplement thereto in reliance upon and in conformity with written information furnished to the Company by the Selling Shareholder pertaining, as such, for use therein;
(h) The Selling Shareholder has no reason to believe except that the representations and warranties of the Company set forth in Section 3 are this paragraph 2(g) do not true and correct apply to statements or omissions in all material respects;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.
(ih) The the statements in the Prospectus under the captions "Summary--Alfred I. duPont Testamentary Trust", "Alfred I. duPont Testaxxxxxxx Xxxxx," and "Selling Shareholder will deliver to you prior to or at each Applicable Closing Date a properly completed and executed Internal Revenue Service Form W-8BEN (or other applicable Form W-8;
(j) Certificates in negotiable form representing all Shareholdex" xxxxxxx xx xxch statements constitute summaries of the Selling Shareholder Shares and legal matters, documents or proceedings referred to therein, fairly present the Selling Shareholder Option Shares to be sold by the Selling Shareholder have been placed in custody under a Custody Agreement, in the form heretofore furnished to you (the "CUSTODY AGREEMENT"), duly executed and delivered by the Selling Shareholder to American Stock Transfer & Trust Company as custodian (the "CUSTODIAN");
(k) The Selling Shareholder is not subject to any order or directive of, or party to any agreement with, any regulatory agency having jurisdiction information called for with respect to him;
(l) The Shares represented by such legal matters, documents and proceedings and fairly summarize the certificates held in custody for the Selling Shareholder under the Custody Agreement are subject matters referred to the interests of the Underwriters hereunder and the arrangements made by the Selling Shareholder for such custody are to that extent irrevocable; the obligations of the Selling Shareholder hereunder shall not be terminated by operation of law, whether by the death or incapacity of the Selling Shareholder or, in the case of an estate or trust, by the death or incapacity of any executor or trustee or the termination of such estate or trust, or in the case of a partnership or corporation, by the dissolution of such partnership or corporation, or by the occurrence of any other event; if the Selling Shareholder or any such executor or trustee should die or become incapacitated, or if any such estate or trust should be terminated, or if any such partnership or corporation should be dissolved, or if any other such event should occur, before the delivery of the Shares hereunder, certificates representing the Shares shall be delivered by or on behalf of the Selling Shareholder in accordance with the terms and conditions of this Agreement and the Custody Agreement and shall be as valid as if such death, incapacity, termination, dissolution or other event had not occurred, regardless of whether or not the Custodian shall have received notice of such death, incapacity, termination, dissolution or other eventtherein.
Appears in 1 contract
Samples: Underwriting Agreement (St Joe Co)
Representations and Warranties of the Selling Shareholder. The Selling Shareholder represents, represents and warrants to and covenants, solely agrees with respect to himself and the number of Selling Shareholder Shares and the Selling Shareholder Option Shares set forth opposite his name on Schedule I hereto, to each Underwriter that:
(a) The This Agreement has been duly authorized, executed and delivered by the Selling Shareholder has valid and unencumbered title to 2,300,000 shares of Class A Common Stock of the Company, that are convertible into 2,300,000 SharesShareholder.
(b) Such Selling Shareholder will have, valid The execution and unencumbered title to the Shares on each Applicable Closing Date, to be delivered delivery by the Selling Shareholder on such Applicable Closing Date of, and full right, power and authority to enter into this Agreement and to sell, assign, transfer and deliver the Shares to be delivered performance by the Selling Shareholder on such Applicable Closing Date hereunder; and of his obligations under this Agreement will not contravene any provision of applicable law, or any agreement or other instrument binding upon the delivery of and payment for such Shares on each Applicable Closing Date hereunder, the several Underwriters will acquire valid and unencumbered title to the Shares to be delivered by the Selling Shareholder on such Applicable Closing Date.
(c) No filing withor any judgment, order or authorizationdecree of any governmental body, agency or court having jurisdiction over the Selling Shareholder, and other than the order of effectiveness issued by the Commission with respect to the Registration Statement, no consent, approval, consent, license, order, registration, qualification authorization or decree order of, or qualification with, any court or governmental authority body or agency is necessary or required for the performance by the Selling Shareholder of his obligations hereunder, in connection with the offering, issuance or sale of the Selling Shareholder Shares hereunder or the consummation of the transactions contemplated by under this Agreement, except such as has been already obtained or may be required under by the Act securities or the Rules and Regulations, state securities Blue Sky laws or the bylaws and rules of the NASD various states in connection with the purchase offer and distribution by the Underwriters sale of the Shares.
(c) The Selling Shareholder Shares and Shareholder, on the Selling Shareholder Option Closing Date, will have valid title to the Shares to be sold hereby;
(d) The Selling Shareholder has the legal right, power and all authorizations and approvals required by law to enter into the Custody Agreement (as defined in Section 4(j) hereof). This Agreement and the Custody Agreement have been duly executed and delivered by the Selling Shareholder and each such agreement is a legalthe legal right and power, valid and binding agreement of 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;.
(ed) The execution, delivery and performance of this Agreement and Upon payment for the consummation of the transactions contemplated Shares to be sold by this Agreement and in the Registration Statement (including the issuance and sale of such Selling Shareholder Shares and the Selling Shareholder Option Shares, if applicable) and compliance by the Selling Shareholder with his obligations under this Agreement and the Custody Agreement, do not and will not, whether with or without the giving of notice or lapse of time or both, conflict with or constitute a breach of, or default or Repayment Event under, or result in the creation or imposition of any lien, charge or encumbrance upon any property or assets of the Selling Shareholder pursuant to any contractthis Agreement, indenturedelivery of such Shares, mortgage, deed of trust, loan or credit agreement, note, lease or any other agreements or instrumentas directed by the Underwriter, to which 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 Underwriter (assuming that neither DTC nor 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 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 Underwriter with respect to such security entitlement; for purposes of this representation, the Selling Shareholder is a party 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 which he may be boundDTC, or to which any of the property or assets of the Selling Shareholder is subject (except for such conflicts, breaches, defaults, liens, charges or encumbrances that would not have a material adverse effect in each case on the transactions contemplated herein)Company's share registry in accordance with its certificate of incorporation, nor will such action result in any violation of any bylaws and applicable law, statute, rule, regulation, judgment, order, writ or decree, (y) DTC will be registered as a "clearing corporation" within the meaning of any government, government instrumentality or court, domestic or foreign, having jurisdiction over Section 8-102 of the Selling Shareholder or any respective properties, assets or operations;UCC and (z) appropriate entries to the account(s) of the Underwriter on the records of DTC will have been made pursuant to the UCC.
(fe) The Selling Shareholder has not taken and will not take, directly or indirectly, any action which is designed to or which has constituted might be reasonably expected to cause or result, under the Exchange Act or otherwise, in stabilization or manipulation of the price of any security of the Company to facilitate the sale or resale of the Shares;.
(g) Neither the Registration Statement, any Preliminary Prospectus, the Prospectus or any amendment or supplement thereto contains any untrue statement of a material fact or omits to state therein a material fact required to be stated therein or necessary to make the statements therein not misleading, in each case to the extent, but only to the extent, that such untrue statement or omission was made in the Registration Statement, any Preliminary Prospectus, the Prospectus or any amendment or supplement thereto in reliance upon and in conformity with written information furnished to the Company by the Selling Shareholder pertaining, as such, for use therein;
(hf) The Selling Shareholder has no reason represents and warrants to, and agrees with, the Company and the Underwriter to believe that the same effect as the representations and warranties of the Company set forth in Section 3 are not true and correct in all material respects;1 of this Agreement.
(ig) The In order to document the Underwriter's compliance with the reporting and withholding requirements of the Internal Revenue Code of 1986, as amended, with respect to the transactions herein contemplated, the Selling Shareholder will agrees to deliver to you prior to or at each Applicable on the Closing Date Date, a properly completed and executed Internal Revenue Service United States Treasury Department Form W-8BEN W-8 or W-9 (or other applicable Form W-8;
(j) Certificates form or statement specified by Treasury Department regulations in negotiable form representing all of the Selling Shareholder Shares and the Selling Shareholder Option Shares to be sold by the Selling Shareholder have been placed in custody under a Custody Agreement, in the form heretofore furnished to you (the "CUSTODY AGREEMENT"lieu thereof), duly executed and delivered by the Selling Shareholder to American Stock Transfer & Trust Company as custodian (the "CUSTODIAN");
(k) The Selling Shareholder is not subject to any order or directive of, or party to any agreement with, any regulatory agency having jurisdiction with respect to him;
(l) 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 the arrangements made by the Selling Shareholder for such custody are to that extent irrevocable; the obligations of the Selling Shareholder hereunder shall not be terminated by operation of law, whether by the death or incapacity of the Selling Shareholder or, in the case of an estate or trust, by the death or incapacity of any executor or trustee or the termination of such estate or trust, or in the case of a partnership or corporation, by the dissolution of such partnership or corporation, or by the occurrence of any other event; if the Selling Shareholder or any such executor or trustee should die or become incapacitated, or if any such estate or trust should be terminated, or if any such partnership or corporation should be dissolved, or if any other such event should occur, before the delivery of the Shares hereunder, certificates representing the Shares shall be delivered by or on behalf of the Selling Shareholder in accordance with the terms and conditions of this Agreement and the Custody Agreement and shall be as valid as if such death, incapacity, termination, dissolution or other event had not occurred, regardless of whether or not the Custodian shall have received notice of such death, incapacity, termination, dissolution or other event.
Appears in 1 contract
Representations and Warranties of the Selling Shareholder. The Selling Shareholder representshereby represents and warrants to each Underwriter on the date hereof (except as otherwise set forth herein), warrants and covenants, solely with respect shall be deemed to himself represent and warrant to each Underwriter on the Closing Date and the number of Additional Closing Date, that:
a. All consents, approvals, authorizations and orders necessary for the execution and delivery by the Selling Shareholder of this Agreement and the Custody Agreement (including the Power of Attorney provided for in such Custody Agreement) referred to in the last paragraph of this Section 7 (the "Custody Agreement"), and for the sale and delivery of the Shares to be sold by the Selling Shareholder hereunder, have been obtained; and the Selling Shareholder Option Shares set forth opposite his name on Schedule I hereto, to each Underwriter that:
(a) The Selling Shareholder has valid and unencumbered title to 2,300,000 shares of Class A Common Stock of the Company, that are convertible into 2,300,000 Shares.
(b) Such Selling Shareholder will have, valid and unencumbered title to the Shares on each Applicable Closing Date, to be delivered by the Selling Shareholder on such Applicable Closing Date and full right, power and authority to enter into this Agreement and the Custody Agreement, and to sell, assign, transfer and deliver the Shares to be delivered sold by the such Selling Shareholder on such Applicable Closing Date hereunder; and upon the delivery of and payment for such Shares on each Applicable Closing Date hereunder, the several Underwriters will acquire valid and unencumbered title to the Shares to be delivered by the Selling Shareholder on such Applicable Closing Date.
(c) No filing with, or authorization, approval, consent, license, order, registration, qualification or decree of, any court or governmental authority or agency is necessary or required for the performance by the Selling Shareholder of his obligations hereunder, in connection with the offering, issuance or sale of the Selling Shareholder Shares hereunder or the consummation of the transactions contemplated by this Agreement, except such as has been already obtained or may be required under the Act or the Rules and Regulations, state securities laws or the bylaws and rules of the NASD in connection with the purchase and distribution by the Underwriters of the Selling Shareholder Shares and the Selling Shareholder Option Shares to be sold hereby;
(d) The Selling Shareholder has the legal right, power and all authorizations and approvals required by law to enter into the Custody Agreement (as defined in Section 4(j) hereof). b. This Agreement and the Custody Agreement have been duly authorized, executed and delivered by the Selling Shareholder and each such agreement is a legal, this Agreement and the Custody Agreement constitute the valid and binding agreement agreements of the Selling Shareholder;
(e) The executionShareholder enforceable against the Selling Shareholder in accordance with their respective terms, delivery and except as may be limited by bankruptcy, insolvency, reorganization or other laws of general application relating to or affecting enforcement of creditors' rights generally or the availability of equitable remedies, regardless of whether such enforcement is considered in a proceeding in equity or at law; the performance of this Agreement and the Custody Agreement and the consummation of the transactions contemplated by this Agreement herein and therein will not result in a breach or violation of any of the Registration Statement (including the issuance and sale of such Selling Shareholder Shares and the Selling Shareholder Option Sharesterms or provisions of, if applicable) and compliance by the Selling Shareholder with his obligations under this Agreement and the Custody Agreement, do not and will not, whether with or without the giving of notice or lapse of time or both, conflict with or constitute a breach of, or default or Repayment Event under, or result in the creation or imposition of any lien, charge or encumbrance upon any property or assets of the Selling Shareholder pursuant to any contract, indenture, mortgage, deed of trust, loan or credit voting trust agreement, notenote agreement, lease or any other agreements agreement or instrument, instrument to which the Selling Shareholder is a party or by which he may be the Selling Shareholder or the Selling Shareholder's properties are bound, or to which under any of the property or assets of the Selling Shareholder is subject (except for such conflicts, breaches, defaults, liens, charges or encumbrances that would not have a material adverse effect on the transactions contemplated herein), nor will such action result in any violation of any applicable law, statute, rule, regulation, judgment, order, writ rule or decree, regulation of any government, government instrumentality court or court, domestic governmental agency or foreign, having jurisdiction over body applicable to the Selling Shareholder or the business or property of the Selling Shareholder.
c. The Selling Shareholder has, and immediately prior to the Closing Date (and the Additional Closing Date, if any) the Selling Shareholder will have, good and marketable title to the Shares to be sold by the Selling Shareholder hereunder, free and clear of all liens, encumbrances, equities, shareholder agreements, voting trusts, adverse claims or other claims of any respective propertiesnature whatsoever, assets and, upon delivery of the Shares and payment therefor pursuant hereto, good and marketable title to the Shares, free and clear of all liens, encumbrances, equities, 15 shareholder agreements, voting trusts, adverse claims or operations;other claims of any nature whatsoever (other than those arising by or through the Underwriters), will pass to the several Underwriters.
(f) d. The Selling Shareholder will not, for a period of 120 days after the commencement of the public offering of the Shares by the Underwriters, directly or indirectly, sell, offer or contract to sell, or otherwise dispose of or transfer any shares of Common Stock or rights to purchase shares of Common Stock otherwise than hereunder or with the prior written consent of Raymxxx Xxxex & Xssociates, Inc.
e. The Selling Shareholder has not taken taken, and will not take, directly or indirectly, any action which is designed to or which has constituted nor which 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;Shares or otherwise.
(g) Neither f. No consent, approval, authorization or order of, or any filing or declaration with, any court or governmental agency or body is required for the consummation by the Selling Shareholder of the transactions on his part contemplated herein or in the Custody Agreement, except such as have been obtained under the Act and such as may be required under state securities or Blue Sky laws or the by-laws and rules of the NASD in connection with the purchase and distribution by the Underwriters of the Shares to be sold by the Selling Shareholder.
g. The Selling Shareholder is familiar with the Registration Statement, the Prepricing Prospectus and the Prospectus and has no knowledge of any Preliminary Prospectusmaterial fact or condition not set forth in the Registration Statement, the Prepricing Prospectus or the Prospectus which has adversely affected, or may adversely affect, the business, properties, business prospects, condition (financial or otherwise) or results of operations of the Company, and the sale of the Shares proposed to be sold by the Selling Shareholder is not prompted by any such knowledge.
h. All information with respect to the Selling Shareholder contained in the Registration Statement, the Prepricing Prospectus and the Prospectus (as amended or supplemented, if the Company shall have filed with the Commission any amendment or supplement thereto thereto) complied and will comply in all material respects with all applicable provisions of the Act, contains any and will contain all statements required to be stated therein in accordance with the Act, and does not and will not contain an untrue statement of a material fact or omits omit to state therein a material fact required to be stated therein or necessary in order to make the statements therein not misleading.
i. To the best knowledge of such Selling Shareholder, in each case to the extent, but only to the extent, that such untrue statement or omission was made in the Registration Statement, any Preliminary Prospectus, the Prospectus or any amendment or supplement thereto in reliance upon and in conformity with written information furnished to the Company by the Selling Shareholder pertaining, as such, for use therein;
(h) The Selling Shareholder has no reason to believe that the representations and warranties of the Company set forth contained in Section 3 6 hereof are not true and correct in all material respects;correct.
(i) The Selling Shareholder will deliver to you prior to or at each Applicable Closing Date a properly completed j. Other than as permitted by the Act and executed Internal Revenue Service Form W-8BEN (or other applicable Form W-8;
(j) Certificates in negotiable form representing all of the Rules and Regulations, the Selling Shareholder Shares has not distributed and the Selling Shareholder Option Shares to be sold by the Selling Shareholder have been placed in custody under a Custody Agreement, in the form heretofore furnished to you (the "CUSTODY AGREEMENT"), duly executed and delivered by the Selling Shareholder to American Stock Transfer & Trust Company as custodian (the "CUSTODIAN");
(k) The Selling Shareholder is will not subject to distribute any order or directive of, or party to any agreement with, any regulatory agency having jurisdiction with respect to him;
(l) 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 the arrangements made by the Selling Shareholder for such custody are to that extent irrevocable; the obligations of the Selling Shareholder hereunder shall not be terminated by operation of law, whether by the death or incapacity of the Selling Shareholder or, in the case of an estate or trust, by the death or incapacity of any executor or trustee or the termination of such estate or trust, or in the case of a partnership or corporation, by the dissolution of such partnership or corporation, or by the occurrence of any other event; if the Selling Shareholder or any such executor or trustee should die or become incapacitated, or if any such estate or trust should be terminated, or if any such partnership or corporation should be dissolved, or if any other such event should occur, before the delivery of the Shares hereunder, certificates representing the Shares shall be delivered by or on behalf of the Selling Shareholder in accordance with the terms and conditions of this Agreement and the Custody Agreement and shall be as valid as if such death, incapacity, termination, dissolution or other event had not occurred, regardless of whether or not the Custodian shall have received notice of such death, incapacity, termination, dissolution or other event.Prepricing Prospectus,
Appears in 1 contract
Representations and Warranties of the Selling Shareholder. The Selling Shareholder represents, represents and warrants to and covenants, solely agrees with respect to himself and each of the number of Selling Shareholder Shares and the Selling Shareholder Option Shares set forth opposite his name on Schedule I hereto, to each Underwriter Underwriters that:
(a) The This Agreement has been duly authorized, executed and delivered by or on behalf of such Selling Shareholder has valid and unencumbered title to 2,300,000 shares of Class A Common Stock of the Company, that are convertible into 2,300,000 SharesShareholder.
(b) Such Selling Shareholder has, and on the Closing Date will have, valid and unencumbered title to 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 on each Applicable Closing Date, to be delivered sold by the such Selling Shareholder on such Applicable Closing Date free and full rightclear of all security interests, power claims, liens, equities or other encumbrances and authority the legal right and power, and all authorization and approval required by law, to enter into this Agreement and to sell, assign, transfer and deliver the Shares to be delivered sold by the such Selling Shareholder on or a security entitlement in respect of such Applicable Closing Date hereunder; and upon the delivery of and payment for such Shares on each Applicable Closing Date hereunder, the several Underwriters will acquire valid and unencumbered title to the Shares to be delivered by the Selling Shareholder on such Applicable Closing DateShares.
(c) No filing with, or authorization, approval, consent, license, order, registration, qualification or decree of, any court or governmental authority or agency is necessary or required Upon payment for the performance by the Selling Shareholder of his obligations hereunder, in connection with the offering, issuance or sale of the Selling Shareholder Shares hereunder or the consummation of the transactions contemplated by this Agreement, except such as has been already obtained or may be required under the Act or the Rules and Regulations, state securities laws or the bylaws and rules of the NASD in connection with the purchase and distribution by the Underwriters of the Selling Shareholder Shares and the Selling Shareholder Option Shares to be sold hereby;by such Selling Shareholder pursuant to this Agreement, delivery of such Shares, as directed by the Underwriters, to Cede & Co. (“Cede”) or such other nominee as may be designated by the Depository Trust Company (“DTC”), registration of such Shares in the name of Cede or such other nominee and the crediting of such Shares on the books of DTC to securities accounts of the Underwriters (assuming that neither DTC nor any such Underwriter has notice of any adverse claim (within the meaning of Section 8-105 of the 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, 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 (z) appropriate entries to the accounts of the several Underwriters on the records of DTC will have been made pursuant to the UCC.
(d) The Such Selling Shareholder has no reason to believe that the legal right, power representations and all authorizations and approvals required by law to enter into warranties of the Custody Agreement (as defined Company contained in Section 4(j) hereof). This Agreement 1 are not true and correct, is familiar with the Registration Statement, the Time of Sale Prospectus and the Custody Agreement have been duly executed Prospectus and delivered by the Selling Shareholder and each such agreement is a legalhas no knowledge of any material fact, valid and binding agreement of the Selling Shareholder;
(e) The execution, delivery and performance of this Agreement and the consummation of the transactions contemplated by this Agreement and condition or information not disclosed in the Registration Statement (including Statement, the issuance and sale Time of such Selling Shareholder Shares and Sale Prospectus or the Selling Shareholder Option Shares, if applicable) and compliance by the Selling Shareholder with his obligations under this Agreement and the Custody Agreement, do not and will not, whether with or without the giving of notice or lapse of time or both, conflict with or constitute a breach ofProspectus that has had, or default or Repayment Event undermay have, or result in the creation or imposition of any lien, charge or encumbrance upon any property or assets of the Selling Shareholder pursuant to any contract, indenture, mortgage, deed of trust, loan or credit agreement, note, lease or any other agreements or instrument, to which the Selling Shareholder is a party or by which he may be bound, or to which any of the property or assets of the Selling Shareholder is subject (except for such conflicts, breaches, defaults, liens, charges or encumbrances that would not have a material adverse effect on the transactions contemplated herein)Company and its subsidiaries, nor will such action result in any violation of any applicable law, statute, rule, regulation, judgment, order, writ or decree, of any government, government instrumentality or court, domestic or foreign, having jurisdiction over the taken as a whole. Such Selling Shareholder is not prompted by any information concerning the Company or any respective properties, assets or operations;
(f) The Selling Shareholder has not taken and will not take, directly or indirectly, any action its subsidiaries which is designed to or which has constituted stabilization or manipulation of the price of any security of the Company to facilitate the sale or resale of the Shares;
(g) Neither not set forth in the Registration Statement, any Preliminary Prospectus, the Time of Sale Prospectus or the Prospectus to sell its Shares pursuant to this Agreement.
(i) The Registration Statement, when it became effective, did not contain and, as amended or any amendment or supplement thereto contains supplemented, if applicable, will not contain any untrue statement of a material fact or omits omit to state therein 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 case 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 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 (v) 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 the representations and warranties set forth in this paragraph are limited to statements or omissions made in reliance upon information relating to such Selling Shareholder furnished to the extent, but only to the extent, that Company in writing by such untrue statement or omission was made Selling Shareholder expressly for use in the Registration Statement, any Preliminary the Time of Sale Prospectus, the Prospectus or any amendment amendments or supplement thereto in reliance upon and in conformity with written information furnished supplements thereto.
(f) (i) None of such Selling Shareholder or any of its subsidiaries, or, to the Company knowledge of such 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 and Syria).
(ii) Such 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) Such 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 such Selling Shareholder or any of its subsidiaries, or, to the knowledge of such 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) such 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; and (c) neither the Selling Shareholder pertainingnor 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 such 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 such 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.
(g) Such 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 suchamended (“ERISA”), for use therein;(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.
(h) The Selling Shareholder has no reason to believe that the representations and warranties of the Company set forth in Section 3 are not true and correct in all material respects;
(i) The Selling Shareholder will deliver to you prior to or at each Applicable Closing Date a properly completed and executed Internal Revenue Service Form W-8BEN (No stamp, documentary, issuance, registration, transfer, withholding, capital gains, income or other applicable Form W-8;
(j) Certificates in negotiable form representing all of the Selling Shareholder Shares and the Selling Shareholder Option Shares to be sold by the Selling Shareholder have been placed in custody under a Custody Agreement, in the form heretofore furnished to you (the "CUSTODY AGREEMENT"), duly executed and delivered by the Selling Shareholder to American Stock Transfer & Trust Company as custodian (the "CUSTODIAN");
(k) The Selling Shareholder is not subject to any order taxes or directive of, or party to any agreement with, any regulatory agency having jurisdiction with respect to him;
(l) The Shares represented by the certificates held in custody for the Selling Shareholder under the Custody Agreement duties are subject to the interests of the Underwriters hereunder and the arrangements made by the Selling Shareholder for such custody are to that extent irrevocable; the obligations of the Selling Shareholder hereunder shall not be terminated by operation of law, whether by the death or incapacity of the Selling Shareholder or, in the case of an estate or trust, by the death or incapacity of any executor or trustee or the termination of such estate or trust, or in the case of a partnership or corporation, by the dissolution of such partnership or corporation, or by the occurrence of any other event; if the Selling Shareholder or any such executor or trustee should die or become incapacitated, or if any such estate or trust should be terminated, or if any such partnership or corporation should be dissolved, or if any other such event should occur, before the delivery of the Shares hereunder, certificates representing the Shares shall be delivered payable by or on behalf of the Underwriters, the Company or any of its subsidiaries in the United Kingdom 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.
(i) Such Selling Shareholder has the power to submit, and pursuant to Section 15(a) has, to the extent permitted by law, legally, validly, effectively and irrevocably submitted to the jurisdiction of the Specified Courts (as defined in accordance with Section 15(a)), and has the terms power to designate, appoint and conditions empower, and pursuant to Section 15(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 and in any of the Custody Agreement and shall be as valid as if such death, incapacity, termination, dissolution or other event had not occurred, regardless of whether or not the Custodian shall have received notice of such death, incapacity, termination, dissolution or other eventSpecified Courts.
Appears in 1 contract
Representations and Warranties of the Selling Shareholder. The Selling Shareholder represents, represents and warrants to and covenants, solely agrees with respect to himself and the number of Selling Shareholder Shares and the Selling Shareholder Option Shares set forth opposite his name on Schedule I hereto, to each Underwriter that:
(a) The This Agreement has been duly authorized, executed and delivered by the Selling Shareholder has valid and unencumbered title to 2,300,000 shares of Class A Common Stock of the Company, that are convertible into 2,300,000 SharesShareholder.
(b) Such 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 articles of formations or limited liability company agreement of the Selling 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, 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, 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.
(c) The Selling Shareholder has, and on the Closing Date will have, valid and unencumbered title to 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 on each Applicable Closing Date, to be delivered sold by the Selling Shareholder on such Applicable Closing Date free and full rightclear of all security interests, power claims, liens, equities or other encumbrances and authority the legal right and power, and all authorization and approval required by law, to enter into this Agreement and to sell, assign, transfer and deliver the Shares to be delivered sold by the Selling Shareholder on such Applicable Closing Date hereunder; and upon or a security entitlement in respect of the delivery of and Shares.
(d) Upon payment for such Shares on each Applicable Closing Date hereunder, the several Underwriters will acquire valid and unencumbered title to the Shares to be delivered sold by the Selling Shareholder pursuant to this Agreement, delivery of the Shares, as directed by the Underwriter, to Cede & Co. (“Cede”) or such other nominee as may be designated by the Depository Trust Company (“DTC”), registration of the Shares in the name of Cede or such other nominee and the crediting of the Shares on the books of DTC to securities account of the Underwriter (assuming that neither DTC nor 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 the Shares), (A) DTC shall be a “protected purchaser” of the Shares within the meaning of Section 8‑303 of the UCC, (B) under Section 8‑501 of the UCC, the Underwriter will acquire a valid security entitlement in respect of the Shares and (C) no action based on any “adverse claim,” within the meaning of Section 8‑102 of the UCC, to the Shares may be asserted against the Underwriter with respect to such Applicable Closing Datesecurity entitlement; for purposes of this representation, the Selling Shareholder may assume that when such payment, delivery and crediting occur, (x) the 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 account of the Underwriter on the records of DTC will have been made pursuant to the UCC.
(c) No filing with, or authorization, approval, consent, license, order, registration, qualification or decree of, any court or governmental authority or agency is necessary or required for the performance by the Selling Shareholder of his obligations hereunder, in connection with the offering, issuance or sale of the Selling Shareholder Shares hereunder or the consummation of the transactions contemplated by this Agreement, except such as has been already obtained or may be required under the Act or the Rules and Regulations, state securities laws or the bylaws and rules of the NASD in connection with the purchase and distribution by the Underwriters of the Selling Shareholder Shares and the Selling Shareholder Option Shares to be sold hereby;
(de) The Selling Shareholder has no reason to believe that the legal right, power representations and all authorizations and approvals required by law to enter into warranties of the Custody Agreement (as defined Company contained in Section 4(j) hereof). This Agreement 1 are not true and correct, is familiar with the Registration Statement, the Time of Sale Prospectus and the Custody Agreement have been duly executed Prospectus and delivered by the Selling Shareholder and each such agreement is a legalhas no knowledge of any material fact, valid and binding agreement of the Selling Shareholder;
(e) The execution, delivery and performance of this Agreement and the consummation of the transactions contemplated by this Agreement and condition or information not disclosed in the Registration Statement (including Time of Sale Prospectus or the issuance and sale of such Selling Shareholder Shares and the Selling Shareholder Option Shares, if applicable) and compliance by the Selling Shareholder with his obligations under this Agreement and the Custody Agreement, do not and will not, whether with or without the giving of notice or lapse of time or both, conflict with or constitute a breach ofProspectus that has had, or default or Repayment Event undermay have, or result in the creation or imposition of any lien, charge or encumbrance upon any property or assets of the Selling Shareholder pursuant to any contract, indenture, mortgage, deed of trust, loan or credit agreement, note, lease or any other agreements or instrument, to which the Selling Shareholder is a party or by which he may be bound, or to which any of the property or assets of the Selling Shareholder is subject (except for such conflicts, breaches, defaults, liens, charges or encumbrances that would not have a material adverse effect on the transactions contemplated herein)Company and its subsidiaries, nor will such action result in any violation of any applicable law, statute, rule, regulation, judgment, order, writ or decree, of any government, government instrumentality or court, domestic or foreign, having jurisdiction over the taken as a whole. The Selling Shareholder is not prompted by any information concerning the Company or any respective properties, assets or operations;its subsidiaries that is not set forth in the Time of Sale Prospectus to sell its Shares pursuant to this Agreement.
(f) The Selling Shareholder has not taken (i) 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 not take, directly or indirectly, any action which is designed to or which has constituted stabilization or manipulation comply when so filed in all material respects with the Exchange Act and the applicable rules and regulations of the price of any security of the Company to facilitate the sale or resale of the Shares;
Commission thereunder, (gii) Neither the Registration Statement, any Preliminary Prospectuswhen it became effective, the Prospectus did not contain and, as amended or any amendment or supplement thereto contains supplemented, if applicable, will not contain any untrue statement of a material fact or omits omit to state therein a material fact required to be stated therein or necessary to make the statements therein not misleading, (iii) 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 case sale of the Shares in connection with the offering when the Prospectus is not yet available to prospective purchasers and at the extentClosing Date (as defined in Section 5), but only to the extentTime of Sale Prospectus, that such as then amended or supplemented by the Company, if applicable, will not, contain any untrue statement of a material fact or omission was made 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 avai lable 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 (vi) 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, except that the representations and warranties set forth in this paragraph 2(f) do not apply to statements or omissions in the Registration Statement, any Preliminary Prospectus, Statement or the Prospectus or any amendment or supplement thereto in reliance based upon and in conformity with written information relating to the Underwriter furnished to the Company in writing by the Underwriter through you expressly for use therein.
(i) Neither the Selling Shareholder pertainingnor 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 suchunderwriter, for use therein;advisor, investor or otherwise).
(iii) For the past 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) Neither the Selling Shareholder nor 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 best knowledge of the Selling Shareholder, threatened.
(h) The Selling Shareholder has no reason to believe represents and warrants that the representations and warranties of the Company set forth in Section 3 are it is not true and correct in all material respects;
(i) The Selling Shareholder will deliver an employee benefit plan subject to you prior Title I of the Employee Retirement Income Security Act of 1974, as amended (“ERISA”), (ii) a plan or account subject to or at each Applicable Closing Date a properly completed and executed Section 4975 of the Internal Revenue Service Form W-8BEN Code of 1986, as amended or (iii) an entity deemed to hold “plan assets” of any such plan or other applicable Form W-8;
(jaccount under Section 3(42) Certificates in negotiable form representing all of the Selling Shareholder Shares and the Selling Shareholder Option Shares to be sold by the Selling Shareholder have been placed in custody under a Custody AgreementERISA, in the form heretofore furnished to you (the "CUSTODY AGREEMENT"), duly executed and delivered by the Selling Shareholder to American Stock Transfer & Trust Company as custodian (the "CUSTODIAN");
(k) The Selling Shareholder is not subject to any order or directive of29 C.F.R. 2510.3-101, or party to any agreement with, any regulatory agency having jurisdiction with respect to him;
(l) 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 the arrangements made by the Selling Shareholder for such custody are to that extent irrevocable; the obligations of the Selling Shareholder hereunder shall not be terminated by operation of law, whether by the death or incapacity of the Selling Shareholder or, in the case of an estate or trust, by the death or incapacity of any executor or trustee or the termination of such estate or trust, or in the case of a partnership or corporation, by the dissolution of such partnership or corporation, or by the occurrence of any other event; if the Selling Shareholder or any such executor or trustee should die or become incapacitated, or if any such estate or trust should be terminated, or if any such partnership or corporation should be dissolved, or if any other such event should occur, before the delivery of the Shares hereunder, certificates representing the Shares shall be delivered by or on behalf of the Selling Shareholder in accordance with the terms and conditions of this Agreement and the Custody Agreement and shall be as valid as if such death, incapacity, termination, dissolution or other event had not occurred, regardless of whether or not the Custodian shall have received notice of such death, incapacity, termination, dissolution or other eventotherwise.
Appears in 1 contract
Representations and Warranties of the Selling Shareholder. The Selling Shareholder representshereby represents and warrants to each Underwriter on the date hereof (except as otherwise set forth herein), warrants and covenants, solely with respect shall be deemed to himself represent and warrant to each Underwriter on the Closing Date and the number of Additional Closing Date, that:
a. All consents, approvals, authorizations and orders necessary for the execution and delivery by the Selling Shareholder of this Agreement and the Power of Attorney (the "Power of Attorney") referred to in the last paragraph of this Section 7, and for the sale and delivery of the Firm Shares to be sold by the Selling Shareholder hereunder, have been obtained; and the Selling Shareholder Option Shares set forth opposite his name on Schedule I hereto, to each Underwriter that:
(a) The Selling Shareholder has valid and unencumbered title to 2,300,000 shares of Class A Common Stock of the Company, that are convertible into 2,300,000 Shares.
(b) Such Selling Shareholder will have, valid and unencumbered title to the Shares on each Applicable Closing Date, to be delivered by the Selling Shareholder on such Applicable Closing Date and full right, power and authority to enter into this Agreement and the Power of Attorney, and to sell, assign, transfer and deliver the Firm Shares to be delivered sold by the Selling Shareholder on such Applicable Closing Date hereunder; and upon the delivery of and payment for such Shares on each Applicable Closing Date hereunder, the several Underwriters will acquire valid and unencumbered title to the Shares to be delivered by the Selling Shareholder on such Applicable Closing Date.
(c) No filing with, or authorization, approval, consent, license, order, registration, qualification or decree of, any court or governmental authority or agency is necessary or required for the performance by the Selling Shareholder of his obligations hereunder, in connection with the offering, issuance or sale of the Selling Shareholder Shares hereunder or the consummation of the transactions contemplated by this Agreement, except such as has been already obtained or may be required under the Act or the Rules and Regulations, state securities laws or the bylaws and rules of the NASD in connection with the purchase and distribution by the Underwriters of the Selling Shareholder Shares and the Selling Shareholder Option Shares to be sold hereby;
(d) The Selling Shareholder has the legal right, power and all authorizations and approvals required by law to enter into the Custody Agreement (as defined in Section 4(j) hereof). b. This Agreement and the Custody Agreement Power of Attorney have been duly authorized, executed and delivered by the Selling Shareholder and each such agreement is a legal, this Agreement and the Power of Attorney constitute the valid and binding agreement agreements of the Selling Shareholder;
(e) The executionShareholder enforceable against the Selling Shareholder in accordance with their respective terms, delivery except to the extent that the enforceability of the indemnification and contribution provisions of Section 9 hereof may be limited by securities laws or by public policy considerations as expressed in such laws as construed by courts of competent jurisdiction, and except as enforceability may be limited by bankruptcy, insolvency, reorganization or other laws of general application relating to or affecting enforcement of creditors' rights generally or the availability of equitable remedies, regardless of whether such enforcement is considered in a proceeding in equity or at law; the performance of this Agreement and the Power of Attorney and the consummation of the transactions contemplated by this Agreement herein and therein will not result in a breach or violation of any of the Registration Statement (including the issuance and sale of such Selling Shareholder Shares and the Selling Shareholder Option Sharesterms or provisions of, if applicable) and compliance by the Selling Shareholder with his obligations under this Agreement and the Custody Agreement, do not and will not, whether with or without the giving of notice or lapse of time or both, conflict with or constitute a breach of, or default or Repayment Event under, or result in the creation or imposition of any lien, charge or encumbrance upon any property or assets of the Selling Shareholder pursuant to any contractstatute, indenture, mortgage, deed of trust, loan or credit agreement, note, lease or any other agreements or instrument, to which the Selling Shareholder is a party or by which he may be bound, or to which any of the property or assets of the Selling Shareholder is subject (except for such conflicts, breaches, defaults, liens, charges or encumbrances that would not have a material adverse effect on the transactions contemplated herein), nor will such action result in any violation of any applicable law, statute, rule, regulation, judgment, order, writ or decree, of any government, government instrumentality or court, domestic or foreign, having jurisdiction over the Selling Shareholder or any respective properties, assets or operations;
(f) The Selling Shareholder has not taken and will not take, directly or indirectly, any action which is designed to or which has constituted stabilization or manipulation of the price of any security of the Company to facilitate the sale or resale of the Shares;
(g) Neither the Registration Statement, any Preliminary Prospectus, the Prospectus or any amendment or supplement thereto contains any untrue statement of a material fact or omits to state therein a material fact required to be stated therein or necessary to make the statements therein not misleading, in each case to the extent, but only to the extent, that such untrue statement or omission was made in the Registration Statement, any Preliminary Prospectus, the Prospectus or any amendment or supplement thereto in reliance upon and in conformity with written information furnished to the Company by the Selling Shareholder pertaining, as such, for use therein;
(h) The Selling Shareholder has no reason to believe that the representations and warranties of the Company set forth in Section 3 are not true and correct in all material respects;
(i) The Selling Shareholder will deliver to you prior to or at each Applicable Closing Date a properly completed and executed Internal Revenue Service Form W-8BEN (or other applicable Form W-8;
(j) Certificates in negotiable form representing all of the Selling Shareholder Shares and the Selling Shareholder Option Shares to be sold by the Selling Shareholder have been placed in custody under a Custody Agreement, in the form heretofore furnished to you (the "CUSTODY AGREEMENT"), duly executed and delivered by the Selling Shareholder to American Stock Transfer & Trust Company as custodian (the "CUSTODIAN");
(k) The Selling Shareholder is not subject to any order or directive of, or party to any agreement with, any regulatory agency having jurisdiction with respect to him;
(l) 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 the arrangements made by the Selling Shareholder for such custody are to that extent irrevocable; the obligations of the Selling Shareholder hereunder shall not be terminated by operation of law, whether by the death or incapacity of the Selling Shareholder or, in the case of an estate or voting trust, by the death or incapacity of any executor or trustee or the termination of such estate or trust, or in the case of a partnership or corporation, by the dissolution of such partnership or corporation, or by the occurrence of any other event; if the Selling Shareholder or any such executor or trustee should die or become incapacitated, or if any such estate or trust should be terminated, or if any such partnership or corporation should be dissolved, or if any other such event should occur, before the delivery of the Shares hereunder, certificates representing the Shares shall be delivered by or on behalf of the Selling Shareholder in accordance with the terms and conditions of this Agreement and the Custody Agreement and shall be as valid as if such death, incapacity, termination, dissolution or other event had not occurred, regardless of whether or not the Custodian shall have received notice of such death, incapacity, termination, dissolution or other event.
Appears in 1 contract
Samples: Underwriting Agreement (Inspire Insurance Solutions Inc)
Representations and Warranties of the Selling Shareholder. The Such Selling Shareholder represents, represents and warrants to and covenants, solely agrees with respect to himself and each of the number of Selling Shareholder Shares and the Selling Shareholder Option Shares set forth opposite his name on Schedule I hereto, to each Underwriter Underwriters that:
(a) The This Agreement has been duly authorized, executed and delivered by or on behalf of such Selling Shareholder has valid and unencumbered title to 2,300,000 shares of Class A Common Stock of the Company, that are convertible into 2,300,000 SharesShareholder.
(b) Such Selling Shareholder has, and on the Closing Date will have, valid and unencumbered title to 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 on each Applicable Closing Date, to be delivered sold by the such Selling Shareholder on such Applicable Closing Date free and full rightclear of all security interests, power claims, liens, equities or other encumbrances and authority the legal right and power, and all authorization and approval required by law, to enter into this Agreement and to sell, assign, transfer and deliver the Shares to be delivered sold by the such Selling Shareholder on or a security entitlement in respect of such Applicable Closing Date hereunder; and upon the delivery of and payment for such Shares on each Applicable Closing Date hereunder, the several Underwriters will acquire valid and unencumbered title to the Shares to be delivered by the Selling Shareholder on such Applicable Closing DateShares.
(c) No filing with, or authorization, approval, consent, license, order, registration, qualification or decree of, any court or governmental authority or agency is necessary or required Upon payment for the performance by the Selling Shareholder of his obligations hereunder, in connection with the offering, issuance or sale of the Selling Shareholder Shares hereunder or the consummation of the transactions contemplated by this Agreement, except such as has been already obtained or may be required under the Act or the Rules and Regulations, state securities laws or the bylaws and rules of the NASD in connection with the purchase and distribution by the Underwriters of the Selling Shareholder Shares and the Selling Shareholder Option Shares to be sold hereby;by such Selling Shareholder pursuant to this Agreement, delivery of such Shares, as directed by the Underwriters, to Cede & Co. (“Cede”) or such other nominee as may be designated by the Depository Trust Company (“DTC”), registration of such Shares in the name of Cede or such other nominee and the crediting of such Shares on the books of DTC to securities accounts of the Underwriters (assuming that neither DTC nor any such Underwriter has notice of any adverse claim (within the meaning of Section 8-105 of the UCC) to such Shares), (A) DTC shall be a “protected purchaser” of such Shares within the meaning of Section 8-303 of the UCC, (B) under Section 8-501 of the UCC, the Underwriters will acquire a valid security entitlement in respect of such Shares and (C) no action based on any “adverse claim”, within the meaning of Section 8-102 of the UCC, to such Shares may be asserted against the Underwriters with respect to such security entitlement; for purposes of this representation, such Selling Shareholder may assume that when such payment, delivery and crediting occur, (x) such Shares will have been registered in the name of Cede or another nominee designated by DTC, in each case on the Company’s share registry in accordance with its 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.
(d) The Such Selling Shareholder has no reason to believe that the legal right, power representations and all authorizations and approvals required by law to enter into warranties of the Custody Agreement (as defined Company contained in Section 4(j) hereof). This Agreement 1 or of the Trust contained in Section 2 are not true and correct, is familiar with the Registration Statement, the Time of Sale Prospectus and the Custody Agreement have been duly executed Prospectus and delivered by the Selling Shareholder and each such agreement is a legalhas no knowledge of any material fact, valid and binding agreement of the Selling Shareholder;
(e) The execution, delivery and performance of this Agreement and the consummation of the transactions contemplated by this Agreement and condition or information not disclosed in the Registration Statement (including Time of Sale Prospectus or the issuance and sale of such Selling Shareholder Shares and the Selling Shareholder Option Shares, if applicable) and compliance by the Selling Shareholder with his obligations under this Agreement and the Custody Agreement, do not and will not, whether with or without the giving of notice or lapse of time or both, conflict with or constitute a breach of, or default or Repayment Event under, or result in the creation or imposition of any lien, charge or encumbrance upon any property or assets of the Selling Shareholder pursuant to any contract, indenture, mortgage, deed of trust, loan or credit agreement, note, lease or any other agreements or instrument, to which the Selling Shareholder is a party or by which he may be bound, or to which any of the property or assets of the Selling Shareholder is subject (except for such conflicts, breaches, defaults, liens, charges or encumbrances Prospectus that would not have has had a material adverse effect on the transactions contemplated herein)Company and the Businesses, nor will such action result in any violation of any applicable law, statute, rule, regulation, judgment, order, writ or decree, of any government, government instrumentality or court, domestic or foreign, having jurisdiction over the taken as a whole. Such Selling Shareholder is not prompted by any information concerning the Company or any respective properties, assets or operations;the Businesses which is not set forth in the Time of Sale Prospectus to sell its Shares pursuant to this Agreement.
(fe) The Selling Shareholder has not taken and will not take, directly or indirectly, any action which is designed to or which has constituted stabilization or manipulation (i) Each part of the price of any security of the Company to facilitate the sale or resale of the Shares;
(g) Neither the Registration Statement, any Preliminary Prospectuswhen such part became effective, the Prospectus did not contain and, as amended or any amendment or supplement thereto contains supplemented, if applicable, will not contain any untrue statement of a material fact or omits omit to state therein 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 each case connection with the offering when the Prospectus is not yet available to prospective purchasers and at the extentClosing Date (as defined in Section 6), but only to the extentTime of Sale Prospectus, that such as then amended or supplemented by the Company, if applicable, will not, contain any untrue statement of a material fact or omission was made 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; except that the representations and warranties and any agreements set forth in this paragraph 3(e) do not apply to statements or omissions in the Registration Statement, the Time of Sale Prospectus or the Prospectus, or any Preliminary amendments or supplements thereto, based upon information relating to any Underwriter furnished to the Company in writing by such Underwriter through you expressly for use therein; and provided that the representations and warranties and any agreements set forth in this paragraph 3(e) are limited to statements or omissions made in reliance upon information relating to such Selling Shareholder furnished to the Company in writing by such Selling Shareholder expressly for use in the Registration Statement, the Time of Sale Prospectus, the Prospectus or any amendment amendments or supplement thereto in reliance upon and in conformity with written information furnished to the Company by the Selling Shareholder pertaining, as such, for use therein;
(h) The Selling Shareholder has no reason to believe that the representations and warranties of the Company set forth in Section 3 are not true and correct in all material respects;
(i) The Selling Shareholder will deliver to you prior to or at each Applicable Closing Date a properly completed and executed Internal Revenue Service Form W-8BEN (or other applicable Form W-8;
(j) Certificates in negotiable form representing all of the Selling Shareholder Shares and the Selling Shareholder Option Shares to be sold by the Selling Shareholder have been placed in custody under a Custody Agreement, in the form heretofore furnished to you (the "CUSTODY AGREEMENT"), duly executed and delivered by the Selling Shareholder to American Stock Transfer & Trust Company as custodian (the "CUSTODIAN");
(k) The Selling Shareholder is not subject to any order or directive of, or party to any agreement with, any regulatory agency having jurisdiction with respect to him;
(l) 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 the arrangements made by the Selling Shareholder for such custody are to that extent irrevocable; the obligations of the Selling Shareholder hereunder shall not be terminated by operation of law, whether by the death or incapacity of the Selling Shareholder or, in the case of an estate or trust, by the death or incapacity of any executor or trustee or the termination of such estate or trust, or in the case of a partnership or corporation, by the dissolution of such partnership or corporation, or by the occurrence of any other event; if the Selling Shareholder or any such executor or trustee should die or become incapacitated, or if any such estate or trust should be terminated, or if any such partnership or corporation should be dissolved, or if any other such event should occur, before the delivery of the Shares hereunder, certificates representing the Shares shall be delivered by or on behalf of the Selling Shareholder in accordance with the terms and conditions of this Agreement and the Custody Agreement and shall be as valid as if such death, incapacity, termination, dissolution or other event had not occurred, regardless of whether or not the Custodian shall have received notice of such death, incapacity, termination, dissolution or other eventsupplements thereto.
Appears in 1 contract
Samples: Underwriting Agreement (Compass Diversified Holdings)
Representations and Warranties of the Selling Shareholder. The Selling Shareholder represents, represents and warrants to and covenants, solely agrees with respect to himself and each of the number of Selling Shareholder Shares and the Selling Shareholder Option Shares set forth opposite his name on Schedule I hereto, to each Underwriter Underwriters that:
(a) The Selling Shareholder This Agreement has valid been duly authorized, executed and unencumbered title to 2,300,000 shares of Class A Common Stock delivered by or on behalf of the Company, that are convertible into 2,300,000 SharesSelling Shareholder.
(b) Such 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 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, 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, 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.
(c) The Selling Shareholder will have, valid and unencumbered title to on the Shares on each Applicable Closing Date, 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 delivered sold by the Selling Shareholder on such Applicable Closing Date free and full rightclear of all security interests, power claims, liens, equities or other encumbrances and authority the legal right and power, and all authorization and approval required by law, to enter into this Agreement and to sell, assign, transfer and deliver the Shares to be delivered sold by the Selling Shareholder on or a security entitlement in respect of such Applicable Closing Date hereunder; and upon the delivery of and Shares.
(d) Upon payment for such Shares on each Applicable Closing Date hereunder, the several Underwriters will acquire valid and unencumbered title to the Shares to be delivered 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 Applicable Closing Date.
Underwriter has notice of any adverse claim (cwithin the meaning of Section 8-105 of the New York Uniform Commercial Code (the “UCC”)) No filing withto such Shares), or authorization(A) DTC shall be a “protected purchaser” of such Shares within the meaning of Section 8-303 of the UCC, approval(B) under Section 8-501 of the UCC, consentthe Underwriters will acquire a valid security entitlement in respect of such Shares and (C) no action based on any “adverse claim”, licensewithin the meaning of Section 8-102 of the UCC, orderto such Shares may be asserted against the Underwriters with respect to such security entitlement; for purposes of this representation, registration, qualification or decree of, any court or governmental authority or agency is necessary or required for the performance by the Selling Shareholder may assume that when such payment, delivery and crediting occur, (x) such Shares will have been registered in the name of his obligations hereunderCede or another nominee designated by DTC, in connection 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 offering, issuance or sale meaning of Section 8-102 of the Selling Shareholder Shares hereunder or UCC and (z) appropriate entries to the consummation accounts of the transactions contemplated by this Agreement, except such as has several Underwriters on the records of DTC will have been already obtained or may be required under made pursuant to the Act or the Rules and Regulations, state securities laws or the bylaws and rules of the NASD in connection with the purchase and distribution by the Underwriters of the Selling Shareholder Shares and the Selling Shareholder Option Shares to be sold hereby;UCC. |US-DOCS\140511620.6||
(de) The Selling Shareholder has no reason to believe that the legal right, power representations and all authorizations and approvals required by law to enter into warranties of the Custody Agreement (as defined Company contained in Section 4(j) hereof). This Agreement 1 are not true and correct, is familiar with the Registration Statement, the Time of Sale Prospectus and the Custody Agreement have been duly executed Prospectus and delivered by the Selling Shareholder and each such agreement is a legalhas no knowledge of any material fact, valid and binding agreement of the Selling Shareholder;
(e) The execution, delivery and performance of this Agreement and the consummation of the transactions contemplated by this Agreement and condition or information not disclosed in the Registration Statement (including Time of Sale Prospectus or the issuance and sale of such Selling Shareholder Shares and the Selling Shareholder Option Shares, if applicable) and compliance by the Selling Shareholder with his obligations under this Agreement and the Custody Agreement, do not and will not, whether with or without the giving of notice or lapse of time or both, conflict with or constitute a breach ofProspectus that has had, or default or Repayment Event undermay have, or result in the creation or imposition of any lien, charge or encumbrance upon any property or assets of the Selling Shareholder pursuant to any contract, indenture, mortgage, deed of trust, loan or credit agreement, note, lease or any other agreements or instrument, to which the Selling Shareholder is a party or by which he may be bound, or to which any of the property or assets of the Selling Shareholder is subject (except for such conflicts, breaches, defaults, liens, charges or encumbrances that would not have a material adverse effect on the transactions contemplated herein)Company and its subsidiaries, nor will such action result in any violation of any applicable law, statute, rule, regulation, judgment, order, writ or decree, of any government, government instrumentality or court, domestic or foreign, having jurisdiction over the taken as a whole. The Selling Shareholder is not prompted by any information concerning the Company or any respective properties, assets or operations;its subsidiaries which is not set forth in the Time of Sale Prospectus to sell its Shares pursuant to this Agreement.
(f) The Selling Shareholder has not taken and will not take, directly or indirectly, any action which is designed to or which has constituted stabilization or manipulation of the price of any security of the Company to facilitate the sale or resale of the Shares;
(gi) Neither the Registration Statement, any Preliminary Prospectuswhen it became effective, the Prospectus did not contain and, as amended or any amendment or supplement thereto contains supplemented, if applicable, will not contain any untrue statement of a material fact or omits omit to state therein 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 case 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 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 (v) 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 the representations and warranties set forth in this paragraph 2(g) are limited to statements or omissions made in reliance upon information relating to the extent, but only Selling Shareholder furnished to the extent, that such untrue statement or omission was made Company in writing by the Selling Shareholder expressly for use in the Registration Statement, any Preliminary the Time of Sale Prospectus, the Prospectus or any amendment amendments or supplement thereto in reliance upon and in conformity with written information furnished to the Company by the Selling Shareholder pertaining, as such, for use therein;supplements thereto.
(hg) (i) The Selling Shareholder has no reason to believe is not:
(A) the subject of any Sanctions, or
(B) located, organized or resident in a country or territory that is the representations subject of Sanctions (including, without limitation, the Crimea Region of Ukraine, the so-called Donetsk People’s Republic, the so-called Luhansk People’s Republic, and warranties the non-government controlled areas of the Company set forth in Section 3 are not true Kherson and correct in all material respects;Zaporizhzhia regions of Ukraine, Cuba, Iran, Syria, and North Korea).
(i) The Selling Shareholder will deliver not, directly or indirectly, use the proceeds of the offering, or lend, contribute or otherwise make available such proceeds to you prior to or at each Applicable Closing Date a properly completed and executed Internal Revenue Service Form W-8BEN (any subsidiary, joint venture partner or other applicable Form W-8;Person:
(jA) Certificates to fund or facilitate any activities or business of or with any Person or in negotiable form representing all 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). 15 |US-DOCS\140511620.6||
(ii) For the past 5 years, the Selling Shareholder Shares 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 Selling Shareholder Option Shares to be sold by time of the Selling Shareholder have been placed in custody under a Custody Agreement, in dealing or transaction is or was the form heretofore furnished to you (the "CUSTODY AGREEMENT"), duly executed and delivered by the Selling Shareholder to American Stock Transfer & Trust Company as custodian (the "CUSTODIAN");subject of Sanctions.
(ka) The Selling Shareholder is has not subject 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 or directive ofto influence official action, or party to any agreement withperson in violation of any applicable anti-corruption laws; and (b) the Selling Shareholder will not 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 regulatory agency having jurisdiction person in violation of any applicable anti-corruption laws.
(iv) the Selling Shareholder is 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 with respect to him;
(l) The Shares represented by the certificates held in custody for the Selling Shareholder under the Custody Agreement are subject Anti-Money Laundering Laws is pending or, to the interests of the Underwriters hereunder and the arrangements made by the Selling Shareholder for such custody are to that extent irrevocable; the obligations best knowledge of the Selling Shareholder, threatened.
(h) The Selling Shareholder hereunder shall represents and warrants that it is not be terminated by operation of law, whether by the death or incapacity (i) an employee benefit plan subject to Title I of the Selling Shareholder orEmployee Retirement Income Security Act of 1974, in as amended (“ERISA”), (ii) a plan or account subject to Section 4975 of the case Internal Revenue Code of 1986, as amended or (iii) an estate or trust, by the death or incapacity entity deemed to hold “plan assets” of any executor such plan or trustee or the termination account under Section 3(42) of such estate or trustERISA, 29 C.F.R. 2510.3-101, or in the case of a partnership or corporation, by the dissolution of such partnership or corporation, or by the occurrence of any other event; if the Selling Shareholder or any such executor or trustee should die or become incapacitated, or if any such estate or trust should be terminated, or if any such partnership or corporation should be dissolved, or if any other such event should occur, before the delivery of the Shares hereunder, certificates representing the Shares shall be delivered by or on behalf of the Selling Shareholder in accordance with the terms and conditions of this Agreement and the Custody Agreement and shall be as valid as if such death, incapacity, termination, dissolution or other event had not occurred, regardless of whether or not the Custodian shall have received notice of such death, incapacity, termination, dissolution or other eventotherwise.
Appears in 1 contract
Representations and Warranties of the Selling Shareholder. The Selling Shareholder represents, represents and warrants to and covenants, solely agrees with respect to himself and each of the number of Selling Shareholder Shares and the Selling Shareholder Option Shares set forth opposite his name on Schedule I hereto, to each Underwriter Underwriters that:
(a) The Selling Shareholder This Agreement has valid been duly authorized, executed and unencumbered title to 2,300,000 shares of Class A Common Stock delivered by or on behalf of the Company, that are convertible into 2,300,000 SharesSelling Shareholder.
(b) Such Selling Shareholder will have, valid The execution and unencumbered title to the Shares on each Applicable Closing Date, to be delivered delivery by the Selling Shareholder on such Applicable Closing Date of, and full rightthe performance by the Selling Shareholder of its obligations under, power this Agreement, the Custody Agreement signed by the Selling Shareholder and authority American Stock Transfer & Trust Company, LLC, as Custodian, relating to enter into this Agreement and to sell, assign, transfer and deliver the deposit of the Shares to be delivered sold by the Selling Shareholder on such Applicable Closing Date hereunder; (the “Custody Agreement”) and upon the delivery Power of and payment for such Shares on each Applicable Closing Date hereunder, Attorney appointing certain individuals as the several Underwriters will acquire valid and unencumbered title Selling Shareholder’s attorneys-in-fact to the Shares extent set forth therein, relating to be delivered 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 on such Applicable Closing Date.
(cif the Selling Shareholder is a corporation) No filing withor the limited partnership agreement or certificate of limited partnership (if the Selling Shareholder is a limited partnership), or authorizationany 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, and no consent, approval, consent, license, order, registration, qualification authorization or decree order of, or qualification with, any court or governmental authority body or agency is necessary or required for the performance by the Selling Shareholder of his its obligations hereunderunder 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 offering, issuance or offer and sale of the Shares.
(c) The Selling Shareholder Shares hereunder has, and on the Closing Date will have, valid title to, or a valid “security entitlement” within the consummation meaning of Section 8-501 of the transactions contemplated by this AgreementNew York Uniform Commercial Code in respect of, except such as has been already obtained or may be required under the Act or the Rules and Regulations, state securities laws or the bylaws and rules of the NASD in connection with the purchase and distribution by the Underwriters of the Selling Shareholder Shares and the Selling Shareholder Option Shares to be sold hereby;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) The Selling Shareholder has the legal right, power and all authorizations and approvals required by law to enter into the Custody Agreement (as defined in Section 4(j) hereof). This Agreement and the Custody Agreement Power of Attorney have been duly authorized, executed and delivered by the Selling Shareholder and each such agreement is a legal, are valid and binding agreement agreements of the Selling Shareholder;.
(e) The execution, delivery and performance of this Agreement and Upon payment for the consummation of the transactions contemplated Shares to be sold by this Agreement and in the Registration Statement (including the issuance and sale of such Selling Shareholder Shares and the Selling Shareholder Option Shares, if applicable) and compliance by the Selling Shareholder with his obligations under this Agreement and the Custody Agreement, do not and will not, whether with or without the giving of notice or lapse of time or both, conflict with or constitute a breach of, or default or Repayment Event under, or result in the creation or imposition of any lien, charge or encumbrance upon any property or assets of the Selling Shareholder pursuant to any contractthis Agreement, indenturedelivery of such Shares, mortgage, deed of trust, loan or credit agreement, note, lease or any other agreements or instrumentas directed by the Underwriters, to which 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 is a party 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 which he may be boundDTC, or to which any of the property or assets of the Selling Shareholder is subject (except for such conflicts, breaches, defaults, liens, charges or encumbrances that would not have a material adverse effect in each case on the transactions contemplated herein)Company’s share registry in accordance with its certificate of incorporation, nor will such action result in any violation of any bylaws and applicable law, statute, rule, regulation, judgment, order, writ or decree, (y) DTC will be registered as a “clearing corporation” within the meaning of any government, government instrumentality or court, domestic or foreign, having jurisdiction over Section 8-102 of the Selling Shareholder or any respective properties, assets or operations;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 not taken no reason to believe that the representations and will not take, directly or indirectly, any action which is designed to or which has constituted stabilization or manipulation of the price of any security warranties of the Company contained in Section 2 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 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 Time of Sale Prospectus to facilitate the sale or resale of the Shares;sell its Shares pursuant to this Agreement.
(g) Neither (i) the Registration Statement, any Preliminary Prospectuswhen it became effective, the Prospectus did not contain and, as amended or any amendment or supplement thereto contains supplemented, if applicable, will not contain any untrue statement of a material fact or omits omit to state therein 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 case 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 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 (v) 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 the representations and warranties set forth in this paragraph 2(g) are limited to statements or omissions made in reliance upon information relating to the extent, but only Selling Shareholder furnished to the extent, that such untrue statement or omission was made Company in writing by the Selling Shareholder expressly for use in the Registration Statement, any Preliminary the Time of Sale Prospectus, the Prospectus or any amendment amendments or supplement thereto in reliance upon and in conformity with written information furnished to the Company by supplements thereto.
(i) None of the Selling Shareholder pertainingor any of its subsidiaries, as suchor, for use therein;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:
(hA) 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 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 5 years, the Selling Shareholder has no reason 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 believe that 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 Company set forth offering in Section 3 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 not true and correct have been conducted at all times in material compliance with all material respects;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 will deliver represents and warrants that it is not (i) an employee benefit plan subject to you prior Title I of the Employee Retirement Income Security Act of 1974, as amended (“ERISA”), (ii) a plan or account subject to or at each Applicable Closing Date a properly completed and executed Section 4975 of the Internal Revenue Service Form W-8BEN Code of 1986, as amended or (iii) an entity deemed to hold “plan assets” of any such plan or other applicable Form W-8;
(jaccount under Section 3(42) Certificates in negotiable form representing all of the Selling Shareholder Shares and the Selling Shareholder Option Shares to be sold by the Selling Shareholder have been placed in custody under a Custody AgreementERISA, in the form heretofore furnished to you (the "CUSTODY AGREEMENT"), duly executed and delivered by the Selling Shareholder to American Stock Transfer & Trust Company as custodian (the "CUSTODIAN");
(k) The Selling Shareholder is not subject to any order or directive of29 C.F.R. 2510.3-101, or party to any agreement with, any regulatory agency having jurisdiction with respect to him;
(l) 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 the arrangements made by the Selling Shareholder for such custody are to that extent irrevocable; the obligations of the Selling Shareholder hereunder shall not be terminated by operation of law, whether by the death or incapacity of the Selling Shareholder or, in the case of an estate or trust, by the death or incapacity of any executor or trustee or the termination of such estate or trust, or in the case of a partnership or corporation, by the dissolution of such partnership or corporation, or by the occurrence of any other event; if the Selling Shareholder or any such executor or trustee should die or become incapacitated, or if any such estate or trust should be terminated, or if any such partnership or corporation should be dissolved, or if any other such event should occur, before the delivery of the Shares hereunder, certificates representing the Shares shall be delivered by or on behalf of the Selling Shareholder in accordance with the terms and conditions of this Agreement and the Custody Agreement and shall be as valid as if such death, incapacity, termination, dissolution or other event had not occurred, regardless of whether or not the Custodian shall have received notice of such death, incapacity, termination, dissolution or other eventotherwise.
Appears in 1 contract
Representations and Warranties of the Selling Shareholder. The Selling Shareholder representsrepresents and warrants to, warrants and covenantsagrees with, solely with respect to himself the Underwriters and the number of Selling Shareholder Shares and the Selling Shareholder Option Shares set forth opposite his name on Schedule I hereto, to each Underwriter Company that:
(a) The Selling Shareholder has valid is the lawful owner of the Shares to be sold by the Selling Shareholder pursuant to this Agreement and unencumbered has, and on the Closing Date will have, good and clear title to 2,300,000 shares such Shares, free of Class A Common Stock of the Companyall restrictions on transfer, that are convertible into 2,300,000 Sharesliens, encumbrances, security interests and claims whatsoever.
(b) Such Upon delivery of and payment for such Shares pursuant to this Agreement, good and clear title to such Shares will pass to the Underwriters, free of all restrictions on transfer, liens, encumbrances, security interests and claims whatsoever.
(c) The Selling Shareholder has, and on the Closing Date will have, valid and unencumbered title to the Shares on each Applicable Closing Date, to be delivered by the Selling Shareholder on such Applicable Closing Date and full legal right, power and authority to enter into this Agreement and the Custody Agreement between the Selling Shareholder and [______________], as Custodian (the "Custody Agreement") and to sell, assign, transfer and deliver the Shares to be delivered by the Selling Shareholder on such Applicable Closing Date hereunder; and upon the delivery of and payment for such Shares on each Applicable Closing Date hereunderin the manner provided herein and therein, the several Underwriters will acquire valid and unencumbered title to the Shares to be delivered by the Selling Shareholder on such Applicable Closing Date.
(c) No filing with, or authorization, approval, consent, license, order, registration, qualification or decree of, any court or governmental authority or agency is necessary or required for the performance by the Selling Shareholder of his obligations hereunder, in connection with the offering, issuance or sale of the Selling Shareholder Shares hereunder or the consummation of the transactions contemplated by this Agreement, except such as has been already obtained or may be required under the Act or the Rules and Regulations, state securities laws or the bylaws and rules of the NASD in connection with the purchase and distribution by the Underwriters of the Selling Shareholder Shares and the Selling Shareholder Option Shares to be sold hereby;
(d) The Selling Shareholder has the legal right, power and all authorizations and approvals required by law to enter into the Custody Agreement (as defined in Section 4(j) hereof). This Agreement and the Custody Agreement have been duly authorized, executed and delivered by the Selling Shareholder and each such agreement of this Agreement and the Custody Agreement is a legal, valid and binding agreement of the Selling Shareholder;Shareholder enforceable in accordance with its terms, except to the extent which rights to indemnity and contribution provided hereunder may be limited by applicable law.
(ed) The execution, delivery and performance power of this Agreement and the consummation of the transactions contemplated by this Agreement and in the Registration Statement (including the issuance and sale of such Selling Shareholder Shares and the Selling Shareholder Option Shares, if applicable) and compliance attorney signed by the Selling Shareholder appointing [___________] and [____________], or either one of them, as the Selling Shareholder's attorney-in-fact, to the extent set forth therein with his obligations under this Agreement regard to the transactions contemplated hereby and by the Registration Statement, the Prospectus and the Custody Agreement, do not has been duly authorized, executed and will notdelivered by or on behalf of the Selling Shareholder and is a valid and binding instrument of the Selling Shareholder enforceable in accordance with its terms, whether with or without and, pursuant to such power of attorney, the giving of notice or lapse of time or both, conflict with or constitute a breach ofSelling Shareholder has authorized [___________] and [____________], or default either one of them, to execute and deliver, except for this Agreement, any document necessary or Repayment Event under, or result desirable in connection with the creation or imposition of any lien, charge or encumbrance upon any property or assets of transactions contemplated hereby and to deliver the Shares to be sold by the Selling Shareholder pursuant to any contract, indenture, mortgage, deed of trust, loan or credit agreement, note, lease or any other agreements or instrument, to which the Selling Shareholder is a party or by which he may be bound, or to which any of the property or assets of the Selling Shareholder is subject (except for such conflicts, breaches, defaults, liens, charges or encumbrances that would not have a material adverse effect on the transactions contemplated herein), nor will such action result in any violation of any applicable law, statute, rule, regulation, judgment, order, writ or decree, of any government, government instrumentality or court, domestic or foreign, having jurisdiction over the Selling Shareholder or any respective properties, assets or operations;this Agreement.
(fe) The Selling Shareholder has not taken taken, and will not take, directly or indirectly, any action which is designed to to, or which has constituted 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 pursuant to the distribution contemplated by this Agreement, and other than as permitted by the 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;.
(f) The execution, delivery and performance of this Agreement by the Selling Shareholder, compliance by the Selling Shareholder with all the provisions hereof and the consummation of the transactions contemplated hereby will not require any consent, approval, authorization or other order of any court, regulatory body, administrative agency or other governmental body (except as such may be required under the Act, state securities laws or Blue Sky laws) and will not conflict with or constitute a breach of any of the terms or provisions of, or a default under, the charter or by-laws of the Selling Shareholder or any agreement, indenture or other instrument to which the Selling Shareholder is a party or by which the Selling Shareholder or property of the Selling Shareholder is bound, or violate or conflict with any laws, administrative regulation or ruling or court decree applicable to the Selling Shareholder or property of the Selling Shareholder.
(g) Neither The Registration Statement does not, and will not on the Registration StatementClosing Date (or the Additional Closing Date, any Preliminary Prospectusif any), the Prospectus or any amendment or supplement thereto contains contain any untrue statement of a material fact or omits omit to state therein a any material fact required to be stated therein or necessary to make the statements therein therein, in the light of the circumstances under which they were made, not misleading, in each case to the extent, but only to the extent, that such untrue statement or omission was made in the Registration Statement, any Preliminary Prospectus, the Prospectus or any amendment or supplement thereto in reliance upon and in conformity with written information furnished to the Company by .
(h) Neither the Selling Shareholder pertainingnor any of the Selling Shareholder's affiliates directly, as suchor indirectly through one or more intermediaries, for use therein;controls, or is controlled by, or is under common control with, or had any other association with (within the meaning of Article I of the Bylaws of the National Association of Securities Dealers, Inc. (the "NASD")), any member firm of the NASD.
(hi) At any time during the period described in Section 5(a)(ii) hereof, if there is any change in the information referred to in Section 2(g) above, the Selling Shareholder will immediately notify you of such change.
(j) The Selling Shareholder has no reason to believe that been duly organized and is validly existing as a federally-chartered stock savings bank under the laws of the United States.
(k) To the best of the Selling Shareholder's knowledge, all of the Company's representations and warranties of the Company set forth in Section 3 1 above are not true and correct in all material respects;
(i) The Selling Shareholder will deliver to you prior to or at each Applicable Closing Date a properly completed and executed Internal Revenue Service Form W-8BEN (or other applicable Form W-8;
(j) Certificates in negotiable form representing all of the Selling Shareholder Shares and the Selling Shareholder Option Shares to be sold by the Selling Shareholder have been placed in custody under a Custody Agreement, in the form heretofore furnished to you (the "CUSTODY AGREEMENT"), duly executed and delivered by the Selling Shareholder to American Stock Transfer & Trust Company as custodian (the "CUSTODIAN");
(k) The Selling Shareholder is not subject to any order or directive of, or party to any agreement with, any regulatory agency having jurisdiction with respect to him;
(l) 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 the arrangements made by the Selling Shareholder for such custody are to that extent irrevocable; the obligations of the Selling Shareholder hereunder shall not be terminated by operation of law, whether by the death or incapacity of the Selling Shareholder or, in the case of an estate or trust, by the death or incapacity of any executor or trustee or the termination of such estate or trust, or in the case of a partnership or corporation, by the dissolution of such partnership or corporation, or by the occurrence of any other event; if the Selling Shareholder or any such executor or trustee should die or become incapacitated, or if any such estate or trust should be terminated, or if any such partnership or corporation should be dissolved, or if any other such event should occur, before the delivery of the Shares hereunder, certificates representing the Shares shall be delivered by or on behalf of the Selling Shareholder in accordance with the terms and conditions of this Agreement and the Custody Agreement and shall be as valid as if such death, incapacity, termination, dissolution or other event had not occurred, regardless of whether or not the Custodian shall have received notice of such death, incapacity, termination, dissolution or other eventcorrect.
Appears in 1 contract
Samples: Underwriting Agreement (Netbank Inc)
Representations and Warranties of the Selling Shareholder. The Selling Shareholder represents, represents and warrants and covenants, solely with respect to himself and the number of Selling Shareholder Shares and the Selling Shareholder Option Shares set forth opposite his name on Schedule I hereto, to each Underwriter and the Company on the date hereof, and shall be deemed to represent and warrant to each Underwriter and the Company on the Closing Date and the Additional Closing Date, that:
(a) The Such Selling Shareholder has valid and unencumbered title to 2,300,000 shares of Class A Common Stock of the Company, that are convertible into 2,300,000 Shares.
(b) Such Selling Shareholder will have, valid and unencumbered title to the Shares on each Applicable Closing Date, to be delivered by the Selling Shareholder on such Applicable Closing Date and full right, power and authority to enter into this Agreement and to sell, assign, transfer and deliver the Shares to be delivered sold by the such Selling Shareholder on such Applicable Closing Date hereunder; and upon the delivery of such Shares hereunder and payment for of the purchase price as herein contemplated, each of the Underwriters purchasing such Shares on each Applicable Closing Date hereunderin good faith and without notice of any lien, the several Underwriters claim or encumbrance will acquire obtain valid and unencumbered title to the Shares purchased by it from such Selling Shareholder, free and clear of any pledge, lien, security interest, encumbrance, claim or equitable interest, including any liability for estate or inheritance taxes, or any liability to be delivered by the or claims of any creditor, devisee, legatee or beneficiary of such Selling Shareholder on such Applicable Closing DateShareholder.
(cb) No filing with, or authorization, approval, consent, license, order, registration, qualification or decree of, any court or governmental authority or agency is necessary or required for the performance by the Selling Shareholder of his obligations hereunder, in connection with the offering, issuance or sale of the Selling Shareholder Shares hereunder or the consummation of the transactions contemplated by this Agreement, except such as has been already obtained or may be required under the Act or the Rules and Regulations, state securities laws or the bylaws and rules of the NASD in connection with the purchase and distribution by the Underwriters of the Selling Shareholder Shares and the Selling Shareholder Option Shares to be sold hereby;
(d) The Such Selling Shareholder has the legal rightduly authorized (if applicable), power and all authorizations and approvals required by law to enter into the Custody Agreement (as defined in Section 4(j) hereof). This Agreement and the Custody Agreement have been duly executed and delivered by the Selling Shareholder and each such agreement is a legal, valid and binding agreement of the Selling Shareholder;
(e) The execution, delivery and performance of this Agreement and the consummation of the transactions contemplated by this Agreement and in the Registration Statement (including the issuance and sale of such Selling Shareholder Shares and the Selling Shareholder Option Shares, if applicable) and compliance by the Selling Shareholder with his obligations under this Agreement and the Custody Agreement, do not and will not, whether with or without the giving of notice or lapse of time or both, conflict with or constitute a breach of, or default or Repayment Event under, or result in the creation or imposition of any lien, charge or encumbrance upon any property or assets of the Selling Shareholder pursuant to any contract, indenture, mortgage, deed of trust, loan or credit agreement, note, lease or any other agreements or instrument, to which the Selling Shareholder is a party or by which he may be bound, or to which any of the property or assets of the Selling Shareholder is subject (except for such conflicts, breaches, defaults, liens, charges or encumbrances that would not have a material adverse effect on the transactions contemplated herein), nor will such action result in any violation of any applicable law, statute, rule, regulation, judgment, order, writ or decree, of any government, government instrumentality or court, domestic or foreign, having jurisdiction over the Selling Shareholder or any respective properties, assets or operations;
(f) The Selling Shareholder has not taken and will not take, directly or indirectly, any action which is designed to or which has constituted stabilization or manipulation of the price of any security of the Company to facilitate the sale or resale of the Shares;
(g) Neither the Registration Statement, any Preliminary Prospectus, the Prospectus or any amendment or supplement thereto contains any untrue statement of a material fact or omits to state therein a material fact required to be stated therein or necessary to make the statements therein not misleading, in each case to the extent, but only to the extent, that such untrue statement or omission was made in the Registration Statement, any Preliminary Prospectus, the Prospectus or any amendment or supplement thereto in reliance upon and in conformity with written information furnished to the Company by the Selling Shareholder pertaining, as such, for use therein;
(h) The Selling Shareholder has no reason to believe that the representations and warranties of the Company set forth in Section 3 are not true and correct in all material respects;
(i) The Selling Shareholder will deliver to you prior to or at each Applicable Closing Date a properly completed and executed Internal Revenue Service Form W-8BEN (or other applicable Form W-8;
(j) Certificates in negotiable form representing all of the Selling Shareholder Shares and the Selling Shareholder Option Shares to be sold by the Selling Shareholder have been placed in custody under a Custody Agreementdelivered, in the form heretofore furnished to you the Representatives, a Power of Attorney (the "CUSTODY AGREEMENTPower of Attorney")) appointing ___________________________ and _________________ as attorneys-in-fact (collectively, duly executed the "Attorneys" and delivered by individually, an "Attorney") and a Letter of Transmittal and Custody Agreement (the Selling Shareholder to American Stock Transfer & "Custody Agreement") with Firstar Trust Company Company, as custodian (the "CUSTODIANCustodian");
(k) The Selling Shareholder is not subject to any order or directive of, or party to any agreement with, any regulatory agency having jurisdiction with respect to him;
(l) The Shares represented by ; each of the certificates held in custody for the Selling Shareholder under Power of Attorney and the Custody Agreement are subject to the interests of the Underwriters hereunder constitutes a valid and the arrangements made by the Selling Shareholder for such custody are to that extent irrevocable; the obligations of the Selling Shareholder hereunder shall not be terminated by operation of law, whether by the death or incapacity of the Selling Shareholder or, in the case of an estate or trust, by the death or incapacity of any executor or trustee or the termination binding agreement of such estate or trustSelling Shareholder, or in the case of a partnership or corporation, by the dissolution of enforceable against such partnership or corporation, or by the occurrence of any other event; if the Selling Shareholder or any such executor or trustee should die or become incapacitated, or if any such estate or trust should be terminated, or if any such partnership or corporation should be dissolved, or if any other such event should occur, before the delivery of the Shares hereunder, certificates representing the Shares shall be delivered by or on behalf of the Selling Shareholder in accordance with its terms, except as the terms and conditions of this Agreement and the Custody Agreement and shall enforcement thereof may be as valid as if such deathlimited by bankruptcy, incapacityinsolvency, terminationreorganization, dissolution moratorium or other event had not occurred, regardless of whether similar laws relating to or not the Custodian shall have received notice of such death, incapacity, termination, dissolution or other event.affecting
Appears in 1 contract
Samples: Underwriting Agreement (Insurance Management Solutions Group Inc)
Representations and Warranties of the Selling Shareholder. The Selling Shareholder represents, represents and warrants to and covenants, solely agrees with respect to himself and each of the number of Selling Shareholder Shares and the Selling Shareholder Option Shares set forth opposite his name on Schedule I hereto, to each Underwriter Underwriters that:
(a) The This Agreement has been duly authorized, executed and delivered by or on behalf of such Selling Shareholder has valid and unencumbered title to 2,300,000 shares of Class A Common Stock of the Company, that are convertible into 2,300,000 SharesShareholder.
(b) The execution and delivery by such Selling Shareholder of, and the performance of such Selling Shareholder’s obligations under, this Agreement will not contravene any provisions of applicable law, any agreement or other instrument binding upon such Selling Shareholder or any judgment, order or decree of any governmental body, agency or court having jurisdiction over such Selling Shareholder, in each case, except as would not impair in any material respect the Selling Shareholder’s ability to consummate the transactions to be consummated by him under this Agreement.
(c) Such Selling Shareholder has, and on any Option Closing Date will havehave (assuming due issuance of any Shares to be issued upon the exercise of options to purchase shares of common stock), valid and unencumbered title to 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 on each Applicable Closing Date, to be delivered sold by such Selling Shareholder free and clear of all security interests, claims, liens, equities or other encumbrances (other than as created by this Agreement to be entered into by the Selling Shareholder on such Applicable Closing Date in connection with this Agreement) and full rightthe legal right and power, power and authority all authorization and approval required by law, to enter into this Agreement and to sell, assign, transfer and deliver the Shares to be delivered sold by the such Selling Shareholder on or a security entitlement in respect of such Applicable Closing Date hereunder; and upon the delivery of and Shares.
(d) Upon payment for such Shares on each Applicable Closing Date hereunder, the several Underwriters will acquire valid and unencumbered title to the Shares to be delivered sold by the such Selling Shareholder on such Applicable Closing Date.
(c) No filing with, or authorization, approval, consent, license, order, registration, qualification or decree of, any court or governmental authority or agency is necessary or required for the performance by the Selling Shareholder of his obligations hereunder, in connection with the offering, issuance or sale of the Selling Shareholder Shares hereunder or the consummation of the transactions contemplated by pursuant to this Agreement, except delivery of such Shares, as has been already obtained directed by the Underwriters, to Cede & Co. (“Cede”) or such other nominee as may be required designated by the Depository Trust Company (“DTC”), registration of such Shares in the name of Cede or such other nominee and the crediting of such Shares on the books of DTC to securities accounts of the Underwriters (assuming that neither DTC nor any such Underwriter has notice of any adverse claim (within the meaning of Section 8-105 of the UCC) to such Shares), (A) DTC shall be a “protected purchaser” of such Shares within the meaning of Section 8-303 of the UCC, (B) under Section 8-501 of the Act 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 successfully asserted against the Underwriters with respect to such security entitlement; for purposes of this representation, such Selling Shareholder may assume that when such payment, delivery and crediting occur, (x) such Shares will have been registered in the name of Cede or another nominee designated by DTC, in each case on the Rules and RegulationsCompany’s share registry in accordance with its articles of incorporation, state securities laws or the bylaws and rules applicable law, (y) DTC will be registered as a “clearing corporation” within the meaning of Section 8-102 of the NASD in connection with UCC and (z) appropriate entries to the purchase and distribution by the Underwriters accounts of the Selling Shareholder Shares and several Underwriters on the Selling Shareholder Option Shares to be sold hereby;
(d) The Selling Shareholder has the legal right, power and all authorizations and approvals required by law to enter into the Custody Agreement (as defined in Section 4(j) hereof). This Agreement and the Custody Agreement records of DTC will have been duly executed and delivered by made pursuant to the Selling Shareholder and each such agreement is a legal, valid and binding agreement of the Selling Shareholder;UCC.
(e) The execution, delivery and performance of Such Selling Shareholder is not prompted to sell his Shares pursuant to this Agreement and by any material non-public information concerning the consummation of the transactions contemplated by this Agreement and Company or its subsidiaries which is not set forth in the Time of Sale Prospectus.
(i) The Registration Statement (including the issuance and sale of such Selling Shareholder Shares and the Selling Shareholder Option SharesStatement, when it became effective, did not contain and, as amended or supplemented, if applicable) and compliance by the Selling Shareholder with his obligations under this Agreement and the Custody Agreement, do not and will not, whether with or without the giving of notice or lapse of time or both, conflict with or constitute a breach of, or default or Repayment Event under, or result in the creation or imposition of any lien, charge or encumbrance upon any property or assets as of the Selling Shareholder pursuant to any contract, indenture, mortgage, deed date of trust, loan or credit agreement, note, lease or any other agreements or instrument, to which the Selling Shareholder is a party or by which he may be bound, or to which any of the property or assets of the Selling Shareholder is subject (except for such conflicts, breaches, defaults, liens, charges or encumbrances that would not have a material adverse effect on the transactions contemplated herein), nor will such action result in any violation of any applicable law, statute, rule, regulation, judgment, order, writ or decree, of any government, government instrumentality or court, domestic or foreign, having jurisdiction over the Selling Shareholder or any respective properties, assets or operations;
(f) The Selling Shareholder has not taken and will not take, directly or indirectly, any action which is designed to or which has constituted stabilization or manipulation of the price of any security of the Company to facilitate the sale or resale of the Shares;
(g) Neither the Registration Statement, any Preliminary Prospectus, the Prospectus or any amendment or supplement thereto contains supplement, contain any untrue statement of a material fact or omits omit to state therein 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 held by the Selling Shareholder in each case connection with the offering of such Shares when the Prospectus is not yet available to prospective purchasers and at the extentClosing Date (as defined in Section 5), but only to the extentTime of Sale Prospectus, that such as then amended or supplemented by the Company, if applicable, will not, contain any untrue statement of a material fact or omission was made 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 (iv) 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, except that the representations and warranties set forth in this paragraph 2(g) (y) do not apply to statements or omissions in the Registration Statement, the Time of Sale Prospectus or any Preliminary Prospectus based upon information relating to any Underwriter furnished to the Company in writing by such Underwriter through you expressly for use in the Registration Statement, the Time of Sale Prospectus, the Prospectus or any amendment amendments or supplement supplements thereto and (z) are limited in all respects to statements or omissions made in reliance upon and in conformity with written information relating to the Selling Shareholder furnished to the Company in writing by the Selling Shareholder pertaining, as such, expressly for use therein;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 such Selling Shareholder consists of the name of such Selling Shareholder, the number of offered shares and the address and other information with respect to such Selling Shareholder (excluding percentages) which appear in the Registration Statement or any Prospectus in the table (and corresponding footnotes) under the caption “Selling Shareholder” (with respect to the Selling Shareholder, the “Selling Shareholder Information”).
(g) Such Selling Shareholder has executed a “lock-up” agreement with the Managers, substantially in the form of Exhibit A hereto, relating to sales and certain other dispositions of shares of Common Stock or certain other securities, that is in full force and effect as of the date hereof and shall be in full force and effect as of the Closing Date.
(h) The Selling Shareholder has no reason to believe is not a person that the representations and warranties of the Company set forth in Section 3 are not true and correct in all material respects;
is: (i) The Selling Shareholder will deliver to you prior to the subject of any Sanctions or at each Applicable Closing Date (ii) located or resident in a properly completed country or territory that is the subject of Sanctions (including, without limitation, Cuba, Iran, North Korea, Syria and executed Internal Revenue Service Form W-8BEN (or other applicable Form W-8;
(j) Certificates in negotiable form representing all the Crimea region of Ukraine). For the past 5 years, the Selling Shareholder Shares has not knowingly engaged in and the Selling Shareholder Option Shares to be sold by the Selling Shareholder have been placed in custody under a Custody Agreement, in the form heretofore furnished to you (the "CUSTODY AGREEMENT"), duly executed and delivered by the Selling Shareholder to American Stock Transfer & Trust Company as custodian (the "CUSTODIAN");
(k) The Selling Shareholder is not subject to now knowingly engaged in any order dealings or directive of, or party to transactions with any agreement with, any regulatory agency having jurisdiction with respect to him;
(l) 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 the arrangements made by the Selling Shareholder for such custody are to that extent irrevocable; the obligations of the Selling Shareholder hereunder shall not be terminated by operation of law, whether by the death or incapacity of the Selling Shareholder or, in the case of an estate or trust, by the death or incapacity of any executor or trustee or the termination of such estate or trustPerson, or in any country or territory, that at the case of a partnership or corporation, by the dissolution of such partnership or corporation, or by the occurrence of any other event; if the Selling Shareholder or any such executor or trustee should die or become incapacitated, or if any such estate or trust should be terminated, or if any such partnership or corporation should be dissolved, or if any other such event should occur, before the delivery time of the Shares hereunder, certificates representing dealing or transaction is or was the Shares shall be delivered by or on behalf subject of the Selling Shareholder in accordance with the terms and conditions of this Agreement and the Custody Agreement and shall be as valid as if such death, incapacity, termination, dissolution or other event had not occurred, regardless of whether or not the Custodian shall have received notice of such death, incapacity, termination, dissolution or other eventSanctions.
Appears in 1 contract
Samples: Underwriting Agreement (INSMED Inc)
Representations and Warranties of the Selling Shareholder. The Selling Shareholder represents, represents and warrants to and covenants, solely covenants with respect to himself and the number of Selling Shareholder Shares and the Selling Shareholder Option Shares set forth opposite his name on Schedule I hereto, to each Underwriter that:
(a) The Selling Shareholder now has and on the Closing Dates (as hereinafter defined) will have good and valid and unencumbered title to 2,300,000 all the shares of Class A Common the Stock of the Company, that are convertible into 2,300,000 Shares.
(b) Such to be sold by such Selling Shareholder will havehereunder, valid free and unencumbered title to the Shares on each Applicable Closing Dateclear of all liens, to be delivered by the Selling Shareholder on such Applicable Closing Date encumbrances, equities, security interests and claims whatsoever, with full legal right, power and authority to enter into this Agreement and to sell, assign, transfer and deliver the Shares to be delivered by the Selling Shareholder on such Applicable Closing Date hereunder; and that upon the delivery of and payment for such Shares on each Applicable Closing Date shares of the Stock hereunder, the several Underwriters Underwriter will acquire receive good and valid and unencumbered title to the Shares shares of the Stock to be delivered sold by the Selling Shareholder on such Applicable Closing DateShareholder, free and clear of all liens, encumbrances, equities, security interests and claims whatsoever.
(c) No filing with, or authorization, approval, consent, license, order, registration, qualification or decree of, any court or governmental authority or agency is necessary or required for the performance by the Selling Shareholder of his obligations hereunder, in connection with the offering, issuance or sale of the Selling Shareholder Shares hereunder or the consummation of the transactions contemplated by this Agreement, except such as has been already obtained or may be required under the Act or the Rules and Regulations, state securities laws or the bylaws and rules of the NASD in connection with the purchase and distribution by the Underwriters of the Selling Shareholder Shares and the Selling Shareholder Option Shares to be sold hereby;
(d) The Selling Shareholder has the legal right, power and all authorizations and approvals required by law to enter into the Custody Agreement (as defined in Section 4(j) hereof). This Agreement and the Custody Agreement have been duly executed and delivered by the Selling Shareholder and each such agreement is a legal, valid and binding agreement of the Selling Shareholder;
(e) The execution, delivery and performance of this Agreement and the consummation of the transactions contemplated by this Agreement and in the Registration Statement (including the issuance and sale of such Selling Shareholder Shares and the Selling Shareholder Option Shares, if applicable) and compliance by the Selling Shareholder with his obligations under this Agreement and the Custody Agreement, do not and will not, whether with or without the giving of notice or lapse of time or both, conflict with or constitute a breach of, or default or Repayment Event under, or result in the creation or imposition of any lien, charge or encumbrance upon any property or assets of the Selling Shareholder pursuant to any contract, indenture, mortgage, deed of trust, loan or credit agreement, note, lease or any other agreements or instrument, to which the Selling Shareholder is a party or by which he may be bound, or to which any of the property or assets of the Selling Shareholder is subject (except for such conflicts, breaches, defaults, liens, charges or encumbrances that would not have a material adverse effect on the transactions contemplated herein), nor will such action result in any violation of any applicable law, statute, rule, regulation, judgment, order, writ or decree, of any government, government instrumentality or court, domestic or foreign, having jurisdiction over the Selling Shareholder or any respective properties, assets or operations;
(fb) The Selling Shareholder has not taken and will not take, directly or indirectly, any action which is designed to stabilize or manipulate, or which has constituted or which might in the future reasonably be expected to cause or result in stabilization or manipulation of of, the price of any security the Stock of the Company in order to facilitate the sale or resale of the Shares;Stock or otherwise.
(gc) Neither The Selling Shareholder is disposing of shares of the Registration StatementStock for his own account. The Selling Shareholder is not selling shares of the Stock, any directly or indirectly, for the benefit of the Company or the Underwriter, and no part of the proceeds of the sale to be received by the Selling Shareholder will inure, either directly or indirectly, to the benefit of the Company.
(d) This Agreement has been duly authorized, executed and delivered by or on behalf of the Selling Shareholder and this Agreement is a valid and binding obligation of the Selling Shareholder enforceable in accordance with its terms.
(e) All information furnished to the Company by the Selling Shareholder and included in the Preliminary Prospectus, Prospectus and the Prospectus or any amendment or supplement thereto contains thereto, under the captions "Compensation Committee Interlocks, Insider Participation and Certain Transactions" and "Selling Shareholder and Beneficial Ownership" is true and correct and does not contain any untrue statement of a material fact nor does it omit to state any material fact required to be stated therein or necessary to make such information not misleading.
(f) To the best knowledge of the Selling Shareholder, without independent investigation, neither the Registration Statement nor the Prospectus nor any amendment or supplement thereto, will include any untrue statement of a material fact or omits omit to state therein a any material fact required to be stated therein or necessary to make the statements therein not misleading.
(g) The execution and performance of this Agreement and the consummation of the transactions herein and therein contemplated and the fulfillment of the terms hereof and thereof will not conflict with, result in each case a breach of, or constitute a default under any will, trust (constructive or other), agreement, indenture, mortgage, note, deed, rule, regulation, order, injunction, judgment, decree or other instrument to which the extentSelling Shareholder is a party or by which he is bound.
(h) All consents, but only to approvals, authorizations and orders necessary for the extent, that such untrue statement or omission was made in the Registration Statement, any Preliminary Prospectus, the Prospectus or any amendment or supplement thereto in reliance upon execution and in conformity with written information furnished to the Company delivery by the Selling Shareholder pertainingof this Agreement and for the sale and delivery of the Stock to be sold by the Selling Shareholder hereunder, as such, for use therein;have been obtained.
(hi) The Without independent investigation, the Selling Shareholder has no reason to believe is not aware that any of the representations and warranties of the Company set forth in Section 3 are not true and correct 6 hereof is untrue or inaccurate in all any material respects;
(i) The Selling Shareholder will deliver to you prior to or at each Applicable Closing Date a properly completed and executed Internal Revenue Service Form W-8BEN (or other applicable Form W-8;
(j) Certificates in negotiable form representing all of the Selling Shareholder Shares and the Selling Shareholder Option Shares to be sold by the Selling Shareholder have been placed in custody under a Custody Agreement, in the form heretofore furnished to you (the "CUSTODY AGREEMENT"), duly executed and delivered by the Selling Shareholder to American Stock Transfer & Trust Company as custodian (the "CUSTODIAN");
(k) The Selling Shareholder is not subject to any order or directive of, or party to any agreement with, any regulatory agency having jurisdiction with respect to him;
(l) 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 the arrangements made by the Selling Shareholder for such custody are to that extent irrevocable; the obligations of the Selling Shareholder hereunder shall not be terminated by operation of law, whether by the death or incapacity of the Selling Shareholder or, in the case of an estate or trust, by the death or incapacity of any executor or trustee or the termination of such estate or trust, or in the case of a partnership or corporation, by the dissolution of such partnership or corporation, or by the occurrence of any other event; if the Selling Shareholder or any such executor or trustee should die or become incapacitated, or if any such estate or trust should be terminated, or if any such partnership or corporation should be dissolved, or if any other such event should occur, before the delivery of the Shares hereunder, certificates representing the Shares shall be delivered by or on behalf of the Selling Shareholder in accordance with the terms and conditions of this Agreement and the Custody Agreement and shall be as valid as if such death, incapacity, termination, dissolution or other event had not occurred, regardless of whether or not the Custodian shall have received notice of such death, incapacity, termination, dissolution or other eventrespect.
Appears in 1 contract
Samples: Underwriting Agreement (Metropolitan Financial Corp /Oh/)
Representations and Warranties of the Selling Shareholder. The Selling Shareholder representsrepresents and warrants to, warrants and covenantsagrees with, solely with respect to himself the Company and the number of Selling Shareholder Shares and the Selling Shareholder Option Shares each Underwriter as set forth opposite his name on Schedule I hereto, to each Underwriter that:below in this Section 3.
(a) This Agreement has been duly authorized, executed and delivered by or on behalf of the Selling Shareholder.
(b) The Selling Shareholder has valid and unencumbered title to 2,300,000 shares of Class A Common Stock of the Company, that are convertible into 2,300,000 Shares.
(b) Such Selling Shareholder will have, valid and unencumbered title to the Shares on each Applicable Closing Date, to be delivered by the Selling Shareholder on such Applicable Closing Date and full right, power and authority to enter into this Agreement Agreement, and to sell, assign, transfer and deliver the Shares Offered Securities to be delivered sold by the Selling Shareholder on such Applicable Closing Date hereunder; and and, upon the delivery of and payment for such Shares on each Applicable Closing Date hereunder, the several Underwriters will acquire valid and unencumbered title to the Shares Offered Securities to be delivered sold by the Selling Shareholder pursuant to this Agreement, delivery of such Offered Securities, as directed by the Representative, to Cede & Co. (“Cede”) or such other nominee as may be designated by The Depository Trust Company (“DTC”), registration of such Offered Securities in the name of Cede or such other nominee and the crediting of such Offered Securities on the books of DTC to the securities account of the Underwriters (assuming that neither DTC nor the Underwriters has notice of any adverse claim (within the meaning of Section 8-105 of the New York Uniform Commercial Code (the “UCC”)) to such Applicable Closing DateOffered Securities), (A) DTC shall be a “protected purchaser” of such Offered 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 Offered Securities and (C) no action based on any “adverse claim,” within the meaning of Section 8-102 of the UCC, to such Offered 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 Offered 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 Section 8-102 of the UCC and (z) appropriate entry to the account of the Underwriters on the records of DTC will have been made pursuant to the UCC.
(c) No filing with, or authorization, approval, consent, license, order, registration, qualification or decree The execution and delivery by the Selling Shareholder of, any court or governmental authority or agency is necessary or required for and the performance by the Selling Shareholder of his its obligations hereunderunder, in connection with the offering, issuance or sale of the Selling Shareholder Shares hereunder or the consummation of the transactions contemplated by this Agreement, except such as has been already obtained or may be required under the Act or the Rules and Regulations, state securities laws or the bylaws and rules of the NASD in connection with the purchase and distribution by the Underwriters of the Selling Shareholder Shares and the Selling Shareholder Option Shares to be sold hereby;
(d) The Selling Shareholder has the legal right, power and all authorizations and approvals required by law to enter into the Custody Agreement (as defined in Section 4(j) hereof). This Agreement and the Custody Agreement have been duly executed and delivered by the Selling Shareholder and each such agreement is a legal, valid and binding agreement of the Selling Shareholder;
(e) The execution, delivery and performance of this Agreement and the consummation of the transactions contemplated by this Agreement and will not contravene or conflict with, result in the Registration Statement a breach of, or constitute a default (including the issuance and sale of such Selling Shareholder Shares and the Selling Shareholder Option Sharesor, if applicable) and compliance by the Selling Shareholder with his obligations under this Agreement and the Custody Agreement, do not and will not, whether with or without the giving of notice or lapse of time or bothtime, conflict with or constitute a breach of, or default or Repayment Event would be in default) under, or result in require the creation or imposition consent of any lien, charge other party to (i) any agreement or encumbrance upon any property or assets of the Selling Shareholder pursuant to any contract, indenture, mortgage, deed of trust, loan or credit agreement, note, lease or any other agreements or instrument, instrument to which the Selling Shareholder is a party or by which he may be bound, it is bound or under which it is entitled to which any right or benefit including any pledge of the property Offered Securities or assets (ii) any provision of the Selling Shareholder is subject (except for such conflicts, breaches, defaults, liens, charges applicable law or encumbrances that would not have a material adverse effect on the transactions contemplated herein), nor will such action result in any violation of any applicable law, statute, rule, regulation, judgment, order, writ decree or decree, regulation applicable to the Selling Shareholder of any government, government instrumentality or court, domestic regulatory body, administrative agency, governmental body or foreign, arbitrator having jurisdiction over the Selling Shareholder, except, in the case of the foregoing clauses (i) and (ii) as would not, individually or in the aggregate, reasonably be expected to materially impact the Selling Shareholder’s ability to perform its obligations under this Agreement. No consent, approval, authorization or other order of, or registration or filing with, any court or other governmental authority or agency, is required for the consummation by the Selling Shareholder of the transactions contemplated in this Agreement, except such as may be required under the Securities Act, applicable state securities or blue sky laws and from the Financial Industry Regulatory Authority, Inc. (“FINRA”) and such other approvals as have been or will be made or obtained on or prior to the Closing Date.
(d) All information furnished to the Company or the Underwriters by or on behalf of the Selling Shareholder in writing expressly for use in the Registration Statement, the General Disclosure Package or the Final Prospectus is, and on the Closing Date will be, true, correct and complete in all material respects, and on the Closing Date will not, contain any respective propertiesuntrue statement of a material fact or omit to state any material fact necessary to make such information not misleading, assets or operations;it being understood and agreed that the only such information consists of the information with respect to the Selling Shareholder under the caption “Selling Shareholder” in the Registration Statement, the General Disclosure Package and the Final Prospectus (such information, the “Selling Shareholder Information”).
(e) Prior to the completion of the Underwriters’ distribution of the Offered Securities, the Selling Shareholder has not distributed and will not distribute any offering material in connection with the offering and sale of the Offered Securities other than the Registration Statement, the General Disclosure Package and the Final Prospectus.
(f) The Selling Shareholder has not taken and will not take, directly or indirectly, any action which that is designed to or which that has constituted 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;Offered Securities.
(g) Neither the Registration Statement, any Preliminary Prospectus, the Prospectus or any amendment or supplement thereto contains any untrue statement of a material fact or omits to state therein a material fact required to be stated therein or necessary to make the statements therein not misleading, in each case to the extent, but only to the extent, that such untrue statement or omission was made in the Registration Statement, any Preliminary Prospectus, the Prospectus or any amendment or supplement thereto in reliance upon and in conformity with written information furnished to the Company by the Selling Shareholder pertaining, as such, for use therein;
(h) The Selling Shareholder has no reason to believe that the representations and warranties of the Company set forth in Section 3 are not true and correct in all material respects;
(i) The Selling Shareholder will deliver to you prior to or at each Applicable Closing Date a properly completed and executed Internal Revenue Service Form W-8BEN (or other applicable Form W-8;
(j) Certificates in negotiable form representing all of the Selling Shareholder Shares and the Selling Shareholder Option Shares to be sold by the Selling Shareholder have been placed in custody under a Custody Agreement, in the form heretofore furnished to you (the "CUSTODY AGREEMENT"), duly executed and delivered by the Selling Shareholder to American Stock Transfer & Trust Company as custodian (the "CUSTODIAN");
(k) The Selling Shareholder is not subject to any order or directive of, or party to any agreement with, any regulatory agency having jurisdiction with respect to him;
a United States person (las the term is defined in 7701(a)(30) 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 the arrangements made by the Selling Shareholder Internal Revenue Code of 1986, as amended) for such custody are to that extent irrevocable; the obligations of the Selling Shareholder hereunder shall not be terminated by operation of law, whether by the death or incapacity of the Selling Shareholder or, in the case of an estate or trust, by the death or incapacity of any executor or trustee or the termination of such estate or trust, or in the case of a partnership or corporation, by the dissolution of such partnership or corporation, or by the occurrence of any other event; if the Selling Shareholder or any such executor or trustee should die or become incapacitated, or if any such estate or trust should be terminated, or if any such partnership or corporation should be dissolved, or if any other such event should occur, before the delivery of the Shares hereunder, certificates representing the Shares shall be delivered U.S. federal income tax purposes. Any certificate signed by or on behalf of the Selling Shareholder and delivered to the Representative or to counsel for the Underwriters in accordance connection with the terms and conditions offering of this Agreement and the Custody Agreement and Offered Securities shall be deemed a representation and warranty by the Selling Shareholder to the Underwriters as valid as if to the matters covered thereby with respect to the Selling Shareholder. The Selling Shareholder has a reasonable basis for making each of the representations set forth in this Section 3. The Selling Shareholder acknowledges that the Company, Underwriters and, for purposes of the opinions to be delivered pursuant to Section 9(d), Section 9(e), Section 9(f) and Section 9(g) hereof, counsel to the Company, the Company’s general counsel or any assistant general counsel, the Selling Shareholder and counsel to the Underwriters, will rely upon the accuracy and truthfulness of the foregoing representations and hereby consents to such death, incapacity, termination, dissolution or other event had not occurred, regardless of whether or not the Custodian shall have received notice of such death, incapacity, termination, dissolution or other eventreliance.
Appears in 1 contract
Samples: Underwriting Agreement (Fiserv Inc)
Representations and Warranties of the Selling Shareholder. The Selling Shareholder represents, represents and warrants to and covenants, solely agrees with respect to himself the several Underwriters and the number of Selling Shareholder Shares Company, and shall be deemed to represent and warrant to the several Underwriters and the Selling Shareholder Option Shares set forth opposite his name Company on Schedule I heretothe First Closing Date, to each Underwriter that:
(a) The Selling Shareholder has valid duly executed a durable power of attorney and unencumbered title to 2,300,000 shares custody agreement ("Durable Power of Class A Common Stock Attorney" and Custody Agreement", respectively) naming Gerald L. Connelly and Kevin J. Brown, or either of them, as thx Xxxxxxx Xxxxxxxxder's xxxxxxxx(x)-xn-fact ("Attorneys-in-Fact") for the purpose of entering into and carrying out this Agreement and naming the Company as custodian ("Custodian") of the Company, that are convertible into 2,300,000 SharesShares of the Selling Shareholder for the purpose of selling such Shares to the Underwriters on the First Closing Date and receiving payment therefor.
(b) Such All consents, approvals, authorizations and orders necessary for the execution and delivery by the Selling Shareholder of this Agreement, the Durable Power of Attorney and the Custody Agreement, and for the sale and delivery of the Shares to be sold by the Selling Shareholder hereunder, as set forth on Schedule I annexed hereto, have been obtained. The Selling Shareholder has, and at the time of delivery thereof hereunder the Selling Shareholder will have, good and valid and unencumbered title to the Shares on each Applicable Closing Date, proposed to be delivered sold by the Selling Shareholder on such Applicable Closing Date hereunder, free and clear of all voting trust arrangements, liens, encumbrances, security interests, equities, claims and community or marital property rights, other than any created by the Durable Power of Attorney, the Custody Agreement or this Agreement for the benefit of the Underwriters. The Selling Shareholder has full right, power and authority to enter into this Agreement, the Durable Power of Attorney and the Custody Agreement and to sell, assign, transfer and deliver the such Shares to be delivered hereunder, free and clear of all voting trust arrangements, liens, encumbrances, security interests, equities, claims and community or marital property rights, other than any created by the Selling Shareholder on such Applicable Closing Date hereunder; and upon Durable Power of Attorney, the Custody Agreement or this Agreement for the benefit of the Underwriters. Upon delivery of and payment for such Shares on each Applicable Closing Date hereunder, the several Underwriters will acquire good and valid title thereto, free and unencumbered title to the Shares to be delivered by the Selling Shareholder on such Applicable Closing Dateclear of all voting trust arrangements, liens, encumbrances, security interests, equities, claims and community or marital property rights.
(c) No filing with, or authorization, approval, consent, license, order, registration, qualification or decree of, any court or governmental authority or agency is necessary or required for the performance by the The Selling Shareholder of his obligations hereunderhas not distributed and will not distribute any Preliminary Prospectus, the Prospectus or any other material in connection with the offering, issuance or offering and sale of the Selling Shareholder Shares hereunder or the consummation of the transactions contemplated by this Agreement, except such as has been already obtained or may be required under the Act or the Rules and Regulations, state securities laws or the bylaws and rules of the NASD in connection with the purchase and distribution by the Underwriters of the Selling Shareholder Shares and the Selling Shareholder Option Shares to be sold hereby;
(d) The Selling Shareholder has the legal right, power and all authorizations and approvals required by law to enter into the Custody Agreement (as defined in Section 4(j) hereof)Shares. This Agreement and the Custody Agreement have been duly executed and delivered by the Selling Shareholder and each such agreement is a legal, valid and binding agreement of the Selling Shareholder;
(e) The execution, delivery and performance of this Agreement and the consummation of the transactions contemplated by this Agreement and in the Registration Statement (including the issuance and sale of such Selling Shareholder Shares and the Selling Shareholder Option Shares, if applicable) and compliance by the Selling Shareholder with his obligations under this Agreement and the Custody Agreement, do not and will not, whether with or without the giving of notice or lapse of time or both, conflict with or constitute a breach of, or default or Repayment Event under, or result in the creation or imposition of any lien, charge or encumbrance upon any property or assets of the Selling Shareholder pursuant to any contract, indenture, mortgage, deed of trust, loan or credit agreement, note, lease or any other agreements or instrument, to which the Selling Shareholder is a party or by which he may be bound, or to which any of the property or assets of the Selling Shareholder is subject (except for such conflicts, breaches, defaults, liens, charges or encumbrances that would not have a material adverse effect on the transactions contemplated herein), nor will such action result in any violation of any applicable law, statute, rule, regulation, judgment, order, writ or decree, of any government, government instrumentality or court, domestic or foreign, having jurisdiction over the Selling Shareholder or any respective properties, assets or operations;
(f) The Selling Shareholder has not taken and will not take, directly or indirectly, any action which is designed to or which has constituted could cause or result in, under the Exchange Act or otherwise, stabilization or manipulation of the price of any security of the Company to facilitate the sale or resale of the Common Shares;.
(gd) Neither the Registration StatementThe execution, any Preliminary Prospectus, the Prospectus or any amendment or supplement thereto contains any untrue statement of a material fact or omits to state therein a material fact required to be stated therein or necessary to make the statements therein not misleading, in each case to the extent, but only to the extent, that such untrue statement or omission was made in the Registration Statement, any Preliminary Prospectus, the Prospectus or any amendment or supplement thereto in reliance upon delivery and in conformity with written information furnished to the Company performance by the Selling Shareholder pertainingof this Agreement, the Durable Power of Attorney and the Custody Agreement will not, if applicable, result in the violation of any provisions of the Articles of Incorporation, By-laws or other governing documents of the Selling Shareholder, or constitute a breach, or be in contravention, of any provision of any agreement, franchise, license, indenture, mortgage, deed of trust or other instrument to which the Selling Shareholder is a party or by which the Selling Shareholder or the Selling Shareholder's property may be bound or affected, or any statute, rule or regulation applicable to the Selling Shareholder, or violate any order or decree of any court, regulatory body, administrative agency or other governmental body having jurisdiction over the Selling Shareholder or any of the Selling Shareholder's property. No consent, approval, authorization or other order of any court, regulatory body, administrative agency or other governmental body is required for the execution and delivery of, and performance under, this Agreement by the Selling Shareholder or the consummation by the Selling Shareholder of the transactions contemplated by this Agreement, except for compliance with the Act, the Exchange Act, the Blue Sky Laws applicable to the public offering of the Shares by the Underwriters and the clearance of such offering with the NASD. The Selling Shareholder hereby represents and warrants that each Attorney-in-Fact has been duly appointed as suchattorney-in-fact by the Selling Shareholder for the purpose of entering into and carrying out this Agreement, for use therein;and the Durable Power of Attorney and the Custody Agreement have been duly executed and delivered by or on behalf of the Selling Shareholder to the Representatives.
(he) This Agreement, the Durable Power of Attorney and the Custody Agreement are each valid and binding agreements of the Selling Shareholder enforceable in accordance with their respective terms.
(f) The Selling Shareholder has no reason deposited in custody, under the Durable Power of Attorney and the Custody Agreement, certificates in negotiable form for the 450,000 Shares to believe that be sold hereunder by the representations and warranties Selling Shareholder for the purpose of the Company set forth in Section 3 are not true and correct in all material respects;
(i) further delivery pursuant to this Agreement. The Selling Shareholder will deliver to you prior to or at each Applicable Closing Date a properly completed and executed Internal Revenue Service Form W-8BEN (or other applicable Form W-8;
(j) Certificates in negotiable form representing all agrees that the Shares of the Selling Shareholder Shares and on deposit with the Selling Shareholder Option Shares to be sold by the Selling Shareholder have been placed in custody under a Custody Agreement, in the form heretofore furnished to you (the "CUSTODY AGREEMENT"), duly executed and delivered by the Selling Shareholder to American Stock Transfer & Trust Company as custodian (the "CUSTODIAN");
(k) The Selling Shareholder is not subject to any order or directive of, or party to any agreement with, any regulatory agency having jurisdiction with respect to him;
(l) The Shares represented by the certificates held in custody for the Selling Shareholder under the Custody Agreement Custodian are subject to the interests of the Underwriters hereunder Company and the Underwriters, that the arrangements made by the Selling Shareholder for such custody custody, and the appointment of the Attorneys-in-Fact pursuant to the Durable Power of Attorney and the Custody Agreement, are to that extent irrevocable; , and that the obligations of the Selling Shareholder hereunder and under the Durable Power of Attorney and the Custody Agreement shall not be terminated terminated, except as provided in this Agreement, the Durable Power of Attorney and the Custody Agreement, by any act of the Selling Shareholder, by operation of law, whether by the death dissolution, winding up or incapacity other event affecting the legal life of the Selling Shareholder or, in the case of an estate or trust, by the death or incapacity of any executor or trustee or the termination of such estate or trust, or in the case of a partnership or corporation, by the dissolution of such partnership or corporationShareholder, or by the occurrence of any other event; if . If the Selling Shareholder or any such executor or trustee should die or become incapacitated, or if any such estate or trust should be terminated, wound up or if any such partnership or corporation should be dissolved, or if any other such event should occur, occur before the delivery of the Shares hereunder, the certificates representing for Shares then on deposit with the Custodian shall, to the extent the Shares shall are purchased by the Underwriters, be delivered by or on behalf of the Selling Shareholder Custodian in accordance with the terms and conditions of this Agreement Agreement, the Durable Power of Attorney and the Custody Agreement and shall be as valid as if such death, incapacity, terminationwinding up, dissolution or other event had not occurred, regardless of whether or not the Custodian shall have received notice thereof. The Selling Shareholder represents that each Attorney-in-Fact has been authorized by the Selling Shareholder to execute and deliver this Agreement and the Custodian has been authorized to receive and acknowledge receipt of the proceeds of sale of the Shares sold by the Selling Shareholder against delivery thereof and otherwise to act on behalf of the Selling Shareholder.
(g) Insofar as it relates to the Selling Shareholder, each Preliminary Prospectus, as of its date, has conformed in all material respects with the requirements of the Act and, as of its date, has not included any untrue statement of a material fact or omitted to state a material fact necessary to make the statements therein not misleading; and on the effective date of the Registration Statement and at all times subsequent thereto up to the First Closing Date, (i) the Registration Statement and the Prospectus, as they relate to the Selling Shareholder, did or will conform to the requirements of the Act, and (ii) neither the Registration Statement nor the Prospectus as it relates to the Selling Shareholder did or will include any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein not misleading.
(h) The information contained in the Selling Shareholder's Selling Shareholder's Questionnaire completed in connection with the Company's public offering of Shares and delivered to the Representatives was, as of the date of such deathquestionnaire, incapacityand is, terminationas of the date of this Agreement, dissolution true and correct. A certificate signed by or other eventon behalf of the Selling Shareholder as such and delivered to the Representatives or to counsel for the Underwriters shall be deemed a representation and warranty by the Selling Shareholder to the Underwriters as to the matters covered thereby. A certificate delivered by or on behalf of the Selling Shareholder to counsel for the Selling Shareholder for purposes of enabling such counsel to render the opinion referred in Section 10(e) will also be furnished to the Representatives and counsel for the Underwriters and shall be deemed to be additional representations and warranties to the Underwriters by the Selling Shareholder as to the matters covered thereby.
Appears in 1 contract
Representations and Warranties of the Selling Shareholder. The Selling Shareholder represents, represents and warrants to and covenants, solely agrees with respect to himself each of the Underwriters on the date hereof and on the number of Selling Shareholder Shares and the Selling Shareholder Option Shares set forth opposite his name on Schedule I hereto, to each Underwriter Closing Date that:
(a) The Such Selling Shareholder is the record and beneficial owner of and has valid and unencumbered marketable title to 2,300,000 shares the Firm Shares to be sold by such Selling Shareholder, free and clear of Class A Common Stock all security interests, claims, liens, restrictions on transferability, legends, proxies, equities or other encumbrances, other than the Custody Agreement (as defined below). Upon delivery of and payment for the Firm Shares to be sold by such Selling Shareholder hereunder, the several Underwriters will acquire valid and marketable title thereto, free and clear of any security interests, claims, liens, restrictions on transferability, proxies, equities or other encumbrances. Such Selling Shareholder is selling the Firm Shares to be sold by such Selling Shareholder for such Selling Shareholder’s own account and is not selling such Firm Shares, directly or indirectly, for the benefit of the Company, that are convertible into 2,300,000 Sharesand no part of the proceeds of such sale received by such Selling Shareholder will inure, either directly or indirectly, to the benefit of the Company other than as described in the Registration Statement and Prospectus.
(b) Such Selling Shareholder will have, valid and unencumbered title to has the Shares on each Applicable Closing Date, to be delivered by the Selling Shareholder on such Applicable Closing Date and full right, power and authority to enter into this Agreement and to sell, assign, transfer and deliver the Firm Shares to be delivered sold by the such Selling Shareholder on such Applicable Closing Date hereunder; and upon the delivery of and payment for such Shares on each Applicable Closing Date hereunder, the several Underwriters will acquire valid and unencumbered title to the Shares to be delivered by the Selling Shareholder on such Applicable Closing DateShareholder.
(c) No filing with, or authorization, approval, consent, license, order, registration, qualification or decree of, any court or governmental authority or agency is necessary or required for the performance by the Selling Shareholder of his obligations hereunder, in connection with the offering, issuance or sale of the Selling Shareholder Shares hereunder or the consummation of the transactions contemplated by this Agreement, except such as This Agreement has been already obtained or may be required under the Act or the Rules and Regulationsduly authorized, state securities laws or the bylaws and rules of the NASD in connection with the purchase and distribution by the Underwriters of the Selling Shareholder Shares and the Selling Shareholder Option Shares to be sold hereby;
(d) The Selling Shareholder has the legal right, power and all authorizations and approvals required by law to enter into the Custody Agreement (as defined in Section 4(j) hereof). This Agreement and the Custody Agreement have been duly executed and delivered by the or on behalf of such Selling Shareholder and each such agreement is constitutes a legal, valid and binding agreement of the such Selling Shareholder;, enforceable in accordance with its terms, except as rights to indemnity hereunder may be limited by federal or state securities laws and except as such enforceability may be limited by any Enforcement Limitation.
(d) Such Selling Shareholder has duly authorized, executed and delivered to Xxxxxxx X. Xxxxxx, as attorney-in-fact (the “Attorney-in-Fact”), an irrevocable power of attorney (a “Power of Attorney”) substantially in the form attached hereto as Exhibit B, authorizing and directing the Attorney-in-Fact, or either of them, to effect the sale and delivery of the Firm Shares being sold by such Selling Shareholder and to take all such other action as may be necessary hereunder. The Power of Attorney has been duly authorized, executed and delivered by or on behalf of such Selling Shareholder and constitutes a valid and binding obligation of such Selling Shareholder enforceable in accordance with its terms, except to the extent enforceability may be limited by any Enforcement Limitation.
(e) Such Selling Shareholder has duly authorized, executed and delivered a Letter of Transmittal and Custody Agreement (“Custody Agreement”) to Xxxxx Fargo Shareholder Services, substantially in the form attached hereto as Exhibit C, as Custodian (the “Custodian”). Pursuant to the Custody Agreement, such Selling Shareholder has in custody with the Custodian, for delivery under this Agreement, the certificates representing the Firm Shares to be sold by such Selling Shareholder; such certificates represent fully paid and nonassessable shares of Common Stock, and such certificates were duly and properly endorsed in blank for transfer, or were accompanied by all documents duly and properly executed that are necessary to validate the transfer of title thereto, to the Underwriters, free of any legend, restriction on transferability, proxy, lien or claim, whatsoever. The executionCustody Agreement has been duly authorized, executed and delivered by or on behalf of such Selling Shareholder and constitutes a valid and binding obligation of such Selling Shareholder enforceable in accordance with its terms, except to the extent enforceability may be limited by any Enforcement Limitation.
(f) The execution and delivery of this Agreement, the Power of Attorney and the Custody Agreement, and the performance of this Agreement the terms thereof and the consummation of the transactions therein contemplated by this Agreement will not result in a (A) breach or violation of any of the terms and in the Registration Statement (including the issuance and sale of such Selling Shareholder Shares and the Selling Shareholder Option Sharesprovisions of, if applicable) and compliance by the Selling Shareholder with his obligations under this Agreement and the Custody Agreement, do not and will not, whether with or without the giving of notice or lapse of time or both, conflict with or constitute a breach of, or default or Repayment Event under, any agreement or result in the creation or imposition of any lien, charge or encumbrance upon any property or assets of the Selling Shareholder pursuant to any contract, indenture, mortgage, deed of trust, loan or credit agreement, note, lease or any other agreements or instrument, instrument to which the such Selling Shareholder is a party or by which he may be such Selling Shareholder is bound, unless such conflict, breach, violation or default would not adversely affect such Selling Shareholder’s ability to which perform any of his or its obligations under this Agreement, the Custody Agreement and the Power of Attorney or any of the property transactions contemplated hereby and thereby; or assets (B) violation of any law, regulation, order or decree applicable to such Selling Shareholder. No consent, approval, authorization or order of, or filing with, any court or governmental agency or body is required for the execution, delivery and performance by such Selling Shareholder is subject (except thereof or for such conflicts, breaches, defaults, liens, charges or encumbrances that would not have a material adverse effect on the consummation of the transactions contemplated herein)hereby or thereby, nor will including the sale of the Firm Shares being sold by such action result in any violation of any applicable lawSelling Shareholder, statute, rule, regulation, judgment, order, writ except such as may be required under the Securities Act or decree, of any government, government instrumentality state securities laws or court, domestic or foreign, having jurisdiction over the blue sky laws.
(g) Such Selling Shareholder does not have any registration or other similar rights to have any respective properties, assets equity or operations;debt securities registered for sale by the Company under the Registration Statement or included in the offering contemplated by this Agreement.
(fh) The Such Selling Shareholder has not taken distributed and will not take, directly distribute any prospectus or indirectly, any action which is designed to or which has constituted stabilization or manipulation other offering material in connection with the offering and sale of the price of any security of the Company to facilitate the sale or resale of the Shares;
(g) Neither the Registration Statement, Firm Shares other than any Preliminary Prospectus, the Time of Sale Prospectus or the Prospectus or other materials permitted by the Securities Act to be distributed by such Selling Shareholder; provided, however, that no Selling Shareholder has made nor will make any amendment or supplement thereto offer relating to the Firm Shares that would constitute a “free writing prospectus” as defined in Rule 405 under the Securities Act except a Permitted Free Writing Prospectus authorized for distribution by the Company and the Underwriters.
(i) Such Selling Shareholder has reviewed the Registration Statement, the Time of Sale Prospectus and the Prospectus and neither the Registration Statement, the Time of Sale Prospectus nor the Prospectus contains any untrue statement of a material fact or omits to state therein a any material fact required to be stated therein or necessary to make the statements therein not misleadingtherein, in each case light of the circumstances under which they are made, not misleading regarding such Selling Shareholder, and, to the extent, but only to the extent, that knowledge of such untrue statement or omission was made in the Registration Statement, any Preliminary ProspectusSelling Shareholder, the Prospectus Company or any amendment or supplement thereto in reliance upon and in conformity with written information furnished to the Company by the Selling Shareholder pertaining, as such, for use therein;otherwise.
(hj) The To the knowledge of such Selling Shareholder has no reason to believe that Shareholder, the representations and warranties of the Company set forth contained in Section 3 1 are not true and correct in all material respects;
(i) The Selling Shareholder will deliver to you prior to or at each Applicable Closing Date a properly completed and executed Internal Revenue Service Form W-8BEN (or other applicable Form W-8;
(j) Certificates in negotiable form representing all of the Selling Shareholder Shares and the Selling Shareholder Option Shares to be sold by the Selling Shareholder have been placed in custody under a Custody Agreement, in the form heretofore furnished to you (the "CUSTODY AGREEMENT"), duly executed and delivered by the Selling Shareholder to American Stock Transfer & Trust Company as custodian (the "CUSTODIAN");
(k) The Selling Shareholder is not subject to any order or directive of, or party to any agreement with, any regulatory agency having jurisdiction with respect to him;
(l) 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 the arrangements made by the Selling Shareholder for such custody are to that extent irrevocable; the obligations of the Selling Shareholder hereunder shall not be terminated by operation of law, whether by the death or incapacity of the Selling Shareholder or, in the case of an estate or trust, by the death or incapacity of any executor or trustee or the termination of such estate or trust, or in the case of a partnership or corporation, by the dissolution of such partnership or corporation, or by the occurrence of any other event; if the Selling Shareholder or any such executor or trustee should die or become incapacitated, or if any such estate or trust should be terminated, or if any such partnership or corporation should be dissolved, or if any other such event should occur, before the delivery of the Shares hereunder, certificates representing the Shares shall be delivered by or on behalf of the Selling Shareholder in accordance with the terms and conditions of this Agreement and the Custody Agreement and shall be as valid as if such death, incapacity, termination, dissolution or other event had not occurred, regardless of whether or not the Custodian shall have received notice of such death, incapacity, termination, dissolution or other eventcorrect.
Appears in 1 contract
Samples: Purchase Agreement (Datalink Corp)
Representations and Warranties of the Selling Shareholder. The Selling Shareholder represents, represents and warrants to and covenants, solely agrees with respect to himself and the number of Selling Shareholder Shares and the Selling Shareholder Option Shares set forth opposite his name on Schedule I hereto, to each Underwriter that:
(a) The Selling Shareholder This Agreement has valid been duly authorized, executed and unencumbered title to 2,300,000 shares of Class A Common Stock delivered by or on behalf of the Company, that are convertible into 2,300,000 SharesSelling Shareholder.
(b) Such 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, 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, 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, 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.
(c) The Selling Shareholder has, and on the Closing Date (as defined in Section 5 hereof) will have, valid and unencumbered title to 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 on each Applicable Closing Date, to be delivered sold by the Selling Shareholder on such Applicable Closing Date free and full rightclear of all security interests, power claims, liens, equities or other encumbrances and authority the legal right and power, and all authorization and approval required by law, to enter into this Agreement and to sell, assign, transfer and deliver the Shares to be delivered sold by the Selling Shareholder on or a security entitlement in respect of such Applicable Closing Date hereunder; and upon the delivery of and Shares.
(d) Upon payment for such Shares on each Applicable Closing Date hereunder, the several Underwriters will acquire valid and unencumbered title to the Shares to be delivered sold by the Selling Shareholder pursuant to this Agreement, delivery of such Shares, as directed by the Underwriter, 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 Underwriter (assuming that neither DTC nor the Underwriter has notice of any adverse claim (within the meaning of Section 8-105 of the UCC) to such Applicable Closing DateShares), (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 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 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 account of the Underwriter on the records of DTC will have been made pursuant to the UCC.
(c) No filing with, or authorization, approval, consent, license, order, registration, qualification or decree of, any court or governmental authority or agency is necessary or required for the performance by the Selling Shareholder of his obligations hereunder, in connection with the offering, issuance or sale of the Selling Shareholder Shares hereunder or the consummation of the transactions contemplated by this Agreement, except such as has been already obtained or may be required under the Act or the Rules and Regulations, state securities laws or the bylaws and rules of the NASD in connection with the purchase and distribution by the Underwriters of the Selling Shareholder Shares and the Selling Shareholder Option Shares to be sold hereby;
(de) The Selling Shareholder has no reason to believe (without independent investigation) that the legal right, power representations and all authorizations and approvals required by law to enter into warranties of the Custody Agreement (as defined Company contained in Section 4(j1 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 which is not set forth in the Prospectus to sell its Shares pursuant to this Agreement.
(i) hereof). This Agreement 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 Custody Agreement have been duly executed 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, except that the representations and delivered warranties set forth in paragraph 2(f) apply only to statements or omissions in or incorporated by reference in the Registration Statement or the Prospectus furnished to the Company in writing by or on behalf of the Selling Shareholder expressly for use therein. The Company and each such agreement is a legalthe Underwriter acknowledge that the information on the Selling Shareholder appearing in the Prospectus in constitute the only information furnished by or on behalf of the Selling Shareholder to the Company expressly for use in the Registration Statement and the Prospectus.
(g) There are no legal or governmental proceedings pending or, valid and binding agreement to the knowledge of the Selling Shareholder;
(e) The execution, delivery and performance of this Agreement and the consummation of the transactions contemplated by this Agreement and in the Registration Statement (including the issuance and sale of such Selling Shareholder Shares and the Selling Shareholder Option Shares, if applicable) and compliance by the Selling Shareholder with his obligations under this Agreement and the Custody Agreement, do not and will not, whether with or without the giving of notice or lapse of time or both, conflict with or constitute a breach of, or default or Repayment Event under, or result in the creation or imposition of any lien, charge or encumbrance upon any property or assets of the Selling Shareholder pursuant to any contract, indenture, mortgage, deed of trust, loan or credit agreement, note, lease or any other agreements or instrument, threatened to which the Selling Shareholder is a party or by which he may be bound, or to which any of the property or assets properties of the Selling Shareholder is subject (except for such conflicts, breaches, defaults, liens, charges or encumbrances other than proceedings that would not have a material adverse effect on the transactions contemplated herein), nor will such action result in any violation power or ability of any applicable law, statute, rule, regulation, judgment, order, writ or decree, of any government, government instrumentality or court, domestic or foreign, having jurisdiction over the Selling Shareholder to perform its obligations under this Agreement or any respective properties, assets or operations;to consummate the transactions contemplated by the Prospectus.
(fh) The Selling Shareholder has not taken taken, and will not take, directly or indirectly, any action which is designed to to, or which has constituted might reasonably be expected to, cause or result in stabilization or nor manipulation of the price of any security of the Company to facilitate the sale or resale of the Shares;
(g) Neither the Registration Statement, any Preliminary Prospectus, the Prospectus or any amendment or supplement thereto contains any untrue statement of a material fact or omits to state therein a material fact required to be stated therein or necessary to make the statements therein not misleading, in each case Shares pursuant to the extentdistribution contemplated by this Agreement, but only to and other than as permitted by the extentSecurities Act, that such untrue statement or omission was made in the Registration Statement, any Preliminary Prospectus, the Prospectus or any amendment or supplement thereto in reliance upon and in conformity with written information furnished to the Company by the Selling Shareholder pertaining, as such, for use therein;
(h) The Selling Shareholder has no reason to believe that not distributed and will not distribute any prospectus or other offering material in connection with the representations offering and warranties sale of the Company set forth in Section 3 are not true and correct in all material respects;
(i) The Selling Shareholder will deliver to you prior to or at each Applicable Closing Date a properly completed and executed Internal Revenue Service Form W-8BEN (or other applicable Form W-8;
(j) Certificates in negotiable form representing all of the Selling Shareholder Shares and the Selling Shareholder Option Shares to be sold by the Selling Shareholder have been placed in custody under a Custody Agreement, in the form heretofore furnished to you (the "CUSTODY AGREEMENT"), duly executed and delivered by the Selling Shareholder to American Stock Transfer & Trust Company as custodian (the "CUSTODIAN");
(k) The Selling Shareholder is not subject to any order or directive of, or party to any agreement with, any regulatory agency having jurisdiction with respect to him;
(l) 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 the arrangements made by the Selling Shareholder for such custody are to that extent irrevocable; the obligations of the Selling Shareholder hereunder shall not be terminated by operation of law, whether by the death or incapacity of the Selling Shareholder or, in the case of an estate or trust, by the death or incapacity of any executor or trustee or the termination of such estate or trust, or in the case of a partnership or corporation, by the dissolution of such partnership or corporation, or by the occurrence of any other event; if the Selling Shareholder or any such executor or trustee should die or become incapacitated, or if any such estate or trust should be terminated, or if any such partnership or corporation should be dissolved, or if any other such event should occur, before the delivery of the Shares hereunder, certificates representing the Shares shall be delivered by or on behalf of the Selling Shareholder in accordance with the terms and conditions of this Agreement and the Custody Agreement and shall be as valid as if such death, incapacity, termination, dissolution or other event had not occurred, regardless of whether or not the Custodian shall have received notice of such death, incapacity, termination, dissolution or other eventShares.
Appears in 1 contract
Representations and Warranties of the Selling Shareholder. The Selling Shareholder represents, represents and warrants to and covenants, solely agrees with respect to himself and each of the number of Selling Shareholder Shares and the Selling Shareholder Option Shares set forth opposite his name on Schedule I hereto, to each Underwriter Underwriters that:
(a) The Selling Shareholder This Agreement has valid been executed and unencumbered title to 2,300,000 shares of Class A Common Stock delivered by or on behalf of the Company, that are convertible into 2,300,000 SharesSelling Shareholder.
(b) Such 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 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 the case of such conflicts, breaches and violations that would not reasonably be expected to affect the validity of the Shares or have a material adverse effect on the ability of the Selling Shareholder to consummate the transactions contemplated by this Agreement, and no consent, approval, authorization or order of, or qualification with, any governmental body, agency or court is required for the performance by the Selling Shareholder of its obligations under this Agreement of the Selling Shareholder, except such as (A) may be required by the securities or Blue Sky laws of the various states in connection with the offer and sale of the Shares or (B) have already been obtained.
(c) The Selling Shareholder has, and on the Closing Date will have, valid and unencumbered title to 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 on each Applicable Closing Date, to be delivered sold by the Selling Shareholder on such Applicable Closing Date free and full rightclear of all security interests, power claims, liens, equities or other encumbrances and authority the legal right and power, and all authorization and approval required by law, to enter into this Agreement and to sell, assign, transfer and deliver the Shares to be delivered sold by the Selling Shareholder on or a security entitlement in respect of such Applicable Closing Date hereunder; and upon the delivery of and Shares.
(d) Upon payment for such Shares on each Applicable Closing Date hereunder, the several Underwriters will acquire valid and unencumbered title to the Shares to be delivered 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 Applicable Closing DateUnderwriter 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.
(c) No filing with, or authorization, approval, consent, license, order, registration, qualification or decree of, any court or governmental authority or agency is necessary or required for the performance by the Selling Shareholder of his obligations hereunder, in connection with the offering, issuance or sale of the Selling Shareholder Shares hereunder or the consummation of the transactions contemplated by this Agreement, except such as has been already obtained or may be required under the Act or the Rules and Regulations, state securities laws or the bylaws and rules of the NASD in connection with the purchase and distribution by the Underwriters of the Selling Shareholder Shares and the Selling Shareholder Option Shares to be sold hereby;
(de) The Selling Shareholder has delivered to the legal right, power and all authorizations and approvals required by law to enter into Representatives an executed lock-up agreement in substantially the Custody Agreement form attached hereto as Exhibit A (as defined in Section 4(j) hereof). This Agreement and the Custody Agreement have been duly executed and delivered by the Selling Shareholder and each such agreement is a legal, valid and binding agreement of the Selling Shareholder;
(e) The execution, delivery and performance of this Agreement and the consummation of the transactions contemplated by this Agreement and in the Registration Statement (including the issuance and sale of such Selling Shareholder Shares and the Selling Shareholder Option Shares, if applicable) and compliance by the Selling Shareholder with his obligations under this Agreement and the Custody Agreement, do not and will not, whether with or without the giving of notice or lapse of time or both, conflict with or constitute a breach of, or default or Repayment Event under, or result in the creation or imposition of any lien, charge or encumbrance upon any property or assets of the Selling Shareholder pursuant to any contract, indenture, mortgage, deed of trust, loan or credit agreement, note, lease or any other agreements or instrument, to which the Selling Shareholder is a party or by which he may be bound, or to which any of the property or assets of the Selling Shareholder is subject (except for such conflicts, breaches, defaults, liens, charges or encumbrances that would not have a material adverse effect on the transactions contemplated herein), nor will such action result in any violation of any applicable law, statute, rule, regulation, judgment, order, writ or decree, of any government, government instrumentality or court, domestic or foreign, having jurisdiction over the Selling Shareholder or any respective properties, assets or operations;“Lock-up Agreement”).1
(f) The Selling Shareholder has not taken no reason to believe that the representations and will not take, directly or indirectly, any action which is designed to or which has constituted stabilization or manipulation of the price of any security warranties of the Company to facilitate the sale or resale of the Shares;
(g) Neither 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 Preliminary Prospectusmaterial 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 amendment information concerning the Company or supplement thereto contains its subsidiaries that is not set forth in the Registration Statement, the Time of Sale Prospectus or the Prospectus to sell its Shares pursuant to this Agreement. 1 NTD: To be confirmed what other existing shareholders are to be locked up and whether shares of Cartrack need also to be locked up.
(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 omits omit to state therein 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 case sale of the Shares in connection with the offering when the Prospectus is not yet available to prospective purchasers and at the extentClosing Date (as defined in Section 5), but only to the extentTime of Sale Prospectus, that such as then amended or supplemented by the Company, if applicable, will not, contain any untrue statement of a material fact or omission was made 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 (v) 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, except that the representations and warranties set forth in this paragraph do not apply to statements or omissions in the Registration Statement, any Preliminary Prospectus, the Time of Sale Prospectus or the Prospectus or based upon information relating to any amendment or supplement thereto in reliance upon and in conformity with written information Underwriter furnished to the Company in writing by such Underwriter through the Representatives expressly for use therein.
(i) None of the Selling Shareholder pertainingor, as suchto the knowledge of the Selling Shareholder, for use therein;any employee, agent, representative, or affiliate thereof, is a Person that is, or is owned or controlled by one or more Persons that are:
(hA) 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 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 has no reason to believe 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 representations and warranties time of the Company set forth dealing or transaction is or was the subject of Sanctions.
(a) Neither the Selling Shareholder nor, to the knowledge of the Selling Shareholder, any employee, agent, representative, or affiliate thereof has taken or will take any action in Section 3 are 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; and (b) the Selling Shareholder has conducted their business in compliance with applicable anti-corruption laws and will not true and correct use, directly or indirectly, the proceeds of the offering in all material respects;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 anti-corruption laws applicable to the Selling Shareholder.
(i) The Selling Shareholder will deliver represents and warrants that it is not (i) an employee benefit plan subject to you prior Title I of the Employee Retirement Income Security Act of 1974, as amended (“ERISA”), (ii) a plan or account subject to or at each Applicable Closing Date a properly completed and executed Section 4975 of the Internal Revenue Service Form W-8BEN Code of 1986, as amended or (iii) an entity deemed to hold “plan assets” of any such plan or other applicable Form W-8;account under Section 3(42) of ERISA, 29 C.F.R. 2510.3-101, or otherwise.
(j) Certificates in negotiable form representing all of the Selling Shareholder Shares and the Selling Shareholder Option Shares to be sold by the Selling Shareholder have been placed in custody under a Custody AgreementNo stamp, in the form heretofore furnished to you (the "CUSTODY AGREEMENT")documentary, duly executed and delivered by the Selling Shareholder to American Stock Transfer & Trust Company as custodian (the "CUSTODIAN");
(k) The Selling Shareholder is not subject to any order issuance, registration, transfer withholding, capital gains, income or directive of, other similar taxes or party to any agreement with, any regulatory agency having jurisdiction with respect to him;
(l) The Shares represented by the certificates held in custody for the Selling Shareholder under the Custody Agreement duties are subject to the interests of the Underwriters hereunder and the arrangements made by the Selling Shareholder for such custody are to that extent irrevocable; the obligations of the Selling Shareholder hereunder shall not be terminated by operation of law, whether by the death or incapacity of the Selling Shareholder or, in the case of an estate or trust, by the death or incapacity of any executor or trustee or the termination of such estate or trust, or in the case of a partnership or corporation, by the dissolution of such partnership or corporation, or by the occurrence of any other event; if the Selling Shareholder or any such executor or trustee should die or become incapacitated, or if any such estate or trust should be terminated, or if any such partnership or corporation should be dissolved, or if any other such event should occur, before the delivery of the Shares hereunder, certificates representing the Shares shall be delivered payable by or on behalf of the Underwriters in the Republic of Singapore or the Republic of South Africa or to any taxing authority thereof or therein in connection with (i) the sale and delivery of the Shares by the Selling Shareholder to the Underwriters or purchasers procured by the Underwriters, or (ii) the resale and delivery of such Shares by the Underwriters in accordance with the terms manner contemplated herein, provided that all electronic records and conditions any information relating to transfers of the Shares are not electronically received by persons in Singapore, stored on any server or device in Singapore or made accessible to any person in Singapore.
(a) 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(c), 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 and in any of the Custody Agreement and shall be as valid as if such death, incapacity, termination, dissolution or other event had not occurred, regardless of whether or not the Custodian shall have received notice of such death, incapacity, termination, dissolution or other eventSpecified Courts.
Appears in 1 contract
Representations and Warranties of the Selling Shareholder. The Selling Shareholder represents, represents and warrants to and covenants, solely agrees with respect to himself and each of the number of Selling Shareholder Shares and the Selling Shareholder Option Shares set forth opposite his name on Schedule I hereto, to each Underwriter Underwriters that:
(a) The Selling Shareholder This Agreement has valid been duly executed and unencumbered title to 2,300,000 shares of Class A Common Stock delivered by or on behalf of the Company, that are convertible into 2,300,000 SharesSelling Shareholder.
(b) Such 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 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. No consent, approval, authorization or order of, or qualification with, any governmental body, agency or court is required for the performance by the Selling Shareholder of its obligations under this 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.
(c) The Selling Shareholder has, and on the Closing Date will have, valid and unencumbered title to to, or a valid “security entitlement” within the meaning of Section 8-501 of the New York Uniform Commercial Code as in effect in the State of New York (the “UCC”) in respect of, the Shares on each Applicable Closing Date, to be delivered sold by the Selling Shareholder on such Applicable Closing Date free and full rightclear of all security interests, power claims, liens, equities or other encumbrances and authority the legal right and power, and all authorization and approval required by law, to enter into this Agreement and to sell, assign, transfer and deliver the Shares to be delivered sold by the Selling Shareholder on or a security entitlement in respect of such Applicable Closing Date hereunder; and upon the delivery of and Shares.
(d) Upon payment for such Shares on each Applicable Closing Date hereunder, the several Underwriters will acquire valid and unencumbered title to the Shares to be delivered sold by the Selling Shareholder to the Underwriters 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: (A) under Section 8-501 of the UCC, such Applicable Closing Date.
Underwriters will acquire a “security entitlement” (cwithin the meaning of Section 8-102(a)(17) No filing withof the UCC) in respect of such Shares; and (B) assuming such Underwriters have so acquired such security entitlement without notice of any “adverse claim” (within the meaning of Sections 8-102(a)(1) and 8-105 of the UCC) to such Shares, or authorizationno action based on any “adverse claim” (within the meaning of Sections 8-102(a)(1) and 8-105 of the UCC) to such Shares may be asserted against the Underwriters with respect to such security entitlement. For purposes of this representation, approvalthe Selling Shareholder may assume that when such payment, consentdelivery, licenseregistration and crediting occur, order, registration, qualification or decree of, any court or governmental authority or agency is necessary or required for (x) the performance Shares being sold by the Selling Shareholder will have been registered in the name of his obligations hereunderCede or such other nominee as may be designated by DTC, in connection 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 offering, issuance or sale meaning of Section 8-102 of the Selling Shareholder Shares hereunder or the consummation UCC and its jurisdiction for purposes of Article 8 of the transactions contemplated by this Agreement, except such as has been already obtained or may UCC will be required under the Act or the Rules and Regulations, state securities laws or the bylaws and rules State of the NASD in connection with New York and (z) appropriate entries to the purchase and distribution by the Underwriters accounts of the Selling Shareholder Shares and several Underwriters on the Selling Shareholder Option Shares records of DTC will have been made pursuant to be sold hereby;the UCC.
(de) The Selling Shareholder has delivered to Xxxxxx Xxxxxxx an executed lock-up agreement in substantially the legal right, power and all authorizations and approvals required by law to enter into form attached hereto as Exhibit A (the Custody Agreement (as defined in Section 4(j) hereof“Lock-up Agreement”). This Agreement and the Custody Agreement have been duly executed and delivered by the Selling Shareholder and each such agreement is a legal, valid and binding agreement of the Selling Shareholder;
(e) The execution, delivery and performance of this Agreement and the consummation of the transactions contemplated by this Agreement and in the Registration Statement (including the issuance and sale of such Selling Shareholder Shares and the Selling Shareholder Option Shares, if applicable) and compliance by the Selling Shareholder with his obligations under this Agreement and the Custody Agreement, do not and will not, whether with or without the giving of notice or lapse of time or both, conflict with or constitute a breach of, or default or Repayment Event under, or result in the creation or imposition of any lien, charge or encumbrance upon any property or assets of the Selling Shareholder pursuant to any contract, indenture, mortgage, deed of trust, loan or credit agreement, note, lease or any other agreements or instrument, to which the Selling Shareholder is a party or by which he may be bound, or to which any of the property or assets of the Selling Shareholder is subject (except for such conflicts, breaches, defaults, liens, charges or encumbrances that would not have a material adverse effect on the transactions contemplated herein), nor will such action result in any violation of any applicable law, statute, rule, regulation, judgment, order, writ or decree, of any government, government instrumentality or court, domestic or foreign, having jurisdiction over the Selling Shareholder or any respective properties, assets or operations;.
(f) The Selling Shareholder has not taken and will not take, directly To the extent that any statements or indirectly, any action which is designed to or which has constituted stabilization or manipulation of the price of any security of the Company to facilitate the sale or resale of the Shares;
(g) Neither omissions made in the Registration Statement, any Preliminary the Time of Sale Prospectus, the Prospectus or any amendment or supplement thereto contains are made in reliance upon and in conformity with the written information relating to the Selling Shareholder furnished to the Company by the Selling Shareholder expressly for use therein, such Registration Statement, the Time of Sale Prospectus, the Prospectus and any further amendments or supplements thereto do not and will not contain any untrue statement of a material fact or omits omit to state therein a any material fact (in the case of the Registration Statement, required to be stated therein therein) or necessary to make the statements therein not misleading, in each case to the extent, but only to the extent, that such untrue statement or omission was made (in the Registration Statement, case of any Preliminary Prospectus, the Prospectus or any amendment or supplement thereto in reliance upon and in conformity with written information furnished to the Company by the Selling Shareholder pertaining, as such, for use therein;
(h) The Selling Shareholder has no reason to believe that the representations and warranties of the Company set forth in Section 3 are not true and correct in all material respects;
(i) The Selling Shareholder will deliver to you prior to or at each Applicable Closing Date a properly completed and executed Internal Revenue Service Form W-8BEN (or other applicable Form W-8;
(j) Certificates in negotiable form representing all of the Selling Shareholder Shares and the Selling Shareholder Option Shares to be sold by the Selling Shareholder have been placed in custody under a Custody Agreement, in the form heretofore light of the circumstances under which they were made) not misleading; it being understood and agreed that the only such information furnished to you (the "CUSTODY AGREEMENT"), duly executed and delivered by the Selling Shareholder to American Stock Transfer & Trust the Company as custodian consists of (A) the legal name, address and the number of Shares beneficially owned by the Selling Shareholder before and after the offering and (B) the other information with respect to the Selling Shareholder (excluding percentages) which appear in the table (and corresponding footnotes) under the captions “Selling Stockholder” and “Principal and Selling Stockholders” in the Prospectus (the "CUSTODIAN"“Selling Shareholder Information”);.
(kg) The Selling Shareholder is not prompted by 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.
(i) Neither the Selling Shareholder, nor, to the knowledge of the Selling Shareholder, any 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 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 order joint venture partner or directive ofother 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;
(B) in any other manner that would cause or result in a violation of any Anti-Corruption Laws, Anti-Money Laundering Laws or Sanctions by any Person (including any Party to this Agreement); or
(C) in furtherance of any offer, payment, promise to pay, or party authorization of the payment or giving of money, or anything else of value, to any agreement withPerson in violation of any Anti-Money Laundering Laws or any applicable anti-bribery or anti-corruption laws.
(iii) Neither the Selling Shareholder, nor, to the knowledge of the Selling Shareholder, any regulatory agency having jurisdiction 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 person in order to influence official action, or to any person in violation of the Anti-Corruption Laws.
(iv) No action, suit or proceeding by or before any court or governmental agency, authority or body or any arbitrator involving the Selling Shareholder with respect to him;
(l) The Shares represented by the certificates held in custody for the Selling Shareholder under the Custody Agreement are subject Anti-Money Laundering Laws, Anti-Corruption Laws, or Sanctions is pending or, to the interests of the Underwriters hereunder and the arrangements made by the Selling Shareholder for such custody are to that extent irrevocable; the obligations best knowledge of the Selling Shareholder hereunder shall not be terminated by operation of lawShareholder, whether by the death or incapacity of the Selling Shareholder or, in the case of an estate or trust, by the death or incapacity of any executor or trustee or the termination of such estate or trust, or in the case of a partnership or corporation, by the dissolution of such partnership or corporation, or by the occurrence of any other event; if the Selling Shareholder or any such executor or trustee should die or become incapacitated, or if any such estate or trust should be terminated, or if any such partnership or corporation should be dissolved, or if any other such event should occur, before the delivery of the Shares hereunder, certificates representing the Shares shall be delivered by or on behalf of the Selling Shareholder in accordance with the terms and conditions of this Agreement and the Custody Agreement and shall be as valid as if such death, incapacity, termination, dissolution or other event had not occurred, regardless of whether or not the Custodian shall have received notice of such death, incapacity, termination, dissolution or other event.threatened
Appears in 1 contract
Representations and Warranties of the Selling Shareholder. The Selling Shareholder represents, warrants and covenants, solely with respect to himself and the number of Selling Shareholder Shares and the Selling Shareholder Option Shares set forth opposite his name on Schedule I hereto, to each Underwriter that:
(a) The Selling Shareholder has valid is the lawful owner of the Shares of Common Stock to be sold by him pursuant to this Agreement and unencumbered has, and on the Option Closing Date will have, good and clear title to 2,300,000 shares such Shares, free of Class A Common Stock of the Companyall restrictions on transfer, that are convertible into 2,300,000 Sharesliens, encumbrances, security interests and claims whatsoever.
(b) Such Upon delivery of and payment for such Shares pursuant to this Agreement, good and clear title to such Shares will pass to you, free of all restrictions on transfer, liens, encumbrances, security interests and claims whatsoever.
(c) The Selling Shareholder has, and on the Option Closing Date will have, valid and unencumbered title to the Shares on each Applicable Closing Date, to be delivered by the Selling Shareholder on such Applicable Closing Date and full legal right, power and authority to enter into this Agreement and the Custody Agreement between the Selling Shareholder and U.S. Stock Transfer Corporation, Custodian (the "Custody Agreement") and to sell, assign, transfer and deliver the Shares to be delivered by the Selling Shareholder on such Applicable Closing Date hereunder; and upon the delivery of and payment for such Shares on each Applicable Closing Date hereunderin the manner provided herein and therein, the several Underwriters will acquire valid and unencumbered title to the Shares to be delivered by the Selling Shareholder on such Applicable Closing Date.
(c) No filing with, or authorization, approval, consent, license, order, registration, qualification or decree of, any court or governmental authority or agency is necessary or required for the performance by the Selling Shareholder of his obligations hereunder, in connection with the offering, issuance or sale of the Selling Shareholder Shares hereunder or the consummation of the transactions contemplated by this Agreement, except such as has been already obtained or may be required under the Act or the Rules and Regulations, state securities laws or the bylaws and rules of the NASD in connection with the purchase and distribution by the Underwriters of the Selling Shareholder Shares and the Selling Shareholder Option Shares to be sold hereby;
(d) The Selling Shareholder has the legal right, power and all authorizations and approvals required by law to enter into the Custody Agreement (as defined in Section 4(j) hereof). This Agreement and the Custody Agreement have been duly authorized, executed and delivered by the or on behalf of such Selling Shareholder and each such agreement of this Agreement and the Custody Agreement is a legal, valid and binding agreement of the Selling Shareholder enforceable against the Selling Shareholder in accordance with its terms, except as rights to indemnity and contribution hereunder may be limited by applicable law and except as the enforcement thereof may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or other similar laws relating to or affecting creditors' rights generally or by general equitable principles.
(d) All information furnished by or on behalf of the Selling Shareholder relating to the Selling Shareholder and the Selling Shareholder;'s Shares that is set forth in the Registration Statement and the Prospectus is, and at the time the Registration Statement became or becomes, as the case may be, effective and at all times subsequent thereto up to and on the Option Closing Date (hereinafter defined) was or will be, true, correct and complete, and does not, and at the time the Registration Statement became or becomes, as the case may be, effective and at all times subsequent thereto up to and on the Option 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 such information not misleading.
(e) Neither the Selling Shareholder nor any of the Selling Shareholder's affiliates directly, or indirectly through one or more intermediaries, controls, or is controlled by, or is under common control with, or had any other association with (within the meaning of Article I of the Bylaws of the National Association of Securities Dealers, Inc. (the "NASD")), any member firm of the NASD.
(f) This Agreement has been duly and validly authorized, executed and delivered by the Selling Shareholder, and assuming due execution by the other party or parties hereto and thereto, constitutes valid and binding obligations of the Selling Shareholder enforceable against the Selling Shareholder in accordance with their respective terms, except as rights to indemnity and contribution hereunder may be limited by applicable law and except as enforceability may be limited by bankruptcy, insolvency or other laws affecting the rights of creditors generally or by general equitable principles. The executionSelling Shareholder has full power and lawful authority to authorize, issue and sell the Securities to be sold by it hereunder on the terms and conditions set forth herein, and no consent, approval, authorization or other order of any governmental authority is required in connection with such authorization, execution and delivery or with the authorization, issue and performance sale of this Agreement the Shares, except such as may be required under the Act or state securities laws.
(g) Except as described in the Prospectus, the Selling Shareholder is not in material violation, breach or default of or under, and the consummation of the transactions herein contemplated by this Agreement and in the Registration Statement (including the issuance and sale of such Selling Shareholder Shares and the Selling Shareholder Option Shares, if applicable) and compliance by fulfillment of the Selling Shareholder with his obligations under terms of this Agreement and the Custody Agreement, do will not and will notconflict with, whether with or without the giving of notice or lapse of time or both, conflict with or constitute result in a breach of, any of the terms or provisions of, or constitute a default or Repayment Event under, or result in the creation or imposition of any lien, charge or encumbrance upon any property or assets of the Selling Shareholder pursuant to the terms of, any contract, indenture, mortgage, deed of trust, loan agreement or credit agreement, note, lease other agreement or any other agreements or instrument, instrument to which the Selling Shareholder is a party or by which he the Selling Shareholder may be bound, bound or to which any of the property or assets of the Selling Shareholder is subject (except for such conflictsare subject, breaches, defaults, liens, charges or encumbrances that which would not have a material adverse effect on the transactions contemplated herein)business, properties or financial condition of the Selling Shareholder, nor will such action result in any violation of any applicable law, statute, rule, regulation, judgment, statute or any order, writ rule or decree, regulation applicable to the Selling Shareholder of any government, government instrumentality court or court, domestic of any regulatory authority or foreign, other governmental body having jurisdiction over the Selling Shareholder Shareholder, which would have a material adverse effect on the business, properties or any respective properties, assets or operations;financial condition of the Selling Shareholder.
(fh) The Selling Shareholder has not taken and will not take, directly or indirectly, any action which is designed to cause or result in, or which has constituted or which might reasonably be expected to constitute, the stabilization or manipulation of the price of any security of the Company Shares or to facilitate the sale or resale of the Shares;
(g) Neither the Registration Statement, any Preliminary Prospectus, the Prospectus or any amendment or supplement thereto contains any untrue statement of a material fact or omits to state therein a material fact required to be stated therein or necessary to make the statements therein not misleading, in each case to the extent, but only to the extent, that such untrue statement or omission was made in the Registration Statement, any Preliminary Prospectus, the Prospectus or any amendment or supplement thereto in reliance upon and in conformity with written information furnished to the Company by the Selling Shareholder pertaining, as such, for use therein;
(h) The Selling Shareholder has no reason to believe that the representations and warranties of the Company set forth in Section 3 are not true and correct in all material respects;.
(i) The Selling Shareholder will deliver to you prior to or at each Applicable Closing Date a properly completed and executed Internal Revenue Service Form W-8BEN (or other applicable Form W-8;
(j) Certificates in negotiable form representing all of the Selling Shareholder Shares and the Selling Shareholder Option Shares to be sold by the Selling Shareholder have been placed in custody under a Custody Agreement, in the form heretofore furnished to you (the "CUSTODY AGREEMENT"), duly executed and delivered by the Selling Shareholder to American Stock Transfer & Trust Company as custodian (the "CUSTODIAN");
(k) The Selling Shareholder is has not subject to any order or directive of, or party to entered into any agreement with, pursuant to which any regulatory agency having jurisdiction with respect person is entitled either directly or indirectly to him;
(l) The Shares represented by compensation from the certificates held Company for services as a finder in custody for the Selling Shareholder under the Custody Agreement are subject to the interests of the Underwriters hereunder and the arrangements made by the Selling Shareholder for such custody are to that extent irrevocable; the obligations of the Selling Shareholder hereunder shall not be terminated by operation of law, whether by the death or incapacity of the Selling Shareholder or, in the case of an estate or trust, by the death or incapacity of any executor or trustee or the termination of such estate or trust, or in the case of a partnership or corporation, by the dissolution of such partnership or corporation, or by the occurrence of any other event; if the Selling Shareholder or any such executor or trustee should die or become incapacitated, or if any such estate or trust should be terminated, or if any such partnership or corporation should be dissolved, or if any other such event should occur, before the delivery of the Shares hereunder, certificates representing the Shares shall be delivered by or on behalf of the Selling Shareholder in accordance connection with the terms and conditions of this Agreement and the Custody Agreement and shall be as valid as if such death, incapacity, termination, dissolution or other event had not occurred, regardless of whether or not the Custodian shall have received notice of such death, incapacity, termination, dissolution or other eventproposed public offering.
Appears in 1 contract
Samples: Underwriting Agreement (Team Communication Group Inc)
Representations and Warranties of the Selling Shareholder. The Selling Shareholder represents, represents and warrants and covenants, solely with respect to himself and the number of Selling Shareholder Shares and the Selling Shareholder Option Shares set forth opposite his name on Schedule I hereto, to each Underwriter and agrees as follows that:
(a) The Selling Shareholder has at the Option Closing Date (defined herein) will have valid and unencumbered title to 2,300,000 shares of Class A Common Stock of the Company, that are convertible into 2,300,000 Shares.
(b) Such Selling Shareholder will have, valid and unencumbered marketable title to the Shares on each Applicable Closing Date, set forth in Schedule II to be delivered sold by the Selling Shareholder on such Applicable Closing Date Shareholder, free and clear of any liens, encumbrances, equities and claims (other than as imposed by the Securities Act, state securities laws, the Registration Rights Agreement by and among the Company, Davix X. Xxxxxxx, Xx., Xxarxxx X. XxXxxxxxx, Xx. , Xdwix X. Xxxxx, Xx. ("Moatx") xnd O'Charley's Inc., a Tennessee corporation, or this Agreement), and full right, power and authority to enter into this Agreement effect the sale and to sell, assign, transfer and deliver the Shares to be delivered by the Selling Shareholder on delivery of such Applicable Closing Date hereunderShares; and upon the delivery of and payment for such Shares on each Applicable Closing Date hereunder, the several Underwriters will acquire valid and unencumbered title to the Shares to be delivered by the Selling Shareholder on such Applicable Closing Date.
(c) No filing with, or authorization, approval, consent, license, order, registration, qualification or decree of, any court or governmental authority or agency is necessary or required for the performance by the Selling Shareholder of his obligations hereunder, in connection with the offering, issuance or sale of the Selling Shareholder Shares hereunder or the consummation of the transactions contemplated by this Agreement, except such as has been already obtained or may be required under the Act or the Rules and Regulations, state securities laws or the bylaws and rules of the NASD in connection with the purchase and distribution by the Underwriters of the Selling Shareholder Shares and the Selling Shareholder Option Shares to be sold hereby;
(d) The Selling Shareholder has the legal right, power and all authorizations and approvals required by law to enter into the Custody Agreement (as defined in Section 4(j) hereof). This Agreement and the Custody Agreement have been duly executed and delivered by the Selling Shareholder and each such agreement is a legal, valid and binding agreement of the Selling Shareholder;
(e) The execution, delivery and performance of this Agreement and the consummation of the transactions contemplated by this Agreement and in the Registration Statement (including the issuance and sale of such Selling Shareholder Shares and the Selling Shareholder Option Shares, if applicable) and compliance by the Selling Shareholder with his obligations under this Agreement and the Custody Agreement, do not and will not, whether with or without the giving of notice or lapse of time or both, conflict with or constitute a breach of, or default or Repayment Event under, or result in the creation or imposition of any lien, charge or encumbrance upon any property or assets of the Selling Shareholder pursuant to any contract, indenture, mortgage, deed of trust, loan or credit agreement, note, lease or any other agreements or instrument, to which the Selling Shareholder is a party or by which he may be bound, or to which any of the property or assets of the Selling Shareholder is subject (except for such conflicts, breaches, defaults, liens, charges or encumbrances that would not have a material adverse effect on the transactions contemplated herein), nor will such action result in any violation of any applicable law, statute, rule, regulation, judgment, order, writ or decree, of any government, government instrumentality or court, domestic or foreign, having jurisdiction over the Selling Shareholder or any respective properties, assets or operations;
(f) The Selling Shareholder has not taken and will not take, directly or indirectly, any action which is designed to or which has constituted stabilization or manipulation of the price of any security of the Company to facilitate the sale or resale of the Shares;
(g) Neither the Registration Statement, any Preliminary Prospectus, the Prospectus or any amendment or supplement thereto contains any untrue statement of a material fact or omits to state therein a material fact required to be stated therein or necessary to make the statements therein not misleading, in each case to the extent, but only to the extent, that such untrue statement or omission was made in the Registration Statement, any Preliminary Prospectus, the Prospectus or any amendment or supplement thereto in reliance upon and in conformity with written information furnished to the Company by the Selling Shareholder pertaining, as such, for use therein;
(h) The Selling Shareholder has no reason to believe that the representations and warranties of the Company set forth in Section 3 are not true and correct in all material respects;
(i) The Selling Shareholder will deliver to you prior to or at each Applicable Closing Date a properly completed and executed Internal Revenue Service Form W-8BEN (or other applicable Form W-8;
(j) Certificates in negotiable form representing all of the Selling Shareholder Shares and the Selling Shareholder Option Shares to be sold by the Selling Shareholder have been placed in custody under a Custody pursuant to this Agreement, in valid and marketable title thereto, free and clear of any liens, encumbrances, equities and claims, will be transferred to the form heretofore furnished to you Underwriters.
(the "CUSTODY AGREEMENT"), b) The Selling Shareholder has duly executed and delivered by the Custody Agreement and Power of Attorney in the form previously delivered to the Underwriters, appointing Moatx xxx Davix X. XxXxxxxx, xxd each of them as the Selling Shareholder to American Stock Transfer Shareholder's attorney-in-fact (the "Attorney-in-Fact") and Wallxx Xxxsxxx Xxxxxx & Trust Company Davix, X Professional Limited Liability Company, as custodian (the "CUSTODIANCustodian");
(k) . The Attorney-in-Fact is authorized to perform this Agreement on behalf of the Selling Shareholder, to deliver the Shares to be sold by the Selling Shareholder hereunder, to accept payment therefor and otherwise to act on behalf of such Selling Shareholder in connection with this Agreement. Certificates, in suitable form for transfer by delivery or accompanied by duly executed instruments of transfer or assignment in blank, representing the Shares to be sold by the Selling Shareholder hereunder have been deposited with the Custodian pursuant to the Custody Agreement for the purpose of delivery pursuant to this Agreement. The Selling Shareholder is not subject to any order or directive of, or party to any agreement with, any regulatory agency having jurisdiction with respect to him;
(l) The Shares agrees that the shares of Common Stock represented by the certificates held in custody for on deposit with the Selling Shareholder under the Custody Agreement Custodian are subject to the interests interest of the Underwriters hereunder and hereunder, that the arrangements made by the Selling Shareholder for such custody and the appointment of the Attorney-in-Fact are to that extent irrevocable; , and that the obligations of the Selling Shareholder hereunder shall not be terminated by operation of law, whether by the death or incapacity of the Selling Shareholder or, in the case of an estate or trust, by the death or incapacity of any executor or trustee or the termination of such estate or trust, or in the case of a partnership or corporation, by the dissolution of such partnership or corporation, or by the occurrence of any other event; if the Selling Shareholder or any such executor or trustee should die or become incapacitated, or if any such estate or trust should be terminated, or if any such partnership or corporation should be dissolved, or if any other such event should occur, before the delivery of the Shares hereunder, certificates representing the Shares shall be delivered by or on behalf of the Selling Shareholder in accordance with the terms and conditions of this Agreement and the Custody Agreement and shall be as valid as if such death, incapacity, termination, dissolution or other event had not occurred, regardless of whether or not the Custodian shall have received notice of such death, incapacity, termination, dissolution or other event.
Appears in 1 contract
Representations and Warranties of the Selling Shareholder. The Selling Shareholder represents, represents and warrants to and covenants, solely agrees with respect to himself and each of the number of Selling Shareholder Shares and the Selling Shareholder Option Shares set forth opposite his name on Schedule I hereto, to each Underwriter Underwriters that:
(a) The Selling Shareholder This Agreement has valid been duly authorized, executed and unencumbered title to 2,300,000 shares of Class A Common Stock delivered by or on behalf of the Company, that are convertible into 2,300,000 SharesSelling Shareholder.
(b) Such 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 partnership agreement of the Selling 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, 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, 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 or has been obtained prior to the date of this Agreement.
(c) The Selling Shareholder has, and on the Option Closing Date (as defined below) will have, valid and unencumbered title to 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 on each Applicable Closing Date, to be delivered sold by the Selling Shareholder on such Applicable Closing Date Shareholder, free and full rightclear of all security interests, power claims, liens, equities or other encumbrances, and authority the legal right and power, and all authorization and approval required by law, to enter into this Agreement and to sell, assign, transfer and deliver the Shares to be delivered sold by the such Selling Shareholder on or a security entitlement in respect of such Applicable Closing Date hereunder; and upon the delivery of and payment for such Shares on each Applicable Closing Date hereunder, the several Underwriters will acquire valid and unencumbered title to the Shares to be delivered by the Selling Shareholder on such Applicable Closing DateShares.
(ce) No filing with, or authorization, approval, consent, license, order, registration, qualification or decree of, any court or governmental authority or agency is necessary or required Upon payment for the performance by the Selling Shareholder of his obligations hereunder, in connection with the offering, issuance or sale of the Selling Shareholder Shares hereunder or the consummation of the transactions contemplated by this Agreement, except such as has been already obtained or may be required under the Act or the Rules and Regulations, state securities laws or the bylaws and rules of the NASD in connection with the purchase and distribution by the Underwriters of the Selling Shareholder Shares and the Selling Shareholder Option Additional Shares to be sold hereby;
(d) The Selling Shareholder has the legal right, power and all authorizations and approvals required by law to enter into the Custody Agreement (as defined in Section 4(j) hereof). This Agreement and the Custody Agreement have been duly executed and delivered by the Selling Shareholder and each such agreement is a legal, valid and binding agreement of the Selling Shareholder;
(e) The execution, delivery and performance of this Agreement and the consummation of the transactions contemplated by this Agreement and in the Registration Statement (including the issuance and sale of such Selling Shareholder Shares and the Selling Shareholder Option Shares, if applicable) and compliance by the Selling Shareholder with his obligations under this Agreement and the Custody Agreement, do not and will not, whether with or without the giving of notice or lapse of time or both, conflict with or constitute a breach of, or default or Repayment Event under, or result in the creation or imposition of any lien, charge or encumbrance upon any property or assets of the Selling Shareholder pursuant to any contractthis Agreement, indenturedelivery of such Additional Shares, mortgage, deed of trust, loan or credit agreement, note, lease or any other agreements or instrumentas 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 Additional Shares in the name of Cede or such other nominee and the crediting of such Additional 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 Additional Shares), (A) DTC shall be a "protected purchaser" of such Additional 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 Additional Shares and (C) no action based on any "adverse claim", within the meaning of Section 8-102 of the UCC, to such Additional Shares may be asserted against the Underwriters with respect to such security entitlement; for purposes of this representation, such Selling Shareholder may assume that when such payment, delivery and crediting occur, (x) such Additional 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 Prospectus to sell its Additional Shares pursuant to this Agreement.
(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 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 the representations and warranties set forth in this paragraph 2(g) are limited to statements or omissions made in reliance upon information relating to the Selling Shareholder is a party or furnished to the Company in writing by which he may be bound, or to which any of the property or assets of the Selling Shareholder is subject (except expressly for such conflictsuse in the Registration Statement, breaches, defaults, liens, charges or encumbrances that would not have a material adverse effect on the transactions contemplated herein), nor will such action result in any violation of any applicable law, statute, rule, regulation, judgment, order, writ or decree, of any government, government instrumentality or court, domestic or foreign, having jurisdiction over the Selling Shareholder Prospectus or any respective properties, assets amendments or operations;supplements thereto.
(fh) The Selling Shareholder has not taken and will not take, directly or indirectly, any action which is designed to or which has constituted or which might reasonably be expected to cause or result in stabilization or manipulation of the price of any security of the Company or LLC Holdings to facilitate the sale or resale of the its Additional Shares;.
(gi) Neither the Registration Statement, any Preliminary Prospectus, the Prospectus or any amendment or supplement thereto contains any untrue statement of a material fact or omits to state therein a material fact required to be stated therein or necessary to make the statements therein not misleading, in each case to the extent, but only to the extent, that such untrue statement or omission was made in the Registration Statement, any Preliminary Prospectus, the Prospectus or any amendment or supplement thereto in reliance upon and in conformity with written information furnished to the Company Except as disclosed by the Selling Shareholder pertainingin writing to Xxxxxx Xxxxxxx, as such, for use therein;
(h) The Selling Shareholder has no reason to believe that the representations and warranties of the Company set forth in Section 3 are not true and correct in all material respects;
(i) The Selling Shareholder will deliver to you prior to or at each Applicable Closing Date a properly completed and executed Internal Revenue Service Form W-8BEN (or other applicable Form W-8;
(j) Certificates in negotiable form representing all of neither the Selling Shareholder Shares and nor any of his, her or its affiliates directly, or indirectly through one or more intermediaries, controls, or is controlled by, or is under common control with, or has any other association with (within the Selling Shareholder Option Shares to be sold by meaning of Article 1(q) of the Selling Shareholder have been placed in custody under a Custody AgreementBylaws of the National Association of Securities Dealers, in the form heretofore furnished to you Inc. (the "CUSTODY AGREEMENTNASD"), duly executed and delivered by the Selling Shareholder to American Stock Transfer & Trust Company as custodian (the "CUSTODIAN");
(k) The Selling Shareholder is not subject to any order or directive of, or party to any agreement with, any regulatory agency having jurisdiction with respect to him;
(l) The Shares represented by the certificates held in custody for the Selling Shareholder under the Custody Agreement are subject to the interests member firm of the Underwriters hereunder and the arrangements made by the Selling Shareholder for such custody are to that extent irrevocable; the obligations of the Selling Shareholder hereunder shall not be terminated by operation of law, whether by the death or incapacity of the Selling Shareholder or, in the case of an estate or trust, by the death or incapacity of any executor or trustee or the termination of such estate or trust, or in the case of a partnership or corporation, by the dissolution of such partnership or corporation, or by the occurrence of any other event; if the Selling Shareholder or any such executor or trustee should die or become incapacitated, or if any such estate or trust should be terminated, or if any such partnership or corporation should be dissolved, or if any other such event should occur, before the delivery of the Shares hereunder, certificates representing the Shares shall be delivered by or on behalf of the Selling Shareholder in accordance with the terms and conditions of this Agreement and the Custody Agreement and shall be as valid as if such death, incapacity, termination, dissolution or other event had not occurred, regardless of whether or not the Custodian shall have received notice of such death, incapacity, termination, dissolution or other eventNASD.
Appears in 1 contract
Representations and Warranties of the Selling Shareholder. The Selling Shareholder represents, represents and warrants to and covenants, solely agrees with respect to himself and each of the number of Selling Shareholder Shares and the Selling Shareholder Option Shares set forth opposite his name on Schedule I hereto, to each Underwriter Underwriters that:
(a) The Selling Shareholder This Agreement has valid been duly authorized, executed and unencumbered title to 2,300,000 shares of Class A Common Stock delivered by or on behalf of the Company, that are convertible into 2,300,000 SharesSelling Shareholder.
(b) Such The execution and delivery by the Selling Shareholder of, and the performance by the Selling Shareholder of its obligations under, this Agreement and the consummation of the transactions contemplated hereby will not contravene any provision of applicable law, or the Last Will and Testament of Alfred I. duPont, by which the Selling Shareholder was establxxxxx, xx xxx xxreement 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, 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, 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.
(c) The Selling Shareholder has, and on the Closing Date will have, valid and unencumbered title to 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 on each Applicable Closing Date, to be delivered sold by the Selling Shareholder on such Applicable Closing Date free and full rightclear of all security interests, power claims, liens, equities or other encumbrances and authority the legal right and power, and all authorization and approval required by law, to enter into this Agreement and to sell, assign, transfer and deliver the Shares to be delivered by the Selling Shareholder on or a security entitlement in respect of such Applicable Closing Date hereunder; and upon the delivery Shares.
(d) Delivery of and payment for such Shares on each Applicable Closing Date hereunder, the several Underwriters will acquire valid and unencumbered title to the Shares to be delivered by the Selling Shareholder on such Applicable Closing Date.
(c) No filing with, or authorization, approval, consent, license, order, registration, qualification or decree of, any court or governmental authority or agency is necessary or required for the performance by the Selling Shareholder of his obligations hereunder, in connection with the offering, issuance or sale of the Selling Shareholder Shares hereunder or the consummation of the transactions contemplated by this Agreement, except such as has been already obtained or may be required under the Act or the Rules and Regulations, state securities laws or the bylaws and rules of the NASD in connection with the purchase and distribution by the Underwriters of the Selling Shareholder Shares and the Selling Shareholder Option Shares to be sold hereby;
(d) The Selling Shareholder has the legal right, power and all authorizations and approvals required by law to enter into the Custody Agreement (as defined in Section 4(j) hereof). This Agreement and the Custody Agreement have been duly executed and delivered by the Selling Shareholder and each payment therefor pursuant to this Agreement will pass valid title to such agreement is a legalShares, valid free and binding agreement clear of any adverse claim within the meaning of Section 8-102 of the Selling Shareholder;New York Uniform Commercial Code, to each Underwriter who has purchased such Shares without notice of an adverse claim.
(e) The execution, delivery and performance of this Agreement and the consummation of the transactions contemplated by this Agreement and in the Registration Statement (including the issuance and sale of such Selling Shareholder Shares and the Selling Shareholder Option Shares, if applicable) and compliance by the Selling Shareholder with his obligations under this Agreement and the Custody Agreement, do not and will not, whether with or without the giving of notice or lapse of time or both, conflict with or constitute a breach of, or default or Repayment Event under, or result in the creation or imposition of any lien, charge or encumbrance upon any property or assets of the Selling Shareholder pursuant to any contract, indenture, mortgage, deed of trust, loan or credit agreement, note, lease or any other agreements or instrument, to which the Selling Shareholder is a party or by which he may be bound, or to which any of the property or assets of the Selling Shareholder is subject (except for such conflicts, breaches, defaults, liens, charges or encumbrances that would not have a material adverse effect on the transactions contemplated herein), nor will such action result in any violation of any applicable law, statute, rule, regulation, judgment, order, writ or decree, of any government, government instrumentality or court, domestic or foreign, having jurisdiction over the Selling Shareholder or any respective properties, assets or operations;
(f) The Selling Shareholder has not taken and will not take, directly or indirectly, any action which is 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 security of the Company to facilitate the sale or resale of the Shares;.
(gi) Neither To the best of the knowledge of the Selling Shareholder, after due inquiry, the Registration Statement, any Preliminary Prospectuswhen it became effective, the Prospectus did not contain and, as amended or any amendment or supplement thereto contains supplemented, if applicable, will not contain any untrue statement of a material fact or omits omit to state therein 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 each case to all material respects with the extentSecurities Act and the applicable rules and regulations of the Commission thereunder and (iii) the Prospectus does not contain and, but only to the extentas amended or supplemented, that such if applicable, will not contain any untrue statement of a material fact or omission was made omit to state a material fact necessary to make the statements therein, in the Registration Statementlight of the circumstances under which they were made, any Preliminary Prospectusnot misleading, the Prospectus or any amendment or supplement thereto in reliance upon and in conformity with written information furnished to the Company by the Selling Shareholder pertaining, as such, for use therein;
(h) The Selling Shareholder has no reason to believe except that the representations and warranties of the Company set forth in Section 3 are this paragraph 2(g) do not true and correct apply to statements or omissions in all material respects;the Registration Statement or the Prospectus based upon information relating to either Underwriter furnished to the Company in writing by such Underwriter expressly for use therein.
(ig) The the statements in the Base Prospectus under the caption "Alfred I. duPont Testamentary Trust," and in the Prospectus Supplement xxxxx the captions "Prospectus Summary and Recent Developments -- Alfred I. duPont Testamentary Trust" and "Selling Shareholder will deliver to you prior to or at each Applicable Closing Date a properly completed and executed Internal Revenue Service Form W-8BEN (or other applicable Form W-8;
(j) Certificates in negotiable form representing all Shareholder" insofar xx xxxh statements constitute summaries of the Selling Shareholder Shares and legal matters, documents or proceedings referred to therein, fairly present the Selling Shareholder Option Shares to be sold by the Selling Shareholder have been placed in custody under a Custody Agreement, in the form heretofore furnished to you (the "CUSTODY AGREEMENT"), duly executed and delivered by the Selling Shareholder to American Stock Transfer & Trust Company as custodian (the "CUSTODIAN");
(k) The Selling Shareholder is not subject to any order or directive of, or party to any agreement with, any regulatory agency having jurisdiction information called for with respect to him;
(l) The Shares represented by such legal matters, documents and proceedings and fairly summarize the certificates held in custody for the Selling Shareholder under the Custody Agreement are subject matters referred to the interests of the Underwriters hereunder and the arrangements made by the Selling Shareholder for such custody are to that extent irrevocable; the obligations of the Selling Shareholder hereunder shall not be terminated by operation of law, whether by the death or incapacity of the Selling Shareholder or, in the case of an estate or trust, by the death or incapacity of any executor or trustee or the termination of such estate or trust, or in the case of a partnership or corporation, by the dissolution of such partnership or corporation, or by the occurrence of any other event; if the Selling Shareholder or any such executor or trustee should die or become incapacitated, or if any such estate or trust should be terminated, or if any such partnership or corporation should be dissolved, or if any other such event should occur, before the delivery of the Shares hereunder, certificates representing the Shares shall be delivered by or on behalf of the Selling Shareholder in accordance with the terms and conditions of this Agreement and the Custody Agreement and shall be as valid as if such death, incapacity, termination, dissolution or other event had not occurred, regardless of whether or not the Custodian shall have received notice of such death, incapacity, termination, dissolution or other eventtherein.
Appears in 1 contract
Samples: Underwriting Agreement (St Joe Co)
Representations and Warranties of the Selling Shareholder. The Selling Shareholder represents, represents and warrants and covenants, solely with respect to himself and the number of Selling Shareholder Shares and the Selling Shareholder Option Shares set forth opposite his name on Schedule I hereto, to each Underwriter that:
(a) The Selling Shareholder has valid and unencumbered title to 2,300,000 shares of Class A Common Stock of the Company, that are convertible into 2,300,000 Shares.
(b) Such Selling Shareholder will have, valid and unencumbered title to the Offered Shares on each Applicable Closing Date, to be delivered sold by the Selling Shareholder are, and on such Applicable the Closing Date will be, duly and validly authorized and validly issued, fully paid and nonassessable; the certificates for such Selling Shareholder Offered Shares will be genuine; the Selling Shareholder has on the date hereof and will have on the Closing Date valid, marketable title to such Selling Shareholder Offered Shares, free and clear of all liens, encumbrances, equities, security interests and claims whatsoever, with full right, power right and authority to enter into this Agreement and to sell, assign, transfer sell and deliver the Shares to be delivered by the such Selling Shareholder on such Applicable Closing Date hereunderOffered Shares; and upon the delivery of and payment for such Selling Shareholder Offered Shares on each Applicable Closing Date hereunderas herein contemplated the Underwriter will receive valid, the several Underwriters will acquire valid marketable title thereto, free and unencumbered title clear of all liens, encumbrances, equities, security interests and claims, except any that may be created by their own action.
(b) All information furnished to the Shares to be delivered Company in writing by the Selling Shareholder on for use in, or in connection with the preparation of, the Registration Statement or the Prospectus does not contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading. The Selling Shareholder hereby furnishes to the Company for such Applicable Closing Dateuse the statements with respect to the Selling Shareholder under "Principal and Selling Shareholder" in the Prospectus and in Item 26 for Form SB-2 of the Registration Statement.
(c) No filing with, or authorization, approval, consent, license, order, registration, qualification or decree of, any court or governmental authority or agency is necessary or required for the performance by the Selling Shareholder of his obligations hereunder, in connection with the offering, issuance or sale of the Selling Shareholder Shares hereunder or the consummation of the transactions contemplated by this Agreement, except such as has been already obtained or may be required under the Act or the Rules and Regulations, state securities laws or the bylaws and rules of the NASD in connection with the purchase and distribution by the Underwriters of the Selling Shareholder Shares and the Selling Shareholder Option Shares to be sold hereby;
(d) The Selling Shareholder has the legal right, power and all authorizations and approvals required by law to enter into the Custody Agreement (as defined in Section 4(j) hereof). This Agreement and the Custody Agreement have been duly executed and delivered by the Selling Shareholder and each such agreement is a legal, valid and binding agreement of the Selling Shareholder;
(e) The execution, delivery and performance of this Agreement and the consummation of the transactions contemplated by this Agreement and in the Registration Statement (including the issuance and sale of such Selling Shareholder Shares and the Selling Shareholder Option Shares, if applicable) and compliance by the Selling Shareholder with his obligations under this Agreement and the Custody Agreement, do not and will not, whether with or without the giving of notice or lapse of time or both, conflict with or constitute a breach of, or default or Repayment Event under, or result in the creation or imposition of any lien, charge or encumbrance upon any property or assets of the Selling Shareholder pursuant to any contract, indenture, mortgage, deed of trust, loan or credit agreement, note, lease or any other agreements or instrument, to which the Selling Shareholder is a party or by which he may be bound, or to which any of the property or assets of the Selling Shareholder is subject (except for such conflicts, breaches, defaults, liens, charges or encumbrances that would not have a material adverse effect on the transactions contemplated herein), nor will such action result in any violation of any applicable law, statute, rule, regulation, judgment, order, writ or decree, of any government, government instrumentality or court, domestic or foreign, having jurisdiction over the Selling Shareholder or any respective properties, assets or operations;
(f) The Selling Shareholder has not taken and will not take, directly or indirectly, any action which is designed to or which has constituted might reasonably be expected to cause or result in stabilization or manipulation of the price of any security the Common Shares of the Company in connection with, or to facilitate facilitate, the sale or resale distribution of the Shares;.
(g) Neither the Registration Statement, any Preliminary Prospectus, the Prospectus or any amendment or supplement thereto contains any untrue statement of a material fact or omits to state therein a material fact required to be stated therein or necessary to make the statements therein not misleading, in each case to the extent, but only to the extent, that such untrue statement or omission was made in the Registration Statement, any Preliminary Prospectus, the Prospectus or any amendment or supplement thereto in reliance upon and in conformity with written information furnished to the Company by the Selling Shareholder pertaining, as such, for use therein;
(hd) The Selling Shareholder has no reason duly authorized the Company to believe that act as attorney-in-fact (the representations and warranties "Attorney-in-Fact") for the Selling Shareholder pursuant to a power of attorney executed by the Selling Shareholder (and, by the execution by it of this Agreement on behalf of the Company set forth in Section 3 are not true Selling Shareholder, the Attorney-in-Fact represents and correct in all material respects;
(iwarrants that it has been duly appointed as Attorney-in-Fact by the Selling Shareholder) The Selling Shareholder will deliver pursuant to you prior to or at each Applicable Closing Date a properly completed and executed Internal Revenue Service Form W-8BEN (or other applicable Form W-8;
(j) Certificates in negotiable form representing all which the Attorney-in-Fact is authorized on behalf of the Selling Shareholder Shares to execute this Agreement and any other documents necessary or desirable in connection with the sale of the Selling Shareholder Option Offered Shares, to make delivery of the certificates for the Selling Shareholder Offered Shares, to receive the proceeds of the sale of the Selling Shareholder Offered Shares and to give a receipt therefor and to distribute the proceeds to the Selling Shareholder. The Selling Shareholder has caused a certificate or certificates for the number of Selling Shareholder Offered Shares to be sold by the Selling Shareholder have been placed in custody under a Custody Agreement, in hereunder to be delivered to the form heretofore furnished Attorney-in-Fact with irrevocable authority to you (the "CUSTODY AGREEMENT"), duly executed purchase all requisite stock transfer tax stamps and delivered by the Selling Shareholder to American Stock Transfer & Trust Company as custodian (the "CUSTODIAN");
(k) The Selling Shareholder is not subject to any order hold such certificate or directive of, or party to any agreement with, any regulatory agency having jurisdiction with respect to him;
(l) The Shares represented by the certificates held in custody for the Selling Shareholder under the Custody Agreement are subject delivery, or for exchange for other certificates in proper form for delivery, pursuant to the interests of provisions hereof on the Underwriters hereunder Closing Date.
(e) This Agreement constitutes the valid and the arrangements made by the Selling Shareholder for such custody are to that extent irrevocable; the obligations binding obligation of the Selling Shareholder hereunder shall not be terminated by operation of lawShareholder, whether by the death or incapacity of the Selling Shareholder or, in the case of an estate or trust, by the death or incapacity of any executor or trustee or the termination of such estate or trust, or in the case of a partnership or corporation, by the dissolution of such partnership or corporation, or by the occurrence of any other event; if the Selling Shareholder or any such executor or trustee should die or become incapacitated, or if any such estate or trust should be terminated, or if any such partnership or corporation should be dissolved, or if any other such event should occur, before the delivery of the Shares hereunder, certificates representing the Shares shall be delivered by or on behalf of enforceable against the Selling Shareholder in accordance with its terms subject, as to enforcement of remedies, to applicable bankruptcy, fraudulent conveyance, insolvency, reorganization, moratorium and other laws affecting the terms rights of creditors generally and conditions the discretion of courts in granting equitable remedies and except that enforceability of the indemnification provisions set forth in Section 8 hereof and the contribution provisions set forth in Section 9 hereof may be limited by the United States federal and state securities laws or public policy underlying such laws.
(f) All authorizations and consents necessary for the execution and delivery by the Selling Shareholder of this Agreement and the Custody sale and delivery hereunder of the Selling Shareholder Offered Shares have been obtained and are in full force and effect on the date hereof and will be in full force and effect at the Closing Date.
(g) The sale of such Selling Shareholder Offered Shares by the Selling Shareholder pursuant to this Agreement is not prompted by any material information concerning the Company known by the Selling Shareholder which is not set forth in the Prospectus. Any certificate signed by the Selling Shareholder and delivered to the Underwriter or to Underwriter's counsel shall be deemed to be a representation and warranty by the Selling Shareholder as valid as if such death, incapacity, termination, dissolution or other event had not occurred, regardless of whether or not to the Custodian shall have received notice of such death, incapacity, termination, dissolution or other eventmatters covered thereby.
Appears in 1 contract
Samples: Underwriting Agreement (On Stage Entertainment Inc)
Representations and Warranties of the Selling Shareholder. The Selling Shareholder represents, represents and warrants to and covenants, solely agrees with respect to himself and each of the number of Selling Shareholder Shares and the Selling Shareholder Option Shares set forth opposite his name on Schedule I hereto, to each Underwriter Underwriters that:
(a) The Selling Shareholder This Agreement has valid been duly authorized, executed and unencumbered title to 2,300,000 shares of Class A Common Stock delivered by or on behalf of the Company, that are convertible into 2,300,000 SharesSelling Shareholder.
(b) Such Selling Shareholder will have, valid The execution and unencumbered title to the Shares on each Applicable Closing Date, to be delivered 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 or equivalent organizational document of the Selling 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 for such contraventions as would 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 under 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, except such Applicable as have been obtained and made under the Securities Act and such as may be required under the Exchange Act or the rules and the regulations thereunder by the securities or Blue Sky laws of the various state or foreign jurisdictions in connection with the offer and sale of the Shares.
(c) The Selling Shareholder has, and on the Closing Date and will have, full right, power and authority to enter into this Agreement and to sell, assign, transfer and deliver the Shares to be delivered by the Selling Shareholder on such Applicable Closing Date hereunder; hereunder or a valid security entitlement (within the meaning of Section 8-501 of the New York Uniform Commercial Code) in respect of such Shares, free and upon the delivery clear of and all security interests, claims, liens, equities or other encumbrances.
(d) Upon payment for such Shares on each Applicable Closing Date hereunder, the several Underwriters will acquire valid and unencumbered title to the Shares to be delivered 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 Applicable Closing DateUnderwriter 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 articles of 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.
(ci) No filing withThe Registration Statement, when it became effective, did not contain and, as amended or authorizationsupplemented, approvalif applicable, consentwill 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, license(ii) the Time of Sale Prospectus does not, order, registration, qualification or decree of, any court or governmental authority or agency is necessary or required for and at the performance by time of each sale of the Selling Shareholder of his obligations hereunder, Shares in connection with the offering, issuance or sale of offering when the Selling Shareholder Shares hereunder or Prospectus is not yet available to prospective purchasers and at the consummation of the transactions contemplated by this Agreement, except such as has been already obtained or may be required under the Act or the Rules and Regulations, state securities laws or the bylaws and rules of the NASD in connection with the purchase and distribution by the Underwriters of the Selling Shareholder Shares and the Selling Shareholder Option Shares to be sold hereby;
(d) The Selling Shareholder has the legal right, power and all authorizations and approvals required by law to enter into the Custody Agreement Closing Date (as defined in Section 4(j5), 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) hereof). This Agreement 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 (iv) the Custody Agreement have been duly executed 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 the representations and delivered warranties set forth in this paragraph 2(f) are limited to statements or omissions made in reliance upon information relating to the Selling Shareholder furnished to the Company in writing by the Selling Shareholder; it being understood and agreed that the only such information furnished by the Selling Shareholder and each such agreement is a legal, valid and binding agreement consists of the following information in the Prospectus furnished in writing on behalf of the Selling Shareholder;
(e) The execution, delivery and performance of this Agreement : the Selling Shareholder’s name and the consummation information relating to the principal shareholders and Selling Shareholder’s holdings of the transactions contemplated by this Agreement and Shares set forth in the Registration Statement (including the issuance section entitled “Principal and sale of such Selling Shareholder Shares and the Selling Shareholder Option Shares, if applicable) and compliance by the Selling Shareholder with his obligations under this Agreement and the Custody Agreement, do not and will not, whether with or without the giving of notice or lapse of time or both, conflict with or constitute a breach of, or default or Repayment Event under, or result in the creation or imposition of any lien, charge or encumbrance upon any property or assets of the Selling Shareholder pursuant to any contract, indenture, mortgage, deed of trust, loan or credit agreement, note, lease or any other agreements or instrument, to which the Selling Shareholder is a party or by which he may be bound, or to which any of the property or assets of the Selling Shareholder is subject (except for such conflicts, breaches, defaults, liens, charges or encumbrances that would not have a material adverse effect on the transactions contemplated herein), nor will such action result in any violation of any applicable law, statute, rule, regulation, judgment, order, writ or decree, of any government, government instrumentality or court, domestic or foreign, having jurisdiction over the Selling Shareholder or any respective properties, assets or operations;
(f) Shareholders”. The Selling Shareholder has not taken and will not take, directly or indirectly, any action which that is designed to or which has constituted that might reasonably be expected to cause or result in unlawful stabilization or manipulation of the price of any security of the Company to facilitate the sale or resale of the Shares;
(g) Neither the Registration Statement, any Preliminary Prospectus, the Prospectus or any amendment or supplement thereto contains any untrue statement of a material fact or omits to state therein a material fact required to be stated therein or necessary to make the statements therein not misleading, in each case to the extent, but only to the extent, that such untrue statement or omission was made in the Registration Statement, any Preliminary Prospectus, the Prospectus or any amendment or supplement thereto in reliance upon and in conformity with written information furnished to the Company by the Selling Shareholder pertaining, as such, for use therein;
(h) The Selling Shareholder has no reason to believe that the representations and warranties of the Company set forth in Section 3 are not true and correct in all material respects;
(i) The Selling Shareholder will deliver to you prior to or at each Applicable Closing Date a properly completed and executed Internal Revenue Service Form W-8BEN (or other applicable Form W-8;
(j) Certificates in negotiable form representing all of the Selling Shareholder Shares and the Selling Shareholder Option Shares to be sold by the Selling Shareholder have been placed in custody under a Custody Agreement, in the form heretofore furnished to you (the "CUSTODY AGREEMENT"), duly executed and delivered by the Selling Shareholder to American Stock Transfer & Trust Company as custodian (the "CUSTODIAN");
(k) The Selling Shareholder is not subject to any order or directive of, or party to any agreement with, any regulatory agency having jurisdiction with respect to him;
(l) 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 the arrangements made by the Selling Shareholder for such custody are to that extent irrevocable; the obligations of the Selling Shareholder hereunder shall not be terminated by operation of law, whether by the death or incapacity of the Selling Shareholder or, in the case of an estate or trust, by the death or incapacity of any executor or trustee or the termination of such estate or trust, or in the case of a partnership or corporation, by the dissolution of such partnership or corporation, or by the occurrence of any other event; if the Selling Shareholder or any such executor or trustee should die or become incapacitated, or if any such estate or trust should be terminated, or if any such partnership or corporation should be dissolved, or if any other such event should occur, before the delivery of the Shares hereunder, certificates representing the Shares shall be delivered by or on behalf of the Selling Shareholder in accordance with the terms and conditions of this Agreement and the Custody Agreement and shall be as valid as if such death, incapacity, termination, dissolution or other event had not occurred, regardless of whether or not the Custodian shall have received notice of such death, incapacity, termination, dissolution or other event.
Appears in 1 contract
Samples: Underwriting Agreement (Atento S.A.)
Representations and Warranties of the Selling Shareholder. The Each Selling Shareholder representsShareholder, severally and not jointly, represents and warrants to and covenants, solely agrees with respect to himself and each of the number of Selling Shareholder Shares and the Selling Shareholder Option Shares set forth opposite his name on Schedule I hereto, to each Underwriter Underwriters that:
(a) The Such Selling Shareholder has has, and at the time of delivery of the Shares to be sold by such Selling Shareholder hereunder on any Closing Date will have and at the time of delivery of such Shares will have, valid and unencumbered title to 2,300,000 shares such Shares and upon sale and delivery of, and payment for, such Shares, as provided herein, such Selling Shareholder will convey valid title to such Shares, free and clear of Class A Common Stock of the Companyany security interests, that are convertible into 2,300,000 Sharesliens, encumbrances, equities or claims.
(b) Such Selling Shareholder will have, valid and unencumbered title to the Shares on each Applicable Closing Date, to be delivered by the Selling Shareholder on such Applicable Closing Date and has full right, power and authority capacity to enter into this Agreement and the agreement dated May 5, 2010 between each of the Selling Shareholders and LLC Renaissance Broker, as the Russian broker (the “Brokerage Agreements”) and to sellperform its obligations hereunder and thereunder, assign, transfer and deliver each of this Agreement and the Shares to be Brokerage Agreements has been duly executed and delivered by the Selling Shareholder on such Applicable Closing Date hereunderShareholder; and upon such Selling Shareholder has complied with the delivery requirements of Russian law and payment for such Shares on each Applicable Closing Date hereunder, the several Underwriters will acquire valid and unencumbered title regulations applicable to the offering of the Shares to be delivered by in the form of preferred shares in the Russian Federation in accordance with the Brokerage Agreements that the Selling Shareholder on is a party to; and in deciding to sell the Shares or ADSs to be sold by him or it hereunder, such Applicable Closing DateSelling Shareholder has relied upon his own judgment and such independent financial and legal advice as he, she or it has seen fit to obtain, and has not relied upon any of the Underwriters or their advisers for any such advice.
(c) No The deposit with the Depositary by such Selling Shareholder of the Shares to be sold by him, her or it against issuance of ADRs evidencing ADSs, the execution and delivery by such Selling Shareholder of this Agreement and the performance by such Selling Shareholder of its obligations hereunder and under the Brokerage Agreements, (i) do not require any consent, approval, authorization or order of, or filing with, any governmental agency or authorization, approval, consent, license, order, registration, qualification body or decree of, any court or governmental authority or agency is necessary or required for the performance by the Selling Shareholder of his obligations hereunder, in connection with the offering, issuance or sale of the Selling Shareholder Shares hereunder or the consummation of the transactions contemplated by this Agreement, except such as has have been already obtained or and such as may be required under the Act securities or the Rules and Regulations, state securities “blue sky” laws or the bylaws and rules of the NASD any jurisdiction in connection with the purchase and distribution by the Underwriters of the Selling Shareholder Shares and ADSs in the Selling Shareholder Option Shares to be sold hereby;
(d) The Selling Shareholder has the legal right, power and all authorizations and approvals required by law to enter into the Custody Agreement (as defined in Section 4(j) hereof). This Agreement and the Custody Agreement have been duly executed and delivered by the Selling Shareholder and each such agreement is a legal, valid and binding agreement of the Selling Shareholder;
(e) The execution, delivery and performance of this Agreement and the consummation of the transactions manner contemplated by this Agreement herein and in the Registration Statement Prospectus and (including the issuance and sale of such Selling Shareholder Shares and the Selling Shareholder Option Shares, if applicableii) and compliance by the Selling Shareholder with his obligations under this Agreement and the Custody Agreement, do will not and will not, whether with or without the giving of notice or lapse of time or both, conflict with or constitute result in a breach or violation of any of the terms and provisions of, or constitute a default or Repayment Event under, (A) any statute, or result in the creation any rule, regulation or imposition order of any lien, charge governmental agency or encumbrance upon any property or assets of the Selling Shareholder pursuant to any contract, indenture, mortgage, deed of trust, loan or credit agreement, note, lease body or any other agreements court applicable to such Selling Shareholder, or instrument, (B) any agreement or instrument to which the such Selling Shareholder is a party or by which he may be bound, such Selling Shareholder is bound or to which any of their respective properties is subject.
(d) The Selling Shareholders have not made any offer of Shares or ADSs to, nor solicited any offers to buy Shares or ADSs from, any persons other than the property Underwriters and as required under any applicable laws and regulations.
(e) No stamp or assets other issuance or transfer taxes or duties and no withholding or other taxes are payable by or on behalf of the Selling Shareholder is subject Underwriters (except for such conflictsany income, breachescapital gains, defaults, liens, charges withholding or encumbrances other taxes imposed upon the Underwriters that would not have been imposed but for a material adverse effect on connection between the transactions Underwriters and the jurisdiction imposing such taxes, other than a connection arising as a result of the transaction contemplated herein), nor will by this Agreement) in connection with (i) the sale and delivery by such action result in any violation of any applicable law, statute, rule, regulation, judgment, order, writ or decree, of any government, government instrumentality or court, domestic or foreign, having jurisdiction over the Selling Shareholder of the Shares to be sold by him, her or any respective propertiesit, assets (ii) the deposit with the Depositary of the Shares to be sold by such Selling Shareholder against the issuance of ADRs evidencing ADSs or operations;(iii) the sale and delivery by the Underwriters of such Shares or ADSs to the initial purchasers thereof in the manner contemplated in the Time of Sale Prospectus and the Prospectus.
(f) The Selling Shareholder has not taken From the date and will not take, directly time at which the Registration Statement becomes effective and at all times subsequent thereto through the latest Closing Date or indirectly, any action which is designed to or which has constituted stabilization or manipulation the termination of the price of any security of the Company to facilitate the sale or resale offering of the Shares;
(g) Neither , the Registration Statement, any Preliminary Statement and Prospectus, the Prospectus and any supplements or any amendment or supplement thereto contains any amendments thereto, in each case, as relate to such Selling Shareholder, will not contain an untrue statement of a material fact or omits omit to state therein a material fact required to be stated therein or necessary to make the statements therein not misleading.
(g) The execution and delivery by each Selling Shareholder of each transaction document to which it, in each case he or she is a party, and the consummation of the transactions contemplated hereby or thereby by such Selling Shareholder, will not require the consent of any spouse of such Selling Shareholder pursuant to the extentapplicable laws of any jurisdiction, including, but only to not limited to, those of the extentUnited States of America or the Russian Federation, that such untrue statement or omission was made in the Registration Statement, any Preliminary Prospectus, the Prospectus or any amendment or supplement thereto in reliance upon and in conformity with written information furnished to the Company by the Selling Shareholder pertaining, except as such, for use therein;have been obtained.
(h) The Neither the Selling Shareholder Shareholders nor any of its affiliates (as defined in Rule 405 under the Securities Act) has no reason (i) taken, directly or indirectly, any action designed to believe cause or to result in, or that has constituted or might reasonably be expected to constitute, the representations and warranties stabilization or manipulation of the Company set forth price of any security of the Selling Shareholders to facilitate the sale or resale of the Shares or the ADSs or (ii) paid or agreed to pay to any person any compensation for soliciting another to purchase any securities of the Selling Shareholders or otherwise entered into any contractual arrangement with respect to the distribution of any securities (except for the sale of ADSs by the Underwriters under this Agreement and the sale of the Shares under the Brokerage Agreements).
(i) The operations of the Selling Shareholders and their respective subsidiaries are and have been conducted at all times in Section 3 are not true material compliance with all applicable financial recordkeeping and correct in all material respects;reporting requirements, including those of the Bank Secrecy Act, as amended by Title III of the Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act of 2001 (USA PATRIOT Act), and the 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 Shareholders or any of their respective subsidiaries with respect to the Anti-Money Laundering Laws is pending or, to the best knowledge of any of the Selling Shareholders, threatened.
(i) The Selling Shareholder will deliver Shareholders represent that neither the Selling Shareholders nor any of their respective subsidiaries or affiliates, nor any director, officer, or employee (collectively, the “Selling Entity”) nor, to you prior to or at each Applicable Closing Date a properly completed and executed Internal Revenue Service Form W-8BEN (or other applicable Form W-8;
(j) Certificates in negotiable form representing all the any of the Selling Shareholder Shares and Shareholders’ knowledge, any agent or representative of the Selling Shareholder Option Shares to be sold Entity, is an individual or entity (“Person”) that is, or is owned or controlled by the Selling Shareholder have been placed in custody under a Custody Agreement, in the form heretofore furnished to you (the "CUSTODY AGREEMENT"), duly executed and delivered by the Selling Shareholder to American Stock Transfer & Trust Company as custodian (the "CUSTODIAN");Person that is:
(kA) the subject of any sanctions administered or enforced by OFAC, nor
(B) located, organized or resident in a country or territory that is the subject of any sanctions administered or enforced by OFAC (including, without limitation, Burma/Myanmar, Cuba, Iran, North Korea, Sudan and Syria).
(ii) The Selling Shareholder Shareholders represent and covenant that they have not knowingly engaged in, 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 not or was subject to any order sanctions administered or directive of, or party to any agreement with, any regulatory agency having jurisdiction with respect to him;
(l) The Shares represented enforced by the certificates held in custody for the Selling Shareholder under the Custody Agreement are subject to the interests of the Underwriters hereunder and the arrangements made by the Selling Shareholder for such custody are to that extent irrevocable; the obligations of the Selling Shareholder hereunder shall not be terminated by operation of law, whether by the death or incapacity of the Selling Shareholder or, in the case of an estate or trust, by the death or incapacity of any executor or trustee or the termination of such estate or trust, or in the case of a partnership or corporation, by the dissolution of such partnership or corporation, or by the occurrence of any other event; if the Selling Shareholder or any such executor or trustee should die or become incapacitated, or if any such estate or trust should be terminated, or if any such partnership or corporation should be dissolved, or if any other such event should occur, before the delivery of the Shares hereunder, certificates representing the Shares shall be delivered by or on behalf of the Selling Shareholder in accordance with the terms and conditions of this Agreement and the Custody Agreement and shall be as valid as if such death, incapacity, termination, dissolution or other event had not occurred, regardless of whether or not the Custodian shall have received notice of such death, incapacity, termination, dissolution or other eventOFAC.
Appears in 1 contract
Samples: Underwriting Agreement (Mechel OAO)
Representations and Warranties of the Selling Shareholder. The Selling Shareholder represents, represents and warrants to and covenants, solely agrees with respect to himself and each of the number of Selling Shareholder Shares and the Selling Shareholder Option Shares set forth opposite his name on Schedule I hereto, to each Underwriter Underwriters that:
(a) The Selling Shareholder This Agreement has valid been duly authorized, executed and unencumbered title to 2,300,000 shares of Class A Common Stock delivered by or on behalf of the Company, that are convertible into 2,300,000 SharesSelling Shareholder.
(b) Such Selling Shareholder will have, valid The execution and unencumbered title to the Shares on each Applicable Closing Date, to be delivered 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 articles of association or equivalent organizational document of the Selling 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 for such contraventions as would 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 under 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, except such Applicable as have been obtained and made under the Securities Act and such as may be required under the Exchange Act or the rules and the regulations thereunder by the securities or Blue Sky laws of the various state or foreign jurisdictions in connection with the offer and sale of the Shares.
(c) The Selling Shareholder has, and on the Closing Date and will have, full right, power and authority to enter into this Agreement and to sell, assign, transfer and deliver the Shares to be delivered by the Selling Shareholder on such Applicable Closing Date hereunder; and upon the delivery of and payment for such Shares on each Applicable Closing Date hereunder, the several Underwriters will acquire and valid and unencumbered title to or a valid security entitlement (within the meaning of Section 8-501 of the New York Uniform Commercial Code) in respect of such Shares, free and clear of all security interests, claims, liens, equities or other encumbrances.
(d) Upon payment for the Shares to be delivered 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 Applicable Closing DateUnderwriter 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 register in accordance with its articles of 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.
(ce) No filing with(i) Each document, if any, filed or authorizationto 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, approval(ii) each part of the Registration Statement, consentwhen such part became effective, licensedid not contain, orderand each such part, registrationas amended or supplemented, qualification if applicable, will not contain any untrue statement of a material fact or decree ofomit to state a material fact required to be stated therein or necessary to make the statements therein not misleading, (iii) the Registration Statement as of the date hereof does not contain any court untrue statement of a material fact or governmental authority omit to state a material fact required to be stated therein or agency is necessary to make the statements therein not misleading, (iv) the Registration Statement and the Prospectus comply, and as amended or required for supplemented, if applicable, will comply in all material respects with the performance by Securities Act and the Selling Shareholder applicable rules and regulations of his obligations hereunderthe Commission thereunder, (v) the Time of Sale Prospectus does not, and at the time of each sale of the Shares in connection with the offering, issuance or sale of offering when the Selling Shareholder Shares hereunder or Prospectus is not yet available to prospective purchasers and at the consummation of the transactions contemplated by this Agreement, except such as has been already obtained or may be required under the Act or the Rules and Regulations, state securities laws or the bylaws and rules of the NASD in connection with the purchase and distribution by the Underwriters of the Selling Shareholder Shares and the Selling Shareholder Option Shares to be sold hereby;
(d) The Selling Shareholder has the legal right, power and all authorizations and approvals required by law to enter into the Custody Agreement Closing Date (as defined in Section 4(j5), 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, (vi) hereof). This Agreement 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 (vii) the Custody Agreement have been duly executed 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 the representations and delivered warranties set forth in this paragraph 2(e) are limited to statements or omissions made in reliance upon information relating to the Selling Shareholder furnished to the Company in writing by or on behalf of the Selling Shareholder; it being understood and agreed that the only such information furnished by the Selling Shareholder and each such agreement is a legal, valid and binding agreement consists of the following information in the Prospectus: the Selling Shareholder;
(e) The execution, delivery and performance of this Agreement ’s name and the consummation information relating to the principal shareholders and Selling Shareholder’s holdings of the transactions contemplated by this Agreement and Shares set forth in the Registration Statement (including the issuance and sale of such section entitled “Selling Shareholder Shares and the Selling Shareholder Option Shares, if applicable) and compliance by the Selling Shareholder with his obligations under this Agreement and the Custody Agreement, do not and will not, whether with or without the giving of notice or lapse of time or both, conflict with or constitute a breach of, or default or Repayment Event under, or result in the creation or imposition of any lien, charge or encumbrance upon any property or assets of the Selling Shareholder pursuant to any contract, indenture, mortgage, deed of trust, loan or credit agreement, note, lease or any other agreements or instrument, to which the Selling Shareholder is a party or by which he may be bound, or to which any of the property or assets of the Selling Shareholder is subject (except for such conflicts, breaches, defaults, liens, charges or encumbrances that would not have a material adverse effect on the transactions contemplated herein), nor will such action result in any violation of any applicable law, statute, rule, regulation, judgment, order, writ or decree, of any government, government instrumentality or court, domestic or foreign, having jurisdiction over the Selling Shareholder or any respective properties, assets or operations;Shareholder”.
(f) The Selling Shareholder has not taken and will not take, directly or indirectly, any action which that is designed to or which has constituted that might reasonably be expected to cause or result in unlawful stabilization or manipulation of the price of any security of the Company to facilitate the sale or resale of the Shares;.
(g) Neither the Registration Statement, any Preliminary Prospectus, the Prospectus or any amendment or supplement thereto contains any untrue statement of a material fact or omits to state therein a material fact required to be stated therein or necessary to make the statements therein not misleading, in each case to the extent, but only to the extent, that such untrue statement or omission was made in the Registration Statement, any Preliminary Prospectus, the Prospectus or any amendment or supplement thereto in reliance upon and in conformity with written information furnished to the Company by the Selling Shareholder pertaining, as such, for use therein;
(h) The Selling Shareholder has no reason to believe that the representations and warranties of the Company set forth in Section 3 are not true and correct in all material respects;
(i) The Selling Shareholder will deliver to you prior to or at each Applicable Closing Date a properly completed and executed Internal Revenue Service Form W-8BEN (or other applicable Form W-8;
(j) Certificates in negotiable form representing all of the Selling Shareholder Shares and the Selling Shareholder Option Shares to be sold by the Selling Shareholder have been placed in custody under a Custody Agreement, in the form heretofore furnished to you (the "CUSTODY AGREEMENT"), duly executed and delivered by the Selling Shareholder to American Stock Transfer & Trust Company as custodian (the "CUSTODIAN");
(k) The Selling Shareholder 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 order such plan or directive ofaccount under Section 3(42) of ERISA, 29 C.F.R. 2510.3-101, or party to any agreement with, any regulatory agency having jurisdiction with respect to him;
(l) 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 the arrangements made by the Selling Shareholder for such custody are to that extent irrevocable; the obligations of the Selling Shareholder hereunder shall not be terminated by operation of law, whether by the death or incapacity of the Selling Shareholder or, in the case of an estate or trust, by the death or incapacity of any executor or trustee or the termination of such estate or trust, or in the case of a partnership or corporation, by the dissolution of such partnership or corporation, or by the occurrence of any other event; if the Selling Shareholder or any such executor or trustee should die or become incapacitated, or if any such estate or trust should be terminated, or if any such partnership or corporation should be dissolved, or if any other such event should occur, before the delivery of the Shares hereunder, certificates representing the Shares shall be delivered by or on behalf of the Selling Shareholder in accordance with the terms and conditions of this Agreement and the Custody Agreement and shall be as valid as if such death, incapacity, termination, dissolution or other event had not occurred, regardless of whether or not the Custodian shall have received notice of such death, incapacity, termination, dissolution or other eventotherwise.
Appears in 1 contract
Samples: Underwriting Agreement (Atento S.A.)
Representations and Warranties of the Selling Shareholder. The Selling Shareholder represents, represents and warrants and covenantsagrees with, solely with respect to himself each of the International Underwriters as of the Time of Execution, Time of Sale, Closing Date and the number of Selling Shareholder Shares and the Selling Shareholder Option Shares set forth opposite his name on Schedule I hereto, to each Underwriter Additional Closing Date that:
(a) The Neither the Time of Sale Prospectus nor the Prospectus or any amendments or supplements thereto includes any untrue statement of a material fact or omits to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading, provided that such representations and warranties set forth in this subsection (a) apply only to statements or omissions made in reliance upon and in conformity with information relating to the Selling Shareholder has valid and unencumbered title to 2,300,000 shares of Class A Common Stock furnished in writing by or on behalf of the CompanySelling Shareholder expressly for use in the Registration Statement, the Time of Sale Prospectus, the Prospectus or any other Issuer free writing prospectus or any amendment or supplement thereto, thereto, it being understood that are convertible into 2,300,000 Sharesthe only such information consists of (i) the name of and the number of shares owned by the Selling Shareholder and (ii) the third sentence in the first paragraph under the heading, “Principal and Selling Shareholders—Selling Shareholder” in the Time of Sale Prospectus and the Prospectus (the “Selling Shareholder Information”); the Selling Shareholder is not prompted to sell the ADSs to be sold by the Selling Shareholder hereunder by any information concerning the Company or any subsidiary of the Company which is not set forth in the Time of Sale Prospectus or the Prospectus.
(b) Such Selling Shareholder will haveThis Agreement and the Brazilian Underwriting Agreement have been duly authorized, valid executed and unencumbered title to the Shares on each Applicable Closing Date, to be delivered by or on behalf of the Selling Shareholder on such Applicable Closing Date and full right, power and authority to enter into this Agreement and to sell, assign, transfer and deliver the Shares to be delivered by the Selling Shareholder on such Applicable Closing Date hereunder; and upon the delivery of and payment for such Shares on each Applicable Closing Date hereunder, the several Underwriters will acquire valid and unencumbered title to the Shares to be delivered by the Selling Shareholder on such Applicable Closing DateShareholder.
(c) No filing withCede & Co. (“Cede”) or such other nominee as may be designated by The Depository Trust Company (“DTC”) is in possession of the ADSs, the ADSs are credited on the books of DTC to one or authorization, approval, consent, license, order, registration, qualification or decree of, any court or governmental authority or agency is necessary or required for the performance more securities accounts beneficially owned by the Selling Shareholder of his obligations hereunder, and such ADSs are not “restricted securities” as defined in connection with the offering, issuance or sale of the Selling Shareholder Shares hereunder or the consummation of the transactions contemplated by this Agreement, except such as has been already obtained or may be required under the Securities Act or the Rules rules and Regulations, state securities laws or the bylaws and rules of the NASD in connection with the purchase and distribution by the Underwriters of the Selling Shareholder Shares and the Selling Shareholder Option Shares to be sold hereby;regulations promulgated thereunder.
(d) The Selling Shareholder has the legal right, power execution and all authorizations and approvals required by law to enter into the Custody Agreement (as defined in Section 4(j) hereof). This delivery of this Agreement and the Custody Brazilian Underwriting Agreement have been duly executed and delivered the sale and delivery of the ADSs to be sold by the Selling Shareholder and each such agreement is a legal, valid and binding agreement of the Selling Shareholder;
(e) The execution, delivery and performance of this Agreement and the consummation of the transactions contemplated by this Agreement and in the Registration Statement (including the issuance and sale of such Selling Shareholder Shares and the Selling Shareholder Option Shares, if applicable) herein and compliance by the Selling Shareholder with his its obligations under this Agreement and the Custody Agreement, hereunder do not and will not, whether with or without the giving of notice or lapse passage of time or both, (i) conflict with or constitute a breach of, or default or Repayment Event under, or result in the creation or imposition of any tax, lien, charge or encumbrance upon (A) the ADSs to be sold by the Selling Shareholder or (B) any other property or assets of the Selling Shareholder Shareholder, in each case, pursuant to any contract, indenture, mortgage, deed of trust, loan or credit agreement, note, license, lease or any other agreements agreement or instrument, instrument to which the Selling Shareholder is a party or by which he the Selling Shareholder may be bound, or to which any of the property or assets of the Selling Shareholder is subject subject, (except for such conflictsii) result in any violation of the provisions of the charter or by-laws or other organizational instrument of the Selling Shareholder, breachesif applicable, defaults, liens, charges or encumbrances that would not have a material adverse effect on the transactions contemplated herein), nor will such action (iii) result in any violation of any applicable treaty, law, statute, rule, regulation, judgment, order, writ or decree, decree of any government, government instrumentality or court, domestic or foreign, having jurisdiction over the Selling Shareholder or any respective of its properties, assets except in the case of clauses (i)(B) and (iii) as would not adversely affect in any material respect the Selling Shareholder’s ability to perform its obligations hereunder and under the Brazilian Underwriting Agreement.
(e) The Selling Shareholder has, and at the Closing Date and each Additional Closing Date, as the case may be, will have, (i) valid title to the ADSs to be sold by the Selling Shareholder free and clear of all security interests, claims, liens, equities or operations;other encumbrances and the legal right and power, and (ii) all authorization and approval required by law, to enter into this Agreement and the Brazilian Underwriting Agreement and to sell, transfer and deliver the ADSs to be sold by the Selling Shareholder or a valid security entitlement in respect of such ADSs.
(f) Upon payment of the purchase price for the ADSs to be sold by the Selling Shareholder pursuant to this Agreement, delivery of such ADSs, as directed by the International Underwriters, to Cede or such other nominee as may be designated by DTC (unless delivery of such ADSs is unnecessary because such ADSs are already in possession of Cede or such nominee), registration of such ADSs in the name of Cede or such other nominee (unless registration of such ADSs is unnecessary because such ADSs are already registered in the name of Cede or such nominee), and the crediting of such ADSs on the books of DTC to securities accounts (within the meaning of Section 8-501(a) of the UCC) of the International Underwriters (assuming that neither DTC nor any such International Underwriter has notice of any “adverse claim,” within the meaning of Section 8-105 of the Uniform Commercial Code then in effect in the State of New York (“UCC”), to such ADSs), (A) under Section 8-501 of the UCC, the International Underwriters will acquire a valid “security entitlement” in respect of such ADSs and (B) 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 ADSs may be asserted against the International 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, (I) such ADSs will have been registered in the name of Cede or another nominee designated by DTC, in each case on the Depositary’s registry in accordance with the Deposit Agreement and applicable law, (II) DTC will be registered as a “clearing corporation,” within the meaning of Section 8-102 of the UCC, (III) appropriate entries to the accounts of the several International Underwriters on the records of DTC will have been made pursuant to the UCC, (IV) to the extent DTC, or any other securities intermediary which acts as “clearing corporation” with respect to the ADSs, 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 International Underwriters, (V) 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 (VI) if at any time DTC or other securities intermediary does not have sufficient ADSs to satisfy claims of all of its entitlement holders with respect thereto then all holders will share pro rata in the ADSs then held by DTC or such securities intermediary.
(g) The Selling Shareholder has not taken 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 security of the Company to facilitate the sale or resale of the Shares;
(g) Neither the Registration Statement, any Preliminary Prospectus, the Prospectus or any amendment or supplement thereto contains any untrue statement of a material fact or omits to state therein a material fact required to be stated therein or necessary to make the statements therein not misleading, in each case to the extent, but only to the extent, that such untrue statement or omission was made in the Registration Statement, any Preliminary Prospectus, the Prospectus or any amendment or supplement thereto in reliance upon and in conformity with written information furnished to the Company by the Selling Shareholder pertaining, as such, for use therein;ADSs.
(h) The Selling Shareholder has no reason does not have any registration or other similar rights to believe that the representations and warranties of have any equity or debt securities registered for sale by the Company set forth under the Registration Statement or included in Section 3 are not true and correct in all material respects;the offering contemplated by this Agreement.
(i) The Selling Shareholder will deliver to you prior to has not prepared or at each Applicable Closing Date a properly completed had prepared on its behalf or used or referred to, any “free writing prospectus” (as defined in Rule 405), and executed Internal Revenue Service Form W-8BEN (has not distributed any written materials in connection with the offer or other applicable Form W-8;sale of the ADSs.
(j) Certificates in negotiable form representing all of Neither the Selling Shareholder Shares and nor any of its affiliates directly, or indirectly through one or more intermediaries, controls, or is controlled by, or is under common control with any member firm of FINRA or is a person associated with a member (within the Selling Shareholder Option Shares to be sold by meaning of the Selling Shareholder have been placed in custody under a Custody Agreement, in the form heretofore furnished to you (the "CUSTODY AGREEMENT"), duly executed and delivered by the Selling Shareholder to American Stock Transfer & Trust Company as custodian (the "CUSTODIAN");FINRA By-Laws) of FINRA.
(k) The Selling Shareholder is not subject has the power to submit, and pursuant to Section 15(c) of this Agreement has legally, validly, effectively and irrevocably submitted to the exclusive jurisdiction of the federal and state courts in the Borough of Manhattan in The City of New York in any order suit, action or directive ofproceeding arising out of or relating to the application or enforcement of Section 15(c) of this Agreement or for purposes of seeking provisional remedies, and to the non-exclusive jurisdiction of such courts in any suit, action or party proceeding arising out of or relating to the enforcement of any agreement withaward made pursuant to Section 15(c) of this Agreement, and the Selling Shareholder has validly and irrevocably waived any regulatory agency having jurisdiction with respect objection to him;the laying of venue of any such proceeding in such courts to the fullest extent permissible by law, and has validly and irrevocably appointed Corporation Service Company as its authorized agent in the Borough of Manhattan in The City of New York upon which process may be served pursuant to Section 15(c) of this Agreement.
(l) The Shares represented by the certificates held in custody for Neither the Selling Shareholder under the Custody Agreement are subject nor any of its subsidiaries, nor, to the interests of the Underwriters hereunder and the arrangements made by the Selling Shareholder for such custody are to that extent irrevocable; the obligations best knowledge of the Selling Shareholder hereunder shall not be terminated by operation of lawShareholder, whether by the death any director, officer, agent, employee or incapacity of the Selling Shareholder or, in the case of an estate other person associated with or trust, by the death or incapacity of any executor or trustee or the termination of such estate or trust, or in the case of a partnership or corporation, by the dissolution of such partnership or corporation, or by the occurrence of any other event; if the Selling Shareholder or any such executor or trustee should die or become incapacitated, or if any such estate or trust should be terminated, or if any such partnership or corporation should be dissolved, or if any other such event should occur, before the delivery of the Shares hereunder, certificates representing the Shares shall be delivered by or acting on behalf of the Selling Shareholder or any of its subsidiaries (any such person, an “Associated Person”), nor, to the knowledge of the Selling Shareholder, its affiliates (but not including (A) any agency or other entity or body constituting part of the government of the State of Qatar or any political subdivision thereof (together, “Qatar”); or (B) any entity related to Qatar for which the Qatar Investment Authority provides no operational management or control and subsidiaries of such entities (together with Qatar “Excluded Persons”);or any official, agent or employee thereof, except to the extent any such official, agent or employee is an Associated Person) have (i) used any corporate funds for any unlawful contribution, gift, entertainment or other unlawful expense relating to political activity; (ii) made any direct or indirect unlawful payment to any foreign or domestic government official or employee from corporate funds; (iii) violated or is in accordance violation of any provision of the Foreign Corrupt Practices Act of 1977, to the extent applicable to the Selling Shareholder, or any applicable Brazilian law or regulation regarding illegal payments and corrupt practices; or (iv) made any bribe, illegal rebate, illegal payoff, illegal influence payment, kickback or other unlawful payment.
(m) The operations of the Selling Shareholder and its subsidiaries, and to the knowledge of the Selling Shareholder, its affiliates (but not including any Excluded Persons or any official, agent or employee thereof, except to the extent any such official, agent or employee is an Associated Person), are and have been conducted at all times in compliance with the terms Money Laundering Laws and conditions 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 this Agreement its subsidiaries with respect to the Money Laundering Laws is pending or, to the best knowledge of the Selling Shareholder, threatened.
(n) None of the Selling Shareholder, any of its subsidiaries, or, to the knowledge of the Selling Shareholder, any director, officer, agent, employee or affiliates (but not including any Excluded Persons or any official, agent or employee thereof, except to the extent any such official, agent or employee is an Associated Person) of the Selling Shareholder or any of its subsidiaries is an individual or entity currently the subject of any sanctions administered or enforced by the United States Government, including, without limitation, the OFAC, the UNSC, the European Union, HMT, Switzerland, or other relevant sanctions authority (collectively “Sanctions”); and the Custody Agreement and shall be as valid as if Selling Shareholder will not directly or indirectly use the proceeds of the sale of the ADSs hereunder, or lend, contribute or otherwise make available such deathproceeds to any subsidiary, incapacity, termination, dissolution joint venture partner or other event had not occurredperson or entity, regardless for the purpose of whether financing the activities of any person currently subject to any U.S., United Nations, European Union, English or not Swiss sanctions administered by OFAC, UNSC, the Custodian shall have received notice European Union, HMT or Switzerland, respectively, in violation of such death, incapacity, termination, dissolution or other eventSanctions.
Appears in 1 contract
Samples: International Underwriting and Placement Agreement (Banco Santander (Brasil) S.A.)
Representations and Warranties of the Selling Shareholder. The Selling Shareholder represents, represents and warrants to and covenants, solely agrees with respect to himself and each of the number of Selling Shareholder Shares and the Selling Shareholder Option Shares set forth opposite his name on Schedule I hereto, to each Underwriter Underwriters that:
(a) The Selling Shareholder This Agreement has valid been duly authorized, executed and unencumbered title to 2,300,000 shares of Class A Common Stock delivered by or on behalf of the Company, that are convertible into 2,300,000 SharesSelling Shareholder.
(b) Such Selling Shareholder will have, valid The execution and unencumbered title to the Shares on each Applicable Closing Date, to be delivered delivery by the Selling Shareholder on such Applicable Closing Date of, and full rightthe performance by the Selling Shareholder of its obligations under, power this Agreement, the Custody Agreement signed by the Selling Shareholder and authority Xxxxxx Xxxxxxx & Co. Incorporated, as Custodian, relating to enter into this Agreement and to sell, assign, transfer and deliver the deposit of the Shares to be delivered sold by the Selling Shareholder on such Applicable Closing Date hereunder; (the "Custody Agreement") and upon the delivery Power of and payment for such Shares on each Applicable Closing Date hereunder, the several Underwriters will acquire valid and unencumbered title Attorney appointing certain individuals as attorneys-in-fact to the Shares extent set forth therein, relating to be delivered the transactions contemplated hereby and by the Registration Statement (the "Power of Attorney") will not contravene any provision of applicable law, or the trust agreement governing the Selling Shareholder, or any agreement or other instrument binding upon the Selling Shareholder on such Applicable Closing Date.
(c) No filing withor any judgment, order or authorizationdecree of any governmental body, agency or court having jurisdiction over the Selling Shareholder, and no consent, approval, consent, license, order, registration, qualification authorization or decree order of, or qualification with, any court or governmental authority body or agency is necessary or required for the performance by the Selling Shareholder of his its obligations hereunderunder 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 offering, issuance or offer and sale of the Shares.
(c) The Selling Shareholder Shares hereunder has, and on the Closing Date will have, valid title to, or a valid "security entitlement" within the consummation meaning of Section 8-501 of the transactions contemplated New York Uniform Commercial Code in respect of (x) the shares of common stock of Old Journal that will, on the Closing Date, automatically exchange into shares of Class B Common Stock pursuant to the Plan of Share Exchange and then that will automatically convert into shares of Class A Common Stock pursuant to the Company's articles of incorporation, and (y) the Shares, respectively, 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, except such as has been already obtained or may be required under the Act or the Rules and Regulations, state securities laws or the bylaws and rules of the NASD in connection with the purchase and distribution by the Underwriters of the Selling Shareholder Shares Custody Agreement and the Selling Shareholder Option Power of Attorney and to sell, transfer and deliver the Shares to be sold hereby;by the Selling Shareholder or a security entitlement in respect of such Shares.
(d) The Selling Shareholder has the legal right, power and all authorizations and approvals required by law to enter into the Custody Agreement (as defined in Section 4(j) hereof). This Agreement and the Custody Agreement Power of Attorney have been duly authorized, executed and delivered by the Selling Shareholder and each such agreement is a legal, are valid and binding agreement agreements of the Selling Shareholder;.
(e) The execution, delivery and performance of this Agreement and the consummation Delivery of the transactions contemplated by this Agreement and in the Registration Statement (including the issuance and sale of such Selling Shareholder Shares and the Selling Shareholder Option Shares, if applicable) and compliance to be sold by the Selling Shareholder with his obligations under and payment thereof pursuant to this Agreement will pass valid title to such Shares, free and the Custody Agreement, do not and will not, whether with or without the giving of notice or lapse of time or both, conflict with or constitute a breach of, or default or Repayment Event under, or result in the creation or imposition clear of any lien, charge or encumbrance upon any property or assets adverse claim within the meaning of Section 8-102 of the Selling Shareholder pursuant to any contract, indenture, mortgage, deed of trust, loan or credit agreement, note, lease or any other agreements or instrumentNew York Uniform Commercial Code, to which the Selling Shareholder is a party or by which he may be bound, or to which any each Underwriter who has purchased such Shares without notice of the property or assets of the Selling Shareholder is subject (except for such conflicts, breaches, defaults, liens, charges or encumbrances that would not have a material an adverse effect on the transactions contemplated herein), nor will such action result in any violation of any applicable law, statute, rule, regulation, judgment, order, writ or decree, of any government, government instrumentality or court, domestic or foreign, having jurisdiction over the Selling Shareholder or any respective properties, assets or operations;claim.
(f) The Selling Shareholder has not taken and will not take, directly or indirectly, any action which is designed to or which has constituted stabilization or manipulation of the price of any security of the Company to facilitate the sale or resale of the Shares;
(g) Neither the Registration Statement, any Preliminary Prospectus, the Prospectus or any amendment or supplement thereto contains any untrue statement of a material fact or omits to state therein a material fact required to be stated therein or necessary to make the statements therein not misleading, in each case to the extent, but only to the extent, that such untrue statement or omission was made in the Registration Statement, any Preliminary Prospectus, the Prospectus or any amendment or supplement thereto in reliance upon and in conformity with written information furnished to the Company by the Selling Shareholder pertaining, as such, for use therein;
(h) The Selling Shareholder has no reason to believe that the representations and warranties of the Company set forth contained in Section 3 1 are not true and correct and has no knowledge of any material fact, condition or information not disclosed in all the Prospectus that has had, or may have, a material respects;adverse effect on the Journal Enterprise. The Selling Shareholder is not prompted by any material information concerning the Company, Old Journal or their respective subsidiaries which is not set forth in the Prospectus to sell its Shares pursuant to this Agreement.
(i) The Selling Shareholder Registration Statement, when it became effective, did not contain and, as amended or supplemented, if applicable, will deliver not contain any untrue statement of a material fact or omit to you prior state a material fact required to be stated therein or at each Applicable Closing Date necessary to make the statements therein not misleading and (ii) the Prospectus does not contain and, as amended or supplemented, if applicable, will not contain any untrue statement of a properly completed 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 the representations and executed Internal Revenue Service Form W-8BEN (warranties set forth in this paragraph 2(g) are limited to statements or other applicable Form W-8;
(j) Certificates omissions made in negotiable form representing all of reliance upon information relating to the Selling Shareholder Shares and furnished to the Selling Shareholder Option Shares to be sold Company in writing by the Selling Shareholder have been placed in custody under a Custody Agreement, expressly for use in the form heretofore furnished to you (Registration Statement, the "CUSTODY AGREEMENT"), duly executed and delivered by the Selling Shareholder to American Stock Transfer & Trust Company as custodian (the "CUSTODIAN");
(k) The Selling Shareholder is not subject to any order or directive of, or party to any agreement with, any regulatory agency having jurisdiction with respect to him;
(l) 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 the arrangements made by the Selling Shareholder for such custody are to that extent irrevocable; the obligations of the Selling Shareholder hereunder shall not be terminated by operation of law, whether by the death or incapacity of the Selling Shareholder or, in the case of an estate or trust, by the death or incapacity of any executor or trustee or the termination of such estate or trust, or in the case of a partnership or corporation, by the dissolution of such partnership or corporation, or by the occurrence of any other event; if the Selling Shareholder Prospectus or any such executor amendments or trustee should die or become incapacitated, or if any such estate or trust should be terminated, or if any such partnership or corporation should be dissolved, or if any other such event should occur, before the delivery of the Shares hereunder, certificates representing the Shares shall be delivered by or on behalf of the Selling Shareholder in accordance with the terms and conditions of this Agreement and the Custody Agreement and shall be as valid as if such death, incapacity, termination, dissolution or other event had not occurred, regardless of whether or not the Custodian shall have received notice of such death, incapacity, termination, dissolution or other eventsupplements thereto.
Appears in 1 contract
Samples: Underwriting Agreement (Journal Co)
