Representations and Warranties of the Selling Shareholder. The Selling Shareholder represents and warrants to and agrees with the Underwriter that: (a) This Agreement has been duly authorized, executed and delivered by or on behalf of the Selling Shareholder. (b) The execution and delivery by the Selling Shareholder of, and the performance by the Selling Shareholder of its obligations under, this Agreement will not contravene (i) any provision of applicable law, (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, singly or in the aggregate, reasonably be expected to have a material adverse effect on the Selling Shareholder’s ability to perform its obligations under this Agreement. 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 (i) such as may have already been obtained, (ii) such as may be required by the securities or Blue Sky laws of the various states in connection with the offer and sale of the Shares or (iii) such that would not reasonably be expected to have a material adverse effect on the ability of the Selling Shareholder to consummate the transactions contemplated by this Agreement. (c) The Selling Shareholder has, and on the Initial Closing Date, the Repurchase Closing Date and any 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 by the Selling Shareholder free and clear of all security interests, claims, liens, equities or other encumbrances and the legal right and power, and all authorization and approval required by law, to enter into this Agreement and to sell, transfer and deliver the Shares to be sold by the Selling Shareholder or a security entitlement in respect of such Shares. (d) Upon payment for the Shares to be 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 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 successfully 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. (e) The Selling Shareholder has delivered to the Underwriter an executed lock-up agreement in substantially the form attached hereto as Exhibit A (the “Lock-up Agreement”). (f) The Selling Shareholder has not taken, directly or indirectly, any action designed to or that could reasonably be expected to cause or result in any stabilization or manipulation of the price of the Shares in violation of Regulation M under the Exchange Act. (g) The Selling Shareholder is not prompted by any information concerning the Company or its subsidiaries which is not set forth in the Registration Statement, the Time of Sale Prospectus or the Prospectus to sell its Shares pursuant to this Agreement. (h) (i) the Registration Statement, when it became effective, did not contain and, as amended or supplemented, if applicable, will not contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading, (ii) the Time of Sale Prospectus does not, and at the time of each sale of the Shares in connection with the offering when the Prospectus is not yet available to prospective purchasers and at the Initial Closing Date, the Repurchase Closing Date and any Option Closing Date (as defined in Section 5), the Time of Sale Prospectus, as then amended or supplemented by the Company, if applicable, will not, contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading, and (iii) the Prospectus does not contain and, as amended or supplemented, if applicable, will not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading; provided that the representations and warranties set forth in this paragraph 2(g) are limited in all respects to statements or omissions made in reliance upon and in conformity with information relating to the Selling Shareholder furnished to the Company in writing by the Selling Shareholder expressly for use in the Registration Statement, the Time of Sale Prospectus, the Prospectus or any amendments or supplements thereto, it being understood and agreed that for purposes of this Agreement, the only information furnished by the Selling Shareholder consists of the name of the Selling Shareholder, the number of offered shares and the address and other information with respect to the Selling Shareholder (excluding percentages) which appear in the Registration Statement or any Prospectus in the table (and corresponding footnotes) under the caption “The Selling Shareholder” (the “Selling Shareholder Information”). (i) (i) None of the Selling Shareholder or any of its subsidiaries, or, to the knowledge of the Selling Shareholder, any director, officer, employee, agent, representative, or affiliate thereof, is a Person that is, or is owned or controlled by one or more Persons that are: (A) the subject of any Sanctions, or (B) located, organized or resident in a country or territory that is the subject of Sanctions (including, without limitation, the so-called Donetsk People’s Republic, the so-called Luhansk People’s Republic, the Crimea Region and the non-government controlled areas of the Zaporizhzhia and Kherson Regions of Ukraine, Cuba, Iran, North Korea, Syria or any other Covered Region of Ukraine identified pursuant to Executive Order 14065). (ii) The Selling Shareholder will not, directly or indirectly, use the proceeds of the offering, or lend, contribute or otherwise make available such proceeds to any subsidiary, joint venture partner or other Person: (A) to fund or facilitate any activities or business of or with any Person or in any country or territory that, at the time of such funding or facilitation, is the subject of Sanctions; or (B) in any other manner that will result in a violation of Sanctions by any Person (including any Person participating in the offering, whether as underwriter, advisor, investor or otherwise). (iii) For the past five years, the Selling Shareholder has not knowingly engaged in, is not now knowingly engaged in, and will not engage in, any dealings or transactions with any Person, or in any country or territory, that at the time of the dealing or transaction is or was the subject of Sanctions. (a) None of the Selling Shareholder or any of its subsidiaries, or, to the knowledge of the Selling Shareholder, any director, officer, employee, agent, representative, or affiliate thereof has taken or will take any action in furtherance of an offer, payment, promise to pay, or authorization or approval of the payment giving or receipt of money, property, gifts or anything else of value, directly or indirectly, to any Government Official in order to influence official action, or to any person in violation of any applicable anti-corruption laws; (b) the Selling Shareholder and each of its subsidiaries have conducted their businesses in compliance with applicable anti-corruption laws and have instituted and maintained and will continue to maintain policies and procedures reasonably designed to promote and achieve compliance with such laws and with the representations and warranties contained herein; and (c) neither the Selling Shareholder nor any of its subsidiaries will use, directly or indirectly, the proceeds of the offering in furtherance of an offer, payment, promise to pay, or authorization of the payment or giving of money, or anything else of value, to any person in violation of any applicable anti-corruption laws. (v) The operations of the Selling Shareholder and each of its subsidiaries are and have been conducted at all times in compliance with all applicable Anti-Money Laundering Laws, and no action, suit or proceeding by or before any court or governmental agency, authority or body or any arbitrator involving the Selling Shareholder or any of its subsidiaries with respect to the Anti-Money Laundering Laws is pending or, to the best knowledge of the Selling Shareholder, threatened. (j) The Selling Shareholder represents and warrants that it is not (i) an employee benefit plan subject to Title I of ERISA, (ii) a plan or account subject to Section 4975 of the Code or (iii) an entity deemed to hold “plan assets” of any such plan or account under Section 3(42) of ERISA, 29 C.F.R. 2510.3-101, or otherwise. (k) The Selling Shareholder represents that no stamp, documentary, issuance, registration, transfer, withholding, capital gains, income or other taxes or duties are payable by or on behalf of the Underwriter, the Company or any of its subsidiaries or to any taxing authority thereof or therein in connection with (i) the execution, delivery or consummation of this Agreement by the Selling Shareholder, (ii) the sale and delivery of the Shares by the Selling Shareholder to the Underwriter or purchasers procured by the Underwriter, or (iii) the resale and delivery of such Shares by the Underwriter in the manner contemplated herein. (l) The Selling Shareholder has the power to submit, and pursuant to Section 20(a) has, to the extent permitted by law, legally, validly, effectively and irrevocably submitted, to the jurisdiction of the Specified Courts (as defined in Section 20(a)), and has the power to designate, appoint and empower, and pursuant to Section 20(b), has legally, validly and effectively designated, appointed and empowered an agent for service of process in any suit or proceeding based on or arising under this Agreement in any of the Specified Courts.
Appears in 1 contract
Representations and Warranties of the Selling Shareholder. The Selling Shareholder represents and warrants to and agrees with each of the Underwriter Underwriters on the date hereof, on the Closing Date and on each Option Closing Date, if any, that:
(a) This Agreement has been duly authorized, executed and delivered by or on behalf of Neither the Selling Shareholder.
(b) The execution and delivery by the Selling Shareholder of, and nor the performance by the Selling Shareholder of its obligations under, this Agreement will not contravene (i) conflict with, contravene, result in a material breach or violation of, or imposition of any provision lien, charge or encumbrance upon any assets of applicable lawthe Selling Shareholder pursuant to, or constitute a default under any contract, agreement, obligation, covenant or instrument to which the Selling Shareholder (or any of its assets) is subject or bound; (ii) result, to the organizational documents extent applicable, in the violation of the Selling Shareholderany statute, (iii) any agreement or other instrument binding upon the Selling Shareholder or (iv) any law, rule, regulation, judgment, order or decree of any governmental body, regulatory or administrative agency or court having jurisdiction over the Selling Shareholder; or (iii) result, to the extent applicable, in any violation of the provisions of the certificate of incorporation or bylaws (or other organizational documents) of the Selling Shareholder, if applicable; except in the case of clauses (i), (iii) and (ivii) as above, for any such breach, violation, lien, charge or encumbrance that would not, singly individually or in the aggregate, reasonably be expected to have a material adverse effect on the ability of the Selling Shareholder to consummate the transactions contemplated herein. To the Selling Shareholder’s ability to perform its obligations under this Agreement. No knowledge, no consent, approval, authorization or order of, or qualification with, any governmental body, body or agency or court is required for the performance by the Selling Shareholder of its obligations under this Agreement, except (i) such as may have already been obtainedobtained or made or as may be required (i) in connection with registration of the Shares under the Securities Act, (ii) such as may be required by the securities or Blue Sky blue sky laws of the various states jurisdictions in connection with the offer and sale of the Shares or (iii) such that would not reasonably be expected to have a material adverse effect in connection with the listing of the Shares on the ability of Exchange or under the Selling Shareholder to consummate the transactions contemplated by this AgreementFINRA Rules.
(cb) The Selling Shareholder has, has and immediately prior to the Closing Date and on the Initial each Option Closing Date, as the Repurchase Closing Date and any Option Closing Date case may be, the Selling Shareholder will have, valid marketable title to, or a valid “security entitlement” entitlement (within the meaning of Section Sections 8-102 and 8-501 of the New York Uniform Commercial Code in respect of, (the “UCC”) to the Shares to be sold by maintained in a securities account on the Selling Shareholder books of The Depository Trust Company (“DTC”) free and clear of all any lien, claim or encumbrance, and assuming that each Underwriter acquires its interest in the Shares it has purchased without notice of any adverse claim (within the meaning of Section 8-105 of the UCC), upon the crediting of such Shares to the securities account of such Underwriter maintained with DTC and payment therefor by such Underwriter, as provided herein, such Underwriter will have acquired a security interestsentitlement to such Shares, claimsand no action based on any adverse claim may be asserted against such Underwriter with respect to such security entitlement, liens, equities or other encumbrances and the legal right and power, and all authorization and approval required by law, to enter into this Agreement and to sell, transfer and deliver the Shares to be sold by the Selling Shareholder or a security entitlement in respect of such SharesShareholder.
(d) Upon payment for the Shares to be 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 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 successfully 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.
(ec) The Selling Shareholder has delivered to the Underwriter an executed lock-up agreement in substantially the form attached hereto as Exhibit A (the “Lock-up Agreement”).
(f) The Selling Shareholder has not takennot, directly or indirectly, taken any action designed to or which will constitute, or that could might reasonably be expected to cause or result in any the stabilization or manipulation of the price of the Shares in violation of Regulation M under the Exchange ActShares.
(gi) The Selling Shareholder is not prompted by any information concerning the Company or its subsidiaries which is not set forth in the Registration Statement, the Time of Sale Prospectus or the Prospectus to sell its Shares pursuant to this Agreement.
(h) (i) the Registration Statement, when it became effectiveeffective and at the time of execution of this Agreement, 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 in order to make the statements therein not misleading, ; (ii) the Time of Sale Prospectus does at the Time of Sale did not, and at the time of Closing Date and, if applicable, at each sale of the Shares in connection with the offering when the Prospectus is not yet available to prospective purchasers and at the Initial Option Closing Date, the Repurchase Closing Date and any Option Closing Date (as defined in Section 5), the Time of Sale Prospectus, as then amended or supplemented by the Companysupplemented, if applicable, will not, contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading, and (iii) the Prospectus does not contain and, as amended or supplemented, if applicable, will not contain any untrue statement of a material fact or omit to state a material fact necessary order to make the statements therein, in the light of the circumstances under which they were made, not misleading; provided and (iii) the Prospectus, as of the date it is filed with the Commission pursuant to Rule 424(b) under the Securities Act, at the Closing Date and at each Option Closing Date, if any, will not contain any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading; provided, however, that the representations and warranties set forth in this paragraph 2(gSection 2(d) are limited in all respects exclusively to statements or omissions of material fact made in reliance upon and in conformity with information relating to the Selling Shareholder furnished to the Company in writing by or on behalf of the Selling Shareholder expressly for use in the Registration Statement, the Time of Sale Prospectus and the Prospectus, the Prospectus or any amendments or supplements thereto, it being understood and agreed that for purposes of this Agreement, the only such information furnished by or on behalf of the Selling Shareholder consists of the legal name and address of, and the number of shares beneficially owned and offered by the Selling Shareholder, the number of offered shares and the address and other information with respect to the Selling Shareholder (excluding percentages) which appear in the Registration Statement or any Prospectus in the table (and corresponding footnotes) that appears under the caption “The Principal and Selling ShareholderShareholders” in the Time of Sale Prospectus and Prospectus (the “Selling Shareholder Information”).
(ie) (i) None The Selling Shareholder has been duly organized and is validly existing and in good standing under the laws of its jurisdiction of organization, is duly qualified to do business and is in good standing in each jurisdiction in which its ownership or lease of property or the conduct of its businesses requires such qualification, and has all power and authority necessary to own or hold its properties and to conduct the businesses in which it is engaged, except where the failure to be so qualified or in good standing or have such power or authority would not, individually or in the aggregate, have a material adverse effect on the ability of the Selling Shareholder or to consummate the transactions contemplated herein.
(f) In connection with the Company and its subsidiaries, neither the Selling Shareholder nor any of its subsidiaries, ordirectors, officers, employees or authorized agents has, directly or indirectly, violated any applicable provision of the Foreign Corrupt Practices Act of 1977, as amended, or any applicable law or regulation implementing the OECD Convention on Combating Bribery of Foreign Public Officials in International Business Transactions, or committed an offence under the Xxxxxxx Xxx 0000 of the United Kingdom, to the knowledge of the Selling Shareholderextent applicable, 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, the so-called Donetsk People’s Republic, the so-called Luhansk People’s Republic, the Crimea Region and the non-government controlled areas of the Zaporizhzhia and Kherson Regions of Ukraine, Cuba, Iran, North Korea, Syria or any other Covered Region of Ukraine identified pursuant to Executive Order 14065)applicable anti-bribery or anti-corruption law.
(iig) The Selling Shareholder will not, not directly or indirectly, indirectly use the proceeds of the offeringoffering of the Shares hereunder, or lend, contribute or otherwise make available such proceeds to any subsidiary, joint venture partner or other Person:
(A) to fund person or facilitate any activities or business of or with any Person or in any country or territory that, at the time of such funding or facilitation, is the subject of Sanctions; or
(B) in any other manner that will result in a violation of Sanctions by any Person (including any Person participating in the offering, whether as underwriter, advisor, investor or otherwise).
(iii) For the past five years, the Selling Shareholder has not knowingly engaged in, is not now knowingly engaged in, and will not engage in, any dealings or transactions with any Person, or in any country or territory, that at the time of the dealing or transaction is or was the subject of Sanctions.
(a) None of the Selling Shareholder or any of its subsidiaries, or, to the knowledge of the Selling Shareholder, any director, officer, employee, agent, representative, or affiliate thereof has taken or will take any action in furtherance of an offer, payment, promise to pay, or authorization or approval of the payment giving or receipt of money, property, gifts or anything else of value, directly or indirectly, to any Government Official in order to influence official action, or to any person in violation of any applicable anti-corruption laws; (b) the Selling Shareholder and each of its subsidiaries have conducted their businesses in compliance with applicable anti-corruption laws and have instituted and maintained and will continue to maintain policies and procedures reasonably designed to promote and achieve compliance with such laws and with the representations and warranties contained herein; and (c) neither the Selling Shareholder nor any of its subsidiaries will use, directly or indirectly, the proceeds of the offering entity 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 a manner that would cause a material violation by the Underwriters of any applicable anti-corruption lawsMoney Laundering Laws.
(vh) The operations of the Selling Shareholder and each of its subsidiaries are and have been conducted at all times in 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 Neither the Selling Shareholder, threatenednor, to the Selling Shareholder’s knowledge, any of its subsidiaries, nor any director, officer, employee, authorized agent or controlled affiliate, in each case is currently the subject or target of any Sanctions. The Selling Shareholder will not directly or indirectly use the proceeds of the offering of the Shares hereunder, or lend, contribute or otherwise make available such proceeds to any subsidiary, joint venture partner or other person or entity (i) to fund or facilitate any activities of or business with any person, or in any country or territory, that, at the time of such funding, is the subject or the target of Sanctions, or (ii) in any other manner, in either case as will result in a violation of Sanctions by any person participating in the transaction, whether as underwriter, advisor, investor or otherwise of such sanctions in connection with the transactions contemplated by this Agreement.
(ji) The sale of the Shares by the Selling Shareholder represents and warrants that it pursuant to this Agreement is not (i) an employee benefit plan subject to Title I of ERISA, (ii) a plan or account subject to Section 4975 of the Code or (iii) an entity deemed to hold “plan assets” of prompted by any such plan or account under Section 3(42) of ERISA, 29 C.F.R. 2510.3-101, or otherwise.
(k) The Selling Shareholder represents that no stamp, documentary, issuance, registration, transfer, withholding, capital gains, income or other taxes or duties are payable by or on behalf of the Underwriter, material information concerning the Company or any of its subsidiaries or to any taxing authority thereof or therein in connection with (i) the execution, delivery or consummation of this Agreement by the Selling Shareholder, (ii) the sale and delivery of the Shares by the Selling Shareholder to the Underwriter or purchasers procured by the Underwriter, or (iii) the resale and delivery of such Shares by the Underwriter that is not set forth in the manner contemplated hereinTime of Sale Prospectus and the Prospectus.
(l) The Selling Shareholder has the power to submit, and pursuant to Section 20(a) has, to the extent permitted by law, legally, validly, effectively and irrevocably submitted, to the jurisdiction of the Specified Courts (as defined in Section 20(a)), and has the power to designate, appoint and empower, and pursuant to Section 20(b), has legally, validly and effectively designated, appointed and empowered an agent for service of process in any suit or proceeding based on or arising under this Agreement in any of the Specified Courts.
Appears in 1 contract
Samples: Underwriting Agreement (IBEX LTD)
Representations and Warranties of the Selling Shareholder. The Selling Shareholder represents and warrants to and agrees with the Underwriter that:
(a) This Agreement has been duly authorized, executed and delivered by or on behalf of the Selling Shareholder.
(b) The execution and delivery of this Agreement and the sale and delivery of the Shares to be sold by the Selling Shareholder of, and the performance consummation of the transactions contemplated herein and compliance by the Selling Shareholder of with its obligations under, this Agreement will not contravene hereunder (i) do not and will not, whether with or without the giving of notice or passage of time or both, conflict with or constitute a breach of or default under, any provision contract, indenture, mortgage, deed of applicable lawtrust, loan or credit agreement, note, license, lease or other agreement or instrument to which the Selling Shareholder is a party or by which the Selling Shareholder may be bound, or result in the creation or imposition of any tax, lien, charge or encumbrance upon the Shares to be sold by the Selling Shareholder, (ii) nor will such action result in any violation of (A) the provisions of the charter or by-laws or other organizational documents instrument of the Selling Shareholder, if applicable, or (iiiB) any agreement or other instrument binding upon the Selling Shareholder or (iv) any applicable treaty, law, statute, rule, regulation, judgment, order order, writ or decree of any governmental bodygovernment, agency government instrumentality or court court, domestic or foreign, having jurisdiction over the Selling Shareholder, Shareholder or any of its properties; except in the case of (i), (iii) and (iv) as would not, singly or in the aggregate, reasonably be expected to have a material adverse effect on the Selling Shareholder’s ability to perform its obligations under this Agreement. 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 clause (i) or clause (ii)(B), for such conflicts, breaches, violations or defaults as may have already been obtained, (ii) such as may be required by the securities or Blue Sky laws of the various states in connection with the offer and sale of the Shares or (iii) such that would not reasonably be expected to have a impair in any material adverse effect on respect the ability consummation of the Selling Shareholder to consummate the transactions contemplated by this AgreementShareholder‘s obligations hereunder and thereunder.
(c) The Selling Shareholder has, and on the Initial Closing Date, the Repurchase Closing Date and any Option Closing Date will have, valid good title to, or a valid “security entitlement” within the meaning of Section 8-501 of the New York Uniform Commercial Code in respect of, to the Shares to be sold by the Selling Shareholder free and clear of all security interests, claims, liens, equities or other encumbrances and the legal right and power, and all authorization and approval required by law, to enter into this Agreement and to sell, transfer and deliver the Shares to be sold by the Selling Shareholder or a valid security entitlement in respect of such Shares.
(d) Upon payment of the purchase price for the Shares to be sold by the Selling Shareholder pursuant to this Agreement, delivery of such Shares, as directed by the Underwriter, to Cede & Co. (“Cede”) or such other nominee as may be designated by the The Depository Trust Company (“DTC”) (unless delivery of such Shares is unnecessary because such Shares are already in possession of Cede or such nominee), registration of such Shares in the name of Cede or such other nominee (unless registration of such Shares is unnecessary because such Shares are already registered in the name of Cede or such nominee), and the crediting of such Shares on the books of DTC to securities accounts (within the meaning of Section 8-501(a) of the Underwriter UCC) of the Underwriter, (assuming that neither DTC nor the such Underwriter has notice of does not have any “adverse claim (claim” within the meaning of Section 8-105 of the New York Uniform Commercial Code then in effect in the State of New York (the “UCC”)) to such Shares), (A) DTC shall be a “protected purchaser” of such Shares within the meaning of Section 8-303 of the UCC, (Bi) under Section 8-501 of the UCC, the Underwriter will acquire a valid “security entitlement entitlement” in respect of such Shares and (Cii) no action (whether framed in conversion, replevin, constructive trust, equitable lien, or other theory) based on any “adverse claim”, ,” within the meaning of Section 8-102 of the UCC, to such Shares may be successfully 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 (if necessary) and crediting occur, (xA) such Shares will have been registered in the name of Cede or another nominee designated by DTC, in each case on the Company’s share registry in accordance with its certificate of incorporation, bylaws and applicable law, (yB) DTC will be registered as a “clearing corporation,” within the meaning of Section 8-102 of the UCC and UCC, (zC) appropriate entries to the account accounts of the Underwriter on the records of DTC will have been made pursuant to the UCC, (D) to the extent DTC, or any other securities intermediary which acts as “clearing corporation” with respect to the Shares, maintains any “financial asset” (as defined in Section 8-102(a)(9) of the UCC) in a clearing corporation pursuant to Section 8-111 of the UCC, the rules of such clearing corporation may affect the rights of DTC or such securities intermediaries and the ownership interest of the Underwriter, (E) claims of creditors of DTC or any other securities intermediary or clearing corporation may be given priority to the extent set forth in Section 8-511(b) and 8-511(c) of the UCC and (F) if at any time DTC or other securities intermediary does not have sufficient Shares to satisfy claims of all of its entitlement holders with respect thereto then all holders will share pro rata in the Shares then held by DTC or such securities intermediary.
(e) The Selling Shareholder has delivered to the Underwriter an executed lock-up agreement in substantially the form attached hereto as Exhibit A (the “Lock-up Agreement”).
(f) The Selling Shareholder has not taken, and will not take, directly or indirectly, any action which is designed to or that could reasonably which has constituted or would be expected to cause or result in any stabilization or manipulation of the price of any equity security, or any securities convertible into or exchangeable for, or that represent a right to receive an equity security or any equity-linked securities of the Company.
(f) No filing with, or consent, approval, authorization, order, registration, qualification or decree of any arbitrator, court, governmental body, regulatory body, administrative agency or other authority, body or agency, domestic or foreign, is necessary or required for the performance by the Selling Shareholder of its obligations hereunder, or in connection with the sale and delivery of the Shares in violation hereunder or the consummation of Regulation M the transactions contemplated by this Agreement, except such as have been already obtained or as may be required under the Securities Act and the Securities Act Regulations, the rules of the New York Stock Exchange Actor state securities laws.
(g) The Other than as set forth on Schedule II hereto, the Selling Shareholder has not prepared or had prepared on its behalf or used or referred to, any free writing prospectus, and has not distributed any written materials in connection with the offer or sale of the Shares.
(h) With the exception of Avalon Wealth Management, LLC, Conifer Securities, L.L.C., Duff & Xxxxxx, Xxxxxxx X’Xxxx + Partners, L.P., TCG Securities, L.L.C. and TCW Funds Distributors and certain limited partners invested in funds affiliated with the Carlyle Group, neither the Selling Shareholder nor, to the Selling Shareholder’s knowledge, any of its affiliates directly, or indirectly through one or more intermediaries, controls, or is not prompted by controlled by, or is under common control with any information concerning member firm of the Company Financial Industry Regulatory Authority (“FINRA”) or its subsidiaries which is not set forth a person associated with a member (within the meaning of the FINRA By-Laws) of FINRA.
(i) In respect of any statements in the Registration Statement, or omissions from the Time of Sale Prospectus or the Prospectus to sell its Shares pursuant to this Agreement.
(h) (i) the Registration Statement, when it became effective, did not contain and, as amended or supplemented, if applicable, will not contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading, (ii) the Time of Sale Prospectus does not, and at the time of each sale of the Shares in connection with the offering when the Prospectus is not yet available to prospective purchasers and at the Initial Closing Date, the Repurchase Closing Date and any Option Closing Date (as defined in Section 5), the Time of Sale Prospectus, as then amended or supplemented by the Company, if applicable, will not, contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading, and (iii) the Prospectus does not contain and, as amended or supplemented, if applicable, will not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading; provided that the representations and warranties set forth in this paragraph 2(g) are limited in all respects to statements or omissions made in reliance upon and in conformity with information relating to the Selling Shareholder furnished to the Company in writing by or on behalf of the Selling Shareholder expressly specifically for use in the Registration Statementinclusion therein, the Time of Sale Prospectus, Selling Shareholder hereby makes the Prospectus or any amendments or supplements theretosame representations and warranties with respect to such information as the Company makes under paragraph 1(b) hereof, it being understood and agreed that for purposes such information consists only of this Agreement, the only its name and any information furnished by the Selling Shareholder consists relating to its holdings of the name Company’s common stock (including for the avoidance of doubt the Selling Shareholder, the number of offered shares and the address and other information with respect to the Selling Shareholder (excluding percentages) which appear in the Registration Statement or any Prospectus set forth in the table and footnotes thereto (except for percentages) in “Selling Stockholder”) as set forth in the Time of Sale Prospectus and corresponding footnotes) under the caption “The Selling Shareholder” Prospectus (collectively, the “Selling Shareholder Information”).
(i) (i) None of the Selling Shareholder or any of its subsidiaries, or, to the knowledge of the Selling Shareholder, any director, officer, employee, agent, representative, or affiliate thereof, is a Person that is, or is owned or controlled by one or more Persons that are:
(A) the subject of any Sanctions, or
(B) located, organized or resident in a country or territory that is the subject of Sanctions (including, without limitation, the so-called Donetsk People’s Republic, the so-called Luhansk People’s Republic, the Crimea Region and the non-government controlled areas of the Zaporizhzhia and Kherson Regions of Ukraine, Cuba, Iran, North Korea, Syria or any other Covered Region of Ukraine identified pursuant to Executive Order 14065).
(iij) The Selling Shareholder will not, directly deliver to the Underwriter prior to or indirectly, use at the proceeds Time of the offering, or lend, contribute or otherwise make available such proceeds to any subsidiary, joint venture partner Sale a properly completed and executed United States Treasury Department Form W-9 (or other Person:
(A) to fund applicable form or facilitate any activities or business of or with any Person or statement specified by Treasury Department regulations 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 lieu thereof). Any certificate signed by any Person (including any Person participating in the offering, whether as underwriter, advisor, investor or otherwise).
(iii) For the past five years, the Selling Shareholder has not knowingly engaged in, is not now knowingly engaged in, and will not engage in, any dealings or transactions with any Person, or in any country or territory, that at the time officer of the dealing or transaction is or was the subject of Sanctions.
(a) None of the Selling Shareholder or any of its subsidiaries, or, to the knowledge of the Selling Shareholder, any director, officer, employee, agent, representative, or affiliate thereof has taken or will take any action in furtherance of an offer, payment, promise to pay, or authorization or approval of the payment giving or receipt of money, property, gifts or anything else of value, directly or indirectly, to any Government Official in order to influence official action, or to any person in violation of any applicable anti-corruption laws; (b) the Selling Shareholder and each of its subsidiaries have conducted their businesses in compliance with applicable anti-corruption laws and have instituted and maintained and will continue to maintain policies and procedures reasonably designed to promote and achieve compliance with such laws and with the representations and warranties contained herein; and (c) neither the Selling Shareholder nor any of its subsidiaries will use, directly or indirectly, the proceeds of the offering in furtherance of an offer, payment, promise to pay, or authorization of the payment or giving of money, or anything else of value, to any person in violation of any applicable anti-corruption laws.
(v) The operations of the Selling Shareholder and each of its subsidiaries are and have been conducted at all times in compliance with all applicable Anti-Money Laundering Laws, and no action, suit or proceeding by or before any court or governmental agency, authority or body or any arbitrator involving the Selling Shareholder or any of its subsidiaries with respect to the Anti-Money Laundering Laws is pending or, to the best knowledge of the Selling Shareholder, threatened.
(j) The Selling Shareholder represents and warrants that it is not (i) an employee benefit plan subject to Title I of ERISA, (ii) a plan or account subject to Section 4975 of the Code or (iii) an entity deemed to hold “plan assets” of any such plan or account under Section 3(42) of ERISA, 29 C.F.R. 2510.3-101, or otherwise.
(k) The Selling Shareholder represents that no stamp, documentary, issuance, registration, transfer, withholding, capital gains, income or other taxes or duties are payable by or on behalf of the Underwriter, the Company or any of its subsidiaries delivered to the Underwriter or to any taxing authority thereof or therein in connection with (i) counsel for the execution, delivery or consummation of this Agreement Underwriter shall be deemed a representation and warranty by the Selling Shareholder, (ii) Company to the sale Underwriter as to the matters covered thereby; and delivery any certificate signed by or on behalf of the Shares Selling Shareholder as such and delivered to the Underwriter or to counsel for the Underwriter pursuant to Section 6 hereof shall be deemed a representation and warranty by the Selling Shareholder to the Underwriter or purchasers procured by the Underwriter, or (iii) the resale and delivery of such Shares by the Underwriter in the manner contemplated herein.
(l) The Selling Shareholder has the power to submit, and pursuant to Section 20(a) has, as to the extent permitted by law, legally, validly, effectively and irrevocably submitted, to the jurisdiction of the Specified Courts (as defined in Section 20(a)), and has the power to designate, appoint and empower, and pursuant to Section 20(b), has legally, validly and effectively designated, appointed and empowered an agent for service of process in any suit or proceeding based on or arising under this Agreement in any of the Specified Courtsmatters covered thereby.
Appears in 1 contract
Samples: Underwriting Agreement (Booz Allen Hamilton Holding Corp)
Representations and Warranties of the Selling Shareholder. The Selling Shareholder represents and warrants to and agrees with each of the Underwriter Underwriters that:
(a) This Agreement has been duly authorized, executed and delivered by or on behalf of the Selling Shareholder.
(b) The execution and delivery by the Selling Shareholder of, and the performance by the Selling Shareholder of its obligations under, this Agreement will not contravene (i) any provision of applicable law, (ii) or the organizational documents certificate of incorporation or by-laws of the Selling ShareholderShareholder (if such Selling Shareholder is a corporation), (iii) or 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, singly or in the aggregate, reasonably be expected to have a material adverse effect on the Selling Shareholder’s ability to perform its obligations under this Agreement. No no consent, approval, authorization or order of, or qualification with, any governmental body, body or agency or court is required for the performance by the Selling Shareholder of its obligations under this Agreement, except (i) such as may have already been obtained, (ii) such as may be required by the securities or Blue Sky laws of the various states in connection with the offer and sale of the Shares or (iii) such that would not reasonably be expected to have a material adverse effect on the ability of the Selling Shareholder to consummate the transactions contemplated by this AgreementShares.
(c) The Selling Shareholder has, and on the Initial Closing Date, the Repurchase Closing Date and any Option Closing Date will have, valid title to, or have a valid “security entitlement” within the meaning of Section 8-501 102(a)(17) of the New York Uniform Commercial Code NY UCC in respect of, of the Shares to be sold by the Selling Shareholder free and clear of all security interests, claims, liens, equities or other encumbrances and the legal right and power, and all authorization and approval required by law, to enter into this Agreement Agreement, and to sell, transfer and deliver the Shares to be sold by the Selling Shareholder or a security entitlement in respect of such SharesShareholder.
(d) Upon payment for the Shares to be 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 the Depository Trust Company (the “DTC”) to securities accounts of the Underwriter Underwriters and payment therefor by the Underwriters (assuming that neither DTC nor the no Underwriter has notice of any adverse claim (within the meaning of Section 8-105 of the New York Uniform Commercial Code (the “NY 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 NY UCC, the Underwriter Underwriters will acquire a valid security entitlement in respect of such Shares and (CB) no action based on any “adverse claim”, within the meaning of Section 8-102 of the NY UCC, to such Shares may be successfully asserted against the Underwriter 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, (yi) DTC will be registered as a “clearing corporation” within the meaning of Section 8-102 of the NY UCC and (zii) appropriate entries to the account accounts of the Underwriter several Underwriters on the records of DTC will have been made pursuant to the NY UCC.
(e) The Selling Shareholder has delivered to the Underwriter an executed lock-up agreement in substantially the form attached hereto as Exhibit A (the “Lock-up Agreement”).
(f) The Selling Shareholder has not takentaken and will not take, directly or indirectly, any action which is designed to or that could which has constituted or which might reasonably be expected to cause or result in any stabilization or manipulation of the price of any security of the Shares in violation Company to facilitate the sale or resale of Regulation M under the Exchange ActSecurities.
(gi) The Selling Shareholder is not prompted by any information concerning the Company or its subsidiaries which is not set forth in the Registration Statement, the Time of Sale Prospectus or the Prospectus to sell its Shares pursuant to this Agreement.
(h) (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, misleading and (ii) the Time of Sale Prospectus does not, and at the time of each sale of the Shares in connection with the offering when the Prospectus is not yet available to prospective purchasers and at the Initial Closing Date, the Repurchase Closing Date and any Option Closing Date (as defined in Section 5), the Time of Sale Prospectus, as then amended or supplemented by the Company, if applicable, will not, contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading, and (iii) the Prospectus does not contain and, as amended or supplemented, if applicable, will not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading; provided that the representations and warranties set forth in this paragraph 2(g2(f) are limited in all respects apply only to statements or omissions made in reliance upon and in conformity with information relating to the Selling Shareholder furnished to the Company in writing by the Selling Shareholder (or on the Selling Shareholder’s behalf) to the Company or the Managers expressly for use in the Registration Statement, the Time of Sale Prospectusany preliminary prospectus, the Prospectus or any amendments or supplements thereto, it being understood and agreed that for purposes of this Agreement, the only information furnished by the Selling Shareholder consists of the name of the Selling Shareholder, the number of offered shares and the address and other information with respect to the Selling Shareholder (excluding percentages) which appear in the Registration Statement or any Prospectus in the table (and corresponding footnotes) under the caption “The Selling Shareholder” (the “Selling Shareholder Information”).
(i) (i) None of the Selling Shareholder or any of its subsidiaries, or, to the knowledge of the Selling Shareholder, any director, officer, employee, agent, representative, or affiliate thereof, is a Person that is, or is owned or controlled by one or more Persons that are:
(A) the subject of any Sanctions, or
(B) located, organized or resident in a country or territory that is the subject of Sanctions (including, without limitation, the so-called Donetsk People’s Republic, the so-called Luhansk People’s Republic, the Crimea Region and the non-government controlled areas of the Zaporizhzhia and Kherson Regions of Ukraine, Cuba, Iran, North Korea, Syria or any other Covered Region of Ukraine identified pursuant to Executive Order 14065).
(ii) The Selling Shareholder will not, directly or indirectly, use the proceeds of the offering, or lend, contribute or otherwise make available such proceeds to any subsidiary, joint venture partner or other Person:
(A) to fund or facilitate any activities or business of or with any Person or in any country or territory that, at the time of such funding or facilitation, is the subject of Sanctions; or
(B) in any other manner that will result in a violation of Sanctions by any Person (including any Person participating in the offering, whether as underwriter, advisor, investor or otherwise).
(iii) For the past five years, the Selling Shareholder has not knowingly engaged in, is not now knowingly engaged in, and will not engage in, any dealings or transactions with any Person, or in any country or territory, that at the time of the dealing or transaction is or was the subject of Sanctions.
(a) None of the Selling Shareholder or any of its subsidiaries, or, to the knowledge of the Selling Shareholder, any director, officer, employee, agent, representative, or affiliate thereof has taken or will take any action in furtherance of an offer, payment, promise to pay, or authorization or approval of the payment giving or receipt of money, property, gifts or anything else of value, directly or indirectly, to any Government Official in order to influence official action, or to any person in violation of any applicable anti-corruption laws; (b) the Selling Shareholder and each of its subsidiaries have conducted their businesses in compliance with applicable anti-corruption laws and have instituted and maintained and will continue to maintain policies and procedures reasonably designed to promote and achieve compliance with such laws and with the representations and warranties contained herein; and (c) neither the Selling Shareholder nor any of its subsidiaries will use, directly or indirectly, the proceeds of the offering in furtherance of an offer, payment, promise to pay, or authorization of the payment or giving of money, or anything else of value, to any person in violation of any applicable anti-corruption laws.
(v) The operations of the Selling Shareholder and each of its subsidiaries are and have been conducted at all times in compliance with all applicable Anti-Money Laundering Laws, and no action, suit or proceeding by or before any court or governmental agency, authority or body or any arbitrator involving the Selling Shareholder or any of its subsidiaries with respect to the Anti-Money Laundering Laws is pending or, to the best knowledge of the Selling Shareholder, threatened.
(j) The Selling Shareholder represents and warrants that it is not (i) an employee benefit plan subject to Title I of ERISA, (ii) a plan or account subject to Section 4975 of the Code or (iii) an entity deemed to hold “plan assets” of any such plan or account under Section 3(42) of ERISA, 29 C.F.R. 2510.3-101, or otherwise.
(k) The Selling Shareholder represents that no stamp, documentary, issuance, registration, transfer, withholding, capital gains, income or other taxes or duties are payable by or on behalf of the Underwriter, the Company or any of its subsidiaries or to any taxing authority thereof or therein in connection with (i) the execution, delivery or consummation of this Agreement by the Selling Shareholder, (ii) the sale and delivery of the Shares by the Selling Shareholder to the Underwriter or purchasers procured by the Underwriter, or (iii) the resale and delivery of such Shares by the Underwriter in the manner contemplated herein.
(l) The Selling Shareholder has the power to submit, and pursuant to Section 20(a) has, to the extent permitted by law, legally, validly, effectively and irrevocably submitted, to the jurisdiction of the Specified Courts (as defined in Section 20(a)), and has the power to designate, appoint and empower, and pursuant to Section 20(b), has legally, validly and effectively designated, appointed and empowered an agent for service of process in any suit or proceeding based on or arising under this Agreement in any of the Specified Courts.
Appears in 1 contract
Representations and Warranties of the Selling Shareholder. The Selling Shareholder represents and warrants to and agrees with the Underwriter that:
(a) This Agreement has been duly authorized, executed and delivered by or on behalf of the Selling Shareholder.
(b) The execution and delivery by the Selling Shareholder of, and the performance by the Selling Shareholder of its obligations under, this Agreement will not contravene (i) any provision of applicable law, (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, singly or in the aggregate, reasonably be expected to have a material adverse effect on the Selling Shareholder’s ability to perform its obligations under this Agreement. 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 (i) such as may have already been obtained, (ii) such as may be required by the securities or Blue Sky laws of the various states in connection with the offer and sale of the Shares or (iii) such that would not reasonably be expected to have a material adverse effect on the ability of the Selling Shareholder to consummate the transactions contemplated by this Agreement.
(c) The Selling Shareholder has, and on the Initial Closing Date, the Repurchase Closing Date and any 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 by the Selling Shareholder free and clear of all security interests, claims, liens, equities or other encumbrances and the legal right and power, and all authorization and approval required by law, to enter into this Agreement and to sell, transfer and deliver the Shares to be sold by the Selling Shareholder or a security entitlement in respect of such Shares.
(d) Upon payment for the Shares to be 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 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 successfully 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.
(e) The Selling Shareholder has delivered to the Underwriter an executed lock-up agreement in substantially the form attached hereto as Exhibit A (the “Lock-up Agreement”).
(f) The Selling Shareholder has not taken, directly or indirectly, any action designed to or that could reasonably be expected to cause or result in any stabilization or manipulation of the price of the Shares in violation of Regulation M under the Exchange Act.
(g) The Selling Shareholder is not prompted by any information concerning the Company or its subsidiaries which is not set forth in the Registration Statement, the Time of Sale Prospectus or the Prospectus to sell its Shares pursuant to this Agreement.
(h) (i) the Registration Statement, when it became effective, did not contain and, as amended or supplemented, if applicable, will not contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading, (ii) the Time of Sale Prospectus does not, and at the time of each sale of the Shares in connection with the offering when the Prospectus is not yet available to prospective purchasers and at the Initial Closing Date, the Repurchase Closing Date (as defined in Section 5) and at any Option Closing Date (as defined in Section 53), the Time of Sale Prospectus, as then amended or supplemented by the Company, if applicable, will not, contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading, and (iii) the Prospectus does not contain and, as amended or supplemented, if applicable, will not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading; provided that the representations and warranties set forth in this paragraph 2(g) are limited in all respects to statements or omissions made in reliance upon and in conformity with information relating to the Selling Shareholder furnished to the Company in writing by the Selling Shareholder expressly for use in the Registration Statement, the Time of Sale Prospectus, the Prospectus or any amendments or supplements thereto, it being understood and agreed that for purposes of this Agreement, the only information furnished by the Selling Shareholder consists of the name of the Selling Shareholder, the number of offered shares and the address and other information with respect to the Selling Shareholder (excluding percentages) which appear in the Registration Statement or any Prospectus in the table (and corresponding footnotes) under the caption “The Selling Shareholder” (the “Selling Shareholder Information”).
(i) (i) None of the Selling Shareholder or any of its subsidiaries, or, to the knowledge of the Selling Shareholder, any director, officer, employee, agent, representative, or affiliate thereof, is a Person that is, or is owned or controlled by one or more Persons that are:
(A) the subject of any Sanctions, or
(B) located, organized or resident in a country or territory that is the subject of Sanctions (including, without limitation, the so-called Donetsk People’s Republic, the so-called Luhansk People’s Republic, the Crimea Region and the non-government controlled areas of the Zaporizhzhia and Kherson Regions of Ukraine, Cuba, Iran, North Korea, Syria or any other Covered Region of Ukraine identified pursuant to Executive Order 14065).
(ii) The Selling Shareholder will not, directly or indirectly, use the proceeds of the offering, or lend, contribute or otherwise make available such proceeds to any subsidiary, joint venture partner or other Person:
(A) to fund or facilitate any activities or business of or with any Person or in any country or territory that, at the time of such funding or facilitation, is the subject of Sanctions; or
(B) in any other manner that will result in a violation of Sanctions by any Person (including any Person participating in the offering, whether as underwriter, advisor, investor or otherwise).
(iii) For the past five years, the Selling Shareholder has not knowingly engaged in, is not now knowingly engaged in, and will not engage in, any dealings or transactions with any Person, or in any country or territory, that at the time of the dealing or transaction is or was the subject of Sanctions.
(a) None of the Selling Shareholder or any of its subsidiaries, or, to the knowledge of the Selling Shareholder, any director, officer, employee, agent, representative, or affiliate thereof has taken or will take any action in furtherance of an offer, payment, promise to pay, or authorization or approval of the payment giving or receipt of money, property, gifts or anything else of value, directly or indirectly, to any Government Official in order to influence official action, or to any person in violation of any applicable anti-corruption laws; (b) the Selling Shareholder and each of its subsidiaries have conducted their businesses in compliance with applicable anti-corruption laws and have instituted and maintained and will continue to maintain policies and procedures reasonably designed to promote and achieve compliance with such laws and with the representations and warranties contained herein; and (c) neither the Selling Shareholder nor any of its subsidiaries will use, directly or indirectly, the proceeds of the offering in furtherance of an offer, payment, promise to pay, or authorization of the payment or giving of money, or anything else of value, to any person in violation of any applicable anti-corruption laws.
(v) The operations of the Selling Shareholder and each of its subsidiaries are and have been conducted at all times in compliance with all applicable Anti-Money Laundering Laws, and no action, suit or proceeding by or before any court or governmental agency, authority or body or any arbitrator involving the Selling Shareholder or any of its subsidiaries with respect to the Anti-Money Laundering Laws is pending or, to the best knowledge of the Selling Shareholder, threatened.
(j) The Selling Shareholder represents and warrants that it is not (i) an employee benefit plan subject to Title I of ERISA, (ii) a plan or account subject to Section 4975 of the Code or (iii) an entity deemed to hold “plan assets” of any such plan or account under Section 3(42) of ERISA, 29 C.F.R. 2510.3-101, or otherwise.
(k) The Selling Shareholder represents that no stamp, documentary, issuance, registration, transfer, withholding, capital gains, income or other taxes or duties are payable by or on behalf of the Underwriter, the Company or any of its subsidiaries or to any taxing authority thereof or therein in connection with (i) the execution, delivery or consummation of this Agreement by the Selling Shareholder, (ii) the sale and delivery of the Shares by the Selling Shareholder to the Underwriter or purchasers procured by the Underwriter, or (iii) the resale and delivery of such Shares by the Underwriter in the manner contemplated herein.
(l) The Selling Shareholder has the power to submit, and pursuant to Section 20(a) has, to the extent permitted by law, legally, validly, effectively and irrevocably submitted, to the jurisdiction of the Specified Courts (as defined in Section 20(a)), and has the power to designate, appoint and empower, and pursuant to Section 20(b), has legally, validly and effectively designated, appointed and empowered an agent for service of process in any suit or proceeding based on or arising under this Agreement in any of the Specified Courts.
Appears in 1 contract
Representations and Warranties of the Selling Shareholder. The Selling Shareholder represents and warrants to and agrees with each of the Underwriter Underwriters that:
(a) This Agreement has been duly authorized, executed and delivered by or on behalf of the Selling Shareholder.
(b) The execution and delivery by the Selling Shareholder of, and the performance by the Selling Shareholder of its obligations under, this Agreement will not contravene (i) any provision of applicable law, (ii) the organizational documents limited liability company agreement 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 clauses (i), (iii) and or (iv) ), as would not, singly or in the aggregate, reasonably be expected to have a material adverse effect on the ability of the Selling Shareholder’s ability Shareholder to perform its obligations under consummate the transactions contemplated by this Agreement. 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 (ix) such as have been obtained and made under the Securities Act or such as may have already been obtainedbe required by the Securities and Exchange Act of 1934, as amended (iithe “Exchange Act”), or the rules and regulations thereunder or (y) such as may be required by the securities or Blue Sky laws of the various states or foreign jurisdictions in connection with the offer and sale of the Shares or (iii) such that would not reasonably be expected to have a material adverse effect on the ability of the Selling Shareholder to consummate the transactions contemplated by this AgreementShares.
(c) The Selling Shareholder has, and on the Initial Closing Date, the Repurchase Closing Date and any 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 by the Selling Shareholder free and clear of all security interests, claims, liens, equities or other encumbrances and the legal right and power, and all authorization and approval required by law, to enter into this Agreement and to sell, transfer and deliver the Shares to be sold by the Selling Shareholder or a security entitlement in respect of such Shares.
(d) Upon payment for the Shares to be sold by the Selling Shareholder pursuant to this Agreement, delivery of such Shares, as directed by the UnderwriterUnderwriters, 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 Underwriters (assuming that neither DTC nor the 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 Underwriter will acquire a valid security entitlement in respect of such Shares and (C) no action based on any “adverse claim”, within the meaning of Section 8-102 of the UCC, to such Shares may be successfully asserted against the 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.
(e) The Selling Shareholder has delivered to the Underwriter an executed lock-up agreement in substantially the form attached hereto as Exhibit A (the “Lock-up Agreement”).
(f) The Selling Shareholder has not taken, directly or indirectly, any action designed to or that could reasonably be expected to cause or result in any stabilization or manipulation of the price of the Shares in violation of Regulation M under the Exchange Act.
(g) The Selling Shareholder is not prompted by any information concerning the Company or its subsidiaries which is not set forth in the Registration Statement, the Time of Sale Prospectus or the Prospectus to sell its Shares pursuant to this Agreement.
(h) (i) the Registration Statement, when it became effective, did not contain and, as amended or supplemented, if applicable, will not contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading, (ii) the Time of Sale Prospectus does not, and at the time of each sale of the Shares in connection with the offering when the Prospectus is not yet available to prospective purchasers and at the Initial Closing Date, the Repurchase Closing Date and any Option Closing Date (as defined in Section 5), the Time of Sale Prospectus, as then amended or supplemented by the Company, if applicable, will not, contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading, and (iii) the Prospectus does not contain and, as amended or supplemented, if applicable, will not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading; provided that the representations and warranties set forth in this paragraph 2(g) are limited in all respects to statements or omissions made in reliance upon and in conformity with information relating to the Selling Shareholder furnished to the Company in writing by the Selling Shareholder expressly for use in the Registration Statement, the Time of Sale Prospectus, the Prospectus or any amendments or supplements thereto, it being understood and agreed that for purposes of this Agreement, the only information furnished by the Selling Shareholder consists of the name of the Selling Shareholder, the number of offered shares and the address and other information with respect to the Selling Shareholder (excluding percentages) which appear in the Registration Statement or any Prospectus in the table (and corresponding footnotes) under the caption “The Selling Shareholder” (the “Selling Shareholder Information”).
(i) (i) None of the Selling Shareholder or any of its subsidiaries, or, to the knowledge of the Selling Shareholder, any director, officer, employee, agent, representative, or affiliate thereof, is a Person that is, or is owned or controlled by one or more Persons that are:
(A) the subject of any Sanctions, or
(B) located, organized or resident in a country or territory that is the subject of Sanctions (including, without limitation, the so-called Donetsk People’s Republic, the so-called Luhansk People’s Republic, the Crimea Region and the non-government controlled areas of the Zaporizhzhia and Kherson Regions of Ukraine, Cuba, Iran, North Korea, Syria or any other Covered Region of Ukraine identified pursuant to Executive Order 14065).
(ii) The Selling Shareholder will not, directly or indirectly, use the proceeds of the offering, or lend, contribute or otherwise make available such proceeds to any subsidiary, joint venture partner or other Person:
(A) to fund or facilitate any activities or business of or with any Person or in any country or territory that, at the time of such funding or facilitation, is the subject of Sanctions; or
(B) in any other manner that will result in a violation of Sanctions by any Person (including any Person participating in the offering, whether as underwriter, advisor, investor or otherwise).
(iii) For the past five years, the Selling Shareholder has not knowingly engaged in, is not now knowingly engaged in, and will not engage in, any dealings or transactions with any Person, or in any country or territory, that at the time of the dealing or transaction is or was the subject of Sanctions.
(a) None of the Selling Shareholder or any of its subsidiaries, or, to the knowledge of the Selling Shareholder, any director, officer, employee, agent, representative, or affiliate thereof has taken or will take any action in furtherance of an offer, payment, promise to pay, or authorization or approval of the payment giving or receipt of money, property, gifts or anything else of value, directly or indirectly, to any Government Official in order to influence official action, or to any person in violation of any applicable anti-corruption laws; (b) the Selling Shareholder and each of its subsidiaries have conducted their businesses in compliance with applicable anti-corruption laws and have instituted and maintained and will continue to maintain policies and procedures reasonably designed to promote and achieve compliance with such laws and with the representations and warranties contained herein; and (c) neither the Selling Shareholder nor any of its subsidiaries will use, directly or indirectly, the proceeds of the offering in furtherance of an offer, payment, promise to pay, or authorization of the payment or giving of money, or anything else of value, to any person in violation of any applicable anti-corruption laws.
(v) The operations of the Selling Shareholder and each of its subsidiaries are and have been conducted at all times in compliance with all applicable Anti-Money Laundering Laws, and no action, suit or proceeding by or before any court or governmental agency, authority or body or any arbitrator involving the Selling Shareholder or any of its subsidiaries with respect to the Anti-Money Laundering Laws is pending or, to the best knowledge of the Selling Shareholder, threatened.
(j) The Selling Shareholder represents and warrants that it is not (i) an employee benefit plan subject to Title I of ERISA, (ii) a plan or account subject to Section 4975 of the Code or (iii) an entity deemed to hold “plan assets” of any such plan or account under Section 3(42) of ERISA, 29 C.F.R. 2510.3-101, or otherwise.
(k) The Selling Shareholder represents that no stamp, documentary, issuance, registration, transfer, withholding, capital gains, income or other taxes or duties are payable by or on behalf of the Underwriter, the Company or any of its subsidiaries or to any taxing authority thereof or therein in connection with (i) the execution, delivery or consummation of this Agreement by the Selling Shareholder, (ii) the sale and delivery of the Shares by the Selling Shareholder to the Underwriter or purchasers procured by the Underwriter, or (iii) the resale and delivery of such Shares by the Underwriter in the manner contemplated herein.
(l) The Selling Shareholder has the power to submit, and pursuant to Section 20(a) has, to the extent permitted by law, legally, validly, effectively and irrevocably submitted, to the jurisdiction of the Specified Courts (as defined in Section 20(a)), and has the power to designate, appoint and empower, and pursuant to Section 20(b), has legally, validly and effectively designated, appointed and empowered an agent for service of process in any suit or proceeding based on or arising under this Agreement in any of the Specified Courts.under
Appears in 1 contract
Samples: Underwriting Agreement (Intermedia Cloud Communications, Inc.)
Representations and Warranties of the Selling Shareholder. The Selling Shareholder represents and warrants to and agrees with each of the Underwriter International Underwriters that:
(a) This Agreement has been duly authorized, executed and delivered by or on behalf of the Selling Shareholder.
(b) The execution and delivery by the Selling Shareholder of, and the performance by the Selling Shareholder of its obligations under, this Agreement and the Brazilian Underwriting Agreement do not and will not contravene (i) any provision of applicable law, (ii) or the organizational documents of the Selling ShareholderShareholder (if the Selling Shareholder is a legal entity), (iii) or 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, singly or in the aggregate, reasonably be expected to have a material adverse effect on the Selling Shareholder’s ability to perform its obligations under this Agreement. No no consent, approval, authorization or order of, or qualification with, any governmental body, body or agency or court is required for the performance by the Selling Shareholder of its obligations under this Agreement, except (i) such as may have already been obtained, (ii) such as may be required by the securities or Blue Sky laws of the various states States of the United States or securities laws of other jurisdictions in connection with the offer and sale of the Shares or Securities, (ii) such as may be required from the Central Bank and the CVM relating to the Deposit Agreement under Annex V of the CMN, (iii) such that would not reasonably be expected from the CVM relating to have a material adverse effect on the ability Brazilian Offering and the offering of the Securities as provided for in this Agreement and in the Brazilian Underwriting Agreement, (iv) from the Central Bank with respect to the transfer of the foreign investment registration relating to the Preferred Shares owned by the Selling Shareholder to consummate be deposited with the transactions Depositary from a direct foreign investment registered under Resolution No. 2997 of August 15, 2000 of the CMN ("Resolution 2997") to a foreign investment registered under Annex V of the CMN, pursuant to art. 7 of the regulation attached to Resolution 2997; (v) from the Central Bank relating to the payment of the fees, commissions and expenses contemplated by this AgreementAgreement and the Deposit Agreement and (vi) such as may be required by the DAC, all of which have been obtained or will be duly obtained (except for those described in clause (i) and in clause (v), specifically with respect to any payment outside of Brazil pursuant to Section 9 hereof)) prior to the Closing Date.
(c) The Selling Shareholder hasowns, and on the Initial Closing Date, the Repurchase Closing Date and any 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 ofown, the Shares Securities to be sold by the Selling Shareholder free and clear of all security interests, claims, liens, equities or other encumbrances and has, and on the Closing Date will have, the legal right and power, and all authorization authorizations and approval approvals required by law, to enter into this Agreement and to sell, transfer and deliver the Shares Securities to be sold by the Selling Shareholder or a security entitlement in respect of such SharesShareholder.
(d) Upon payment for the Shares Securities to be sold by the Selling Shareholder pursuant to this Agreement, delivery of such Sharesthe Preferred Shares in the form of ADSs, as directed by the UnderwriterInternational Underwriters, to Cede & Co. (“Cede”"CEDE") or such other nominee as may be designated by the Depository Trust Company (“"DTC”"), registration of such Shares ADSs in the name of Cede or such other nominee and the crediting of such Shares ADSs on the books of DTC to securities accounts of the Underwriter International Underwriters (assuming that neither DTC nor the any such International 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 SharesADSs), (A) DTC shall be a “"protected purchaser” " of such Shares ADSs within the meaning of Section 8-303 of the UCC, (B) under Section 8-501 of the UCC, the Underwriter International Underwriters will acquire a valid security entitlement in respect of such Shares ADSs and (C) no action based on any “"adverse claim”, ," within the meaning of Section 8-102 of the UCC, to such Shares ADSs may be successfully asserted against the Underwriter International Underwriters with respect to such security entitlement; for . For purposes of this representation, the Selling Shareholder may assume that when such payment, delivery and crediting occur, (x) such Shares ADSs will have been registered in the name of Cede or another nominee designated by DTC, in each case on the Company’s Depositary's ADS share registry in accordance with its certificate of incorporation, bylaws the Deposit Agreement 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 accounts of the Underwriter several International Underwriters on the records of DTC will have been made pursuant to the UCC.
(e) The Upon payment for the Securities to be sold to the International Underwriters by the Selling Shareholder has delivered pursuant to this Agreement, all right, title and interest in the Securities will be transferred to the Underwriter an executed lock-up agreement in substantially the form attached hereto as Exhibit A (the “Lock-up Agreement”)International Underwriters free and clear of all security interests, claims, liens, equities or other encumbrances.
(f) The Selling Shareholder has not taken, directly or indirectly, any action designed no reason to or believe that could reasonably be expected to cause or result in any stabilization or manipulation the representations and warranties of the price Company contained in Section 1 of this Agreement are not true and correct, is familiar with the Shares Registration Statement and Prospectus and has no knowledge of any material fact, condition or information not disclosed in violation of Regulation M under the Exchange Act.
(g) Prospectus that has had, or may have, a material adverse effect on the Company. The Selling Shareholder is not prompted by any information concerning the Company or its subsidiaries which that is not set forth in the Registration Statement, the Time of Sale Prospectus or the Prospectus to sell its Shares Securities pursuant to this Agreement.
(h) (i) the The Registration Statement, when it became effective, did not contain and, as amended or supplemented, if applicable, will not contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading, and (ii) the Time of Sale Prospectus does not, and at the time of each sale of the Shares in connection with the offering when the Prospectus is not yet available to prospective purchasers and at the Initial Closing Date, the Repurchase Closing Date and any Option Closing Date (as defined in Section 5), the Time of Sale Prospectus, as then amended or supplemented by the Company, if applicable, will not, contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading, and (iii) the Prospectus does not contain and, as amended or supplemented, if applicable, will not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading; , provided that the representations and warranties set forth in this paragraph 2(g) are limited in all respects to statements or omissions made in reliance upon and in conformity with information relating to the Selling Shareholder furnished to the Company in writing by the Selling Shareholder expressly for use in the Registration Statement, the Time of Sale Prospectus, the Prospectus or any amendments or supplements thereto, it being understood and agreed that for purposes of this Agreement, the only information furnished by the Selling Shareholder consists of the name of the Selling Shareholder, the number of offered shares and the address and other information with respect to the Selling Shareholder (excluding percentages) which appear in the Registration Statement or any Prospectus in the table (and corresponding footnotes) under the caption “The Selling Shareholder” (the “Selling Shareholder Information”).
(ih) (i) None of In connection with the Selling Shareholder or any of its subsidiaries, or, to the knowledge of the Selling Shareholder, any director, officer, employee, agent, representative, or affiliate thereof, is a Person that is, or is owned or controlled transactions contemplated 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, the so-called Donetsk People’s Republic, the so-called Luhansk People’s Republic, the Crimea Region and the non-government controlled areas of the Zaporizhzhia and Kherson Regions of Ukraine, Cuba, Iran, North Korea, Syria or any other Covered Region of Ukraine identified pursuant to Executive Order 14065).
(ii) The Selling Shareholder will not, directly or indirectly, use the proceeds of the offering, or lend, contribute or otherwise make available such proceeds to any subsidiary, joint venture partner or other Person:
(A) to fund or facilitate any activities or business of or with any Person or in any country or territory that, at the time of such funding or facilitation, is the subject of Sanctions; or
(B) in any other manner that will result in a violation of Sanctions by any Person (including any Person participating in the offering, whether as underwriter, advisor, investor or otherwise).
(iii) For the past five yearsthis Agreement, the Selling Shareholder has not knowingly engaged in, is not now knowingly engaged in, taken and will not engage in, take any dealings action for the purpose of stabilizing or transactions with any Person, or in any country or territory, that at manipulating the time price of the dealing or transaction is or was the subject of SanctionsSecurities.
(ai) None The Selling Shareholder has deposited, or will deposit prior to the Closing Date, Preferred Shares with the Depositary against the issuance of the Selling Shareholder or any of its subsidiariesADRs evidencing the ADSs to be sold by it, oracting through the Company as provided hereunder, to the knowledge of the Selling Shareholder, any director, officer, employee, agent, representative, or affiliate thereof International Underwriters and has taken instructed or will take any action in furtherance of an offer, payment, promise instruct the Depositary to pay, or authorization or approval of the payment giving or receipt of money, property, gifts or anything else of value, directly or indirectly, to any Government Official in order to influence official action, or to any person in violation of any applicable anti-corruption laws; (b) the Selling Shareholder and each of its subsidiaries have conducted their businesses in compliance with applicable anti-corruption laws and have instituted and maintained and will continue to maintain policies and procedures reasonably designed to promote and achieve compliance with deliver 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 each of its subsidiaries are and have been conducted at all times in 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 ADSs to the Anti-Money Laundering Laws is pending or, to International Underwriters at the best knowledge of the Selling Shareholder, threatenedClosing Date.
(j) The No persons are entitled to preemptive or other rights to acquire the Securities from the Selling Shareholder represents Shareholder, and warrants that it is not (i) an employee benefit plan subject to Title I the Preferred Shares may be deposited, without any restrictions on transfer, with the Depositary against the issuance of ERISA, (ii) a plan or account subject to Section 4975 of ADRs evidencing ADSs as contemplated in the Code or (iii) an entity deemed to hold “plan assets” of any such plan or account under Section 3(42) of ERISA, 29 C.F.R. 2510.3-101, or otherwiseDeposit Agreement.
(k) The Selling Shareholder represents that no stamp, documentary, issuance, registration, transfer, withholding, capital gains, income or other taxes or duties are payable by or on behalf of the Underwriter, the Company or any of its subsidiaries or to any taxing authority thereof or therein in connection with (i) the execution, delivery or consummation of this Agreement by the Selling Shareholder, (ii) the sale and delivery of the Shares by the Selling Shareholder to the Underwriter or purchasers procured by the Underwriter, or (iii) the resale and delivery of such Shares by the Underwriter in the manner contemplated herein.
(l) The Selling Shareholder has the power to submit, and pursuant to Section 20(a) has14 of this Agreement, to the extent permitted by law, has legally, validly, effectively and irrevocably submitted, to the jurisdiction of the Specified Courts (as defined any New York State or United States Federal court sitting in Section 20(a))The City of New York, and has the power to designate, appoint and empower, and pursuant to Section 20(b)14 of this Agreement, has legally, validly and effectively designated, appointed and empowered empowered, an agent for service of process in any suit or proceeding based on or arising under this Agreement in any New York State or United States Federal court sitting in The City of the Specified CourtsNew York.
Appears in 1 contract
Samples: Underwriting Agreement (Gol Intelligent Airlines Inc.)
Representations and Warranties of the Selling Shareholder. The Selling Shareholder represents and warrants to and agrees with each of the Underwriter Underwriters that:
(a) The Selling Shareholder has been duly organized and is validly existing as a company with limited liability in good standing under the laws of the Marshall Islands and has the power and authority to own, lease and operate its properxxxx xxx to conduct its business as currently conducted and to enter into and perform its obligations under this Agreement.
(b) This Agreement has been duly authorized, executed and delivered by or on behalf of the Selling Shareholder.
(bc) The execution and delivery by the Selling Shareholder of, and the performance by the Selling Shareholder of its obligations under, this Agreement will not contravene (i) or conflict with, result in a breach of, or constitute a Default under, or require the consent of any provision other party to, the certificate of applicable lawformation, (ii) the articles of organization or other organizational documents of the Selling Shareholder, (iii) Shareholder or any other agreement or other instrument binding upon to which the Selling Shareholder is a party or (iv) by which it is bound or under which it is entitled to any right or benefit, any provision of applicable law or any judgment, order order, decree or decree regulation applicable to the Selling Shareholder of any governmental court, regulatory body, agency administrative agency, governmental body or court arbitrator having jurisdiction over the Selling Shareholder, except in the case of (i), (iii) and (iv) as would not, singly or in the aggregate, reasonably be expected to have a material adverse effect on the Selling Shareholder’s ability to perform its obligations under this Agreement. No consent, approval, authorization or other order of, or qualification registration or filing with, any court or other governmental body, or regulatory authority or agency or court is required for the Selling Shareholder’s execution, delivery or performance of this Agreement or the consummation by the Selling Shareholder of its obligations under the transactions contemplated in this Agreement, except such as (i) such as may have already been obtained, obtained or made and are in full force and effect or (ii) such as may be required under applicable state securities or blue sky laws.
(d) Except for such consents, approvals and waivers which have been obtained by the securities Selling Shareholder on or Blue Sky laws prior to the date of this Agreement, no consent, approval or waiver is required under any instrument or agreement to which the various states Selling Shareholder is a party or by which it is bound or under which it is entitled to any right or benefit, in connection with the offer and offering, sale or purchase by the Underwriters of any of the Shares or (iii) such that would not reasonably which may be expected to have a material adverse effect on the ability of sold by the Selling Shareholder to consummate under this Agreement or the consummation by the Selling Shareholder of any of the other transactions contemplated by this Agreementhereby.
(ce) The Selling Shareholder has, and on the Initial Closing Date, the Repurchase Closing Date and any each applicable Option Closing Date (as defined below) will have, have good and valid title to, or a valid “security entitlement” within the meaning of Section 8-501 to all of the New York Uniform Commercial Code in respect of, the Shares to be sold by the Selling Shareholder free and clear of all security interests, claims, liens, equities or other encumbrances and the legal right and power, and all authorization and approval required by law, to enter into this Agreement and to sell, transfer and deliver the Shares to be sold by the Selling Shareholder or a security entitlement in respect of such Shares.
(d) Upon payment for the Shares to which may be sold by the Selling Shareholder pursuant to this AgreementAgreement on such date and the legal right and power to sell, delivery transfer and deliver all of such Shares, as directed by the Underwriter, to Cede & Co. (“Cede”) or such other nominee as Shares which may be designated sold 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 successfully 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 pursuant to this Agreement 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 to comply with its certificate of incorporation, bylaws other obligations hereunder 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.
(e) The Selling Shareholder has delivered to the Underwriter an executed lock-up agreement in substantially the form attached hereto as Exhibit A (the “Lock-up Agreement”)thereunder.
(f) Delivery of the Shares which are sold by the Selling Shareholder pursuant to this Agreement will pass good and valid title to such Shares, free and clear of any security interest, mortgage, pledge, lien, encumbrance or other adverse claim.
(g) The Selling Shareholder has not taken, directly or indirectly, any action designed to or that could might be reasonably be expected to cause or result in any stabilization or manipulation of the price of any security to facilitate the Shares in violation sale or resale of Regulation M under the Exchange Actshares of Common Stock.
(gh) The Selling Shareholder (i) 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 generally described in the Time of Sale Prospectus and the Prospectus or are set forth in that certain Registration Rights Agreement dated as of July 15, 2005 (which is incorporated by reference as an exhibit to the Registration Statement), and (ii) does not own any warrants, options or similar rights to acquire, and does not have any right or arrangement to acquire, any share capital, rights, warrants, options or other securities from the Company, other than those generally described in the Time of Sale Prospectus and the Prospectus.
(i) All information furnished by or on behalf of the Selling Shareholder in writing expressly for use in the Registration Statement, the Time of Sale Prospectus and the Prospectus is, and on the Closing Date and any applicable Option Closing Date will be, true, correct, and complete in all material respects, and does not, and on the Closing Date and any applicable Option Closing Date will not, contain any untrue statement of a material fact or omit to state any material fact necessary to make such information not misleading. The Selling Shareholder confirms as accurate the number of shares of Common Stock set forth opposite the Selling Shareholder’s name in the Time of Sale Prospectus under the caption “Selling Shareholder” (both prior to and after giving effect to the sale of the Shares).
(j) The Selling Shareholder is not, and after receipt of payment for the Shares will not be, an “investment company” within the meaning of Investment Company Act.
(k) There are no transfer taxes or other similar fees or charges under federal law or the laws of any state or foreign jurisdiction, or any political subdivision thereof, required to be paid by the Selling Shareholder in connection with the execution and delivery of this Agreement or the sale by the Selling Shareholder of the Shares.
(l) The Selling Shareholder has not distributed and will not distribute, prior to the later of (i) the expiration or termination of the option granted to the several Underwriters under Section 3, (ii) the completion of the Underwriters’ distribution of the Shares and (iii) the expiration of 25 days after the date of the Prospectus, any offering material in connection with the offering and sale of the Shares other than a preliminary prospectus, the Time of Sale Prospectus, the Prospectus or the Registration Statement.
(m) The Selling Shareholder has reviewed and is familiar with the Registration Statement, the Time of Sale Prospectus and the Prospectus and: (i) with respect solely to information provided in writing by the Selling Shareholder that is included therein, has no knowledge of any misstatement of a material fact or failure to state a material fact necessary to make the statements in the Time of Sale Prospectus and the Prospectus, in light of the circumstances under which they were made, not misleading; and (ii) is not prompted to sell the Firm Shares and the Additional Shares, if any, to be sold by the Selling Shareholder by any information concerning the Company or its subsidiaries any Subsidiary 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.
(h) (i) the Registration Statement, when it became effective, did not contain and, as amended or supplemented, if applicable, will not contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading, (ii) the Time of Sale Prospectus does not, and at the time of each sale of the Shares in connection with the offering when the Prospectus is not yet available to prospective purchasers and at the Initial Closing Date, the Repurchase Closing Date and any Option Closing Date (as defined in Section 5), the Time of Sale Prospectus, as then amended or supplemented by the Company, if applicable, will not, contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading, and (iii) the Prospectus does not contain and, as amended or supplemented, if applicable, will not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading; provided that the representations and warranties set forth in this paragraph 2(g) are limited in all respects to statements or omissions made in reliance upon and in conformity with information relating to the Selling Shareholder furnished to the Company in writing by the Selling Shareholder expressly for use in the Registration Statement, the Time of Sale Prospectus, the Prospectus or any amendments or supplements thereto, it being understood and agreed that for purposes of this Agreement, the only information furnished by the Selling Shareholder consists of the name of the Selling Shareholder, the number of offered shares and the address and other information with respect to the Selling Shareholder (excluding percentages) which appear in the Registration Statement or any Prospectus in the table (and corresponding footnotes) under the caption “The Selling Shareholder” (the “Selling Shareholder Information”)Prospectus.
(i) (i) None of the Selling Shareholder or any of its subsidiaries, or, to the knowledge of the Selling Shareholder, any director, officer, employee, agent, representative, or affiliate thereof, is a Person that is, or is owned or controlled by one or more Persons that are:
(A) the subject of any Sanctions, or
(B) located, organized or resident in a country or territory that is the subject of Sanctions (including, without limitation, the so-called Donetsk People’s Republic, the so-called Luhansk People’s Republic, the Crimea Region and the non-government controlled areas of the Zaporizhzhia and Kherson Regions of Ukraine, Cuba, Iran, North Korea, Syria or any other Covered Region of Ukraine identified pursuant to Executive Order 14065).
(ii) The Selling Shareholder will not, directly or indirectly, use the proceeds of the offering, or lend, contribute or otherwise make available such proceeds to any subsidiary, joint venture partner or other Person:
(A) to fund or facilitate any activities or business of or with any Person or in any country or territory that, at the time of such funding or facilitation, is the subject of Sanctions; or
(B) in any other manner that will result in a violation of Sanctions by any Person (including any Person participating in the offering, whether as underwriter, advisor, investor or otherwise).
(iii) For the past five years, the Selling Shareholder has not knowingly engaged in, is not now knowingly engaged in, and will not engage in, any dealings or transactions with any Person, or in any country or territory, that at the time of the dealing or transaction is or was the subject of Sanctions.
(a) None of the Selling Shareholder or any of its subsidiaries, or, to the knowledge of the Selling Shareholder, any director, officer, employee, agent, representative, or affiliate thereof has taken or will take any action in furtherance of an offer, payment, promise to pay, or authorization or approval of the payment giving or receipt of money, property, gifts or anything else of value, directly or indirectly, to any Government Official in order to influence official action, or to any person in violation of any applicable anti-corruption laws; (b) the Selling Shareholder and each of its subsidiaries have conducted their businesses in compliance with applicable anti-corruption laws and have instituted and maintained and will continue to maintain policies and procedures reasonably designed to promote and achieve compliance with such laws and with the representations and warranties contained herein; and (c) neither the Selling Shareholder nor any of its subsidiaries will use, directly or indirectly, the proceeds of the offering in furtherance of an offer, payment, promise to pay, or authorization of the payment or giving of money, or anything else of value, to any person in violation of any applicable anti-corruption laws.
(v) The operations of the Selling Shareholder and each of its subsidiaries are and have been conducted at all times in compliance with all applicable Anti-Money Laundering Laws, and no action, suit or proceeding by or before any court or governmental agency, authority or body or any arbitrator involving the Selling Shareholder or any of its subsidiaries with respect to the Anti-Money Laundering Laws is pending or, to the best knowledge of the Selling Shareholder, threatened.
(j) The Selling Shareholder represents and warrants that it is not (i) an employee benefit plan subject to Title I of ERISA, (ii) a plan or account subject to Section 4975 of the Code or (iii) an entity deemed to hold “plan assets” of any such plan or account under Section 3(42) of ERISA, 29 C.F.R. 2510.3-101, or otherwise.
(k) The Selling Shareholder represents that no stamp, documentary, issuance, registration, transfer, withholding, capital gains, income or other taxes or duties are payable by or on behalf of the Underwriter, the Company or any of its subsidiaries or to any taxing authority thereof or therein in connection with (i) the execution, delivery or consummation of this Agreement by the Selling Shareholder, (ii) the sale and delivery of the Shares by the Selling Shareholder to the Underwriter or purchasers procured by the Underwriter, or (iii) the resale and delivery of such Shares by the Underwriter in the manner contemplated herein.
(l) The Selling Shareholder has the power to submit, and pursuant to Section 20(a) has, to the extent permitted by law, legally, validly, effectively and irrevocably submitted, to the jurisdiction of the Specified Courts (as defined in Section 20(a)), and has the power to designate, appoint and empower, and pursuant to Section 20(b), has legally, validly and effectively designated, appointed and empowered an agent for service of process in any suit or proceeding based on or arising under this Agreement in any of the Specified Courts.
Appears in 1 contract
Samples: Underwriting Agreement (Genco Shipping & Trading LTD)
Representations and Warranties of the Selling Shareholder. The Selling Shareholder represents and warrants to and agrees with each of the Underwriter Underwriters that:
(a) This Agreement has been duly authorized, executed and delivered by or on behalf of the Selling Shareholder.
(b) The execution and delivery by the Selling Shareholder of, and the performance by the Selling Shareholder of its obligations under, this Agreement Agreement, will not contravene (i) any provision of applicable law, (ii) or the certificate of incorporation, the memorandum and articles of association or any other organizational documents document of the Selling Shareholder, (iii) or 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, singly or in the aggregate, reasonably be expected to have a material adverse effect on the Selling Shareholder’s ability to perform its obligations under this Agreement. No no consent, approval, authorization or order of, or qualification with, any governmental body, body or agency or court is required for the performance by the Selling Shareholder of its obligations under this Agreement, except (i) such as may have already been obtained, (ii) such as may be required by the securities or Blue Sky laws of the various states in connection with the offer and sale of the Shares or (iii) such that would not reasonably be expected to have a material adverse effect on the ability of the Selling Shareholder to consummate the transactions contemplated by this AgreementShares.
(c) The Selling Shareholder has, and on the Initial Closing Date, the Repurchase Closing Date and any 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 by the Selling Shareholder free and clear of all security interests, claims, liens, equities or other encumbrances and the legal right and power, and all authorization and approval required by law, to enter into this Agreement and to sell, transfer and deliver the Shares to be sold by the Selling Shareholder or a security entitlement in respect of such Shares.
(d) Upon payment for the Shares to be sold by the Selling Shareholder pursuant to this Agreement, delivery of such Shares, as directed by the UnderwriterUnderwriters, 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 Underwriters (assuming that neither DTC nor the 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 Underwriter 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 Underwriter 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 memorandum and articles of association of the Company 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 accounts of the Underwriter several Underwriters on the records of DTC will have been made pursuant to the UCC.
(e) The Selling Shareholder has delivered no reason to believe that the Underwriter an executed lock-up agreement in substantially the form attached hereto as Exhibit A (the “Lock-up Agreement”).
(f) The Selling Shareholder has not taken, directly or indirectly, any action designed to or that could reasonably be expected to cause or result in any stabilization or manipulation representations and warranties of the price Company contained in Section 1 are not true and correct, is familiar with the Registration Statement, the Time of Sale Prospectus and the Shares Prospectus and has no knowledge of any material fact, condition or information not disclosed in violation the Time of Regulation M under Sale Prospectus or the Exchange Act.
(g) 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 Registration Statement, the Time of Sale Prospectus or and the Prospectus to sell its Shares pursuant to this Agreement.
(h) (i) Each part of the Registration Statement, when it such part became effective, did not contain andand each such part, as amended or supplemented, if applicable, will not contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading, (ii) the Registration Statement as of the date hereof does not contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading, (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 sale of the Shares in connection with the offering when the Prospectus is not yet available to prospective purchasers and at the Initial Closing Date, the Repurchase Closing Date and any Option Closing Date (as defined in Section 5), the Time of Sale Prospectus, as then amended or supplemented by the Company, if applicable, will not, contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading, (v) each broadly available road show, if any, when considered together with the Time of Sale Prospectus, does not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading and (iiivi) the Prospectus does not contain and, as amended or supplemented, if applicable, will not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading; provided that the representations and warranties set forth in this paragraph 2(g2(f) are limited in all respects to statements or omissions made in reliance upon and in conformity with information relating to the Selling Shareholder furnished to the Company in writing by the Selling Shareholder expressly for use in the Registration Statement, the Time of Sale Prospectus, the Prospectus or any amendments or supplements thereto, it being understood and agreed that for purposes of this Agreement, the only information furnished by the Selling Shareholder consists of the name of the Selling Shareholder, the number of offered shares and the address and other information with respect to the Selling Shareholder (excluding percentages) which appear in the Registration Statement or any Prospectus in the table (and corresponding footnotes) under the caption “The Selling Shareholder” (the “Selling Shareholder Information”).
(i) (i) None of the Selling Shareholder or any of its subsidiaries, or, to the knowledge of the Selling Shareholder, any director, officer, employee, agent, representative, or affiliate thereof, is a Person that is, or is owned or controlled by one or more Persons that are:
(A) the subject of any Sanctions, or
(B) located, organized or resident in a country or territory that is the subject of Sanctions (including, without limitation, the so-called Donetsk People’s Republic, the so-called Luhansk People’s Republic, the Crimea Region and the non-government controlled areas of the Zaporizhzhia and Kherson Regions of Ukraine, Cuba, Iran, North Korea, Syria or any other Covered Region of Ukraine identified pursuant to Executive Order 14065).
(ii) The Selling Shareholder will not, directly or indirectly, use the proceeds of the offering, or lend, contribute or otherwise make available such proceeds to any subsidiary, joint venture partner or other Person:
(A) to fund or facilitate any activities or business of or with any Person or in any country or territory that, at the time of such funding or facilitation, is the subject of Sanctions; or
(B) in any other manner that will result in a violation of Sanctions by any Person (including any Person participating in the offering, whether as underwriter, advisor, investor or otherwise).
(iii) For the past five years, the Selling Shareholder has not knowingly engaged in, is not now knowingly engaged in, and will not engage in, any dealings or transactions with any Person, or in any country or territory, that at the time of the dealing or transaction is or was the subject of Sanctions.
(a) None of the Selling Shareholder or any of its subsidiaries, or, to the knowledge of the Selling Shareholder, any director, officer, employee, agent, representative, or affiliate thereof has taken or will take any action in furtherance of an offer, payment, promise to pay, or authorization or approval of the payment giving or receipt of money, property, gifts or anything else of value, directly or indirectly, to any Government Official in order to influence official action, or to any person in violation of any applicable anti-corruption laws; (b) the Selling Shareholder and each of its subsidiaries have conducted their businesses in compliance with applicable anti-corruption laws and have instituted and maintained and will continue to maintain policies and procedures reasonably designed to promote and achieve compliance with such laws and with the representations and warranties contained herein; and (c) neither the Selling Shareholder nor any of its subsidiaries will use, directly or indirectly, the proceeds of the offering in furtherance of an offer, payment, promise to pay, or authorization of the payment or giving of money, or anything else of value, to any person in violation of any applicable anti-corruption laws.
(v) The operations of the Selling Shareholder and each of its subsidiaries are and have been conducted at all times in compliance with all applicable Anti-Money Laundering Laws, and no action, suit or proceeding by or before any court or governmental agency, authority or body or any arbitrator involving the Selling Shareholder or any of its subsidiaries with respect to the Anti-Money Laundering Laws is pending or, to the best knowledge of the Selling Shareholder, threatened.
(j) The Selling Shareholder represents and warrants that it is not (i) an employee benefit plan subject to Title I of ERISA, (ii) a plan or account subject to Section 4975 of the Code or (iii) an entity deemed to hold “plan assets” of any such plan or account under Section 3(42) of ERISA, 29 C.F.R. 2510.3-101, or otherwise.
(k) The Selling Shareholder represents that no stamp, documentary, issuance, registration, transfer, withholding, capital gains, income or other taxes or duties are payable by or on behalf of the Underwriter, the Company or any of its subsidiaries or to any taxing authority thereof or therein in connection with (i) the execution, delivery or consummation of this Agreement by the Selling Shareholder, (ii) the sale and delivery of the Shares by the Selling Shareholder to the Underwriter or purchasers procured by the Underwriter, or (iii) the resale and delivery of such Shares by the Underwriter in the manner contemplated herein.
(l) The Selling Shareholder has the power to submit, and pursuant to Section 20(a) has, to the extent permitted by law, legally, validly, effectively and irrevocably submitted, to the jurisdiction of the Specified Courts (as defined in Section 20(a)), and has the power to designate, appoint and empower, and pursuant to Section 20(b), has legally, validly and effectively designated, appointed and empowered an agent for service of process in any suit or proceeding based on or arising under this Agreement in any of the Specified Courts.
Appears in 1 contract
Samples: Underwriting Agreement (Fresh Del Monte Produce Inc)
Representations and Warranties of the Selling Shareholder. The Selling Shareholder represents and warrants to and agrees with the Underwriter that:
(a) This Agreement has been duly authorized, executed and delivered by or on behalf of the Selling Shareholder.
(b) The execution and delivery by the Selling Shareholder of, and the performance by the Selling Shareholder of its obligations under, this Agreement will not contravene (i) any provision of applicable law, (ii) the certificate of incorporation, by-laws or other constitutive or 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 clauses (i), ) and (iii) and (iv) as for such contravention that would not, singly or in the aggregate, reasonably be expected to not have a material adverse effect on the ability of the Selling Shareholder’s ability Shareholder to perform its obligations under this Agreement. No consummate the transactions contemplated hereby, and no consent, approval, authorization or order of, or qualification with, any governmental body, body or agency or court is required for the performance by the Selling Shareholder of its obligations under this Agreement, except (i) such as may have already been obtained, (iiA) such as may be required by the Securities Act, the Exchange Act and the securities or Blue Sky laws of the various states and (B) such others as have been obtained in connection with the offer and sale of the Shares or (iii) such that would not reasonably be expected to have a material adverse effect on the ability of the Selling Shareholder to consummate the transactions contemplated by this AgreementShares.
(c) The Selling Shareholder hashas (or, upon the exercise of vested stock options into Ordinary Shares, will have on or prior to the Closing Date), and on the Initial Closing Date, the Repurchase Closing Date and any 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 by the Selling Shareholder free and clear of all security interests, claims, liens, equities or other encumbrances and the legal right and power, and all authorization and approval required by law, to enter into this Agreement and to sell, transfer and deliver the Shares to be sold by the Selling Shareholder or a security entitlement in respect of such Shares.
(d) Upon payment for the Shares to be 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 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 successfully 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, (w) the Underwriter is purchasing such Shares without notice of any adverse claim, (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 by-laws 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 accounts of the Underwriter on the records of DTC will have been made pursuant to the UCC.
(e) The Selling Shareholder has delivered to the Underwriter an executed lock-up agreement in substantially the form attached hereto as Exhibit A (the “Lock-up Agreement”).
(f) The Selling Shareholder has not taken, directly or indirectly, any action designed to or that could reasonably be expected to cause or result in any stabilization or manipulation of the price of the Shares in violation of Regulation M under the Exchange Act.
(g) The Selling Shareholder is not prompted by any information concerning the Company or its subsidiaries which is not set forth in the Registration Statement, the Time of Sale Prospectus or the Prospectus to sell its Shares pursuant to this Agreement.
(h) (i) the The Registration Statement, when it became effective, did not contain contain, and, as amended or supplemented, if applicable, will not contain contain, any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading, (ii) the Time of Sale Prospectus does not, and at the time of each sale Registration Statement as of the Shares in connection with date hereof does not contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the offering when statements therein not misleading, (iii) as of the Prospectus is not yet available to prospective purchasers and at the Initial Closing Date, the Repurchase Closing Date and any Option Closing Date (as defined in Section 5)Applicable Time, the Time of Sale Prospectus, as then amended or supplemented by the Company, if applicable, will not, Prospectus did not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading, (iv) each broadly available road show, if any, when considered together with the Time of Sale Prospectus, does not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading and (iiiv) the Prospectus Prospectus, as of its date, does not contain and, as amended or supplemented, if applicable, as of the Closing Date, 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(g2(f) are limited in all respects to statements or omissions made in reliance upon and in conformity with information relating to the Selling Shareholder furnished to the Company in writing by the Selling Shareholder expressly for use in the Registration Statement, the Time of Sale Prospectus, any broadly available road show, the Prospectus or any amendments or supplements thereto, it being understood and agreed that for purposes of this Agreement, the only information furnished by the Selling Shareholder consists of the name of the Selling Shareholder, the number of offered shares and the address and other information with respect to the Selling Shareholder (excluding percentages) which appear in the Registration Statement or any Prospectus in the table (and corresponding footnotes) under the caption “The Selling Shareholder” (the “Selling Shareholder Information”).
(i) (i) None of the Selling Shareholder or any of its subsidiaries, or, to the knowledge of the Selling Shareholder, any director, officer, employee, agent, representative, or affiliate thereof, is a Person that is, or is owned or controlled by one or more Persons that are:
(A) the subject of any Sanctions, or
(B) located, organized or resident in a country or territory that is the subject of Sanctions (including, without limitation, the so-called Donetsk People’s Republic, the so-called Luhansk People’s Republic, the Crimea Region and the non-government controlled areas of the Zaporizhzhia and Kherson Regions of Ukraine, Cuba, Iran, North Korea, Syria or any other Covered Region of Ukraine identified pursuant to Executive Order 14065).
(ii) The Selling Shareholder will not, directly or indirectly, use the proceeds of the offering, or lend, contribute or otherwise make available such proceeds to any subsidiary, joint venture partner or other Person:
(A) to fund or facilitate any activities or business of or with any Person or in any country or territory that, at the time of such funding or facilitation, is the subject of Sanctions; or
(B) in any other manner that will result in a violation of Sanctions by any Person (including any Person participating in the offering, whether as underwriter, advisor, investor or otherwise).
(iii) For the past five years, the Selling Shareholder has not knowingly engaged in, is not now knowingly engaged in, and will not engage in, any dealings or transactions with any Person, or in any country or territory, that at the time of the dealing or transaction is or was the subject of Sanctions.
(a) None of the Selling Shareholder or any of its subsidiaries, or, to the knowledge of the Selling Shareholder, any director, officer, employee, agent, representative, or affiliate thereof has taken or will take any action in furtherance of an offer, payment, promise to pay, or authorization or approval of the payment giving or receipt of money, property, gifts or anything else of value, directly or indirectly, to any Government Official in order to influence official action, or to any person in violation of any applicable anti-corruption laws; (b) the Selling Shareholder and each of its subsidiaries have conducted their businesses in compliance with applicable anti-corruption laws and have instituted and maintained and will continue to maintain policies and procedures reasonably designed to promote and achieve compliance with such laws and with the representations and warranties contained herein; and (c) neither the Selling Shareholder nor any of its subsidiaries will use, directly or indirectly, the proceeds of the offering in furtherance of an offer, payment, promise to pay, or authorization of the payment or giving of money, or anything else of value, to any person in violation of any applicable anti-corruption laws.
(v) The operations of the Selling Shareholder and each of its subsidiaries are and have been conducted at all times in compliance with all applicable Anti-Money Laundering Laws, and no action, suit or proceeding by or before any court or governmental agency, authority or body or any arbitrator involving the Selling Shareholder or any of its subsidiaries with respect to the Anti-Money Laundering Laws is pending or, to the best knowledge of the Selling Shareholder, threatened.
(j) The Selling Shareholder represents and warrants that it is not (i) an employee benefit plan subject to Title I of ERISA, (ii) a plan or account subject to Section 4975 of the Code or (iii) an entity deemed to hold “plan assets” of any such plan or account under Section 3(42) of ERISA, 29 C.F.R. 2510.3-101, or otherwise.
(k) The Selling Shareholder represents that no stamp, documentary, issuance, registration, transfer, withholding, capital gains, income or other taxes or duties are payable by or on behalf of the Underwriter, the Company or any of its subsidiaries or to any taxing authority thereof or therein in connection with (i) the execution, delivery or consummation of this Agreement by the Selling Shareholder, (ii) the sale and delivery of the Shares by the Selling Shareholder to the Underwriter or purchasers procured by the Underwriter, or (iii) the resale and delivery of such Shares by the Underwriter in the manner contemplated herein.
(l) The Selling Shareholder has the power to submit, and pursuant to Section 20(a) has, to the extent permitted by law, legally, validly, effectively and irrevocably submitted, to the jurisdiction of the Specified Courts (as defined in Section 20(a)), and has the power to designate, appoint and empower, and pursuant to Section 20(b), has legally, validly and effectively designated, appointed and empowered an agent for service of process in any suit or proceeding based on or arising under this Agreement in any of the Specified Courts.
Appears in 1 contract
Representations and Warranties of the Selling Shareholder. The Selling Shareholder represents and warrants to and agrees with each of the Underwriter Underwriters and the Company that:
(a) This Agreement has been duly authorized, executed and delivered by or on behalf of the Selling Shareholder.
(b) The execution and delivery by the Selling Shareholder of, and the performance by the Selling Shareholder of its obligations under, this Agreement will not contravene (i) any provision of applicable law, (ii) or the organizational documents certificate of incorporation or by-laws of the Selling ShareholderShareholder (if the Selling Shareholder is a corporation), (iii) or 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, singly or in the aggregate, reasonably be expected to have a material adverse effect on the Selling Shareholder’s ability to perform its obligations under this Agreement. No 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 (i) such as may have already been obtained, (ii) such as may be required by the securities or Blue Sky laws of the various states in connection with the offer and sale of the Shares or (iii) such that would not reasonably be expected to have a material adverse effect on the ability of the Selling Shareholder to consummate the transactions contemplated by this AgreementShares.
(c) The Selling Shareholder has, and on immediately prior to the Initial Closing Date, the Repurchase Closing Date and any 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 (the “UCC”) in respect of, the Shares to be sold by the Selling Shareholder free and clear of all security interests, claims, liens, equities or other encumbrances and the legal right and power, and all authorization and approval required by law, to enter into this Agreement and to sell, transfer and deliver the Shares to be sold by the Selling Shareholder or a security entitlement in respect of such Shares.
(d) Upon payment for the Shares to be sold by the Selling Shareholder pursuant to this Agreement, delivery of such Shares, as directed by the UnderwriterUnderwriters, 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 Underwriters (assuming that neither DTC nor the 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 Underwriter 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 Underwriter 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 account accounts of the Underwriter several Underwriters on the records of DTC will have been made pursuant to the UCC.
(e) The Selling Shareholder has delivered to the Underwriter Representatives an executed lock-up agreement in substantially the form attached hereto as Exhibit A (the “Lock-up Agreement”).
(f) The Selling Shareholder has not taken, directly or indirectly, any action designed no reason to or believe that could reasonably be expected to cause or result in any stabilization or manipulation the representations and warranties of the price Company contained in Section 1 are not true and correct, is familiar with the Registration Statement, the Time of Sale Prospectus and the Shares Prospectus and has no knowledge of any material fact, condition or information not disclosed in violation the Registration Statement, the Time of Regulation M under Sale Prospectus or the Exchange Act.
(g) Prospectus that has had, or may have, a material adverse effect on the Company and its subsidiaries, taken as a whole. The Selling Shareholder is not prompted by any information concerning the Company or its subsidiaries which is not set forth in the Registration Statement, the Time of Sale Prospectus or the Prospectus to sell its Shares pursuant to this Agreement.
(hg) (i) Neither the Registration Statement, when it became effective, did not contain and, as amended Time of Sale Prospectus nor the Prospectus or supplemented, if applicable, will not contain any amendments or supplements thereto includes any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading, (ii) the Time of Sale Prospectus does not, and at the time of each sale of the Shares in connection with the offering when the Prospectus is not yet available to prospective purchasers and at the Initial Closing Date, the Repurchase Closing Date and any Option Closing Date (as defined in Section 5), the Time of Sale Prospectus, as then amended or supplemented by the Company, if applicable, will not, contain any untrue statement of a material fact or omit omits to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading, and (iii) the Prospectus does not contain and, as amended or supplemented, if applicable, will not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading; provided that the such representations and warranties set forth in this paragraph 2(g) are limited in all respects Section 2 apply only to statements or omissions made in reliance upon and in conformity with information relating to the Selling Shareholder contained in the table under the caption “Selling Stockholder” furnished to the Company in writing by or on behalf of the Selling Shareholder expressly for use in the Registration Statement, the Time of Sale Prospectus, the Prospectus or any amendments other free writing prospectus or supplements any amendment or supplement thereto, it being understood and agreed that for purposes of this Agreement, . The Selling Shareholder is not prompted to sell the only information furnished Shares to be sold by the Selling Shareholder consists hereunder by any information concerning the Company or any subsidiary of the name of the Selling Shareholder, the number of offered shares and the address and other information with respect to the Selling Shareholder (excluding percentages) Company which appear is not set forth in the Registration Statement Time of Sale Prospectus or any Prospectus in the table (and corresponding footnotes) under the caption “The Selling Shareholder” (the “Selling Shareholder Information”)Prospectus.
(i) (i) None of the The Selling Shareholder or any of its subsidiaries, or, to the knowledge of the Selling Shareholder, any director, officer, employee, agent, representative, or affiliate thereofof the Selling Shareholder, 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, the so-called Donetsk People’s Republic, the so-called Luhansk People’s Republic, the Crimea Region and the non-government controlled areas of the Zaporizhzhia and Kherson Regions of UkraineCrimea, Cuba, Iran, North Korea, Syria or any other Covered Region of Ukraine identified pursuant to Executive Order 14065Korea and Syria).
(ii) The Selling Shareholder will not, directly or indirectly, use the proceeds of the offering, or lend, contribute or otherwise make available such proceeds to any subsidiary, joint venture partner or other Person:
(A) to fund or facilitate any activities or business of or with any Person or in any country or territory that, at the time of such funding or facilitation, is the subject of Sanctions; or
(B) in any other manner that will result in a violation of Sanctions by any Person (including any Person participating in the offering, whether as underwriter, advisor, investor or otherwise).
(iii) For the past five years, the The Selling Shareholder has not knowingly engaged in, is not now knowingly engaged in, and will not engage in, any dealings or transactions with any Person, or in any country or territory, that at the time of the dealing or transaction is or was the subject of Sanctions.
(a) None of the The Selling Shareholder or any of its subsidiaries, or, to the knowledge of the Selling Shareholder, any director, officer, employee, agent, representative, or affiliate thereof of the Selling Shareholder has taken or will take any action in furtherance of an offer, payment, promise to pay, or authorization or approval of the payment giving or receipt of money, property, gifts or anything else of value, directly or indirectly, to any Government Official in order to influence official action, or to any person in violation of any applicable anti-corruption laws; (b) the Selling Shareholder and each of has conducted 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 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 person in violation of any applicable anti-corruption laws.
(v) The operations of the Selling Shareholder and each of its subsidiaries are and have been conducted at all times in compliance with all applicable Anti-Money Laundering Laws, and no action, suit or proceeding by or before any court or governmental agency, authority or body or any arbitrator involving the Selling Shareholder or any of its subsidiaries with respect to the Anti-Money Laundering Laws is pending or, to the best knowledge of the Selling Shareholder, threatened.
(j) . The Selling Shareholder represents and warrants that it is not (i) an employee benefit plan subject to Title I of the Employee Retirement Income Security Act of 1974, as amended (“ERISA”), (ii) a plan or account subject to Section 4975 of the Internal Revenue Code of 1986, as amended or (iii) an entity deemed to hold “plan assets” of any such plan or account under Section 3(42) of ERISA, 29 C.F.R. 2510.3-101, or otherwise.
(k) The Selling Shareholder represents that no stamp, documentary, issuance, registration, transfer, withholding, capital gains, income or other taxes or duties are payable by or on behalf of the Underwriter, the Company or any of its subsidiaries or to any taxing authority thereof or therein in connection with (i) the execution, delivery or consummation of this Agreement by the Selling Shareholder, (ii) the sale and delivery of the Shares by the Selling Shareholder to the Underwriter or purchasers procured by the Underwriter, or (iii) the resale and delivery of such Shares by the Underwriter in the manner contemplated herein.
(l) The Selling Shareholder has the power to submit, and pursuant to Section 20(a) has, to the extent permitted by law, legally, validly, effectively and irrevocably submitted, to the jurisdiction of the Specified Courts (as defined in Section 20(a)), and has the power to designate, appoint and empower, and pursuant to Section 20(b), has legally, validly and effectively designated, appointed and empowered an agent for service of process in any suit or proceeding based on or arising under this Agreement in any of the Specified Courts.
Appears in 1 contract
Samples: Underwriting Agreement (Chegg, Inc)
Representations and Warranties of the Selling Shareholder. The Selling Shareholder represents and warrants to and agrees with the Underwriter that:
(a) This Agreement has been duly authorized, executed and delivered by or on behalf of the Selling Shareholder.
(b) The execution and delivery of this Agreement and the sale and delivery of the Shares to be sold by the Selling Shareholder of, and the performance consummation of the transactions contemplated herein and compliance by the Selling Shareholder of with its obligations under, this Agreement will not contravene hereunder (i) do not and will not, whether with or without the giving of notice or passage of time or both, conflict with or constitute a breach of or default under, any provision contract, indenture, mortgage, deed of applicable lawtrust, loan or credit agreement, note, license, lease or other agreement or instrument to which the Selling Shareholder is a party or by which the Selling Shareholder may be bound, or result in the creation or imposition of any tax, lien, charge or encumbrance upon the Shares to be sold by the Selling Shareholder, (ii) nor will such action result in any violation of (A) the provisions of the charter or by-laws or other organizational documents instrument of the Selling Shareholder, if applicable, or (iiiB) any agreement or other instrument binding upon the Selling Shareholder or (iv) any applicable treaty, law, statute, rule, regulation, judgment, order order, writ or decree of any governmental bodygovernment, agency government instrumentality or court court, domestic or foreign, having jurisdiction over the Selling Shareholder, Shareholder or any of its properties; except in the case of (i), (iii) and (iv) as would not, singly or in the aggregate, reasonably be expected to have a material adverse effect on the Selling Shareholder’s ability to perform its obligations under this Agreement. 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 clause (i) or clause (ii)(B), for such conflicts, breaches, violations or defaults as may have already been obtained, (ii) such as may be required by the securities or Blue Sky laws of the various states in connection with the offer and sale of the Shares or (iii) such that would not reasonably be expected to have a impair in any material adverse effect on respect the ability consummation of the Selling Shareholder to consummate the transactions contemplated by this AgreementShareholder‘s obligations hereunder and thereunder.
(c) The Selling Shareholder has, and on the Initial Closing Date, the Repurchase Closing Date and any Option Closing Date will have, valid good title to, or a valid “security entitlement” within the meaning of Section 8-501 of the New York Uniform Commercial Code in respect of, to the Shares to be sold by the Selling Shareholder free and clear of all security interests, claims, liens, equities or other encumbrances and the legal right and power, and all authorization and approval required by law, to enter into this Agreement and to sell, transfer and deliver the Shares to be sold by the Selling Shareholder or a valid security entitlement in respect of such Shares.
(d) Upon payment of the purchase price for the Shares to be sold by the Selling Shareholder pursuant to this Agreement, delivery of such Shares, as directed by the Underwriter, to Cede & Co. (“Cede”) or such other nominee as may be designated by the The Depository Trust Company (“DTC”) (unless delivery of such Shares is unnecessary because such Shares are already in possession of Cede or such nominee), registration of such Shares in the name of Cede or such other nominee (unless registration of such Shares is unnecessary because such Shares are already registered in the name of Cede or such nominee), and the crediting of such Shares on the books of DTC to securities accounts (within the meaning of Section 8-501(a) of the Underwriter UCC) of the Underwriter, (assuming that neither DTC nor the such Underwriter has notice of does not have any “adverse claim (claim” within the meaning of Section 8-105 of the New York Uniform Commercial Code then in effect in the State of New York (the “UCC”)) to such Shares), (A) DTC shall be a “protected purchaser” of such Shares within the meaning of Section 8-303 of the UCC, (Bi) under Section 8-501 of the UCC, the Underwriter will acquire a valid “security entitlement entitlement” DC\3122212.1 in respect of such Shares and (Cii) no action (whether framed in conversion, replevin, constructive trust, equitable lien, or other theory) based on any “adverse claim”, ,” within the meaning of Section 8-102 of the UCC, to such Shares may be successfully 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 (if necessary) and crediting occur, (xA) such Shares will have been registered in the name of Cede or another nominee designated by DTC, in each case on the Company’s share registry in accordance with its certificate of incorporation, bylaws and applicable law, (yB) DTC will be registered as a “clearing corporation,” within the meaning of Section 8-102 of the UCC and UCC, (zC) appropriate entries to the account accounts of the Underwriter on the records of DTC will have been made pursuant to the UCC, (D) to the extent DTC, or any other securities intermediary which acts as “clearing corporation” with respect to the Shares, maintains any “financial asset” (as defined in Section 8-102(a)(9) of the UCC) in a clearing corporation pursuant to Section 8-111 of the UCC, the rules of such clearing corporation may affect the rights of DTC or such securities intermediaries and the ownership interest of the Underwriter, (E) claims of creditors of DTC or any other securities intermediary or clearing corporation may be given priority to the extent set forth in Section 8-511(b) and 8-511(c) of the UCC and (F) if at any time DTC or other securities intermediary does not have sufficient Shares to satisfy claims of all of its entitlement holders with respect thereto then all holders will share pro rata in the Shares then held by DTC or such securities intermediary.
(e) The Selling Shareholder has delivered to the Underwriter an executed lock-up agreement in substantially the form attached hereto as Exhibit A (the “Lock-up Agreement”).
(f) The Selling Shareholder has not taken, and will not take, directly or indirectly, any action which is designed to or that could reasonably which has constituted or would be expected to cause or result in any stabilization or manipulation of the price of any equity security, or any securities convertible into or exchangeable for, or that represent a right to receive an equity security or any equity-linked securities of the Company.
(f) No filing with, or consent, approval, authorization, order, registration, qualification or decree of any arbitrator, court, governmental body, regulatory body, administrative agency or other authority, body or agency, domestic or foreign, is necessary or required for the performance by the Selling Shareholder of its obligations hereunder, or in connection with the sale and delivery of the Shares in violation hereunder or the consummation of Regulation M the transactions contemplated by this Agreement, except such as have been already obtained or as may be required under the Securities Act and the Securities Act Regulations, the rules of the New York Stock Exchange Actor state securities laws.
(g) The Other than as set forth on Schedule II hereto, the Selling Shareholder has not prepared or had prepared on its behalf or used or referred to, any free writing prospectus, and has not distributed any written materials in connection with the offer or sale of the Shares.
(h) With the exception of Avalon Wealth Management, LLC, Duff & Xxxxxx, Xxxxxxx X’Xxxx + Partners, L.P., TCW Funds Distributors, TCG Securities, LLC and certain limited partners invested in funds affiliated with the Carlyle Group, neither the Selling Shareholder nor, to the Selling Shareholder’s knowledge, any of its affiliates directly, or DC\3122212.1 indirectly through one or more intermediaries, controls, or is not prompted by controlled by, or is under common control with any information concerning member firm of the Company Financial Industry Regulatory Authority (“FINRA”) or its subsidiaries which is not set forth a person associated with a member (within the meaning of the FINRA By-Laws) of FINRA.
(i) In respect of any statements in the Registration Statement, or omissions from the Time of Sale Prospectus or the Prospectus to sell its Shares pursuant to this Agreement.
(h) (i) the Registration Statement, when it became effective, did not contain and, as amended or supplemented, if applicable, will not contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading, (ii) the Time of Sale Prospectus does not, and at the time of each sale of the Shares in connection with the offering when the Prospectus is not yet available to prospective purchasers and at the Initial Closing Date, the Repurchase Closing Date and any Option Closing Date (as defined in Section 5), the Time of Sale Prospectus, as then amended or supplemented by the Company, if applicable, will not, contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading, and (iii) the Prospectus does not contain and, as amended or supplemented, if applicable, will not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading; provided that the representations and warranties set forth in this paragraph 2(g) are limited in all respects to statements or omissions made in reliance upon and in conformity with information relating to the Selling Shareholder furnished to the Company in writing by or on behalf of the Selling Shareholder expressly specifically for use in the Registration Statementinclusion therein, the Time of Sale Prospectus, Selling Shareholder hereby makes the Prospectus or any amendments or supplements theretosame representations and warranties with respect to such information as the Company makes under paragraph 1(b) hereof, it being understood and agreed that for purposes such information consists only of this Agreement, the only its name and any information furnished by the Selling Shareholder consists relating to its holdings of the name Company’s common stock (including for the avoidance of doubt the Selling Shareholder, the number of offered shares and the address and other information with respect to the Selling Shareholder (excluding percentages) which appear in the Registration Statement or any Prospectus set forth in the table and footnotes thereto (except for percentages) in “Selling Stockholder”) as set forth in the Time of Sale Prospectus and corresponding footnotes) under the caption “The Selling Shareholder” Prospectus (collectively, the “Selling Shareholder Information”).
(i) (i) None of the Selling Shareholder or any of its subsidiaries, or, to the knowledge of the Selling Shareholder, any director, officer, employee, agent, representative, or affiliate thereof, is a Person that is, or is owned or controlled by one or more Persons that are:
(A) the subject of any Sanctions, or
(B) located, organized or resident in a country or territory that is the subject of Sanctions (including, without limitation, the so-called Donetsk People’s Republic, the so-called Luhansk People’s Republic, the Crimea Region and the non-government controlled areas of the Zaporizhzhia and Kherson Regions of Ukraine, Cuba, Iran, North Korea, Syria or any other Covered Region of Ukraine identified pursuant to Executive Order 14065).
(iij) The Selling Shareholder will not, directly deliver to the Underwriter prior to or indirectly, use at the proceeds Time of the offering, or lend, contribute or otherwise make available such proceeds to any subsidiary, joint venture partner Sale a properly completed and executed United States Treasury Department Form W-9 (or other Person:
(A) to fund applicable form or facilitate any activities or business of or with any Person or statement specified by Treasury Department regulations 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 lieu thereof). Any certificate signed by any Person (including any Person participating in the offering, whether as underwriter, advisor, investor or otherwise).
(iii) For the past five years, the Selling Shareholder has not knowingly engaged in, is not now knowingly engaged in, and will not engage in, any dealings or transactions with any Person, or in any country or territory, that at the time officer of the dealing or transaction is or was the subject of Sanctions.
(a) None of the Selling Shareholder or any of its subsidiaries, or, to the knowledge of the Selling Shareholder, any director, officer, employee, agent, representative, or affiliate thereof has taken or will take any action in furtherance of an offer, payment, promise to pay, or authorization or approval of the payment giving or receipt of money, property, gifts or anything else of value, directly or indirectly, to any Government Official in order to influence official action, or to any person in violation of any applicable anti-corruption laws; (b) the Selling Shareholder and each of its subsidiaries have conducted their businesses in compliance with applicable anti-corruption laws and have instituted and maintained and will continue to maintain policies and procedures reasonably designed to promote and achieve compliance with such laws and with the representations and warranties contained herein; and (c) neither the Selling Shareholder nor any of its subsidiaries will use, directly or indirectly, the proceeds of the offering in furtherance of an offer, payment, promise to pay, or authorization of the payment or giving of money, or anything else of value, to any person in violation of any applicable anti-corruption laws.
(v) The operations of the Selling Shareholder and each of its subsidiaries are and have been conducted at all times in compliance with all applicable Anti-Money Laundering Laws, and no action, suit or proceeding by or before any court or governmental agency, authority or body or any arbitrator involving the Selling Shareholder or any of its subsidiaries with respect to the Anti-Money Laundering Laws is pending or, to the best knowledge of the Selling Shareholder, threatened.
(j) The Selling Shareholder represents and warrants that it is not (i) an employee benefit plan subject to Title I of ERISA, (ii) a plan or account subject to Section 4975 of the Code or (iii) an entity deemed to hold “plan assets” of any such plan or account under Section 3(42) of ERISA, 29 C.F.R. 2510.3-101, or otherwise.
(k) The Selling Shareholder represents that no stamp, documentary, issuance, registration, transfer, withholding, capital gains, income or other taxes or duties are payable by or on behalf of the Underwriter, the Company or any of its subsidiaries delivered to the Underwriter or to any taxing authority thereof or therein in connection with (i) counsel for the execution, delivery or consummation of this Agreement Underwriter shall be deemed a representation and warranty by the Selling Shareholder, (ii) Company to the sale Underwriter as to the matters covered thereby; and delivery any certificate signed by or on behalf of the Shares Selling Shareholder as such and delivered to the Underwriter or to counsel for the Underwriter pursuant to Section 6 hereof shall be deemed a representation and warranty by the Selling Shareholder to the Underwriter or purchasers procured by the Underwriter, or (iii) the resale and delivery of such Shares by the Underwriter in the manner contemplated herein.
(l) The Selling Shareholder has the power to submit, and pursuant to Section 20(a) has, as to the extent permitted by law, legally, validly, effectively and irrevocably submitted, to the jurisdiction of the Specified Courts (as defined in Section 20(a)), and has the power to designate, appoint and empower, and pursuant to Section 20(b), has legally, validly and effectively designated, appointed and empowered an agent for service of process in any suit or proceeding based on or arising under this Agreement in any of the Specified Courtsmatters covered thereby.
Appears in 1 contract
Samples: Underwriting Agreement (Booz Allen Hamilton Holding Corp)
Representations and Warranties of the Selling Shareholder. The Selling Shareholder represents and warrants to and agrees with the Underwriter that:
(a) This Agreement has been duly authorized, executed and delivered by or on behalf of the Selling Shareholder.
(b) The execution and delivery of this Agreement and the sale and delivery of the Shares to be sold by the Selling Shareholder of, and the performance consummation of the transactions contemplated herein and compliance by the Selling Shareholder of with its obligations under, this Agreement will not contravene hereunder (i) do not and will not, whether with or without the giving of notice or passage of time or both, conflict with or constitute a breach of or default under, any provision contract, indenture, mortgage, deed of applicable lawtrust, loan or credit agreement, note, license, lease or other agreement or instrument to which the Selling Shareholder is a party or by which the Selling Shareholder may be bound, or result in the creation or imposition of any tax, lien, charge or encumbrance upon the Shares to be sold by the Selling Shareholder, (ii) nor will such action result in any violation of (A) the provisions of the charter or by-laws or other organizational documents instrument of the Selling Shareholder, if applicable, or (iiiB) any agreement or other instrument binding upon the Selling Shareholder or (iv) any applicable treaty, law, statute, rule, regulation, judgment, order order, writ or decree of any governmental bodygovernment, agency government instrumentality or court court, domestic or foreign, having jurisdiction over the Selling Shareholder, Shareholder or any of its properties; except in the case of (i), (iii) and (iv) as would not, singly or in the aggregate, reasonably be expected to have a material adverse effect on the Selling Shareholder’s ability to perform its obligations under this Agreement. 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 clause (i) or clause (ii)(B), for such conflicts, breaches, violations or defaults as may have already been obtained, (ii) such as may be required by the securities or Blue Sky laws of the various states in connection with the offer and sale of the Shares or (iii) such that would not reasonably be expected to have a impair in any material adverse effect on respect the ability consummation of the Selling Shareholder to consummate the transactions contemplated by this AgreementShareholder‘s obligations hereunder and thereunder.
(c) The Selling Shareholder has, and on the Initial Closing Date, the Repurchase Closing Date and any Option Closing Date will have, valid good title to, or a valid “security entitlement” within the meaning of Section 8-501 of the New York Uniform Commercial Code in respect of, to the Shares to be sold by the Selling Shareholder free and clear of all security interests, claims, liens, equities or other encumbrances and the legal right and power, and all authorization and approval required by law, to enter into this Agreement and to sell, transfer and deliver the Shares to be sold by the Selling Shareholder or a valid security entitlement in respect of such Shares.
(d) Upon payment of the purchase price for the Shares to be sold by the Selling Shareholder pursuant to this Agreement, delivery of such Shares, as directed by the Underwriter, to Cede & Co. (“Cede”) or such other nominee as may be designated by the The Depository Trust Company (“DTC”) (unless delivery of such Shares is unnecessary because such Shares are already in possession of Cede or such nominee), registration of such Shares in the name of Cede or such other nominee (unless registration of such Shares is unnecessary because such Shares are already registered in the name of Cede or such nominee), and the crediting of such Shares on the books of DTC to securities accounts (within the meaning of Section 8-501(a) of the Underwriter UCC) of the Underwriter, (assuming that neither DTC nor the such Underwriter has notice of does not have any “adverse claim (claim” within the meaning of Section 8-105 of the New York Uniform Commercial Code then in effect in the State of New York (the “UCC”)) to such Shares), (A) DTC shall be a “protected purchaser” of such Shares within the meaning of Section 8-303 of the UCC, (Bi) under Section 8-501 of the UCC, the Underwriter theUnderwriter will acquire a valid “security entitlement entitlement” in respect of such Shares and (Cii) no action (whether framed in conversion, replevin, constructive trust, equitable lien, or other theory) based on any “adverse claim”, ,” within the meaning of Section 8-102 of the UCC, to such Shares may be successfully 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 (if necessary) and crediting occur, (xA) such Shares will have been registered in the name of Cede or another nominee designated by DTC, in each case on the Company’s share registry in accordance with its certificate of incorporation, bylaws and applicable law, (yB) DTC will be registered as a “clearing corporation,” within the meaning of Section 8-102 of the UCC and UCC, (zC) appropriate entries to the account accounts of the Underwriter on the records of DTC will have been made pursuant to the UCC, (D) to the extent DTC, or any other securities intermediary which acts as “clearing corporation” with respect to the Shares, maintains any “financial asset” (as defined in Section 8-102(a)(9) of the UCC) in a clearing corporation pursuant to Section 8-111 of the UCC, the rules of such clearing corporation may affect the rights of DTC or such securities intermediaries and the ownership interest of the Underwriter, (E) claims of creditors of DTC or any other securities intermediary or clearing corporation may be given priority to the extent set forth in Section 8-511(b) and 8-511(c) of the UCC and (F) if at any time DTC or other securities intermediary does not have sufficient Shares to satisfy claims of all of its entitlement holders with respect thereto then all holders will share pro rata in the Shares then held by DTC or such securities intermediary.
(e) The Selling Shareholder has delivered to the Underwriter an executed lock-up agreement in substantially the form attached hereto as Exhibit A (the “Lock-up Agreement”).
(f) The Selling Shareholder has not taken, and will not take, directly or indirectly, any action which is designed to or that could reasonably which has constituted or would be expected to cause or result in any stabilization or manipulation of the price of any equity security, or any securities convertible into or exchangeable for, or that represent a right to receive an equity security or any equity-linked securities of the Company.
(f) No filing with, or consent, approval, authorization, order, registration, qualification or decree of any arbitrator, court, governmental body, regulatory body, administrative agency or other authority, body or agency, domestic or foreign, is necessary or required for the performance by the Selling Shareholder of its obligations hereunder, or in connection with the sale and delivery of the Shares in violation hereunder or the consummation of Regulation M the transactions contemplated by this Agreement, except such as have been already obtained or as may be required under the Securities Act and the Securities Act Regulations, the rules of the New York Stock Exchange Actor state securities laws.
(g) The Other than as set forth on Schedule II hereto, the Selling Shareholder has not prepared or had prepared on its behalf or used or referred to, any free writing prospectus, and has not distributed any written materials in connection with the offer or sale of the Shares.
(h) With the exception of Avalon Advisors, LLC, Duff & Xxxxxx, Xxxxxxx X’Xxxx + Partners, L.P. and TCW Funds Distributors and certain limited partners invested in funds affiliated with the Carlyle Group, neither the Selling Shareholder nor, to the Selling Shareholder’s knowledge, any of its affiliates directly, or indirectly through one or more intermediaries, controls, or is not prompted by controlled by, or is under common control with any information concerning member firm of the Company Financial Industry Regulatory Authority (“FINRA”) or its subsidiaries which is not set forth a person associated with a member (within the meaning of the FINRA By-Laws) of FINRA.
(i) In respect of any statements in the Registration Statement, or omissions from the Time of Sale Prospectus or the Prospectus to sell its Shares pursuant to this Agreement.
(h) (i) the Registration Statement, when it became effective, did not contain and, as amended or supplemented, if applicable, will not contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading, (ii) the Time of Sale Prospectus does not, and at the time of each sale of the Shares in connection with the offering when the Prospectus is not yet available to prospective purchasers and at the Initial Closing Date, the Repurchase Closing Date and any Option Closing Date (as defined in Section 5), the Time of Sale Prospectus, as then amended or supplemented by the Company, if applicable, will not, contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading, and (iii) the Prospectus does not contain and, as amended or supplemented, if applicable, will not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading; provided that the representations and warranties set forth in this paragraph 2(g) are limited in all respects to statements or omissions made in reliance upon and in conformity with information relating to the Selling Shareholder furnished to the Company in writing by or on behalf of the Selling Shareholder expressly specifically for use in the Registration Statementinclusion therein, the Time of Sale Prospectus, Selling Shareholder hereby makes the Prospectus or any amendments or supplements theretosame representations and warranties with respect to such information as the Company makes under paragraph 1(b) hereof, it being understood and agreed that for purposes such information consists only of this Agreement, the only its name and any information furnished by the Selling Shareholder consists relating to its holdings of the name Company’s common stock (including for the avoidance of doubt the Selling Shareholder, the number of offered shares and the address and other information with respect to the Selling Shareholder (excluding percentages) which appear in the Registration Statement or any Prospectus set forth in the table and footnotes thereto (except for percentages) in “Selling Stockholder”) as set forth in the Time of Sale Prospectus and corresponding footnotes) under the caption “The Selling Shareholder” Prospectus (collectively, the “Selling Shareholder Information”).
(i) (i) None of the Selling Shareholder or any of its subsidiaries, or, to the knowledge of the Selling Shareholder, any director, officer, employee, agent, representative, or affiliate thereof, is a Person that is, or is owned or controlled by one or more Persons that are:
(A) the subject of any Sanctions, or
(B) located, organized or resident in a country or territory that is the subject of Sanctions (including, without limitation, the so-called Donetsk People’s Republic, the so-called Luhansk People’s Republic, the Crimea Region and the non-government controlled areas of the Zaporizhzhia and Kherson Regions of Ukraine, Cuba, Iran, North Korea, Syria or any other Covered Region of Ukraine identified pursuant to Executive Order 14065).
(iij) The Selling Shareholder will not, directly deliver to the Underwriter prior to or indirectly, use at the proceeds Time of the offering, or lend, contribute or otherwise make available such proceeds to any subsidiary, joint venture partner Sale a properly completed and executed United States Treasury Department Form W-9 (or other Person:
(A) to fund applicable form or facilitate any activities or business of or with any Person or statement specified by Treasury Department regulations 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 otherwiselieu thereof).
(iii) For the past five years, the Selling Shareholder has not knowingly engaged in, is not now knowingly engaged in, and will not engage in, any dealings or transactions with any Person, or in any country or territory, that at the time of the dealing or transaction is or was the subject of Sanctions.
(a) None of the Selling Shareholder or any of its subsidiaries, or, to the knowledge of the Selling Shareholder, any director, officer, employee, agent, representative, or affiliate thereof has taken or will take any action in furtherance of an offer, payment, promise to pay, or authorization or approval of the payment giving or receipt of money, property, gifts or anything else of value, directly or indirectly, to any Government Official in order to influence official action, or to any person in violation of any applicable anti-corruption laws; (b) the Selling Shareholder and each of its subsidiaries have conducted their businesses in compliance with applicable anti-corruption laws and have instituted and maintained and will continue to maintain policies and procedures reasonably designed to promote and achieve compliance with such laws and with the representations and warranties contained herein; and (c) neither the Selling Shareholder nor any of its subsidiaries will use, directly or indirectly, the proceeds of the offering in furtherance of an offer, payment, promise to pay, or authorization of the payment or giving of money, or anything else of value, to any person in violation of any applicable anti-corruption laws.
(v) The operations of the Selling Shareholder and each of its subsidiaries are and have been conducted at all times in compliance with all applicable Anti-Money Laundering Laws, and no action, suit or proceeding by or before any court or governmental agency, authority or body or any arbitrator involving the Selling Shareholder or any of its subsidiaries with respect to the Anti-Money Laundering Laws is pending or, to the best knowledge of the Selling Shareholder, threatened.
(j) The Selling Shareholder represents and warrants that it is not (i) an employee benefit plan subject to Title I of ERISA, (ii) a plan or account subject to Section 4975 of the Code or (iii) an entity deemed to hold “plan assets” of any such plan or account under Section 3(42) of ERISA, 29 C.F.R. 2510.3-101, or otherwise.
(k) The Selling Shareholder represents that no stampdirects the Underwriter to reserve the Repurchased Shares (as defined below) for repurchase by the Company at the price per share specified on Schedule II hereto, documentarywhich price, issuancefor the avoidance of doubt, registration, transfer, withholding, capital gains, income shall be the price per share paid by the Underwriter to the Selling Shareholder for the Shares and shall not include underwriting discounts or other taxes or duties are payable commissions. Any certificate signed by or on behalf any officer of the Underwriter, the Company or any of its subsidiaries delivered to the Underwriter or to any taxing authority thereof or therein in connection with (i) counsel for the execution, delivery or consummation of this Agreement Underwriter shall be deemed a representation and warranty by the Selling Shareholder, (ii) Company to the sale Underwriter as to the matters covered thereby; and delivery any certificate signed by or on behalf of the Shares Selling Shareholder as such and delivered to the Underwriter or to counsel for the Underwriter pursuant to Section 6 hereof shall be deemed a representation and warranty by the Selling Shareholder to the Underwriter or purchasers procured by the Underwriter, or (iii) the resale and delivery of such Shares by the Underwriter in the manner contemplated herein.
(l) The Selling Shareholder has the power to submit, and pursuant to Section 20(a) has, as to the extent permitted by law, legally, validly, effectively and irrevocably submitted, to the jurisdiction of the Specified Courts (as defined in Section 20(a)), and has the power to designate, appoint and empower, and pursuant to Section 20(b), has legally, validly and effectively designated, appointed and empowered an agent for service of process in any suit or proceeding based on or arising under this Agreement in any of the Specified Courtsmatters covered thereby.
Appears in 1 contract
Samples: Underwriting Agreement (Booz Allen Hamilton Holding Corp)
Representations and Warranties of the Selling Shareholder. The Selling Shareholder represents and warrants to and agrees with the Underwriter that:
(a) This Agreement has been duly authorized, executed and delivered by or on behalf of the Selling Shareholder.
(b) Neither the Selling Shareholder, nor any person acting on its behalf, has solicited offers for, or offered or sold, and will not solicit offers for, or offer or sell, the Shares in France to any persons other than (a) providers of investment services relating to portfolio management for the account of third parties, (b) qualified investors (investisseurs qualifiés) and/or (c) a restricted group of investors (cercle restreint d’investisseurs), all as defined in, and in accordance with, Articles L. 411-1, L. 411-2, D.411-1 and D.411-2 of the French Monetary and Financial Code.
(c) 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) or the organizational documents memorandum and articles of association of the Selling Shareholder, (iii) or 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, singly or in the aggregate, reasonably be expected to have a material adverse effect on the Selling Shareholder’s ability to perform its obligations under this Agreement. No no consent, approval, authorization or order of, or qualification with, any governmental body, body or agency or court is required for the performance by the Selling Shareholder of its obligations under this Agreement, except (i) such as may have already been obtained, (ii) such as may be required by the securities or Blue Sky laws of the various states in connection with the offer and sale of the Shares or (iii) such that would not reasonably be expected to have a material adverse effect on the ability of the Selling Shareholder to consummate the transactions contemplated by this AgreementADSs.
(cd) The Selling Shareholder hasis the lawful owner, and on the Initial Closing Date, the Repurchase Closing Date and any Option Closing Date (as defined herein) will have, valid and marketable title to, or a valid “security entitlement” within the meaning of Section 8-501 of the New York Uniform Commercial Code in respect of, the Shares ADSs to be sold by the Selling Shareholder free and clear of all security interests, claims, liens, equities or other encumbrances and has the legal right and power, and all authorization and approval required by law, to enter into this Agreement and to sell, transfer and deliver to the Shares Underwriter the ADSs to be sold by the Selling Shareholder or a security entitlement in respect of such SharesShareholder.
(de) Upon delivery of and payment for the Shares ADSs to be sold by the Selling Shareholder pursuant to this Agreement, delivery of such SharesADSs, 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 ADSs in the name of Cede or such other nominee and the crediting of such Shares ADSs 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 SharesADSs), (A) DTC shall be a “protected purchaser” of such Shares ADSs 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 ADSs and (C) no action based on any “adverse claim”, within the meaning of Section 8-102 of the UCC, to such Shares ADSs may be successfully 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 ADSs will have been registered in the name of Cede or another nominee designated by DTC, in each case on the Company’s share registry register in accordance with its certificate of incorporation, bylaws statuts 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 accounts of the Underwriter on the records of DTC will have been made pursuant to the UCC.
(ei) The Selling Shareholder has delivered to the Underwriter an executed lock-up agreement in substantially the form attached hereto as Exhibit A (the “Lock-up Agreement”).
(f) The Selling Shareholder has not taken, directly or indirectly, any action designed to or that could reasonably be expected to cause or result in any stabilization or manipulation of the price of the Shares in violation of Regulation M under the Exchange Act.
(g) The Selling Shareholder is not prompted by any information concerning the Company or its subsidiaries which is not set forth in the Registration Statement, the Time of Sale Prospectus or the Prospectus to sell its Shares pursuant to this Agreement.
(h) (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, misleading and (ii) the Time of Sale Prospectus does not, and at the time of each sale of the Shares in connection with the offering when the Prospectus is not yet available to prospective purchasers and at the Initial Closing Date, the Repurchase Closing Date and any Option Closing Date (as defined in Section 5), the Time of Sale Prospectus, as then amended or supplemented by the Company, if applicable, will not, contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading, and (iii) the Prospectus does not contain and, as amended or supplemented, if applicable, will not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading; , provided that the representations and warranties set forth in this paragraph 2(g) are limited in all respects to statements or omissions in the Registration Statement or Prospectus made in reliance upon and in conformity with information relating to the Selling Shareholder furnished to the Company in writing by the Selling Shareholder expressly for use in the Registration Statement, the Time of Sale Prospectus, the Prospectus or any amendments or supplements thereto, it being understood and agreed that for purposes of this Agreement, the only information furnished by the Selling Shareholder consists of the name .
(g) The sale of the Selling Shareholder, ’s Shares pursuant to this Agreement is not prompted by any information concerning the number of offered shares and the address and other information with respect to the Selling Shareholder (excluding percentages) Company which appear is not set forth in the Registration Statement or any Prospectus in the table (and corresponding footnotes) under the caption “The Selling Shareholder” (the “Selling Shareholder Information”)Prospectus.
(i) (i) None of the Selling Shareholder or any of its subsidiaries, or, to the knowledge of the Selling Shareholder, any director, officer, employee, agent, representative, or affiliate thereof, is a Person that is, or is owned or controlled by one or more Persons that are:
(A) the subject of any Sanctions, or
(B) located, organized or resident in a country or territory that is the subject of Sanctions (including, without limitation, the so-called Donetsk People’s Republic, the so-called Luhansk People’s Republic, the Crimea Region and the non-government controlled areas of the Zaporizhzhia and Kherson Regions of Ukraine, Cuba, Iran, North Korea, Syria or any other Covered Region of Ukraine identified pursuant to Executive Order 14065).
(ii) The Selling Shareholder will not, directly or indirectly, use the proceeds of the offering, or lend, contribute or otherwise make available such proceeds to any subsidiary, joint venture partner or other Person:
(A) to fund or facilitate any activities or business of or with any Person or in any country or territory that, at the time of such funding or facilitation, is the subject of Sanctions; or
(B) in any other manner that will result in a violation of Sanctions by any Person (including any Person participating in the offering, whether as underwriter, advisor, investor or otherwise).
(iii) For the past five years, the Selling Shareholder has not knowingly engaged in, is not now knowingly engaged in, and will not engage in, any dealings or transactions with any Person, or in any country or territory, that at the time of the dealing or transaction is or was the subject of Sanctions.
(a) None of the Selling Shareholder or any of its subsidiaries, or, to the knowledge of the Selling Shareholder, any director, officer, employee, agent, representative, or affiliate thereof has taken or will take any action in furtherance of an offer, payment, promise to pay, or authorization or approval of the payment giving or receipt of money, property, gifts or anything else of value, directly or indirectly, to any Government Official in order to influence official action, or to any person in violation of any applicable anti-corruption laws; (b) the Selling Shareholder and each of its subsidiaries have conducted their businesses in compliance with applicable anti-corruption laws and have instituted and maintained and will continue to maintain policies and procedures reasonably designed to promote and achieve compliance with such laws and with the representations and warranties contained herein; and (c) neither the Selling Shareholder nor any of its subsidiaries will use, directly or indirectly, the proceeds of the offering in furtherance of an offer, payment, promise to pay, or authorization of the payment or giving of money, or anything else of value, to any person in violation of any applicable anti-corruption laws.
(v) The operations of the Selling Shareholder and each of its subsidiaries are and have been conducted at all times in compliance with all applicable Anti-Money Laundering Laws, and no action, suit or proceeding by or before any court or governmental agency, authority or body or any arbitrator involving the Selling Shareholder or any of its subsidiaries with respect to the Anti-Money Laundering Laws is pending or, to the best knowledge of the Selling Shareholder, threatened.
(j) The Selling Shareholder represents and warrants that it is not (i) an employee benefit plan subject to Title I of ERISA, (ii) a plan or account subject to Section 4975 of the Code or (iii) an entity deemed to hold “plan assets” of any such plan or account under Section 3(42) of ERISA, 29 C.F.R. 2510.3-101, or otherwise.
(k) The Selling Shareholder represents that no stamp, documentary, issuance, registration, transfer, withholding, capital gains, income or other taxes or duties are payable by or on behalf of the Underwriter, the Company or any of its subsidiaries or to any taxing authority thereof or therein in connection with (i) the execution, delivery or consummation of this Agreement by the Selling Shareholder, (ii) the sale and delivery of the Shares by the Selling Shareholder to the Underwriter or purchasers procured by the Underwriter, or (iii) the resale and delivery of such Shares by the Underwriter in the manner contemplated herein.
(l) The Selling Shareholder has the power to submit, and pursuant to Section 20(a) has, to the extent permitted by law, legally, validly, effectively and irrevocably submitted, to the jurisdiction of the Specified Courts (as defined in Section 20(a)), and has the power to designate, appoint and empower, and pursuant to Section 20(b), has legally, validly and effectively designated, appointed and empowered an agent for service of process in any suit or proceeding based on or arising under this Agreement in any of the Specified Courts.
Appears in 1 contract
Representations and Warranties of the Selling Shareholder. The Selling Shareholder represents and warrants to and agrees with the Underwriter that:
(a) This Agreement has been duly authorized, executed and delivered by or on behalf of the Selling Shareholder.
(b) The execution and delivery by the Selling Shareholder of, and the performance by the Selling Shareholder of its obligations under, this Agreement will not contravene (i) any provision of applicable law, (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, singly or in the aggregate, reasonably be expected to have a material adverse effect on the Selling Shareholder’s ability to perform its obligations under this Agreement. 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 (i) such as may have already been obtained, (ii) such as may be required by the securities or Blue Sky laws of the various states in connection with the offer and sale of the Shares or (iii) such that would not reasonably be expected to have a material adverse effect on the ability of the Selling Shareholder to consummate the transactions contemplated by this Agreement.
(c) The Selling Shareholder has, and on the Initial Closing Date, the Repurchase Closing Date and any 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 by the Selling Shareholder free and clear of all security interests, claims, liens, equities or other encumbrances and the legal right and power, and all authorization and approval required by law, to enter into this Agreement and to sell, transfer and deliver the Shares to be sold by the Selling Shareholder or a security entitlement in respect of such Shares.
(d) Upon payment for the Shares to be 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 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 successfully 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.
(e) The Selling Shareholder has delivered to the Underwriter an executed lock-up agreement in substantially the form attached hereto as Exhibit A (the “Lock-up Agreement”).
(f) The Selling Shareholder has not taken, directly or indirectly, any action designed to or that could reasonably be expected to cause or result in any stabilization or manipulation of the price of the Shares in violation of Regulation M under the Exchange Act.
(g) The Selling Shareholder is not prompted by any information concerning the Company or its subsidiaries which is not set forth in the Registration Statement, the Time of Sale Prospectus or the Prospectus to sell its Shares pursuant to this Agreement.
(h) (i) the Registration Statement, when it became effective, did not contain and, as amended or supplemented, if applicable, will not contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading, (ii) the Time of Sale Prospectus does not, and at the time of each sale of the Shares in connection with the offering when the Prospectus is not yet available to prospective purchasers and at the Initial Closing Date, the Repurchase Closing Date and any Option Closing Date (as defined in Section 55), the Time of Sale Prospectus, as then amended or supplemented by the Company, if applicable, will not, contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading, and (iii) the Prospectus does not contain and, as amended or supplemented, if applicable, will not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading; provided that the representations and warranties set forth in this paragraph 2(g) are limited in all respects to statements or omissions made in reliance upon and in conformity with information relating to the Selling Shareholder furnished to the Company in writing by the Selling Shareholder expressly for use in the Registration Statement, the Time of Sale Prospectus, the Prospectus or any amendments or supplements thereto, it being understood and agreed that for purposes of this Agreement, the only information furnished by the Selling Shareholder consists of the name of the Selling Shareholder, the number of offered shares and the address and other information with respect to the Selling Shareholder (excluding percentages) which appear in the Registration Statement or any Prospectus in the table (and corresponding footnotes) under the caption “The Selling Shareholder” (the “Selling Shareholder Information”).
(i) (i) None of the Selling Shareholder or any of its subsidiaries, or, to the knowledge of the Selling Shareholder, any director, officer, employee, agent, representative, or affiliate thereof, is a Person that is, or is owned or controlled by one or more Persons that are:
(A) the subject of any Sanctions, or
(B) located, organized or resident in a country or territory that is the subject of Sanctions (including, without limitation, the so-called Donetsk People’s Republic, the so-called Luhansk People’s Republic, the Crimea Region and the non-government controlled areas of the Zaporizhzhia and Kherson Regions of Ukraine, Cuba, Iran, North Korea, Syria or any other Covered Region of Ukraine identified pursuant to Executive Order 14065).
(ii) The Selling Shareholder will not, directly or indirectly, use the proceeds of the offering, or lend, contribute or otherwise make available such proceeds to any subsidiary, joint venture partner or other Person:
(A) to fund or facilitate any activities or business of or with any Person or in any country or territory that, at the time of such funding or facilitation, is the subject of Sanctions; or
(B) in any other manner that will result in a violation of Sanctions by any Person (including any Person participating in the offering, whether as underwriter, advisor, investor or otherwise).
(iii) For the past five years, the Selling Shareholder has not knowingly engaged in, is not now knowingly engaged in, and will not engage in, any dealings or transactions with any Person, or in any country or territory, that at the time of the dealing or transaction is or was the subject of Sanctions.
(a) None of the Selling Shareholder or any of its subsidiaries, or, to the knowledge of the Selling Shareholder, any director, officer, employee, agent, representative, or affiliate thereof has taken or will take any action in furtherance of an offer, payment, promise to pay, or authorization or approval of the payment giving or receipt of money, property, gifts or anything else of value, directly or indirectly, to any Government Official in order to influence official action, or to any person in violation of any applicable anti-corruption laws; (b) the Selling Shareholder and each of its subsidiaries have conducted their businesses in compliance with applicable anti-corruption laws and have instituted and maintained and will continue to maintain policies and procedures reasonably designed to promote and achieve compliance with such laws and with the representations and warranties contained herein; and (c) neither the Selling Shareholder nor any of its subsidiaries will use, directly or indirectly, the proceeds of the offering in furtherance of an offer, payment, promise to pay, or authorization of the payment or giving of money, or anything else of value, to any person in violation of any applicable anti-corruption laws.
(v) The operations of the Selling Shareholder and each of its subsidiaries are and have been conducted at all times in compliance with all applicable Anti-Money Laundering Laws, and no action, suit or proceeding by or before any court or governmental agency, authority or body or any arbitrator involving the Selling Shareholder or any of its subsidiaries with respect to the Anti-Money Laundering Laws is pending or, to the best knowledge of the Selling Shareholder, threatened.
(j) The Selling Shareholder represents and warrants that it is not (i) an employee benefit plan subject to Title I of ERISA, (ii) a plan or account subject to Section 4975 of the Code or (iii) an entity deemed to hold “plan assets” of any such plan or account under Section 3(42) of ERISA, 29 C.F.R. 2510.3-101, or otherwise.
(k) The Selling Shareholder represents that no stamp, documentary, issuance, registration, transfer, withholding, capital gains, income or other taxes or duties are payable by or on behalf of the Underwriter, the Company or any of its subsidiaries or to any taxing authority thereof or therein in connection with (i) the execution, delivery or consummation of this Agreement by the Selling Shareholder, (ii) the sale and delivery of the Shares by the Selling Shareholder to the Underwriter or purchasers procured by the Underwriter, or (iii) the resale and delivery of such Shares by the Underwriter in the manner contemplated herein.
(l) The Selling Shareholder has the power to submit, and pursuant to Section 20(a) has, to the extent permitted by law, legally, validly, effectively and irrevocably submitted, to the jurisdiction of the Specified Courts (as defined in Section 20(a)), and has the power to designate, appoint and empower, and pursuant to Section 20(b), has legally, validly and effectively designated, appointed and empowered an agent for service of process in any suit or proceeding based on or arising under this Agreement in any of the Specified Courts.
Appears in 1 contract
Representations and Warranties of the Selling Shareholder. The Selling Shareholder represents and warrants to and agrees with each of the Underwriter Underwriters that:
(a) The Selling Shareholder has all requisite power and authority to execute, deliver and perform its obligations under this Agreement. This Agreement has been duly authorized, executed and delivered by or on behalf of the Selling Shareholder.
(b) The execution and delivery by the Selling Shareholder of, and the performance by the Selling Shareholder of its obligations under, this Agreement will not contravene (i) any provision of applicable law, (ii) the organizational certificate of incorporation, by-laws, limited partnership agreement or other constitutive 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), clause (iii) and (iv) as where such contravention would not, singly or not impair in any material respects the aggregate, reasonably be expected to have a material adverse effect on consummation of the Selling Shareholder’s ability to perform its obligations under this Agreement. No consent, approval, authorization or order of, or qualification with, any governmental body, body or agency or court is required for the performance by the Selling Shareholder of its obligations under this Agreement, except (i) such as may have already been obtained, (ii) such as may be required by under the Exchange Act and the securities or Blue Sky laws of the various states of the United States in connection with the offer and sale of the Shares or (iii) such that would not reasonably be expected to have a material adverse effect on the ability of the Selling Shareholder to consummate the transactions contemplated by this AgreementShares.
(c) The Selling Shareholder has, and on the Initial Closing Date, the Repurchase Closing Date and any 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 by the Selling Shareholder free and clear of all security interests, claims, liens, equities or other encumbrances and the legal right and power, and all authorization and approval required by law, to enter into this Agreement Agreement, and to sell, transfer and deliver the Shares to be sold by the Selling Shareholder or a security entitlement in respect of such the Shares.
(d) Upon payment for the Shares to be sold by the Selling Shareholder pursuant to this Agreement, delivery of such Shares, as directed by the UnderwriterUnderwriters, 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 Underwriters (assuming that neither DTC nor the 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), (Ai) DTC shall be a “protected purchaser” of such Shares within the meaning of Section 8-303 of the UCC, (Bii) under Section 8-501 of the UCC, the Underwriter Underwriters will acquire a valid security entitlement in respect of such Shares and (Ciii) 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 Underwriter 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, (xA) such Shares will have been registered in the name of Cede or another nominee designated by DTC, in each case on the Company’s share registry in accordance with its certificate of incorporation, bylaws and applicable law, (yB) DTC will be registered as a “clearing corporation” within the meaning of Section 8-102 of the UCC and (zC) appropriate entries to the account accounts of the Underwriter several Underwriters on the records of DTC will have been made pursuant to the UCC.
(e) The Selling Shareholder has delivered to the Underwriter an executed lock-up agreement in substantially the form attached hereto as Exhibit A (the “Lock-up Agreement”).
(f) The Selling Shareholder has not taken, directly or indirectly, any action designed to or that could reasonably be expected to cause or result in any stabilization or manipulation of the price of the Shares in violation of Regulation M under the Exchange Act.
(g) The Selling Shareholder is not prompted by any information concerning the Company or its subsidiaries which is not set forth in the Registration Statement, the Time of Sale Prospectus or and the Prospectus to sell its Shares pursuant to this Agreement.
(h) (i) the The Registration Statement, when it became effective, did not contain and, as amended or supplemented, if applicable, will not contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading, (ii) the Registration Statement as of the date hereof does not contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading, (iii) as of the Applicable Time, the Time of Sale Prospectus does not, and at the time of each sale of the Shares in connection with the offering when the Prospectus is not yet available to prospective purchasers and at the Initial Closing Date, the Repurchase Closing Date and any Option 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 (iiiv) the Prospectus does not contain and, as amended or supplemented, if applicable, will not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading; provided except that the representations and warranties set forth in this paragraph 2(g(g) are limited in all respects apply only to statements or omissions made in reliance upon and in conformity with information relating the Registration Statement, Time of Sale Prospectus, a broadly available road show or the Prospectus that relate to the Selling Shareholder and are based upon information furnished to the Company in writing by the Selling Shareholder expressly for use therein.
(g) 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 of the Shares, except for such rights as have been waived or which are described in the Registration Statement, Time of Sale Prospectus and Prospectus (and which have been complied with).
(h) The Selling Shareholder does not own any warrants, options or similar rights to acquire, and does not have any right or arrangement to acquire, any capital stock, right, warrants, options or other securities from the Company, other than those described in the Registration Statement, the Time of Sale Prospectus, the Prospectus or any amendments or supplements thereto, it being understood and agreed that for purposes of this Agreement, the only information furnished by the Selling Shareholder consists of the name of the Selling Shareholder, the number of offered shares and the address and other information with respect to the Selling Shareholder (excluding percentages) which appear in the Registration Statement or any Prospectus in the table (and corresponding footnotes) under the caption “The Selling Shareholder” (the “Selling Shareholder Information”)Prospectus.
(i) (i) None of There are no contracts, agreements or understandings between the Selling Shareholder and any person that would give rise to a valid claim against the Company or any Underwriter for a brokerage commission, finder’s fee or other like payment in connection with this offering or, to the Selling Shareholder’s knowledge, any other arrangements, agreements, understandings, payments or issuance with respect to the Company or any of its subsidiariesofficers, ordirectors, to shareholders, partners, employees, Subsidiaries or affiliates that may affect the knowledge Underwriters’ compensation as determined by FINRA.
(j) There are no affiliations or associations between any member of FINRA and the Selling Shareholder, any directorexcept as disclosed in the Registration Statement, officer, employee, agent, representative, Time of Sale Prospectus and Prospectus 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 as set forth in a country or territory that is questionnaire completed by the subject Selling Shareholder and delivered to the Underwriters prior to the date of Sanctions (including, without limitation, the so-called Donetsk People’s Republic, the so-called Luhansk People’s Republic, the Crimea Region and the non-government controlled areas this Agreement; none of the Zaporizhzhia and Kherson Regions proceeds received by the Selling Shareholder from the sale of Ukraine, Cuba, Iran, North Korea, Syria the Shares pursuant to this Agreement will be paid to a member of FINRA or any other Covered Region affiliate of Ukraine identified pursuant to Executive Order 14065)(or person “associated with,” as such terms are used in the Rules of FINRA) such member.
(iik) The Selling Shareholder has not prepared or had prepared on its behalf or used or referred to, any free writing prospectus, and represents that it has not distributed any written materials in connection with the offer or sale of the Shares.
(l) Any certificate signed by the Selling Shareholder and delivered to the Underwriters or counsel for the Underwriters in connection with the Shares shall be deemed a representation and warranty by the Selling Shareholder, as to matters covered thereby, to each Underwriter.
(m) The Selling Shareholder will not, directly or indirectly, use the proceeds of the offering, or lend, contribute or otherwise make available such proceeds to any subsidiary, joint venture partner or other Person:
(A) to fund or facilitate any activities or business of or with any Person or in any country or territory that, at the time of such funding or facilitation, is the subject of Sanctions; or
(B) in any other manner that will result in a violation of Sanctions by any Person (including any Person participating in the offering, whether as underwriter, advisor, investor or otherwise).
(iii) For the past five years, the Selling Shareholder has not knowingly engaged in, is not now knowingly engaged in, and will not engage in, any dealings or transactions with any Person, or in any country or territory, that at the time of the dealing or transaction is or was the subject of Sanctions.
(a) None of the Selling Shareholder or any of its subsidiaries, or, to the knowledge of the Selling Shareholder, any director, officer, employee, agent, representative, or affiliate thereof has taken or will take any action in furtherance of an offer, payment, promise to pay, or authorization or approval of the payment giving or receipt of money, property, gifts or anything else of value, directly or indirectly, to any Government Official in order to influence official action, or to any person in violation of any applicable anti-corruption laws; (b) the Selling Shareholder and each of its subsidiaries have conducted their businesses in compliance with applicable anti-corruption laws and have instituted and maintained and will continue to maintain policies and procedures reasonably designed to promote and achieve compliance with such laws and with the representations and warranties contained herein; and (c) neither the Selling Shareholder nor any of its subsidiaries will use, directly or indirectly, the proceeds of the offering in furtherance of an offer, payment, promise to pay, or authorization of the payment or giving of money, or anything else of value, to any person in violation of any applicable anti-corruption laws.
(v) The operations of the Selling Shareholder and each of its subsidiaries are and have been conducted at all times in compliance with all applicable Anti-Money Laundering Laws, and no action, suit or proceeding by or before any court or governmental agency, authority or body or any arbitrator involving the Selling Shareholder or any of its subsidiaries with respect to the Anti-Money Laundering Laws is pending or, to the best knowledge of the Selling Shareholder, threatened.
(j) The Selling Shareholder represents and warrants that it is not (i) an employee benefit plan subject to Title I of ERISA, (ii) a plan or account subject to Section 4975 of the Code or (iii) an entity deemed to hold “plan assets” of any such plan or account under Section 3(42) of ERISA, 29 C.F.R. 2510.3-101, or otherwise.
(k) The Selling Shareholder represents that no stamp, documentary, issuance, registration, transfer, withholding, capital gains, income or other taxes or duties are payable by or on behalf of the Underwriter, the Company or any of its subsidiaries or to any taxing authority thereof or therein in connection with (i) the execution, delivery or consummation of this Agreement by the Selling Shareholder, (ii) the sale and delivery of the Shares by the Selling Shareholder to the Underwriter or purchasers procured by the Underwriter, or (iii) the resale and delivery of such Shares by the Underwriter in the manner contemplated herein.
(l) The Selling Shareholder has the power to submit, and pursuant to Section 20(a) has, to the extent permitted by law, legally, validly, effectively and irrevocably submitted, to the jurisdiction of the Specified Courts (as defined in Section 20(a)), and has the power to designate, appoint and empower, and pursuant to Section 20(b), has legally, validly and effectively designated, appointed and empowered an agent for service of process in any suit or proceeding based on or arising under this Agreement in any of the Specified Courts.
Appears in 1 contract
Samples: Underwriting Agreement (Fabrinet)
Representations and Warranties of the Selling Shareholder. The Selling Shareholder represents and warrants to and agrees with each of the Underwriter Underwriters that:
(a) This Agreement has been duly authorized, executed and delivered by or on behalf of the Selling Shareholder.
(b) The execution and delivery by the Selling Shareholder of, and the performance by the Selling Shareholder of its obligations under, this Agreement will not contravene (i) any provision of applicable law, (ii) the certificate of formation or organization, by-laws, limited liability company agreement, operating agreement or other 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 except, in the case cases of clauses (i), (iii) and (iv) as above, for any such contravention that would not, singly or in the aggregate, reasonably be expected to not have a material adverse effect on the power and ability of the Selling Shareholder’s ability Shareholder to perform its obligations under this AgreementAgreement or to consummate the transactions contemplated hereby. No consent, approval, authorization or order of, or qualification with, any governmental body, body or agency or court is required for the performance by the Selling Shareholder of its obligations under this Agreement, except for (iA) such as may have already been obtainedthe registration of the Shares under the Securities Act, (iiB) 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 and (C) any such consents, approvals, authorizations, orders or (iii) such that qualifications the absence of which would not reasonably be expected to not, individually or in the aggregate, have a material adverse effect on the power and ability of the Selling Shareholder to perform its obligations under this Agreement or to consummate the transactions contemplated by this Agreementhereby.
(c) The Selling Shareholder has, and on the Initial Closing Date, the Repurchase Closing Date and any 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 by the Selling Shareholder free and clear of all security interests, claims, liens, equities or other encumbrances and the legal right and power, and all authorization and approval required by law, to enter into this Agreement and to sell, transfer and deliver the Shares to be sold by the Selling Shareholder or a security entitlement in respect of such Shares.
(d) Upon payment for the Shares to be sold by the Selling Shareholder pursuant to this Agreement, delivery of such Shares, as directed by the UnderwriterUnderwriters, to Cede & Co. (“Cede”) or such other nominee as may be designated by the Depository Trust Company (“DTC”), registration of transfer of such Shares in the stock registry of the Company 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 Underwriters (assuming that neither DTC nor the 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 Underwriter 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 Underwriter Underwriters with respect to such security entitlement; for purposes of this representation, the such Selling Shareholder may assume that when such payment, delivery and crediting occur, (x) such Shares will have been registered in the name of Cede or another nominee designated by DTC, in each case on the Company’s share registry in accordance with its certificate of incorporation, bylaws and applicable law, (y) DTC will be registered as a “clearing corporation” within the meaning of Section 8-102 of the UCC and (z) appropriate entries to the account accounts of the Underwriter several Underwriters on the records of DTC will have been made pursuant to the UCC.
(e) The Selling Shareholder has delivered to the Underwriter an executed lock-up agreement in substantially the form attached hereto as Exhibit A (the “Lock-up Agreement”)represents that it is a United States person for U.S. federal income tax purposes.
(f) The Selling Shareholder has not taken, directly or indirectly, any action designed to or that could reasonably be expected to cause or result in any stabilization or manipulation of the price of the Shares in violation of Regulation M under the Exchange Act.
(g) The Selling Shareholder is not prompted by any material non-public information concerning the Company or its subsidiaries which is not set forth in the Registration Statement, the Time of Sale Prospectus or the Prospectus to sell its Shares pursuant to this Agreement.
(g) Neither the Selling Shareholder nor its affiliates has taken, directly or indirectly, any action that is designed to or that has constituted or that would reasonably be expected to cause or result in the stabilization or manipulation of the price of any security of the Company to facilitate the sale or resale of the Shares.
(h) (i) 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, when it became effective, did not contain and, as amended or supplemented, if applicable, will not contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading, (ii) the Time of Sale Prospectus the Prospectus or any free writing prospectus or any amendment or supplement thereto, when taken together, is, and on the Closing Date or any Option Closing Date (as defined below) will be, true, correct and complete in all material respects, and does not, and at on the time of each sale of the Shares in connection with the offering when the Prospectus is not yet available to prospective purchasers and at the Initial Closing Date, the Repurchase Closing Date and any Option Closing Date (as defined in Section 5), the Time of Sale Prospectus, as then amended or supplemented by the Company, if applicable, will not, contain any untrue statement of a material fact or omit to state a any material fact necessary to make such information not misleading. In addition, the statements therein, in the light Selling Shareholder confirms that that certain Warrant to Purchase Shares of Common Stock of the circumstances under which they were madeCompany, not misleading, and (iii) the Prospectus does not contain and, as amended or supplemented, if applicable, will not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading; provided that the representations and warranties set forth in this paragraph 2(g) are limited in all respects to statements or omissions made in reliance upon and in conformity with information relating issued to the Selling Shareholder furnished and dated August 3, 2009 (the “Warrant”) is, to the Company in writing by its knowledge, currently exercisable for 24,766,177 shares of Common Stock, subject to certain adjustments provided for therein (except that right of the Selling Shareholder expressly to an adjustment under Section 9(e) of the Warrant relating to the Company's ability to fully utilize its net operating loss carryforwards for use income tax purposes, which right of the Selling Shareholder shall be terminated in full and cease to be of effect without any adjustments thereunder upon the Registration Statement, consummation of the transactions contemplated hereby) and that the number of shares of Common Stock set forth opposite its name in the Time of Sale Prospectus, Prospectus and the Prospectus or any amendments or supplements thereto, it being understood and agreed that for purposes of this Agreement, the only information furnished by the Selling Shareholder consists of the name of the Selling Shareholder, the number of offered shares and the address and other information with respect to the Selling Shareholder (excluding percentages) which appear in the Registration Statement or any Prospectus in the table (and corresponding footnotes) under the caption “The Selling ShareholderStockholder” (after giving effect to the “Selling Shareholder Information”).
(i) (i) None sale of all of the Selling Shareholder or any Firm Shares is accurate based on such 24,766,177 shares 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, the so-called Donetsk People’s Republic, the so-called Luhansk People’s Republic, the Crimea Region and the non-government controlled areas of the Zaporizhzhia and Kherson Regions of Ukraine, Cuba, Iran, North Korea, Syria or any other Covered Region of Ukraine identified pursuant to Executive Order 14065).
(ii) The Selling Shareholder will not, directly or indirectly, use the proceeds of the offering, or lend, contribute or otherwise make available such proceeds to any subsidiary, joint venture partner or other Person:
(A) to fund or facilitate any activities or business of or with any Person or in any country or territory that, at the time of such funding or facilitation, is the subject of Sanctions; or
(B) in any other manner that will result in a violation of Sanctions by any Person (including any Person participating in the offering, whether as underwriter, advisor, investor or otherwise).
(iii) For the past five years, the Selling Shareholder has not knowingly engaged in, is not now knowingly engaged inCommon Stock, and will not engage in, any dealings or transactions with any Person, or in any country or territory, that at the time of the dealing or transaction is or was the subject of Sanctions.
(a) None of the Selling Shareholder or any of its subsidiaries, or, to the knowledge of the Selling Shareholder, any director, officer, employee, agent, representative, or affiliate thereof has taken or will take any action in furtherance of an offer, payment, promise to pay, or authorization or approval of the payment giving or receipt of money, property, gifts or anything else of value, directly or indirectly, to any Government Official in order to influence official action, or to any person in violation of any applicable anti-corruption laws; (b) the Selling Shareholder and each of its subsidiaries have conducted their businesses in compliance with applicable anti-corruption laws and have instituted and maintained and will continue to maintain policies and procedures reasonably designed to promote and achieve compliance with such laws and with the representations and warranties contained herein; and (c) neither the Selling Shareholder nor any of its subsidiaries will use, directly or indirectly, the proceeds of the offering in furtherance of an offer, payment, promise to pay, or authorization of the payment or giving of money, or anything else of value, to any person in violation of any applicable anti-corruption laws.
(v) The operations of the Selling Shareholder and each of its subsidiaries are and have been conducted at all times in compliance with all applicable Anti-Money Laundering Laws, and no action, suit or proceeding by or before any court or governmental agency, authority or body or any arbitrator involving the Selling Shareholder or any of its subsidiaries with respect to the Anti-Money Laundering Laws is pending or, to the best knowledge of the Selling Shareholder, threatened.
(j) The Selling Shareholder represents and warrants that it is not (i) an employee benefit plan subject to Title I of ERISA, (ii) a plan or account subject to Section 4975 of the Code or (iii) an entity deemed to hold “plan assets” of any such plan or account under Section 3(42) of ERISA, 29 C.F.R. 2510.3-101, or otherwise.
(k) The Selling Shareholder represents that no stamp, documentary, issuance, registration, transfer, withholding, capital gains, income or other taxes or duties are payable information furnished by or on behalf of the Underwriter, the Company or any of its subsidiaries or to any taxing authority thereof or therein in connection with (i) the execution, delivery or consummation of this Agreement by the Selling Shareholder, (ii) the sale and delivery of the Shares by the such Selling Shareholder to under the Underwriter or purchasers procured by caption “Selling Stockholder” complies in all material respects with the Underwriter, or (iii) the resale applicable requirements of Item 7 of Form S-3 and delivery Item 507 of such Shares by the Underwriter in the manner contemplated herein.
(l) The Selling Shareholder has the power to submit, and pursuant to Section 20(a) has, to the extent permitted by law, legally, validly, effectively and irrevocably submitted, to the jurisdiction of the Specified Courts (as defined in Section 20(a)), and has the power to designate, appoint and empower, and pursuant to Section 20(b), has legally, validly and effectively designated, appointed and empowered an agent for service of process in any suit or proceeding based on or arising under this Agreement in any of the Specified Courts.Regulation S-K.
Appears in 1 contract
Representations and Warranties of the Selling Shareholder. The Selling Shareholder represents and warrants to and agrees with each of the Underwriter Underwriters that:
(a) This Agreement has been duly authorized, executed and delivered by or on behalf of the Selling Shareholder.
(b) The execution and delivery by the Selling Shareholder of, and the performance by the Selling Shareholder of its obligations under, this Agreement will not contravene (i) any provision of applicable law, (ii) the certificate of formation or organization, by-laws, limited liability company agreement, operating agreement or other 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 except, in the case cases of clauses (i), (iii) and (iv) as above, for any such contravention that would not, singly or in the aggregate, reasonably be expected to not have a material adverse effect on the power and ability of the Selling Shareholder’s ability Shareholder to perform its obligations under this AgreementAgreement or to consummate the transactions contemplated hereby. No consent, approval, authorization or order of, or qualification with, any governmental body, body or agency or court is required for the performance by the Selling Shareholder of its obligations under this Agreement, except for (iA) such as may have already been obtainedthe registration of the Shares under the Securities Act, (iiB) 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 and (C) any such consents, approvals, authorizations, orders or (iii) such that qualifications the absence of which would not reasonably be expected to not, individually or in the aggregate, have a material adverse effect on the power and ability of the Selling Shareholder to perform its obligations under this Agreement or to consummate the transactions contemplated by this Agreementhereby.
(c) The Selling Shareholder has, and on the Initial Closing Date, the Repurchase Closing Date and any 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 by the Selling Shareholder free and clear of all security interests, claims, liens, equities or other encumbrances and the legal right and power, and all authorization and approval required by law, to enter into this Agreement and to sell, transfer and deliver the Shares to be sold by the Selling Shareholder or a security entitlement in respect of such Shares.
(d) Upon payment for the Shares to be sold by the Selling Shareholder pursuant to this Agreement, delivery of such Shares, as directed by the UnderwriterUnderwriters, to Cede & Co. (“Cede”) or such other nominee as may be designated by the Depository Trust Company (“DTC”), registration of transfer of such Shares in the stock registry of the Company 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 Underwriters (assuming that neither DTC nor the 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 Underwriter 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 Underwriter Underwriters with respect to such security entitlement; for purposes of this representation, the such Selling Shareholder may assume that when such payment, delivery and crediting occur, (x) such Shares will have been registered in the name of Cede or another nominee designated by DTC, in each case on the Company’s share registry in accordance with its certificate of incorporation, bylaws and applicable law, (y) DTC will be registered as a “clearing corporation” within the meaning of Section 8-102 of the UCC and (z) appropriate entries to the account accounts of the Underwriter several Underwriters on the records of DTC will have been made pursuant to the UCC.
(e) The Selling Shareholder has delivered to the Underwriter an executed lock-up agreement in substantially the form attached hereto as Exhibit A (the “Lock-up Agreement”)represents that it is a United States person for U.S. federal income tax purposes.
(f) The Selling Shareholder has not taken, directly or indirectly, any action designed to or that could reasonably be expected to cause or result in any stabilization or manipulation of the price of the Shares in violation of Regulation M under the Exchange Act.
(g) The Selling Shareholder is not prompted by any material non-public information concerning the Company or its subsidiaries which is not set forth in the Registration Statement, the Time of Sale Prospectus or the Prospectus to sell its Shares pursuant to this Agreement.
(g) Neither the Selling Shareholder nor its affiliates has taken, directly or indirectly, any action that is designed to or that has constituted or that would reasonably be expected to cause or result in the stabilization or manipulation of the price of any security of the Company to facilitate the sale or resale of the Shares.
(h) (i) 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, when it became effective, did not contain and, as amended or supplemented, if applicable, will not contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading, (ii) the Time of Sale Prospectus the Prospectus or any free writing prospectus or any amendment or supplement thereto, when taken together, is, and on the Closing Date or any Option Closing Date (as defined below) will be, true, correct and complete in all material respects, and does not, and at on the time of each sale of the Shares in connection with the offering when the Prospectus is not yet available to prospective purchasers and at the Initial Closing Date, the Repurchase Closing Date and any Option Closing Date (as defined in Section 5), the Time of Sale Prospectus, as then amended or supplemented by the Company, if applicable, will not, contain any untrue statement of a material fact or omit to state a any material fact necessary to make such information not misleading. In addition, the statements therein, in the light Selling Shareholder confirms that that certain Warrant to Purchase Shares of Common Stock of the circumstances under which they were madeCompany, not misleading, and (iii) the Prospectus does not contain and, as amended or supplemented, if applicable, will not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading; provided that the representations and warranties set forth in this paragraph 2(g) are limited in all respects to statements or omissions made in reliance upon and in conformity with information relating issued to the Selling Shareholder furnished and dated August 3, 2009 (the “Warrant”) is, to the Company in writing by its knowledge, currently exercisable for 24,766,177 shares of Common Stock, subject to certain adjustments provided for therein (except that right of the Selling Shareholder expressly to an adjustment under Section 9(e) of the Warrant relating to the Company’s ability to fully utilize its net operating loss carryforwards for use income tax purposes, which right of the Selling Shareholder shall be terminated in full and cease to be of effect without any adjustments thereunder upon the Registration Statement, consummation of the transactions contemplated hereby) and that the number of shares of Common Stock set forth opposite its name in the Time of Sale Prospectus, Prospectus and the Prospectus or any amendments or supplements thereto, it being understood and agreed that for purposes of this Agreement, the only information furnished by the Selling Shareholder consists of the name of the Selling Shareholder, the number of offered shares and the address and other information with respect to the Selling Shareholder (excluding percentages) which appear in the Registration Statement or any Prospectus in the table (and corresponding footnotes) under the caption “The Selling ShareholderStockholder” (after giving effect to the “Selling Shareholder Information”).
(i) (i) None sale of all of the Selling Shareholder or any Firm Shares is accurate based on such 24,766,177 shares 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, the so-called Donetsk People’s Republic, the so-called Luhansk People’s Republic, the Crimea Region and the non-government controlled areas of the Zaporizhzhia and Kherson Regions of Ukraine, Cuba, Iran, North Korea, Syria or any other Covered Region of Ukraine identified pursuant to Executive Order 14065).
(ii) The Selling Shareholder will not, directly or indirectly, use the proceeds of the offering, or lend, contribute or otherwise make available such proceeds to any subsidiary, joint venture partner or other Person:
(A) to fund or facilitate any activities or business of or with any Person or in any country or territory that, at the time of such funding or facilitation, is the subject of Sanctions; or
(B) in any other manner that will result in a violation of Sanctions by any Person (including any Person participating in the offering, whether as underwriter, advisor, investor or otherwise).
(iii) For the past five years, the Selling Shareholder has not knowingly engaged in, is not now knowingly engaged inCommon Stock, and will not engage in, any dealings or transactions with any Person, or in any country or territory, that at the time of the dealing or transaction is or was the subject of Sanctions.
(a) None of the Selling Shareholder or any of its subsidiaries, or, to the knowledge of the Selling Shareholder, any director, officer, employee, agent, representative, or affiliate thereof has taken or will take any action in furtherance of an offer, payment, promise to pay, or authorization or approval of the payment giving or receipt of money, property, gifts or anything else of value, directly or indirectly, to any Government Official in order to influence official action, or to any person in violation of any applicable anti-corruption laws; (b) the Selling Shareholder and each of its subsidiaries have conducted their businesses in compliance with applicable anti-corruption laws and have instituted and maintained and will continue to maintain policies and procedures reasonably designed to promote and achieve compliance with such laws and with the representations and warranties contained herein; and (c) neither the Selling Shareholder nor any of its subsidiaries will use, directly or indirectly, the proceeds of the offering in furtherance of an offer, payment, promise to pay, or authorization of the payment or giving of money, or anything else of value, to any person in violation of any applicable anti-corruption laws.
(v) The operations of the Selling Shareholder and each of its subsidiaries are and have been conducted at all times in compliance with all applicable Anti-Money Laundering Laws, and no action, suit or proceeding by or before any court or governmental agency, authority or body or any arbitrator involving the Selling Shareholder or any of its subsidiaries with respect to the Anti-Money Laundering Laws is pending or, to the best knowledge of the Selling Shareholder, threatened.
(j) The Selling Shareholder represents and warrants that it is not (i) an employee benefit plan subject to Title I of ERISA, (ii) a plan or account subject to Section 4975 of the Code or (iii) an entity deemed to hold “plan assets” of any such plan or account under Section 3(42) of ERISA, 29 C.F.R. 2510.3-101, or otherwise.
(k) The Selling Shareholder represents that no stamp, documentary, issuance, registration, transfer, withholding, capital gains, income or other taxes or duties are payable information furnished by or on behalf of the Underwriter, the Company or any of its subsidiaries or to any taxing authority thereof or therein in connection with (i) the execution, delivery or consummation of this Agreement by the Selling Shareholder, (ii) the sale and delivery of the Shares by the such Selling Shareholder to under the Underwriter or purchasers procured by caption “Selling Stockholder” complies in all material respects with the Underwriter, or (iii) the resale applicable requirements of Item 7 of Form S-3 and delivery Item 507 of such Shares by the Underwriter in the manner contemplated herein.
(l) The Selling Shareholder has the power to submit, and pursuant to Section 20(a) has, to the extent permitted by law, legally, validly, effectively and irrevocably submitted, to the jurisdiction of the Specified Courts (as defined in Section 20(a)), and has the power to designate, appoint and empower, and pursuant to Section 20(b), has legally, validly and effectively designated, appointed and empowered an agent for service of process in any suit or proceeding based on or arising under this Agreement in any of the Specified Courts.Regulation S-K.
Appears in 1 contract
Representations and Warranties of the Selling Shareholder. The Selling Shareholder represents and warrants to and agrees with each of the Underwriter Underwriters that:
(a) This Agreement has been duly authorized, executed and delivered by or on behalf of the Selling Shareholder.
(b) The execution and delivery by the Selling Shareholder of, and the performance by the Selling Shareholder of its obligations under, this Agreement will not contravene (i) any provision of applicable law, (ii) or the organizational documents certificate of incorporation or By-laws of the Selling ShareholderShareholder (if such Selling Shareholder is a corporation), (iii) or 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, singly or in the aggregate, reasonably be expected to have a material adverse effect on the Selling Shareholder’s ability to perform its obligations under this Agreement. No no consent, approval, authorization or order of, or qualification with, any governmental body, body or agency or court is required for the performance by the Selling Shareholder of its obligations under this Agreement, except (i) such as may have already been obtained, (ii) such as may be required by the securities or Blue Sky laws of the various states in connection with the offer and sale of the Shares or (iii) such that would not reasonably be expected to have a material adverse effect on the ability of the Selling Shareholder to consummate the transactions contemplated by this AgreementShares.
(c) The Selling Shareholder has, is the record and on the Initial Closing Date, the Repurchase Closing Date and any Option Closing Date will have, valid title to, or a valid “security entitlement” within the meaning beneficial owner of Section 8-501 of the New York Uniform Commercial Code in respect of, the Shares to be sold by the such Selling Shareholder hereunder and such Shares are free and clear of all security interests, claims, liens, encumbrances, equities or other encumbrances and claims whatsoever and, assuming that the legal right and power, and all authorization and approval required by law, to enter into this Agreement and to sell, transfer and deliver the Shares to be sold by the Selling Shareholder or a security entitlement in respect of such Shares.
(d) Upon payment for the Shares to be 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 Underwriters purchase 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 without any notice of any adverse claim (within the meaning of Section § 8-105 of the New York Uniform Commercial Code (as in effect in the “UCC”State of New York)) to , upon the sale and delivery of, and payment for, such Shares as provided herein, the Underwriters will own such Shares), (A) DTC shall be a “protected purchaser” free and clear of such Shares within the meaning of Section 8-303 of the UCCall liens, (B) under Section 8-501 of the UCCencumbrances, the Underwriter will acquire a valid security entitlement in respect of such Shares equities and (C) no action based on any “adverse claim”, within the meaning of Section 8-102 of the UCC, to such Shares may be successfully 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 UCCclaims whatsoever.
(e) The Selling Shareholder has delivered to the Underwriter an executed lock-up agreement in substantially the form attached hereto as Exhibit A (the “Lock-up Agreement”).
(fd) The Selling Shareholder has not takentaken and will not take, directly or indirectly, any action which is designed to or that could which has constituted or which might reasonably be expected to cause or result in any stabilization or manipulation of the price of any security of the Shares in violation Company to facilitate the sale or resale of Regulation M under the Exchange ActShares.
(g) The Selling Shareholder is not prompted by any information concerning the Company or its subsidiaries which is not set forth in the Registration Statement, the Time of Sale Prospectus or the Prospectus to sell its Shares pursuant to this Agreement.
(he) (i) Each part of the Registration Statement, when it 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 omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading, ; (ii) the Time of Sale Prospectus does not, and at the time of each sale of the Shares in connection with the offering when the Prospectus is not yet available to prospective purchasers and at the Initial Closing Date, the Repurchase Closing Date and any Option Closing Date (as defined in Section 5)purchasers, the Time of Sale Prospectus, as then amended or supplemented by the Company, if applicable, will not, contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading, misleading and (iii) the Prospectus does Prospectus, as of its date, will not contain and, as amended or supplemented, if applicable, as of the Closing Date, 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(g2(e) are limited in all respects apply only to statements or omissions made in reliance upon and in conformity with information relating to the Selling Shareholder furnished to the Company in writing by the Selling Shareholder (or on the Selling Shareholder’s behalf) to the Company or the Managers expressly for use in the Registration Statement, any preliminary prospectus, the Time of Sale Prospectus, the Prospectus or any amendments or supplements thereto, it being understood and agreed that for purposes of this Agreement, the only information furnished by the Selling Shareholder consists of the name of the Selling Shareholder, the number of offered shares and the address and other information with respect to the Selling Shareholder (excluding percentages) which appear in the Registration Statement or any Prospectus in the table (and corresponding footnotes) under the caption “The Selling Shareholder” (the “Selling Shareholder Information”).
(i) (i) None of the Selling Shareholder or any of its subsidiaries, or, to the knowledge of the Selling Shareholder, any director, officer, employee, agent, representative, or affiliate thereof, is a Person that is, or is owned or controlled by one or more Persons that are:
(A) the subject of any Sanctions, or
(B) located, organized or resident in a country or territory that is the subject of Sanctions (including, without limitation, the so-called Donetsk People’s Republic, the so-called Luhansk People’s Republic, the Crimea Region and the non-government controlled areas of the Zaporizhzhia and Kherson Regions of Ukraine, Cuba, Iran, North Korea, Syria or any other Covered Region of Ukraine identified pursuant to Executive Order 14065).
(ii) The Selling Shareholder will not, directly or indirectly, use the proceeds of the offering, or lend, contribute or otherwise make available such proceeds to any subsidiary, joint venture partner or other Person:
(A) to fund or facilitate any activities or business of or with any Person or in any country or territory that, at the time of such funding or facilitation, is the subject of Sanctions; or
(B) in any other manner that will result in a violation of Sanctions by any Person (including any Person participating in the offering, whether as underwriter, advisor, investor or otherwise).
(iii) For the past five years, the Selling Shareholder has not knowingly engaged in, is not now knowingly engaged in, and will not engage in, any dealings or transactions with any Person, or in any country or territory, that at the time of the dealing or transaction is or was the subject of Sanctions.
(a) None of the Selling Shareholder or any of its subsidiaries, or, to the knowledge of the Selling Shareholder, any director, officer, employee, agent, representative, or affiliate thereof has taken or will take any action in furtherance of an offer, payment, promise to pay, or authorization or approval of the payment giving or receipt of money, property, gifts or anything else of value, directly or indirectly, to any Government Official in order to influence official action, or to any person in violation of any applicable anti-corruption laws; (b) the Selling Shareholder and each of its subsidiaries have conducted their businesses in compliance with applicable anti-corruption laws and have instituted and maintained and will continue to maintain policies and procedures reasonably designed to promote and achieve compliance with such laws and with the representations and warranties contained herein; and (c) neither the Selling Shareholder nor any of its subsidiaries will use, directly or indirectly, the proceeds of the offering in furtherance of an offer, payment, promise to pay, or authorization of the payment or giving of money, or anything else of value, to any person in violation of any applicable anti-corruption laws.
(v) The operations of the Selling Shareholder and each of its subsidiaries are and have been conducted at all times in compliance with all applicable Anti-Money Laundering Laws, and no action, suit or proceeding by or before any court or governmental agency, authority or body or any arbitrator involving the Selling Shareholder or any of its subsidiaries with respect to the Anti-Money Laundering Laws is pending or, to the best knowledge of the Selling Shareholder, threatened.
(j) The Selling Shareholder represents and warrants that it is not (i) an employee benefit plan subject to Title I of ERISA, (ii) a plan or account subject to Section 4975 of the Code or (iii) an entity deemed to hold “plan assets” of any such plan or account under Section 3(42) of ERISA, 29 C.F.R. 2510.3-101, or otherwise.
(k) The Selling Shareholder represents that no stamp, documentary, issuance, registration, transfer, withholding, capital gains, income or other taxes or duties are payable by or on behalf of the Underwriter, the Company or any of its subsidiaries or to any taxing authority thereof or therein in connection with (i) the execution, delivery or consummation of this Agreement by the Selling Shareholder, (ii) the sale and delivery of the Shares by the Selling Shareholder to the Underwriter or purchasers procured by the Underwriter, or (iii) the resale and delivery of such Shares by the Underwriter in the manner contemplated herein.
(l) The Selling Shareholder has the power to submit, and pursuant to Section 20(a) has, to the extent permitted by law, legally, validly, effectively and irrevocably submitted, to the jurisdiction of the Specified Courts (as defined in Section 20(a)), and has the power to designate, appoint and empower, and pursuant to Section 20(b), has legally, validly and effectively designated, appointed and empowered an agent for service of process in any suit or proceeding based on or arising under this Agreement in any of the Specified Courts.
Appears in 1 contract
Representations and Warranties of the Selling Shareholder. The Selling Shareholder represents and warrants to to, and agrees with with, each Underwriter as of the Underwriter that:date hereof as set forth below in this Section 2.
(a) This Agreement has been duly authorized, executed and delivered by or on behalf of the Selling Shareholder.
(b) The execution and delivery by the Selling Shareholder of, and the performance by the Selling Shareholder of its obligations under, this Agreement will not contravene (i) any provision of applicable law, (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, singly or in the aggregate, reasonably be expected to have a material adverse effect on the Selling Shareholder’s ability to perform its obligations under this Agreement. No consent, approval, authorization authorization, filing with, registration, or order of, of any court or qualification with, any governmental body, agency or court body is necessary or required for the performance by the Selling Shareholder of its obligations under hereunder in connection with the offering or sale of the International Shares hereunder or the consummation of the transactions contemplated in this Agreement or in the Deposit Agreement, except (i) such as may have already been obtained, (ii) obtained or made under the Act and such as may be required by under the securities or Blue Sky blue sky laws of the various states any jurisdiction in connection with the offer purchase and distribution of the International Shares by the Underwriters in the manner contemplated herein and in the Registration Statement, Disclosure Package and the Final Prospectus, the Ley del Xxxxxxx de Valores and regulations thereunder or the regulations of the Mexican Stock Exchange, or any laws of jurisdictions outside of Mexico and the United States in which the Global Shares are offered and sold or (ii) as otherwise set forth in Section 1(rr) hereof.
(c) None of the execution, delivery and performance by the Selling Shareholder of this Agreement, the sale of the Shares International Shares, or the consummation of the transactions herein or therein contemplated and as described in the Disclosure Package and the Final Prospectus, or the fulfillment of the terms hereof by the Selling Shareholder does and will conflict with, result in a breach or violation of, or imposition of any Lien upon any property or assets of the Selling Shareholder pursuant to, (i) the estatutos sociales of the Selling Shareholder (ii) the terms of any indenture, contract, lease, mortgage, deed of trust, note agreement, loan agreement or other agreement, obligation, condition, covenant or instrument to which the Selling Shareholder is a party or bound or to which its or their property is subject, or (iii) any statute, law, rule, regulation, judgment, order or decree applicable to the Selling Shareholder of any court, regulatory body, administrative agency, governmental body, arbitrator or other authority having jurisdiction over the Selling Shareholder or any of its properties, except, in the case of clauses (ii) and (iii) above, for such that conflicts, breaches, violations or impositions which would not reasonably be expected to have a Material Adverse Effect and would not have a material adverse effect on the ability performance of this Agreement or the Selling Shareholder to consummate consummation of any of the transactions contemplated by this Agreementhereby.
(cd) The Selling Shareholder has, is and on the Initial Closing Date will be the record and beneficial owner of the International Shares, and has and on the Closing Date will have good and valid title to the International Shares to be delivered by the Selling Shareholder on the Closing Date, free and clear of all Liens, and full right, power and corporate authority to enter into and perform its obligations under this Agreement and to sell, assign, transfer and deliver the Repurchase International Shares to be delivered by the Selling Shareholder on the Closing Date hereunder; and any Option upon the delivery of and payment for the International Shares on the Closing Date hereunder the Underwriters will have, acquire good and valid title toto the International Shares to be delivered by the Selling Shareholder on the Closing Date, or a valid “security entitlement” within the meaning free and clear of Section 8-501 all Liens.
(e) Upon deposit of the New York Uniform Commercial Code in respect of, the International Shares to be sold by the Selling Shareholder and payment therefor pursuant to this Agreement, valid title to such International Shares will be passed in accordance with the Deposit Agreement to the Depositary who has received deposit of such International Shares without notice of an adverse claim, free and clear of all security interests, claims, liens, equities or other encumbrances and the legal right and power, and all authorization and approval required by law, to enter into this Agreement and to sell, transfer and deliver the Shares to be sold by the Selling Shareholder or a security entitlement in respect of such Shares.
(d) any Liens. Upon payment of the purchase price for the Shares ADSs to be sold by the Selling Shareholder pursuant to this Agreement, delivery of such SharesADSs, as directed by the UnderwriterUnderwriters, to Cede & Co. (“Cede”) or such other nominee as may be designated by the The Depository Trust Company (“DTC”), registration of such Shares ADSs in the name of Cede or such other nominee nominee, and the crediting of such Shares ADSs 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 8-105 501(a) of the New York Uniform Commercial Code (the “UCC”)) to of the Underwriters (assuming that neither DTC nor any such Shares), (A) DTC shall be a Underwriter has notice of any “protected purchaseradverse claim,” of such Shares within the meaning of Section 8-303 105 of the UCC, to such ADSs), (Bi) under Section 8-501 of the UCC, the Underwriter Underwriters will acquire a valid “security entitlement entitlement” in respect of such Shares ADSs, and (Cii) no action (whether framed in conversion, replevin, constructive trust, equitable lien, or other theory) based on any “adverse claim”, ,” within the meaning of Section 8-102 of the UCC, to such Shares ADSs may be successfully asserted against the Underwriter 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 ADSs 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 charter and by-laws 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 accounts of the Underwriter several Underwriters on the records of DTC will have been made pursuant to the UCC.
(e) The Selling Shareholder has delivered to the Underwriter an executed lock-up agreement in substantially the form attached hereto as Exhibit A (the “Lock-up Agreement”).
(f) The Selling Shareholder has not taken, directly or indirectly, any action designed to or that could would constitute or that might reasonably be expected to cause or result in any in, under the Exchange Act or otherwise, stabilization or manipulation of the price of any security of the Shares in violation Company to facilitate the sale or resale of Regulation M under the Exchange ActInternational Shares.
(g) The Selling Shareholder is not prompted by any information concerning the Company or its subsidiaries which is not set forth in On each Effective Date, the Registration StatementStatement did, and when the Final Prospectus is first filed in accordance with Rule 424(b) and Rule 430A and on the Closing Date and on any Settlement Date, the Time Final Prospectus (and any amendments or supplements thereto) will comply in all material respects with the applicable requirements of Sale Prospectus or the Prospectus to sell its Shares pursuant to this Agreement.
(h) (i) Act and the Exchange Act and the respective rules thereunder; on each Effective Date and at the Execution Time, the Registration Statement, when it became effective, Statement did not contain and, as amended or supplemented, if applicable, and will not contain any untrue statement of a material fact or omit to state a any material fact required to be stated therein or necessary in order to make the statements therein not misleading, (ii) the Time of Sale Prospectus does not, and ; at the time of each sale of the Shares in connection with the offering when the Prospectus is not yet available to prospective purchasers and at the Initial Closing DateExecution Time, the Repurchase Disclosure Package does not contain any untrue statement of a material fact or omit to state any material fact necessary in order to make the statements therein not misleading; and on the date of any filing pursuant to Rule 424(b) and on the Closing Date [and any Option Closing Date (as defined in Section 5)Settlement Date], the Time of Sale Prospectus, as then amended Final Prospectus (together with any amendments or supplemented by the Company, if applicable, supplements thereto) will not, contain not include any untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading, and (iii) the Prospectus does not contain and, as amended or supplemented, if applicable, will not contain any untrue statement of a material fact or omit to state a material fact necessary order to make the statements therein, in the light of the circumstances under which they were made, not misleading; provided provided, however, that the representations and warranties set forth in this paragraph Section 2(g) are limited in all respects apply only to statements or omissions made in reliance upon regarding the information furnished by and in conformity with information relating to the Selling Shareholder furnished to the Company in writing by the Selling Shareholder expressly specifically for use in the Registration Statement, the Time of Sale Prospectus, the Prospectus or any amendments or supplements theretoinclusion therein, it being understood and agreed that for purposes of this Agreement, the only such information furnished by the Selling Shareholder consists of the name information described as such in Section 10(b) hereof.
(h) The Selling Shareholder has not prepared or had prepared on its behalf or used or referred to, any Issuer Free Writing Prospectus, and has not distributed any written materials in connection with the offer or sale of the Selling Shareholder, the number of offered shares and the address and other information with respect to the Selling Shareholder (excluding percentages) which appear in the Registration Statement or any Prospectus in the table (and corresponding footnotes) under the caption “The Selling Shareholder” (the “Selling Shareholder Information”)International Shares.
(i) The Selling Shareholder has no reason to believe that the representations and warranties of the Company contained in Section 1 of this Agreement are not true and correct, is familiar with the Disclosure Package, the Registration Statement and the ADR Registration Statement and has no knowledge of any material fact, condition or information not disclosed in the Disclosure Package, the Registration Statement and the ADR Registration Statement that, in the individual or the aggregate, would reasonably be expected to result in a Material Adverse Effect.
(ij) None The sale of the International Shares by the Selling Shareholder pursuant to this Agreement is not and will not be prompted by any material non-public information concerning the Company that is not set forth in the Registration Statement, Disclosure Package or the Final Prospectus, or any amendment or supplement thereto.
(k) 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.
(l) There are no actions, suits, claims, investigations or proceedings pending or, to the Selling Shareholder’s knowledge, threatened or contemplated to which the Selling Shareholder or any of its subsidiaries, orif any, or any of their respective directors or officers is or would be a party or of which any of their respective properties is or would be subject at law or in equity, before or by any Mexican and non-Mexican federal or state governmental or regulatory commission, board, body, authority or agency seeking to prevent consummation of the transactions contemplated in this Agreement or performance by the Selling Shareholder of its obligations hereunder.
(m) The Selling Shareholder nor, to the knowledge of the Selling Shareholder, any director, officer, employee, agent, representativeof its affiliates directly, or affiliate thereofindirectly 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 that is, or is owned or controlled by one or more Persons that are:
associated with a member (A) within 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, the so-called Donetsk People’s Republic, the so-called Luhansk People’s Republic, the Crimea Region and the non-government controlled areas meaning of the Zaporizhzhia and Kherson Regions FINRA by-laws) of Ukraine, Cuba, Iran, North Korea, Syria or any other Covered Region of Ukraine identified pursuant to Executive Order 14065)FINRA.
(iin) 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 Any certificate signed by any Person (including any Person participating in the offering, whether as underwriter, advisor, investor or otherwise).
(iii) For the past five years, the Selling Shareholder has not knowingly engaged in, is not now knowingly engaged in, and will not engage in, any dealings or transactions with any Person, or in any country or territory, that at the time of the dealing or transaction is or was the subject of Sanctions.
(a) None of the Selling Shareholder or any of its subsidiaries, or, to the knowledge of the Selling Shareholder, any director, officer, employee, agent, representative, or affiliate thereof has taken or will take any action in furtherance of an offer, payment, promise to pay, or authorization or approval of the payment giving or receipt of money, property, gifts or anything else of value, directly or indirectly, to any Government Official in order to influence official action, or to any person in violation of any applicable anti-corruption laws; (b) the Selling Shareholder and each of its subsidiaries have conducted their businesses in compliance with applicable anti-corruption laws and have instituted and maintained and will continue to maintain policies and procedures reasonably designed to promote and achieve compliance with such laws and with the representations and warranties contained herein; 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 officer of the Selling Shareholder and each of its subsidiaries are and have been conducted at all times in 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 delivered to the Anti-Money Laundering Laws is pending or, to Representative or counsel for the best knowledge of the Selling Shareholder, threatened.
(j) The Selling Shareholder represents and warrants that it is not (i) an employee benefit plan subject to Title I of ERISA, (ii) a plan or account subject to Section 4975 of the Code or (iii) an entity deemed to hold “plan assets” of any such plan or account under Section 3(42) of ERISA, 29 C.F.R. 2510.3-101, or otherwise.
(k) The Selling Shareholder represents that no stamp, documentary, issuance, registration, transfer, withholding, capital gains, income or other taxes or duties are payable by or on behalf of the Underwriter, the Company or any of its subsidiaries or to any taxing authority thereof or therein Underwriters in connection with (i) the execution, delivery or consummation offering of this Agreement the International Shares shall be deemed a representation and warranty by the Selling Shareholder, (ii) the sale and delivery of the Shares by the Selling Shareholder as to the Underwriter or purchasers procured by the Underwriter, or (iii) the resale and delivery of such Shares by the Underwriter in the manner contemplated herein.
(l) The Selling Shareholder has the power to submit, and pursuant to Section 20(a) hasmatters covered thereby, to the extent permitted by law, legally, validly, effectively and irrevocably submitted, to the jurisdiction of the Specified Courts (as defined in Section 20(a)), and has the power to designate, appoint and empower, and pursuant to Section 20(b), has legally, validly and effectively designated, appointed and empowered an agent for service of process in any suit or proceeding based on or arising under this Agreement in any of the Specified Courtseach Underwriter.
Appears in 1 contract
Samples: Underwriting Agreement (Central North Airport Group)
Representations and Warranties of the Selling Shareholder. The Selling Shareholder represents and warrants to to, and agrees with the with, each Underwriter that:
(a) This Agreement has been duly authorized, executed and delivered by or on behalf of the Selling Shareholder.
(b) The execution and delivery by the Such Selling Shareholder of, is the record and the performance by the Selling Shareholder beneficial owner 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, singly or in the aggregate, reasonably be expected to have a material adverse effect on the Selling Shareholder’s ability to perform its obligations under this Agreement. 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 (i) such as may have already been obtained, (ii) such as may be required by the securities or Blue Sky laws of the various states in connection with the offer and sale of the Shares or (iii) such that would not reasonably be expected to have a material adverse effect on the ability of the Selling Shareholder to consummate the transactions contemplated by this Agreement.
(c) The Selling Shareholder has, and on the Initial Closing Date, the Repurchase Closing Date and any 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 by the Selling Shareholder it hereunder free and clear of all security interests, claims, liens, encumbrances, equities or other encumbrances and the legal right claims and power, and all authorization and approval required by law, to enter into this Agreement and to sell, transfer and deliver the Shares to be sold by the Selling Shareholder or a security entitlement in respect of such Shares.
(d) Upon payment for the Shares to be 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 has duly endorsed such Shares in blank, and has full power and authority to sell its interest 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 (Shares, and, assuming that neither DTC nor each Underwriter acquires its interest in the Underwriter Shares it has purchased from such Selling Shareholder without notice of any adverse claim (within the meaning of Section 8-105 of the New York Uniform Commercial Code ("UCC")), each Underwriter that has purchased such Shares delivered on the “Closing Date to The Depository Trust Company or other securities intermediary by making payment therefor as provided herein, and that has had such Shares credited to the securities account or accounts of such Underwriters maintained with The Depository Trust Company or such other securities intermediary will have acquired a security entitlement (within -11- the meaning of Section 8-102(a)(17) of the UCC”)) to such Shares)Shares purchased by such Underwriter, and no action based on an adverse claim (A) DTC shall be a “protected purchaser” of such Shares within the meaning of Section 8-303 105 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 successfully asserted against the such 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 UCCShares.
(eb) The Selling Shareholder has delivered to the Underwriter an executed lock-up agreement in substantially the form attached hereto as Exhibit A (the “Lock-up Agreement”).
(f) The Such Selling Shareholder has not taken, directly or indirectly, any action designed to or that could would constitute or that might reasonably be expected to cause or result in any in, under the Exchange Act or otherwise, stabilization or manipulation of the price of any security of the Shares in violation Company to facilitate the sale or resale of Regulation M under the Exchange ActShares.
(gc) No consent, approval, authorization or order of any court or governmental agency or body is required for the consummation by such Selling Shareholder of the transactions contemplated herein, except such as may have been obtained under the Act and such as may be required under the blue sky laws of any jurisdiction in connection with the purchase and distribution of the Shares by the Underwriters and such other approvals as have been obtained.
(d) Neither the sale of the Shares being sold by such Selling Shareholder nor the consummation of any other of the transactions herein contemplated by such Selling Shareholder or the fulfillment of the terms hereof by such Selling Shareholder will conflict with, result in a breach or violation of, or constitute a default under (i) any law, (ii) the charter or by-laws of such Selling Shareholder, (iii) the terms of any indenture or other agreement or instrument to which such Selling Shareholder or any of its subsidiaries is a party or bound, or (iv) any judgment, order or decree applicable to such Selling Shareholder or any of its subsidiaries of any court, regulatory body, administrative agency, governmental body or arbitrator having jurisdiction over such Selling Shareholder or any of its subsidiaries, in the case of clauses (i), (iii) or (iv), as would materially impair the ability of the Selling Shareholder to perform its obligations under this Agreement.
(e) The Selling Shareholder is not prompted by any information concerning Shareholder, the Company and the Underwriters acknowledge that the Selling Shareholder Information with respect to the Selling Shareholder constitutes the only information furnished in writing by the Selling Shareholder for inclusion in the Preliminary Prospectus, the Final Prospectus or its subsidiaries which is not set forth any Issuer Free Writing Prospectus and any supplements.
(f) In respect of any statements in or omissions from the Registration Statement, the Time of Sale Final Prospectus, any Preliminary Prospectus or any Free Writing Prospectus or any amendment or supplement thereto used by the Prospectus to sell its Shares pursuant to this Agreement.
(h) (i) the Registration Statement, when it became effective, did not contain andCompany or any Underwriter, as amended or supplementedthe case may be, if applicable, will not contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading, (ii) the Time of Sale Prospectus does not, and at the time of each sale of the Shares in connection with the offering when the Prospectus is not yet available to prospective purchasers and at the Initial Closing Date, the Repurchase Closing Date and any Option Closing Date (as defined in Section 5), the Time of Sale Prospectus, as then amended or supplemented by the Company, if applicable, will not, contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading, and (iii) the Prospectus does not contain and, as amended or supplemented, if applicable, will not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading; provided that the representations and warranties set forth in this paragraph 2(g) are limited in all respects to statements or omissions made in reliance upon and in conformity with information relating to the Selling Shareholder Information furnished in writing to the Company in writing or to the Underwriters by the Selling Shareholder expressly specifically for use in connection with the Registration Statementpreparation thereof, the Time of Sale Prospectus, the Prospectus or any amendments or supplements thereto, it being understood and agreed that for purposes of this Agreement, the only information furnished by the Selling Shareholder consists hereby makes the same representations and warranties to each Underwriter as the Company makes to such Underwriter under paragraphs (b) or (c) of Section 1. Any certificate signed by any officer of any Selling Shareholder and delivered to the Representative or counsel for the Underwriters in connection with the offering of the name of the Shares shall be deemed a representation and warranty by such Selling Shareholder, the number of offered shares and the address and other information with respect as to the Selling Shareholder (excluding percentages) which appear in the Registration Statement or any Prospectus in the table (and corresponding footnotes) under the caption “The Selling Shareholder” (the “Selling Shareholder Information”).
(i) (i) None of the Selling Shareholder or any of its subsidiaries, ormatters covered thereby, 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, the so-called Donetsk People’s Republic, the so-called Luhansk People’s Republic, the Crimea Region and the non-government controlled areas of the Zaporizhzhia and Kherson Regions of Ukraine, Cuba, Iran, North Korea, Syria or any other Covered Region of Ukraine identified pursuant to Executive Order 14065)each Underwriter.
(ii) The Selling Shareholder will not, directly or indirectly, use the proceeds of the offering, or lend, contribute or otherwise make available such proceeds to any subsidiary, joint venture partner or other Person:
(A) to fund or facilitate any activities or business of or with any Person or in any country or territory that, at the time of such funding or facilitation, is the subject of Sanctions; or
(B) in any other manner that will result in a violation of Sanctions by any Person (including any Person participating in the offering, whether as underwriter, advisor, investor or otherwise).
(iii) For the past five years, the Selling Shareholder has not knowingly engaged in, is not now knowingly engaged in, and will not engage in, any dealings or transactions with any Person, or in any country or territory, that at the time of the dealing or transaction is or was the subject of Sanctions.
(a) None of the Selling Shareholder or any of its subsidiaries, or, to the knowledge of the Selling Shareholder, any director, officer, employee, agent, representative, or affiliate thereof has taken or will take any action in furtherance of an offer, payment, promise to pay, or authorization or approval of the payment giving or receipt of money, property, gifts or anything else of value, directly or indirectly, to any Government Official in order to influence official action, or to any person in violation of any applicable anti-corruption laws; (b) the Selling Shareholder and each of its subsidiaries have conducted their businesses in compliance with applicable anti-corruption laws and have instituted and maintained and will continue to maintain policies and procedures reasonably designed to promote and achieve compliance with such laws and with the representations and warranties contained herein; and (c) neither the Selling Shareholder nor any of its subsidiaries will use, directly or indirectly, the proceeds of the offering in furtherance of an offer, payment, promise to pay, or authorization of the payment or giving of money, or anything else of value, to any person in violation of any applicable anti-corruption laws.
(v) The operations of the Selling Shareholder and each of its subsidiaries are and have been conducted at all times in compliance with all applicable Anti-Money Laundering Laws, and no action, suit or proceeding by or before any court or governmental agency, authority or body or any arbitrator involving the Selling Shareholder or any of its subsidiaries with respect to the Anti-Money Laundering Laws is pending or, to the best knowledge of the Selling Shareholder, threatened.
(j) The Selling Shareholder represents and warrants that it is not (i) an employee benefit plan subject to Title I of ERISA, (ii) a plan or account subject to Section 4975 of the Code or (iii) an entity deemed to hold “plan assets” of any such plan or account under Section 3(42) of ERISA, 29 C.F.R. 2510.3-101, or otherwise.
(k) The Selling Shareholder represents that no stamp, documentary, issuance, registration, transfer, withholding, capital gains, income or other taxes or duties are payable by or on behalf of the Underwriter, the Company or any of its subsidiaries or to any taxing authority thereof or therein in connection with (i) the execution, delivery or consummation of this Agreement by the Selling Shareholder, (ii) the sale and delivery of the Shares by the Selling Shareholder to the Underwriter or purchasers procured by the Underwriter, or (iii) the resale and delivery of such Shares by the Underwriter in the manner contemplated herein.
(l) The Selling Shareholder has the power to submit, and pursuant to Section 20(a) has, to the extent permitted by law, legally, validly, effectively and irrevocably submitted, to the jurisdiction of the Specified Courts (as defined in Section 20(a)), and has the power to designate, appoint and empower, and pursuant to Section 20(b), has legally, validly and effectively designated, appointed and empowered an agent for service of process in any suit or proceeding based on or arising under this Agreement in any of the Specified Courts.
Appears in 1 contract
Samples: Underwriting Agreement (American International Group Inc)
Representations and Warranties of the Selling Shareholder. The Selling Shareholder represents and warrants to and agrees with each of the Underwriter Underwriters that:
(a) The Selling Shareholder has been duly organized and is validly existing as a company with limited liability in good standing under the laws of the Mxxxxxxx Islands and has the power and authority to own, lease and operate its properties and to conduct its business as currently conducted and to enter into and perform its obligations under this Agreement.
(b) This Agreement has been duly authorized, executed and delivered by or on behalf of the Selling Shareholder.
(bc) The execution and delivery by the Selling Shareholder of, and the performance by the Selling Shareholder of its obligations under, this Agreement will not contravene (i) or conflict with, result in a breach of, or constitute a Default under, or require the consent of any provision other party to, the certificate of applicable lawformation, (ii) the articles of organization or other organizational documents of the Selling Shareholder, (iii) Shareholder or any other agreement or other instrument binding upon to which the Selling Shareholder is a party or (iv) by which it is bound or under which it is entitled to any right or benefit, any provision of applicable law or any judgment, order order, decree or decree regulation applicable to the Selling Shareholder of any governmental court, regulatory body, agency administrative agency, governmental body or court arbitrator having jurisdiction over the Selling Shareholder, except in the case of (i), (iii) and (iv) as would not, singly or in the aggregate, reasonably be expected to have a material adverse effect on the Selling Shareholder’s ability to perform its obligations under this Agreement. No consent, approval, authorization or other order of, or qualification registration or filing with, any court or other governmental body, or regulatory authority or agency or court is required for the Selling Shareholder’s execution, delivery or performance of this Agreement or the consummation by the Selling Shareholder of its obligations under the transactions contemplated in this Agreement, except such as (i) such as may have already been obtained, obtained or made and are in full force and effect or (ii) such as may be required under applicable state securities or blue sky laws.
(d) Except for such consents, approvals and waivers which have been obtained by the securities Selling Shareholder on or Blue Sky laws prior to the date of this Agreement, no consent, approval or waiver is required under any instrument or agreement to which the various states Selling Shareholder is a party or by which it is bound or under which it is entitled to any right or benefit, in connection with the offer and offering, sale or purchase by the Underwriters of any of the Shares or (iii) such that would not reasonably which may be expected to have a material adverse effect on the ability of sold by the Selling Shareholder to consummate under this Agreement or the consummation by the Selling Shareholder of any of the other transactions contemplated by this Agreementhereby.
(ce) The Selling Shareholder has, and on the Initial Closing Date, the Repurchase Closing Date and any each applicable Option Closing Date (as defined below) will have, have good and valid title to, or a valid “security entitlement” within the meaning of Section 8-501 to all of the New York Uniform Commercial Code in respect of, the Shares to be sold by the Selling Shareholder free and clear of all security interests, claims, liens, equities or other encumbrances and the legal right and power, and all authorization and approval required by law, to enter into this Agreement and to sell, transfer and deliver the Shares to be sold by the Selling Shareholder or a security entitlement in respect of such Shares.
(d) Upon payment for the Shares to which may be sold by the Selling Shareholder pursuant to this AgreementAgreement on such date and the legal right and power to sell, delivery transfer and deliver all of such Shares, as directed by the Underwriter, to Cede & Co. (“Cede”) or such other nominee as Shares which may be designated sold 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 successfully 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 pursuant to this Agreement 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 to comply with its certificate of incorporation, bylaws other obligations hereunder 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.
(e) The Selling Shareholder has delivered to the Underwriter an executed lock-up agreement in substantially the form attached hereto as Exhibit A (the “Lock-up Agreement”)thereunder.
(f) Delivery of the Shares which are sold by the Selling Shareholder pursuant to this Agreement will pass good and valid title to such Shares, free and clear of any security interest, mortgage, pledge, lien, encumbrance or other adverse claim.
(g) The Selling Shareholder has not taken, directly or indirectly, any action designed to or that could might be reasonably be expected to cause or result in any stabilization or manipulation of the price of any security to facilitate the Shares in violation sale or resale of Regulation M under the Exchange Actshares of Common Stock.
(gh) The Selling Shareholder (i) 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 generally described in the Time of Sale Prospectus and the Prospectus or are set forth in that certain Registration Rights Agreement dated as of July 15, 2005 (which is incorporated by reference as an exhibit to the Registration Statement), and (ii) does not own any warrants, options or similar rights to acquire, and does not have any right or arrangement to acquire, any share capital, rights, warrants, options or other securities from the Company, other than those generally described in the Time of Sale Prospectus and the Prospectus.
(i) All information furnished by or on behalf of the Selling Shareholder in writing expressly for use in the Registration Statement, the Time of Sale Prospectus and the Prospectus is, and on the Closing Date and any applicable Option Closing Date will be, true, correct, and complete in all material respects, and does not, and on the Closing Date and any applicable Option Closing Date will not, contain any untrue statement of a material fact or omit to state any material fact necessary to make such information not misleading. The Selling Shareholder confirms as accurate the number of shares of Common Stock set forth opposite the Selling Shareholder’s name in the Time of Sale Prospectus under the caption “Selling Shareholder” (both prior to and after giving effect to the sale of the Shares).
(j) The Selling Shareholder is not, and after receipt of payment for the Shares will not be, an “investment company” within the meaning of the Investment Company Act.
(k) There are no transfer taxes or other similar fees or charges under federal law or the laws of any state or foreign jurisdiction, or any political subdivision thereof, required to be paid by the Selling Shareholder in connection with the execution and delivery of this Agreement or the sale by the Selling Shareholder of the Shares.
(l) The Selling Shareholder has not distributed and will not distribute, prior to the later of (i) the expiration or termination of the option granted to the several Underwriters under Section 3, (ii) the completion of the Underwriters’ distribution of the Shares and (iii) the expiration of 25 days after the date of the Prospectus, any offering material in connection with the offering and sale of the Shares other than a preliminary prospectus, the Time of Sale Prospectus, the Prospectus or the Registration Statement.
(m) The Selling Shareholder has reviewed and is familiar with the Registration Statement, the Time of Sale Prospectus and the Prospectus and: (i) with respect solely to information provided in writing by the Selling Shareholder that is included therein, has no knowledge of any misstatement of a material fact or failure to state a material fact necessary to make the statements in the Time of Sale Prospectus and the Prospectus, in light of the circumstances under which they were made, not misleading; and (ii) is not prompted to sell the Firm Shares and the Additional Shares, if any, to be sold by the Selling Shareholder by any information concerning the Company or its subsidiaries any Subsidiary 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.
(h) (i) the Registration Statement, when it became effective, did not contain and, as amended or supplemented, if applicable, will not contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading, (ii) the Time of Sale Prospectus does not, and at the time of each sale of the Shares in connection with the offering when the Prospectus is not yet available to prospective purchasers and at the Initial Closing Date, the Repurchase Closing Date and any Option Closing Date (as defined in Section 5), the Time of Sale Prospectus, as then amended or supplemented by the Company, if applicable, will not, contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading, and (iii) the Prospectus does not contain and, as amended or supplemented, if applicable, will not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading; provided that the representations and warranties set forth in this paragraph 2(g) are limited in all respects to statements or omissions made in reliance upon and in conformity with information relating to the Selling Shareholder furnished to the Company in writing by the Selling Shareholder expressly for use in the Registration Statement, the Time of Sale Prospectus, the Prospectus or any amendments or supplements thereto, it being understood and agreed that for purposes of this Agreement, the only information furnished by the Selling Shareholder consists of the name of the Selling Shareholder, the number of offered shares and the address and other information with respect to the Selling Shareholder (excluding percentages) which appear in the Registration Statement or any Prospectus in the table (and corresponding footnotes) under the caption “The Selling Shareholder” (the “Selling Shareholder Information”)Prospectus.
(i) (i) None of the Selling Shareholder or any of its subsidiaries, or, to the knowledge of the Selling Shareholder, any director, officer, employee, agent, representative, or affiliate thereof, is a Person that is, or is owned or controlled by one or more Persons that are:
(A) the subject of any Sanctions, or
(B) located, organized or resident in a country or territory that is the subject of Sanctions (including, without limitation, the so-called Donetsk People’s Republic, the so-called Luhansk People’s Republic, the Crimea Region and the non-government controlled areas of the Zaporizhzhia and Kherson Regions of Ukraine, Cuba, Iran, North Korea, Syria or any other Covered Region of Ukraine identified pursuant to Executive Order 14065).
(ii) The Selling Shareholder will not, directly or indirectly, use the proceeds of the offering, or lend, contribute or otherwise make available such proceeds to any subsidiary, joint venture partner or other Person:
(A) to fund or facilitate any activities or business of or with any Person or in any country or territory that, at the time of such funding or facilitation, is the subject of Sanctions; or
(B) in any other manner that will result in a violation of Sanctions by any Person (including any Person participating in the offering, whether as underwriter, advisor, investor or otherwise).
(iii) For the past five years, the Selling Shareholder has not knowingly engaged in, is not now knowingly engaged in, and will not engage in, any dealings or transactions with any Person, or in any country or territory, that at the time of the dealing or transaction is or was the subject of Sanctions.
(a) None of the Selling Shareholder or any of its subsidiaries, or, to the knowledge of the Selling Shareholder, any director, officer, employee, agent, representative, or affiliate thereof has taken or will take any action in furtherance of an offer, payment, promise to pay, or authorization or approval of the payment giving or receipt of money, property, gifts or anything else of value, directly or indirectly, to any Government Official in order to influence official action, or to any person in violation of any applicable anti-corruption laws; (b) the Selling Shareholder and each of its subsidiaries have conducted their businesses in compliance with applicable anti-corruption laws and have instituted and maintained and will continue to maintain policies and procedures reasonably designed to promote and achieve compliance with such laws and with the representations and warranties contained herein; and (c) neither the Selling Shareholder nor any of its subsidiaries will use, directly or indirectly, the proceeds of the offering in furtherance of an offer, payment, promise to pay, or authorization of the payment or giving of money, or anything else of value, to any person in violation of any applicable anti-corruption laws.
(v) The operations of the Selling Shareholder and each of its subsidiaries are and have been conducted at all times in compliance with all applicable Anti-Money Laundering Laws, and no action, suit or proceeding by or before any court or governmental agency, authority or body or any arbitrator involving the Selling Shareholder or any of its subsidiaries with respect to the Anti-Money Laundering Laws is pending or, to the best knowledge of the Selling Shareholder, threatened.
(j) The Selling Shareholder represents and warrants that it is not (i) an employee benefit plan subject to Title I of ERISA, (ii) a plan or account subject to Section 4975 of the Code or (iii) an entity deemed to hold “plan assets” of any such plan or account under Section 3(42) of ERISA, 29 C.F.R. 2510.3-101, or otherwise.
(k) The Selling Shareholder represents that no stamp, documentary, issuance, registration, transfer, withholding, capital gains, income or other taxes or duties are payable by or on behalf of the Underwriter, the Company or any of its subsidiaries or to any taxing authority thereof or therein in connection with (i) the execution, delivery or consummation of this Agreement by the Selling Shareholder, (ii) the sale and delivery of the Shares by the Selling Shareholder to the Underwriter or purchasers procured by the Underwriter, or (iii) the resale and delivery of such Shares by the Underwriter in the manner contemplated herein.
(l) The Selling Shareholder has the power to submit, and pursuant to Section 20(a) has, to the extent permitted by law, legally, validly, effectively and irrevocably submitted, to the jurisdiction of the Specified Courts (as defined in Section 20(a)), and has the power to designate, appoint and empower, and pursuant to Section 20(b), has legally, validly and effectively designated, appointed and empowered an agent for service of process in any suit or proceeding based on or arising under this Agreement in any of the Specified Courts.
Appears in 1 contract
Samples: Underwriting Agreement (Genco Shipping & Trading LTD)
Representations and Warranties of the Selling Shareholder. The Selling Shareholder represents and warrants to and agrees with each of the Underwriter Underwriters that:
(a) This Agreement has been duly authorized, executed and delivered by or on behalf of the Selling Shareholder.
(b) The execution and delivery by the Selling Shareholder of, and the performance by the Selling Shareholder of its obligations under, this Agreement will not contravene (i) any provision of applicable law, (ii) the statuts or other organizational documents of the Selling Shareholder, (iii) or applicable law, or any agreement or other instrument binding upon the Selling Shareholder, except for such violations of applicable law or agreements or other instruments as would not, individually or in the aggregate, have a material adverse effect on the performance by the Selling Shareholder of its obligations under this Agreement or (iv) the consummation of the transactions herein described, or 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, singly or in the aggregate, reasonably be expected to have a material adverse effect on the Selling Shareholder’s ability to perform its obligations under this Agreement. No no consent, approval, authorization or order of, or qualification with, any governmental body, body or agency or court is required for the performance by the Selling Shareholder of its obligations under this Agreement, except (i) such as may have already been obtained, (ii) such as may be required by the securities or Blue Sky laws of the various states in connection with the offer and sale of the Shares or (iii) such that would not reasonably be expected to have a material adverse effect on the ability of the Selling Shareholder to consummate the transactions contemplated by this AgreementShares.
(c) The Selling Shareholder has, and on the Initial Closing Date, the Repurchase Closing Date and any 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, to the Shares to be sold by the Selling Shareholder free and clear of all security interests, claims, liens, equities or other encumbrances and the legal right and power, and all authorization and approval required by law, to enter into this Agreement Agreement, and to sell, transfer and deliver the Shares to be sold by the Selling Shareholder or a security entitlement in respect of such SharesShareholder.
(d) Upon payment for and delivery of the Shares to be 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 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, title to such Shares may be successfully asserted against the Underwriter with respect to such will pass free and clear of any security entitlement; for purposes of this representationinterests, the Selling Shareholder may assume that when such paymentclaims, delivery and crediting occurliens, (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.
(e) The Selling Shareholder has delivered to the Underwriter an executed lock-up agreement in substantially the form attached hereto as Exhibit A (the “Lock-up Agreement”).
(f) The Selling Shareholder has not taken, directly or indirectly, any action designed to or that could reasonably be expected to cause or result in any stabilization or manipulation of the price of the Shares in violation of Regulation M under the Exchange Act.
(g) The Selling Shareholder is not prompted by any information concerning the Company or its subsidiaries which is not set forth in the Registration Statement, the Time of Sale Prospectus or the Prospectus to sell its Shares pursuant to this Agreement.
(h) (i) the Registration Statement, when it became effective, did not contain and, as amended or supplemented, if applicable, will not contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading, (ii) the Time of Sale Prospectus does not, and at the time of each sale of the Shares in connection with the offering when the Prospectus is not yet available to prospective purchasers and at the Initial Closing Date, the Repurchase Closing Date and any Option Closing Date (as defined in Section 5), the Time of Sale Prospectus, as then amended or supplemented by the Company, if applicable, will not, contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading, and (iii) the Prospectus does not contain and, as amended or supplemented, if applicable, will not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading; provided that the representations and warranties set forth in this paragraph 2(g) are limited in all respects to statements or omissions made in reliance upon and in conformity with information relating to the Selling Shareholder furnished to the Company in writing by the Selling Shareholder expressly for use in the Registration Statement, the Time of Sale Prospectus, the Prospectus or any amendments or supplements thereto, it being understood and agreed that for purposes of this Agreement, the only information furnished by the Selling Shareholder consists of the name of the Selling Shareholder, the number of offered shares and the address equities and other information with respect to the Selling Shareholder (excluding percentages) which appear in the Registration Statement or any Prospectus in the table (and corresponding footnotes) under the caption “The Selling Shareholder” (the “Selling Shareholder Information”)encumbrances.
(i) (i) None of the Selling Shareholder or any of its subsidiaries, or, to the knowledge of the Selling Shareholder, any director, officer, employee, agent, representative, or affiliate thereof, is a Person that is, or is owned or controlled by one or more Persons that are:
(A) the subject of any Sanctions, or
(B) located, organized or resident in a country or territory that is the subject of Sanctions (including, without limitation, the so-called Donetsk People’s Republic, the so-called Luhansk People’s Republic, the Crimea Region and the non-government controlled areas of the Zaporizhzhia and Kherson Regions of Ukraine, Cuba, Iran, North Korea, Syria or any other Covered Region of Ukraine identified pursuant to Executive Order 14065).
(ii) The Selling Shareholder will not, directly or indirectly, use the proceeds of the offering, or lend, contribute or otherwise make available such proceeds to any subsidiary, joint venture partner or other Person:
(A) to fund or facilitate any activities or business of or with any Person or in any country or territory that, at the time of such funding or facilitation, is the subject of Sanctions; or
(B) in any other manner that will result in a violation of Sanctions by any Person (including any Person participating in the offering, whether as underwriter, advisor, investor or otherwise).
(iii) For the past five years, the Selling Shareholder has not knowingly engaged in, is not now knowingly engaged in, and will not engage in, any dealings or transactions with any Person, or in any country or territory, that at the time of the dealing or transaction is or was the subject of Sanctions.
(a) None of the Selling Shareholder or any of its subsidiaries, or, to the knowledge of the Selling Shareholder, any director, officer, employee, agent, representative, or affiliate thereof has taken or will take any action in furtherance of an offer, payment, promise to pay, or authorization or approval of the payment giving or receipt of money, property, gifts or anything else of value, directly or indirectly, to any Government Official in order to influence official action, or to any person in violation of any applicable anti-corruption laws; (b) the Selling Shareholder and each of its subsidiaries have conducted their businesses in compliance with applicable anti-corruption laws and have instituted and maintained and will continue to maintain policies and procedures reasonably designed to promote and achieve compliance with such laws and with the representations and warranties contained herein; and (c) neither the Selling Shareholder nor any of its subsidiaries will use, directly or indirectly, the proceeds of the offering in furtherance of an offer, payment, promise to pay, or authorization of the payment or giving of money, or anything else of value, to any person in violation of any applicable anti-corruption laws.
(v) The operations of the Selling Shareholder and each of its subsidiaries are and have been conducted at all times in compliance with all applicable Anti-Money Laundering Laws, and no action, suit or proceeding by or before any court or governmental agency, authority or body or any arbitrator involving the Selling Shareholder or any of its subsidiaries with respect to the Anti-Money Laundering Laws is pending or, to the best knowledge of the Selling Shareholder, threatened.
(j) The Selling Shareholder represents and warrants that it is not (i) an employee benefit plan subject to Title I of ERISA, (ii) a plan or account subject to Section 4975 of the Code or (iii) an entity deemed to hold “plan assets” of any such plan or account under Section 3(42) of ERISA, 29 C.F.R. 2510.3-101, or otherwise.
(k) The Selling Shareholder represents that no stamp, documentary, issuance, registration, transfer, withholding, capital gains, income or other taxes or duties are payable by or on behalf of the Underwriter, the Company or any of its subsidiaries or to any taxing authority thereof or therein in connection with (i) the execution, delivery or consummation of this Agreement by the Selling Shareholder, (ii) the sale and delivery of the Shares by the Selling Shareholder to the Underwriter or purchasers procured by the Underwriter, or (iii) the resale and delivery of such Shares by the Underwriter in the manner contemplated herein.
(l) The Selling Shareholder has the power to submit, and pursuant to Section 20(a) has, to the extent permitted by law, legally, validly, effectively and irrevocably submitted, to the jurisdiction of the Specified Courts (as defined in Section 20(a)), and has the power to designate, appoint and empower, and pursuant to Section 20(b), has legally, validly and effectively designated, appointed and empowered an agent for service of process in any suit or proceeding based on or arising under this Agreement in any of the Specified Courts.
Appears in 1 contract
Samples: Underwriting Agreement (Cal Dive International Inc)
Representations and Warranties of the Selling Shareholder. The Selling Shareholder represents and warrants to and agrees with each of the Underwriter Underwriters that:
(a) This Agreement has been duly authorized, executed and delivered by or on behalf of the Selling Shareholder.
(b) The execution and delivery by the Selling Shareholder of, and the performance by the Selling Shareholder of its obligations under, this Agreement will not contravene (i) any provision of applicable law, (ii) or the certificate of incorporation, by-laws or other organizational documents of the Selling Shareholder, (iii) or any agreement or other instrument binding upon the Selling Shareholder that is material to 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, singly or in the aggregate, reasonably be expected to have a material adverse effect on the Selling Shareholder’s ability to perform its obligations under this Agreement. No no consent, approval, authorization or order of, or qualification with, any governmental body, body or agency or court is required for the performance by the Selling Shareholder of its obligations under this Agreement, except (i) such as may have already been obtained, (ii) obtained prior to the execution of this Agreement or 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 (iii) such that would not reasonably be expected to have a material adverse effect on the ability of the Selling Shareholder to consummate the transactions contemplated by this AgreementShares.
(c) The Selling Shareholder has, and on the Initial Closing Date, the Repurchase Closing Date and any 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 (the “UCC”) in respect of, the Shares to be sold by the Selling Shareholder free and clear of all security interests, claims, liens, equities or other encumbrances and the legal right and power, and all authorization and approval required by law, to enter into this Agreement and to sell, transfer and deliver the Shares to be sold by the Selling Shareholder or a security entitlement in respect of such Shares.
(d) Upon payment for the Shares to be sold by the Selling Shareholder pursuant to this Agreement, delivery of such Shares, as directed by the UnderwriterUnderwriters, 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 Underwriters (assuming that neither DTC nor the 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”)) 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 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 Underwriter 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 account accounts of the Underwriter several Underwriters on the records of DTC will have been made pursuant to the UCC.
(e) The Selling Shareholder has delivered to the Underwriter an executed lock-up agreement in substantially the form attached hereto as Exhibit A (the “Lock-up Agreement”).
(f) The Selling Shareholder has not taken, directly or indirectly, any action designed to or that could reasonably be expected to cause or result in any stabilization or manipulation of the price of the Shares in violation of Regulation M under the Exchange Act.
(g) The Selling Shareholder is not prompted by any information concerning the Company or its subsidiaries which is not set forth in the Registration Statement, the Time of Sale Prospectus or the Prospectus to sell its Shares pursuant to this Agreement.
(h) (i) the The Registration Statement, when it became effective, did not contain and, as amended or supplemented, if applicable, will not contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading, (ii) the Time of Sale Prospectus does not, and at the time of each sale of the Shares in connection with the offering when the Prospectus is not yet available to prospective purchasers and at the Initial Closing Date, the Repurchase Closing Date and any Option Closing Date (as defined in Section 5), the Time of Sale Prospectus, as then amended or supplemented by the Company, if applicable, will not, contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading, (iii)each broadly available road show, if any, when considered together with the Time of Sale Prospectus, does not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading and (iiiiv) the Prospectus does not contain and, as amended or supplemented, if applicable, will not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading; provided that the representations and warranties set forth in this paragraph 2(g2(f) are limited in all respects to statements or omissions made in reliance upon and in conformity with information relating to the Selling Shareholder furnished to the Company in writing by the Selling Shareholder expressly for use in the Registration Statement, the Time of Sale Prospectus, the Prospectus or any amendments or supplements thereto, it being understood and agreed that for purposes of this Agreement, the only information furnished by the Selling Shareholder consists of the name of the Selling Shareholder, the number of offered shares and the address and other information with respect to the Selling Shareholder (excluding percentages) which appear in the Registration Statement or any Prospectus in the table (and corresponding footnotes) under the caption “The Selling Shareholder” (the “Selling Shareholder Information”).
(i) (i) None of the Selling Shareholder or any of its subsidiaries, or, to the knowledge of the Selling Shareholder, any director, officer, employee, agent, representative, or affiliate thereof, is a Person that is, or is owned or controlled by one or more Persons that are:
(A) the subject of any Sanctions, or
(B) located, organized or resident in a country or territory that is the subject of Sanctions (including, without limitation, the so-called Donetsk People’s Republic, the so-called Luhansk People’s Republic, the Crimea Region and the non-government controlled areas of the Zaporizhzhia and Kherson Regions of Ukraine, Cuba, Iran, North Korea, Syria or any other Covered Region of Ukraine identified pursuant to Executive Order 14065).
(ii) The Selling Shareholder will not, directly or indirectly, use the proceeds of the offering, or lend, contribute or otherwise make available such proceeds to any subsidiary, joint venture partner or other Person:
(A) to fund or facilitate any activities or business of or with any Person or in any country or territory that, at the time of such funding or facilitation, is the subject of Sanctions; or
(B) in any other manner that will result in a violation of Sanctions by any Person (including any Person participating in the offering, whether as underwriter, advisor, investor or otherwise).
(iii) For the past five years, the Selling Shareholder has not knowingly engaged in, is not now knowingly engaged in, and will not engage in, any dealings or transactions with any Person, or in any country or territory, that at the time of the dealing or transaction is or was the subject of Sanctions.
(a) None of the Selling Shareholder or any of its subsidiaries, or, to the knowledge of the Selling Shareholder, any director, officer, employee, agent, representative, or affiliate thereof has taken or will take any action in furtherance of an offer, payment, promise to pay, or authorization or approval of the payment giving or receipt of money, property, gifts or anything else of value, directly or indirectly, to any Government Official in order to influence official action, or to any person in violation of any applicable anti-corruption laws; (b) the Selling Shareholder and each of its subsidiaries have conducted their businesses in compliance with applicable anti-corruption laws and have instituted and maintained and will continue to maintain policies and procedures reasonably designed to promote and achieve compliance with such laws and with the representations and warranties contained herein; and (c) neither the Selling Shareholder nor any of its subsidiaries will use, directly or indirectly, the proceeds of the offering in furtherance of an offer, payment, promise to pay, or authorization of the payment or giving of money, or anything else of value, to any person in violation of any applicable anti-corruption laws.
(v) The operations of the Selling Shareholder and each of its subsidiaries are and have been conducted at all times in compliance with all applicable Anti-Money Laundering Laws, and no action, suit or proceeding by or before any court or governmental agency, authority or body or any arbitrator involving the Selling Shareholder or any of its subsidiaries with respect to the Anti-Money Laundering Laws is pending or, to the best knowledge of the Selling Shareholder, threatened.
(j) The Selling Shareholder represents and warrants that it is not (i) an employee benefit plan subject to Title I of ERISA, (ii) a plan or account subject to Section 4975 of the Code or (iii) an entity deemed to hold “plan assets” of any such plan or account under Section 3(42) of ERISA, 29 C.F.R. 2510.3-101, or otherwise.
(k) The Selling Shareholder represents that no stamp, documentary, issuance, registration, transfer, withholding, capital gains, income or other taxes or duties are payable by or on behalf of the Underwriter, the Company or any of its subsidiaries or to any taxing authority thereof or therein in connection with (i) the execution, delivery or consummation of this Agreement by the Selling Shareholder, (ii) the sale and delivery of the Shares by the Selling Shareholder to the Underwriter or purchasers procured by the Underwriter, or (iii) the resale and delivery of such Shares by the Underwriter in the manner contemplated herein.
(l) The Selling Shareholder has the power to submit, and pursuant to Section 20(a) has, to the extent permitted by law, legally, validly, effectively and irrevocably submitted, to the jurisdiction of the Specified Courts (as defined in Section 20(a)), and has the power to designate, appoint and empower, and pursuant to Section 20(b), has legally, validly and effectively designated, appointed and empowered an agent for service of process in any suit or proceeding based on or arising under this Agreement in any of the Specified Courts.
Appears in 1 contract
Samples: Underwriting Agreement (U.S. Silica Holdings, Inc.)
Representations and Warranties of the Selling Shareholder. The Selling Shareholder represents and warrants to to, and agrees with with, each Underwriter as of the Underwriter that:date hereof as set forth below in this Section 2.
(a) This Agreement has been duly authorized, executed and delivered by or on behalf of the Selling Shareholder.
(b) The execution and delivery by the Selling Shareholder of, and the performance by the Selling Shareholder of its obligations under, this Agreement will not contravene (i) any provision of applicable law, (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, singly or in the aggregate, reasonably be expected to have a material adverse effect on the Selling Shareholder’s ability to perform its obligations under this Agreement. No consent, approval, authorization authorization, filing with, registration, or order of, of any court or qualification with, any governmental body, agency or court body is necessary or required for the performance by the Selling Shareholder of its obligations under this hereunder in connection with the offering or sale of the Global Shares hereunder or the consummation of the transactions contemplated herein or in the Deposit Agreement, except (i) such as may have already been obtained, (ii) obtained or made under the Act and such as may be required by under the securities or Blue Sky blue sky laws of the various states any jurisdiction in connection with the offer purchase and distribution of the Global Shares by the Underwriters in the manner contemplated herein and in the Registration Statement, Disclosure Package and the Final Prospectus, the Ley del Xxxxxxx de Valores and regulations thereunder or the regulations of the Mexican Stock Exchange, or any laws of jurisdictions outside of Mexico and the United States in which the Global Shares are offered and sold or (ii) as otherwise set forth in Section 1(ss) hereof.
(c) None of the execution, delivery and performance by the Selling Shareholder of this Agreement, the sale of the Shares International Shares, or the consummation of the transactions herein or therein contemplated and as described in the Disclosure Package and the Final Prospectus, or the fulfillment of the terms hereof by the Selling Shareholder does and will conflict with, result in a breach or violation of, or imposition of any Lien upon any property or assets of the Selling Shareholder pursuant to, (i) the acta constitutiva, estatutos sociales or comparable constituent documents of the Selling Shareholder (ii) the terms of any indenture, contract, lease, mortgage, deed of trust, note agreement, loan agreement or other agreement, obligation, condition, covenant or instrument to which the Selling Shareholder is a party or bound or to which its or their property is subject, or (iii) any statute, law, rule, regulation, judgment, order or decree applicable to the Selling Shareholder of any court, regulatory body, administrative agency, governmental body, arbitrator or other authority having jurisdiction over the Selling Shareholder or any of its properties, except, in the case of clauses (ii) and (iii) above, for such that conflicts, breaches, violations or impositions which would not reasonably be expected to have a Material Adverse Effect and would not have a material adverse effect on the ability performance of this Agreement or the Selling Shareholder to consummate consummation of any of the transactions contemplated by this Agreementhereby.
(cd) The Selling Shareholder has, is and on the Initial Closing Date will be the record and beneficial owner of the Global Shares, and has and on the Closing Date will have good and valid title to the Global Shares to be delivered by the Selling Shareholder on the Closing Date, free and clear of all Liens, and full right, power and corporate authority to enter into and perform its obligations under this Agreement and to sell, assign, transfer and deliver the Repurchase Global Shares to be delivered by the Selling Shareholder on the Closing Date hereunder; and any Option upon the delivery of and payment for the Global Shares on the Closing Date hereunder the Underwriters will have, acquire good and valid title toto the Global Shares to be delivered by the Selling Shareholder on the Closing Date, or a valid “security entitlement” within the meaning free and clear of Section 8-501 all Liens.
(e) Upon deposit of the New York Uniform Commercial Code in respect of, the International Shares to be sold by the Selling Shareholder and payment therefor pursuant to this Agreement, valid title to such International Shares will be passed in accordance with the Deposit Agreement to the Depositary who has received deposit of such International Shares without notice of an adverse claim, free and clear of all security interests, claims, liens, equities or other encumbrances and the legal right and power, and all authorization and approval required by law, to enter into this Agreement and to sell, transfer and deliver the Shares to be sold by the Selling Shareholder or a security entitlement in respect of such Shares.
(d) any Liens. Upon payment of the purchase price for the Shares ADSs to be sold by the Selling Shareholder pursuant to this Agreement, delivery of such SharesADSs, as directed by the UnderwriterUnderwriters, to Cede & Co. (“Cede”) or such other nominee as may be designated by the The Depository Trust Company (“DTC”), registration of such Shares ADSs in the name of Cede or such other nominee nominee, and the crediting of such Shares ADSs 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 8-105 501(a) of the New York Uniform Commercial Code (the “UCC”)) to of the Underwriters (assuming that neither DTC nor any such Shares), (A) DTC shall be a Underwriter has notice of any “protected purchaseradverse claim,” of such Shares within the meaning of Section 8-303 105 of the UCC, to such ADSs), (Bi) under Section 8-501 of the UCC, the Underwriter Underwriters will acquire a valid “security entitlement entitlement” in respect of such Shares ADSs, and (Cii) no action (whether framed in conversion, replevin, constructive trust, equitable lien, or other theory) based on any “adverse claim”, ,” within the meaning of Section 8-102 of the UCC, to such Shares ADSs may be successfully asserted against the Underwriter 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 ADSs 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 charter and by-laws 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 accounts of the Underwriter several Underwriters on the records of DTC will have been made pursuant to the UCC.
(e) The Selling Shareholder has delivered to the Underwriter an executed lock-up agreement in substantially the form attached hereto as Exhibit A (the “Lock-up Agreement”).
(f) The Selling Shareholder has not taken, directly or indirectly, any action designed to or that could would constitute or that might reasonably be expected to cause or result in any in, under the Exchange Act or otherwise, stabilization or manipulation of the price of any security of the Shares in violation Company to facilitate the sale or resale of Regulation M under the Exchange ActInternational Shares.
(g) The Selling Shareholder is not prompted by any information concerning the Company or its subsidiaries which is not set forth in On each Effective Date, the Registration StatementStatement did, and when the Final Prospectus is first filed in accordance with Rule 424(b) and Rule 430A and on the Closing Date and on any Settlement Date, the Time Final Prospectus (and any amendments or supplements thereto) will comply in all material respects with the applicable requirements of Sale Prospectus or the Prospectus to sell its Shares pursuant to this Agreement.
(h) (i) Act and the Exchange Act and the respective rules thereunder; on each Effective Date and at the Execution Time, the Registration Statement, when it became effective, Statement did not contain and, as amended or supplemented, if applicable, and will not contain any untrue statement of a material fact or omit to state a any material fact required to be stated therein or necessary in order to make the statements therein not misleading, (ii) the Time of Sale Prospectus does not, and ; at the time of each sale of the Shares in connection with the offering when the Prospectus is not yet available to prospective purchasers and at the Initial Closing DateExecution Time, the Repurchase Disclosure Package does not contain any untrue statement of a material fact or omit to state any material fact necessary in order to make the statements therein not misleading; and on the date of any filing pursuant to Rule 424(b) and on the Closing Date and any Option Closing Date (as defined in Section 5)Settlement Date, the Time of Sale Prospectus, as then amended Final Prospectus (together with any amendments or supplemented by the Company, if applicable, supplements thereto) will not, contain not include any untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading, and (iii) the Prospectus does not contain and, as amended or supplemented, if applicable, will not contain any untrue statement of a material fact or omit to state a material fact necessary order to make the statements therein, in the light of the circumstances under which they were made, not misleading; provided provided, however, that the representations and warranties set forth in this paragraph Section 2(g) are limited in all respects apply only to statements or omissions made in reliance upon regarding the information furnished by and in conformity with information relating to the Selling Shareholder furnished to the Company in writing by the Selling Shareholder expressly specifically for use in the Registration Statement, the Time of Sale Prospectus, the Prospectus or any amendments or supplements theretoinclusion therein, it being understood and agreed that for purposes of this Agreement, the only such information furnished by the Selling Shareholder consists of the name information described as such in Section 10(b) hereof.
(h) The Selling Shareholder has not prepared or had prepared on its behalf or used or referred to, any Issuer Free Writing Prospectus, and has not distributed any written materials in connection with the offer or sale of the Selling Shareholder, the number of offered shares and the address and other information with respect to the Selling Shareholder (excluding percentages) which appear in the Registration Statement or any Prospectus in the table (and corresponding footnotes) under the caption “The Selling Shareholder” (the “Selling Shareholder Information”)International Shares.
(i) The Selling Shareholder has no reason to believe that the representations and warranties of the Company contained in Section 1 of this Agreement are not true and correct, is familiar with the Disclosure Package, the Registration Statement and the ADR Registration Statement and has no knowledge of any material fact, condition or information not disclosed in the Disclosure Package, the Registration Statement and the ADR Registration Statement that, in the individual or the aggregate, would reasonably be expected to result in a Material Adverse Effect.
(ij) None The sale of the International Shares by the Selling Shareholder pursuant to this Agreement is not and will not be prompted by any material non-public information concerning the Company that is not set forth in the Registration Statement, Disclosure Package or the Final Prospectus, or any amendment or supplement thereto.
(k) 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.
(l) There are no actions, suits, claims, investigations or proceedings pending or, to the Selling Shareholder’s knowledge, threatened or contemplated to which the Selling Shareholder or any of its subsidiaries, orif any, or any of their respective directors or officers is or would be a party or of which any of their respective properties is or would be subject at law or in equity, before or by any Mexican and non-Mexican federal or state governmental or regulatory commission, board, body, authority or agency seeking to the knowledge prevent consummation of the transactions contemplated in this Agreement or performance by the Selling Shareholder, any director, officer, employee, agent, representative, or affiliate thereof, is a Person that is, or is owned or controlled by one or more Persons that are:
(A) the subject Shareholder of any Sanctions, or
(B) located, organized or resident in a country or territory that is the subject of Sanctions (including, without limitation, the so-called Donetsk People’s Republic, the so-called Luhansk People’s Republic, the Crimea Region and the non-government controlled areas of the Zaporizhzhia and Kherson Regions of Ukraine, Cuba, Iran, North Korea, Syria or any other Covered Region of Ukraine identified pursuant to Executive Order 14065)its obligations hereunder.
(iim) The Selling Shareholder will not, directly or indirectly, use the proceeds of the offering, or lend, contribute or otherwise make available such proceeds to any subsidiary, joint venture partner or other Person:
(A) to fund or facilitate any activities or business of or with any Person or in any country or territory that, at the time of such funding or facilitation, is the subject of Sanctions; or
(B) in any other manner that will result in a violation of Sanctions by any Person (including any Person participating in the offering, whether as underwriter, advisor, investor or otherwise).
(iii) For the past five years, the Selling Shareholder has not knowingly engaged in, is not now knowingly engaged in, and will not engage in, any dealings or transactions with any Person, or in any country or territory, that at the time of the dealing or transaction is or was the subject of Sanctions.
(a) None of the Selling Shareholder or any of its subsidiaries, or, to the knowledge of the Selling Shareholder, any director, officer, employee, agent, representative, or affiliate thereof has taken or will take any action in furtherance of an offer, payment, promise to pay, or authorization or approval of the payment giving or receipt of money, property, gifts or anything else of value, directly or indirectly, to any Government Official in order to influence official action, or to any person in violation of any applicable anti-corruption laws; (b) the Selling Shareholder and each of its subsidiaries have conducted their businesses in compliance with applicable anti-corruption laws and have instituted and maintained and will continue to maintain policies and procedures reasonably designed to promote and achieve compliance with such laws and with the representations and warranties contained herein; and (c) neither the Selling Shareholder nor any of its subsidiaries will useaffiliates directly, directly or indirectlyindirectly 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 proceeds meaning of the offering in furtherance FINRA by-laws) 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 lawsFINRA.
(vn) The operations Any certificate signed by any officer of the Selling Shareholder and each of its subsidiaries are and have been conducted at all times in 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 delivered to the Anti-Money Laundering Laws is pending or, to Representative or counsel for the best knowledge of the Selling Shareholder, threatened.
(j) The Selling Shareholder represents and warrants that it is not (i) an employee benefit plan subject to Title I of ERISA, (ii) a plan or account subject to Section 4975 of the Code or (iii) an entity deemed to hold “plan assets” of any such plan or account under Section 3(42) of ERISA, 29 C.F.R. 2510.3-101, or otherwise.
(k) The Selling Shareholder represents that no stamp, documentary, issuance, registration, transfer, withholding, capital gains, income or other taxes or duties are payable by or on behalf of the Underwriter, the Company or any of its subsidiaries or to any taxing authority thereof or therein Underwriters in connection with (i) the execution, delivery or consummation offering of this Agreement the International Shares shall be deemed a representation and warranty by the Selling Shareholder, (ii) the sale and delivery of the Shares by the Selling Shareholder as to the Underwriter or purchasers procured by the Underwriter, or (iii) the resale and delivery of such Shares by the Underwriter in the manner contemplated herein.
(l) The Selling Shareholder has the power to submit, and pursuant to Section 20(a) hasmatters covered thereby, to the extent permitted by law, legally, validly, effectively and irrevocably submitted, to the jurisdiction of the Specified Courts (as defined in Section 20(a)), and has the power to designate, appoint and empower, and pursuant to Section 20(b), has legally, validly and effectively designated, appointed and empowered an agent for service of process in any suit or proceeding based on or arising under this Agreement in any of the Specified Courtseach Underwriter.
Appears in 1 contract
Samples: Underwriting Agreement (Central North Airport Group)
Representations and Warranties of the Selling Shareholder. The Selling Shareholder represents and warrants to and agrees with the Underwriter that:
(a) This Agreement has been duly authorized, executed and delivered by or on behalf of the Selling Shareholder.
(b) The execution and delivery by the Selling Shareholder of, and the performance by the Selling Shareholder of its obligations under, this Agreement will not contravene (i) any provision of applicable law, (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, singly or in the aggregate, reasonably be expected to have a material adverse effect on the Selling Shareholder’s ability to perform of its obligations under this Agreement. 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 except
(i) such as may have already been obtained, (ii) such as may be required by the securities or Blue Sky laws of the various states in connection with the offer and sale of the Shares or (iii) such that would not reasonably be expected to have a material adverse effect on the ability of the Selling Shareholder to consummate the transactions contemplated by this Agreement.
(c) The Selling Shareholder has, and on the Initial Closing Date, the Repurchase Closing Date and any 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 by the Selling Shareholder free and clear of all security interests, claims, liens, equities or other encumbrances and the legal right and power, and all authorization and approval required by law, to enter into this Agreement and to sell, transfer and deliver the Shares to be sold by the Selling Shareholder or a security entitlement in respect of such Shares.
(d) Upon payment for the Shares to be 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 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 successfully 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.
(e) The Selling Shareholder has delivered to the Underwriter an executed lock-up agreement in substantially the form attached hereto as Exhibit A (the “Lock-up Agreement”).
(f) The Selling Shareholder has not taken, directly or indirectly, any action designed to or that could reasonably be expected to cause or result in any stabilization or manipulation of the price of the Shares in violation of Regulation M under the Exchange Act.
(g) The Selling Shareholder is not prompted by any information concerning the Company or its subsidiaries which is not set forth in the Registration Statement, the Time of Sale Prospectus or the Prospectus to sell its Shares pursuant to this Agreement.
(h) (i) the Registration Statement, when it became effective, did not contain and, as amended or supplemented, if applicable, will not contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading, (ii) the ii)the Time of Sale Prospectus does not, and at the time of each sale of the Shares in connection with the offering when the Prospectus is not yet available to prospective purchasers and at the Initial Closing Date, the Repurchase Closing Date and any Option Closing Date (as defined in Section 5), the Time of Sale Prospectus, as then amended or supplemented by the Company, if applicable, will not, contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading, and (iii) the iii)the Prospectus does not contain and, as amended or supplemented, if applicable, will not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading; provided that the representations and warranties set forth in this paragraph 2(g) are limited in all respects to statements or omissions made in reliance upon and in conformity with information relating to the Selling Shareholder furnished to the Company in writing by the Selling Shareholder expressly for use in the Registration Statement, the Time of Sale Prospectus, the Prospectus or any amendments or supplements thereto, it being understood and agreed that for purposes of this Agreement, the only information furnished by the Selling Shareholder consists of the name of the Selling Shareholder, the number of offered shares and the address and other information with respect to the Selling Shareholder (excluding percentages) which appear in the Registration Statement or any Prospectus in the table (and corresponding footnotes) under the caption “The Selling Shareholder” (with respect to the Selling Shareholder, the “Selling Shareholder Information”).
(i) (i) None of the Selling Shareholder or any of its subsidiaries, or, to the knowledge of the Selling Shareholder, any director, officer, employee, agent, representative, or affiliate thereof, is a Person that is, or is owned or controlled by one or more Persons that are:
(A) the subject of any Sanctions, or
(B) located, organized or resident in a country or territory that is the subject of Sanctions (including, without limitation, the so-called Donetsk People’s Republic, the so-called Luhansk People’s Republic, the Crimea Region and the non-government controlled areas of the Zaporizhzhia and Kherson Regions of Ukrainecurrently Crimea, Cuba, Iran, North Korea, Syria or any other Covered Region of Ukraine identified pursuant to Executive Order 14065Korea and Syria).
(ii) The Except as permitted for a Person required to comply with Sanctions, the Selling Shareholder will not, directly or indirectly, use the proceeds of the offering, or lend, contribute or otherwise make available such proceeds to any subsidiary, joint venture partner or other Person:
(A) to fund or facilitate any activities or business of or with any Person or in any country or territory that, at the time of such funding or facilitation, is the subject of Sanctions; or
(B) in any other manner that will result in a violation of Sanctions by any Person (including any Person participating in the offering, whether as underwriter, advisor, investor or otherwise).
(iii) For Except as permitted for a Person required to comply with Sanctions, for the past five years, the Selling Shareholder has not knowingly engaged in, is not now knowingly engaged in, and will not engage in, any dealings or transactions with any Person, or in any country or territory, that at the time of the dealing or transaction is or was the subject of Sanctions.
(a) None of the Selling Shareholder or any of its subsidiaries, or, to the knowledge of the Selling Shareholder, any director, officer, employee, agent, representative, or affiliate thereof has taken or will take any action in furtherance of an offer, payment, promise to pay, or authorization or approval of the payment giving or receipt of money, property, gifts or anything else of value, directly or indirectly, to any Government Official in order to influence official action, or to any person in violation of any applicable anti-corruption laws; (b) the Selling Shareholder and each of its subsidiaries have conducted their businesses in compliance with applicable anti-corruption laws and have instituted and maintained and will continue to maintain policies and procedures reasonably designed to promote and achieve compliance with such laws and with the representations and warranties contained herein; and (c) neither the Selling Shareholder nor any of its subsidiaries will use, directly or indirectly, the proceeds of the offering in furtherance of an offer, payment, promise to pay, or authorization of the payment or giving of money, or anything else of value, to any person in violation of any applicable anti-corruption laws.
(v) The operations of the Selling Shareholder and each of its subsidiaries are and have been conducted at all times in material compliance with all applicable Anti-Money Laundering Laws, and no action, suit or proceeding by or before any court or governmental agency, authority or body or any arbitrator involving the Selling Shareholder or any of its subsidiaries with respect to the Anti-Money Laundering Laws is pending or, to the best knowledge of the Selling Shareholder, threatened.
(j) The Selling Shareholder represents and warrants that it is not (i) an employee benefit plan subject to Title I of ERISA, (ii) a plan or account subject to Section 4975 of the Code or (iii) an entity deemed to hold “plan assets” of any such plan or account under Section 3(42) of ERISA, 29 C.F.R. 2510.3-101, or otherwise.
(k) The Selling Shareholder represents that no stamp, documentary, issuance, registration, transfer, withholding, capital gains, income or other taxes or duties are payable by or on behalf of the Underwriter, the Company or any of its subsidiaries or to any taxing authority thereof or therein in connection with (i) the execution, delivery or consummation of this Agreement by the Selling Shareholder, (ii) the sale and delivery of the Shares by the Selling Shareholder to the Underwriter or purchasers procured by the Underwriter, or (iii) the resale and delivery of such Shares by the Underwriter in the manner contemplated herein.
(l) The Selling Shareholder has the power to submit, and pursuant to Section 20(a) has, to the extent permitted by law, legally, validly, effectively and irrevocably submitted, to the jurisdiction of the Specified Courts (as defined in Section 20(a)), and has the power to designate, appoint and empower, and pursuant to Section 20(b), has legally, validly and effectively designated, appointed and empowered an agent for service of process in any suit or proceeding based on or arising under this Agreement in any of the Specified Courts.
Appears in 1 contract
Representations and Warranties of the Selling Shareholder. The Selling Shareholder represents and warrants to and agrees with each of the Underwriter Underwriters that:
(a) This Agreement has been duly authorized, executed and delivered by or on behalf of the Selling Shareholder.
(b) The execution and delivery by the Selling Shareholder of, and the performance by the Selling Shareholder of its obligations under, this Agreement will not contravene (i) any provision of applicable law, (ii) or the certificate of incorporation, by-laws or other organizational documents of the Selling Shareholder, (iii) or any agreement or other instrument binding upon the Selling Shareholder that is material to 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, singly or in the aggregate, reasonably be expected to have a material adverse effect on the Selling Shareholder’s ability to perform its obligations under this Agreement. No no consent, approval, authorization or order of, or qualification with, any governmental body, body or agency or court is required for the performance by the Selling Shareholder of its obligations under this Agreement, except (i) such as may have already been obtained, (ii) obtained prior to the execution of this Agreement or 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 (iii) such that would not reasonably be expected to have a material adverse effect on the ability of the Selling Shareholder to consummate the transactions contemplated by this AgreementShares.
(c) The Selling Shareholder has, and on the Initial Closing Date, the Repurchase Closing Date and any 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 (the “UCC”) in respect of, the Shares to be sold by the Selling Shareholder free and clear of all security interests, claims, liens, equities or other encumbrances and the legal right and power, and all authorization and approval required by law, to enter into this Agreement and to sell, transfer and deliver the Shares to be sold by the Selling Shareholder or a security entitlement in respect of such Shares.
(d) Upon payment for the Shares to be sold by the Selling Shareholder pursuant to this Agreement, delivery of such Shares, as directed by the UnderwriterUnderwriters, 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 Underwriters (assuming that neither DTC nor the 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”)) 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 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 Underwriter 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 account accounts of the Underwriter several Underwriters on the records of DTC will have been made pursuant to the UCC.
(e) The Selling Shareholder has delivered to the Underwriter an executed lock-up agreement in substantially the form attached hereto as Exhibit A (the “Lock-up Agreement”).
(f) The Selling Shareholder has not taken, directly or indirectly, any action designed to or that could reasonably be expected to cause or result in any stabilization or manipulation of the price of the Shares in violation of Regulation M under the Exchange Act.
(g) The Selling Shareholder is not prompted by any information concerning the Company or its subsidiaries which is not set forth in the Registration Statement, the Time of Sale Prospectus or the Prospectus to sell its Shares pursuant to this Agreement.
(h) (i) the The Registration Statement, when it became effective, did not contain and, as amended or supplemented, if applicable, will not contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading, (ii) the Time of Sale Prospectus does not, and at the time of each sale of the Shares in connection with the offering when the Prospectus is not yet available to prospective purchasers and at the Initial Closing Date, the Repurchase Closing Date and any Option Closing Date (as defined in Section 5), the Time of Sale Prospectus, as then amended or supplemented by the Company, if applicable, will not, contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading, (iii) each broadly available road show, if any, when considered together with the Time of Sale Prospectus, does not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading and (iiiiv) the Prospectus does not contain and, as amended or supplemented, if applicable, will not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading; provided that the representations and warranties set forth in this paragraph 2(g2(f) are limited in all respects to statements or omissions made in reliance upon and in conformity with information relating to the Selling Shareholder furnished to the Company in writing by the Selling Shareholder expressly for use in the Registration Statement, the Time of Sale Prospectus, the Prospectus or any amendments or supplements thereto, it being understood and agreed that for purposes of this Agreement, the only information furnished by the Selling Shareholder consists of the name of the Selling Shareholder, the number of offered shares and the address and other information with respect to the Selling Shareholder (excluding percentages) which appear in the Registration Statement or any Prospectus in the table (and corresponding footnotes) under the caption “The Selling Shareholder” (the “Selling Shareholder Information”).
(i) (i) None of the Selling Shareholder or any of its subsidiaries, or, to the knowledge of the Selling Shareholder, any director, officer, employee, agent, representative, or affiliate thereof, is a Person that is, or is owned or controlled by one or more Persons that are:
(A) the subject of any Sanctions, or
(B) located, organized or resident in a country or territory that is the subject of Sanctions (including, without limitation, the so-called Donetsk People’s Republic, the so-called Luhansk People’s Republic, the Crimea Region and the non-government controlled areas of the Zaporizhzhia and Kherson Regions of Ukraine, Cuba, Iran, North Korea, Syria or any other Covered Region of Ukraine identified pursuant to Executive Order 14065).
(ii) The Selling Shareholder will not, directly or indirectly, use the proceeds of the offering, or lend, contribute or otherwise make available such proceeds to any subsidiary, joint venture partner or other Person:
(A) to fund or facilitate any activities or business of or with any Person or in any country or territory that, at the time of such funding or facilitation, is the subject of Sanctions; or
(B) in any other manner that will result in a violation of Sanctions by any Person (including any Person participating in the offering, whether as underwriter, advisor, investor or otherwise).
(iii) For the past five years, the Selling Shareholder has not knowingly engaged in, is not now knowingly engaged in, and will not engage in, any dealings or transactions with any Person, or in any country or territory, that at the time of the dealing or transaction is or was the subject of Sanctions.
(a) None of the Selling Shareholder or any of its subsidiaries, or, to the knowledge of the Selling Shareholder, any director, officer, employee, agent, representative, or affiliate thereof has taken or will take any action in furtherance of an offer, payment, promise to pay, or authorization or approval of the payment giving or receipt of money, property, gifts or anything else of value, directly or indirectly, to any Government Official in order to influence official action, or to any person in violation of any applicable anti-corruption laws; (b) the Selling Shareholder and each of its subsidiaries have conducted their businesses in compliance with applicable anti-corruption laws and have instituted and maintained and will continue to maintain policies and procedures reasonably designed to promote and achieve compliance with such laws and with the representations and warranties contained herein; and (c) neither the Selling Shareholder nor any of its subsidiaries will use, directly or indirectly, the proceeds of the offering in furtherance of an offer, payment, promise to pay, or authorization of the payment or giving of money, or anything else of value, to any person in violation of any applicable anti-corruption laws.
(v) The operations of the Selling Shareholder and each of its subsidiaries are and have been conducted at all times in compliance with all applicable Anti-Money Laundering Laws, and no action, suit or proceeding by or before any court or governmental agency, authority or body or any arbitrator involving the Selling Shareholder or any of its subsidiaries with respect to the Anti-Money Laundering Laws is pending or, to the best knowledge of the Selling Shareholder, threatened.
(j) The Selling Shareholder represents and warrants that it is not (i) an employee benefit plan subject to Title I of ERISA, (ii) a plan or account subject to Section 4975 of the Code or (iii) an entity deemed to hold “plan assets” of any such plan or account under Section 3(42) of ERISA, 29 C.F.R. 2510.3-101, or otherwise.
(k) The Selling Shareholder represents that no stamp, documentary, issuance, registration, transfer, withholding, capital gains, income or other taxes or duties are payable by or on behalf of the Underwriter, the Company or any of its subsidiaries or to any taxing authority thereof or therein in connection with (i) the execution, delivery or consummation of this Agreement by the Selling Shareholder, (ii) the sale and delivery of the Shares by the Selling Shareholder to the Underwriter or purchasers procured by the Underwriter, or (iii) the resale and delivery of such Shares by the Underwriter in the manner contemplated herein.
(l) The Selling Shareholder has the power to submit, and pursuant to Section 20(a) has, to the extent permitted by law, legally, validly, effectively and irrevocably submitted, to the jurisdiction of the Specified Courts (as defined in Section 20(a)), and has the power to designate, appoint and empower, and pursuant to Section 20(b), has legally, validly and effectively designated, appointed and empowered an agent for service of process in any suit or proceeding based on or arising under this Agreement in any of the Specified Courts.
Appears in 1 contract
Samples: Underwriting Agreement (U.S. Silica Holdings, Inc.)
Representations and Warranties of the Selling Shareholder. The Selling Shareholder represents and warrants to and agrees with each of the Underwriter Underwriters on the date hereof, on the Closing Date and on each Option Closing Date, if any, that:
(a) This Agreement has been duly authorized, executed and delivered by or on behalf of Neither the Selling Shareholder.
(b) The execution and delivery by the Selling Shareholder of, and nor the performance by the Selling Shareholder of its obligations under, this Agreement will not contravene (i) conflict with, contravene, result in a material breach or violation of, or imposition of any provision lien, charge or encumbrance upon any assets of applicable lawthe Selling Shareholder pursuant to, or constitute a default under any contract, agreement, obligation, covenant or instrument to which the Selling Shareholder (or any of its assets) is subject or bound; (ii) result, to the organizational documents extent applicable, in the violation of the Selling Shareholderany statute, (iii) any agreement or other instrument binding upon the Selling Shareholder or (iv) any law, rule, regulation, judgment, order or decree of any governmental body, regulatory or administrative agency or court having jurisdiction over the Selling Shareholder; or (iii) result, to the extent applicable, in any violation of the provisions of the certificate of incorporation or bylaws (or other organizational documents) of the Selling Shareholder, if applicable; except in the case of clauses (i), (iii) and (ivii) as above, for any such breach, violation, lien, charge or encumbrance that would not, singly individually or in the aggregate, reasonably be expected to have a material adverse effect on the ability of the Selling Shareholder to consummate the transactions contemplated herein. To the Selling Shareholder’s ability to perform its obligations under this Agreement. No knowledge, no consent, approval, authorization or order of, or qualification with, any governmental body, body or agency or court is required for the performance by the Selling Shareholder of its obligations under this Agreement, except (i) such as may have already been obtainedobtained or made or as may be required (i) in connection with registration of the Shares under the Securities Act, (ii) such as may be required by the securities or Blue Sky blue sky laws of the various states jurisdictions in connection with the offer and sale of the Shares or (iii) such that would not reasonably be expected to have a material adverse effect in connection with the listing of the Shares on the ability of Exchange or under the Selling Shareholder to consummate the transactions contemplated by this AgreementFINRA Rules.
(cb) The Selling Shareholder has, has and immediately prior to the Closing Date and on the Initial each Option Closing Date, as the Repurchase Closing Date and any Option Closing Date case may be, the Selling Shareholder will have, valid marketable title to, or a valid “security entitlement” entitlement (within the meaning of Section Sections 8-102 and 8-501 of the New York Uniform Commercial Code in respect of, (the “UCC”) to the Shares to be sold by maintained in a securities account on the Selling Shareholder books of The Depository Trust Company (“DTC”) free and clear of all any lien, claim or encumbrance, and assuming that each Underwriter acquires its interest in the Shares it has purchased without notice of any adverse claim (within the meaning of Section 8-105 of the UCC), upon the crediting of such Shares to the securities account of such Underwriter maintained with DTC and payment therefor by such Underwriter, as provided herein, such Underwriter will have acquired a security interestsentitlement to such Shares, claimsand no action based on any adverse claim may be asserted against such Underwriter with respect to such security entitlement, liens, equities or other encumbrances and the legal right and power, and all authorization and approval required by law, to enter into this Agreement and to sell, transfer and deliver the Shares to be sold by the Selling Shareholder or a security entitlement in respect of such SharesShareholder.
(d) Upon payment for the Shares to be 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 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 successfully 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.
(ec) The Selling Shareholder has delivered to the Underwriter an executed lock-up agreement in substantially the form attached hereto as Exhibit A (the “Lock-up Agreement”).
(f) The Selling Shareholder has not takennot, directly or indirectly, taken any action designed to or which will constitute, or that could might reasonably be expected to cause or result in any the stabilization or manipulation of the price of the Shares in violation of Regulation M under the Exchange ActShares.
(gi) The Selling Shareholder is not prompted by any information concerning the Company or its subsidiaries which is not set forth in the Registration Statement, the Time of Sale Prospectus or the Prospectus to sell its Shares pursuant to this Agreement.
(h) (i) the Registration Statement, when it became effectiveeffective and at the time of execution of this Agreement, 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 in order to make the statements therein not misleading, ; (ii) the Time of Sale Prospectus does at the Time of Sale did not, and at the time of Closing Date and, if applicable, at each sale of the Shares in connection with the offering when the Prospectus is not yet available to prospective purchasers and at the Initial Option Closing Date, the Repurchase Closing Date and any Option Closing Date (as defined in Section 5), the Time of Sale Prospectus, as then amended or supplemented by the Companysupplemented, if applicable, will not, contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading, and (iii) the Prospectus does not contain and, as amended or supplemented, if applicable, will not contain any untrue statement of a material fact or omit to state a material fact necessary order to make the statements therein, in the light of the circumstances under which they were made, not misleading; provided and (iii) the Prospectus, as of the date it is filed with the Commission pursuant to Rule 424(b) under the Securities Act, at the Closing Date and at each Option Closing Date, if any, will not contain any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading; provided, however, that the representations and warranties set forth in this paragraph 2(gSection 2(d) are limited in all respects exclusively to statements or omissions of material fact made in reliance upon and in conformity with information relating to the Selling Shareholder furnished to the Company in writing by or on behalf of the Selling Shareholder expressly for use in the Registration Statement, the Time of Sale Prospectus and the Prospectus, the Prospectus or any amendments or supplements thereto, it being understood and agreed that for purposes of this Agreement, the only such information furnished by or on behalf of the Selling Shareholder consists of the legal name and address of, and the number of shares beneficially owned and offered by the Selling Shareholder, the number of offered shares and the address and other information with respect to the Selling Shareholder (excluding percentages) which appear in the Registration Statement or any Prospectus in the table (and corresponding footnotes) that appears under the caption “The Principal and Selling ShareholderShareholders” in the Time of Sale Prospectus and Prospectus (the “Selling Shareholder Information”).
(ie) (i) None The Selling Shareholder has been duly organized and is validly existing and in good standing under the laws of its jurisdiction of organization, is duly qualified to do business and is in good standing in each jurisdiction in which its ownership or lease of property or the conduct of its businesses requires such qualification, and has all power and authority necessary to own or hold its properties and to conduct the businesses in which it is engaged, except where the failure to be so qualified or in good standing or have such power or authority would not, individually or in the aggregate, have a material adverse effect on the ability of the Selling Shareholder or to consummate the transactions contemplated herein.
(f) In connection with the Company and its subsidiaries, neither the Selling Shareholder nor any of its subsidiaries, ordirectors, officers, employees or authorized agents has, directly or indirectly, violated any applicable provision of the Foreign Corrupt Practices Act of 1977, as amended, or any applicable law or regulation implementing the OECD Convention on Combating Bribery of Foreign Public Officials in International Business Transactions, or committed an offence under the Xxxxxxx Xxx 0000 of the United Kingdom, to the knowledge of the Selling Shareholderextent applicable, 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, the so-called Donetsk People’s Republic, the so-called Luhansk People’s Republic, the Crimea Region and the non-government controlled areas of the Zaporizhzhia and Kherson Regions of Ukraine, Cuba, Iran, North Korea, Syria or any other Covered Region of Ukraine identified pursuant to Executive Order 14065)applicable anti-bribery or anti-corruption law.
(iig) The Selling Shareholder will not, not directly or indirectly, indirectly use the proceeds of the offeringoffering of the Shares hereunder, or lend, contribute or otherwise make available such proceeds to any subsidiary, joint venture partner or other Person:
(A) to fund person or facilitate any activities or business of or with any Person or in any country or territory that, at the time of such funding or facilitation, is the subject of Sanctions; or
(B) in any other manner that will result in a violation of Sanctions by any Person (including any Person participating in the offering, whether as underwriter, advisor, investor or otherwise).
(iii) For the past five years, the Selling Shareholder has not knowingly engaged in, is not now knowingly engaged in, and will not engage in, any dealings or transactions with any Person, or in any country or territory, that at the time of the dealing or transaction is or was the subject of Sanctions.
(a) None of the Selling Shareholder or any of its subsidiaries, or, to the knowledge of the Selling Shareholder, any director, officer, employee, agent, representative, or affiliate thereof has taken or will take any action in furtherance of an offer, payment, promise to pay, or authorization or approval of the payment giving or receipt of money, property, gifts or anything else of value, directly or indirectly, to any Government Official in order to influence official action, or to any person in violation of any applicable anti-corruption laws; (b) the Selling Shareholder and each of its subsidiaries have conducted their businesses in compliance with applicable anti-corruption laws and have instituted and maintained and will continue to maintain policies and procedures reasonably designed to promote and achieve compliance with such laws and with the representations and warranties contained herein; and (c) neither the Selling Shareholder nor any of its subsidiaries will use, directly or indirectly, the proceeds of the offering entity 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 a manner that would cause a material violation by the Underwriters of any applicable anti-corruption lawsMoney Laundering Laws.
(vh) The operations of the Selling Shareholder and each of its subsidiaries are and have been conducted at all times in 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 Neither the Selling Shareholder, threatenednor, to the Selling Shareholder’s knowledge, any of its subsidiaries, nor any director, officer, employee, authorized agent or controlled affiliated, in each case is currently the subject or target of any Sanctions. The Selling Shareholder will not directly or indirectly use the proceeds of the offering of the Shares hereunder, or lend, contribute or otherwise make available such proceeds to any subsidiary, joint venture partner or other person or entity (i) to fund or facilitate any activities of or business with any person, or in any country or territory, that, at the time of such funding, is the subject or the target of Sanctions, or (ii) in any other manner, in either case as will result in a violation of Sanctions by any person participating in the transaction, whether as underwriter, advisor, investor or otherwise of such sanctions in connection with the transactions contemplated by this Agreement.
(ji) The sale of the Shares by the Selling Shareholder represents and warrants that it pursuant to this Agreement is not (i) an employee benefit plan subject to Title I of ERISA, (ii) a plan or account subject to Section 4975 of the Code or (iii) an entity deemed to hold “plan assets” of prompted by any such plan or account under Section 3(42) of ERISA, 29 C.F.R. 2510.3-101, or otherwise.
(k) The Selling Shareholder represents that no stamp, documentary, issuance, registration, transfer, withholding, capital gains, income or other taxes or duties are payable by or on behalf of the Underwriter, material information concerning the Company or any of its subsidiaries or to any taxing authority thereof or therein in connection with (i) the execution, delivery or consummation of this Agreement by the Selling Shareholder, (ii) the sale and delivery of the Shares by the Selling Shareholder to the Underwriter or purchasers procured by the Underwriter, or (iii) the resale and delivery of such Shares by the Underwriter that is not set forth in the manner contemplated hereinTime of Sale Prospectus and the Prospectus.
(l) The Selling Shareholder has the power to submit, and pursuant to Section 20(a) has, to the extent permitted by law, legally, validly, effectively and irrevocably submitted, to the jurisdiction of the Specified Courts (as defined in Section 20(a)), and has the power to designate, appoint and empower, and pursuant to Section 20(b), has legally, validly and effectively designated, appointed and empowered an agent for service of process in any suit or proceeding based on or arising under this Agreement in any of the Specified Courts.
Appears in 1 contract
Samples: Underwriting Agreement (IBEX LTD)
Representations and Warranties of the Selling Shareholder. The Selling Shareholder represents and warrants to and agrees with each of the Underwriter Underwriters that:
(a) Except for the free writing prospectuses, if any, identified in Schedule II hereto, and electronic road shows, if any, furnished to you before first use, the Selling Shareholder has not prepared, used or referred to, and will not, without your prior consent, prepare, use or refer to, any free writing prospectus.
(b) This Agreement has been duly authorized, executed and delivered by or on behalf of the Selling Shareholder.
(bc) The execution and delivery by the Selling Shareholder of, and the performance by the Selling Shareholder of its obligations under, this Agreement will not contravene (i) any provision of applicable law, (ii) the organizational documents certificate of incorporation or by-laws of the Selling Shareholder, or (iii) any agreement or other instrument binding upon the Selling Shareholder or (iv) any judgment, order or decree of any governmental body, agency or court having jurisdiction over the Selling Shareholder, except for such contraventions in the case of (i), ) and (iii) and (iv) as would not, singly or in the aggregate, reasonably be expected to not have a material adverse effect on the Company or its subsidiaries, taken as a whole, or on the Selling Shareholder’s ability to perform its obligations under this Agreementconsummate the transactions contemplated hereby. No consent, approval, authorization or order of, or qualification with, any governmental body, body or agency or court is required for the performance by the Selling Shareholder of its obligations under this Agreement, except (i) such as may have already been obtained, (ii) such as may be required by the securities or Blue Sky laws of the various states in connection with the offer and sale of the Shares or and (iiiii) such that as would not reasonably be expected to have a material adverse effect on the ability of Company or its subsidiaries, taken as a whole, or on the Selling Shareholder Shareholder’s ability to consummate the transactions contemplated by this Agreementhereby.
(cd) The Selling Shareholder hasowns, and on the Initial Closing Date, the Repurchase Closing Date and any 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 ofown, the Shares to be sold by the Selling Shareholder free and clear of all security interests, claims, liens, equities or other encumbrances and has, and on the Closing Date will have, the legal right and power, and all authorization authorizations and approval approvals required by law, to enter into this Agreement and to sell, transfer and deliver the Shares to be sold by the Selling Shareholder or a security entitlement in respect of such SharesShareholder.
(de) Upon payment for the Shares to be sold by the Selling Shareholder pursuant to this Agreement, delivery of such Shares, as directed by the UnderwriterUnderwriters, 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 Underwriters (assuming that neither DTC nor the 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 Underwriter 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 Underwriter 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 account accounts of the Underwriter several Underwriters on the records of DTC will have been made pursuant to the UCC.
(ef) Upon payment for the Shares to be sold to the Underwriters by the Selling Shareholder pursuant to this Agreement, all right, title and interest in the Shares will be transferred to the Underwriters free and clear of all security interests, claims, liens, equities or other encumbrances.
(g) The Selling Shareholder has delivered to no knowledge that the Underwriter an executed lock-up agreement in substantially the form attached hereto as Exhibit A (the “Lock-up Agreement”).
(f) The Selling Shareholder has not taken, directly or indirectly, any action designed to or that could reasonably be expected to cause or result in any stabilization or manipulation representations and warranties of the price Company and Copa Airlines contained in Section 1 are not true and correct, is familiar with the Registration Statement and Prospectus and has no knowledge of any untrue statement of material fact or omission to state a material fact necessary to make the statements therein, in the light of the Shares in violation of Regulation M circumstances under the Exchange Act.
(g) which they were made, not misleading. The Selling Shareholder is not prompted by any information concerning the Company or its subsidiaries which that is not set forth in the Registration Statement, the Time of Sale Prospectus or the Prospectus to sell its Shares pursuant to this Agreement. The liability of the Selling Shareholder for a breach of the representations and warranties contained in this paragraph shall be limited to an amount equal to the aggregate Public Offering Price of the Shares sold by the Selling Shareholder under this Agreement.
(h) (i) the The Registration Statement, when it became effective, did not contain and, as amended or supplemented, if applicable, will not contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading, (ii) the Time of Sale Prospectus does not, and at the time of each sale of the Shares in connection with the offering when the Prospectus is not yet available to prospective purchasers and at the Initial Closing Date, the Repurchase Closing Date and any Option Closing Date (as defined in Section 5), the Time of Sale Prospectus, as then amended or supplemented by the Company, if applicable, will not, contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading, (iii) each broadly available road show, if any, when considered together with the Time of Sale Prospectus, does not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading and (iiiiv) the Prospectus does not contain and, as amended or supplemented, if applicable, will not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading; provided , except that the representations and warranties set forth in this paragraph 2(g2(h) are limited in all respects apply only to statements or omissions made in reliance the Registration Statement, the Time of Sale Prospectus, any broadly available road show or the Prospectus based upon and in conformity with information relating to the Selling Shareholder that is furnished to the Company in writing by the Selling Shareholder expressly for use therein. The liability of the Selling Shareholder for a breach of representations and warranties contained in this paragraph shall be limited to an amount equal to the Registration Statement, aggregate Public Offering Price of the Time of Sale Prospectus, the Prospectus or any amendments or supplements thereto, it being understood and agreed that for purposes of this Agreement, the only information furnished Shares sold by the Selling Shareholder consists of the name of the Selling Shareholder, the number of offered shares and the address and other information with respect to the Selling Shareholder (excluding percentages) which appear in the Registration Statement or any Prospectus in the table (and corresponding footnotes) under the caption “The Selling Shareholder” (the “Selling Shareholder Information”)this Agreement.
(i) (i) None In order to document the Underwriters’ compliance with the reporting and withholding provisions of the Tax Equity and Fiscal Responsibility Act of 1982 with respect to the transactions herein contemplated, the Selling Shareholder or any of its subsidiaries, or, will deliver to the knowledge of Representative prior to or at the Selling Shareholder, any director, officer, employee, agent, representative, Closing Date a properly completed and executed U.S. Treasury Department Form W-9 (or affiliate other applicable form or statement specified by the U.S. Treasury Department regulations in lieu 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, the so-called Donetsk People’s Republic, the so-called Luhansk People’s Republic, the Crimea Region and the non-government controlled areas of the Zaporizhzhia and Kherson Regions of Ukraine, Cuba, Iran, North Korea, Syria or any other Covered Region of Ukraine identified pursuant to Executive Order 14065).
(iij) 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 Except as disclosed by any Person (including any Person participating in the offering, whether as underwriter, advisor, investor or otherwise).
(iii) For the past five years, the Selling Shareholder has not knowingly engaged in, is not now knowingly engaged in, and will not engage in, any dealings or transactions with any Person, or in any country or territory, that at the time of the dealing or transaction is or was the subject of Sanctions.
(a) None of the Selling Shareholder or any of its subsidiaries, or, writing to the knowledge of the Selling ShareholderRepresentative, any director, officer, employee, agent, representative, or affiliate thereof has taken or will take any action in furtherance of an offer, payment, promise to pay, or authorization or approval of the payment giving or receipt of money, property, gifts or anything else of value, directly or indirectly, to any Government Official in order to influence official action, or to any person in violation of any applicable anti-corruption laws; (b) the Selling Shareholder and each of its subsidiaries have conducted their businesses in compliance with applicable anti-corruption laws and have instituted and maintained and will continue to maintain policies and procedures reasonably designed to promote and achieve compliance with such laws and with the representations and warranties contained herein; and (c) neither the Selling Shareholder nor any of his, her or its subsidiaries will useaffiliates directly, directly or indirectlyindirectly through one or more intermediaries, controls, or is controlled by, or is under common control with, or has any other association with (within the proceeds meaning of Article 1(q) of the offering in furtherance of an offer, payment, promise to pay, or authorization By-laws of the payment or giving of moneyFinancial Industry Regulatory Authority, or anything else of value, to any person in violation of any applicable anti-corruption laws.
Inc. (v) The operations of the Selling Shareholder and each of its subsidiaries are and have been conducted at all times in compliance with all applicable Anti-Money Laundering Laws, and no action, suit or proceeding by or before any court or governmental agency, authority or body or any arbitrator involving the Selling Shareholder or any of its subsidiaries with respect to the Anti-Money Laundering Laws is pending or, to the best knowledge of the Selling Shareholder, threatened.
(j) The Selling Shareholder represents and warrants that it is not (i) an employee benefit plan subject to Title I of ERISA, (ii) a plan or account subject to Section 4975 of the Code or (iii) an entity deemed to hold “plan assets” of any such plan or account under Section 3(42) of ERISA, 29 C.F.R. 2510.3-101, or otherwise.
(k) The Selling Shareholder represents that no stamp, documentary, issuance, registration, transfer, withholding, capital gains, income or other taxes or duties are payable by or on behalf of the Underwriter, the Company or any of its subsidiaries or to any taxing authority thereof or therein in connection with (i) the execution, delivery or consummation of this Agreement by the Selling Shareholder, (ii) the sale and delivery of the Shares by the Selling Shareholder to the Underwriter or purchasers procured by the Underwriter, or (iii) the resale and delivery of such Shares by the Underwriter in the manner contemplated herein.
(l) The Selling Shareholder has the power to submit, and pursuant to Section 20(a) has, to the extent permitted by law, legally, validly, effectively and irrevocably submitted, to the jurisdiction of the Specified Courts (as defined in Section 20(aFINRA”)), and has the power to designate, appoint and empower, and pursuant to Section 20(b), has legally, validly and effectively designated, appointed and empowered an agent for service of process in any suit or proceeding based on or arising under this Agreement in any member firm of the Specified CourtsFINRA.
Appears in 1 contract
Representations and Warranties of the Selling Shareholder. The Selling Shareholder represents and warrants to and agrees with the Underwriter that:
(a) This Agreement has been duly authorized, executed and delivered by or on behalf of the Selling Shareholder.
(b) The execution and delivery of this Agreement and the sale and delivery of the Shares to be sold by the Selling Shareholder of, and the performance consummation of the transactions contemplated herein and compliance by the Selling Shareholder of with its obligations under, this Agreement will not contravene hereunder (i) do not and will not, whether with or without the giving of notice or passage of time or both, conflict with or constitute a breach of or default under, any provision contract, indenture, mortgage, deed of applicable lawtrust, loan or credit agreement, note, license, lease or other agreement or instrument to which the Selling Shareholder is a party or by which the Selling Shareholder may be bound, or result in the creation or imposition of any tax, lien, charge or encumbrance upon the Shares to be sold by the Selling Shareholder, (ii) nor will such action result in any violation of (A) the provisions of the charter or by-laws or other organizational documents instrument of the Selling Shareholder, if applicable, or (iiiB) any agreement or other instrument binding upon the Selling Shareholder or (iv) any applicable treaty, law, statute, rule, regulation, judgment, order order, writ or decree of any governmental bodygovernment, agency government instrumentality or court court, domestic or foreign, having jurisdiction over the Selling Shareholder, Shareholder or any of its properties; except in the case of (i), (iii) and (iv) as would not, singly or in the aggregate, reasonably be expected to have a material adverse effect on the Selling Shareholder’s ability to perform its obligations under this Agreement. 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 clause (i) or clause (ii)(B), for such conflicts, breaches, violations or defaults as may have already been obtained, (ii) such as may be required by the securities or Blue Sky laws of the various states in connection with the offer and sale of the Shares or (iii) such that would not reasonably be expected to have a impair in any material adverse effect on respect the ability consummation of the Selling Shareholder to consummate the transactions contemplated by this AgreementShareholder‘s obligations hereunder and thereunder.
(c) The Selling Shareholder has, and on the Initial Closing Date, the Repurchase Closing Date and any Option Closing Date will have, valid good title to, or a valid “security entitlement” within the meaning of Section 8-501 of the New York Uniform Commercial Code in respect of, to the Shares to be sold by the Selling Shareholder free and clear of all security interests, claims, liens, equities or other encumbrances and the legal right and power, and all authorization and approval required by law, to enter into this Agreement and to sell, transfer and deliver the Shares to be sold by the Selling Shareholder or a valid security entitlement in respect of such Shares.
(d) Upon payment of the purchase price for the Shares to be sold by the Selling Shareholder pursuant to this Agreement, delivery of such Shares, as directed by the Underwriter, to Cede & Co. (“Cede”) or such other nominee as may be designated by the The Depository Trust Company (“DTC”) (unless delivery of such Shares is unnecessary because such Shares are already in possession of Cede or such nominee), registration of such Shares in the name of Cede or such other nominee (unless registration of such Shares is unnecessary because such Shares are already registered in the name of Cede or such nominee), and the crediting of such Shares on the books of DTC to securities accounts (within the meaning of Section 8-501(a) of the Underwriter UCC) of the Underwriter, (assuming that neither DTC nor the such Underwriter has notice of does not have any “adverse claim (claim” within the meaning of Section 8-105 of the New York Uniform Commercial Code then in effect in the State of New York (the “UCC”)) to such Shares), (A) DTC shall be a “protected purchaser” of such Shares within the meaning of Section 8-303 of the UCC, (Bi) under Section 8-501 of the UCC, the Underwriter will acquire a valid “security entitlement entitlement” in respect of such Shares and (Cii) no action (whether framed in conversion, replevin, constructive trust, equitable lien, or other theory) based on any “adverse claim”, ,” within the meaning of Section 8-102 of the UCC, to such Shares may be successfully 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 (if necessary) and crediting occur, (xA) such Shares will have been registered in the name of Cede or another nominee designated by DTC, in each case on the Company’s share registry in accordance with its certificate of incorporation, bylaws and applicable law, (yB) DTC will be registered as a “clearing corporation,” within the meaning of Section 8-102 of the UCC and UCC, (zC) appropriate entries to the account accounts of the Underwriter on the records of DTC will have been made pursuant to the UCC, (D) to the extent DTC, or any other securities intermediary which acts as “clearing corporation” with respect to the Shares, maintains any “financial asset” (as defined in Section 8-102(a)(9) of the UCC) in a clearing corporation pursuant to Section 8-111 of the UCC, the rules of such clearing corporation may affect the rights of DTC or such securities intermediaries and the ownership interest of the Underwriter, (E) claims of creditors of DTC or any other securities intermediary or clearing corporation may be given priority to the extent set forth in Section 8-511(b) and 8-511(c) of the UCC and (F) if at any time DTC or other securities intermediary does not have sufficient Shares to satisfy claims of all of its entitlement holders with respect thereto then all holders will share pro rata in the Shares then held by DTC or such securities intermediary.
(e) The Selling Shareholder has delivered to the Underwriter an executed lock-up agreement in substantially the form attached hereto as Exhibit A (the “Lock-up Agreement”).
(f) The Selling Shareholder has not taken, and will not take, directly or indirectly, any action which is designed to or that could reasonably which has constituted or would be expected to cause or result in any stabilization or manipulation of the price of any equity security, or any securities convertible into or exchangeable for, or that represent a right to receive an equity security or any equity-linked securities of the Company.
(f) No filing with, or consent, approval, authorization, order, registration, qualification or decree of any arbitrator, court, governmental body, regulatory body, administrative agency or other authority, body or agency, domestic or foreign, is necessary or required for the performance by the Selling Shareholder of its obligations hereunder, or in connection with the sale and delivery of the Shares in violation hereunder or the consummation of Regulation M the transactions contemplated by this Agreement, except such as have been already obtained or as may be required under the Securities Act and the Securities Act Regulations, the rules of the New York Stock Exchange Actor state securities laws.
(g) The Other than as set forth on Schedule II hereto, the Selling Shareholder has not prepared or had prepared on its behalf or used or referred to, any free writing prospectus, and has not distributed any written materials in connection with the offer or sale of the Shares.
(h) With the exception of Avalon Advisors, LLC, Duff & Xxxxxx, Xxxxxxx X’Xxxx + Partners, L.P. and TCW Funds Distributors and certain limited partners invested in funds affiliated with the Carlyle Group, neither the Selling Shareholder nor, to the Selling Shareholder’s knowledge, any of its affiliates directly, or indirectly through one or more intermediaries, controls, or is not prompted by controlled by, or is under common control with any information concerning member firm of the Company Financial Industry Regulatory Authority (“FINRA”) or its subsidiaries which is not set forth a person associated with a member (within the meaning of the FINRA By-Laws) of FINRA.
(i) In respect of any statements in the Registration Statement, or omissions from the Time of Sale Prospectus or the Prospectus to sell its Shares pursuant to this Agreement.
(h) (i) the Registration Statement, when it became effective, did not contain and, as amended or supplemented, if applicable, will not contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading, (ii) the Time of Sale Prospectus does not, and at the time of each sale of the Shares in connection with the offering when the Prospectus is not yet available to prospective purchasers and at the Initial Closing Date, the Repurchase Closing Date and any Option Closing Date (as defined in Section 5), the Time of Sale Prospectus, as then amended or supplemented by the Company, if applicable, will not, contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading, and (iii) the Prospectus does not contain and, as amended or supplemented, if applicable, will not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading; provided that the representations and warranties set forth in this paragraph 2(g) are limited in all respects to statements or omissions made in reliance upon and in conformity with information relating to the Selling Shareholder furnished to the Company in writing by or on behalf of the Selling Shareholder expressly specifically for use in the Registration Statementinclusion therein, the Time of Sale Prospectus, Selling Shareholder hereby makes the Prospectus or any amendments or supplements theretosame representations and warranties with respect to such information as the Company makes under paragraph 1(b) hereof, it being understood and agreed that for purposes such information consists only of this Agreement, the only its name and any information furnished by the Selling Shareholder consists relating to its holdings of the name Company’s common stock (including for the avoidance of doubt the Selling Shareholder, the number of offered shares and the address and other information with respect to the Selling Shareholder (excluding percentages) which appear in the Registration Statement or any Prospectus set forth in the table and footnotes thereto (except for percentages) in “Selling Stockholder”) as set forth in the Time of Sale Prospectus and corresponding footnotes) under the caption “The Selling Shareholder” Prospectus (collectively, the “Selling Shareholder Information”).
(i) (i) None of the Selling Shareholder or any of its subsidiaries, or, to the knowledge of the Selling Shareholder, any director, officer, employee, agent, representative, or affiliate thereof, is a Person that is, or is owned or controlled by one or more Persons that are:
(A) the subject of any Sanctions, or
(B) located, organized or resident in a country or territory that is the subject of Sanctions (including, without limitation, the so-called Donetsk People’s Republic, the so-called Luhansk People’s Republic, the Crimea Region and the non-government controlled areas of the Zaporizhzhia and Kherson Regions of Ukraine, Cuba, Iran, North Korea, Syria or any other Covered Region of Ukraine identified pursuant to Executive Order 14065).
(iij) The Selling Shareholder will not, directly deliver to the Underwriter prior to or indirectly, use at the proceeds Time of the offering, or lend, contribute or otherwise make available such proceeds to any subsidiary, joint venture partner Sale a properly completed and executed United States Treasury Department Form W-9 (or other Person:
(A) to fund applicable form or facilitate any activities or business of or with any Person or statement specified by Treasury Department regulations 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 lieu thereof). Any certificate signed by any Person (including any Person participating in the offering, whether as underwriter, advisor, investor or otherwise).
(iii) For the past five years, the Selling Shareholder has not knowingly engaged in, is not now knowingly engaged in, and will not engage in, any dealings or transactions with any Person, or in any country or territory, that at the time officer of the dealing or transaction is or was the subject of Sanctions.
(a) None of the Selling Shareholder or any of its subsidiaries, or, to the knowledge of the Selling Shareholder, any director, officer, employee, agent, representative, or affiliate thereof has taken or will take any action in furtherance of an offer, payment, promise to pay, or authorization or approval of the payment giving or receipt of money, property, gifts or anything else of value, directly or indirectly, to any Government Official in order to influence official action, or to any person in violation of any applicable anti-corruption laws; (b) the Selling Shareholder and each of its subsidiaries have conducted their businesses in compliance with applicable anti-corruption laws and have instituted and maintained and will continue to maintain policies and procedures reasonably designed to promote and achieve compliance with such laws and with the representations and warranties contained herein; and (c) neither the Selling Shareholder nor any of its subsidiaries will use, directly or indirectly, the proceeds of the offering in furtherance of an offer, payment, promise to pay, or authorization of the payment or giving of money, or anything else of value, to any person in violation of any applicable anti-corruption laws.
(v) The operations of the Selling Shareholder and each of its subsidiaries are and have been conducted at all times in compliance with all applicable Anti-Money Laundering Laws, and no action, suit or proceeding by or before any court or governmental agency, authority or body or any arbitrator involving the Selling Shareholder or any of its subsidiaries with respect to the Anti-Money Laundering Laws is pending or, to the best knowledge of the Selling Shareholder, threatened.
(j) The Selling Shareholder represents and warrants that it is not (i) an employee benefit plan subject to Title I of ERISA, (ii) a plan or account subject to Section 4975 of the Code or (iii) an entity deemed to hold “plan assets” of any such plan or account under Section 3(42) of ERISA, 29 C.F.R. 2510.3-101, or otherwise.
(k) The Selling Shareholder represents that no stamp, documentary, issuance, registration, transfer, withholding, capital gains, income or other taxes or duties are payable by or on behalf of the Underwriter, the Company or any of its subsidiaries delivered to the Underwriter or to any taxing authority thereof or therein in connection with (i) counsel for the execution, delivery or consummation of this Agreement Underwriter shall be deemed a representation and warranty by the Selling Shareholder, (ii) Company to the sale Underwriter as to the matters covered thereby; and delivery any certificate signed by or on behalf of the Shares Selling Shareholder as such and delivered to the Underwriter or to counsel for the Underwriter pursuant to Section 6 hereof shall be deemed a representation and warranty by the Selling Shareholder to the Underwriter or purchasers procured by the Underwriter, or (iii) the resale and delivery of such Shares by the Underwriter in the manner contemplated herein.
(l) The Selling Shareholder has the power to submit, and pursuant to Section 20(a) has, as to the extent permitted by law, legally, validly, effectively and irrevocably submitted, to the jurisdiction of the Specified Courts (as defined in Section 20(a)), and has the power to designate, appoint and empower, and pursuant to Section 20(b), has legally, validly and effectively designated, appointed and empowered an agent for service of process in any suit or proceeding based on or arising under this Agreement in any of the Specified Courtsmatters covered thereby.
Appears in 1 contract
Samples: Underwriting Agreement (Booz Allen Hamilton Holding Corp)
Representations and Warranties of the Selling Shareholder. The Selling Shareholder represents and warrants to and agrees with each of the Underwriter Underwriters that:
(a) Except for the free writing prospectuses, if any, identified in Schedule II hereto, and electronic road shows, if any, furnished to you before first use, the Selling Shareholder has not prepared, used or referred to, and will not, without your prior consent, prepare, use or refer to, any free writing prospectus.
(b) This Agreement has been duly authorized, executed and delivered by or on behalf of the Selling Shareholder.
(bc) The execution and delivery by the Selling Shareholder of, and the performance by the Selling Shareholder of its obligations under, this Agreement will not contravene (i) any provision of applicable law, (ii) the organizational documents certificate of incorporation or by-laws of the Selling Shareholder, or (iii) any agreement or other instrument binding upon the Selling Shareholder or (iv) any judgment, order or decree of any governmental body, agency or court having jurisdiction over the Selling Shareholder, except for such contraventions in the case of (i), ) and (iii) and (iv) as would not, singly or in the aggregate, reasonably be expected to not have a material adverse effect on the Company or its subsidiaries, taken as a whole, or on the Selling Shareholder’s 's ability to perform its obligations under this Agreementconsummate the transactions contemplated hereby. No consent, approval, authorization or order of, or qualification with, any governmental body, body or agency or court is required for the performance by the Selling Shareholder of its obligations under this Agreement, except (i) such as may have already been obtained, (ii) such as may be required by the securities or Blue Sky laws of the various states in connection with the offer and sale of the Shares or and (iiiii) such that as would not reasonably be expected to have a material adverse effect on the ability of Company or its subsidiaries, taken as a whole, or on the Selling Shareholder Shareholder's ability to consummate the transactions contemplated by this Agreementhereby.
(cd) The Selling Shareholder hasowns, and on the Initial Closing Date, the Repurchase Closing Date and any 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 ofown, the Shares to be sold by the Selling Shareholder free and clear of all security interests, claims, liens, equities or other encumbrances and has, and on the Closing Date will have, the legal right and power, and all authorization authorizations and approval approvals required by law, to enter into this Agreement and to sell, transfer and deliver the Shares to be sold by the Selling Shareholder or a security entitlement in respect of such SharesShareholder.
(de) Upon payment for the Shares to be sold by the Selling Shareholder pursuant to this Agreement, delivery of such Shares, as directed by the UnderwriterUnderwriters, to Cede & Co. (“Cede”"CEDE") or such other nominee as may be designated by the Depository Trust Company (“"DTC”"), registration of such Shares in the name of Cede or such other nominee and the crediting of such Shares on the books of DTC to securities accounts of the Underwriter Underwriters (assuming that neither DTC nor the 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 Underwriter 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 Underwriter 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 '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 accounts of the Underwriter several Underwriters on the records of DTC will have been made pursuant to the UCC.
(ef) Upon payment for the Shares to be sold to the Underwriters by the Selling Shareholder pursuant to this Agreement, all right, title and interest in the Shares will be transferred to the Underwriters free and clear of all security interests, claims, liens, equities or other encumbrances.
(g) The Selling Shareholder has delivered to no knowledge that the Underwriter an executed lock-up agreement in substantially the form attached hereto as Exhibit A (the “Lock-up Agreement”).
(f) The Selling Shareholder has not taken, directly or indirectly, any action designed to or that could reasonably be expected to cause or result in any stabilization or manipulation representations and warranties of the price Company and Copa Airlines contained in Section 1 are not true and correct, is familiar with the Registration Statement and Prospectus and has no knowledge of any untrue statement of material fact or omission to state a material fact necessary to make the statements therein, in the light of the Shares in violation of Regulation M circumstances under the Exchange Act.
(g) which they were made, not misleading. The Selling Shareholder is not prompted by any information concerning the Company or its subsidiaries which that is not set forth in the Registration Statement, the Time of Sale Prospectus or the Prospectus to sell its Shares pursuant to this Agreement. The liability of the Selling Shareholder for a breach of the representations and warranties contained in this paragraph shall be limited to an amount equal to the aggregate Public Offering Price of the Shares sold by the Selling Shareholder under this Agreement.
(h) (i) the The Registration Statement, when it became effective, did not contain and, as amended or supplemented, if applicable, will not contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading, (ii) the Time of Sale Prospectus does not, and at the time of each sale of the Shares in connection with the offering when the Prospectus is not yet available to prospective purchasers and at the Initial Closing Date, the Repurchase Closing Date and any Option Closing Date (as defined in Section 5), the Time of Sale Prospectus, as then amended or supplemented by the Company, if applicable, will not, contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading, misleading and (iii) the Prospectus does not contain and, as amended or supplemented, if applicable, will not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading; provided , except that the representations and warranties set forth in this paragraph 2(g2(h) are limited in all respects apply only to statements or omissions made in reliance the Registration Statement, the Time of Sale Prospectus or the Prospectus based upon and in conformity with information relating to the Selling Shareholder that is furnished to the Company in writing by the Selling Shareholder expressly for use therein. The liability of the Selling Shareholder for a breach of representations and warranties contained in this paragraph shall be limited to an amount equal to the Registration Statement, aggregate Public Offering Price of the Time of Sale Prospectus, the Prospectus or any amendments or supplements thereto, it being understood and agreed that for purposes of this Agreement, the only information furnished Shares sold by the Selling Shareholder consists of the name of the Selling Shareholder, the number of offered shares and the address and other information with respect to the Selling Shareholder (excluding percentages) which appear in the Registration Statement or any Prospectus in the table (and corresponding footnotes) under the caption “The Selling Shareholder” (the “Selling Shareholder Information”)this Agreement.
(i) (i) None In order to document the Underwriters' compliance with the reporting and withholding provisions of the Tax Equity and Fiscal Responsibility Act of 1982 with respect to the transactions herein contemplated, the Selling Shareholder or any of its subsidiaries, or, will deliver to the knowledge of Representatives prior to or at the Selling Shareholder, any director, officer, employee, agent, representative, Closing Date a properly completed and executed U.S. Treasury Department Form W-9 (or affiliate other applicable form or statement specified by the U.S. Treasury Department regulations in lieu 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, the so-called Donetsk People’s Republic, the so-called Luhansk People’s Republic, the Crimea Region and the non-government controlled areas of the Zaporizhzhia and Kherson Regions of Ukraine, Cuba, Iran, North Korea, Syria or any other Covered Region of Ukraine identified pursuant to Executive Order 14065).
(iij) 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 Except as disclosed by any Person (including any Person participating in the offering, whether as underwriter, advisor, investor or otherwise).
(iii) For the past five years, the Selling Shareholder has not knowingly engaged in, is not now knowingly engaged in, and will not engage in, any dealings or transactions with any Person, or in any country or territory, that at the time of the dealing or transaction is or was the subject of Sanctions.
(a) None of the Selling Shareholder or any of its subsidiaries, or, writing to the knowledge of the Selling ShareholderRepresentatives, any director, officer, employee, agent, representative, or affiliate thereof has taken or will take any action in furtherance of an offer, payment, promise to pay, or authorization or approval of the payment giving or receipt of money, property, gifts or anything else of value, directly or indirectly, to any Government Official in order to influence official action, or to any person in violation of any applicable anti-corruption laws; (b) the Selling Shareholder and each of its subsidiaries have conducted their businesses in compliance with applicable anti-corruption laws and have instituted and maintained and will continue to maintain policies and procedures reasonably designed to promote and achieve compliance with such laws and with the representations and warranties contained herein; and (c) neither the Selling Shareholder nor any of his, her or its subsidiaries will useaffiliates directly, directly or indirectlyindirectly through one or more intermediaries, controls, or is controlled by, or is under common control with, or has any other association with (within the proceeds meaning of Article 1(q) of the offering in furtherance of an offer, payment, promise to pay, or authorization By-laws of the payment or giving National Association of moneySecurities Dealers, or anything else of value, to any person in violation of any applicable anti-corruption laws.
Inc. (v) The operations of the Selling Shareholder and each of its subsidiaries are and have been conducted at all times in compliance with all applicable Anti-Money Laundering Laws, and no action, suit or proceeding by or before any court or governmental agency, authority or body or any arbitrator involving the Selling Shareholder or any of its subsidiaries with respect to the Anti-Money Laundering Laws is pending or, to the best knowledge of the Selling Shareholder, threatened.
(j) The Selling Shareholder represents and warrants that it is not (i) an employee benefit plan subject to Title I of ERISA, (ii) a plan or account subject to Section 4975 of the Code or (iii) an entity deemed to hold “plan assets” of any such plan or account under Section 3(42) of ERISA, 29 C.F.R. 2510.3-101, or otherwise.
(k) The Selling Shareholder represents that no stamp, documentary, issuance, registration, transfer, withholding, capital gains, income or other taxes or duties are payable by or on behalf of the Underwriter, the Company or any of its subsidiaries or to any taxing authority thereof or therein in connection with (i) the execution, delivery or consummation of this Agreement by the Selling Shareholder, (ii) the sale and delivery of the Shares by the Selling Shareholder to the Underwriter or purchasers procured by the Underwriter, or (iii) the resale and delivery of such Shares by the Underwriter in the manner contemplated herein.
(l) The Selling Shareholder has the power to submit, and pursuant to Section 20(a) has, to the extent permitted by law, legally, validly, effectively and irrevocably submitted, to the jurisdiction of the Specified Courts (as defined in Section 20(a"NASD")), and has the power to designate, appoint and empower, and pursuant to Section 20(b), has legally, validly and effectively designated, appointed and empowered an agent for service of process in any suit or proceeding based on or arising under this Agreement in any member firm of the Specified CourtsNASD.
Appears in 1 contract
Representations and Warranties of the Selling Shareholder. The Selling Shareholder represents and warrants to and agrees with the Underwriter that:
(a) This Agreement has been duly authorized, executed and delivered by or on behalf of the Selling Shareholder.
(b) The execution and delivery by the Selling Shareholder of, and the performance by the such Selling Shareholder of its obligations under, this Agreement will not contravene (i) any provision of applicable law, or the certificate of incorporation or by-laws of such Selling Shareholder (ii) the organizational documents of the if such Selling ShareholderShareholder is a corporation), (iii) or any agreement or other instrument binding upon the such Selling Shareholder or (iv) any judgment, order or decree of any governmental body, agency or court having jurisdiction over the such Selling Shareholder, Shareholder except in the case of (i), (iii) and (iv) as for such contravention that would not, singly or in the aggregate, reasonably be expected to not have a material adverse effect on the ability of such Selling Shareholder’s ability Shareholder to perform its obligations under this Agreement. No consummate the transactions contemplated hereby, and no consent, approval, authorization or order of, or qualification with, any governmental body, body or agency or court is required for the performance by the such Selling Shareholder of its obligations under this Agreement, except such as (i) such as may have already been obtained, (ii) such as may be required by the securities or Blue Sky laws of the various states in connection with the offer and sale of the Shares Shares, or (iiiii) such that would not reasonably as may be expected to have a material adverse effect on required by the ability rules of the Selling Shareholder to consummate the transactions contemplated by this AgreementFINRA.
(c) The Selling Shareholder has, and on the Initial Closing Date, the Repurchase Closing Date and any 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 by the such Selling Shareholder free and clear of all security interests, claims, liens, equities or other encumbrances and the legal right and power, and all authorization and approval required by law, to enter into this Agreement and to sell, transfer and deliver the Shares to be sold by the such Selling Shareholder or a security entitlement in respect of such Shares.
(d) Upon payment for the Shares to be 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 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 Underwriter will acquire a valid security entitlement in respect of such Shares and (CB) 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 Underwriter with respect to such security entitlement; for purposes of this representation, the such Selling Shareholder may assume that when such payment, delivery and crediting occur, (x) such Shares will have been registered in the name of Cede or another nominee designated by DTC, in each case on the Company’s share registry in accordance with its certificate of incorporation, bylaws (if such Selling Shareholder is a corporation) 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 accounts of the Underwriter on the records of DTC will have been made pursuant to the UCC.
(e) The Selling Shareholder has delivered to the Underwriter an executed lock-up agreement in substantially the form attached hereto as Exhibit A (the “Lock-up Agreement”).
(f) The Selling Shareholder has not taken, directly or indirectly, any action designed to or that could reasonably be expected to cause or result in any stabilization or manipulation of the price of the Shares in violation of Regulation M under the Exchange Act.
(g) The Selling Shareholder is not prompted by any information concerning the Company or its subsidiaries which is not set forth in the Registration Statement, the Time of Sale Prospectus or the Prospectus to sell its Shares pursuant to this Agreement.
(h) (i) the Registration Statement, when it became effective, did not contain and, as amended or supplemented, if applicable, will not contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading, (ii) the Time of Sale Prospectus does not, and at the time of each sale of the Shares in connection with the offering when the Prospectus is not yet available to prospective purchasers and at the Initial Closing Date, the Repurchase Closing Date and any Option Closing Date (as defined in Section 55 hereof), the Time of Sale Prospectus, as then amended or supplemented by the Company, if applicable, will not, contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading, and (iii) each road show, if any, when considered together with the Prospectus 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, as of its date, does not contain and, as amended or supplemented, if applicable, as of the date of such amendment of 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 the light of the circumstances under which they were made, not misleading; provided that the representations and warranties set forth in this paragraph 2(gSection 2(e) are limited in all respects apply only to statements or omissions made in reliance upon and in conformity with information relating to such Selling Shareholder furnished in writing by or on behalf of such Selling Shareholder to the Company expressly for use in the Registration Statement the Time of Sale Prospectus, the Prospectus, each road show, or any other issuer free writing prospectus or any amendment or supplements thereto (it being understood that the only such information relating to the Selling Shareholder furnished to the Company in writing by the Selling Shareholder expressly for use included in the Registration Statement, the Time of Sale Prospectus, the Prospectus Prospectus, each road show, or any amendments other issuer free writing prospectus or any amendment or supplements thereto, it being understood thereto is the beneficial ownership total and agreed that for purposes of this Agreement, information relating thereto included under the only information furnished heading “Selling Stockholder” in the Registration Statement).
(f) The Shares to be sold by the Selling Shareholder consists were issued to such Selling Shareholder or its affiliate pursuant to the Fourth Amended Joint Plan of Reorganization for Tribune Company and its Subsidiaries Proposed by the Debtors, the Official Committee of Unsecured Creditors, Oaktree Capital Management, L.P., Xxxxxx, Xxxxxx & Co., L.P. and JPMorgan Chase Bank, N.A. (in the form confirmed by the order of the name United States Bankruptcy Court for the District of the Selling ShareholderDelaware, dated July 23, 2012 (such order and such plan, including all appendices and exhibits thereto, the number of offered shares and the address and other information with respect to the Selling Shareholder (excluding percentages) which appear in the Registration Statement or any Prospectus in the table (and corresponding footnotes) under the caption “The Selling Shareholder” (the “Selling Shareholder InformationPlan”).
(i) (i) None of the Selling Shareholder or any of its subsidiaries, or, to the knowledge of the Selling Shareholder, any director, officer, employee, agent, representative, or affiliate thereof, is a Person that is, or is owned or controlled by one or more Persons that are:
(A) the subject of any Sanctions, or
(B) located, organized or resident in a country or territory that is the subject of Sanctions (including, without limitation, the so-called Donetsk People’s Republic, the so-called Luhansk People’s Republic, the Crimea Region and the non-government controlled areas of the Zaporizhzhia and Kherson Regions of Ukraine, Cuba, Iran, North Korea, Syria or any other Covered Region of Ukraine identified pursuant to Executive Order 14065).
(iig) The Selling Shareholder will not, directly or indirectly, use the proceeds of the offering, or lend, contribute or otherwise make available such proceeds to any subsidiary, joint venture partner or other Person:
(A) to fund or facilitate any activities or business of or with any Person or in any country or territory that, at the time of such funding or facilitation, is the subject of Sanctions; or
(B) in any other manner that will result in a violation of Sanctions by any Person (including any Person participating in the offering, whether as underwriter, advisor, investor or otherwise).
(iii) For the past five years, the Selling Shareholder has not knowingly engaged in, is not now knowingly engaged in, and will not engage in, any dealings or transactions with any Person, or in any country or territory, that at the time of the dealing or transaction is or was the subject of Sanctions.
(a) None of the Selling Shareholder or any of its subsidiaries, or, to the knowledge of the Selling Shareholder, any director, officer, employee, agent, representative, or affiliate thereof has taken or will take any action in furtherance of an offer, payment, promise to pay, or authorization or approval of the payment giving or receipt of money, property, gifts or anything else of value, directly or indirectly, to any Government Official in order to influence official action, or to any person in violation of any applicable anti-corruption laws; (b) the Selling Shareholder and each of its subsidiaries have conducted their businesses in compliance with applicable anti-corruption laws and have instituted and maintained and will continue to maintain policies and procedures reasonably designed to promote and achieve compliance with such laws and with the representations and warranties contained herein; and (c) neither the Selling Shareholder nor any of its subsidiaries will use, directly or indirectly, the proceeds of the offering in furtherance of an offer, payment, promise to pay, or authorization of the payment or giving of money, or anything else of value, to any person in violation of any applicable anti-corruption laws.
(v) The operations of the Selling Shareholder and each of its subsidiaries are and have been conducted at all times in compliance with all applicable Anti-Money Laundering Laws, and no action, suit or proceeding by or before any court or governmental agency, authority or body or any arbitrator involving the Selling Shareholder or any of its subsidiaries with respect to the Anti-Money Laundering Laws is pending or, to the best knowledge of the Selling Shareholder, threatened.
(j) The Selling Shareholder Stockholder represents and warrants that it is not (i1) an employee benefit plan subject to Title I of the Employee Retirement Income Security Act of 1974, as amended (“ERISA”), (ii2) a plan or account subject to Section 4975 of the Internal Revenue Code of 1986, as amended, or (iii3) an entity deemed to hold “plan assets” of any such plan or account under Section 3(42) of ERISA, 29 C.F.R. 2510.3-101, or otherwise.
(k) The Selling Shareholder represents that no stamp, documentary, issuance, registration, transfer, withholding, capital gains, income or other taxes or duties are payable by or on behalf of the Underwriter, the Company or any of its subsidiaries or to any taxing authority thereof or therein in connection with (i) the execution, delivery or consummation of this Agreement by the Selling Shareholder, (ii) the sale and delivery of the Shares by the Selling Shareholder to the Underwriter or purchasers procured by the Underwriter, or (iii) the resale and delivery of such Shares by the Underwriter in the manner contemplated herein.
(l) The Selling Shareholder has the power to submit, and pursuant to Section 20(a) has, to the extent permitted by law, legally, validly, effectively and irrevocably submitted, to the jurisdiction of the Specified Courts (as defined in Section 20(a)), and has the power to designate, appoint and empower, and pursuant to Section 20(b), has legally, validly and effectively designated, appointed and empowered an agent for service of process in any suit or proceeding based on or arising under this Agreement in any of the Specified Courts.
Appears in 1 contract
