Representations and Warranties of the Selling Shareholders. Each of the Selling Shareholders, severally and not jointly, represents and warrants to and agrees with, each of the Underwriters that: (a) Such Selling Shareholder, at the First Closing Date, will have good and marketable title to the Shares set forth in Schedule II to be sold by such Selling Shareholder, free and clear of any liens, encumbrances, equities and claims (other than as imposed by the Securities Act or this Agreement), and full right, power and authority to effect the sale and delivery of such Shares; and upon the delivery of and payment for the Shares to be sold by such Selling Shareholder pursuant to this Agreement, good and marketable title thereto, free and clear of any liens, encumbrances, equities and claims, of any kind, will be transferred to the Underwriters. (b) Such Selling Shareholder has duly executed and delivered the Custody Agreement and Power of Attorney in the form previously delivered to the Representatives, appointing the persons named therein, and each of them as such Selling Shareholder's attorney-in-fact (the "Attorney-in-Fact") and as custodian (the "Custodian"). The Attorney-in-Fact is authorized to execute, deliver and perform this Agreement on behalf of such Selling Shareholder, to deliver the Shares to be sold by such Selling Shareholder hereunder, to accept payment therefor, and otherwise to act on behalf of such Selling Shareholder in connection with this Agreement, including payment from the Offering proceeds of expenses incurred on behalf of such Selling Shareholder. Certificates, in suitable form for transfer by delivery or accompanied by duly executed instruments of transfer or assignment in blank, representing the Shares to be sold by such Selling Shareholder hereunder have been deposited with the Custodian pursuant to the Custody Agreement and Power of Attorney for the purpose of delivery pursuant to this Agreement. Such Selling Shareholder agrees that the shares of Common Stock represented by the certificates on deposit with the Custodian are subject to the interest of the Underwriters hereunder, that the arrangements made for such custody and the appointment of the Attorney-in-Fact are to that extent irrevocable, and that the obligations of such Selling Shareholder hereunder shall not be terminated except as provided in this Agreement and the Custody Agreement and Power of Attorney. If such Selling Shareholder should die or become incapacitated, or if any other event should occur, before the delivery of the Shares of such Selling Shareholder hereunder, the certificates for such Shares deposited with the Custodian shall be delivered by the Custodian in accordance with the terms and conditions of this Agreement as if such death, incapacity or other event had not occurred, regardless of whether the Custodian or the Attorney-in-Fact shall have received notice thereof. (c) Such Selling Shareholder, acting through his duly authorized Attorney-in-Fact, has duly executed and delivered this Agreement and the Custody Agreement and Power of Attorney; this Agreement constitutes a legal, valid and binding obligation of such Selling Shareholder, all authorizations and consents necessary for the execution and delivery of this Agreement and the Custody Agreement and Power of Attorney on behalf of such Selling Shareholder and for the sale and delivery of the Shares to be sold by such Selling Shareholder hereunder have been given, except as may be required by the Securities Act or state securities laws; and such Selling Shareholder has the legal capacity and full right, power and authority to execute this Agreement and the Custody Agreement and Power of Attorney. (d) The performance of this Agreement and the Custody Agreement and Power of Attorney and the consummation of the transactions contemplated hereby and thereby by such Selling Shareholder will not result in a breach or violation of, or conflict with, any of the terms or provisions of, or constitute a default by such Selling Shareholder under, any indenture, mortgage, deed of trust, trust (constructive or other), loan agreement, lease, franchise, license or other agreement or instrument to which such Selling Shareholder or any of his or its properties is bound, or any statute, judgment, decree, order, rule or regulation of any court or governmental agency or body applicable to such Selling Shareholder or any of his, her or its properties. (e) Such Selling Shareholder has not distributed nor, other than as permitted by the Securities Act and the Rules and Regulations, will distribute any prospectus or other offering material in connection with the offer and sale of the Shares other than any Preliminary Prospectus filed with the Commission or the Final Prospectus or other material permitted by the Securities Act. (f) Such Selling Shareholder has reviewed and is familiar with the Registration Statement and the Preliminary Prospectus. To the knowledge of such Selling Shareholder, the Preliminary Prospectus does not include an untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading.
Appears in 3 contracts
Samples: Underwriting Agreement (Bankfirst Corp), Underwriting Agreement (Amsurg Corp), Underwriting Agreement (Radio Systems Corp)
Representations and Warranties of the Selling Shareholders. Each of the Selling Shareholders, Shareholder severally and not jointly, represents and warrants to and agrees with, with each of the Underwriters that:
(a) Such This Agreement has been duly authorized, executed and delivered by or on behalf of such Selling Shareholder.
(b) The execution and delivery by such Selling Shareholder of, at and the First Closing Dateperformance by such Selling Shareholder of its obligations under, will have good this Agreement and marketable title the Power of Attorney and Custody Agreement signed by such Selling Shareholder appointing certain individuals as such Selling Shareholder’s attorneys-in-fact to the Shares extent set forth in Schedule II therein and relating to the deposit of the Shares to be sold by such Selling Shareholder (the “Power of Attorney and Custody Agreement”) will not contravene (i) any provision of applicable law, (ii) the certificate of incorporation or bylaws of such Selling Shareholder (if such Selling Shareholder is an entity) or other organizational documents of such Selling Shareholder (if such Selling Shareholder is another type of entity), (iii) any agreement or other instrument binding upon such Selling Shareholder or (iv) any judgment, order or decree of any governmental body, agency or court having jurisdiction over such Selling Shareholder, except in the cases of clause (iii) as would not, individually or in the aggregate, impair the ability of such Selling Shareholder to consummate the transactions contemplated by this Agreement or the Power of Attorney and Custody Agreement. No consent, approval, authorization or order of, or filing or qualification with, any governmental body or agency is required for the performance by such Selling Shareholder of its obligations under this Agreement or the Power of Attorney and Custody Agreement of such Selling Shareholder, except for such consents, approvals, authorizations, orders or qualifications as may be required by the securities or blue sky laws and regulations of the various states in connection with the offer and sale of the Shares.
(c) Such Selling Shareholder has, and on the Closing Date will have, valid title to, or a valid “security entitlement” within the meaning of Section 8-501 of the New York Uniform Commercial Code in respect of, the Shares to be sold by such Selling Shareholder free and clear of any all security interests, claims, liens, encumbrances, equities or other encumbrances and claims (other than as imposed by the Securities Act or this Agreement)legal right and power, and full rightall authorization and approval required by law, power to enter into this Agreement and authority the Power of Attorney and Custody Agreement and to effect sell, transfer and deliver the sale and delivery Shares to be sold by such Selling Shareholder or a security entitlement in respect of such Shares; .
(d) The Power of Attorney and upon Custody Agreement has been duly authorized, executed and delivered by such Selling Shareholder and is a valid and binding agreement of such Selling Shareholder enforceable against such Selling Shareholder in accordance with its terms, except (i) as limited by bankruptcy, insolvency, reorganization, moratorium or similar laws affecting creditors’ rights generally, and (ii) that the delivery remedy of specific performance and injunctive and other forms of equitable relief may be subject to equitable defenses and to the discretion of the court before which any proceeding may be brought.
(e) Upon payment for the Shares to be sold by such Selling Shareholder pursuant to this Agreement, good delivery of such Shares, as directed by the Underwriters, to Cede & Co. (“Cede”) or such other nominee as may be designated by the Depository Trust Company (“DTC”), registration of such Shares in the name of Cede or such other nominee and marketable title thereto, free and clear the crediting of such Shares on the books of DTC to securities accounts of the Underwriters (assuming that neither DTC nor any such Underwriter has notice of any liens, encumbrances, equities and claims, adverse claim (within the meaning of any kind, will be transferred to Section 8-105 of the Underwriters.
(b) Such Selling Shareholder has duly executed and delivered the Custody Agreement and Power of Attorney in the form previously delivered to the Representatives, appointing the persons named therein, and each of them as such Selling Shareholder's attorney-in-fact New York Uniform Commercial Code (the "Attorney-in-Fact"“UCC”)) and as custodian to such Shares), (the "Custodian"). The Attorney-in-Fact is authorized to execute, deliver and perform this Agreement on behalf A) DTC shall be a “protected purchaser” of such Selling ShareholderShares within the meaning of Section 8-303 of the UCC, (B) under Section 8-501 of the UCC, the Underwriters will acquire a valid security entitlement in respect of such Shares and (C) no action based on any “adverse claim”, within the meaning of Section 8-102 of the UCC, to deliver such Shares may be asserted against the Shares Underwriters with respect to be sold by such security entitlement; for purposes of this representation, such Selling Shareholder hereundermay assume that when such payment, to accept payment therefordelivery and crediting occur, and otherwise to act on behalf (x) such Shares will have been registered in the name of such Selling Shareholder in connection with this Agreement, including payment from the Offering proceeds of expenses incurred on behalf of such Selling Shareholder. CertificatesCede or another nominee designated by DTC, in suitable form for transfer by delivery or accompanied by duly executed instruments each case on the Company’s share registry in accordance with its certificate of transfer or assignment in blankincorporation, representing bylaws and applicable law, (y) DTC will be registered as a “clearing corporation” within the Shares meaning of Section 8-102 of the UCC and (z) appropriate entries to be sold by such Selling Shareholder hereunder the accounts of the several Underwriters on the records of DTC will have been deposited with the Custodian made pursuant to the Custody Agreement and Power of Attorney for the purpose of delivery pursuant to this Agreement. Such Selling Shareholder agrees that the shares of Common Stock represented by the certificates on deposit with the Custodian are subject to the interest of the Underwriters hereunder, that the arrangements made for such custody and the appointment of the Attorney-in-Fact are to that extent irrevocable, and that the obligations of such Selling Shareholder hereunder shall not be terminated except as provided in this Agreement and the Custody Agreement and Power of Attorney. If such Selling Shareholder should die or become incapacitated, or if any other event should occur, before the delivery of the Shares of such Selling Shareholder hereunder, the certificates for such Shares deposited with the Custodian shall be delivered by the Custodian in accordance with the terms and conditions of this Agreement as if such death, incapacity or other event had not occurred, regardless of whether the Custodian or the Attorney-in-Fact shall have received notice thereof.
(c) Such Selling Shareholder, acting through his duly authorized Attorney-in-Fact, has duly executed and delivered this Agreement and the Custody Agreement and Power of Attorney; this Agreement constitutes a legal, valid and binding obligation of such Selling Shareholder, all authorizations and consents necessary for the execution and delivery of this Agreement and the Custody Agreement and Power of Attorney on behalf of such Selling Shareholder and for the sale and delivery of the Shares to be sold by such Selling Shareholder hereunder have been given, except as may be required by the Securities Act or state securities laws; and such Selling Shareholder has the legal capacity and full right, power and authority to execute this Agreement and the Custody Agreement and Power of Attorney.
(d) The performance of this Agreement and the Custody Agreement and Power of Attorney and the consummation of the transactions contemplated hereby and thereby by such Selling Shareholder will not result in a breach or violation of, or conflict with, any of the terms or provisions of, or constitute a default by such Selling Shareholder under, any indenture, mortgage, deed of trust, trust (constructive or other), loan agreement, lease, franchise, license or other agreement or instrument to which such Selling Shareholder or any of his or its properties is bound, or any statute, judgment, decree, order, rule or regulation of any court or governmental agency or body applicable to such Selling Shareholder or any of his, her or its properties.
(e) Such Selling Shareholder has not distributed nor, other than as permitted by the Securities Act and the Rules and Regulations, will distribute any prospectus or other offering material in connection with the offer and sale of the Shares other than any Preliminary Prospectus filed with the Commission or the Final Prospectus or other material permitted by the Securities ActUCC.
(f) Such Selling Shareholder has reviewed and is familiar not prompted by any material information concerning the Company or its subsidiaries which is not set forth in the Time of Sale Prospectus to sell its Shares pursuant to this Agreement.
(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 Registration Statement offering when the Prospectus is not yet available to prospective purchasers and at the Preliminary Prospectus. To the knowledge of such Selling ShareholderClosing Date (as defined in Section 5), the Preliminary Prospectus does not include an Time of Sale Prospectus, as then amended or supplemented by the Company, if applicable, will not, contain any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading, and (iii) the Prospectus does not contain and, as amended or supplemented, if applicable, will not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading, except that the representations and warranties set forth in this paragraph 2(g) are limited to statements or omissions made in reliance upon and in conformity with information relating to such Selling Shareholder furnished to the Company in writing by such Selling Shareholder expressly for use in the Registration Statement, the Time of Sale Prospectus, the Prospectus or any amendments or supplements thereto.
Appears in 3 contracts
Samples: Underwriting Agreement (IntraLinks Holdings, Inc.), Underwriting Agreement (IntraLinks Holdings, Inc.), Underwriting Agreement (IntraLinks Holdings, Inc.)
Representations and Warranties of the Selling Shareholders. Each of the Selling ShareholdersShareholder, severally and not jointly, represents and warrants to and agrees with, with each of the Underwriters that:
(a) Such Selling ShareholderThis Agreement has been duly authorized, at the First Closing Date, will have good and marketable title to the Shares set forth in Schedule II to be sold by such Selling Shareholder, free and clear of any liens, encumbrances, equities and claims (other than as imposed by the Securities Act or this Agreement), and full right, power and authority to effect the sale and delivery of such Shares; and upon the delivery of and payment for the Shares to be sold by such Selling Shareholder pursuant to this Agreement, good and marketable title thereto, free and clear of any liens, encumbrances, equities and claims, of any kind, will be transferred to the Underwriters.
(b) Such Selling Shareholder has duly executed and delivered the Custody Agreement and Power of Attorney in the form previously delivered to the Representatives, appointing the persons named therein, and each of them as such Selling Shareholder's attorney-in-fact (the "Attorney-in-Fact") and as custodian (the "Custodian"). The Attorney-in-Fact is authorized to execute, deliver and perform this Agreement by or on behalf of such Selling Shareholder.
(b) The execution and delivery by such Selling Shareholder of, and the performance by such Selling Shareholder of its obligations under, this Agreement and the Power of Attorney appointing certain individuals as such Selling Shareholder’s attorneys-in-fact to the extent set forth therein, relating to the transactions contemplated hereby and by the Registration Statement (the “Power of Attorney”) will not contravene any provision of applicable law, or the certificate of incorporation or by-laws or other organizational documents of such Selling Shareholder (if such Selling Shareholder is an entity), or any agreement or other instrument binding upon such Selling Shareholder or any judgment, order or decree of any governmental body, agency or court having jurisdiction over such Selling Shareholder, and no consent, approval, authorization or order of, or qualification with, any governmental body or agency is required for the performance by such Selling Shareholder of its obligations under this Agreement or the Power of Attorney of such Selling Shareholder, except such as may be required by the securities or “blue sky” laws of the various states in connection with the offer and sale of the Shares.
(c) Such Selling Shareholder on the Closing Date, after giving effect to the Formation Transactions, will have the legal right and power, and all authorization and approval required by law, to sell, transfer and deliver the Shares to be sold by such Selling Shareholder hereunder, to accept payment therefor, and otherwise to act on behalf or a security entitlement in respect of such Selling Shareholder in connection with this Agreement, including payment from the Offering proceeds of expenses incurred on behalf of such Selling Shareholder. Certificates, in suitable form for transfer by delivery or accompanied by duly executed instruments of transfer or assignment in blank, representing the Shares to be sold by such Selling Shareholder hereunder have been deposited with the Custodian pursuant to the Custody Agreement and Power of Attorney for the purpose of delivery pursuant to this Agreement. Such Selling Shareholder agrees that the shares of Common Stock represented by the certificates on deposit with the Custodian are subject to the interest of the Underwriters hereunder, that the arrangements made for such custody and the appointment of the Attorney-in-Fact are to that extent irrevocable, and that the obligations of such Selling Shareholder hereunder shall not be terminated except as provided in this Agreement and the Custody Agreement and Power of Attorney. If such Selling Shareholder should die or become incapacitated, or if any other event should occur, before the delivery of the Shares of such Selling Shareholder hereunder, the certificates for such Shares deposited with the Custodian shall be delivered by the Custodian in accordance with the terms and conditions of this Agreement as if such death, incapacity or other event had not occurred, regardless of whether the Custodian or the Attorney-in-Fact shall have received notice thereof.
(c) Such Selling Shareholder, acting through his duly authorized Attorney-in-Fact, has duly executed and delivered this Agreement and the Custody Agreement and Power of Attorney; this Agreement constitutes a legal, valid and binding obligation of such Selling Shareholder, all authorizations and consents necessary for the execution and delivery of this Agreement and the Custody Agreement and Power of Attorney on behalf of such Selling Shareholder and for the sale and delivery of the Shares to be sold by such Selling Shareholder hereunder have been given, except as may be required by the Securities Act or state securities laws; and such Selling Shareholder has the legal capacity and full right, power and authority to execute this Agreement and the Custody Agreement and Power of AttorneyShares.
(d) The performance of this Agreement and the Custody Agreement and Power of Attorney has been duly authorized, executed and the consummation of the transactions contemplated hereby and thereby delivered by such Selling Shareholder will not result in and is a breach or violation of, or conflict with, any valid and binding agreement of the terms or provisions of, or constitute a default by such Selling Shareholder under, any indenture, mortgage, deed of trust, trust (constructive or other), loan agreement, lease, franchise, license or other agreement or instrument to which such Selling Shareholder or any of his or its properties is bound, or any statute, judgment, decree, order, rule or regulation of any court or governmental agency or body applicable to such Selling Shareholder or any of his, her or its propertiesShareholder.
(e) Such Upon payment of the purchase price by the Underwriters for the Shares being sold by such Selling Shareholder has not distributed nor, other than as permitted by the Securities Act and the Rules and Regulations, will distribute any prospectus delivery by such Selling Shareholder to Cede & Co. (“Cede”) or such other offering material in connection with the offer and sale nominee as may be designated by The Depository Trust Company (“DTC”) of the Shares being sold by such Selling Shareholder registered in the name of Cede or such other than nominee designated by DTC, both as provided for in this Agreement, and the crediting of such Shares to the account of the Underwriters with DTC, Cede or such other nominee designated by DTC will be a “protected purchaser” (as defined in Section 8-303 of the New York Uniform Commercial Code (the “Code”)) of such Shares, the Underwriters will acquire a valid “security entitlement” (within the meaning of Section 8-501 of the Code) to such Shares, and no action based on an “adverse claim” (as defined in Section 8-102 of the Code) may be asserted against the Underwriters with respect to such security entitlement (assuming that the Underwriters are without notice of any Preliminary Prospectus filed such adverse claim); for purposes of this representation, such Selling Shareholder may assume that when such payment, delivery and crediting occur, (x) such Shares will have been registered in the name of Cede or another nominee designated by DTC, in each case on the Company’s share registry in accordance with its certificate of incorporation, bylaws and applicable law, (y) DTC will be registered as a “clearing corporation” within the Commission or meaning of Section 8-102 of the Final Prospectus or other material permitted by Code and (z) appropriate entries to the Securities Actaccounts of the several Underwriters on the records of DTC will have been made pursuant to the Code.
(f) Such Selling Shareholder has reviewed is not prompted by any information concerning the Company or its subsidiaries which is not set forth in the Time of Sale Prospectus and is familiar the Prospectus to sell its Shares pursuant to this Agreement.
(i) The Registration Statement, when it became effective, did not contain and, as amended or 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 Registration Statement offering and at the Preliminary Prospectus. To the knowledge of such Selling ShareholderClosing Date (as defined in Section 6), the Preliminary Prospectus does Time of Sale Prospectus, as then amended or supplemented, if applicable, will not include an contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in order the light of the circumstances under which they were made, not misleading and (iii) the Prospectus does not contain and, as amended or supplemented, if applicable, will not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading, except that the representations and warranties and agreements set forth in this paragraph 3(g) are limited to the name and address of such Selling Stockholder, the number of shares of Common Stock beneficially owned by such Selling Stockholder after giving effect to the sale of the Shares being sold by such Selling Stockholder and the number of Shares made available for sale by such Selling Shareholder (the “Selling Shareholder Information”), which information has been furnished to the Company in writing by such Selling Shareholder expressly for use in the Registration Statement, the Time of Sale Prospectus or the Prospectus or any amendments or supplements thereto.
Appears in 2 contracts
Samples: Underwriting Agreement (Northstar Capital Investment Corp /Md/), Underwriting Agreement (Morgans Hotel Group Co.)
Representations and Warranties of the Selling Shareholders. Each of the Selling ShareholdersShareholder, severally and not jointly, represents and warrants to and agrees withwith the several Underwriters and the Company, and shall be deemed to represent and warrant to the several Underwriters and the Company on each of the Underwriters Closing Date, that:
(a) Such Selling Shareholder, at the First Closing Date, will have good and marketable title to the Shares set forth in Schedule II to be sold by such Selling Shareholder, free and clear of any liens, encumbrances, equities and claims (other than as imposed by the Securities Act or this Agreement), and full right, power and authority to effect the sale and delivery of such Shares; and upon the delivery of and payment for the Shares to be sold by such Selling Shareholder pursuant to this Agreement, good and marketable title thereto, free and clear of any liens, encumbrances, equities and claims, of any kind, will be transferred to the Underwriters.
(b) Such Selling Shareholder has duly executed a durable power of attorney and delivered the Custody Agreement and custody agreement ("Irrevocable Power of Attorney in the form previously delivered to the Representativesand Custody Agreement") naming Xxxx X. Xxxx and Xxxxxx X. Xxxxxxx, appointing the persons named thereinor either of them, and each of them as such Selling Shareholder's attorney-inattorney(s)-in-fact (the "AttorneyAttorneys-in-Fact") and as custodian (the "Custodian"). The Attorney-in-Fact is authorized to execute, deliver and perform this Agreement on behalf of such Selling Shareholder, to deliver the Shares to be sold by such Selling Shareholder hereunder, to accept payment therefor, and otherwise to act on behalf of such Selling Shareholder in connection with this Agreement, including payment from the Offering proceeds of expenses incurred on behalf of such Selling Shareholder. Certificates, in suitable form for transfer by delivery or accompanied by duly executed instruments of transfer or assignment in blank, representing the Shares to be sold by such Selling Shareholder hereunder have been deposited with the Custodian pursuant to the Custody Agreement and Power of Attorney for the purpose of delivery pursuant to this Agreement. Such Selling Shareholder agrees that the shares of Common Stock represented by the certificates on deposit with the Custodian are subject to the interest of the Underwriters hereunder, that the arrangements made for such custody entering into and the appointment of the Attorney-in-Fact are to that extent irrevocable, and that the obligations of such Selling Shareholder hereunder shall not be terminated except as provided in carrying out this Agreement and the Custody Agreement and Power of Attorney. If such Selling Shareholder should die or become incapacitatednaming Xxxx X. Xxxx, or if any other event should occur, before the delivery as custodian ("Custodian") of the Shares of such Selling Shareholder hereunder, for the certificates for purpose of selling such Shares deposited with to the Custodian shall be delivered by the Custodian in accordance with the terms Underwriters on each Closing Date and conditions of this Agreement as if such death, incapacity or other event had not occurred, regardless of whether the Custodian or the Attorney-in-Fact shall have received notice thereofreceiving payment therefor.
(cb) Such Selling ShareholderAll consents, acting through his duly authorized Attorney-in-Factapprovals, has duly executed and delivered this Agreement and the Custody Agreement and Power of Attorney; this Agreement constitutes a legal, valid and binding obligation of such Selling Shareholder, all authorizations and consents orders necessary for the execution and delivery by such Selling Shareholder of this Agreement, the Irrevocable Power of Attorney and Custody Agreement and the Custody Tax Indemnification Agreement by and Power among the Company and the shareholders of Attorney on behalf of such Selling Shareholder the Company and included as an exhibit to the Registration Statement (the "Tax Indemnification Agreement"), and for the sale and delivery of the Shares to be sold by such Selling Shareholder hereunder hereunder, as set forth on SCHEDULE II annexed hereto, have been givenobtained. Such Selling Shareholder has, except as may be required by and at the Securities Act or state securities laws; and time of delivery thereof hereunder such Selling Shareholder will have, good and valid title to the Shares proposed to be sold by such Selling Shareholder hereunder, free and clear of all voting trust arrangements, liens, encumbrances, security interests, equities, claims and community or marital property rights, other than any created by the Irrevocable Power of Attorney and Custody Agreement or this Agreement for the benefit of the Underwriters. Such Selling Shareholder has the legal capacity and full right, power and authority to execute enter into this Agreement and Agreement, the Custody Agreement and Power of Attorney.
(d) The performance of this Agreement and the Custody Agreement and Irrevocable Power of Attorney and Custody Agreement and the consummation Tax Indemnification Agreement and to sell, assign, transfer and deliver such Shares hereunder, free and clear of all voting trust arrangements, liens, encumbrances, security interests, equities, claims and community or marital property rights, other than any created by the Irrevocable Power of Attorney and Custody Agreement or this Agreement for the benefit of the transactions contemplated hereby Underwriters. Upon delivery of and thereby by payment for such Selling Shareholder Shares hereunder, the Underwriters will not result in a breach acquire good and valid title thereto, free and clear of all voting trust arrangements, liens, encumbrances, security interests, equities, claims and community or violation of, or conflict with, any of the terms or provisions of, or constitute a default by such Selling Shareholder under, any indenture, mortgage, deed of trust, trust (constructive or other), loan agreement, lease, franchise, license or other agreement or instrument to which such Selling Shareholder or any of his or its properties is bound, or any statute, judgment, decree, order, rule or regulation of any court or governmental agency or body applicable to such Selling Shareholder or any of his, her or its propertiesmarital property rights.
(ec) Such Selling Shareholder has not distributed nor, other than as permitted by the Securities Act and the Rules and Regulations, will not distribute any prospectus Preliminary Prospectus, the Prospectus or any other offering material in connection with the offer offering and sale of the Shares Shares. Such Selling Shareholder has not taken and will not take, directly or indirectly, any action designed to or which could cause or result in, under the Exchange Act or otherwise, stabilization or manipulation of the price of any security of the Company to facilitate the sale or resale of the Common Stock.
(d) The execution, delivery and performance by such Selling Shareholder of this Agreement, the Irrevocable Power of Attorney and Custody Agreement and the Tax Indemnification Agreement will not, if applicable, result in the violation of any provisions of the Articles of Incorporation, By-laws or other than governing documents of such Selling Shareholder, or constitute a breach, or be in contravention, of any Preliminary Prospectus filed provision of any agreement, franchise, license, indenture, mortgage, deed of trust or other instrument to which such Selling Shareholder is a party or by which such Selling Shareholder or such Selling Shareholder's property may be bound or affected, or any statute, rule or regulation applicable to such Selling Shareholder, or violate any order or decree of any court, regulatory body, administrative agency or other governmental body having jurisdiction over such Selling Shareholder or any of such Selling Shareholder's property. No consent, approval, authorization or other order of any court, regulatory body, administrative agency or other governmental body is required for the execution and delivery of, and performance under, this Agreement by such Selling Shareholder or the consummation by such Selling Shareholder of the transactions contemplated by this Agreement, except for compliance with the Commission or Act, the Final Prospectus or other material permitted Exchange Act, the Blue Sky Laws applicable to the public offering of the Shares by the Securities ActUnderwriters and the clearance of such offering with the NASD. Such Selling Shareholder hereby represents and warrants that each Attorney-in-Fact has been duly appointed as attorney-in-fact by such Selling Shareholder for the purpose of entering into and carrying out this Agreement, and the Irrevocable Power of Attorney and Custody Agreement has been duly executed and delivered by or on behalf of such Selling Shareholder to the Representatives.
(e) This Agreement, the Irrevocable Power of Attorney and Custody Agreement and the Tax Indemnification Agreement are each valid and binding agreements of such Selling Shareholder enforceable in accordance with their respective terms.
(f) Such Selling Shareholder has reviewed deposited in custody, under the Irrevocable Power of Attorney and is familiar Custody Agreement, certificates in negotiable form for the Shares to be sold hereunder by such Selling Shareholder as set forth opposite such Selling Shareholder's name on SCHEDULE II annexed hereto (including the maximum number of Optional Shares set forth on SCHEDULE II) for the purpose of further delivery pursuant to this Agreement. Such Selling Shareholder agrees that the Shares of such Selling Shareholder on deposit with the Custodian are subject to the interests of the Company, the Underwriters and the other Selling Shareholders, that the arrangements made for such custody, and the appointment of the Attorneys-in-Fact pursuant to the Irrevocable Power of Attorney and Custody Agreement, are to that extent irrevocable, and that the obligations of such Selling Shareholder hereunder and under the Irrevocable Power of Attorney and Custody Agreement shall not be terminated, except as provided in this Agreement and the Irrevocable Power of Attorney and Custody Agreement, by any act of such Selling Shareholder, by operation of law, whether in the case of an individual Selling Shareholder, by the death or incapacity of such Selling Shareholder or, in the case of a trust or estate, by the death of the trustee or trustees or the executor or executors or the termination of such trust or estate, or, in the case of a partnership or corporation, by the dissolution, winding up or other event affecting the legal life of such entity, or by the occurrence of any other event. If any individual Selling Shareholder, trustee or executor should die or become incapacitated, or any such trust, estate, partnership or corporation should be terminated, or if any other event should occur before the delivery of the Shares hereunder, the certificates for Shares then on deposit with the Custodian shall, to the extent such Shares are purchased by the Underwriters, be delivered by the Custodian in accordance with the terms and conditions of this Agreement and the Irrevocable Power of Attorney and Custody Agreement as if such death, incapacity, termination or other event had not occurred, regardless of whether or not the Custodian shall have received notice thereof. Such Selling Shareholder represents that each Attorney-in-Fact has been authorized by such Selling Shareholder to execute and deliver this Agreement and the Custodian has been authorized to receive and acknowledge receipt of the proceeds of sale of the Shares sold by such Selling Shareholder against delivery thereof and otherwise to act on behalf of such Selling Shareholder.
(g) Insofar as it relates to such Selling Shareholder, each Preliminary Prospectus, as of its date, has conformed in all material respects with the requirements of the Act and, as of its date, has not included any untrue statement of a material fact or omitted to state a material fact necessary to make the statements therein not misleading; and on the effective date of the Registration Statement and at all times subsequent thereto up to each Closing Date; (i) the Registration Statement and the Preliminary Prospectus. To the knowledge of , as they relate to such Selling Shareholder, did or will conform to the Preliminary requirements of the Act; and (ii) neither the Registration Statement nor the Prospectus does not as it relates to such Selling Shareholder did or will include an 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, in the light of the circumstances under which they were made, therein not misleading.
(h) To the knowledge of each Selling Shareholder who is not a Principal Shareholder, the representations and warranties of the Company and the Principal Shareholders set forth in Section 2 hereof are true and correct.
(i) The information contained in such Directors', Officers' and Selling Shareholders' Questionnaire completed in connection with the Company's public offering and delivered to the Representatives was, as of the date of such questionnaire, and is, as of the date of this Agreement, true and correct. A certificate signed by or on behalf of any Selling Shareholder as such and delivered to the Representatives or to counsel for the Underwriters shall be deemed a representation and warranty by such Selling Shareholder to the Underwriters as to the matters covered thereby. A certificate delivered by or on behalf of any Selling Shareholder to counsel for the Selling Shareholders for purposes of enabling such counsel to render the opinion referred in Section 10(e) will also be furnished to the Representatives and counsel for the Underwriters and shall be deemed to be additional representations and warranties to the Underwriters by such Selling Shareholder as to the matters covered thereby.
Appears in 2 contracts
Samples: Underwriting Agreement (Metro Information Services Inc), Underwriting Agreement (Metro Information Services Inc)
Representations and Warranties of the Selling Shareholders. Each of In addition to the representations and warranties set forth above, each Selling ShareholdersShareholder, severally and not jointly, represents and warrants to and agrees with, each of the Underwriters Underwriter that:
(a) Such Selling ShareholderShareholder is, and at the First Closing Date, will have good and marketable title to the Shares set forth in Schedule II to be sold by such Selling Shareholder, free and clear time of any liens, encumbrances, equities and claims (other than as imposed by the Securities Act or this Agreement), and full right, power and authority to effect the sale and delivery of such Shares; and upon the delivery of and payment for the Offered Shares to be sold by such Selling Shareholder pursuant hereunder on any Closing Date will be, the lawful and beneficial owner of such Offered Shares and has, and at the time of delivery of such Offered Shares or ADSs will have, valid and marketable title to this Agreementsuch Offered Shares or ADSs, and upon sale and delivery of, and payment for, such Offered Shares or ADSs, as provided herein, such Selling Shareholder will convey good and marketable title theretoto such Offered Shares or ADSs, free and clear of any security interests, liens, encumbrances, equities and or claims, of any kind, will be transferred to the Underwriters.
(b) Such Selling Shareholder has full right, power and capacity to enter into this Agreement and the escrow agreement between Brunswick UBS Russia Limited, as escrow agent (the “External Escrow Agent”), you and each of the Selling Shareholders (the “External Escrow Agreement”) and to perform its obligations hereunder and thereunder, and each of this Agreement and the External Escrow Agreement has been duly executed and delivered by the Custody Selling Shareholder; and in deciding to sell the Offered Shares or ADSs to be sold by him or it hereunder, the Selling Shareholder has relied upon his own judgment and such independent financial and legal advice as he has seen fit to obtain, and has not relied upon any of the Underwriters or their advisers for any such advice.
(c) The deposit with the Depositary by such Selling Shareholder of the Offered Shares to be sold by him or it against issuance of ADRs evidencing ADSs, the execution and delivery by such Selling Shareholder of this Agreement and Power the External Escrow Agreement and the performance by such Selling Shareholder of Attorney its obligations hereunder and thereunder, (i) do not require any consent, approval, authorization or order of, or filing with, any governmental agency or body or any court except such as have been obtained and such as may be required under the securities or “blue sky” laws of any jurisdiction in connection with the purchase and distribution by the Underwriters of the Offered Shares or ADSs in the form previously delivered manner contemplated herein and in the Final Prospectus and (ii) will not conflict with or result in a breach or violation of any of the terms and provisions of, or constitute a default under, (A) any statute, or any rule, regulation or order of any governmental agency or body or any court applicable to the Representatives, appointing the persons named therein, and each of them as such Selling Shareholder's attorney-in-fact (the "Attorney-in-Fact") and as custodian (the "Custodian"). The Attorney-in-Fact is authorized to execute, deliver and perform this Agreement on behalf of such Selling Shareholder, (B) any agreement or instrument to deliver which such Selling Shareholder is a party or by which such Selling Shareholder is bound or to which any of their respective properties is subject.
(d) No stamp or other issuance or transfer taxes or duties and no withholding or other taxes are payable by or on behalf of the Underwriters to the Russian Federation or any political subdivision or taxing authority thereof or therein (except any income, capital gains, withholding or other taxes imposed upon the Underwriters that would not have been imposed but for a connection between the Underwriters and the jurisdiction imposing such taxes, other than a connection arising as a result of the transaction contemplated by this Agreement, the Deposit Agreement or the External Escrow Agreement) in connection with (i) the sale and delivery by such Selling Shareholder of the Offered Shares to be sold by him or it, (ii) the deposit with the Depositary of the Offered Shares to be sold by such Selling Shareholder hereunder, to accept payment therefor, and otherwise to act on behalf against the issuance of such Selling Shareholder in connection with this Agreement, including payment from the Offering proceeds of expenses incurred on behalf of such Selling Shareholder. Certificates, in suitable form for transfer by delivery ADRs evidencing ADSs or accompanied by duly executed instruments of transfer or assignment in blank, representing the Shares to be sold by such Selling Shareholder hereunder have been deposited with the Custodian pursuant to the Custody Agreement and Power of Attorney for the purpose of delivery pursuant to this Agreement. Such Selling Shareholder agrees that the shares of Common Stock represented by the certificates on deposit with the Custodian are subject to the interest of the Underwriters hereunder, that the arrangements made for such custody and the appointment of the Attorney-in-Fact are to that extent irrevocable, and that the obligations of such Selling Shareholder hereunder shall not be terminated except as provided in this Agreement and the Custody Agreement and Power of Attorney. If such Selling Shareholder should die or become incapacitated, or if any other event should occur, before the delivery of the Shares of such Selling Shareholder hereunder, the certificates for such Shares deposited with the Custodian shall be delivered by the Custodian in accordance with the terms and conditions of this Agreement as if such death, incapacity or other event had not occurred, regardless of whether the Custodian or the Attorney-in-Fact shall have received notice thereof.
(ciii) Such Selling Shareholder, acting through his duly authorized Attorney-in-Fact, has duly executed and delivered this Agreement and the Custody Agreement and Power of Attorney; this Agreement constitutes a legal, valid and binding obligation of such Selling Shareholder, all authorizations and consents necessary for the execution and delivery of this Agreement and the Custody Agreement and Power of Attorney on behalf of such Selling Shareholder and for the sale and delivery of the Shares to be sold by such Selling Shareholder hereunder have been given, except as may be required by the Securities Act Underwriters of such Offered Shares or state securities laws; and such Selling Shareholder has ADSs to the legal capacity and full right, power and authority to execute this Agreement and initial purchasers thereof in the Custody Agreement and Power of Attorney.
(d) The performance of this Agreement and manner contemplated in the Custody Agreement and Power of Attorney and the consummation of the transactions contemplated hereby and thereby by such Selling Shareholder will not result in a breach or violation of, or conflict with, any of the terms or provisions of, or constitute a default by such Selling Shareholder under, any indenture, mortgage, deed of trust, trust (constructive or other), loan agreement, lease, franchise, license or other agreement or instrument to which such Selling Shareholder or any of his or its properties is bound, or any statute, judgment, decree, order, rule or regulation of any court or governmental agency or body applicable to such Selling Shareholder or any of his, her or its propertiesFinal Prospectus.
(e) Such 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, such Selling Shareholder has not distributed norwill deliver to you prior to or at the First Closing Date a properly completed and executed United States Treasury Department Form W-8, other than as permitted by the Securities Act and the Rules and RegulationsW-9, will distribute any prospectus or other offering material applicable form or statement specified by Treasury Department regulations in connection with the offer and sale of the Shares other than any Preliminary Prospectus filed with the Commission or the Final Prospectus or other material permitted by the Securities Actlieu thereof.
(f) Such Selling Shareholder has reviewed taken all actions necessary to dispose of the proceeds from the sale of the Offered Shares in accordance with, and is familiar with has taken no action which could have the effect of disposing of the proceeds from the sale of the Offered Shares in any way differing from, the description of their disposition in the Final Prospectus under the sections entitled “Prospectus Summary—The Offering—Escrow of proceeds and registration of placement report” and “Escrow of Proceeds and Registration of Placement Report.”
(g) When the Registration Statement becomes effective and at all times subsequent thereto through the latest Closing Date or the termination of the offering of the Offered Shares, the Registration Statement and the Preliminary Final Prospectus. To the knowledge of , and any supplements or amendments thereto, in each case, as relate to such Selling Shareholder, the Preliminary Prospectus does Shareholder will not include contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary in order to make the statements therein, therein not misleading;
(h) The sale of such Selling Shareholder’s Offered Shares or ADSs pursuant to this Agreement is not prompted by any information concerning the Company which is not set forth in the light Final Prospectus.
(i) The execution and delivery by each Selling Shareholder of each transaction document to which he is a party, and the consummation of the circumstances under which they were madetransactions contemplated hereby or thereby by such Selling Shareholder, will not misleadingrequire the consent of any spouse of such Selling Shareholder pursuant to the applicable laws of any jurisdiction, including, but not limited to, those of the Federal Republic of Germany and of the Russian Federation, except as have been obtained.
Appears in 2 contracts
Samples: Underwriting Agreement, Underwriting Agreement (Mechel Steel Group OAO)
Representations and Warranties of the Selling Shareholders. Each of the Selling Shareholders, severally and not jointly, represents and warrants to and agrees with, with each of the Underwriters that:
(a) Such This Agreement has been duly authorized, executed and delivered by or on behalf of such Selling Shareholder.
(b) The execution and delivery by such Selling Shareholder of, and the performance by such Selling Shareholder of its obligations under, this Agreement, the Custody Agreement signed by such Selling Shareholder and American Stock Transfer & Trust Company, as Custodian, relating to the deposit of the Shares to be sold by such Selling Shareholder (the "Custody Agreement") and the Power of Attorney appointing Waynx X. Xxxxxxx xx such Selling Shareholder's attorney-in-fact to the extent set forth therein, relating to the transactions contemplated hereby and by the Registration Statement (the "Power of Attorney") will not contravene any provision of applicable law or any agreement or other instrument binding upon such Selling Shareholder or any judgment, order or decree of any governmental body, agency or court having jurisdiction over such Selling Shareholder, at and no consent, approval, authorization or order of, or qualification with, any governmental body or agency is required for the First performance by such Selling Shareholder of its obligations under this Agreement or the Custody Agreement or Power of Attorney of such Selling Shareholder, except such as may be required by the securities or Blue Sky laws of the various states in connection with the offer and sale of the Shares.
(c) Such Selling Shareholder has, and on the Closing DateDate will have, will have good and marketable valid title to the Shares set forth in Schedule II to be sold by such Selling Shareholder and the legal right and power, and all authorization and approval required by law, to enter into this Agreement, the Custody Agreement and the Power of Attorney and to sell, transfer and deliver the Shares to be sold by such Selling Shareholder.
(d) The Shares to be sold by such Selling Shareholder pursuant to this Agreement have been duly authorized and are validly issued, free fully paid and clear non-assessable.
(e) The Custody Agreement and the Power of any liensAttorney have been duly authorized, encumbrances, equities executed and claims (other than as imposed delivered by the Securities Act or this Agreement), such Selling Shareholder and full right, power are valid and authority to effect the sale and delivery binding agreements of such Shares; and upon the delivery Selling Shareholder.
(f) Delivery of and payment for the Shares to be sold by such Selling Shareholder pursuant to this Agreement, good and marketable Agreement will pass title thereto, to such Shares free and clear of any security interests, claims, liens, encumbrances, equities and claims, of any kind, will be transferred to the Underwritersother encumbrances.
(b) Such Selling Shareholder has duly executed and delivered the Custody Agreement and Power of Attorney in the form previously delivered to the Representatives, appointing the persons named therein, and each of them as such Selling Shareholder's attorney-in-fact (the "Attorney-in-Fact") and as custodian (the "Custodian"). The Attorney-in-Fact is authorized to execute, deliver and perform this Agreement on behalf of such Selling Shareholder, to deliver the Shares to be sold by such Selling Shareholder hereunder, to accept payment therefor, and otherwise to act on behalf of such Selling Shareholder in connection with this Agreement, including payment from the Offering proceeds of expenses incurred on behalf of such Selling Shareholder. Certificates, in suitable form for transfer by delivery or accompanied by duly executed instruments of transfer or assignment in blank, representing the Shares to be sold by such Selling Shareholder hereunder have been deposited with the Custodian pursuant to the Custody Agreement and Power of Attorney for the purpose of delivery pursuant to this Agreement. Such Selling Shareholder agrees that the shares of Common Stock represented by the certificates on deposit with the Custodian are subject to the interest of the Underwriters hereunder, that the arrangements made for such custody and the appointment of the Attorney-in-Fact are to that extent irrevocable, and that the obligations of such Selling Shareholder hereunder shall not be terminated except as provided in this Agreement and the Custody Agreement and Power of Attorney. If such Selling Shareholder should die or become incapacitated, or if any other event should occur, before the delivery of the Shares of such Selling Shareholder hereunder, the certificates for such Shares deposited with the Custodian shall be delivered by the Custodian in accordance with the terms and conditions of this Agreement as if such death, incapacity or other event had not occurred, regardless of whether the Custodian or the Attorney-in-Fact shall have received notice thereof.
(c) Such Selling Shareholder, acting through his duly authorized Attorney-in-Fact, has duly executed and delivered this Agreement and the Custody Agreement and Power of Attorney; this Agreement constitutes a legal, valid and binding obligation of such Selling Shareholder, all authorizations and consents necessary for the execution and delivery of this Agreement and the Custody Agreement and Power of Attorney on behalf of such Selling Shareholder and for the sale and delivery of the Shares to be sold by such Selling Shareholder hereunder have been given, except as may be required by the Securities Act or state securities laws; and such Selling Shareholder has the legal capacity and full right, power and authority to execute this Agreement and the Custody Agreement and Power of Attorney.
(d) The performance of this Agreement and the Custody Agreement and Power of Attorney and the consummation of the transactions contemplated hereby and thereby by such Selling Shareholder will not result in a breach or violation of, or conflict with, any of the terms or provisions of, or constitute a default by such Selling Shareholder under, any indenture, mortgage, deed of trust, trust (constructive or other), loan agreement, lease, franchise, license or other agreement or instrument to which such Selling Shareholder or any of his or its properties is bound, or any statute, judgment, decree, order, rule or regulation of any court or governmental agency or body applicable to such Selling Shareholder or any of his, her or its properties.
(e) Such Selling Shareholder has not distributed nor, other than as permitted by the Securities Act and the Rules and Regulations, will distribute any prospectus or other offering material in connection with the offer and sale of the Shares other than any Preliminary Prospectus filed with the Commission or the Final Prospectus or other material permitted by the Securities Act.
(f) Such Selling Shareholder has reviewed and is familiar with the Registration Statement and the Preliminary Prospectus. To the knowledge of such Selling Shareholder, the Preliminary Prospectus does not include an untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading.
Appears in 2 contracts
Samples: Underwriting Agreement (Advanced Lighting Technologies Inc), Underwriting Agreement (Advanced Lighting Technologies Inc)
Representations and Warranties of the Selling Shareholders. Each of the Selling Shareholders, severally and not jointly, Shareholder represents and warrants to and agrees with, each of the Underwriters Underwriter that:
(a) Such Selling Shareholder, at Shareholder is the First Closing Date, will have good and marketable title to lawful owner of the Firm Shares set forth in Schedule II to be sold by such Selling ShareholderShareholder pursuant to this Agreement and has, and on the Closing Date will have, good and clear title to such Firm Shares, free and clear of any all restrictions on transfer, liens, encumbrances, security interests, equities and claims whatsoever (other than as imposed by subject to any lien created hereby and restrictions arising under applicable securities law, which do not survive the Securities Act or this AgreementClosing).
(b) Such Selling Shareholder has, and on the Closing Date will have, full legal right, power and authority authority, and all authorization and approval required by law, to effect enter into this Agreement and the sale and delivery Power of Attorney (the "Power of Attorney") of such Shares; Selling Shareholder, if applicable, appointing certain individuals as such Selling Shareholder's attorneys-in-fact (the "Attorneys") to the extent set forth therein, relating to the transactions contemplated hereby and upon by the Registration Statement and to sell, assign, transfer and deliver the Shares to be sold by such Selling Shareholder in the manner provided herein and therein.
(c) This Agreement has been duly authorized, executed and delivered by or on behalf of such Selling Shareholder.
(d) The Power of Attorney of such Selling Shareholder has been duly authorized, executed and delivered by such Selling Shareholder and is a valid and binding instrument of such Selling Shareholder, enforceable in accordance with its terms, and, pursuant to such Power of Attorney, such Selling Shareholder has, among other things, authorized the Attorneys, or any one of them, to execute and deliver on such Selling Shareholder's behalf this Agreement and any other document that they, or any one of them, may deem necessary or desirable in connection with the transactions contemplated hereby and thereby and to deliver the Firm Shares to be sold by such Selling Shareholder pursuant to this Agreement.
(e) Upon delivery of and payment for the Firm Shares to be sold by such Selling Shareholder pursuant to this Agreement, good the Underwriters will acquire all of the rights of such Selling Shareholder and marketable title thereto, will also acquire their interest in such Firm Shares free and clear of any liens, encumbrances, equities and claims, of any kind, will be transferred to the Underwritersadverse claim.
(bf) Such Selling Shareholder has duly executed The execution, delivery and delivered the Custody performance of this Agreement and Power of Attorney in the form previously delivered to the RepresentativesAttorney, appointing the persons named thereinif applicable, and each of them as such Selling Shareholder's attorney-in-fact (the "Attorney-in-Fact") and as custodian (the "Custodian"). The Attorney-in-Fact is authorized to execute, deliver and perform this Agreement Shareholder by or on behalf of such Selling Shareholder, to deliver the Shares to be sold compliance by such Selling Shareholder hereunder, to accept payment therefor, with all the provisions hereof and otherwise to act on behalf of such Selling Shareholder in connection with this Agreement, including payment from the Offering proceeds of expenses incurred on behalf of such Selling Shareholder. Certificates, in suitable form for transfer by delivery or accompanied by duly executed instruments of transfer or assignment in blank, representing the Shares to be sold by such Selling Shareholder hereunder have been deposited with the Custodian pursuant to the Custody Agreement and Power of Attorney for the purpose of delivery pursuant to this Agreement. Such Selling Shareholder agrees that the shares of Common Stock represented by the certificates on deposit with the Custodian are subject to the interest of the Underwriters hereunder, that the arrangements made for such custody and the appointment of the Attorney-in-Fact are to that extent irrevocable, and that the obligations of such Selling Shareholder hereunder shall not be terminated except as provided in this Agreement and the Custody Agreement and Power of Attorney. If such Selling Shareholder should die or become incapacitated, or if any other event should occur, before the delivery of the Shares of such Selling Shareholder hereunder, the certificates for such Shares deposited with the Custodian shall be delivered by the Custodian in accordance with the terms and conditions of this Agreement as if such death, incapacity or other event had not occurred, regardless of whether the Custodian or the Attorney-in-Fact shall have received notice thereof.
(c) Such Selling Shareholder, acting through his duly authorized Attorney-in-Fact, has duly executed and delivered this Agreement and the Custody Agreement and Power of Attorney; this Agreement constitutes a legal, valid and binding obligation of such Selling Shareholder, all authorizations and consents necessary for the execution and delivery of this Agreement and the Custody Agreement and Power of Attorney on behalf of such Selling Shareholder and for the sale and delivery of the Shares to be sold by such Selling Shareholder hereunder have been given, except as may be required by the Securities Act or state securities laws; and such Selling Shareholder has the legal capacity and full right, power and authority to execute this Agreement and the Custody Agreement and Power of Attorney.
(d) The performance of this Agreement and the Custody Agreement and Power of Attorney thereof and the consummation of the transactions contemplated hereby and thereby by such Selling Shareholder will not result in a breach (i) require any consent, approval, authorization or violation other order of, or conflict qualification with, any court or governmental body or agency (except such as may be required under the securities or Blue Sky laws of the various states), (ii) conflict with or constitute a breach of any of the terms or provisions of, or constitute a default by under, the organizational documents of such Selling Shareholder, if such Selling Shareholder underis not an individual, or any indenture, mortgage, deed of trust, trust (constructive or other), loan agreement, leasemortgage, franchise, license lease or other agreement or instrument to which such Selling Shareholder is a party or any of his or its properties is bound, or any statute, judgment, decree, order, rule or regulation of any court or governmental agency or body applicable to by which such Selling Shareholder or any property of his, her or its properties.
(e) Such such Selling Shareholder has not distributed noris bound or (iii) violate or conflict with any applicable law or any rule, other than as permitted by the Securities Act and the Rules and Regulationsregulation, will distribute judgment, order or decree of any prospectus court or other offering material in connection with the offer and sale of the Shares other than any Preliminary Prospectus filed with the Commission governmental body or the Final Prospectus or other material permitted by the Securities Act.
(f) Such agency having jurisdiction over such Selling Shareholder has reviewed and is familiar with the Registration Statement and the Preliminary Prospectus. To the knowledge or any property of such Selling Shareholder, other than, in the Preliminary Prospectus case of clauses (ii) and (iii), any conflict or violation that, would not affect the validity of, or adversely affect the Selling Shareholder's ability to consummate the transactions contemplated hereunder.
(g) The information in the Registration Statement under the caption "Principal and Selling Stockholders" which specifically relates to such Selling Shareholder does not, and will not include an on the Closing Date, 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, in the light of the circumstances under which they were made, not misleading.
(h) At any time during the period described in Section 5(d), if there is any change in the information referred to in Section 7(g), such Selling Shareholder will immediately notify you of such change.
(i) Such Selling Stockholder has not taken, and will not take, directly or indirectly, any action designed to, or which might reasonably be expected to, cause or result in stabilization or manipulation of the price of any security of the Company to facilitate the sale or resale of the Shares pursuant to the distribution contemplated by this Agreement, and other than as permitted by the Act, such Selling Stockholder has not distributed and will not distribute any prospectus or other offering material in connection with the offering and sale of the Shares.
(j) Each certificate signed by or on behalf of such Selling Shareholder and delivered to the Underwriters or counsel for the Underwriters shall be deemed to be a representation and warranty by such Selling Shareholder to the Underwriters as to the matters covered thereby.
Appears in 2 contracts
Samples: Underwriting Agreement (Zell Samuel), Underwriting Agreement (Cna Surety Corp)
Representations and Warranties of the Selling Shareholders. Each of the Selling ShareholdersShareholder severally, severally and not jointly, represents and warrants to to, and agrees with, each of the Underwriters that:Underwriter as set forth below in this Section 2.
(a) Such This Agreement has been duly authorized, executed and delivered by or on behalf of such Selling Shareholder.
(b) Other than any Lien granted pursuant to the applicable Margin Loan (as defined in the Prospectus), which Liens applicable to the Securities shall be discharged at the First Closing DateClosing, will have such Selling Shareholder has good and marketable valid title to the Shares set forth in Schedule II Securities to be sold by such Selling Shareholderit pursuant to this Agreement, free and clear of any liens, encumbrances, equities and claims all Liens.
(other than as imposed by the Securities Act or this Agreement), and full right, power and authority to effect the sale and delivery of such Shares; and upon the delivery of and c) Upon payment for the Shares Securities to be sold by such Selling Shareholder pursuant to this Agreement, delivery of such Securities, as directed by the Representative, to Cede & Co. (“Cede”) or such other nominee as may be designated by The Depository Trust Company (“DTC”) or CDS Clearing and Depository Services Inc. (“CDS”), as applicable, registration of such Securities in the name of Cede or such other nominee and the crediting of such Securities on the books of DTC or CDS to the securities account of the Underwriters (assuming that neither DTC, CDS nor the Underwriters has notice of any adverse claim (within the meaning of Section 8-105 of the New York Uniform Commercial Code (the “UCC”)) to such Securities), (A) DTC or CDS, as applicable, shall be a “protected purchaser” of such Securities within the meaning of Section 8-303 of the UCC, (B) under Section 8-501 of the UCC, the Underwriters will acquire a valid security entitlement in respect of such Securities, (C) no action based on any “adverse claim”, within the meaning of Section 8-102 of the UCC, to such Securities may be asserted against the Underwriters with respect to such security entitlement; and (D) the Underwriters will otherwise acquire good and marketable valid title thereto, to such Securities free and clear of any liensall Liens; for purposes of this representation, encumbrancessuch Selling Shareholder may assume that when such payment, equities delivery and claimscrediting occur, (x) such Securities will have been registered in the name of any kindCede or another nominee designated by DTC or CDS, in each case on the Company’s share registry in accordance with its articles, bylaws and applicable law, (y) DTC or CDS, as applicable, will be transferred registered as a “clearing corporation” within the meaning of Section 8-102 of the UCC and (z) appropriate entry to the Underwriters.
(b) Such Selling Shareholder has duly executed and delivered account of the Custody Agreement and Power Underwriters on the records of Attorney in the form previously delivered to the RepresentativesDTC or CDS, appointing the persons named thereinas applicable, and each of them as such Selling Shareholder's attorney-in-fact (the "Attorney-in-Fact") and as custodian (the "Custodian"). The Attorney-in-Fact is authorized to execute, deliver and perform this Agreement on behalf of such Selling Shareholder, to deliver the Shares to be sold by such Selling Shareholder hereunder, to accept payment therefor, and otherwise to act on behalf of such Selling Shareholder in connection with this Agreement, including payment from the Offering proceeds of expenses incurred on behalf of such Selling Shareholder. Certificates, in suitable form for transfer by delivery or accompanied by duly executed instruments of transfer or assignment in blank, representing the Shares to be sold by such Selling Shareholder hereunder will have been deposited with the Custodian made pursuant to the Custody Agreement and Power of Attorney for the purpose of delivery pursuant to this Agreement. Such Selling Shareholder agrees that the shares of Common Stock represented by the certificates on deposit with the Custodian are subject to the interest of the Underwriters hereunder, that the arrangements made for such custody and the appointment of the Attorney-in-Fact are to that extent irrevocable, and that the obligations of such Selling Shareholder hereunder shall not be terminated except as provided in this Agreement and the Custody Agreement and Power of Attorney. If such Selling Shareholder should die or become incapacitated, or if any other event should occur, before the delivery of the Shares of such Selling Shareholder hereunder, the certificates for such Shares deposited with the Custodian shall be delivered by the Custodian in accordance with the terms and conditions of this Agreement as if such death, incapacity or other event had not occurred, regardless of whether the Custodian or the Attorney-in-Fact shall have received notice thereof.
(c) Such Selling Shareholder, acting through his duly authorized Attorney-in-Fact, has duly executed and delivered this Agreement and the Custody Agreement and Power of Attorney; this Agreement constitutes a legal, valid and binding obligation of such Selling Shareholder, all authorizations and consents necessary for the execution and delivery of this Agreement and the Custody Agreement and Power of Attorney on behalf of such Selling Shareholder and for the sale and delivery of the Shares to be sold by such Selling Shareholder hereunder have been given, except as may be required by the Securities Act or state securities laws; and such Selling Shareholder has the legal capacity and full right, power and authority to execute this Agreement and the Custody Agreement and Power of AttorneyUCC.
(d) The performance of this Agreement execution and the Custody Agreement and Power of Attorney and the consummation of the transactions contemplated hereby and thereby delivery by such Selling Shareholder of, and the performance by such Selling Shareholder of its obligations under, this Agreement will not contravene or conflict with, result in a breach or violation of, or conflict with, any of the terms or provisions of, or constitute a default by (or, with the giving of notice or lapse of time, would be in default) under, or require the consent of any other party to, (i) the articles, by-laws or other organizational documents, as the case may be, of such Selling Shareholder underShareholder, (ii) any indenture, mortgage, deed of trust, trust (constructive or other), loan agreement, lease, franchise, license or other agreement or instrument to which such Selling Shareholder is a party or by which it is bound or (iii) any provision of applicable law or any of his or its properties is bound, or any statute, judgment, decree, order, rule decree or regulation of any court or governmental agency or body applicable to such Selling Shareholder of any court, regulatory body, administrative agency, governmental body or arbitrator having jurisdiction over such Selling Shareholder, except, in the case of the foregoing clauses (ii) and (iii) as would not, individually or in the aggregate, reasonably be expected to materially impact such Selling Shareholder’s ability to perform its obligations under this Agreement. No consent, approval, authorization or other order of, or registration or filing with, any court or other governmental authority or agency, is required for the consummation by such Selling Shareholder of histhe transactions contemplated in this Agreement, her except such as may be required under the Securities Act, applicable state securities or its propertiesblue sky laws and from the FINRA and such other approvals as have been or will be made or obtained on or prior to the Closing Date.
(e) Such Selling Shareholder has not distributed nor, other than as permitted by All information furnished to the Securities Act and the Rules and Regulations, will distribute any prospectus or other offering material in connection with the offer and sale of the Shares other than any Preliminary Prospectus filed with the Commission Company or the Final Prospectus Underwriters by or other material permitted by the Securities Act.
(f) Such Selling Shareholder has reviewed and is familiar with the Registration Statement and the Preliminary Prospectus. To the knowledge on behalf of such Selling ShareholderShareholder in writing expressly for use in the Registration Statement, the Preliminary Prospectus does not include an Disclosure Package and the Prospectuses is, and on the Closing Date will be, true, correct and complete in all material respects, and did not, and as of the Closing Date will not, contain any untrue statement of a material fact or omit to state a any material fact necessary in order to make such information not misleading, it being understood and agreed that the statements therein, only such information consists of the information with respect to such Selling Shareholder under the captions “Selling Shareholders” and “Use of Proceeds” in the light Pricing Disclosure Package and the Prospectuses (such information, the “Selling Shareholder Information”).
(f) Prior to the completion of the circumstances under Underwriters’ distribution of the Securities, such Selling Shareholder has not distributed and will not distribute any offering material in connection with the offering and sale of the Securities other than the Disclosure Package and the Prospectuses.
(g) Such Selling Shareholder has not taken and will not take, directly or indirectly, any action that is designed to or that has constituted or that might reasonably be expected to cause or result in stabilization or manipulation of the price of any security of the Company to facilitate the sale or resale of the Securities.
(h) Except as provided herein, there is no Person which they were made, not misleadinghas been engaged by such Selling Shareholder to act for such Selling Shareholder and which is entitled to any brokerage or finder’s fee in connection with the completion of this Agreement or any of the transactions contemplated hereunder. Any certificate signed by or on behalf of such Selling Shareholder and delivered to the Representative or to counsel for the Underwriters in connection with the offering of the Securities shall be deemed a representation and warranty by such Selling Shareholder to the Underwriters as to the matters covered thereby with respect to such Selling Shareholder. Such Selling Shareholder has a reasonable basis for making each of the representations set forth in this Section 2. Such Selling Shareholder further acknowledges that the Underwriters will rely upon the accuracy and truthfulness of the foregoing representations and hereby consents to such reliance.
Appears in 2 contracts
Samples: Underwriting Agreement (GFL Environmental Inc.), Underwriting Agreement (GFL Environmental Inc.)
Representations and Warranties of the Selling Shareholders. Each of the Selling Shareholders, Shareholder severally and not jointly, jointly represents and warrants to to, and agrees with, each of the Underwriters as of the date hereof and as of the Closing Date that:
(a) Such Selling Shareholder, at the First Closing Date, will have good and marketable title to the Shares set forth in Schedule II to be sold by such Selling Shareholder, free and clear of any liens, encumbrances, equities and claims (other than as imposed by the Securities Act or this Agreement), and Shareholder has full right, power and authority to effect execute and deliver this Agreement, to perform its obligations hereunder and to consummate the sale transactions contemplated by this Agreement, the Registration Statement and delivery of the Prospectus. This Agreement and the transactions contemplated by this Agreement, the Registration Statement and the Prospectus have been duly and validly authorized by such Shares; Selling Shareholder. This Agreement has been duly and upon the delivery of validly executed and payment for the Shares to be sold delivered by such Selling Shareholder pursuant and constitutes the legal, valid and binding obligation of such Selling Shareholder, enforceable in accordance with its terms, except as enforceability may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or similar laws affecting creditors’ rights generally and except as enforceability may be subject to this Agreement, good and marketable title thereto, free and clear general principles of any liens, encumbrances, equities and claims, equity (regardless of any kind, will be transferred to the Underwriterswhether such enforceability is considered in a proceeding in equity or at law).
(b) Such Selling Shareholder has duly executed full right, power and delivered the authority to execute and deliver a Custody Agreement and Power of Attorney substantially in the form previously delivered to the Representatives, appointing the persons named therein, of Exhibits D and each of them as E hereto (such Selling Shareholder's attorney-in-fact (’s “Custody Agreement” and “Power of Attorney”, respectively), to perform its obligations thereunder and to consummate the "Attorney-in-Fact") and as custodian (the "Custodian")transactions contemplated thereby. The Attorney-in-Fact is Custody Agreement and Power of Attorney and the transactions contemplated thereby have been duly and validly authorized to executeby such Selling Shareholder. The Custody Agreement and Power of Attorney have each been duly and validly executed and delivered by such Selling Shareholder and constitute the legal, deliver valid and perform this Agreement on behalf binding obligation of such Selling Shareholder, enforceable in accordance with its terms, except as enforceability may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or similar laws affecting creditors’ rights generally and except as enforceability may be subject to deliver general principles of equity (regardless of whether such enforceability is considered in a proceeding in equity or at law). Counterparts of such Selling Shareholder’s Custody Agreement, duly signed by (i) National City Bank, as custodian (in such capacity, the “Custodian”), and (ii) such Selling Shareholder have been delivered to the Company and the Representatives on or prior to the date of this Agreement.
(c) Such Selling Shareholder agrees that the Shares to be sold by such Selling Shareholder hereunderShareholder, to accept payment therefor, and otherwise to act on behalf of such Selling Shareholder in connection with this Agreement, including payment from the Offering proceeds of expenses incurred on behalf of such Selling Shareholder. Certificates, in suitable form for transfer by delivery whether or accompanied by duly executed instruments of transfer or assignment in blank, representing the Shares to be sold by such Selling Shareholder hereunder have been deposited with the Custodian pursuant to the Custody Agreement and Power of Attorney for the purpose of delivery pursuant to this Agreement. Such Selling Shareholder agrees that the shares of Common Stock represented by the certificates not on deposit with the Custodian Custodian, are subject to the interest interests of the Underwriters hereunderUnderwriters, that the arrangements made for such custody and the appointment of the Attorney-in-Fact are to that extent irrevocable, and that the obligations of such Selling Shareholder hereunder shall not be terminated terminated, except as provided in this Agreement and or in the Custody Agreement and Power of Attorney, by any act of such Selling Shareholder, by operation of law or by the occurrence of any other event. If such Selling Shareholder should die or become incapacitated, or if any other event should occur, occur affecting the legal status or capacity of such Selling Shareholder before the delivery of the Selling Shareholders’ Shares of such to be sold by a Selling Shareholder hereunder, the certificates for documents evidencing the Selling Shareholders’ Shares, to be sold by such Shares deposited Selling Shareholder then on deposit with the Custodian shall be delivered by the Custodian in accordance with the terms and conditions of this Agreement as if such death, incapacity or other event had not occurred, regardless of whether or not the Custodian or the Attorney-in-Fact shall have received notice thereof.
(cd) Such Selling ShareholderShareholder has, acting through his duly authorized Attorney-in-Factand on the Closing Date, has duly executed will have, good and delivered this Agreement valid title to and is the Custody Agreement and Power of Attorney; this Agreement constitutes a legal, valid and binding obligation of such Selling Shareholder, all authorizations and consents necessary for the execution and delivery of this Agreement and the Custody Agreement and Power of Attorney on behalf of such Selling Shareholder and for the sale and delivery lawful owner of the Shares to be sold by such Selling Shareholder hereunder have been givenand upon sale and delivery of, except and payment for, such Shares as may be required by the Securities Act or state securities laws; and provided herein, such Selling Shareholder has will convey to the Underwriters good and marketable title to such Shares, free and clear of all Liens. Certificates for all of the Shares to be sold by such Selling Shareholder pursuant to this Agreement, in suitable form for transfer by delivery or accompanied by duly executed instruments of transfer or assignment in blank with signatures guaranteed, have been placed in custody with the Custodian with irrevocable conditional instructions to deliver such Shares to the Underwriters pursuant to this Agreement.
(e) No Consent of, from or with any judicial, regulatory or other legal capacity or governmental agency or body or any third party, foreign or domestic, is required for the execution, delivery and full right, power and authority to execute performance by such Selling Shareholder of this Agreement and the or its Custody Agreement and Power of Attorney, or consummation by the Selling Shareholders of the transactions contemplated herein or therein, except such as have been obtained under the Securities Act and such as may be required under the state securities laws, the blue sky laws of any jurisdiction, the NASD or NASDR in connection with the purchase and distribution of such Selling Shareholder’s Shares by the Underwriters.
(df) The execution, delivery and performance of this Agreement and Agreement, the Custody Agreement and Power of Attorney and the consummation of the transactions contemplated hereby and thereby Custody Agreement by such Selling Shareholder and consummation of any of the other transactions contemplated herein and therein by the Selling Shareholder or the fulfillment of the terms hereof by the Selling Shareholder will not (i) conflict with, result in a breach or violation of, or conflict with, any of the terms or provisions of, or constitute a default by such (or an event that with notice or lapse of time, or both, would constitute a default) under, or result in the creation or imposition of any lien, charge or encumbrance upon any property or assets of the Selling Shareholder underpursuant to any law, statute, rule or regulation or the terms of any indenture, mortgage, deed of trust, trust (constructive or other), loan agreement, lease, franchise, license indenture or other agreement or instrument to which such Selling Shareholder is party or any of his or its properties is bound, or to which any statuteof the property or assets of such Selling Shareholder is subject, or (ii) if such Selling Shareholder is not a natural person, result in any violation of the provisions of any charter or bylaws or certificate of formation, trust agreement, partnership agreement, articles of partnership or other organizational documents, as applicable, of the Selling Shareholder, or (iii) result in any violation or breach of any judgment, decreeorder, orderdecree statute, rule or regulation of any court or governmental agency or body applicable to such Selling Shareholder of any court or any of hispublic, her governmental or its propertiesregulatory agency or body, administrative agency or arbitrator having jurisdiction over such Selling Shareholder.
(eg) Such 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, except for such rights as have been waived or which are described in the Prospectus (and which have been complied with).
(h) Such Selling Shareholder does not have, or has waived prior to the date hereof, any preemptive right, co-sale right or right of first refusal or other similar right to purchase any of the Shares that are to be sold by the Company or any other Selling Shareholder to the Underwriters pursuant to this Agreement; and such Selling Shareholder does not distributed norown any warrants, options or similar rights to acquire, and does not have any right or arrangement to acquire, any capital stock, right, warrants, options or other securities from the Company, other than those described in the Registration Statement and the Prospectus.
(i) Except as permitted disclosed in the Prospectus, there are no contracts, agreements or understandings between such 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 such Selling Shareholder’s knowledge, any other arrangements, agreements, understandings, payments or issuance with respect to the Company or any of its officers, directors, shareholders, partners, employees, Subsidiaries or affiliates that may affect the Underwriters’ compensation as determined by the NASD.
(j) At the time of the effectiveness of the Registration Statement or any Rule 462(b) Registration Statement or the effectiveness of any post-effective amendment to the Registration Statement, when the Prospectus is first filed with the Commission pursuant to Rule 424(b) of the Rules and Regulations, when any supplement to or amendment of the Prospectus is filed with the Commission and at the Closing Date and the Additional Closing Date, if any, the Registration Statement and the Prospectus and any amendments thereof and supplements thereto complied or will comply in all material respects with the applicable provisions of the Securities Act, the Exchange Act and the Rules and Regulations and did not and will not contain an untrue statement of a material fact and did not and will not omit to state any material fact required to be stated therein or necessary in order to make the statements therein (i) in the case of the Registration Statement, not misleading and (ii) in the case of the Prospectus or any related Preliminary Prospectus in light of the circumstances under which they were made, not misleading. When any related Preliminary Prospectus was first filed with the Commission (whether filed as part of the registration statement for the registration of the Shares or any amendment or supplement thereto or pursuant to Rule 424 under the Securities Act) and when any amendment thereof or supplement thereto was first filed with the Commission, such Preliminary Prospectus and any amendments thereof and supplements thereto complied in all material respects with the applicable provisions of the Securities Act and the Rules and RegulationsRegulations and did not contain an untrue statement of a material fact and did not omit to state any material fact required to be stated therein or necessary in order to make the statements therein, will distribute any prospectus or other offering material in connection with the offer and sale light of the Shares other than circumstances under which they were made, not misleading. The two preceding sentences apply only to the extent that any statements in or omissions from the Registration Statement, the Preliminary Prospectus filed with the Commission or the Final Prospectus or other material permitted are made in reliance upon and in conformity with written information furnished to the Company by such Selling Shareholder expressly for use therein, it being agreed that the Securities Actonly such information is that which is included under the headings “Selling Shareholders” which relates to such Selling Shareholder.
(fk) Such Selling Shareholder has reviewed and is familiar with the Registration Statement and the Prospectus and (i) has no knowledge of any material adverse information with regard to the Company or the Subsidiaries which is not disclosed in the Registration Statement and the Prospectus and (ii) is not prompted to sell the Shares to be sold by the Selling Shareholder by any information concerning the Company or any Subsidiary which is not set forth in the Registration Statement and the Prospectus.
(l) Such Selling Shareholder has not taken and will not take, directly or indirectly, any action designed to, or that could be reasonably expected to, cause or result in stabilization or manipulation of the price of the Common Stock to facilitate the sale or resale of the Shares.
(m) Such Selling Shareholder has not distributed and will not distribute, prior to the later of the Additional Closing Date, if any, and the completion of the Underwriters’ distribution of the Shares, any offering material in connection with the offering and sale of the Shares by the Selling Shareholders other than a Preliminary Prospectus. To , the knowledge Prospectus or the Registration Statement.
(n) The representations and warranties of such Selling ShareholderShareholder in its Custody Agreement and Power of Attorney are, and on the Preliminary Prospectus does not include an untrue statement of a material fact Closing Date will be, true and correct. Any certificate signed by or omit to state a material fact necessary in order to make the statements therein, in the light on behalf of the circumstances under which they were made, not misleadingSelling Shareholder and delivered to the Representatives or to counsel for the Underwriters shall be deemed to be a representation and warranty by such Selling Shareholder to each Underwriter as to the matters covered thereby.
Appears in 2 contracts
Samples: Underwriting Agreement (Albemarle Corp), Underwriting Agreement (Albemarle Corp)
Representations and Warranties of the Selling Shareholders. Each of the Selling Shareholders, severally and not jointly, represents and warrants to and agrees with, each of the Underwriters thatas follows:
(a) Such Except with respect to any Option Shares to be acquired by such Selling Shareholder, such Selling Shareholder is the record owner of and now has and at the First Closing Date and the Over-Allotment Closing Date, if any, will have good and marketable valid title to the Shares set forth in Schedule II to be sold by such Selling Shareholder, free and clear of any liens, encumbrances, equities and claims (other than as imposed except for any liens, encumbrances, equities and claims arising under the Custody Agreement and Power of Attorney described in Section 3(b) of this Agreement that has been executed and delivered by such Selling Shareholder). At the Securities Act or this Agreement)Closing Date and any Over-Allotment Closing Date, and full rightif any, power and authority to effect such Selling Shareholder will be the sale and delivery of such Shares; and upon the delivery record owner of and will have valid title to any Option Shares to be sold by such Selling Shareholder, free and clear of any liens, encumbrances, equities and claims (except for any liens, encumbrances, equities and claims arising under the Custody Agreement and Power of Attorney that has been executed and delivered by such Selling Shareholder).
(b) Upon payment for the Shares to be sold by such Selling Shareholder pursuant to this Agreement, good delivery of such Shares, as directed by the Underwriters, to such nominee as may be designated by the Depository Trust Company, New York, NY (“DTC”), registration of such Shares in the name of such nominee and marketable title theretothe crediting of such Shares on the books of DTC to securities accounts of the Underwriters, (A) DTC shall be a “protected purchaser” of such Shares within the meaning of Section 8-303 of the NYUCC, and (B) under Section 8-501 of the NYUCC, the Underwriters will acquire a valid security entitlement in respect of such Shares, free and clear of any liens, encumbrances, equities and claims; for purposes of this representation, such Selling Shareholder may assume that when such payment, delivery and crediting occur, (x) such Shares will have been registered in the name of any kinda nominee designated by DTC, in each case on the Issuer’s share registry in accordance with its certificate of incorporation, bylaws and applicable law, (y) DTC will be transferred registered as a “clearing corporation” within the meaning of Section 8-102 of the UCC and (z) appropriate entries to the Underwritersaccounts of the several Underwriters on the records of DTC will have been made pursuant to the UCC.
(bc) Such Selling Shareholder has duly executed and delivered the Custody Agreement and Power of Attorney in the form previously delivered to the Representatives, appointing the persons named therein, and each of them as such Selling Shareholder's attorney-in-fact (the "Attorney-in-Fact") and as custodian (the "Custodian"). The Attorney-in-Fact is authorized to execute, deliver and perform this Agreement on behalf of such Selling Shareholder, to deliver the Shares to be sold by such Selling Shareholder hereunder, to accept payment therefor, and otherwise to act on behalf of such Selling Shareholder in connection with this Agreement, including payment from the Offering proceeds of expenses incurred on behalf of such Selling Shareholder. Certificates, in suitable form for transfer by delivery or accompanied by duly executed instruments of transfer or assignment in blank, representing the Shares to be sold by such Selling Shareholder hereunder have been deposited with the Custodian pursuant to the Custody Agreement and Power of Attorney for the purpose of delivery pursuant to this Agreement. Such Selling Shareholder agrees that the shares of Common Stock represented by the certificates on deposit with the Custodian are subject to the interest of the Underwriters hereunder, that the arrangements made for such custody and the appointment of the Attorney-in-Fact are to that extent irrevocable, and that the obligations of such Selling Shareholder hereunder shall not be terminated except as provided in this This Agreement and the Custody Agreement and Power of Attorney. If Attorney have been duly authorized, executed and delivered by such Selling Shareholder should die or become incapacitated, or if any other event should occur, before the delivery of the Shares of such Selling Shareholder hereunder, the certificates for such Shares deposited with the Custodian shall be delivered by the Custodian in accordance with the terms and conditions of this Agreement as if such death, incapacity or other event had not occurred, regardless of whether the Custodian or the Attorney-in-Fact shall have received notice thereof.
(c) Such Selling Shareholder, acting through his duly authorized Attorney-in-Fact, has duly executed and delivered this Agreement and the Custody Agreement and Power of Attorney; this Agreement constitutes a legal, are valid and binding obligation agreements of such Selling Shareholder, all authorizations and consents necessary for the . The execution and delivery of this Agreement and the Custody Agreement and Power of Attorney on behalf of such Selling Shareholder and for the sale and delivery of the Shares to be sold consummation by such Selling Shareholder hereunder have been givenof the transactions contemplated thereby and the fulfillment by such Selling Shareholder of the terms thereof will not require any consent, approval, authorization, or other order of any court, regulatory body, administrative agency or other governmental body (except as may be required by under the Securities Act or and state securities or Blue Sky laws; ) and such Selling Shareholder has the legal capacity and full right, power and authority to execute this Agreement and the Custody Agreement and Power of Attorney.
(d) The performance of this Agreement and the Custody Agreement and Power of Attorney and the consummation of the transactions contemplated hereby and thereby by such Selling Shareholder will not result in a breach or violation of, or conflict with, of any of the terms or and provisions of, or constitute a default by under, (i) organizational documents of such Selling Shareholder underShareholder, if not an individual, (ii) any indenture, mortgage, deed of trust, trust (constructive or other), loan agreement, lease, franchise, license or other agreement or instrument to which such Selling Shareholder or any of his or its properties is bounda party, or (iii) of any statute, judgment, decree, order, rule or regulation of any court or governmental agency or body applicable to such Selling Shareholder of any court or of any regulatory body or administrative agency or other governmental body having jurisdiction, except, with respect to clauses (ii) and (iii), where the failure to obtain such consents, approvals, authorizations or orders, or the occurrence of such breaches or defaults, would not materially adversely affect the power or ability of such Selling Shareholder to perform its obligations under this Agreement or the Custody Agreement and Power of Attorney or to consummate the transactions contemplated hereby and thereby.
(d) Such Selling Shareholder has not taken, directly or indirectly, any action designed to, or which has constituted, or which might reasonably be expected to cause or result in the stabilization or manipulation of the price of the Common Stock of the Issuer and, except as permitted by the Securities Act and consented to in advance by the Representatives, the Selling Shareholder has not distributed any Free Writing Prospectus, Preliminary Prospectus, the Prospectus or any other offering material in connection with the offering of the Shares.
(e) Except as disclosed by such Selling Shareholder in writing to the Representatives, neither such Selling Shareholder nor any of his, her or its properties.
(e) Such Selling Shareholder affiliates directly, or indirectly through one or more intermediaries, controls, or is controlled by, or is under common control with, or has not distributed nor, any other than as permitted by the Securities Act and the Rules and Regulations, will distribute affiliations or associations with any prospectus or other offering material in connection with the offer and sale member of the Shares other than any Preliminary Prospectus filed with the Commission or the Final Prospectus or other material permitted by the Securities ActFINRA.
(f) Such The information pertaining to such Selling Shareholder under the caption “Principal and Selling Shareholders” in the Pricing Prospectus and Prospectus, and any Free Writing Prospectus containing information pertaining to such Selling Shareholder that has reviewed and is familiar with the Registration Statement and the Preliminary Prospectus. To the knowledge of been provided by such Selling Shareholder, is complete and accurate in all material respects. The Registration Statement does not, and any further amendments to the Preliminary Prospectus does not include Registration Statement will not, when they become effective, contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading; the Prospectus does not, and as amended or supplemented on the Closing Date will not, contain an 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 the Disclosure Package, as of the Applicable Time, did not include any untrue statement of a material fact or omit to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading; provided, that all of the representations and warranties set forth in this second sentence of clause (f) apply only to (1) information with respect to such Selling Shareholder set forth in the Registration Statement, the Prospectus, the Disclosure Package or any amendment or supplement thereto in reliance upon and in conformity with written information furnished to the Issuer by such Selling Shareholder expressly for use therein, it being understood and agreed that the only such information furnished by each Selling Shareholder consists of the statements with respect to such Selling Shareholder under the caption “Principal and Selling Shareholders” in the Prospectus and the Disclosure Package (with respect to each Selling Shareholder, the “Selling Shareholder Information”); and (2) information with respect to any position, office or other relationship that such Selling Shareholder has had with, and that is material to, the Issuer or any of its predecessors or affiliates within the three years prior to the date of the Prospectus. The sale of the Firm Securities by such Selling Shareholder pursuant hereto is not prompted by any information concerning the Issuer or any of the Subsidiaries which is not set forth in the Registration Statement, Prospectus or Disclosure Package.
(g) Each Selling Shareholder that is selling Option Shares hereby severally, and not jointly, represents and warrants to each of the Underwriters that the arrangements made by such Selling Shareholder for the exercise of the Options exercisable for the Option Shares are in proper form for the irrevocable exercise of such Options in accordance with the terms of the applicable Issuer Stock Plan (as hereinafter defined); and that on or before the Closing Date, such Options will be duly and irrevocably exercised in accordance with the terms of the applicable Issuer Stock Plan, and the exercise of such Options shall not be terminable by any act or deed of such Selling Shareholder (or by any other person, firm or corporation including the Issuer, the Custodian or the Attorney-in-Fact)or by operation of law or otherwise (including the death of such Selling Shareholder if an individual or the dissolution or winding up of such Selling Shareholder if an entity).
Appears in 2 contracts
Samples: Equity Underwriting Agreement (Matador Resources Co), Equity Underwriting Agreement (Matador Resources Co)
Representations and Warranties of the Selling Shareholders. Each of the Selling Shareholders, severally and not jointly, Shareholders represents and warrants (as to and agrees with, each of himself or herself only) to the Underwriters that:
(a) Such Selling Shareholder, at the First Closing Date, will have good and marketable title to the The Optional Shares set forth in Schedule II to be sold by such Selling ShareholderShareholder are, and on the Option Closing Date will be, duly and validly authorized and validly issued, fully paid and nonassessable; such Selling Shareholder will have on the Option Closing Date valid, marketable title to such Optional Shares, free and clear of any all liens, encumbrances, equities encumbrances and claims (other than as imposed by the Securities Act or this Agreement)whatsoever, and with full right, power right and authority to effect the sale sell and delivery of deliver such Optional Shares; and upon the delivery of and payment for such Optional Shares as herein contemplated the Shares to be sold by such Selling Shareholder pursuant to this AgreementUnderwriters will receive valid, good and marketable title thereto, free and clear of any all liens, encumbrances, equities encumbrances and claims, of except any kind, will that may be transferred to created by the Underwriters' own action.
(b) No information furnished to the Company in writing by such Selling Shareholder for use in, or in connection with the preparation of, the Registration Statement or the Prospectus contained an untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary to make the statements therein not misleading. Each Selling Shareholder hereby confirms he or she has furnished to the Company for such use the statements with respect to such Selling Shareholder contained in the "Principal and Selling Shareholders" section of the Prospectus.
(c) Such Selling Shareholder has duly executed and delivered the Custody Agreement and Power of Attorney in the form previously delivered authorized _______________ to the Representatives, appointing the persons named therein, and each of them act as such Selling Shareholder's attorney-in-fact (the "Attorney-in-Fact") and as custodian for such Selling Shareholder pursuant to a power of attorney the ("Power of Attorney") executed by such Selling Shareholder pursuant to which the "Custodian"). The Attorney-in-Fact is authorized to execute, deliver and perform this Agreement on behalf of such Selling Shareholder, to deliver the Shares to be sold by such Selling Shareholder hereunder, to accept payment therefor, and otherwise to act on behalf of such Selling Shareholder to execute any documents necessary or desirable in connection with this Agreementthe sale of the Optional Shares, including payment to make delivery of the certificates for the Optional Shares, to receive the proceeds of the sale of the Shares and to give a receipt therefor and to distribute the proceeds from the Offering proceeds of expenses incurred on behalf sale of such Selling Shareholder's Optional Shares to such Selling Shareholder. Certificates, in suitable form for transfer by delivery or accompanied by Such Selling Shareholder has duly executed instruments a custody agreement (the "Custody Agreement") with the Attorney-in Fact, and pursuant thereto has caused a certificate or certificates for the number of transfer or assignment in blank, representing the Optional Shares to be sold by such Selling Shareholder hereunder have been deposited with the Custodian pursuant to the Custody Agreement and Power of Attorney for the purpose of delivery pursuant be delivered to this Agreement. Such Selling Shareholder agrees that the shares of Common Stock represented by the certificates on deposit with the Custodian are subject to the interest of the Underwriters hereunder, that the arrangements made for such custody and the appointment of the Attorney-in-Fact are with instructions and irrevocable authority to that extent irrevocablepurchase all requisite stock transfer tax stamps and to hold such certificate or certificates in custody for delivery, and that or for exchange for other certificates in proper form for delivery, pursuant to the obligations provisions hereof on the Option Closing Date.
(d) Each of such Selling Shareholder hereunder shall not be terminated except as provided in this Agreement and the Power of Attorney, the Custody Agreement and Power of Attorney. If such Selling Shareholder should die or become incapacitated, or if any other event should occur, before the delivery of the Shares of such Selling Shareholder hereunder, the certificates for such Shares deposited with the Custodian shall be delivered by the Custodian in accordance with the terms and conditions of this Agreement as if such death, incapacity or other event had not occurred, regardless of whether the Custodian or the Attorney-in-Fact shall have received notice thereof.
(c) Such Selling Shareholder, acting through his duly authorized Attorney-in-Fact, has duly executed and delivered this Agreement and the Custody Agreement and Power of Attorney; this Agreement constitutes a legal, the valid and binding obligation of such Selling ShareholderStockholder, all enforceable against such Selling Shareholder in accordance with its terms subject, as to enforcement of remedies, to applicable bankruptcy, fraudulent conveyance, insolvency, reorganization, moratorium and other laws affecting the rights of creditors generally and the discretion of courts in granting equitable remedies and except that enforceability of the indemnification provisions set forth in Section 8 hereof and the contribution provisions set forth in Section 9 hereof may be limited by the United States federal securities laws or the public policy underlying such laws.
(e) All authorizations and consents necessary for the execution and delivery by such Selling Shareholder of this Agreement and the Custody Agreement sale and Power of Attorney on behalf delivery hereunder of such Selling Shareholder and for the sale and delivery of the Shareholder's Optional Shares to be sold by such Selling Shareholder hereunder have been given, except as may obtained and are in full force and effect on the date hereof and will be required by in full force and effect at the Securities Act or state securities laws; and such Selling Shareholder has the legal capacity and full right, power and authority to execute this Agreement and the Custody Agreement and Power of Attorney.
(d) The performance of this Agreement and the Custody Agreement and Power of Attorney and the consummation of the transactions contemplated hereby and thereby by such Selling Shareholder will not result in a breach or violation of, or conflict with, any of the terms or provisions of, or constitute a default by such Selling Shareholder under, any indenture, mortgage, deed of trust, trust (constructive or other), loan agreement, lease, franchise, license or other agreement or instrument to which such Selling Shareholder or any of his or its properties is bound, or any statute, judgment, decree, order, rule or regulation of any court or governmental agency or body applicable to such Selling Shareholder or any of his, her or its properties.
(e) Such Selling Shareholder has not distributed nor, other than as permitted by the Securities Act and the Rules and Regulations, will distribute any prospectus or other offering material in connection with the offer and sale of the Shares other than any Preliminary Prospectus filed with the Commission or the Final Prospectus or other material permitted by the Securities ActClosing Date.
(f) Such Selling Shareholder has reviewed and is familiar with the Registration Statement and the Preliminary Prospectus. To the knowledge The sale of such Selling Shareholder, 's Optional Shares by such Selling Shareholder pursuant to this Agreement is not prompted by any material information concerning the Preliminary Prospectus does Company known by such Selling Shareholder which is not include an untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, set forth in the light of the circumstances under which they were made, not misleadingProspectus.
Appears in 1 contract
Representations and Warranties of the Selling Shareholders. Each of the Selling Shareholders, severally and not jointly, Shareholders (except as expressly limited below) represents and warrants to to, and agrees with, each of the several Underwriters that:
(ai) Such Selling Shareholder, at the First Closing Date, will have good and marketable title to the Shares set forth in Schedule II to be sold by such Selling Shareholder, free and clear of any liens, encumbrances, equities and claims (other than as imposed by the Securities Act or this Agreement), and full right, power and authority to effect the sale and delivery of such Shares; and upon the delivery of and payment for the Shares to be sold by such Selling Shareholder pursuant to this Agreement, good and marketable title thereto, free and clear of any liens, encumbrances, equities and claims, of any kind, will be transferred to the Underwriters.
(b) Such Selling Shareholder has duly executed and delivered a power of attorney in the form contained in the Custody Agreement and Power of Attorney in the form previously delivered to the Representatives, (as defined below) appointing the persons named therein, and each of them Xxxx Xxxxx as such Selling Shareholder's attorney-in-fact (the "Attorney-in-Fact") and as custodian (); the "Custodian"). The Attorney-in-Fact is authorized to execute, deliver and perform this Agreement on behalf of such Selling Shareholder, including, without limitation, the authority to deliver determine the Shares purchase price to be sold by paid to each such Selling Shareholder hereunder, to accept payment thereforby the Underwriters as set forth in Section 2 of this Agreement, and otherwise to act on behalf of in connection therewith such Selling Shareholder in connection with this has duly executed and delivered a Power of Attorney and Custody Agreement (the "Custody Agreement, including payment from the Offering proceeds of expenses incurred on behalf of such Selling Shareholder. Certificates"), in suitable the form for transfer by delivery or accompanied by duly executed instruments of transfer or assignment heretofore delivered to the Representatives, with American Stock Transfer & Trust Company as custodian (the "Custodian"). Certificates in blank, negotiable form representing the Shares to be sold by such Selling Shareholder hereunder have been or will be deposited with the Custodian pursuant to the Custody Agreement and Power of Attorney for the purpose of delivery pursuant to this Agreement. Such Selling Shareholder agrees that the shares of Common Stock Shares represented by the certificates which are either on deposit or which will be on deposit with the Custodian are subject to the interest interests of the Underwriters hereunder, that the arrangements made for such custody and the appointment of the Attorney-in-Fact are to that extent irrevocable, and that the obligations of such Selling Shareholder hereunder shall not be terminated except as provided in this Agreement and or the Custody Agreement and Power Agreement, by any act of Attorneysuch Selling Shareholder, by operation of law or otherwise, whether, in the case of an individual Selling Shareholder, by the death or incapacity of such Selling Shareholder, or by the occurrence of any other event. If such any individual Selling Shareholder should die or become incapacitated, or if any other event should occur, before the delivery of the Shares of to be sold by such Selling Shareholder hereunder, the certificates for such Shares deposited with the Custodian shall be delivered by the Custodian in accordance with the terms and conditions of this Agreement and the Custody Agreement as if such death, incapacity incapacity, or other event had not occurred, regardless of whether or not the Custodian or the Attorney-in-Fact shall have received notice thereof.;
(cii) Such such Selling ShareholderShareholder has the full right, acting through his duly authorized Attorney-in-Fact, has duly executed power and delivered authority to enter into this Agreement and the Custody Agreement and Power of Attorney; this Agreement constitutes a legalto sell, valid transfer and binding obligation of such Selling Shareholder, all authorizations and consents necessary for the execution and delivery of this Agreement and the Custody Agreement and Power of Attorney on behalf of such Selling Shareholder and for the sale and delivery of deliver the Shares to be sold by such Selling Shareholder hereunder have been givenhereunder, except as may be required by the Securities Act or state securities laws; and such Selling Shareholder has the legal capacity and full right, power and authority to execute this Agreement and the Custody Agreement have been duly authorized, executed and Power delivered by such Selling Shareholder and constitute the legal, valid and binding obligations of Attorney.
(d) such Selling Shareholder enforceable in accordance with their respective terms, subject to equitable principles. The performance execution and delivery of this Agreement and the Custody Agreement and Power of Attorney and the consummation of the transactions contemplated hereby and thereby by such Selling Shareholder the Custody Agreement will not result in a violation or breach or violation of, or conflict with, any of the terms or provisions by such Selling Shareholder of, or constitute a default by such Selling Shareholder under, any indenture, mortgage, deed of trust, trust (constructive note, bank loan or other), loan agreement, lease, franchise, license credit agreement or any other agreement or instrument to which such Selling Shareholder is a party or any of his or its properties by which such Selling Shareholder is bound, any organizational document relating to such Selling Shareholder (including, without limitation, any partnership agreement, articles of incorporation, or bylaws), or any statute, judgment, decree, order, rule or regulation of any court or governmental agency or body applicable to such Selling Shareholder or any of his, her or its properties.Shareholder;
(eiii) Such all authorizations, approvals and consents necessary for the execution and delivery by such Selling Shareholder has not distributed norof the Custody Agreement, other than as permitted the execution and delivery by the Securities Act or on behalf of such Selling Shareholder of this Agreement, and the Rules sale and Regulations, will distribute any prospectus or other offering material in connection with the offer and sale delivery of the Shares to be sold by such Selling Shareholder hereunder (other than any Preliminary Prospectus filed with such authorizations, approvals or consents as may be necessary under the Commission state securities or Blue Sky laws), have been obtained and are in full force and effect;
(iv) such Selling Shareholder now is, and on the Final Prospectus Closing Date will be, the lawful owner of the Shares to be sold by such Selling Shareholder pursuant to this Agreement. On the Closing Date, such Selling Shareholder will have valid and marketable title to such Shares, free and clear of all liens, encumbrances, security, interests or other material permitted by restrictions (other than those created under the Securities Act.Custody Agreement); and upon proper delivery of and payment for such Shares as provided herein, the Underwriters will acquire valid and marketable title thereto, free and clear of any pledge, lien, security interest, encumbrance, claim or equitable interest, including any liability for estate or inheritance taxes, or any liability to or claims of any creditor, devisee, legatee or beneficiary of such Selling Shareholder;
(fv) Such Selling Shareholder has reviewed and is familiar with the Registration Statement and the Preliminary Prospectus. To to the knowledge of such Selling Shareholder, the Preliminary representations and warranties of the Company contained in Section l(a) hereof are true and correct; such Selling Shareholder has examined the Registration Statement and the Prospectus does and has no knowledge of any fact, condition or information not include an disclosed therein which has adversely affected or could adversely affect the general affairs, assets, properties, condition (financial or otherwise), results of operations, shareholders' equity, business or prospects of the Company or the Subsidiaries, taken as a whole; to the knowledge of such Selling Shareholder after review of the Registration Statement and Prospectus, neither the Registration Statement nor the Prospectus contains any untrue statement of a material fact or omit omits to state any material fact required to be stated therein or necessary to make the statements therein not misleading; and such Selling Shareholder is not prompted to sell the Shares to be sold by such Selling Shareholder hereunder by any information concerning the Company or any Subsidiary which is not set forth in the Prospectus;
(vi) such Selling Shareholder has examined the Registration Statement and the Prospectus and the information relating to such Selling Shareholder set forth therein and, as to such information, neither the Registration Statement nor the Prospectus contains any untrue statement of a material fact or omits to state any material fact required to be stated therein or necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleadingmisleading and such Selling Shareholder hereby acknowledges that the two paragraphs appearing on the inside front cover of the Prospectus and the allocation of Shares among the Underwriters, the dollar amounts of the concessions in the paragraph that follows the tabular list of Underwriters and the last five paragrphs appearing under the caption "Underwriting" constitute the only statements in any Preliminary Prospectus, the Registration Statement or the Propsectus made in reliance upon and in conformity with information furnished by or on behalf of any Underwriter and that no statement was omitted from any Preliminary Prospectus, the Registration Statement or the Propsectus in reliance upon and in conformity with information furnished by or on behalf of any Underwriter;
(vii) such Selling Shareholder will comply in all respects with the lock-up agreement executed by such Selling Shareholder in favor of Xxxx Xxxxx Xxxx Xxxxxx, Incorporated, as more fully described in Paragraph 5(k) below;
(viii) such Selling Shareholder has not incurred any liability for any finder's fee or similar payments in connection with the sale of such Selling Shareholder's Shares hereunder; and
(ix) such Selling Shareholder (A) has not distributed and will not distribute any offering material in connection with the offering and sale of the Shares other than the Registration Statement, a Preliminary Prospectus, the Prospectus and other material, if any, permitted by the Act and the Regulations, and (B) has not taken and will not take any action designed to, or that might be reasonably expected to cause or result in, stabilization or manipulation of the price of the Shares.
Appears in 1 contract
Representations and Warranties of the Selling Shareholders. Each of the Selling ShareholdersShareholder hereby represents and warrants, severally and not jointly, represents and warrants to and agrees with, each of the Underwriters thatUnderwriter as follows:
(a) Such The Selling Shareholder has caused certificates for the number of Shares to be sold by such Selling Shareholder hereunder to be delivered to ChaseMellon Shareholder Services, L.L.C. (the "Custodian"), endorsed in blank or with blank stock powers duly executed, with a signature appropriately guaranteed, such certificates to be held in custody by the Custodian for delivery, pursuant to the provisions of this Agreement and an agreement dated November ___, 1999 among the Custodian and the Selling Shareholders (the "Custody Agreement").
(b) The Selling Shareholder has granted an irrevocable power of attorney (the "Power of Attorney") to the person named therein, on behalf of the Selling Shareholder, at to execute and deliver this Agreement and any other document necessary or desirable in connection with the First transactions contemplated hereby and to deliver the shares to be sold by the Selling Shareholder pursuant hereto.
(c) This Agreement, the Custody Agreement, the Power of Attorney and the Lock-Up Agreement have each been duly authorized, executed and delivered by or on behalf of the Selling Shareholder and, assuming due authorization, execution and delivery by the other parties hereto, constitutes the valid and legally binding agreement of the Selling Shareholder, enforceable against the Selling Shareholder in accordance with its terms, except as the enforceability thereof may be limited by bankruptcy, insolvency, reorganization, moratorium or other similar laws affecting the enforcement of creditors' rights generally and by general equitable principles.
(d) The execution and delivery by the Selling Shareholder of this Agreement and the performance by the Selling Shareholder of his or her obligations under this Agreement (i) will not contravene any provision of applicable law, statute, regulation or filing or any agreement or other instrument binding upon the Selling Shareholder or any judgment, order or decree of any governmental body, agency or court having jurisdiction over the Selling Shareholder, (ii) does not require any consent, approval, authorization or order of or registration or filing with any court or governmental agency or body having jurisdiction over it, except such as may be required by the Blue Sky laws of the various states in connection with the offer and sale of the Shares which have been or will be effected in accordance with this Agreement, and (iii) does not and will not violate any statute, law, regulation or filing or judgment, injunction, order or decree applicable to the Selling Shareholder.
(e) The Selling Shareholder has, and on the Firm Shares Closing DateDate will have, will have good valid and marketable title to the Shares set forth in Schedule II to be sold by such the Selling Shareholder, Shareholder free and clear of any lienslien, encumbrancesclaim, equities security interest or other encumbrance, including, without limitation, any restriction on transfer, except as otherwise described in the Registration Statement and claims Prospectus.
(other than as imposed by the Securities Act or this Agreement)f) The Selling Shareholder has, and on the Firm Shares Closing Date will have, full legal right, power and authority authorization, and any approval required by law to effect sell, assign, transfer and deliver the sale and delivery of such Shares; and upon Shares to be sold by the Selling Shareholder in the manner provided by this Agreement.
(g) Upon delivery of and payment for the Shares to be sold by such the Selling Shareholder pursuant to this Agreement, good the several Underwriters will receive valid and marketable title thereto, to such Shares free and clear of any lienslien, encumbrancesclaim, equities and claims, of any kind, will be transferred to the Underwriterssecurity interest or other encumbrance.
(bh) Such All information relating to the Selling Shareholder has duly executed and delivered furnished in writing by the Custody Agreement and Power of Attorney in the form previously delivered to the Representatives, appointing the persons named therein, and each of them as such Selling Shareholder's attorney-in-fact (the "Attorney-in-Fact") and as custodian (the "Custodian"). The Attorney-in-Fact is authorized to execute, deliver and perform this Agreement on behalf of such Selling Shareholder, to deliver the Shares to be sold by such Selling Shareholder hereunder, to accept payment therefor, and otherwise to act on behalf of such Selling Shareholder expressly for use in connection with this Agreement, including payment from the Offering proceeds of expenses incurred on behalf of such Selling Shareholder. Certificates, in suitable form for transfer by delivery or accompanied by duly executed instruments of transfer or assignment in blank, representing the Shares to be sold by such Selling Shareholder hereunder have been deposited with the Custodian pursuant to the Custody Agreement and Power of Attorney for the purpose of delivery pursuant to this Agreement. Such Selling Shareholder agrees that the shares of Common Stock represented by the certificates on deposit with the Custodian are subject to the interest of the Underwriters hereunder, that the arrangements made for such custody and the appointment of the Attorney-in-Fact are to that extent irrevocable, and that the obligations of such Selling Shareholder hereunder shall not be terminated except as provided in this Agreement and the Custody Agreement and Power of Attorney. If such Selling Shareholder should die or become incapacitated, or if any other event should occur, before the delivery of the Shares of such Selling Shareholder hereunder, the certificates for such Shares deposited with the Custodian shall be delivered by the Custodian in accordance with the terms and conditions of this Agreement as if such death, incapacity or other event had not occurred, regardless of whether the Custodian or the Attorney-in-Fact shall have received notice thereof.
(c) Such Selling Shareholder, acting through his duly authorized Attorney-in-Fact, has duly executed and delivered this Agreement and the Custody Agreement and Power of Attorney; this Agreement constitutes a legal, valid and binding obligation of such Selling Shareholder, all authorizations and consents necessary for the execution and delivery of this Agreement and the Custody Agreement and Power of Attorney on behalf of such Selling Shareholder and for the sale and delivery of the Shares to be sold by such Selling Shareholder hereunder have been given, except as may be required by the Securities Act or state securities laws; and such Selling Shareholder has the legal capacity and full right, power and authority to execute this Agreement and the Custody Agreement and Power of Attorney.
(d) The performance of this Agreement and the Custody Agreement and Power of Attorney and the consummation of the transactions contemplated hereby and thereby by such Selling Shareholder will not result in a breach or violation of, or conflict with, any of the terms or provisions of, or constitute a default by such Selling Shareholder under, any indenture, mortgage, deed of trust, trust (constructive or other), loan agreement, lease, franchise, license or other agreement or instrument to which such Selling Shareholder or any of his or its properties is bound, or any statute, judgment, decree, order, rule or regulation of any court or governmental agency or body applicable to such Selling Shareholder or any of his, her or its properties.
(e) Such Selling Shareholder has not distributed nor, other than as permitted by the Securities Act and the Rules and Regulations, will distribute any prospectus or other offering material in connection with the offer and sale of the Shares other than any Preliminary Prospectus filed with the Commission or the Final Prospectus or other material permitted by the Securities Act.
(f) Such Selling Shareholder has reviewed and is familiar with the Registration Statement and the Preliminary Prospectus. To the knowledge of such Selling ShareholderProspectus is, the Preliminary Prospectus and on each Closing Date will be, true, correct, and complete, and does not include an not, and on each 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.
(i) If the Selling Shareholder is an executive officer or director of the Company (a "Management Shareholder"), the Selling Shareholder has reviewed the Registration Statement and Prospectus and, although such Selling Shareholder has not independently verified the accuracy or completeness of all the information contained therein, nothing has come to the attention of such Selling Shareholder that would lead such Selling Shareholder to believe that (i) on the Effective Date, the Registration Statement contained any untrue statement of a material fact or omitted to state any material fact required to be stated therein in order to make the statements made therein not misleading and (ii) on the Effective Date the Prospectus contained and, on each Closing Date contains, an untrue statement of a material fact or omitted or omits to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading.
(j) The sale of Shares by the Selling Shareholder pursuant to this Agreement is not prompted by the Selling Shareholder's knowledge of any material information concerning the Company which is not set forth in the Prospectus.
(k) If the Selling Shareholder is a Management Shareholder, the Selling Shareholder does not have any actual knowledge that any representation or warranty of the Company set forth in Section 4 above is untrue or inaccurate in any material respect.
(l) The representations and warranties of the Selling Shareholder in the Custody Agreement are and on each Closing Date will be, true and correct.
Appears in 1 contract
Samples: Underwriting Agreement (Metro One Telecommunications Inc)
Representations and Warranties of the Selling Shareholders. Each of the Selling Shareholders, severally and not jointly, Shareholder represents and warrants to and agrees with, each of the Underwriters Underwriter that:
(a) Such Selling Shareholder, at Shareholder is the First Closing Date, will have good and marketable title to lawful owner of the Shares set forth in Schedule II to be sold by such Selling ShareholderShareholder pursuant to this Agreement and has, and on the Closing Date will have, good and clear title to such Shares, free and clear of any all restrictions on transfer, liens, encumbrances, security interests, equities and claims whatsoever.
(other than as imposed b) The Shares to be sold by the Securities Act or this Agreement)such Selling Shareholder have been duly authorized and are validly issued, fully paid and non-assessable.
(c) Such Selling Shareholder has, and on the Closing Date will have, full legal right, power and authority authority, and all authorization and approval required by law, to effect enter into this Agreement, the sale Custody Agreement signed by such Selling Shareholder and delivery _________________________, as Custodian, relating to the deposit of the Shares to be sold by such Selling Shareholder (the "Custody Agreement") and the Power of Attorney of such Shares; Selling Shareholder appointing certain individuals as such Selling Shareholder's attorneys-in-fact (the "Attorneys") to the extent set forth therein, relating to the transactions contemplated hereby and upon by the Registration Statement and the Custody Agreement (the "Power of Attorney") and to sell, assign, transfer and deliver the Shares to be sold by such Selling Shareholder in the manner provided herein and therein.
(d) This Agreement has been duly authorized, executed and delivered by or on behalf of such Selling Shareholder.
(e) The Custody Agreement of such Selling Shareholder has been duly authorized, executed and delivered by such Selling Shareholder and is a valid and binding agreement of such Selling Shareholder, enforceable in accordance with its terms.
(f) The Power of Attorney of such Selling Shareholder has been duly authorized, executed and delivered by such Selling Shareholder and is a valid and binding instrument of such Selling Shareholder, enforceable in accordance with its terms, and, pursuant to such Power of Attorney, such Selling Shareholder has, among other things, authorized the Attorneys, or any one of them, to execute and deliver on such Selling Shareholder's behalf this Agreement and any other document that they, or any one of them, may deem necessary or desirable in connection with the transactions contemplated hereby and thereby and to deliver the Shares to be sold by such Selling Shareholder pursuant to this Agreement.
(g) Upon delivery of and payment for the Shares to be sold by such Selling Shareholder pursuant to this Agreement, good and marketable clear title theretoto such Shares will pass to the Underwriters, free and clear of any all restrictions on transfer, liens, encumbrances, security interests, equities and claims, of any kind, will be transferred to the Underwritersclaims whatsoever.
(b) Such Selling Shareholder has duly executed and delivered the Custody Agreement and Power of Attorney in the form previously delivered to the Representatives, appointing the persons named therein, and each of them as such Selling Shareholder's attorney-in-fact (the "Attorney-in-Fact") and as custodian (the "Custodian"). The Attorney-in-Fact is authorized to execute, deliver and perform this Agreement on behalf of such Selling Shareholder, to deliver the Shares to be sold by such Selling Shareholder hereunder, to accept payment therefor, and otherwise to act on behalf of such Selling Shareholder in connection with this Agreement, including payment from the Offering proceeds of expenses incurred on behalf of such Selling Shareholder. Certificates, in suitable form for transfer by delivery or accompanied by duly executed instruments of transfer or assignment in blank, representing the Shares to be sold by such Selling Shareholder hereunder have been deposited with the Custodian pursuant to the Custody Agreement and Power of Attorney for the purpose of delivery pursuant to this Agreement. Such Selling Shareholder agrees that the shares of Common Stock represented by the certificates on deposit with the Custodian are subject to the interest of the Underwriters hereunder, that the arrangements made for such custody and the appointment of the Attorney-in-Fact are to that extent irrevocable, and that the obligations of such Selling Shareholder hereunder shall not be terminated except as provided in this Agreement and the Custody Agreement and Power of Attorney. If such Selling Shareholder should die or become incapacitated, or if any other event should occur, before the delivery of the Shares of such Selling Shareholder hereunder, the certificates for such Shares deposited with the Custodian shall be delivered by the Custodian in accordance with the terms and conditions of this Agreement as if such death, incapacity or other event had not occurred, regardless of whether the Custodian or the Attorney-in-Fact shall have received notice thereof.
(c) Such Selling Shareholder, acting through his duly authorized Attorney-in-Fact, has duly executed and delivered this Agreement and the Custody Agreement and Power of Attorney; this Agreement constitutes a legal, valid and binding obligation of such Selling Shareholder, all authorizations and consents necessary for the execution and delivery of this Agreement and the Custody Agreement and Power of Attorney on behalf of such Selling Shareholder and for the sale and delivery of the Shares to be sold by such Selling Shareholder hereunder have been given, except as may be required by the Securities Act or state securities laws; and such Selling Shareholder has the legal capacity and full right, power and authority to execute this Agreement and the Custody Agreement and Power of Attorney.
(dh) The execution, delivery and performance of this Agreement and the Custody Agreement and Power of Attorney of such Selling Shareholder by or on behalf of such Selling Shareholder, the compliance by such Selling Shareholder with all the provisions hereof and thereof and the consummation of the transactions contemplated hereby and thereby by such Selling Shareholder will not result in a breach (i) require any consent, approval, authorization or violation other order of, or conflict qualification with, any court or governmental body or agency (except such as may be required under the securities or Blue Sky laws of the various states), (ii) conflict with or constitute a breach of any of the terms or provisions of, or constitute a default by under, the organizational documents of such Selling Shareholder, if such Selling Shareholder underis not an individual, or any indenture, mortgage, deed of trust, trust (constructive or other), loan agreement, leasemortgage, franchise, license lease or other agreement or instrument to which such Selling Shareholder is a party or any of his or its properties is bound, or any statute, judgment, decree, order, rule or regulation of any court or governmental agency or body applicable to by which such Selling Shareholder or any property of his, her or its properties.
(e) Such such Selling Shareholder has not distributed noris bound or (iii) violate or conflict with any applicable law or any rule, other than as permitted by the Securities Act and the Rules and Regulationsregulation, will distribute judgment, order or decree of any prospectus court or other offering material in connection with the offer and sale of the Shares other than any Preliminary Prospectus filed with the Commission governmental body or the Final Prospectus or other material permitted by the Securities Act.
(f) Such agency having jurisdiction over such Selling Shareholder has reviewed and is familiar with the Registration Statement and the Preliminary Prospectus. To the knowledge or any property of such Selling Shareholder.
(i) The information in the Registration Statement under the caption "Principal and Selling Shareholders" which specifically relates to such Selling Shareholder does not, and will not on the Preliminary Prospectus does not include an Closing Date, 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, in the light of the circumstances under which they were made, not misleading.
(j) At any time during the period described in Section 5(d), if there is any change in the information referred to in Section 7(i), such Selling Shareholder will immediately notify you of such change.
(k) Each certificate signed by or on behalf of such Selling Shareholder and delivered to the Underwriters or counsel for the Underwriters shall be deemed to be a representation and warranty by such Selling Shareholder to the Underwriters as to the matters covered thereby.
Appears in 1 contract
Representations and Warranties of the Selling Shareholders. Each of the Selling ShareholdersShareholder, severally and not jointly, represents represents, warrants and warrants covenants to and agrees with, each of the Underwriters Underwriter that:
(a) Such Selling Shareholder, at the First Closing Date, will have good and marketable title to the Shares set forth in Schedule II to be sold by such Selling Shareholder, free and clear of any liens, encumbrances, equities and claims (other than as imposed by the Securities Act or this Agreement), and Shareholder has full right, power and authority to effect the sale enter into this Agreement and delivery of such Shares; and upon the delivery of and payment for the Shares to be sold by such Selling Shareholder pursuant to this Agreement, good and marketable title thereto, free and clear of any liens, encumbrances, equities and claims, of any kind, will be transferred to the Underwriters.
(b) Such Selling Shareholder has duly executed and delivered the Custody Agreement and Power of Attorney in the form previously delivered to the Representatives, appointing the persons named therein, and each of them with __________ as such Selling Shareholder's attorney-in-fact (the "Attorney-in-Fact") and as custodian (the "Custodian"). The All authorizations and consents necessary for the execution and delivery by such Selling Shareholder of the Custody Agreement and Power of Attorney-in-Fact is authorized to execute, deliver and perform for the execution of this Agreement on behalf of such Selling Shareholder, have been given. Each of the Custody Agreement and Power of Attorney and this Agreement has been duly authorized, executed and delivered by or on behalf of such Selling Shareholder and constitutes a valid and binding agreement of such Selling Shareholder and is enforceable against such Selling Shareholders in accordance with the terms thereof and hereof; the Attorney-in-Fact, acting alone, is authorized to execute and deliver this Agreement and the Shares certificates referred to in Section ___ hereof on behalf of such Selling Shareholder, to authorize the delivery of those Securities to be sold by such Selling Shareholder hereunderunder this Agreement and to duly endorse (in blank or otherwise) the certificate or certificates representing such Selling Shareholders' Securities or the Stock Power or Powers with respect thereto, to accept payment therefor, and otherwise to act on behalf of such Selling Shareholder in connection with this Agreement, including payment from and the Offering proceeds Custody Agreement.
(b) Such Selling Shareholder now has, and at the time of expenses incurred on behalf of such Selling Shareholder. Certificatesdelivery thereof hereunder will have, in suitable form for transfer by delivery or accompanied by duly executed instruments of transfer or assignment in blank, representing (i) good and marketable title to the Shares Securities to be sold by such Selling Shareholder hereunder have been deposited with the Custodian hereunder, free and clear of all liens, encumbrances and claims whatsoever (other than pursuant to the Custody Agreement and Power of Attorney Attorney) and (ii) full legal right and power, and all authorizations and approvals required by law, to sell, assign, transfer and deliver such Securities to the Underwriters hereunder and to make the representations, warranties and agreements made by such Selling Shareholder herein. Upon the delivery of and payment for such Securities hereunder, such Selling Shareholder will deliver good and marketable title thereto, free and clear of all liens, encumbrances and claims whatsoever to the Underwriters.
(c) On the Closing Date or Option Closing Date, as the case may be, all stock transfer or other taxes (other than income taxes) which are required to be paid in connection with the sale and transfer of the shares to be sold by such Selling Shareholder to the several Underwriters hereunder will have been fully paid or provided for by such Selling Shareholder and all laws imposing such taxes will have been fully complied with.
(d) None of the execution, delivery or performance of this Agreement, the Stock Power or the Custody Agreement nor the consummation of the transactions contemplated hereby or thereby will result in the creation or imposition of any lien, charge or encumbrance upon any of the assets of such Selling Shareholder pursuant to the terms or provisions of, or result in a breach or violation of any of the terms or provisions of, or constitute a default under, or result in the acceleration of any obligation under, if such Selling Shareholder is a corporation or partnership, the organizational documents of such Selling Shareholder, or, as to all such Selling Shareholders, any indenture, mortgage, deed of trust, voting trust agreement, loan agreement, bond, debenture, note agreement or other evidence of indebtedness, lease, contract or other agreement or instrument to which such Selling Shareholder is a party or by which such Selling Shareholder or any of its property is bound or affected, or under any ruling, decree, judgment, order, statute, rule or regulation of any court or other governmental agency or body having jurisdiction over such Selling Shareholder or the property of such Selling Shareholder.
(e) No consent, approval, authorization or order of, or any filing or declaration with, any court or governmental agency or body is required for the consummation by such Selling Shareholder of the transactions on its part contemplated herein and in the Custody Agreement and Power of Attorney, except such as have been obtained under the Act or the Rules and Regulations and such as may be required under state securities or Blue Sky laws or the by-laws and rules of the NASD in connection with the purchase and distribution by the Underwriters of the Securities to be sold by such Selling Shareholder.
(f) Such Selling Shareholder has no knowledge of any material fact or condition not set forth in the Registration Statement or Prospectus which has adversely affected, or may adversely affect, the business, properties, business prospects, condition (financial or otherwise) or results of operations of the Company, and the sale of the Securities proposed to be sold by such Selling Shareholder is not prompted by any such knowledge.
(g) All information with respect to such Selling Shareholder contained in the Registration Statement and the Prospectus (as amended or supplemented, if the Company shall have filed with the Commission any amendment or supplement thereto) complied and will comply with all applicable provisions of the Act and the Rules and Regulations, contains and will contain all statements required to be stated therein in accordance with the Act and the Rules and Regulations, and does not and will not contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary in order to make the statements therein not misleading.
(h) To the best knowledge of such Selling Shareholder, the representations and warranties of the Company contained in Section 1 are true and correct.
(i) Other than as permitted by the Act and the Rules and Regulations, such Selling Shareholder has not distributed and will not distribute any preliminary prospectus, the Prospectus or any other offering material in connection with the offering and sale of the Securities. Such Selling Shareholder has not taken, directly or indirectly, any action designed, or which might reasonably be expected, to cause or result in, under the Act or otherwise, or which has caused or resulted in, stabilization or manipulation of the price of any security of the Company to facilitate the sale or resale of the Securities.
(j) Certificates in negotiable form for the Securities to be sold hereunder by such Selling Shareholder have been placed in custody, for the purpose of making delivery pursuant to of such
(k) under this Agreement, under the Custody Agreement and Power of Attorney which appoints Continental Stock Transfer and Trust Company as custodian (the "Custodian") for each Selling Shareholder. Such Selling Shareholder agrees that the shares of Common Stock Securities represented by the certificates on deposit held in custody for him or it under the Agreement and Power of Attorney are for the benefit of and coupled with the Custodian are and subject to the interest hereunder of the Underwriters hereunderCustodian, the Underwriters, each other Selling Shareholder and the Company, that the arrangements made by such Selling Shareholder for such custody and the appointment of the Attorney-in-Fact Custodian by such Selling Shareholder are to that extent irrevocable, and that the obligations of such Selling Shareholder hereunder shall not be terminated except as provided in this Agreement and by operation of law, whether by the Custody Agreement and Power death, disability, incapacity or liquidation of Attorneyany Selling Shareholder or the occurrence of any other event. If such any Selling Shareholder should die die, become disabled or become incapacitated, incapacitated or is liquidated or if any other such event should occur, occur before the delivery of the Shares of such Selling Shareholder Securities hereunder, the certificates for such Shares deposited with the Custodian Securities shall be delivered by the Custodian in accordance with the terms and conditions of this Agreement and actions taken by the Custodian pursuant to the Agreement and Power of Attorney shall be as valid as if such death, liquidation, incapacity or other event had not occurred, regardless of whether or not the Custodian or the Attorney-in-Fact shall have received notice thereof.
(cl) Such There is not pending or threatened against such Selling ShareholderShareholder any action, acting through his duly authorized suit or proceeding which (A) questions the validity of this Agreement, the Stock Power, the Power of Attorney-in-Fact, has duly executed and delivered this Agreement and the Custody Agreement and or of any action taken or to be taken by such Selling Shareholder pursuant to or in connection with this Agreement, the Stock Power, the Power of Attorney; this Agreement constitutes a legal, valid and binding obligation of such Selling Shareholder, all authorizations and consents necessary for the execution and delivery of this Agreement and Attorney or the Custody Agreement or (B) is required to be disclosed in the Registration Statement which is not so disclosed, and Power such actions, suits or proceedings as are summarized in the Registration Statement, if any, are accurately summarized.
(m) Except as set forth in the Prospectuses or waived in connection with the offering of Attorney the Offering Securities, such Selling Shareholder does not have any registration rights or other similar rights with respect to any securities of the Company; and such Selling Shareholder does not have any right of first refusal or other similar right to purchase any securities of the Company upon the issuance or sale thereof by the Company or upon the sale thereof by any other shareholder of the Company.
(n) Any certificate signed by or on behalf of such Selling Shareholder and for delivered to the sale Underwriters shall be deemed a representation and delivery of the Shares to be sold warranty by such Selling Shareholder hereunder have been given, except to the Underwriters as may be required by to the Securities Act or state securities laws; and such Selling Shareholder has the legal capacity and full right, power and authority to execute this Agreement and the Custody Agreement and Power of Attorneymatters covered thereby.
(d) The performance of this Agreement and the Custody Agreement and Power of Attorney and the consummation of the transactions contemplated hereby and thereby by such Selling Shareholder will not result in a breach or violation of, or conflict with, any of the terms or provisions of, or constitute a default by such Selling Shareholder under, any indenture, mortgage, deed of trust, trust (constructive or other), loan agreement, lease, franchise, license or other agreement or instrument to which such Selling Shareholder or any of his or its properties is bound, or any statute, judgment, decree, order, rule or regulation of any court or governmental agency or body applicable to such Selling Shareholder or any of his, her or its properties.
(e) Such Selling Shareholder has not distributed nor, other than as permitted by the Securities Act and the Rules and Regulations, will distribute any prospectus or other offering material in connection with the offer and sale of the Shares other than any Preliminary Prospectus filed with the Commission or the Final Prospectus or other material permitted by the Securities Act.
(f) Such Selling Shareholder has reviewed and is familiar with the Registration Statement and the Preliminary Prospectus. To the knowledge of such Selling Shareholder, the Preliminary Prospectus does not include an untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading.
Appears in 1 contract
Samples: Underwriting Agreement (All Tech Investment Group Inc Et Al)
Representations and Warranties of the Selling Shareholders. Each of the Selling Shareholders, severally and not jointly, Shareholders represents and warrants to and agrees with, with each of the Underwriters that:
(a) Such This Agreement has been executed and delivered by or on behalf of such Selling Shareholder.
(b) The execution and delivery by such Selling Shareholder of, and the performance by such Selling Shareholder of its obligations under, this Agreement, the Custody Agreement signed by such Selling Shareholder and __________, as Custodian, relating to the deposit of the Shares to be sold by such Selling Shareholder (the "Custody Agreement") and the Power of Attorney appointing certain individuals as such Selling Shareholder's attorneys-in-fact to the extent set forth therein, relating to the transaction contemplated hereby and by the Registration Statement (the "Power of Attorney") will not contravene any provision of applicable law, or any agreement or other instrument binding upon such Selling Shareholder of any judgment, order or decree of any governmental body, agency or court having jurisdiction over such Selling Shareholder, at and no consent, approval, authorization or order of, or qualification with, any governmental body or agency is required for the First performance by such Selling Shareholder of its obligations under this Agreement or the Custody Agreement or Power of Attorney of such Selling Shareholder, except such as may be required by the securities or Blue Sky laws of the various states in connection with the offer and sale of the Shares.
(c) Such Selling Shareholder has, and on the Closing DateDate will have, will have good and marketable valid title to the Shares set forth in Schedule II to be sold by such Selling Shareholder and the legal right and power, and all authorization and approval required by law, to enter into this Agreement, the Custody Agreement and the Power of Attorney and to sell, transfer and deliver the Shares to be sold by such Selling Shareholder, free .
(d) The Custody Agreement and clear the Power of any liens, encumbrances, equities Attorney have been executed and claims (other than as imposed delivered by the Securities Act or this Agreement), such Selling Shareholder and full right, power are valid and authority to effect the sale and delivery binding agreements of such Shares; and upon the delivery Selling Shareholder.
(e) Delivery of and payment for the Shares to be sold by such Selling Shareholder pursuant to this Agreement, good and marketable Agreement will pass title thereto, to such Shares free and clear of any security interests, claims, liens, encumbrances, equities and claims, of any kind, will be transferred to the Underwritersother encumbrances.
(bf) Such If the Selling Shareholder has duly executed and delivered is an officer or director of the Custody Agreement and Power Company (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 Attorney in the form previously delivered a material fact or omit to the Representatives, appointing the persons named therein, and each of them as such Selling Shareholder's attorney-in-state a material fact (the "Attorney-in-Fact") and as custodian (the "Custodian"). The Attorney-in-Fact is authorized to execute, deliver and perform this Agreement on behalf of such Selling Shareholder, to deliver the Shares required to be sold by such Selling Shareholder hereunderstated therein or necessary to make the statements therein not misleading, to accept payment therefor, and otherwise to act on behalf of such Selling Shareholder in connection with this Agreement, including payment from (ii) the Offering proceeds of expenses incurred on behalf of such Selling Shareholder. Certificates, in suitable form for transfer by delivery or accompanied by duly executed instruments of transfer or assignment in blank, representing the Shares to be sold by such Selling Shareholder hereunder have been deposited with the Custodian pursuant to the Custody Agreement and Power of Attorney for the purpose of delivery pursuant to this Agreement. Such Selling Shareholder agrees that the shares of Common Stock represented by the certificates on deposit with the Custodian are subject to the interest of the Underwriters hereunder, that the arrangements made for such custody Registration Statement and the appointment of the Attorney-in-Fact are to that extent irrevocableProspectus comply and, and that the obligations of such Selling Shareholder hereunder shall not be terminated except as provided amended or supplemented, if applicable, will comply in this Agreement and the Custody Agreement and Power of Attorney. If such Selling Shareholder should die or become incapacitated, or if any other event should occur, before the delivery of the Shares of such Selling Shareholder hereunder, the certificates for such Shares deposited all material respects with the Custodian shall be delivered by the Custodian in accordance with the terms and conditions of this Agreement as if such death, incapacity or other event had not occurred, regardless of whether the Custodian or the Attorney-in-Fact shall have received notice thereof.
(c) Such Selling Shareholder, acting through his duly authorized Attorney-in-Fact, has duly executed and delivered this Agreement and the Custody Agreement and Power of Attorney; this Agreement constitutes a legal, valid and binding obligation of such Selling Shareholder, all authorizations and consents necessary for the execution and delivery of this Agreement and the Custody Agreement and Power of Attorney on behalf of such Selling Shareholder and for the sale and delivery of the Shares to be sold by such Selling Shareholder hereunder have been given, except as may be required by the Securities Act or state securities laws; and such Selling Shareholder has the legal capacity and full right, power and authority to execute this Agreement and the Custody Agreement and Power of Attorney.
(d) The performance of this Agreement and the Custody Agreement and Power of Attorney and the consummation of the transactions contemplated hereby and thereby by such Selling Shareholder will not result in a breach or violation of, or conflict with, any of the terms or provisions of, or constitute a default by such Selling Shareholder under, any indenture, mortgage, deed of trust, trust (constructive or other), loan agreement, lease, franchise, license or other agreement or instrument to which such Selling Shareholder or any of his or its properties is bound, or any statute, judgment, decree, order, rule or regulation of any court or governmental agency or body applicable to such Selling Shareholder or any of his, her or its properties.
(e) Such Selling Shareholder has not distributed nor, other than as permitted by the Securities Act and the Rules applicable rules and Regulations, will distribute any prospectus or other offering material in connection with the offer and sale regulations of the Shares other than any Preliminary Prospectus filed with Commission thereunder and (iii) the Commission or the Final Prospectus or other material permitted by the Securities Act.
(f) Such Selling Shareholder has reviewed and is familiar with the Registration Statement and the Preliminary Prospectus. To the knowledge of such Selling Shareholder, the Preliminary Prospectus does not include an 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 in order to make the statements therein, in the light of the circumstances under which they were made, not misleading, except that the representations and warranties set forth in this paragraph 2(f) do not apply to statements or omissions in the Registration Statement or the Prospectus based upon information relating to any Underwriter furnished to the Company in writing by such Underwriter through you expressly for use therein.
(g) For each Selling Shareholder other than those making a representation and warranty pursuant to paragraph 2(f) above, all information relating to such Selling Shareholder furnished to the Company in writing by or on behalf of such Selling Shareholder for use in the Registration Statement and the Prospectus is, and on the Closing Date will be, true, correct, and complete, and does not, and on the 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.
Appears in 1 contract
Samples: Underwriting Agreement (Professional Detailing Inc)
Representations and Warranties of the Selling Shareholders. Each of the Selling ShareholdersShareholder, severally and not jointly, represents and warrants to and agrees with, each of the Underwriters Underwriter that:
(a) Such Selling Shareholder, at Shareholder is the First Closing Date, will have good and marketable title to lawful owner of the Shares set forth in Schedule II to be sold by such Selling ShareholderShareholder pursuant to this Agreement and has, and on the Closing Date will have, good and clear title to such Shares, free and clear of any all restrictions on transfer, liens, encumbrances, security interests, equities and claims whatsoever.
(other than as imposed by the Securities Act or this Agreement)b) Such Selling Shareholder has, and on the Closing Date will have, full legal right, power and authority authority, and all authorization and approval required by law, to effect enter into this Agreement, the sale Custody Agreement signed by such Selling Shareholder and delivery StockTrans, Inc., as Custodian, relating to the deposit of the Shares to be sold by such Selling Shareholder (the "Custody Agreement") and the Power of Attorney of such Shares; Selling Shareholder appointing certain individuals as such Selling Shareholder's attorneys-in-fact (the "Attorneys") to the extent set forth therein, relating to the transactions contemplated hereby and upon by the Registration Statement and the Custody Agreement (the "Power of Attorney") and to sell, assign, transfer and deliver the Shares to be sold by such Selling Shareholder in the manner provided herein and therein.
(c) This Agreement has been duly authorized, executed and delivered by or on behalf of such Selling Shareholder.
(d) The Custody Agreement of such Selling Shareholder has been duly authorized, executed and delivered by such Selling Shareholder and is a valid and binding agreement of such Selling Shareholder, enforceable in accordance with its terms.
(e) The Power of Attorney of such Selling Shareholder has been duly authorized, executed and delivered by such Selling Shareholder and is a valid and binding instrument of such Selling Shareholder, enforceable in accordance with its terms, and, pursuant to such Power of Attorney, such Selling Shareholder has, among other things, authorized the Attorneys, or any one of them, to execute and deliver on such Selling Shareholder's behalf this Agreement and any other document that they, or any one of them, may deem necessary or desirable in connection with the transactions contemplated hereby and thereby and to deliver the Shares to be sold by such Selling Shareholder pursuant to this Agreement.
(f) Upon delivery of and payment for the Shares to be sold by such Selling Shareholder pursuant to this Agreement, good and marketable clear title theretoto such Shares will pass to the Underwriters, free and clear of any all restrictions on transfer, liens, encumbrances, security interests, equities and claims, of any kind, will be transferred to the Underwritersclaims whatsoever.
(b) Such Selling Shareholder has duly executed and delivered the Custody Agreement and Power of Attorney in the form previously delivered to the Representatives, appointing the persons named therein, and each of them as such Selling Shareholder's attorney-in-fact (the "Attorney-in-Fact") and as custodian (the "Custodian"). The Attorney-in-Fact is authorized to execute, deliver and perform this Agreement on behalf of such Selling Shareholder, to deliver the Shares to be sold by such Selling Shareholder hereunder, to accept payment therefor, and otherwise to act on behalf of such Selling Shareholder in connection with this Agreement, including payment from the Offering proceeds of expenses incurred on behalf of such Selling Shareholder. Certificates, in suitable form for transfer by delivery or accompanied by duly executed instruments of transfer or assignment in blank, representing the Shares to be sold by such Selling Shareholder hereunder have been deposited with the Custodian pursuant to the Custody Agreement and Power of Attorney for the purpose of delivery pursuant to this Agreement. Such Selling Shareholder agrees that the shares of Common Stock represented by the certificates on deposit with the Custodian are subject to the interest of the Underwriters hereunder, that the arrangements made for such custody and the appointment of the Attorney-in-Fact are to that extent irrevocable, and that the obligations of such Selling Shareholder hereunder shall not be terminated except as provided in this Agreement and the Custody Agreement and Power of Attorney. If such Selling Shareholder should die or become incapacitated, or if any other event should occur, before the delivery of the Shares of such Selling Shareholder hereunder, the certificates for such Shares deposited with the Custodian shall be delivered by the Custodian in accordance with the terms and conditions of this Agreement as if such death, incapacity or other event had not occurred, regardless of whether the Custodian or the Attorney-in-Fact shall have received notice thereof.
(c) Such Selling Shareholder, acting through his duly authorized Attorney-in-Fact, has duly executed and delivered this Agreement and the Custody Agreement and Power of Attorney; this Agreement constitutes a legal, valid and binding obligation of such Selling Shareholder, all authorizations and consents necessary for the execution and delivery of this Agreement and the Custody Agreement and Power of Attorney on behalf of such Selling Shareholder and for the sale and delivery of the Shares to be sold by such Selling Shareholder hereunder have been given, except as may be required by the Securities Act or state securities laws; and such Selling Shareholder has the legal capacity and full right, power and authority to execute this Agreement and the Custody Agreement and Power of Attorney.
(dg) The execution, delivery and performance of this Agreement and the Custody Agreement and Power of Attorney of such Selling Shareholder by or on behalf of such Selling Shareholder, the compliance by such Selling Shareholder with all the provisions hereof and thereof and the consummation of the transactions contemplated hereby and thereby by such Selling Shareholder will not result in a breach (i) require any consent, approval, authorization or violation other order of, or conflict qualification with, any court or governmental body or agency (except such as may be required under the securities or Blue Sky laws of the various states), (ii) conflict with or constitute a breach of any of the terms or provisions of, or constitute a default by under, the organizational documents of such Selling Shareholder, if such Selling Shareholder underis not an individual, or any indenture, mortgage, deed of trust, trust (constructive or other), loan agreement, leasemortgage, franchise, license lease or other agreement or instrument to which such Selling Shareholder is a party or any of his or its properties is bound, or any statute, judgment, decree, order, rule or regulation of any court or governmental agency or body applicable to by which such Selling Shareholder or any property of his, her or its properties.
(e) Such such Selling Shareholder has not distributed noris bound or (iii) violate or conflict with any applicable law or any rule, other than as permitted by the Securities Act and the Rules and Regulationsregulation, will distribute judgment, order or decree of any prospectus court or other offering material in connection with the offer and sale of the Shares other than any Preliminary Prospectus filed with the Commission governmental body or the Final Prospectus or other material permitted by the Securities Act.
(f) Such agency having jurisdiction over such Selling Shareholder has reviewed and is familiar with the Registration Statement and the Preliminary Prospectus. To the knowledge or any property of such Selling Shareholder.
(h) The information in the Registration Statement under the caption "Principal and Selling Shareholders" which specifically relates to such Selling Shareholder does not, and will not on the Preliminary Prospectus does not include an Closing Date, 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, in the light of the circumstances under which they were made, not misleading.
(i) At any time during the period described in Section 5(d), if there is any change in the information referred to in Section 7(i), such Selling Shareholder will immediately notify you of such change.
(j) Each certificate signed by or on behalf of such Selling Shareholder and delivered to the Underwriters or counsel for the Underwriters shall be deemed to be a representation and warranty by such Selling Shareholder to the Underwriters as to the matters covered thereby.
Appears in 1 contract
Representations and Warranties of the Selling Shareholders. Each of the Selling ShareholdersShareholder, severally and not jointly, and only as to itself, represents and warrants to and agrees with, with each of the Underwriters that:
(a) Such This Agreement has been duly authorized and delivered and validly signed by or on behalf of such Selling Shareholder, at the First Closing Date, will have good .
(b) The execution and marketable title to the Shares set forth in Schedule II to be sold delivery by such Selling Shareholder, free and clear of any liens, encumbrances, equities and claims (other than as imposed by the Securities Act or this Agreement)Shareholder of, and full rightthe performance by such Selling Shareholder of its obligations under, power (x) this Agreement and authority each of the deeds of transfer pursuant to effect the sale and delivery of such Shares; and upon the delivery of and payment for which the Shares to be sold by such Selling Shareholder pursuant to this Agreement, good and marketable title thereto, free and clear of any liens, encumbrances, equities and claims, of any kind, will be transferred to the Underwriters.
(b) Such by such Selling Shareholder has duly to Cede & Co. (“Cede”) or as otherwise directed by the Underwriters in accordance with this Agreement (all such deeds of transfer to be executed and delivered by such Selling Shareholder, the “Deeds of Transfer”) and (y) in the case of the Selling Shareholders named in Part A of Schedule I, the Custody Agreement signed by such Selling Shareholder and American Stock Transfer & Trust Company, LLC, as custodian, relating to the deposit of the shares to be sold and transferred by such Selling Shareholder (the “Custody Agreement”) and the Power of Attorney in the form previously delivered to the Representatives, appointing the persons named therein, and each of them certain individuals as such Selling Shareholder's attorney’s attorneys-in-fact to the extent set forth therein, relating to the transactions contemplated hereby and by the Registration Statement (the "“Power of Attorney-in-Fact"”), will not contravene (i) and as custodian any provision of applicable laws of the United States, the Netherlands, the jurisdiction of incorporation or formation of such Selling Shareholder (if such Selling Shareholder is a legal entity) or the "Custodian"). The Attorney-in-Fact is authorized to execute, deliver and perform this Agreement on behalf jurisdiction of domicile of such Selling Shareholder, (ii) the by-laws or articles of association (or similar organizational documents) of such Selling Shareholder (if such Selling Shareholder is a legal entity), (iii) any agreement or other instrument binding upon such Selling Shareholder or (iv) any judgment, order or decree of any governmental body, agency or court having jurisdiction over such Selling Shareholder, except in the case of clauses (i), (iii) and (iv) as would not have a material adverse effect on the ability of such Selling Shareholder to deliver perform its obligations under this Agreement (a “Selling Shareholder Material Adverse Effect”), and no consent, approval, authorization or order of, or qualification with, any governmental body or agency in the Shares to be sold United States, the Netherlands, the jurisdiction of incorporation or formation of such Selling Shareholder (if such Selling Shareholder is a legal entity) or the jurisdiction of domicile of such Selling Shareholder is required for the performance by such Selling Shareholder hereunderof its obligations under this Agreement, to accept payment thereforthe Deeds of Transfer or, if applicable, the Custody Agreement and otherwise to act on behalf the Power of Attorney of such Selling Shareholder in connection with this Agreement, including payment from the Offering proceeds of expenses incurred on behalf of (A) except such Selling Shareholder. Certificates, in suitable form for transfer by delivery or accompanied by duly executed instruments of transfer or assignment in blank, representing the Shares to be sold by such Selling Shareholder hereunder have been deposited with the Custodian pursuant to the Custody Agreement and Power of Attorney for the purpose of delivery pursuant to this Agreement. Such Selling Shareholder agrees that the shares of Common Stock represented by the certificates on deposit with the Custodian are subject to the interest of the Underwriters hereunder, that the arrangements made for such custody and the appointment of the Attorney-in-Fact are to that extent irrevocable, and that the obligations of such Selling Shareholder hereunder shall not be terminated except as provided in this Agreement and the Custody Agreement and Power of Attorney. If such Selling Shareholder should die or become incapacitated, or if any other event should occur, before the delivery of the Shares of such Selling Shareholder hereunder, the certificates for such Shares deposited with the Custodian shall be delivered by the Custodian in accordance with the terms and conditions of this Agreement as if such death, incapacity or other event had not occurred, regardless of whether the Custodian or the Attorney-in-Fact shall have received notice thereof.
(c) Such Selling Shareholder, acting through his duly authorized Attorney-in-Fact, has duly executed and delivered this Agreement and the Custody Agreement and Power of Attorney; this Agreement constitutes a legal, valid and binding obligation of such Selling Shareholder, all authorizations and consents necessary for the execution and delivery of this Agreement and the Custody Agreement and Power of Attorney on behalf of such Selling Shareholder and for the sale and delivery of the Shares to be sold by such Selling Shareholder hereunder have been given, except as may be required by the Securities Act securities or state securities laws; and such Selling Shareholder has the legal capacity and full right, power and authority to execute this Agreement and the Custody Agreement and Power of Attorney.
(d) The performance of this Agreement and the Custody Agreement and Power of Attorney and the consummation Blue Sky laws of the transactions contemplated hereby and thereby by such Selling Shareholder will not result in a breach or violation of, or conflict with, any various states of the terms United States or provisions of, or constitute a default by such Selling Shareholder under, any indenture, mortgage, deed the rules and regulations of trust, trust (constructive or other), loan agreement, lease, franchise, license or other agreement or instrument to which such Selling Shareholder or any of his or its properties is bound, or any statute, judgment, decree, order, rule or regulation of any court or governmental agency or body applicable to such Selling Shareholder or any of his, her or its properties.
(e) Such Selling Shareholder has not distributed nor, other than as permitted by the Securities Act and the Rules and Regulations, will distribute any prospectus or other offering material FINRA in connection with the offer and sale of the Shares, or (B) where the failure to obtain such consent, approval, authorization, order or qualification would not have a Selling Shareholder Material Adverse Effect.
(c) Such Selling Shareholder has, and on the Closing Date will have, valid title to, or a valid “security entitlement” within the meaning of Section 8-501 of the New York Uniform Commercial Code (the “UCC”) in respect of, the Shares other than any Preliminary Prospectus filed with the Commission or the Final Prospectus to be sold and transferred by such Selling Shareholder free and clear of all security interests, claims, liens, equities or other material permitted encumbrances and the legal right and power, and all authorization and approval required by law and, if applicable, the articles of association (or similar organizational documents) of such Selling Shareholder to enter into this Agreement, the Deeds of Transfer and, if applicable, the Custody Agreement and the Power of Attorney, and to sell, transfer and deliver the Shares to be sold and transferred by such Selling Shareholder or a security entitlement in respect of such Shares.
(d) The Deeds of Transfer and, if applicable, the Custody Agreement and the Power of Attorney have been duly authorized and delivered and validly signed by such Selling Shareholder and, assuming due authorization, execution and delivery by the Securities Actother parties to such documents (if applicable), are valid and binding agreements of such Selling Shareholder subject to bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium and similar laws of general applicability, relating to or affecting creditor rights and to general principles of equity.
(e) Upon payment for the Shares to be sold and transferred by such Selling Shareholder pursuant to this Agreement, delivery of such Shares, as directed by the Underwriters, to Cede or such other nominee as may be designated by Depository Trust Company (“DTC”), registration of such Shares in the name of Cede or such other nominee and the crediting of such Shares on the books of DTC to securities accounts of the Underwriters (assuming that neither DTC nor any such Underwriter has notice of any adverse claim (within the meaning of Section 8-105 of the UCC to such Shares), (A) DTC shall be a “protected purchaser” of such Shares within the meaning of Section 8-303 of the UCC, (B) under Section 8-501 of the UCC, the Underwriters will acquire a valid security entitlement in respect of such Shares and (C) no action based on any “adverse claim”, within the meaning of Section 8-102 of the UCC, to such Shares may be successfully asserted against the Underwriters with respect to such security entitlement; for purposes of this representation, such Selling Shareholder has assumed that when such payment, delivery and crediting occur, (x) such Shares will have been registered in the name of Cede or another nominee designated by DTC, in each case on the Company’s share registry in accordance with its certificate of incorporation, bylaws and applicable law, (y) DTC will be registered as a “clearing corporation” within the meaning of Section 8-102 of the UCC and (z) appropriate entries to the accounts of the several Underwriters on the records of DTC will have been made pursuant to the UCC; provided that this representation is subject to the following qualifications: (i) 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 other securities intermediaries and the ownership interests of the Underwriters, (ii) 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 (iii) if at any time DTC or any 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.
(f) Such Selling Shareholder has reviewed is not prompted to sell and transfer its Shares pursuant to this Agreement by any material information concerning the Company or its subsidiaries which is familiar with not set forth in the Time of Sale Prospectus.
(i) The Registration Statement, when it became effective, did not contain and, as amended or supplemented, if applicable, will not contain, as of the date of such amendment or supplement, any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading, (ii) the Registration Statement and the Preliminary Prospectus. To Prospectus comply and, as amended or supplemented, if applicable, will comply in all material respects with the knowledge Securities Act and the applicable rules and regulations of such Selling Shareholderthe Commission thereunder, (iii) the Time of Sale Prospectus does not, and at the time of each sale of the Shares in connection with the offering when the Prospectus is not yet available to prospective purchasers and at the Closing Date (as defined in Section 5), the Preliminary Prospectus does not include an Time of Sale Prospectus, as then amended or supplemented by the Company, if applicable, will not, contain any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading, and (iv) as of its date and the Closing Date, 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 such Selling Shareholder furnished to the Company in writing by such Selling Shareholder expressly for use in the Registration Statement, the Time of Sale Prospectus or the Prospectus or any amendments or supplements thereto. It is understood and agreed that the only such information furnished by such Selling Shareholder consists of the legal name and the number of Shares owned by such Selling Shareholder before and after the offering (excluding percentages) which appear in the table and, as described in the applicable footnote, the address of such Selling Shareholder and how such Selling Shareholder is controlled, under the caption “Principal and Selling Shareholders” (with respect to each Selling Shareholder, the “Selling Shareholder Information”).
(h) Such 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 except for the free writing prospectuses, if any, identified in Schedule III hereto, and electronic road shows, if any, furnished to you before first use.
Appears in 1 contract
Representations and Warranties of the Selling Shareholders. Each of the Selling Shareholders, severally and not jointly, represents represents, warrants and warrants covenants to and agrees with, each of the Underwriters Underwriter that:
(a) Such Selling Shareholder, Shareholder at the First Closing Date, Date will have good and marketable valid title to the Shares set forth in Schedule II or Schedule III to be sold by such ----------- ------------ Selling Shareholder, free and clear of any liens, encumbrances, equities and claims (other than as imposed by the Securities Act or this Agreement), and full right, power and authority to effect the sale and delivery of such Shares; and upon the delivery of and payment for the Shares to be sold by such Selling Shareholder pursuant to this Agreement, good and marketable valid title thereto, free and clear of any liens, encumbrances, equities and claims, of any kind, will be transferred to the Underwriters.
(b) Such Selling Shareholder has duly executed and delivered the Custody Agreement and Power of Attorney (the "Custody Agreement") in the form previously delivered to the RepresentativesUnderwriters, appointing the persons named thereinand , and each of them them, as such Selling Shareholder's attorney-in-fact (the "Attorney-in-Fact") and , as custodian (the "Custodian"). The Attorney-in-Fact is authorized to execute, deliver and perform this Agreement on behalf of such Selling Shareholder, to deliver the Shares to be sold by such Selling Shareholder hereunder, to accept payment therefor, therefor and otherwise to act on behalf of such Selling Shareholder in connection with this Agreement, including payment from the Offering proceeds of expenses incurred on behalf of such Selling Shareholder. Certificates, in suitable form for transfer by delivery or accompanied by duly executed instruments of transfer or assignment in blank, representing the Shares to be sold by such Selling Shareholder hereunder have been deposited with the Custodian pursuant to the Custody Agreement and Power of Attorney for the purpose of delivery pursuant to this Agreement. Such Selling Shareholder agrees that the shares of Common Stock represented by the certificates on deposit with the Custodian are subject to the interest interests of the Company, the Underwriters and the other Selling Shareholders hereunder, that the arrangements made for such custody and the appointment of the Attorney-in-Fact are to that extent irrevocable, and that the obligations of such Selling Shareholder hereunder shall not be terminated except as provided in this Agreement and the Custody Agreement and Power of AttorneyAgreement. If such Selling Shareholder should die die, become disabled or be declared incompetent, dissolve or become incapacitatedinsolvent, or if any other event should occur, occur before the delivery of the Shares of such Selling Shareholder hereunder, the certificates for such Shares deposited with the Custodian shall be delivered by the Custodian in accordance with the terms and conditions of this Agreement as if such death, incapacity disability, incompetency, dissolution, insolvency or other event had not occurred, regardless of whether or not the Custodian or the Attorney-in-Fact shall have received notice thereof.
(c) Such Selling Shareholder, acting through his its duly authorized Attorney-in-in- Fact, has duly executed and delivered this Agreement and the Custody Agreement and Power of AttorneyAgreement; this Agreement constitutes a legal, valid and binding obligation of such Selling Shareholder, ; all authorizations and consents necessary for the execution and delivery of this Agreement and the Custody Agreement and Power of Attorney on behalf of such Selling Shareholder and for the sale and delivery of the Shares to be sold by such Selling Shareholder hereunder have been given, except as may be required by the Securities Act or state securities lawslaws or the NASD; and such Selling Shareholder has the legal capacity and full right, power and authority to execute this Agreement and the Custody Agreement and Power of AttorneyAgreement.
(d) The performance of this Agreement and the Custody Agreement and Power of Attorney and the consummation of the transactions contemplated hereby and thereby by such each of the Selling Shareholder Shareholders will not result in a material breach or violation of, or material conflict with, any of the terms or provisions of, or constitute a material default by such Selling Shareholder under, any indenture, mortgage, deed of trust, trust (constructive or other), loan agreement, lease, franchise, license or other agreement or instrument to which such Selling Shareholder or any of his or its properties is bound, or any statute, or any judgment, decree, order, rule or regulation of or any court or governmental agency or body applicable to such Selling Shareholder or any of his, her or its properties.
(e) Such Selling Shareholder has not distributed nor, other than as permitted by the Securities Act and the Rules and Regulations, will not distribute any prospectus or other offering material in connection with the offer and sale of the Shares other than any Preliminary Prospectus preliminary prospectus prepared and filed by the Company with the Commission or the Final Prospectus or other material permitted by the Securities Act.
(f) Such Selling Shareholder has reviewed is not prompted to sell the Shares to be sold by such Selling Shareholder by any material, non-public information concerning the Company that is not fully and is familiar with fairly disclosed in the preliminary prospectus or the Prospectus.
(g) To the extent that any statements or omissions made in the Registration Statement Statement, any preliminary prospectus, the Prospectus or any amendment or supplement thereto are made in reliance upon and in conformity with written information furnished to the Preliminary Prospectus. To the knowledge of Company by such Selling ShareholderShareholder expressly for use therein, the Preliminary such Registration Statement, preliminary prospectus and Prospectus does and any amendments or supplements thereto did not include an 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, in the light of the circumstances under which they were made, therein not misleading.
(h) No approval, consent, order, authorization, designation, declaration or filing by or with any regulatory body, administrative or other governmental body is necessary in connection with the execution and delivery of this Agreement by such Selling Shareholder, and the consummation by it of the transactions herein contemplated (other than as required by the Act, state securities laws and the NASD).
(i) Any certificates signed by or on behalf of such Selling Shareholder as such and delivered to the Representatives or to counsel for the Representatives shall be deemed a representation and warranty by such Selling Shareholder to each Underwriter as to the matters covered thereby.
(j) 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 such Selling Shareholder agrees to deliver to you prior to or at the Closing Date a properly completed and executed United States Treasury Department Form W-9 (or other applicable form or statement specified by Treasury Department regulations in lieu thereof).
(k) Such Selling Shareholder has not taken and will not take, directly or indirectly, any action intended to constitute or which has constituted, or which might reasonably be expected to cause or result in, stabilization or manipulation of the price of the Common Stock.
(l) Such Selling Shareholder is not a member of the NASD that is participating in the distribution of the Shares or a "person associated with a member," as that term is defined in the NASD's Review of Corporate Financing Interpretation.
Appears in 1 contract
Samples: Underwriting Agreement (Satellink Communications Inc)
Representations and Warranties of the Selling Shareholders. Each of the Selling Shareholders, severally and not jointly, represents represents, warrants and warrants covenants to and agrees with, each of the Underwriters Underwriter that:
(a) Such Selling Shareholder, Shareholder at the First Closing Date, Date will have good and marketable valid title to the Shares set forth in Schedule II to be sold by such Selling Shareholder, free and clear of any liens, encumbrances, equities and claims (other than as imposed by the Securities Act or this Agreement), and full right, power and authority to effect the sale and delivery of such Shares; and upon the delivery of and payment for the Shares to be sold by such Selling Shareholder pursuant to this Agreement, good and marketable valid title thereto, free and clear of any liens, encumbrances, equities and claims, of any kind, will be transferred to the Underwriters.
(b) Such Selling Shareholder has duly executed and delivered the Custody Agreement and Power of Attorney (the "Custody Agreement") in the form previously delivered to the Representatives, appointing the persons named thereinMike Xxxxxx xxx Davix Xxxxxxxxx, and xxd each of them them, as such Selling Shareholder's attorney-in-fact (the "Attorney-in-Fact") and Curtxx X. Xxxxxxxx, Xxq., as custodian (the "Custodian"). The Attorney-in-Fact is authorized to execute, deliver and perform this Agreement on behalf of such Selling Shareholder, to deliver the Shares to be sold by such Selling Shareholder hereunder, to accept payment therefor, therefor and otherwise to act on behalf of such Selling Shareholder in connection with this Agreement, including payment from the Offering proceeds of expenses incurred on behalf of such Selling Shareholder. Certificates, in suitable form for transfer by delivery or accompanied by duly executed instruments of transfer or assignment in blank, representing the Shares to be sold by such Selling Shareholder hereunder have been deposited with the Custodian pursuant to the Custody Agreement and Power of Attorney for the purpose of delivery pursuant to this Agreement. Such Selling Shareholder agrees that the shares of Common Stock represented by the certificates on deposit with the Custodian are subject to the interest interests of the Company, the Underwriters and the other Selling Shareholders hereunder, that the arrangements made for such custody and the appointment of the Attorney-in-Fact are to that extent irrevocable, and that the obligations of such Selling Shareholder hereunder shall not be terminated except as provided in this Agreement and the Custody Agreement and Power of AttorneyAgreement. If such Selling Shareholder should die die, become disabled or be declared incompetent, dissolve or become incapacitatedinsolvent, or if any other event should occur, occur before the delivery of the Shares of such Selling Shareholder hereunder, the certificates for such Shares deposited with the Custodian shall be delivered by the Custodian in accordance with the terms and conditions of this Agreement as if such death, incapacity disability, incompetency, dissolution, insolvency or other event had not occurred, regardless of whether or not the Custodian or the Attorney-in-Fact shall have received notice thereof.
(c) Such Selling Shareholder, acting through his its duly authorized Attorney-in-Fact, has duly executed and delivered this Agreement and the Custody Agreement and Power of AttorneyAgreement; this Agreement constitutes a legal, legal valid and binding obligation of such Selling Shareholder, ; all authorizations and consents necessary for the execution and delivery of this Agreement and the Custody Agreement and Power of Attorney on behalf of such Selling Shareholder and for the sale and delivery of the Shares to be sold by such Selling Shareholder hereunder have been given, except as may be required by the Securities Act or state securities lawslaws or the NASD; and such Selling Shareholder has the legal capacity and full right, power and authority to execute this Agreement and the Custody Agreement and Power of AttorneyAgreement.
(d) The performance of this Agreement and the Custody Agreement and Power of Attorney and the consummation of the transactions contemplated hereby and thereby by such each of the Selling Shareholder Shareholders will not result in a material breach or violation of, or material conflict with, any of the terms or provisions of, or constitute a material default by such Selling Shareholder under, any indenture, mortgage, deed of trust, trust (constructive or other), loan agreement, lease, franchise, license or other agreement or instrument to which such Selling Shareholder or any of his or its properties is bound, or any statute, or any judgment, decree, order, rule or regulation of or any court or governmental agency or body applicable to such Selling Shareholder or any of his, her or its properties.
(e) Such Selling Shareholder has not distributed nor, other than as permitted by the Securities Act and the Rules and Regulations, will not distribute any prospectus or other offering material in connection with the offer and sale of the Shares other than any Preliminary Prospectus preliminary prospectus prepared and filed by the Company with the Commission or the Final Prospectus or other material permitted by the Securities Act.
(f) Such To the knowledge of such Selling Shareholder, the representations and warranties of the Company contained in Section 3 of this Agreement are true and correct in all material respects; such Selling Shareholder has reviewed and is familiar with the Registration Statement as originally filed with the Commission and the Preliminary Prospectuspreliminary prospectus contained therein. To the knowledge of such Selling Shareholder, the Preliminary Prospectus preliminary prospectus does not include an untrue statement of a material fact 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; other than as disclosed to the Underwriters, such Selling Shareholder is not prompted to sell the Shares to be sold by such Selling Shareholder by any material, non-public information concerning the Company that is not set forth in the preliminary prospectus or the Prospectus.
(g) To the extent that any statements or omissions made in the Registration Statement, any preliminary prospectus, the Prospectus or any amendment or supplement thereto are made in reliance upon and in conformity with written information furnished to the Company by such Selling Shareholder expressly for use therein, such Registration Statement, preliminary prospectus and Prospectus and any amendments or supplements thereto did not and will not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein not misleading.
(h) No approval, consent, order, authorization, designation, declaration or filing by or with any regulatory body, administrative or other governmental body is necessary in connection with the execution and delivery of this Agreement by such Selling Shareholder, and the consummation by it of the transactions herein contemplated (other than as required by the Act, state securities laws and the NASD).
(i) Any certificates signed by or on behalf of such Selling Shareholder as such and delivered to the Representatives or to counsel for the Representatives shall be deemed a representation and warranty by such Selling Shareholder to each Underwriter as to the matters covered thereby.
(j) 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 such Selling Shareholder agrees to deliver to you prior to or at the Closing Date a properly completed and executed United States Treasury Department Form W-9 (or other applicable form or statement specified by Treasury Department regulations in lieu thereof).
(k) Such Selling Shareholder has not taken and will not take, directly or indirectly, any action intended to constitute or which has constituted, or which might reasonably be expected to cause or result in, stabilization or manipulation of the price of the Common Stock. To assure compliance with Regulation M under the Exchange Act, such Selling Shareholder will not make bids for or purchases of or induce bids for or purchases of, directly or indirectly, any shares of Common Stock or securities convertible into Common Stock of the Company until the distribution of all shares of Common Stock being sold in the public offering has been completed.
Appears in 1 contract
Representations and Warranties of the Selling Shareholders. Each of the Selling Shareholders, severally and not jointly, Shareholders represents and warrants to to, and agrees with, each of the several Underwriters that:
(ai) Such Selling Shareholder, at the First Closing Date, will have good and marketable title to the Shares set forth in Schedule II to be sold by such Selling Shareholder, free and clear of any liens, encumbrances, equities and claims (other than as imposed by the Securities Act or this Agreement), and full right, power and authority to effect the sale and delivery of such Shares; and upon the delivery of and payment for the Shares to be sold by such Selling Shareholder pursuant to this Agreement, good and marketable title thereto, free and clear of any liens, encumbrances, equities and claims, of any kind, will be transferred to the Underwriters.
(b) Such each Selling Shareholder has duly executed and delivered the Custody Agreement and Power a power of Attorney attorney in the form previously heretofore delivered to the Representatives, (the "Power of Attorney") appointing the persons named therein, __________________ and each of them ___________________ as such Selling Shareholder's attorneyattorneys-in-fact (the "AttorneyAttorneys-in-Fact") ). Such Selling Shareholder also has duly executed and delivered or caused to be executed and delivered on his, her or its behalf by the Attorneys-in-Fact, a Custody Agreement (the "Custody Agreement"), in the form heretofore delivered to the Representatives, with ___________________ as custodian (the "Custodian"). The AttorneyAttorneys-in-Fact is are authorized to execute, deliver and perform (the Custody Agreement and) this Agreement on behalf of such Selling Shareholder, including, without limitation, the authority to deliver determine the Shares purchase price to be sold by such paid to each Selling Shareholder hereunder, to accept payment therefor, and otherwise to act on behalf by the Underwriters as set forth in Section 2 of such Selling Shareholder in connection with this Agreement, including payment from the Offering proceeds of expenses incurred on behalf of such Selling Shareholder. Certificates, Certificates in suitable negotiable form for transfer by delivery or accompanied by duly executed instruments of transfer or assignment in blank, representing the Shares to be sold by such each Selling Shareholder hereunder have been deposited with the Custodian pursuant to the Custody Agreement and Power of Attorney for the purpose of delivery pursuant to this Agreement. Such Selling Shareholder agrees that the shares of Common Stock Shares represented by the certificates on deposit with the Custodian are subject to the interest interests of the Underwriters hereunder, that the arrangements made for such custody and the appointment of the AttorneyAttorneys-in-Fact are to that extent irrevocable, and that the obligations of such Selling Shareholder hereunder shall not be terminated terminated, except as provided in this Agreement and Agreement, by any act of such Selling Shareholder, by operation of law or otherwise, whether by the Custody Agreement and Power dissolution, reorganization, death or incapacity of Attorney. If such Selling Shareholder should die or become incapacitated, or if the occurrence of any other event. If any such dissolution, reorganization, death, incapacity or other such event should occur, occur before the delivery of the Shares of such to be sold by the affected Selling Shareholder hereunder, the certificates for such Shares deposited with the Custodian shall be delivered by the Custodian in accordance with the terms and conditions of this Agreement Agreement, as if such dissolution, reorganization, death, incapacity incapacity, or other event had not occurred, regardless of whether or not the Custodian or the AttorneyAttorneys-in-Fact shall have received notice thereof.;
(cii) Such such Selling ShareholderShareholder has all requisite right, acting through his duly authorized Attorney-in-Factpower and authority to enter into this Agreement, has duly executed and delivered this Agreement and the Custody Agreement and the Power of Attorney; Attorney and to sell, transfer and deliver the Shares to be sold by such Selling Shareholder hereunder, and this Agreement, the Custody Agreement constitutes a and the Power of Attorney have been duly authorized, executed and delivered by such Selling Shareholder and constitute the legal, valid and binding obligation obligations of such Selling Shareholder enforceable in accordance with their respective terms;
(iii) the execution, delivery and performance of this Agreement, and the consummation of the transactions contemplated hereby and by the Prospectus, the Custody Agreement and the Power of Attorney do not and shall not, with or without the giving of notice or lapse of time or both, (A) conflict with any term or provision of such Selling Shareholder's charter, bylaws or other organic or governing documents, if applicable, (B) conflict with or result in a breach or a violation of any of the terms or provisions of, or constitute a default under, any indenture, mortgage or other agreement or instrument to which such Selling Shareholder is a party or by which such Selling Shareholder or any of his, her or its Shares is bound, or (C) violate any existing, applicable law, rule, regulation, judgment, order or decree of any government, governmental instrumentality or court, domestic or foreign, having jurisdiction over such Selling Shareholder or any of his, her or its Shares;
(iv) all authorizations authorizations, approvals and consents necessary for the valid execution and delivery by such Selling Shareholder of this Agreement and the Custody Agreement and Power of Attorney Attorney, the execution and delivery by or on behalf of such Selling Shareholder of the Custody Agreement and for this Agreement, and the sale and delivery of the Shares to be sold by such Selling Shareholder hereunder have been given(other than, except at the time of the execution hereof, the issuance of the order of the Commission declaring the Registration Statement effective and such authorizations, approvals or consents as may be required by necessary under the Securities Act or state securities laws; or Blue Sky laws and the Bylaws, rules and pronouncements of the NASD), have been obtained and are in full force and effect;
(v) such Selling Shareholder has now is, and on the legal capacity Closing Date and full rightany Option Closing Date will be, power and authority to execute this Agreement and the Custody Agreement and Power of Attorney.
(d) The performance of this Agreement and the Custody Agreement and Power of Attorney and the consummation lawful owner of the transactions contemplated hereby and thereby Shares to be sold by such Selling Shareholder will not result in a breach or violation ofpursuant to this Agreement. On the Closing Date and any option Closing Date, or conflict with, any of the terms or provisions of, or constitute a default by such Selling Shareholder underwill have good and marketable title to such Shares, any indenturefree and clear of all liens, mortgageencumbrances, deed of trust, trust (constructive or other), loan agreement, lease, franchise, license security interests or other agreement or instrument restrictions (other than those created under the Custody Agreement). Upon proper delivery of, and payment for, such Shares as provided herein, the Underwriters will acquire good and marketable title thereto, free and clear of all liens, encumbrances, security interests and other restrictions and defects whatsoever;
(vi) to which the knowledge of such Selling Shareholder or any Shareholder, the representations and warranties of his or its properties is bound, or any statute, judgment, decree, order, rule or regulation of any court or governmental agency or body applicable to such Selling Shareholder or any of his, her or its properties.
(ethe Company contained in Section l(a) hereof are true and correct. Such Selling Shareholder has not distributed nor, other than as permitted by examined the Securities Act and the Rules and Regulations, will distribute any prospectus or other offering material in connection with the offer and sale of the Shares other than any Preliminary Prospectus filed with the Commission or the Final Prospectus or other material permitted by the Securities Act.
(f) Such Selling Shareholder has reviewed and is familiar with the Primary Registration Statement and the Preliminary ProspectusProspectus and has no knowledge of any fact, condition or information not disclosed therein that has had or could reasonably be expected to have a Material Adverse Effect. To the knowledge of such Selling Shareholder, neither the Preliminary Primary Registration Statement nor the Prospectus does not include an contains any untrue statement of a material fact or omit omits to state a any material fact required to be stated therein or necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading. Such Selling Shareholder is not prompted to sell the Shares to be sold by such Selling Shareholder hereunder by any information concerning the Company or the Subsidiary that is not set forth in the Prospectus;
(vii) such Selling Shareholder has examined the Primary Registration Statement and the Prospectus and the information relating to such Selling Shareholder set forth therein and, as to such information, neither the Primary Registration Statement nor the Prospectus contains any untrue statement of a material fact or omits to state any material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading;
(viii) such Selling Shareholder has not incurred any liability for any finder's fee or similar payment in connection with the sale of such Selling Shareholder's Shares hereunder; and
(ix) such Selling Shareholder has not distributed and will not distribute any offering material in connection with the offering and sale of the Shares other than the Registration Statements, a Preliminary Prospectus, the Prospectus and other material, if any, permitted by the Act and the Regulations. Neither such Selling Shareholder nor any affiliate of such Selling Shareholder has taken or shall take any action designed, or that might be reasonably expected, to cause or result in stabilization or manipulation of the price of the Shares.
Appears in 1 contract
Representations and Warranties of the Selling Shareholders. Each of Except as to Sections 4(e) and 4(f), as to which only the Selling ShareholdersShareholders (as herein defined) make any representation, warranty or agreement, each Selling Shareholder severally and not jointlyrepresents, represents and warrants to and agrees with, each of the Underwriters that:
a. The Selling Shareholder has, and immediately prior to the Closing Date (aas defined in Section 2 hereof) Such the Selling ShareholderShareholder will have, at the First Closing Date, will have good and marketable title to the Shares set forth in Schedule II shares of Common Stock to be sold by the Selling Shareholder hereunder on such Selling Shareholderdate, free and clear of any all liens, encumbrances, equities or claims; and claims (other than as imposed by the Securities Act or this Agreement), and full right, power and authority to effect the sale and upon delivery of such Shares; and upon the delivery of shares and payment for the Shares to be sold by such Selling Shareholder therefor pursuant to this Agreementhereto, good and marketable valid title theretoto such shares, free and clear of any all liens, encumbrances, equities and or claims, of any kind, will be transferred pass to the Underwriters.
(b) Such b. The Selling Shareholder has duly executed and delivered the Custody Agreement and Power of Attorney placed in the form previously delivered to the Representatives, appointing the persons named therein, and each of them as such Selling Shareholder's attorney-in-fact custody under a custody agreement (the "Attorney-in-FactCustody Agreement" and, together with all other similar agreements executed by the other Selling Shareholders, the "Custody Agreements") and with Chemical Trust Company of California, as custodian (the "Custodian"). The Attorney-in-Fact is authorized to execute, deliver and perform this Agreement on behalf of such Selling Shareholder, to deliver the Shares to be sold by such Selling Shareholder hereunder, to accept payment therefor, and otherwise to act on behalf of such Selling Shareholder in connection with for delivery under this Agreement, including payment from certificates in negotiable form (with signature guaranteed by a commercial bank or trust company having an office or correspondent in the Offering proceeds United States or a member firm of expenses incurred on behalf of such Selling Shareholder. Certificates, in suitable form for transfer by delivery the New York or accompanied by duly executed instruments of transfer or assignment in blank, American Stock Exchanges) representing the Shares to be sold by such Selling Shareholder hereunder have been deposited with the Custodian pursuant to the Custody Agreement and Power of Attorney for the purpose of delivery pursuant to this Agreement. Such Selling Shareholder agrees that the shares of Common Stock represented by the certificates on deposit with the Custodian are subject to the interest of the Underwriters hereunder, that the arrangements made for such custody and the appointment of the Attorney-in-Fact are to that extent irrevocable, and that the obligations of such Selling Shareholder hereunder shall not be terminated except as provided in this Agreement and the Custody Agreement and Power of Attorney. If such Selling Shareholder should die or become incapacitated, or if any other event should occur, before the delivery of the Shares of such Selling Shareholder hereunder, the certificates for such Shares deposited with the Custodian shall be delivered by the Custodian in accordance with the terms and conditions of this Agreement as if such death, incapacity or other event had not occurred, regardless of whether the Custodian or the Attorney-in-Fact shall have received notice thereof.
(c) Such Selling Shareholder, acting through his duly authorized Attorney-in-Fact, has duly executed and delivered this Agreement and the Custody Agreement and Power of Attorney; this Agreement constitutes a legal, valid and binding obligation of such Selling Shareholder, all authorizations and consents necessary for the execution and delivery of this Agreement and the Custody Agreement and Power of Attorney on behalf of such Selling Shareholder and for the sale and delivery of the Shares to be sold by such the Selling Shareholder hereunder have been givenhereunder.
c. The Selling Shareholder has duly and irrevocably executed and delivered a power of attorney (the "Power of Attorney" and, except together with all other similar agreements executed by the other Selling Shareholders, the "Powers of Attorney") appointing Ronaxx Xxxxxxx xxx one or more other persons, as attorneys-in-fact, with full power of substitution, and with full authority (exercisable by any one or more of them) to execute and deliver this Agreement and to take such other action as may be required by necessary or desirable to carry out the Securities Act or state securities laws; and such provisions hereof on behalf of the Selling Shareholder.
d. The Selling Shareholder has the legal capacity and full right, power and authority to execute enter into this Agreement and Agreement, the Custody Agreement and Power of Attorney.
(d) The performance of this Agreement and the Custody Agreement and Power of Attorney and the Custody Agreement; the execution, delivery and performance of the Agreement, the Power of Attorney and the Custody Agreement by the Selling Shareholder and the consummation by the Selling Shareholder of the transactions contemplated hereby and thereby by such Selling Shareholder will not conflict with or result in a breach or violation of, or conflict with, of any of the terms or provisions of, or constitute a default by such Selling Shareholder under, any indenture, mortgage, deed of trust, trust (constructive or other), loan agreement, lease, franchise, license agreement or other agreement or instrument to which the Selling Shareholder is a party or by which the Selling Shareholder is bound or to which any of the property or assets of the Selling Shareholder is subject, nor will such actions result in any violation of the provisions of the charter or by-laws of the Selling Shareholder, the articles of partnership of the Selling Shareholder or any of his or its properties is bound, statute or any statute, judgment, decree, order, rule or regulation of any court or governmental agency or body applicable to such having jurisdiction over the Selling Shareholder or any the property or assets of histhe Selling Shareholder; and, her or its properties.
(e) Such Selling Shareholder has not distributed nor, other than as permitted by except for the Securities registration of the Shares under the Act and such consents, approvals, authorizations, registrations or qualifications as may be required under the Rules Exchange Act and Regulations, will distribute any prospectus or other offering material applicable state securities laws in connection with the offer purchase and sale distribution of the Shares other than by the Underwriters, no consent, approval, authorization or order of, or filing or registration with, any Preliminary Prospectus filed with such court or governmental agency or body is required for the Commission execution delivery and performance of the Agreement, the Power of Attorney or the Final Prospectus or other material permitted Custody Agreement by the Securities ActSelling Shareholder and the consummation by the Selling Shareholder of the transactions contemplated hereby.
(fe. Nothing has come to the attention of any of the persons identified on Schedule II hereto to cause them to believe that the representations and warranties of the Company set forth in Section 3(b) Such of this Agreement are not true and correct.
f. Each Selling Shareholder has reviewed no reason to believe that the representations and warranties of the Company contained in Section 3 hereof are not materially true and correct, is familiar with the Registration Statement and the Preliminary Prospectus (as amended or supplemented) and has no knowledge of any material fact, condition or information not disclosed in the Registration Statement, as of the effective date, or the Prospectus (or any amendment or supplement thereto), as of the applicable filing date, which has adversely affected or may adversely affect the business of the Company and is not prompted to sell shares of Common Stock by any information concerning the Company which is not set forth in the Registration Statement and the Prospectus. .
g. The Selling Shareholder has not taken and will not take, directly or indirectly, any action which is designed to or which has constituted or which might reasonably be expected to cause or result in the stabilization or manipulation of the price of any security of the Company to facilitate the sale or resale of the shares of the Stock.
h. To the knowledge of such extent that any statement or omissions made in the Registration Statement or Prospectus are made in reliance upon and in conformity with written information furnished to the Company by the Selling ShareholderShareholder specifically for use therein, on the Effective Date, the Preliminary Prospectus does Registration Statement did not include an 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, and on the Effective Date and the Closing Date, the Prospectus did not and will not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading.
Appears in 1 contract
Samples: Underwriting Agreement (Remec Inc)
Representations and Warranties of the Selling Shareholders. Each of the Selling Shareholders, Shareholders severally and not jointly, jointly represents and warrants to and agrees with, with each of the Underwriters that:
(a) Such This Agreement has been duly authorized, executed and delivered by or on behalf of such Selling Shareholder.
(b) The execution and delivery by such Selling Shareholder of, and the performance by such Selling Shareholder of its obligations under, this Agreement, the Custody Agreement signed by such Selling Shareholder and the Company, as Custodian, relating to the deposit of the Shares to be sold by such Selling Shareholder (the "Custody Agreement") and the Power of Attorney appointing certain individuals as such Selling Shareholder's attorneys-in-fact to the extent set forth therein, relating to the transactions contemplated hereby and by the Registration Statement (the "Power of Attorney") will not contravene any provision of applicable law, or the certificate of incorporation or by-laws of such Selling Shareholder (if such Selling Shareholder is a corporation), or any agreement or other instrument binding upon such Selling Shareholder or any judgment, order or decree of any governmental body, agency or court having jurisdiction over such Selling Shareholder, at and no consent, approval, authorization or order of, or qualification with, any governmental body or agency is required for the First performance by such Selling Shareholder of its obligations under this Agreement or the Custody Agreement or Power of Attorney of such Selling Shareholder, except such as may be required by the securities or Blue Sky laws of the various states in connection with the offer and sale of the Shares.
(c) Such Selling Shareholder has, and on the Closing DateDate will have, will have good and marketable valid title to the Shares set forth in Schedule II to be sold by such Selling Shareholder and the legal right and power, and all authorization and approval required by law, to enter into this Agreement, the Custody Agreement and the Power of Attorney and to sell, transfer and deliver the Shares to be sold by such Selling Shareholder.
(d) The Shares to be sold by such Selling Shareholder pursuant to this Agreement have been duly authorized and are validly issued, free fully paid and clear non-assessable.
(e) The Custody Agreement and the Power of any liensAttorney have been duly authorized, encumbrances, equities executed and claims (other than as imposed delivered by the Securities Act or this Agreement), such Selling Shareholder and full right, power are valid and authority to effect the sale and delivery binding agreements of such Shares; and upon the delivery Selling Shareholder.
(f) Delivery of and payment for the Shares to be sold by such Selling Shareholder pursuant to this Agreement, good and marketable Agreement will pass title thereto, to such Shares free and clear of any security interests, claims, liens, encumbrances, equities and claims, of any kind, will be transferred to the Underwritersother encumbrances.
(bi) Such Selling Shareholder has duly executed and delivered the Custody Agreement and Power The Registration Statement, when it became effective, did not contain and, as amended or supplemented, if applicable, will not contain any untrue statement of Attorney in the form previously delivered a material fact or omit to the Representatives, appointing the persons named therein, and each of them as such Selling Shareholder's attorney-in-state a material fact (the "Attorney-in-Fact") and as custodian (the "Custodian"). The Attorney-in-Fact is authorized to execute, deliver and perform this Agreement on behalf of such Selling Shareholder, to deliver the Shares required to be sold by such Selling Shareholder hereunder, stated therein or necessary to accept payment therefor, make the statements therein not misleading and otherwise to act on behalf of such Selling Shareholder in connection with this Agreement, including payment from (ii) the Offering proceeds of expenses incurred on behalf of such Selling Shareholder. Certificates, in suitable form for transfer by delivery or accompanied by duly executed instruments of transfer or assignment in blank, representing the Shares to be sold by such Selling Shareholder hereunder have been deposited with the Custodian pursuant to the Custody Agreement and Power of Attorney for the purpose of delivery pursuant to this Agreement. Such Selling Shareholder agrees that the shares of Common Stock represented by the certificates on deposit with the Custodian are subject to the interest of the Underwriters hereunder, that the arrangements made for such custody and the appointment of the Attorney-in-Fact are to that extent irrevocable, and that the obligations of such Selling Shareholder hereunder shall not be terminated except as provided in this Agreement and the Custody Agreement and Power of Attorney. If such Selling Shareholder should die or become incapacitated, or if any other event should occur, before the delivery of the Shares of such Selling Shareholder hereunder, the certificates for such Shares deposited with the Custodian shall be delivered by the Custodian in accordance with the terms and conditions of this Agreement as if such death, incapacity or other event had not occurred, regardless of whether the Custodian or the Attorney-in-Fact shall have received notice thereof.
(c) Such Selling Shareholder, acting through his duly authorized Attorney-in-Fact, has duly executed and delivered this Agreement and the Custody Agreement and Power of Attorney; this Agreement constitutes a legal, valid and binding obligation of such Selling Shareholder, all authorizations and consents necessary for the execution and delivery of this Agreement and the Custody Agreement and Power of Attorney on behalf of such Selling Shareholder and for the sale and delivery of the Shares to be sold by such Selling Shareholder hereunder have been given, except as may be required by the Securities Act or state securities laws; and such Selling Shareholder has the legal capacity and full right, power and authority to execute this Agreement and the Custody Agreement and Power of Attorney.
(d) The performance of this Agreement and the Custody Agreement and Power of Attorney and the consummation of the transactions contemplated hereby and thereby by such Selling Shareholder will not result in a breach or violation of, or conflict with, any of the terms or provisions of, or constitute a default by such Selling Shareholder under, any indenture, mortgage, deed of trust, trust (constructive or other), loan agreement, lease, franchise, license or other agreement or instrument to which such Selling Shareholder or any of his or its properties is bound, or any statute, judgment, decree, order, rule or regulation of any court or governmental agency or body applicable to such Selling Shareholder or any of his, her or its properties.
(e) Such Selling Shareholder has not distributed nor, other than as permitted by the Securities Act and the Rules and Regulations, will distribute any prospectus or other offering material in connection with the offer and sale of the Shares other than any Preliminary Prospectus filed with the Commission or the Final Prospectus or other material permitted by the Securities Act.
(f) Such Selling Shareholder has reviewed and is familiar with the Registration Statement and the Preliminary Prospectus. To the knowledge of such Selling Shareholder, the Preliminary Prospectus does not include an 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 in order to make the statements therein, in the light of the circumstances under which they were made, not misleading, but only with reference to information relating to such Selling Shareholder furnished in writing by or on behalf of such Selling Shareholder expressly for use in the Registration Statement, any preliminary prospectus, the Prospectus or any amendments or supplements thereto.
Appears in 1 contract
Samples: Underwriting Agreement (Cal Dive International Inc)
Representations and Warranties of the Selling Shareholders. Each of the Selling ShareholdersShareholder severally, severally and not jointly, represents and warrants to to, and agrees with, each of the Underwriters that:Underwriter as set forth below in this Section 2.
(a) Such This Agreement has been duly authorized, executed and delivered by or on behalf of such Selling Shareholder.
(b) Other than any Lien granted pursuant to the applicable Margin Loan (as defined in the Prospectus), which Liens applicable to the Securities shall be discharged at the First Closing DateClosing, will have such Selling Shareholder has good and marketable valid title to the Shares set forth in Schedule II Securities to be sold by such Selling Shareholderit pursuant to this Agreement, free and clear of any liens, encumbrances, equities and claims all Liens.
(other than as imposed by the Securities Act or this Agreement), and full right, power and authority to effect the sale and delivery of such Shares; and upon the delivery of and c) Upon payment for the Shares Securities to be sold by such Selling Shareholder pursuant to this Agreement, delivery of such Securities, as directed by the Representatives, to Cede & Co. (“Cede”) or such other nominee as may be designated by The Depository Trust Company (“DTC”) or CDS Clearing and Depository Services Inc. (“CDS”), as applicable, registration of such Securities in the name of Cede or such other nominee and the crediting of such Securities on the books of DTC or CDS to the securities account of the Underwriters (assuming that neither DTC, CDS nor the Underwriters has notice of any adverse claim (within the meaning of Section 8-105 of the New York Uniform Commercial Code (the “UCC”)) to such Securities), (A) DTC or CDS, as applicable, shall be a “protected purchaser” of such Securities within the meaning of Section 8-303 of the UCC, (B) under Section 8-501 of the UCC, the Underwriters will acquire a valid security entitlement in respect of such Securities, (C) no action based on any “adverse claim”, within the meaning of Section 8-102 of the UCC, to such Securities may be asserted against the Underwriters with respect to such security entitlement; and (D) the Underwriters will otherwise acquire good and marketable valid title thereto, to such Securities free and clear of any liensall Liens; for purposes of this representation, encumbrancessuch Selling Shareholder may assume that when such payment, equities delivery and claimscrediting occur, (x) such Securities will have been registered in the name of any kindCede or another nominee designated by DTC or CDS, in each case on the Company’s share registry in accordance with its articles, bylaws and applicable law, (y) DTC or CDS, as applicable, will be transferred registered as a “clearing corporation” within the meaning of Section 8-102 of the UCC and (z) appropriate entry to the Underwriters.
(b) Such Selling Shareholder has duly executed and delivered account of the Custody Agreement and Power Underwriters on the records of Attorney in the form previously delivered to the RepresentativesDTC or CDS, appointing the persons named thereinas applicable, and each of them as such Selling Shareholder's attorney-in-fact (the "Attorney-in-Fact") and as custodian (the "Custodian"). The Attorney-in-Fact is authorized to execute, deliver and perform this Agreement on behalf of such Selling Shareholder, to deliver the Shares to be sold by such Selling Shareholder hereunder, to accept payment therefor, and otherwise to act on behalf of such Selling Shareholder in connection with this Agreement, including payment from the Offering proceeds of expenses incurred on behalf of such Selling Shareholder. Certificates, in suitable form for transfer by delivery or accompanied by duly executed instruments of transfer or assignment in blank, representing the Shares to be sold by such Selling Shareholder hereunder will have been deposited with the Custodian made pursuant to the Custody Agreement and Power of Attorney for the purpose of delivery pursuant to this Agreement. Such Selling Shareholder agrees that the shares of Common Stock represented by the certificates on deposit with the Custodian are subject to the interest of the Underwriters hereunder, that the arrangements made for such custody and the appointment of the Attorney-in-Fact are to that extent irrevocable, and that the obligations of such Selling Shareholder hereunder shall not be terminated except as provided in this Agreement and the Custody Agreement and Power of Attorney. If such Selling Shareholder should die or become incapacitated, or if any other event should occur, before the delivery of the Shares of such Selling Shareholder hereunder, the certificates for such Shares deposited with the Custodian shall be delivered by the Custodian in accordance with the terms and conditions of this Agreement as if such death, incapacity or other event had not occurred, regardless of whether the Custodian or the Attorney-in-Fact shall have received notice thereof.
(c) Such Selling Shareholder, acting through his duly authorized Attorney-in-Fact, has duly executed and delivered this Agreement and the Custody Agreement and Power of Attorney; this Agreement constitutes a legal, valid and binding obligation of such Selling Shareholder, all authorizations and consents necessary for the execution and delivery of this Agreement and the Custody Agreement and Power of Attorney on behalf of such Selling Shareholder and for the sale and delivery of the Shares to be sold by such Selling Shareholder hereunder have been given, except as may be required by the Securities Act or state securities laws; and such Selling Shareholder has the legal capacity and full right, power and authority to execute this Agreement and the Custody Agreement and Power of AttorneyUCC.
(d) The performance of this Agreement execution and the Custody Agreement and Power of Attorney and the consummation of the transactions contemplated hereby and thereby delivery by such Selling Shareholder of, and the performance by such Selling Shareholder of its obligations under, this Agreement will not contravene or conflict with, result in a breach or violation of, or conflict with, any of the terms or provisions of, or constitute a default by (or, with the giving of notice or lapse of time, would be in default) under, or require the consent of any other party to, (i) the articles, by-laws or other organizational documents, as the case may be, of such Selling Shareholder underShareholder, (ii) any indenture, mortgage, deed of trust, trust (constructive or other), loan agreement, lease, franchise, license or other agreement or instrument to which such Selling Shareholder is a party or by which it is bound or (iii) any provision of applicable law or any of his or its properties is bound, or any statute, judgment, decree, order, rule decree or regulation of any court or governmental agency or body applicable to such Selling Shareholder of any court, regulatory body, administrative agency, governmental body or arbitrator having jurisdiction over such Selling Shareholder, except, in the case of the foregoing clauses (ii) and (iii) as would not, individually or in the aggregate, reasonably be expected to materially impact such Selling Shareholder’s ability to perform its obligations under this Agreement. No consent, approval, authorization or other order of, or registration or filing with, any court or other governmental authority or agency, is required for the consummation by such Selling Shareholder of histhe transactions contemplated in this Agreement, her except such as may be required under the Securities Act, applicable state securities or its propertiesblue sky laws and from the FINRA and such other approvals as have been or will be made or obtained on or prior to the Closing Date.
(e) Such Selling Shareholder has not distributed nor, other than as permitted by All information furnished to the Securities Act and the Rules and Regulations, will distribute any prospectus or other offering material in connection with the offer and sale of the Shares other than any Preliminary Prospectus filed with the Commission Company or the Final Prospectus Underwriters by or other material permitted by the Securities Act.
(f) Such Selling Shareholder has reviewed and is familiar with the Registration Statement and the Preliminary Prospectus. To the knowledge on behalf of such Selling ShareholderShareholder in writing expressly for use in the Registration Statement, the Preliminary Prospectus does not include an Disclosure Package and the Prospectuses is, and on the Closing Date will be, true, correct and complete in all material respects, and did not, and as of the Closing Date will not, contain any untrue statement of a material fact or omit to state a any material fact necessary in order to make such information not misleading, it being understood and agreed that the statements therein, only such information consists of the information with respect to such Selling Shareholder under the captions “Selling Shareholders” and “Plan of Distribution – Conflicts of Interest – Margin Loans” in the light Registration Statement, the Pricing Disclosure Package and the Prospectuses (such information, the “Selling Shareholder Information”).
(f) Prior to the completion of the circumstances under Underwriters’ distribution of the Securities, such Selling Shareholder has not distributed and will not distribute any offering material in connection with the offering and sale of the Securities other than the Disclosure Package and the Prospectuses.
(g) Such Selling Shareholder has not taken and will not take, directly or indirectly, any action that is designed to or that has constituted or that might reasonably be expected to cause or result in stabilization or manipulation of the price of any security of the Company to facilitate the sale or resale of the Securities.
(h) Except as provided herein, there is no Person which they were made, not misleadinghas been engaged by such Selling Shareholder to act for such Selling Shareholder and which is entitled to any brokerage or finder’s fee in connection with the completion of this Agreement or any of the transactions contemplated hereunder. Any certificate signed by or on behalf of such Selling Shareholder and delivered to the Representatives or to counsel for the Underwriters in connection with the offering of the Securities shall be deemed a representation and warranty by such Selling Shareholder to the Underwriters as to the matters covered thereby with respect to such Selling Shareholder. Such Selling Shareholder has a reasonable basis for making each of the representations set forth in this Section 2. Such Selling Shareholder further acknowledges that the Underwriters will rely upon the accuracy and truthfulness of the foregoing representations and hereby consents to such reliance.
Appears in 1 contract
Representations and Warranties of the Selling Shareholders. (a) Each of the Selling ShareholdersShareholder, severally and not jointly, represents and warrants to and agrees with, with each of the Underwriters and the Company that:
(ai) Such such Selling ShareholderShareholder has, and at the time of purchase, and at each additional time of purchase, if any, at which the First Closing Date, will have good and marketable title to the Shares set forth in Schedule II to be sold by Underwriters purchase any Additional ADSs from such Selling Shareholder, free will have, good and clear of any liens, encumbrances, equities and claims (other than as imposed by valid title to the Securities Act or this Agreement), and full right, power and authority to effect Ordinary Shares underlying the sale and delivery of such Shares; and upon the delivery of and payment for the Shares Offered ADSs to be sold by such Selling Shareholder pursuant to this Agreement, good and marketable title theretohereto, free and clear of any liensclaim, encumbranceslien, equities encumbrance, security interest, community property right, restriction on transfer or other defect in title other than pursuant to this Agreement, and claimsupon delivery of and payment for such Offered ADSs in accordance herewith, the Underwriters will acquire valid and marketable title to such Offered ADSs free and clear of any kindclaim, will lien, encumbrance, security interest, community property right, restriction on transfer or other defect in title; such Selling Shareholder has full right, power and authority to transfer and deliver such underlying Ordinary Shares for deposit with the Custodian, in accordance with the Deposit Agreement, against the issuance of such Offered ADSs to be transferred delivered to the Underwriters.Underwriters pursuant hereto by such Selling Shareholder at the time of purchase and, if applicable, each additional time of purchase, and such Selling Shareholder has full right, power and authority to sell and deliver the same to the Underwriters in accordance herewith;
(bii) Such such Selling Shareholder has duly authorized, executed and delivered delivered, in the Custody Agreement and form heretofore furnished to the Underwriters, a Power of Attorney in the form previously delivered to the Representatives, appointing the persons named therein, and each Representatives of them the Selling Shareholders as such Selling Shareholder's attorneyattorneys-in-fact for such Selling Shareholder, a letter of transmittal and a Custody Agreement (the "Attorney-in-Fact"“Custody Agreement”) between such Selling Shareholder and the Company, as custodian (the "“Selling Shareholder Custodian"”). The Attorney-in-Fact is authorized to execute, deliver ; each of such Power of Attorney and perform this Custody Agreement constitutes a valid and binding agreement on behalf the part of such Selling Shareholder, enforceable in accordance with its terms, except as the enforcement thereof may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or other similar laws relating to deliver or affecting creditors’ rights generally or by general equitable principles; the Shares performance of such Selling Shareholder’s obligations under such Power of Attorney and Custody Agreement and this Agreement and the consummation of the transactions contemplated thereby and hereby will not (A) result in a breach or violation of any of the terms and provisions of or constitute a default under (i) the charter documents of such Selling Shareholder, (ii) any bond, debenture, note or other evidence of indebtedness that is material to such Selling Shareholder, or (iii) any lease, contract, indenture, mortgage, deed of trust, loan agreement, joint venture or other agreement or instrument to which such Selling Shareholder is a party or by which such Selling Shareholder may be bound and, in each case, that is material to such Selling Shareholder, or (B) result in any violation of any law, order, rule, regulation, writ, injunction, judgment or decree of any court, government or governmental agency or body, domestic or foreign, having jurisdiction over such Selling Shareholder or over the properties of such Selling Shareholder, except, with respect to clause (A)(ii) and (A)(iii), any such breach, violation or default as would not, individually or in the aggregate, prevent or materially interfere with consummation of the transactions contemplated hereby or encumber or otherwise adversely affect the prospective rights of the Underwriters, and subsequent transferees, in and to the Offered ADSs to be sold by such Selling Shareholder hereunderpursuant hereto; and each of the Representatives of the Selling Shareholders, acting alone, is authorized to execute and deliver this Agreement and any other document necessary or desirable in connection with the transaction contemplated thereby, to accept payment therefordetermine the purchase price to be paid by the several Underwriters to such Selling Shareholder as provided in Section 1 hereof, to authorize the delivery, pursuant hereto, of the Offered ADSs to be sold by such Selling Shareholder pursuant hereto and to duly endorse (in blank or otherwise) the certificate or certificates representing the Ordinary Shares represented by such Offered ADSs or a stock power or powers with respect thereto and otherwise to act on behalf of such Selling Shareholder in connection with this AgreementAgreement within the scope set forth in the Power of Attorney to which such Selling Shareholder is a party;
(iii) all consents, including payment from approvals, authorizations and orders (including, without limitation, any required approval by the Offering proceeds of expenses incurred on behalf shareholders of such Selling Shareholder. Certificates) required for the execution, delivery and performance by such Selling Shareholder of this Agreement, the Power of Attorney and Custody Agreement to which such Selling Shareholder is a party (other than, (A) at the time of the execution hereof, if the Registration Statement or a post-effective amendment to the F-6 Registration Statement have not yet been declared effective by the Commission, the issuance of the order of the Commission declaring the Registration Statement or such post-effective amendment to the F-6 Registration Statement effective, (B) such consents, approvals, authorizations or orders as may be necessary under state or other securities or Blue Sky laws or (C) any consents or approvals as may be required pursuant to the Conduct Rules of the NASD) have been obtained and are in full force and effect; and such Selling Shareholder has full legal right, power and authority to enter into and perform its obligations under this Agreement and the Power of Attorney and Custody Agreement to which such Selling Shareholder is a party, and to sell, assign, transfer and deliver such Offered ADSs, and the Ordinary Shares represented thereby, in suitable form the manner provided by this Agreement;
(iv) certificates for transfer by delivery or accompanied by duly executed instruments of transfer or assignment in blank, representing the all Ordinary Shares to be sold by such Selling Shareholder hereunder in the form of ADSs under this Agreement, together with a share transfer form duly endorsed in blank by such Selling Shareholder, have been deposited placed in custody with the Selling Shareholder Custodian pursuant to the Custody Agreement and Power of Attorney for the purpose of effecting delivery pursuant hereunder;
(v) this Agreement has been duly authorized, executed and delivered by or on behalf of such Selling Shareholder;
(vi) such Selling Shareholder has not taken and will not take, directly or indirectly, any action designed to or that would reasonably be expected to cause or result in stabilization or manipulation of the price of the Offered ADSs to facilitate the sale or resale of the Offered ADSs;
(vii) prior to the execution of this Agreement. Such , such Selling Shareholder agrees that has not, directly or indirectly, offered or sold any Offered ADSs or underlying Ordinary Shares by means of any “prospectus” (within the shares meaning of Common Stock represented the Act), and has not used any “prospectus” (within the meaning of the Act) in connection with the offer or sale contemplated hereby of the Offered ADSs or the underlying Ordinary Shares, in each case other than the Preliminary Prospectuses and the Permitted Free Writing Prospectuses, if any;
(viii) such Selling Shareholder does not have any, or has waived, prior to the date hereof, or hereby waives, all, preemptive rights, co-sale rights or rights of first refusal or other similar rights to purchase any of the Offered ADSs; such Selling Shareholder does not have any, or has waived, prior to the date hereof, or hereby waives, all registration rights or other similar rights to participate in the offering and sale of the Offered ADSs contemplated hereby, other than such rights of participation as have been satisfied by the certificates on deposit with the Custodian are subject to the interest of the Underwriters hereunder, that the arrangements made for such custody and the appointment of the Attorney-in-Fact are to that extent irrevocable, and that the obligations participation of such Selling Shareholder hereunder shall not be terminated except as provided in the transactions to which this Agreement and the Custody Agreement and Power of Attorney. If such Selling Shareholder should die or become incapacitated, or if any other event should occur, before the delivery of the Shares of such Selling Shareholder hereunder, the certificates for such Shares deposited with the Custodian shall be delivered by the Custodian relates in accordance with the terms and conditions of this Agreement as if such death, incapacity or other event had not occurred, regardless of whether the Custodian or the Attorney-in-Fact shall have received notice thereof.Agreement;
(cix) Such Selling Shareholder, acting through his duly authorized Attorney-in-Fact, has duly executed and delivered this Agreement and the Custody Agreement and Power of Attorney; this Agreement constitutes a legal, valid and binding obligation of such Selling Shareholder, all authorizations and consents necessary for the execution and delivery of this Agreement and the Custody Agreement and Power of Attorney on behalf of sale by such Selling Shareholder and for the sale and delivery of the Shares Offered ADSs to be sold by such Selling Shareholder hereunder have been givenpursuant hereto, and the deposit of the underlying Ordinary Shares with the Custodian pursuant hereto and to the Custody Agreement, is not prompted by any material or adverse information concerning the Company or any of its Subsidiaries which is not set forth in each Preliminary Prospectus and the Prospectus;
(x) except as may be required by the Securities Act for payments provided in this Agreement, there are no contracts, agreements or state securities laws; and understandings between such Selling Shareholder has the legal capacity and full right, power and authority any person that would give rise to execute this Agreement and the Custody Agreement and Power of Attorney.
(d) The performance of this Agreement and the Custody Agreement and Power of Attorney and the consummation of the transactions contemplated hereby and thereby by such Selling Shareholder will not result in a breach or violation of, or conflict with, any of the terms or provisions of, or constitute a default by such Selling Shareholder under, any indenture, mortgage, deed of trust, trust (constructive or other), loan agreement, lease, franchise, license or other agreement or instrument to which valid claim against such Selling Shareholder or any of his or its properties is boundUnderwriter for a brokerage commission, or any statute, judgment, decree, order, rule or regulation of any court or governmental agency or body applicable to such Selling Shareholder or any of his, her or its properties.
(e) Such Selling Shareholder has not distributed nor, other than as permitted by the Securities Act and the Rules and Regulations, will distribute any prospectus finder’s fee or other offering material like payment in connection with the offer and sale of the Shares Offered ADSs to be sold by such Selling Shareholder pursuant hereto; and
(xi) at the time of purchase and, if applicable, each additional time of purchase, all stock transfer or other taxes (other than any income taxes), if any, that are required to be paid in connection with the sale and transfer of the Offered ADSs and underlying Ordinary Shares to be sold by such Selling Shareholder to the several Underwriters hereunder will be fully paid or provided for by such Selling Shareholder, and all laws imposing such taxes will be fully complied with.
(b) Each of GE International, Golden Meditech, Asset Managers, Neon Ltd., Neon Greater China and Neon LP, severally and not jointly, represents and warrants to and agrees with each of the Underwriters and the Company that the Selling Shareholder Information (as defined below) of such Selling Shareholder contained in the Registration Statement, did not, as of the Effective Time, contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading; at no time during the period that begins on the earlier of the date of such Preliminary Prospectus and the date such Preliminary Prospectus was filed with the Commission and ends at the time of purchase did or will the Final Prospectus or other material permitted by the Securities Act.
(f) Such Selling Shareholder has reviewed and is familiar with the Registration Statement and the Preliminary Prospectus. To the knowledge Information of such Selling ShareholderShareholder contained in any Preliminary Prospectus, the Preliminary Prospectus does not as then amended or supplemented, include an untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading., and at no time during such period did or will the Selling Shareholder Information of such Selling Shareholder contained in any Disclosure Package, when considered as a whole, include an untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading; at no time during the period that begins on the earlier of the date of the Prospectus and the date the Prospectus is filed with the Commission and ends at the later of the time of purchase, the latest additional time of purchase, if any, and the end of the period during which a prospectus is required by the Act to be delivered (whether physically or through compliance with Rule 172 under the Act or any similar rule) in connection with any sale of Offered ADSs contemplated hereby did or will the Selling Shareholder Information of such Selling Shareholder contained in the Prospectus, as then amended or supplemented, include an untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading; at no time during the period that begins on the date of such Permitted Free Writing Prospectus and ends at the time of purchase did or will the Selling Shareholder Information of such Selling Shareholder contained in any Permitted Free Writing Prospectus include an untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading; as used herein, “Selling Shareholder Information” means:
Appears in 1 contract
Samples: Underwriting Agreement (China Medical Technologies, Inc.)
Representations and Warranties of the Selling Shareholders. 5.1 Each Selling Shareholder, acting severally but not jointly and only in respect of the Eleusian Shares held by such Selling Shareholders, severally and not jointlyShareholder, represents and warrants to GreenStar, and agrees withacknowledges that GreenStar is relying upon such covenants, each representations and warranties in connection with the Transaction, that, as at the date of this Agreement and as at the Underwriters thatClosing:
(a) Such Selling Shareholder, at the First Closing Date, will have good and marketable title to the Shares set forth in Schedule II to be sold by such Selling Shareholder, free and clear of any liens, encumbrances, equities and claims (other than as imposed by the Securities Act or this Agreement), and full right, power and authority to effect the sale and delivery of such Shares; and upon the delivery of and payment for the The GreenStar Shares to be sold by issued to such Selling Shareholder pursuant to this Agreementthe Transaction are being issued to such Selling Shareholder as principal for their own account and not for the benefit of any other Person.
(b) Other than as disclosed to GreenStar, the Eleusian Shares owned by such Selling Shareholder are owned by such Selling Shareholder as the sole beneficial and recorded owner with good and marketable title thereto, free and clear of any liensall Liens, encumbrances, equities and claims, of any kindpledges, will be transferred to the Underwritersencumbrances and demands whatsoever.
(bc) Such Other than under this Agreement, no Person has any agreement or option (including any stock option, warrant, or other convertible security), or any right or privilege (whether by law, pre-emptive or contractual) capable of becoming an agreement or option, for the purchase or other acquisition from such Selling Shareholder of any of their Eleusian Shares.
(d) It has been advised to consult with its own legal, tax and other advisors with respect to the merits of the acquisition of the GreenStar Shares and applicable resale restrictions, and such Selling Shareholder is solely responsible for compliance with applicable resale restrictions with respect to the GreenStar Shares.
(e) It is the registered and beneficial owner of the number of Eleusian Shares listed next to its name in Schedule A to this Agreement, free and clear of any Lien, and such Selling Shareholder has duly executed no interest, legal or beneficial, direct or indirect, in any other securities of Eleusian, or the Eleusian Business or any assets of Eleusian.
(f) It has the legal capacity and delivered the Custody competence to enter into this Agreement and Power to take all actions required pursuant hereto and, if it is a corporate entity, it is duly incorporated and validly subsisting under the laws of Attorney in its jurisdiction of incorporation and all necessary approvals by its directors, shareholders and others have been obtained to authorize execution and performance of the form previously delivered to the Representatives, appointing the persons named therein, and each of them as such Selling Shareholder's attorney-in-fact (the "Attorney-in-Fact") and as custodian (the "Custodian"). The Attorney-in-Fact is authorized to execute, deliver and perform this Agreement on behalf of such Selling Shareholder, and to deliver transfer the Shares to be sold by such Selling Shareholder hereunder, to accept payment therefor, beneficial title and otherwise to act on behalf of such Selling Shareholder in connection with this Agreement, including payment from the Offering proceeds of expenses incurred on behalf ownership of such Selling Shareholder. Certificates, in suitable form for transfer by delivery or accompanied by duly executed instruments of transfer or assignment in blank, representing the ’s Eleusian Shares to be sold GreenStar.
(g) It waives all rights held by it under any prior contract or arrangement pertaining to its Eleusian Shares, if any, and it will remise, release and forever discharge GreenStar and its directors, officers, employees, successors, solicitors, agents and assigns from any and all obligations to such Selling Shareholder hereunder have been deposited with the Custodian pursuant to the Custody Agreement and Power of Attorney for the purpose of delivery pursuant to this Agreement. Such Selling Shareholder agrees that the shares of Common Stock represented by the certificates on deposit with the Custodian are subject to the interest under any such prior contracts or arrangements.
(h) All of the Underwriters hereunder, that the arrangements made for such custody and the appointment of the Attorney-in-Fact are to that extent irrevocable, and that the obligations of information which such Selling Shareholder hereunder shall not be terminated except as has provided in this Agreement is correct and complete, and if there should be any change in such information prior to the Custody Agreement and Power of Attorney. If such Selling Shareholder should die or become incapacitatedClosing, or if any other event should occurit will immediately notify GreenStar, before the delivery in writing, of the Shares details of any such Selling Shareholder hereunder, the certificates for such Shares deposited with the Custodian shall be delivered by the Custodian in accordance with the terms and conditions of this Agreement as if such death, incapacity or other event had not occurred, regardless of whether the Custodian or the Attorney-in-Fact shall have received notice thereofchange.
(ci) Such Selling Shareholder, acting through his duly authorized Attorney-in-Fact, has duly executed and delivered this Agreement and the Custody Agreement and Power of Attorney; this Agreement constitutes a legal, valid and binding obligation of such Selling Shareholder, all authorizations and consents necessary for the execution and delivery The entering into of this Agreement and the Custody Agreement and Power of Attorney on behalf of such Selling Shareholder and for the sale and delivery of the Shares to be sold by such Selling Shareholder hereunder have been given, except as may be required by the Securities Act or state securities laws; and such Selling Shareholder has the legal capacity and full right, power and authority to execute this Agreement and the Custody Agreement and Power of Attorney.
(d) The performance of this Agreement and the Custody Agreement and Power of Attorney and the consummation of the transactions contemplated hereby and thereby by such Selling Shareholder will thereunder do not result in a breach or the violation of, or conflict with, of any of the terms or and provisions of any Applicable Laws, or, if applicable, the constating documents of, or constitute a default by such Selling Shareholder underShareholder, or of any indenture, mortgage, deed of trust, trust (constructive or other), loan agreement, lease, franchise, license contract or other agreement arrangement, written or instrument oral, to which such Selling Shareholder may be a party or any of his by which it is or its properties is may be bound, or any statute, judgment, decree, order, rule or regulation of any court or governmental agency or body applicable to such Selling Shareholder or any of his, her or its properties.
(ej) Such Selling Shareholder has GreenStar will refuse to register the transfer of any of the GreenStar Shares to a U.S. Person not distributed normade pursuant to an effective registration statement under the 1933 Act or pursuant to an available exemption from the registration requirements of the 1933 Act, other than as permitted by the Securities Act and the Rules and Regulations, will distribute any prospectus or other offering material in each case in accordance with Applicable Laws.
(k) It: (i) is able to fend for itself in connection with the offer and sale its acquisition of the Shares other than any Preliminary Prospectus filed with the Commission or the Final Prospectus or other material permitted by the Securities Act.
(f) Such Selling Shareholder has reviewed and is familiar with the Registration Statement and the Preliminary Prospectus. To the knowledge of such Selling Shareholder, the Preliminary Prospectus does not include an untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading.GreenStar Shares;
Appears in 1 contract
Samples: Share Exchange Agreement
Representations and Warranties of the Selling Shareholders. Each of the Selling ShareholdersShareholder, severally and not jointly, represents and warrants to and agrees with, with the Independent Underwriter and each of the Underwriters that:
(a) Such This Agreement has been duly authorized, executed and delivered by or on behalf of such Selling Shareholder, at the First Closing Date, will have good .
(b) The execution and marketable title to the Shares set forth in Schedule II to be sold delivery by such Selling Shareholder of, the performance by such Selling Shareholder of its obligations under, and the consummation of the transactions contemplated by, this Agreement, the Custody Agreement, the Power of Attorney appointing certain individuals as such Selling Shareholder’s attorneys-in-fact to the extent set forth therein, free relating to the transactions contemplated hereby and clear of any liens, encumbrances, equities and claims (other than as imposed by the Securities Act or this AgreementRegistration Statement (the “Power of Attorney”), the statement of election and full right, power questionnaire relating to the number of Shares such Selling Shareholder wishes to sell in the offering in the form of ADSs (the “Statement of Election and authority Questionnaire”) and the share transfer form relating to effect the sale and delivery transfer of such Shares; and upon the delivery of and payment for the Shares to be sold by such Selling Shareholder pursuant to this Agreement, good and marketable title thereto, free and clear (the “Share Transfer Form”) will not contravene or result in any breach or violation of any liens, encumbrances, equities and claims, provision of any kind, will be transferred to applicable law or the Underwriters.
(b) Such Selling Shareholder has duly executed and delivered the Custody Agreement and Power of Attorney in the form previously delivered to the Representatives, appointing the persons named therein, and each of them as such Selling Shareholder's attorney-in-fact (the "Attorney-in-Fact") and as custodian (the "Custodian"). The Attorney-in-Fact is authorized to execute, deliver and perform this Agreement on behalf constitutive documents of such Selling Shareholder, to deliver the Shares to be sold by such Selling Shareholder hereunder, to accept payment therefor, and otherwise to act on behalf of such Selling Shareholder in connection with this Agreement, including payment from the Offering proceeds of expenses incurred on behalf of or any agreement or other instrument binding upon such Selling Shareholder. Certificates, in suitable form for transfer by delivery or accompanied by duly executed instruments any judgment, order or decree of transfer or assignment in blank, representing the Shares to be sold by any Governmental Agency having jurisdiction over such Selling Shareholder hereunder have been deposited with the Custodian pursuant to the Custody Agreement and Power of Attorney for the purpose of delivery pursuant to this Agreement. Such Selling Shareholder agrees that the shares of Common Stock represented by the certificates on deposit with the Custodian are subject to the interest of the Underwriters hereunder, that the arrangements made for such custody and the appointment of the Attorney-in-Fact are to that extent irrevocable, and that the obligations of such Selling Shareholder hereunder shall not be terminated except as provided in this Agreement and the Custody Agreement and Power of Attorney. If such Selling Shareholder should die or become incapacitated, or if any other event should occur, before the delivery of the Shares of such Selling Shareholder hereunder, the certificates for such Shares deposited with the Custodian shall be delivered by the Custodian in accordance with the terms and conditions of this Agreement as if such death, incapacity or other event had not occurred, regardless of whether the Custodian or the Attorney-in-Fact shall have received notice thereofShareholder.
(c) Such No consent, approval, authorization or any other Governmental Authorization by any Governmental Agency having jurisdiction over such Selling ShareholderShareholder is required for execution and delivery by such Selling Shareholder of, acting through his duly authorized Attorney-in-Fact, has duly executed and delivered this Agreement and the Custody Agreement and Power of Attorney; this Agreement constitutes a legal, valid and binding obligation performance by such Selling Shareholder of such Selling Shareholder’s obligations under, all authorizations and consents necessary for the execution and delivery of this Agreement and the Custody Agreement and Power of Attorney on behalf of such Selling Shareholder and for the sale and delivery of the Shares to be sold by such Selling Shareholder hereunder have been given, except as may be required by the Securities Act or state securities laws; and such Selling Shareholder has the legal capacity and full right, power and authority to execute this Agreement and the Custody Agreement and Power of Attorney.
(d) The performance of this Agreement and the Custody Agreement and Power of Attorney and the consummation of the transactions contemplated hereby by, this Agreement, the Custody Agreement, the Power of Attorney, the Statement of Election and thereby Questionnaire and the Share Transfer Form.
(d) The Custody Agreement, the Power of Attorney, the Statement of Election and Questionnaire and the Share Transfer Form have been duly authorized, executed and delivered by such Selling Shareholder will not result in a breach or violation of, or conflict with, any and are valid and binding agreements of the terms or provisions of, or constitute a default by such Selling Shareholder under, any indenture, mortgage, deed of trust, trust (constructive or other), loan agreement, lease, franchise, license or other agreement or instrument to which enforceable against such Selling Shareholder or any of his or its properties is bound, or any statute, judgment, decree, order, rule or regulation of any court or governmental agency or body applicable to such Selling Shareholder or any of his, her or its propertiesin accordance with their terms.
(e) The Statement of Election and Questionnaire completed by such Selling Shareholder and submitted to the Company on or before [ ], 2008 does not, and as of the Closing Date and the applicable Option Closing Date will not, contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, not misleading.
(f) The Power of Attorney constitutes a valid instrument granting the attorney-in-fact named in such Power of Attorney the power and authority stated therein, and permits the attorneys-in-fact to bind such Selling Shareholder with respect to all matters granted, conferred and contemplated in such Power of Attorney, and such Power of Attorney has not been revoked, cancelled or terminated at any time.
(g) Such Selling Shareholder has is not distributed norprompted by any information concerning the Company or the Subsidiaries which is not set forth in the Time of Sale Prospectus and the Prospectus to sell its ADSs pursuant to this Agreement.
(i) The Registration Statement, other than when it became effective, did not contain and, as permitted by amended or supplemented, if applicable, will not contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading, (ii) the Registration Statement and the Prospectus comply and, as amended or supplemented, if applicable, will comply in all material respects with the Securities Act and the Rules applicable rules and Regulationsregulations of the Commission thereunder, will distribute any prospectus or other offering material (iii) the Time of Sale Prospectus does not, and at the time of each sale of the ADSs in connection with the offer offering when the Prospectus is not yet available to prospective purchasers and sale at the Closing Date, the Time of the Shares other than any Preliminary Prospectus filed with the Commission Sale Prospectus, as then amended or the Final Prospectus or other material permitted supplemented by the Securities Act.
(f) Such Selling Shareholder has reviewed and is familiar with the Registration Statement and the Preliminary Prospectus. To the knowledge of such Selling ShareholderCompany, the Preliminary Prospectus does not include an 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 order the light of the circumstances under which they were made, not misleading, (iv) each broadly available road show, if any, when considered together with the Time of Sale Prospectus, does not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading and (v) the Prospectus does not contain and, as amended or supplemented, if applicable, will not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading.
(i) Such Selling Shareholder has, and on the Closing Date and each 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 and the ADSs to be sold by such Selling Shareholder free and clear of any security interest, other encumbrance or adverse claims, and such Shares and ADSs will have been sold in compliance with all applicable securities laws.
(j) Delivery of the Shares and the ADSs to be sold by such Selling Shareholders and payment therefor pursuant to this Agreement will pass valid title to such Shares and ADSs, free and clear of any adverse claim within the meaning of Section 8-102 of the New York Uniform Commercial Code, to each Underwriter who has purchased such Shares and ADSs without notice of an adverse claim.
(k) Such Selling Shareholder has, and on the Closing Date and each Option Closing Date will have, the legal right and power, and all Governmental Authorizations, to enter into this Agreement, the Custody Agreement, the Power of Attorney, the Statement of Election and Questionnaire and the Share Transfer Form and to sell, transfer and deliver the ADSs to be sold by such Selling Shareholder and to deposit with the Depositary the Shares underlying the ADSs to be sold by such Selling Shareholder.
(l) Upon payment of the purchase price in accordance with this Agreement at the Closing Date and each Option Closing Date, the Depositary or its nominee, as the registered holder of such Shares will be, subject to the terms of the Deposit Agreement, entitled to all the rights of a shareholder conferred by the amended and restated memorandum and articles of association of the Company. Such Shares may be freely deposited by such Selling Shareholders with the Depositary against issuance of ADRs evidencing ADSs; ADSs are freely transferable by such Selling Shareholders to or for the account of the several Underwriters; and except as disclosed in the Time of Sale Prospectus and Prospectus, there are no restrictions on the subsequent transfer of such Shares or the ADSs under the laws of the Cayman Islands, Hong Kong, the BVI, the PRC and the United States.
(m) Such Selling Shareholder has not taken and will not take, directly or indirectly, any action designed to, or that has constituted or might reasonably be expected to, cause or result in, under the Exchange Act or otherwise, the stabilization or manipulation of the price of any security of the Company to facilitate the sale or resale of the Shares or the ADSs.
(n) There is no contract, agreement or understanding between such Selling Shareholder and any person that would give rise to a valid claim against such Selling Shareholder or any Underwriter for a brokerage commission, finder’s fee or other like payment in connection with this offering.
(o) Except as described in the Registration Statement, the Time of Sale Prospectus or the Prospectus or otherwise disclosed to the Underwriters or their counsel, there are no affiliations or associations between any member of FINRA and such Selling Shareholder; none of the proceeds received by such Selling Shareholder from the sale of the ADSs to be sold by such Selling Shareholder pursuant to this Agreement will be paid to a member of FINRA or any affiliate of (or person “associated with,” as such terms are used in FINRA rules) such member.
(p) Pursuant to the Custody Agreement to which such Selling Shareholder is a party, certificates in negotiable form for the Shares underlying the ADSs to be sold by such Selling Shareholder pursuant to this Agreement have been placed in custody for the purpose of making delivery of such Shares in accordance with this Agreement; such Selling Shareholder agrees that (i) such Shares represented by such certificates are for the benefit of, and coupled with and subject to the interest of, the Custodian, the attorneys-in-fact of the Selling Shareholders, the Underwriters and the Company, (ii) the arrangements made by such Selling Shareholder for custody and for the appointment of the Custodian and the attorneys-in-fact of the Selling Shareholders by such Selling Shareholder are irrevocable, and (iii) the obligations of such Selling Shareholder hereunder shall not be terminated by operation of law, whether by the death, disability or incapacity of such Selling Shareholder (or, if such Selling Shareholder is not an individual, the liquidation, dissolution, merger or consolidation of such Selling Shareholder) or the occurrence of any event (each, an “Event”); if an Event occurs before the delivery of the Shares hereunder, certificates for the Shares shall be delivered by the Custodian in accordance with the terms and conditions of the Power of Attorney to which such Selling Shareholder is a party, the Custody Agreement to which such Selling Shareholder is a party and this Agreement, and actions taken by the Custodian and the attorneys-in-fact of the Selling Shareholders pursuant to such Power of Attorney or such Custody Agreement shall be as valid as if such Event had not occurred, regardless of whether or not the Custodian or the attorneys-in-fact of the Selling Shareholders, or either of them, shall have received notice thereof.
(q) Such Selling Shareholder has not distributed and will not distribute, prior to the later of the latest Option Closing Date and the completion of the Underwriters’ distribution of the ADSs, any offering material in connection with the offering and sale of the ADSs by the Selling Shareholders, including any free writing prospectus.
(r) Other than as disclosed in the Time of Sale Prospectus and the Prospectus, such 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 this offering.
(s) Such Selling Shareholder does not have, or has waived prior to the date hereof, any preemptive rights, co-sale rights, resale rights, rights of first refusal or similar rights to purchases any of the Shares that are to be sold by the Company or any other Selling Shareholder to the Underwriters pursuant to this Agreement; and such 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 shares, right, warrants, options or other securities from the Company, other than those described in the Time of Sale Prospectus and the Prospectus.
(t) Neither such Selling Shareholder, nor, to the best knowledge of such Selling Shareholder, any director, officer, agent, employee or affiliate of such Selling Shareholder a Person that is currently subject to any OFAC-administered sanctions; and such Selling Shareholder will not directly or indirectly use the proceeds of the offering of the ADSs hereunder, or lend, contribute or otherwise make available such proceeds to any joint venture partner or other Person, to fund activities of or business with any Person, or in any country or territory, that is the subject of OFAC-administered sanctions, or in a manner that would otherwise cause any Person (including any Person involved in or facilitating the offering of the Shares, whether as underwriter, advisor, or otherwise) to violate any OFAC-administered sanctions.
(u) Any certificate signed by any officer of such Selling Shareholder or the attorneys-in-fact for such Selling Shareholder under the Power of Attorney and delivered to you or counsel for the Underwriters as required or contemplated by this Agreement shall constitute a representation and warranty hereunder by such Selling Shareholder, as to matters covered thereby, to each Underwriter.
Appears in 1 contract
Samples: Underwriting Agreement (GCL Silicon Technology Holdings Inc.)
Representations and Warranties of the Selling Shareholders. Each of the Selling Shareholders, Shareholder severally and not jointly, represents and warrants to to, and agrees with, each of the Underwriters thatUnderwriters, as of the date hereof, and as of each Option Closing Date (if any) referred to in Section 3(d) hereof, as follows:
(a) Such This Agreement has been duly authorized, executed and delivered by or on behalf of such Selling Shareholder and is a valid and binding agreement of such Selling Shareholder, at enforceable in accordance with its terms.
(b) Each of the First Closing Date(i) Custody Agreement signed by such Selling Shareholder and [ ], will have good and marketable title as custodian (the “Custodian”), relating to the deposit of the Option Shares set forth in Schedule II to which may be sold by such Selling Shareholder (the “Custody Agreement”) and (ii) Power of Attorney appointing certain individuals named therein as such Selling Shareholder’s attorneys-in-fact (each, an “Attorney-in-Fact”) to the extent set forth therein relating to the transactions contemplated hereby and by the Prospectus (the “Power of Attorney”), of such Selling Shareholder has been duly authorized, executed and delivered by such Selling Shareholder and is a valid and binding agreement of such Selling Shareholder, free and clear of any liens, encumbrances, equities and claims enforceable in accordance with its terms.
(other than as imposed by the Securities Act or this Agreement)c) Such Selling Shareholder has, and full righton each applicable Option Closing Date will have, good and valid title to all of the Option Shares which may be sold by such Selling Shareholder pursuant to this Agreement on such date and the legal right and power to sell, transfer and authority deliver all of the Option Shares which may be sold by such Selling Shareholder pursuant to effect the sale this Agreement and to comply with its other obligations hereunder and thereunder.
(d) Upon delivery of such Shares; and upon the delivery of and payment for the Option Shares to be which are sold by such Selling Shareholder pursuant to this Agreement, and payment therefor pursuant hereto, good and marketable title theretoto such Option Shares will pass, free and clear of any lienssecurity interest, encumbrancesmortgage, equities and claimspledge, of any kindlien, will be transferred to the Underwritersencumbrance or other adverse claim.
(be) Such The execution and delivery by such Selling Shareholder has duly executed of, and delivered the performance by such Selling Shareholder of its obligations under, this Agreement, the Custody Agreement and the Power of Attorney in the form previously delivered to the Representatives, appointing the persons named therein, and each of them as such Selling Shareholder's attorney-in-fact (the "Attorney-in-Fact") and as custodian (the "Custodian"). The Attorney-in-Fact is authorized to execute, deliver and perform this Agreement on behalf of such Selling Shareholder, to deliver the Shares to be sold by such Selling Shareholder hereunder, to accept payment therefor, and otherwise to act on behalf of such Selling Shareholder in connection with this Agreement, including payment from the Offering proceeds of expenses incurred on behalf of such Selling Shareholder. Certificates, in suitable form for transfer by delivery or accompanied by duly executed instruments of transfer or assignment in blank, representing the Shares to be sold by such Selling Shareholder hereunder have been deposited with the Custodian pursuant to the Custody Agreement and Power of Attorney for the purpose of delivery pursuant to this Agreement. Such Selling Shareholder agrees that the shares of Common Stock represented by the certificates on deposit with the Custodian are subject to the interest of the Underwriters hereunder, that the arrangements made for such custody and the appointment of the Attorney-in-Fact are to that extent irrevocable, and that the obligations of such Selling Shareholder hereunder shall not be terminated except as provided in this Agreement and the Custody Agreement and Power of Attorney. If such Selling Shareholder should die or become incapacitated, or if any other event should occur, before the delivery of the Shares of such Selling Shareholder hereunder, the certificates for such Shares deposited with the Custodian shall be delivered by the Custodian in accordance with the terms and conditions of this Agreement as if such death, incapacity or other event had not occurred, regardless of whether the Custodian or the Attorney-in-Fact shall have received notice thereof.
(c) Such Selling Shareholder, acting through his duly authorized Attorney-in-Fact, has duly executed and delivered this Agreement and the Custody Agreement and Power of Attorney; this Agreement constitutes a legal, valid and binding obligation of such Selling Shareholder, all authorizations and consents necessary for the execution and delivery of this Agreement and the Custody Agreement and Power of Attorney on behalf of such Selling Shareholder and for the sale and delivery of the Shares to be sold by such Selling Shareholder hereunder have been given, except as may be required by the Securities Act or state securities laws; and such Selling Shareholder has the legal capacity and full right, power and authority to execute this Agreement and the Custody Agreement and Power of Attorney.
(d) The performance of this Agreement and the Custody Agreement and Power of Attorney and the consummation of the transactions contemplated hereby and thereby by such Selling Shareholder will not contravene or conflict with, result in a breach or violation of, or conflict with, any of the terms or provisions of, or constitute a default by such Selling Shareholder under, or require the consent of any indentureother party to, mortgage, deed of trust, trust (constructive or other), loan agreement, lease, franchise, license or other any agreement or instrument to which such Selling Shareholder is a party or by which he or she is bound or under which he or she is entitled to any right or benefit, any provision of applicable law or any of his or its properties is bound, or any statute, judgment, decree, order, rule decree or regulation of any court or governmental agency or body applicable to such Selling Shareholder of any court, regulatory body, administrative agency, governmental body or arbitrator having jurisdiction over such Selling Shareholder, except for such controversies, conflicts, breaches, defaults or failure to obtain consents that will not individually or in the aggregate have a material adverse effect on such Selling Shareholder. No consent, approval, authorization or other order of, or registration or filing with, any of hiscourt or other governmental authority or agency, her or its properties.
(e) Such is required for the consummation by such Selling Shareholder has not distributed nor, other than as permitted by the Securities Act and the Rules and Regulations, will distribute any prospectus or other offering material in connection with the offer and sale of the Shares other than any Preliminary Prospectus filed with the Commission transactions contemplated in this Agreement, except such as have been obtained or the Final Prospectus or other material permitted by made and are in full force and effect under the Securities Act, applicable state securities or blue sky laws and from the NASD.
(f) Such Selling Shareholder has reviewed and is familiar with (i) does not have any registration or other similar rights to have any equity or debt securities registered for sale under the Registration Statement or included in the offering contemplated by this Agreement except for such rights have been waived as described in the Registration Statement and the Preliminary Prospectus. To , (ii) does not have any preemptive right, co-sale right or right of first refusal or other similar right to purchase any of the knowledge Securities that are to be sold by the Company or the other Selling Shareholders to the Underwriters pursuant to this Agreement, except for such rights as such Selling Shareholder has waived prior to the date hereof or as have been described in the Registration Statement and the Prospectus, and (iii) does not own any warrants, options or similar rights to acquire, and does not have any right or arrangement to acquire, any capital stock, right, warrants, options or other securities from the Company, other than those disclosed in the Registration Statement and the Prospectus.
(g) Except for such consents, approvals and waivers which have been obtained by such Selling Shareholder on or prior to the date of this Agreement, no consent, approval or waiver is required under any instrument or agreement to which such Selling Shareholder is a party or by which he or she is bound or under which he or she is entitled to any right or benefit, in connection with the offering sale or purchase by the Underwriters of any of the Option Shares which may be sold by such Selling Shareholder under this Agreement or the consummation by such Selling Shareholder of any of the other transactions contemplated hereby.
(h) All information furnished by or on behalf of such Selling ShareholderShareholder in writing expressly for use in the Registration Statement and the Prospectus is, and on the Preliminary Prospectus applicable Option Closing Date will be, true, correct, and complete in all material respects, and does not include an not, and on the applicable Option Closing Date will not, contain any untrue statement of a material fact or omit to state a any material fact necessary in order to make such information not misleading. Such Selling Shareholder confirms that the statements therein, only information being supplied in writing expressly for use in the light Registration Statement and Prospectus is the information contained under the caption “Principal and Selling Shareholders” (except for the percentages relating to ownership both prior to and after giving effect to the sale of the circumstances Option Shares) is accurate.
(i) Such Selling Shareholder has not taken, directly or indirectly, any action designed to or that might be reasonably expected to cause or result in stabilization or manipulation of the price of the Common Stock or any other reference security with respect to the Common Stock, whether to facilitate the sale or resale of the Securities or otherwise, and has taken no action which would directly or indirectly violate any provision of Regulation M.
(j) There are no transfer taxes or other similar fees or charges under federal law or the laws of any state, or any political subdivision thereof, required to be paid in connection with the execution and delivery of this Agreement or the sale by the Selling Shareholders of the Option Shares.
(k) The Selling Shareholders have not distributed and will not distribute, prior the later of (i) the expiration or termination of the option granted to the Underwriters and (ii) the completion of the Underwriters’ distribution of the Securities, any offering material in connection with the offering and sale of the Securities other than a preliminary prospectus, the Prospectus or the Registration Statement or other materials, if any, permitted by the Securities Act.
(l) Such Selling Shareholder is familiar with the Registration Statement and the Prospectus and has no knowledge of any material fact, condition or information not disclosed in the Registration Statement or the Prospectus which they were madewould have, individually or in the aggregate, a Material Adverse Effect and is not misleadingprompted to sell any of the Securities by any information concerning the Company which is not set forth in the Registration Statement and the Prospectus.
(m) Such Selling Shareholder acknowledges that the Underwriters and, for purposes of the opinion to be delivered pursuant to Section 8(d) hereof, Underwriters’ Counsel, will rely upon the accuracy and truthfulness of the foregoing representations and hereby consents to such reliance.
Appears in 1 contract
Representations and Warranties of the Selling Shareholders. Each of the Selling ShareholdersShareholder listed in Schedule I, severally and not jointly, represents and warrants to and agrees with, with each of the Underwriters that:
(a) Such 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 such Selling Shareholder.
(b) The execution and delivery by such Selling Shareholder of, at and the First Closing Dateperformance by such Selling Shareholder of its obligations under, will have good this Agreement, the Custody Agreement signed by such Selling Shareholder and marketable title Computershare Inc., as Custodian, relating to the deposit of the Shares set forth in Schedule II to be sold by such Selling Shareholder (the “Custody Agreement”) and the Power of Attorney appointing certain individuals as such Selling Shareholder’s attorneys-in-fact (the “Attorney-in-Fact”) to the extent set forth therein, relating to the transactions contemplated hereby and by the Registration Statement (the “Power of Attorney”) will not contravene (i) any provision of applicable law, (ii) the certificate of incorporation, by-laws, limited partnership agreement or other constitutive documents of such Selling Shareholder (if such Selling Shareholder is a corporation or a limited partnership), (iii) any agreement or other instrument binding upon such Selling Shareholder or (iv) any judgment, order or decree of any governmental body, agency or court having jurisdiction over such Selling Shareholder, except in the case of clause (iii) where such contravention would not impair in any material respects the consummation of such Selling Shareholder’s obligations under this Agreement or such Selling Shareholder’s Custody Agreement or Power of Attorney, and no consent, approval, authorization or order of, or qualification with, any governmental body or agency is required for the performance by such Selling Shareholder of its obligations under this Agreement or the Custody Agreement or Power of Attorney of such Selling Shareholder, except such as may be required by the securities or Blue Sky laws of the various states of the United States in connection with the offer and sale of the Shares.
(c) Such Selling Shareholder has, and on the Closing Date will have, valid title to, or a valid “security entitlement” within the meaning of Section 8-501 of the New York Uniform Commercial Code in respect of, the Shares to be sold by such Selling Shareholder free and clear of any all security interests, claims, liens, encumbrancesequities or other encumbrances and the legal right and power, equities and claims (other than as imposed all authorization and approval required by the Securities Act or law, to enter into this Agreement), the Custody Agreement and full rightthe Power of Attorney and to sell, power transfer and authority deliver the Shares to effect the sale and delivery be sold by such Selling Shareholder or a security entitlement in respect of such Shares; .
(d) The Custody Agreement and upon the delivery Power of Attorney have been duly authorized, executed and delivered by such Selling Shareholder and are valid and binding agreements of such Selling Shareholder.
(e) Upon payment for the Shares to be sold by such Selling Shareholder pursuant to this Agreement, good delivery of such Shares, as directed by the Underwriters, to Cede & Co. (“Cede”) or such other nominee as may be designated by the Depository Trust Company (“DTC”), registration of such Shares in the name of Cede or such other nominee and marketable title thereto, free and clear the crediting of such Shares on the books of DTC to securities accounts of the Underwriters (assuming that neither DTC nor any such Underwriter has notice of any liens, encumbrances, equities and claims, adverse claim (within the meaning of any kind, will be transferred to Section 8-105 of the Underwriters.
(b) Such Selling Shareholder has duly executed and delivered the Custody Agreement and Power of Attorney in the form previously delivered to the Representatives, appointing the persons named therein, and each of them as such Selling Shareholder's attorney-in-fact New York Uniform Commercial Code (the "Attorney-in-Fact"“UCC”)) and as custodian to such Shares), (the "Custodian"). The Attorney-in-Fact is authorized to execute, deliver and perform this Agreement on behalf i) DTC shall be a “protected purchaser” of such Selling ShareholderShares within the meaning of Section 8-303 of the UCC, (ii) under Section 8-501 of the UCC, the Underwriters will acquire a valid security entitlement in respect of such Shares and (iii) no action based on any “adverse claim,” within the meaning of Section 8-102 of the UCC, to deliver such Shares may be asserted against the Shares Underwriters with respect to be sold by such security entitlement; for purposes of this representation, such Selling Shareholder hereundermay assume that when such payment, to accept payment therefordelivery and crediting occur, and otherwise to act on behalf (A) such Shares will have been registered in the name of such Selling Shareholder in connection with this Agreement, including payment from the Offering proceeds of expenses incurred on behalf of such Selling Shareholder. CertificatesCede or another nominee designated by DTC, in suitable form for transfer by delivery or accompanied by duly executed instruments each case on the Company’s share registry in accordance with its certificate of transfer or assignment in blankincorporation, representing bylaws and applicable law, (B) DTC will be registered as a “clearing corporation” within the Shares meaning of Section 8-102 of the UCC and (C) appropriate entries to be sold by such Selling Shareholder hereunder the accounts of the several Underwriters on the records of DTC will have been deposited with the Custodian made pursuant to the Custody Agreement and Power of Attorney for the purpose of delivery pursuant to this Agreement. Such Selling Shareholder agrees that the shares of Common Stock represented by the certificates on deposit with the Custodian are subject to the interest of the Underwriters hereunder, that the arrangements made for such custody and the appointment of the Attorney-in-Fact are to that extent irrevocable, and that the obligations of such Selling Shareholder hereunder shall not be terminated except as provided in this Agreement and the Custody Agreement and Power of Attorney. If such Selling Shareholder should die or become incapacitated, or if any other event should occur, before the delivery of the Shares of such Selling Shareholder hereunder, the certificates for such Shares deposited with the Custodian shall be delivered by the Custodian in accordance with the terms and conditions of this Agreement as if such death, incapacity or other event had not occurred, regardless of whether the Custodian or the Attorney-in-Fact shall have received notice thereof.
(c) Such Selling Shareholder, acting through his duly authorized Attorney-in-Fact, has duly executed and delivered this Agreement and the Custody Agreement and Power of Attorney; this Agreement constitutes a legal, valid and binding obligation of such Selling Shareholder, all authorizations and consents necessary for the execution and delivery of this Agreement and the Custody Agreement and Power of Attorney on behalf of such Selling Shareholder and for the sale and delivery of the Shares to be sold by such Selling Shareholder hereunder have been given, except as may be required by the Securities Act or state securities laws; and such Selling Shareholder has the legal capacity and full right, power and authority to execute this Agreement and the Custody Agreement and Power of Attorney.
(d) The performance of this Agreement and the Custody Agreement and Power of Attorney and the consummation of the transactions contemplated hereby and thereby by such Selling Shareholder will not result in a breach or violation of, or conflict with, any of the terms or provisions of, or constitute a default by such Selling Shareholder under, any indenture, mortgage, deed of trust, trust (constructive or other), loan agreement, lease, franchise, license or other agreement or instrument to which such Selling Shareholder or any of his or its properties is bound, or any statute, judgment, decree, order, rule or regulation of any court or governmental agency or body applicable to such Selling Shareholder or any of his, her or its properties.
(e) Such Selling Shareholder has not distributed nor, other than as permitted by the Securities Act and the Rules and Regulations, will distribute any prospectus or other offering material in connection with the offer and sale of the Shares other than any Preliminary Prospectus filed with the Commission or the Final Prospectus or other material permitted by the Securities ActUCC.
(f) Such Selling Shareholder has reviewed is not prompted by any information concerning the Company or its subsidiaries which is not set forth in the Time of Sale Prospectus and is familiar with the Prospectus to sell its Shares pursuant to this Agreement.
(i) The Registration Statement, when it became effective, did not contain and, as amended or supplemented, if applicable, will not contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading, (ii) the Registration Statement and the Preliminary Prospectus. To Prospectus comply and, as amended or supplemented, if applicable, will comply in all material respects with the knowledge Securities Act and the applicable rules and regulations of such Selling Shareholderthe Commission thereunder, (iii) the Time of Sale Prospectus does not, and at the time of each sale of the Shares in connection with the offering when the Prospectus is not yet available to prospective purchasers and at the Closing Date (as defined in Section 5), the Preliminary Prospectus does not include an Time of Sale Prospectus, as then amended or supplemented by the Company, if applicable, will not, contain any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading, (iv) each broadly available road show, if any, when considered together with the Time of Sale Prospectus, does not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading and (v) the Prospectus does not contain and, as amended or supplemented, if applicable, will not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading; except that the representations and warranties set forth in this paragraph (g) apply only to statements or omissions in the Registration Statement, Time of Sale Prospectus, a broadly available road show or the Prospectus that relate to such Selling Shareholder and are based upon information furnished to the Company in writing by such Selling Shareholder expressly for use therein.
(h) Such 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).
(i) Such Selling Shareholder does not have, or has waived prior to the date hereof, any preemptive right, co-sale right or right of first refusal or other similar right to purchase any of the Shares that are to be sold by the Company or any other Selling Shareholder to the Underwriters pursuant to this Agreement; and such 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 and the Prospectus.
(j) No consent, approval, authorization or order of, or filing or registration with, any court or governmental agency or body having jurisdiction over such Selling Shareholder or the property or assets of such Selling Shareholder is required for the execution, delivery and performance of this Agreement, the Custody Agreement or the Power of Attorney by such Selling Shareholder and the consummation by such Selling Shareholder of the transactions contemplated hereby and thereby, except (i) for the registration of the Shares under the Securities Act, (ii) such consents, approvals, authorizations, registrations or qualifications as may be required under the Exchange Act and applicable foreign or domestic securities laws in connection with the purchase and sale of the Shares by the Underwriters and (iii) for those as to which the failure to obtain or make would not reasonably be expected to, individually or in the aggregate, have an adverse effect on the ability of such Selling Shareholder to execute, deliver and perform the transactions contemplated by this Agreement.
(k) There are no contracts, agreements or understandings between such 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 such Selling Shareholder’s knowledge, any other arrangements, agreements, understandings, payments or issuance with respect to the Company or any of its officers, directors, shareholders, partners, employees, Subsidiaries or affiliates that may affect the Underwriters’ compensation as determined by FINRA.
(l) There are no affiliations or associations between any member of FINRA and such Selling Shareholder, except as disclosed in the Registration Statement, Time of Sale Prospectus and Prospectus or as set forth in a questionnaire completed by such Selling Shareholder and delivered to the Representatives prior to the date of this Agreement; none of the proceeds received by such Selling Shareholder from the sale of the Shares to be sold by such Selling Shareholder pursuant to this Agreement will be paid to a member of FINRA or any affiliate of (or person “associated with,” as such terms are used in the Rules of FINRA) such member.
(m) Such 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.
(n) Any certificate signed by any Selling Shareholder and delivered to the Representatives or counsel for the Underwriters in connection with the Shares shall be deemed a representation and warranty by such Selling Shareholder, as to matters covered thereby, to each Underwriter.
(o) Such Selling Shareholder will not, directly or indirectly, use the proceeds of the offering, or lend, contribute or otherwise make available such proceeds to any subsidiary, joint venture partner or other Person:
(A) to fund or facilitate any activities or business of or with any Person or in any country or territory that, at the time of such funding or facilitation, is the subject of Sanctions; or
(B) in any other manner that will result in a violation of Sanctions by any Person (including any Person participating in the offering, whether as underwriter, advisor, investor or otherwise).
Appears in 1 contract
Samples: Underwriting Agreement (Fabrinet)
Representations and Warranties of the Selling Shareholders. Each of the Selling Shareholders, severally and not jointly, Shareholders hereby represents and warrants to and agrees with, each Underwriter as of the Underwriters thatdate hereof, as of the Firm Shares Closing Date as follows:
(a) Such Each Selling Shareholder has caused certificates for the number of Shares to be sold by such Selling Shareholder hereunder to be delivered to _______________ (the "Custodian"), endorsed in blank or with blank stock powers duly executed, with a signature appropriately guaranteed, such certificates to be held in custody by the Custodian for delivery, pursuant to the provisions of this Agreement and an agreement dated ____________ among the Custodian and the Selling Shareholder substantially in the form attached hereto as Exhibit B (the "Custody Agreement").
(b) Each Selling Shareholder has granted an irrevocable power of attorney substantially in the form attached hereto as Exhibit C (the "Power of Attorney") to the person named therein, on behalf of each such Selling Shareholder, at to execute and deliver this Agreement and any other document necessary or desirable in connection with the First transactions contemplated hereby and to deliver the shares to be sold by each Selling Shareholder pursuant hereto.
(c) This Agreement, the Custody Agreement, the Power of Attorney and the Lock-Up Agreement have each been duly authorized, executed and delivered by or on behalf of each Selling Shareholder and, assuming due authorization, execution and delivery by the other parties thereto, constitutes the valid and legally binding agreement of each Selling Shareholder, enforceable against each such Selling Shareholder in accordance with its terms.
(d) The execution and delivery by each Selling Shareholder of this Agreement and the performance by each Selling Shareholder of its obligations under this Agreement, including the sale and delivery of the Shares to be sold by each such Selling Shareholder and the consummation of the transactions contemplated herein and compliance by each Selling Shareholder with its obligations hereunder, do not and will not, whether with our without the giving of notice or the passage of time or both, (i) violate or contravene any applicable law, statute, regulation, or filing or any agreement or other instrument binding upon any Selling Shareholder or any judgment, order or decree of any governmental body, agency or court having jurisdiction over any Selling Shareholder, (ii) conflict with or constitute a breach of, or default under, or result in the creation or imposition of any tax, lien, charge or encumbrance upon the shares to be sold by any Selling Shareholder or any property or assets of any Selling Shareholder pursuant to the terms of any agreement or instrument to which any Selling Shareholder is a party or by which any Selling Shareholder may be bound or to which any of the property or assets of any Selling Shareholder is subject or (iii) require any consent, approval, authorization or order of or registration or filing with any court or governmental agency or body having jurisdiction over it, except such as may be required by the Blue Sky laws of the various states in connection with the offer and sale of the Shares which have been or will be effected in accordance with this Agreement.
(e) Each Selling Shareholder has, and on the Firm Shares Closing DateDate will have, will have good valid and marketable title to the Shares set forth in Schedule II to be sold by such Selling Shareholder, Shareholder free and clear of any lienslien, encumbrancesclaim, equities security interest or other encumbrance, including, without limitation, any restriction on transfer, except as otherwise described in the Registration Statement and claims Prospectus.
(other than as imposed by the Securities Act or this Agreement)f) Each Selling Shareholder has, and on the Firm Shares Closing Date will have, full legal right, power and authority authority, and any approval required by law, to effect sell, assign, transfer and deliver the sale and delivery of Shares to be sold by such Shares; and upon Selling Shareholder in the manner provided by this Agreement.
(g) Upon delivery of and payment for the Shares to be sold by such each Selling Shareholder pursuant to this Agreement, good assuming each Underwriter has no notice of any adverse claim, the several Underwriters will receive valid and marketable title thereto, to such Shares free and clear of any lienslien, encumbrancesclaim, equities and claimsmortgage, of any kindpledge, will be transferred to the Underwriterssecurity interest or other encumbrance.
(bh) Such All information relating to each Selling Shareholder has duly executed and delivered the Custody Agreement and Power of Attorney furnished in the form previously delivered to the Representatives, appointing the persons named therein, and each of them as such Selling Shareholder's attorney-in-fact (the "Attorney-in-Fact") and as custodian (the "Custodian"). The Attorney-in-Fact is authorized to execute, deliver and perform this Agreement on behalf of such Selling Shareholder, to deliver the Shares to be sold writing by such Selling Shareholder hereunder, to accept payment therefor, and otherwise to act on behalf of such Selling Shareholder expressly for use in connection with this Agreement, including payment from the Offering proceeds of expenses incurred on behalf of such Selling Shareholder. Certificates, in suitable form for transfer by delivery or accompanied by duly executed instruments of transfer or assignment in blank, representing the Shares to be sold by such Selling Shareholder hereunder have been deposited with the Custodian pursuant to the Custody Agreement and Power of Attorney for the purpose of delivery pursuant to this Agreement. Such Selling Shareholder agrees that the shares of Common Stock represented by the certificates on deposit with the Custodian are subject to the interest of the Underwriters hereunder, that the arrangements made for such custody and the appointment of the Attorney-in-Fact are to that extent irrevocable, and that the obligations of such Selling Shareholder hereunder shall not be terminated except as provided in this Agreement and the Custody Agreement and Power of Attorney. If such Selling Shareholder should die or become incapacitated, or if any other event should occur, before the delivery of the Shares of such Selling Shareholder hereunder, the certificates for such Shares deposited with the Custodian shall be delivered by the Custodian in accordance with the terms and conditions of this Agreement as if such death, incapacity or other event had not occurred, regardless of whether the Custodian or the Attorney-in-Fact shall have received notice thereof.
(c) Such Selling Shareholder, acting through his duly authorized Attorney-in-Fact, has duly executed and delivered this Agreement and the Custody Agreement and Power of Attorney; this Agreement constitutes a legal, valid and binding obligation of such Selling Shareholder, all authorizations and consents necessary for the execution and delivery of this Agreement and the Custody Agreement and Power of Attorney on behalf of such Selling Shareholder and for the sale and delivery of the Shares to be sold by such Selling Shareholder hereunder have been given, except as may be required by the Securities Act or state securities laws; and such Selling Shareholder has the legal capacity and full right, power and authority to execute this Agreement and the Custody Agreement and Power of Attorney.
(d) The performance of this Agreement and the Custody Agreement and Power of Attorney and the consummation of the transactions contemplated hereby and thereby by such Selling Shareholder will not result in a breach or violation of, or conflict with, any of the terms or provisions of, or constitute a default by such Selling Shareholder under, any indenture, mortgage, deed of trust, trust (constructive or other), loan agreement, lease, franchise, license or other agreement or instrument to which such Selling Shareholder or any of his or its properties is bound, or any statute, judgment, decree, order, rule or regulation of any court or governmental agency or body applicable to such Selling Shareholder or any of his, her or its properties.
(e) Such Selling Shareholder has not distributed nor, other than as permitted by the Securities Act and the Rules and Regulations, will distribute any prospectus or other offering material in connection with the offer and sale of the Shares other than any Preliminary Prospectus filed with the Commission or the Final Prospectus or other material permitted by the Securities Act.
(f) Such Selling Shareholder has reviewed and is familiar with the Registration Statement and the Preliminary Prospectus. To the knowledge of such Selling ShareholderProspectus is, the Preliminary Prospectus and on each Closing Date will be, true, correct, and complete, and does not include an not, and on each 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.
(i) Each Selling Shareholder has reviewed the Registration Statement and Prospectus and, although such Selling Shareholder has not independently verified the accuracy or completeness of all the information contained therein, nothing has come to the attention of such Selling Shareholder that would lead such Selling Shareholder to believe that (i) on the Effective Date, the Registration Statement contained any untrue statement of a material fact or omitted to state any material fact required to be stated therein in order to make the statements made therein not misleading and (ii) on the Effective Date the Prospectus contained and, on each Closing Date contains, no untrue statement of a material fact or omitted or omits to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading.
(j) The sale of Shares by each Selling Shareholder pursuant to this Agreement is not prompted by such Selling Shareholder's knowledge of any material information concerning the Company or any of its subsidiaries which is not set forth in the Prospectus.
(k) No Selling Shareholder has taken and will not take, directly or indirectly, any action designed to or that might reasonably be expected to cause or result in stabilization or manipulation of the price of any security of the Company to facilitate the sale or resale of the Shares.
(l) No Selling Shareholder has actual knowledge that any representation or warranty of the Company set forth in Section 2 above is untrue or inaccurate in any material respect.
(m) The representations and warranties of each Selling Shareholder in the Custody Agreement are and on each Closing Date will be, true and correct.
Appears in 1 contract
Representations and Warranties of the Selling Shareholders. Each of the Selling Shareholders, Shareholders hereby severally and but not jointly, jointly represents and warrants to to, and agrees with, each of with the Underwriters Investor that:
(a) 3.1 Such Selling Shareholder, at if an entity, has been duly organized and is validly existing as a limited liability company or a limited partnership, as the First Closing Datecase may be, will have in good standing in its jurisdiction of formation.
3.2 This Agreement has been duly authorized, executed and marketable title to the Shares set forth in Schedule II to be sold by such Selling Shareholder, free and clear of any liens, encumbrances, equities and claims (other than as imposed by the Securities Act or this Agreement), and full right, power and authority to effect the sale and delivery of such Shares; and upon the delivery of and payment for the Shares to be sold delivered by such Selling Shareholder pursuant and constitutes valid, legal and binding obligations of such Selling Shareholders, enforceable against such Selling Shareholder in accordance with its terms, except (i) as limited by applicable bankruptcy, insolvency, reorganization, moratorium, and other laws of general application affecting enforcement of creditors' rights generally, and (ii) as limited by laws relating to the availability of specific performance, injunctive relief, or other equitable remedies.
3.3 Neither the execution of this Agreement nor the performance by such Selling Shareholder of its obligations under this Agreement violates or will violate such Selling Shareholder's organizational documents, if any.
3.4 Subject to the accuracy of the representations and warranties of the Investor in Section 4 hereof, no consent or approval of, or filing with, any governmental authority or other person is required for the execution, delivery and performance by such Selling Shareholder or consummation by such Selling Shareholder of the transaction contemplated by this Agreement, good other than those that have been duly obtained and marketable title thereto, free are in full force and clear of any liens, encumbrances, equities and claims, of any kind, effect or will be transferred duly obtained prior to the UnderwritersClosing.
(b) 3.5 Such Selling Shareholder has duly executed good and delivered the Custody Agreement and Power of Attorney in the form previously delivered valid title to the Representatives, appointing the persons named therein, and each of them as such Selling Shareholder's attorney-in-fact (the "Attorney-in-Fact") and as custodian (the "Custodian"). The Attorney-in-Fact is authorized to execute, deliver and perform this Agreement on behalf of such Selling Shareholder, to deliver the Secondary Shares to be sold by such Selling Shareholder hereunder, to accept payment therefor, and otherwise to act on behalf of such Selling Shareholder in connection with this Agreement, including payment from the Offering proceeds of expenses incurred on behalf of such Selling Shareholder. Certificates, in suitable form for transfer by delivery or accompanied by duly executed instruments of transfer or assignment in blank, representing the Shares to be sold by such Selling Shareholder hereunder have been deposited with the Custodian pursuant to the Custody Agreement and Power of Attorney for the purpose of delivery pursuant to this Agreement. Such Selling Shareholder agrees that the shares of Common Stock represented by the certificates on deposit with the Custodian are subject to the interest Each of the Underwriters hereunderSecondary Shares, that the arrangements made for such custody and the appointment of the Attorney-in-Fact are to that extent irrevocable, and that the obligations of such Selling Shareholder hereunder shall not be terminated except as provided in this Agreement and the Custody Agreement and Power of Attorney. If such Selling Shareholder should die or become incapacitated, or if any other event should occur, before the delivery of the Shares of such Selling Shareholder hereunder, the certificates for such Shares deposited with the Custodian shall be delivered by the Custodian when sold in accordance with the terms and conditions of this Agreement as if such deathwill have been fully paid and non-assessable, incapacity will be free from any mortgage, charge, pledge, lien, option, restriction, right of first refusal, right of pre-emption, third party right or interest, other event had not occurred, regardless encumbrance or security interest of whether the Custodian any kind or the Attorney-in-Fact shall have received notice thereofanother type of preferential arrangement.
3.6 No "directed selling efforts" (cas defined in Rule 902 of Regulation S under the Securities Act) Such Selling Shareholder, acting through his duly authorized Attorney-in-Fact, has duly executed and delivered this Agreement and the Custody Agreement and Power of Attorney; this Agreement constitutes a legal, valid and binding obligation of such Selling Shareholder, all authorizations and consents necessary for the execution and delivery of this Agreement and the Custody Agreement and Power of Attorney on behalf of such Selling Shareholder and for the sale and delivery have been made by any of the Shares to be sold by such Selling Shareholder hereunder have been given, except as may be required by the Securities Act or state securities laws; and such Selling Shareholder has the legal capacity and full right, power and authority to execute this Agreement and the Custody Agreement and Power of Attorney.
(d) The performance of this Agreement and the Custody Agreement and Power of Attorney and the consummation of the transactions contemplated hereby and thereby by such Selling Shareholder will not result in a breach or violation of, or conflict withShareholders, any of the terms or provisions of, or constitute a default by such Selling Shareholder under, any indenture, mortgage, deed of trust, trust (constructive or other), loan agreement, lease, franchise, license or other agreement or instrument to which such Selling Shareholder its affiliates or any of his or person acting on its properties is bound, or behalf with respect to any statute, judgment, decree, order, rule or regulation of any court or governmental agency or body applicable to such Selling Shareholder or any of his, her or its properties.
(e) Such Selling Shareholder has Secondary Shares that are not distributed nor, other than as permitted by registered under the Securities Act Act; and none of such persons has taken any actions that would result in the Rules and Regulations, will distribute any prospectus or other offering material in connection with the offer and sale of the Secondary Shares other than any Preliminary Prospectus filed with to the Commission or the Final Prospectus or other material permitted by Investor under this Agreement requiring registration under the Securities Act.
(f) Such Selling Shareholder has reviewed and is familiar with the Registration Statement and the Preliminary Prospectus. To the knowledge of such Selling Shareholder, the Preliminary Prospectus does not include an untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading.
Appears in 1 contract
Representations and Warranties of the Selling Shareholders. Each of the Selling Shareholders, severally and not jointly, represents and warrants to to, and agrees with, with each of the Underwriters that:
(a) Such Selling Shareholder, Shareholder at the First Closing DateDate (as such closing date is defined herein), will have good valid and marketable title to the Shares set forth in Schedule II I to be sold by such Selling Shareholder, free and clear of any liens, encumbrances, equities and claims (other than as imposed by the Securities Act or this Agreement), and full right, power and authority to effect the sale and delivery of such Shares; and upon the delivery of and payment for the Shares to be sold by such Selling Shareholder pursuant to this Agreement, good valid and marketable title thereto, free and clear of any liens, encumbrances, equities and claims, of any kind, will be transferred to the Underwriters.
(b) Such Selling Shareholder has duly executed and delivered the Custody Agreement and the Power of Attorney in the form forms previously delivered to the Representatives, appointing the persons named thereinMessrs. Xxxxxxx Xxxx, Xx., Xxxxx X. Xxxxxx and Xxxxxx Xxxxxxxxx, and any one of them, as each of them as such Selling Shareholder's attorney-in-attorney in fact (collectively, the "Attorney-in-in- Fact") and the Company as custodian (the "Custodian"). The Attorney-in-in- Fact is authorized to execute, deliver and perform this Agreement on behalf of such Selling Shareholder, to deliver the Shares to be sold by such Selling Shareholder hereunder, to accept payment therefor, therefor and otherwise to act on behalf of such Selling Shareholder in connection with this Agreement, including payment from the Offering proceeds of expenses incurred on behalf of such Selling Shareholder. Certificates, in suitable form for transfer by delivery or accompanied by duly executed instruments of transfer or assignment in blank, representing the Shares to be sold by such Selling Shareholder hereunder have been deposited with the Custodian pursuant to the Custody Agreement and Power of Attorney for the purpose of delivery pursuant to this Agreement. Such Selling Shareholder agrees that the shares of Common Stock represented by the certificates on deposit with the Custodian are subject to the interest of the Underwriters hereunder, that the arrangements made for such custody and the appointment of the Attorney-Attorney- in-Fact are to that extent irrevocable, and that the obligations of such Selling Shareholder hereunder shall not be terminated except as provided in this Agreement and the Custody Agreement and Power of AttorneyAgreement. If such Selling Shareholder should die or become incapacitated, incapacitated or if any other event should occur, before the delivery of the Shares of such Selling Shareholder hereunderhereunder which renders such Selling Shareholder incapable of acting on his own behalf, the certificates for such Shares deposited with the Custodian shall be delivered by the Custodian in accordance with the terms and conditions of this Agreement as if such death, incapacity or other event had not occurred, regardless of whether the Custodian or the Attorney-in-in- Fact shall have received notice thereof.
(c) Such Selling Shareholder, acting through his duly authorized Attorney-in-Fact, has duly executed and delivered this Agreement and Agreement, the Custody Agreement and Agreement, the Power of Attorney, and the S Corporation Tax Allocation and Indemnification Agreement by and among the Company and each of the shareholders of the Company and included as an exhibit to the Registration Statement (the "Tax Indemnification Agreement"); this Agreement constitutes a legal, valid and binding obligation of such Selling Shareholder, all authorizations and consents necessary for the execution and delivery of this Agreement Agreement, the Custody Agreement, the Power of Attorney, and the Custody Tax Indemnification Agreement and Power of Attorney on behalf of such Selling Shareholder and for the sale and delivery of the Shares to be sold by such Selling Shareholder hereunder have been given, except as may be required by the Securities Act or state securities laws; and such Selling Shareholder has the legal capacity and full right, power and authority to execute this Agreement and Agreement, the Custody Agreement and Agreement, the Power of Attorney, and the Tax Indemnification Agreement.
(d) The performance of this Agreement Agreement, the Custody Agreement, the Power of Attorney, and the Custody Tax Indemnification Agreement and Power of Attorney and the consummation of the transactions contemplated hereby and thereby by such each of the Selling Shareholder Shareholders will not result in a breach or violation of, or conflict with, any of the terms or provisions of, or constitute a default by such Selling Shareholder under, any indenture, mortgage, deed of trust, trust (constructive or other), loan agreement, lease, franchise, license or other agreement or instrument to which such Selling Shareholder or any of his or its properties is bound, or any statute, judgment, decree, order, rule or regulation of any court or governmental agency or body applicable to such Selling Shareholder or any of his, her or its his properties.
(e) Such Selling Shareholder has not distributed nor, other than as permitted by the Securities Act and the Rules and Regulations, nor will distribute any prospectus or other offering material in connection with the offer and sale of the Shares other than any Preliminary Prospectus filed with the Commission or the Final Prospectus or other material permitted by the Securities Act.
(f) Such To the knowledge of such Selling Shareholder, the representations and warranties of the Company contained in Section 1 of --------- this Agreement are true and correct; such Selling Shareholder has reviewed and is familiar with the Registration Statement as originally filed with the Commission and the Preliminary Prospectus. To the knowledge of such Selling Shareholder, the Preliminary Prospectus does not include an untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading; such Selling Shareholder is not prompted to sell the Shares to be sold by such Selling Shareholder's knowledge of any material non-public information concerning the Company or any of its subsidiaries.
(g) At the time the Registration Statement becomes effective (i) such parts of the Registration Statement and any amendments and supplements thereto as specifically refer to such Selling Shareholder will not contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading, and (ii) such parts of the Effective Prospectus and Final Prospectus as specifically refer to such Selling Shareholder will not include an untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading.
(h) No approval, consent, order, authorization, designation, declaration or filing by or with any regulatory body, administrative or other governmental body is necessary in connection with the execution and delivery of this Agreement by such Selling Shareholder, and the consummation by him of the transactions herein contemplated (other than as required by the Securities Act, state securities laws and the NASD).
(i) Any certificates signed by or on behalf of such Selling Shareholder as such and delivered to the Representatives or to counsel for the Representatives shall be deemed a representation and warranty by such Selling Shareholder to each Underwriter as to the matters covered thereby.
(j) 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, such Selling Shareholder agrees to deliver to you prior to or at the First Closing Date (as hereinafter defined) a properly completed and executed United States Treasury Department Form W-9 (or other applicable form or statement specified by Treasury Department regulations in lieu thereof).
(k) Such Selling Shareholder will not take, directly or indirectly, any action designed to cause or result in, or which might constitute or be expected to constitute, stabilization or manipulation of the price of the Common Stock.
Appears in 1 contract
Samples: Underwriting Agreement (Acsys Inc)
Representations and Warranties of the Selling Shareholders. Each of the Selling Shareholders, severally and not jointly, Shareholders represents and warrants to and agrees with, with each of the Underwriters that:
(a) Such This Agreement has been duly authorized, executed and delivered by or on behalf of such Selling Shareholder.
(b) The execution and delivery by such Selling Shareholder of, and the performance by such Selling Shareholder of its obligations under, this Agreement, and the Power of Attorney and Custody Agreement signed by such Selling Shareholder, at the First attorneys-in-fact named therein (as defined below) and Wachovia Bank, N.A., as Custodian, relating to the deposit of the Shares to be sold by such Selling Shareholder and appointing certain individuals as such Selling Shareholder's attorneys-in-fact (the "Attorneys-in-Fact") to the extent set forth therein, relating to the transactions contemplated hereby and by the Registration Statement (the "POWER OF ATTORNEY AND CUSTODY AGREEMENT") will not violate any provision of any statute, rule or regulation applicable to such Selling Shareholder, or the certificate of incorporation or by-laws of such Selling Shareholder (if such Selling Shareholder is a corporation), or any material agreement or other material instrument binding upon such Selling Shareholder or any judgment, order or decree of any governmental body, agency
(c) Such Selling Shareholder has, and on the Closing DateDate will have, will have good and marketable valid title to the Shares set forth in Schedule II to be sold by such Selling Shareholder and the legal right and power, and all authorization and approval required by law, to enter into this Agreement, and the Power of Attorney and Custody Agreement and to sell, transfer and deliver the Shares to be sold by such Selling Shareholder.
(d) The Power of Attorney and Custody Agreement has been duly authorized, free executed and clear delivered by such Selling Shareholder and is a valid and binding agreement of any lienssuch Selling Shareholder.
(e) Upon, encumbrances, equities and claims (other than as imposed by the Securities Act or this Agreement), and full right, power and authority to effect the sale and delivery of such Shares; and upon the delivery of and payment for the Shares to be sold by such Selling Shareholder pursuant to this AgreementAgreement against payment therefor as provided herein, good and marketable valid title thereto, to such Shares will pass to the Underwriters free and clear of any security interests, claims, liens, encumbrances, equities and claims, of any kind, will be transferred to the Underwritersother encumbrances.
(bi) Such Selling Shareholder has duly executed and delivered the Custody Agreement and Power of Attorney in the form previously delivered to the Representatives, appointing the persons named therein, and each of them as such Selling Shareholder's attorney-in-fact (the "Attorney-in-Fact") and as custodian (the "Custodian"). The Attorney-in-Fact is authorized to execute, deliver and perform this Agreement on behalf of such Selling Shareholder, to deliver the Shares to be sold information furnished by such Selling Shareholder hereunder, to accept payment therefor, and otherwise to act or on behalf of such Selling Shareholder for use in connection with this Agreement, including payment from the Offering proceeds of expenses incurred on behalf of such Selling Shareholder. Certificates, in suitable form for transfer by delivery or accompanied by duly executed instruments of transfer or assignment in blank, representing the Shares to be sold by such Selling Shareholder hereunder have been deposited with the Custodian pursuant to the Custody Agreement and Power of Attorney for the purpose of delivery pursuant to this Agreement. Such Selling Shareholder agrees that the shares of Common Stock represented by the certificates on deposit with the Custodian are subject to the interest of the Underwriters hereunder, that the arrangements made for such custody and the appointment of the Attorney-in-Fact are to that extent irrevocable, and that the obligations of such Selling Shareholder hereunder shall not be terminated except as provided in this Agreement and the Custody Agreement and Power of Attorney. If such Selling Shareholder should die or become incapacitated, or if any other event should occur, before the delivery of the Shares of such Selling Shareholder hereunder, the certificates for such Shares deposited with the Custodian shall be delivered by the Custodian in accordance with the terms and conditions of this Agreement as if such death, incapacity or other event had not occurred, regardless of whether the Custodian or the Attorney-in-Fact shall have received notice thereof.
(c) Such Selling Shareholder, acting through his duly authorized Attorney-in-Fact, has duly executed and delivered this Agreement and the Custody Agreement and Power of Attorney; this Agreement constitutes a legal, valid and binding obligation of such Selling Shareholder, all authorizations and consents necessary for the execution and delivery of this Agreement and the Custody Agreement and Power of Attorney on behalf of such Selling Shareholder and for the sale and delivery of the Shares to be sold by such Selling Shareholder hereunder have been given, except as may be required by the Securities Act or state securities laws; and such Selling Shareholder has the legal capacity and full right, power and authority to execute this Agreement and the Custody Agreement and Power of Attorney.
(d) The performance of this Agreement and the Custody Agreement and Power of Attorney and the consummation of the transactions contemplated hereby and thereby by such Selling Shareholder will not result in a breach or violation of, or conflict with, any of the terms or provisions of, or constitute a default by such Selling Shareholder under, any indenture, mortgage, deed of trust, trust (constructive or other), loan agreement, lease, franchise, license or other agreement or instrument to which such Selling Shareholder or any of his or its properties is bound, or any statute, judgment, decree, order, rule or regulation of any court or governmental agency or body applicable to such Selling Shareholder or any of his, her or its properties.
(e) Such Selling Shareholder has not distributed nor, other than as permitted by the Securities Act and the Rules and Regulations, will distribute any prospectus or other offering material in connection with the offer and sale of the Shares other than any Preliminary Prospectus filed with the Commission or the Final Prospectus or other material permitted by the Securities Act.
(f) Such Selling Shareholder has reviewed and is familiar with the Registration Statement and the Preliminary Prospectus. To the knowledge of such Selling Shareholder, the Preliminary Prospectus does not include an not, and on the Closing Date will not, contain any untrue statement of a material fact or omit to state a any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, such information not misleading; and (ii) the sale of Shares by such Selling Shareholder pursuant hereto is not prompted by any material non-public information relating to or concerning the Company.
Appears in 1 contract
Representations and Warranties of the Selling Shareholders. Each of the Selling ShareholdersShareholder, severally and not jointly, represents and warrants to and agrees with, with each of the Underwriters that:
(a) Such This Agreement has been duly authorized, executed and delivered by or on behalf of such Selling Shareholder.
(b) The execution and delivery by such Selling Shareholder of, and the performance by such Selling Shareholder of its obligations under, this Agreement, and, with respect to each Selling Shareholder identified on Schedule I hereto as a “Management Selling Shareholder” (each, a “Management Selling Shareholder”), the Custody Agreement signed by such Management Selling Shareholder and American Stock Transfer & Trust Company, LLC, as Custodian, relating to the deposit of the Shares to be sold by such Management Selling Shareholder (the “Custody Agreement”) and the Power of Attorney appointing certain individuals as such Management Selling Shareholder’s attorneys-in-fact to the extent set forth therein, relating to the transactions contemplated hereby and by the Registration Statement (the “Power of Attorney”) will not contravene (i) any provision of applicable law applicable to such Selling Shareholder, at (ii) the First Closing Dateorganizational documents of such Selling Shareholder (if such Selling Shareholder is a corporation, will limited liability company, partnership or other entity), (iii) any agreement or other instrument binding upon such Selling Shareholder or (iv) any judgment, order or decree of any governmental body, agency or court having jurisdiction over such Selling Shareholder, except in the case of clauses (i), (iii) and (iv) as would not, singly or in the aggregate, have good a material adverse effect on the ability of the Selling Shareholders to consummate the transactions contemplated by this Agreement and marketable title no consent, approval, authorization or order of, or qualification with, any governmental body or agency is required for the performance by such Selling Shareholder of its obligations under this Agreement or, with respect to each Management Selling Shareholder, the Custody Agreement or Power of Attorney of such Management Selling Shareholder, except (i) such as may have already been obtained, (ii) such as may be required by the securities or Blue Sky laws of the various states or foreign jurisdictions or the rules and regulations of FINRA in connection with the offer and sale of the Shares set forth or (iii) such that would not reasonably be expected to have a material adverse effect on the ability of such Selling Shareholder to consummate the transactions contemplated by this Agreement.
(c) Such Selling Shareholder has, and on the Closing Date will have, valid title to, or a valid “security entitlement” (as defined in Schedule II Section 8-102 of the New York Uniform Commercial Code) in respect of, the Shares to be sold by such Selling Shareholder, Shareholder free and clear of any all security interests, claims, liens, encumbrancesequities or other encumbrances and the legal right and power, equities and claims (other than as imposed all authorization and approval required by the Securities Act or law, to enter into this Agreement), and, with respect to each Management Selling Shareholder, the Custody Agreement and the Power of Attorney, and full rightto sell, power transfer and deliver the Shares to be sold by such Selling Shareholder or a security entitlement in respect of such Shares.
(d) With respect to each Management Selling Shareholder, the Custody Agreement and the Power of Attorney have been duly executed and delivered by such Management Selling Shareholder and are valid and binding agreements of such Management Selling Shareholder.
(e) With respect to any Selling Shareholder that is a non-U.S. person, no stamp, documentary, issuance, registration, transfer, withholding, capital gains, income or other taxes or duties are payable by or on behalf of the Underwriters, the Company or any of its subsidiaries in India, the UK or Ireland, or to any taxing authority to effect thereof or therein in connection with (i) the execution, delivery or consummation of this Agreement, (ii) the sale and delivery of such Shares; the Shares to the Underwriters or purchasers procured by the Underwriters, or (iii) the resale and upon the delivery of and the Shares by the Underwriters in the manner contemplated herein.
(f) Upon payment for the Shares to be sold by such Selling Shareholder pursuant to this Agreement, good delivery of such Shares, as directed by the Underwriters, to Cede & Co. (“Cede”) or such other nominee as may be designated by the Depository Trust Company (“DTC”), registration of such Shares in the name of Cede or such other nominee and marketable title thereto, free and clear the crediting of such Shares on the books of DTC to the securities account of Xxxxxxx Xxxxx (assuming that neither DTC nor Xxxxxxx Sachs has notice of any liensadverse claim (within the meaning of Section 8-105 of the New York Uniform Commercial Code (the “UCC”)) to such Shares), encumbrances(A) under Section 8-501 of the UCC, equities Xxxxxxx Xxxxx will acquire a valid security entitlement in respect of such Shares and claims(B) no action based on any “adverse claim”, (as defined in Section 8-102 of any kindthe UCC) to such Shares may be asserted against Xxxxxxx Sachs with respect to such security entitlement; for purposes of this representation, such Selling Shareholder may assume that when such payment, delivery and crediting occur, (x) such Shares will have been registered in the name of Cede or another nominee designated by DTC, in each case on the Company’s share registry in accordance with its certificate of incorporation, bylaws and applicable law, (y) DTC will be transferred registered as a “clearing corporation” (as defined in Section 8-102 of the UCC) and (z) appropriate entries to the Underwritersaccount of Xxxxxxx Xxxxx on the records of DTC will have been made pursuant to the UCC.
(bg) Such Selling Shareholder has duly executed and delivered the Custody Agreement and Power of Attorney in the form previously delivered to the RepresentativesRepresentatives an executed lock-up agreement in substantially the form attached hereto as Exhibit A (the “Lock-up Agreement”).
(i) The Registration Statement, appointing 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 persons named thereinstatements therein not misleading, (ii) the Time of Sale Prospectus does not, and at the time of each of them as such Selling Shareholder's attorney-in-fact (the "Attorney-in-Fact") and as custodian (the "Custodian"). The Attorney-in-Fact is authorized to execute, deliver and perform this Agreement on behalf of such Selling Shareholder, to deliver the Shares to be sold by such Selling Shareholder hereunder, to accept payment therefor, and otherwise to act on behalf of such Selling Shareholder in connection with this Agreement, including payment from the Offering proceeds of expenses incurred on behalf of such Selling Shareholder. Certificates, in suitable form for transfer by delivery or accompanied by duly executed instruments of transfer or assignment in blank, representing the Shares to be sold by such Selling Shareholder hereunder have been deposited with the Custodian pursuant to the Custody Agreement and Power of Attorney for the purpose of delivery pursuant to this Agreement. Such Selling Shareholder agrees that the shares of Common Stock represented by the certificates on deposit with the Custodian are subject to the interest of the Underwriters hereunder, that the arrangements made for such custody and the appointment of the Attorney-in-Fact are to that extent irrevocable, and that the obligations of such Selling Shareholder hereunder shall not be terminated except as provided in this Agreement and the Custody Agreement and Power of Attorney. If such Selling Shareholder should die or become incapacitated, or if any other event should occur, before the delivery sale of the Shares of such Selling Shareholder hereunder, the certificates for such Shares deposited with the Custodian shall be delivered by the Custodian in accordance with the terms and conditions of this Agreement as if such death, incapacity or other event had not occurred, regardless of whether the Custodian or the Attorney-in-Fact shall have received notice thereof.
(c) Such Selling Shareholder, acting through his duly authorized Attorney-in-Fact, has duly executed and delivered this Agreement and the Custody Agreement and Power of Attorney; this Agreement constitutes a legal, valid and binding obligation of such Selling Shareholder, all authorizations and consents necessary for the execution and delivery of this Agreement and the Custody Agreement and Power of Attorney on behalf of such Selling Shareholder and for the sale and delivery of the Shares to be sold by such Selling Shareholder hereunder have been given, except as may be required by the Securities Act or state securities laws; and such Selling Shareholder has the legal capacity and full right, power and authority to execute this Agreement and the Custody Agreement and Power of Attorney.
(d) The performance of this Agreement and the Custody Agreement and Power of Attorney and the consummation of the transactions contemplated hereby and thereby by such Selling Shareholder will not result in a breach or violation of, or conflict with, any of the terms or provisions of, or constitute a default by such Selling Shareholder under, any indenture, mortgage, deed of trust, trust (constructive or other), loan agreement, lease, franchise, license or other agreement or instrument to which such Selling Shareholder or any of his or its properties is bound, or any statute, judgment, decree, order, rule or regulation of any court or governmental agency or body applicable to such Selling Shareholder or any of his, her or its properties.
(e) Such Selling Shareholder has not distributed nor, other than as permitted by the Securities Act and the Rules and Regulations, will distribute any prospectus or other offering material in connection with the offer offering when the Prospectus is not yet available to prospective purchasers and sale at the Closing Date (as defined in Section 5), the Time of the Shares other than any Preliminary Prospectus filed with the Commission Sale Prospectus, as then amended or the Final Prospectus or other material permitted supplemented by the Securities Act.
(f) Such Selling Shareholder has reviewed and is familiar with the Registration Statement and the Preliminary Prospectus. To the knowledge of such Selling ShareholderCompany, the Preliminary Prospectus does not include an 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 order the light of the circumstances under which they were made, not misleading and (iii) the Prospectus does not contain and, as amended or supplemented, if applicable, will not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading, except that the representations and warranties set forth in this paragraph 2(g) are limited in all respects to statements or omissions made in reliance upon and in conformity with the information relating to such Selling Shareholder furnished to the Company in writing by or on behalf of such Selling Shareholder expressly for use in the Registration Statement, the Time of Sale Prospectus or the Prospectus, it being understood and agreed that for purposes of this Agreement, the only information furnished by such Selling Shareholder consists of the name of such Selling Shareholder, the number of offered shares and the address and other information with respect to such Selling Shareholder (excluding percentages) which appear in the Registration statement or the Prospectus in the table (and corresponding footnotes) under the caption “Principal and Selling Stockholders” (with respect to each Selling Shareholder, the “Selling Shareholder Information”).
Appears in 1 contract
Representations and Warranties of the Selling Shareholders. Each of the Selling Shareholders, severally and not jointly, Shareholder represents and warrants to and agrees with, each of the Underwriters Underwriter that:
(a) Such Selling Shareholder, at Shareholder is the First Closing Date, will have good and marketable title to the Shares set forth in Schedule II to be sold by such Selling Shareholder, free and clear lawful owner of any liens, encumbrances, equities and claims (other than as imposed by the Securities Act or this Agreement), and full right, power and authority to effect the sale and delivery of such Shares; and upon the delivery of and payment for the Shares to be sold by such Selling Shareholder pursuant to this AgreementAgreement and has, and on the Closing Date will have, good and marketable clear title theretoto such Shares, free and clear of any all restrictions on transfer, liens, encumbrances, security interests, equities and claims, of any kind, will be transferred to the Underwritersclaims whatsoever.
(b) Such Selling Shareholder has duly executed and delivered the Custody Agreement and Power of Attorney in the form previously delivered to the Representatives, appointing the persons named therein, and each of them as such Selling Shareholder's attorney-in-fact (the "Attorney-in-Fact") and as custodian (the "Custodian"). The Attorney-in-Fact is authorized to execute, deliver and perform this Agreement on behalf of such Selling Shareholder, to deliver the Shares to be sold by such Selling Shareholder hereunderwill have been duly authorized and are validly issued, fully paid and non-assessable.
c) Such Selling Shareholder has, and on the Closing Date will have, full legal right, power and authority, and all authorizations and approvals required by law, to accept payment therefor, and otherwise to act on behalf of such Selling Shareholder in connection with enter into this Agreement, including payment from the Offering proceeds Letter of expenses incurred on behalf of such Selling Shareholder. Certificates, in suitable form for transfer by delivery or accompanied by duly executed instruments of transfer or assignment in blank, representing the Shares to be sold Transmittal and Custody Agreement signed by such Selling Shareholder hereunder have been deposited with the Custodian pursuant and ________________ , as Custodian, relating to the Custody Agreement and Power of Attorney for the purpose of delivery pursuant to this Agreement. Such Selling Shareholder agrees that the shares of Common Stock represented by the certificates on deposit with the Custodian are subject to the interest of the Underwriters hereunder, that the arrangements made for such custody and the appointment of the Attorney-in-Fact are to that extent irrevocable, and that the obligations of such Selling Shareholder hereunder shall not be terminated except as provided in this Agreement and the Custody Agreement and Power of Attorney. If such Selling Shareholder should die or become incapacitated, or if any other event should occur, before the delivery of the Shares of such Selling Shareholder hereunder, the certificates for such Shares deposited with the Custodian shall be delivered by the Custodian in accordance with the terms and conditions of this Agreement as if such death, incapacity or other event had not occurred, regardless of whether the Custodian or the Attorney-in-Fact shall have received notice thereof.
(c) Such Selling Shareholder, acting through his duly authorized Attorney-in-Fact, has duly executed and delivered this Agreement and the Custody Agreement and Power of Attorney; this Agreement constitutes a legal, valid and binding obligation of such Selling Shareholder, all authorizations and consents necessary for the execution and delivery of this Agreement and the Custody Agreement and Power of Attorney on behalf of such Selling Shareholder and for the sale and delivery of the Shares to be sold by such Selling Shareholder hereunder have been given, except as may be required by (the Securities Act or state securities laws; "CUSTODY AGREEMENT") and the Irrevocable Power of Attorney of such Selling Shareholder has appointing certain individuals as such Selling Shareholder's attorneys-in-fact (the legal capacity and full right"ATTORNEYS") to the extent set forth therein, power and authority relating to execute this Agreement and the Custody Agreement and Power of Attorney.
(d) The performance of this Agreement and the Custody Agreement and Power of Attorney and the consummation of the transactions contemplated hereby and thereby by such Selling Shareholder will not result in a breach or violation of, or conflict with, any of the terms or provisions of, or constitute a default by such Selling Shareholder under, any indenture, mortgage, deed of trust, trust (constructive or other), loan agreement, lease, franchise, license or other agreement or instrument to which such Selling Shareholder or any of his or its properties is bound, or any statute, judgment, decree, order, rule or regulation of any court or governmental agency or body applicable to such Selling Shareholder or any of his, her or its properties.
(e) Such Selling Shareholder has not distributed nor, other than as permitted by the Securities Act and the Rules and Regulations, will distribute any prospectus or other offering material in connection with the offer and sale of the Shares other than any Preliminary Prospectus filed with the Commission or the Final Prospectus or other material permitted by the Securities Act.
(f) Such Selling Shareholder has reviewed and is familiar with the Registration Statement and the Preliminary Prospectus. To Custody Agreement (the knowledge "POWER OF ATTORNEY") and to sell, assign, transfer and deliver the Additional Shares to be sold by such Selling Shareholder in the manner provided herein and therein.
d) This Agreement has been duly authorized, executed and delivered by or on behalf of such Selling Shareholder.
e) The Custody Agreement of such Selling Shareholder has been duly authorized, executed and delivered by such Selling Shareholder and is a valid and binding agreement of such Selling Shareholder, enforceable in accordance with its terms.
f) The Power of Attorney of such Selling Shareholder has been duly authorized, executed and delivered by such Selling Shareholder and is a valid and binding instrument of such Selling Shareholder, enforceable in accordance with its terms, and, pursuant to such Power of Attorney, such Selling Shareholder has, among other things, authorized the Preliminary Prospectus does not include an untrue statement Attorneys, or any one of a material fact them, to execute and deliver on such Selling Shareholder's behalf this Agreement and any other document that they, or omit to state a material fact any one of them, may deem necessary or desirable in order to make the statements therein, in the light of the circumstances under which they were made, not misleading.connection
Appears in 1 contract
Samples: Underwriting Agreement (Norstan Inc)
Representations and Warranties of the Selling Shareholders. Each of the Selling Shareholders, severally and not jointly, represents and warrants to each Underwriter and agrees with, each of the Underwriters as follows that:
(a) Such Selling Shareholder, Shareholder at the First Closing DateDate or at the Option Closing Date (as such closing dates are defined herein), as the case may be, will have good valid and marketable title to the Shares set forth in Schedule II I to be sold by such Selling Shareholder, free and clear of any liens, encumbrances, equities equities, and claims (other than as imposed by the Securities Act or this Agreement), and full right, power power, and authority to effect the sale and delivery of such Shares; and upon the delivery of and payment for the Shares to be sold by such Selling Shareholder pursuant to this Agreement, good valid and marketable title thereto, free and clear of any liens, encumbrances, equities equities, and claims, of any kind, will be transferred to the Underwriters.
(b) Such Selling Shareholder has duly executed and delivered the Custody Agreement and Power of Attorney in the form previously delivered to the Representatives, appointing the persons named thereinMonroe J. Carell, and Jr. as each of them as such Selling Shareholder's attorney-in-fact (the "Attorney-in-Fact") and appointing the Company as custodian (the "Custodian"). The Attorney-in-Fact is authorized to execute, deliver deliver, and perform this Agreement on behalf of such Selling Shareholder, to deliver the Shares to be sold by such Selling Shareholder hereunder, to accept payment therefor, and otherwise to act on behalf of such Selling Shareholder in connection with this Agreement, including payment from the Offering proceeds of expenses incurred on behalf of such Selling Shareholder. Certificates, in suitable form for transfer by delivery or accompanied by duly executed instruments of transfer or assignment in blank, representing the Shares to be sold by such Selling Shareholder hereunder have been deposited with the Custodian pursuant to the Custody Agreement and Power of Attorney for the purpose of delivery pursuant to this Agreement. Such Selling Shareholder agrees that the shares of Common Stock represented by the certificates on deposit with the Custodian are subject to the interest of the Underwriters hereunder, that the arrangements made for such custody and the appointment of the Attorney-in-Fact are to that extent irrevocable, and that the obligations of such Selling Shareholder hereunder shall not be terminated except as provided in this Agreement and the Custody Agreement and Power of Attorney. If such Selling Shareholder should die or become incapacitated, or if any other event should occur, before the delivery of the Shares of such Selling Shareholder hereunder, the certificates for such Shares deposited with the Custodian shall be delivered by the Custodian in accordance with the terms and conditions of this Agreement as if such death, incapacity or other event had not occurred, regardless of whether the Custodian or the Attorney-in-Fact shall have received notice thereof.
(c) Such Selling Shareholder, acting through his duly authorized Attorney-in-Fact, has duly executed and delivered this Agreement and the Custody Agreement and Power of Attorney; this Agreement constitutes a legal, valid and binding obligation of such Selling Shareholder, all authorizations and consents necessary for the execution and delivery of this Agreement and the Custody Agreement and Power of Attorney on behalf of such Selling Shareholder and for the sale and delivery of the Shares to be sold by such Selling Shareholder hereunder have been given, except as may be required by the Securities Act or state securities laws; and such Selling Shareholder has the legal capacity and full right, power and authority to execute this Agreement and the Custody Agreement and Power of Attorney.
(d) The performance of this Agreement and the Custody Agreement and Power of Attorney and the consummation of the transactions contemplated hereby and thereby by such Selling Shareholder will not result in a breach or violation of, or conflict with, any of the terms or provisions of, or constitute a default by such Selling Shareholder under, any indenture, mortgage, deed of trust, trust (constructive or other), loan agreement, lease, franchise, license or other agreement or instrument to which such Selling Shareholder or any of his or its properties is bound, or any statute, judgment, decree, order, rule or regulation of any court or governmental agency or body applicable to such Selling Shareholder or any of his, her or its properties.
(e) Such Selling Shareholder has not distributed nor, other than as permitted by the Securities Act and the Rules and Regulations, will distribute any prospectus or other offering material in connection with the offer and sale of the Shares other than any Preliminary Prospectus filed with the Commission or the Final Prospectus or other material permitted by the Securities Act.
(f) Such Selling Shareholder has reviewed and is familiar with the Registration Statement and the Preliminary Prospectus. To the knowledge of such Selling Shareholder, the Preliminary Prospectus does not include an untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading.delivery
Appears in 1 contract
Representations and Warranties of the Selling Shareholders. Each of the Selling Shareholders, Shareholder severally and not jointly, represents and warrants to and agrees with, with each of Underwriter and the Underwriters Company that:
(a) Such Selling Shareholder, at the First Closing Date, will have good and marketable title to the Shares set forth in Schedule II to be sold by such Selling Shareholder, free and clear of any liens, encumbrances, equities and claims (other than as imposed by the Securities Act or this Agreement), and full right, power and authority to effect the sale and delivery of such Shares; and upon the delivery of and payment for the Shares to be sold by such Selling Shareholder pursuant to this Agreement, good and marketable title thereto, free and clear of any liens, encumbrances, equities and claims, of any kind, will be transferred to the Underwriters.
(b) Such Selling Shareholder has duly executed and delivered the Custody Agreement and Power of Attorney in the form previously delivered to the Representatives, appointing the persons named therein, and each of them as such Selling Shareholder's attorney-in-fact (the "Attorney-in-Fact") and as custodian (the "Custodian"). The Attorney-in-Fact is authorized to execute, deliver and perform this Agreement on behalf of such Selling Shareholder, to deliver the Shares to be sold by such Selling Shareholder hereunder, to accept payment therefor, and otherwise to act on behalf of such Selling Shareholder in connection with this Agreement, including payment from the Offering proceeds of expenses incurred on behalf of such Selling Shareholder. Certificates, in suitable form for transfer by delivery or accompanied by duly executed instruments of transfer or assignment in blank, representing the Shares to be sold by such Selling Shareholder hereunder have been deposited with the Custodian pursuant to the Custody Agreement and Power of Attorney for the purpose of delivery pursuant to this Agreement. Such Selling Shareholder agrees that the shares of Common Stock represented by the certificates on deposit with the Custodian are subject to the interest of the Underwriters hereunder, that the arrangements made for such custody and the appointment of the Attorney-in-Fact are to that extent irrevocable, and that the obligations of such Selling Shareholder hereunder shall not be terminated except as provided in this Agreement and the Custody Agreement and Power of Attorney. If such Selling Shareholder should die or become incapacitated, or if any other event should occur, before the delivery of the Shares of such Selling Shareholder hereunder, the certificates for such Shares deposited with the Custodian shall be delivered by the Custodian in accordance with the terms and conditions of this Agreement as if such death, incapacity or other event had not occurred, regardless of whether the Custodian or the Attorney-in-Fact shall have received notice thereof.
(c) Such Selling Shareholder, acting through his duly authorized Attorney-in-Fact, has duly executed and delivered this Agreement and the Custody Agreement and Power of Attorney; this Agreement constitutes a legal, valid and binding obligation of such Selling Shareholder, all All authorizations and consents necessary for the execution and delivery by such Selling Shareholder of this Agreement and the Custody Agreement and Power of Attorney on behalf of such Selling Shareholder and for the sale and delivery of the Shares to be sold by such Selling Shareholder hereunder have been givengiven and are in full force and effect on the date hereof and will be in full force and effect on the Closing Date (and, except as may if applicable, the Option Closing Date).
(b) Such Selling Shareholder has, and on the Closing Date (and, if applicable, the Option Closing Date) will have good and valid title to the Shares to be required sold by the Securities Act or state securities laws; and such Selling Shareholder has the legal capacity Shareholder, free and clear of all liens, mortgages, pledges, encumbrances, claims, equities and security interests whatsoever, and will have, full right, power and authority to execute enter into this Agreement and to sell, assign, transfer and deliver the Custody Agreement Shares to be sold by such Selling Shareholder hereunder.
(c) Upon delivery of and Power payment for such Shares hereunder, the several Underwriters will acquire valid and unencumbered title to such Shares to be sold by such Selling Shareholder hereunder, free and clear of Attorneyall liens, mortgages, pledges, encumbrances, claims, equities and security interests whatsoever.
(d) The performance of this Agreement and the Custody Agreement and Power of Attorney and the consummation by such Selling Shareholder of the transactions contemplated hereby herein and thereby the fulfillment by such Selling Shareholder of the terms hereof will not result in a violation or breach or violation of, or conflict with, of any of the terms or provisions of, or constitute a default by such Selling Shareholder under, any indenture, mortgage, deed of trust, trust (constructive or other)note, loan agreement, lease, franchise, license sale and leaseback arrangement or other agreement or instrument to which such Selling Shareholder or any of his or its properties is bounda party, or of any statute, judgment, decree, order, rule or regulation of any court or governmental agency or body applicable to such Selling Shareholder of any court or of any regulatory body of his, her an administrative agency or its propertiesother governmental body having jurisdiction.
(e) Such Selling Shareholder has not distributed nortaken and will not take, other than as permitted by the Securities Act and the Rules and Regulationsdirectly or indirectly, will distribute any prospectus action designed to or other offering material which might be reasonably expected to cause or result in connection with the offer and sale stabilization or manipulation of the Shares other than price of the Company's Common Stock, and such Selling Shareholder is not aware of any Preliminary Prospectus filed with the Commission such action taken or the Final Prospectus or other material permitted to be taken by the Securities Actaffiliates of such Selling Shareholder.
(f) Such Selling Shareholder has reviewed When the Registration Statement becomes effective and is familiar with at all times subsequent thereto, such information in the Registration Statement and the Preliminary Prospectus. To the knowledge of Prospectus and any amendments or supplements thereto as specifically refers to such Selling Shareholder, the Preliminary Prospectus does Shareholder will not include an 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, in the light of the circumstances under which they were made, therein not misleading.
(g) Certificates in negotiable form representing all of the Shares to be sold by such Selling Shareholder hereunder have been placed in the custody of Xxxx X. Xxxxxx and Xxxxxx Xxxxxxxx (the "Custodians") under a Custody Agreement (the "Custody Agreement"), duly executed and delivered by such Selling Shareholder, with the Custodians having the authority to deliver the Shares to be sold by such Selling Shareholder hereunder, and that such Selling shareholder has duly executed and delivered a Power of Attorney (the "Power of Attorney") appointing Xxxx X. Xxxxxx and Xxxxxx Xxxxxxxx as such Selling Shareholder's attorneys-in-fact (the "Attorneys-in-Fact") with the Attorneys-in-Fact having authority to execute and deliver this Agreement on behalf of such Selling Shareholder, to determine the purchase price to be paid by the Underwriters to the Selling Shareholders as provided in Section 3, to authorize the delivery of the Shares to be sold by it hereunder and otherwise to act on behalf of such Selling Shareholder in connection with the transactions contemplated by this Agreement and such Custody Agreement.
(h) The Shares represented by the certificates held in custody for such Selling Shareholder under the Custody Agreement are subject to the interests of the Underwriters hereunder, and the arrangements made by such Selling Shareholder for such custody, and the appointment by such Selling Shareholder for such custody, and the appointment by such Selling Shareholder of the Custodians under the Custody Agreement and of the Attorneys-in-Fact by the Power of Attorney, are to that extent irrevocable.
(i) The obligations of such Selling Shareholders hereunder shall not be terminated by operation of law, whether by the death or incapacity of any individual Selling Shareholder or by the occurrence of any other event, and if any Selling Shareholder should die or become incapacitated, or if any other such event should occur before the delivery of the Shares hereunder, certificates representing the Shares shall be delivered by or on behalf of each Selling Shareholder in accordance with the terms and conditions of this Agreement and of the Custody Agreement, and actions taken by the Custodians pursuant to the custody Agreement or by the Attorneys-in-Fact pursuant to the Power of Attorney shall be as valid as if such death, incapacity or other event had not occurred, regardless of whether or not the Custodians or Attorneys-in-Fact, or any of them, shall have received notice of such death, incapacity or other event.
(j) Such Selling Shareholder is not prompted to sell shares of Common Stock by any information concerning the Company or any of its subsidiaries which is not included in the Registration Statement.
Appears in 1 contract
Representations and Warranties of the Selling Shareholders. Each of the Selling Shareholders, Shareholder severally and not jointly, jointly represents and warrants to and agrees with, each of the Underwriters Underwriter that:
(a) Such Selling Shareholder, at Shareholder is the First Closing Date, will have good and marketable title to lawful owner of the Shares set forth in Schedule II to be sold by such Selling ShareholderShareholder pursuant to this Agreement and has, and on the Closing Date will have, good and clear title to such Shares, free and clear of any all restrictions on transfer, liens, encumbrances, security interests, equities and claims whatsoever.
(other than as imposed by the Securities Act or this Agreement)b) Such Selling Shareholder has, and on the Closing Date will have, full legal right, power and authority authority, and all authorization and approval required by law, to effect enter into this Agreement, the sale Custody Agreement signed by such Selling Shareholder and delivery United Missouri Bank N.A., as Custodian, relating to the deposit of the Shares to be sold by such Selling Shareholder (the "Custody Agreement") and the Power of Attorney of such Shares; Selling Shareholder appointing certain individuals as such Selling Shareholder's attorneys-in-fact (the "Attorneys-in- Fact") to the extent set forth therein, relating to the transactions contemplated hereby and upon by the Registration Statement and the Custody Agreement (the "Power of Attorney") and to sell, assign, transfer and deliver the Shares to be sold by such Selling Shareholder in the manner provided herein and therein.
(c) This Agreement has been duly authorized, executed and delivered by or on behalf of such Selling Shareholder.
(d) The Custody Agreement of such Selling Shareholder has been duly authorized, executed and delivered by such Selling Shareholder and is a valid and binding agreement of such Selling Shareholder, enforceable as to such Selling Shareholder in accordance with its terms.
(e) The Power of Attorney of such Selling Shareholder has been duly authorized, executed and delivered by such Selling Shareholder and is a valid and binding instrument of such Selling Shareholder, enforceable as to such Selling Shareholder in accordance with its terms, and, pursuant to such Power of Attorney, such Selling Shareholder has, among other things, authorized the Attorneys, or any one of them, to execute and deliver on such Selling Shareholder's behalf this Agreement and any other documents that they, or any one of them, may deem necessary or desirable in connection with the transactions contemplated hereby and thereby and to deliver the Shares to be sold by such Selling Shareholder pursuant to this Agreement.
(f) Upon delivery of and payment for the Shares to be sold by such Selling Shareholder pursuant to this Agreement, good and marketable clear title theretoto such Shares will pass to the Underwriters, free and clear of any all restrictions on transfer, liens, encumbrances, security interests, equities and claims, of any kind, will be transferred to the Underwritersclaims whatsoever.
(bg) Such Selling Shareholder has duly executed not taken, and delivered will not take, directly or indirectly, any action designed to, or which might reasonably be expected to, cause or result in stabilization or manipulation of the price of any security of the Company to facilitate the sale or resale of the Shares pursuant to the distribution contemplated by this Agreement, and other than as permitted by the Act, the Selling Shareholder has not distributed and will not distribute any prospectus or other offering material in connection with the offering and sale of the Shares.
(h) The execution, delivery and performance of this Agreement, the Custody Agreement and Power of Attorney in the form previously delivered to the Representatives, appointing the persons named therein, and each of them as such Selling Shareholder's attorney-in-fact (the "Attorney-in-Fact") and as custodian (the "Custodian"). The Attorney-in-Fact is authorized to execute, deliver and perform this Agreement Shareholder by or on behalf of such Selling Shareholder, the compliance by such Selling Shareholder with all the provisions hereof and thereof and the consummation of the transactions contemplated hereby and thereby will not (i) require any consent, approval, authorization or other order of, or qualification with, any court or governmental body or agency (except such as may be required under the Act or the securities or Blue Sky laws of the various states), (ii) conflict with or constitute a breach of any of the terms or provisions of, or a default under, the organizational documents of such Selling Shareholder, if such Selling Shareholder is not an individual, or any material indenture, loan agreement, mortgage, lease or other agreement or instrument to deliver which such Selling Shareholder is a party or by which such Selling Shareholder or any property of such Selling Shareholder is bound or (iii) violate or conflict with any applicable law or any rule, regulation, judgment, order or decree of any court or any governmental body or agency having jurisdiction over such Selling Shareholder or any property of such Selling Shareholder.
(i) Certificates in negotiable form for the Shares to be sold by such Selling Shareholder hereunder, to accept payment therefor, and otherwise to act on behalf of such Selling Shareholder in connection with this Agreement, including payment from the Offering proceeds of expenses incurred on behalf of such Selling Shareholder. Certificates, in suitable form for transfer by delivery or accompanied by duly executed instruments of transfer or assignment in blank, representing the Shares to be sold by such Selling Shareholder hereunder have been deposited placed in custody under the Custody Agreement with the Custodian pursuant to the Custody Agreement and Power of Attorney for the purpose of delivery pursuant to under this Agreement. Such Selling Shareholder specifically agrees that the shares of Common Stock Shares represented by the certificates on deposit with the Custodian so held in custody for such Selling Shareholder are subject to the interest interests of the several Underwriters hereunderand the Company, that the arrangements made by such Selling Shareholder for such custody and custody, including the appointment Power of the Attorney-in-Fact Attorney referenced in such Custody Agreement, are to that extent irrevocable, and that the obligations of such Selling Shareholder hereunder shall not be terminated except as provided in this Agreement and the Custody Agreement and Power by any act of Attorney. If such Selling Shareholder should die or become incapacitatedby operation of law, whether by the death or incapacity of such Selling Shareholder (or, in the case of a Selling Shareholder that is not an individual, the dissolution or liquidation of such Selling Shareholder) or the occurrence of any other event; if any such death, incapacity, dissolution, liquidation or other such event should occur, occur before the delivery of the such Shares of such Selling Shareholder hereunder, the certificates for such Shares deposited with the Custodian shall be delivered by the Custodian in accordance with the terms and conditions of this Agreement as if such death, incapacity incapacity, dissolution, liquidation or other event had not occurred, regardless of whether the Custodian or the Attorney-in-Fact shall have received notice thereofof such death, incapacity, dissolution, liquidation or other event.
(c) Such Selling Shareholder, acting through his duly authorized Attorney-in-Fact, has duly executed and delivered this Agreement and the Custody Agreement and Power of Attorney; this Agreement constitutes a legal, valid and binding obligation of such Selling Shareholder, all authorizations and consents necessary for the execution and delivery of this Agreement and the Custody Agreement and Power of Attorney on behalf of such Selling Shareholder and for the sale and delivery of the Shares to be sold by such Selling Shareholder hereunder have been given, except as may be required by the Securities Act or state securities laws; and such Selling Shareholder has the legal capacity and full right, power and authority to execute this Agreement and the Custody Agreement and Power of Attorney.
(dj) The performance of this Agreement and information in the Custody Agreement and Power of Attorney and Registration Statement under the consummation of the transactions contemplated hereby and thereby by such caption "Selling Shareholder will not result in a breach or violation of, or conflict with, any of the terms or provisions of, or constitute a default by such Selling Shareholder under, any indenture, mortgage, deed of trust, trust (constructive or other), loan agreement, lease, franchise, license or other agreement or instrument to Shareholders" which such Selling Shareholder or any of his or its properties is bound, or any statute, judgment, decree, order, rule or regulation of any court or governmental agency or body applicable specifically relates to such Selling Shareholder or does not, and will not on the Closing Date, contain any of his, her or its properties.
(e) Such Selling Shareholder has not distributed nor, other than as permitted by the Securities Act and the Rules and Regulations, will distribute any prospectus or other offering material in connection with the offer and sale of the Shares other than any Preliminary Prospectus filed with the Commission or the Final Prospectus or other material permitted by the Securities Act.
(f) Such Selling Shareholder has reviewed and is familiar with the Registration Statement and the Preliminary Prospectus. To the knowledge of such Selling Shareholder, the Preliminary Prospectus does not include an 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, in the light of the circumstances under which they were made, not misleading.
(k) At any time during the period described in Section 5(d), if there is any change in the information referred to in Section 7(l), such Selling Shareholder will immediately notify you of such change.
(l) Each certificate signed by or on behalf of such Selling Shareholder and delivered to the Underwriters or counsel for the Underwriters shall be deemed to be a representation and warranty by such Selling Shareholder to the Underwriters as to the matters covered thereby.
Appears in 1 contract
Representations and Warranties of the Selling Shareholders. Each of the Selling Shareholders, severally Shareholders represent and not jointly, represents and warrants warrant to and agrees with, agree with each of the Underwriters several Underwriters, that:
(a) Such The Selling ShareholderShareholder has full power to enter into this Agreement and to sell, at the First Closing Dateassign, will have good transfer and marketable title deliver to the Shares set forth in Schedule II to be sold by such Selling ShareholderUnderwriters, free and clear of any liens, encumbrances, equities and claims (other than as imposed by the Securities Act or this Agreement), and full right, power and authority to effect the sale and delivery of such Shares; and upon the delivery of and payment for the Over-Allotment Shares to be sold by such the Selling Shareholder pursuant to hereunder in accordance with the terms of this Agreement, good and marketable title thereto, free this Agreement has been duly executed and clear of any liens, encumbrances, equities and claims, of any kind, will be transferred to delivered by the UnderwritersSelling Shareholder.
(b) Such The Selling Shareholder has duly executed and delivered a power of attorney and custody agreement the Custody Agreement "POWER-OF-ATTORNEY" and Power of Attorney the "CUSTODY AGREEMENT," respectively), each in the form previously heretofore delivered to the RepresentativesUnderwriter, appointing Xxxxxx X. Xxxxx as the persons named therein, and each of them as such Selling Shareholder's attorney-in-fact (the "AttorneyATTORNEY-inIN-FactFACT") and as custodian (the "Custodian"). The Attorney-in-Fact is authorized with authority to execute, deliver and perform this Agreement on behalf of such the Selling ShareholderShareholder and appointing _______________ as custodian thereunder (the "CUSTODIAN"). Certificates in negotiable form, to deliver endorsed in blank or accompanied by blank stock powers duly executed, with signatures appropriately guaranteed, representing the Shares Over-Allotment to be sold by such Selling Shareholder hereunder, to accept payment therefor, and otherwise to act on behalf of such Selling Shareholder in connection with this Agreement, including payment from the Offering proceeds of expenses incurred on behalf of such Selling Shareholder. Certificates, in suitable form for transfer by delivery or accompanied by duly executed instruments of transfer or assignment in blank, representing the Shares to be sold by such Selling Shareholder hereunder have been deposited with the Custodian pursuant to the Custody Agreement and Power of Attorney for the purpose of delivery pursuant to this Agreement to subscribers for said Over-Allotment Shares. The Selling Shareholder has full power to enter into the Custody Agreement and the Power-of-Attorney and to perform its obligations under the Custody Agreement. Such The Custody Agreement and the Power-of-Attorney have been duly executed and delivered by the Selling Shareholder and, assuming due authorization, execution and delivery by the Custodian, are the legal, valid, binding and enforceable instruments of the Selling Shareholder. The Selling Shareholder agrees that the shares of Common Stock Over-Allotment Shares represented by the certificates on deposit with the Custodian are is subject to the interest interests of the Underwriters hereunder, that the arrangements made for such custody and custody, the appointment of the Attorney-in-Fact and the right, power and authority of each Attorney-in-Fact to execute and deliver this Agreement, to agree on the price at which the Shares (including the Over-Allotment Shares) are to be sold to Underwriters and to carry out the terms of this Agreement, are to that extent irrevocable, irrevocable and that the obligations of such the Selling Shareholder hereunder shall not be terminated terminated, except as provided in this Agreement and or the Custody Agreement and Power Agreement, by any act of Attorneythe Selling Shareholder, by operation of law or otherwise, whether by the death or incapacity of the Selling Shareholder or by the occurrence of any other event. If such the Selling Shareholder should die or become incapacitated, incapacitated or if any other event should occur, before the delivery of the Over-Allotment Shares of such Selling Shareholder hereunder, the certificates for such Over-Allotment Shares deposited with the Custodian shall be delivered by the Custodian in accordance with the respective terms and conditions of this Agreement as if such death, incapacity or other event had not occurred, regardless of whether or not the Custodian or the Attorney-in-Fact shall have received notice thereof. Notwithstanding the foregoing, nothing in this SECTION 1B(b) shall be construed to limit or shall limit the right of the Representative, in its sole discretion, to terminate this Agreement as provided herein.
(c) Such Selling Shareholder, acting through his duly authorized Attorney-in-Fact, has duly executed and delivered this Agreement and the Custody Agreement and Power of Attorney; this Agreement constitutes a legal, valid and binding obligation of such Selling Shareholder, all authorizations and consents necessary for the execution and delivery of this Agreement and the Custody Agreement and Power of Attorney on behalf of such The Selling Shareholder and for is, or prior to the sale and delivery Option Closing Date(s) will be, the lawful owner of the Over-Allotment Shares to be sold by such the Selling Shareholder hereunder have been givenand upon sale and delivery of, except and payment for such Over-Allotment Shares, as may be required by provided herein, the Securities Act or state securities laws; and such Selling Shareholder has will convey good and marketable title of such Over-Allotment Shares to the legal capacity Underwriters, free and full rightclear of any security interests, power and authority to execute this Agreement and the Custody Agreement and Power of Attorneyliens, encumbrances, equities, claims or other defects.
(d) The performance of this Agreement Selling Shareholder has not taken and will not take, directly or indirectly, any action designed to cause or result, or which might reasonably be expected to cause or result, in the Custody Agreement and Power of Attorney and the consummation stabilization or manipulation of the transactions contemplated hereby and thereby by such Selling Shareholder will not result in a breach or violation of, or conflict with, price of any security of the terms Company to facilitate the sale or provisions of, or constitute a default by such Selling Shareholder under, any indenture, mortgage, deed resale of trust, trust (constructive or other), loan agreement, lease, franchise, license or other agreement or instrument to which such Selling Shareholder or any of his or its properties is bound, or any statute, judgment, decree, order, rule or regulation of any court or governmental agency or body applicable to such Selling Shareholder or any of his, her or its propertiesthe Over-Allotment Shares.
(e) Such The Selling Shareholder has not distributed nornot, since the filing of the Registration Statement, (i) sold, bid for, purchased, attempted to induce any person to purchase, or paid anyone any compensation for soliciting purchases of, the Over-Allotment Shares or (ii) paid or agreed to pay to any person any compensation for soliciting another to purchase any other than as permitted by securities of the Securities Act and Company (except for the Rules and Regulations, will distribute any prospectus or other offering material in connection with the offer and sale of the Over-Allotment Shares other than any Preliminary Prospectus filed with the Commission or the Final Prospectus or other material permitted by the Securities ActSelling Shareholder under this Agreement to the Underwriters).
(f) Such To the extent that any statements or omissions are made in the Registration Statement, any Preliminary Prospectus, the Prospectus or any amendment or supplement thereto in reliance upon and in conformity with written information furnished to the Company by the Selling Shareholder has reviewed specifically for use therein, such Preliminary Prospectus did, and is familiar with the Registration Statement and the Preliminary Prospectus. To Prospectus and any amendments or supplements thereto, when they become effective or are filed with the knowledge Commission, as the case may be, will conform in all material respects to the requirements of such Selling Shareholderthe Act, the Preliminary Prospectus does Securities Exchange Act of 1934 (the "EXCHANGE ACT") and the respective Rules and Regulations of the Commission thereunder and will not include an 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, in the light of the circumstances under which they were are made, not misleading. The Selling Shareholder has reviewed the Prospectus (or, if the Prospectus is not in existence, the most recent Preliminary Prospectus) and the Registration Statement, and the information regarding the Selling Shareholder set forth therein is complete and accurate.
(g) The sale by the Selling Shareholder of the Over-Allotment Shares pursuant hereto is not prompted by any adverse information concerning the Company that is not set forth in the Registration Statement or the Prospectus (or, if the Prospectus is not in existence, the most recent Preliminary Prospectus).
(h) The sale of the Over-Allotment Shares by the Selling Shareholder pursuant to this Agreement, the compliance by the Selling Shareholder with the other provisions of this Agreement, the Custody Agreement, the Power-of-Attorney and the consummation of the other transactions herein contemplated do not (i) require the consent, approval, authorization, registration or qualification of or with any governmental authority, except such as have been obtained, such as may be required under state securities or blue sky laws and, if the registration statement filed with respect to the Over-Allotment Shares (as amended) is not effective under the Act as of the time of execution hereof, such as may be required (and shall be obtained as provided in this Agreement) under the Act or the Exchange Act or (ii) conflict with or result in a breach or violation of any of the terms and provisions of, or constitute a default under any indenture, mortgage, deed of trust, lease or other agreement or instrument to which the Selling Shareholder or any of the Selling Shareholder's properties are bound, or any statute or any judgment, decree, order, rule or regulation of any court or other governmental authority or any arbitrator applicable to the Selling Shareholder.
Appears in 1 contract
Representations and Warranties of the Selling Shareholders. Each of the Selling Shareholders, severally and not jointly, hereby represents and warrants to and agrees with, each of the Underwriters thatUnderwriter as follows:
(a) Such The Selling Shareholder has caused certificates for the number of Shares to be sold by such Selling Shareholder hereunder to be delivered to Computershare Trust Company (the "Custodian"), endorsed in blank or with blank stock powers duly executed, with a signature appropriately guaranteed, such certificates to be held in custody by the Custodian for delivery, pursuant to the provisions of this Agreement and an agreement dated __________, 2001 between the Custodian and the Selling Shareholder (the "Custody Agreement").
(b) The Selling Shareholder has granted an irrevocable power of attorney (the "Power of Attorney") to the person named therein, on behalf of the Selling Shareholder, at to execute and deliver this Agreement and any other document necessary or desirable in connection with the First transactions contemplated hereby and to deliver the shares to be sold by the Selling Shareholder pursuant hereto.
(c) This Agreement, the Custody Agreement, the Power of Attorney and, with respect only to John S. Chapin and the Chapin Family Trust the Lock-Up Agreement, have xxxx xxxx xxxy authorixxx, xxecuted and delivered by or on behalf of the Selling Shareholder and, assuming due authorization, execution and delivery by the other parties hereto, constitutes the valid and legally binding agreement of the Selling Shareholder, enforceable against the Selling Shareholder in accordance with its terms.
(d) The execution and delivery by the Selling Shareholder of this Agreement and the performance by the Selling Shareholder of its obligations under this Agreement (i) will not contravene any provision of applicable law, statute, regulation or filing or any agreement or other instrument binding upon the Selling Shareholder or any judgment, order or decree of any governmental body, agency or court having jurisdiction over the Selling Shareholder, (ii) does not require any consent, approval, authorization or order of or registration or filing with any court or governmental agency or body having jurisdiction over it, (iii) does not and will not violate any statute, law, regulation or filing or judgment, injunction, order or decree applicable to the Selling Shareholder or (iv) will not result in the creation or imposition of any lien, charge or encumbrance upon any property or assets of the Selling Shareholder pursuant to the terms of any agreement or instrument to which the Selling Shareholder is a party or by which the Selling Shareholder may be bound or to which any of the property or assets of the Selling Shareholder is subject.
(e) The Selling Shareholder has, and on the Firm Shares Closing DateDate will have, will have good valid and marketable title to the Shares set forth in Schedule II to be sold by such the Selling Shareholder, Shareholder free and clear of any lienslien, encumbrancesclaim, equities and claims security interest or other encumbrance, including, without limitation, any restriction on transfer.
(other than as imposed by the Securities Act or this Agreement)f) The Selling Shareholder has, and on the Firm Shares Closing Date will have, full legal right, power and authority authorization, and any approval required by law, to effect sell, assign, transfer and deliver the sale and delivery of such Shares; and upon Shares to be sold by the Selling Shareholder in the manner provided by this Agreement.
(g) Upon delivery of and payment for the Shares to be sold by such the Selling Shareholder pursuant to this Agreement, good the several Underwriters will receive valid and marketable title thereto, to such Shares free and clear of any lienslien, encumbrancesclaim, equities and claims, of any kind, will be transferred to the Underwriterssecurity interest or other encumbrance.
(bh) Such All information relating to the Selling Shareholder has duly executed and delivered furnished in writing by the Custody Agreement and Power of Attorney in the form previously delivered to the Representatives, appointing the persons named therein, and each of them as such Selling Shareholder's attorney-in-fact (the "Attorney-in-Fact") and as custodian (the "Custodian"). The Attorney-in-Fact is authorized to execute, deliver and perform this Agreement on behalf of such Selling Shareholder, to deliver the Shares to be sold by such Selling Shareholder hereunder, to accept payment therefor, and otherwise to act on behalf of such Selling Shareholder expressly for use in connection with this Agreement, including payment from the Offering proceeds of expenses incurred on behalf of such Selling Shareholder. Certificates, in suitable form for transfer by delivery or accompanied by duly executed instruments of transfer or assignment in blank, representing the Shares to be sold by such Selling Shareholder hereunder have been deposited with the Custodian pursuant to the Custody Agreement and Power of Attorney for the purpose of delivery pursuant to this Agreement. Such Selling Shareholder agrees that the shares of Common Stock represented by the certificates on deposit with the Custodian are subject to the interest of the Underwriters hereunder, that the arrangements made for such custody and the appointment of the Attorney-in-Fact are to that extent irrevocable, and that the obligations of such Selling Shareholder hereunder shall not be terminated except as provided in this Agreement and the Custody Agreement and Power of Attorney. If such Selling Shareholder should die or become incapacitated, or if any other event should occur, before the delivery of the Shares of such Selling Shareholder hereunder, the certificates for such Shares deposited with the Custodian shall be delivered by the Custodian in accordance with the terms and conditions of this Agreement as if such death, incapacity or other event had not occurred, regardless of whether the Custodian or the Attorney-in-Fact shall have received notice thereof.
(c) Such Selling Shareholder, acting through his duly authorized Attorney-in-Fact, has duly executed and delivered this Agreement and the Custody Agreement and Power of Attorney; this Agreement constitutes a legal, valid and binding obligation of such Selling Shareholder, all authorizations and consents necessary for the execution and delivery of this Agreement and the Custody Agreement and Power of Attorney on behalf of such Selling Shareholder and for the sale and delivery of the Shares to be sold by such Selling Shareholder hereunder have been given, except as may be required by the Securities Act or state securities laws; and such Selling Shareholder has the legal capacity and full right, power and authority to execute this Agreement and the Custody Agreement and Power of Attorney.
(d) The performance of this Agreement and the Custody Agreement and Power of Attorney and the consummation of the transactions contemplated hereby and thereby by such Selling Shareholder will not result in a breach or violation of, or conflict with, any of the terms or provisions of, or constitute a default by such Selling Shareholder under, any indenture, mortgage, deed of trust, trust (constructive or other), loan agreement, lease, franchise, license or other agreement or instrument to which such Selling Shareholder or any of his or its properties is bound, or any statute, judgment, decree, order, rule or regulation of any court or governmental agency or body applicable to such Selling Shareholder or any of his, her or its properties.
(e) Such Selling Shareholder has not distributed nor, other than as permitted by the Securities Act and the Rules and Regulations, will distribute any prospectus or other offering material in connection with the offer and sale of the Shares other than any Preliminary Prospectus filed with the Commission or the Final Prospectus or other material permitted by the Securities Act.
(f) Such Selling Shareholder has reviewed and is familiar with the Registration Statement and Prospectus is, and on the Preliminary Prospectus. To Firm Shares Closing Date will be, true, correct, and complete, and does not, and on the knowledge of such Selling ShareholderFirm Shares Closing Date will not, the Preliminary Prospectus does not include an contain any untrue statement of a material fact or omit to state any material fact necessary to make such information not misleading.
(i) The Selling Shareholder has reviewed the Registration Statement and Prospectus and, although the Selling Shareholder has not independently verified the accuracy or completeness of all the information contained therein, nothing has come to the attention of the Selling Shareholder that would lead the Selling Shareholder to believe that (i) on the Effective Date, the Registration Statement contained any untrue statement of a material fact necessary or omitted to state any material fact required to be stated therein in order to make the statements made therein not misleading and (ii) on the Effective Date the Prospectus contained and, on the Firm Shares Closing Date contains, no untrue statement of a material fact or omitted or omits to state any material fact required to be stated therein in order to make the statements therein, in the light of the circumstances under which they were made, not misleading.
(j) The sale of Shares by the Selling Shareholder pursuant to this Agreement is not prompted by the Selling Shareholder's knowledge of any material information concerning the Company or its Subsidiaries that is not set forth in the Prospectus.
(k) The Selling Shareholder has not taken and will not take, directly or indirectly, any action designed to or that might reasonably be expected to cause or result in stabilization or manipulation of the price of any security of the Company to facilitate the sale or resale of the Shares.
(l) With respect only to Unaxis, the Selling Shareholder has waived in writing its right to purchase Shares from the Underwriters in this offering. Such writing is enforceable in accordance with its terms.
(m) The representations and warranties of the Selling Shareholder in the Custody Agreement are and on the Firm Shares Closing Date will be, true and correct.
Appears in 1 contract
Representations and Warranties of the Selling Shareholders. Each of Except with respect to the Share Repurchase Agreement and the Concurrent Share Repurchase for any Selling ShareholdersShareholder that is not a party to the Share Repurchase Agreement, each Selling Shareholder, severally and not jointly, represents and warrants to and agrees with, with each of the Underwriters that:
(a) Such Selling ShareholderThis Agreement has been duly authorized, at the First Closing Date, will have good executed and marketable title to the Shares set forth in Schedule II to be sold delivered by or on behalf of such Selling Shareholder, free and clear of any liens, encumbrances, equities and claims .
(other than as imposed by the Securities Act or this Agreement), and b) Such Selling Shareholder has full right, power and authority to execute and deliver the Share Repurchase Agreement and the Share Repurchase Agreement has been duly authorized, executed and delivered by such Selling Shareholder and remains in full force and effect in all material respects and constitutes a valid and binding agreement of such Selling Shareholder enforceable in accordance with its terms, except to the sale extent that enforcement thereof may be limited by bankruptcy, insolvency, reorganization or other laws affecting enforcement of creditors’ rights or by general equitable principles.
(c) The execution and delivery by such Selling Shareholder of, and the performance by such Selling Shareholder of its obligations under, this Agreement and the share transfer agreements, each to be dated the Closing Date, pursuant to which the Shares to be sold by such Selling Shareholder will be transferred by such Selling Shareholder to the Underwriters in accordance with this Agreement (the “Share Transfer Agreements”), the Share Repurchase Agreement and (other than in the case of Sensata Investment Company S.C.A.) the Custody Agreement and Agreement to Sell signed by such Selling Shareholder and Sensata Technologies, Inc., as Custodian, relating to the Shares to be sold by such Selling Shareholder (the “Custody Agreement”), and (other than in the case of Sensata Investment Company S.C.A.) the Power of Attorney appointing certain individuals as such Selling Shareholder’s attorneys-in-fact to the extent set forth therein, relating to the transactions contemplated hereby and by the Registration Statement (the “Power of Attorney”) will not contravene any provision of applicable law, or the articles of organization, articles of association, certificate of incorporation, bylaws or other constituent documents of such Selling Shareholder (if such Selling Shareholder is a corporation, Luxembourg société en commandite par actions or other business entity), or any agreement or other instrument binding upon such Selling Shareholder or any judgment, order or decree of any governmental body, agency or court having jurisdiction over such Selling Shareholder, and no consent, approval, authorization or order of, or qualification with, any governmental body or agency is required for the performance by such Selling Shareholder of its obligations under this Agreement or the Share Transfer Agreements, the Share Repurchase Agreement, the Custody Agreement or Power of Attorney of such Selling Shareholder, except such as may be required by the securities or Blue Sky laws of the various states in connection with the offer and sale of the Shares.
(d) Such Selling Shareholder has, and on the Closing Date will have, valid title to, or a valid “security entitlement” within the meaning of Section 8-501 of the New York Uniform Commercial Code in respect of, the Shares to be sold by such Selling Shareholder free and clear of all security interests, claims, liens, equities or other encumbrances and the legal right and power, and all authorization and approval required by law, to enter into this Agreement, the Custody Agreement and the Power of Attorney, as applicable, and to sell, transfer and deliver the Shares to be sold by such Selling Shareholder or a security entitlement in respect of such Shares; .
(e) The Custody Agreement and upon the delivery Power of Attorney, to the extent such Selling Shareholder is a party thereto, have been duly authorized, executed and delivered by such Selling Shareholder and are valid and binding agreements of such Selling Shareholder, except to the extent that enforcement thereof may be limited by bankruptcy, insolvency, reorganization or other laws affecting enforcement of creditors’ rights or by general equitable principles. The Share Transfer Agreements as of the Closing Date will have been duly authorized, executed and delivered by such Selling Shareholder and will be valid and binding agreements of such Selling Shareholder.
(f) Upon payment for the Shares to be sold by such Selling Shareholder pursuant to this Agreement, good delivery of such Shares, as directed by the Underwriters, to Cede & Co. (“Cede”) or such other nominee as may be designated by the Depository Trust Company (“DTC”), registration of such Shares in the name of Cede or such other nominee and marketable title thereto, free and clear the crediting of such Shares on the books of DTC to securities account(s) of the Underwriters (assuming that neither DTC nor any such Underwriter has notice of any liensadverse claim (within the meaning of Section 8-105 of the New York Uniform Commercial Code (the “UCC”)) to such Shares), encumbrances(A) DTC shall be a “protected purchaser” of such Shares within the meaning of Section 8-303 of the UCC, equities (B) under Section 8-501 of the UCC, the Underwriters will acquire a valid security entitlement in respect of such Shares and claims(C) no action based on any “adverse claim”, within the meaning of any kindSection 8-102 of the UCC, to such Shares may be asserted against the Underwriters with respect to such security entitlement; for purposes of this representation, such Selling Shareholder may assume that when such payment, delivery and crediting occur, (x) such Shares will have been registered in the name of Cede or another nominee designated by DTC, in each case on the Company’s share registry in accordance with its certificate of incorporation, bylaws and applicable law, (y) DTC will be transferred registered as a “clearing corporation” within the meaning of Section 8-102 of the UCC and (z) appropriate entries to the Underwritersaccount(s) of the several Underwriters on the records of DTC will have been made pursuant to the UCC.
(bg) Such Selling Shareholder has duly executed and delivered is not prompted by any information concerning the Custody Agreement and Power of Attorney Company or its subsidiaries which is not set forth in the form previously delivered Time of Sale Prospectus to the Representatives, appointing the persons named therein, and each of them as such Selling Shareholder's attorney-in-fact (the "Attorney-in-Fact") and as custodian (the "Custodian"). The Attorney-in-Fact is authorized to execute, deliver and perform this Agreement on behalf of such Selling Shareholder, to deliver the sell its Shares to be sold by such Selling Shareholder hereunder, to accept payment therefor, and otherwise to act on behalf of such Selling Shareholder in connection with this Agreement, including payment from the Offering proceeds of expenses incurred on behalf of such Selling Shareholder. Certificates, in suitable form for transfer by delivery or accompanied by duly executed instruments of transfer or assignment in blank, representing the Shares to be sold by such Selling Shareholder hereunder have been deposited with the Custodian pursuant to the Custody Agreement and Power of Attorney for the purpose of delivery pursuant to this Agreement. Such Selling Shareholder agrees that the shares of Common Stock represented by the certificates on deposit with the Custodian are subject to the interest of the Underwriters hereunder, that the arrangements made for such custody and the appointment of the Attorney-in-Fact are to that extent irrevocable, and that the obligations of such Selling Shareholder hereunder shall not be terminated except as provided in this Agreement and the Custody Agreement and Power of Attorney. If such Selling Shareholder should die or become incapacitated, or if any other event should occur, before the delivery of the Shares of such Selling Shareholder hereunder, the certificates for such Shares deposited with the Custodian shall be delivered by the Custodian in accordance with the terms and conditions of this Agreement as if such death, incapacity or other event had not occurred, regardless of whether the Custodian or the Attorney-in-Fact shall have received notice thereof.
(ci) Such Selling ShareholderThe Registration Statement, acting through his duly authorized Attorney-in-Factwhen it became effective, has duly executed and delivered 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 to make the statements therein not misleading, (ii) the Registration Statement and the Custody Agreement and Power of Attorney; this Agreement constitutes a legalProspectus comply and, valid and binding obligation of such Selling Shareholderas amended or supplemented, if applicable, will comply in all authorizations and consents necessary for the execution and delivery of this Agreement and the Custody Agreement and Power of Attorney on behalf of such Selling Shareholder and for the sale and delivery of the Shares to be sold by such Selling Shareholder hereunder have been given, except as may be required by the Securities Act or state securities laws; and such Selling Shareholder has the legal capacity and full right, power and authority to execute this Agreement and the Custody Agreement and Power of Attorney.
(d) The performance of this Agreement and the Custody Agreement and Power of Attorney and the consummation of the transactions contemplated hereby and thereby by such Selling Shareholder will not result in a breach or violation of, or conflict with, any of the terms or provisions of, or constitute a default by such Selling Shareholder under, any indenture, mortgage, deed of trust, trust (constructive or other), loan agreement, lease, franchise, license or other agreement or instrument to which such Selling Shareholder or any of his or its properties is bound, or any statute, judgment, decree, order, rule or regulation of any court or governmental agency or body applicable to such Selling Shareholder or any of his, her or its properties.
(e) Such Selling Shareholder has not distributed nor, other than as permitted by material respects with the Securities Act and the Rules applicable rules and Regulationsregulations of the Commission thereunder, will distribute any prospectus or other offering material (iii) the Time of Sale Prospectus does not, and at the time of each sale of the Shares in connection with the offer offering when the Prospectus is not yet available to prospective purchasers and sale at the Closing Date (as defined in Section 5), the Time of the Shares other than any Preliminary Prospectus filed with the Commission Sale Prospectus, as then amended or the Final Prospectus or other material permitted supplemented by the Securities Act.
(f) Such Selling Shareholder has reviewed and is familiar with the Registration Statement and the Preliminary Prospectus. To the knowledge of such Selling ShareholderCompany, the Preliminary Prospectus does not include an 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 order the light of the circumstances under which they were made, not misleading and (iv) the Prospectus does not contain and, as amended or supplemented, if applicable, will not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading; except that the representations and warranties set forth in this paragraph 2(h) are made only as to statements or omissions made in reliance upon and in conformity with information furnished to the Company in writing by or on behalf of such Selling Shareholder specifically for use in the preparation of the Registration Statement, the Time of Sale Prospectus, the Prospectus or such other documents.
Appears in 1 contract
Samples: Underwriting Agreement (Sensata Technologies Holding N.V.)
Representations and Warranties of the Selling Shareholders. Each of the Selling Shareholders, Shareholders hereby severally and not jointly, represents and warrants to each Underwriter on the date hereof (except as otherwise set forth herein), and agrees withshall be deemed to severally represent and warrant to each Underwriter on the Closing Date and the Additional Closing Date, each of the Underwriters that:
(a) Such Selling ShareholderAll consents, at the First Closing Dateapprovals, will have good and marketable title to the Shares set forth in Schedule II to be sold by such Selling Shareholder, free and clear of any liens, encumbrances, equities and claims (other than as imposed by the Securities Act or this Agreement), and full right, power and authority to effect the sale and delivery of such Shares; and upon the delivery of and payment for the Shares to be sold by such Selling Shareholder pursuant to this Agreement, good and marketable title thereto, free and clear of any liens, encumbrances, equities and claims, of any kind, will be transferred to the Underwriters.
(b) Such Selling Shareholder has duly executed and delivered the Custody Agreement and Power of Attorney in the form previously delivered to the Representatives, appointing the persons named therein, and each of them as such Selling Shareholder's attorney-in-fact (the "Attorney-in-Fact") and as custodian (the "Custodian"). The Attorney-in-Fact is authorized to execute, deliver and perform this Agreement on behalf of such Selling Shareholder, to deliver the Shares to be sold by such Selling Shareholder hereunder, to accept payment therefor, and otherwise to act on behalf of such Selling Shareholder in connection with this Agreement, including payment from the Offering proceeds of expenses incurred on behalf of such Selling Shareholder. Certificates, in suitable form for transfer by delivery or accompanied by duly executed instruments of transfer or assignment in blank, representing the Shares to be sold by such Selling Shareholder hereunder have been deposited with the Custodian pursuant to the Custody Agreement and Power of Attorney for the purpose of delivery pursuant to this Agreement. Such Selling Shareholder agrees that the shares of Common Stock represented by the certificates on deposit with the Custodian are subject to the interest of the Underwriters hereunder, that the arrangements made for such custody and the appointment of the Attorney-in-Fact are to that extent irrevocable, and that the obligations of such Selling Shareholder hereunder shall not be terminated except as provided in this Agreement and the Custody Agreement and Power of Attorney. If such Selling Shareholder should die or become incapacitated, or if any other event should occur, before the delivery of the Shares of such Selling Shareholder hereunder, the certificates for such Shares deposited with the Custodian shall be delivered by the Custodian in accordance with the terms and conditions of this Agreement as if such death, incapacity or other event had not occurred, regardless of whether the Custodian or the Attorney-in-Fact shall have received notice thereof.
(c) Such Selling Shareholder, acting through his duly authorized Attorney-in-Fact, has duly executed and delivered this Agreement and the Custody Agreement and Power of Attorney; this Agreement constitutes a legal, valid and binding obligation of such Selling Shareholder, all authorizations and consents orders necessary for the execution and delivery by such Selling Shareholder of this Agreement Agreement, the Power of Attorney (the "Power of Attorney") and the Custody Agreement and Power (the "Custody Agreement") referred to in the last paragraph of Attorney on behalf of such Selling Shareholder this Section 7, and for the sale and delivery of the Shares to be sold by such Selling Shareholder hereunder Shareholder, have been given, except as may be required by the Securities Act or state securities lawsobtained; and such Selling Shareholder has the legal capacity and full right, power and authority to execute enter into this Agreement Agreement, the Power of Attorney and the Custody Agreement, and to sell, assign, transfer and deliver the Shares to be sold by such Selling Shareholder.
(b) This Agreement, the Power of Attorney and the Custody Agreement have been duly authorized, executed and Power delivered by or on behalf of Attorney.
(d) each of the Selling Shareholders and constitute valid and legally binding agreements of each such Selling Shareholder enforceable in accordance with their respective terms, except as may be limited by bankruptcy, insolvency, reorganization or other laws of general application relating to or affecting enforcement of creditors' rights generally or the availability of equitable remedies, regardless of whether such enforcement is considered in a proceeding in equity or at law. The performance of this Agreement Agreement, the Power of Attorney and the Custody Agreement and Power of Attorney and the consummation of the transactions contemplated hereby herein and thereby by such Selling Shareholder therein will not result in a breach or violation of, or conflict with, of any of the terms or provisions of, or constitute a default by such Selling Shareholder under, any statute, indenture, mortgage, deed of trust, voting trust (constructive or other), loan agreement, leasenote agreement, franchise, license lease or other agreement or instrument to which such Selling Shareholder is a party or any of his by which such Selling Shareholder or its such Selling Shareholder's properties is are bound, or under any statute, judgment, decree, order, rule or regulation of any court or governmental agency or body applicable to such Selling Shareholder or the business or property of such Selling Shareholder.
(c) Such Selling Shareholder has, and immediately prior to the Closing Date will have, good and valid title to the Shares to be sold by such Selling Shareholder hereunder, free and clear of all liens, encumbrances, equities, shareholder agreements, voting trusts or claims of any nature whatsoever, and, upon delivery of such Shares and payment therefor pursuant hereto, good and valid title to such Shares, free and clear of all liens, encumbrances, equities, shareholder agreements, voting trusts or claims of any nature whatsoever (other than those arising by or through the Underwriters), will pass to the several Underwriters.
(d) Such Selling Shareholder will not directly or indirectly, assign, transfer, offer, sell, hypothecate, or otherwise dispose of any Common Shares (or securities convertible into or exchangeable for or any rights to purchase or acquire Common Shares), and will not in any way reduce his, her or its propertiesrisk of ownership or investment in any Common Shares, prior to the expiration of 120 days from the date that the Prospectus is first filed pursuant to Rule 424(b) under the Act, without your prior written consent.
(e) Such Selling Shareholder has not distributed nortaken, other than as permitted by and will not take, directly or indirectly, any action which constituted, or any action designed, or which might reasonably be expected to cause or result in or constitute, under the Securities Act and or otherwise, stabilization or manipulation of the Rules and Regulations, will distribute price of any prospectus security of the Company to facilitate the sale or other offering material in connection with the offer and sale resale of the Shares other than any Preliminary Prospectus filed with the Commission or the Final Prospectus or other material permitted by the Securities Actotherwise.
(f) No consent, approval, authorization or order of, or any filing or declaration with, any court or governmental agency or body has been or is required for the consummation by the Selling Shareholder of the transactions on his part contemplated in this Agreement, the Power of Attorney or the Custody Agreement, except such as have been duly obtained under the Act and such as may be required under state securities laws or the bylaws and rules of the NASD in connection with the purchase and distribution by the Underwriters of the Shares to be sold by the Selling Shareholder.
(g) Such Selling Shareholder has reviewed and is familiar with the Registration Statement Statement, the Prepricing Prospectus and the Preliminary Prospectus. To the Prospectus and has no knowledge of any material fact or condition not set forth in the Registration Statement, the Prepricing Prospectus or the Prospectus which has adversely affected, or may adversely affect, the condition (financial or otherwise), business, prospects, properties, net worth or results of operations of the Company and the Subsidiaries taken as a whole, and the sale of the Shares proposed to be sold by such Selling ShareholderShareholder is not prompted by any such knowledge.
(h) All information with respect to such Selling Shareholder contained in the Registration Statement, the Preliminary Prepricing Prospectus and the Prospectus (as amended or supplemented, if the Company shall have filed with the Commission any amendment or supplement thereto) complied and will comply in all material respects with all applicable provisions of the Act, contains and will contain all statements required to be stated therein in accordance with the Act, and does not include and will not contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary in order to make the statements thereintherein not misleading.
(i) To the best knowledge of such Selling Shareholder, the representations and warranties of the Company contained in Section 6 hereof are true and correct.
(j) The Selling Shareholder has not distributed and will not distribute any offering material in connection with the offering and sale of the Shares other than the Prepricing Prospectus, the Prospectus or other offering material, if any, as permitted by the Act.
(k) On the Closing Date, and Additional Closing Date, if any, all stock transfer and other taxes (other than income taxes) which are required to be paid in connection with the sale and transfer of the Shares to be sold by the Selling Shareholder will have been fully paid for by such Selling Shareholder and all laws imposing such taxes will have been fully complied with. 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 Shareholders severally agree to deliver to you at least two days prior to the Closing or, Additional Closing, if any, a properly completed and executed United States Treasury Department Form W-9 (or other applicable form or statement specified by Treasury Department regulations in lieu thereof). Each of the Selling Shareholders represents and warrants that certificates in negotiable form representing all of the Shares to be sold by such Selling Shareholder have been placed in custody under a Custody Agreement, in the light form heretofore furnished to you, duly executed and delivered by such Selling Shareholder to the Company, as custodian (the "Custodian"), and that such Selling Shareholder has duly executed and delivered a Power of Attorney, in the form heretofore furnished to you, appointing Xxxxxxx X. Xxxxxx and Xxxxxx X. Xxxxxx as such Selling Shareholder's attorneys-in-fact (the "Attorneys-in-Fact") with authority, acting individually or collectively, to execute and deliver this Agreement on behalf of such Selling Shareholder, to determine the purchase price to be paid by the Underwriters to the Selling Shareholders as provided in Section 2 hereof, to authorize the delivery of the circumstances Shares to be sold by such Selling Shareholder or otherwise to act on behalf of such Selling Shareholder in connection with the transactions contemplated by this Agreement and the Custody Agreement. Each of the Selling Shareholders specifically agrees that the Shares represented by the certificates held in custody for such Selling Shareholders under which they were madethe Custody Agreement are subject to the interest of the Underwriters hereunder, and that the arrangements made by such Selling Shareholder for such custody, and the appointment by such Selling Shareholder of the Attorneys-in-Fact by the Power of Attorney, are to that extent irrevocable. Each of the Selling Shareholders specifically agrees that the obligations of such Selling Shareholders hereunder shall not misleadingbe terminated by operation of law, whether by the death or incapacity of any individual Selling Shareholder or, in the case of an estate or trust, by the death or incapacity of any executor or trustee or the termination of such estate or trust, or in the case of a partnership or corporation, by the dissolution of such partnership or corporation, or by the occurrence of any other event. If any individual Selling Shareholder or any executor or trustee should die or become incapacitated, or if any such estate or trust shall be terminated, or if any such partnership or corporation should be dissolved, or if any other such event should occur before the delivery of the Shares hereunder, certificates representing the Shares shall be delivered by or on behalf of the Selling Shareholders in accordance with the terms and conditions of this Agreement and the Custody Agreement, and actions taken by the Attorneys-in-Fact pursuant to the Powers of Attorney shall be as valid as if such death, incapacity, termination, dissolution or other event had not occurred, regardless of whether or not the Custodian, the Attorneys-in-Fact, or any of them, shall have received notice of such death, incapacity, termination, dissolution or other event.
Appears in 1 contract
Samples: Underwriting Agreement (Continental Waste Industries Inc)
Representations and Warranties of the Selling Shareholders. Each of the Selling Shareholders, severally and not jointly, represents and warrants to and agrees with, with each of the Underwriters that:
(a) Such Selling Shareholder has been duly established as a state-owned enterprise in the PRC.
(b) This Agreement has been duly authorized, executed and delivered by or on behalf of such Selling Shareholder and constitutes a valid and legally binding obligation of such Selling Shareholder, at enforceable in accordance with its terms, subject to bankruptcy, insolvency, reorganization, moratorium and similar laws of general applicability relating to or affecting creditors’ rights and to general equity principles.
(c) All consents, approvals, authorizations, orders, registrations, clearances and qualifications of or with any Governmental Agency having jurisdiction over such Selling Shareholder or any of its properties (hereinafter referred to as “Selling Shareholder’s Governmental Authorizations”) required for the First Closing Date, will have good sale and marketable title to delivery of the Shares set forth in Schedule II and the ADSs to be sold by such Selling ShareholderShareholder hereunder and for the authorization, free execution and clear delivery by such Selling Shareholder of any liens, encumbrances, equities this Agreement have been obtained or made and claims (other than as imposed by the Securities Act or this Agreement), are in full force and effect; and such Selling Shareholder has full right, power and authority to effect enter into this Agreement and to sell, assign, transfer and deliver the Shares and the ADSs to be sold by such Selling Shareholder hereunder, in each case free and clear of all liens, security interests, charges, encumbrances, equities or claims of any kind.
(d) The execution and delivery by such Selling Shareholder of, and the performance by such Selling Shareholder of its obligations under, this Agreement and the irrevocable power of attorney, dated [·], 2004 (the “Power of Attorney”), appointing [·] as such Selling Shareholder’s attorney-in-fact to the extent set forth therein relating to the transactions contemplated hereby and by the Registration Statement, and the consummation of the transactions contemplated hereunder and thereunder, and the sale of the Shares or ADSs to be sold by such Selling Shareholder hereunder, did not, and delivery will not, contravene any provision of (x) applicable law, or the Articles of Association, business license or other constitutive documents of such SharesSelling Shareholder, (y) any agreement or other instrument binding upon such Selling Shareholder, or (z) any judgment, order or decree of any governmental body, agency or court having jurisdiction over such Selling Shareholder; and upon no Selling Shareholder’s Governmental Authorization or filing with any Governmental Agency is required for the delivery performance by such Selling Shareholder of its obligations under this Agreement and the applicable Purchase Documents, the sale of the Shares or ADSs to be sold by such Selling Shareholder hereunder, and the deposit of Shares with the HKSCC and with the Depositary against issuance of ADRs evidencing the ADSs to be delivered at each Time of Delivery (as defined below) by such Selling Shareholder, except (i) the registration of the Shares and the ADSs under the Securities Act, (ii) such Selling Shareholder’s Governmental Authorizations as have been obtained and are in full force and effect and copies of which have been furnished or made available to you and (iii) such Selling Shareholder’s Governmental Authorizations as may be required by the state securities or Blue Sky laws or any laws of jurisdictions outside the PRC and the United States in connection with the purchase and distribution of the Shares and the ADSs by or for the account of the Underwriters.
(e) Such Selling Shareholder has, and immediately prior to each Time of Delivery (as defined below) will have good and valid title to the Shares and the ADSs to be sold by such Selling Shareholder hereunder, free and clear of all liens, security interests, charges, encumbrances, equities or claims of any kind.
(f) The ADRs evidencing the Selling Shareholder ADSs are certificated securities (within the meaning of Section 8-102(a)(4) of the New York Uniform Commercial Code (the “UCC”)) in registered form and are not held by or through any securities intermediary (as defined in Section 8-102(a)(14) of the UCC).
(g) Upon payment for the Shares ADSs to be sold by such Selling Shareholder pursuant to this Agreement, good delivery of such ADSs, as directed by the Underwriters, to or such nominee as may be designated by the DTC, registration of such ADSs in the name of such nominee as may be designated by the DTC and marketable title thereto, free and clear the crediting of such ADSs on the books of DTC to securities accounts of the Underwriters (assuming that neither DTC nor any such Underwriter has notice of any liensadverse claim (within the meaning of Section 8-105 of the UCC) to such ADSs), encumbrances, equities and claims, of any kind, (A) DTC will be transferred a “protected purchaser” of such ADSs within the meaning of Section 8-303 of the UCC, (B) under Section 8-501 of the UCC, the Underwriters will acquire a valid “security entitlement” in respect of such ADSs, and (C) no action based on any “adverse claim” (within the meaning of Section 8-102 of the UCC) to such ADSs may be asserted against the Underwriters with respect to such security entitlement; for purposes of this representation, such Selling Shareholder may assume that when such payment, delivery and crediting occur, (x) such ADSs will have been registered in the name of a nominee designated by DTC, in each case, on the Company’s share registry in accordance with its Articles of Association, business license and other constitutive documents 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 Underwritersaccounts of the several Underwriters on the records of DTC will have been made pursuant to the UCC.
(bh) Such Selling Shareholder has duly executed and delivered the Custody Agreement and Power of Attorney Except as disclosed in the form previously delivered to the RepresentativesProspectus, appointing the persons named thereinno stamp or other issuance or transfer taxes or duties and no capital gains, and each of them as such Selling Shareholder's attorney-in-fact (the "Attorney-in-Fact") and as custodian (the "Custodian"). The Attorney-in-Fact is authorized to executeincome, deliver and perform this Agreement withholding or other taxes are payable by or on behalf of any of the Selling Shareholders to the PRC or Hong Kong or any political subdivision or taxing authority thereof or therein in connection with (i) the creation, allotment and issuance of the Shares, (ii) the deposit of the Shares by such Selling Shareholder with the Depositary against the issuance of ADRs evidencing the ADSs, (iii) the deposit with HKSCC of Shares by such Selling Shareholder, to deliver (iv) the Shares to be sold sale and delivery by such Selling Shareholder hereunderShareholders of the Shares and the ADSs to or for the respective accounts of the several Underwriters, to accept payment therefor, and otherwise to act on behalf of such Selling Shareholder in connection with the manner contemplated in this Agreement, including payment from the Offering proceeds of expenses incurred on behalf of such Selling Shareholder. Certificates, in suitable form for transfer by delivery or accompanied by duly executed instruments of transfer or assignment in blank, representing the Shares to be sold by such Selling Shareholder hereunder have been deposited with the Custodian pursuant to the Custody Agreement and Power of Attorney for the purpose of delivery pursuant to this Agreement. Such Selling Shareholder agrees that the shares of Common Stock represented by the certificates on deposit with the Custodian are subject to the interest of the Underwriters hereunder, that the arrangements made for such custody and the appointment of the Attorney-in-Fact are to that extent irrevocable, and that the obligations of such Selling Shareholder hereunder shall not be terminated except as provided in this Agreement and the Custody Agreement and Power of Attorney. If such Selling Shareholder should die or become incapacitated, or if any other event should occur, before the delivery of the Shares of such Selling Shareholder hereunder, the certificates for such Shares deposited with the Custodian shall be delivered by the Custodian in accordance with the terms and conditions of this Agreement as if such death, incapacity or other event had not occurred, regardless of whether the Custodian or the Attorney-in-Fact shall have received notice thereof.
(cv) Such Selling Shareholder, acting through his duly authorized Attorney-in-Fact, has duly executed and delivered this Agreement and the Custody Agreement and Power of Attorney; this Agreement constitutes a legal, valid and binding obligation of such Selling Shareholder, all authorizations and consents necessary for the execution and delivery of this Agreement Agreement, (vi) the sale and delivery by the several Underwriters of the ADSs and the Custody Agreement H Shares to the initial purchasers thereof in the manner contemplated in the Prospectus, or (vii) to the extent such Selling Shareholder is a party thereto, the Acquisition Transactions completed prior to the date hereof. Except as disclosed in the Prospectus, no stamp or other issuance or transfer taxes or duties and Power of Attorney no capital gains, income, withholding or other taxes are payable by or on behalf of the Underwriters to the PRC or Hong Kong or any political subdivision or taxing authority thereof or therein in connection with (i) the creation, allotment and issuance of the Shares, (ii) the deposit with the Depositary of Shares by such Selling Shareholder against issuance of ADRs evidencing ADSs, (iii) the deposit with HKSCC of Shares by such Selling Shareholder, (iv) the sale and delivery by such Selling Shareholder of the Shares and the ADSs to or for the respective accounts of the several Underwriters, in the manner contemplated in this Agreement, (v) the execution and delivery of this Agreement, (vi) the sale and delivery by the several Underwriters of the ADSs and the H Shares, respectively, to the initial purchasers thereof in the manner contemplated in the Prospectus.
(i) Neither such Selling Shareholder nor any of its subsidiaries has taken, or will take, directly or indirectly, any action which is designed to or which has constituted, or which might reasonably be expected to cause or result under the Exchange Act or the provisions of the Securities Ordinance of Hong Kong in stabilization or manipulation of the price of any security of the Company or any of the Subsidiaries to facilitate the sale or resale of the Shares or the ADSs or otherwise.
(j) Under the laws of the PRC, none of such Selling Shareholder and its subsidiaries nor any of its properties, assets or revenues are entitled to any right of immunity on the grounds of sovereignty from any legal action, suit or proceeding, from set-off or counterclaim, from the jurisdiction of any court, from services of process, from attachment prior to or in aid of execution of judgment, or from other legal process or proceeding for the sale giving of any relief or for the enforcement of any judgment. The irrevocable and delivery unconditional waiver and agreement of the Shares to be sold by such Selling Shareholder hereunder have been given, except as may be required by the Securities Act or state securities laws; and such Selling Shareholder has the legal capacity and full right, power and authority to execute in this Agreement not to plead or claim any such immunity in any legal action, suit or proceeding based on this Agreement is valid and binding under the Custody Agreement and Power laws of Attorneythe PRC.
(dk) The performance Except as disclosed in the Prospectus, the Shares delivered at each Time of this Agreement and the Custody Agreement and Power of Attorney and the consummation of the transactions contemplated hereby and thereby Delivery by such Selling Shareholder will not result in a breach or violation of, or conflict with, any of the terms or provisions of, or constitute a default be freely transferable by such Selling Shareholder; and there are no restrictions on subsequent transfers of the Shares under the laws of the PRC, Hong Kong or the United States.
(l) Except as disclosed in the Prospectus, there are no contracts, agreements or understandings between such Selling Shareholder under, and any indenture, mortgage, deed of trust, trust (constructive or other), loan agreement, lease, franchise, license or other agreement or instrument person that would give rise to which a valid claim against such Selling Shareholder or any of his or its properties is boundUnderwriter for a brokerage commission, or any statute, judgment, decree, order, rule or regulation of any court or governmental agency or body applicable to such Selling Shareholder or any of his, her or its properties.
(e) Such Selling Shareholder has not distributed nor, other than as permitted by the Securities Act and the Rules and Regulations, will distribute any prospectus finder’s fee or other offering material like payment in connection with the offer and sale Global Offering. Any certificate signed by any officer of each of the Shares other than any Preliminary Prospectus filed Selling Shareholders and delivered to the Global Coordinators or the U.S. Representatives and the International Representatives or counsel for the Underwriters in connection with the Commission or the Final Prospectus or other material permitted Global Offering shall be deemed a representation and warranty by the Securities Act.
(f) Such Selling Shareholder has reviewed and is familiar with the Registration Statement and the Preliminary Prospectus. To the knowledge of such Selling Shareholder, the Preliminary Prospectus does not include an untrue statement of a material fact or omit as to state a material fact necessary in order matters covered thereby, to make the statements therein, in the light of the circumstances under which they were made, not misleadingeach Underwriter.
Appears in 1 contract
Representations and Warranties of the Selling Shareholders. Each of the Selling Shareholders, Shareholder severally and not jointly, jointly represents and warrants to and agrees with, with each of the Underwriters Underwriter that:
(a) Such Selling Shareholder, at Shareholder is the First Closing Date, will have good and marketable title to lawful owner of the Shares set forth in Schedule II Securities to be sold by such Selling ShareholderShareholder pursuant to this Agreement and has, and on the First Delivery Date will have, good and clear title to such Securities, free of all restrictions on transfer and clear of any liens, encumbrances, equities and claims other Liens.
(other than as imposed by the Securities Act or this Agreement)b) Such Selling Shareholder has, and on the First Delivery Date will have, full legal right, power and authority authority, and all Authorizations required by law, to effect (i) enter into (A) this Agreement and (B) the sale Custody Agreement and delivery Power of Attorney signed by such Selling Shareholder and SunTrust Bank, Atlanta, as Custodian (the "Custody Agreement"), relating to (1) the deposit of the Securities to be sold by such Selling Shareholder and (2) the appointment by such Selling Shareholder of certain individuals as such Selling Shareholder's attorneys-in-fact (the "Attorneys"), to the extent set forth therein, relating to the transactions contemplated hereby, thereby and by the Registration Statement, (ii) sell, assign, transfer and deliver the Securities to be sold by such Selling Shareholder in the manner provided herein and therein and (iii) perform such Selling Shareholder's obligations hereunder and thereunder. Pursuant to such Custody Agreement, such Selling Shareholder has, among other things, authorized the Attorneys, or any one of them, to execute and deliver on such Selling Shareholder's behalf this Agreement and any other document that they, or any one of them, may deem necessary or desirable in connection with the transactions contemplated hereby and thereby and to deliver the Securities to be sold by such Selling Shareholder pursuant to this Agreement.
(c) This Agreement has been duly executed and delivered by or on behalf of such Shares; Selling Shareholder.
(d) The Custody Agreement of such Selling Shareholder has been duly executed and upon delivered by such Selling Shareholder and is enforceable against such Selling Shareholder, except to the extent that (i) enforceability may be limited by applicable bankruptcy, insolvency, liquidation, reorganization, moratorium and other laws relating to or affecting the rights and remedies of creditors generally and (ii) the remedy of specific performance and other forms of equitable relief may be subject to certain defenses and to the discretion of the court before which a proceeding may be brought.
(e) Upon delivery of and payment for the Shares Securities to be sold by such Selling Shareholder pursuant to this Agreement, good and marketable clear title thereto, free and clear of any liens, encumbrances, equities and claims, of any kind, to such Securities will be transferred pass to the Underwriters, free of all restrictions on transfer and other Liens.
(bf) Such Neither the execution, delivery and performance of this Agreement nor the consummation of any of the other Transactions will (with or without the giving of notice of the lapse of time or both) (i) result in any breach of or default under, or the creation or imposition of any Lien (other than any Lien created pursuant to this Agreement) on or against such Selling Shareholder has duly executed and delivered the Custody Agreement and Power or any of Attorney in the form previously delivered to the Representatives, appointing the persons named therein, and each of them as such Selling Shareholder's attorney-in-fact (the "Attorney-in-Fact") and as custodian (the "Custodian"). The Attorney-in-Fact is authorized to execute, deliver and perform this Agreement on behalf of such Selling Shareholder, to deliver the Shares to be sold by such Selling Shareholder hereunder, to accept payment therefor, and otherwise to act on behalf of such Selling Shareholder in connection with this Agreement, including payment from the Offering proceeds of expenses incurred on behalf of such Selling Shareholder. Certificates, in suitable form for transfer by delivery properties or accompanied by duly executed instruments of transfer or assignment in blank, representing the Shares to be sold by such Selling Shareholder hereunder have been deposited with the Custodian assets pursuant to the Custody Agreement and Power of Attorney for the purpose of delivery pursuant to this Agreement. Such Selling Shareholder agrees that the shares of Common Stock represented by the certificates on deposit with the Custodian are subject to the interest of the Underwriters hereunder, that the arrangements made for such custody and the appointment of the Attorney-in-Fact are to that extent irrevocable, and that the obligations of such Selling Shareholder hereunder shall not be terminated except as provided in this Agreement and the Custody Agreement and Power of Attorney. If such Selling Shareholder should die or become incapacitated, or if any other event should occur, before the delivery of the Shares of such Selling Shareholder hereunder, the certificates for such Shares deposited with the Custodian shall be delivered by the Custodian in accordance with the terms and conditions of this Agreement as if such death, incapacity or other event had not occurred, regardless of whether the Custodian or the Attorney-in-Fact shall have received notice thereof.
(c) Such Selling Shareholder, acting through his duly authorized Attorney-in-Fact, has duly executed and delivered this Agreement and the Custody Agreement and Power of Attorney; this Agreement constitutes a legal, valid and binding obligation of such Selling Shareholder, all authorizations and consents necessary for the execution and delivery of this Agreement and the Custody Agreement and Power of Attorney on behalf of such Selling Shareholder and for the sale and delivery of the Shares to be sold by such Selling Shareholder hereunder have been given, except as may be required by the Securities Act or state securities laws; and such Selling Shareholder has the legal capacity and full right, power and authority to execute this Agreement and the Custody Agreement and Power of Attorney.
(d) The performance of this Agreement and the Custody Agreement and Power of Attorney and the consummation of the transactions contemplated hereby and thereby by such Selling Shareholder will not result in a breach or violation of, or conflict with, any of the terms or provisions of, or constitute a default by such Selling Shareholder underto, any indenture, mortgage, deed of trust, trust (constructive or other), loan agreement, lease, franchise, license lease or other agreement or instrument to which such Selling Shareholder is a party or any of his or its properties is bound, or any statute, judgment, decree, order, rule or regulation of any court or governmental agency or body applicable to by which such Selling Shareholder or any of hissuch Selling Shareholder's properties or assets is bound, her (ii) violate any constitution, statute, regulation, rule, order or its propertieslaw or any judicial or administrative decree, writ, judgment or order to which such Selling Shareholder or any of such Selling Shareholder's properties or assets is subject or (iii) result in the suspension, termination or revocation of any Authorization of such Selling Shareholder or any other impairment of such Selling Shareholder's rights with respect thereto.
(eg) Such No Authorization or other action by, or notice to or filing with, any court, governmental authority or regulatory body is required on the part of such Selling Shareholder has not distributed norfor the consummation of any of the Transactions, other than except (i) such as permitted by the Securities Act have been obtained and the Rules and Regulations, will distribute any prospectus (ii) such as may be required under state securities or other offering material Blue Sky laws in connection with the offer offer, sale and sale distribution of the Shares other than any Preliminary Prospectus filed with the Commission or the Final Prospectus or other material permitted Securities by the Securities ActUnderwriters.
(fh) Such Selling Shareholder has reviewed and is familiar with the Registration Statement and the Preliminary Prospectus. To the knowledge of such Selling Shareholder, (i) the Preliminary Registration Statement (other than any Rule 462(b) Registration Statement to be filed by the Company after the effectiveness of this Agreement), when it became effective, did not contain and, as amended, if applicable, will not contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading and (ii) the Prospectus does not include an contain and each Preliminary Prospectus, at the time of filing thereof, did not contain, any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading, except that the representations and warranties set forth in this Section 2(h) do not apply to statements or omissions in the Registration Statement, the Prospectus or any such Preliminary Prospectus made in reliance upon and in conformity with information relating to any Underwriter furnished in writing to the Company by such Underwriter through you expressly for use therein.
(i) At any time during the period described in Section 6(d), if there is any change in the information referred to in Section 2(h), such Selling Shareholder will immediately notify you of such change.
(j) Each certificate signed by or on behalf of such Selling Shareholder and delivered to the Underwriters or counsel for the Underwriters shall be deemed to be a representation and warranty by such Selling Shareholder to the Underwriters as to the matters covered thereby.
Appears in 1 contract
Representations and Warranties of the Selling Shareholders. Each of the Selling Shareholders, severally and not jointly, Shareholder represents and warrants to and agrees with, each of the Underwriters Underwriter that:
(a) Such Selling Shareholder, at Shareholder is the First Closing Date, will have good and marketable title to lawful owner of the Shares set forth in Schedule II to be sold by such Selling ShareholderShareholder pursuant to this Agreement and has, and on the Closing Date will have, good and clear title to such Shares, free and clear of any all restrictions on transfer, liens, encumbrances, security interests, equities and claims whatsoever.
(other than as imposed b) The Shares to be sold by the Securities Act or this Agreement)such Selling Shareholder have been duly authorized and are validly issued, fully paid and non-assessable.
(c) Such Selling Shareholder has, and on the Closing Date will have, full legal right, power and authority authority, and all authorization and approval required by law, to effect enter into this Agreement, the sale Custody Agreement signed by such Selling Shareholder Xxxxxxxx Xxxxxxxxx Professional Corporation, as Custodian, relating to the deposit of the Shares to be sold by such Selling Shareholder (the "Custody Agreement") and delivery the Power of Attorney of such Shares; Selling Shareholder appointing Xxxxxxx X. Xxxxx and upon Xxxx X. Xxxxx, and each of them as such Selling Shareholder's attorneys-in-fact (the "Attorneys") to the extent set forth therein, relating to the transactions contemplated hereby and by the Registration Statement and the Custody Agreement (the "Power of Attorney") and to sell, assign, transfer and deliver the Shares to be sold by such Selling Shareholder in the manner provided herein and therein.
(d) This Agreement has been duly authorized, executed and delivered by or on behalf of such Selling Shareholder.
(e) The Custody Agreement of such Selling Shareholder has been duly authorized, executed and delivered by such Selling Shareholder and is a valid and binding agreement of such Selling Shareholder, enforceable in accordance with its terms.
(f) The Power of Attorney of such Selling Shareholder has been duly authorized, executed and delivered by such Selling Shareholder and is a valid and binding instrument of such Selling Shareholder, enforceable in accordance with its terms, and, pursuant to such Power of Attorney, such Selling Shareholder has, among other things, authorized the Attorneys, or any one of them, to execute and deliver on such Selling Shareholder's behalf this Agreement and any other document that they, or any one of them, may deem necessary or desirable in connection with the transactions contemplated hereby and thereby and to deliver the Shares to be sold by such Selling Shareholder pursuant to this Agreement.
(g) Upon delivery of and payment for the Shares to be sold by such Selling Shareholder pursuant to this Agreement, good and marketable clear title theretoto such Shares will pass to the Underwriters, free and clear of any all restrictions on transfer, liens, encumbrances, security interests, equities and claims, of any kind, will be transferred to the Underwritersclaims whatsoever.
(b) Such Selling Shareholder has duly executed and delivered the Custody Agreement and Power of Attorney in the form previously delivered to the Representatives, appointing the persons named therein, and each of them as such Selling Shareholder's attorney-in-fact (the "Attorney-in-Fact") and as custodian (the "Custodian"). The Attorney-in-Fact is authorized to execute, deliver and perform this Agreement on behalf of such Selling Shareholder, to deliver the Shares to be sold by such Selling Shareholder hereunder, to accept payment therefor, and otherwise to act on behalf of such Selling Shareholder in connection with this Agreement, including payment from the Offering proceeds of expenses incurred on behalf of such Selling Shareholder. Certificates, in suitable form for transfer by delivery or accompanied by duly executed instruments of transfer or assignment in blank, representing the Shares to be sold by such Selling Shareholder hereunder have been deposited with the Custodian pursuant to the Custody Agreement and Power of Attorney for the purpose of delivery pursuant to this Agreement. Such Selling Shareholder agrees that the shares of Common Stock represented by the certificates on deposit with the Custodian are subject to the interest of the Underwriters hereunder, that the arrangements made for such custody and the appointment of the Attorney-in-Fact are to that extent irrevocable, and that the obligations of such Selling Shareholder hereunder shall not be terminated except as provided in this Agreement and the Custody Agreement and Power of Attorney. If such Selling Shareholder should die or become incapacitated, or if any other event should occur, before the delivery of the Shares of such Selling Shareholder hereunder, the certificates for such Shares deposited with the Custodian shall be delivered by the Custodian in accordance with the terms and conditions of this Agreement as if such death, incapacity or other event had not occurred, regardless of whether the Custodian or the Attorney-in-Fact shall have received notice thereof.
(c) Such Selling Shareholder, acting through his duly authorized Attorney-in-Fact, has duly executed and delivered this Agreement and the Custody Agreement and Power of Attorney; this Agreement constitutes a legal, valid and binding obligation of such Selling Shareholder, all authorizations and consents necessary for the execution and delivery of this Agreement and the Custody Agreement and Power of Attorney on behalf of such Selling Shareholder and for the sale and delivery of the Shares to be sold by such Selling Shareholder hereunder have been given, except as may be required by the Securities Act or state securities laws; and such Selling Shareholder has the legal capacity and full right, power and authority to execute this Agreement and the Custody Agreement and Power of Attorney.
(dh) The execution, delivery and performance of this Agreement and the Custody Agreement and Power of Attorney of such Selling Shareholder by or on behalf of such Selling Shareholder, the compliance by such Selling Shareholder with all the provisions hereof and thereof and the consummation of the transactions contemplated hereby and thereby by such Selling Shareholder will not result in a breach (i) require any consent, approval, authorization or violation other order of, or conflict qualification with, any court or governmental body or agency (except such as may be required under the securities or Blue Sky laws of the various states), (ii) conflict with or constitute a breach of any of the terms or provisions of, or constitute a default by under, the organizational documents of such Selling Shareholder, if such Selling Shareholder underis not an individual, or any indenture, mortgage, deed of trust, trust (constructive or other), loan agreement, leasemortgage, franchise, license lease or other agreement or instrument to which such Selling Shareholder is a party or any of his or its properties is bound, or any statute, judgment, decree, order, rule or regulation of any court or governmental agency or body applicable to by which such Selling Shareholder or any property of his, her or its properties.
(e) Such such Selling Shareholder has not distributed noris bound or (iii) violate or conflict with any applicable law or any rule, other than as permitted by the Securities Act and the Rules and Regulationsregulation, will distribute judgment, order or decree of any prospectus court or other offering material in connection with the offer and sale of the Shares other than any Preliminary Prospectus filed with the Commission governmental body or the Final Prospectus or other material permitted by the Securities Act.
(f) Such agency having jurisdiction over such Selling Shareholder has reviewed and is familiar with the Registration Statement and the Preliminary Prospectus. To the knowledge or any property of such Selling Shareholder.
(i) The information in the Registration Statement under the caption "Principal and Selling Shareholders" which specifically relates to such Selling Shareholder does not, and will not on the Preliminary Prospectus does not include an Closing Date, 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, in the light of the circumstances under which they were made, not misleading.
(j) At any time during the period described in Section 5(d), if there is any change in the information referred to in Section 7(i), such Selling Shareholder will immediately notify you of such change.
(k) Each certificate signed by or on behalf of such Selling Shareholder and delivered to the Underwriters or counsel for the Underwriters shall be deemed to be a representation and warranty by such Selling Shareholder to the Underwriters as to the matters covered thereby.
Appears in 1 contract
Representations and Warranties of the Selling Shareholders. Each of the Selling Shareholders, severally and not jointly, represents represents, warrants and warrants covenants to and agrees with, each of the Underwriters Underwriter that:
(a) Such Selling Shareholder, Shareholder at the First Closing Date, Date will have good and marketable valid title to the Shares set forth in Schedule II to be sold by such Selling ----------- Shareholder, free and clear of any liens, encumbrances, equities and claims (other than as imposed by the Securities Act or this Agreement), and full right, power and authority to effect the sale and delivery of such Shares; and upon the delivery of and payment for the Shares to be sold by such Selling Shareholder pursuant to this Agreement, good and marketable valid title thereto, free and clear of any liens, encumbrances, equities and claims, of any kind, will be transferred to the Underwriters.
(b) Such Selling Shareholder has duly executed and delivered the Custody Agreement and Power of Attorney (the "Custody Agreement") in the form previously delivered to the RepresentativesUnderwriters, appointing the persons named thereinand , and each of them them, as such Selling Shareholder's attorney-in-fact (the "Attorney-Attorney- in-Fact") and , as custodian (the "Custodian"). The Attorney-in-Fact is authorized to execute, deliver and perform this Agreement on behalf of such Selling Shareholder, to deliver the Shares to be sold by such Selling Shareholder hereunder, to accept payment therefor, therefor and otherwise to act on behalf of such Selling Shareholder in connection with this Agreement, including payment from the Offering proceeds of expenses incurred on behalf of such Selling Shareholder. Certificates, in suitable form for transfer by delivery or accompanied by duly executed instruments of transfer or assignment in blank, representing the Shares to be sold by such Selling Shareholder hereunder have been deposited with the Custodian pursuant to the Custody Agreement and Power of Attorney for the purpose of delivery pursuant to this Agreement. Such Selling Shareholder agrees that the shares of Common Stock represented by the certificates on deposit with the Custodian are subject to the interest interests of the Company, the Underwriters and the other Selling Shareholders hereunder, that the arrangements made for such custody and the appointment of the Attorney-in-Fact are to that extent irrevocable, and that the obligations of such Selling Shareholder hereunder shall not be terminated except as provided in this Agreement and the Custody Agreement and Power of AttorneyAgreement. If such Selling Shareholder should die die, become disabled or be declared incompetent, dissolve or become incapacitatedinsolvent, or if any other event should occur, occur before the delivery of the Shares of such Selling Shareholder hereunder, the certificates for such Shares deposited with the Custodian shall be delivered by the Custodian in accordance with the terms and conditions of this Agreement as if such death, incapacity disability, incompetency, dissolution, insolvency or other event had not occurred, regardless of whether or not the Custodian or the Attorney-in-Fact shall have received notice thereof.
(c) Such Selling Shareholder, acting through his its duly authorized Attorney-in-Fact, has duly executed and delivered this Agreement and the Custody Agreement and Power of AttorneyAgreement; this Agreement constitutes a legal, valid and binding obligation of such Selling Shareholder, ; all authorizations and consents necessary for the execution and delivery of this Agreement and the Custody Agreement and Power of Attorney on behalf of such Selling Shareholder and for the sale and delivery of the Shares to be sold by such Selling Shareholder hereunder have been given, except as may be required by the Securities Act or state securities lawslaws or the NASD; and such Selling Shareholder has the legal capacity and full right, power and authority to execute this Agreement and the Custody Agreement and Power of AttorneyAgreement.
(d) The performance of this Agreement and the Custody Agreement and Power of Attorney and the consummation of the transactions contemplated hereby and thereby by such each of the Selling Shareholder Shareholders will not result in a material breach or violation of, or material conflict with, any of the terms or provisions of, or constitute a material default by such Selling Shareholder under, any indenture, mortgage, deed of trust, trust (constructive or other), loan agreement, lease, franchise, license or other agreement or instrument to which such Selling Shareholder or any of his or its properties is bound, or any statute, or any judgment, decree, order, rule or regulation of or any court or governmental agency or body applicable to such Selling Shareholder or any of his, her or its properties.
(e) Such Selling Shareholder has not distributed nor, other than as permitted by the Securities Act and the Rules and Regulations, will not distribute any prospectus or other offering material in connection with the offer and sale of the Shares other than any Preliminary Prospectus preliminary prospectus prepared and filed by the Company with the Commission or the Final Prospectus or other material permitted by the Securities Act.
(f) Such The representations and warranties of the Company contained in Section 3 of this Agreement are true and correct in all material respects; such Selling Shareholder has reviewed and is familiar with the Registration Statement as originally filed with the Commission and the Preliminary Prospectuspreliminary prospectus contained therein. To the knowledge of such Selling Shareholder, the Preliminary Prospectus The preliminary prospectus does not include an untrue statement of a material fact 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; other than as disclosed to the Underwriters, such Selling Shareholder is not prompted to sell the Shares to be sold by such Selling Shareholder by any material, non-public information concerning the Company that is not fully and fairly disclosed in the preliminary prospectus or the Prospectus.
(g) To the extent that any statements or omissions made in the Registration Statement, any preliminary prospectus, the Prospectus or any amendment or supplement thereto are made in reliance upon and in conformity with written information furnished to the Company by such Selling Shareholder expressly for use therein, such Registration Statement, preliminary prospectus and Prospectus and any amendments or supplements thereto did not and will not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein not misleading.
(h) No approval, consent, order, authorization, designation, declaration or filing by or with any regulatory body, administrative or other governmental body is necessary in connection with the execution and delivery of this Agreement by such Selling Shareholder, and the consummation by it of the transactions herein contemplated (other than as required by the Act, state securities laws and the NASD).
(i) Any certificates signed by or on behalf of such Selling Shareholder as such and delivered to the Representatives or to counsel for the Representatives shall be deemed a representation and warranty by such Selling Shareholder to each Underwriter as to the matters covered thereby.
(j) 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 such Selling Shareholder agrees to deliver to you prior to or at the Closing Date a properly completed and executed United States Treasury Department Form W-9 (or other applicable form or statement specified by Treasury Department regulations in lieu thereof).
(k) Such Selling Shareholder has not taken and will not take, directly or indirectly, any action intended to constitute or which has constituted, or which might reasonably be expected to cause or result in, stabilization or manipulation of the price of the Common Stock.
Appears in 1 contract
Samples: Underwriting Agreement (Satellink Communications Inc)
Representations and Warranties of the Selling Shareholders. Each of the Selling Shareholders, severally and not jointly, represents represents, warrants and warrants covenants to and agrees with, each of the Underwriters Underwriter that:
(a) Such Selling Shareholder, Shareholder at the First Closing Date, Date will have good and marketable valid title to the Shares set forth in Schedule II to be sold by such Selling Shareholder, free and clear of any liens, encumbrances, equities and claims (other than as imposed by the Securities Act or this Agreement), and full right, power and authority to effect the sale and delivery of such Shares; and upon the delivery of and payment for the Shares to be sold by such Selling Shareholder pursuant to this Agreement, good and marketable valid title thereto, free and clear of any liens, encumbrances, equities and claims, of any kind, will be transferred to the Underwriters.
(b) Such Selling Shareholder has duly executed and delivered the Custody Agreement and Selling Shareholders' Power of Attorney (the "Power of Attorney") in the form previously delivered to the Representatives, appointing the persons named thereinJohn X. Xxxxxxxx, and Xx., Xxitx X. Xxxxxxx xxx Robexx X. Xxxxx, xxd each of them as such Selling Shareholder's attorney-in-fact (the "Attorney-in-Fact") and Wyche, Burgess, Freexxx & Xarhxx, X.A., as custodian (the "Custodian"). The Attorney-in-Fact is authorized to execute, deliver and perform this Agreement on behalf of such Selling Shareholder, to deliver the Shares to be sold by such Selling Shareholder hereunder, to accept payment therefor, therefor and otherwise to act on behalf of such Selling Shareholder in connection with this Agreement, including payment from the Offering proceeds of expenses incurred on behalf of such Selling Shareholder. Certificates, in suitable form for transfer by delivery or accompanied by duly executed instruments of transfer or assignment in blank, representing the Shares to be sold by such Selling Shareholder hereunder have been deposited with the Custodian pursuant to the Custody Agreement and Power of Attorney for the purpose of delivery pursuant to this Agreement. Such Selling Shareholder agrees that the shares of Common Stock represented by the certificates on deposit with the Custodian are subject to the interest of the Underwriters hereunder, that the arrangements made for such custody and the appointment of the Attorney-in-Fact are to that extent irrevocable, and that the obligations of such Selling Shareholder hereunder shall not be terminated except as provided in this Agreement and the Custody Agreement and Power of AttorneyAgreement. If such Selling Shareholder should die or become incapacitateddissolve, or if any other event should occur, occur before the delivery of the Shares of such Selling Shareholder hereunder, the certificates for such Shares deposited with the Custodian shall be delivered by the Custodian in accordance with the terms and conditions of this Agreement as if such death, incapacity dissolution or other event had not occurred, regardless of whether or not the Custodian or the Attorney-in-Fact shall have received notice thereof.
(c) Such Selling Shareholder, acting through his its duly authorized Attorney-in-Fact, has duly executed and delivered this Agreement, the Selling Shareholders' Custody Agreement (the "Custody Agreement") and the Custody Agreement and Power of Attorney; this Agreement constitutes a legal, legal valid and binding obligation of such Selling ShareholderShareholder subject to applicable bankruptcy, all authorizations insolvency, reorganization, moratorium and consents necessary for the execution similar laws affecting creditors' rights and delivery of this Agreement and the Custody Agreement and Power of Attorney on behalf of such Selling Shareholder and for the sale and delivery of the Shares to be sold by such Selling Shareholder hereunder have been given, except as may be required by the Securities Act or state securities laws; and such Selling Shareholder has the legal capacity and full right, power and authority to execute this Agreement and the Custody Agreement and Power of Attorney.
(d) The performance of this Agreement and the Custody Agreement and Power of Attorney and the consummation of the transactions contemplated hereby and thereby by such Selling Shareholder will not result in a breach or violation of, or conflict with, any of the terms or provisions of, or constitute a default by such Selling Shareholder under, any indenture, mortgage, deed of trust, trust (constructive or other), loan agreement, lease, franchise, license or other agreement or instrument to which such Selling Shareholder or any of his or its properties is bound, or any statute, judgment, decree, order, rule or regulation of any court or governmental agency or body applicable to such Selling Shareholder or any of his, her or its properties.
(e) Such Selling Shareholder has not distributed nor, other than as permitted by the Securities Act and the Rules and Regulations, will distribute any prospectus or other offering material in connection with the offer and sale of the Shares other than any Preliminary Prospectus filed with the Commission or the Final Prospectus or other material permitted by the Securities Act.
(f) Such Selling Shareholder has reviewed and is familiar with the Registration Statement and the Preliminary Prospectus. To the knowledge of such Selling Shareholder, the Preliminary Prospectus does not include an untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading.subject,
Appears in 1 contract
Representations and Warranties of the Selling Shareholders. Each of the Selling Shareholders, Shareholder severally and not jointly, represents and warrants to and agrees with, with each of the Underwriters that:
(a) Such Selling ShareholderIt has the power, at capacity and authority to enter into and execute this Agreement and, on the First Closing Date, it will have good the power, capacity and marketable title authority to enter into and execute each applicable Deed of Transfer (as defined below) of such Selling Shareholder and, if applicable, such Selling Shareholder’s Power of Attorney (as defined below).
(b) This Agreement has been duly authorized, executed and delivered by or on behalf of such Selling Shareholder.
(i) The execution and delivery by such Selling Shareholder of, and the performance by such Selling Shareholder of its obligations under, this Agreement, each of such Selling Shareholder’s deeds of transfer, to be dated the Closing Date, pursuant to which the Shares set forth in Schedule II to be sold by such Selling Shareholder will be transferred by such Selling Shareholder to or as directed by the Underwriters in accordance with this Agreement (all such deeds of transfer to be executed and delivered by the Selling Shareholders, the “Deeds of Transfer”), and the power of attorney appointing certain individuals as such Selling Shareholder’s attorneys-in-fact to the extent set forth therein, relating to the transactions contemplated hereby and by the Registration Statement (all such powers of attorney to be executed and delivered by the Selling Shareholders, the “Powers of Attorney”) will not contravene (A) any provision of applicable law or (B) the certificate of incorporation, memorandum or articles of association or by-laws or other constituent documents of such Selling Shareholder if such Selling Shareholder is not a natural person, (C) any agreement or other instrument binding upon such Selling Shareholder or (D) any judgment, order or decree of any governmental body, agency or court having jurisdiction over such Selling Shareholder or any of its subsidiaries, except with respect to (A), (C) and (D) insofar as would not reasonably be expected to have a Material Adverse Effect or reasonably be expected to have a material adverse effect on the public offering of the Shares or the consummation of any other transaction contemplated thereby and (ii) no consent, approval, authorization or order of, or qualification with, any governmental body or agency is required for the performance by such Selling Shareholder of its obligations under this Agreement, each of such Selling Shareholder’s Deeds of Transfer or, if applicable, such Selling Shareholder’s Power of Attorney, except (A) such as have been obtained under the Securities Act or the Exchange Act, (B) such as may be required by the securities or Blue Sky laws of the various U.S. states in connection with the offer and sale of the Shares, and (C) such consent, approval, authorization or order of, or qualification with, which failure to obtain would not reasonably be expected to have a Material Adverse Effect or a material adverse effect on the public offering of the Shares or the consummation of any other transaction contemplated thereby.
(d) Such Selling Shareholder has, and on the Closing Date will have, valid title to the Shares to be sold by such Selling Shareholder on such Closing Date, free and clear of any all security interests, claims, liens, encumbrancesequities or other encumbrances and the legal right and power, equities and claims all authorizations and approvals required by law, to enter into this Agreement, each applicable Deed of Transfer of such Selling Shareholder and, if applicable, such Selling Shareholder’s Power of Attorney and to sell, transfer and deliver the Shares to be sold by such Selling Shareholder on such Closing Date or a security entitlement in respect of such Shares. Such Selling Shareholder, at each of the time of signing and consummation of each applicable Deed of Transfer of such Selling Shareholder, will have the power (other than beschikkingsbevoegd) to sell and deliver such Selling Shareholder’s Shares to be sold pursuant to such Deed of Transfer, as imposed directed by the Securities Act Underwriters, to Cede & Co. (“Cede”) or this Agreementsuch other nominee as may be designated by the Depository Trust Company (“DTC”), and full rightsuch Selling Shareholder’s Shares will be, power at each such time, free and authority to effect the sale clear of rights of pledge, usufruct and delivery other encumbrances.
(e) Such Selling Shareholder’s Power of Attorney, if applicable, has been duly authorized, executed and delivered by such Selling Shareholder and is a valid and binding instrument of such Shares; Selling Shareholder. Each applicable Deed of Transfer of such Selling Shareholder, at the Closing Date, will have been duly authorized, executed and upon the delivery delivered by such Selling Shareholder and will be a valid and binding agreement of and such Selling Shareholder.
(f) Upon payment for the Shares to be sold by such Selling Shareholder pursuant to this Agreement, good delivery of such Shares, as directed by the Underwriters, to Cede or such other nominee as may be designated by the DTC, registration of such Shares in the name of Cede or such other nominee and marketable title thereto, free and clear the crediting of such Shares on the books of DTC to securities accounts of the Underwriters (assuming that neither DTC nor any such Underwriter has notice of any liensadverse claim (within the meaning of Section 8-105 of the New York Uniform Commercial Code (the “UCC”)) to such Shares), encumbrances(A) DTC shall be a “protected purchaser” of such Shares within the meaning of Section 8-303 of the UCC, equities (B) under Section 8-501 of the UCC, the Underwriters will acquire a valid security entitlement in respect of such Shares and claims(C) no action based on any “adverse claim”, within the meaning of any kindSection 8-102 of the UCC, to such Shares may be meritoriously asserted against the Underwriters with respect to such security entitlement; provided that, for purposes of this representation, such Selling Shareholder may assume that when such payment, delivery and crediting occur, (a) such Shares will have been registered in the name of Cede or another nominee designated by DTC, in each case on the Company’s share registry in accordance with its certificate of incorporation, bylaws, other organizational documents and applicable law, (b) DTC will be transferred registered as a “clearing corporation” within the meaning of Section 8-102 of the UCC, (c) appropriate entries to the accounts of the several Underwriters on the records of DTC will have been made pursuant to the UCC and (d) the law of the State of New York is the securities intermediary’s jurisdiction for purposes of Article 8 of the UCC; provided further that this representation is subject to the following qualifications: (i) 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 other securities intermediaries and the ownership interests of the Underwriters, (ii) 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 (iii) if at any time DTC or any 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.
(bg) Such Selling Shareholder has duly executed and delivered (i) Each part of the Custody Agreement and Power of Attorney in the form previously delivered to the RepresentativesRegistration Statement, appointing the persons named thereinwhen such part became effective, did not contain, and each such part, as amended or supplemented, if applicable, did not or will not contain, on the date of them any such amendment or supplement, any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading, (ii) the Registration Statement as such Selling Shareholder's attorney-in-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 "Attorney-in-Fact") Registration Statement and each part thereof, as of the date it became effective and as custodian (the "Custodian"). The Attorney-in-Fact is authorized to execute, deliver and perform this Agreement on behalf of such Selling Shareholder, to deliver the Shares to be sold by such Selling Shareholder hereunder, to accept payment therefor, and otherwise to act on behalf of such Selling Shareholder in connection with this Agreement, including payment from the Offering proceeds of expenses incurred on behalf of such Selling Shareholder. Certificates, in suitable form for transfer by delivery or accompanied by duly executed instruments of transfer or assignment in blank, representing the Shares to be sold by such Selling Shareholder hereunder have been deposited with the Custodian pursuant to the Custody Agreement and Power of Attorney for the purpose of delivery pursuant to this Agreement. Such Selling Shareholder agrees that the shares of Common Stock represented by the certificates on deposit with the Custodian are subject to the interest of the Underwriters hereunderdate hereof, that the arrangements made for such custody and the appointment of the Attorney-in-Fact are to that extent irrevocabledid and, and that the obligations of such Selling Shareholder hereunder shall not be terminated except as provided amended or supplemented, if applicable, will comply in this Agreement and the Custody Agreement and Power of Attorney. If such Selling Shareholder should die or become incapacitated, or if any other event should occur, before the delivery of the Shares of such Selling Shareholder hereunder, the certificates for such Shares deposited all material respects with the Custodian shall be delivered by the Custodian in accordance with the terms and conditions of this Agreement as if such death, incapacity or other event had not occurred, regardless of whether the Custodian or the Attorney-in-Fact shall have received notice thereof.
(c) Such Selling Shareholder, acting through his duly authorized Attorney-in-Fact, has duly executed and delivered this Agreement and the Custody Agreement and Power of Attorney; this Agreement constitutes a legal, valid and binding obligation of such Selling Shareholder, all authorizations and consents necessary for the execution and delivery of this Agreement and the Custody Agreement and Power of Attorney on behalf of such Selling Shareholder and for the sale and delivery of the Shares to be sold by such Selling Shareholder hereunder have been given, except as may be required by the Securities Act or state securities laws; and such Selling Shareholder has the legal capacity and full right, power and authority to execute this Agreement and the Custody Agreement and Power of Attorney.
(d) The performance of this Agreement and the Custody Agreement and Power of Attorney and the consummation of the transactions contemplated hereby and thereby by such Selling Shareholder will not result in a breach or violation of, or conflict with, any of the terms or provisions of, or constitute a default by such Selling Shareholder under, any indenture, mortgage, deed of trust, trust (constructive or other), loan agreement, lease, franchise, license or other agreement or instrument to which such Selling Shareholder or any of his or its properties is bound, or any statute, judgment, decree, order, rule or regulation of any court or governmental agency or body applicable to such Selling Shareholder or any of his, her or its properties.
(e) Such Selling Shareholder has not distributed nor, other than as permitted by the Securities Act and the Rules applicable rules and Regulations, will distribute any prospectus or other offering material in connection with the offer and sale regulations of the Shares other than Commission thereunder, (iv) the Prospectus (as amended or supplemented, if applicable) and each preliminary prospectus filed as part of the Registration Statement as originally filed or as part of any Preliminary Prospectus amendment thereto, or filed with the Commission or the Final Prospectus or other material permitted by pursuant to Rule 424 under the Securities Act.
(f) Such Selling Shareholder has reviewed , when filed, on the date hereof and is familiar at the Applicable Time complied, and on the Closing Date will, comply in all material respects with the Registration Statement Securities Act and the Preliminary Prospectus. To applicable rules and regulations of the knowledge Commission thereunder , (v) the Time of such Selling ShareholderSale Prospectus does not, and at the Applicable Time and on the Closing Date, the Preliminary Prospectus does not include an Time of Sale Prospectus, as then amended or supplemented by the Company, if applicable, will not, contain any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading, (vi) each broadly available road show, if any, when considered together with the Time of Sale Prospectus, does not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading and (vii) the Prospectus (as amended or supplemented, if applicable), on the date of any filing with the Commission, on the date hereof, at the Applicable Time and on the Closing Date, did or does not and will not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading, provided that the representations and warranties set forth in this paragraph (g) are limited to statements or omissions based upon or in conformity with information relating to such Selling Shareholder furnished in writing by or on behalf of such Selling Shareholder specifically for inclusion in the documents referred to above in this paragraph (g), it being understood that in each case such information consists solely of (i) the name of such Selling Shareholder and (ii) the number of Shares owned and proposed to be sold by such Selling Shareholder (the names of all Selling Shareholders and all of the amounts of Shares owned and proposed to be sold by the Selling Shareholders, collectively, the “Selling Shareholder Information”).
(h) Such Selling Shareholder has not taken and will not take, directly or indirectly, any action that is designed to or that has constituted or that could 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.
Appears in 1 contract
Samples: Underwriting Agreement (Philips Pension Trustees LTD)
Representations and Warranties of the Selling Shareholders. Each of the Selling Shareholders, severally and not jointly, represents and warrants to and agrees with, with each of the Underwriters that:
(a) Such This Agreement has been duly authorized, executed and delivered by or on behalf of such Selling Shareholder.
(b) The execution and delivery by such Selling Shareholder of, and the performance by such Selling Shareholder of its obligations under, this Agreement and the Irrevocable Power of Attorney and Custody Agreement signed by such Selling Shareholder appointing certain individuals as such Selling Shareholder's attorneys-in-fact to the extent set forth therein, relating to the transactions contemplated hereby and by the Registration Statement, and [EquiServe Trust Company], as Custodian, relating to the deposit of the Shares to be sold by such Selling Shareholder (the "POWER OF ATTORNEY AND CUSTODY AGREEMENT") will not contravene any provision of applicable law, or any agreement or other instrument binding upon such Selling Shareholder or any judgment, order or decree of any governmental body, agency or court having jurisdiction over such Selling Shareholder, at and no consent, approval, authorization or order of, or qualification with, any governmental body or agency is required for the First performance by such Selling Shareholder of its obligations under this Agreement or the Power of Attorney and Custody Agreement of such Selling Shareholder, except such as may be required by the securities or Blue Sky laws of the various states in connection with the offer and sale of the Shares.
(c) Such Selling Shareholder has, and on the Closing DateDate will have, will have good and marketable valid title to the Shares set forth in Schedule II to be sold by such Selling Shareholder and the legal right and power, and all authorization and approval required by law, to enter into this Agreement, the Power of Attorney and Custody Agreement and to sell, transfer and deliver the Shares to be sold by such Selling Shareholder.
(d) The Shares to be sold by such Selling Shareholder pursuant to this Agreement have been duly authorized and are validly issued, free fully paid and clear non-assessable.
(e) The Power of any liensAttorney and Custody Agreement has been duly authorized, encumbrances, equities executed and claims (other than as imposed delivered by the Securities Act or this Agreement), such Selling Shareholder and full right, power is a valid and authority to effect the sale and delivery binding agreement of such Shares; and upon the delivery Selling Shareholder.
(f) Delivery of and payment for the Shares to be sold by such Selling Shareholder pursuant to this Agreement, good and marketable Agreement will pass title thereto, to such Shares free and clear of any security interests, claims, liens, encumbrances, equities and claims, of any kind, will be transferred to the Underwritersother encumbrances.
(bi) Such Selling Shareholder has duly executed and delivered 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 Custody Agreement and Power of Attorney in the form previously delivered to the Representatives, appointing the persons named thereinstatements therein not misleading, and each of them as such Selling Shareholder's attorney-in-fact (ii) the "Attorney-in-Fact") and as custodian (the "Custodian"). The Attorney-in-Fact is authorized to execute, deliver and perform this Agreement on behalf of such Selling Shareholder, to deliver the Shares to be sold by such Selling Shareholder hereunder, to accept payment therefor, and otherwise to act on behalf of such Selling Shareholder in connection with this Agreement, including payment from the Offering proceeds of expenses incurred on behalf of such Selling Shareholder. Certificates, in suitable form for transfer by delivery or accompanied by duly executed instruments of transfer or assignment in blank, representing the Shares to be sold by such Selling Shareholder hereunder have been deposited with the Custodian pursuant to the Custody Agreement and Power of Attorney for the purpose of delivery pursuant to this Agreement. Such Selling Shareholder agrees that the shares of Common Stock represented by the certificates on deposit with the Custodian are subject to the interest of the Underwriters hereunder, that the arrangements made for such custody and the appointment of the Attorney-in-Fact are to that extent irrevocable, and that the obligations of such Selling Shareholder hereunder shall not be terminated except as provided in this Agreement and the Custody Agreement and Power of Attorney. If such Selling Shareholder should die or become incapacitated, or if any other event should occur, before the delivery of the Shares of such Selling Shareholder hereunder, the certificates for such Shares deposited with the Custodian shall be delivered by the Custodian in accordance with the terms and conditions of this Agreement as if such death, incapacity or other event had not occurred, regardless of whether the Custodian or the Attorney-in-Fact shall have received notice thereof.
(c) Such Selling Shareholder, acting through his duly authorized Attorney-in-Fact, has duly executed and delivered this Agreement and the Custody Agreement and Power of Attorney; this Agreement constitutes a legal, valid and binding obligation of such Selling Shareholder, all authorizations and consents necessary for the execution and delivery of this Agreement and the Custody Agreement and Power of Attorney on behalf of such Selling Shareholder and for the sale and delivery of the Shares to be sold by such Selling Shareholder hereunder have been given, except as may be required by the Securities Act or state securities laws; and such Selling Shareholder has the legal capacity and full right, power and authority to execute this Agreement and the Custody Agreement and Power of Attorney.
(d) The performance of this Agreement and the Custody Agreement and Power of Attorney and the consummation of the transactions contemplated hereby and thereby by such Selling Shareholder will not result in a breach or violation of, or conflict with, any of the terms or provisions of, or constitute a default by such Selling Shareholder under, any indenture, mortgage, deed of trust, trust (constructive or other), loan agreement, lease, franchise, license or other agreement or instrument to which such Selling Shareholder or any of his or its properties is bound, or any statute, judgment, decree, order, rule or regulation of any court or governmental agency or body applicable to such Selling Shareholder or any of his, her or its properties.
(e) Such Selling Shareholder has not distributed nor, other than as permitted by the Securities Act and the Rules and Regulations, will distribute any prospectus or other offering material in connection with the offer and sale of the Shares other than any Preliminary Prospectus filed with the Commission or the Final Prospectus or other material permitted by the Securities Act.
(f) Such Selling Shareholder has reviewed and is familiar with the Registration Statement and the Preliminary Prospectus. To the knowledge of such Selling Shareholder, the Preliminary Prospectus does not include an 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 in order to make the statements therein, in the light of the circumstances under which they were made, not misleading, except that the representations and warranties set forth in this paragraph 2(g) do not apply to statements or omissions in the Registration Statement or the Prospectus based upon information relating to any Underwriter furnished to the Company in writing by such Underwriter through the Representatives expressly for use therein.
Appears in 1 contract
Representations and Warranties of the Selling Shareholders. Each of the Selling ShareholdersShareholder, severally severally, and not jointly, represents and warrants to to, and agrees with, each of the several Underwriters and the Company that:
(ai) Such Selling Shareholder, at the First Closing Date, will have good and marketable title to the Shares set forth in Schedule II to be sold by such Selling Shareholder, free and clear of any liens, encumbrances, equities and claims (other than as imposed by the Securities Act or this Agreement), and Shareholder has full right, corporate power and authority to effect enter into this Agreement, the sale Power of Attorney and delivery of such Shares; the Custody Agreement (as hereinafter defined) and upon to sell, assign, transfer and deliver to the delivery of and payment for Underwriters the Shares to be sold by such Selling Shareholder pursuant to hereunder; the execution and delivery of this Agreement, good the Power of Attorney and marketable title thereto, free and clear the Custody Agreement have been duly authorized by all necessary action of any liens, encumbrances, equities and claims, of any kind, will be transferred to the Underwriters.
(b) Such such Selling Shareholder; such Selling Shareholder has duly executed and delivered this Agreement, the Power of Attorney and the Custody Agreement; and each of this Agreement, the Power of Attorney and the Custody Agreement is a valid and Power of Attorney in the form previously delivered to the Representatives, appointing the persons named therein, and each of them as such Selling Shareholder's attorney-in-fact (the "Attorney-in-Fact") and as custodian (the "Custodian"). The Attorney-in-Fact is authorized to execute, deliver and perform this Agreement on behalf binding agreement of such Selling Shareholder, enforceable in accordance with its terms.
(ii) No consent, approval, authorization, order or declaration of or from, or registration, qualification or filing with, any court or governmental agency or body is required for the sale of the Shares to deliver be sold by such Selling Shareholder or the consummation of the transactions contemplated by this Agreement, the Power of Attorney or the Custody Agreement, except the registration of such Shares under the Act and such as may be required under state securities or blue sky laws in connection with the offer, sale and distribution of such Shares by the Underwriters.
(iii) The sale of the Shares to be sold by such Selling Shareholder under this Agreement and the execution, delivery and performance of this Agreement, the Power of Attorney and the Custody Agreement and the consummation of the transactions herein and therein contemplated will not conflict with, or (with or without the giving of notice or the passage of time or both) result in a breach of violation of any of the terms or provisions of, or constitute a default under, any indenture, mortgage, deed of trust, loan agreement, lease or other agreement or instrument to which such Selling Shareholder or any of its subsidiaries is a party or to which any of their respective properties or assets is subject, nor will such action conflict with or violate any provision of the Articles of Incorporation or Bylaws or other governing instruments of such Selling Shareholder or any of its subsidiaries or any constitution, statute, rule or regulation or any order, judgment or decree of any court or governmental agency or body having jurisdiction over such Selling Shareholder or any of such Selling Shareholder's properties or assets.
(iv) Such Selling Shareholder has, and immediately prior to the First Time of Delivery (as defined in Section 4 hereof), such Selling Shareholder will have, good and valid title to the Shares to be sold by such Selling Shareholder hereunder, free and clear of all restrictions on transfer, liens, security interests, pledges, charges, encumbrances, defects, shareholders' agreements, voting trusts, equities or claims of any nature whatsoever; and, upon delivery of such Shares against payment therefor as provided herein, good and valid title to accept payment thereforsuch Shares, free and clear of all liens, security interests, pledges, charges, encumbrances, defects, shareholders' agreements, voting trusts, equities or claims of any nature whatsoever, will pass to the several Underwriters.
(v) Neither such Selling Shareholder nor any of its officers, directors or affiliates has (A) taken, directly or indirectly, any action designed to cause or result in, or that has constituted or might reasonably be expected to constitute, the stabilization or manipulation of the price of any security of the Company to facilitate the sale or resale of the Shares or (B) since the filing of the Registration Statement (1) sold, bid for, purchased or paid anyone any compensation for soliciting purchases of, the Shares or (2) paid or agreed to pay to any person any compensation for soliciting another to purchase any other securities of the Company.
(vi) Certificates in negotiable form representing all of the Shares to be sold by such Selling Shareholder hereunder have been placed in custody under a Custody Agreement, in the form heretofore furnished to and approved by the Representatives, duly executed and delivered by such Selling Shareholder to SunTrust Bank, Inc., as custodian (the "Custodian"). Such Selling Shareholder has duly executed and delivered a Power of Attorney, in the form heretofore furnished to and approved by the Representatives, appointing the persons indicated in Schedule II hereto as such Selling Shareholder's attorneys-in-fact (the "Attorneys-in-Fact") with authority to execute and deliver this Agreement on behalf of such Selling Shareholder, to determine the purchase price to be paid by the Underwriters to the Selling Shareholders as provided in Section 2 hereof, to authorize the delivery of the Shares to be sold by such Selling Shareholder hereunder and otherwise to act on behalf of such Selling Shareholder in connection with this Agreement, including payment from the Offering proceeds of expenses incurred on behalf of such Selling Shareholder. Certificates, in suitable form for transfer transactions contemplated by delivery or accompanied by duly executed instruments of transfer or assignment in blank, representing the Shares to be sold by such Selling Shareholder hereunder have been deposited with the Custodian pursuant to the Custody Agreement and Power of Attorney for the purpose of delivery pursuant to this Agreement. Such Selling Shareholder agrees that the shares of Common Stock represented by the certificates on deposit with the Custodian are subject to the interest of the Underwriters hereunder, that the arrangements made for such custody and the appointment of the Attorney-in-Fact are to that extent irrevocable, and that the obligations of such Selling Shareholder hereunder shall not be terminated except as provided in this Agreement and the Custody Agreement and Power of Attorney. If such Selling Shareholder should die or become incapacitated, or if any other event should occur, before the delivery of the Shares of such Selling Shareholder hereunder, the certificates for such Shares deposited with the Custodian shall be delivered by the Custodian in accordance with the terms and conditions of this Agreement as if such death, incapacity or other event had not occurred, regardless of whether the Custodian or the Attorney-in-Fact shall have received notice thereofAgreement.
(c) Such Selling Shareholder, acting through his duly authorized Attorney-in-Fact, has duly executed and delivered this Agreement and the Custody Agreement and Power of Attorney; this Agreement constitutes a legal, valid and binding obligation of such Selling Shareholder, all authorizations and consents necessary for the execution and delivery of this Agreement and the Custody Agreement and Power of Attorney on behalf of such Selling Shareholder and for the sale and delivery of the Shares to be sold by such Selling Shareholder hereunder have been given, except as may be required by the Securities Act or state securities laws; and such Selling Shareholder has the legal capacity and full right, power and authority to execute this Agreement and the Custody Agreement and Power of Attorney.
(dvii) The performance of this Agreement and the Custody Agreement and Power of Attorney and the consummation of the transactions contemplated hereby and thereby by such Selling Shareholder will not result information in a breach or violation of, or conflict with, any of the terms or provisions of, or constitute a default by such Selling Shareholder under, any indenture, mortgage, deed of trust, trust (constructive or other), loan agreement, lease, franchise, license or other agreement or instrument to which such Selling Shareholder or any of his or its properties is bound, or any statute, judgment, decree, order, rule or regulation of any court or governmental agency or body applicable to such Selling Shareholder or any of his, her or its properties.
(e) Such Selling Shareholder has not distributed nor, other than as permitted by the Securities Act and the Rules and Regulations, will distribute any prospectus or other offering material in connection with the offer and sale of the Shares other than any Preliminary Prospectus filed with the Commission or the Final Prospectus or other material permitted by the Securities Act.
(f) Such Selling Shareholder has reviewed and is familiar with the Registration Statement under the caption "Principal and Selling Shareholders" which specifically relates to the Preliminary Prospectus. To undersigned does not, and will not on the knowledge date of such Selling Shareholderthe execution of the Underwriting Agreement or on the First Time of Delivery, the Preliminary Prospectus does not include an 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, in the light of the circumstances under which they were made, not misleading, and if there is any change in the information referred to in this paragraph, the undersigned will immediately notify you of such change. Each certificate signed by or on behalf of such Selling Shareholder and delivered to the Underwriters or counsel for the Underwriters shall be deemed to be a representation and warranty by such Selling Shareholder to the Underwriters as to the matters covered thereby. In order to document the Underwriters' compliance with the reporting and withholding provisions of the Code with respect to the transactions herein contemplated, each of the Selling Shareholders agrees to deliver to the Representatives prior to or at the First Time of Delivery (as hereinafter defined) a properly completed and executed United States Treasury Department Form W-9 (or other applicable form or statement specified by Treasury Department regulations in lieu thereof). Each of the Selling Shareholders specifically agrees that the Shares represented by the certificates held in custody for such Selling Shareholder under the Custody Agreement are subject to the interests of the Underwriters hereunder, and that the arrangements made by such Selling Shareholder for such custody, and the appointment by such Selling Shareholder of the Attorneys-in- Fact by the Power of Attorney, are irrevocable. Each of the Selling Shareholders specifically agrees that the obligations of the Selling Shareholders hereunder shall not be terminated by operation of law, whether in the case of a partnership or corporation, by the dissolution of such partnership or corporation or by the occurrence of any other event.
Appears in 1 contract
Samples: Underwriting Agreement (Netzee Inc)
Representations and Warranties of the Selling Shareholders. Each of the Selling Shareholders, severally Shareholders hereby represent and not jointly, represents and warrants warrant to and agrees with, each Underwriter as of the Underwriters thatdate hereof and as of the Option Shares Closing Date (if any), as follows:
(a) Such Selling Shareholder, at the First Closing Date, will have good and marketable title to the Shares set forth in Schedule II to be sold by such Selling Shareholder, free and clear of any liens, encumbrances, equities and claims (other than as imposed by the Securities Act or this Agreement), and full right, power and authority to effect the sale and delivery of such Shares; and upon the delivery of and payment for the Shares to be sold by such Selling Shareholder pursuant to this Agreement, good and marketable title thereto, free and clear of any liens, encumbrances, equities and claims, of any kind, will be transferred to the Underwriters.
(b) Such Each Selling Shareholder has duly caused an executed and delivered share transfer form in blank for the Custody Agreement and Power number of Attorney in the form previously delivered to the Representatives, appointing the persons named therein, and each of them as such Selling Shareholder's attorney-in-fact (the "Attorney-in-Fact") and as custodian (the "Custodian"). The Attorney-in-Fact is authorized to execute, deliver and perform this Agreement on behalf of such Selling Shareholder, to deliver the Shares to be sold by such Selling Shareholder hereunder, to accept payment therefor, and otherwise to act on behalf of such Selling Shareholder in connection with this Agreement, including payment from the Offering proceeds of expenses incurred on behalf of such Selling Shareholder. Certificates, in suitable form for transfer by delivery or accompanied by duly executed instruments of transfer or assignment in blank, representing the Option Shares to be sold by such Selling Shareholder hereunder have been deposited to be delivered to Australian Executor Trustees Limited (the “Custodian”), endorsed in blank or with blank stock powers duly executed, with a signature appropriately guaranteed, such share transfer forms to be held in custody by the Custodian for delivery, pursuant to the Custody Agreement and Power provisions of Attorney for the purpose of delivery pursuant to this Agreement. Such Selling Shareholder agrees that the shares of Common Stock represented by the certificates on deposit with the Custodian are subject to the interest of the Underwriters hereunder, that the arrangements made for such custody and the appointment of the Attorney-in-Fact are to that extent irrevocable, and that the obligations of such Selling Shareholder hereunder shall not be terminated except as provided in this Agreement and an agreement dated November , 2005 among the Custodian and the Selling Shareholders substantially in the form attached hereto as Exhibit B (the “Custody Agreement and Agreement”).
(b) Each Selling Shareholder has granted an irrevocable power of attorney substantially in the form attached hereto as Exhibit C (the “Power of Attorney. If ”) to the person named therein, on behalf of each such Selling Shareholder should die or become incapacitatedShareholder, or if to execute and deliver this Agreement and any other event should occur, before document necessary or desirable in connection with the delivery of transactions contemplated hereby and to deliver the Option Shares of such to be sold by each Selling Shareholder hereunder, the certificates for such Shares deposited with the Custodian shall be delivered by the Custodian in accordance with the terms and conditions of this Agreement as if such death, incapacity or other event had not occurred, regardless of whether the Custodian or the Attorney-in-Fact shall have received notice thereofpursuant hereto.
(c) Such This Agreement, the Custody Agreement, the Power of Attorney and the Lock-Up Agreement have each been duly authorized, executed and delivered by or on behalf of each Selling Shareholder and, assuming due authorization, execution and delivery by the other parties thereto, constitutes the valid and legally binding agreement of each Selling Shareholder, acting through his duly authorized Attorney-in-Fact, has duly executed and delivered this Agreement and the Custody Agreement and Power of Attorney; this Agreement constitutes a legal, valid and binding obligation of enforceable against each such Selling Shareholder, all authorizations and consents necessary for the Shareholder in accordance with its terms.
(d) The execution and delivery by each Selling Shareholder of this Agreement and the Custody Agreement and Power of Attorney on behalf of such performance by each Selling Shareholder and for of its obligations under this Agreement, including the sale and delivery of the Shares to be sold by each such Selling Shareholder hereunder have been given, except as may be required by the Securities Act or state securities laws; and such Selling Shareholder has the legal capacity and full right, power and authority to execute this Agreement and the Custody Agreement and Power of Attorney.
(d) The performance of this Agreement and the Custody Agreement and Power of Attorney and the consummation of the transactions contemplated hereby herein and thereby compliance by such each Selling Shareholder with its obligations hereunder, do not and will not result in not, whether with or without the giving of notice or the passage of time or both, (i) violate or contravene any provision of the charter or bylaws or other organizational instrument of any Selling Shareholder, if applicable, or any applicable law, statute, regulation, or filing or any agreement or other instrument binding upon any Selling Shareholder or any judgment, order or decree of any governmental body, agency or court having jurisdiction over any Selling Shareholder, (ii) conflict with or constitute a breach or violation of, or conflict withdefault under, or result in the creation or imposition of any tax, lien, charge or encumbrance upon the Option Shares to be sold by any Selling Shareholder or any property or assets of any Selling Shareholder pursuant to the terms or provisions of, or constitute a default by such Selling Shareholder under, of any indenture, mortgage, deed of trust, trust (constructive or other), loan agreement, lease, franchise, license or other agreement or instrument to which such any Selling Shareholder is a party or by which any Selling Shareholder may be bound or to which any of his the property or its properties assets of any Selling Shareholder is boundsubject or (iii) require any consent, approval, authorization or any statute, judgment, decree, order, rule order of or regulation of registration or filing with any court or governmental agency or body applicable to having jurisdiction over it, except such Selling Shareholder or any of his, her or its properties.
(e) Such Selling Shareholder has not distributed nor, other than as permitted may be required by the Securities Act and Blue Sky laws of the Rules and Regulations, will distribute any prospectus or other offering material various states in connection with the offer and sale of the Shares other than which have been or will be effected in accordance with this Agreement.
(e) Each Selling Shareholder has, and on the Firm Shares Closing Date and the Option Share Closing Date, if applicable, will have, valid and marketable title to the Option Shares to be sold by such Selling Shareholder free and clear of any Preliminary Prospectus filed with the Commission or the Final Prospectus lien, claim, security interest or other material permitted by encumbrance, including, without limitation, any restriction on transfer, except as otherwise described in the Securities ActRegistration Statement and Prospectus.
(f) Such Each Selling Shareholder has, and on the Firm Shares Closing Date and the Option Share Closing Date, if applicable, will have, full legal right, power and authority, and any approval required by law, to sell, assign, transfer and deliver the Option Shares to be sold by such Selling Shareholder in the manner provided by this Agreement.
(g) Upon delivery of and payment for the Option Shares to be sold by each Selling Shareholder pursuant to this Agreement, assuming each Underwriter has reviewed no notice of any adverse claim, the several Underwriters will receive valid and is familiar with marketable title to such Option Shares free and clear of any lien, claim, mortgage, pledge, security interest or other encumbrance.
(h) All information relating to each Selling Shareholder furnished in writing by such Selling Shareholder expressly for use in the Registration Statement and the Preliminary Prospectus. To the knowledge of such Selling ShareholderProspectus is, the Preliminary Prospectus and on each Closing Date will be, true, correct, and complete, and does not include an not, and on each 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.
(i) Each Selling Shareholder has reviewed the Registration Statement and Prospectus and, although such Selling Shareholder has not independently verified the accuracy or completeness of all the information contained therein, nothing has come to the attention of such Selling Shareholder that would lead such Selling Shareholder to believe that (i) on the Effective Date, the Registration Statement contained any untrue statement of a material fact or omitted to state any material fact required to be stated therein in order to make the statements made therein not misleading and (ii) on the Effective Date the Prospectus contained and, on each Closing Date contains, any untrue statement of a material fact or omitted or omits to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading.
(j) The sale of Option Shares by each Selling Shareholder pursuant to this Agreement is not prompted by such Selling Shareholder’s knowledge of any material information concerning the Company which is not set forth in the Prospectus.
(k) No Selling Shareholder has taken and will not take, directly or indirectly, any action designed to or that might reasonably be expected to cause or result in stabilization or manipulation of the price of any security of the Company to facilitate the sale or resale of the Shares.
(l) No Selling Shareholder has actual knowledge that any representation or warranty of the Company set forth in Section 2 above is untrue or inaccurate in any material respect.
(m) The representations and warranties of each Selling Shareholder in the Custody Agreement are, and on each Closing Date will be, true and correct.
Appears in 1 contract
Representations and Warranties of the Selling Shareholders. Each of the Selling ShareholdersShareholder, severally and not jointly, represents and warrants to and agrees with, with each of the Underwriters that:
(a) Such This Agreement has been duly authorized, executed and delivered by or on behalf of such Selling Shareholder.
(b) The execution and delivery by such Selling Shareholder of, at and the First performance by such Selling Shareholder of its obligations under, this Agreement and the share transfer agreements, each to be dated the applicable Closing Date, will have good and marketable title pursuant to which the Shares set forth in Schedule II to be sold by such Selling Shareholder will be transferred by such Selling Shareholder to the Underwriters in accordance with this Agreement (the “Share Transfer Agreements”) and (other than in the case of Sensata Investment Company S.C.A.) the Custody Agreement and Agreement to Sell signed by such Selling Shareholder and Sensata Technologies, Inc., as Custodian, relating to the Shares to be sold by such Selling Shareholder (the “Custody Agreement”), the Power of Attorney appointing certain individuals as such Selling Shareholder’s attorneys-in-fact to the extent set forth therein, relating to the transactions contemplated hereby and by the Registration Statement (the “Power of Attorney”) and the private deeds of issuance, each to be dated the applicable Closing Date, pursuant to which the Shares to be sold by such Selling Shareholder will be issued to such Selling Shareholder in connection with the exercise by such Selling Shareholder of outstanding stock options (the “Deeds of Issuance”) will not contravene any provision of applicable law, or the articles of organization, articles of association, certificate of incorporation, by-laws or other constituent documents of such Selling Shareholder (if such Selling Shareholder is a corporation, Luxembourg société en commandite par actions or other business entity), or any agreement or other instrument binding upon such Selling Shareholder or any judgment, order or decree of any governmental body, agency or court having jurisdiction over such Selling Shareholder, and no consent, approval, authorization or order of, or qualification with, any governmental body or agency is required for the performance by such Selling Shareholder of its obligations under this Agreement or the Share Transfer Agreements, Custody Agreement, Power of Attorney or Deeds of Issuance of such Selling Shareholder, except such as may be required by the securities or Blue Sky laws of the various states in connection with the offer and sale of the Shares.
(c) Such Selling Shareholder has, and on the Closing Date will have, valid title to, or a valid “security entitlement” within the meaning of Section 8-501 of the New York Uniform Commercial Code in respect of, the Shares to be sold by such Selling Shareholder free and clear of any all security interests, claims, liens, encumbrancesequities or other encumbrances and the legal right and power, equities and claims (other than as imposed all authorization and approval required by the Securities Act or law, to enter into this Agreement), the Custody Agreement and the Power of Attorney, as applicable, and full rightto sell, power transfer and authority deliver the Shares to effect the sale and delivery be sold by such Selling Shareholder or a security entitlement in respect of such Shares; .
(d) The Custody Agreement and upon the delivery Power of Attorney, to the extent such Selling Shareholder is a party thereto, have been duly authorized, executed and delivered by such Selling Shareholder and are valid and binding agreements of such Selling Shareholder. The Share Transfer Agreements and the Deeds of Issuance, to the extent such Selling Shareholder will be a party thereto, as of each Closing Date, will have been duly authorized, executed and delivered by such Selling Shareholder and will be valid and binding agreements of such Selling Shareholder.
(e) Upon payment for the Shares to be sold by such Selling Shareholder pursuant to this Agreement, good delivery of such Shares, as directed by the Underwriters, to Cede & Co. (“Cede”) or such other nominee as may be designated by the Depository Trust Company (“DTC”), registration of such Shares in the name of Cede or such other nominee and marketable title thereto, free and clear the crediting of such Shares on the books of DTC to securities accounts of the Underwriters (assuming that neither DTC nor any such Underwriter has notice of any liens, encumbrances, equities and claims, adverse claim (within the meaning of any kind, will be transferred to Section 8-105 of the Underwriters.
(b) Such Selling Shareholder has duly executed and delivered the Custody Agreement and Power of Attorney in the form previously delivered to the Representatives, appointing the persons named therein, and each of them as such Selling Shareholder's attorney-in-fact New York Uniform Commercial Code (the "Attorney-in-Fact"“UCC”)) and as custodian to such Shares), (the "Custodian"). The Attorney-in-Fact is authorized to execute, deliver and perform this Agreement on behalf A) DTC shall be a “protected purchaser” of such Selling ShareholderShares within the meaning of Section 8-303 of the UCC, (B) under Section 8-501 of the UCC, the Underwriters will acquire a valid security entitlement in respect of such Shares and (C) no action based on any “adverse claim”, within the meaning of Section 8-102 of the UCC, to deliver such Shares may be asserted against the Shares Underwriters with respect to be sold by such security entitlement; for purposes of this representation, such Selling Shareholder hereundermay assume that when such payment, to accept payment therefordelivery and crediting occur, and otherwise to act on behalf (x) such Shares will have been registered in the name of such Selling Shareholder in connection with this Agreement, including payment from the Offering proceeds of expenses incurred on behalf of such Selling Shareholder. CertificatesCede or another nominee designated by DTC, in suitable form for transfer by delivery or accompanied by duly executed instruments each case on the Company’s share registry in accordance with its certificate of transfer or assignment in blankincorporation, representing bylaws and applicable law, (y) DTC will be registered as a “clearing corporation” within the Shares meaning of Section 8-102 of the UCC and (z) appropriate entries to be sold by such Selling Shareholder hereunder the accounts of the several Underwriters on the records of DTC will have been deposited with the Custodian made pursuant to the Custody Agreement and Power of Attorney for the purpose of delivery pursuant to this Agreement. Such Selling Shareholder agrees that the shares of Common Stock represented by the certificates on deposit with the Custodian are subject to the interest of the Underwriters hereunder, that the arrangements made for such custody and the appointment of the Attorney-in-Fact are to that extent irrevocable, and that the obligations of such Selling Shareholder hereunder shall not be terminated except as provided in this Agreement and the Custody Agreement and Power of Attorney. If such Selling Shareholder should die or become incapacitated, or if any other event should occur, before the delivery of the Shares of such Selling Shareholder hereunder, the certificates for such Shares deposited with the Custodian shall be delivered by the Custodian in accordance with the terms and conditions of this Agreement as if such death, incapacity or other event had not occurred, regardless of whether the Custodian or the Attorney-in-Fact shall have received notice thereof.
(c) Such Selling Shareholder, acting through his duly authorized Attorney-in-Fact, has duly executed and delivered this Agreement and the Custody Agreement and Power of Attorney; this Agreement constitutes a legal, valid and binding obligation of such Selling Shareholder, all authorizations and consents necessary for the execution and delivery of this Agreement and the Custody Agreement and Power of Attorney on behalf of such Selling Shareholder and for the sale and delivery of the Shares to be sold by such Selling Shareholder hereunder have been given, except as may be required by the Securities Act or state securities laws; and such Selling Shareholder has the legal capacity and full right, power and authority to execute this Agreement and the Custody Agreement and Power of Attorney.
(d) The performance of this Agreement and the Custody Agreement and Power of Attorney and the consummation of the transactions contemplated hereby and thereby by such Selling Shareholder will not result in a breach or violation of, or conflict with, any of the terms or provisions of, or constitute a default by such Selling Shareholder under, any indenture, mortgage, deed of trust, trust (constructive or other), loan agreement, lease, franchise, license or other agreement or instrument to which such Selling Shareholder or any of his or its properties is bound, or any statute, judgment, decree, order, rule or regulation of any court or governmental agency or body applicable to such Selling Shareholder or any of his, her or its properties.
(e) Such Selling Shareholder has not distributed nor, other than as permitted by the Securities Act and the Rules and Regulations, will distribute any prospectus or other offering material in connection with the offer and sale of the Shares other than any Preliminary Prospectus filed with the Commission or the Final Prospectus or other material permitted by the Securities ActUCC.
(f) Such Selling Shareholder has reviewed and is familiar with not prompted by any information concerning the Company or its subsidiaries which is not set forth in the Time of Sale Prospectus to sell its Shares pursuant to this Agreement.
(i) The Registration Statement, when it became effective, did not contain and, as amended or supplemented, if applicable, will not contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading, (ii) the Registration Statement and the Preliminary Prospectus. To Prospectus comply and, as amended or supplemented, if applicable, will comply in all material respects with the knowledge Securities Act and the applicable rules and regulations of such Selling Shareholderthe Commission thereunder, (iii) the Time of Sale Prospectus does not, and at the time of each sale of the Shares in connection with the offering when the Prospectus is not yet available to prospective purchasers and at the Closing Date (as defined in Section 5), the Preliminary Prospectus does not include an Time of Sale Prospectus, as then amended or supplemented by the Company, if applicable, will not, contain any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading, (iv) each broadly available road show, if any, when considered together with the Time of Sale Prospectus, does not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading and (v) the Prospectus does not contain and, as amended or supplemented, if applicable, will not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading; except that the representations and warranties set forth in this paragraph 2(g) are made only as to statements or omissions made in reliance upon and in conformity with information furnished to the Company in writing by or on behalf of such Selling Shareholder specifically for use in the preparation of the Registration Statement, the Time of Sale Prospectus, the Prospectus or such other documents.
Appears in 1 contract
Samples: Underwriting Agreement (Sensata Technologies Holding N.V.)
Representations and Warranties of the Selling Shareholders. Each of Except with respect to the Share Repurchase Agreement and the Concurrent Share Repurchase for any Selling ShareholdersShareholder that is not a party to the Share Repurchase Agreement, each Selling Shareholder, severally and not jointly, represents and warrants to and agrees with, with each of the Underwriters that:
(a) Such Selling ShareholderThis Agreement has been duly authorized, at the First Closing Date, will have good executed and marketable title to the Shares set forth in Schedule II to be sold delivered by or on behalf of such Selling Shareholder, free and clear of any liens, encumbrances, equities and claims .
(other than as imposed by the Securities Act or this Agreement), and b) Such Selling Shareholder has full right, power and authority to execute and deliver the Share Repurchase Agreement and the Share Repurchase Agreement has been duly authorized, executed and delivered by such Selling Shareholder and remains in full force and effect in all material respects and constitutes a valid and binding agreement of such Selling Shareholder enforceable in accordance with its terms, except to the sale extent that enforcement thereof may be limited by bankruptcy, insolvency, reorganization or other laws affecting enforcement of creditors’ rights or by general equitable principles.
(c) The execution and delivery by such Selling Shareholder of, and the performance by such Selling Shareholder of its obligations under, this Agreement and the share transfer agreements, each to be dated the Closing Date, pursuant to which the Shares to be sold by such Selling Shareholder will be transferred by such Selling Shareholder to the Underwriters in accordance with this Agreement (the “Share Transfer Agreements”), the Share Repurchase Agreement and (other than in the case of Sensata Investment Company S.C.A., Asia Opportunity Fund II, L.P. and AOF II Employee Co-Invest Fund, L.P.) the Custody Agreement and Agreement to Sell signed by such Selling Shareholder and Sensata Technologies, Inc., as Custodian, relating to the Shares to be sold by such Selling Shareholder (the “Custody Agreement”), and (other than Asia Opportunity Fund II, L.P. and AOF II Employee Co-Invest Fund, L.P.) the Power of Attorney appointing certain individuals as such Selling Shareholder’s attorneys-in-fact to the extent set forth therein, relating to the transactions contemplated hereby and by the Registration Statement (the “Power of Attorney”) will not contravene any provision of applicable law, or the articles of organization, articles of association, certificate of incorporation, bylaws or other constituent documents of such Selling Shareholder (if such Selling Shareholder is a corporation, Luxembourg société en commandite par actions or other business entity), or any agreement or other instrument binding upon such Selling Shareholder or any judgment, order or decree of any governmental body, agency or court having jurisdiction over such Selling Shareholder, and no consent, approval, authorization or order of, or qualification with, any governmental body or agency is required for the performance by such Selling Shareholder of its obligations under this Agreement or the Share Transfer Agreements, the Share Repurchase Agreement, the Custody Agreement or Power of Attorney of such Selling Shareholder, except such as may be required by the securities or Blue Sky laws of the various states in connection with the offer and sale of the Shares.
(d) Such Selling Shareholder has, and on the Closing Date will have, valid title to, or a valid “security entitlement” within the meaning of Section 8-501 of the New York Uniform Commercial Code in respect of, the Shares to be sold by such Selling Shareholder free and clear of all security interests, claims, liens, equities or other encumbrances and the legal right and power, and all authorization and approval required by law, to enter into this Agreement, the Custody Agreement and the Power of Attorney, as applicable, and to sell, transfer and deliver the Shares to be sold by such Selling Shareholder or a security entitlement in respect of such Shares; .
(e) The Custody Agreement and upon the delivery Power of Attorney, to the extent such Selling Shareholder is a party thereto, have been duly authorized, executed and delivered by such Selling Shareholder and are valid and binding agreements of such Selling Shareholder, except to the extent that enforcement thereof may be limited by bankruptcy, insolvency, reorganization or other laws affecting enforcement of creditors’ rights or by general equitable principles. The Share Transfer Agreements as of the Closing Date will have been duly authorized, executed and delivered by such Selling Shareholder and will be valid and binding agreements of such Selling Shareholder.
(f) Upon payment for the Shares to be sold by such Selling Shareholder pursuant to this Agreement, good delivery of such Shares, as directed by the Underwriters, to Cede & Co. (“Cede”) or such other nominee as may be designated by the Depository Trust Company (“DTC”), registration of such Shares in the name of Cede or such other nominee and marketable title thereto, free and clear the crediting of such Shares on the books of DTC to securities account(s) of the Underwriters (assuming that neither DTC nor any such Underwriter has notice of any liensadverse claim (within the meaning of Section 8-105 of the New York Uniform Commercial Code (the “UCC”)) to such Shares), encumbrances(A) DTC shall be a “protected purchaser” of such Shares within the meaning of Section 8-303 of the UCC, equities (B) under Section 8-501 of the UCC, the Underwriters will acquire a valid security entitlement in respect of such Shares and claims(C) no action based on any “adverse claim”, within the meaning of any kindSection 8-102 of the UCC, to such Shares may be asserted against the Underwriters with respect to such security entitlement; for purposes of this representation, such Selling Shareholder may assume that when such payment, delivery and crediting occur, (x) such Shares will have been registered in the name of Cede or another nominee designated by DTC, in each case on the Company’s share registry in accordance with its certificate of incorporation, bylaws and applicable law, (y) DTC will be transferred registered as a “clearing corporation” within the meaning of Section 8-102 of the UCC and (z) appropriate entries to the Underwritersaccount(s) of the several Underwriters on the records of DTC will have been made pursuant to the UCC.
(bg) Such Selling Shareholder has duly executed and delivered is not prompted by any information concerning the Custody Agreement and Power of Attorney Company or its subsidiaries which is not set forth in the form previously delivered Time of Sale Prospectus to the Representatives, appointing the persons named therein, and each of them as such Selling Shareholder's attorney-in-fact (the "Attorney-in-Fact") and as custodian (the "Custodian"). The Attorney-in-Fact is authorized to execute, deliver and perform this Agreement on behalf of such Selling Shareholder, to deliver the sell its Shares to be sold by such Selling Shareholder hereunder, to accept payment therefor, and otherwise to act on behalf of such Selling Shareholder in connection with this Agreement, including payment from the Offering proceeds of expenses incurred on behalf of such Selling Shareholder. Certificates, in suitable form for transfer by delivery or accompanied by duly executed instruments of transfer or assignment in blank, representing the Shares to be sold by such Selling Shareholder hereunder have been deposited with the Custodian pursuant to the Custody Agreement and Power of Attorney for the purpose of delivery pursuant to this Agreement. Such Selling Shareholder agrees that the shares of Common Stock represented by the certificates on deposit with the Custodian are subject to the interest of the Underwriters hereunder, that the arrangements made for such custody and the appointment of the Attorney-in-Fact are to that extent irrevocable, and that the obligations of such Selling Shareholder hereunder shall not be terminated except as provided in this Agreement and the Custody Agreement and Power of Attorney. If such Selling Shareholder should die or become incapacitated, or if any other event should occur, before the delivery of the Shares of such Selling Shareholder hereunder, the certificates for such Shares deposited with the Custodian shall be delivered by the Custodian in accordance with the terms and conditions of this Agreement as if such death, incapacity or other event had not occurred, regardless of whether the Custodian or the Attorney-in-Fact shall have received notice thereof.
(ci) Such Selling ShareholderThe Registration Statement, acting through his duly authorized Attorney-in-Factwhen it became effective, has duly executed and delivered 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 to make the statements therein not misleading, (ii) the Registration Statement and the Custody Agreement and Power of Attorney; this Agreement constitutes a legalProspectus comply and, valid and binding obligation of such Selling Shareholderas amended or supplemented, if applicable, will comply in all authorizations and consents necessary for the execution and delivery of this Agreement and the Custody Agreement and Power of Attorney on behalf of such Selling Shareholder and for the sale and delivery of the Shares to be sold by such Selling Shareholder hereunder have been given, except as may be required by the Securities Act or state securities laws; and such Selling Shareholder has the legal capacity and full right, power and authority to execute this Agreement and the Custody Agreement and Power of Attorney.
(d) The performance of this Agreement and the Custody Agreement and Power of Attorney and the consummation of the transactions contemplated hereby and thereby by such Selling Shareholder will not result in a breach or violation of, or conflict with, any of the terms or provisions of, or constitute a default by such Selling Shareholder under, any indenture, mortgage, deed of trust, trust (constructive or other), loan agreement, lease, franchise, license or other agreement or instrument to which such Selling Shareholder or any of his or its properties is bound, or any statute, judgment, decree, order, rule or regulation of any court or governmental agency or body applicable to such Selling Shareholder or any of his, her or its properties.
(e) Such Selling Shareholder has not distributed nor, other than as permitted by material respects with the Securities Act and the Rules applicable rules and Regulationsregulations of the Commission thereunder, will distribute any prospectus or other offering material (iii) the Time of Sale Prospectus does not, and at the time of each sale of the Shares in connection with the offer offering when the Prospectus is not yet available to prospective purchasers and sale at the Closing Date (as defined in Section 5), the Time of the Shares other than any Preliminary Prospectus filed with the Commission Sale Prospectus, as then amended or the Final Prospectus or other material permitted supplemented by the Securities Act.
(f) Such Selling Shareholder has reviewed and is familiar with the Registration Statement and the Preliminary Prospectus. To the knowledge of such Selling ShareholderCompany, the Preliminary Prospectus does not include an 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 order the light of the circumstances under which they were made, not misleading and (iv) the Prospectus does not contain and, as amended or supplemented, if applicable, will not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading; except that the representations and warranties set forth in this paragraph 2(h) are made only as to statements or omissions made in reliance upon and in conformity with information furnished to the Company in writing by or on behalf of such Selling Shareholder specifically for use in the preparation of the Registration Statement, the Time of Sale Prospectus, the Prospectus or such other documents.
Appears in 1 contract
Samples: Underwriting Agreement (Sensata Technologies Holding N.V.)
Representations and Warranties of the Selling Shareholders. Each of the Selling Shareholders, severally and not jointly, Shareholders hereby represents and warrants to and agrees with, each Underwriter as of the Underwriters thatdate hereof, as of the Firm Shares Closing Date and as of each such Option Shares Closing Date (if any), as follows:
(a) Such The Selling Shareholder has caused certificates and/or a duly executed exercise notice ("Exercise Notice") for the number of Shares to be sold by such Selling Shareholder hereunder to be delivered to the Company (the "Custodian"), endorsed in blank or with blank stock powers duly executed, with a signature appropriately guaranteed, such certificates and/or Exercise Notice to be held in custody by the Custodian for delivery, pursuant to the provisions of this Agreement and an agreement dated May , 2005 among the Custodian, the Company and the Selling Shareholders in a form reasonably acceptable to the Representative (the "Custody Agreement").
(b) The Selling Shareholder has granted an irrevocable power of attorney in a form reasonably acceptable to the Representative (the "Power of Attorney") to the person named therein, on behalf of such Selling Shareholder, at to execute and deliver this Agreement and any other document necessary or desirable in connection with the First transactions contemplated hereby and to deliver the shares to be sold by such Selling Shareholder pursuant hereto.
(c) This Agreement, the Custody Agreement, the Power of Attorney and the Lock-Up Agreement have each been duly authorized, executed and delivered by or on behalf of the Selling Shareholder and, assuming due authorization, execution and delivery by the other parties thereto, constitutes the valid and legally binding agreement of such Selling Shareholder, enforceable against such Selling Shareholder in accordance with its terms.
(d) The execution and delivery by the Selling Shareholder of this Agreement and the performance by the Selling Shareholder of its obligations under this Agreement, including the sale and delivery of the Shares to be sold by the Selling Shareholder and the consummation of the transactions contemplated herein and compliance by the Selling Shareholder with its obligations hereunder, do not and will not, whether with our without the giving of notice or the passage of time or both, (i) violate or contravene any provision of the charter or bylaws or other organizational instrument of the Selling Shareholder, if applicable, or any applicable law, statute, regulation, or filing or any agreement or other instrument binding upon the Selling Shareholder or any judgment, order or decree of any governmental body, agency or court having jurisdiction over the Selling Shareholder, (ii) conflict with or constitute a breach of, or default under, or result in the creation or imposition of any tax, lien, charge or encumbrance upon the shares to be sold by the Selling Shareholder or any property or assets of the Selling Shareholder pursuant to the terms of any agreement or instrument to which the Selling Shareholder is a party or by which the Selling Shareholder may be bound or to which any of the property or assets of the Selling Shareholder is subject or (iii) require any consent, approval, authorization or order of or registration or filing with any court or governmental agency or body having jurisdiction over it, except such as may be required by state Blue Sky or non U.S. laws in connection with the offer and sale of the Shares which have been or will be effected in accordance with this Agreement.
(e) The Selling Shareholder has, and on the Firm Shares Closing Date and the Option Share Closing Date, if applicable, will have good have, valid and marketable title to the Shares set forth in Schedule II to be sold by such the Selling Shareholder, Shareholder free and clear of any lienslien, encumbrancesclaim, equities security interest or other encumbrance, including, without limitation, any restriction on transfer, except as otherwise described in the Registration Statement and claims Prospectus.
(other than as imposed by the Securities Act or this Agreement)f) The Selling Shareholder has, and on the Firm Shares Closing Date and the Option Share Closing Date, if applicable, will have, full legal right, power and authority authority, and any approval required by law, to effect sell, assign, transfer and deliver the sale and delivery of such Shares; and upon Shares to be sold by the Selling Shareholder in the manner provided by this Agreement.
(g) Upon delivery of and payment for the Shares to be sold by such the Selling Shareholder pursuant to this Agreement, good assuming each Underwriter has no notice of any adverse claim, the several Underwriters will receive valid and marketable title thereto, to such Shares free and clear of any lienslien, encumbrancesclaim, equities and claimsmortgage, of any kindpledge, will be transferred to the Underwriterssecurity interest or other encumbrance.
(bh) Such All information relating to the Selling Shareholder has duly executed and delivered furnished in writing by the Custody Agreement and Power of Attorney in the form previously delivered to the Representatives, appointing the persons named therein, and each of them as such Selling Shareholder's attorney-in-fact (the "Attorney-in-Fact") and as custodian (the "Custodian"). The Attorney-in-Fact is authorized to execute, deliver and perform this Agreement on behalf of such Selling Shareholder, to deliver the Shares to be sold by such Selling Shareholder hereunder, to accept payment therefor, and otherwise to act on behalf of such Selling Shareholder expressly for use in connection with this Agreement, including payment from the Offering proceeds of expenses incurred on behalf of such Selling Shareholder. Certificates, in suitable form for transfer by delivery or accompanied by duly executed instruments of transfer or assignment in blank, representing the Shares to be sold by such Selling Shareholder hereunder have been deposited with the Custodian pursuant to the Custody Agreement and Power of Attorney for the purpose of delivery pursuant to this Agreement. Such Selling Shareholder agrees that the shares of Common Stock represented by the certificates on deposit with the Custodian are subject to the interest of the Underwriters hereunder, that the arrangements made for such custody and the appointment of the Attorney-in-Fact are to that extent irrevocable, and that the obligations of such Selling Shareholder hereunder shall not be terminated except as provided in this Agreement and the Custody Agreement and Power of Attorney. If such Selling Shareholder should die or become incapacitated, or if any other event should occur, before the delivery of the Shares of such Selling Shareholder hereunder, the certificates for such Shares deposited with the Custodian shall be delivered by the Custodian in accordance with the terms and conditions of this Agreement as if such death, incapacity or other event had not occurred, regardless of whether the Custodian or the Attorney-in-Fact shall have received notice thereof.
(c) Such Selling Shareholder, acting through his duly authorized Attorney-in-Fact, has duly executed and delivered this Agreement and the Custody Agreement and Power of Attorney; this Agreement constitutes a legal, valid and binding obligation of such Selling Shareholder, all authorizations and consents necessary for the execution and delivery of this Agreement and the Custody Agreement and Power of Attorney on behalf of such Selling Shareholder and for the sale and delivery of the Shares to be sold by such Selling Shareholder hereunder have been given, except as may be required by the Securities Act or state securities laws; and such Selling Shareholder has the legal capacity and full right, power and authority to execute this Agreement and the Custody Agreement and Power of Attorney.
(d) The performance of this Agreement and the Custody Agreement and Power of Attorney and the consummation of the transactions contemplated hereby and thereby by such Selling Shareholder will not result in a breach or violation of, or conflict with, any of the terms or provisions of, or constitute a default by such Selling Shareholder under, any indenture, mortgage, deed of trust, trust (constructive or other), loan agreement, lease, franchise, license or other agreement or instrument to which such Selling Shareholder or any of his or its properties is bound, or any statute, judgment, decree, order, rule or regulation of any court or governmental agency or body applicable to such Selling Shareholder or any of his, her or its properties.
(e) Such Selling Shareholder has not distributed nor, other than as permitted by the Securities Act and the Rules and Regulations, will distribute any prospectus or other offering material in connection with the offer and sale of the Shares other than any Preliminary Prospectus filed with the Commission or the Final Prospectus or other material permitted by the Securities Act.
(f) Such Selling Shareholder has reviewed and is familiar with the Registration Statement and the Preliminary Prospectus. To the knowledge of such Selling ShareholderProspectus is, the Preliminary Prospectus and on each Closing Date will be, true, correct, and complete, and does not include an not, and on each 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.
(i) The Selling Shareholder has reviewed the Registration Statement and Prospectus and, although the Selling Shareholder has not independently verified the accuracy or completeness of all the information contained therein, nothing has come to the attention of the Selling Shareholder that would lead the Selling Shareholder to believe that (i) on the Effective Date, the Registration Statement contained any untrue statement of a material fact or omitted to state any material fact required to be stated therein in order to make the statements made therein not misleading and (ii) on the Effective Date the Prospectus contained and, on each Closing Date contains, no untrue statement of a material fact or omitted or omits to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading.
(j) The sale of Shares by the Selling Shareholder pursuant to this Agreement is not prompted by the Selling Shareholder's knowledge of any nonpublic material information concerning the Company or any of its subsidiaries.
(k) The Selling Shareholder has not taken and will not take, directly or indirectly, any action designed to or that might reasonably be expected to cause or result in stabilization or manipulation of the price of any security of the Company to facilitate the sale or resale of the Shares.
(l) The Selling Shareholder has no actual knowledge that any representation or warranty of the Company set forth in Section 2 above is untrue or inaccurate in any material respect.
(m) The representations and warranties of the Selling Shareholder in the Custody Agreement are and on each Closing Date will be, true and correct.
Appears in 1 contract
Representations and Warranties of the Selling Shareholders. Each of In addition to the representations and warranties set forth above, each Selling ShareholdersShareholder, severally and not jointly, represents and warrants to and agrees with, each of the Underwriters Underwriter that:
(a) Such Selling ShareholderShareholder is, and at the First Closing Date, will have good and marketable title to the Shares set forth in Schedule II to be sold by such Selling Shareholder, free and clear time of any liens, encumbrances, equities and claims (other than as imposed by the Securities Act or this Agreement), and full right, power and authority to effect the sale and delivery of such Shares; and upon the delivery of and payment for the Offered Shares to be sold by such Selling Shareholder pursuant hereunder on any Closing Date will be, the lawful and beneficial owner of such Offered Shares and has, and at the time of delivery of such Offered Shares or ADSs will have, valid and marketable title to this Agreementsuch Offered Shares or ADSs, and upon sale and delivery of, and payment for, such Offered Shares or ADSs, as provided herein, such Selling Shareholder will convey good and marketable title theretoto such Offered Shares or ADSs, free and clear of any security interests, liens, encumbrances, equities and or claims, of any kind, will be transferred to the Underwriters.
(b) Such Selling Shareholder has full right, power and capacity to enter into this Agreement and the escrow agreement between Brunswick UBS Russia Limited, as escrow agent (the “External Escrow Agent”), you and each of the Selling Shareholders (the “External Escrow Agreement”) and to perform its obligations hereunder and thereunder, and each of this Agreement and the External Escrow Agreement has been duly executed and delivered by the Custody Selling Shareholder; and in deciding to sell the Offered Shares or ADSs to be sold by him or it hereunder, the Selling Shareholder has relied upon his own judgment and such independent financial and legal advice as he has seen fit to obtain, and has not relied upon any of the Underwriters or their advisers for any such advice.
(c) The deposit with the Depositary by such Selling Shareholder of the Offered Shares to be sold by him or it against issuance of ADRs evidencing ADSs, the execution and delivery by such Selling Shareholder of this Agreement and Power the External Escrow Agreement and the performance by such Selling Shareholder of Attorney its obligations hereunder and thereunder, (i) do not require any consent, approval, authorization or order of, or filing with, any governmental agency or body or any court except such as have been obtained and such as may be required under the securities or “blue sky” laws of any jurisdiction in connection with the purchase and distribution by the Underwriters of the Offered Shares or ADSs in the form previously delivered manner contemplated herein and in the Final Prospectus and (ii) will not conflict with or result in a breach or violation of any of the terms and provisions of, or constitute a default under, (A) any statute, or any rule, regulation or order of any governmental agency or body or any court applicable to the Representatives, appointing the persons named therein, and each of them as such Selling Shareholder's attorney-in-fact (the "Attorney-in-Fact") and as custodian (the "Custodian"). The Attorney-in-Fact is authorized to execute, deliver and perform this Agreement on behalf of such Selling Shareholder, (B) any agreement or instrument to deliver which such Selling Shareholder is a party or by which such Selling Shareholder is bound or to which any of their respective properties is subject.
(d) No stamp or other issuance or transfer taxes or duties and no withholding or other taxes are payable by or on behalf of the Underwriters to the Russian Federation or any political subdivision or taxing authority thereof or therein (except any income, capital gains, withholding or other taxes imposed upon the Underwriters that would not have been imposed but for a connection between the Underwriters and the jurisdiction imposing such taxes, other than a connection arising as a result of the transaction contemplated by this Agreement, the Deposit Agreement or the External Escrow Agreement) in connection with (i) the sale and delivery by such Selling Shareholder of the Offered Shares to be sold by him or it, (ii) the deposit with the Depositary of the Offered Shares to be sold by such Selling Shareholder hereunder, to accept payment therefor, and otherwise to act on behalf against the issuance of such Selling Shareholder in connection with this Agreement, including payment from the Offering proceeds of expenses incurred on behalf of such Selling Shareholder. Certificates, in suitable form for transfer by delivery ADRs evidencing ADSs or accompanied by duly executed instruments of transfer or assignment in blank, representing the Shares to be sold by such Selling Shareholder hereunder have been deposited with the Custodian pursuant to the Custody Agreement and Power of Attorney for the purpose of delivery pursuant to this Agreement. Such Selling Shareholder agrees that the shares of Common Stock represented by the certificates on deposit with the Custodian are subject to the interest of the Underwriters hereunder, that the arrangements made for such custody and the appointment of the Attorney-in-Fact are to that extent irrevocable, and that the obligations of such Selling Shareholder hereunder shall not be terminated except as provided in this Agreement and the Custody Agreement and Power of Attorney. If such Selling Shareholder should die or become incapacitated, or if any other event should occur, before the delivery of the Shares of such Selling Shareholder hereunder, the certificates for such Shares deposited with the Custodian shall be delivered by the Custodian in accordance with the terms and conditions of this Agreement as if such death, incapacity or other event had not occurred, regardless of whether the Custodian or the Attorney-in-Fact shall have received notice thereof.
(ciii) Such Selling Shareholder, acting through his duly authorized Attorney-in-Fact, has duly executed and delivered this Agreement and the Custody Agreement and Power of Attorney; this Agreement constitutes a legal, valid and binding obligation of such Selling Shareholder, all authorizations and consents necessary for the execution and delivery of this Agreement and the Custody Agreement and Power of Attorney on behalf of such Selling Shareholder and for the sale and delivery of the Shares to be sold by such Selling Shareholder hereunder have been given, except as may be required by the Securities Act Underwriters of such Offered Shares or state securities laws; and such Selling Shareholder has ADSs to the legal capacity and full right, power and authority to execute this Agreement and initial purchasers thereof in the Custody Agreement and Power of Attorney.
(d) The performance of this Agreement and manner contemplated in the Custody Agreement and Power of Attorney and the consummation of the transactions contemplated hereby and thereby by such Selling Shareholder will not result in a breach or violation of, or conflict with, any of the terms or provisions of, or constitute a default by such Selling Shareholder under, any indenture, mortgage, deed of trust, trust (constructive or other), loan agreement, lease, franchise, license or other agreement or instrument to which such Selling Shareholder or any of his or its properties is bound, or any statute, judgment, decree, order, rule or regulation of any court or governmental agency or body applicable to such Selling Shareholder or any of his, her or its propertiesFinal Prospectus.
(e) Such 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, such Selling Shareholder has not distributed norwill deliver to you prior to or at the First Closing Date a properly completed and executed United States Treasury Department Form W-8, other than as permitted by the Securities Act and the Rules and RegulationsW-9, will distribute any prospectus or other offering material applicable form or statement specified by Treasury Department regulations in connection with the offer and sale of the Shares other than any Preliminary Prospectus filed with the Commission or the Final Prospectus or other material permitted by the Securities Actlieu thereof.
(f) Such Selling Shareholder has reviewed taken all actions necessary to dispose of the proceeds from the sale of the Offered Shares in accordance with, and is familiar with has taken no action which could have the effect of disposing of the proceeds from the sale of the Offered Shares in any way differing from, the description of their disposition in the Final Prospectus under the sections entitled “Prospectus Summary—The Offering—Escrow of proceeds and registration of placement report” and “Escrow of Proceeds and Registration of Placement Report.”
(g) When the Registration Statement becomes effective and at all times subsequent thereto through the latest Closing Date or the termination of the offering of the Offered Shares, the Registration Statement and the Preliminary Final Prospectus. To the knowledge of , and any supplements or amendments thereto, in each case, as relate to such Selling Shareholder, the Preliminary Prospectus does Shareholder will not include contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary in order to make the statements therein, therein not misleading;
(h) The sale of such Selling Shareholder’s Offered Shares or ADSs pursuant to this Agreement is not prompted by any information concerning the Company which is not set forth in the light Final Prospectus.
(i) The execution and delivery by each Selling Shareholder of each transaction document to which he is a party, and the consummation of the circumstances under which they were madetransactions contemplated hereby or thereby by such Selling Shareholder, will not misleadingrequire the consent of any spouse of such Selling Shareholder pursuant to the applicable laws of any jurisdiction, including, but not limited to, those of the Federal Republic of Germany and of the Russian Federation, except as have been obtained.
(j) Neither of the Selling Shareholders is a citizen of the United States or a “resident of the United States” within the meaning of the U.S. Internal Revenue Code of 1986, as amended, and neither of the Selling Shareholders expects to become either a citizen or resident of the Unites States in the future.
Appears in 1 contract
Representations and Warranties of the Selling Shareholders. Each of the Selling Shareholders, severally and not jointly, Shareholders (except as expressly limited below) represents and warrants to to, and agrees with, each of the several Underwriters that:
(ai) Such Selling Shareholder, at the First Closing Date, will have good and marketable title to the Shares set forth in Schedule II to be sold by such Selling Shareholder, free and clear of any liens, encumbrances, equities and claims (other than as imposed by the Securities Act or this Agreement), and full right, power and authority to effect the sale and delivery of such Shares; and upon the delivery of and payment for the Shares to be sold by such Selling Shareholder pursuant to this Agreement, good and marketable title thereto, free and clear of any liens, encumbrances, equities and claims, of any kind, will be transferred to the Underwriters.
(b) Such Selling Shareholder has duly executed and delivered a power of attorney in the form contained in the Custody Agreement and Power of Attorney in the form previously delivered to the Representatives, (as defined below) appointing the persons named therein, and each of them Xxxx Xxxxx as such Selling Shareholder's attorney-in-fact (the "Attorney-in-Fact") and as custodian (); the "Custodian"). The Attorney-in-Fact is authorized to execute, deliver and perform this Agreement on behalf of such Selling Shareholder, including, without limitation, the authority to deliver determine the Shares purchase price to be sold by paid to each such Selling Shareholder hereunder, to accept payment thereforby the Underwriters as set forth in Section 2 of this Agreement, and otherwise to act on behalf of in connection therewith such Selling Shareholder in connection with this has duly executed and delivered a Power of Attorney and Custody Agreement (the "Custody Agreement, including payment from the Offering proceeds of expenses incurred on behalf of such Selling Shareholder. Certificates"), in suitable the form for transfer by delivery or accompanied by duly executed instruments of transfer or assignment heretofore delivered to the Representatives, with American Stock Transfer & Trust Company as custodian (the "Custodian"). Certificates in blank, negotiable form representing the Shares to be sold by such Selling Shareholder hereunder have been or will be deposited with the Custodian pursuant to the Custody Agreement and Power of Attorney for the purpose of delivery pursuant to this Agreement. Such Selling Shareholder agrees that the shares of Common Stock Shares represented by the certificates which are either on deposit or which will be on deposit with the Custodian are subject to the interest interests of the Underwriters hereunder, that the arrangements made for such custody and the appointment of the Attorney-in-Fact are to that extent irrevocable, and that the obligations of such Selling Shareholder hereunder shall not be terminated except as provided in this Agreement and or the Custody Agreement and Power Agreement, by any act of Attorneysuch Selling Shareholder, by operation of law or otherwise, whether, in the case of an individual Selling Shareholder, by the death or incapacity of such Selling Shareholder, or by the occurrence of any other event. If such any individual Selling Shareholder should die or become incapacitated, or if any other event should occur, before the delivery of the Shares of to be sold by such Selling Shareholder hereunder, the certificates for such Shares deposited with the Custodian shall be delivered by the Custodian in accordance with the terms and conditions of this Agreement and the Custody Agreement as if such death, incapacity incapacity, or other event had not occurred, regardless of whether or not the Custodian or the Attorney-in-Fact shall have received notice thereof.;
(cii) Such such Selling ShareholderShareholder has the full right, acting through his duly authorized Attorney-in-Fact, has duly executed power and delivered authority to enter into this Agreement and the Custody Agreement and Power of Attorney; this Agreement constitutes a legalto sell, valid transfer and binding obligation of such Selling Shareholder, all authorizations and consents necessary for the execution and delivery of this Agreement and the Custody Agreement and Power of Attorney on behalf of such Selling Shareholder and for the sale and delivery of deliver the Shares to be sold by such Selling Shareholder hereunder have been givenhereunder, except as may be required by the Securities Act or state securities laws; and such Selling Shareholder has the legal capacity and full right, power and authority to execute this Agreement and the Custody Agreement have been duly authorized, executed and Power delivered by such Selling Shareholder and constitute the legal, valid and binding obligations of Attorney.
(d) such Selling Shareholder enforceable in accordance with their respective terms. The performance execution and delivery of this Agreement and the Custody Agreement and Power of Attorney and the consummation of the transactions contemplated hereby and thereby by such Selling Shareholder the Custody Agreement will not result in a violation or breach or violation of, or conflict with, any of the terms or provisions by such Selling Shareholder of, or constitute a default by such Selling Shareholder under, any indenture, mortgage, deed of trust, trust (constructive note, bank loan or other), loan agreement, lease, franchise, license credit agreement or any other agreement or instrument to which such Selling Shareholder is a party or any of his or its properties by which such Selling Shareholder is bound, any organizational document relating to such Selling Shareholder (including, without limitation, any partnership agreement, articles of incorporation, or bylaws), or any statute, judgment, decree, order, rule or regulation of any court or governmental agency or body applicable to such Selling Shareholder or any of his, her or its properties.Shareholder;
(eiii) Such all authorizations, approvals and consents necessary for the execution and delivery by such Selling Shareholder has not distributed norof the Custody Agreement, other than as permitted the execution and delivery by the Securities Act or on behalf of such Selling Shareholder of this Agreement, and the Rules sale and Regulations, will distribute any prospectus or other offering material in connection with the offer and sale delivery of the Shares to be sold by such Selling Shareholder hereunder (other than any Preliminary Prospectus filed with such authorizations, approvals or consents as may be necessary under the Commission state securities or Blue Sky laws), have been obtained and are in full force and effect;
(iv) such Selling Shareholder now is, and on the Final Prospectus Closing Date will be, the lawful owner of the Shares to be sold by such Selling Shareholder pursuant to this Agreement. On the Closing Date, such Selling Shareholder will have valid and marketable title to such Shares, free and clear of all liens, encumbrances, security, interests or other material permitted by restrictions (other than those created under the Securities Act.Custody Agreement); and upon proper delivery of and payment for such Shares as provided herein, the Underwriters will acquire valid and marketable title thereto, free and clear of any pledge, lien, security interest, encumbrance, claim or equitable interest, including any liability for estate or inheritance taxes, or any liability to or claims of any creditor, devisee, legatee or beneficiary of such Selling Shareholder;
(fv) Such Selling Shareholder has reviewed and is familiar with the Registration Statement and the Preliminary Prospectus. To to the knowledge of such Selling Shareholder, the Preliminary representations and warranties of the Company contained in Section l(a) hereof are true and correct; such Selling Shareholder has examined the Registration Statement and the Prospectus does and has no knowledge of any fact, condition or information not include an disclosed therein which has adversely affected or could adversely affect the general affairs, assets, properties, condition (financial or otherwise), results of operations, shareholders' equity, business or prospects of the Company or the Subsidiaries, taken as a whole; to the knowledge of such Selling Shareholder after review of the Registration Statement and Prospectus, neither the Registration Statement nor the Prospectus contains any untrue statement of a material fact or omit omits to state any material fact required to be stated therein or necessary to make the statements therein not misleading; and such Selling Shareholder is not prompted to sell the Shares to be sold by such Selling Shareholder hereunder by any information concerning the Company or any Subsidiary which is not set forth in the Prospectus;
(vi) such Selling Shareholder has examined the Registration Statement and the Prospectus and the information relating to such Selling Shareholder set forth therein and, as to such information, neither the Registration Statement nor the Prospectus contains any untrue statement of a material fact or omits to state any material fact required to be stated therein or necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleadingmisleading and such Selling Shareholder hereby acknowledges that the two paragraphs appearing on the inside front cover of the Prospectus and the allocation of Shares among the Underwriters, the dollar amounts of the concessions in the paragraph that follows the tabular list of Underwriters and the last five paragrphs appearing under the caption "Underwriting" constitute the only statements in any Preliminary Prospectus, the Registration Statement or the Propsectus made in reliance upon and in conformity with information furnished by or on behalf of any Underwriter and that no statement was omitted from any Preliminary Prospectus, the Registration Statement or the Propsectus in reliance upon and in conformity with information furnished by or on behalf of any Underwriter;
(vii) such Selling Shareholder will comply in all respects with the lock-up agreement executed by such Selling Shareholder in favor of Xxxxxx Xxxxxxxxxx Xxxxx, Inc., as more fully described in Paragraph 5(k) below;
(viii) such Selling Shareholder has not incurred any liability for any finder's fee or similar payments in connection with the sale of such Selling Shareholder's Shares hereunder; and
(ix) such Selling Shareholder (A) has not distributed and will not distribute any offering material in connection with the offering and sale of the Shares other than the Registration Statement, a Preliminary Prospectus, the Prospectus and other material, if any, permitted by the Act and the Regulations, and (B) has not taken and will not take any action designed to, or that might be reasonably expected to cause or result in, stabilization or manipulation of the price of the Shares.
Appears in 1 contract
Representations and Warranties of the Selling Shareholders. Each of the Selling Shareholders, severally and not jointly, represents and warrants to each Underwriter and agrees with, each of the Underwriters as follows that:
(a) Such Selling Shareholder, Shareholder at the First Closing Date, Date (as defined herein) will have good valid and marketable title to the Shares set forth in Schedule II I to be sold by such Selling Shareholder, free and clear of any liens, encumbrances, equities equities, and claims (other than as imposed by the Securities Act or this Agreement), and full right, power power, and authority to effect the sale and delivery of such Shares; and upon the delivery of and payment for the Shares to be sold by such Selling Shareholder pursuant to this Agreement, good valid and marketable title thereto, free and clear of any liens, encumbrances, equities equities, and claims, of any kind, will be transferred to the Underwriters.
(b) Such Selling Shareholder has duly executed and delivered the Custody Agreement and Power of Attorney in the form previously delivered to the Representatives, appointing the persons named thereinMonroe J. Carell, and Jr. as each of them as such Selling Shareholder's attorney-in-fact (the "Attorney-in-Fact") and appointing the Company as custodian (the "Custodian"). The Attorney-in-Fact is authorized to execute, deliver deliver, and perform this Agreement on behalf of such Selling Shareholder, to deliver the Shares to be sold by such Selling Shareholder hereunder, to accept payment therefor, and otherwise to act on behalf of such Selling Shareholder in connection with this Agreement, including payment from the Offering proceeds of expenses incurred on behalf of such Selling Shareholder. Certificates, in suitable form for transfer by delivery or accompanied by duly executed instruments of transfer or assignment in blank, representing the Shares to be sold by such Selling Shareholder hereunder have been deposited with the Custodian pursuant to the Custody Agreement and Power of Attorney for the purpose of delivery pursuant to this Agreement. Such Selling Shareholder agrees that the shares of Common Stock represented by the certificates on deposit with the Custodian are subject to the interest of the Underwriters hereunder, that the arrangements made for such custody and the appointment of the Attorney-in-Fact are to that extent irrevocable, and that the obligations of such Selling Shareholder hereunder shall not be terminated except as provided in this Agreement and the Custody Agreement and Power of AttorneyAgreement. If such Selling Shareholder should die or become incapacitated, incapacitated or if any other event should occur, before the delivery of the Shares of such Selling Shareholder hereunder, the certificates for such Shares deposited with the Custodian shall be delivered by the Custodian in accordance with the terms and conditions of this Agreement as if such death, incapacity incapacity, or other event had not occurred, regardless of whether the Custodian or the Attorney-in-Fact shall have received notice thereof.
(c) Such Selling Shareholder, acting through his duly authorized Attorney-in-Fact, has duly executed and delivered this Agreement and the Custody Agreement and Power of Attorney; this Agreement constitutes a legal, valid valid, and binding obligation of such Selling Shareholder, all authorizations and consents necessary for the execution and delivery of this Agreement and the Custody Agreement and Power of Attorney on behalf of such Selling Shareholder and for the sale and delivery of the Shares to be sold by such Selling Shareholder hereunder have been given, except as may be required by the Securities Act or state securities laws; and such Selling Shareholder has the legal capacity and full right, power power, and authority to execute this Agreement and the Custody Agreement and Power of Attorney.
(d) The performance of this Agreement and the Custody Agreement and Power of Attorney and the consummation of the transactions contemplated hereby and thereby by such Selling Shareholder will not result in a breach or violation of, or conflict with, any of the terms or of provisions of, or constitute a default by such Selling Shareholder under, any indenture, mortgage, deed of trust, trust (constructive or other), loan agreement, lease, franchise, license license, or other agreement or instrument to which such Selling Shareholder or any of his or its properties is bound, or any statute, judgment, decree, order, rule rule, or regulation of any court or governmental agency or body applicable to such Selling Shareholder or any of his, her his or its properties.
(e) Such Selling Shareholder has not distributed nor, other than as permitted by the Securities Act and the Rules and Regulations, will distribute any prospectus or other offering material in connection with the offer and sale of the Shares other than any Preliminary Prospectus filed with the Commission or the Final Prospectus or other material permitted by the Securities Act.
(f) Such For a period of 180 days from the effective date of the Registration Statement, such Selling Shareholder will not, directly or indirectly, sell, offer to sell, grant any option for the sale of, or otherwise dispose of any shares of Common Stock, other than to the Underwriters pursuant to this Agreement, without the prior written consent of the Representatives.
(g) To the knowledge of such Selling Shareholder, the representations and warranties of the Company contained in Section 1 of this Agreement are true and correct; such Selling Shareholder has reviewed and is familiar with the Registration Statement as originally filed with the Commission and the Preliminary ProspectusProspectus contained therein. To The Preliminary Prospectus does not include an untrue statement of a material fact regarding each Selling Shareholder or omit to state a material fact regarding each Selling Shareholder necessary in order to make the knowledge statements therein, in the light of the circumstances under which they were made, not misleading; such Selling Shareholder is not prompted to sell the Shares to be sold by such Selling Shareholder's knowledge of any material non-public information concerning the Company or any of its subsidiaries.
(h) At the time the Registration Statement becomes effective (i) such parts of the Registration Statement and any amendments and supplements thereto as specifically refer to such Selling Shareholder will not contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading, and (ii) such parts of the Preliminary Effective Prospectus does and Final Prospectus as specifically refer to such Selling Shareholder will not include an untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading.
(i) No approval, consent, order, authorization, designation, declaration, or filing by or with any regulatory body, administrative or other governmental body is necessary in connection with the execution and delivery of this Agreement by such Selling Shareholder, and the consummation by him of the transactions herein contemplated (other than as required by the Securities Act, state securities laws and the NASD).
(j) Any certificates signed by or on behalf of such Selling Shareholder as such and delivered to the Representatives or to counsel for the Representatives shall be deemed a representation and warranty by such Selling Shareholder to each Underwriter as to the matters covered thereby.
(k) 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, such Selling Shareholder agrees to deliver to you prior to or at the First Closing Date (as hereinafter defined) a properly completed and executed United States Treasury Department Form W-9 (or other applicable form or statement specified by Treasury Department regulations in lieu thereof).
(l) Such Selling Shareholder will not take, directly or indirectly, any action designed to cause or result in, or which might constitute or be expected to constitute, stabilization or manipulation of the price of the Common Stock.
(m) Such Selling Shareholder has not, directly or indirectly, solicited any offer to buy or offer to sell, and will not, directly or indirectly, solicit any offer to buy or offer to sell, in the United States or to any United States citizen or resident, any security which is or would be integrated with the offer and proposed sale of the Preferred Securities to be issued by a trust subsidiary of the Company in a manner that would require the offer or sale of any of the Preferred Securities to be registered under the Securities Act.
(n) Neither such Selling Shareholder nor any of such Selling Shareholder's affiliates, as such term is defined in Rule 405 under the Securities Act ("Affiliates"), nor any person acting on their behalf (other than the Underwriters, as to whom such Selling Shareholder makes no representation), has engaged or will engage, in connection with the offering of the Preferred Securities, in any form of general solicitation or general advertising within the meaning of the Securities Act and the Rules and Regulations thereunder.
Appears in 1 contract
Representations and Warranties of the Selling Shareholders. Each of the Selling Shareholders, severally and not jointly, represents and warrants to each Underwriter and agrees with, each of the Underwriters as follows that:
(a) Such Selling Shareholder, Shareholder at the First Closing DateDate or at the Option Closing Date (as such closing dates are defined herein), as the case may be, will have good valid and marketable title to the Shares set forth in Schedule II I to be sold by such Selling Shareholder, free and clear of any liens, encumbrances, equities and claims (other than as imposed by the Securities Act or this Agreement), and full right, power and authority to effect the sale and delivery of such Shares; and upon the delivery of and payment for the Shares to be sold by such Selling Shareholder pursuant to this Agreement, good valid and marketable title thereto, free and clear of any liens, encumbrances, equities and claims, of any kind, will be transferred to the Underwriters.
(b) Such Selling Shareholder has duly executed and delivered the Custody Custodian Agreement and Power of Attorney in the form previously delivered to the Representatives, appointing the persons named thereinRonaxx X. Xxxxx, and Xxmex X. Xxxxxxx xxx E. Xxxxxx Xxxdxxxx, xxd any one of them, as each of them as such Selling Shareholder's attorneyattorneys-in-fact (the "AttorneyAttorneys-in-Fact") and appointing Piper & Marbury L.L.P. as custodian (the "Custodian"). The Attorney-in-Fact is authorized to execute, deliver and perform this Agreement on behalf of such Selling Shareholder, to deliver the Shares to be sold by such Selling Shareholder hereunder, to accept payment therefor, therefor and otherwise to act on behalf of such Selling Shareholder in connection with this Agreement, including payment from the Offering proceeds of expenses incurred on behalf of such Selling Shareholder. Certificates, in suitable form for transfer by delivery or accompanied by duly executed instruments of transfer or assignment in blank, representing the Shares to be sold by such Selling Shareholder hereunder have been deposited with the Custodian pursuant to the Custody Custodian Agreement and Power of Attorney for the purpose of delivery pursuant to this Agreement. Such Selling Shareholder agrees that the shares of Common Stock represented by the certificates on deposit with the Custodian are subject to the interest of the Underwriters hereunder, that the arrangements made for such custody and the appointment of the Attorney-in-Fact are to that extent irrevocable, and that the obligations of such Selling Shareholder hereunder shall not be terminated except as provided in this Agreement and the Custody Agreement and Power of AttorneyCustodian Agreement. If such Selling Shareholder should die or become incapacitated, incapacitated or if any other event should occur, before the delivery of the Shares of such Selling Shareholder hereunder, the certificates for such Shares deposited with the Custodian shall be delivered by the Custodian in accordance with the terms and conditions of this Agreement as if such death, incapacity or other event had not occurred, regardless of whether the Custodian or the Attorney-in-Fact shall have received notice thereof.
(c) Such Selling Shareholder, acting through his duly authorized Attorney-in-Fact, has duly executed and delivered this Agreement and the Custody Agreement and Power of Attorney; this Agreement constitutes a legal, valid and binding obligation of such Selling Shareholder, all authorizations and consents necessary for the execution and delivery of this Agreement and the Custody Custodian Agreement and Power of Attorney on behalf of such Selling Shareholder and for the sale and delivery of the Shares to be sold by such Selling Shareholder hereunder have been given, except as may be required by the Securities Act or state securities laws; and such Selling Shareholder has the legal capacity and full right, power and authority to execute this Agreement and the Custody Custodian Agreement and Power of Attorney.
(d) The performance of this Agreement and the Custody Custodian Agreement and Power of Attorney and the consummation of the transactions contemplated hereby and thereby by such Selling Shareholder will not result in a breach or violation of, or conflict with, any of the terms or of provisions of, or constitute a default by such Selling Shareholder under, any indenture, mortgage, deed of trust, trust (constructive or other), loan agreement, lease, franchise, license or other agreement or instrument to which such Selling Shareholder or any of his or its properties is bound, or any statute, judgment, decree, order, rule or regulation of any court or governmental agency or body applicable to such Selling Shareholder or any of his, her or its properties.
(e) Such For a period of 90 days from the date of the Final Prospectus, such Selling Shareholder has not distributed norwill not, directly or indirectly, sell, offer to sell, grant any option for the sale of, or otherwise dispose of any shares of Common Stock, other than as permitted by to the Securities Act and Underwriters pursuant to this Agreement, without the Rules and Regulationsprior written consent of J.C. Xxxxxxxx & Xo., will distribute any prospectus or other offering material in connection with the offer and sale of the Shares other than any Preliminary Prospectus filed with the Commission or the Final Prospectus or other material permitted by the Securities Act.L.L.C.
(f) Such Selling Shareholder has reviewed 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 Registration Statement, the receipt of a copy of which is hereby acknowledged, and has no knowlege of any material fact, condition or information not disclosed in the Effective Prospectus or Final Prospectus which has or may adversely affect the business of the Company or any of its subsidiaries; and the sale of the Shares by such Selling Shareholder is not prompted by any information concerning the Company not set forth in the Effective Prospectus or Final Prospectus.
(h) At the time the Registration Statement becomes effective (i) such parts of the Registration Statement and the Preliminary Prospectus. To the knowledge of any amendments and supplements thereto as specifically refer to such Selling ShareholderShareholder will not contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading, and (ii) such parts of the Preliminary Effective Prospectus does and Final Prospectus as specifically refer to such Selling Shareholder will not include an untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading.
(i) No approval, consent, order, authorization, designation, declaration or filing by or with any regulatory body, administrative or other governmental body is necessary in connection with the execution and delivery of this Agreement by such Selling Shareholder, and the consummation by him of the transactions herein contemplated (other than as required by the Securities Act, state securities laws and the NASD).
(j) Any certificates signed by or on behalf of such Selling Shareholder as such and delivered to the Representatives or to counsel for the Representatives shall be deemed a representation and warranty by such Selling Shareholder to each Underwriter as to the matters covered thereby.
(k) 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, such Selling Shareholder agrees to deliver to you prior to or at the First Closing Date (as hereinafter defined) a properly completed and executed United States Treasury Department Form W-9 (or other applicable form or statement specified by Treasury Department regulations in lieu thereof).
(l) Such Selling Shareholder will not take, directly or indirectly, any action designed to cause or result in, or which might constitute or be expected to constitute, stabilization or manipulation of the price of the Common Stock.
Appears in 1 contract
Representations and Warranties of the Selling Shareholders. Each of the Selling Shareholders, severally and not jointly, Shareholder represents and warrants to and agrees with, each of the Underwriters that:
(a) Such such Selling Shareholder has full power and authority to enter into this Agreement and the Custody Agreement and Power of Attorney to which it is a party. All authorizations and consents necessary for the execution and delivery by such Selling Shareholder of the Custody Agreement and Power of Attorney, and for the execution of this Agreement on behalf of such Selling Shareholder, have been given. Each of the Custody Agreement and Power of Attorney and this Agreement has been duly authorized, executed and delivered by or on behalf of such Selling Shareholder and constitutes a valid and binding agreement of such Selling Shareholder and is enforceable against such Selling Shareholder in accordance with the terms thereof and hereof, except as may be limited by bankruptcy, insolvency, reorganization, moratorium or similar laws affecting creditors' rights generally, and by general equitable principles, and except to the extent that the indemnification and contribution provisions of Section 11 hereof may be limited by federal or state securities laws and public policy considerations in respect thereof;
(b) such Selling Shareholder now has, and at the First Closing DateTime will have, will have (i) good and marketable title to the Shares set forth in Schedule II to be sold by such Selling Shareholder, free and clear of any liens, encumbrances, equities and claims (other than as imposed by the Securities Act or this Agreement), and full right, power and authority to effect the sale and delivery of such Shares; and upon the delivery of and payment for the Shares to be sold by such Selling Shareholder hereunder, free and clear of all liens, encumbrances and claims whatsoever (other than pursuant to this Agreementthe Custody Agreement and Power of Attorney), and (ii) full legal right and power, and all authorizations and approvals required by law, to sell, transfer and deliver such Shares to the Underwriters hereunder and to make the representations, warranties and agreements made by such Selling Shareholder herein. Upon the delivery of and payment for such Shares hereunder, such Selling Shareholder will deliver good and marketable title thereto, free and clear of any lienspledge, encumbranceslien, equities and claimsencumbrance, of any kind, will be transferred to the Underwriters.security interest or other claim;
(bc) Such Selling Shareholder has duly executed at the Closing Time, all stock transfer or other taxes (other than income taxes) which are required to be paid in connection with the sale and delivered the Custody Agreement and Power transfer of Attorney in the form previously delivered to the Representatives, appointing the persons named therein, and each of them as such Selling Shareholder's attorney-in-fact (the "Attorney-in-Fact") and as custodian (the "Custodian"). The Attorney-in-Fact is authorized to execute, deliver and perform this Agreement on behalf of such Selling Shareholder, to deliver the Shares to be sold by such Selling Shareholder hereunder, to accept payment therefor, and otherwise to act on behalf of the Underwriters hereunder will have been fully paid or provided for by such Selling Shareholder and all laws imposing such taxes will have been fully complied with;
(d) The performance of this Agreement and the consummation of the transactions contemplated herein will not conflict with, or result in any breach of, or constitute a default under (nor constitute any event which with notice, lapse of time, or both would constitute a breach of, or default under), (i) any provision of the certificate or articles of incorporation, other charter or similar constitutive documents, or the bylaws of the Selling Shareholder, or (ii) any provision of any license, indenture, mortgage, deed of trust, loan or credit agreement or other agreement or instrument to which the Selling Shareholder is a party or by which it or its properties may be bound or affected, or under any federal, state, local or foreign law, regulation or rule or any decree, judgment or order applicable to the Selling Shareholder; or result in the creation or imposition of any lien, charge, claim or encumbrance upon any property or asset of the Selling Shareholder;
(e) no approval, authorization, consent or order of or filing with any federal, state or local governmental or regulatory commission, board, body, authority or agency is required in connection with the Selling Shareholder's execution, delivery and performance of this Agreement, including payment from its consummation of the Offering proceeds transactions contemplated herein, and its sale and delivery of expenses incurred the Shares, other than (i) such as have been obtained, or will have been obtained at the Closing Time, under the Securities Act and the Exchange Act, (ii) such approvals as have been obtained in connection with the approval of the quotation of the Shares on behalf the Nasdaq National Market and (iii) any necessary qualification under the securities or blue sky laws of the various jurisdictions in which the Shares are being offered by the Underwriters;
(f) such Selling ShareholderShareholder (i) has carefully reviewed the representations and warranties of the Company contained in this Agreement and has no reason to believe that such representations and warranties are untrue or incorrect, (ii) is familiar with the Registration Statement and the Prospectus and has no knowledge of any material fact, condition or information not disclosed in the Registration Statement or the Prospectus which has had or may have a Material Adverse Effect and (iii) is not prompted to sell Shares by any information concerning the Company which is not set forth in the Registration Statement or the Prospectus;
(g) all material information with respect to such Selling Shareholder contained in the Registration Statement and the Prospectus (as amended or supplemented, if the Company shall have filed with the Commission any amendment or supplement thereto) complied and will comply in all material respects with all applicable provisions of the Securities Act and the Securities Act Regulations, contains and will contain all statements of material fact required to be stated therein in accordance with the Securities Act and the Securities Act Regulations, and does not and will not contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary in order to make the statements therein not misleading;
(h) other than as permitted by the Securities Act and the Securities Act Regulations, such Selling Shareholder has not distributed and will not distribute any preliminary prospectus, the Prospectus or any other offering material in connection with the offering and sale of the Shares. CertificatesSuch Selling Shareholder has not taken, directly or indirectly, any action intended, or which might reasonably be expected, to cause or result in, under the Securities Act, the Securities Act Regulations or otherwise, or which has constituted, stabilization or manipulation of the price of any security of the Company to facilitate the sale or resale of the Shares;
(i) certificates in suitable negotiable form for transfer by delivery or accompanied by duly executed instruments of transfer or assignment in blank, representing the Shares to be sold hereunder by such Selling Shareholder hereunder have been deposited with placed in custody, for the Custodian pursuant to purpose of making delivery of such Shares under this Agreement and under the Custody Agreement and Power of Attorney which appoints the Company, as custodian (the "Custodian"), for the purpose of delivery pursuant to this Agreement. Such such Selling Shareholder; such Selling Shareholder agrees that the shares of Common Stock Shares represented by the certificates on deposit held in custody for him or it under the Custody Agreement and Power of Attorney are for the benefit of and coupled with the Custodian are and subject to the interest hereunder of the Underwriters hereunderCustodian, the Attorneys-in-Fact, the Underwriters, each other Selling Shareholder and the Company; that the arrangements made by such Selling Shareholder for such custody and the appointment of the AttorneyCustodian and the Attorneys-in-Fact by such Selling Shareholder are to that extent irrevocable, ; and that the obligations of such Selling Shareholder hereunder shall not be terminated except as provided in this Agreement and by operation of law, whether by the Custody Agreement and Power death, disability, incapacity or liquidation of Attorney. If such any Selling Shareholder or the occurrence of any other event; if any Selling Shareholder should die die, become disabled or become incapacitated, incapacitated or be liquidated or if any other such event should occur, occur before the delivery of the Shares of such Selling Shareholder hereunder, the certificates for such the Shares deposited with the Custodian shall be delivered by the Custodian in accordance with the terms and conditions of this Agreement and actions taken by the Committee and the Custodian pursuant to the Custody Agreement and Power of Attorney shall be as valid as if such death, liquidation, incapacity or other event had not occurred, regardless of whether or not the Custodian or the AttorneyAttorneys-in-Fact Fact, or any of them, shall have received notice thereof.;
(cj) Such Selling Shareholder, acting through his duly authorized Attorney-in-Fact, has duly executed and delivered this Agreement and the Custody Agreement and Power of Attorney; this Agreement constitutes a legal, valid and binding obligation of such Selling Shareholder, all authorizations and consents necessary for the execution and delivery of this Agreement and the Custody Agreement and Power of Attorney on behalf of such Selling Shareholder and has not relied upon the Representatives or legal counsel for the Representatives for any legal, tax or accounting advice in connection with the offering and sale and delivery of the Shares;
(k) such Selling Shareholder does not have any registration or other similar rights to have any equity or debt securities registered for sale by the Company under the Registration Statement or included in the offering contemplated by this Agreement, except for any such rights as are described in the Prospectus under "Shares Eligible for Future Sale;"
(l) such selling Shareholder does not have, or has waived prior to the date hereof, any preemptive right, co-sale right or right of first refusal or other similar right to purchase any of the Shares that are to be sold by such the Company or any of the other Selling Shareholder hereunder have been given, except as may be required by Shareholders to the Securities Act or state securities lawsUnderwriters pursuant to this Agreement; and such Selling Shareholder has the legal capacity does not own any warrants, options or similar rights to acquire, and full does not have any right or arrangement to acquire, any capital stock, right, power and authority to execute this Agreement and the Custody Agreement and Power of Attorney.
(d) The performance of this Agreement and the Custody Agreement and Power of Attorney and the consummation of the transactions contemplated hereby and thereby by such Selling Shareholder will not result in a breach or violation ofwarrants, or conflict with, any of the terms or provisions of, or constitute a default by such Selling Shareholder under, any indenture, mortgage, deed of trust, trust (constructive or other), loan agreement, lease, franchise, license options or other agreement or instrument to which such Selling Shareholder or any of his or its properties is bound, or any statute, judgment, decree, order, rule or regulation of any court or governmental agency or body applicable to such Selling Shareholder or any of his, her or its properties.
(e) Such Selling Shareholder has not distributed norsecurities from the Company, other than as permitted by the Securities Act and the Rules and Regulationsthose, will distribute any prospectus or other offering material if any, described in connection with the offer and sale of the Shares other than any Preliminary Prospectus filed with the Commission or the Final Prospectus or other material permitted by the Securities Act.
(f) Such Selling Shareholder has reviewed and is familiar with the Registration Statement and the Preliminary Prospectus. To ; and
(m) except as otherwise disclosed to the knowledge of Underwriters in writing, such Selling Shareholder, the Preliminary Prospectus does Shareholder is not include a member of or an untrue statement affiliate of a material fact or omit to state a material fact necessary in order to make the statements therein, in the light associated with any member of the circumstances under which they were made, not misleadingNASD.
Appears in 1 contract
Representations and Warranties of the Selling Shareholders. Each of the Selling ShareholdersShareholder, severally and not jointly, represents and warrants to and agrees withwith the several Underwriters and the Company, and shall be deemed to represent and warrant to the several Underwriters and the Company on each of the Underwriters Closing Date, that:
(a) Such Selling Shareholder, at the First Closing Date, will have good and marketable title to the Shares set forth in Schedule II to be sold by such Selling Shareholder, free and clear of any liens, encumbrances, equities and claims (other than as imposed by the Securities Act or this Agreement), and full right, power and authority to effect the sale and delivery of such Shares; and upon the delivery of and payment for the Shares to be sold by such Selling Shareholder pursuant to this Agreement, good and marketable title thereto, free and clear of any liens, encumbrances, equities and claims, of any kind, will be transferred to the Underwriters.
(b) Such Selling Shareholder has duly executed a durable power of attorney and delivered the Custody Agreement and custody agreement ("Durable Power of Attorney in the form previously delivered to the Representativesand Custody Agreement") naming ________________ and ___________________, appointing the persons named thereinor either of them, and each of them as such Selling Shareholder's attorney-inattorney(s)-in-fact (the "AttorneyAttorneys-in-Fact") and as custodian (the "Custodian"). The Attorney-in-Fact is authorized to execute, deliver and perform this Agreement on behalf of such Selling Shareholder, to deliver the Shares to be sold by such Selling Shareholder hereunder, to accept payment therefor, and otherwise to act on behalf of such Selling Shareholder in connection with this Agreement, including payment from the Offering proceeds of expenses incurred on behalf of such Selling Shareholder. Certificates, in suitable form for transfer by delivery or accompanied by duly executed instruments of transfer or assignment in blank, representing the Shares to be sold by such Selling Shareholder hereunder have been deposited with the Custodian pursuant to the Custody Agreement and Power of Attorney for the purpose of delivery pursuant to this Agreement. Such Selling Shareholder agrees that the shares of Common Stock represented by the certificates on deposit with the Custodian are subject to the interest of the Underwriters hereunder, that the arrangements made for such custody entering into and the appointment of the Attorney-in-Fact are to that extent irrevocable, and that the obligations of such Selling Shareholder hereunder shall not be terminated except as provided in carrying out this Agreement and the Custody Agreement and Power of Attorney. If such Selling Shareholder should die or become incapacitated, or if any other event should occur, before the delivery naming ___________________ as custodian ("Custodian") of the Shares of such Selling Shareholder hereunder, for the certificates for purpose of selling such Shares deposited with to the Custodian shall be delivered by the Custodian in accordance with the terms Underwriters on each Closing Date and conditions of this Agreement as if such death, incapacity or other event had not occurred, regardless of whether the Custodian or the Attorney-in-Fact shall have received notice thereofreceiving payment therefor.
(cb) Such Selling ShareholderAll consents, acting through his duly authorized Attorney-in-Factapprovals, has duly executed and delivered this Agreement and the Custody Agreement and Power of Attorney; this Agreement constitutes a legal, valid and binding obligation of such Selling Shareholder, all authorizations and consents orders necessary for the execution and delivery by such Selling Shareholder of this Agreement and the Custody Agreement and Durable Power of Attorney on behalf of such Selling Shareholder and Custody Agreement and for the sale and delivery of the Shares to be sold by such Selling Shareholder hereunder hereunder, as set forth on Schedule I annexed hereto, have been givenobtained. Such Selling Shareholder has, except as may be required by and at the Securities Act or state securities laws; and time of delivery thereof hereunder such Selling Shareholder will have, good and valid title to the Shares proposed to be sold by such Selling Shareholder hereunder, free and clear of all voting trust arrangements, liens, encumbrances, security interests, equities, claims and community or marital property rights, other than any created by the Durable Power of Attorney and Custody Agreement or this Agreement for the benefit of the Underwriters. Such Selling Shareholder has the legal capacity and full right, power and authority to execute enter into this Agreement and the Custody Agreement and Power of Attorney.
(d) The performance of this Agreement and the Custody Agreement and Durable Power of Attorney and Custody Agreement and to sell, assign, transfer and deliver such Shares hereunder, free and clear of all voting trust arrangements, liens, encumbrances, security interests, equities, claims and community or marital property rights, other than any created by the consummation Durable Power of Attorney and Custody Agreement or this Agreement for the benefit of the transactions contemplated hereby Underwriters. Upon delivery of and thereby by payment for such Selling Shareholder Shares hereunder, the Underwriters will not result in a breach or violation ofacquire good and valid title thereto, or conflict withfree and clear of all voting trust arrangements, any of the terms or provisions of, or constitute a default by such Selling Shareholder under, any indenture, mortgage, deed of trust, trust (constructive or other), loan agreement, lease, franchise, license or other agreement or instrument to which such Selling Shareholder or any of his or its properties is bound, or any statute, judgment, decree, order, rule or regulation of any court or governmental agency or body applicable to such Selling Shareholder or any of his, her or its properties.liens,
(ec) Such Selling Shareholder has not distributed nor, other than as permitted by the Securities Act and the Rules and Regulations, will not distribute any prospectus Preliminary Prospectus, the Prospectus or any other offering material in connection with the offer offering and sale of the Shares Shares. Such Selling Shareholder has not taken and will not take, for a period of at least 180 days from the date hereof, directly or indirectly, any action designed to or which could cause or result in, under the Exchange Act or otherwise, stabilization or manipulation of the price of any security of the Company to facilitate the sale or resale of the Common Shares.
(d) The execution, delivery and performance by such Selling Shareholder of this Agreement and the Durable Power of Attorney and Custody Agreement will not, if applicable, result in the violation of any provisions of the Articles of Incorporation, Regulations or other than governing documents of such Selling Shareholder, or constitute a breach, or be in contravention, of any Preliminary Prospectus filed provision of any agreement, franchise, license, indenture, mortgage, deed of trust or other instrument to which such Selling Shareholder is a party or by which such Selling Shareholder or such Selling Shareholder's property may be bound or affected, or any statute, rule or regulation applicable to such Selling Shareholder, or violate any order or decree of any court, regulatory body, administrative agency or other governmental body having jurisdiction over such Selling Shareholder or any of such Selling Shareholder's property. No consent, approval, authorization or other order of any court, regulatory body, administrative agency or other governmental body is required for the execution and delivery of, and performance under, this Agreement by such Selling Shareholder or the consummation by such Selling Shareholder of the transactions contemplated by this Agreement, except for compliance with the Commission Act, the Exchange Act, the Blue Sky Laws applicable to the public offering of the Shares by the Underwriters and the clearance of such offering with the NASD. Such Selling Shareholder hereby represents and warrants that each Attorney-in-Fact has been duly appointed as attorney-in-fact by such Selling Shareholder for the purpose of entering into and carrying out this Agreement, and the Durable Power of Attorney and Custody Agreement has been duly executed and delivered by or on behalf of such Selling Shareholder to the Final Prospectus Representatives.
(e) This Agreement and the Durable Power of Attorney and Custody Agreement are each valid and binding agreements of such Selling Shareholder and, assuming due execution by the other parties hereto, are enforceable in accordance with their respective terms, except that rights to indemnity or contribution may be limited by applicable law and except as enforceability of this Agreement may be limited by bankruptcy, insolvency, reorganization, moratorium or similar laws affecting creditors' rights generally, and by equitable principles limiting the right to specific performance or other material permitted by the Securities Actequitable relief.
(f) Such Selling Shareholder has reviewed deposited in custody, under the Durable Power of Attorney and is familiar Custody Agreement, certificates in negotiable form for the Shares to be sold hereunder by such Selling Shareholder as set forth opposite such
(g) Insofar as it relates to such Selling Shareholder, each Preliminary Prospectus, as of its date, has conformed in all material respects with the requirements of the Act and, as of its date, has not included any untrue statement of a material fact or omitted to state a material fact necessary to make the statements therein not misleading; and on the effective date of the Registration Statement and at all times subsequent thereto up to each Closing Date, (i) the Registration Statement and the Preliminary Prospectus. To the knowledge of , as they relate to such Selling Shareholder, did or will conform to the Preliminary requirements of the Act, and (ii) neither the Registration Statement nor the Prospectus does not as it relates to such Selling Shareholder did or will include an 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, in the light of the circumstances under which they were made, not misleading.
(h) The information contained in such Selling Shareholder's Director and Officer Questionnaire completed in connection with the offering of the Common Shares and delivered to the Representatives was, as of the date of such questionnaire, and is, as of the date of this Agreement, true and correct. A certificate signed by or on behalf of any Selling Shareholder as such and delivered to the Representatives or to counsel for the Underwriters shall be deemed a representation and warranty by such Selling Shareholder to the Underwriters as to the matters covered thereby. A certificate delivered by or on behalf of any Selling Shareholder to counsel for the Selling Shareholders for purposes of enabling such counsel to render the opinion referred in Section 10(e) will also be furnished to the Representatives and counsel for the Underwriters and shall be deemed to be additional representations and warranties to the Underwriters by such Selling Shareholder as to the matters covered thereby.
Appears in 1 contract
Representations and Warranties of the Selling Shareholders. Each of the Selling ShareholdersShareholder, severally and not jointly, represents and warrants to and agrees with, with each of the Underwriters that:
(a) Such This Agreement has been duly authorized, executed and delivered by or on behalf of such Selling Shareholder.
(b) The execution and delivery by such Selling Shareholder of, at and the First performance by such Selling Shareholder of its obligations under, this Agreement and the share transfer agreements, each to be dated the applicable Closing Date, will have good and marketable title pursuant to which the Shares set forth in Schedule II to be sold by such Selling Shareholder will be transferred by such Selling Shareholder to the Underwriters in accordance with this Agreement (the “Share Transfer Agreements”) and (other than in the case of Sensata Investment Company S.C.A.) the Custody Agreement and Agreement to Sell signed by such Selling Shareholder and Sensata Technologies, Inc., as Custodian, relating to the Shares to be sold by such Selling Shareholder (the “Custody Agreement”), the Power of Attorney appointing certain individuals as such Selling Shareholder’s attorneys-in-fact to the extent set forth therein, relating to the transactions contemplated hereby and by the Registration Statement (the “Power of Attorney”) and the private deeds of issuance, each to be dated the applicable Closing Date, pursuant to which the Shares to be sold by such Selling Shareholder will be issued to such Selling Shareholder in connection with the exercise by such Selling Shareholder of outstanding stock options (the “Deeds of Issuance”) will not contravene any provision of applicable law, or the articles of organization, articles of association, certificate of incorporation, by-laws or other constituent documents of such Selling Shareholder (if such Selling Shareholder is a corporation, Luxembourg société en commandite par actions or other business entity), or any agreement or other instrument binding upon such Selling Shareholder or any judgment, order or decree of any governmental body, agency or court having jurisdiction over such Selling Shareholder, and no consent, approval, authorization or order of, or qualification with, any governmental body or agency is required for the performance by such Selling Shareholder of its obligations under this Agreement or the Share Transfer Agreements, Custody Agreement, Power of Attorney or Deeds of Issuance of such Selling Shareholder, except such as may be required by the securities or Blue Sky laws of the various states in connection with the offer and sale of the Shares.
(c) Such Selling Shareholder has, and on the Closing Date will have, valid title to, or a valid “security entitlement” within the meaning of Section 8-501 of the New York Uniform Commercial Code in respect of, the Shares to be sold by such Selling Shareholder free and clear of any all security interests, claims, liens, encumbrancesequities or other encumbrances and the legal right and power, equities and claims (other than as imposed all authorization and approval required by the Securities Act or law, to enter into this Agreement), the Custody Agreement and the Power of Attorney, as applicable, and full rightto sell, power transfer and authority deliver the Shares to effect the sale and delivery be sold by such Selling Shareholder or a security entitlement in respect of such Shares; .
(d) The Custody Agreement and upon the delivery Power of Attorney, to the extent such Selling Shareholder is a party thereto, have been duly authorized, executed and delivered by such Selling Shareholder and are valid and binding agreements of such Selling Shareholder. The Share Transfer Agreements and the Deeds of Issuance, to the extent such Selling Shareholder will be a party thereto, as of each Closing Date, will have been duly authorized, executed and delivered by such Selling Shareholder and will be valid and binding agreements of such Selling Shareholder.
(e) Upon payment for the Shares to be sold by such Selling Shareholder pursuant to this Agreement, good delivery of such Shares, as directed by the Underwriters, to Cede & Co. (“Cede”) or such other nominee as may be designated by the Depository Trust Company (“DTC”), registration of such Shares in the name of Cede or such other nominee and marketable title thereto, free and clear the crediting of such Shares on the books of DTC to securities accounts of the Underwriters (assuming that neither DTC nor any such Underwriter has notice of any liens, encumbrances, equities and claims, adverse claim (within the meaning of any kind, will be transferred to Section 8-105 of the Underwriters.
(b) Such Selling Shareholder has duly executed and delivered the Custody Agreement and Power of Attorney in the form previously delivered to the Representatives, appointing the persons named therein, and each of them as such Selling Shareholder's attorney-in-fact New York Uniform Commercial Code (the "Attorney-in-Fact"“UCC”)) and as custodian to such Shares), (the "Custodian"). The Attorney-in-Fact is authorized to execute, deliver and perform this Agreement on behalf A) DTC shall be a “protected purchaser” of such Selling ShareholderShares within the meaning of Section 8-303 of the UCC, (B) under Section 8-501 of the UCC, the Underwriters will acquire a valid security entitlement in respect of such Shares and (C) no action based on any “adverse claim”, within the meaning of Section 8-102 of the UCC, to deliver such Shares may be asserted against the Shares Underwriters with respect to be sold by such security entitlement; for purposes of this representation, such Selling Shareholder hereundermay assume that when such payment, to accept payment therefordelivery and crediting occur, and otherwise to act on behalf (x) such Shares will have been registered in the name of such Selling Shareholder in connection with this Agreement, including payment from the Offering proceeds of expenses incurred on behalf of such Selling Shareholder. CertificatesCede or another nominee designated by DTC, in suitable form for transfer by delivery or accompanied by duly executed instruments each case on the Company’s share registry in accordance with its certificate of transfer or assignment in blankincorporation, representing bylaws and applicable law, (y) DTC will be registered as a “clearing corporation” within the Shares meaning of Section 8-102 of the UCC and (z) appropriate entries to be sold by such Selling Shareholder hereunder the accounts of the several Underwriters on the records of DTC will have been deposited with the Custodian made pursuant to the Custody Agreement and Power of Attorney for the purpose of delivery pursuant to this Agreement. Such Selling Shareholder agrees that the shares of Common Stock represented by the certificates on deposit with the Custodian are subject to the interest of the Underwriters hereunder, that the arrangements made for such custody and the appointment of the Attorney-in-Fact are to that extent irrevocable, and that the obligations of such Selling Shareholder hereunder shall not be terminated except as provided in this Agreement and the Custody Agreement and Power of Attorney. If such Selling Shareholder should die or become incapacitated, or if any other event should occur, before the delivery of the Shares of such Selling Shareholder hereunder, the certificates for such Shares deposited with the Custodian shall be delivered by the Custodian in accordance with the terms and conditions of this Agreement as if such death, incapacity or other event had not occurred, regardless of whether the Custodian or the Attorney-in-Fact shall have received notice thereof.
(c) Such Selling Shareholder, acting through his duly authorized Attorney-in-Fact, has duly executed and delivered this Agreement and the Custody Agreement and Power of Attorney; this Agreement constitutes a legal, valid and binding obligation of such Selling Shareholder, all authorizations and consents necessary for the execution and delivery of this Agreement and the Custody Agreement and Power of Attorney on behalf of such Selling Shareholder and for the sale and delivery of the Shares to be sold by such Selling Shareholder hereunder have been given, except as may be required by the Securities Act or state securities laws; and such Selling Shareholder has the legal capacity and full right, power and authority to execute this Agreement and the Custody Agreement and Power of Attorney.
(d) The performance of this Agreement and the Custody Agreement and Power of Attorney and the consummation of the transactions contemplated hereby and thereby by such Selling Shareholder will not result in a breach or violation of, or conflict with, any of the terms or provisions of, or constitute a default by such Selling Shareholder under, any indenture, mortgage, deed of trust, trust (constructive or other), loan agreement, lease, franchise, license or other agreement or instrument to which such Selling Shareholder or any of his or its properties is bound, or any statute, judgment, decree, order, rule or regulation of any court or governmental agency or body applicable to such Selling Shareholder or any of his, her or its properties.
(e) Such Selling Shareholder has not distributed nor, other than as permitted by the Securities Act and the Rules and Regulations, will distribute any prospectus or other offering material in connection with the offer and sale of the Shares other than any Preliminary Prospectus filed with the Commission or the Final Prospectus or other material permitted by the Securities ActUCC.
(f) Such Selling Shareholder has reviewed and is familiar with not prompted by any information concerning the Company or its subsidiaries which is not set forth in the Time of Sale Prospectus to sell its Shares pursuant to this Agreement.
(g) (i) The Registration Statement, when it became effective, did not contain and, as amended or supplemented, if applicable, will not contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading, (ii) the Registration Statement and the Preliminary Prospectus. To Prospectus comply and, as amended or supplemented, if applicable, will comply in all material respects with the knowledge Securities Act and the applicable rules and regulations of such Selling Shareholderthe Commission thereunder, (iii) the Time of Sale Prospectus does not, and at the time of each sale of the Shares in connection with the offering when the Prospectus is not yet available to prospective purchasers and at the Closing Date (as defined in Section 5), the Preliminary Prospectus does not include an Time of Sale Prospectus, as then amended or supplemented by the Company, if applicable, will not, contain any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading, (iv) each broadly available road show, if any, when considered together with the Time of Sale Prospectus, does not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading and (v) the Prospectus does not contain and, as amended or supplemented, if applicable, will not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading, except that the representations and warranties set forth in this paragraph 2(g) are made only as to statements or omissions made in reliance upon and in conformity with information furnished to the Company in writing by or on behalf of such Selling Shareholder specifically for use in the preparation of the Registration Statement or such other documents.
Appears in 1 contract
Samples: Underwriting Agreement (Sensata Technologies Holding N.V.)
Representations and Warranties of the Selling Shareholders. Each of the Selling Shareholders, severally and not jointly, Shareholder represents and warrants to and agrees with, each of the Underwriters Underwriter that:
(a) Such Selling Shareholder, at Shareholder is the First Closing Date, will have good and marketable title to lawful owner of the Shares set forth in Schedule II to be sold by such Selling ShareholderShareholder pursuant to this Agreement and has, and on the Closing Date will have, good and clear title to such Shares, free and clear of any all restrictions on transfer, liens, encumbrances, security interests, equities and claims whatsoever.
(other than as imposed by the Securities Act or this Agreement)b) Such Selling Shareholder has, and on the Closing Date will have, full legal right, power and authority authority, and all authorization and approval required by law, to effect enter into this Agreement, the sale Custody Agreement signed by such Selling Shareholder and delivery _________________________, as Custodian, relating to the deposit of the Shares to be sold by such Selling Shareholder (the "CUSTODY AGREEMENT") and the Power of Attorney of such Shares; Selling Shareholder appointing certain individuals as such Selling Shareholder's attorneys-in-fact (the "ATTORNEYS") to the extent set forth therein, relating to the transactions contemplated hereby and upon by the Registration Statement and the Custody Agreement (the "POWER OF ATTORNEY") and to sell, assign, transfer and deliver the Shares to be sold by such Selling Shareholder in the manner provided herein and therein.
(c) This Agreement has been duly authorized, executed and delivered by or on behalf of such Selling Shareholder.
(d) The Custody Agreement of such Selling Shareholder has been duly authorized, executed and delivered by such Selling Shareholder and is a valid and binding agreement of such Selling Shareholder, enforceable in accordance with its terms.
(e) The Power of Attorney of such Selling Shareholder has been duly authorized, executed and delivered by such Selling Shareholder and is a valid and binding instrument of such Selling Shareholder, enforceable in accordance with its terms, and, pursuant to such Power of Attorney, such Selling Shareholder has, among other things, authorized the Attorneys, or any one of them, to execute and deliver on such Selling Shareholder's behalf this Agreement and any other document that they, or any one of them, may deem necessary or desirable in connection with the transactions contemplated hereby and thereby and to deliver the Shares to be sold by such Selling Shareholder pursuant to this Agreement.
(f) Upon delivery of and payment for the Shares to be sold by such Selling Shareholder pursuant to this Agreement, good and marketable clear title theretoto such Shares will pass to the Underwriters, free and clear of any all restrictions on transfer, liens, encumbrances, security interests, equities and claims, of any kind, will be transferred to the Underwritersclaims whatsoever.
(b) Such Selling Shareholder has duly executed and delivered the Custody Agreement and Power of Attorney in the form previously delivered to the Representatives, appointing the persons named therein, and each of them as such Selling Shareholder's attorney-in-fact (the "Attorney-in-Fact") and as custodian (the "Custodian"). The Attorney-in-Fact is authorized to execute, deliver and perform this Agreement on behalf of such Selling Shareholder, to deliver the Shares to be sold by such Selling Shareholder hereunder, to accept payment therefor, and otherwise to act on behalf of such Selling Shareholder in connection with this Agreement, including payment from the Offering proceeds of expenses incurred on behalf of such Selling Shareholder. Certificates, in suitable form for transfer by delivery or accompanied by duly executed instruments of transfer or assignment in blank, representing the Shares to be sold by such Selling Shareholder hereunder have been deposited with the Custodian pursuant to the Custody Agreement and Power of Attorney for the purpose of delivery pursuant to this Agreement. Such Selling Shareholder agrees that the shares of Common Stock represented by the certificates on deposit with the Custodian are subject to the interest of the Underwriters hereunder, that the arrangements made for such custody and the appointment of the Attorney-in-Fact are to that extent irrevocable, and that the obligations of such Selling Shareholder hereunder shall not be terminated except as provided in this Agreement and the Custody Agreement and Power of Attorney. If such Selling Shareholder should die or become incapacitated, or if any other event should occur, before the delivery of the Shares of such Selling Shareholder hereunder, the certificates for such Shares deposited with the Custodian shall be delivered by the Custodian in accordance with the terms and conditions of this Agreement as if such death, incapacity or other event had not occurred, regardless of whether the Custodian or the Attorney-in-Fact shall have received notice thereof.
(c) Such Selling Shareholder, acting through his duly authorized Attorney-in-Fact, has duly executed and delivered this Agreement and the Custody Agreement and Power of Attorney; this Agreement constitutes a legal, valid and binding obligation of such Selling Shareholder, all authorizations and consents necessary for the execution and delivery of this Agreement and the Custody Agreement and Power of Attorney on behalf of such Selling Shareholder and for the sale and delivery of the Shares to be sold by such Selling Shareholder hereunder have been given, except as may be required by the Securities Act or state securities laws; and such Selling Shareholder has the legal capacity and full right, power and authority to execute this Agreement and the Custody Agreement and Power of Attorney.
(dg) The execution, delivery and performance of this Agreement and the Custody Agreement and Power of Attorney of such Selling Shareholder by or on behalf of such Selling Shareholder, the compliance by such Selling Shareholder with all the provisions hereof and thereof and the consummation of the transactions contemplated hereby and thereby by such Selling Shareholder will not result in a breach (i) require any consent, approval, authorization or violation other order of, or conflict qualification with, any court or governmental body or agency (except such as may be required under the securities or Blue Sky laws of the various states), (ii) conflict with or constitute a breach of any of the terms or provisions of, or constitute a default by under, the organizational documents of such Selling Shareholder, if such Selling Shareholder underis not an individual, or any indenture, mortgage, deed of trust, trust (constructive or other), loan agreement, leasemortgage, franchise, license lease or other agreement or instrument to which such Selling Shareholder is a party or any of his or its properties is bound, or any statute, judgment, decree, order, rule or regulation of any court or governmental agency or body applicable to by which such Selling Shareholder or any property of his, her or its properties.
(e) Such such Selling Shareholder has not distributed noris bound or (iii) violate or conflict with any applicable law or any rule, other than as permitted by the Securities Act and the Rules and Regulationsregulation, will distribute judgment, order or decree of any prospectus court or other offering material in connection with the offer and sale of the Shares other than any Preliminary Prospectus filed with the Commission governmental body or the Final Prospectus or other material permitted by the Securities Act.
(f) Such agency having jurisdiction over such Selling Shareholder has reviewed and is familiar with the Registration Statement and the Preliminary Prospectus. To the knowledge or any property of such Selling Shareholder.
(h) The information in the Registration Statement under the caption "Principal and Selling Shareholders" which specifically relates to such Selling Shareholder does not, and will not on the Preliminary Prospectus does not include an Closing Date, contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading.
(i) At any time during the period described in Section 5(d), if there is any change in the information referred to in Section 7(i), such Selling Shareholder will immediately notify you of such change.
(j) Each certificate signed by or on behalf of such Selling Shareholder and delivered to the Underwriters or counsel for the Underwriters shall be deemed to be a representation and warranty by such Selling Shareholder to the Underwriters as to the matters covered thereby.
(k) Each Selling Shareholder has received and reviewed a copy of the Registration Statement and the Prospectus and each Selling Shareholder has no reason to believe that (A) at the time the Registration Statement became effective or on the date of this Agreement that the Registration Statement and the prospectus included therein contained any untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary to make the statements therein not misleading and (B) each Selling Shareholder has no reason to believe that the Prospectus, as amended or supplemented, if applicable, contains any untrue statement of material fact or omits to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading.
Appears in 1 contract
Samples: Underwriting Agreement (Lecg Inc)
Representations and Warranties of the Selling Shareholders. Each ---------------------------------------------------------- of the Selling Shareholders, severally and severally, but not jointly, hereby represents and warrants to and agrees with, each of the Underwriters thatUnderwriter as follows:
(a) Such The Selling Shareholder, at the First Closing Date, will have good and marketable title to the Shares set forth in Schedule II to be sold by such Selling Shareholder, free and clear of any liens, encumbrances, equities and claims (other than as imposed by the Securities Act or this Agreement), and full right, power and authority to effect the sale and delivery of such Shares; and upon the delivery of and payment Shareholders has caused certificates for the number of Shares to be sold by such Selling Shareholder pursuant Shareholders, severally, but not jointly, hereunder to this Agreement, good and marketable title thereto, free and clear of any liens, encumbrances, equities and claims, of any kind, will be transferred to the Underwriters.
(b) Such Selling Shareholder has duly executed and delivered the Custody Agreement and Power of Attorney in the form previously delivered to the Representatives, appointing the persons named therein, and each of them as such Selling Shareholder's attorney-in-fact (the "Attorney-in-Fact") and as custodian American Stock Transfer & Trust Company (the "Custodian"). The Attorney-in-Fact is authorized , endorsed in blank or with blank stock powers duly executed, with a signature appropriately guaranteed, such certificates to executebe held in custody by the Custodian for delivery, deliver and perform pursuant to the provisions of this Agreement and an agreement dated ____________ among the Custodian and the Selling Shareholders (the "Custody Agreement").
(b) The Selling Shareholders has granted an irrevocable power of attorney (the "Power of Attorney") to the person named therein, on behalf of such the Selling ShareholderShareholders, to execute and deliver this Agreement and any other document necessary or desirable in connection with the transactions contemplated hereby and to deliver the Shares shares to be sold by such the Selling Shareholder hereunder, to accept payment therefor, and otherwise to act on behalf of such Selling Shareholder in connection with this Agreement, including payment from the Offering proceeds of expenses incurred on behalf of such Selling Shareholder. Certificates, in suitable form for transfer by delivery or accompanied by duly executed instruments of transfer or assignment in blank, representing the Shares to be sold by such Selling Shareholder hereunder have been deposited with the Custodian Shareholders pursuant to the Custody Agreement and Power of Attorney for the purpose of delivery pursuant to this Agreement. Such Selling Shareholder agrees that the shares of Common Stock represented by the certificates on deposit with the Custodian are subject to the interest of the Underwriters hereunder, that the arrangements made for such custody and the appointment of the Attorney-in-Fact are to that extent irrevocable, and that the obligations of such Selling Shareholder hereunder shall not be terminated except as provided in this Agreement and the Custody Agreement and Power of Attorney. If such Selling Shareholder should die or become incapacitated, or if any other event should occur, before the delivery of the Shares of such Selling Shareholder hereunder, the certificates for such Shares deposited with the Custodian shall be delivered by the Custodian in accordance with the terms and conditions of this Agreement as if such death, incapacity or other event had not occurred, regardless of whether the Custodian or the Attorney-in-Fact shall have received notice thereofhereto.
(c) Such Selling ShareholderThis Agreement, acting through his the Custody Agreement, the Power of Attorney and the Lock-Up Agreement have each been duly authorized Attorney-in-Factauthorized, has duly executed and delivered this Agreement and by or on behalf of the Custody Agreement and Power of Attorney; this Agreement constitutes a legalSelling Shareholders and, valid and binding obligation of such Selling Shareholderassuming due authorization, all authorizations and consents necessary for the execution and delivery of this Agreement by the other parties hereto, constitutes the valid and the Custody Agreement and Power of Attorney on behalf of such Selling Shareholder and for the sale and delivery legally binding agreement of the Shares to be sold by such Selling Shareholder hereunder have been givenShareholders, except as may be required by enforceable against the Securities Act or state securities laws; and such Selling Shareholder has the legal capacity and full right, power and authority to execute this Agreement and the Custody Agreement and Power of AttorneyShareholders in accordance with its terms.
(d) The performance execution and delivery by the Selling Shareholders of this Agreement and the Custody performance by the Selling Shareholders of its obligations under this Agreement and Power of Attorney and the consummation of the transactions contemplated hereby and thereby by such Selling Shareholder (i) will not result in a breach contravene any provision of applicable law, statute, regulation or violation of, filing or conflict with, any of the terms or provisions of, or constitute a default by such Selling Shareholder under, any indenture, mortgage, deed of trust, trust (constructive or other), loan agreement, lease, franchise, license agreement or other agreement or instrument to which such binding upon the Selling Shareholder Shareholders or any of his or its properties is bound, or any statute, judgment, decreeorder or decree of any governmental body, orderagency or court having jurisdiction over the Selling Shareholders, rule (ii) does not require any consent, approval, authorization or regulation order of or registration or filing with any court or governmental agency or body applicable to having jurisdiction over it, except such Selling Shareholder or any of his, her or its properties.
(e) Such Selling Shareholder has not distributed nor, other than as permitted may be required by the Securities Act and Blue Sky laws of the Rules and Regulations, will distribute any prospectus or other offering material various states in connection with the offer and sale of the Shares other than which have been or will be effected in accordance with this Agreement, except for such consents, approvals, authorizations, orders, registrations or filings, which have already been obtained or made, (iii) does not and will not violate any Preliminary Prospectus filed with statute, law, regulation or filing or judgment, injunction, order or decree applicable to the Commission Selling Shareholders or (iv) will not result in the Final Prospectus creation or other material permitted imposition of any lien, charge or encumbrance upon any property or assets of the Selling Shareholders pursuant to the terms of any agreement or instrument to which the Selling Shareholders is a party or by which the Securities ActSelling Shareholders may be bound or to which any of the property or assets of the Selling Shareholders is subject.
(fe) Such The Selling Shareholder has reviewed Shareholders has, and is familiar with on the Registration Statement Option Shares Closing Date will have, valid and marketable title to the Preliminary Prospectus. To Shares to be sold by the knowledge Selling Shareholders free and clear of such Selling Shareholderany lien, the Preliminary Prospectus does not include an untrue statement of a material fact claim, security interest or omit to state a material fact necessary in order to make the statements thereinother encumbrance, including, without limitation, any restriction on transfer, except as otherwise described in the light of the circumstances under which they were made, not misleading.Registration
Appears in 1 contract
Representations and Warranties of the Selling Shareholders. Each of the Selling ShareholdersShareholder, severally and not jointly, represents and warrants to and agrees withwith the several Underwriters, each of and shall be deemed to represent and warrant to the several Underwriters on the First Closing Date, that:
(a) Such Selling Shareholder has duly executed a custody agreement and power of attorney ("Custody Agreement and Power of Attorney") naming Xxxxxx X. Xxxxxx and Xxxxxx X. Xxxxxx, or either of them, as such Selling Shareholder's attorney(s)-in-fact ("Attorneys-in-Fact") for the purpose of entering into and carrying out this Agreement and naming LaSalle Bank National Association as custodian ("Custodian") of the Shares and, in the case of a Selling Shareholder who will be simultaneously exercising an option to purchase such Selling Shareholders' Shares (the "Option") and selling such Shares to the Underwriters at the First Closing Date, will have good a notice of exercise of such Option and marketable title the option agreement relating to such Option for the purpose of selling such Shares to the Shares set forth in Schedule II to be sold by such Selling Shareholder, free Underwriters and clear of any liens, encumbrances, equities and claims (other than as imposed by the Securities Act or this Agreement), and full right, power and authority to effect the sale and delivery of such Shares; and upon the delivery of and receiving payment for the Shares to be sold by such Selling Shareholder pursuant to this Agreement, good and marketable title thereto, free and clear of any liens, encumbrances, equities and claims, of any kind, will be transferred to the Underwriterstherefor.
(b) Such Selling Shareholder has duly executed All consents, approvals, authorizations and delivered orders necessary for the Custody Agreement execution and Power of Attorney in the form previously delivered to the Representatives, appointing the persons named therein, and each of them as such Selling Shareholder's attorney-in-fact (the "Attorney-in-Fact") and as custodian (the "Custodian"). The Attorney-in-Fact is authorized to execute, deliver and perform this Agreement on behalf of such Selling Shareholder, to deliver the Shares to be sold delivery by such Selling Shareholder hereunder, to accept payment therefor, and otherwise to act on behalf of such Selling Shareholder in connection with this Agreement, including payment from the Offering proceeds of expenses incurred on behalf of such Selling Shareholder. Certificates, in suitable form for transfer by delivery or accompanied by duly executed instruments of transfer or assignment in blank, representing the Shares to be sold by such Selling Shareholder hereunder have been deposited with the Custodian pursuant to the Custody Agreement and Power of Attorney for the purpose of delivery pursuant to this Agreement. Such Selling Shareholder agrees that the shares of Common Stock represented by the certificates on deposit with the Custodian are subject to the interest of the Underwriters hereunder, that the arrangements made for such custody and the appointment of the Attorney-in-Fact are to that extent irrevocable, and that the obligations of such Selling Shareholder hereunder shall not be terminated except as provided in this Agreement and the Custody Agreement and Power of Attorney. If such Selling Shareholder should die or become incapacitated, or if any other event should occur, before the delivery of the Shares of such Selling Shareholder hereunder, the certificates for such Shares deposited with the Custodian shall be delivered by the Custodian in accordance with the terms and conditions of this Agreement as if such death, incapacity or other event had not occurred, regardless of whether the Custodian or the Attorney-in-Fact shall have received notice thereof.
(c) Such Selling Shareholder, acting through his duly authorized Attorney-in-Fact, has duly executed and delivered this Agreement and the Custody Agreement and Power of Attorney; this Agreement constitutes a legal, valid and binding obligation of such Selling Shareholder, all authorizations and consents necessary for the execution and delivery of this Agreement and the Custody Agreement and Power of Attorney on behalf of such Selling Shareholder and for the sale and delivery of the Shares to be sold by such Selling Shareholder hereunder hereunder, as set forth on Schedule I annexed hereto, have been givenobtained. Such Selling Shareholder has good and valid title to the Shares or the Option, except as may be required by and at the Securities Act or state securities laws; and time of delivery thereof hereunder such Selling Shareholder will have, good and valid title to the Shares proposed to be sold by such Selling Shareholder hereunder, free and clear of all voting trust arrangements, liens, encumbrances, security interests, equities, claims and community or marital property rights, other than any created by the Custody Agreement and Power of Attorney or this Agreement for the benefit of the Underwriters. Such Selling Shareholder has the legal capacity and full right, power and authority to execute enter into this Agreement and the Custody Agreement and Power of AttorneyAttorney and to sell, assign, transfer and deliver such Shares hereunder, free and clear of all voting trust arrangements, liens, encumbrances, security interests, equities, claims and community or marital property rights, other than any created by the Custody Agreement and Power of Attorney or this Agreement for the benefit of the Underwriters. Upon delivery of and payment for such Shares hereunder, the Underwriters will acquire good and valid title thereto, free and clear of all voting trust arrangements, liens, encumbrances, security interests, equities, claims and community or marital property rights.
(c) Such Selling Shareholder has not distributed and will not distribute any Preliminary Prospectus, the Prospectus or any other material in connection with the offering and sale of the Shares. Such Selling Shareholder has not taken and will not take, directly or indirectly, any action designed to or which could cause or result in, under the Exchange Act or otherwise, stabilization or manipulation of the price of any security of the Company to facilitate the sale or resale of the Common Stock.
(d) The execution, delivery and performance by such Selling Shareholder of this Agreement and the Custody Agreement and Power of Attorney and will not, if applicable, result in the consummation violation of any provisions of the transactions contemplated hereby and thereby by Certificate of Incorporation, By-laws or other governing documents of such Selling Shareholder will not result in a breach or violation of, or conflict with, any of the terms or provisions ofShareholder, or constitute a default by such Selling Shareholder underbreach, or be in contravention, of any provision of any agreement, franchise, license, indenture, mortgage, deed of trust, trust (constructive or other), loan agreement, lease, franchise, license or other agreement or instrument to which such Selling Shareholder is a party or any of his by which such Selling Shareholder or its properties is boundsuch Selling Shareholder's property may be bound or affected, or any statute, judgment, decree, order, rule or regulation applicable to such Selling Shareholder, or violate any order or decree of any court or governmental court, regulatory body, administrative agency or other governmental body applicable to having jurisdiction over such Selling Shareholder or any of hissuch Selling Shareholder's property. No consent, her approval, authorization or its propertiesother order of any court, regulatory body, administrative agency or other governmental body is required for the execution and delivery of, and performance under, this Agreement by such Selling Shareholder or the consummation by such Selling Shareholder of the transactions contemplated by this Agreement, except for compliance with the Act, the Exchange Act, the Blue Sky Laws applicable to the public offering of the Shares by the Underwriters and the clearance of such offering with the NASD. Such Selling Shareholder hereby represents and warrants that each Attorney-in-Fact has been duly appointed as attorney-in-fact by such Selling Shareholder for the purpose of entering into and carrying out this Agreement, and the Custody Agreement and Power of Attorney has been duly executed and delivered by or on behalf of such Selling Shareholder to the Representatives.
(e) Such This Agreement and the Custody Agreement and Power of Attorney have been duly authorized, executed and delivered by and are each valid and binding agreements of such Selling Shareholder has not distributed nor, other than as permitted by the Securities Act and the Rules and Regulations, will distribute any prospectus or other offering material enforceable in connection accordance with the offer and sale of the Shares other than any Preliminary Prospectus filed with the Commission or the Final Prospectus or other material permitted by the Securities Acttheir respective terms.
(f) (Such Selling Shareholder has reviewed deposited in custody, under the Custody Agreement and is familiar Power of Attorney, the Options and the Shares to be sold hereunder by such Selling Shareholder as set forth opposite such Selling Shareholder's name on Schedule I annexed hereto for the purpose of further delivery pursuant to this Agreement. Such Selling Shareholder agrees that the Shares or Options of such Selling Shareholder on deposit with the Registration Statement Custodian are subject to the interests of the Company, the Underwriters and the Preliminary Prospectus. To other Selling Shareholders, that the knowledge arrangements made for such custody, and the appointment of the Attorneys-in-Fact pursuant to the Custody Agreement and Power of Attorney, are to that extent irrevocable, and that the obligations of such Selling Shareholder hereunder and under Custody Agreement and Power of Attorney shall not be terminated, except as provided in this Agreement and the Custody Agreement and Power of Attorney, by any act of such Selling Shareholder, by operation of law, whether in the case of an individual Selling Shareholder, by the death or incapacity of such Selling Shareholder or, in the case of a trust or estate, by the death of the trustee or trustees or the executor or executors or the termination of such trust or estate, or, in the case of a partnership or corporation, by the dissolution, winding up or other event affecting the legal life of such entity, or by the occurrence of any other event. If any individual Selling Shareholder, trustee or executor should die or become incapacitated, or any such trust, estate, partnership or corporation should be terminated, or if any other event should occur before the delivery of the Shares hereunder, the Shares then on deposit with the Custodian shall, to the extent such Shares are purchased by the Underwriters, be delivered by the Custodian in accordance with the terms and conditions of this Agreement and Custody Agreement and Power of Attorney as if such death, incapacity, termination or other event had not occurred, regardless of whether or not the Custodian shall have received notice thereof. Such Selling Shareholder represents that each Attorney-in-Fact has been authorized by such Selling Shareholder to execute and deliver this Agreement and the Custodian has been authorized to receive and acknowledge receipt of the proceeds of sale of the Shares sold by such Selling Shareholder against delivery thereof and otherwise to act on behalf of such Selling Shareholder.
(g) Insofar as it relates to information concerning such Selling Shareholder, each Preliminary Prospectus does Prospectus, as of its date, conformed in all material respects with the requirements of the Act and, as of its date, did not include an any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in therein not misleading; and on the light effective date of the circumstances under which Registration Statement and at all times subsequent thereto up to the First Closing Date, (i) the Registration Statement and the Prospectus, as they were maderelate to information concerning such Selling Shareholder, did or will conform to the requirements of the Act, and (ii) neither the Registration Statement nor the Prospectus as it relates to information concerning such Selling Shareholder did or will include any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein not misleading.
(h) The information contained in such Selling Shareholder's Questionnaire completed in connection with the Company's public offering and delivered to the Representatives was, as of the date of such questionnaire, and is, as of the date of this Agreement, true and correct.
(i) The sale of such Selling Shareholder's Shares pursuant to this Agreement is not prompted by any information concerning the Company which is not set forth in the Prospectus. A certificate signed by or on behalf of any Selling Shareholder as such and delivered to the Representatives or to counsel for the Underwriters shall be deemed a representation and warranty by such Selling Shareholder to the Underwriters as to the matters covered thereby. A certificate delivered by or on behalf of any Selling Shareholder to counsel for the Selling Shareholders for purposes of enabling such counsel to render the opinion referred in section 10(e) will also be furnished to the Representatives and counsel for the Underwriters and shall be deemed to be additional representations and warranties to the Underwriters by such Selling Shareholder as to the matters covered thereby.
Appears in 1 contract
Samples: Underwriting Agreement (LKQ Corp)
Representations and Warranties of the Selling Shareholders. Each of the Selling ShareholdersShareholder, severally and not jointly, represents and warrants to each Underwriter on the date hereof, and agrees withshall be deemed to represent and warrant to each Underwriter on the Closing Date and the Additional Closing Date, each of the Underwriters that:
(a) Such Selling ShareholderShareholder now is, and at the First time of delivery by it of any Shares (whether the Closing Date or the Additional Closing Date, as the case may be) will have good be, the lawful owner of the number of Shares to be sold by such Selling Shareholder pursuant to this Agreement and has, and at the time of delivery thereof will have, valid and marketable title to the Shares set forth in Schedule II to be sold by such Selling Shareholder, free and clear of any liens, encumbrances, equities and claims it.
(other than as imposed by the Securities Act or this Agreement), and full right, power and authority to effect the sale and delivery of such Shares; and upon the b) Upon delivery of and payment for the Shares (whether at the Closing Date or the Additional Closing Date, as the case may be) to be sold by such Selling Shareholder pursuant to this Agreement, good the Underwriters will acquire valid and marketable title thereto, to such Shares free and clear of any liensclaim, encumbranceslien, equities encumbrance, security interest, community property right, restriction on transfer or other defect in title (other than any restriction on transfer imposed by the Act and claims, the securities or blue sky laws of any kind, will be transferred to the Underwriterscertain jurisdictions).
(bd) Such Selling Shareholder has duly (i) executed and delivered the Custody Agreement and a Power of Attorney in (the form previously delivered to the Representatives"Power of Attorney") appointing John X. Xxxxxx xxx Jeffxxx X. Xxxxxx, appointing the persons named therein, and xxd each of them them, as such Selling Shareholder's attorneyattorneys-in-fact (the "AttorneyAttorneys-in-Fact") with authority to execute and as custodian (the "Custodian"). The Attorney-in-Fact is authorized to execute, deliver and perform this Agreement on behalf of such Selling Shareholder, to deliver determine the Shares purchase price to be sold paid by such the Underwriters to the Selling Shareholder hereunder, to accept payment therefor, and otherwise to act on behalf of such Selling Shareholder in connection with this Agreement, including payment from the Offering proceeds of expenses incurred on behalf of such Selling Shareholder. Certificates, in suitable form for transfer by delivery or accompanied by duly executed instruments of transfer or assignment in blank, representing the Shares to be sold by such Selling Shareholder hereunder have been deposited with the Custodian pursuant to the Custody Agreement and Power of Attorney for the purpose of delivery pursuant to this Agreement. Such Selling Shareholder agrees that the shares of Common Stock represented by the certificates on deposit with the Custodian are subject to the interest of the Underwriters hereunder, that the arrangements made for such custody and the appointment of the Attorney-in-Fact are to that extent irrevocable, and that the obligations of such Selling Shareholder hereunder shall not be terminated except as provided in this Agreement Section 2 hereof and to authorize the Custody Agreement and Power of Attorney. If such Selling Shareholder should die or become incapacitated, or if any other event should occur, before the delivery of the Shares of such Selling Shareholder hereunder, the certificates for such Shares deposited with the Custodian shall be delivered by the Custodian in accordance with the terms and conditions of this Agreement as if such death, incapacity or other event had not occurred, regardless of whether the Custodian or the Attorney-in-Fact shall have received notice thereof.
(c) Such Selling Shareholder, acting through his duly authorized Attorney-in-Fact, has duly executed and delivered this Agreement and the Custody Agreement and Power of Attorney; this Agreement constitutes a legal, valid and binding obligation of such Selling Shareholder, all authorizations and consents necessary for the execution and delivery of this Agreement and the Custody Agreement and Power of Attorney on behalf of such Selling Shareholder and for the sale and delivery of the Shares to be sold by such Selling Shareholder hereunder have been givenin connection with this Agreement, except and (ii) has executed and delivered, or caused to be executed and delivered on such Selling Shareholder's behalf, a Custody Agreement among the Company, as may be required by custodian, and the Securities Act or state securities laws; Selling Shareholders (the "Custody Agreement"), and in connection therewith such Selling Shareholder further represents, warrants and agrees that such Selling Shareholder has deposited in custody, under the legal capacity and full right, power and authority to execute this Agreement and the Custody Agreement and Power of AttorneyAttorney and Custody Agreement, certificates in negotiable form for the Shares to be sold hereunder by such Selling Shareholder, for the purpose of further delivery pursuant to this Agreement.
(de) The performance of this Agreement and This Agreement, the Custody Agreement and Power of Attorney and the consummation of the transactions contemplated hereby Custody Agreement have been duly executed and thereby delivered by such Selling Shareholder will not result in and each is a breach or violation oflegal, or conflict with, any valid and binding agreement of the terms or provisions of, or constitute a default by such Selling Shareholder underenforceable in accordance with its terms, except insofar as rights to indemnity and contribution may be limited by federal and state securities laws and as the enforceability hereof and thereof may be limited by (i) bankruptcy, reorganization, insolvency, fraudulent conveyance or transfer, moratorium or similar laws affecting the enforcement of creditors' rights generally, and (ii) general principles of equity (regardless of whether such is considered at law or in equity).
(f) When the Registration Statement becomes effective and at all times subsequent thereto through the latest of the Closing Date, the Additional Closing Date or the termination of the offering of the Shares, the Registration Statement and Prospectus, and any indenturesupplements or amendments thereto, mortgage, deed of trust, trust (constructive or other), loan agreement, lease, franchise, license or other agreement or instrument to which such Selling Shareholder or any of his or its properties is bound, or any statute, judgment, decree, order, rule or regulation of any court or governmental agency or body applicable insofar as they relate to such Selling Shareholder or any of his, her or its properties.
(e) Such contain information furnished by such Selling Shareholder has not distributed nor, other than as permitted by the Securities Act and the Rules and Regulationsfor inclusion therein, will distribute any prospectus or other offering material in connection with the offer and sale of the Shares other than any Preliminary Prospectus filed with the Commission or the Final Prospectus or other material permitted by the Securities Act.
(f) Such Selling Shareholder has reviewed and is familiar with the Registration Statement and the Preliminary Prospectus. To the knowledge of such Selling Shareholder, the Preliminary Prospectus does not include contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading.
(g) The sale of such Selling Shareholder's Shares pursuant to this Agreement is not prompted by any information concerning the Company which is not set forth in the Prospectus.
(h) the price of any security of the Company to facilitate the sale or resale of the Shares or (ii) since the filing of the Registration Statement, bid for, purchased or paid anyone any compensation for soliciting purchases of, the Shares.
Appears in 1 contract
Representations and Warranties of the Selling Shareholders. Each of the Selling ShareholdersShareholders severally represent and warrant to, severally and not jointly, represents and warrants to and agrees agree with, each of the Underwriters Underwriter that:
(a) Such Selling Shareholder, at the First Closing Date, will have good and marketable title to the Shares set forth in Schedule II to be sold by such Selling Shareholder, free and clear of any liens, encumbrances, equities and claims (other than as imposed by the Securities Act or this Agreement), and full right, power and authority to effect the sale and delivery of such Shares; and upon the delivery of and payment for the Shares to be sold by such Selling Shareholder pursuant to this Agreement, good and marketable title thereto, free and clear of any liens, encumbrances, equities and claims, of any kind, will be transferred to the Underwriters.
(b) Such Selling Shareholder has duly executed and delivered the a Custody Agreement and Power of Attorney (the "Custody Agreement"), in the form previously heretofore delivered to the Representatives, appointing the persons named therein, and each of them as such Selling Shareholder's attorney-in-fact (the "Attorney-in-Fact") and with Continental Stock Transfer & Trust Company as custodian (the "Custodian"). Such Selling Shareholder has duly executed and delivered a power of attorney as provided for in the Custody Agreement and in the form heretofore delivered to the Representatives, (the "Power of Attorney") appointing Xxxx Xxxxxxxxx and Xxxxxx Xxxxxxxxxx as such Selling Shareholder's attorneys-in- fact (the "Attorneys-in-Fact"). The AttorneyAttorneys-in-Fact is are authorized to execute, deliver and perform this Agreement on behalf of such Selling Shareholder, including, without limitation, the authority to deliver determine the purchase price to be paid to each Selling Shareholder by the Underwriters as set forth in Section 3 of this Agreement. Certificates in negotiable form representing the Offered Shares to be sold by such Selling Shareholder hereunder, to accept payment therefor, and otherwise to act on behalf of such Selling Shareholder in connection with this Agreement, including payment from the Offering proceeds of expenses incurred on behalf of such Selling Shareholder. Certificates, in suitable form for transfer by delivery or accompanied by duly executed instruments of transfer or assignment in blank, representing the Shares to be sold by such each Selling Shareholder hereunder have been shall be, following exercise of the warrant pursuant to which such Offered Shares are issued, deposited with the Custodian pursuant to the Custody Agreement and Power of Attorney for the purpose of delivery pursuant to this Agreement. Such Selling Shareholder agrees that the shares of Common Stock Offered Shares represented by the certificates to be on deposit with the Custodian pursuant to the Custody Agreement are held for the purpose of delivery pursuant to this Agreement. Such Selling Shareholder agrees that the Offered Shares represented by the certificates to be deposited with the Custodian are subject to the interest interests of the Underwriters hereunder, that the arrangements made for such custody and the appointment of the AttorneyAttorneys-in-Fact are to that extent irrevocable, and that the obligations of such Selling Shareholder hereunder shall not be terminated terminated, except as provided in this Agreement and the Custody Agreement and Power Agreement, by any act of Attorney. If such Selling Shareholder should die Shareholder, by operation of law or become incapacitatedotherwise, whether by the dissolution, reorganization, death, incapacity or if any other such event should occur, occur before the delivery of the Offered Shares of such to be sold by the affected Selling Shareholder hereunder, the certificates for such Offered Shares deposited with the Custodian shall be delivered by the Custodian in accordance with the terms and conditions of this Agreement Agreement, as if such dissolution, reorganization, death, incapacity incapacity, or other event had not occurred, regardless of whether or not the Custodian or the AttorneyAttorneys-in-Fact shall have received notice thereof.
(cb) Such Selling ShareholderShareholder has all requisite right, acting through his duly authorized Attorney-in-Factpower and authority to enter into this Agreement, has duly executed and delivered this Agreement and the Custody Agreement and Power of Attorney; this Agreement constitutes a legal, valid and binding obligation of such Selling Shareholder, all authorizations and consents necessary for the execution and delivery of this Agreement and the Custody Agreement and Power of Attorney on behalf and has, or, in the case of such Selling Shareholder shares of Common Stock to be issued upon exercise of Common Stock options, will have, all requisite right, power and for authority to sell, transfer and deliver the sale and delivery of the Offered Shares to be sold by such Selling Shareholder hereunder have been givenhereunder, except as may be required by the Securities Act or state securities laws; and such Selling Shareholder has the legal capacity and full rightthis Agreement, power and authority to execute this Agreement and the Custody Agreement and the Power of AttorneyAttorney have been duly authorized, executed and delivered by such Selling Shareholder and constitute the legal, valid and binding obligations of such Selling Shareholder enforceable in accordance with their respective terms.
(dc) The execution, delivery and performance of this Agreement and the Custody Agreement and Power of Attorney Agreement, and the consummation of the transactions contemplated hereby and thereby by such Selling Shareholder will the Prospectus, the Custody Agreement and the Power of Attorney do not and shall not, with or without the giving of notice or lapse of time or both, (i) conflict with or result in a breach or violation of, or conflict with, of any of the terms or provisions of, or constitute a default by such Selling Shareholder under, any indenture, mortgage, deed of trust, trust (constructive or other), loan agreement, lease, franchise, license mortgage or other agreement or instrument to which such Selling Shareholder is a party or any of his or its properties is bound, or any statute, judgment, decree, order, rule or regulation of any court or governmental agency or body applicable to by which such Selling Shareholder or any of histhe Offered Shares to be sold by such Selling Shareholder is bound, her (ii) any organizational document relating to such Selling Shareholder (including without limitation, any partnership agreement, articles of incorporation, bylaws or its propertiesother governing instruments) or (iii) violate any existing, applicable law, rule, regulation, judgment, order or decree of any government, governmental instrumentality or court, domestic or foreign, having jurisdiction over such Selling Shareholder or any of the Offered Shares to be sold by such Selling Shareholder.
(d) All authorizations, approvals and consents necessary for the valid execution and delivery by such Selling Shareholder of the Custody Agreement and the Power of Attorney, the execution and delivery by or on behalf of such Selling Shareholder of this Agreement, and the sale and delivery of the shares to be sold by such Selling Shareholder hereunder (other than, at the time of the execution thereof, the issuance of the order of the Commission declaring the Registration Statement effective and such authorizations, approvals or consents as may be necessary under the state securities or Blue Sky laws and the bylaws, rules and pronouncements of the NASD), have been obtained and are in full force and effect.
(e) Such On the Closing Date and any Option Closing Date, such Selling Shareholder has not distributed norwill be the lawful owner of the Offered Shares to be sold by such Selling Shareholder pursuant to this Agreement. On the Closing Date and any Option Closing Date, such Selling Shareholder will have good and marketable title to such Offered Shares, free and clear of all liens, encumbrances, security interests or other restrictions (other than as permitted by those created under the Securities Act and the Rules and Regulations, will distribute any prospectus or other offering material in connection with the offer and sale of the Shares other than any Preliminary Prospectus filed with the Commission or the Final Prospectus or other material permitted by the Securities ActCustody Agreement).
(f) On the Closing Date and any Option Closing Date, such Selling Shareholder will have full legal right, power and authorization, and any approval required by law, to sell, assign, transfer and deliver such Offered Shares in the manner provided in this Agreement, the Power of Attorney and the Custody Agreement, and upon delivery of and payment for such Offered Shares hereunder, the several Underwriters will acquire good and marketable title to such Offered Shares free and clear of any lien, claim, security interest or other encumbrance.
(g) Such Selling Shareholder has reviewed and is familiar with not prompted to sell the Registration Statement and Offered Shares to be sold by such Selling Shareholder hereunder by any information concerning the Preliminary Company or the Subsidiaries that is not set forth in the Prospectus. .
(h) To the knowledge of such Selling Shareholder, the Preliminary representations and warranties of the Company contained in Section 1 hereof are true and correct. Such Selling Shareholder has examined the Registration Statement and the Prospectus does not include an and the information relating to such Selling Shareholder set forth therein and, as to such information, neither the Registration Statement nor the Prospectus contains any untrue statement of a material fact or omit omits to state a any material fact required to be stated therein or necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading.
(i) Such Selling Shareholder has not incurred any liability for any finder's fee or similar payment in connection with the sale of such Selling Shareholder's Offered Shares hereunder.
(j) Such Selling Shareholder has not distributed and will not distribute any offering material in connection with the offering and sale of the Offered Shares other than the Registration Statement, a Preliminary Prospectus, the Prospectus and other material, if any, permitted by the Act and the Regulations. Neither such Selling Shareholder nor any affiliate of such Selling Shareholder has taken or shall take any action designed, or that might be reasonably expected, to cause or result in stabilization or manipulation of the price of the Offered Shares.
Appears in 1 contract
Representations and Warranties of the Selling Shareholders. Each of the Selling Shareholders, severally and not jointly, represents and warrants to and agrees with, with each of the Underwriters that:
(a) Such Selling Shareholder, at if an entity, has been duly organized and is validly existing as a company or a limited partnership, as the First Closing Datecase may be, will have in good standing in its jurisdiction of formation.
(b) This Agreement has been duly authorized, executed and marketable title to the Shares set forth in Schedule II to be sold delivered by or on behalf of such Selling Shareholder.
(c) The execution and delivery by such Selling ShareholderShareholder of, free and clear the performance by such Selling Shareholder of any liensits obligations under, encumbrances, equities and claims (other than as imposed by the Securities Act or this Agreement), the Custody Agreement signed by such Selling Shareholder and full right[•], power and authority as Custodian, relating to effect the sale and delivery deposit of such Shares; and upon the delivery of and payment for the Shares representing the ADSs to be sold by such Selling Shareholder pursuant to this (the “Custody Agreement, good ”) and marketable title thereto, free and clear of any liens, encumbrances, equities and claims, of any kind, will be transferred to the Underwriters.
(b) Such Selling Shareholder has duly executed and delivered the Custody Agreement and Power of Attorney in the form previously delivered to the Representatives, appointing the persons named therein, and each of them certain individuals as such Selling Shareholder's attorney’s attorneys-in-fact (the "Attorney“Attorneys-in-Fact"fact”) and as custodian (the "Custodian"). The Attorney-in-Fact is authorized to execute, deliver and perform this Agreement on behalf of such Selling Shareholder, to deliver the Shares to be sold by such Selling Shareholder hereunder, to accept payment therefor, and otherwise to act on behalf of such Selling Shareholder in connection with this Agreement, including payment from the Offering proceeds of expenses incurred on behalf of such Selling Shareholder. Certificates, in suitable form for transfer by delivery or accompanied by duly executed instruments of transfer or assignment in blank, representing the Shares to be sold by such Selling Shareholder hereunder have been deposited with the Custodian pursuant to the Custody Agreement and Power of Attorney for the purpose of delivery pursuant extent set forth therein, relating to this Agreement. Such Selling Shareholder agrees that the shares of Common Stock represented by the certificates on deposit with the Custodian are subject to the interest of the Underwriters hereunder, that the arrangements made for such custody and the appointment of the Attorney-in-Fact are to that extent irrevocable, and that the obligations of such Selling Shareholder hereunder shall not be terminated except as provided in this Agreement and the Custody Agreement and Power of Attorney. If such Selling Shareholder should die or become incapacitated, or if any other event should occur, before the delivery of the Shares of such Selling Shareholder hereunder, the certificates for such Shares deposited with the Custodian shall be delivered by the Custodian in accordance with the terms and conditions of this Agreement as if such death, incapacity or other event had not occurred, regardless of whether the Custodian or the Attorney-in-Fact shall have received notice thereof.
(c) Such Selling Shareholder, acting through his duly authorized Attorney-in-Fact, has duly executed and delivered this Agreement and the Custody Agreement and Power of Attorney; this Agreement constitutes a legal, valid and binding obligation of such Selling Shareholder, all authorizations and consents necessary for the execution and delivery of this Agreement and the Custody Agreement and Power of Attorney on behalf of such Selling Shareholder and for the sale and delivery of the Shares to be sold by such Selling Shareholder hereunder have been given, except as may be required by the Securities Act or state securities laws; and such Selling Shareholder has the legal capacity and full right, power and authority to execute this Agreement and the Custody Agreement and Power of Attorney.
(d) The performance of this Agreement and the Custody Agreement and Power of Attorney and the consummation of the transactions contemplated hereby and thereby by such Selling Shareholder the Registration Statement (the “Power of Attorney”) will not conflict with or result in a breach or violation of, or conflict with, of any of the terms or provisions of, or constitute a default by such Selling Shareholder under, any contract, indenture, mortgage, deed of trust, trust (constructive loan or other), loan credit agreement, leasenote, franchise, license lease or other agreement or instrument to which such Selling Shareholder is a party or any of his or its properties by which such Selling Shareholder is bound, or to which any statuteof the property or assets of such Selling Shareholder is subject, judgmentnor will such action result in any violation of the provisions of the constituent documents of such Selling Shareholder if such Selling Shareholder is a corporation, decree, the partnership agreement of such Selling Shareholder if such Selling Shareholder is a partnership or any statute or any order, rule or regulation of any court or governmental agency or body applicable to having jurisdiction over such Selling Shareholder or any the property of his, her or its propertiessuch Selling Shareholder.
(ed) Such No consent, approval, authorization or order of, or filing or registration with, any court or governmental agency or body having jurisdiction over such Selling Shareholder has not distributed noror the property or assets of such Selling Shareholder is required for the execution, other than as permitted delivery and performance of this Agreement, the Custody Agreement or the Power of Attorney by such Selling Shareholder or the consummation by such Selling Shareholder of the transactions contemplated hereby and thereby, except for the registration of the Shares under the Securities Act and such consents, approvals, authorizations, registrations or qualifications as may be required by the Rules and Regulations, will distribute any prospectus securities or other offering material Blue Sky laws of the various states in connection with the offer and sale of the ADSs.
(e) Such Selling Shareholder has, and immediately prior to the Closing Date and each Option Closing Date such Selling Shareholder will have, good and valid title to the Shares other than any Preliminary Prospectus filed with the Commission or the Final Prospectus or other material permitted to be represented by the Securities ActADSs to be sold by such Selling Shareholder hereunder at such Closing Date or Option Closing Date, free and clear of all liens, encumbrances, equities or claims and has the legal right and power, and all authorization and approval required by law, to enter into this Agreement, the Custody Agreement and the Power of Attorney and to sell, transfer and deliver the ADSs and the Shares represented thereby to be sold by such Selling Shareholder; upon delivery of the ADSs representing such Shares and payment therefor pursuant hereto, good and valid title to such ADSs, free and clear of all liens, encumbrances, equities or claims, will pass to the several Underwriters.
(f) No stamp or other issuance or transfer taxes or duties and no capital gains, income, withholding or other taxes are payable by or on behalf of the Underwriters to the government of the PRC, the Cayman Islands or any political subdivision or taxing authority thereof in connection with the deposit with the Depositary of the Shares by such Selling Shareholder against the issuance of ADRs evidencing the ADSs, the sale and delivery by such Selling Shareholder of the ADSs to or for the respective accounts of the several Underwriters or the sale and delivery by the Underwriters of the ADSs to the initial purchasers thereof in the manner contemplated by this Agreement and the Prospectus.
(g) The Custody Agreement and the Power of Attorney have been duly authorized, executed and delivered by such Selling Shareholder and are valid and binding agreements of such Selling Shareholder.
(h) The Shares represented by the ADSs to be sold by such Selling Shareholder may be freely deposited by such Selling Shareholder with the Depositary against issuance of ADRs evidencing the ADSs; the ADSs, when issued and delivered against payment thereof, will be freely transferable by such Selling Shareholder to or for the accounts of the several Underwriters; and there are no restrictions on subsequent transfers of the ADSs under the laws of the Cayman Islands, the PRC or the United States.
(i) Such Selling Shareholder has reviewed no reason to believe that the representations and warranties of the Company contained in Section 1 hereof are not true and correct, is familiar with the Registration Statement Statement, the Time of Sale Prospectus and the Preliminary Prospectus. To the Prospectus and has no knowledge of any material fact, condition or information not disclosed in the Time of Sale Prospectus or the Prospectus that has had, or may have, a material adverse effect on the Company and its Subsidiaries, taken as a whole. Such Selling Shareholder is not prompted by any information concerning the Company or its Subsidiaries which is not set forth in the Time of Sale Prospectus to sell ADSs pursuant to this Agreement.
(j) As it relates to such Selling Shareholder, the Preliminary Prospectus does and each preliminary prospectus, at the time of filing thereof, did not include contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading; provided, however, that this representation and warranty shall apply only to statements or omissions made in reliance upon and in conformity with information furnished in writing to the Company by such Selling Shareholder expressly for use therein.
(k) As it relates to such Selling Shareholder, the Registration Statement and any further amendments or supplements to the Registration Statement does not and will not, as of the applicable effective date as to each part of the Registration Statement and any amendment or supplement thereto, contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading; provided, however, that this representation and warranty shall apply only to statements or omissions made in reliance upon and in conformity with information furnished in writing to the Company by such Selling Shareholder expressly for use therein.
(l) Such 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 ADSs, 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).
(m) Such Selling Shareholder does not have, or has waived prior to the date hereof, any preemptive right, co-sale right or right of first refusal or other similar right to purchase any of the ADSs that are to be sold by the Company or any other Selling Shareholder or the Shares represented thereby to the Underwriters pursuant to this Agreement; and such 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, rights, warrants, options or other securities from the Company, other as described in the Registration Statement, the Time of Sale Prospectus and the Prospectus.
(n) There are no contracts, agreements or understandings between such 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 such Selling Shareholder’s knowledge, any other arrangements, agreements, understandings, payments or issuance with respect to the Company or any of its officers, directors, shareholders, partners, employees, Subsidiaries or affiliates that may affect the Underwriters’ compensation as determined by FINRA.
(o) There are no affiliations or associations between any member of FINRA and such Selling Shareholder, except as disclosed in the Registration Statement, the Time of Sale Prospectus and the Prospectus or as set forth in a questionnaire completed by such Selling Shareholder and delivered to the Representatives prior to the date of this Agreement; none of the proceeds received by such Selling Shareholder from the sale of the ADSs to be sold by such Selling Shareholder pursuant to this Agreement will be paid to a member of FINRA or any affiliate of (or person “associated with”, as such terms are used in the Rules of FINRA) such member.
(p) Such Selling Shareholder has not, prior to the execution of this Agreement, offered or sold any Ordinary Shares or American Depositary Shares of the Company by means of any “prospectus” (within the meaning of the Securities Act), or used any “prospectus” (within the meaning of the Securities Act) in connection with the offer or sale of the ADSs or the Shares, in each case other than the then most recent preliminary prospectus.
(q) Such Selling Shareholder represents that it 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 ADSs.
(r) Such Selling Shareholder has not taken, directly or indirectly, any action designed to cause or result in, or that has constituted or might reasonably be expected to constitute, the stabilization or manipulation of the price of any securities of the Company.
(s) (i) Such Selling Shareholder represents that neither it nor, to the knowledge of such Selling Shareholder, any director, officer, employee, agent, affiliate or representative of such Selling Shareholder, is an individual or entity (“Person”) that is, or is owned or controlled by a Person that is:
(A) the target of any sanctions administered or enforced by the U.S. Department of Treasury’s Office of Foreign Assets Control (“OFAC”) (collectively “Sanctions”), or;
(B) organized or resident in a country or territory that is the subject of Sanctions, specifically Burma/Myanmar, Cuba, Iran, North Korea, Sudan or Syria.
Appears in 1 contract
Representations and Warranties of the Selling Shareholders. Each of the Selling ShareholdersShareholder, severally and not jointly, represents and warrants to each Underwriter and agrees withthe Company on the date hereof, and shall be deemed to represent and warrant to each of Underwriter and the Underwriters Company on the Closing Date and the Additional Closing Date, that:
(a) Such Selling Shareholder, at the First Closing Date, will have good and marketable title to the Shares set forth in Schedule II to be sold by such Selling Shareholder, free and clear of any liens, encumbrances, equities and claims (other than as imposed by the Securities Act or this Agreement), and Shareholder has full right, power and authority to effect the sale sell, assign, transfer and delivery of such Shares; and upon the delivery of and payment for the Shares to be sold by such Selling Shareholder pursuant to this Agreement, good and marketable title thereto, free and clear of any liens, encumbrances, equities and claims, of any kind, will be transferred to the Underwriters.
(b) Such Selling Shareholder has duly executed and delivered the Custody Agreement and Power of Attorney in the form previously delivered to the Representatives, appointing the persons named therein, and each of them as such Selling Shareholder's attorney-in-fact (the "Attorney-in-Fact") and as custodian (the "Custodian"). The Attorney-in-Fact is authorized to execute, deliver and perform this Agreement on behalf of such Selling Shareholder, to deliver the Shares to be sold by such Selling Shareholder hereunder; and upon delivery of such Shares hereunder and payment of the purchase price as herein contemplated, each of the Underwriters will obtain valid marketable title to the Shares purchased by it from such Selling Shareholder, free and clear of any pledge, lien, security interest, encumbrance, claim or equitable interest, including any liability for estate or inheritance taxes, or any liability to or claims of any creditor, devisee, legatee or beneficiary of such Selling Shareholder.
(b) Such Selling Shareholder has duly authorized (if applicable), executed and delivered, in the form heretofore furnished to the Representatives, a Power of Attorney (the "Power of Attorney") appointing Xxxxxx X. Xxxxxxx, Xx. and V. Xxxxx Xxxxxxxxx as attorneys-in-fact (collectively, the "Attorneys" and individually, an "Attorney") and a Letter of Transmittal and Custody Agreement (the "Custody Agreement") with Xxxxx Xxxxxx Shareholder Services, LLC, as custodian (the "Custodian"); each of the Power of Attorney and the Custody Agreement constitutes a valid and binding agreement of such Selling Shareholder, enforceable against such Selling Shareholder in accordance with its terms, and each of such Selling Shareholder's Attorneys, acting alone, is authorized to execute and deliver this Agreement and the certificate referred to in Section 9(i) hereof on behalf of such Selling Shareholder, subject to the minimum purchase price as provided in the Power of Attorney to determine the purchase price to be paid by the several Underwriters to such Selling Shareholder as provided in Section 2 hereof, to authorize the delivery of the Shares to be sold by the Selling Shareholders under this Agreement and to duly endorse (in blank or otherwise) the certificate or certificates representing such Shares or a stock power or powers with respect thereto, to accept payment therefor, and otherwise to act on behalf of such Selling Shareholder in connection with this Agreement, including payment from the Offering proceeds of expenses incurred on behalf of such Selling Shareholder. Certificates, Certificates in suitable negotiable form for transfer by delivery or accompanied by duly executed instruments of transfer or assignment in blank, representing the all Shares to be sold by such Selling Shareholder hereunder under this Agreement, together with a stock power or powers duly endorsed in blank by such Selling Shareholder, have been deposited placed in custody with the Custodian pursuant to the Custody Agreement and Power of Attorney for the purpose of effecting delivery pursuant to this Agreement. Such Selling Shareholder agrees that the shares of Common Stock represented by the certificates on deposit with the Custodian are subject to the interest of the Underwriters hereunder, that the arrangements made for such custody and the appointment of the Attorney-in-Fact are to that extent irrevocable, and that the obligations of such Selling Shareholder hereunder shall not be terminated except as provided in this Agreement and the Custody Agreement and Power of Attorney. If such Selling Shareholder should die or become incapacitated, or if any other event should occur, before the delivery of the Shares of such Selling Shareholder hereunder, the certificates for such Shares deposited with the Custodian shall be delivered by the Custodian in accordance with the terms and conditions of this Agreement as if such death, incapacity or other event had not occurred, regardless of whether the Custodian or the Attorney-in-Fact shall have received notice thereof.
(c) Such Selling ShareholderAll authorizations, acting through his duly authorized Attorney-in-Factapprovals, has duly executed consents and delivered this Agreement and the Custody Agreement and Power of Attorney; this Agreement constitutes a legal, valid and binding obligation of such Selling Shareholder, all authorizations and consents orders necessary for the execution and delivery by such Selling Shareholder of this Agreement the Power of Attorney and the Custody Agreement Agreement, the execution and Power of Attorney delivery by or on behalf of such Selling Shareholder of this Agreement and for the sale and delivery of the Shares to be sold by the Selling Shareholders under this Agreement (other than such Selling Shareholder hereunder have been givenauthorizations, except approvals or consents as may be required by necessary under state or other securities or Blue Sky laws) have been obtained and are in full force and effect; such Selling Shareholder, if other than a natural person, has been duly organized and is validly existing and in good standing under the Securities Act or state securities lawslaws of the jurisdiction of its organization as the type of entity that it purports to be; and such Selling Shareholder has the legal capacity and full right, power power, and authority to execute enter into and perform its obligations under this Agreement and the Custody Agreement and such Power of AttorneyAttorney and Custody Agreement, and to sell, assign, transfer and deliver the Shares to be sold by such Selling Shareholder under this Agreement.
(d) The Such Selling Shareholder will not offer, sell or otherwise dispose of any shares of Common Stock or any securities convertible into or exercisable or exchangeable for, or any rights to purchase or acquire, Common Stock, during the period from the Closing Date to the date 180 days following the effective date of the Registration Statement, inclusive, without the prior written consent of Xxxxxxx Xxxxx & Associates, Inc. [consent to Xxxxxx Xxxxxx terms?]
(e) Certificates in negotiable form for all Shares to be sold by such Selling shareholder under this Agreement, together with a stock power or powers duly endorsed in blank by such Selling Shareholder, have been placed in custody with the Custodian for the purpose of effecting delivery hereunder.
(f) This Agreement has been duly authorized by such Selling Shareholder that is not a natural person and has been duly executed and delivered by or on behalf of such Selling Shareholder and constitutes the valid and binding agreement of such Selling Shareholder, enforceable against such Selling Shareholder in accordance with its terms; and the performance of this Agreement and the Custody Agreement and Power of Attorney and the consummation of the transactions herein contemplated hereby and thereby by such Selling Shareholder will not result in a breach of or violation ofdefault under any material bond, debenture, note or other evidence of indebtedness, or conflict withany material contract, any of the terms or provisions of, or constitute a default by such Selling Shareholder under, any indenture, mortgage, deed of trust, trust (constructive or other), loan agreement, lease, franchise, license lease or other agreement or instrument to which such Selling Shareholder is a party or by which such Selling Shareholder or any Selling Shareholder Shares hereunder may be bound or, to the best of his or its properties is boundsuch Selling Shareholder's knowledge, or result in any statute, judgment, decreeviolation of any law, order, rule rule, regulation, writ, injunction or regulation decree of any court or governmental agency or body applicable to or, if such Selling Shareholder is other than a natural person, result in any violation of any provisions of the charter, bylaws or any other organizational documents of his, her or its propertiessuch Selling Shareholder.
(eg) Such Selling Shareholder has not taken and will not take, directly or indirectly, any action designed to, or which might reasonably be expected to, cause or result in stabilization or manipulation of the price of the Common Stock to facilitate the sale or resale of the Shares.
(h) Such Selling Shareholder has not distributed nor, other than as permitted by the Securities Act and the Rules and Regulations, will not distribute any prospectus or other offering material in connection with the offer offering and sale of the Shares other than any Preliminary Prospectus filed Shares, except as required by regulatory obligations in connection with such Selling Shareholders performance of employment obligations, to the Commission or the Final Prospectus or other material permitted by the Securities Actextent such Selling Shareholder is an RMI employee.
(fi) Such All information furnished by or on behalf of such Selling Shareholder has reviewed relating to such Selling Shareholder and the Shares to be sold by such Selling Shareholders under this Agreement that is familiar with contained in the representations and warranties of such Selling Shareholder in such Selling Shareholder's Power of Attorney or set forth in the Registration Statement and the Preliminary Prospectus. To Prospectus is, and on the knowledge of such Selling ShareholderClosing Date will be, true, correct and complete, and does not, and on the Preliminary Prospectus does not include Closing Date will not, contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary in order to make such statements not misleading.
(j) Such Selling Shareholder will review the statements thereinProspectus and will comply with all agreements and satisfy all conditions on its part to be complied with or satisfied pursuant to this Agreement on or prior to the Closing Date and will advise one of its Attorneys prior to the Closing Date if any statement to be made on behalf of such Selling Shareholder in the certificate contemplated by Section 9(i) would be inaccurate if made as of the Closing Date.
(k) Such Selling Shareholder does not have, or has waived prior to the date hereof, any preemptive right, co-sale right or right of first refusal or other similar right to purchase any of the Shares that are to be sold by the Company or any of the other Selling Shareholders to the Underwriters pursuant to this Agreement, and such Selling Shareholder does not own any capital stock of the Company or warrants, options or similar rights to acquire, and does not have any right or arrangement to acquire, any capital stock, rights, warrants, options or other securities from the Company, other than those described in the Registration Statement and the Prospectus.
(l) Such Selling Shareholder is not aware (without having conducted any investigation or inquiry) that any of the representations and warranties of the Company set forth in Section 6 above is untrue or inaccurate, or, in the light case of Xxxxxx Xxxxx that the description of the circumstances under which they were madeSeverance and Correspondent Clearing Agreement between him and RMI is true, correct and complete, and does not, and on the Closing Date will not, contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make such statements not misleading.
Appears in 1 contract
Representations and Warranties of the Selling Shareholders. Each of the Selling Shareholders, Shareholder severally and not jointly, represents and warrants to and agrees with, with each of the Underwriters that:
(a) Such Selling ShareholderIt has the power, at capacity and authority to enter into and execute this Agreement and, on the First Closing Date, it will have good the power, capacity and marketable title authority to enter into and execute each applicable Deed of Transfer (as defined below) of such Selling Shareholder and, if applicable, such Selling Shareholder’s Power of Attorney (as defined below).
(b) This Agreement has been duly authorized, executed and delivered by or on behalf of such Selling Shareholder.
(i) The execution and delivery by such Selling Shareholder of, and the performance by such Selling Shareholder of its obligations under, this Agreement, each of such Selling Shareholder’s deeds of transfer, to be dated the Closing Date, pursuant to which the Shares set forth in Schedule II to be sold by such Selling Shareholder will be transferred by such Selling Shareholder to or as directed by the Underwriters in accordance with this Agreement (all such deeds of transfer to be executed and delivered by the Selling Shareholders, the “Deeds of Transfer”), and the power of attorney appointing certain individuals as such Selling Shareholder’s attorneys-in-fact to the extent set forth therein, relating to the transactions contemplated hereby and by the Registration Statement (all such powers of attorney to be executed and delivered by the Selling Shareholders, the “Powers of Attorney”) will not contravene (A) any provision of applicable law or (B) the certificate of incorporation, memorandum or articles of association or by-laws or other constituent documents of such Selling Shareholder if such Selling Shareholder is not a natural person, (C) any agreement or other instrument binding upon such Selling Shareholder or (D) any judgment, order or decree of any governmental body, agency or court having jurisdiction over such Selling Shareholder or any of its subsidiaries, except with respect to (A), (C) and (D) insofar as would not reasonably be expected to have a Material Adverse Effect or reasonably be expected to have a material adverse effect on the public offering of the Shares or the consummation of any other transaction contemplated thereby and (ii) no consent, approval, authorization or order of, or qualification with, any governmental body or agency is required for the performance by such Selling Shareholder of its obligations under this Agreement, each of such Selling Shareholder’s Deeds of Transfer or, if applicable, such Selling Shareholder’s Power of Attorney, except (A) such as have been obtained under the Securities Act or the Exchange Act, (B) such as may be required by the securities or Blue Sky laws of the various U.S. states in connection with the offer and sale of the Shares, and (C) such consent, approval, authorization or order of, or qualification with, which failure to obtain would not reasonably be expected to have a Material Adverse Effect or a material adverse effect on the public offering of the Shares or the consummation of any other transaction contemplated thereby.
(d) Such Selling Shareholder has, and on the Closing Date will have, valid title to the Shares to be sold by such Selling Shareholder on such Closing Date, free and clear of any all security interests, claims, liens, encumbrancesequities or other encumbrances and the legal right and power, equities and claims all authorizations and approvals required by law, to enter into this Agreement, each applicable Deed of Transfer of such Selling Shareholder and, if applicable, such Selling Shareholder’s Power of Attorney and to sell, transfer and deliver the Shares to be sold by such Selling Shareholder on such Closing Date or a security entitlement in respect of such Shares. Such Selling Shareholder, at each of the time of signing and consummation of each applicable Deed of Transfer of such Selling Shareholder, will have the power (other than beschikkingsbevoegd) to sell and deliver such Selling Shareholder’s Shares to be sold pursuant to such Deed of Transfer, as imposed directed by the Securities Act Underwriters, to Cede & Co. (“Cede”) or this Agreementsuch other nominee as may be designated by the Depository Trust Company (“DTC”), and full rightsuch Selling Shareholder’s Shares will be, power at each such time, free and authority to effect the sale clear of rights of pledge, usufruct and delivery other encumbrances.
(e) Such Selling Shareholder’s Power of Attorney, if applicable, has been duly authorized, executed and delivered by such Selling Shareholder and is a valid and binding instrument of such Shares; Selling Shareholder. Each applicable Deed of Transfer of such Selling Shareholder, at the Closing Date, will have been duly authorized, executed and upon the delivery delivered by such Selling Shareholder and will be a valid and binding agreement of and such Selling Shareholder.
(f) Upon payment for the Shares to be sold by such Selling Shareholder pursuant to this Agreement, good delivery of such Shares, as directed by the Underwriters, to Cede or such other nominee as may be designated by the DTC, registration of such Shares in the name of Cede or such other nominee and marketable title thereto, free and clear the crediting of such Shares on the books of DTC to the respective securities accounts of the Underwriters (assuming that neither DTC nor any such Underwriter has notice of any liensadverse claim (within the meaning of Section 8-105 of the New York Uniform Commercial Code (the “UCC”)) to such Shares), encumbrances(A) DTC shall be a “protected purchaser” of such Shares within the meaning of Section 8-303 of the UCC, equities (B) under Section 8-501 of the UCC, the Underwriters will acquire a valid security entitlement in respect of such Shares and claims(C) no action based on any “adverse claim”, within the meaning of any kindSection 8-102 of the UCC, to such Shares may be meritoriously asserted against the Underwriters with respect to such security entitlement; provided that, for purposes of this representation, such Selling Shareholder may assume that when such payment, delivery and crediting occur, (a) such Shares will have been registered in the name of Cede or another nominee designated by DTC, in each case on the Company’s share registry in accordance with its certificate of incorporation, bylaws, other organizational documents and applicable law, (b) DTC will be transferred registered as a “clearing corporation” within the meaning of Section 8-102 of the UCC, (c) appropriate entries to the respective accounts of the several Underwriters on the records of DTC will have been made pursuant to the UCC and (d) the law of the State of New York is the securities intermediary’s jurisdiction for purposes of Article 8 of the UCC; provided further that this representation is subject to the following qualifications: (i) 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 other securities intermediaries and the ownership interests of the Underwriters, (ii) 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 (iii) if at any time DTC or any 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.
(bi) Such Selling Shareholder has duly executed and delivered Each part of the Custody Agreement and Power of Attorney in the form previously delivered to the RepresentativesRegistration Statement, appointing the persons named thereinwhen such part became effective, did not contain, and each such part, as amended or supplemented, if applicable, did not or will not contain, on the date of them any such amendment or supplement, any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading, (ii) the Registration Statement as such Selling Shareholder's attorney-in-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 "Attorney-in-Fact") Registration Statement and each part thereof, as of the date it became effective and as custodian (the "Custodian"). The Attorney-in-Fact is authorized to execute, deliver and perform this Agreement on behalf of such Selling Shareholder, to deliver the Shares to be sold by such Selling Shareholder hereunder, to accept payment therefor, and otherwise to act on behalf of such Selling Shareholder in connection with this Agreement, including payment from the Offering proceeds of expenses incurred on behalf of such Selling Shareholder. Certificates, in suitable form for transfer by delivery or accompanied by duly executed instruments of transfer or assignment in blank, representing the Shares to be sold by such Selling Shareholder hereunder have been deposited with the Custodian pursuant to the Custody Agreement and Power of Attorney for the purpose of delivery pursuant to this Agreement. Such Selling Shareholder agrees that the shares of Common Stock represented by the certificates on deposit with the Custodian are subject to the interest of the Underwriters hereunderdate hereof, that the arrangements made for such custody and the appointment of the Attorney-in-Fact are to that extent irrevocabledid and, and that the obligations of such Selling Shareholder hereunder shall not be terminated except as provided amended or supplemented, if applicable, will comply in this Agreement and the Custody Agreement and Power of Attorney. If such Selling Shareholder should die or become incapacitated, or if any other event should occur, before the delivery of the Shares of such Selling Shareholder hereunder, the certificates for such Shares deposited all material respects with the Custodian shall be delivered by the Custodian in accordance with the terms and conditions of this Agreement as if such death, incapacity or other event had not occurred, regardless of whether the Custodian or the Attorney-in-Fact shall have received notice thereof.
(c) Such Selling Shareholder, acting through his duly authorized Attorney-in-Fact, has duly executed and delivered this Agreement and the Custody Agreement and Power of Attorney; this Agreement constitutes a legal, valid and binding obligation of such Selling Shareholder, all authorizations and consents necessary for the execution and delivery of this Agreement and the Custody Agreement and Power of Attorney on behalf of such Selling Shareholder and for the sale and delivery of the Shares to be sold by such Selling Shareholder hereunder have been given, except as may be required by the Securities Act or state securities laws; and such Selling Shareholder has the legal capacity and full right, power and authority to execute this Agreement and the Custody Agreement and Power of Attorney.
(d) The performance of this Agreement and the Custody Agreement and Power of Attorney and the consummation of the transactions contemplated hereby and thereby by such Selling Shareholder will not result in a breach or violation of, or conflict with, any of the terms or provisions of, or constitute a default by such Selling Shareholder under, any indenture, mortgage, deed of trust, trust (constructive or other), loan agreement, lease, franchise, license or other agreement or instrument to which such Selling Shareholder or any of his or its properties is bound, or any statute, judgment, decree, order, rule or regulation of any court or governmental agency or body applicable to such Selling Shareholder or any of his, her or its properties.
(e) Such Selling Shareholder has not distributed nor, other than as permitted by the Securities Act and the Rules applicable rules and Regulations, will distribute any prospectus or other offering material in connection with the offer and sale regulations of the Shares other than Commission thereunder, (iv) the Prospectus (as amended or supplemented, if applicable) and each preliminary prospectus filed as part of the Registration Statement as originally filed or as part of any Preliminary Prospectus amendment thereto, or filed with the Commission or the Final Prospectus or other material permitted by pursuant to Rule 424 under the Securities Act.
(f) Such Selling Shareholder has reviewed , when filed, on the date hereof and is familiar at the Applicable Time complied, and on the Closing Date will, comply in all material respects with the Registration Statement Securities Act and the Preliminary Prospectus. To applicable rules and regulations of the knowledge Commission thereunder , (v) the Time of such Selling ShareholderSale Prospectus does not, and at the Applicable Time and on the Closing Date, the Preliminary Prospectus does not include an Time of Sale Prospectus, as then amended or supplemented by the Company, if applicable, will not, contain any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading, (vi) each broadly available road show, if any, when considered together with the Time of Sale Prospectus, does not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading and (vii) the Prospectus (as amended or supplemented, if applicable), on the date of any filing with the Commission, on the date hereof, at the Applicable Time and on the Closing Date, did or does not and will not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading, provided that the representations and warranties set forth in this paragraph (g) are limited to statements or omissions based upon or in conformity with information relating to such Selling Shareholder furnished in writing by or on behalf of such Selling Shareholder specifically for inclusion in the documents referred to above in this paragraph (g), it being understood that in each case such information consists solely of (i) the name of such Selling Shareholder and (ii) the number of Shares owned and proposed to be sold by such Selling Shareholder (the names of all Selling Shareholders and all of the amounts of Shares owned and proposed to be sold by the Selling Shareholders, collectively, the “Selling Shareholder Information”).
(h) Such Selling Shareholder has not taken and will not take, directly or indirectly, any action that is designed to or that has constituted or that could 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.
Appears in 1 contract
Samples: Underwriting Agreement (Philips Pension Trustees LTD)
Representations and Warranties of the Selling Shareholders. Each of the Selling ShareholdersShareholder, severally and not jointly, represents and warrants to each Underwriter and agrees withthe Company on the date hereof, and shall be deemed to represent and warrant to each of Underwriter and the Underwriters Company on the Closing Date and the Additional Closing Date, that:
(a) Such Selling Shareholder, at the First Closing Date, will have good and marketable title to the Shares set forth in Schedule II to be sold by such Selling Shareholder, free and clear of any liens, encumbrances, equities and claims (other than as imposed by the Securities Act or this Agreement), and Shareholder has full right, power and authority to effect the sale sell, assign, transfer and delivery of such Shares; and upon the delivery of and payment for the Shares to be sold by such Selling Shareholder pursuant to this Agreement, good and marketable title thereto, free and clear of any liens, encumbrances, equities and claims, of any kind, will be transferred to the Underwriters.
(b) Such Selling Shareholder has duly executed and delivered the Custody Agreement and Power of Attorney in the form previously delivered to the Representatives, appointing the persons named therein, and each of them as such Selling Shareholder's attorney-in-fact (the "Attorney-in-Fact") and as custodian (the "Custodian"). The Attorney-in-Fact is authorized to execute, deliver and perform this Agreement on behalf of such Selling Shareholder, to deliver the Shares to be sold by such Selling Shareholder hereunder; and upon delivery of such Shares hereunder and payment of the purchase price as herein contemplated, each of the Underwriters purchasing such Shares in good faith and without notice of any lien, claim or encumbrance will obtain good and valid title to the Shares purchased by it from such Selling Shareholder, free and clear of any pledge, lien, security interest, encumbrance, claim or equitable interest, including any liability for estate or inheritance taxes, or any liability to or claims of any creditor, devisee, legatee or beneficiary of such Selling Shareholder.
(b) Such Selling Shareholder has duly authorized (if applicable), executed and delivered, in the form heretofore furnished to the Representatives, a Power of Attorney (the "Power of Attorney") appointing Simox Xxxx xxx Gregxxx X. Xxxxxx xx attorneys-in-fact (collectively, the "Attorneys" and individually, an "Attorney") and a Letter of Transmittal and Custody Agreement (the "Custody Agreement") with Firstar Trust Company, as custodian (the "Custodian"); each of the Power of Attorney and the Custody Agreement constitutes a valid and binding agreement of such Selling Shareholder, enforceable against such Selling Shareholder in accordance with its terms, except as the enforcement thereof may be limited by bankruptcy, insolvency, reorganization, moratorium or other similar laws relating to or affecting creditors' rights generally or by general equitable principles; and each of such Selling Shareholder 's Attorneys, acting alone, is authorized to execute and deliver this Agreement and the certificate referred to in Section 9(i) hereof on behalf of such Selling Shareholder, to determine the purchase price to be paid by the several Underwriters to such Selling Shareholder as provided in Section 2 hereof, to authorize the delivery of the Shares to be sold by the Selling Shareholders under this Agreement and to duly endorse (in blank or otherwise) the certificate or certificates representing such Shares or a stock power or powers with respect thereto, to accept payment therefor, and otherwise to act on behalf of such Selling Shareholder in connection with this Agreement, including payment from the Offering proceeds of expenses incurred on behalf of such Selling Shareholder. Certificates, Certificates in suitable negotiable form for transfer by delivery or accompanied by duly executed instruments of transfer or assignment in blank, representing the all Shares to be sold by such Selling Shareholder hereunder under this Agreement, together with a stock power or powers duly endorsed in blank by such Selling Shareholder, have been deposited placed in custody with the Custodian pursuant to the Custody Agreement and Power of Attorney for the purpose of effecting delivery pursuant to this Agreement. Such Selling Shareholder agrees that the shares of Common Stock represented by the certificates on deposit with the Custodian are subject to the interest of the Underwriters hereunder, that the arrangements made for such custody and the appointment of the Attorney-in-Fact are to that extent irrevocable, and that the obligations of such Selling Shareholder hereunder shall not be terminated except as provided in this Agreement and the Custody Agreement and Power of Attorney. If such Selling Shareholder should die or become incapacitated, or if any other event should occur, before the delivery of the Shares of such Selling Shareholder hereunder, the certificates for such Shares deposited with the Custodian shall be delivered by the Custodian in accordance with the terms and conditions of this Agreement as if such death, incapacity or other event had not occurred, regardless of whether the Custodian or the Attorney-in-Fact shall have received notice thereof.
(c) Such Selling ShareholderAll authorizations, acting through his duly authorized Attorney-in-Factapprovals, has duly executed consents and delivered this Agreement and the Custody Agreement and Power of Attorney; this Agreement constitutes a legal, valid and binding obligation of such Selling Shareholder, all authorizations and consents orders necessary for the execution and delivery by such Selling Shareholder of this Agreement the Power of Attorney and the Custody Agreement Agreement, the execution and Power of Attorney delivery by or on behalf of such Selling Shareholder of this Agreement and for the sale and delivery of the Shares to be sold by the Selling Shareholders under this Agreement (other than such Selling Shareholder hereunder have been givenauthorizations, except approvals or consents as may be required by necessary under state or other securities or Blue Sky laws) have been obtained and are in full force and effect; such Selling Shareholder, if other than a natural person, has been duly organized and is validly existing and in good standing under the Securities Act or state securities lawslaws of the jurisdiction of its organization as the type of entity that it purports to be; and such Selling Shareholder has the legal capacity and full right, power power, and authority to execute enter into and perform its obligations under this Agreement and the Custody Agreement and such Power of AttorneyAttorney and Custody Agreement, and to sell, assign, transfer and deliver the Shares to be sold by such Selling Shareholder under this Agreement.
(d) The Such Selling shareholder will not offer, sell or otherwise dispose ofany shares of Common Stock or any securities convertible into or exercisable or exchangeable for, or any rights to purchase or acquire, Common Stock, during the period from the date of this Agreement to the date 180 days following the effective date of the Registration Statement, inclusive, without the prior written consent of Raymxxx Xxxex & Xssociates, Inc.
(e) Certificates in negotiable form for all Shares to be sold by such Selling shareholder under this Agreement, together with a stock power or powers duly endorsed in blank by such Selling Shareholder, have been placed in custody with the Custodian for the purpose of effecting delivery hereunder.
(f) This Agreement has been duly authorized by such Selling Shareholder that is not a natural person and has been duly executed and delivered by or on behalf of such Selling Shareholder and constitutes the valid and binding agreement of such Selling Shareholder, enforceable against such Selling Shareholder in accordance with its terms, except insofar as the indemnification and contribution provisions hereunder may be limited by applicable law and except as the enforcement hereof may be limited by bankruptcy, insolvency, reorganization, moratorium or other similar laws relating to or affecting creditors' rights generally or by general equitable principles;; and the performance of this Agreement and the Custody Agreement and Power of Attorney and the consummation of the transactions herein contemplated hereby and thereby by such Selling Shareholder will not result in a breach of or violation ofdefault under any material bond, debenture, note or other evidence of indebtedness, or conflict withany material contract, any of the terms or provisions of, or constitute a default by such Selling Shareholder under, any indenture, mortgage, deed of trust, trust (constructive or other), loan agreement, lease, franchise, license lease or other agreement or instrument to which such Selling Shareholder is a party or by which such Selling Shareholder or any Selling Shareholder Shares hereunder may be bound or, to the best of his or its properties is boundsuch Selling Shareholder's knowledge, or result in any statute, judgment, decreeviolation of any law, order, rule rule, regulation, writ, injunction or regulation decree of any court or governmental agency or body applicable to or, if such Selling Shareholder is other than a natural person, result in any violation of any provisions of the charter, bylaws or any other organizational documents of his, her or its propertiessuch Selling Shareholder.
(eg) Such Selling Shareholder has not taken and will not take, directly or indirectly, any action designed to, or which might reasonably be expected to, cause or result in stabilization or manipulation of the price of the Common Stock to facilitate the sale or resale of the Shares.
(h) Such Selling Shareholder has not distributed nor, other than as permitted by the Securities Act and the Rules and Regulations, will not distribute any prospectus or other offering material in connection with the offer offering and sale of the Shares other than any Preliminary Prospectus filed with the Commission or the Final Prospectus or other material permitted by the Securities ActShares.
(fi) Such All information furnished by or on behalf of such Selling Shareholder has reviewed relating to such Selling Shareholder and the Shares to be sold by such Selling Shareholders under this Agreement that is familiar with contained in the representations and warranties of such Selling Shareholder in such Selling Shareholder's Power of Attorney or set forth in the Registration Statement is, and on the Preliminary Prospectus. To Closing Date will be, true, correct and complete, and does not, and on the knowledge of such Selling ShareholderClosing Date will not, the Preliminary Prospectus does not include contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary in order to make such statements not misleading and any such statement that are set forth in the Prospectus is, and on the Closing Date will be, true, correct and complete, and does not , and on the Closing Date will note, contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make such statements therein, in the light of the circumstances under which they were made, not misleading.
(j) Such Selling Shareholder will review the Prospectus and will comply with all agreements and satisfy all conditions on its part to be complied with or satisfied pursuant to this Agreement on or prior to the Closing Date and will advise one of its Attorneys prior to the Closing Date if any statement to be made on behalf of such Selling Shareholder in the certificate contemplated by Section 9(i) would be inaccurate if made as of the Closing Date.
(k) Such Selling Shareholder does not have, or has waived prior to the date hereof, any preemptive right, co-sale right or right of first refusal or other similar right to purchase any of the Shares that are to be sold by the Company or any of the other Selling Shareholders to the Underwriters pursuant to this Agreement; and such Selling Shareholder does not own any capital stock of the Company or warrants, options or similar rights to acquire, and does not have any right or arrangement to acquire, any capital stock, rights, warrants, options or other securities from the Company, other than those described in the Registration Statement and the Prospectus.
(l) Such Selling Shareholder is not aware (without having conducted any investigation or inquiry) that any of the representations and warranties of the Company set forth in Section 6 above is untrue or inaccurate.
Appears in 1 contract
Representations and Warranties of the Selling Shareholders. Each of the Selling ShareholdersShareholder, severally and not jointly, hereby represents and warrants to and agrees with, each of the Underwriters that:
(a) Such Selling Shareholder, Shareholder now has and at the First Closing Date, Date (as defined in Section 4 hereof) will have good and marketable valid title to all the Shares set forth in Schedule II to be sold by such Selling Shareholder, free and clear Stock of any liens, encumbrances, equities and claims (other than as imposed by the Securities Act or this Agreement), and full right, power and authority to effect the sale and delivery of such Shares; and upon the delivery of and payment for the Shares Company to be sold by such Selling Shareholder pursuant to this Agreement, good and marketable title theretohereunder, free and clear of any all liens, encumbrances, equities security interests and claims, of any kind, will be transferred to the Underwriters.
(b) claims whatsoever. Such Selling Shareholder has duly executed full legal right, power and delivered authority to enter into this Agreement and the Custody Agreement and Power of Attorney in Attorney, each dated as of __________ __, 2004 (collectively, the form previously delivered to the Representatives, appointing the persons named therein, and each of them as such Selling Shareholder's attorney"Custody Agreement");
(b) The Attorneys-in-fact Fact for such Selling Shareholder named in the Custody Agreement (the "AttorneyAttorneys-in-Fact") and as custodian (the "Custodian"). The Attorney-in-Fact is are authorized to execute, deliver and perform this Agreement on behalf of determine the purchase price to be paid by the Underwriters to such Selling Shareholder, to deliver authorize the Shares delivery of the Stock to be sold by such Selling Shareholder hereunder, to accept payment therefor, and otherwise to act on behalf of such Selling Shareholder in connection with this Agreement, including payment from all subject to the Offering terms of and the limitations set forth in the Custody Agreement.
(c) Such Selling Shareholder has not taken and will not take, directly or indirectly, any action designed to stabilize or manipulate, or which has constituted or which might in the future reasonably be expected to cause or result in stabilization or manipulation of, the price of the Stock of the Company in order to facilitate the sale or resale of the Stock or otherwise.
(d) Such Selling Shareholder is disposing of such Stock for his, her or its own account. Such Selling Shareholder is not selling such Stock, directly or indirectly, for the benefit of the Company, and no part of the proceeds of expenses incurred the such sale to be received by such Selling Shareholder will inure, directly or indirectly, to the benefit of the Company.
(e) This Agreement and the Custody Agreement have been duly authorized, executed and delivered by or on behalf of such Selling Shareholder, and each of this Agreement and the Custody Agreement is a valid and binding obligation of such Selling Shareholder enforceable in accordance with its terms, except as enforceability thereof may be limited by bankruptcy, insolvency, reorganization, moratorium or similar laws affecting enforcement of creditors' rights or by general equitable principles (regardless of whether such enforceability is considered in a proceeding in equity or at law); and pursuant to the power of attorney conferred by such Custody Agreement, such Selling Shareholder has, among other things, authorized the Attorneys-in-Fact to execute and deliver on such Selling Shareholder's behalf this Agreement and any other document that such Selling Shareholder may deem necessary, advisable or appropriate in connection with the transactions contemplated hereby, all subject to the terms of and the limitations set forth in the Custody Agreement.
(f) Such Selling Shareholder has reviewed the Registration Statement and the Prospectus, and neither the Registration Statement nor the Prospectus nor any amendment or supplement thereto, includes any untrue statement of a material fact relating to such Selling Shareholder or omits to state any material fact required to be stated therein or necessary to make the statements therein relating to such Selling Shareholder not misleading. CertificatesNo information furnished in writing to the Company or the Underwriters by such Selling Shareholder specifically for use in the preparation of the Registration Statement and the Prospectus and other documents to be filed with the National Association of Securities Dealers, Inc. ("NASD") or state securities or Blue Sky authorities contains an untrue statement of a material fact or omits to state any material fact required to be stated therein or necessary to make such information not misleading.
(g) The execution and performance of this Agreement and the consummation of the transactions herein contemplated and the fulfillment of the terms hereof will not conflict with, result in suitable form a breach of, or constitute a default under any will, trust (constructive or other), agreement, indenture, mortgage, note, deed, rule, regulation, order, injunction, judgment, decree or other instrument to which such Selling Shareholder is a party or by which it is bound.
(h) All consents, approvals, authorizations and orders necessary for transfer the execution and delivery by such Selling Shareholder of this Agreement and for the sale and delivery or accompanied by duly executed instruments of transfer or assignment in blank, representing the Shares Stock to be sold by such Selling Shareholder hereunder have been deposited obtained.
(i) For a period of 90 days from the date of the time of the initial public offering of the Stock by the Underwriters, such Selling Shareholder will not, directly or indirectly, offer, sell, contract to sell, grant any option for the sale of, assign, encumber or otherwise dispose of, except with the Custodian pursuant prior written consent of McDonald Investments Inc., any shares of Common Stock or any interest therein (including, without limitation, shares of Common Stock which may be deemed to be beneficially owned by such Selling Shareholder in accordance with the Exchange Act and the Exchange Act Regulations) or any securities of the Company that are substantially similar to the Custody Agreement and Power of Attorney for Common Stock, including but not limited to any securities that are convertible into or exchangeable for, or that represent the purpose of delivery right to receive, Common Stock or any such substantially similar securities, other than to the Underwriters pursuant to this Agreement. Such Selling Shareholder agrees that the shares of Common Stock represented by the certificates on deposit with the Custodian are subject to the interest of the Underwriters hereunder, that the arrangements made for such custody and the appointment of the Attorney-in-Fact are to that extent irrevocable, and that the obligations of such Selling Shareholder hereunder shall not be terminated except as provided in this Agreement and the Custody Agreement and Power of Attorney. If such Selling Shareholder should die or become incapacitated, or if any other event should occur, before the delivery of the Shares of such Selling Shareholder hereunder, the certificates for such Shares deposited with the Custodian shall be delivered by the Custodian in accordance with the terms and conditions of this Agreement as if such death, incapacity or other event had not occurred, regardless of whether the Custodian or the Attorney-in-Fact shall have received notice thereof.
(cj) Such Selling Shareholder, acting through his duly authorized Attorney-in-Fact, has duly executed and delivered this Agreement and the Custody Agreement and Power Certificates for all shares of Attorney; this Agreement constitutes a legal, valid and binding obligation of such Selling Shareholder, all authorizations and consents necessary for the execution and delivery of this Agreement and the Custody Agreement and Power of Attorney on behalf of such Selling Shareholder and for the sale and delivery of the Shares Stock to be sold by such Selling Shareholder hereunder pursuant to this Agreement in suitable form for transfer have been given, except placed in custody with the Custodian (as may be required by the Securities Act or state securities laws; and such Selling Shareholder has the legal capacity and full right, power and authority to execute this Agreement and defined in the Custody Agreement and Power Agreement) for the purpose of Attorneyeffecting delivery hereunder.
(dk) The performance of this Agreement and On the Custody Agreement and Power of Attorney and the consummation of the transactions contemplated hereby and thereby Closing Date, all actions required to be taken by such Selling Shareholder will not result in a breach or violation of, or conflict with, any for the due and proper sale and delivery of the terms or provisions of, or constitute a default Stock to be sold by such Selling Shareholder underunder this Agreement will have been duly and validly taken, any indenture, mortgage, deed and upon consummation of trust, trust (constructive or other), loan agreement, lease, franchise, license or other agreement or instrument to which the sale of such Stock by such Selling Shareholder or any of his or its properties is boundunder this Agreement, or any statute, judgment, decree, order, rule or regulation of any court or governmental agency or body applicable to such Selling Shareholder or any will transfer good and valid title to all such Stock, free and clear of hisall liens, her or its properties.
(e) Such Selling Shareholder has not distributed norencumbrances, other than as permitted by the Securities Act security interests and the Rules and Regulationsclaims whatsoever, will distribute any prospectus or other offering material in connection with the offer and sale to each of the Shares other than any Preliminary Prospectus filed with the Commission or the Final Prospectus or other material permitted by the Securities ActUnderwriters that purchases such Stock in good faith hereunder.
(f) Such Selling Shareholder has reviewed and is familiar with the Registration Statement and the Preliminary Prospectus. To the knowledge of such Selling Shareholder, the Preliminary Prospectus does not include an untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading.
Appears in 1 contract
Samples: Underwriting Agreement (Brush Engineered Materials Inc)
Representations and Warranties of the Selling Shareholders. Each of the Selling ShareholdersShareholder (except as otherwise indicated) represents and warrants, severally for such Selling Shareholder only and not jointlyfor any other Selling Shareholder, represents and warrants to to, and agrees with, each of the Underwriters thatas of the date hereof, and as of the Closing Date and the Option Closing Date, if any, as follows:
(a) Such Selling Shareholder, at the First Closing Date, will have good and marketable title to the Shares set forth in Schedule II to be sold by such Selling Shareholder, free and clear of any liens, encumbrances, equities and claims (other than as imposed by the Securities Act or this Agreement), and Shareholder has full right, power and authority to effect enter into this Agreement, the sale Power of Attorney (the "Power of Attorney") and the Custody Agreement (the "Custody Agreement") hereinafter referred to and at the date hereof such Selling Shareholder has, and at the time of delivery of the Selling Shareholder Shares to the Underwriters hereunder such Shares; Selling Shareholder will have, full right, power and upon authority to sell and deliver the delivery of and payment for the Selling Shareholder Shares to be sold by such Selling Shareholder pursuant to this Agreementthe Underwriters, good and at the date hereof such Selling Shareholder is, and at the time of delivery of Selling Shareholders Shares to the Underwriters such Selling Shareholder will be, the lawful owner of and has, and will have, marketable title thereto, to such shares free and clear of any claims, liens, encumbrances, equities and claims, of any kind, will be transferred to the Underwritersencumbrances or security interests.
(b) The performance of this Agreement, the Power of Attorney and the Custody Agreement, and the consummation of the transactions herein and therein contemplated, will not conflict with or result in a breach of, or default under, any agreement, indenture or other instrument to which such Selling Shareholder is a party or by which such Selling Shareholder is bound, or any law, rule, administrative regulation or court decree. This Agreement, the Power of Attorney and the Custody Agreement have been validly authorized, executed and delivered by such Selling Shareholder and each constitutes the valid and binding agreement of such Selling Shareholder.
(c) When the Registration Statement becomes effective, and at all times subsequent thereto, the Registration Statement and Prospectus and any amendments thereof and supplements thereto will not contain any untrue statement of a material fact regarding such Selling Shareholder or omit to state a material fact regarding such Selling Shareholder required to be stated therein or necessary in order to make the statements therein regarding such Selling Shareholder not misleading.
(d) Such Selling Shareholder has not taken and will not take, directly or indirectly, any action designed to cause or result in, or which has constituted or which might reasonably be expected to constitute, the stabilization or manipulation of the price of the shares of Common Stock to facilitate the sale or resale of the Common Stock.
(e) Certificates in negotiable form representing all of the Selling Shareholder Shares to be sold by such Selling Shareholder have been placed in custody under a Custody Agreement, in the form heretofore furnished to you, duly executed and delivered the Custody Agreement and Power of Attorney in the form previously delivered by such Selling Shareholder to the RepresentativesCompany, appointing the persons named therein, and each of them as such Selling Shareholder's attorney-in-fact (the "Attorney-in-Fact") and as custodian (the "Custodian"). The Attorney-in-Fact is authorized to execute, deliver and perform this Agreement on behalf of such Selling Shareholder, to deliver the Shares to be sold by such Selling Shareholder hereunder, to accept payment therefor, and otherwise to act on behalf of such Selling Shareholder in connection with this Agreement, including payment from the Offering proceeds of expenses incurred on behalf of such Selling Shareholder. Certificates, in suitable form for transfer by delivery or accompanied by duly executed instruments of transfer or assignment in blank, representing the Shares to be sold by such Selling Shareholder hereunder have been deposited with the Custodian pursuant to the Custody Agreement and Power of Attorney for the purpose of delivery pursuant to this Agreement. Such Selling Shareholder agrees that the shares of Common Stock represented by the certificates on deposit with the Custodian are subject to the interest of the Underwriters hereunder, that the arrangements made for such custody and the appointment of the Attorney-in-Fact are to that extent irrevocable, and that the obligations of such Selling Shareholder hereunder shall not be terminated except as provided in this Agreement and the Custody Agreement and Power of Attorney. If such Selling Shareholder should die or become incapacitated, or if any other event should occur, before the delivery of the Shares of such Selling Shareholder hereunder, the certificates for such Shares deposited with the Custodian shall be delivered by the Custodian in accordance with the terms and conditions of this Agreement as if such death, incapacity or other event had not occurred, regardless of whether the Custodian or the Attorney-in-Fact shall have received notice thereof.
(c) Such Selling Shareholder, acting through his duly authorized Attorney-in-Fact, has duly executed and delivered this Agreement and the Custody Agreement and a Power of Attorney; this Agreement constitutes a legal, valid and binding obligation of such Selling Shareholder, all authorizations and consents necessary for the execution and delivery of this Agreement and the Custody Agreement and Power of Attorney on behalf of such Selling Shareholder and for the sale and delivery of the Shares to be sold by such Selling Shareholder hereunder have been given, except as may be required by the Securities Act or state securities laws; and such Selling Shareholder has the legal capacity and full right, power and authority to execute this Agreement and the Custody Agreement and Power of Attorney.
(d) The performance of this Agreement and the Custody Agreement and Power of Attorney and the consummation of the transactions contemplated hereby and thereby by such Selling Shareholder will not result in a breach or violation of, or conflict with, any of the terms or provisions of, or constitute a default by such Selling Shareholder under, any indenture, mortgage, deed of trust, trust (constructive or other), loan agreement, lease, franchise, license or other agreement or instrument to which such Selling Shareholder or any of his or its properties is bound, or any statute, judgment, decree, order, rule or regulation of any court or governmental agency or body applicable to such Selling Shareholder or any of his, her or its properties.
(e) Such Selling Shareholder has not distributed nor, other than as permitted by the Securities Act and the Rules and Regulations, will distribute any prospectus or other offering material in connection with the offer and sale of the Shares other than any Preliminary Prospectus filed with the Commission or the Final Prospectus or other material permitted by the Securities Act.
(f) Such Selling Shareholder has reviewed and is familiar with the Registration Statement and the Preliminary Prospectus. To the knowledge of such Selling Shareholder, the Preliminary Prospectus does not include an untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading.form heretofore furnished to you,
Appears in 1 contract
Representations and Warranties of the Selling Shareholders. Each of the Selling Shareholders, severally and not jointly, Shareholders represents and warrants to and agrees with, with each of the Underwriters that:
(a) Such Selling ShareholderThis Agreement has been duly authorized, at the First Closing Date, will have good executed and marketable title to the Shares set forth in Schedule II to be sold delivered by or on behalf of such Selling Shareholder, free and clear of any liens, encumbrances, equities and claims (other than as imposed by the Securities Act or this Agreement), and full right, power and authority to effect the sale and delivery of such Shares; and upon the delivery of and payment for the Shares to be sold by such Selling Shareholder pursuant to this Agreement, good and marketable title thereto, free and clear of any liens, encumbrances, equities and claims, of any kind, will be transferred to the Underwriters.
(b) Such Selling Shareholder has duly executed and delivered the Custody Agreement and Power of Attorney in the form previously delivered to the Representatives, appointing the persons named thereinhas, and each of them on the Option Closing Date (as such Selling Shareholder's attorney-in-fact (the "Attorney-in-Fact"defined below) will have, full legal right, power and as custodian (the "Custodian"). The Attorney-in-Fact is authorized authority to execute, deliver and perform this Agreement on behalf of such Selling Shareholder, to deliver the Shares to be sold by such Selling Shareholder hereunder, to accept payment therefor, and otherwise to act on behalf of such Selling Shareholder in connection with this Agreement, including payment from the Offering proceeds of expenses incurred on behalf of such Selling Shareholder. Certificates, in suitable form for transfer by delivery or accompanied by duly executed instruments of transfer or assignment in blank, representing the Shares to be sold by such Selling Shareholder hereunder have been deposited with the Custodian pursuant to the Custody Agreement and Power of Attorney for the purpose of delivery pursuant to this Agreement. Such Selling Shareholder agrees that the shares of Common Stock represented by the certificates on deposit with the Custodian are subject to the interest of the Underwriters hereunder, that the arrangements made for such custody and the appointment of the Attorney-in-Fact are to that extent irrevocable, and that the obligations of such Selling Shareholder hereunder shall not be terminated except as provided in this Agreement and the Custody Agreement and Power of Attorney. If such Selling Shareholder should die or become incapacitated, or if any other event should occur, before the delivery of the Shares of such Selling Shareholder hereunder, the certificates for such Shares deposited with the Custodian shall be delivered by the Custodian in accordance with the terms and conditions of this Agreement as if such death, incapacity or other event had not occurred, regardless of whether the Custodian or the Attorney-in-Fact shall have received notice thereof.
(c) Such Selling Shareholder, acting through his duly authorized Attorney-in-Fact, has duly executed and delivered this Agreement and the Custody Agreement and Power of Attorney; this Agreement constitutes a legal, valid and binding obligation of such Selling Shareholder, all authorizations and consents necessary for the execution and delivery of enter into this Agreement and the Custody Agreement and Power of Attorney on behalf (the "Custody Agreement and Power of Attorney") signed by such Selling Shareholder and for the sale and delivery Company, as Custodian, relating to the deposit of the Shares to be sold by such Selling Shareholder hereunder have been givenand to appointing certain individuals as such Selling Shareholder's attorneys-in-fact to the extent set forth therein, except as may be required relating to the transactions contemplated hereby and by the Securities Act or state securities laws; Registration Statement. This Agreement has been duly executed and delivered by such Selling Shareholder has the legal capacity and full rightShareholder. In addition, power and authority to execute this Agreement and the Custody Agreement and Power of AttorneyAttorney has been duly executed and delivered by such Selling Shareholder and constitutes the valid 8 and binding agreement of such Selling Shareholder in accordance with its terms (except as (A) such enforceability may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or other laws of general application relating to or affecting the enforcement of creditor's rights and the application of equitable principles (regardless of whether such enforceability is considered in a proceeding in equity or at law) relating to the availability of remedies, and (B) to the extent that rights to indemnity or contribution may be limited by United States federal or state securities law and the public policy underlying such laws).
(dc) The execution and delivery by such Selling Shareholder of, and the performance by such Selling Shareholder of its obligations under, this Agreement and the Custody Agreement and Power of Attorney and will not contravene any provision of applicable law, or the consummation certificate of the transactions contemplated hereby and thereby by incorporation or by-laws of such Selling Shareholder will not result in a breach or violation of, or conflict with, any of the terms or provisions of, or constitute a default by (if such Selling Shareholder under, any indenture, mortgage, deed of trust, trust (constructive or otheris a corporation), loan agreement, lease, franchise, license or any agreement or other agreement or instrument to which binding upon such Selling Shareholder or any judgment, order or decree of his any governmental body, agency or its properties is boundcourt having jurisdiction over such Selling Shareholder, and no consent, approval, authorization or order of, or qualification with, any statute, judgment, decree, order, rule governmental body or regulation of any court or governmental agency or body applicable to is required for the performance by such Selling Shareholder of its obligations under this Agreement or any the Custody Agreement and Power of hisAttorney of such Selling Shareholder.
(d) Such Selling Shareholder owns, her or its propertiesand on the Option Closing Date will own, the shares to be sold by such Selling Shareholder free of all liens, claims and encumbrances and has, and the Option Closing Date will have, the legal right and power to sell, transfer and deliver the Shares to be sold by such Selling Shareholder.
(e) Such Upon the making by the Depository Trust Company of the appropriate entries transferring the shares to be sold by such Selling Shareholder has not distributed noron its books and records to the account of Morgxx Xxxnxxx & Xo. Incorporated, other than as permitted by the Securities Act Morgxx Xxxnxxx & Xo. Incorporated will acquire such shares free of all liens, claims and the Rules and Regulations, will distribute any prospectus or other offering material in connection with the offer and sale of the Shares other than any Preliminary Prospectus filed with the Commission or the Final Prospectus or other material permitted by the Securities Actencumbrances.
(f) Such Selling Shareholder has reviewed On the Effective Date and is familiar with on the date that any post-effective amendment to the Registration Statement (except any post- effective amendment required by Rule 8b16 of the Investment Company Act Rules or which is filed with the Commission after the later of (x) one year from the date of this Underwriting Agreement or (y) the date on which the distribution of the Shares is completed) became or becomes effective, neither the Registration Statement nor any such amendment did or will contain any untrue statement of a material fact or omit to state a material fact required to be stated in it or necessary to make the statements in it not misleading, with reference to information furnished in writing by or on behalf of a Selling Shareholder to the Company expressly for use in the Registration Statement, or any amendments thereto. At the Effective Date, if applicable, the date the Prospectus or any amendment or supplement to the Prospectus was or is filed with the Commission and at the Closing Date and the Preliminary Prospectus. To the knowledge of such Selling ShareholderOption Closing Date, the Preliminary Prospectus does did not include an or will not, as the case may be, contain any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements thereinin it, in the light of the circumstances under which they were made, not misleading, with reference to information furnished in writing by or on behalf of a Selling Shareholder to the Company expressly for use in the Prospectus, or any amendments or supplements thereto.
(g) Such Selling Shareholder has not taken, and on the Option Closing Date will not have taken, directly or indirectly, any action designed to stabilize or manipulate the price of any security of the Company, or which has constituted or which might reasonably be expected to cause or result in stabilization or manipulation of the price of any security of the Company, to facilitate the sale or resale of the Shares or otherwise.
(h) In order to document the Underwriters' compliance with the reporting and withholding provisions of the Internal Revenue Code of 1986, such Selling Shareholder shall deliver to you on or prior to the Closing Date a properly completed and executed United States Treasury Department Form W8 or W9 (or other applicable form or statement specified by Treasury Department Regulations in lieu thereof).
Appears in 1 contract
Representations and Warranties of the Selling Shareholders. Each of the Selling Shareholders, Shareholders severally represent and not jointly, represents and warrants warrant to and agrees agree with, each of the Underwriters Underwriter that:
(a) Such Selling Shareholder, at the First Closing Date, will have good and marketable title to the Shares set forth in Schedule II to be sold by such Selling Shareholder, free and clear of any liens, encumbrances, equities and claims (other than as imposed by the Securities Act or this Agreement), and full right, power and authority to effect the sale and delivery of such Shares; and upon the delivery of and payment for the Shares to be sold by such Selling Shareholder pursuant to this Agreement, good and marketable title thereto, free and clear of any liens, encumbrances, equities and claims, of any kind, will be transferred to the Underwriters.
(b) Such Selling Shareholder has duly executed and delivered the a Custody Agreement and Power of Attorney (the "Custody Agreement"), in the form previously heretofore delivered to the Representatives, appointing the persons named thereinwith ChaseMellon Shareholder Services, and each of them as such Selling Shareholder's attorney-in-fact (the "Attorney-in-Fact") and L.L.C. as custodian (the "Custodian"). Such Selling Shareholder has duly executed and delivered a power of attorney as provided for in the Custody Agreement and in the form heretofore delivered to the Representatives, (the "Power of Attorney") appointing Xxxxxxx X. Xxxxxxxxxx and Xxxx X. Xxxxxxx as such Selling Shareholder's attorneys-in- fact (the "Attorneys-in-Fact"). The AttorneyAttorneys-in-Fact is are authorized to execute, deliver and perform this Agreement on behalf of such Selling Shareholder, including, without limitation, the authority to deliver determine the Shares purchase price to be sold by such paid to each Selling Shareholder hereunder, to accept payment therefor, and otherwise to act on behalf by the Underwriters as set forth in Section 3 of such Selling Shareholder in connection with this Agreement, including payment from the Offering proceeds of expenses incurred on behalf of such Selling Shareholder. Certificates, Certificates in suitable negotiable form for transfer by delivery or accompanied by duly executed instruments of transfer or assignment in blank, representing the Shares to be sold by such each Selling Shareholder hereunder have been shall be, following exercise of the warrant pursuant to which such Shares are issued, deposited with the Custodian pursuant to the Custody Agreement and Power of Attorney for the purpose of delivery pursuant to this Agreement. Such Selling Shareholder agrees that the shares of Common Stock Shares represented by the certificates to be on deposit with the Custodian pursuant to the Custody Agreement are held for the purpose of delivery pursuant to this Agreement. Such Selling Shareholder agrees that the Shares represented by the certificates to be deposited with the Custodian are subject to the interest interests of the Underwriters hereunder, that the arrangements made for such custody and the appointment of the AttorneyAttorneys-in-Fact are to that extent irrevocable, and that the obligations of such Selling Shareholder hereunder shall not be terminated terminated, except as provided in this Agreement and the Custody Agreement and Power Agreement, by any act of Attorney. If such Selling Shareholder should die Shareholder, by operation of law or become incapacitatedotherwise, whether by the dissolution, reorganization, death, incapacity or if any other such event should occur, occur before the delivery of the Shares of such to be sold by the affected Selling Shareholder hereunder, the certificates for such Shares deposited with the Custodian shall be delivered by the Custodian in accordance with the terms and conditions of this Agreement Agreement, as if such dissolution, reorganization, death, incapacity incapacity, or other event had not occurred, regardless of whether or not the Custodian or the AttorneyAttorneys-in-Fact shall have received notice thereof.;
(cb) Such Selling ShareholderShareholder has all requisite right, acting through his duly authorized Attorney-in-Factpower and authority to enter into this Agreement, has duly executed and delivered this Agreement and the Custody Agreement and Power of Attorney; this Agreement constitutes a legal, valid and binding obligation of such Selling Shareholder, all authorizations and consents necessary for the execution and delivery of this Agreement and the Custody Agreement and Power of Attorney on behalf of such Selling Shareholder and for the sale to sell, transfer and delivery of deliver the Shares to be sold by such Selling Shareholder hereunder have been givenhereunder, except as may be required by the Securities Act or state securities laws; and such Selling Shareholder has the legal capacity and full rightthis Agreement, power and authority to execute this Agreement and the Custody Agreement and the Power of Attorney.Attorney have been duly authorized, executed and delivered by such Selling Shareholder and constitute the legal, valid and binding obligations of such Selling Shareholder enforceable in accordance with their respective terms;
(dc) The execution, delivery and performance of this Agreement and the Custody Agreement and Power of Attorney Agreement, and the consummation of the transactions contemplated hereby and thereby by such Selling Shareholder will the Prospectus, the Custody Agreement and the Power of Attorney do not and shall not, with or without the giving of notice or lapse of time or both, (A) conflict with or result in a breach or violation of, or conflict with, of any of the terms or provisions of, or constitute a default by such Selling Shareholder under, any indenture, mortgage, deed of trust, trust (constructive or other), loan agreement, lease, franchise, license mortgage or other agreement or instrument to which such Selling Shareholder is a party or any of his or its properties is bound, or any statute, judgment, decree, order, rule or regulation of any court or governmental agency or body applicable to by which such Selling Shareholder or any Shares is bound, or (B) violate any existing, applicable law, rule, regulation, judgment, order or decree of hisany government, her governmental instrumentality or its properties.court, domestic or foreign, having jurisdiction over such Selling Shareholder or any Shares;
(d) All authorizations, approvals and consents necessary for the valid execution and delivery by such Selling Shareholder of the Custody Agreement and the Power of Attorney, the execution and delivery by or on behalf of such Selling Shareholder of this Agreement, and the sale and delivery of the shares to be sold by such Selling Shareholder hereunder (other than, at the time of the execution thereof, the issuance of the order of the Commission declaring the Registration Statement effective and such authorizations, approvals or consents as may be necessary under the state securities or Blue Sky laws and the Bylaws, rules and pronouncements of the NASD), have been obtained and are in full force and effect;
(e) Such Selling Shareholder has not distributed norShareholder, other than as permitted by following exercise of the Securities Act warrant pursuant to which such Shares are issued, on the Closing Date and any Option Closing Date will be, the Rules and Regulations, will distribute any prospectus or other offering material in connection with the offer and sale lawful owner of the Shares to be sold by such Selling Shareholder pursuant to this Agreement. On the Closing Date and any Option Closing Date, such Selling Shareholder will have good and marketable title to such Shares, free and clear of all liens, encumbrances, security interests or other restrictions (other than any Preliminary Prospectus filed with those created under the Commission or the Final Prospectus or other material permitted by the Securities Act.Custody Agreement);
(f) Such Selling Shareholder, following exercise of the warrant pursuant to which such Shares are issued, on the Closing Date and any Option Closing Date will have, full legal right, power and authorization, and any approval required by law, to sell, assign, transfer and deliver such Shares in the manner provided in this Agreement, the Power of Attorney or the Custody Agreement, and upon delivery of and payment for such Shares hereunder, the several Underwriters will acquire good and marketable title to such Shares free and clear of any lien, claim, security interest, or other encumbrance;
(g) Such Selling Shareholder is not prompted to sell the Shares to be sold by such Selling Shareholder hereunder by any information concerning Spectrum Control or its Subsidiaries that is not set forth in the Prospectus.
(h) Such Selling Shareholder has reviewed and is familiar with examined the Registration Statement and the Preliminary Prospectus. To Prospectus and the knowledge of information relating to such Selling ShareholderShareholder set forth therein and, as to such information, neither the Preliminary Registration Statement nor the Prospectus does not include an contains any untrue statement of a material fact or omit omits to state a any material fact required to be stated therein or necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading.
(i) Such Selling Shareholder has not incurred any liability for any finder's fee or similar payment in connection with the sale of such Selling Shareholder's Shares hereunder.
(j) Such Selling Shareholder has not distributed and will not distribute any offering material in connection with the offering and sale of the Shares other than the Registration Statements, a Preliminary Prospectus, the Prospectus and other material, if any, permitted by the Act and the Regulations. Neither such Selling Shareholder nor any affiliate of such Selling Shareholder has taken or shall take any action designed, or that might be reasonably expected, to cause or result in stabilization or manipulation of the price of the Shares.
Appears in 1 contract
Representations and Warranties of the Selling Shareholders. (a) Each of the Selling ShareholdersShareholders severally represent and warrant to, severally and not jointly, represents and warrants to and agrees agree with, each of the Underwriters Underwriter that:
(a) Such Selling Shareholder, at the First Closing Date, will have good and marketable title to the Shares set forth in Schedule II to be sold by such Selling Shareholder, free and clear of any liens, encumbrances, equities and claims (other than as imposed by the Securities Act or this Agreement), and full right, power and authority to effect the sale and delivery of such Shares; and upon the delivery of and payment for the Shares to be sold by such Selling Shareholder pursuant to this Agreement, good and marketable title thereto, free and clear of any liens, encumbrances, equities and claims, of any kind, will be transferred to the Underwriters.
(bi) Such Selling Shareholder has duly executed and delivered the a Custody Agreement and Power of Attorney (the "Custody Agreement"), in the form previously heretofore delivered to the Representatives, appointing the persons named therein, and each of them as such Selling Shareholder's attorney-in-fact (the "Attorney-in-Fact") and with Continental Stock Transfer & Trust Company as custodian (the "Custodian"). Such Selling Shareholder has duly executed and delivered a power of attorney as provided for in the Custody Agreement and in the form heretofore delivered to the Representatives, (the "Power of Attorney") appointing Mark Cocchiola and Steven Venechanos as such Selling Shareholder's attxxxxxx-xx- xxxt (thx "Xxxxxxxxx-xx-Xact"). The AttorneyAttorneys-in-Fact is are authorized to execute, deliver and perform this Agreement on behalf of such Selling Shareholder, including, without limitation, the authority to deliver determine the purchase price to be paid to each Selling Shareholder by the Underwriters as set forth in Section 3 of this Agreement. Certificates in negotiable form representing the Offered Shares to be sold by such Selling Shareholder hereunder, to accept payment therefor, and otherwise to act on behalf of such Selling Shareholder in connection with this Agreement, including payment from the Offering proceeds of expenses incurred on behalf of such Selling Shareholder. Certificates, in suitable form for transfer by delivery or accompanied by duly executed instruments of transfer or assignment in blank, representing the Shares to be sold by such each Selling Shareholder hereunder have been shall be, following exercise of the warrant pursuant to which such Offered Shares are issued, deposited with the Custodian pursuant to the Custody Agreement and Power of Attorney for the purpose of delivery pursuant to this Agreement. Such Selling Shareholder agrees that the shares of Common Stock Offered Shares represented by the certificates to be on deposit with the Custodian pursuant to the Custody Agreement are held for the purpose of delivery pursuant to this Agreement. Such Selling Shareholder agrees that the Offered Shares represented by the certificates to be deposited with the Custodian are subject to the interest interests of the Underwriters hereunder, that the arrangements made for such custody and the appointment of the AttorneyAttorneys-in-Fact are to that extent irrevocable, and that the obligations of such Selling Shareholder hereunder shall not be terminated terminated, except as provided in this Agreement and the Custody Agreement and Power Agreement, by any act of Attorney. If such Selling Shareholder should die Shareholder, by operation of law or become incapacitatedotherwise, whether by the dissolution, reorganization, death, incapacity or if any other such event should occur, occur before the delivery of the Offered Shares of such to be sold by the affected Selling Shareholder hereunder, the certificates for such Offered Shares deposited with the Custodian shall be delivered by the Custodian in accordance with the terms and conditions of this Agreement Agreement, as if such dissolution, reorganization, death, incapacity incapacity, or other event had not occurred, regardless of whether or not the Custodian or the AttorneyAttorneys-in-Fact shall have received notice thereof.
(cii) Such Selling ShareholderShareholder has all requisite right, acting through his duly authorized Attorney-in-Factpower and authority to enter into this Agreement, has duly executed and delivered this Agreement and the Custody Agreement and Power of Attorney; this Agreement constitutes a legal, valid and binding obligation of such Selling Shareholder, all authorizations and consents necessary for the execution and delivery of this Agreement and the Custody Agreement and Power of Attorney on behalf and has, or, in the case of such Selling Shareholder shares of Common Stock to be issued upon exercise of Common Stock options, will have, all requisite right, power and for authority to sell, transfer and deliver the sale and delivery of the Offered Shares to be sold by such Selling Shareholder hereunder have been givenhereunder, except as may be required by the Securities Act or state securities laws; and such Selling Shareholder has the legal capacity and full rightthis Agreement, power and authority to execute this Agreement and the Custody Agreement and the Power of AttorneyAttorney have been duly authorized, executed and delivered by such Selling Shareholder and constitute the legal, valid and binding obligations of such Selling Shareholder enforceable in accordance with their respective terms, except as enforceability may be limited by bankruptcy, insolvency, reorganization, moratorium, fraudulent conveyance or other similar laws relating to or affecting creditors' rights generally or by general principles of equity and rules of law governing specific performance, estoppel, waiver, injunctive relief and other equitable remedies (regardless of whether enforcement is sought in a proceeding at law or in equity) and except, as to this Agreement, as rights to indemnity and contribution may be limited by federal and state securities laws or principles of public policy.
(diii) The execution, delivery and performance of this Agreement and the Custody Agreement and Power of Attorney Agreement, and the consummation of the transactions contemplated hereby and thereby by such Selling Shareholder will the Prospectus, the Custody Agreement and the Power of Attorney do not and shall not, with or without the giving of notice or lapse of time or both, (i) conflict with or result in a breach or violation of, or conflict with, of any of the terms or provisions of, or constitute a default by such Selling Shareholder under, any indenture, mortgage, deed of trust, trust (constructive or other), loan agreement, lease, franchise, license mortgage or other agreement or instrument to which such Selling Shareholder is a party or any of his or its properties is bound, or any statute, judgment, decree, order, rule or regulation of any court or governmental agency or body applicable to by which such Selling Shareholder or any of histhe Offered Shares to be sold by such Selling Shareholder is bound, her except for any such conflict, breach or its propertiesviolation which could not interfere with such Selling Shareholders performance under this Agreement and which would not result in any lien, charge, security interest or encumbrance on any of the Offered Shares to be sold by such Selling Shareholder, (ii) any organizational document relating to such Selling Shareholder (including without limitation, any partnership agreement, articles of incorporation, bylaws or other governing instruments) or (iii) violate any existing, applicable law, rule, regulation, judgment, order or decree of any government, governmental instrumentality or court, domestic or foreign, having jurisdiction over such Selling Shareholder or any of the Offered Shares to be sold by such Selling Shareholder, except for any such conflict or violation which could not interfere with such Selling Shareholders performance under this Agreement and which would not result in any lien, charge, security interest or encumbrance of any of the Offered Shares to be sold by such Selling Shareholder.
(eiv) All authorizations, approvals and consents necessary for the valid execution and delivery by such Selling Shareholder of the Custody Agreement and the Power of Attorney, the execution and delivery by or on behalf of such Selling Shareholder of this Agreement, and the sale and delivery of the shares to be sold by such Selling Shareholder hereunder (other than, at the time of the execution thereof, the issuance of the order of the Commission declaring the Registration Statement effective and such authorizations, approvals or consents as may be necessary under the state securities or Blue Sky laws and the bylaws, rules and pronouncements of the NASD), have been obtained and are in full force and effect.
(v) On the Closing Date and any Option Closing Date, such Selling Shareholder will be the lawful owner of the Offered Shares to be sold by such Selling Shareholder pursuant to this Agreement. On the Closing Date and any Option Closing Date, such Selling Shareholder will have good and marketable title to such Offered Shares, free and clear of all liens, encumbrances, security interests or other restrictions (other than those created under the Custody Agreement).
(vi) On the Closing Date and any Option Closing Date, such Selling Shareholder will have full legal right, power and authorization, and any approval required by law, to sell, assign, transfer and deliver such Offered Shares in the manner provided in this Agreement, the Power of Attorney and the Custody Agreement, and upon delivery of and payment for such Offered Shares hereunder, the several Underwriters will acquire good and marketable title to such Offered Shares free and clear of any lien, claim, security interest or other encumbrance, except any that may be created by the Underwriters' own action.
(vii) Such Selling Shareholder is not prompted to sell the Offered Shares to be sold by such Selling Shareholder hereunder by any information concerning the Company or the Subsidiaries that is not set forth in the Prospectus.
(viii) To the knowledge of such Selling Shareholder, such parts of the Registration Statement and the Prospectus under the caption "Principal and Selling Shareholders" which specifically relate to such Selling Shareholder do not contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein in light of the circumstances under which they were made not misleading and such part of the Preliminary Prospectus does not include an untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading.
(ix) Such Selling Shareholder is not a party to any arrangements or undertakings, whether oral or written, nor has such Selling Shareholder made any payments for commissions, finder's fees or similar payments in connection with the transaction contemplated by this Agreement.
(x) Such Selling Shareholder has not distributed nor, other than as permitted by the Securities Act and the Rules and Regulations, will not distribute any prospectus or other offering material in connection with the offer offering and sale of the Offered Shares other than any the Registration Statement, a Preliminary Prospectus, the Prospectus filed with the Commission or the Final Prospectus or and other material material, if any, permitted by the Securities ActAct and the Regulations. Neither such Selling Shareholder nor any affiliate of such Selling Shareholder has taken or shall take any action designed, or that might be reasonably expected, to cause or result in stabilization or manipulation of the price of the Offered Shares.
(fb) Such Each of Mark Cocchiola and Steven Venechanos (each a "Management Selling Shareholder has reviewed Sharexxxxxx" xxx xxllectxxxxx, xxx "Xxxxxement Selling Shareholders") severally represent and is familiar warrant to, and agree with each Underwriter that, to the knowledge of each Management Selling Shareholder, each of the Registration Statement and Prospectus does not contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the Preliminary Prospectus. To statements therein, in the light of the circumstances under which they were made, not misleading and to the knowledge of such Management Selling Shareholder, the Preliminary Prospectus does not include an untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading.
Appears in 1 contract
Representations and Warranties of the Selling Shareholders. Each of the Selling Shareholders, Shareholder severally and not jointly, represents and warrants to the Company and agrees witheach Underwriter, each of the Underwriters that:
(a) Such The Selling ShareholderShareholder has placed in custody under a Custody Agreement ("Custody Agreement") with Securities Transfer Corporation, at the First Closing Dateas Custodian ("Custodian"), will have good and marketable title to the Shares set forth in Schedule II to be sold by such Selling Shareholder, free and clear of any liens, encumbrances, equities and claims (other than as imposed by the Securities Act or for delivery under this Agreement), and full right, power and authority to effect certificates in negotiable form representing the sale and delivery of such Shares; and upon the delivery of and payment for the Secondary Shares to be sold by such Selling Shareholder pursuant to this Agreement, good and marketable title thereto, free and clear of any liens, encumbrances, equities and claims, of any kind, will be transferred to the Underwriters.
(b) Such Selling Shareholder has duly executed and delivered the Custody Agreement and Power of Attorney in the form previously delivered to the Representatives, appointing the persons named therein, and each of them as such Selling Shareholder's attorney-in-fact (the "Attorney-in-Fact") and as custodian (the "Custodian"). The Attorney-in-Fact is authorized to execute, deliver and perform this Agreement on behalf of such Selling Shareholder, to deliver the Shares to be sold by such Selling Shareholder hereunder, to accept payment therefor, and otherwise to act on behalf of such . The Selling Shareholder in connection with this Agreement, including payment from the Offering proceeds of expenses incurred on behalf of such Selling Shareholder. Certificates, in suitable form for transfer by delivery or accompanied by duly executed instruments of transfer or assignment in blank, representing the Shares to be sold by such Selling Shareholder hereunder have been deposited with the Custodian pursuant to the Custody Agreement and Power of Attorney for the purpose of delivery pursuant to this Agreement. Such Selling Shareholder specifically agrees that the shares of Common Stock Secondary Shares represented by the certificates on deposit with the Custodian so held in custody for such Selling Shareholder are subject to the interest interests of the Underwriters hereunder, that the arrangements made by the Selling Shareholder for such custody and the appointment of the Attorney-in-Fact are to that extent irrevocable, irrevocable and not subject to termination and that the obligations of such the Selling Shareholder hereunder shall not be terminated except as provided in this Agreement and by any act of the Custody Agreement and Power Selling Shareholder, by operation of Attorney. If such Selling Shareholder should die or become incapacitatedlaw, or if by the occurrence of any other event should occur, before the delivery of the Shares of such Selling Shareholder hereunder, the certificates for such Shares deposited with the Custodian shall be delivered by the Custodian in accordance with the terms and conditions of this Agreement as if such death, incapacity or other event had not occurred, regardless of whether the Custodian or the Attorney-in-Fact shall have received notice thereofevent.
(cb) Such Selling ShareholderAll consents, acting through his duly authorized Attorney-in-Factapprovals, has duly executed and delivered this Agreement and the Custody Agreement and Power of Attorney; this Agreement constitutes a legal, valid and binding obligation of such Selling Shareholder, all authorizations and consents orders necessary for the execution and delivery by the Selling Shareholder of this Agreement and the Custody Agreement and Power of Attorney on behalf of such Selling Shareholder Agreement, and for the sale and delivery of the Secondary Shares to be sold by such the Selling Shareholder hereunder hereunder, have been given, except as may be required by the Securities Act or state securities lawsobtained; and such the Selling Shareholder has the legal capacity and full right, power and authority to execute enter into this Agreement and to sell, assign, transfer and deliver the Shares to be sold by the Selling Shareholder hereunder.
(c) This Agreement and the Custody Agreement have been duly authorized, executed and Power delivered by the Selling Shareholder and constitute valid and binding obligations of Attorneythe Selling Shareholder enforceable against the Selling Shareholder in accordance with their terms except insofar as (i) the remedy of specific performance and injunctive and other forms of equitable relief may be subject to equitable defenses and to the discretion of the court before which any proceeding thereafter may be brought; and (ii) such enforcement may be subject to any limitations under applicable law which relate to the indemnification and contribution provisions of this Agreement.
(d) The performance sale of the Secondary Shares to be sold by the Selling Shareholder hereunder and the compliance by the Selling Shareholder with all of the provisions of this Agreement and the Custody Agreement and Power of Attorney and the consummation of the transactions herein contemplated hereby and thereby by such Selling Shareholder will not conflict with or result in a breach or violation of, or conflict with, of any of the terms or provisions of, or constitute a default by such Selling Shareholder under, any statute, indenture, mortgage, deed of trust, trust (constructive or other)partnership agreement, loan agreement, lease, franchise, license agreement or other agreement or instrument to which such the Selling Shareholder is a party or any of his or its properties by which the Selling Shareholder is bound, or to which any statuteof the property or assets of the Selling Shareholder is subject, judgment, decree, nor will such action result in any violation of the provisions of partnership agreement of any Selling Shareholder that is a limited partnership or any statute or any order, rule or regulation of any court or governmental agency or body applicable to such having jurisdiction over the Selling Shareholder or any the property of his, her or its propertiesthe Selling Shareholder.
(e) Such The Selling Shareholder has not distributed norhas, other than and immediately prior to each time of delivery (as permitted set forth in Section 5 hereof) the Selling Shareholder will have, good and valid title to the Shares to be sold by the Securities Act Selling Shareholder hereunder, free and the Rules clear of all liens, encumbrances, equities or claims; and, upon delivery of such Shares and Regulationspayment therefor pursuant hereto, good and valid title to such Shares, free and clear of all liens, encumbrances, equities or claims, will distribute any prospectus or other offering material in connection with the offer and sale pass to each of the Shares other than any Preliminary Prospectus filed with the Commission or the Final Prospectus or other material permitted by the Securities ActUnderwriters.
(f) Such The information pertaining to the Selling Shareholder has reviewed under the caption "Principal and is familiar with Selling Shareholders" in the Registration Statement and the Preliminary Prospectus. To the knowledge of such Selling Shareholder, the Preliminary Prospectus does not include an 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, in the light of the circumstances under which they were made, therein not misleading.
(g) 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, such Selling Shareholder will deliver to you prior to or at the First Time of Delivery (as hereinafter defined) a properly completed and executed United States Treasury Department Form W-9 (or other applicable form or statement specified by Treasury Department regulations in lieu thereof).
(h) The Selling Shareholder has not taken, nor will it take, directly or indirectly, any action designed to or which has constituted or which might reasonably be expected to cause or result, under the Exchange Act or otherwise, in stabilization or manipulation of the price of any security of the Company to facilitate its sale or resale of the Shares.
(i) The Selling Shareholder agrees to cooperate to the extent reasonably necessary to cause the Registration Statement and any post-effective amendment thereto to become effective at the earliest possible time. The Selling Shareholder agrees to do or perform all things reasonably required to be done or performed by the Selling Shareholder prior to the First Closing Date to satisfy all conditions precedent to the delivery of and the payment for the Secondary Shares being sold by the Selling Shareholder pursuant to this Agreement.
Appears in 1 contract
Representations and Warranties of the Selling Shareholders. Each of the Selling ShareholdersShareholder, severally and not jointly, represents and warrants to to, and agrees with, each of the Underwriters that:Underwriter as set forth below in this Section 2.
(a) Such Selling Shareholder, at Neither the First Closing Date, will have good and marketable title to the Shares set forth in Schedule II to be sold by such Selling Shareholder, free and clear of any liens, encumbrances, equities and claims (other than as imposed by the Securities Act or this Agreement), and full right, power and authority to effect the sale and delivery of such Shares; and upon the delivery of and payment for the Shares to be sold by such Selling Shareholder pursuant to this Agreement, good and marketable title thereto, free and clear of any liens, encumbrances, equities and claims, of any kind, will be transferred to the Underwriters.
(b) Such Selling Shareholder has duly executed and delivered the Custody Agreement and Power of Attorney in the form previously delivered to the Representatives, appointing the persons named therein, and each of them as such Selling Shareholder's attorney-in-fact (the "Attorney-in-Fact") and as custodian (the "Custodian"). The Attorney-in-Fact is authorized to execute, deliver and perform this Agreement on behalf of such Selling Shareholder, to deliver the Shares to be sold by such Selling Shareholder hereunder, to accept payment therefor, and otherwise to act on behalf of such Selling Shareholder in connection with this Agreement, including payment from the Offering proceeds of expenses incurred on behalf of such Selling Shareholder. Certificates, in suitable form for transfer by delivery or accompanied by duly executed instruments of transfer or assignment in blank, representing the Shares to be sold by such Selling Shareholder hereunder have been deposited with the Custodian pursuant to the Custody Agreement and Power of Attorney for the purpose of delivery pursuant to this Agreement. Such Selling Shareholder agrees that the shares of Common Stock represented by the certificates on deposit with the Custodian are subject to the interest of the Underwriters hereunder, that the arrangements made for such custody and the appointment of the Attorney-in-Fact are to that extent irrevocable, and that the obligations of such Selling Shareholder hereunder shall not be terminated except as provided in this Agreement and the Custody Agreement and Power of Attorney. If such Selling Shareholder should die or become incapacitated, or if any other event should occur, before the delivery of the Shares of such Selling Shareholder hereunder, the certificates for such Shares deposited with the Custodian shall be delivered by the Custodian in accordance with the terms and conditions of this Agreement as if such death, incapacity or other event had not occurred, regardless of whether the Custodian or the Attorney-in-Fact shall have received notice thereof.
(c) Such Selling Shareholder, acting through his duly authorized Attorney-in-Fact, has duly executed and delivered this Agreement and the Custody Agreement and Power of Attorney; this Agreement constitutes a legal, valid and binding obligation of such Selling Shareholder, all authorizations and consents necessary for the execution and delivery of this Agreement and the Custody Agreement and Power of Attorney on behalf of such Selling Shareholder and for the sale and delivery of the Shares to be sold by such Selling Shareholder hereunder have been given, except as may be required by the Securities Act or state securities laws; and such Selling Shareholder has the legal capacity and full right, power and authority to execute this Agreement and the Custody Agreement and Power of Attorney.
(d) The performance of this Agreement and the Custody Agreement and Power of Attorney and the consummation of the transactions contemplated hereby and thereby by such Selling Shareholder will not result in a breach or violation of, or conflict with, any of the terms or provisions of, or constitute a default by such Selling Shareholder under, any indenture, mortgage, deed of trust, trust (constructive or other), loan agreement, lease, franchise, license or other agreement or instrument to which such Selling Shareholder or any of his or its properties is bound, or any statute, judgment, decree, order, rule or regulation of any court or governmental agency or body applicable to such Selling Shareholder or any of his, her or its properties.
(e) Such Selling Shareholder has not distributed nor, other than as permitted by the Securities Act and the Rules and Regulations, will distribute any prospectus or other offering material in connection with the offer and sale of the Shares other than any Preliminary Prospectus filed with the Commission or Disclosure Package nor the Final Prospectus or other material permitted by the Securities Act.
(f) Such Selling Shareholder has reviewed and is familiar with the Registration Statement and the Preliminary Prospectus. To the knowledge of such Selling Shareholder, the Preliminary Prospectus does not include an any amendments or supplements thereto includes 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, provided that such representations and warranties set forth in this Section 2(a) apply only to statements or omissions made in reliance upon and in conformity with the Selling Shareholder Information.
(1) The Trust (and not TPG) represents and warrants that it is a trust duly formed and validly existing pursuant to the laws of Delaware, and each trustee thereof is a duly appointed and incumbent trustee of the Trust, having the requisite authority to authorize, execute and deliver this Agreement. Such trustees have duly authorized the execution and delivery of this Agreement and the sale of the Securities being sold to the Underwriter by the Trust. All consents, approvals, authorizations and orders necessary for the execution and delivery by the Trust of this Agreement and for the sale and delivery of the Securities to be sold by the Trust hereunder, have been obtained; and the Trust has the full right, power and authority under the Xxxxxxxxx World Industries, Inc. Asbestos Personal Injury Settlement Trust Agreement, dated as of October 2, 2006, as amended, forming the Trust (the “Trust
(2) TPG (and not the Trust) represents and warrants that it is a limited partnership duly formed and validly existing pursuant to the laws of Delaware and has the full right, power and authority to enter into this Agreement and to sell, assign, transfer and deliver the Securities to be sold by TPG hereunder, and this Agreement has been duly authorized, executed and delivered by TPG.
(c) None of the execution and delivery of this Agreement, the sale of the Securities to be sold by such Selling Shareholder, or the consummation of any other of the transactions herein, or the fulfillment of the terms hereof will conflict with, result in a breach or violation or imposition of any lien, charge or encumbrance upon any property or assets of such Selling Shareholder pursuant to (i) the charter or by-laws or comparable constituting documents of such 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 such Selling Shareholder is a party or bound or to which its property is subject; or (iii) any statute, law, rule, regulation, judgment, order or decree of any court, regulatory body, administrative agency, governmental body, arbitrator or other authority having jurisdiction over such Selling Shareholder, or any of its properties, except in the case of clause (ii) and (iii), for any such conflict, breach, violation or imposition, in each case, as would not singly or in the aggregate result in a material adverse effect on the ability of such Selling Shareholder to perform its obligations hereunder and thereunder.
(d) Such Selling Shareholder has, and on the Closing Date will have, valid title to the Securities to be sold by 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 Securities to be sold by such Selling Shareholder or a valid security entitlement in respect of such Securities.
(e) Upon payment of the purchase price for the Securities to be sold by such Selling Shareholder pursuant to this Agreement, delivery of such Securities, as directed by the Underwriter, to Cede & Co. (“Cede”) or such other nominee as may be designated by The Depository Trust Company (“DTC”) (unless delivery of such Securities is unnecessary because such Securities are already in possession of Cede or such nominee), registration of such Securities in the name of Cede or such other nominee (unless registration of such Securities is unnecessary because such Securities are already registered in the name of Cede or such nominee), and the crediting of such Securities on the books of DTC to securities accounts (within the meaning of Section 8-501(a) of the UCC) 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 Uniform Commercial Code then in effect in the State of New York (“UCC”), to such Securities), (A) under Section 8-501 of the UCC, the Underwriter will acquire a valid “security entitlement” in respect of such Securities and (B) no action (whether framed in conversion, replevin, constructive trust, equitable lien, or other theory) based on any “adverse claim,” within the meaning of Section 8-102 of the UCC, to such Securities may be asserted against the Underwriter with respect to such security entitlement; for purposes of this representation, such Selling Shareholder may assume that when such payment, delivery (if necessary) and crediting occur, (I) such Securities will have been registered in the name of Cede or another nominee designated by DTC, in each case on the Company’s share registry in accordance with its certificate of incorporation, bylaws and applicable law, (II) DTC will be registered as a “clearing corporation,” within the meaning of Section 8-102 of the UCC, (III) appropriate entries to the account of the Underwriter on the records of DTC will have been made pursuant to the UCC, (IV) to the extent DTC, or any other securities intermediary which acts as “clearing corporation” with respect to the Securities, 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, (V) claims of creditors of DTC or any other securities intermediary or clearing corporation may be given priority to the extent set forth in Section 8-511(b) and 8-511(c) of the UCC and (VI) if at any time DTC or other securities intermediary does not have sufficient Securities to satisfy claims of all of its entitlement holders with respect thereto then all holders will share pro rata in the Securities then held by DTC or such securities intermediary.
(f) Such Selling Shareholder has not taken, directly or indirectly, any action designed to or that has constituted or that might reasonably be expected to cause or result under the Exchange Act or otherwise in stabilization or manipulation of the price of any security of the Company to facilitate the sale or resale of the Securities.
(g) No consent, approval, authorization, filing with or order of any court or governmental agency or body is required for the performance by each Selling Shareholder in connection with the sale and delivery of the Securities hereunder or the consummation of the transactions contemplated by this Agreement, except such as have been already obtained under the Act or as may be required under the Exchange Act, the rules of the New York Stock Exchange, FINRA or the blue sky laws of any jurisdiction in which the Securities are offered and sold.
(h) Such Selling Shareholder has not prepared or had prepared on its behalf or used or referred to, any “free writing prospectus” (as defined in Rule 405), and has not distributed any written materials in connection with the offer or sale of the Securities.
(i) None of the Trust nor any of its affiliates directly, or indirectly through one or more intermediaries, controls, or is controlled by, or is under common control with any member firm of FINRA or is a person associated with a member (within the meaning of the FINRA By-Laws) of FINRA.
(j) Any certificate signed by any officer of the Company and delivered to the Underwriter or counsel for the Underwriter in connection with the offering of the Securities shall be deemed a representation and warranty by the Company, as to matters covered thereby, to the Underwriter; and any certificate signed by the Selling Shareholders and delivered to the Underwriter or to counsel for the Underwriter in connection with the offering of the Securities shall be deemed a representation and warranty by such Selling Shareholder, as to the matters covered thereby, to the Underwriter.
Appears in 1 contract
Samples: Underwriting Agreement (Armstrong World Industries Inc)
Representations and Warranties of the Selling Shareholders. Each ---------------------------------------------------------- of the Selling Shareholders, severally and severally, but not jointly, hereby represents and warrants to and agrees with, each of the Underwriters thatUnderwriter as follows:
(a) Such The Selling Shareholders has caused certificates for the number of Shares to be sold by such Selling Shareholders, severally, but not jointly, hereunder to be delivered to the American Stock Transfer & Trust Company (the "Custodian"), endorsed in blank or with blank stock powers duly executed, with a signature appropriately guaranteed, such certificates to be held in custody by the Custodian for delivery, pursuant to the provisions of this Agreement and an agreement dated June [ ], 2000 among the Custodian and the Selling Shareholders (the "Custody Agreement").
(b) The Selling Shareholders has granted an irrevocable power of attorney (the "Power of Attorney") to the person named therein, on behalf of the Selling Shareholders, to execute and deliver this Agreement and any other document necessary or desirable in connection with the transactions contemplated hereby and to deliver the shares to be sold by the Selling Shareholders pursuant hereto.
(c) This Agreement, the Custody Agreement, the Power of Attorney and the Lock-Up Agreement have each been duly authorized, executed and delivered by or on behalf of the Selling Shareholders and, assuming due authorization, execution and delivery by the other parties hereto, constitutes the valid and legally binding agreement of the Selling Shareholders, enforceable against the Selling Shareholders in accordance with its terms.
(d) The execution and delivery by the Selling Shareholders of this Agreement and the performance by the Selling Shareholders of its obligations under this Agreement (i) will not contravene any provision of applicable law, statute, regulation or filing or any agreement or other instrument binding upon the Selling Shareholder or any judgment, order or decree of any governmental body, agency or court having jurisdiction over the Selling Shareholder, at (ii) does not require any consent, approval, authorization or order of or registration or filing with any court or governmental agency or body having jurisdiction over it, except such as may be required by the First Blue Sky laws of the various states in connection with the offer and sale of the Shares which have been or will be effected in accordance with this Agreement, except for such consents, approvals, authorizations, orders, registrations or filings, which have already been obtained or made, (iii) does not and will not violate any statute, law, regulation or filing or judgment, injunction, order or decree applicable to the Selling Shareholder or (iv) will not result in the creation or imposition of any lien, charge or encumbrance upon any property or assets of the Selling Shareholder pursuant to the terms of any agreement or instrument to which the Selling Shareholder is a party or by which the Selling Shareholder may be bound or to which any of the property or assets of the Selling Shareholders is subject.
(e) The Selling Shareholder has, and on the Option Shares Closing Date, Date will have good (provided, however, that with respect to any of the Shares which will result from the exercise of warrants or options, the foregoing is as of the Option Shares Closing Date only) valid and marketable title to the Shares set forth in Schedule II to be sold by such the Selling Shareholder, Shareholder free and clear of any lienslien, encumbrancesclaim, equities security interest or other encumbrance, including, without limitation, any restriction on transfer, except as otherwise described in the Registration Statement and claims Prospectus.
(other than f) The Selling Shareholder has, and on the Option Shares Closing Date will have (provided, however, that with respect to any of the Shares which will result from the exercise of warrants or options, the foregoing is as imposed by of the Securities Act or this AgreementOption Shares Closing Date only), and full legal right, power and authority authorization, and any approval required by law, to effect sell, assign, transfer and deliver the sale and delivery of such Shares; and upon Shares to be sold by the Selling Shareholders in the manner provided by this Agreement.
(g) Upon delivery of and payment for the Shares to be sold by such the Selling Shareholder pursuant to this Agreement, good the several Underwriters will receive valid and marketable title thereto, to such Shares free and clear of any lienslien, encumbrancesclaim, equities and claims, of any kind, will be transferred to the Underwriterssecurity interest or other encumbrance.
(bh) Such All information relating to the Selling Shareholder has duly executed and delivered furnished in writing by the Custody Agreement and Power of Attorney in the form previously delivered to the Representatives, appointing the persons named therein, and each of them as such Selling Shareholder's attorney-in-fact (the "Attorney-in-Fact") and as custodian (the "Custodian"). The Attorney-in-Fact is authorized to execute, deliver and perform this Agreement on behalf of such Selling Shareholder, to deliver the Shares to be sold by such Selling Shareholder hereunder, to accept payment therefor, and otherwise to act on behalf of such Selling Shareholder expressly for use in connection with this Agreement, including payment from the Offering proceeds of expenses incurred on behalf of such Selling Shareholder. Certificates, in suitable form for transfer by delivery or accompanied by duly executed instruments of transfer or assignment in blank, representing the Shares to be sold by such Selling Shareholder hereunder have been deposited with the Custodian pursuant to the Custody Agreement and Power of Attorney for the purpose of delivery pursuant to this Agreement. Such Selling Shareholder agrees that the shares of Common Stock represented by the certificates on deposit with the Custodian are subject to the interest of the Underwriters hereunder, that the arrangements made for such custody and the appointment of the Attorney-in-Fact are to that extent irrevocable, and that the obligations of such Selling Shareholder hereunder shall not be terminated except as provided in this Agreement and the Custody Agreement and Power of Attorney. If such Selling Shareholder should die or become incapacitated, or if any other event should occur, before the delivery of the Shares of such Selling Shareholder hereunder, the certificates for such Shares deposited with the Custodian shall be delivered by the Custodian in accordance with the terms and conditions of this Agreement as if such death, incapacity or other event had not occurred, regardless of whether the Custodian or the Attorney-in-Fact shall have received notice thereof.
(c) Such Selling Shareholder, acting through his duly authorized Attorney-in-Fact, has duly executed and delivered this Agreement and the Custody Agreement and Power of Attorney; this Agreement constitutes a legal, valid and binding obligation of such Selling Shareholder, all authorizations and consents necessary for the execution and delivery of this Agreement and the Custody Agreement and Power of Attorney on behalf of such Selling Shareholder and for the sale and delivery of the Shares to be sold by such Selling Shareholder hereunder have been given, except as may be required by the Securities Act or state securities laws; and such Selling Shareholder has the legal capacity and full right, power and authority to execute this Agreement and the Custody Agreement and Power of Attorney.
(d) The performance of this Agreement and the Custody Agreement and Power of Attorney and the consummation of the transactions contemplated hereby and thereby by such Selling Shareholder will not result in a breach or violation of, or conflict with, any of the terms or provisions of, or constitute a default by such Selling Shareholder under, any indenture, mortgage, deed of trust, trust (constructive or other), loan agreement, lease, franchise, license or other agreement or instrument to which such Selling Shareholder or any of his or its properties is bound, or any statute, judgment, decree, order, rule or regulation of any court or governmental agency or body applicable to such Selling Shareholder or any of his, her or its properties.
(e) Such Selling Shareholder has not distributed nor, other than as permitted by the Securities Act and the Rules and Regulations, will distribute any prospectus or other offering material in connection with the offer and sale of the Shares other than any Preliminary Prospectus filed with the Commission or the Final Prospectus or other material permitted by the Securities Act.
(f) Such Selling Shareholder has reviewed and is familiar with the Registration Statement and Prospectus is, and on the Preliminary Prospectus. To Option Shares Closing Date will be, true, correct, and complete, and does not, and on the knowledge of such Selling ShareholderOption Shares Closing Date will not, the Preliminary Prospectus does not include an contain any untrue statement of a material fact or omit to state a any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, such information not misleading.
(i) The sales of Shares by the Selling Shareholder pursuant to this Agreement are not prompted by the Selling Shareholder's knowledge of any material information concerning the Company or its Subsidiaries which is not set forth in the Prospectus.
(j) The Selling Shareholder has not taken and will not take, directly or indirectly, any action designed to or that might reasonably be expected to cause or result in stabilization or manipulation of the price of any security of the Company to facilitate the sale or resale of the Shares.
(k) The representations and warranties of the Selling Shareholder in the Custody Agreement are and on the Option Shares Closing Date will be, true and correct.
(l) Neither the Selling Shareholder nor any other person associated with or acting on behalf of the Selling Shareholder has offered or caused the Underwriters to offer any of the Shares to any person pursuant to the Friends and Family Program with the specific intent to unlawfully influence (i) a customer or supplier of the Company to alter the customer's or supplier's level or type of business with the Company or (ii) a trade journalist or publication to write or publish favorable information about the Company or its products.
Appears in 1 contract
Representations and Warranties of the Selling Shareholders. Each of the Selling Shareholders, Shareholder severally and not jointly, represents and warrants to and agrees with, with each of the Underwriters that:
(a) Such Selling ShareholderIt has the power, at capacity and authority to enter into and execute this Agreement and, on the First Closing Date and each applicable Option Closing Date, it will have good the power, capacity and marketable title authority to enter into and execute each applicable Deed of Transfer (as defined below) of such Selling Shareholder and, if applicable, such Selling Shareholder’s Power of Attorney (as defined below).
(b) This Agreement has been duly authorized, executed and delivered by or on behalf of such Selling Shareholder.
(c) (i) The execution and delivery by such Selling Shareholder of, and the performance by such Selling Shareholder of its obligations under, this Agreement, each of such Selling Shareholder’s deeds of transfer, to be dated the Closing Date or the applicable Option Closing Date, as the case may be, pursuant to which the Shares set forth in Schedule II to be sold by such Selling Shareholder will be transferred by such Selling Shareholder to or as directed by the Underwriters in accordance with this Agreement (all such deeds of transfer to be executed and delivered by the Selling Shareholders, the “Deeds of Transfer”), and the power of attorney appointing certain individuals as such Selling Shareholder’s attorneys-in-fact to the extent set forth therein, relating to the transactions contemplated hereby and by the Registration Statement (all such powers of attorney to be executed and delivered by the Selling Shareholders, the “Powers of Attorney”) will not contravene (A) any provision of applicable law or (B) the certificate of incorporation, memorandum or articles of association or by-laws or other constituent documents of such Selling Shareholder if such Selling Shareholder is not a natural person, (C) any agreement or other instrument binding upon such Selling Shareholder or (D) any judgment, order or decree of any governmental body, agency or court having jurisdiction over such Selling Shareholder or any of its subsidiaries, except with respect to (A), (C) and (D) insofar as would not reasonably be expected to have a Material Adverse Effect or reasonably be expected to have a material adverse effect on the public offering of the Shares or the consummation of any other transaction contemplated thereby and (ii) no consent, approval, authorization or order of, or qualification with, any governmental body or agency is required for the performance by such Selling Shareholder of its obligations under this Agreement, each of such Selling Shareholder’s Deeds of Transfer or, if applicable, such Selling Shareholder’s Power of Attorney, except (A) such as have been obtained under the Securities Act or the Exchange Act, (B) such as may be required by the securities or Blue Sky laws of the various U.S. states in connection with the offer and sale of the Shares, and (C) such consent, approval, authorization or order of, or qualification with, which failure to obtain would not reasonably be expected to have a Material Adverse Effect or a material adverse effect on the public offering of the Shares or the consummation of any other transaction contemplated thereby.
(d) Such Selling Shareholder has, and on the Closing Date and each applicable Option Closing Date will have, valid title to the Shares to be sold by such Selling Shareholder on such Closing Date or Option Closing Date, as the case may be, free and clear of any all security interests, claims, liens, encumbrancesequities or other encumbrances and the legal right and power, equities and claims all authorizations and approvals required by law, to enter into this Agreement, each applicable Deed of Transfer of such Selling Shareholder and, if applicable, such Selling Shareholder’s Power of Attorney and to sell, transfer and deliver the Shares to be sold by such Selling Shareholder on such Closing Date or Option Closing Date, as the case may be, or a security entitlement in respect of such Shares. Such Selling Shareholder, at each of the time of signing and consummation of each applicable Deed of Transfer of such Selling Shareholder, will have the power (other than beschikkingsbevoegd) to sell and deliver such Selling Shareholder’s Shares to be sold pursuant to such Deed of Transfer, as imposed directed by the Securities Act Underwriters, to Cede & Co. (“Cede”) or this Agreementsuch other nominee as may be designated by the Depository Trust Company (“DTC”), and full rightsuch Selling Shareholder’s Shares will be, power at each such time, free and authority to effect the sale clear of rights of pledge, usufruct and delivery other encumbrances.
(e) Such Selling Shareholder’s Power of Attorney, if applicable, has been duly authorized, executed and delivered by such Selling Shareholder and is a valid and binding instrument of such Shares; Selling Shareholder. Each applicable Deed of Transfer of such Selling Shareholder, at the Closing Date or the applicable Option Closing Date, as the case may be, will have been duly authorized, executed and upon the delivery delivered by such Selling Shareholder and will be a valid and binding agreement of and such Selling Shareholder.
(f) Upon payment for the Shares to be sold by such Selling Shareholder pursuant to this Agreement, good delivery of such Shares, as directed by the Underwriters, to Cede or such other nominee as may be designated by the DTC, registration of such Shares in the name of Cede or such other nominee and marketable title thereto, free and clear the crediting of such Shares on the books of DTC to securities accounts of the Underwriters (assuming that neither DTC nor any such Underwriter has notice of any liensadverse claim (within the meaning of Section 8-105 of the New York Uniform Commercial Code (the “UCC”)) to such Shares), encumbrances(A) DTC shall be a “protected purchaser” of such Shares within the meaning of Section 8-303 of the UCC, equities (B) under Section 8-501 of the UCC, the Underwriters will acquire a valid security entitlement in respect of such Shares and claims(C) no action based on any “adverse claim”, within the meaning of any kindSection 8-102 of the UCC, to such Shares may be meritoriously asserted against the Underwriters with respect to such security entitlement; provided that, for purposes of this representation, such Selling Shareholder may assume that when such payment, delivery and crediting occur, (a) such Shares will have been registered in the name of Cede or another nominee designated by DTC, in each case on the Company’s share registry in accordance with its certificate of incorporation, bylaws, other organizational documents and applicable law, (b) DTC will be transferred registered as a “clearing corporation” within the meaning of Section 8-102 of the UCC, (c) appropriate entries to the accounts of the several Underwriters on the records of DTC will have been made pursuant to the UCC and (d) the law of the State of New York is the securities intermediary’s jurisdiction for purposes of Article 8 of the UCC; provided further that this representation is subject to the following qualifications: (i) 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 other securities intermediaries and the ownership interests of the Underwriters, (ii) 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 (iii) if at any time DTC or any 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.
(bi) Such Selling Shareholder has duly executed and delivered The Registration Statement, when it became effective, did not contain and, as amended or supplemented, if applicable, will not contain, on the Custody Agreement and Power date of Attorney in any such amendment or supplement, if any, any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the form previously delivered to statements therein not misleading, (ii) the RepresentativesRegistration Statement, appointing as of the persons named thereindate it became effective, did, and each of them as such Selling Shareholder's attorney-in-fact (when the "Attorney-in-Fact") and as custodian (the "Custodian"). The Attorney-in-Fact Prospectus is authorized to execute, deliver and perform this Agreement on behalf of such Selling Shareholder, to deliver the Shares to be sold by such Selling Shareholder hereunder, to accept payment therefor, and otherwise to act on behalf of such Selling Shareholder in connection with this Agreement, including payment from the Offering proceeds of expenses incurred on behalf of such Selling Shareholder. Certificates, in suitable form for transfer by delivery or accompanied by duly executed instruments of transfer or assignment in blank, representing the Shares to be sold by such Selling Shareholder hereunder have been deposited with the Custodian pursuant to the Custody Agreement and Power of Attorney for the purpose of delivery pursuant to this Agreement. Such Selling Shareholder agrees that the shares of Common Stock represented by the certificates on deposit with the Custodian are subject to the interest of the Underwriters hereunder, that the arrangements made for such custody and the appointment of the Attorney-in-Fact are to that extent irrevocable, and that the obligations of such Selling Shareholder hereunder shall not be terminated except as provided in this Agreement and the Custody Agreement and Power of Attorney. If such Selling Shareholder should die or become incapacitated, or if any other event should occur, before the delivery of the Shares of such Selling Shareholder hereunder, the certificates for such Shares deposited with the Custodian shall be delivered by the Custodian first filed in accordance with Rule 424(b) and on the terms Closing Date (as defined in Section 5 herein) and conditions of this Agreement on any Option Closing Date, the Prospectus, as amended or supplemented, if such deathapplicable, incapacity or other event had not occurredwill, regardless of whether the Custodian or the Attorney-in-Fact shall have received notice thereof.
(c) Such Selling Shareholder, acting through his duly authorized Attorney-in-Fact, has duly executed and delivered this Agreement and the Custody Agreement and Power of Attorney; this Agreement constitutes a legal, valid and binding obligation of such Selling Shareholder, comply in all authorizations and consents necessary for the execution and delivery of this Agreement and the Custody Agreement and Power of Attorney on behalf of such Selling Shareholder and for the sale and delivery of the Shares to be sold by such Selling Shareholder hereunder have been given, except as may be required by the Securities Act or state securities laws; and such Selling Shareholder has the legal capacity and full right, power and authority to execute this Agreement and the Custody Agreement and Power of Attorney.
(d) The performance of this Agreement and the Custody Agreement and Power of Attorney and the consummation of the transactions contemplated hereby and thereby by such Selling Shareholder will not result in a breach or violation of, or conflict with, any of the terms or provisions of, or constitute a default by such Selling Shareholder under, any indenture, mortgage, deed of trust, trust (constructive or other), loan agreement, lease, franchise, license or other agreement or instrument to which such Selling Shareholder or any of his or its properties is bound, or any statute, judgment, decree, order, rule or regulation of any court or governmental agency or body applicable to such Selling Shareholder or any of his, her or its properties.
(e) Such Selling Shareholder has not distributed nor, other than as permitted by material respects with the Securities Act and the Rules applicable rules and Regulationsregulations of the Commission thereunder, (iii) the Time of Sale Prospectus does not, and at the Applicable Time and on the Closing Date (as defined in Section 5) and any Option Closing Date, the Time of Sale Prospectus, as then amended or supplemented by the Company, if applicable, will distribute not, contain any prospectus or other offering material in connection with the offer and sale of the Shares other than any Preliminary Prospectus filed with the Commission or the Final Prospectus or other material permitted by the Securities Act.
(f) Such Selling Shareholder has reviewed and is familiar with the Registration Statement and the Preliminary Prospectus. To the knowledge of such Selling Shareholder, the Preliminary Prospectus does not include an untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading, (iv) each broadly available road show, if any, when considered together with the Time of Sale Prospectus, does not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading and (v) the Prospectus (together with any amendment or supplement thereto), on the date of any filing pursuant to Rule 424(b) and on the Closing Date and any Option Closing Date, does not and will not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading, provided that the representations and warranties set forth in this Section 2(g) are limited to statements or omissions based upon or in conformity with information relating to such Selling Shareholder furnished in writing by or on behalf of such Selling Shareholder specifically for inclusion in the documents referred to above in this Section 2(g), it being understood that in each case such information consists solely of (i) the name of such Selling Shareholder and (ii) the number of Shares owned and proposed to be sold by such Selling Shareholder (the names of all Selling Shareholders and all of the amounts of Shares owned and proposed to be sold by the Selling Shareholders, collectively, the “Selling Shareholder Information”).
(h) Such Selling Shareholder has not taken and will not take, directly or indirectly, any action that is designed to or that has constituted or that could 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.
Appears in 1 contract
Representations and Warranties of the Selling Shareholders. Each of the Selling ShareholdersShareholder represents, severally warrants and not jointly, represents and warrants covenants to and agrees with, each of the Underwriters thatUnderwriter as follows:
(a) Such This Agreement has been duly and validly authorized by or on behalf of such Selling Shareholder and when executed and delivered will constitute a valid and binding agreement of such Selling Shareholder, at enforceable against such Selling Shareholder in accordance with its terms, except as such enforceability may be limited by the First Closing DateEnforceability Exceptions.
(b) Each of the (i) Custody Agreement signed by such Selling Shareholder and Xxxxxxxx Xxxxxxxx & Xxxxxx P.C., will have good and marketable title as custodian (the "Custodian"), relating to the deposit of the Option Shares set forth in Schedule II to be sold by such Selling Shareholder (the "Custody Agreement") and (ii) Power of Attorney appointing certain individuals named therein as such Selling Shareholder's attorneys-in-fact (each, an "Attorney-in-Fact") to the extent set forth therein relating to the transactions contemplated hereby and by the Prospectus (the "Power of Attorney"), of such Selling Shareholder has been duly and validly authorized, executed and delivered by such Selling Shareholder and isa valid and binding agreement of such Selling Shareholder, free and clear of any liensenforceable against such Selling Shareholder in accordance with its terms, encumbrances, equities and claims (other than except as imposed such enforceability may be limited by the Securities Act or this Agreement)Enforceability Exceptions.
(c) Such Selling Shareholder has, and full righton the Option Closing Date (as defined in Section 4(c) below) will have, power good and authority valid title to effect all of the sale and delivery of such Shares; and upon the delivery of and payment for the Option Shares to that may be sold by such Selling Shareholder pursuant to this AgreementAgreement on such date and the legal right and power, and all authorizations and approvals required by law to enter into this Agreement and such Selling Shareholder's Custody Agreement and Power of Attorney, to sell, transfer and deliver all of the Option Shares that may be sold by such Selling Shareholder pursuant to this Agreement and to comply with its other obligations hereunder and thereunder.
(d) Delivery of the Option Shares that are sold by such Selling Shareholder pursuant to this Agreement will pass good and marketable valid title theretoto such Option Shares, free and clear of any lienssecurity interest, encumbrancesmortgage, equities and claimspledge, of any kindlien, will be transferred to the Underwritersencumbrance or other claim.
(be) Such The execution and delivery by such Selling Shareholder has duly executed of, and delivered the performance by such Selling Shareholder of its obligations under, this Agreement, the Custody Agreement and the Power of Attorney in the form previously delivered to the Representatives, appointing the persons named therein, and each of them as such Selling Shareholder's attorney-in-fact (the "Attorney-in-Fact") and as custodian (the "Custodian"). The Attorney-in-Fact is authorized to execute, deliver and perform this Agreement on behalf of such Selling Shareholder, to deliver the Shares to be sold by such Selling Shareholder hereunder, to accept payment therefor, and otherwise to act on behalf of such Selling Shareholder in connection with this Agreement, including payment from the Offering proceeds of expenses incurred on behalf of such Selling Shareholder. Certificates, in suitable form for transfer by delivery or accompanied by duly executed instruments of transfer or assignment in blank, representing the Shares to be sold by such Selling Shareholder hereunder have been deposited with the Custodian pursuant to the Custody Agreement and Power of Attorney for the purpose of delivery pursuant to this Agreement. Such Selling Shareholder agrees that the shares of Common Stock represented by the certificates on deposit with the Custodian are subject to the interest of the Underwriters hereunder, that the arrangements made for such custody and the appointment of the Attorney-in-Fact are to that extent irrevocable, and that the obligations of such Selling Shareholder hereunder shall not be terminated except as provided in this Agreement and the Custody Agreement and Power of Attorney. If such Selling Shareholder should die or become incapacitated, or if any other event should occur, before the delivery of the Shares of such Selling Shareholder hereunder, the certificates for such Shares deposited with the Custodian shall be delivered by the Custodian in accordance with the terms and conditions of this Agreement as if such death, incapacity or other event had not occurred, regardless of whether the Custodian or the Attorney-in-Fact shall have received notice thereof.
(c) Such Selling Shareholder, acting through his duly authorized Attorney-in-Fact, has duly executed and delivered this Agreement and the Custody Agreement and Power of Attorney; this Agreement constitutes a legal, valid and binding obligation of such Selling Shareholder, all authorizations and consents necessary for the execution and delivery of this Agreement and the Custody Agreement and Power of Attorney on behalf of such Selling Shareholder and for the sale and delivery of the Shares to be sold by such Selling Shareholder hereunder have been given, except as may be required by the Securities Act or state securities laws; and such Selling Shareholder has the legal capacity and full right, power and authority to execute this Agreement and the Custody Agreement and Power of Attorney.
(d) The performance of this Agreement and the Custody Agreement and Power of Attorney and the consummation of the transactions contemplated hereby and thereby by such Selling Shareholder will not contravene or conflict with, result in a breach or violation of, or conflict with, any of the terms or provisions of, or constitute a default by such Selling Shareholder under, or require the consent of any indenture, mortgage, deed of trust, trust (constructive or other), loan agreement, lease, franchise, license or other party to any agreement or instrument to which such Selling Shareholder is a party or by which it is bound or under which it is entitled to any right or benefit, any provision of applicable law or any of his or its properties is bound, or any statute, judgment, decree, order, rule decree or regulation of any court or governmental agency or body applicable to such Selling Shareholder of any court, regulatory body, administrative agency, governmental body or any of his, her or its properties.
(e) Such Selling Shareholder has not distributed nor, other than as permitted by the Securities Act and the Rules and Regulations, will distribute any prospectus or other offering material in connection with the offer and sale of the Shares other than any Preliminary Prospectus filed with the Commission or the Final Prospectus or other material permitted by the Securities Act.
(f) Such Selling Shareholder has reviewed and is familiar with the Registration Statement and the Preliminary Prospectus. To the knowledge of arbitrator having jurisdiction over such Selling Shareholder. No consent, approval, authorization or other order of, or registration or filing with, any court or other governmental authority or agency, is required for the Preliminary Prospectus does not include an untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in the light consummation by such Selling Shareholder of the circumstances transactions contemplated in this Agreement, except as may be required and as have been obtained under which they were madethe Act, not misleadingapplicable state securities or blue sky laws and from the NASD.
Appears in 1 contract
Samples: Underwriting Agreement (Bioshield Technologies Inc)
Representations and Warranties of the Selling Shareholders. Each of the Selling ShareholdersShareholder, severally as respects each Selling Shareholder individually, and not jointly, represents and warrants to to, and agrees with, each of the several Underwriters and the Company that:
(a) Such Selling Shareholder, at the First Closing Date, will have good and marketable title to the Shares set forth in Schedule II to be sold by such Selling Shareholder, free and clear of any liens, encumbrances, equities and claims (other than as imposed by the Securities Act or this Agreement), and full right, power and authority to effect the sale and delivery of such Shares; and upon the delivery of and payment for the Shares to be sold by such Selling Shareholder pursuant to this Agreement, good and marketable title thereto, free and clear of any liens, encumbrances, equities and claims, of any kind, will be transferred to the Underwriters.
(bi) Such Selling Shareholder has duly executed full right, power (corporate and delivered other) and authority to enter into this Agreement, the Power of Attorney and the Custody Agreement (as hereinafter defined) and Power of Attorney in the form previously delivered to sell, assign, transfer and deliver to the Representatives, appointing the persons named therein, and each of them as such Selling Shareholder's attorney-in-fact (the "Attorney-in-Fact") and as custodian (the "Custodian"). The Attorney-in-Fact is authorized to execute, deliver and perform this Agreement on behalf of such Selling Shareholder, to deliver Underwriters the Shares to be sold by such Selling Shareholder hereunder, to accept payment therefor, ; and otherwise to act on behalf the execution and delivery of such Selling Shareholder in connection with this Agreement, including payment from the Offering proceeds Power of expenses incurred on behalf Attorney or the Custody Agreement have been duly authorized by all necessary action of such Selling Shareholder. Certificates, in suitable form for transfer by delivery or accompanied by duly executed instruments of transfer or assignment in blank, representing the Shares to be sold by such Selling Shareholder hereunder have been deposited with the Custodian pursuant to the Custody Agreement and Power of Attorney for the purpose of delivery pursuant to this Agreement. .
(ii) Such Selling Shareholder agrees that the shares of Common Stock represented by the certificates on deposit with the Custodian are subject to the interest of the Underwriters hereunder, that the arrangements made for such custody and the appointment of the Attorney-in-Fact are to that extent irrevocable, and that the obligations of such Selling Shareholder hereunder shall not be terminated except as provided in this Agreement and the Custody Agreement and Power of Attorney. If such Selling Shareholder should die or become incapacitated, or if any other event should occur, before the delivery of the Shares of such Selling Shareholder hereunder, the certificates for such Shares deposited with the Custodian shall be delivered by the Custodian in accordance with the terms and conditions of this Agreement as if such death, incapacity or other event had not occurred, regardless of whether the Custodian or the Attorney-in-Fact shall have received notice thereof.
(c) Such Selling Shareholder, acting through his duly authorized Attorney-in-Fact, has duly executed and delivered this Agreement Agreement, the Power of Attorney and the Custody Agreement Agreement, and Power of Attorney; this Agreement each constitutes a legal, the valid and binding obligation of such Selling Shareholder, all authorizations and consents necessary for the execution and delivery of this Agreement and the Custody Agreement and Power of Attorney on behalf agreement of such Selling Shareholder enforceable against such Selling Shareholder in accordance with its terms, subject, as to enforcement, to applicable bankruptcy, insolvency, reorganization and moratorium laws and other laws relating to or affecting the enforcement of creditors' rights generally and to general equitable principles.
(iii) No consent, approval, authorization, order or declaration of or from, or registration, qualification or filing with, any court or governmental agency or body is required for the sale and delivery of the Shares to be sold by such Selling Shareholder hereunder have been givenor the consummation of the transactions contemplated by this Agreement, the Power of Attorney or the Custody Agreement, except the registration of such Shares under the Act (which, if the Registration Statement is not effective as of the time of execution hereof, shall be obtained as provided in this Agreement) and such as may be required under state securities or blue sky laws in connection with the offer, sale and distribution of such Shares by the Securities Act or state securities laws; and Underwriters.
(iv) The sale of the Shares to be sold by such Selling Shareholder has and the legal capacity and full rightperformance of this Agreement, power and authority to execute this Agreement the Power of Attorney and the Custody Agreement and Power of Attorney.
(d) The performance of this Agreement and the Custody Agreement and Power of Attorney and the consummation of the transactions herein and therein contemplated hereby and thereby by such Selling Shareholder will not conflict with, or (with or without the giving of notice or the passage of time or both) result in a breach or of violation of, or conflict with, of any of the terms or provisions of, or constitute a default by such Selling Shareholder under, any indenture, mortgage, deed of trust, trust (constructive or other), loan agreement, lease, franchise, license lease or other agreement or instrument to which such Selling Shareholder is a party or to which any of their respective properties or assets is subject, nor will such action conflict with or violate any provision of the Articles of Incorporation or Bylaws or other governing instruments of such Selling Shareholder or any of his or its properties is bound, subsidiaries or any statute, judgment, decree, order, rule or regulation or any order, judgment or decree of any court or governmental agency or body applicable to having jurisdiction over such Selling Shareholder or any of his, her such Selling Shareholder's properties or its propertiesassets.
(ev) Such Selling Shareholder has not distributed norhas, other than and immediately prior to each Time of Delivery (as permitted defined in Section 4 hereof), such Selling Shareholder will have, good and valid title to the Shares to be sold by the Securities Act such Selling Shareholder hereunder, free and the Rules clear of all liens, security interests, pledges, charges, encumbrances, defects, shareholders' agreements, voting trusts, equities or claims of any nature whatsoever; and, upon delivery of such Shares against payment therefor as provided herein, good and Regulationsvalid title to such Shares, free and clear of all liens, security interests, pledges, charges, encumbrances, defects, shareholders' agreements, voting trusts, equities or claims of any nature whatsoever, will distribute pass to the several Underwriters.
(vi) Neither such Selling Shareholder nor any prospectus of its officers, directors or other offering material in connection with affiliates has (A) taken, directly or indirectly, any action designed to cause or result in, or that has constituted or might reasonably be expected to constitute, the offer and sale stabilization or manipulation of the price of any security of the Company to facilitate the sale or resale of the Shares, or (B) since the filing of the Registration Statement (l) sold, bid for, purchased or paid anyone any compensation for soliciting purchases of, the Shares or (2) paid or agreed to pay to any person any compensation for soliciting another to purchase any other than securities of the Company.
(vii) When any Preliminary Prospectus was filed with the Commission or the Final Prospectus or other it (A) contained all statements required to be stated therein in accordance with, and complied in all material permitted by the Securities Act.
(f) Such Selling Shareholder has reviewed and is familiar respects with the Registration Statement requirements of, the Act and the Preliminary Prospectus. To rules and regulations of the knowledge of such Selling ShareholderCommission thereunder, the Preliminary Prospectus does and (B) did not include an any untrue statement of a material fact or omit to state a any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading. When the Registration Statement or any amendment thereto was or is declared effective and at each Time of Delivery, it (A) contained or will contain all statements required to be stated therein in accordance with, and complied or will comply in all material respects with the requirements of, the Act and the rules and regulations of the Commission thereunder, and (B) did not or will not include any untrue statement of a material fact or omit to state any material fact necessary to make the statements therein not misleading. When the Prospectus or any amendment or supplement thereto is filed with the Commission pursuant to Rule 424(b) (or, if the Prospectus or such amendment or supplement is not required to be so filed, when the Registration Statement or the amendment thereto containing such amendment or supplement to the Prospectus was or is declared effective), and at each Time of Delivery, the Prospectus, as amended or supplemented at any such time, (A) contained or will contain all statements required to be stated therein in accordance with, and complied or will comply in all material respects with the requirements of, the Act and the rules and regulations of the Commission thereunder and (B) did not or will not include any untrue statement of a material fact or omit to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading. The foregoing provisions of this paragraph (vii) do not apply to statements or omissions made in any Preliminary Prospectus, the Registration Statement or any amendment thereto or the Prospectus or any amendment or supplement thereto in reliance upon and in conformity with written information furnished to the Company by any Underwriter through you specifically for use therein. In order to document the Underwriters' compliance with the reporting and withholding provisions of the Internal Revenue Code of 1986, as amended, with respect to the transactions herein contemplated, each of the Selling Shareholders agrees to deliver to you prior to or at the First Time of Delivery (as hereinafter defined) a properly completed and executed United States Treasury Department Form W-9 (or other applicable form or statement specified by Treasury Department regulations in lieu thereof). Each of the Selling Shareholders represents and warrants that certificates in negotiable form representing all of the Shares to be sold by such Selling Shareholder hereunder have been placed in custody under a Custody Agreement, in the form heretofore furnished to and approved by you, duly executed and delivered by such Selling Shareholder to [INSERT NAME OF CUSTODIAN], as custodian (the "Custodian"), and that such Selling Shareholder has duly executed and delivered a Power of Attorney, in the form heretofore furnished to and approved by you, appointing the persons indicated in Schedule II hereto as such Selling Shareholder's attorneys-in-fact (the "Attorneys-in-Fact") with authority to execute and deliver this Agreement on behalf of such Selling Shareholder, to determine the purchase price to be paid by the Underwriters to the Selling Shareholders as provided in Section 2 hereof, to authorize the delivery of the Shares to be sold by such Selling Shareholder hereunder, and otherwise to act on behalf of such Selling Shareholder in connection with the transactions contemplated by this Agreement and the Custody Agreement. Each of the Selling Shareholders specifically agrees that the Shares represented by the certificates held in custody for such Selling Shareholder under the Custody Agreement are subject to the interests of the Underwriters hereunder, and that the arrangements made by such Selling Shareholder for such custody, and the appointment by such Selling Shareholder of the Attorneys-in- Fact by the Power of Attorney, are irrevocable. Each of the Selling Shareholders specifically agrees that the obligations of the Selling Shareholders hereunder shall not be terminated by operation of law, whether by the death or incapacity of any individual Selling Shareholder or, in the case of an estate or trust, by the death or incapacity of any executor or trustee or the termination of such estate or trust, or in the case of a partnership or corporation, by the dissolution of such partnership or corporation, or by the occurrence of any other event.
Appears in 1 contract
Samples: Underwriting Agreement (Amresco Inc)
Representations and Warranties of the Selling Shareholders. Each of the The Selling Shareholders, Shareholders each severally and not jointly, represents and warrants to and agrees with, each of the Underwriters Underwriter that:
(a) Such Selling Shareholder, at Shareholder is the First Closing Date, will have good and marketable title to the Shares set forth in Schedule II to be sold by such Selling Shareholder, free and clear lawful owner of any liens, encumbrances, equities and claims (other than as imposed by the Securities Act or this Agreement), and full right, power and authority to effect the sale and delivery of such Shares; and upon the delivery of and payment for the Shares to be sold by such Selling Shareholder pursuant to this AgreementAgreement and has, and on the Closing Date (and Option Closing Date, if applicable) will have, good and marketable clear title theretoto such Shares, free and clear of any all restrictions on transfer, liens, encumbrances, equities security interests and claims, of any kind, will be transferred to the Underwritersclaims whatsoever (other than restrictions imposed by applicable federal and state securities laws).
(b) Such Selling Shareholder has duly executed Upon delivery of and delivered the Custody Agreement payment for such Shares pursuant to this Agreement, good and Power of Attorney in the form previously delivered clear title to such Shares will pass to the RepresentativesUnderwriters, appointing the persons named thereinfree of all restrictions on transfer, liens, encumbrances, security interests and each of them as claims whatsoever (other than restrictions imposed by applicable federal and state securities laws).
(c) Certificates in negotiable form for such Selling Shareholder's attorney-in-fact Shares have been placed in custody for delivery pursuant to the terms of this Agreement, under a Custody Agreement duly authorized, executed and delivered by such Selling Shareholder in the form heretofore furnished to you (the "Attorney-in-FactCustody Agreement") and with American Stock Transfer & Trust Company, as custodian Custodian (the "Custodian"). The Attorney-in-Fact is authorized ; the Shares represented by the certificates so held in custody for such Selling Shareholder are subject to executethe interests hereunder of the Underwriters, deliver the Company and perform this Agreement on behalf the other Selling Shareholders; the arrangements for custody and delivery of such certificates made by such Selling Shareholder hereunder and under the Custody Agreement, are not subject to termination by any acts of such Selling Shareholder, to deliver or by operation of law, whether by the Shares to be sold by such Selling Shareholder hereunder, to accept payment therefor, and otherwise to act on behalf death or incapacity of such Selling Shareholder in connection with this Agreement, including payment from or the Offering proceeds occurrence of expenses incurred on behalf of such Selling Shareholder. Certificates, in suitable form for transfer by delivery or accompanied by duly executed instruments of transfer or assignment in blank, representing the Shares to be sold by such Selling Shareholder hereunder have been deposited with the Custodian pursuant to the Custody Agreement any other event; and Power of Attorney for the purpose of delivery pursuant to this Agreement. Such Selling Shareholder agrees that the shares of Common Stock represented by the certificates on deposit with the Custodian are subject to the interest of the Underwriters hereunder, that the arrangements made for such custody and the appointment of the Attorney-in-Fact are to that extent irrevocable, and that the obligations of such Selling Shareholder hereunder shall not be terminated except as provided in this Agreement and the Custody Agreement and Power of Attorney. If such Selling Shareholder should die or become incapacitated, or if any such death, incapacity or any other such event should occur, shall occur before the delivery of such Shares hereunder, certificates for the Shares of such Selling Shareholder hereunder, the certificates for such Shares deposited with the Custodian shall will be delivered by the Custodian in accordance with the terms and conditions of this Agreement and the Custody Agreement as if such death, incapacity or other event had not occurred, regardless of whether or not the Custodian or the Attorney-in-Fact shall have received notice thereofof such death, incapacity or other event.
(cd) Such The Selling ShareholderShareholder has, acting through his duly authorized Attorney-in-Factand on the Closing Date will have, has duly executed full legal right, power and delivered authority to enter into this Agreement and the Custody Agreement and Power of Attorney; to sell, assign, transfer and deliver such Shares in the manner provided herein and therein, and this Agreement constitutes a legaland the Custody Agreement have been duly authorized, valid executed and binding obligation delivered by or on behalf of such the Selling Shareholder, all authorizations Shareholder and consents necessary for the execution and delivery each of this Agreement and the Custody Agreement is a valid and Power binding agreement of Attorney on behalf of such the Selling Shareholder and for the sale and delivery of the Shares to be sold by such Selling Shareholder hereunder have been givenenforceable in accor- dance with its terms, except as rights to indemnity and contribution hereunder may be required limited by the Securities Act or state securities laws; and such Selling Shareholder has the legal capacity and full right, power and authority to execute this Agreement and the Custody Agreement and Power of Attorney.
(d) The performance of this Agreement and the Custody Agreement and Power of Attorney and the consummation of the transactions contemplated hereby and thereby by such Selling Shareholder will not result in a breach or violation of, or conflict with, any of the terms or provisions of, or constitute a default by such Selling Shareholder under, any indenture, mortgage, deed of trust, trust (constructive or other), loan agreement, lease, franchise, license or other agreement or instrument to which such Selling Shareholder or any of his or its properties is bound, or any statute, judgment, decree, order, rule or regulation of any court or governmental agency or body applicable to such Selling Shareholder or any of his, her or its propertieslaw.
(e) Such The Selling Shareholder has not distributed nortaken, and will not take, directly or indirectly, any action designed to, or which might reasonably be expected to, cause or result in stabilization or manipulation of the price of any security of the Company to facilitate the sale or resale of the Shares pursuant to the distribution contemplated by this Agreement, and other than as permitted by the Securities Act Act, the Selling Shareholder has not distributed and the Rules and Regulations, will not distribute any prospectus or other offering material in connection with the offer offering and sale of the Shares other than any Preliminary Prospectus filed with the Commission or the Final Prospectus or other material permitted by the Securities ActShares.
(f) Such The execution, delivery and performance of this Agreement by the Selling Shareholder, compliance by the Selling Shareholder has reviewed with all the provisions hereof and the consummation of the transactions contemplated hereby will not require any consent, approval, authorization or other order of any court, regulatory body, administrative agency or other governmental body (except as such may be under the Act, state securities laws or Blue Sky laws) and will not conflict with or constitute a breach of any of the terms or provisions of any agreement, indenture or other instrument to which the Selling Shareholder is familiar a party or by which the Selling Shareholder or property of the Selling Shareholder is bound, or violate or conflict with any laws, administrative regulation or ruling or court decree applicable to the Selling Shareholder or property of the Selling Shareholder.
(g) Such-parts of the Registration Statement under the caption "Principal and Selling Shareholders" which specifically relate to the Preliminary Prospectus. To Selling Shareholder do not, and will not on the knowledge of such Selling ShareholderClosing Date (and any Option Closing Date, the Preliminary Prospectus does not include an if applicable), 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, in the light of the circumstances under which they were made, not misleading.
(h) At any time during the period described in paragraph 6(b) hereof, if there is any change in the information referred to in paragraph 2(g) above with respect to a Selling Shareholder, such Selling Shareholder will immediately notify you of such change.
(i) The Selling Shareholder is not aware, and has no reason to believe, that any representation or warranty of the Company set forth in Section 1 above is untrue or inaccurate in any material respect.
Appears in 1 contract
Samples: Underwriting Agreement (Transeastern Properties Inc)
Representations and Warranties of the Selling Shareholders. Each of the Selling Shareholders, severally and not jointly, represents represents, warrants and warrants covenants to and agrees with, each Underwriter as of the Underwriters Option Closing Date (if any) that:
(a) Such Selling Shareholder, Shareholder at the First Option Closing Date, Date will have good and marketable title to the Shares set forth in Schedule II to be sold by such Selling Shareholder, free and clear of any liens, encumbrances, equities and claims (other than as imposed by the Securities Act or this Agreement), and full right, power and authority to effect the sale and delivery of such Shares; and upon the delivery of and payment for the Shares to be sold by such Selling Shareholder pursuant to this Agreement, good and marketable title thereto, free and clear of any liens, encumbrances, equities and claims, of any kind, will be transferred to the Underwriters.
(b) Such Selling Shareholder has duly executed and delivered the Custody Agreement and Power of Attorney (the "Custody Agreement") in the form previously delivered to the RepresentativesUnderwriters, appointing the persons named thereinJonaxxxx X. Xxxxxxx xxx Dennxx X. Xxxxxx, and xxd each of them them, as such Selling Shareholder's attorney-in-fact (the "Attorney-in-Fact") and the Company, as custodian (the "Custodian"). The Attorney-in-Fact is authorized to execute, deliver and perform this Agreement on behalf of such Selling Shareholder, to deliver the Shares to be sold by such Selling Shareholder hereunder, to accept payment therefor, therefor and otherwise to act on behalf of such Selling Shareholder in connection with this Agreement, including payment from the Offering proceeds of expenses incurred on behalf of such Selling Shareholder. Certificates, in suitable form for transfer by delivery or accompanied by duly executed instruments of transfer or assignment in blank, representing the Shares to be sold by such Selling Shareholder hereunder have been deposited with the Custodian pursuant to the Custody Agreement and Power of Attorney for the purpose of delivery pursuant to this Agreement. Such Selling Shareholder agrees that the shares of Common Stock represented by the certificates on deposit with the Custodian are subject to the interest of the Underwriters hereunder, that the arrangements made for such custody and the appointment of the Attorney-in-Fact are to that extent irrevocable, and that the obligations of such Selling Shareholder hereunder shall not be terminated except as provided in this Agreement and the Custody Agreement and Power of Attorney. If such Selling Shareholder should die or become incapacitated, or if any other event should occur, before the delivery of the Shares of such Selling Shareholder hereunder, the certificates for such Shares deposited with the Custodian shall be delivered by the Custodian in accordance with the terms and conditions of this Agreement as if such death, incapacity or other event had not occurred, regardless of whether the Custodian or the Attorney-in-Fact shall have received notice thereof.
(c) Such Selling Shareholder, acting through his duly authorized Attorney-in-Fact, has duly executed and delivered this Agreement and the Custody Agreement and Power of Attorney; this Agreement constitutes a legal, valid and binding obligation of such Selling Shareholder, all authorizations and consents necessary for the execution and delivery of this Agreement and the Custody Agreement and Power of Attorney on behalf of such Selling Shareholder and for the sale and delivery of the Shares to be sold by such Selling Shareholder hereunder have been given, except as may be required by the Securities Act or state securities laws; and such Selling Shareholder has the legal capacity and full right, power and authority to execute this Agreement and the Custody Agreement and Power of Attorney.
(d) The performance of this Agreement and the Custody Agreement and Power of Attorney and the consummation of the transactions contemplated hereby and thereby by such Selling Shareholder will not result in a breach or violation of, or conflict with, any of the terms or provisions of, or constitute a default by such Selling Shareholder under, any indenture, mortgage, deed of trust, trust (constructive or other), loan agreement, lease, franchise, license or other agreement or instrument to which such Selling Shareholder or any of his or its properties is bound, or any statute, judgment, decree, order, rule or regulation of any court or governmental agency or body applicable to such Selling Shareholder or any of his, her or its properties.
(e) Such Selling Shareholder has not distributed nor, other than as permitted by the Securities Act and the Rules and Regulations, will distribute any prospectus or other offering material in connection with the offer and sale of the Shares other than any Preliminary Prospectus filed with the Commission or the Final Prospectus or other material permitted by the Securities Act.
(f) Such Selling Shareholder has reviewed and is familiar with the Registration Statement and the Preliminary Prospectus. To the knowledge of such Selling Shareholder, the Preliminary Prospectus does not include an untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading.such
Appears in 1 contract
Representations and Warranties of the Selling Shareholders. Each of the Selling Shareholders, severally and not jointly, represents represents, warrants and warrants covenants to and agrees with, each Underwriter as of the Underwriters Option Closing Date (if any) that:
(a) Such Selling Shareholder, Shareholder at the First Option Closing Date, Date will have good and marketable valid title to the Shares set forth in Schedule II to be sold by such Selling Shareholder, free and clear of any liens, encumbrances, equities and claims (other than as imposed by the Securities Act or this Agreement), and full right, power and authority to effect the sale and delivery of such Shares; and upon the delivery of and payment for the Shares to be sold by such Selling Shareholder pursuant to this Agreement, good and marketable valid title thereto, free and clear of any liens, encumbrances, equities and claims, of any kind, will be transferred to the Underwriters.
(b) Such Selling Shareholder has duly executed and delivered the Custody Agreement and Power of Attorney (the "Custody Agreement") in the form previously delivered to the Representatives, appointing the persons named therein___________ and _______________, and each of them them, as such Selling Shareholder's attorney-in-fact (the "Attorney-in-Fact") and ________________________, as custodian (the "Custodian"). The Attorney-in-Fact is authorized to execute, deliver and perform this Agreement on behalf of such Selling Shareholder, to deliver the Shares to be sold by such Selling Shareholder hereunder, to accept payment therefor, therefor and otherwise to act on behalf of such Selling Shareholder in connection with this Agreement, including payment from the Offering proceeds of expenses incurred on behalf of such Selling Shareholder. Certificates, in suitable form for transfer by delivery or accompanied by duly executed instruments of transfer or assignment in blank, representing the Shares to be sold by such Selling Shareholder hereunder have been deposited with the Custodian pursuant to the Custody Agreement and Power of Attorney for the purpose of delivery pursuant to this Agreement. Such Selling Shareholder agrees that the shares of Common Stock represented by the certificates on deposit with the Custodian are subject to the interest interests of the Company, the Underwriters and the other Selling Shareholders hereunder, that the arrangements made for such custody and the appointment of the Attorney-in-Fact are to that extent irrevocable, and that the obligations of such Selling Shareholder hereunder shall not be terminated except as provided in this Agreement and the Custody Agreement and Power of AttorneyAgreement. If such Selling Shareholder should die die, become disabled or be declared incompetent, dissolve or become incapacitatedinsolvent, or if any other event should occur, occur before the delivery of the Shares of such Selling Shareholder hereunder, the certificates for such Shares deposited with the Custodian shall be delivered by the Custodian in accordance with the terms and conditions of this Agreement as if such death, incapacity disability, incompetency, dissolution, insolvency or other event had not occurred, regardless of whether or not the Custodian or the Attorney-in-Fact shall have received notice thereof.
(c) Such Selling Shareholder, acting through his its duly authorized Attorney-in-Fact, has duly executed and delivered this Agreement and the Custody Agreement and Power of AttorneyAgreement; this Agreement constitutes a legal, legal valid and binding obligation of such Selling Shareholder, ; all authorizations and consents necessary for the execution and delivery of this Agreement and the Custody Agreement and Power of Attorney on behalf of such Selling Shareholder and for the sale and delivery of the Shares to be sold by such Selling Shareholder hereunder have been given, except as may be required by the Securities Act or state securities lawslaws or the NASD; and such Selling Shareholder has the legal capacity and full right, power and authority to execute this Agreement and the Custody Agreement and Power of AttorneyAgreement.
(d) The performance of this Agreement and the Custody Agreement and Power of Attorney and the consummation of the transactions contemplated hereby and thereby by such each of the Selling Shareholder Shareholders will not result in a material breach or violation of, or material conflict with, any of the terms or provisions of, or constitute a material default by such Selling Shareholder under, any indenture, mortgage, deed of trust, trust (constructive or other), loan agreement, lease, franchise, license or other agreement or instrument to which such Selling Shareholder or any of his or its properties is bound, or any statute, or any judgment, decree, order, rule or regulation of or any court or governmental agency or body applicable to such Selling Shareholder or any of his, her or its properties.
(e) Such Selling Shareholder has not distributed nor, other than as permitted by the Securities Act and the Rules and Regulations, will not distribute any prospectus or other offering material in connection with the offer and sale of the Shares other than any Preliminary Prospectus preliminary prospectus prepared and filed by the Company with the Commission or the Final Prospectus or other material permitted by the Securities Act.
(f) Such To the knowledge of such Selling Shareholder, the representations and warranties of the Company contained in Section 3 of this Agreement are true and correct in all material respects; such Selling Shareholder has reviewed and is familiar with the Registration Statement as originally filed with the Commission and the Preliminary Prospectuspreliminary prospectus contained therein. To the knowledge of such Selling Shareholder, the Preliminary Prospectus preliminary prospectus does not include an untrue statement of a material fact 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; other than as disclosed to the Underwriters, such Selling Shareholder is not prompted to sell the Shares to be sold by such Selling Shareholder by any material, non-public information concerning the Company that is not set forth in the preliminary prospectus or the Prospectus.
(g) To the extent that any statements or omissions made in the Registration Statement, any preliminary prospectus, the Prospectus or any amendment or supplement thereto are made in reliance upon and in conformity with written information furnished to the Company by such Selling Shareholder expressly for use therein, such Registration Statement, preliminary prospectus and Prospectus and any amendments or supplements thereto did not and will not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein not misleading.
(h) No approval, consent, order, authorization, designation, declaration or filing by or with any regulatory body, administrative or other governmental body is necessary in connection with the execution and delivery of this Agreement by such Selling Shareholder, and the consummation by it of the transactions herein contemplated (other than as required by the Act, state securities laws and the NASD).
(i) Any certificates signed by or on behalf of such Selling Shareholder as such and delivered to the Representatives or to counsel for the Representatives shall be deemed a representation and warranty by such Selling Shareholder to each Underwriter as to the matters covered thereby.
(j) 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 such Selling Shareholder agrees to deliver to you prior to or at the Closing Date a properly completed and executed United States Treasury Department Form W-9 (or other applicable form or statement specified by Treasury Department regulations in lieu thereof).
(k) Such Selling Shareholder has not taken and will not take, directly or indirectly, any action intended to constitute or which has constituted, or which might reasonably be expected to cause or result in, stabilization or manipulation of the price of the Common Stock. To assure compliance with Regulation M under the Exchange Act, such Selling Shareholder will not make bids for or purchases of or induce bids for or purchases of, directly or indirectly, any shares of Common Stock or securities convertible into Common Stock of the Company until the distribution of all shares of Common Stock being sold in the public offering has been completed.
Appears in 1 contract
Representations and Warranties of the Selling Shareholders. (a) Each of the Selling Shareholders, severally and not jointly, represents and warrants to and agrees with, each Underwriter as of the Underwriters thatdate hereof, and as of the Firm Shares Closing Date, as follows:
(ai) Such Selling Shareholder, at Shareholder has caused certificates for the First Closing Date, will have good and marketable title to the number of Shares set forth in Schedule II to be sold by such Selling Shareholder hereunder to be delivered to American Stock Transfer & Trust Company (the "Custodian"), endorsed in blank or with blank stock powers duly executed, with a signature appropriately guaranteed, such certificates to be held in custody by the Custodian for delivery, pursuant to the provisions of this Agreement and an agreement dated ____________ among the Custodian and the Selling Shareholders substantially in the form attached hereto as Exhibit B (the "Custody Agreement").
(ii) This Agreement and the Custody Agreement have each been duly authorized, executed and delivered by or on behalf of such Selling Shareholder and, assuming due authorization, execution and delivery by the other parties thereto, constitutes the valid and legally binding agreement of such Selling Shareholder, enforceable against such Selling Shareholder in accordance with its terms.
(iii) The execution and delivery by such Selling Shareholder of this Agreement and the performance by such Selling Shareholder of its obligations under this Agreement, including the sale and delivery of the Shares to be sold by such Selling Shareholder and the consummation of the transactions contemplated herein and compliance by such Selling Shareholder with its obligations hereunder, do not and will not, whether with our without the giving of notice or the passage of time or both, (A) violate or contravene any provision of the charter or bylaws or other organizational instrument of such Selling Shareholder, if applicable, or any applicable law, statute, regulation, or filing or any agreement or other instrument binding upon such Selling Shareholder or any judgment, order or decree of any governmental body, agency or court having jurisdiction over such Selling Shareholder, (B) conflict with or constitute a breach of, or default under, or result in the creation or imposition of any tax, lien, charge or encumbrance upon the shares to be sold by such Selling Shareholder or any property or assets of such Selling Shareholder pursuant to the terms of any agreement or instrument to which such Selling Shareholder is a party or by which such Selling Shareholder may be bound or to which any of the property or assets of such Selling Shareholder is subject or (C) require any consent, approval, authorization or order of or registration or filing with any court or governmental agency or body having jurisdiction over it, except such as may be required under the Securities Act or by the Blue Sky laws of the various states in connection with the offer and sale of the Shares which have been or will be effected in accordance with this Agreement.
(iv) Such Selling Shareholder is, and on the Firm Shares Closing Date will be, the record owner of, or has a valid security entitlement (within the meaning of Section 8-105 of the New York Uniform Commercial Code) in respect of, the Shares to be sold by such Selling Shareholder free and clear of any lienslien, encumbrancesclaim, equities security interest or other encumbrance, including, without limitation, any restriction on transfer, except as otherwise described in the Registration Statement and claims Prospectus.
(other than as imposed by the Securities Act or this Agreement)v) Such Selling Shareholder has, and on the Firm Shares Closing Date will have, full legal right, power and authority authority, and any approval required by law, to effect sell, assign, transfer and deliver the sale and delivery of Shares to be sold by such Shares; and upon Selling Shareholder in the manner provided by this Agreement.
(vi) Upon delivery of and payment for the Shares to be sold by such Selling Shareholder pursuant to this Agreement, good assuming each Underwriter has no notice of any adverse claim (within the meaning of Section 8-105 of the New York Uniform Commercial Code) to such Shares, the several Underwriters will receive valid and marketable unencumbered title thereto, to such Shares free and clear of any lienslien, encumbrancesclaim, equities and claimsmortgage, of any kindpledge, will security interest or other encumbrance, and, under the New York Uniform Commercial Code, an action based on an adverse claim to such title to such Shares, whether framed in conversion, replevin, constructive trust, equitable lien or other theory, may not be transferred to asserted against the several Underwriters.
(bvii) Such All information relating to such Selling Shareholder has duly executed and delivered the Custody Agreement and Power of Attorney furnished in the form previously delivered to the Representatives, appointing the persons named therein, and each of them as such Selling Shareholder's attorney-in-fact (the "Attorney-in-Fact") and as custodian (the "Custodian"). The Attorney-in-Fact is authorized to execute, deliver and perform this Agreement on behalf of such Selling Shareholder, to deliver the Shares to be sold writing by such Selling Shareholder hereunder, to accept payment therefor, and otherwise to act on behalf of such Selling Shareholder expressly for use in connection with this Agreement, including payment from the Offering proceeds of expenses incurred on behalf of such Selling Shareholder. Certificates, in suitable form for transfer by delivery or accompanied by duly executed instruments of transfer or assignment in blank, representing the Shares to be sold by such Selling Shareholder hereunder have been deposited with the Custodian pursuant to the Custody Agreement and Power of Attorney for the purpose of delivery pursuant to this Agreement. Such Selling Shareholder agrees that the shares of Common Stock represented by the certificates on deposit with the Custodian are subject to the interest of the Underwriters hereunder, that the arrangements made for such custody and the appointment of the Attorney-in-Fact are to that extent irrevocable, and that the obligations of such Selling Shareholder hereunder shall not be terminated except as provided in this Agreement and the Custody Agreement and Power of Attorney. If such Selling Shareholder should die or become incapacitated, or if any other event should occur, before the delivery of the Shares of such Selling Shareholder hereunder, the certificates for such Shares deposited with the Custodian shall be delivered by the Custodian in accordance with the terms and conditions of this Agreement as if such death, incapacity or other event had not occurred, regardless of whether the Custodian or the Attorney-in-Fact shall have received notice thereof.
(c) Such Selling Shareholder, acting through his duly authorized Attorney-in-Fact, has duly executed and delivered this Agreement and the Custody Agreement and Power of Attorney; this Agreement constitutes a legal, valid and binding obligation of such Selling Shareholder, all authorizations and consents necessary for the execution and delivery of this Agreement and the Custody Agreement and Power of Attorney on behalf of such Selling Shareholder and for the sale and delivery of the Shares to be sold by such Selling Shareholder hereunder have been given, except as may be required by the Securities Act or state securities laws; and such Selling Shareholder has the legal capacity and full right, power and authority to execute this Agreement and the Custody Agreement and Power of Attorney.
(d) The performance of this Agreement and the Custody Agreement and Power of Attorney and the consummation of the transactions contemplated hereby and thereby by such Selling Shareholder will not result in a breach or violation of, or conflict with, any of the terms or provisions of, or constitute a default by such Selling Shareholder under, any indenture, mortgage, deed of trust, trust (constructive or other), loan agreement, lease, franchise, license or other agreement or instrument to which such Selling Shareholder or any of his or its properties is bound, or any statute, judgment, decree, order, rule or regulation of any court or governmental agency or body applicable to such Selling Shareholder or any of his, her or its properties.
(e) Such Selling Shareholder has not distributed nor, other than as permitted by the Securities Act and the Rules and Regulations, will distribute any prospectus or other offering material in connection with the offer and sale of the Shares other than any Preliminary Prospectus filed with the Commission or the Final Prospectus or other material permitted by the Securities Act.
(f) Such Selling Shareholder has reviewed and is familiar with the Registration Statement and the Preliminary Prospectus. To the knowledge of such Selling ShareholderProspectus is true, the Preliminary Prospectus correct, and complete, and does not include an contain any untrue statement of a material fact or omit to state a any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, such information not misleading.
(viii) Such Selling Shareholder has not taken and will not take, directly or indirectly, any action designed to or that might reasonably be expected to cause or result in stabilization or manipulation of the price of any security of the Company to facilitate the sale or resale of the Shares.
(ix) The representations and warranties of such Selling Shareholder in the Custody Agreement are true and correct.
(b) The Additional Selling Shareholder (as defined in section 4(k) below) also represents and warrants to each Underwriter as of the date hereof, and as of the Firm Shares Closing Date, as follows:
(i) Such Additional Selling Shareholder has granted an irrevocable power of attorney substantially in the form attached hereto as Exhibit C (the "Power of Attorney") to the persons named therein, on behalf of such Additional Selling Shareholder, to execute and deliver this Agreement and any other document necessary or desirable in connection with the transactions contemplated hereby and to deliver the Shares to be sold by such Additional Selling Shareholder pursuant hereto.
(ii) Such Power of Attorney has been duly authorized, executed and delivered by or on behalf of such Additional Selling Shareholder and, assuming due authorization, execution and delivery by the other parties thereto, constitutes the valid and legally binding agreement of such Additional Selling Shareholder, enforceable against such Additional Selling Shareholder in accordance with its terms. Any certificate signed by an officer of any Selling Shareholder and delivered to the Underwriters or counsel for the Underwriters in connection with the offering of the Shares shall be deemed a representation and warranty by such Selling Shareholder, as to matters covered thereby, to each Underwriter.
Appears in 1 contract
Representations and Warranties of the Selling Shareholders. Each of the Selling Shareholders, Shareholder severally and not jointly, represents and warrants to and agrees with, each of the Underwriters Underwriter that:
(a) Such Selling Shareholder, at Shareholder is the First Closing Date, will have good and marketable title to lawful owner of the Shares set forth in Schedule II to be sold by such Selling ShareholderShareholder pursuant to this Agreement and has, and on the Closing Date (and Option Closing Date, if applicable) will have, good and clear title to such Shares, free and clear of any all restrictions on transfer, liens, encumbrances, equities security interests and claims whatsoever.
(other than as imposed by the Securities Act or b) Upon delivery of and payment for such Shares pursuant to this Agreement), good and clear title to such Shares will pass to the Underwriters, free of all restrictions on transfer, liens, encumbrances, security interests and claims whatsoever.
(c) Such Selling Shareholder has, and on the Closing Date will have, full legal right, power and authority to effect enter into this Agreement and the sale Custody Agreement between the Selling Shareholders and delivery ___________________, as Custodian (the "Custody Agreement") and to sell, assign, transfer and deliver such Shares in the manner provided herein and therein, and this Agreement and the Custody Agreement have been duly authorized, executed and delivered by such Selling Shareholder and each of this Agreement and the Custody Agreement is a valid and binding agreement of such Shares; Selling Shareholder enforceable in accordance with its terms, except as rights to indemnity and upon contribution hereunder may be limited by applicable law.
(d) The power of attorney signed by such Selling Shareholder appointing _________________ and ________________, or either one of them, as his attorney-in-fact to the delivery extent set forth therein with regard to the transactions contemplated hereby and by the Registration Statement and the Custody Agreement has been duly authorized, executed and delivered by or on behalf of such Selling Shareholder and payment for is a valid and binding instrument of such Selling Shareholder enforceable in accordance with its terms, and, pursuant to such power of attorney, such Selling Shareholder has authorized _________________ and ________________, or either one of them, to execute and deliver on his behalf this Agreement and any other document necessary or desirable in connection with transactions contemplated hereby and to deliver the Shares to be sold by such Selling Shareholder pursuant to this Agreement, good and marketable title thereto, free and clear of any liens, encumbrances, equities and claims, of any kind, will be transferred to the Underwriters.
(b) Such Selling Shareholder has duly executed and delivered the Custody Agreement and Power of Attorney in the form previously delivered to the Representatives, appointing the persons named therein, and each of them as such Selling Shareholder's attorney-in-fact (the "Attorney-in-Fact") and as custodian (the "Custodian"). The Attorney-in-Fact is authorized to execute, deliver and perform this Agreement on behalf of such Selling Shareholder, to deliver the Shares to be sold by such Selling Shareholder hereunder, to accept payment therefor, and otherwise to act on behalf of such Selling Shareholder in connection with this Agreement, including payment from the Offering proceeds of expenses incurred on behalf of such Selling Shareholder. Certificates, in suitable form for transfer by delivery or accompanied by duly executed instruments of transfer or assignment in blank, representing the Shares to be sold by such Selling Shareholder hereunder have been deposited with the Custodian pursuant to the Custody Agreement and Power of Attorney for the purpose of delivery pursuant to this Agreement. Such Selling Shareholder agrees that the shares of Common Stock represented by the certificates on deposit with the Custodian are subject to the interest of the Underwriters hereunder, that the arrangements made for such custody and the appointment of the Attorney-in-Fact are to that extent irrevocable, and that the obligations of such Selling Shareholder hereunder shall not be terminated except as provided in this Agreement and the Custody Agreement and Power of Attorney. If such Selling Shareholder should die or become incapacitated, or if any other event should occur, before the delivery of the Shares of such Selling Shareholder hereunder, the certificates for such Shares deposited with the Custodian shall be delivered by the Custodian in accordance with the terms and conditions of this Agreement as if such death, incapacity or other event had not occurred, regardless of whether the Custodian or the Attorney-in-Fact shall have received notice thereof.
(c) Such Selling Shareholder, acting through his duly authorized Attorney-in-Fact, has duly executed and delivered this Agreement and the Custody Agreement and Power of Attorney; this Agreement constitutes a legal, valid and binding obligation of such Selling Shareholder, all authorizations and consents necessary for the execution and delivery of this Agreement and the Custody Agreement and Power of Attorney on behalf of such Selling Shareholder and for the sale and delivery of the Shares to be sold by such Selling Shareholder hereunder have been given, except as may be required by the Securities Act or state securities laws; and such Selling Shareholder has the legal capacity and full right, power and authority to execute this Agreement and the Custody Agreement and Power of Attorney.
(d) The performance of this Agreement and the Custody Agreement and Power of Attorney and the consummation of the transactions contemplated hereby and thereby by such Selling Shareholder will not result in a breach or violation of, or conflict with, any of the terms or provisions of, or constitute a default by such Selling Shareholder under, any indenture, mortgage, deed of trust, trust (constructive or other), loan agreement, lease, franchise, license or other agreement or instrument to which such Selling Shareholder or any of his or its properties is bound, or any statute, judgment, decree, order, rule or regulation of any court or governmental agency or body applicable to such Selling Shareholder or any of his, her or its properties.
(e) Such Selling Shareholder has not distributed nortaken, and will not take, directly or indirectly, any action designed to, or which might reasonably be expected to, cause or result in stabilization or manipulation of the price of any security of the Company to facilitate the sale or resale of the Shares pursuant to the distribution contemplated by this Agreement, and other than as permitted by the Securities Act Act, the Selling Shareholder has not distributed and the Rules and Regulations, will not distribute any prospectus or other offering material in connection with the offer offering and sale of the Shares other than any Preliminary Prospectus filed with the Commission or the Final Prospectus or other material permitted by the Securities ActShares.
(f) Such The execution, delivery and performance of this Agreement by such Selling Shareholder, compliance by such Selling Shareholder has reviewed and is familiar with all the Registration Statement provisions hereof and the Preliminary Prospectus. To consummation of the knowledge transactions contemplated hereby will not require any consent, approval, authorization or other order of any court, regulatory body, administrative agency or other governmental body (except as such may be required under the Act, state securities laws or Blue Sky laws) and will not conflict with or constitute a breach of any of the terms or provisions of, or a default under, organizational documents of such Selling Shareholder, if not an individual, or any agreement, indenture or other instrument to which such Selling Shareholder is a party or by which such Selling Shareholder or property of such Selling Shareholder is bound, or violate or conflict with any laws, administrative regulation or ruling or court decree applicable to such Selling Shareholder or property of such Selling Shareholder.
(g) Such parts of the Preliminary Prospectus does Registration Statement under the caption "Principal and Selling Shareholders" which specifically relate to such Selling Shareholder do not, and will not include an on the Closing Date (and any Option Closing Date, if applicable), 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, in the light of the circumstances under which they were made, not misleading.
(h) At any time during the period described in paragraph 5(e) hereof, if there is any change in the information referred to in paragraph 7(g) above, the Selling Shareholders will immediately notify you of such change.
Appears in 1 contract
Samples: Underwriting Agreement (Complete Business Solutions Inc)
Representations and Warranties of the Selling Shareholders. Each of the Selling Shareholders, Shareholder severally and not jointly, represents and warrants to to, and agrees with, each the Underwriter as of the Underwriters date hereof and as of the Closing Date that:
(a) Such Selling Shareholder, at the First Closing Date, will have good and marketable title to the Shares set forth in Schedule II to be sold by such Selling Shareholder, free and clear of any liens, encumbrances, equities and claims (other than as imposed by the Securities Act or this Agreement), and Shareholder has full right, power and authority to effect execute and deliver this Agreement, to perform its obligations hereunder and to consummate the sale transactions to be entered into by such Selling Shareholder or under this Agreement, the Registration Statement, the Pricing Prospectus and delivery the Prospectus. This Agreement and the transactions to be entered into by such Selling Shareholder or under this Agreement, the Registration Statement, the Pricing Disclosure Package and the Prospectus have been duly and validly authorized by such Selling Shareholder. This Agreement has been duly and validly executed and delivered by such Selling Shareholder and constitutes the legal, valid and binding obligation of such Shares; Selling Shareholder, enforceable in accordance with its terms, except as enforceability may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or similar laws affecting creditors’ rights generally and upon except as enforceability may be subject to general principles of equity (regardless of whether such enforceability is considered in a proceeding in equity or at law).
(b) Such Selling Shareholder agrees that the Shares to be sold by such Selling Shareholder are subject to the interests of the Underwriter, and that the obligations of such Selling Shareholder hereunder shall not be terminated, except as provided in this Agreement by any act of such Selling Shareholder, by operation of law or by the occurrence of any other event. If such Selling Shareholder should die or become incapacitated, or if any other event should occur affecting the legal status or capacity of such Selling Shareholder before the delivery of the Shares, to be sold by a Selling Shareholder hereunder, the documents evidencing the Shares, to be sold by such Selling Shareholder shall be delivered by an agent or representative of the Selling Shareholder in accordance with the terms and payment conditions of this Agreement as if such event had not occurred, regardless of whether or not such agent or representative shall have received notice thereof.
(c) Certificates for all of the Shares to be sold by such Selling Shareholder pursuant to this Agreement, good and marketable title thereto, free and clear of any liens, encumbrances, equities and claims, of any kind, will be transferred to the Underwriters.
(b) Such Selling Shareholder has duly executed and delivered the Custody Agreement and Power of Attorney in the form previously delivered to the Representatives, appointing the persons named therein, and each of them as such Selling Shareholder's attorney-in-fact (the "Attorney-in-Fact") and as custodian (the "Custodian"). The Attorney-in-Fact is authorized to execute, deliver and perform this Agreement on behalf of such Selling Shareholder, to deliver the Shares to be sold by such Selling Shareholder hereunder, to accept payment therefor, and otherwise to act on behalf of such Selling Shareholder in connection with this Agreement, including payment from the Offering proceeds of expenses incurred on behalf of such Selling Shareholder. Certificates, in suitable form for transfer by delivery or accompanied by duly executed instruments of transfer or assignment in blank, representing the Shares to with signatures guaranteed shall be sold by such Selling Shareholder hereunder have been deposited with the Custodian pursuant delivered to the Custody Agreement and Power of Attorney for the purpose of delivery Underwriter pursuant to this Agreement. Such Selling Shareholder agrees that is the shares of Common Stock represented by the certificates on deposit with the Custodian are subject to the interest of the Underwriters hereunder, that the arrangements made for such custody record and the appointment of the Attorney-in-Fact are to that extent irrevocable, and that the obligations of such Selling Shareholder hereunder shall not be terminated except as provided in this Agreement and the Custody Agreement and Power of Attorney. If such Selling Shareholder should die or become incapacitated, or if any other event should occur, before the delivery of the Shares of such Selling Shareholder hereunder, the certificates for such Shares deposited with the Custodian shall be delivered by the Custodian in accordance with the terms and conditions of this Agreement as if such death, incapacity or other event had not occurred, regardless of whether the Custodian or the Attorney-in-Fact shall have received notice thereof.
(c) Such Selling Shareholder, acting through his duly authorized Attorney-in-Fact, has duly executed and delivered this Agreement and the Custody Agreement and Power of Attorney; this Agreement constitutes a legal, valid and binding obligation of such Selling Shareholder, all authorizations and consents necessary for the execution and delivery of this Agreement and the Custody Agreement and Power of Attorney on behalf of such Selling Shareholder and for the sale and delivery beneficial owner of the Shares to be sold by such the Selling Shareholder hereunder hereunder, free and clear of all liens, encumbrances, equities or claims and has duly indorsed such securities in blank, and assuming that the Underwriter acquires its interest in the securities it has purchased without notice of any adverse claim (within the meaning of Section 8-105 of the Uniform Commercial Code of the State of New York (the “UCC”), the Underwriter that has purchased such Shares delivered to the Depository Trust Company (“DTC”) by making payment therefor, as provided herein, and that has had such Shares credited to its securities account or accounts maintained with DTC will have been givenacquired a security entitlement (within the meaning of Section 8-102(a)(17) of the UCC) to such Shares purchased by the Underwriter, except as and no action based on an adverse claim, may be required by asserted against the Securities Act or state securities laws; and Underwriter with respect to such Selling Shareholder has the legal capacity and full right, power and authority to execute this Agreement and the Custody Agreement and Power of AttorneyShares.
(d) No Consent of, from or with any judicial, regulatory or other legal or governmental agency or body or any third party, foreign or domestic, is required for the execution, delivery and performance by the Selling Shareholder of its obligations under this Agreement or consummation by the Selling Shareholders of the transactions contemplated herein, except such as have been obtained under the Securities Act and such as may be required under the state or foreign securities laws, or the blue sky laws of any jurisdiction.
(e) The execution, delivery and performance of this Agreement and the Custody Agreement and Power of Attorney and the consummation of the transactions contemplated hereby and thereby by such Selling Shareholder and performance of its obligations under any of the other transactions contemplated herein by the Selling Shareholder or the fulfillment of the terms hereof by the Selling Shareholder will not (A) conflict with, result in a breach or violation of, or conflict with, any of the terms or provisions of, or constitute a default by such (or an event that with notice or lapse of time, or both, would constitute a default) under, or result in the creation or imposition of any lien, charge or encumbrance upon any property or assets of the Selling Shareholder underpursuant to any law, statute, rule or regulation or the terms of any indenture, mortgage, deed of trust, trust (constructive or other), loan agreement, lease, franchise, license indenture or other agreement or instrument to which such Selling Shareholder is party or any of his or its properties is bound, or to which any statuteof the property or assets of such Selling Shareholder is subject, or (B) if such Selling Shareholder is not a natural person, result in any violation of the provisions of any charter or bylaws or certificate of formation, trust agreement, partnership agreement, articles of partnership or other organizational documents, as applicable, of the Selling Shareholder, or (C) result in any violation or breach of any judgment, decreeorder, orderdecree statute, rule or regulation of any court or governmental agency or body applicable to such Selling Shareholder of any court or any public, governmental or regulatory agency or body, administrative agency or arbitrator having jurisdiction over such Selling Shareholder, except in the case of hisclauses (A) and (C) above, her for any such breach, violation or its properties.
(e) Such breach that would not have an adverse effect on the ability of such Selling Shareholder has not distributed nor, other than as permitted by the Securities Act and the Rules and Regulations, will distribute any prospectus or other offering material in connection with the offer and sale of the Shares other than any Preliminary Prospectus filed with the Commission or the Final Prospectus or other material permitted by the Securities Actto perform its obligations hereunder.
(f) Such Selling Shareholder has reviewed and is familiar with 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, the Pricing Prospectus and the Preliminary Prospectus (and which have been complied with).
(g) Such Selling Shareholder does not have, or has waived prior to the date hereof, any preemptive right, co-sale right or right of first refusal or other similar right to purchase any of the Shares that are to be sold by any other Selling Shareholder to the Underwriter pursuant to this Agreement.
(h) Except as disclosed in the Registration Statement, the Pricing Prospectus and the Prospectus. To , there are no contracts, agreements or understandings between such Selling Shareholder and any person that would give rise to a valid claim against the Company or the Underwriter for a brokerage commission, finder’s fee or other like payment in connection with this offering.
(i) Such Selling Shareholder has no knowledge of such Selling Shareholder, the Preliminary Prospectus does not include an untrue statement any misstatement of a material fact or omit failure to state a material fact necessary in order to make the statements thereinin the Pricing Disclosure Package and the Prospectus, in the light of the circumstances under which they were made, not misleading, provided, however, that such statements shall be limited to those included under the heading “Selling Shareholders” which relates to such Selling Shareholder.
(j) Such Selling Shareholder has not taken and will not take, directly or indirectly, any action designed to, or that could be reasonably expected to, cause or result in stabilization or manipulation of the price of the Common Stock to facilitate the sale or resale of the Shares.
(k) Such Selling Shareholder has not distributed and will not distribute, prior to the completion of the Underwriter’s distribution of the Shares, any “written communication” (as defined in Rule 405 under the Securities Act) that constitutes an offer to sell or solicitation of an offer to buy the Shares other than (i) any document not constituting a prospectus pursuant to Section 2(a)(10)(a) of the Securities Act or Rule 134 under the Securities Act, or (ii) the Pricing Prospectus or the Prospectus. Any certificate signed by or on behalf of a Selling Shareholder and delivered to the Underwriter or to counsel for the Underwriter shall be deemed to be a representation and warranty by such Selling Shareholder to the Underwriter as to the matters covered thereby.
Appears in 1 contract
Representations and Warranties of the Selling Shareholders. Each of the Selling ShareholdersShareholder, severally and not jointly, represents and warrants to and agrees with, with each of the Underwriters that:
(a) Such Selling Shareholder, at the First Closing Date, will have Shareholder has good and marketable valid title to the Shares set forth in Schedule II to be sold by such Selling Shareholder, free and clear of any liens, encumbrances, equities and claims (other than as imposed by the Securities Act or this Agreement), and full right, power and authority to effect the sale and delivery of such Shares; and upon the delivery of and payment for the Firm Shares to be sold by such Selling Shareholder free and clear of all liens, security interests, charges, mortgages, pledges, restrictions on transfer, any other form of encumbrances, equities or claims and all validly-waived preemptive rights; and, upon delivery of the Firm Shares and payment therefor pursuant to this Agreementhereto, good and marketable valid title theretoto such Firm Shares, free and clear of any all liens, security interests, charges, mortgages, pledges, restrictions on transfer, any other form of encumbrances, equities or claims and claimsall validly-waived preemptive rights, of any kind, will be transferred shall pass to the Underwriters.
(b) Such Selling Shareholder has duly executed No governmental authorizations are required (i) for the execution and delivered delivery of, or the Custody Agreement performance of the obligations under, this Agreement, the acceptance form to participate in the offering of the Shares (the “Acceptance Form”) and the power of attorney (the “Power of Attorney in the form previously delivered to the Representatives, Attorney”) appointing the persons named therein, and each of them Grand Cathay Securities Corp. as such Selling Shareholder's attorney’s attorneys-in-fact (the "Attorney-in-Fact") with authority, among other things, to execute and as custodian (the "Custodian"). The Attorney-in-Fact is authorized to execute, deliver and perform this Agreement on behalf of such Selling Shareholder, to deliver the Shares to be sold by such Selling Shareholder hereunder, to accept payment therefor, and otherwise to act on behalf of such Selling Shareholder in connection with the transactions contemplated by this Agreement, including payment from the Offering proceeds of expenses incurred on behalf of by such Selling Shareholder. Certificates, in suitable form Shareholder and (ii) for transfer by the sale and delivery or accompanied by duly executed instruments of transfer or assignment in blank, representing the Firm Shares to be sold by such Selling Shareholder hereunder have been deposited with the Custodian pursuant to the Custody Agreement and Power of Attorney for the purpose of delivery pursuant to under this Agreement. Such Selling Shareholder agrees that the shares of Common Stock represented by the certificates on deposit with the Custodian are subject to the interest of the Underwriters hereunder, that the arrangements made for such custody and the appointment of the Attorney-in-Fact are to that extent irrevocable, and that the obligations of such Selling Shareholder hereunder shall not be terminated except as provided in this Agreement and the Custody Agreement and Power of Attorney. If such Selling Shareholder should die or become incapacitated, or if any other event should occur, before the delivery of the Shares of such Selling Shareholder hereunder, the certificates for such Shares deposited with the Custodian shall be delivered by the Custodian in accordance with the terms and conditions of this Agreement as if such death, incapacity or other event had not occurred, regardless of whether the Custodian or the Attorney-in-Fact shall have received notice thereof.
(c) Such Selling ShareholderShareholder has full right, acting through his duly authorized Attorney-in-Factpower and authority to enter into and execute this Agreement, has duly executed and delivered this Agreement the Acceptance Form and the Custody Agreement and Power of Attorney; this Agreement constitutes a legal, valid and binding obligation of such Selling Shareholderto sell, all authorizations assign, transfer and consents necessary for deliver the execution and delivery of this Agreement and the Custody Agreement and Power of Attorney on behalf of such Selling Shareholder and for the sale and delivery of the Firm Shares to be sold by such Selling Shareholder hereunder have under this Agreement, and each of this Agreement, the Acceptance Form and the Power of Attorney has been givenduly authorized, except as may be required executed and delivered by the Securities Act or state securities laws; and such Selling Shareholder has the legal capacity and full right, power constitutes a valid and authority to execute this Agreement and the Custody Agreement and Power legally binding obligation of Attorneysuch Selling Shareholder.
(d) The Firm Shares to be sold by such Selling Shareholder may be freely deposited by such Selling Shareholder with the Depositary or with Deutsche Bank AG Hong Kong (the “Custodian”) as agent for the Depositary in accordance with the Deposit Agreement against the issuance of ADRs evidencing American Depositary Shares representing such Firm Shares so deposited by such Selling Shareholder.
(e) The Firm Shares to be sold by such Selling Shareholder will be freely transferable by such Selling Shareholder; and there are no restrictions on subsequent transfers of such Firm Shares or the American Depositary Shares represented by such Firm Shares.
(f) The execution, delivery and performance of this Agreement Agreement, the Acceptance Form and the Custody Agreement and Power of Attorney Attorney, the deposit of the Firm Shares with the Depositary, the sale and delivery of the Firm Shares to be sold by such Selling Shareholder hereunder, and the consummation of the transactions contemplated hereby and thereby herein by such Selling Shareholder will not result in a breach or violation of, or conflict with, of any of the terms or and provisions of, or constitute a default by under, any statute, any rule, regulation or order of any governmental agency or body or any court, domestic or foreign, having jurisdiction over such Selling Shareholder underor any of its properties, or any indenture, mortgage, deed of trust, trust (constructive or other), loan agreement, lease, franchise, license or other agreement or instrument to which such Selling Shareholder is a party or by which the such Selling Shareholder is bound or to which any of his or its the properties of such Selling Shareholder is boundsubject, or if the Selling Shareholder is a corporate entity, the charter or by-laws of such Selling Shareholder.
(g) Neither the Selling Shareholder nor any statuteof its affiliates, judgmentnor any person acting on its or their behalf has taken or will take, decreedirectly or indirectly, order, rule any action which is designed to or regulation which has constituted or which might reasonably be expected to cause or result in stabilization or manipulation of the price of any court security of the Company to facilitate the sale or governmental agency resale of the Shares or body applicable the American Depositary Shares.
(h) There are no contracts, agreements or understandings between such Selling Shareholder and any person that would give rise to a valid claim against such Selling Shareholder or any of hisunderwriter for a brokerage commission, her finder’s fee or its propertiesother like payment in connection with the transactions contemplated herein.
(ei) No transaction, stamp, capital or other issuance, registration, transaction, transfer or withholding taxes or duties are payable by or on behalf of the Underwriters in connection with (i) the sale and delivery of the Firm Shares to be sold by such Selling Shareholder, the issuance of the American Depositary Shares representing such Firm Shares by the Depositary, and the delivery of such American Depositary Shares to or for the account of the Underwriters, (ii) the initial sale and delivery by the Underwriters of such American Depositary Shares to purchasers thereof, (iii) the holding or transfer of such American Depositary Shares outside the Cayman Islands, (iv) the deposit of the Firm Shares with the Depositary and the Custodian and the issuance and delivery of the ADRs evidencing such American Depositary Shares, or (v) the execution and delivery of this Agreement or the Deposit Agreement.
(j) Such Selling Shareholder has is not distributed nora U.S. person (as such term is defined in Regulation S of the Securities Act). Such Selling Shareholder acquired the Firm Shares in a transaction outside of the United States.
(k) Such Selling Shareholder is not a National Association of Securities Dealers, other than Inc. (the “NASD”) broker-dealer or an affiliate of an NASD broker-dealer.
(l) Any information provided by such Selling Shareholder for inclusion in the Registration Statement, the Time of Sale Prospectus and the Prospectus filed with the Commission, including but not limited to the information pertaining to such Selling Shareholder under the caption “Principal and Selling Shareholders” in the Time of Sale Prospectus, is true and accurate.
(m) In the case of each Selling Shareholder as permitted by listed in Schedule V hereto (the “Management Selling Shareholders”), the Registration Statement, the ADR Registration Statement and the Time of Sale Prospectus did, and the Prospectus and any further amendments or supplements to the Registration Statement and the Prospectus, when they become effective or are filed with the Commission, as the case may be, will conform in all material respects to the requirements of the Securities Act and the Rules rules and Regulations, will distribute any prospectus or other offering material in connection with the offer and sale regulations of the Shares other than any Preliminary Prospectus filed with Commission thereunder and will not, to the Commission or the Final Prospectus or other material permitted by the Securities Act.
(f) Such Selling Shareholder has reviewed and is familiar with the Registration Statement and the Preliminary Prospectus. To the best knowledge of such Management Selling ShareholderShareholders after due inquiry, the Preliminary Prospectus does not include an 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, therein not misleading; except that the representations and warranties set forth in this paragraph do not apply to statements or omissions in the light Registration Statement, the Time of Sale Prospectus or the Prospectus based upon information relating to any Underwriter furnished to the Company in writing by such Underwriter through the Representative expressly for use therein.
(n) [Such Selling Shareholder has obtained the approval of the circumstances under which they were made, not misleadingInvestment Commission for the transactions contemplated by the Share Exchange.]
Appears in 1 contract
Representations and Warranties of the Selling Shareholders. Each of the Selling Shareholders, Shareholders severally and not jointly, jointly represents and warrants to and agrees with, with each of the Underwriters that:
(a) Such This Agreement has been duly authorized, executed and delivered by or on behalf of such Selling Shareholder.
(b) The execution and delivery by such Selling Shareholder of, and the performance by such Selling Shareholder of its obligations under, this Agreement and its Power of Attorney and Custody Agreement will not contravene any provision of applicable law, or the certificate of incorporation or by-laws of such Selling Shareholder (if such Selling Shareholder is a corporation), or the limited partnership agreement (if such Selling Shareholder is a limited partnership) or any agreement or other instrument binding upon such Selling Shareholder or any judgment, order or decree of any governmental body, agency or court having jurisdiction over such Selling Shareholder, at and no consent, approval, authorization or order of, or qualification with, any governmental body or agency is required for the First performance by such Selling Shareholder of its obligations under this Agreement or the Power of Attorney and Custody Agreement of such Selling Shareholder, except such as may be required by the securities or Blue Sky laws of the various states in connection with the offer and sale of the Shares.
(c) Such Selling Shareholder has, and on the Closing DateDate (as defined below), in the case of a Firm Selling Shareholder, or the Option Closing Date (as defined below), in the case of an Option Selling Shareholder, will have good and marketable have, valid title to the Shares set forth in Schedule II to be sold by such Selling Shareholder and the legal right and power, and all required authorizations and approvals to enter into this Agreement and its Power of Attorney and Custody Agreement and to sell, transfer and deliver the Shares to be sold by such Selling Shareholder, free .
(d) The Power of Attorney and clear of any liens, encumbrances, equities and claims (other than as imposed by the Securities Act or this Agreement), and full right, power and authority to effect the sale and delivery Custody Agreement of such Shares; Selling Shareholder has been duly authorized, executed and upon delivered by such Selling Shareholder and is a valid and binding agreement of such Selling Shareholder, enforceable in accordance with its terms, except as (i) the delivery enforceability thereof may be limited by bankruptcy, insolvency or similar laws affecting creditors' rights generally and (ii) the availability of and payment for equitable remedies may be limited by equitable principles of general applicability.
(e) Delivery of the Shares to be sold by such Selling Shareholder pursuant to this Agreement, good and marketable Agreement will pass valid title thereto, to such Shares free and clear of any security interests, claims, liens, encumbrances, equities and claims, of any kind, will be transferred to the Underwriters.
(b) Such Selling Shareholder has duly executed and delivered the Custody Agreement and Power of Attorney in the form previously delivered to the Representatives, appointing the persons named therein, and each of them as such Selling Shareholder's attorney-in-fact (the "Attorney-in-Fact") and as custodian (the "Custodian"). The Attorney-in-Fact is authorized to execute, deliver and perform this Agreement on behalf of such Selling Shareholder, to deliver the Shares to be sold by such Selling Shareholder hereunder, to accept payment therefor, and otherwise to act on behalf of such Selling Shareholder in connection with this Agreement, including payment from the Offering proceeds of expenses incurred on behalf of such Selling Shareholder. Certificates, in suitable form for transfer by delivery or accompanied by duly executed instruments of transfer or assignment in blank, representing the Shares to be sold by such Selling Shareholder hereunder have been deposited with the Custodian pursuant to the Custody Agreement and Power of Attorney for the purpose of delivery pursuant to this Agreement. Such Selling Shareholder agrees that the shares of Common Stock represented by the certificates on deposit with the Custodian are subject to the interest of the Underwriters hereunder, that the arrangements made for such custody and the appointment of the Attorney-in-Fact are to that extent irrevocable, and that the obligations of such Selling Shareholder hereunder shall not be terminated except as provided in this Agreement and the Custody Agreement and Power of Attorney. If such Selling Shareholder should die or become incapacitated, or if any other event should occur, before the delivery of the Shares of such Selling Shareholder hereunder, the certificates for such Shares deposited with the Custodian shall be delivered by the Custodian in accordance with the terms and conditions of this Agreement as if such death, incapacity or other event had not occurred, regardless of whether the Custodian or the Attorney-in-Fact shall have received notice thereof.
(c) Such Selling Shareholder, acting through his duly authorized Attorney-in-Fact, has duly executed and delivered this Agreement and the Custody Agreement and Power of Attorney; this Agreement constitutes a legal, valid and binding obligation of such Selling Shareholder, all authorizations and consents necessary for the execution and delivery of this Agreement and the Custody Agreement and Power of Attorney on behalf of such Selling Shareholder and for the sale and delivery of the Shares to be sold by such Selling Shareholder hereunder have been given, except as may be required by the Securities Act or state securities laws; and such Selling Shareholder has the legal capacity and full right, power and authority to execute this Agreement and the Custody Agreement and Power of Attorney.
(d) The performance of this Agreement and the Custody Agreement and Power of Attorney and the consummation of the transactions contemplated hereby and thereby by such Selling Shareholder will not result in a breach or violation of, or conflict with, any of the terms or provisions of, or constitute a default by such Selling Shareholder under, any indenture, mortgage, deed of trust, trust (constructive or other), loan agreement, lease, franchise, license or other agreement or instrument to which such Selling Shareholder or any of his or its properties is bound, or any statute, judgment, decree, order, rule or regulation of any court or governmental agency or body applicable to such Selling Shareholder or any of his, her or its properties.
(e) Such Selling Shareholder has not distributed nor, other than as permitted by the Securities Act and the Rules and Regulations, will distribute any prospectus or other offering material in connection with the offer and sale of the Shares other than any Preliminary Prospectus filed with the Commission or the Final Prospectus or other material permitted by the Securities Actencumbrances.
(f) Such The information which relates specifically to such Selling Shareholder has reviewed Shareholder, as set forth under the caption "Principal and is familiar with Selling Stockholders" (including the notes thereto), in the Registration Statement and Prospectus is, and on the Preliminary Prospectus. To Closing Date (as defined below), in the knowledge case of such a Firm Selling Shareholder, or the Preliminary Prospectus Option Closing Date (as defined below), in the case of an Option Selling Shareholder, will be, true, correct and complete, and does not include not, and on the Closing Date, in the case of a Firm Selling Shareholder, or the Option Closing Date, in the case of an Option Selling Shareholder, will not, contain any untrue statement of a material fact or omit to state a any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, such information not misleading.
Appears in 1 contract
Representations and Warranties of the Selling Shareholders. Each of the Selling ShareholdersShareholder, severally and not jointly, represents and warrants to and agrees with, with each of the Underwriters and the Company that:
(a) Such such Selling ShareholderShareholder now has, and at the First Closing Datetime of purchase will have, will have good and marketable valid title to the Shares set forth in Schedule II Selling Shareholder ADSs to be sold by such Selling Shareholder at such time of purchase, free and clear of any pledge, lien, security interest, encumbrance, claim or equitable interest other than pursuant to this Agreement; and upon delivery of such Selling Shareholder ADSs hereunder and payment of the purchase price as herein contemplated, each of the Underwriters will obtain valid title to the Selling Shareholder ADSs purchased by it from such Selling Shareholder, free and clear of any lienspledge, encumbranceslien, equities and security interest pertaining to such Selling Shareholder or such Selling Shareholder's property, encumbrance, claim or equitable interest, including any liability for estate or inheritance taxes, or any liability to or claims of any creditor, devisee, legatee or beneficiary of such Selling Shareholder;
(other than as imposed by the Securities Act or this Agreementb) such Selling Shareholder has duly authorized (if applicable), executed and full rightdelivered, power in the form heretofore furnished to the Underwriters, an irrevocable Power of Attorney (the "Power of Attorney") appointing [_______] and authority to effect [_______] as attorneys-in-fact (collectively, the sale "Attorneys" and delivery individually, an "Attorney") and a Letter of Transmittal and the Custody Agreement between such Selling Shareholder and the Company, as the Custodian; each of the Power of Attorney and the Custody Agreement constitutes a valid and binding agreement on the part of such SharesSelling Shareholder, enforceable in accordance with its terms, except as the enforcement thereof may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or other similar laws relating to or affecting creditors' rights generally or by general equitable principles; the performance of the Power of Attorney and upon the delivery Custody Agreement and the consummation of the transactions contemplated thereunder will not result in a breach or violation of any of the terms and payment for the Shares provisions of or constitute a default under any bond, debenture, note or other evidence of indebtedness, or under any lease, contract, indenture, mortgage, deed of trust, loan agreement, joint venture or other agreement or instrument to which such Selling Shareholder is a party or by which such Selling Shareholder, or any Selling Shareholder ADSs to be sold by such Selling Shareholder pursuant hereunder, may be bound or, to this Agreementthe best of such Selling Shareholders' knowledge, good and marketable title thereto, free and clear result in any violation of any lienslaw, encumbrancesorder, equities and claimsrule, regulation, writ, injunction, judgment or decree of any kindcourt, will be transferred to the Underwriters.
(b) Such government or governmental agency or body, domestic or foreign, having jurisdiction over such Selling Shareholder has duly executed and delivered or over the Custody Agreement and Power properties of Attorney in the form previously delivered to the Representatives, appointing the persons named therein, such Selling Shareholder; and each of them as such Selling Shareholder's attorney-in-fact (the "Attorney-in-Fact") and as custodian (the "Custodian"). The Attorney-in-Fact Attorneys, acting alone, is authorized to execute, execute and deliver and perform this Agreement and the certificate referred to in Section 7(n) hereof on behalf of such Selling Shareholder, to deliver determine the Shares purchase price to be sold paid by the several Underwriters to such Selling Shareholder hereunderas provided in Section 2 hereof, to authorize the delivery of the Selling Shareholder ADSs under this Agreement and to duly endorse (in blank or otherwise) the certificate or certificates representing such Selling Shareholder ADSs or a stock power or powers with respect thereto, to accept payment therefor, and otherwise to act on behalf of such Selling Shareholder in connection with this Agreement;
(c) all consents, including payment from approvals, authorizations and orders required for the Offering proceeds execution and delivery by such Selling Shareholder of expenses incurred the Power of Attorney and the Custody Agreement, the execution and delivery by or on behalf of such Selling Shareholder of this Agreement and the sale and delivery of the Selling Shareholder Shares under this Agreement (other than, at the time of the execution hereof (if the Registration Statement and the F-6 Registration Statement have not yet been declared effective by the Commission), the issuance of the order of the Commission declaring the Registration Statement and the F-6 Registration Statement effective and such consents, approvals, authorizations or orders as may be necessary under state or other securities or Blue Sky laws have been obtained and are in full force and effect; and such Selling Shareholder has full legal right, power and authority to enter into and perform its obligations under this Agreement and such Power of Attorney and Custody Agreement, and to sell, assign, transfer and deliver the Selling Shareholder ADSs to be sold by such Selling Shareholder under this Agreement;
(d) such Selling Shareholder will not, during the Lock-up Period (as defined in Section 5(n) and as extended pursuant to Section 5(n)), effect the Disposition (as defined in Section 5(n)) of any Securities now owned or hereafter acquired directly by such Selling Shareholder or with respect to which such Selling Shareholder has or hereafter acquires the power of disposition, otherwise than (i) as a bona fide gift or gifts, provided the donee or donees thereof agree in writing to be bound by this restriction, (ii) as a distribution to partners or shareholder of such Selling Shareholder. Certificates, provided that the distributees thereof agree in suitable writing to be bound by the terms of this restriction, or (iii) with the prior written consent of UBS; the foregoing restriction is expressly agreed to preclude the shareholder of the Securities from engaging in any hedging or other transaction which is designed to or reasonably expected to lead to or result in a Disposition of Securities during the Lock-up Period, even if such Securities would be disposed of by someone other than the Selling Shareholder; such prohibited hedging or other transactions include, without limitation, any short sale (whether or not against the box) or any purchase, sale or grant of any right (including, without limitation, any put or call option) with respect to any Securities or with respect to any security (other than a broad-based market basket or index) that includes, relates to or derives any significant part of its value from Securities; such Selling Shareholder also agrees and consents to the entry of stop transfer instructions with the Company's transfer agent against the transfer of the securities held by such Selling Shareholder except in compliance with this restriction;
(e) certificates in negotiable form for transfer by delivery or accompanied by duly executed instruments of transfer or assignment in blank, representing the all Ordinary Shares to be sold by such Selling Shareholder hereunder under this Agreement, together with a stock power or powers duly en- dorsed in blank by such Selling Shareholder, have been deposited placed in custody with the Custodian pursuant to the Custody Agreement and Power of Attorney for the purpose of effecting delivery pursuant to this Agreement. Such Selling Shareholder agrees that the shares of Common Stock represented by the certificates on deposit with the Custodian are subject to the interest of the Underwriters hereunder, that the arrangements made for such custody and the appointment of the Attorney-in-Fact are to that extent irrevocable, and that the obligations of ;
(f) if such Selling Shareholder hereunder shall is not be terminated except as provided in a natural person, this Agreement and the Custody Agreement and Power of Attorney. If has been duly authorized by such Selling Shareholder should die or become incapacitated, or if any other event should occur, before the delivery of the Shares of such Selling Shareholder hereunder, the certificates for such Shares deposited with the Custodian shall be delivered by the Custodian in accordance with the terms and conditions of this Agreement as if such death, incapacity or other event had not occurred, regardless of whether the Custodian or the Attorney-in-Fact shall have received notice thereof.
(c) Such Selling Shareholder, acting through his duly authorized Attorney-in-Fact, has been duly executed and delivered this Agreement and the Custody Agreement and Power of Attorney; this Agreement constitutes a legal, valid and binding obligation of such Selling Shareholder, all authorizations and consents necessary for the execution and delivery of this Agreement and the Custody Agreement and Power of Attorney by or on behalf of such Selling Shareholder and for the sale is a valid and delivery binding agreement of the Shares to be sold by such Selling Shareholder hereunder have been givenShareholder, enforceable in accordance with its terms, except as rights to indemnification hereunder may be required limited by applicable law and except as the Securities Act enforcement hereof may be limited by bankruptcy, insolvency, reorganization, moratorium or state securities lawsother similar laws relating to or affecting creditors' rights generally or by general equitable principles; and such Selling Shareholder has the legal capacity and full right, power and authority to execute this Agreement and the Custody Agreement and Power of Attorney.
(d) The performance of this Agreement and the Custody Agreement and Power of Attorney and the consummation of the transactions herein contemplated hereby and thereby by such Selling Shareholder will not result in a breach or violation of, or conflict with, of any of the terms or and provisions of, of or constitute a default by such Selling Shareholder underunder any bond, debenture, note or other evidence of indebtedness, or under any lease, contract, indenture, mortgage, deed of trust, trust (constructive or other), loan agreement, lease, franchise, license joint venture or other agreement or instrument to which such Selling Shareholder is a party or any of his or its properties is boundby which such Selling Shareholder, or any statuteSelling Shareholder ADSs to be sold by such Selling Shareholder hereunder, judgment, decreemay be bound or result in any violation of any law, order, rule rule, regulation, writ, injunction, judgment or regulation decree of any court court, government or governmental agency or body applicable to body, domestic or foreign, having jurisdiction over such Selling Shareholder or any over the properties of his, her or its properties.such Selling Shareholder;
(eg) Such such Selling Shareholder has not taken and will not take, directly or indirectly, any action designed to or that might reasonably be expected to cause or result in stabilization or manipulation of the price of the Offered ADSs to facilitate the sale or resale of the Offered ADSs;
(h) such Selling Shareholder has not distributed nor, other than as permitted by the Securities Act and the Rules and Regulations, will not distribute any prospectus or other offering material in connection with the offer offering and sale of the Shares other than any Preliminary Prospectus filed with the Commission or the Final Prospectus or other material permitted by the Securities Act.Offered ADSs;
(fi) Such all information furnished by or on behalf of such Selling Shareholder has reviewed relating to such Selling Shareholder and the Selling Shareholder ADSs that is familiar with contained in the representations and warranties of such Selling Shareholder in such Selling Shareholder's Power of Attorney or set forth in the Registration Statement or the Prospectus at the time the Registration Statement became or becomes, as the case may be, effective and at all times subsequent thereto up to and at the Preliminary Prospectus. To time of purchase does not, and at the knowledge time the Registration Statement became or becomes, as the case may be, effective and at all times subsequent thereto up to and at the time of such Selling Shareholderpurchase will not, the Preliminary Prospectus does not include an 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, in the light of the circumstances under which they were made, not misleading;
(j) such Selling Shareholder does not have, or has waived prior to the date hereof, any preemptive right, co-sale right or right of first refusal or other similar right to purchase any of the Offered ADSs that are to be sold by the Company or any of the other Selling Shareholders to the Underwriters pursuant to this Agreement; such Selling Shareholder does not have, or has waived prior to the date hereof, any registration right or other similar right to participate in the offering made by the Prospectus, other than such rights of participation as have been satisfied by the participation of such Selling Shareholder in the transactions to which this Agreement relates in accordance with the terms of this Agreement; and such 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, rights, warrants, options or other securities from the Company, other than those described in the Registration Statement and the Prospectus;
(k) such Selling Shareholder is not aware that any of the representations and warranties of the Company set forth in Section 3 above is untrue or inaccurate in any material respect;
(l) except as disclosed in the Registration Statement, neither such Selling Shareholder nor any of his, her or its affiliates directly, or indirectly through one or more intermediaries, controls, or is controlled by, or is under common control with, or has any other association with (within the meaning of Article I, Section 1(dd) of the By-laws of the NASD), any member firm of the NASD;
(m) if such Selling Shareholder is an officer or director of the Company, (i) such Selling Shareholder has reviewed the Registration Statement and the representations and warranties of the Company contained in Section 3 hereof and has no reason to believe that such representations and warranties are not true and correct and (ii) the sale of the Ordinary Shares underlying the Selling Shareholder ADSs by such Selling Shareholder pursuant hereto is not prompted by any information concerning the Company or any of its subsidiaries which is not set forth in the Prospectus or any supplement thereto;
(n) if such Selling Shareholder is not an officer or director of the Company, the sale of the Ordinary Shares underlying the Selling Shareholder ADSs by such Selling Shareholder pursuant hereto is not prompted by any information concerning the Company or any of its subsidiaries which is not set forth in the Prospectus or any supplement thereto;
(o) there are no contracts, agreements or understandings between such Selling Shareholder and any person that would give rise to a valid claim against the Selling Shareholder or any Underwriter for a brokerage commission, finder's fee or other like payment in connection with the offer and sale of the Selling Shareholder ADSs;
(p) except as disclosed in the Prospectus, no stamp or other issuance or transfer taxes or duties and no capital gains, income, withholding or other taxes are or will be payable by or on behalf of the Underwriters, or otherwise imposed on any payments made to the Underwriters, to the PRC government or any political subdivision or taxing authority thereof or therein in connection with: (i) the deposit of Ordinary Shares by such Selling Shareholder with the Depositary against the issuance of ADRs evidencing ADSs, (ii) the sale and delivery on behalf of the Selling Shareholders of the ADSs to or for the respective accounts of the Un- derwriters as set forth in the Prospectus and pursuant to the terms of this Agreement, or (iii) any other transaction or payment contemplated by this Agreement;
(q) except as described in the Prospectus, all expenses and other amounts that may be payable by such Selling Shareholder under this Agreement shall be made free and clear of, and without deduction for or on account of, any taxes imposed, assessed or levied by the PRC government or any political subdivision or taxing authority thereof or therein; there are no taxes imposed in the PRC on, or by virtue of, the execution or delivery of this Agreement;
(r) the choice of laws of the State of New York as the governing law of this Agreement is a valid choice of law under the laws of the Cayman Islands and will be honored by courts in the Cayman Islands. Such Selling Shareholder has the power to submit, and pursuant to Section 13 of this Agreement, has legally, validly, effectively and irrevocably submitted, to the personal jurisdiction of each New York Court, and such Selling Shareholder has the power to designate, appoint and empower, and pursuant to Section 13 of this Agreement, has legally, validly, effectively and irrevocably designated, appointed and empowered, the Authorized Agent (as defined in Section 13 hereof) for service of process in any action arising out of or relating to this Agreement or the Offered ADSs in any New York Court, and service of process effected on such Authorized Agent will be effective to confer valid personal jurisdiction over such Selling Shareholder as provided in Section 13 hereof; and
(s) any final judgment for a fixed or readily calculable sum of money rendered by a New York Court having jurisdiction under its own domestic laws in respect of any suit, action or proceeding against such Selling Shareholder based upon this Agreement would be declared enforceable against such Selling Shareholder by Cayman Islands courts without re-examining the merits of the case under the common law doctrine of obligation; provided that (i) adequate service of process has been effected and the defendant has had a reasonable opportunity to be heard, (ii) such judgments or the enforcement thereof are not contrary to the law, public policy, security or sovereignty of the Cayman Islands, (iii) such judgments were not obtained by fraudulent means and do not conflict with any other valid judgment in the same matter between the same parties, and (iv) an action between the same parties in the same matter is not pending in any Cayman Islands court at the time the lawsuit is instituted in the foreign court.
Appears in 1 contract
Representations and Warranties of the Selling Shareholders. Each of the Selling Shareholders, severally and not jointly, represents and warrants to to, and agrees with, each of the Underwriters you that:
(a) Such Selling ShareholderAll consents, at the First Closing Dateapprovals, will have good and marketable title to the Shares set forth in Schedule II to be sold by such Selling Shareholder, free and clear of any liens, encumbrances, equities and claims (other than as imposed by the Securities Act or this Agreement), and full right, power and authority to effect the sale and delivery of such Shares; and upon the delivery of and payment for the Shares to be sold by such Selling Shareholder pursuant to this Agreement, good and marketable title thereto, free and clear of any liens, encumbrances, equities and claims, of any kind, will be transferred to the Underwriters.
(b) Such Selling Shareholder has duly executed and delivered the Custody Agreement and Power of Attorney in the form previously delivered to the Representatives, appointing the persons named therein, and each of them as such Selling Shareholder's attorney-in-fact (the "Attorney-in-Fact") and as custodian (the "Custodian"). The Attorney-in-Fact is authorized to execute, deliver and perform this Agreement on behalf of such Selling Shareholder, to deliver the Shares to be sold by such Selling Shareholder hereunder, to accept payment therefor, and otherwise to act on behalf of such Selling Shareholder in connection with this Agreement, including payment from the Offering proceeds of expenses incurred on behalf of such Selling Shareholder. Certificates, in suitable form for transfer by delivery or accompanied by duly executed instruments of transfer or assignment in blank, representing the Shares to be sold by such Selling Shareholder hereunder have been deposited with the Custodian pursuant to the Custody Agreement and Power of Attorney for the purpose of delivery pursuant to this Agreement. Such Selling Shareholder agrees that the shares of Common Stock represented by the certificates on deposit with the Custodian are subject to the interest of the Underwriters hereunder, that the arrangements made for such custody and the appointment of the Attorney-in-Fact are to that extent irrevocable, and that the obligations of such Selling Shareholder hereunder shall not be terminated except as provided in this Agreement and the Custody Agreement and Power of Attorney. If such Selling Shareholder should die or become incapacitated, or if any other event should occur, before the delivery of the Shares of such Selling Shareholder hereunder, the certificates for such Shares deposited with the Custodian shall be delivered by the Custodian in accordance with the terms and conditions of this Agreement as if such death, incapacity or other event had not occurred, regardless of whether the Custodian or the Attorney-in-Fact shall have received notice thereof.
(c) Such Selling Shareholder, acting through his duly authorized Attorney-in-Fact, has duly executed and delivered this Agreement and the Custody Agreement and Power of Attorney; this Agreement constitutes a legal, valid and binding obligation of such Selling Shareholder, all authorizations and consents orders necessary for the execution and delivery by such Selling Shareholder of this Agreement and Agreement, the Custody Agreement and Power of Attorney on behalf of such Selling Shareholder and Custody Agreement (the "CUSTODY AGREEMENT") hereinafter referred to, and for the sale and delivery of the Shares to be sold by such Selling Shareholder hereunder in the Offering, have been givenobtained, except as may or will be required by obtained prior to completion of the Securities Act or state securities lawsOffering; and such Selling Shareholder has the legal capacity and full right, requisite power and authority to execute enter into this Agreement and the Custody Agreement and Power of Attorneyto sell, assign, transfer and deliver the Shares to be sold by such Selling Shareholder in the Offering, except as set forth on SCHEDULE B hereto.
(db) The performance of this This Agreement and the Custody Agreement have each been duly authorized, executed and Power of Attorney and the consummation of the transactions contemplated hereby and thereby delivered by such Selling Shareholder will not result in and each such document constitutes a breach or violation of, or conflict with, any of the terms or provisions of, or constitute a default by such Selling Shareholder under, any indenture, mortgage, deed of trust, trust (constructive or other), loan agreement, lease, franchise, license or other agreement or instrument to which such Selling Shareholder or any of his or its properties is bound, or any statute, judgment, decree, order, rule or regulation of any court or governmental agency or body applicable to such Selling Shareholder or any of his, her or its properties.
(e) Such Selling Shareholder has not distributed nor, other than as permitted by the Securities Act valid and the Rules and Regulations, will distribute any prospectus or other offering material in connection with the offer and sale of the Shares other than any Preliminary Prospectus filed with the Commission or the Final Prospectus or other material permitted by the Securities Act.
(f) Such Selling Shareholder has reviewed and is familiar with the Registration Statement and the Preliminary Prospectus. To the knowledge binding obligation of such Selling Shareholder, enforceable against such Selling Shareholder in accordance with its terms. Each of the Preliminary Prospectus does not include an untrue statement Selling Shareholders represents and warrants that a certificate in negotiable form representing all of a material fact the Shares to be sold by such Selling Shareholder has been, or omit prior to state a material fact necessary the Closing will be, placed in order to make custody under the statements thereinCustody Agreement, in the light form heretofore furnished to you, duly executed and delivered by such Selling Shareholder to the Custodian (as defined in the Custody Agreement), and that such Selling Shareholder has duly executed and delivered a power of attorney, in the form contained in the Custody Agreement (the "POWER OF ATTORNEY"), appointing Xxxxxxx X. Xxxxxxxx and Xxxxxx Xxxxxx and, in certain instances, Xxxxxx X. Xxxxxx, and each of them, as such Selling Shareholder's attorney-in-fact (the "ATTORNEY-IN-FACT") with authority to execute and deliver this Agreement on behalf of such Selling Shareholder, to authorize the delivery of the circumstances under which they were madeShares to be sold by such Selling Shareholder hereunder and otherwise to act on behalf of the Selling Shareholder in connection with the transactions contemplated by this Agreement, not misleadingthe Escrow Agreement and the Custody Agreement.
Appears in 1 contract
Representations and Warranties of the Selling Shareholders. Each of the Selling Shareholders, severally and not jointly, Shareholders represents and warrants to to, and agrees with, each of the several Underwriters that:
(ai) Such Selling Shareholder, at the First Closing Date, will have good and marketable title to the Shares set forth in Schedule II to be sold by such Selling Shareholder, free and clear of any liens, encumbrances, equities and claims (other than as imposed by the Securities Act or this Agreement), and full right, power and authority to effect the sale and delivery of such Shares; and upon the delivery of and payment for the Shares to be sold by such Selling Shareholder pursuant to this Agreement, good and marketable title thereto, free and clear of any liens, encumbrances, equities and claims, of any kind, will be transferred to the Underwriters.
(b) Such Selling Shareholder has duly executed and delivered the a Custody Agreement and Power of Attorney (the "Custody Agreement"), in the form previously heretofore delivered to the Representatives, appointing the persons named therein, and each of them either Keith Alessi or Christopher Drake as such Selling Shareholder's attorneyattoxxxxx-inxx-fact xxxt (the txx "AttorneyXxxxxxxxx-inxx-Fact") ), and appointing Keith Alessi as custodian (the "Custodian"). The AttorneyAttorneys-in-Fact is authorized axx xxxxxxxxxd to execute, deliver and perform the Custody Agreement and this Agreement on behalf of such Selling Shareholder, including, without limitation, the authority to deliver determine the Shares purchase price to be sold by such paid to each Selling Shareholder hereunder, to accept payment therefor, and otherwise to act on behalf by the Underwriters as set forth in Section 2 of such Selling Shareholder in connection with this Agreement, including payment from the Offering proceeds of expenses incurred on behalf of such Selling Shareholder. Certificates, Certificates in suitable negotiable form for transfer by delivery or accompanied by duly executed instruments of transfer or assignment in blank, representing the Shares to be sold by such each Selling Shareholder hereunder have been deposited with the Custody Agreement with the Custodian. Certificates in negotiable form representing the Shares to be sold by each Selling Shareholder hereunder have been deposited with the Custodian pursuant to the Custody Agreement and Power of Attorney for the purpose of delivery pursuant to this Agreement. Such Selling Shareholder agrees that the shares of Common Stock Shares represented by the certificates on deposit with the Custodian are subject to the interest interests of the Underwriters hereunder, that the arrangements made for such custody and the appointment of the AttorneyAttorneys-in-Fact are to that extent irrevocable, and that the obligations of such Selling Shareholder hereunder shall not be terminated terminated, except as provided in this Agreement and Agreement, by any act of such Selling Shareholder, by operation of law or otherwise, whether by the Custody Agreement and Power dissolution, reorganization, death or incapacity of Attorney. If such Selling Shareholder should die or become incapacitated, or if the occurrence of any other event. If any such dissolution, reorganization, death, incapacity or other such event should occur, occur before the delivery of the Shares of such to be sold by the affected Selling Shareholder hereunder, the and certificates for such Shares deposited with the Custodian shall be delivered by the Custodian in accordance with the terms and conditions of this Agreement Agreement, as if such dissolution, reorganization, death, incapacity incapacity, or other event had not occurred, regardless of whether or not the Custodian or the AttorneyAttorneys-in-Fact shall have received notice thereof.;
(cii) Such such Selling ShareholderShareholder has all requisite right, acting through his duly authorized Attorney-in-Factpower and authority to enter into this Agreement, has duly executed the Power of Attorney and delivered the Custody Agreement, and to sell, transfer and deliver the Shares to be sold by such Selling Shareholder hereunder, and this Agreement Agreement, the Power of Attorney and the Custody Agreement have been duly authorized, executed and Power of Attorney; this Agreement constitutes a delivered by such Selling Shareholder and constitute the legal, valid and binding obligation obligations of such Selling Shareholder enforceable in accordance with their respective terms;
(iii) the execution, delivery and performance, and the consummation of the transactions contemplated hereby and by the Prospectus, the Power of Attorney and the Custody Agreement do not and shall not, with or without the giving of notice or lapse of time or both, (A) conflict with any term or provision of such Selling Shareholder's charter, bylaws or other organic or governing documents, if applicable, (B) conflict with or result in a breach or a violation of any of the terms or provisions of, or constitute a default under, any indenture, mortgage or other agreement or instrument to which such Selling Shareholder is a party or by which such Selling Shareholder or any of his, her or its Shares is bound, or (C) violate any existing, applicable law, rule, regulation, judgment, order or decree of any government, governmental instrumentality or court, domestic or foreign, having jurisdiction over such Selling Shareholder or any of his, her or its Shares;
(iv) all authorizations authorizations, approvals and consents necessary for the valid execution and delivery by such Selling Shareholder of this Agreement Agreement, the Power of Attorney and the Custody Agreement have been obtained and Power of Attorney on behalf of such Selling Shareholder are in full force and for effect, and the sale and delivery of the Shares to be sold by such Selling Shareholder hereunder have been given(other than, except at the time of the execution hereof, the issuance of the order of the Commission declaring the Registration Statement effective and such authorizations, approvals or consents as may be required necessary under the state or foreign securities or Blue Sky laws and the Bylaws, rules and pronouncements of the NASD), have been obtained and are in full force and effect;
(v) such Selling Shareholder now is, and on the Closing Date and any Option Closing Date will be, the lawful owner of the Shares to be sold by such Selling Shareholder pursuant to this Agreement. On the Securities Act Closing Date and any Option Closing Date, such Selling Shareholder will have good and marketable title to such Shares, free and clear of all liens, encumbrances, security interests or state securities laws; other restrictions (other than those created under the Custody Agreement). Upon proper delivery of, and payment for, such Shares as provided herein, the Underwriters will acquire good and marketable title thereto, free and clear of all liens, encumbrances, security interests and other restrictions and defects whatsoever;
(vi) such Selling Shareholder has examined the legal capacity and full right, power and authority to execute this Agreement Primary Registration Statement and the Custody Agreement and Power of Attorney.
(d) The performance of this Agreement Prospectus and the Custody Agreement and Power of Attorney and the consummation of the transactions contemplated hereby and thereby by such Selling Shareholder will not result in a breach or violation of, or conflict with, any of the terms or provisions of, or constitute a default by such Selling Shareholder under, any indenture, mortgage, deed of trust, trust (constructive or other), loan agreement, lease, franchise, license or other agreement or instrument to which such Selling Shareholder or any of his or its properties is bound, or any statute, judgment, decree, order, rule or regulation of any court or governmental agency or body applicable information relating to such Selling Shareholder or any of hisset forth therein and, her or its properties.
(e) Such Selling Shareholder has not distributed noras to such information, other than as permitted by neither the Securities Act and the Rules and Regulations, will distribute any prospectus or other offering material in connection with the offer and sale of the Shares other than any Preliminary Prospectus filed with the Commission or the Final Prospectus or other material permitted by the Securities Act.
(f) Such Selling Shareholder has reviewed and is familiar with the Primary Registration Statement and nor the Preliminary Prospectus. To the knowledge of such Selling Shareholder, the Preliminary Prospectus does not include an contains any untrue statement of a material fact or omit omits to state a any material fact required to be stated therein or necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading;
(vii) such Selling Shareholder has not incurred any liability for any finder's fee or similar payment in connection with the sale of such Selling Shareholder's Shares hereunder; and
(viii) such Selling Shareholder has not distributed and will not distribute any offering material in connection with the offering and sale of the Shares other than the Registration Statements, a Preliminary Prospectus, the Prospectus and other material, if any, permitted by the Act and the Regulations. Neither such Selling Shareholder nor any affiliate of such Selling Shareholder has taken or shall take any action designed, or that might be reasonably expected, to cause or result in stabilization or manipulation of the price of the Shares.
Appears in 1 contract
Representations and Warranties of the Selling Shareholders. Each of the Selling ShareholdersShareholder listed in Schedule I, severally and not jointly, represents and warrants to and agrees with, with each of the Underwriters that:
(a) Such 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 such Selling Shareholder.
(b) The execution and delivery by such Selling Shareholder of, at and the First Closing Dateperformance by such Selling Shareholder of its obligations under, will have good this Agreement, the Custody Agreement signed by such Selling Shareholder and marketable title Computershare Inc., as Custodian, relating to the deposit of the Shares set forth in Schedule II to be sold by such Selling Shareholder (the “Custody Agreement”) and the Power of Attorney appointing certain individuals as such Selling Shareholder’s attorneys-in-fact (the “Attorney-in-Fact”) to the extent set forth therein, relating to the transactions contemplated hereby and by the Registration Statement (the “Power of Attorney”) will not contravene (i) any provision of applicable law, (ii) the certificate of incorporation, by-laws, limited partnership agreement or other constitutive documents of such Selling Shareholder (if such Selling Shareholder is a corporation or a limited partnership), (iii) any agreement or other instrument binding upon such Selling Shareholder or (iv) any judgment, order or decree of any governmental body, agency or court having jurisdiction over such Selling Shareholder, except in the case of clause (iii) where such contravention would not impair in any material respects the consummation of such Selling Shareholder’s obligations under this Agreement or such Selling Shareholder’s Custody Agreement or Power of Attorney, and no consent, approval, authorization or order of, or qualification with, any governmental body or agency is required for the performance by such Selling Shareholder of its obligations under this Agreement or the Custody Agreement or Power of Attorney of such Selling Shareholder, except such as may be required by the securities or Blue Sky laws of the various states of the United States in connection with the offer and sale of the Shares.
(c) Such Selling Shareholder has, and on the Closing Date will have, valid title to, or a valid “security entitlement” within the meaning of Section 8-501 of the New York Uniform Commercial Code in respect of, the Shares to be sold by such Selling Shareholder free and clear of any all security interests, claims, liens, encumbrancesequities or other encumbrances and the legal right and power, equities and claims (other than as imposed all authorization and approval required by the Securities Act or law, to enter into this Agreement), the Custody Agreement and full rightthe Power of Attorney and to sell, power transfer and authority deliver the Shares to effect the sale and delivery be sold by such Selling Shareholder or a security entitlement in respect of such Shares; .
(d) The Custody Agreement and upon the delivery Power of Attorney have been duly authorized, executed and delivered by such Selling Shareholder and are valid and binding agreements of such Selling Shareholder.
(e) Upon payment for the Shares to be sold by such Selling Shareholder pursuant to this Agreement, good delivery of such Shares, as directed by the Underwriters, to Cede & Co. (“Cede”) or such other nominee as may be designated by the Depository Trust Company (“DTC”), registration of such Shares in the name of Cede or such other nominee and marketable title thereto, free and clear the crediting of such Shares on the books of DTC to securities accounts of the Underwriters (assuming that neither DTC nor any such Underwriter has notice of any liens, encumbrances, equities and claims, adverse claim (within the meaning of any kind, will be transferred to Section 8-105 of the Underwriters.
(b) Such Selling Shareholder has duly executed and delivered the Custody Agreement and Power of Attorney in the form previously delivered to the Representatives, appointing the persons named therein, and each of them as such Selling Shareholder's attorney-in-fact New York Uniform Commercial Code (the "Attorney-in-Fact"“UCC”)) and as custodian (the "Custodian"). The Attorney-in-Fact is authorized to execute, deliver and perform this Agreement on behalf such Shares),(i) DTC shall be a “protected purchaser” of such Selling ShareholderShares within the meaning of Section 8-303 of the UCC, (ii) under Section 8-501 of the UCC, the Underwriters will acquire a valid security entitlement in respect of such Shares and (iii) no action based on any “adverse claim”, within the meaning of Section 8-102 of the UCC, to deliver such Shares may be asserted against the Shares Underwriters with respect to be sold by such security entitlement; for purposes of this representation, such Selling Shareholder hereundermay assume that when such payment, to accept payment therefordelivery and crediting occur, and otherwise to act on behalf (A) such Shares will have been registered in the name of such Selling Shareholder in connection with this Agreement, including payment from the Offering proceeds of expenses incurred on behalf of such Selling Shareholder. CertificatesCede or another nominee designated by DTC, in suitable form for transfer by delivery or accompanied by duly executed instruments each case on the Company’s share registry in accordance with its certificate of transfer or assignment in blankincorporation, representing bylaws and applicable law, (B) DTC will be registered as a “clearing corporation” within the Shares meaning of Section 8-102 of the UCC and (C) appropriate entries to be sold by such Selling Shareholder hereunder the accounts of the several Underwriters on the records of DTC will have been deposited with the Custodian made pursuant to the Custody Agreement and Power of Attorney for the purpose of delivery pursuant to this Agreement. Such Selling Shareholder agrees that the shares of Common Stock represented by the certificates on deposit with the Custodian are subject to the interest of the Underwriters hereunder, that the arrangements made for such custody and the appointment of the Attorney-in-Fact are to that extent irrevocable, and that the obligations of such Selling Shareholder hereunder shall not be terminated except as provided in this Agreement and the Custody Agreement and Power of Attorney. If such Selling Shareholder should die or become incapacitated, or if any other event should occur, before the delivery of the Shares of such Selling Shareholder hereunder, the certificates for such Shares deposited with the Custodian shall be delivered by the Custodian in accordance with the terms and conditions of this Agreement as if such death, incapacity or other event had not occurred, regardless of whether the Custodian or the Attorney-in-Fact shall have received notice thereof.
(c) Such Selling Shareholder, acting through his duly authorized Attorney-in-Fact, has duly executed and delivered this Agreement and the Custody Agreement and Power of Attorney; this Agreement constitutes a legal, valid and binding obligation of such Selling Shareholder, all authorizations and consents necessary for the execution and delivery of this Agreement and the Custody Agreement and Power of Attorney on behalf of such Selling Shareholder and for the sale and delivery of the Shares to be sold by such Selling Shareholder hereunder have been given, except as may be required by the Securities Act or state securities laws; and such Selling Shareholder has the legal capacity and full right, power and authority to execute this Agreement and the Custody Agreement and Power of Attorney.
(d) The performance of this Agreement and the Custody Agreement and Power of Attorney and the consummation of the transactions contemplated hereby and thereby by such Selling Shareholder will not result in a breach or violation of, or conflict with, any of the terms or provisions of, or constitute a default by such Selling Shareholder under, any indenture, mortgage, deed of trust, trust (constructive or other), loan agreement, lease, franchise, license or other agreement or instrument to which such Selling Shareholder or any of his or its properties is bound, or any statute, judgment, decree, order, rule or regulation of any court or governmental agency or body applicable to such Selling Shareholder or any of his, her or its properties.
(e) Such Selling Shareholder has not distributed nor, other than as permitted by the Securities Act and the Rules and Regulations, will distribute any prospectus or other offering material in connection with the offer and sale of the Shares other than any Preliminary Prospectus filed with the Commission or the Final Prospectus or other material permitted by the Securities ActUCC.
(f) Such Selling Shareholder has reviewed is not prompted by any information concerning the Company or its subsidiaries which is not set forth in the Time of Sale Prospectus and is familiar with the Prospectus to sell its Shares pursuant to this Agreement.
(i) The Registration Statement, when it became effective, did not contain and, as amended or supplemented, if applicable, will not contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading, (ii) the Registration Statement and the Preliminary Prospectus. To Prospectus comply and, as amended or supplemented, if applicable, will comply in all material respects with the knowledge Securities Act and the applicable rules and regulations of such Selling Shareholderthe Commission thereunder, (iii) the Time of Sale Prospectus does not, and at the time of each sale of the Shares in connection with the offering when the Prospectus is not yet available to prospective purchasers and at the Closing Date (as defined in Section 5), the Preliminary Prospectus does not include an Time of Sale Prospectus, as then amended or supplemented by the Company, if applicable, will not, contain any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading, (iv) each broadly available road show, if any, when considered together with the Time of Sale Prospectus, does not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading and (v) the Prospectus does not contain and, as amended or supplemented, if applicable, will not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading; except that the representations and warranties set forth in this paragraph (g) apply only to statements or omissions in the Registration Statement, Time of Sale Prospectus, a broadly available road show or the Prospectus that relate to such Selling Shareholder and are based upon information furnished to the Company in writing by such Selling Shareholder expressly for use therein.
(h) Such 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).
(i) Such Selling Shareholder does not have, or has waived prior to the date hereof, any preemptive right, co-sale right or right of first refusal or other similar right to purchase any of the Shares that are to be sold by the Company or any other Selling Shareholder to the Underwriters pursuant to this Agreement; and such 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 and the Prospectus.
(j) No consent, approval, authorization or order of, or filing or registration with, any court or governmental agency or body having jurisdiction over such Selling Shareholder or the property or assets of such Selling Shareholder is required for the execution, delivery and performance of this Agreement, the Custody Agreement or the Power of Attorney by such Selling Shareholder and the consummation by such Selling Shareholder of the transactions contemplated hereby and thereby, except (i) for the registration of the Shares under the Securities Act, (ii) such consents, approvals, authorizations, registrations or qualifications as may be required under the Exchange Act and applicable foreign or domestic securities laws in connection with the purchase and sale of the Shares by the Underwriters and (iii) for those as to which the failure to obtain or make would not reasonably be expected to, individually or in the aggregate, have an adverse effect on the ability of such Selling Shareholder to execute, deliver and perform the transactions contemplated by this Agreement.
(k) There are no contracts, agreements or understandings between such 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 such Selling Shareholder’s knowledge, any other arrangements, agreements, understandings, payments or issuance with respect to the Company or any of its officers, directors, shareholders, partners, employees, Subsidiaries or affiliates that may affect the Underwriters’ compensation as determined by FINRA.
(l) There are no affiliations or associations between any member of FINRA and such Selling Shareholder, except as disclosed in the Registration Statement, Time of Sale Prospectus and Prospectus or as set forth in a questionnaire completed by such Selling Shareholder and delivered to the Representatives prior to the date of this Agreement; none of the proceeds received by such Selling Shareholder from the sale of the Shares to be sold by such Selling Shareholder pursuant to this Agreement will be paid to a member of FINRA or any affiliate of (or person “associated with”, as such terms are used in the Rules of FINRA) such member.
(m) Such 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.
(n) Any certificate signed by any Selling Shareholder and delivered to the Representatives or counsel for the Underwriters in connection with the Shares shall be deemed a representation and warranty by such Selling Shareholder, as to matters covered thereby, to each Underwriter.
Appears in 1 contract
Samples: Underwriting Agreement (Fabrinet)
Representations and Warranties of the Selling Shareholders. Each of the Selling Shareholders, Stockholder severally and not jointly, represents and warrants to to, and agrees with, each of the several Underwriters that:
(a) Such All consents, approvals, authorizations and orders necessary for the execution and delivery by such Selling Shareholder, at Stockholder of this Agreement and the First Closing Date, will have good power of attorney (the "Power of Attorney") and marketable title related custody agreement (the "Custody Agreement") hereinafter referred to and for the Shares set forth in Schedule II sale and delivery of the Securities to be sold by such Selling ShareholderStockholder hereunder, free have been obtained; such Selling Stockholder has and clear of any liens, encumbrances, equities on each Closing Date hereinafter mentioned will have valid and claims (other than as imposed unencumbered title to the Offered Securities to be delivered by the Securities Act or this Agreement), such Selling Stockholder on such Closing Date and full right, power and authority to effect enter into this Agreement, the sale Power of Attorney and delivery of the Custody Agreement and to sell, assign, transfer and deliver the Offered Securities to be delivered by such Shares; and Selling Stockholder on such Closing Date hereunder.
(b) On each Closing Date, upon the delivery of and payment for the Shares Offered Securities to be delivered by such Selling Stockholder on such Closing Date and delivery to DTC or its agent of such Offered Securities registered in the name of Cede & Co. or such other nominee as may be designated by DTC, and DTC's crediting such Offered Securities to an Underwriter's account with DTC, Cede & Co., or such other nominee designated by DTC, will be a "protected purchaser" of such Offered Securities (as defined in Section 8-303 of the Uniform Commercial Code as adopted in the State of New York (the "Code")), such Underwriter will acquire a valid "security entitlement" (within the meaning of Section 8-501 of the Code) with respect to the Securities to the extent that DTC credits such Offered Securities to such Underwriter's account, and no action based on an "adverse claim" (as defined in section 8-102 of the Code) may be asserted against such Underwriter with respect to such security entitlement (assuming that such Underwriter is without notice of any such adverse claim).
(c) The execution, delivery and performance by such Selling Stockholder of this Agreement, the Power of Attorney and the Custody Agreement, the sale of the Securities to be sold by such Selling Shareholder pursuant to this Agreement, good Stockholder and marketable title thereto, free and clear of any liens, encumbrances, equities and claims, of any kind, will be transferred to the Underwriters.
(b) Such Selling Shareholder has duly executed and delivered the Custody Agreement and Power of Attorney in the form previously delivered to the Representatives, appointing the persons named therein, and each of them as such Selling Shareholder's attorney-in-fact (the "Attorney-in-Fact") and as custodian (the "Custodian"). The Attorney-in-Fact is authorized to execute, deliver and perform this Agreement on behalf of such Selling Shareholder, to deliver the Shares to be sold consummation by such Selling Shareholder hereunder, to accept payment therefor, and otherwise to act on behalf of such Selling Shareholder in connection with this Agreement, including payment from the Offering proceeds of expenses incurred on behalf of such Selling Shareholder. Certificates, in suitable form for transfer by delivery or accompanied by duly executed instruments of transfer or assignment in blank, representing the Shares to be sold by such Selling Shareholder hereunder have been deposited with the Custodian pursuant to the Custody Agreement and Power of Attorney for the purpose of delivery pursuant to this Agreement. Such Selling Shareholder agrees that the shares of Common Stock represented by the certificates on deposit with the Custodian are subject to the interest of the Underwriters hereunder, that the arrangements made for such custody and the appointment of the Attorney-in-Fact are to that extent irrevocable, and that the obligations of such Selling Shareholder hereunder shall not be terminated except as provided in this Agreement and the Custody Agreement and Power of Attorney. If such Selling Shareholder should die or become incapacitated, or if any other event should occur, before the delivery of the Shares of such Selling Shareholder hereunder, the certificates for such Shares deposited with the Custodian shall be delivered by the Custodian in accordance with the terms and conditions of this Agreement as if such death, incapacity or other event had not occurred, regardless of whether the Custodian or the Attorney-in-Fact shall have received notice thereof.
(c) Such Selling Shareholder, acting through his duly authorized Attorney-in-Fact, has duly executed and delivered this Agreement and the Custody Agreement and Power of Attorney; this Agreement constitutes a legal, valid and binding obligation of such Selling Shareholder, all authorizations and consents necessary for the execution and delivery of this Agreement and the Custody Agreement and Power of Attorney on behalf of such Selling Shareholder and for the sale and delivery of the Shares to be sold by such Selling Shareholder hereunder have been given, except as may be required by the Securities Act or state securities laws; and such Selling Shareholder has the legal capacity and full right, power and authority to execute this Agreement and the Custody Agreement and Power of Attorney.
(d) The performance of this Agreement and the Custody Agreement and Power of Attorney and the consummation Stockholder of the transactions herein and therein contemplated hereby and thereby by such Selling Shareholder will not (i) conflict with or result in a breach or violation of, or conflict with, of any of the terms or provisions of, or constitute a default by under, or result in the creation or imposition of any lien, charge or encumbrance upon any property or assets of such Selling Shareholder underStockholder pursuant to, any indenture, mortgage, deed of trust, trust (constructive or other), loan agreement, lease, franchise, license agreement or other agreement or instrument to which such Selling Shareholder Stockholder is a party or by which such Selling Stockholder is bound or to which any of the property or assets of such Selling Stockholder is subject, which in any such case is reasonably likely to prevent or delay performance by such Selling Stockholder of its obligations under this Agreement, (ii) result in any violation of the provisions of the charter or by-laws or similar organizational documents of such Selling Stockholder or (iii) result in the violation of any law or statute or any of his or its properties is bound, or any statute, judgment, decree, order, rule or regulation of any court or arbitrator or governmental agency or body applicable regulatory agency.
(d) None of the information relating to such Selling Shareholder Stockholder furnished to the Company in writing by such Selling Stockholder expressly for use in any Registration Statement, the Prospectus, or any amendment or supplement thereto includes, or will include, any untrue statement of hisa material fact or omits, her or its propertieswill omit, to state any material fact required to be stated therein or necessary to make the statements therein not misleading. In addition, each Selling Stockholder who is an executive officer of the Company has reviewed the Registration Statement and Prospectus and represents and warrants that he has no reason to believe that the representations and warranties of the Company contained in Section 2 of this Agreement are not true and correct in all material respects.
(e) Such Selling Shareholder Stockholder has not distributed nortaken and will not take, other than as permitted by the Securities Act and the Rules and Regulationsdirectly or indirectly, will distribute any prospectus action designed to or other offering material that could reasonably be expected to cause or result in connection with the offer and sale any stabilization or manipulation of the Shares other than price of the Securities; provided that such Selling Stockholder makes no representation or warranty with regard to any Preliminary Prospectus filed with the Commission or the Final Prospectus or other material permitted activities undertaken by the Securities Actany Underwriter.
(f) Such Except as disclosed in the Prospectus, there are no contracts, agreements or understandings between such Selling Shareholder has reviewed Stockholder and any person that would give rise to a valid claim against such Selling Stockholder or any Underwriter for a brokerage commission, finder's fee or other like payment in connection with this offering.
(g) As of the date hereof, and as of each Closing Date, the sale of the Securities by such Selling Stockholder is familiar with not and will not be prompted by any material non-public information concerning the Company which is not set forth in the Registration Statement and Statements or the Preliminary Prospectus. To the knowledge of such Selling Shareholder, the Preliminary Prospectus does not include an untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading.
Appears in 1 contract
Representations and Warranties of the Selling Shareholders. Each of the Selling Shareholders, Shareholders severally and not jointly, jointly represents and warrants to to, and agrees with, each of the Underwriters that:Underwriter as set forth below in this Section 2.
(a) Such Selling Shareholder, at if an entity, has been duly organized and is validly existing and in good standing as a company or a partnership, as the First case may be, in its jurisdiction of formation.
(b) Such Selling Shareholder has and on the Closing Date, Date hereinafter mentioned will have good valid and marketable unencumbered title to the Shares set forth in Schedule II Underwritten Securities to be sold delivered by such Selling Shareholder, free and clear of any liens, encumbrances, equities and claims (other than as imposed by Shareholder on the Securities Act or this Agreement), Closing Date and full right, power and authority to effect enter into this Agreement and to sell, assign, transfer and deliver the sale and delivery of Ordinary Shares underlying the Underwritten Securities to be delivered by such SharesSelling Shareholder on the Closing Date hereunder; and upon the delivery of and payment for the Underwritten Securities on the Closing Date hereunder the several Underwriters will acquire valid and unencumbered title to the Underwritten Securities to be delivered by such Selling Shareholder on the Closing Date.
(c) The Ordinary Shares represented by the Underwritten Securities to be sold by such Selling Shareholder pursuant to this Agreement, good and marketable title thereto, free and clear of any liens, encumbrances, equities and claims, of any kind, will may be transferred to the Underwriters.
(b) Such Selling Shareholder has duly executed and delivered the Custody Agreement and Power of Attorney in the form previously delivered to the Representatives, appointing the persons named therein, and each of them as such Selling Shareholder's attorney-in-fact (the "Attorney-in-Fact") and as custodian (the "Custodian"). The Attorney-in-Fact is authorized to execute, deliver and perform this Agreement on behalf of such Selling Shareholder, to deliver the Shares to be sold freely deposited by such Selling Shareholder hereunder, to accept payment therefor, and otherwise to act on behalf of such with the Depositary [or with the Selling Shareholder in connection with this Agreement, including payment from the Offering proceeds of expenses incurred on behalf of such Selling Shareholder. Certificates, in suitable form for transfer by delivery or accompanied by duly executed instruments of transfer or assignment in blank, representing the Shares to be sold by such Selling Shareholder hereunder have been deposited with the Custodian pursuant to the Custody Agreement and Power of Attorney as agent for the purpose of delivery pursuant to this Agreement. Such Selling Shareholder agrees that the shares of Common Stock represented by the certificates on deposit with the Custodian are subject to the interest of the Underwriters hereunder, that the arrangements made for such custody and the appointment of the Attorney-in-Fact are to that extent irrevocable, and that the obligations of such Selling Shareholder hereunder shall not be terminated except as provided in this Agreement and the Custody Agreement and Power of Attorney. If such Selling Shareholder should die or become incapacitated, or if any other event should occur, before the delivery of the Shares of such Selling Shareholder hereunder, the certificates for such Shares deposited with the Custodian shall be delivered by the Custodian Depositary] in accordance with the terms and conditions Deposit Agreement against the issuance of this Agreement as if ADRs evidencing the Underwritten Securities representing such death, incapacity or other event had not occurred, regardless of whether the Custodian or the Attorney-in-Fact shall have received notice thereof.
(c) Such Selling Shareholder, acting through his duly authorized Attorney-in-Fact, has duly executed and delivered this Agreement and the Custody Agreement and Power of Attorney; this Agreement constitutes a legal, valid and binding obligation of Ordinary Shares so deposited by such Selling Shareholder, all authorizations and consents necessary for the execution and delivery of this Agreement and the Custody Agreement and Power of Attorney on behalf of such Selling Shareholder and for the sale and delivery of the Shares to be sold by such Selling Shareholder hereunder have been given, except as may be required by the Securities Act or state securities laws; and such Selling Shareholder has the legal capacity and full right, power and authority to execute this Agreement and the Custody Agreement and Power of Attorney.
(d) The performance No consent, approval, authorization, filing with or order of this Agreement and any court or governmental agency or body is required to be obtained or made by such Selling Shareholder for the consummation of the transactions contemplated by [the Custody Agreement or] this Agreement in connection with the offering and Power sale of Attorney the Underwritten Securities sold by such Selling Shareholder, except such as have been obtained and made under the Act and such as may be required under state securities laws.
(e) The execution, delivery and performance of [the Custody Agreement and] this Agreement and the consummation of the transactions [therein and ]herein contemplated hereby and thereby by such Selling Shareholder will not result in a breach or violation of, or conflict with, of any of the terms or and provisions of, or constitute a default by such under, or result in the imposition of any lien, charge or encumbrance upon any property or assets of any Selling Shareholders pursuant to, any statute, any rule, regulation or order of any governmental agency or body or any court having jurisdiction over any Selling Shareholder under, or any indenture, mortgage, deed properties of trust, trust (constructive any Selling Shareholder or other), loan agreement, lease, franchise, license or other any agreement or instrument to which such any Selling Shareholder is a party or by which any Selling Shareholder is bound or to which any of his or its the properties of any Selling Shareholder is boundsubject, or any statute, judgment, decree, order, rule or regulation the organizational documents of any court or governmental agency or body applicable to such Selling Shareholder that is a corporation or the constituent documents of any of his, her or its properties.
(e) Such Selling Shareholder has that is not distributed nor, other than as permitted by the Securities Act and the Rules and Regulations, will distribute any prospectus a natural person or other offering material in connection with the offer and sale of the Shares other than any Preliminary Prospectus filed with the Commission or the Final Prospectus or other material permitted by the Securities Acta corporation.
(f) Such Each of [the Power of Attorney (as defined below) and related Custody Agreement] this Agreement and the Lock-up Agreement has been duly authorized, executed and delivered by such Selling Shareholder has reviewed and is familiar with constitutes the Registration Statement valid and the Preliminary Prospectus. To the knowledge legally binding obligation of such Selling Shareholder enforceable in accordance with their terms, subject to bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and similar laws of general applicability relating to or affecting creditors’ rights and to general equity principles.
(g) [The power of attorney (“Power of Attorney”), appointing certain individuals named therein as such Selling Shareholder’s attorneys-in-fact (each, an “Attorney-in-Fact”) relating to the transactions contemplated hereby and by the Disclosure Package and the Prospectus, constitutes a valid instrument granting the Attorneys-in-Fact named in such Power of Attorney, the Preliminary power and authority stated therein, and permits the Attorneys-in-Fact, singly or collectively, to bind such Selling Shareholder with respect to all matters granted, conferred and contemplated in such Power of Attorney and such Power of Attorney has not been revoked, cancelled or terminated at any time.]
(h) The statements in the sections entitled “Principal and Selling Shareholders” relating to such Selling Shareholder in the Disclosure Package and the Prospectus does did not and do not include an 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.
(i) The sale of the Underwritten Securities by such Selling Shareholder pursuant to this Agreement is (i) not prompted by any material information concerning the Company or any of its Subsidiaries that is not set forth in the Disclosure Package and the Prospectus and (ii) except as disclosed in the Disclosure Package and the Prospectus, complies with all applicable law and the Company’s policy relating to the sale of securities by its affiliates.
(j) There are no contracts, agreements or understandings between the Selling Shareholder and any person that would give rise to a valid claim against such Selling Shareholder or any Underwriter for a brokerage commission, finder’s fee or other like payment in connection with this offering.
(k) Such Selling Shareholder has not 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 Underwritten Securities.
(l) Upon payment for the Underwritten Securities sold by such Selling Shareholder under this Agreement and the delivery by such Selling Shareholder to DTC (as defined below) or its agent of the Underwritten Securities in book entry form to a securities account maintained by the Representatives at the DTC or its nominee, and payment therefor in accordance with this Agreement, the Underwriters will acquire a securities entitlement (within the meaning of Section 8-501 of the Uniform Commercial Code (the “UCC”)) with respect to such Underwritten Securities, and no action based on an “adverse claim” (as defined in UCC Section 8-102) may be asserted against the Underwriters with respect to such security entitlement if, at such time, the Underwriters do not have notice of any adverse claim within the meaning of UCC Section 8-105.
(m) The questionnaire containing certain information regarding such Selling Shareholder completed by such Selling Shareholder and submitted to the Company on or before the date hereof does not and as of the Closing Date will not contain any untrue statement of material fact nor does it omit to state any material fact required to be stated therein or necessary to make the statements therein not misleading.
(n) Such Selling Shareholder has no affiliations or associations with any member of FINRA; and none of the proceeds received by such Selling Shareholder from the sale of the Underwritten Securities to be sold by such Selling Shareholder hereunder will be paid to a member of the FINRA or any affiliate (or person “associated with,” as such terms are used in the rules of the FINRA).
(o) Except as disclosed in the Disclosure Package and the Prospectus, no transaction, stamp, capital or other issuance, registration, transfer or withholding taxes, duties or charges are payable in the PRC, Hong Kong, the British Virgin Islands or the Cayman Islands by or on behalf of the Underwriters to any PRC, Hong Kong, British Virgin Islands or Cayman Islands taxing authority in connection with (A) the sale and delivery of the Ordinary Shares represented by the Underwritten Securities by such Selling Shareholder, the issuance of the Securities by the Depositary, and the delivery of the Underwritten Securities sold by such Selling Shareholder to or for the account of the Underwriters; (B) the purchase from such Selling Shareholder and the initial sale and delivery by the Underwriters of the Underwritten Securities to purchasers thereof, (C) the deposit of the Ordinary Shares with the Depositary and the Custodian (each as defined in the Deposit Agreement) and the issuance and delivery of the ADRs, or (D) the execution and delivery of this Agreement [or the Custody Agreement.
(p) Such Selling Shareholder has not distributed and will not distribute, prior to the later of the Closing Date and the completion of the Underwriters’ distribution of the Securities, any offering material in connection with the offering and sale of the Underwritten Securities by the Selling Shareholders, including any “free writing prospectus” (as defined in Rule 405).
(q) Such 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 Securities.
(r) Such Selling Shareholder does not have, or has waived prior to the date hereof, any preemptive right, co-sale right or right of first refusal or other similar right to purchase any of the Ordinary Shares that are to be sold by the Company or any other Selling Shareholder to the Underwriters pursuant to this Agreement; and such 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 shares, right, warrants, options or other securities from the Company, other than those described in the Disclosure Package and the Prospectus.
(s) Neither such Selling Shareholder nor any of its respective officers, employees, directors, representatives, consultants or agents or any person acting on behalf of such Selling Shareholder is currently subject to any sanctions administered by OFAC; and such Selling Shareholder will not directly or indirectly use the proceeds from the sale of the Underwritten Securities to the Underwriters hereunder, or lend, contribute or otherwise make available such proceeds to any subsidiary, joint venture partner or other person or entity, for the purpose of financing the activities of any person currently subject to any U.S. sanctions administered by OFAC.
(t) None of such Selling Shareholder, its subsidiaries or any of their respective officers and executive directors has violated, and such Selling Shareholder’s participation in this offering will violate any Money Laundering Laws and no action, suit or proceeding by or before any court or government agency, authority or body or any arbitrator involving the Company, any of its Subsidiaries, such Selling Shareholder or any of its subsidiaries with respect to the Money Laundering Laws is pending or threatened.
(u) Neither such Selling Shareholder nor its properties, assets or revenues has any right of immunity from the jurisdiction of any court or from any legal process (whether through service or notice, attachment prior to judgment, attachment in aid of execution or otherwise) under the laws of the Cayman Islands, the British Virgin Islands, Hong Kong, the PRC, New York or United States federal law; and, to the extent that such Selling Shareholder or any of its properties, assets or revenues may has or may hereafter become entitled to any such right of immunity in any such court in which proceedings may at any time be commenced, such Selling Shareholder waives or will waive such right to the extent permitted by law and has consented to such relief and enforcement as provided in Section 20 of this Agreement and Section [•] of the Deposit Agreement. Any certificate signed by any officer or director of such Selling Shareholder and delivered to the Representatives or counsel for the Underwriters as required or contemplated by this Agreement shall constitute a representation and warranty hereunder by such Selling Shareholder, as to matters covered thereby, to each Underwriter.
Appears in 1 contract
Samples: Underwriting Agreement (Linkage Technologies International Holdings LTD)
Representations and Warranties of the Selling Shareholders. Each of the Selling Shareholders, severally and not jointly, Shareholder represents and warrants to and agrees with, with each of the Underwriters that:
(a) Such Selling ShareholderShareholder has, at and on the First Closing DateDate and each Option Closing Date will have, will have good valid and marketable unencumbered title to the ADSs and Ordinary Shares set forth in Schedule II represented thereby to be sold delivered by such Selling Shareholder, free and clear of any liens, encumbrances, equities and claims (other than as imposed by the Securities Act Shareholder on such Closing Date or this Agreement), Option Closing Date and full right, power and authority to effect enter into this Agreement and, assuming effectiveness of the sale Registration Statement and delivery of the ADS Registration Statement, to sell, assign, transfer and deliver the ADSs and Ordinary Shares represented thereby to be delivered by such SharesSelling Shareholder on such Closing Date or Option Closing Date hereunder, and to deposit with the Depositary the Ordinary Shares represented by such ADSs; and upon the delivery of and payment for the ADSs on the Closing Date or Option Closing Date hereunder, the several Underwriters will acquire valid and unencumbered title to the ADSs and Ordinary Shares represented thereby to be sold delivered by such Selling Shareholder pursuant to this Agreement, good and marketable title thereto, free and clear of any liens, encumbrances, equities and claims, of any kind, will be transferred to the Underwriterson such Closing Date.
(b) Such Selling Shareholder This Agreement has been duly authorized, executed and delivered the Custody Agreement and Power of Attorney in the form previously delivered to the Representatives, appointing the persons named therein, and each of them as such Selling Shareholder's attorney-in-fact (the "Attorney-in-Fact") and as custodian (the "Custodian"). The Attorney-in-Fact is authorized to execute, deliver and perform this Agreement by or on behalf of such Selling Shareholder, to deliver the Shares to be sold by such Selling Shareholder hereunder, to accept payment therefor, and otherwise to act on behalf of such Selling Shareholder in connection with this Agreement, including payment from the Offering proceeds of expenses incurred on behalf of such Selling Shareholder. Certificates, in suitable form for transfer by delivery or accompanied by duly executed instruments of transfer or assignment in blank, representing the Shares to be sold by such Selling Shareholder hereunder have been deposited with the Custodian pursuant to the Custody Agreement and Power of Attorney for the purpose of delivery pursuant to this Agreement. Such Selling Shareholder agrees that the shares of Common Stock represented by the certificates on deposit with the Custodian are subject to the interest of the Underwriters hereunder, that the arrangements made for such custody and the appointment of the Attorney-in-Fact are to that extent irrevocable, and that the obligations of such Selling Shareholder hereunder shall not be terminated except as provided in this Agreement and the Custody Agreement and Power of Attorney. If such Selling Shareholder should die or become incapacitated, or if any other event should occur, before the delivery of the Shares of such Selling Shareholder hereunder, the certificates for such Shares deposited with the Custodian shall be delivered by the Custodian in accordance with the terms and conditions of this Agreement as if such death, incapacity or other event had not occurred, regardless of whether the Custodian or the Attorney-in-Fact shall have received notice thereof.
(c) Such The execution and delivery by such Selling ShareholderShareholder of, acting through his duly authorized Attorney-in-Factand the performance by such Selling Shareholder of its obligations under, has duly executed and delivered this Agreement will not contravene any provision of applicable law, or the memorandum and the Custody Agreement and Power articles of Attorney; this Agreement constitutes association or other constitutive documents of such Selling Shareholder (if such Selling Shareholder is a legalcorporation), valid and or any agreement or other instrument binding obligation upon such Selling Shareholder or any judgments, orders, decrees or writs, guidelines or notices of any arbitrator, court, governmental body, regulatory body, administrative agency or other authority, body or agency having jurisdiction over such Selling Shareholder, all authorizations and consents necessary except for any such conflict, breach, violation or default that would not, individually or in the execution and delivery of aggregate, have a material adverse effect on the Selling Shareholders’ ability to fulfill its obligations under this Agreement and the Custody Agreement and Power of Attorney on behalf of Agreement.
(d) No consent, approval, authorization or order of, or filing with, any person (including any governmental agency or body or any court) is required to be obtained or made by such Selling Shareholder and for the sale and delivery consummation of the Shares to be transactions contemplated by this Agreement in connection with the offering and sale of the ADSs sold by such Selling Shareholder hereunder have been givenShareholder, except as may be required by the Securities Act securities or state securities laws; and such Selling Shareholder has the legal capacity and full right, power and authority to execute this Agreement and the Custody Agreement and Power of Attorney.
(d) The performance of this Agreement and the Custody Agreement and Power of Attorney and the consummation Blue Sky laws of the transactions contemplated hereby and thereby by such Selling Shareholder will not result in a breach or violation of, or conflict with, any various states of the terms or provisions of, or constitute a default by such Selling Shareholder under, any indenture, mortgage, deed of trust, trust (constructive or other), loan agreement, lease, franchise, license or other agreement or instrument to which such Selling Shareholder or any of his or its properties is bound, or any statute, judgment, decree, order, rule or regulation of any court or governmental agency or body applicable to such Selling Shareholder or any of his, her or its properties.
(e) Such Selling Shareholder has not distributed nor, other than as permitted by the Securities Act and the Rules and Regulations, will distribute any prospectus or other offering material United States in connection with the offer and sale of the Shares other than any Preliminary Prospectus filed with the Commission or the Final Prospectus or other material permitted by the Securities Act.ADSs.
(fe) Such Selling Shareholder has reviewed and is familiar with the (i) The Registration Statement and the Preliminary Prospectus. To the knowledge of such Selling ShareholderStatement, the Preliminary Prospectus does when it became effective, did not include an contain and, as amended or supplemented, if applicable, will not contain any untrue statement of a material fact relating to such Selling Shareholder or omit to state a material fact required to be stated therein or necessary to make the statements therein relating to such Selling Shareholder not misleading, (ii) the Time of Sale Prospectus does not, and at the time of each sale of the Offered Securities in connection with the offering when the Prospectus is not yet available to prospective purchasers, at the Closing Date and at each Option Date, 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 relating to such Selling Shareholder or omit to state a material fact necessary to make the statements therein relating to such Selling Shareholder, in order 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 relating to such Seller Shareholder or omit to state a material fact relating to such Seller Shareholder necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading and (iv) the Prospectus does not contain and, as amended or supplemented, if applicable, will not contain any untrue statement of a material fact relating to such Selling Shareholder or omit to state a material fact necessary to make the statements therein relating to such Selling Shareholder, in the light of the circumstances under which they were made, not misleading, except that the representations and warranties set forth in this paragraph shall only apply to any statements or omissions made in reliance upon and in conformity with information furnished in writing to the Representatives by such Selling Shareholder expressly for use therein, and it being understood and agreed that the only information furnished by such Selling Shareholder consists of the information with respect to such Selling Shareholder under the caption headed “Principal and Selling Shareholders” in the Registration Statement, the Time of Sale Prospectus and the Prospectus (such information, the “Selling Shareholder Information”).
(f) The sale of the ADSs by such Selling Shareholder pursuant to this Agreement is not prompted by any material information concerning the Company or any of its Subsidiaries that is not set forth in the in the Registration Statement, the Time of Sale Prospectus and the Prospectus.
(g) Such Selling Shareholder has no affiliations or associations with any member of FINRA.
(h) There are no contracts, agreements or understandings between such Selling Shareholder and any person that would give rise to a valid claim against such Selling Shareholder or any Underwriter for a brokerage commission, finder’s fee or other like payment in connection with this offering.
(i) Such Selling Shareholder has not 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 ADSs.
(j) Upon (i) payment for the ADSs to be sold by such Selling Shareholder pursuant to this Agreement, (ii) issuance of the ADSs pursuant to the Deposit Agreement, (iii) delivery of ADSs, as directed by the Underwriters, to Cede & Co. (“Cede”) or such other nominee as may be designated by the Depository Trust Company (“DTC”), (iv) registration of such ADSs in the name of Cede or such other nominee, and (v) the crediting of such ADSs on the books of DTC to securities accounts of the Underwriters (assuming that neither the Depositary, DTC nor any such Underwriter has notice of any adverse claim (within the meaning of Section 8-105 of the New York Uniform Commercial Code (the “UCC”)) to such ADSs), (A) DTC shall be a “protected purchaser” of such ADSs and the Shares represented thereby within the meaning of Section 8-303 of the UCC, (B) under Section 8-501 of the UCC, the Underwriters will acquire a valid security entitlement in respect of such ADSs and the Shares represented thereby and (C) no action based on any “adverse claim,” within the meaning of Section 8-102 of the UCC, to such ADSs or the Shares represented thereby may be asserted against the Underwriters with respect to such security entitlement; for purposes of this representation, such Selling Shareholder may assume that when such payment, delivery, issuance and crediting occur, (x) such ADSs will have been registered in the name of Cede or another nominee designated by DTC, in each case on the Depositary’s registry in accordance with the Depositary 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 accounts of the several Underwriters on the records of DTC will have been made pursuant to the UCC.
(k) No transaction, stamp, capital or other documentary, issuance, registration, transaction, transfer, withholding, capital gains, income or other taxes or duties are payable by or on behalf of the Underwriters to the jurisdiction of organization or tax residence of the Selling Shareholder, the government of the PRC, the United States, Hong Kong or the Cayman Islands or any political subdivision or taxing authority thereof in connection with (i) the sale and delivery of the ADSs by such Selling Shareholder or the deposit of the Ordinary Shares represented by the ADSs by such Selling Shareholder with the Depositary under the Deposit Agreement, the issuance of the ADSs of such Selling Shareholder by the Depositary, and the delivery of the ADSs to or for the account of the Underwriters, (ii) the purchase from the Selling Shareholder of the ADSs and the initial resale and delivery of the ADSs of such Selling Shareholder to purchasers thereof by the Underwriters or (iii) the execution, delivery or performance of this Agreement, except that Cayman Islands and PRC stamp duty may be payable in the event that this Agreement is executed in or brought within the jurisdiction of the Cayman Islands or the PRC, as applicable.
(l) Such Selling Shareholder has not distributed or will not distribute, prior to the later of the Closing Date, the latest Option Closing Date and the completion of the Underwriters’ distribution of the ADSs, any offering material in connection with the offering and sale of the ADSs by such Selling Shareholder, including any free writing prospectus.
(m) Other than as disclosed in the Registration Statement, the Time of Sale Prospectus and the Prospectus, such Selling Shareholder does not have any registration or other similar rights to have any equity or debt securities registered for sale by the Company.
(n) Such Selling Shareholder does not have, or has waived prior to the date hereof, any preemptive right, co-sale right or right of first refusal or other similar right to purchase any of the ADSs that are to be sold by any other Selling Shareholder or the Ordinary Shares represented thereby to the Underwriters pursuant to this Agreement; and such Selling Shareholder does not own any warrants, options or similar rights to acquire, and does not have any right or arrangement to acquire, any shares, right, warrants, options or other securities from the Company, except as disclosed in the Registration Statement, the Time of Sale Prospectus and the Prospectus.
(o) As of the date hereof, no affiliate of such Selling Shareholder (except for the other Selling Shareholder) is the registered or legal owner of any Ordinary Shares.
(p) None of such Selling Shareholder or its subsidiaries, or any director or officer thereof, or, to such Selling Shareholder’s knowledge, any employee, agent or representative thereof or their respective affiliates, is aware of or has taken or will take any action, directly or indirectly, that would result in a violation by such persons of the Foreign Corrupt Practice Act of 1977, as amended, and the rules of regulations thereunder, the U.K. Bribery Act 2010, as amended, and the rules and regulations thereunder, or any other applicable anti-corruption law 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 (including any Government Official) in order to influence official action, or to any person in violation of any applicable anti-corruption laws; and (ii) such Selling Shareholder and its subsidiaries and its and their affiliates have conducted their businesses in compliance with applicable anti-corruption laws and have instituted and maintained and will continue to maintain policies and procedures reasonably designed to promote and achieve compliance with such laws and with the representations and warranties contained herein.
(q) The operations of such Selling Shareholder and its subsidiaries are and have been conducted at all times in material compliance with all applicable Anti-Money Laundering Laws, and no action, suit or proceeding by or before any court or governmental or regulatory agency, authority or body or any arbitrator involving such Selling Shareholder or any of its subsidiaries with respect to the Anti-Money Laundering Laws is pending or, to the best knowledge of such Selling Shareholder, threatened.
(i) Neither such Selling Shareholder nor any of its subsidiaries, nor any director, officer thereof, nor, to the knowledge of such Selling Shareholder, any employee, agent, affiliate or representative of such Selling Shareholder or any of its subsidiaries, is or undertakes any business with a Person that is, or is owned or controlled by one or more Persons that are:
(A) subject to or the target of any Sanctions, including without limitation individuals or entities named on OFAC’s Specially Designated Nationals and Blocked Persons List, Foreign Sanctions Evaders List, and Sectoral Sanctions Identifications List, or
(B) located, organized or resident in a Sanctioned Country.
(ii) Such Selling Shareholder and its subsidiaries 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 dealings, activities or business in, with or relating to any country, territory or Person 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, such Selling Shareholder and its subsidiaries have not knowingly engaged in, are not now knowingly engaged in, and will not engage in, any dealings or transactions with any Person, or in any country or territory, that at the time of the dealing or transaction is or was the subject of Sanctions.
(iv) No investigation, inquiry, action or suit or proceeding by or before any Governmental Entity, involving any actual or alleged violations of any Sanctions by such Selling Shareholder or its subsidiaries, is pending, or to the knowledge of such Selling Shareholder, threatened.
Appears in 1 contract
Samples: Underwriting Agreement (Atour Lifestyle Holdings LTD)
Representations and Warranties of the Selling Shareholders. Each of the Selling Shareholders, severally and not jointly, Shareholder represents and warrants to and agrees with, each of the Underwriters Underwriter that:
(a) Such Selling Shareholder, at Shareholder is the First Closing Date, will have good and marketable title to lawful owner of the Shares set forth in Schedule II to be sold by such Selling ShareholderShareholder pursuant to this Agreement and has, and on the Closing Date will have, good and clear title to such Shares, free and clear of any all restrictions on transfer, liens, encumbrances, security interests, equities and claims whatsoever.
(other than as imposed b) The Shares to be sold by the Securities Act or this Agreement)such Selling Shareholder have been duly authorized and are validly issued, fully paid and non-assessable.
(c) Such Selling Shareholder has, and on the Closing Date will have, full legal right, power and authority authority, and all authorization and approval required by law, to effect enter into this Agreement, the sale Custody Agreement signed by such Selling Shareholder and delivery U.S. Stock Transfer Corporation, as Custodian, relating to the deposit of the Shares to be sold by such Selling Shareholder (the "CUSTODY AGREEMENT") and the Power of Attorney of such Shares; Selling Shareholder appointing certain individuals as such Selling Shareholder's attorneys-in-fact (the "ATTORNEYS") to the extent set forth therein, relating to the transactions contemplated hereby and upon by the Registration Statement and the Custody Agreement (the "POWER OF ATTORNEY") and to sell, assign, transfer and deliver the Shares to be sold by such Selling Shareholder in the manner provided herein and therein.
(d) This Agreement has been duly authorized, executed and delivered by or on behalf of such Selling Shareholder.
(e) The Custody Agreement of such Selling Shareholder has been duly authorized, executed and delivered by such Selling Shareholder and is a valid and binding agreement of such Selling Shareholder, enforceable in accordance with its terms.
(f) The Power of Attorney of such Selling Shareholder has been duly authorized, executed and delivered by such Selling Shareholder and is a valid and binding instrument of such Selling Shareholder, enforceable in accordance with its terms, and, pursuant to such Power of Attorney, such Selling Shareholder has, among other things, authorized the Attorneys, or any one of them, to execute and deliver on such Selling Shareholder's behalf this Agreement and any other document that they, or any one of them, may deem necessary or desirable in connection with the transactions contemplated hereby and thereby and to deliver the Shares to be sold by such Selling Shareholder pursuant to this Agreement.
(g) Upon delivery of and payment for the Shares to be sold by such Selling Shareholder pursuant to this Agreement, good and marketable clear title theretoto such Shares will pass to the Underwriters, free and clear of any all restrictions on transfer, liens, encumbrances, security interests, equities and claims, of any kind, will be transferred to the Underwritersclaims whatsoever.
(b) Such Selling Shareholder has duly executed and delivered the Custody Agreement and Power of Attorney in the form previously delivered to the Representatives, appointing the persons named therein, and each of them as such Selling Shareholder's attorney-in-fact (the "Attorney-in-Fact") and as custodian (the "Custodian"). The Attorney-in-Fact is authorized to execute, deliver and perform this Agreement on behalf of such Selling Shareholder, to deliver the Shares to be sold by such Selling Shareholder hereunder, to accept payment therefor, and otherwise to act on behalf of such Selling Shareholder in connection with this Agreement, including payment from the Offering proceeds of expenses incurred on behalf of such Selling Shareholder. Certificates, in suitable form for transfer by delivery or accompanied by duly executed instruments of transfer or assignment in blank, representing the Shares to be sold by such Selling Shareholder hereunder have been deposited with the Custodian pursuant to the Custody Agreement and Power of Attorney for the purpose of delivery pursuant to this Agreement. Such Selling Shareholder agrees that the shares of Common Stock represented by the certificates on deposit with the Custodian are subject to the interest of the Underwriters hereunder, that the arrangements made for such custody and the appointment of the Attorney-in-Fact are to that extent irrevocable, and that the obligations of such Selling Shareholder hereunder shall not be terminated except as provided in this Agreement and the Custody Agreement and Power of Attorney. If such Selling Shareholder should die or become incapacitated, or if any other event should occur, before the delivery of the Shares of such Selling Shareholder hereunder, the certificates for such Shares deposited with the Custodian shall be delivered by the Custodian in accordance with the terms and conditions of this Agreement as if such death, incapacity or other event had not occurred, regardless of whether the Custodian or the Attorney-in-Fact shall have received notice thereof.
(c) Such Selling Shareholder, acting through his duly authorized Attorney-in-Fact, has duly executed and delivered this Agreement and the Custody Agreement and Power of Attorney; this Agreement constitutes a legal, valid and binding obligation of such Selling Shareholder, all authorizations and consents necessary for the execution and delivery of this Agreement and the Custody Agreement and Power of Attorney on behalf of such Selling Shareholder and for the sale and delivery of the Shares to be sold by such Selling Shareholder hereunder have been given, except as may be required by the Securities Act or state securities laws; and such Selling Shareholder has the legal capacity and full right, power and authority to execute this Agreement and the Custody Agreement and Power of Attorney.
(dh) The execution, delivery and performance of this Agreement and the Custody Agreement and Power of Attorney of such Selling Shareholder by or on behalf of such Selling Shareholder, the compliance by such Selling Shareholder with all the provisions hereof and thereof and the consummation of the transactions contemplated hereby and thereby by such Selling Shareholder will not result in a breach (i) require any consent, approval, authorization or violation other order of, or conflict qualification with, any court or governmental body or agency (except such as may be required under applicable federal, state or foreign securities laws), (ii) conflict with or constitute a breach of any of the terms or provisions of, or constitute a default by under, the organizational documents of such Selling Shareholder, if such Selling Shareholder underis not an individual, or any indenture, mortgage, deed of trust, trust (constructive or other), loan agreement, leasemortgage, franchise, license lease or other agreement or instrument to which such Selling Shareholder is a party or any of his or its properties is bound, or any statute, judgment, decree, order, rule or regulation of any court or governmental agency or body applicable to by which such Selling Shareholder or any property of hissuch Selling Shareholder is bound or (iii) violate or conflict with any applicable law or any rule, her regulation, judgment, order or its propertiesdecree of any court or any governmental body or agency having jurisdiction over such Selling Shareholder or any property of such Selling Shareholder.
(ei) Such Selling Shareholder has not distributed nor, other than as permitted by the Securities Act and the Rules and Regulations, will distribute any prospectus or other offering material in connection with the offer and sale of the Shares other than any Preliminary Prospectus filed with the Commission or the Final Prospectus or other material permitted by the Securities Act.
(f) Such Selling Shareholder has reviewed and is familiar with the Registration Statement and the Preliminary Prospectus. To the knowledge of such Selling Shareholder, the Preliminary Prospectus does representations and warranties of the Company contained in Section 6 hereof are true and correct and (ii) such parts of the Registration Statement under the caption "Principal and Selling Shareholders" which specifically relate to such Selling Shareholder do not include an 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, in the light of the circumstances under which they were made, not misleading.
(j) At any time during the period described in Section 5(d), if there is any change in the information referred to in Section 7(i), such Selling Shareholder will immediately notify you of such change.
(k) Each certificate signed by or on behalf of such Selling Shareholder and delivered to the Underwriters or counsel for the Underwriters shall be deemed to be a representation and warranty by such Selling Shareholder to the Underwriters as to the matters covered thereby.
Appears in 1 contract
Samples: Underwriting Agreement (Sm&a Corp)
Representations and Warranties of the Selling Shareholders. Each of the Selling Shareholders, severally and not jointly, Shareholders represents and warrants to to, and agrees with, each of the several Underwriters that:
(ai) Such Selling Shareholder, at the First Closing Date, will have good and marketable title to the Shares set forth in Schedule II to be sold by such Selling Shareholder, free and clear of any liens, encumbrances, equities and claims (other than as imposed by the Securities Act or this Agreement), and full right, power and authority to effect the sale and delivery of such Shares; and upon the delivery of and payment for the Shares to be sold by such Selling Shareholder pursuant to this Agreement, good and marketable title thereto, free and clear of any liens, encumbrances, equities and claims, of any kind, will be transferred to the Underwriters.
(b) Such Selling Shareholder has duly executed and delivered the a Custody Agreement and Power of Attorney (the "Custody Agreement"), in the form previously heretofore delivered to the Representatives, appointing the persons named therein, and each of them either Xxxxx Xxxxxx or Xxxxxxxxxxx Xxxxx as such Selling Shareholder's attorneyattorneys-in-fact (the "AttorneyAttorneys-in-Fact") ), and appointing Xxxxx Xxxxxx as custodian (the "Custodian"). The AttorneyAttorneys-in-Fact is are authorized to execute, deliver and perform the Custody Agreement and this Agreement on behalf of such Selling Shareholder, including, without limitation, the authority to deliver determine the Shares purchase price to be sold by such paid to each Selling Shareholder hereunder, to accept payment therefor, and otherwise to act on behalf by the Underwriters as set forth in Section 2 of such Selling Shareholder in connection with this Agreement, including payment from the Offering proceeds of expenses incurred on behalf of such Selling Shareholder. Certificates, Certificates in suitable negotiable form for transfer by delivery or accompanied by duly executed instruments of transfer or assignment in blank, representing the Shares to be sold by such each Selling Shareholder hereunder have been deposited with the Custody Agreement with the Custodian. Certificates in negotiable form representing the Shares to be sold by each Selling Shareholder hereunder have been deposited with the Custodian pursuant to the Custody Agreement and Power of Attorney for the purpose of delivery pursuant to this Agreement. Such Selling Shareholder agrees that the shares of Common Stock Shares represented by the certificates on deposit with the Custodian are subject to the interest interests of the Underwriters hereunder, that the arrangements made for such custody and the appointment of the AttorneyAttorneys-in-Fact are to that extent irrevocable, and that the obligations of such Selling Shareholder hereunder shall not be terminated terminated, except as provided in this Agreement and Agreement, by any act of such Selling Shareholder, by operation of law or otherwise, whether by the Custody Agreement and Power dissolution, reorganization, death or incapacity of Attorney. If such Selling Shareholder should die or become incapacitated, or if the occurrence of any other event. If any such dissolution, reorganization, death, incapacity or other such event should occur, occur before the delivery of the Shares of such to be sold by the affected Selling Shareholder hereunder, the and certificates for such Shares deposited with the Custodian shall be delivered by the Custodian in accordance with the terms and conditions of this Agreement Agreement, as if such dissolution, reorganization, death, incapacity incapacity, or other event had not occurred, regardless of whether or not the Custodian or the AttorneyAttorneys-in-Fact shall have received notice thereof.;
(cii) Such such Selling ShareholderShareholder has all requisite right, acting through his duly authorized Attorney-in-Factpower and authority to enter into this Agreement, has duly executed the Power of Attorney and delivered the Custody Agreement, and to sell, transfer and deliver the Shares to be sold by such Selling Shareholder hereunder, and this Agreement Agreement, the Power of Attorney and the Custody Agreement have been duly authorized, executed and Power of Attorney; this Agreement constitutes a delivered by such Selling Shareholder and constitute the legal, valid and binding obligation obligations of such Selling Shareholder enforceable in accordance with their respective terms;
(iii) the execution, delivery and performance, and the consummation of the transactions contemplated hereby and by the Prospectus, the Power of Attorney and the Custody Agreement do not and shall not, with or without the giving of notice or lapse of time or both, (A) conflict with any term or provision of such Selling Shareholder's charter, bylaws or other organic or governing documents, if applicable, (B) conflict with or result in a breach or a violation of any of the terms or provisions of, or constitute a default under, any indenture, mortgage or other agreement or instrument to which such Selling Shareholder is a party or by which such Selling Shareholder or any of his, her or its Shares is bound, or (C) violate any existing, applicable law, rule, regulation, judgment, order or decree of any government, governmental instrumentality or court, domestic or foreign, having jurisdiction over such Selling Shareholder or any of his, her or its Shares;
(iv) all authorizations authorizations, approvals and consents necessary for the valid execution and delivery by such Selling Shareholder of this Agreement Agreement, the Power of Attorney and the Custody Agreement have been obtained and Power of Attorney on behalf of such Selling Shareholder are in full force and for effect, and the sale and delivery of the Shares to be sold by such Selling Shareholder hereunder have been given(other than, except at the time of the execution hereof, the issuance of the order of the Commission declaring the Registration Statement effective and such authorizations, approvals or consents as may be required necessary under the state or foreign securities or Blue Sky laws and the Bylaws, rules and pronouncements of the NASD), have been obtained and are in full force and effect;
(v) such Selling Shareholder now is, and on the Closing Date and any Option Closing Date will be, the lawful owner of the Shares to be sold by such Selling Shareholder pursuant to this Agreement. On the Securities Act Closing Date and any Option Closing Date, such Selling Shareholder will have good and marketable title to such Shares, free and clear of all liens, encumbrances, security interests or state securities laws; other restrictions (other than those created under the Custody Agreement). Upon proper delivery of, and payment for, such Shares as provided herein, the Underwriters will acquire good and marketable title thereto, free and clear of all liens, encumbrances, security interests and other restrictions and defects whatsoever;
(vi) such Selling Shareholder has examined the legal capacity and full right, power and authority to execute this Agreement Primary Registration Statement and the Custody Agreement and Power of Attorney.
(d) The performance of this Agreement Prospectus and the Custody Agreement and Power of Attorney and the consummation of the transactions contemplated hereby and thereby by such Selling Shareholder will not result in a breach or violation of, or conflict with, any of the terms or provisions of, or constitute a default by such Selling Shareholder under, any indenture, mortgage, deed of trust, trust (constructive or other), loan agreement, lease, franchise, license or other agreement or instrument to which such Selling Shareholder or any of his or its properties is bound, or any statute, judgment, decree, order, rule or regulation of any court or governmental agency or body applicable information relating to such Selling Shareholder or any of hisset forth therein and, her or its properties.
(e) Such Selling Shareholder has not distributed noras to such information, other than as permitted by neither the Securities Act and the Rules and Regulations, will distribute any prospectus or other offering material in connection with the offer and sale of the Shares other than any Preliminary Prospectus filed with the Commission or the Final Prospectus or other material permitted by the Securities Act.
(f) Such Selling Shareholder has reviewed and is familiar with the Primary Registration Statement and nor the Preliminary Prospectus. To the knowledge of such Selling Shareholder, the Preliminary Prospectus does not include an contains any untrue statement of a material fact or omit omits to state a any material fact required to be stated therein or necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading;
(vii) such Selling Shareholder has not incurred any liability for any finder's fee or similar payment in connection with the sale of such Selling Shareholder's Shares hereunder; and
(viii) such Selling Shareholder has not distributed and will not distribute any offering material in connection with the offering and sale of the Shares other than the Registration Statements, a Preliminary Prospectus, the Prospectus and other material, if any, permitted by the Act and the Regulations. Neither such Selling Shareholder nor any affiliate of such Selling Shareholder has taken or shall take any action designed, or that might be reasonably expected, to cause or result in stabilization or manipulation of the price of the Shares.
Appears in 1 contract
Representations and Warranties of the Selling Shareholders. Each of the Selling ShareholdersShareholder represents, severally warrants and not jointly, represents and warrants covenants to and agrees with, each of the Underwriters thatUnderwriter as follows:
(a) Such This Agreement has been duly and validly authorized by or on behalf of such Selling Shareholder and when executed and delivered will constitute a valid and binding agreement of such Selling Shareholder, at enforceable against such Selling Shareholder in accordance with its terms, except as such enforceability may be limited by the First Closing DateEnforceability Exceptions.
(b) Each of the (i) Custody Agreement signed by such Selling Shareholder and Xxxxxxxx Xxxxxxxx & Xxxxxx P.C., will have good and marketable title as custodian (the "Custodian"), relating to the deposit of the Option Shares set forth in Schedule II to be sold by such Selling Shareholder (the "Custody Agreement") and (ii) Power of Attorney appointing certain individuals named therein as such Selling Shareholder's attorneys-in-fact (each, an "Attorney-in-Fact") to the extent set forth therein relating to the transactions contemplated hereby and by the Prospectus (the "Power of Attorney"), of such Selling Shareholder has been duly and validly authorized, executed and delivered by such Selling Shareholder and is a valid and binding agreement of such Selling Shareholder, free and clear of any liensenforceable against such Selling Shareholder in accordance with its terms, encumbrances, equities and claims (other than except as imposed such enforceability may be limited by the Securities Act or this Agreement)Enforceability Exceptions.
(c) Such Selling Shareholder has, and full righton the Option Closing Date (as defined in Section 4(c) below) will have, power good and authority valid title to effect all of the sale and delivery of such Shares; and upon the delivery of and payment for the Option Shares to that may be sold by such Selling Shareholder pursuant to this AgreementAgreement on such date and the legal right and power, and all authorizations and approvals required by law to enter into this Agreement and such Selling Shareholder's Custody Agreement and Power of Attorney, to sell, transfer and deliver all of the Option Shares that may be sold by such Selling Shareholder pursuant to this Agreement and to comply with its other obligations hereunder and thereunder.
(d) Delivery of the Option Shares that are sold by such Selling Shareholder pursuant to this Agreement will pass good and marketable valid title theretoto such Option Shares, free and clear of any lienssecurity interest, encumbrancesmortgage, equities and claimspledge, of any kindlien, will be transferred to the Underwritersencumbrance or other claim.
(be) Such The execution and delivery by such Selling Shareholder has duly executed of, and delivered the performance by such Selling Shareholder of its obligations under, this Agreement, the Custody Agreement and the Power of Attorney in the form previously delivered to the Representatives, appointing the persons named therein, and each of them as such Selling Shareholder's attorney-in-fact (the "Attorney-in-Fact") and as custodian (the "Custodian"). The Attorney-in-Fact is authorized to execute, deliver and perform this Agreement on behalf of such Selling Shareholder, to deliver the Shares to be sold by such Selling Shareholder hereunder, to accept payment therefor, and otherwise to act on behalf of such Selling Shareholder in connection with this Agreement, including payment from the Offering proceeds of expenses incurred on behalf of such Selling Shareholder. Certificates, in suitable form for transfer by delivery or accompanied by duly executed instruments of transfer or assignment in blank, representing the Shares to be sold by such Selling Shareholder hereunder have been deposited with the Custodian pursuant to the Custody Agreement and Power of Attorney for the purpose of delivery pursuant to this Agreement. Such Selling Shareholder agrees that the shares of Common Stock represented by the certificates on deposit with the Custodian are subject to the interest of the Underwriters hereunder, that the arrangements made for such custody and the appointment of the Attorney-in-Fact are to that extent irrevocable, and that the obligations of such Selling Shareholder hereunder shall not be terminated except as provided in this Agreement and the Custody Agreement and Power of Attorney. If such Selling Shareholder should die or become incapacitated, or if any other event should occur, before the delivery of the Shares of such Selling Shareholder hereunder, the certificates for such Shares deposited with the Custodian shall be delivered by the Custodian in accordance with the terms and conditions of this Agreement as if such death, incapacity or other event had not occurred, regardless of whether the Custodian or the Attorney-in-Fact shall have received notice thereof.
(c) Such Selling Shareholder, acting through his duly authorized Attorney-in-Fact, has duly executed and delivered this Agreement and the Custody Agreement and Power of Attorney; this Agreement constitutes a legal, valid and binding obligation of such Selling Shareholder, all authorizations and consents necessary for the execution and delivery of this Agreement and the Custody Agreement and Power of Attorney on behalf of such Selling Shareholder and for the sale and delivery of the Shares to be sold by such Selling Shareholder hereunder have been given, except as may be required by the Securities Act or state securities laws; and such Selling Shareholder has the legal capacity and full right, power and authority to execute this Agreement and the Custody Agreement and Power of Attorney.
(d) The performance of this Agreement and the Custody Agreement and Power of Attorney and the consummation of the transactions contemplated hereby and thereby by such Selling Shareholder will not contravene or conflict with, result in a breach or violation of, or conflict with, any of the terms or provisions of, or constitute a default by such Selling Shareholder under, or require the consent of any indenture, mortgage, deed of trust, trust (constructive or other), loan agreement, lease, franchise, license or other party to any agreement or instrument to which such Selling Shareholder is a party or by which it is bound or under which it is entitled to any right or benefit, any provision of applicable law or any of his or its properties is bound, or any statute, judgment, decree, order, rule decree or regulation of any court or governmental agency or body applicable to such Selling Shareholder of any court, regulatory body, administrative agency, governmental body or arbitrator having jurisdiction over such Selling Shareholder. No consent, approval, authorization or other order of, or registration or filing with, any of hiscourt or other governmental authority or agency, her or its properties.
(e) Such is required for the consummation by such Selling Shareholder has not distributed nor, other than as permitted by the Securities Act and the Rules and Regulations, will distribute any prospectus or other offering material in connection with the offer and sale of the Shares other than any Preliminary Prospectus filed with transactions contemplated in this Agreement, except as may be required and as have been obtained under the Commission Act, applicable state securities or blue sky laws and from the Final Prospectus or other material permitted by the Securities ActNASD.
(f) Such Selling Shareholder has reviewed and does not have any registration or other similar rights to have any equity or debt securities registered for sale by the Company under the Registration Statement or included in the offering contemplated by this Agreement, except for such rights as are being exercised in the offering contemplated by this Agreement or such rights as have been duly waived.
(g) No consent, approval or waiver is familiar required under any instrument or agreement to which such 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 offering, sale or purchase by the Underwriters of any of the Option Shares which may be sold by such Selling Shareholder under this Agreement or the consummation by such Selling Shareholder of any of the other transactions contemplated hereby.
(h) All information furnished by or on behalf of such Selling Shareholder in writing expressly for use in the Registration Statement and the Preliminary Prospectus. To the knowledge of such Selling ShareholderProspectus is, the Preliminary Prospectus and on each Closing Date (as defined in Section 4(c) below) will be, true, correct, and complete in all material respects, and does not include an not, and on each Closing Date (as defined in Section 4(c) below) will not, contain any untrue statement of a material fact or omit to state a any material fact necessary in order to make such information not misleading. Such Selling Shareholder confirms as accurate the statements therein, number of shares of Common Stock set forth opposite such Selling Shareholder's name in the light Prospectus under the caption "Selling Stockholders" (both prior to and after giving effect to the sale of the Option Shares).
(i) Such Selling Shareholder has not taken and will not take, directly or indirectly, any action designed to or that might be reasonably expected to cause or result in stabilization or manipulation of the price of the Common Stock to facilitate the sale or resale of the Shares.
(j) Such Selling Shareholder has no reason to believe that the representations and warranties of the Company contained in Section 2 hereof are not true and correct, is familiar with the Registration Statement and the Prospectus and has no knowledge of any material fact, condition or information not disclosed in the Registration Statement or the Prospectus, and is not prompted to sell shares of Common Stock by any information concerning the Company that is not set forth in the Registration Statement and the Prospectus.
(k) Such Selling Shareholder has not at any time (i) made any contributions to any candidate for political office in violation of law, or failed to disclose fully any such contributions in violation of law, (ii) made any payment to any state, federal or foreign governmental officer or official, or any other person charged with similar public or quasi-public duties, other than payments required or not prohibited by law or (iii) made any payment of funds or received or retained any funds in violation of any law, rule or regulation and under circumstances under which they were maderequiring the disclosure of such payment, not misleadingreceipt or retention of funds in the Prospectus. Any certificate signed by or on behalf of any Selling Shareholder and delivered to the Underwriters or to counsel for the Underwriters shall be deemed to be a representation and warranty by such Selling Shareholder to each Underwriter as to the matters covered thereby.
Appears in 1 contract
Samples: Underwriting Agreement (Streamedia Communications Inc)
Representations and Warranties of the Selling Shareholders. Each of the Selling ShareholdersShareholder, severally and not jointly, represents and warrants to and agrees with, each of the Underwriters Underwriter that:
(a) Such such Selling Shareholder, Shareholder at the First Closing Date, will have good and marketable title to the Shares set forth in Schedule II to be sold by such Selling Shareholder, free and clear time of delivery of any liensAdditional Shares will be, encumbrances, equities and claims (other than as imposed by the Securities Act or this Agreement), and full right, power and authority to effect lawful owner of the sale and delivery number of such Shares; and upon the delivery of and payment for the Additional Shares to be sold by such Selling Shareholder pursuant to this Agreement, good Agreement and marketable at the time of delivery thereof will have valid title thereto, free and clear to such Additional Shares. Assuming that neither UBS nor Jefferies nor any Underwriter has notice of any liens, encumbrances, equities and claims, of any kind, will be transferred adverse claims with respect to the Underwriters.
(b) Such Selling Shareholder has duly executed and delivered the Custody Agreement and Power of Attorney in the form previously delivered to the Representatives, appointing the persons named therein, and each of them as such Selling Shareholder's attorney-in-fact (the "Attorney-in-Fact") and as custodian (the "Custodian"). The Attorney-in-Fact is authorized to execute, deliver and perform this Agreement on behalf of such Selling Shareholder, to deliver the Additional Shares to be sold by such Selling Shareholder hereunder, then, upon delivery to accept UBS or Jefferies of the certificate(s) evidencing such Additional Shares indorsed to UBS or Jefferies or indorsed in blank by an effective indorsement in return for payment thereforfor such Additional Shares, UBS or Jefferies, as the case may be, will acquire such certificate (and otherwise to act the Additional Shares represented thereby) free of any adverse claims under Section 8-303 of the Uniform Commercial Code as in effect on behalf the date hereof in the State of New York;
(b) such Selling Shareholder has been duly incorporated and is validly existing as a company in connection good standing under the laws of its jurisdiction (as set forth opposite its name on Schedule B), with this Agreement, including payment from the Offering proceeds of expenses incurred on behalf of such Selling Shareholder. Certificates, in suitable form for transfer by delivery or accompanied by duly executed instruments of transfer or assignment in blank, representing the Shares full corporate power and authority to be sold by such Selling Shareholder hereunder have been deposited with the Custodian pursuant to the Custody Agreement execute and Power of Attorney for the purpose of delivery pursuant to this Agreement. Such Selling Shareholder agrees that the shares of Common Stock represented by the certificates on deposit with the Custodian are subject to the interest of the Underwriters hereunder, that the arrangements made for such custody and the appointment of the Attorney-in-Fact are to that extent irrevocable, and that the obligations of such Selling Shareholder hereunder shall not be terminated except as provided in deliver this Agreement and the Custody Agreement to issue, sell and Power of Attorney. If such Selling Shareholder should die or become incapacitated, or if any other event should occur, before the delivery of deliver the Shares of such Selling Shareholder hereunder, the certificates for such Shares deposited with the Custodian shall be delivered by the Custodian in accordance with the terms and conditions of this Agreement as if such death, incapacity or other event had not occurred, regardless of whether the Custodian or the Attorney-in-Fact shall have received notice thereof.contemplated herein;
(c) Such Selling Shareholder, acting through his duly authorized Attorney-in-Fact, this Agreement has been duly executed and delivered by such Selling Shareholder;
(d) the execution, delivery and performance of this Agreement and the Custody Agreement and Power of Attorney; this Agreement constitutes a legal, valid and binding obligation of by such Selling Shareholder, all authorizations and consents necessary for the execution and delivery of this Agreement and the Custody Agreement and Power of Attorney on behalf of such Selling Shareholder and for the sale and delivery of the Shares to be sold by such Selling Shareholder hereunder have been given, except as may be required and the consummation by the Securities Act or state securities laws; and such Selling Shareholder has the legal capacity and full right, power and authority to execute this Agreement and the Custody Agreement and Power of Attorney.
(d) The performance of this Agreement and the Custody Agreement and Power of Attorney and the consummation of the transactions contemplated hereby and thereby by such Selling Shareholder will not conflict with, result in a any breach or violation of, or conflict with, any of the terms or provisions of, or constitute a default by under (nor constitute any event which with notice, lapse of time or both would result in any breach or violation of or constitute a default under) the memorandum of association or bye-laws of such Selling Shareholder underShareholder, or any indenture, mortgage, deed of trust, trust (constructive bank loan or other)credit agreement or other evidence of indebtedness, loan agreementor any license, lease, franchise, license contract or other agreement or instrument to which such Selling Shareholder is a party or by which any of them or any of his their respective properties may be bound or its properties is boundaffected, or any statutefederal, judgmentstate, local or foreign law, regulation or rule or any decree, order, rule judgment or regulation of any court or governmental agency or body order applicable to such Selling Shareholder or any of his, her or its properties.Shareholder;
(e) Such Selling Shareholder has not distributed norno approval, other than as permitted by the Securities Act and the Rules and Regulationsauthorization, will distribute consent or order of or filing with any prospectus federal, state, local or other offering material foreign governmental or regulatory commission, board, body, authority or agency is required in connection with the offer and sale of the Additional Shares by such Selling Shareholder or the consummation by such Selling Shareholder of the transactions contemplated hereby other than registration of the Shares under the Act, which has been or will be effected, the consent of the Bermuda Monetary Authority, which has been obtained, and any Preliminary Prospectus filed with necessary qualification under the Commission securities or blue sky laws of the Final Prospectus or other material permitted various jurisdictions in which the Shares are being offered by the Securities Act.Underwriters or under the rules and regulations of the NASD; and
(f) Such Selling Shareholder has reviewed and is familiar with the Registration Statement and the Preliminary Prospectus. To the knowledge of such Selling Shareholderwhen it became effective did not and, the Preliminary Prospectus does as amended or supplemented, if applicable, will not include contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary in order to make the statements thereintherein not misleading; provided, however, that the representations and warranties set forth in this paragraph are limited to statements or omissions made in reliance upon information relating to such Selling Shareholder furnished to the Company in writing by such Selling Shareholder expressly for use in the light of Registration Statement or the circumstances under which they were made, not misleadingProspectus.
Appears in 1 contract
