Representations and Warranties of the Selling Stockholder. The Selling Stockholder represents and warrants to and agrees with each of the Underwriters that: (a) This Agreement has been duly authorized, executed and delivered by or on behalf of the Selling Stockholder. (b) The execution, delivery and performance by the Selling Stockholder of this Agreement will not (i) conflict with or result in a breach or violation of any of the terms or provisions of, or constitute a default under any indenture, mortgage, deed of trust, loan agreement or other agreement or instrument to which the Selling Stockholder is a party or by which the Selling Stockholder is bound, (ii) result in any violation of the provisions of the charter or by-laws or similar organizational documents of the Selling Stockholder or (iii) result in the violation of any law or statute or any judgment, order, rule or regulation of any court or arbitrator or governmental or regulatory authority, except, in the case of clauses (i) and (iii) above, for any such conflict, breach, violation or default that would not materially and adversely affect the sale of the Shares and the consummation of any other of the transactions herein contemplated. (c) No consent, approval, authorization, order, registration or qualification of or with any court or arbitrator or governmental or regulatory authority is required for the execution, delivery and performance by the Selling Stockholder of this Agreement, except such as may be required for the registration of the Shares under the Securities Act and such consents, approvals, authorizations, orders and registrations or qualifications as have been obtained or may be required by FINRA and under applicable state securities laws and foreign securities laws in connection with the purchase and distribution of the Shares by the Underwriters. (d) The Selling Stockholder has, and on the Closing Date will have, valid title to, or a valid “security entitlement” within the meaning of Section 8-501 of the New York Uniform Commercial Code in respect of, the Shares to be sold by the Selling Stockholder free and clear of all security interests, claims, liens, equities or other encumbrances and the legal right and power, and all authorization and approval required by law, to enter into this Agreement and to sell, transfer and deliver the Shares to be sold by the Selling Stockholder or a security entitlement in respect of such Shares. (e) Upon payment for the Shares to be sold by such Selling Stockholder pursuant to this Agreement, delivery of such Shares, as directed by the Underwriters, to Cede & Co. (“Cede”) or such other nominee as may be designated by the Depository Trust Company (“DTC”), registration of such Shares in the name of Cede or such other nominee and the crediting of such Shares on the books of DTC to securities accounts of the Underwriters (assuming that neither DTC nor any such Underwriter has notice of any adverse claim (within the meaning of Section 8-105 of the New York Uniform Commercial Code (the “UCC”)) to such Shares), (A) DTC shall be a “protected purchaser” of such Shares within the meaning of Section 8-303 of the UCC, (B) under Section 8-501 of the UCC, the Underwriters will acquire a valid security entitlement in respect of such Shares and (C) no action based on any “adverse claim”, within the meaning of Section 8-102 of the UCC, to such Shares may be asserted against the Underwriters with respect to such security entitlement; for purposes of this representation, the Selling Stockholder may assume that when such payment, delivery and crediting occur, (x) such Shares will have been registered in the name of Cede or another nominee designated by DTC, in each case on the Company’s share registry in accordance with its certificate of incorporation, bylaws and applicable law, (y) DTC will be registered as a “clearing corporation” within the meaning of Section 8-102 of the UCC and (z) appropriate entries to the accounts of the several Underwriters on the records of DTC will have been made pursuant to the UCC. (f) The Selling Stockholder has no reason to believe that the representations and warranties of the Company contained in Section 1 are not true and correct, is familiar with the Registration Statement, the Time of Sale Prospectus and the Prospectus and has no knowledge of any material fact, condition or information not disclosed in the Time of Sale Prospectus or the Prospectus that has had, or may have, a material adverse effect on the Company and its subsidiaries, taken as a whole. The Selling Stockholder does not possess any material non-public information concerning the Company or its subsidiaries which is not set forth in the Time of Sale Prospectus. (i) Solely to the extent that any statements in, or omissions from, the Registration Statement are made in reliance upon and in conformity with information furnished to the Company by the Selling Stockholder expressly for use therein, 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) solely to the extent that any statements in, or omissions from, the Time of Sale Prospectus are made in reliance upon and in conformity with information furnished to the Company by the Selling Stockholder expressly for use therein, 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, the Time of Sale Prospectus, as then amended or supplemented by the Company, if applicable, will not, contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading, and (iii) solely to the extent that any statements in, or omissions from, the Prospectus are made in reliance upon and in conformity with information furnished to the Company by the Selling Stockholder expressly for use therein, 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) 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.
Appears in 3 contracts
Samples: Underwriting Agreement (ING U.S., Inc.), Underwriting Agreement (ING U.S., Inc.), Underwriting Agreement (ING U.S., Inc.)
Representations and Warranties of the Selling Stockholder. The Selling Stockholder represents and warrants to and agrees with each of the Underwriters that:
(a) This Agreement has been duly authorized, executed and delivered by or on behalf of the Selling Stockholder.
(b) The execution, delivery and performance by the Selling Stockholder of this Agreement will not (i) conflict with or result in a breach or violation of any of the terms or provisions of, or constitute a default under any indenture, mortgage, deed of trust, loan agreement or other agreement or instrument to which the Selling Stockholder is a party or by which the Selling Stockholder is bound, (ii) result in any violation of the provisions of the charter or by-laws or similar organizational documents of the Selling Stockholder or (iii) result in the violation of any law or statute or any judgment, order, rule or regulation of any court or arbitrator or governmental or regulatory authority, except, in the case of clauses (i) and (iii) above, for any such conflict, breach, violation or default that would not materially and adversely affect the sale of the Shares and the consummation of any other of the transactions herein contemplated.
(c) No consent, approval, authorization, order, registration or qualification of or with any court or arbitrator or governmental or regulatory authority is required for the execution, delivery and performance by the Selling Stockholder of this Agreement, except such as may be required for the registration of the Shares under the Securities Act and such consents, approvals, authorizations, orders and registrations or qualifications as have been obtained or may be required by FINRA and under applicable state securities laws and foreign securities laws in connection with the purchase and distribution of the Shares by the Underwriters.
(d) The Selling Stockholder has, and on the Closing Date will have, valid title to, or a valid “security entitlement” within the meaning of Section 8-501 of the New York Uniform Commercial Code in respect of, the Shares to be sold by the Selling Stockholder free and clear of all security interests, claims, liens, equities or other encumbrances and the legal right and power, and all authorization and approval required by law, to enter into this Agreement and to sell, transfer and deliver the Shares to be sold by the Selling Stockholder or a security entitlement in respect of such Shares.
(e) Upon payment for the Shares to be sold by such Selling Stockholder pursuant to this Agreement, delivery of such Shares, as directed by the Underwriters, to Cede & Co. (“Cede”) or such other nominee as may be designated by the Depository Trust Company (“DTC”), registration of such Shares in the name of Cede or such other nominee and the crediting of such Shares on the books of DTC to securities accounts of the Underwriters (assuming that neither DTC nor any such Underwriter has notice of any adverse claim (within the meaning of Section 8-105 of the New York Uniform Commercial Code (the “UCC”)) to such Shares), (A) DTC shall be a “protected purchaser” of such Shares within the meaning of Section 8-303 of the UCC, (B) under Section 8-501 of the UCC, the Underwriters will acquire a valid security entitlement in respect of such Shares and (C) no action based on any “adverse claim”, within the meaning of Section 8-102 of the UCC, to such Shares may be asserted against the Underwriters with respect to such security entitlement; for purposes of this representation, the Selling Stockholder may assume that when such payment, delivery and crediting occur, (x) such Shares will have been registered in the name of Cede or another nominee designated by DTC, in each case on the Company’s share registry in accordance with its certificate of incorporation, bylaws and applicable law, (y) DTC will be registered as a “clearing corporation” within the meaning of Section 8-102 of the UCC and (z) appropriate entries to the accounts of the several Underwriters on the records of DTC will have been made pursuant to the UCC.
(f) The Selling Stockholder has no reason to believe that the representations and warranties of the Company contained in Section 1 are not true and correct, is familiar with the Registration Statement, the Time of Sale Prospectus and the Prospectus and has no knowledge of any material fact, condition or information not disclosed in the Time of Sale Prospectus or the Prospectus that has had, or may have, a material adverse effect on the Company and its subsidiaries, taken as a whole. The Selling Stockholder does not possess any material non-public information concerning the Company or its subsidiaries which is not set forth in the Time of Sale Prospectus.
(i) Solely to the extent that any statements in, or omissions from, the Registration Statement are made in reliance upon and in conformity with information furnished to the Company by the Selling Stockholder expressly for use therein, each part of the Registration Statement, when it such part became effective, did not contain and, each such part, as amended or supplemented, if applicable, will not contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading, (ii) solely to the extent that any statement in, or omissions from, the Registration Statement are made in reliance upon and in conformity with information furnished to the Company by the Selling Stockholder expressly for use therein, the Registration Statement, as of the date hereof, does not contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading, (iii) solely to the extent that any statements in, or omissions from, the Time of Sale Prospectus are made in reliance upon and in conformity with information furnished to the Company by the Selling Stockholder expressly for use therein, 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, the Time of Sale Prospectus, as then amended or supplemented by the Company, if applicable, will not, contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading, and (iiiiv) solely to the extent that any statements in, or omissions from, the Prospectus are made in reliance upon and in conformity with information furnished to the Company by the Selling Stockholder expressly for use therein, 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) do not apply to statements or omissions in the Registration Statement 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 you expressly for use therein.
Appears in 3 contracts
Samples: Underwriting Agreement (Voya Financial, Inc.), Underwriting Agreement (Voya Financial, Inc.), Underwriting Agreement (Voya Financial, Inc.)
Representations and Warranties of the Selling Stockholder. The Selling Stockholder hereby represents and warrants to and agrees with each of the Underwriters thatUnderwriter as follows:
(a) This Agreement has been duly authorized, executed and delivered by or on behalf of the Selling Stockholder and, assuming due authorization, execution and delivery by the other parties hereto, constitutes the valid and legally binding agreement of the Selling Stockholder, enforceable against the Selling Stockholder in accordance with its terms, except (i) 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 and (ii) to the extent that rights to indemnity or contribution under this Agreement may be limited by federal and state securities laws or the public policy underlying such laws.
(b) The execution, execution and delivery and performance by the Selling Stockholder of this Agreement will not and the performance by the Selling Stockholder of its obligations under this Agreement (i) conflict with will not contravene any provision of applicable law, statute, regulation or result in a breach filing or violation of any of the terms or provisions of, or constitute a default under any indenture, mortgage, deed of trust, loan agreement or other instrument binding upon the Selling Stockholder or any judgment, order or decree of any governmental body, agency or court having jurisdiction over the Selling Stockholder, (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, (iii) does not and will not violate any statute, law, regulation or filing or judgment, injunction, order or decree applicable to the Selling Stockholder or (iv) will not result in the creation or imposition of any lien, charge or encumbrance upon any property or assets of the Selling Stockholder pursuant to the terms of any agreement or instrument to which the Selling Stockholder is a party or by which the Selling Stockholder is bound, (ii) result in may be bound or to which any violation of the provisions of the charter property or by-laws or similar organizational documents assets of the Selling Stockholder or (iii) result in the violation of any law or statute or any judgment, order, rule or regulation of any court or arbitrator or governmental or regulatory authority, except, in the case of clauses (i) and (iii) above, for any such conflict, breach, violation or default that would not materially and adversely affect the sale of the Shares and the consummation of any other of the transactions herein contemplatedis subject.
(c) No consent, approval, authorization, order, registration or qualification of or with any court or arbitrator or governmental or regulatory authority is required for the execution, delivery and performance by the Selling Stockholder of this Agreement, except such as may be required for the registration of the Shares under the Securities Act and such consents, approvals, authorizations, orders and registrations or qualifications as have been obtained or may be required by FINRA and under applicable state securities laws and foreign securities laws in connection with the purchase and distribution of the Shares by the Underwriters.
(d) The Selling Stockholder has, and on the Closing Date will have, valid and marketable title to, or a valid “security entitlement” within the meaning of Section 8-501 of the New York Uniform Commercial Code in respect of, to the Shares to be sold by the Selling Stockholder on such Closing Date free and clear of all any lien, claim, security interests, claims, liens, equities interest or other encumbrances encumbrance, including, without limitation, any restriction on transfer, except as otherwise described in the Registration Statement and the legal right and powerProspectus.
(d) The Selling Stockholder has, and all authorization on each Closing Date will have, full legal fight, power and authorization, and any approval required by law, to enter into this Agreement and to sell, assign, transfer and deliver the Shares to be sold by the Selling Stockholder or a security entitlement on such Closing Date in respect of such Sharesthe manner provided by this Agreement.
(e) Upon delivery of and payment for the Shares to be sold by such the Selling Stockholder pursuant to this Agreement, delivery of such Shares, as directed by the Underwriters, to Cede & Co. (“Cede”) or such other nominee as may be designated by the Depository Trust Company (“DTC”), registration of such Shares in the name of Cede or such other nominee and the crediting of such Shares on the books of DTC to securities accounts of the Underwriters (assuming that neither DTC nor any such Underwriter has notice of any adverse claim (within the meaning of Section 8-105 of the New York Uniform Commercial Code (the “UCC”)) to such Shares), (A) DTC shall be a “protected purchaser” of such Shares within the meaning of Section 8-303 of the UCC, (B) under Section 8-501 of the UCC, the several Underwriters will acquire a receive valid security entitlement in respect of such Shares and (C) no action based on any “adverse claim”, within the meaning of Section 8-102 of the UCC, marketable title to such Shares may be asserted against the Underwriters with respect to such free and clear of any lien, claim, security entitlement; for purposes of this representation, the Selling Stockholder may assume that when such payment, delivery and crediting occur, (x) such Shares will have been registered in the name of Cede interest or another nominee designated by DTC, in each case on the Company’s share registry in accordance with its certificate of incorporation, bylaws and applicable law, (y) DTC will be registered as a “clearing corporation” within the meaning of Section 8-102 of the UCC and (z) appropriate entries to the accounts of the several Underwriters on the records of DTC will have been made pursuant to the UCCother encumbrance.
(f) The Selling Stockholder has no reason to believe that On the representations and warranties of the Company contained in Section 1 are not true and correct, is familiar with the Registration Statement, the Time of Sale Prospectus and the Prospectus and has no knowledge of any material fact, condition or information not disclosed in the Time of Sale Prospectus or the Prospectus that has had, or may have, a material adverse effect on the Company and its subsidiaries, taken as a whole. The Selling Stockholder does not possess any material non-public information concerning the Company or its subsidiaries which is not set forth in the Time of Sale Prospectus.
(i) Solely to the extent that any statements in, or omissions fromEffective Date, the Registration Statement are made in reliance upon complied, and in conformity with information furnished on the date of the Prospectus, the date any post-effective amendment to the Company by Registration Statement becomes effective, the Selling Stockholder expressly for use thereindate any supplement or amendment to the Prospectus is filed with the Commission and each Closing Date, the Registration StatementStatement and the Prospectus (and any amendment thereof or supplement thereto) will comply, in all material respects, with the applicable provisions of the Securities Act and the Rules and the rules and regulations of the Commission thereunder. The Registration Statement did not, as of the Effective Date, contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary in order to make the statements therein not misleading; and on the other dates referred to above, neither the Registration Statement nor the Prospectus, nor any amendment thereof or supplement thereto, contained or will contain any untrue statement of a material fact or omitted or will omit to state any material fact required to be stated therein or necessary in order to make the statements therein not misleading. When any related preliminary prospectus was first filed with the Commission (whether filed as part of the Registration Statement or any amendment thereto or pursuant to Rule 424(a) of the Rules) and when it became effectiveany amendment thereof or supplement thereto was first filed with the Commission, did not contain and, such preliminary prospectus as amended or supplemented, if applicable, will supplemented complied in all material respects with the applicable provisions of the Securities Act and the Rules and did not contain any untrue statement of a material fact or omit to state a any material fact required to be stated therein or necessary in order to make the statements therein not misleading. Notwithstanding the foregoing, (iinone of the representations and warranties in this paragraph 5(f) solely shall apply to the extent that any statements in, or omissions from, the Time of Sale Prospectus are made in reliance upon and in conformity with information furnished to the Company by the Selling Stockholder expressly for use therein, 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, the Time of Sale Prospectus, as then amended or supplemented by the Company, if applicable, will not, contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading, and (iii) solely to the extent that any statements in, or omissions from, the Prospectus are made in reliance upon and in conformity with information furnished to the Company by the Selling Stockholder expressly for use therein, 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) do not apply to statements or omissions in the Registration Statement or the Prospectus based upon made in reliance upon, and in conformity with the Underwriters' Information.
(g) The sale of Shares by the Selling Stockholder pursuant to this Agreement is not prompted by the Selling Stockholder's knowledge of any material information relating concerning the Company which is not set forth in the Prospectus.
(h) The Selling Stockholder 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 Underwriter furnished security of the Company to facilitate the sale or resale of the Shares.
(i) The Selling Stockholder has no actual knowledge that any representation or warranty of the Company set forth in Section 4 above is untrue or inaccurate in any material respect.
(j) The Selling Stockholder has filed all Federal, state, local and foreign tax returns which are required to be filed by it through the date hereof, or has received extensions thereof, and has paid all taxes shown on such returns and all assessments received by it to the Company in writing by such Underwriter through you expressly for use thereinextent that the same are material and have become due, and there are no tax audits or investigations pending, which if adversely determined would have a Material Adverse Effect; nor are there any material proposed additional tax assessments against the Selling Stockholder.
Appears in 3 contracts
Samples: Underwriting Agreement (Netsilicon Inc), Underwriting Agreement (Netsilicon Inc), Underwriting Agreement (Netsilicon Inc)
Representations and Warranties of the Selling Stockholder. The Selling Stockholder represents and warrants to and agrees with each of the Underwriters Underwriter that:
(a) This Agreement has been duly authorized, executed and delivered by or on behalf of the Selling Stockholder.
(b) The executionexecution and delivery by the Selling Stockholder of, delivery and the performance by the Selling Stockholder of its obligations under, this Agreement Agreement, will not contravene (i) conflict with or result in a breach or violation any provision of any of the terms or provisions of, or constitute a default under any indenture, mortgage, deed of trust, loan agreement or other agreement or instrument to which the Selling Stockholder is a party or by which the Selling Stockholder is boundapplicable law, (ii) result in any violation the certificate of formation or operating agreement of the provisions of the charter Selling Stockholder, (iii) any agreement or by-laws or similar organizational documents of other instrument binding upon the Selling Stockholder or (iiiiv) result in the violation of any law or statute or any judgment, order, rule order or regulation decree of any governmental body, agency or court or arbitrator or governmental or regulatory authorityhaving jurisdiction over the Selling Stockholder, except, except in the case of clauses (i) and (iii) above, for any such conflict, breach, violation or default that as would not materially and adversely affect individually or in the sale aggregate have a material adverse effect on the ability of the Shares and the consummation of any other of such Selling Stockholder to consummate the transactions herein contemplated.
(c) No contemplated by this Agreement, and no consent, approval, authorizationauthorization or order of, order, registration or qualification of with, any governmental body or with any court or arbitrator or governmental or regulatory authority agency is required for the execution, delivery and performance by the Selling Stockholder of its obligations under this Agreement, except such as may be required for the registration of the Shares under the Securities Act and such consents, approvals, authorizations, orders and registrations or qualifications as have been obtained or may be required by FINRA and to be obtained or made under applicable state securities or “blue sky” laws or by the rules and foreign securities laws regulations of the NASD in connection with the purchase and distribution sale of the Shares by the UnderwritersUnderwriter.
(dc) The Selling Stockholder has, and on the Closing Date will have, valid title to, or a valid “security entitlement” within the meaning of Section 8-501 of the New York Uniform Commercial Code in respect of, the Shares to be sold by the Selling Stockholder free and clear of all security interests, claims, liens, equities or other encumbrances and the legal right and power, and all authorization and approval required by law, to enter into this Agreement and to sell, transfer and deliver the Shares to be sold by the Selling Stockholder or a security entitlement in respect of such the Shares.
(ed) Upon payment for the Shares to be sold by such the Selling Stockholder pursuant to this Agreement, delivery of such the Shares, as directed by the UnderwritersUnderwriter, to Cede & Co. (“Cede”) or such other nominee as may be designated by the The Depository Trust Company (“DTC”), registration of such the Shares in the name of Cede or such other nominee and the crediting of such the Shares on the books of DTC to securities accounts of the Underwriters Underwriter (assuming that neither DTC nor any such the Underwriter has notice of any adverse claim (within the meaning of Section 8-105 of the New York Uniform Commercial Code (the “UCC”)) to such the Shares), (A) DTC shall be a “protected purchaser” of such the Shares within the meaning of Section 8-303 of the UCC, (B) under Section 8-501 of the UCC, the Underwriters Underwriter will acquire a valid security entitlement in respect of such the Shares and (C) no action based on any “adverse claim”, within the meaning of Section 8-102 of the UCC, to such the Shares may be asserted against the Underwriters Underwriter with respect to such security entitlement; for purposes of this representation, the Selling Stockholder may assume that when such payment, delivery and crediting occur, (x) such the Shares will have been registered in the name of Cede or another nominee designated by DTC, in each case on the Company’s share registry in accordance with its certificate of incorporation, bylaws and applicable law, (y) DTC will be registered as a “clearing corporation” within the meaning of Section 8-102 of the UCC and (z) appropriate entries to the accounts of the several Underwriters Underwriter on the records of DTC will have been made pursuant to the UCC.
(fe) The Selling Stockholder has no reason is not prompted to believe that the representations and warranties of the Company contained in Section 1 are not true and correct, is familiar with the Registration Statement, the Time of Sale Prospectus and the Prospectus and has no knowledge of sell its Shares pursuant to this Agreement by any material fact, condition or information not disclosed in the Time of Sale Prospectus or the Prospectus that has had, or may have, a material adverse effect on the Company and its subsidiaries, taken as a whole. The Selling Stockholder does not possess any material non-public information concerning the Company or its subsidiaries which is that has not set forth in the Time of Sale Prospectusbeen publicly disclosed.
(i) Solely to the extent that any statements in, or omissions from, the Registration Statement are made in reliance upon and in conformity with information furnished to the Company by the Selling Stockholder expressly for use therein, Each part of 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) solely to the extent that any statements in, or omissions from, the Time of Sale Prospectus are made in reliance upon and in conformity with information furnished to the Company by the Selling Stockholder expressly for use therein, the Time of Sale Prospectus does not, and at the time of each sale of the Shares in connection with the offering when and at the Prospectus is not yet available to prospective purchasersClosing Date (as defined in Section 5 of this agreement), the Time of Sale Prospectus, as then amended or supplemented by the Company, if applicable, will not, contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading, and (iii) solely to the extent that any statements in, or omissions from, the Prospectus are made in reliance upon and in conformity with information furnished to the Company by the Selling Stockholder expressly for use therein, 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 ; provided that each of the representations and warranties set forth in clauses (i) to (iii) of this paragraph 2(gParagraph 2(f) do not apply is limited solely to statements or omissions made in the Registration Statement or the Prospectus based reliance upon information relating to any Underwriter the Selling Stockholder furnished to the Company in writing by such Underwriter through you the Selling Stockholder expressly for use thereinin the Registration Statement, the Time of Sale Prospectus, the Prospectus or any amendments or supplements thereto. Any certificate signed by any officer of the Selling Stockholder and delivered to the Underwriter or counsel for the Underwriter in connection with the offering of the Shares shall be deemed a representation and warranty by the Selling Stockholder, as to matters covered thereby, to the Underwriter.
Appears in 2 contracts
Samples: Underwriting Agreement (Dresser-Rand Group Inc.), Underwriting Agreement (Dresser-Rand Group Inc.)
Representations and Warranties of the Selling Stockholder. The Selling Stockholder represents and warrants to and agrees with each of the Underwriters that:
(a) This Agreement has been duly authorized, executed and delivered by or on behalf of the Selling Stockholder.
(b) The executionexecution and delivery by the Selling Stockholder of, delivery and the performance by the Selling Stockholder of its obligations under, this Agreement and the Custody Agreement signed by the Selling Stockholder and Computershare Inc., as custodian, relating to the deposit of the Shares to be sold by the Selling Stockholder (the “Custody Agreement”) will not contravene (i) conflict with or result in a breach or violation any provision of any of the terms or provisions of, or constitute a default under any indenture, mortgage, deed of trust, loan agreement or other agreement or instrument to which the Selling Stockholder is a party or by which the Selling Stockholder is boundapplicable law, (ii) result in any violation the limited partnership agreement of the provisions of the charter Selling Stockholder, (iii) any agreement or by-laws or similar organizational documents of other instrument binding upon the Selling Stockholder or (iiiiv) result in the violation of any law or statute or any judgment, order, rule order or regulation decree of any governmental body, agency or court or arbitrator or governmental or regulatory authorityhaving jurisdiction over the Selling Stockholder, except, except in the case of clauses (i) and ), (iii) above, for any such conflict, breach, violation or default that (iv) as would not materially and adversely affect individually or in the sale aggregate have a material adverse effect on the ability of the Shares and the consummation of any other of Selling Stockholder to consummate the transactions herein contemplated.
(c) No contemplated by this Agreement, and no consent, approval, authorizationauthorization or order of, order, registration or qualification of with, any governmental body, agency or with any court or arbitrator or governmental or regulatory authority is required for the execution, delivery and performance by the Selling Stockholder of its obligations under this Agreement or the Custody Agreement, except such as may be required for the registration of the Shares under the Securities Act, the Exchange Act or the rules and regulations thereunder, under the rules and regulations of FINRA or such consents, approvals, authorizations, orders and registrations or qualifications as have been obtained or may be required by FINRA and under applicable state the securities or Blue Sky laws and foreign securities laws of the various states in connection with the purchase offer and distribution sale of the Shares by the UnderwritersShares.
(dc) The Selling Stockholder has, and on the Closing Date and the Option Closing Date will have, valid title to, or a valid “security entitlement” within the meaning of Section 8-501 of the New York Uniform Commercial Code in respect of, the Shares to be sold by the Selling Stockholder free and clear of all security interests, claims, liens, equities or other encumbrances and the legal right and power, and all authorization and approval required by law, to enter into this Agreement and the Custody Agreement and to sell, transfer and deliver the Shares to be sold by the Selling Stockholder or a security entitlement in respect of such Shares.
(d) The Custody Agreement has been duly authorized, executed and delivered by the Selling Stockholder and is a valid and binding agreement of the Selling Stockholder.
(e) Upon payment for the Shares to be sold by such the Selling Stockholder pursuant to this Agreement, delivery of such Shares, as directed by the Underwriters, to Cede & Co. (“Cede”) or such other nominee as may be designated by the Depository Trust Company (“DTC”), registration of such Shares in the name of Cede or such other nominee and the crediting of such Shares on the books of DTC to securities accounts of the Underwriters (assuming that neither DTC nor any such Underwriter has notice of any adverse claim (within the meaning of Section 8-105 of the New York Uniform Commercial Code (the “UCC”)) to such Shares), (Ai) DTC shall be a “protected purchaser” of such Shares within the meaning of Section 8-303 of the UCC, (Bii) under Section 8-501 of the UCC, the Underwriters will acquire a valid security entitlement in respect of such Shares and (Ciii) no action based on any “adverse claim”, ,” within the meaning of Section 8-102 of the UCC, to such Shares may be validly asserted against the Underwriters with respect to such security entitlement; for purposes of this representation, the Selling Stockholder may assume that when such payment, delivery and crediting occur, (xA) such Shares will have been registered in the name of Cede or another nominee designated by DTC, in each case on the Company’s share registry in accordance with its certificate of incorporation, bylaws and applicable law, (yB) DTC will be registered as a “clearing corporation” within the meaning of Section 8-102 of the UCC and (zC) appropriate entries to the accounts of the several Underwriters on the records of DTC will have been made pursuant to the UCC.
(f) The Selling Stockholder has no reason delivered to believe that the representations and warranties Representatives an executed lock-up agreement in substantially the form attached hereto as Exhibit A (the “Lock-up Agreement”).
(g) As of the Company contained in Section 1 are not true date of hereof and correctas of the Closing Date and the Option Closing Date, is familiar with as the Registration Statementcase may be, the Time of Sale Prospectus and the Prospectus and has no knowledge of any material fact, condition or information not disclosed in the Time of Sale Prospectus or the Prospectus that has had, or may have, a material adverse effect on the Company and its subsidiaries, taken as a whole. The Selling Stockholder does is not, and will not possess be, prompted by any material non-public information concerning the Company or its subsidiaries which is not set forth in the Registration Statement, the Time of Sale ProspectusProspectus or the Prospectus to sell its Shares pursuant to this Agreement.
(i) Solely to the extent that any statements in, or omissions from, the Registration Statement are made in reliance upon and in conformity with information furnished to the Company by the Selling Stockholder expressly for use therein, the The Registration Statement, when it became effective, did not contain and, as amended or supplemented, if applicable, will not contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading, (ii) solely to the extent that any statements in, or omissions from, the Time of Sale Prospectus are made in reliance upon and in conformity with information furnished to the Company by the Selling Stockholder expressly for use therein, 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 purchaserspurchasers and at the Closing Date (as defined in Section 5), the Time of Sale Prospectus, as then amended or supplemented by the Company, if applicable, will not, contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading, and (iii) solely 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 extent that any statements in, or omissions from, the Prospectus are made in reliance upon and in conformity with information furnished to the Company by the Selling Stockholder expressly for use therein, in the Prospectus light of the circumstances under which they were made, not misleading and (iv) the Prospectus, as of its date and as of the Option Closing Date, does not contain and, as amended or supplemented, if applicable, will not as of the date of such amendment or supplement 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 this representation and warranty shall not apply to any statements or omissions made in reliance upon or in conformity with the Underwriter Information; provided, however, that such representations and warranties set forth in this paragraph 2(gSection 2(h) do not apply only to statements or omissions made in the Registration Statement or the Prospectus based reliance upon and in conformity with information relating to any Underwriter furnished to the Company in writing by such Underwriter through you the Selling Stockholder expressly for use thereinin the Registration Statement, the Time of Sale Prospectus or the Prospectus, it being understood and agreed that the only such information furnished by the Selling Stockholder consists only of (A) the legal name and address of the Selling Stockholder set forth in the footnote relating to the Selling Stockholder under the caption “Principal and Selling Stockholder” and (B) the number of Shares owned by the Selling Stockholder before and after the offering (excluding percentages) that appears in the table (and corresponding footnotes) under the caption “Principal and Selling Stockholder” (collectively, the “Selling Stockholder Information”).
(i) (i) None of the Selling Stockholder or any director or officer thereof, or, to the knowledge of the Selling Stockholder, any employee, agent, representative or affiliate thereof, is a person that is, or is owned or controlled by one or more persons that are:
(A) the subject of any Sanctions, or
(B) located, organized or resident in any Sanctioned Country.
(j) (i) The Selling Stockholder will not, directly or knowingly 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 any activities of or business with any person that, at the time of such funding, is the subject of Sanctions, or is in a country or territory, that, at the time of such funding, is a Sanctioned Country in violation of Sanctions; or
(B) in any other manner that will result in a violation by any person (including any person participating in the offering, whether as underwriter, advisor, investor or otherwise) of Sanctions.
(ii) Since April 24, 2019, the Selling Stockholder has not knowingly engaged in, is not now knowingly engaged in and will not knowingly engage in, any dealings or transactions in any Sanctioned Country or with any person that, at the time of the dealing or transaction, is or was the subject of Sanctions.
(iii) (A) None of the Selling Stockholder, any of its subsidiaries, any director or officer thereof, nor, to the knowledge of the Selling Stockholder, any employee, agent, representative or affiliate thereof has taken any action, directly or indirectly, that would result in a violation by such persons of the FCPA, the UK Bribery Act or any other applicable antibribery or anti-corruption law, (B) the Selling Stockholder and its subsidiaries and, to the knowledge of the Selling Stockholder, their affiliates have conducted their businesses in compliance with the FCPA, the UK Bribery Act or any other applicable anti-bribery or anti-corruption laws; and (C) neither the Selling Stockholder nor any of its subsidiaries will, directly or knowingly indirectly, use the proceeds of the offering in furtherance of an offer, payment, promise to pay, or authorization of the payment or giving of money, or anything else of value, to any person in violation of any applicable anti-corruption laws.
(iv) The operations of the Selling Stockholder and each of its subsidiaries are and have been conducted at all times in material compliance with all applicable Money Laundering Laws, and no action, suit or proceeding by or before any court or governmental agency, authority or body or any arbitrator involving the Selling Stockholder or any of its subsidiaries with respect to the Money Laundering Laws is pending or, to the knowledge of the Selling Stockholder, threatened.
(k) The Selling Stockholder represents and warrants that it is not (i) an employee benefit plan subject to Title I of ERISA, (ii) a plan or account subject to Section 4975 of the Internal Revenue Code of 1986, as amended or (iii) an entity deemed to hold “plan assets” of any such plan or account under Section 3(42) of ERISA, 29 C.F.R. 2510.3-101, or otherwise.
Appears in 2 contracts
Samples: Underwriting Agreement (Ingram Micro Holding Corp), Underwriting Agreement (Ingram Micro Holding Corp)
Representations and Warranties of the Selling Stockholder. (a) The Selling Stockholder represents and warrants to to, and agrees with each of with, the Underwriters thatUnderwriter as follows:
(ai) This Agreement has been duly authorized, executed and delivered by or on behalf of the Selling Stockholder.
(b) . The execution, delivery and performance by the Selling Stockholder of this Agreement and the consummation of the transactions herein contemplated will not (i) conflict with or result in a breach or violation of any of the terms or and provisions of, or constitute a default under under, any indenturestatute, mortgage, deed of trust, loan agreement or other agreement or instrument to which the Selling Stockholder is a party or by which the Selling Stockholder it is boundbound or to which any of its property is subject, (ii) result in or any violation order, rule, regulation or decree of the provisions of the charter any court or by-laws governmental agency or similar organizational documents of body having jurisdiction over the Selling Stockholder or (iii) result any of its properties, except for breaches, violations and defaults that individually or in the violation of any law or statute or any judgment, order, rule or regulation of any court or arbitrator or governmental or regulatory authority, except, in the case of clauses (i) and (iii) above, for any such conflict, breach, violation or default that aggregate would not materially reasonably be expected to have a material adverse effect upon the Selling Stockholder’s ability to perform its obligations under this Agreement. The execution, delivery and adversely affect performance by the sale Selling Stockholder of the Shares this Agreement and the consummation of any other by the Selling Stockholder of the transactions herein contemplated.
(c) contemplated will not result in a breach or violation of any of the terms and provisions of, or constitute a default under, the Selling Stockholder’s limited liability company agreement. No consent, approval, authorizationauthorization or order of, orderor filing with, registration or qualification of or with any court or arbitrator governmental agency or governmental or regulatory authority body is required for the execution, delivery and performance by the Selling Stockholder of this Agreement, except such as may be required Agreement or for the registration consummation by the Selling Stockholder of the Shares under transactions contemplated hereby, including the Securities Act and such consents, approvals, authorizations, orders and registrations or qualifications as have been obtained or may be required by FINRA and under applicable state securities laws and foreign securities laws in connection with the purchase and distribution sale of the Shares by the Underwriters.
(d) The Selling Stockholder hasStockholder, and on except as may be required under 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 ofSecurities Act, the Shares to be sold by Rules and Regulations, state securities or blue sky laws or FINRA rules; and the Selling Stockholder free has the power 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, authority to enter into this Agreement and to sell, transfer and deliver sell the Shares to be sold as contemplated by this Agreement.
(ii) On the Closing Date, the Selling Stockholder will be the record and beneficial owner of all of the Shares, free and clear of all liens, encumbrances, equities and claims and will have duly endorsed such Shares in blank or will have duly signed a security entitlement stock power assigning all right, title and interest to the Shares, with, if required, all signatures appropriately guaranteed by an eligible guarantor institution with membership in respect an approved medallion guaranty program pursuant to Rule 17Ad-15 under the Exchange Act.
(iii) The Selling Stockholder represents and warrants that it has not, without the prior written consent of such the Company and the Underwriter, prepared or had prepared on its behalf or used or referred to any “free writing prospectus” (as defined in Rule 405 of the Act) and further represents that it has not distributed and, without the prior written consent of the Company and the Underwriter, will not distribute any written materials in connection with the offer or sale of the Shares that could otherwise constitute a “free writing prospectus” (as defined in Rule 405 of the Act) required to be filed with the Commission or retained under Rule 433 of the Act.
(iv) The Selling Stockholder confirms as accurate the number of shares of Common Stock set forth opposite the Selling Stockholder’s name in the Time of Sale Disclosure Package and any Prospectus under the caption “Selling Stockholder” prior to giving effect to the sale of the Shares.
(ev) Upon payment for the Shares to be sold by such The Selling Stockholder pursuant 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 an offering contemplated by this Agreement, delivery of except for 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 rights that are being exercised in the name of Cede or such other nominee and the crediting of such Shares on the books of DTC to securities accounts of the Underwriters (assuming that neither DTC nor any such Underwriter has notice of any adverse claim (within the meaning of Section 8-105 of the New York Uniform Commercial Code (the “UCC”)) to such Shares), (A) DTC shall be a “protected purchaser” of such Shares within the meaning of Section 8-303 of the UCC, (B) under Section 8-501 of the UCC, the Underwriters will acquire a valid security entitlement in respect of such Shares and (C) no action based on any “adverse claim”, within the meaning of Section 8-102 of the UCC, to such Shares may be asserted against the Underwriters with respect to such security entitlement; for purposes of offering contemplated by this representation, the Selling Stockholder may assume that when such payment, delivery and crediting occur, (x) such Shares will have been registered in the name of Cede or another nominee designated by DTC, in each case on the Company’s share registry in accordance with its certificate of incorporation, bylaws and applicable law, (y) DTC will be registered as a “clearing corporation” within the meaning of Section 8-102 of the UCC and (z) appropriate entries to the accounts of the several Underwriters on the records of DTC will have been made pursuant to the UCCAgreement.
(fvi) The Selling Stockholder has no reason not taken and will not take, directly or indirectly, any action designed to, or that might be reasonably expected to believe that cause or result in stabilization or manipulation of the representations and warranties price of any security of the Company contained in Section 1 are not true and correct, is familiar with to facilitate the Registration Statement, sale or resale of the Time of Sale Prospectus and the Prospectus and has no knowledge of any material fact, condition or information not disclosed in the Time of Sale Prospectus or the Prospectus that has had, or may have, a material adverse effect on the Company and its subsidiaries, taken as a whole. Shares.
(vii) The Selling Stockholder does is not possess prompted to sell shares of Common Stock by any material non-public information concerning the Company or its subsidiaries which that is not set forth in the Time of Sale Prospectus.
(i) Solely to the extent that any statements in, or omissions from, the Registration Statement are made in reliance upon and in conformity with information furnished to the Company by the Selling Stockholder expressly for use therein, 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) solely to the extent that any statements in, or omissions from, the Time of Sale Prospectus are made in reliance upon Disclosure Package or a Prospectus.
(b) Any certificate signed by any officer of the Selling Stockholder and in conformity with information furnished delivered to the Company Underwriter or to the Underwriter’s counsel shall be deemed a representation and warranty by the Selling Stockholder expressly for use therein, 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, the Time of Sale Prospectus, as then amended or supplemented by the Company, if applicable, will not, contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading, and (iii) solely to the extent that any statements in, or omissions from, the Prospectus are made in reliance upon and in conformity with information furnished Underwriter as to the Company by the Selling Stockholder expressly for use therein, 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) 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 thereinmatters covered thereby.
Appears in 2 contracts
Samples: Underwriting Agreement (Kid Brands, Inc), Underwriting Agreement (D. E. Shaw Laminar Portfolios, L.L.C.)
Representations and Warranties of the Selling Stockholder. The Selling Stockholder represents and warrants to and agrees with each of the Underwriters that:
(a) The Selling Stockholder has been duly incorporated, is validly existing as a corporation in good standing under the laws of the State of Delaware and has the corporate power and authority to enter into and perform its obligations under this Agreement.
(b) This Agreement has been duly authorized, executed and delivered by or on behalf of the Selling Stockholder. The Reorganization has been duly authorized by all necessary corporate and stockholder action on the part of, as applicable, the Selling Stockholder.
(bc) The executionexecution and delivery by the Selling Stockholder of, delivery and the performance by the Selling Stockholder of its obligations under, this Agreement and the Reorganization Documents will not (i) conflict with or result in a breach or violation of any of the terms or provisions of, or constitute a default under any indenture, mortgage, deed of trust, loan agreement or other agreement or instrument to which the Selling Stockholder is a party or by which the Selling Stockholder is bound, (ii) result contravene in any violation material respect any provision of applicable law or the provisions certificate of the charter incorporation or by-laws or similar organizational documents of the Selling Stockholder or (iii) result in any agreement or other instrument binding upon the violation of any law or statute Selling Stockholder that is material to the Selling Stockholder or any judgment, order, rule order or regulation decree of any governmental body, agency or court or arbitrator or governmental or regulatory authorityhaving jurisdiction over the Selling Stockholder, except, in the case of clauses (i) and (iii) above, for any such conflict, breach, violation or default that would not materially and adversely affect the sale of the Shares and the consummation of any other of the transactions herein contemplated.
(c) No no consent, approval, authorizationauthorization or order of, order, registration or qualification of with, any governmental body or with any court or arbitrator or governmental or regulatory authority agency is required for the execution, delivery and performance by the Selling Stockholder of its obligations under this Agreement, except such as may be required for the registration of the Shares under the Securities Act and such consents, approvals, authorizations, orders and registrations or qualifications as have has been obtained or and as may be required by FINRA and under applicable state the securities or Blue Sky laws and foreign securities laws of the various states in connection with the purchase offer and distribution sale of the Shares by the UnderwritersShares.
(d) The Selling Stockholder has, and on the Closing Date will have, valid title to, or a valid “security entitlement” within the meaning of Section 8-501 of the New York Uniform Commercial Code (the “UCC”) in respect of, the Shares to be sold by the Selling Stockholder free and clear of all security interests, claims, liens, equities or other encumbrances and the legal right and power, and all authorization and approval required by law, to enter into this Agreement and to sell, transfer and deliver the Shares to be sold by the Selling Stockholder or a security entitlement in respect of such the Shares.
(e) Upon payment for the Shares to be sold by such the Selling Stockholder pursuant to this Agreement, delivery of such Shares, as directed by the Underwriters, to Cede & Co. (“Cede”) or such other nominee as may be designated by the Depository Trust Company (“DTC”), registration of such Shares in the name of Cede or such other nominee and as the crediting of such Shares on the books of DTC to securities accounts of the Underwriters (assuming that neither DTC nor any such Underwriter has notice of any adverse claim (within the meaning of Section 8-105 of the New York Uniform Commercial Code (the “UCC”)) UCC to such Shares), (A) DTC shall be a “protected purchaser” of such Shares within the meaning of Section 8-303 of the UCC, (B) under Section 8-501 of the UCC, the Underwriters will acquire a valid security entitlement in respect of such Shares and (C) no action based on any “adverse claim”, ” (within the meaning of Section 8-102 of the UCC, ) to such Shares may be asserted against the Underwriters with respect to such security entitlement; for purposes of this representation, the Selling Stockholder 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 by-laws and applicable law, (y) DTC will be registered as a “clearing corporation” within the meaning of Section 8-102 of the UCC and (z) appropriate entries to the accounts of the several Underwriters on the records of DTC will have been made pursuant to the UCC.
(f) The Selling Stockholder has no reason not taken and will not take, directly or indirectly, any action which is designed to believe that or which has constituted or which might reasonably be expected to cause or result in the representations and warranties stabilization or manipulation of the price of any security of the Company contained in Section 1 are not true and correct, is familiar with to facilitate the Registration Statement, sale or resale of the Time of Sale Prospectus and the Prospectus and has no knowledge of any material fact, condition or information not disclosed in the Time of Sale Prospectus or the Prospectus that has had, or may have, a material adverse effect on the Company and its subsidiaries, taken as a whole. The Selling Stockholder does not possess any material non-public information concerning the Company or its subsidiaries which is not set forth in the Time of Sale ProspectusShares.
(i) Solely to the extent that any statements in, or omissions from, the Registration Statement are made in reliance upon and in conformity with information furnished to the Company by the Selling Stockholder expressly for use therein, the The Registration Statement, when it became effective, did not contain and, as amended or supplemented, if applicable, will not not, as of the Closing Date, contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading, misleading and (ii) solely to the extent that any statements in, or omissions from, the Time of Sale Prospectus are made in reliance upon and in conformity with information furnished to the Company by the Selling Stockholder expressly for use therein, 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, the Time of Sale Prospectuscontain and, as then amended or supplemented by the Companysupplemented, if applicable, will notnot contain, contain as of the Closing Date, any untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading, and (iii) solely to the extent that any statements in, or omissions from, the Prospectus are made in reliance upon and in conformity with information furnished to the Company by the Selling Stockholder expressly for use therein, 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 ; provided that the representations and warranties set forth in this paragraph 2(g) do not apply are limited to statements or omissions in the Registration Statement or the Prospectus based upon information relating to any Underwriter the Selling Stockholder and General Electric Company furnished to the Company in writing by such Underwriter through you the Selling Stockholder expressly for use thereinin the Registration Statement, the Prospectus or any amendments or supplements thereto (such information collectively, the “Selling Stockholder Information”).
Appears in 2 contracts
Samples: Underwriting Agreement (Genworth Financial Inc), Underwriting Agreement (Genworth Financial Inc)
Representations and Warranties of the Selling Stockholder. The Selling Stockholder represents and warrants to and agrees with each of the Underwriters that:
(a) This Agreement has been duly authorized, executed and delivered by or on behalf of the Selling Stockholder.
(b) The executionexecution and delivery by the Selling Stockholder of, delivery and the performance by the Selling Stockholder of its obligations under this Agreement will not violate (i) conflict with or result in a breach or violation of any provision of the terms certificate of incorporation or provisions ofby-laws (or equivalent constituent documents) of the Selling Stockholder, or constitute a default under (ii) except in each case for violations that would not materially and adversely affect the consummation by the Selling Stockholder of the transactions contemplated by this Agreement, any indentureprovision of law applicable to the Selling Stockholder, mortgage, deed of trust, loan any agreement or other agreement instrument binding upon the Selling Stockholder or instrument any property of the Selling Stockholder or to which the Selling Stockholder is a party or by which the Selling Stockholder is bound, (ii) result in any violation of the provisions of the charter or by-laws or similar organizational documents of the Selling Stockholder or (iii) result in the violation of any law or statute or any judgment, order, rule order or regulation decree of any governmental body, agency or court or arbitrator or governmental or regulatory authority, except, in having jurisdiction over the case of clauses (i) Selling Stockholder; and (iii) above, for any such conflict, breach, violation or default that would not materially and adversely affect the sale of the Shares and the consummation of any other of the transactions herein contemplated.
(c) No no consent, approval, authorizationauthorization or order of, order, registration or qualification of with, any governmental body or with any court or arbitrator or governmental or regulatory authority agency is required for the execution, delivery and or performance of this Agreement by the Selling Stockholder of this AgreementStockholder, except such as may be required for (x) the registration of the Shares under the Securities Act Act, (y) the filing of any necessary amendment to any report on Schedule 13D or 13G relating to the Company filed by the Selling Stockholder and (z) such consents, approvals, authorizations, orders and registrations or qualifications as have been obtained or may be required by FINRA and under applicable state the securities or Blue Sky laws and foreign securities laws of the various states in connection with the purchase offer and distribution sale of the Shares by or the UnderwritersFederal Communications Commission, the Pennsylvania Public Utility Commission or any other governmental body or agency with regulatory control over the Company's industry.
(dc) The Selling Stockholder has, and on the Closing Date will have, valid title to, or a valid “security entitlement” within the meaning of Section 8-501 of the New York Uniform Commercial Code in respect of, the Shares to be sold by the Selling Stockholder 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, corporate power to enter into this Agreement and Agreement, to sell, transfer and deliver the Shares to be sold by the Selling Stockholder or a security entitlement in respect of such Sharesand perform its obligations under this Agreement.
(ed) Upon payment for The Selling Stockholder is the record owner of the Shares to be sold by such Selling Stockholder pursuant to this Agreement, delivery of such Shares, as directed by the Underwriters, to Cede & Co. (“Cede”) or such other nominee as may be designated by the Depository Trust Company (“DTC”), registration of such Shares in the name of Cede or such other nominee and the crediting of such Shares on the books of DTC to securities accounts of the Underwriters (assuming that neither DTC nor any such Underwriter has notice is not aware of any "adverse claim claims" (within the meaning of Section 8-105 of the New York Uniform Commercial Code as adopted by the State of New York (the “"UCC”")) to such Shares), (A) DTC shall be a “protected purchaser” of such Shares within the meaning of Section 8-303 of the UCC, (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 that may be asserted against the Underwriters Selling Stockholder with respect to such security entitlement; for purposes of this representation, the Selling Stockholder may assume that when such payment, delivery and crediting occur, (x) such Shares will have been registered in the name of Cede or another nominee designated by DTC, in each case on the Company’s share registry in accordance with its certificate of incorporation, bylaws and applicable law, (y) DTC will be registered as a “clearing corporation” within the meaning of Section 8-102 of the UCC and (z) appropriate entries to the accounts of the several Underwriters on the records of DTC will have been made pursuant to the UCCShares.
(fe) The Selling Stockholder has no reason to believe that the representations and warranties Each part of the Company contained in Section 1 are not true and correct, is familiar with the Registration Statement, the Time of Sale Prospectus and the Prospectus and has no knowledge of any material fact, condition or information not disclosed in the Time of Sale Prospectus or the Prospectus that has had, or may have, a material adverse effect on the Company and its subsidiaries, taken as a whole. The Selling Stockholder does not possess any material non-public information concerning the Company or its subsidiaries which is not set forth in the Time of Sale Prospectus.
(i) Solely to the extent that any statements in, or omissions from, the Registration Statement are made in reliance upon and in conformity with information furnished to the Company by the Selling Stockholder expressly for use therein, the Registration Statement, when it such part 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) solely to the extent that any statements in, or omissions from, the Time of Sale Prospectus are made in reliance upon misleading and in conformity with information furnished to the Company by the Selling Stockholder expressly for use therein, 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, the Time of Sale Prospectus, as then amended or supplemented by the Company, if applicable, will not, contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading, and (iii) solely to the extent that any statements in, or omissions from, the Prospectus are made in reliance upon and in conformity with information furnished to the Company by the Selling Stockholder expressly for use therein, 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) do not apply only to statements or omissions in the Registration Statement or the Prospectus based upon information relating to any Underwriter the Selling Stockholder furnished to the Company in writing by such Underwriter through you the Selling Stockholder expressly for use therein.
(f) The 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 any stabilization or manipulation of the price of any security of the Company to facilitate the sale of the Shares pursuant to the distribution contemplated by this Agreement and, other than as permitted by the Securities Act, the 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.
Appears in 2 contracts
Samples: Underwriting Agreement (Commonwealth Telephone Enterprises Inc /New/), Underwriting Agreement (Level 3 Delaware Holdings Inc)
Representations and Warranties of the Selling Stockholder. The Selling Stockholder represents and warrants to the Underwriter and agrees with each of the Underwriters Company that:
(a) This All consents, approvals, authorizations and orders necessary for the execution and delivery by the Selling Stockholder of this Agreement, and for the sale and delivery of the Shares to be sold by the Selling Stockholder hereunder, have been obtained; and the Selling Stockholder has full right, power and authority to enter into this Agreement and to sell, assign, transfer and deliver the Shares to be sold by the Selling Stockholder hereunder; this Agreement has been duly authorized, executed and delivered by or on behalf of the Selling Stockholder.
(b) The execution, delivery and performance by the Selling Stockholder of this Agreement Agreement, the sale of the Shares to be sold by the Selling Stockholder and the consummation by the Selling Stockholder of the transactions contemplated herein or therein will not (i) conflict with or result in a breach or violation of any of the terms or provisions of, or constitute a default under under, or result in the creation or imposition of any lien, charge or encumbrance upon any property or assets of the Selling Stockholder pursuant to, any indenture, mortgage, deed of trust, loan agreement or other agreement or instrument to which the Selling Stockholder is a party or by which the Selling Stockholder is boundbound or to which any of the property or assets of the Selling Stockholder is subject, (ii) result in any violation of the provisions of the charter or by-laws or similar organizational documents of the Selling Stockholder or (iii) result in the violation of any law or statute or any judgment, order, rule or regulation of any court or arbitrator or governmental or regulatory authorityagency, except, except in the case of clauses (i) and (iii) above, above for any such conflict, breach, violation or default that would not materially and adversely affect not, individually or in the sale of aggregate, have a material adverse effect on the Shares and the consummation of any other of Selling Stockholder’s ability to consummate the transactions herein contemplatedcontemplated by this Agreement.
(c) No consentThe Selling Stockholder has good and valid title to the Shares to be sold at the Closing Date or each Additional Closing Date, approvalas the case may be, authorization, order, registration or qualification of or with any court or arbitrator or governmental or regulatory authority is required for the execution, delivery and performance by the Selling Stockholder hereunder, free and clear of this Agreementall liens, except such encumbrances, equities or adverse claims; the Selling Stockholder will have, immediately prior to the Closing Date or each Additional Closing Date, as the case may be, good and valid title to the Shares to be required for sold at the registration Closing Date or each Additional Closing Date, as the case may be, by the Selling Stockholder, free and clear of all liens, encumbrances, equities or adverse claims; and, upon delivery of the certificates representing such Shares under and payment therefor pursuant hereto, good and valid title to such Shares, free and clear of all liens, encumbrances, equities or adverse claims, will pass to the Securities Act Underwriter. Citadel LLC and such consentsall affiliates thereof (other than individuals) that currently own Common Stock, approvals, authorizations, orders and registrations any of the Company’s Class A Senior Convertible Debentures due 2019 (the “Class A Debentures”) or qualifications as have been obtained or may be required by FINRA and under applicable state securities laws and foreign securities laws in connection any of the Company’s Class B Senior Convertible Debentures due 2019 (together with the purchase and distribution of Class A Debentures, the Shares by the Underwriters“Convertible Debentures”) are parties to a “lock up” agreement referred to in Section 8.
(d) The Selling Stockholder hashas not taken and will not take, and on the Closing Date will havedirectly or indirectly, valid title to, any action designed to or a valid “security entitlement” within the meaning of Section 8-501 that could reasonably be expected to cause or result in any stabilization or manipulation of the New York Uniform Commercial Code in respect of, price of the Shares to be sold by the Selling Stockholder free and clear of all security interests, claims, liens, equities or other encumbrances and the legal right and power, and all authorization and approval required by law, to enter into this Agreement and to sell, transfer and deliver the Shares to be sold by the Selling Stockholder or a security entitlement in respect of such Shares.
(e) Upon payment for the Shares to be sold by such Selling Stockholder pursuant to this AgreementThe Pricing Disclosure Package, delivery of such Shares, as directed by the Underwriters, to Cede & Co. (“Cede”) or such other nominee as may be designated by the Depository Trust Company (“DTC”), registration of such Shares in the name of Cede or such other nominee and the crediting of such Shares on the books of DTC to securities accounts of the Underwriters (assuming that neither DTC nor any such Underwriter has notice of any adverse claim (within the meaning of Section 8-105 of the New York Uniform Commercial Code (the “UCC”)) to such Shares), (A) DTC shall be a “protected purchaser” of such Shares within the meaning of Section 8-303 of the UCC, (B) under Section 8-501 of the UCC, the Underwriters will acquire a valid security entitlement in respect of such Shares and (C) no action based on any “adverse claim”, within the meaning of Section 8-102 of the UCC, to such Shares may be asserted against the Underwriters with respect to such security entitlement; for purposes of this representation, the Selling Stockholder may assume that when such payment, delivery and crediting occur, (x) such Shares will have been registered in the name of Cede or another nominee designated by DTC, in each case on the Company’s share registry in accordance with its certificate of incorporation, bylaws and applicable law, (y) DTC will be registered as a “clearing corporation” within the meaning of Section 8-102 of the UCC and (z) appropriate entries to the accounts of the several Underwriters on the records of DTC will have been made pursuant to the UCC.
(f) The Selling Stockholder has no reason to believe that the representations and warranties of the Company contained in Section 1 are not true and correct, is familiar with the Registration Statement, at the Time of Sale Prospectus did not, and at the Prospectus Closing Date and has no knowledge as of each Additional Closing Date, as the case may be, will not, contain any untrue statement of a material factfact or omit to state a material fact necessary in order to make the statements therein, condition or information not disclosed in the Time light of Sale Prospectus or the Prospectus circumstances under which they were made, not misleading; provided that has had, or may have, a material adverse effect on the Company and its subsidiaries, taken as a whole. The Selling Stockholder does not possess any material non-public information concerning the Company or its subsidiaries which is not set forth in the Time of Sale Prospectus.
(i) Solely makes no representation and warranty with respect to the extent that any statements in, or omissions from, the Registration Statement are other than statements made in reliance upon and in conformity with information relating to the Selling Stockholder furnished to the Company in writing by the Selling Stockholder expressly for use thereinin such Pricing Disclosure Package, it being understood and agreed that the only such information furnished by the Selling Stockholder consists of the information about the Selling Stockholder set forth in the “Selling Stockholder” section of the Preliminary Prospectus.
(f) Other than the Registration Statement, when it became effectivethe Preliminary Prospectus and the Prospectus, the Selling Stockholder (including its agents and representatives, other than the Underwriter in its capacity as such) has not made, used, prepared, authorized, approved or referred to and will not prepare, make, use, authorize, approve or refer to any Permitted Free Writing Prospectus, 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 documents listed on Annex B hereto, each electronic road show and any other written communications approved in writing in advance by the Company and the Underwriter.
(g) As of the applicable effective date of the Registration Statement and any post-effective amendment thereto, the Registration Statement and any such post-effective amendment complied and will comply in all material respects with the Securities Act, and did not contain and, as amended or supplemented, if applicable, and will not contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary in order to make the statements therein not misleading; and as of the date of the Prospectus and any amendment or supplement thereto and as of the Closing Date and as of each Additional Closing Date, (ii) solely to as the extent that any statements in, or omissions fromcase may be, the Time of Sale Prospectus are made in reliance upon and in conformity with information furnished to the Company by the Selling Stockholder expressly for use therein, the Time of Sale Prospectus does not, and at the time of each sale of the Shares in connection with the offering when the Prospectus is will not yet available to prospective purchasers, the Time of Sale Prospectus, as then amended or supplemented by the Company, if applicable, will not, contain any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading, ; provided that the Selling Stockholder makes no representation and (iii) solely warranty with respect to the extent that any statements in, or omissions from, the Prospectus are other than statements made in reliance upon and in conformity with information furnished relating to the Company by the Selling Stockholder expressly for use therein, 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) 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 the Selling Stockholder through the Underwriter through you expressly for use thereinin the Registration Statement, the Pricing Disclosure Package and the Prospectus and any amendment or supplement thereto, it being understood and agreed that the only such information furnished by the Selling Stockholder consists of the information about the Selling Stockholder set forth in the “Selling Stockholder” section of the Preliminary Prospectus.
Appears in 2 contracts
Samples: Underwriting Agreement (Citadel L P), Underwriting Agreement (E Trade Financial Corp)
Representations and Warranties of the Selling Stockholder. The Selling Stockholder represents and warrants to each Agent, on and agrees with as of each of the Underwriters Representation Date that:
(a) The Selling Stockholder has full right, power and authority to execute and deliver this Agreement and any Terms Agreement and perform its obligations hereunder or thereunder; and all action required to be taken for the due and proper authorization, execution and delivery by it of this Agreement and any Terms Agreement and the consummation by it of the transactions contemplated hereby and thereby has been duly and validly taken (or, in the case of any Terms Agreement, such action will have been duly and validly authorized).
(b) This Agreement has been been, and any Terms Agreement will have been, duly authorized, executed and delivered by or on behalf of the Selling Stockholder.
(bc) The execution, delivery and performance by the Selling Stockholder of this Agreement or any Terms Agreement, the sale of the Shares, the compliance by the Selling Stockholder with the terms hereof or of any Terms Agreement and the consummation of the transactions contemplated hereby or by any Terms Agreement will not (i) conflict with or result in a breach or violation of any of the terms or provisions of, or constitute a default under under, or result in the creation or imposition of any lien, charge or encumbrance upon any property or assets of the Selling Stockholder or any of its subsidiaries pursuant to, any indenture, mortgage, deed of trust, loan agreement or other agreement or instrument to which the Selling Stockholder or any of its subsidiaries is a party or by which the Selling Stockholder or any of its subsidiaries is boundbound or to which any of the property or assets of the Selling Stockholder or any of its subsidiaries is subject, (ii) result in any violation of the provisions of the charter certificate of formation or by-laws limited liability company agreement or similar organizational documents of the Selling Stockholder or (iii) result in the violation of any law or statute or any judgment, order, rule or regulation of any court or arbitrator or governmental or regulatory authority, except, in the case of clauses (i) and (iii) above, for any such conflict, breach, violation or default that would not materially and adversely affect the sale of the Shares and the consummation of any other of the transactions herein contemplated.
(cd) No consent, approval, authorization, order, registration or qualification of or with any court or arbitrator or governmental or regulatory authority is required for the execution, delivery and performance by the Selling Stockholder of this Agreement or any Terms Agreement, the sale of the Shares and compliance by the Selling Stockholder with the terms hereof or of any Terms Agreement and the consummation of the transactions contemplated hereby or by any Terms Agreement, except such as may be required for the registration of the Shares under the Securities Act those that have been obtained and such consents, approvals, authorizations, orders and registrations or qualifications as have been obtained or may be required by FINRA and under applicable state securities laws and foreign securities laws in connection with the purchase and distribution of the Shares by the Underwriterslaws.
(de) The At the time when the Company issues the Shares to the Selling Stockholder, the Selling Stockholder has, will have good and on the Closing Date will have, valid title to, or a valid “security entitlement” within the meaning of Section 8-501 of the New York Uniform Commercial Code in respect of, to the Shares to be sold by the Selling Stockholder hereunder or under any Terms Agreement, free and clear of all security interestsliens, claims, liensencumbrances, equities or other encumbrances adverse claims; and upon the legal right and powerdelivery of, and all authorization and approval required by lawagainst payment for, to enter into this Agreement and to sell, transfer and deliver the such Shares to be sold by the Selling Stockholder or a security entitlement in respect of such Shares.
(e) Upon payment for the Shares to be sold by such Selling Stockholder pursuant to this Agreement or any Terms Agreement, delivery of such Shares, as directed by the Underwriters, to Cede & Co. (“Cede”) or such other nominee as may be designated by the Depository Trust Company (“DTC”), registration of such Shares in the name of Cede or such other nominee and the crediting of such Shares on the books of DTC to securities accounts of the Underwriters (assuming that neither DTC nor any such Underwriter has notice of any adverse claim (within the meaning of Section 8-105 of the New York Uniform Commercial Code (the “UCC”)) to such Shares), (A) DTC shall be a “protected purchaser” of such Shares within the meaning of Section 8-303 of the UCC, (B) under Section 8-501 of the UCC, the Underwriters purchaser will acquire a valid security entitlement in respect good and marketable title thereto, free and clear of such Shares and (C) no action based on any “all liens, encumbrances, equities or adverse claim”, within the meaning of Section 8-102 of the UCC, to such Shares may be asserted against the Underwriters with respect to such security entitlement; for purposes of this representation, the Selling Stockholder may assume that when such payment, delivery and crediting occur, (x) such Shares will have been registered in the name of Cede or another nominee designated by DTC, in each case on the Company’s share registry in accordance with its certificate of incorporation, bylaws and applicable law, (y) DTC will be registered as a “clearing corporation” within the meaning of Section 8-102 of the UCC and (z) appropriate entries to the accounts of the several Underwriters on the records of DTC will have been made pursuant to the UCCclaims.
(f) The Selling Stockholder has no reason not taken, directly or indirectly, any action designed to believe or that the representations and warranties would reasonably be expected to cause or result in any stabilization or manipulation of the Company contained in Section 1 are not true and correct, is familiar with price of the Registration Statement, the Time of Sale Prospectus and the Prospectus and has no knowledge of any material fact, condition or information not disclosed in the Time of Sale Prospectus or the Prospectus that has had, or may have, a material adverse effect on the Company and its subsidiaries, taken as a whole. The Selling Stockholder does not possess any material non-public information concerning the Company or its subsidiaries which is not set forth in the Time of Sale ProspectusShares.
(ig) Solely to the extent that any statements in, or omissions from, the The Registration Statement are made in reliance upon and in conformity with information furnished to the Company by the Selling Stockholder expressly for use therein, the Registration Statement, when it became effective, did does not contain andor will not, as then amended or supplemented, if applicableas of each Representation Date, will not contain any an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading, (ii) solely to the extent that any statements in, or omissions from; as of each Representation Date, the Time of Sale Prospectus are made in reliance upon and in conformity with information furnished to the Company by the Selling Stockholder expressly for use therein, 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, the Time of Sale Prospectus, as then amended or supplemented by supplemented, together with all of the Companythen issued Permitted Free Writing Prospectuses, if applicableany, will not, not contain any 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; provided, however, that the foregoing representations and (iiiwarranties in this Section 4(g) solely apply only to information in the Registration Statement and the Prospectus relating to the extent that any statements in, or omissions from, the Prospectus are made in reliance upon and in conformity with information Selling Stockholder furnished to the Company in writing by the Selling Stockholder expressly for use thereinin the Registration Statement, the Basic Prospectus, the Prospectus does not contain and(or any amendment or supplement thereto) or any Permitted Free Writing Prospectus, it being understood and agreed that the only such information furnished by the Selling Stockholder consists of the information set forth on Schedule II-A attached hereto.
(h) Except as disclosed in the annual, quarterly and current reports of Noble Corporation plc, a public limited company incorporated under the laws of England and Wales, and Noble Corporation, a Cayman Islands company, filed with the Commission on Forms 10-K, 10-Q and 8-K, neither the Selling Stockholder nor any of its subsidiaries nor, to the knowledge of the Selling Stockholder, any director, officer, employee, agent, affiliate or other person associated with or acting on behalf of the Selling Stockholder or any of its subsidiaries has (i) used any funds for any unlawful contribution, gift, entertainment or other unlawful expense relating to political activity; (ii) made or taken an act in furtherance of an offer, promise or authorization of any direct or indirect unlawful payment or benefit to any foreign or domestic government or regulatory official or employee, including of any government-owned or controlled entity or of a public international organization, or any person acting in an official capacity for or on behalf of any of the foregoing, or any political party or party official or candidate for political office; (iii) violated or is in violation of any provision of the Foreign Corrupt Practices Act of 1977, as amended amended, or supplementedany applicable law or regulation implementing the OECD Convention on Combating Bribery of Foreign Public Officials in International Business Transactions, if applicableor committed an offence under any other applicable anti-bribery or anti-corruption laws; or (iv) made, offered, agreed, requested or taken an act in furtherance of any unlawful bribe or other unlawful benefit, including, without limitation, any rebate, payoff, influence payment, kickback or other unlawful or improper payment or benefit. The Selling Stockholder and its subsidiaries have instituted, maintain and enforce, and will continue to maintain and enforce policies and procedures designed to promote and ensure compliance with all applicable anti-bribery and anti-corruption laws.
(i) The operations of the Selling Stockholder and its subsidiaries are and have been conducted at all times in compliance with the 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 the Selling Stockholder or any of its subsidiaries with respect to the Anti-Money Laundering Laws is pending or, to the knowledge of the Selling Stockholder, threatened.
(j) Neither the Selling Stockholder nor any of its subsidiaries, nor, to the knowledge of the Selling Stockholder, any director, officer, or employee, agent, or affiliate or other person associated with or acting on behalf of the Selling Stockholder or any of its subsidiaries is currently the subject or the target of any Sanctions, nor is the Selling Stockholder, any of its subsidiaries located, organized or resident in a Sanctioned Country; and the Selling Stockholder will not contain directly or indirectly use the proceeds of the offering of the Shares hereunder, or lend, contribute or otherwise make available such proceeds to any untrue statement subsidiary, joint venture partner or other person or entity (i) to fund or facilitate any activities of or business with any person that, at the time of such funding or facilitation, is the subject or the target of Sanctions, (ii) to fund or facilitate any activities of or business in any Sanctioned Country or (iii) in any other manner that will result in a violation by any person (including any person participating in the transaction, whether as underwriter, advisor, investor or otherwise) of Sanctions. For the past five years, the Selling Stockholder 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 that at the time of the dealing or transaction is or was the subject or the target of Sanctions or with any Sanctioned Country.
(k) The Selling Stockholder has been duly organized and is validly existing and in good standing under the laws of Delaware, is duly qualified to do business and is in good standing in each jurisdiction in which its ownership or lease of property or the conduct of its businesses requires such qualification, and have all power and authority necessary to own or hold its properties and to conduct the businesses in which it is engaged, except where the failure to be so qualified, in good standing or have such power or authority would not, individually or in the aggregate, have a material fact adverse effect on the business, properties, management, financial position, results of operations or omit to state a material fact necessary to make the statements therein, in the light prospects of the circumstances under Selling Stockholder and its subsidiaries taken as a whole.
(l) That each sale of Shares by the Selling Stockholder is not and will not be prompted by any material information concerning or relating to the Company which they were made, is 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 you expressly for use thereinProspectus.
Appears in 2 contracts
Samples: Distribution Agreement (Noble Corp), Distribution Agreement (Freeport-McMoran Inc)
Representations and Warranties of the Selling Stockholder. The Selling Stockholder represents and warrants to the Underwriter and agrees with each of the Underwriters Company that:
(a) This All consents, approvals, authorizations and orders necessary for the execution and delivery by the Selling Stockholder of this Agreement, and for the sale and delivery of the Shares to be sold by the Selling Stockholder hereunder, have been obtained; and the Selling Stockholder has full right, power and authority to enter into this Agreement and to sell, assign, transfer and deliver the Shares to be sold by the Selling Stockholder hereunder; this Agreement has been duly authorized, executed and delivered by or on behalf of the Selling Stockholder.
(b) The execution, delivery and performance by the Selling Stockholder of this Agreement Agreement, the sale of the Shares to be sold by the Selling Stockholder and the consummation by the Selling Stockholder of the transactions contemplated herein or therein will not (i) conflict with or result in a breach or violation of any of the terms or provisions of, or constitute a default under under, or result in the creation or imposition of any lien, charge or encumbrance upon any property or assets of the Selling Stockholder pursuant to, any indenture, mortgage, deed of trust, loan agreement or other agreement or instrument to which the Selling Stockholder is a party or by which the Selling Stockholder is boundbound or to which any of the property or assets of the Selling Stockholder is subject, (ii) result in any violation of the provisions of the charter or by-laws or similar organizational documents of the Selling Stockholder or (iii) result in the violation of any law or statute or any judgment, order, rule or regulation of any court or arbitrator or governmental or regulatory authorityagency, except, except in the case of clauses (i) and (iii) above, above for any such conflict, breach, violation or default that would not materially and adversely affect not, individually or in the sale of aggregate, have a material adverse effect on the Shares and the consummation of any other of Selling Stockholder’s ability to consummate the transactions herein contemplatedcontemplated by this Agreement.
(c) No consent, approval, authorization, order, registration or qualification of or with any court or arbitrator or governmental or regulatory authority is required for The Selling Stockholder has good and valid title to the execution, delivery and performance Shares to be sold at the Closing Date by the Selling Stockholder hereunder, free and clear of this Agreementall liens, except encumbrances, equities or adverse claims; the Selling Stockholder will have, immediately prior to the Closing Date good and valid title to the Shares to be sold at the Closing Date by the Selling Stockholder, free and clear of all liens, encumbrances, equities or adverse claims; and, upon DTC or another securities intermediary indicating by book entry on its records that such as may be required for the registration Shares have been credited to securities accounts of the Underwriter and payment therefor pursuant hereto, good and valid title to such Shares under free and clear of all liens, encumbrances, equities or adverse claims, will pass to the Securities Act Underwriter. Citadel LLC and such consents, approvals, authorizations, orders and registrations or qualifications as have been obtained or may be required by FINRA and under applicable state securities laws and foreign securities laws all affiliates thereof (other than individuals) that currently own Common Stock are parties to a “lock up” agreement referred to in connection with the purchase and distribution of the Shares by the UnderwritersSection 8.
(d) The Selling Stockholder hashas not taken and will not take, and on the Closing Date will havedirectly or indirectly, valid title to, any action designed to or a valid “security entitlement” within the meaning of Section 8-501 that could reasonably be expected to cause or result in any stabilization or manipulation of the New York Uniform Commercial Code in respect of, price of the Shares to be sold by the Selling Stockholder free and clear of all security interests, claims, liens, equities or other encumbrances and the legal right and power, and all authorization and approval required by law, to enter into this Agreement and to sell, transfer and deliver the Shares to be sold by the Selling Stockholder or a security entitlement in respect of such Shares.
(e) Upon payment for the Shares to be sold by such Selling Stockholder pursuant to this AgreementThe Pricing Disclosure Package, delivery of such Shares, as directed by the Underwriters, to Cede & Co. (“Cede”) or such other nominee as may be designated by the Depository Trust Company (“DTC”), registration of such Shares in the name of Cede or such other nominee and the crediting of such Shares on the books of DTC to securities accounts of the Underwriters (assuming that neither DTC nor any such Underwriter has notice of any adverse claim (within the meaning of Section 8-105 of the New York Uniform Commercial Code (the “UCC”)) to such Shares), (A) DTC shall be a “protected purchaser” of such Shares within the meaning of Section 8-303 of the UCC, (B) under Section 8-501 of the UCC, the Underwriters will acquire a valid security entitlement in respect of such Shares and (C) no action based on any “adverse claim”, within the meaning of Section 8-102 of the UCC, to such Shares may be asserted against the Underwriters with respect to such security entitlement; for purposes of this representation, the Selling Stockholder may assume that when such payment, delivery and crediting occur, (x) such Shares will have been registered in the name of Cede or another nominee designated by DTC, in each case on the Company’s share registry in accordance with its certificate of incorporation, bylaws and applicable law, (y) DTC will be registered as a “clearing corporation” within the meaning of Section 8-102 of the UCC and (z) appropriate entries to the accounts of the several Underwriters on the records of DTC will have been made pursuant to the UCC.
(f) The Selling Stockholder has no reason to believe that the representations and warranties of the Company contained in Section 1 are not true and correct, is familiar with the Registration Statement, at the Time of Sale Prospectus did not, and at the Prospectus and has no knowledge Closing Date, will not, contain any untrue statement of any a material factfact or omit to state a material fact necessary in order to make the statements therein, condition or information not disclosed in the Time light of Sale Prospectus or the Prospectus circumstances under which they were made, not misleading; provided that has had, or may have, a material adverse effect on the Company and its subsidiaries, taken as a whole. The Selling Stockholder does not possess any material non-public information concerning the Company or its subsidiaries which is not set forth in the Time of Sale Prospectus.
(i) Solely makes no representation and warranty with respect to the extent that any statements in, or omissions from, the Registration Statement are other than statements made in reliance upon and in conformity with information relating to the Selling Stockholder furnished to the Company in writing by the Selling Stockholder expressly for use thereinin such Pricing Disclosure Package, it being understood and agreed that the only such information furnished by the Selling Stockholder consists of the information about the Selling Stockholder set forth in the “Selling Stockholder” section of the Prospectus.
(f) Other than the Registration Statement, when it became effectivethe Preliminary Prospectus and the Prospectus, the Selling Stockholder (including its agents and representatives, other than the Underwriter in its capacity as such) has not made, used, prepared, authorized, approved or referred to and will not prepare, make, use, authorize, approve or refer to any Permitted Free Writing Prospectus, 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 documents listed on Annex B hereto, each electronic road show and any other written communications approved in writing in advance by the Company and the Underwriter.
(g) As of the applicable effective date of the Registration Statement and any post-effective amendment thereto, the Registration Statement and any such post-effective amendment complied and will comply in all material respects with the Securities Act, and did not contain and, as amended or supplemented, if applicable, and will not contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary in order to make the statements therein not misleading, (ii) solely to ; and as of the extent that date of the Prospectus and any statements in, amendment or omissions fromsupplement thereto and as of the Closing Date, the Time of Sale Prospectus are made in reliance upon and in conformity with information furnished to the Company by the Selling Stockholder expressly for use therein, the Time of Sale Prospectus does not, and at the time of each sale of the Shares in connection with the offering when the Prospectus is will not yet available to prospective purchasers, the Time of Sale Prospectus, as then amended or supplemented by the Company, if applicable, will not, contain any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading, ; provided that the Selling Stockholder makes no representation and (iii) solely warranty with respect to the extent that any statements in, or omissions from, the Prospectus are other than statements made in reliance upon and in conformity with information furnished relating to the Company by the Selling Stockholder expressly for use therein, 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) 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 the Selling Stockholder through the Underwriter through you expressly for use thereinin the Registration Statement, the Pricing Disclosure Package and the Prospectus and any amendment or supplement thereto, it being understood and agreed that the only such information furnished by the Selling Stockholder consists of the information about the Selling Stockholder set forth in the “Selling Stockholder” section of the Prospectus.
Appears in 2 contracts
Samples: Underwriting Agreement (Citadel L P), Underwriting Agreement (E TRADE FINANCIAL Corp)
Representations and Warranties of the Selling Stockholder. The Selling Stockholder represents and warrants to and agrees with each of the Underwriters that:
(a) This Agreement has been duly authorized, executed and delivered by or on behalf of the Selling Stockholder. The place of execution of this Agreement by or on behalf of the Selling Stockholder was New York, New York.
(b) The executionSelling Stockholder has been duly incorporated and is validly existing as a société anonyme under French law, with full power and authority to execute and perform its obligations under this Agreement.
(c) The execution and delivery by the Selling Stockholder of, and the performance by the Selling Stockholder of its obligations under, this Agreement and the consummation by the Selling Stockholder of any other of the transactions contemplated hereby, or the fulfillment by the Selling Stockholder of such terms will not (isubject to compliance by the Underwriters with the provisions of Section 3 of this Agreement) conflict with or result in a breach or violation of any of the terms or provisions of, or constitute a default under under, any indentureinstrument, mortgage, deed of trust, loan agreement or other agreement or instrument order to which the Selling Stockholder is a party or by which the Selling Stockholder is boundbound or infringe any law, (ii) result in any violation of regulation, order, rule, decree or statute applicable to the Selling Stockholder and are not contrary to the provisions of the charter or by-laws or similar organizational constitutional documents of the Selling Stockholder or (iii) result in the violation of any law or statute or any judgmentStockholder. All consents, orderapprovals, rule or regulation of any court or arbitrator or governmental or regulatory authorityauthorizations, exceptorders, in the case of clauses (i) filings and (iii) above, for any such conflict, breach, violation or default that would not materially and adversely affect the sale of the Shares and the consummation of any other of the transactions herein contemplated.
(c) No consent, approval, authorization, order, registration or qualification registrations of or with any court or arbitrator governmental authority have been given, fulfilled or governmental or regulatory authority done and no other action is required to be taken, fulfilled or done by the Selling Stockholder for or in connection with the execution, delivery and performance by the Selling Stockholder of this Agreement and consummation of the transactions contemplated by this Agreement, except such as may be required for the registration of the Shares under the Securities Act and Act, such consents, approvals, authorizations, orders and registrations or qualifications as have been obtained or may be required by FINRA and under applicable state such as may be required by the securities or Blue Sky laws of the various states and foreign securities laws in connection with the purchase and distribution of the Shares by the Underwriters.
(d) The Selling Stockholder has, and on the Closing Date will have, valid title to, or a valid “security entitlement” within the meaning of Section 8-501 of the New York Uniform Commercial Code in respect of, the Shares to be sold by the Selling Stockholder free and clear of all security interests, claims, liens, equities or other encumbrances and the legal right and power, and all authorization and approval required by law, to enter into this Agreement and to sell, transfer and deliver the Shares to be sold by the Selling Stockholder or a security entitlement in respect of such Shares.
(e) Upon payment for the Shares to be sold by such the Selling Stockholder Shareholder pursuant to this Agreement, delivery of such Shares, as directed by the Underwriters, to Cede & Co. (“Cede”) or such other nominee as may be designated by the Depository Trust Company (“DTC”), registration of such Shares in the name of Cede or such other nominee and the crediting of such Shares on the books of DTC to securities accounts of the Underwriters (assuming that neither DTC nor any such Underwriter has notice of any adverse claim (within the meaning of Section 8-105 of the New York Uniform Commercial Code (the “UCC”)) to such Shares), (A) DTC shall be a “protected purchaser” of such Shares within the meaning of Section 8-303 of the UCC, (B) under Section 8-501 of the UCC, the Underwriters will acquire a valid security entitlement in respect of such Shares and (C) no action based on any “adverse claim”, within the meaning of Section 8-102 of the UCC, to such Shares may be asserted against the Underwriters with respect to such security entitlement; for purposes of this representation, the Selling Stockholder may assume that when such payment, delivery and crediting occur, (x) such Shares will have been registered in the name of Cede or another nominee designated by DTC, in each case on the Company’s share registry in accordance with its certificate of incorporation, bylaws and applicable law, (y) DTC will be registered as a “clearing corporation” within the meaning of Section 8-102 of the UCC and (z) appropriate entries to the accounts of the several Underwriters on the records of DTC will have been made pursuant to the Section 8-501 of the UCC.
(f) The Selling Stockholder has no reason to believe that the representations and warranties of the Company contained in Section 1 are is not true and correct, is familiar with the Registration Statement, the Time of Sale Prospectus and the Prospectus and has no knowledge of any material fact, condition or information not disclosed in the Time of Sale Prospectus or the Prospectus that has had, or may have, a material adverse effect on the Company and its subsidiaries, taken as a whole. The Selling Stockholder does not possess prompted by any material non-public information concerning the Company or its subsidiaries which is not set forth in the Time of Sale ProspectusProspectus to sell its Shares pursuant to this Agreement.
(g) (i) Solely to the extent that any statements in, or omissions from, the Registration Statement are made in reliance upon and in conformity with information furnished to the Company by the Selling Stockholder expressly for use therein, the The Registration Statement, when it became effective, did not contain and, as amended or supplemented, if applicable, will not contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading, (ii) solely to the extent that any statements in, or omissions from, the Time of Sale Prospectus are made in reliance upon and in conformity with information furnished to the Company by the Selling Stockholder expressly for use therein, 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 purchaserspurchasers and at the Closing Date (as defined in Section 5), the Time of Sale Prospectus, as then amended or supplemented by the Company, if applicable, will not, contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading, and (iii) solely 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 extent that any statements in, or omissions from, the Prospectus are made in reliance upon and in conformity with information furnished to the Company by the Selling Stockholder expressly for use therein, in the light of the circumstances under which they were made, not misleading and (iv) the Prospectus does not contain and, as amended or supplemented, if applicable, will not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading, ; except that the representations and warranties set forth in this paragraph Section 2(g) apply solely to the extent such statements or omissions are made in reliance upon and in conformity with the Selling Stockholder Information and 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.
(i) The Selling Stockholder will not knowingly cause or permit the proceeds of the sale of the Shares to be used directly to make a loan or other advance to, invest in or continue to or otherwise support the activities or business of any person, entity, country or governmental authority that is the subject of any applicable economic sanctions or trade embargoes imposed, administered or enforced from time to time by the U.S. Department of Treasury’s Office of Foreign Assets Control (“OFAC”) or the European Union (“EU”) (collectively, “OFAC/EU Sanctions”) in any manner that would violate such OFAC/EU Sanctions; and
(ii) The Selling Stockholder is not listed on any OFAC/EU Sanctions-related list of specifically designated nationals or designated persons or entities (or equivalent) maintained by OFAC or the EU.
(i) The 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, in each case other than the Time of Sale Prospectus.
Appears in 2 contracts
Samples: Underwriting Agreement (AXA Equitable Holdings, Inc.), Underwriting Agreement (AXA Equitable Holdings, Inc.)
Representations and Warranties of the Selling Stockholder. The Selling Stockholder represents and warrants to and agrees with each of the Underwriters that:
(a) This Agreement has been duly authorized, executed and delivered by or on behalf of the Selling Stockholder.
(b) The executionexecution and delivery by the Selling Stockholder of, delivery and the performance by the Selling Stockholder of its obligations under this Agreement will not violate (i) conflict with or result in a breach or violation of any provision of the terms certificate of incorporation or provisions ofby-laws (or equivalent constituent documents) of the Selling Stockholder, or constitute a default under (ii) except in each case for violations that would not materially and adversely affect the consummation by the Selling Stockholder of the transactions contemplated by this Agreement, any indentureprovision of law applicable to the Selling Stockholder, mortgage, deed of trust, loan any agreement or other agreement instrument binding upon the Selling Stockholder or instrument any property of the Selling Stockholder or to which the Selling Stockholder is a party or by which the Selling Stockholder is bound, (ii) result in any violation of the provisions of the charter or by-laws or similar organizational documents of the Selling Stockholder or (iii) result in the violation of any law or statute or any judgment, order, rule order or regulation decree of any governmental body, agency or court or arbitrator or governmental or regulatory authority, except, in having jurisdiction over the case of clauses (i) Selling Stockholder; and (iii) above, for any such conflict, breach, violation or default that would not materially and adversely affect the sale of the Shares and the consummation of any other of the transactions herein contemplated.
(c) No no consent, approval, authorizationauthorization or order of, order, registration or qualification of with, any governmental body or with any court or arbitrator or governmental or regulatory authority agency is required for the execution, delivery and or performance of this Agreement by the Selling Stockholder of this AgreementStockholder, except such as may be required for (x) the registration of the Shares under the Securities Act Act, (y) the filing of any necessary amendment to any report on Schedule 13D or 13G relating to the Company filed by the Selling Stockholder and (z) such consents, approvals, authorizations, orders and registrations or qualifications as have been obtained or may be required by FINRA and under applicable state the securities or Blue Sky laws and foreign securities laws of the various states in connection with the purchase offer and distribution sale of the Shares by or the UnderwritersFederal Communications Commission, the Pennsylvania Public Utility Commission or any other governmental body or agency with regulatory control over the Company's industry.
(dc) The Selling Stockholder has, and on the Closing Date will have, valid title to, or a valid “security entitlement” within the meaning of Section 8-501 of the New York Uniform Commercial Code in respect of, the Shares to be sold by the Selling Stockholder 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, corporate power to enter into this Agreement and Agreement, to sell, transfer and deliver the Shares to be sold by the Selling Stockholder or a security entitlement in respect of such Sharesand perform its obligations under this Agreement.
(ed) Upon payment for The Selling Stockholder is the record owner of the Shares to be sold by such Selling Stockholder pursuant to this Agreement, delivery of such Shares, as directed by the Underwriters, to Cede & Co. (“Cede”) or such other nominee as may be designated by the Depository Trust Company (“DTC”), registration of such Shares in the name of Cede or such other nominee and the crediting of such Shares on the books of DTC to securities accounts of the Underwriters (assuming that neither DTC nor any such Underwriter has notice is not aware of any "adverse claim claims" (within the meaning of Section 8-105 of the New York Uniform Commercial Code as adopted by the State of New York (the “"UCC”")) to such Shares), (A) DTC shall be a “protected purchaser” of such Shares within the meaning of Section 8-303 of the UCC, (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 that may be asserted against the Underwriters Selling Stockholder with respect to such security entitlement; for purposes of this representation, the Selling Stockholder may assume that when such payment, delivery and crediting occur, (x) such Shares will have been registered in the name of Cede or another nominee designated by DTC, in each case on the Company’s share registry in accordance with its certificate of incorporation, bylaws and applicable law, (y) DTC will be registered as a “clearing corporation” within the meaning of Section 8-102 of the UCC and (z) appropriate entries to the accounts of the several Underwriters on the records of DTC will have been made pursuant to the UCCShares.
(fe) The Selling Stockholder has no reason to believe that the representations and warranties of the Company contained in Section 1 are not true and correct, is familiar with the Registration Statement, the Time of Sale Prospectus and the Prospectus and has no knowledge of any material fact, condition or information not disclosed in the Time of Sale Prospectus or the Prospectus that has had, or may have, a material adverse effect on the Company and its subsidiaries, taken as a whole. The Selling Stockholder does not possess any material non-public information concerning the Company or its subsidiaries which is not set forth in the Time of Sale Prospectus.
(i) Solely to the extent that any statements in, or omissions from, the Registration Statement are made in reliance upon and in conformity with information furnished to the Company by the Selling Stockholder expressly for use therein, 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) solely to the extent that any statements in, or omissions from, the Time of Sale Prospectus are made in reliance upon misleading and in conformity with information furnished to the Company by the Selling Stockholder expressly for use therein, 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, the Time of Sale Prospectus, as then amended or supplemented by the Company, if applicable, will not, contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading, and (iii) solely to the extent that any statements in, or omissions from, the Prospectus are made in reliance upon and in conformity with information furnished to the Company by the Selling Stockholder expressly for use therein, 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) do not apply only to statements or omissions in the Registration Statement or the Prospectus based upon information relating to any Underwriter the Selling Stockholder furnished to the Company in writing by such Underwriter through you the Selling Stockholder expressly for use therein.
(f) The 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 any stabilization or manipulation of the price of any security of the Company to facilitate the sale of the Shares pursuant to the distribution contemplated by this Agreement and, other than as permitted by the Securities Act, the 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.
Appears in 2 contracts
Samples: Underwriting Agreement (Commonwealth Telephone Enterprises Inc /New/), Underwriting Agreement (Level 3 Delaware Holdings Inc)
Representations and Warranties of the Selling Stockholder. The Each of the Selling Stockholder Stockholders, severally and not jointly, represents and warrants to and agrees with each of the Underwriters that:
(a) This Agreement has been duly authorized, executed and delivered by or on behalf of the such Selling Stockholder and constitutes a valid and binding obligation upon such Selling Stockholder.
(b) The executionexecution and delivery by such Selling Stockholder of, delivery and the performance by the such Selling Stockholder of this Agreement will not (i) conflict with or result in a breach or violation of any of the terms or provisions ofits obligations under, or constitute a default under any indenture, mortgage, deed of trust, loan agreement or other agreement or instrument to which the Selling Stockholder is a party or by which the Selling Stockholder is bound, (ii) result in any violation of the provisions of the charter or by-laws or similar organizational documents of the Selling Stockholder or (iii) result in the violation of any law or statute or any judgment, order, rule or regulation of any court or arbitrator or governmental or regulatory authority, except, in the case of clauses (i) and (iii) above, for any such conflict, breach, violation or default that would not materially and adversely affect the sale of the Shares and the consummation of any other of the transactions herein contemplated.
(c) No consent, approval, authorization, order, registration or qualification of or with any court or arbitrator or governmental or regulatory authority is required for the execution, delivery and performance by the Selling Stockholder of this Agreement, except the Custody Agreement signed by such as may be required for the registration of the Shares under the Securities Act and such consents, approvals, authorizations, orders and registrations or qualifications as have been obtained or may be required by FINRA and under applicable state securities laws and foreign securities laws in connection with the purchase and distribution of the Shares by the Underwriters.
(d) The Selling Stockholder hasand Chasx Xxxxxx Xxxckholder Services, and on as Custodian, relating to the Closing Date will have, valid title to, or a valid “security entitlement” within the meaning deposit of Section 8-501 of the New York Uniform Commercial Code in respect of, the Shares to be sold by the Selling Stockholder free and clear of all security interests, claims, liens, equities or other encumbrances and the legal right and power, and all authorization and approval required by law, to enter into this Agreement and to sell, transfer and deliver the Shares to be sold by the Selling Stockholder or a security entitlement in respect of such Shares.
(e) Upon payment for the Shares to be sold by such Selling Stockholder pursuant (the "Custody Agreement") and the Power of Attorney appointing certain individuals as such Selling Stockholder's attorneys-in-fact to this Agreementthe extent set forth therein, delivery 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 SharesSelling Stockholder (if such Selling Stockholder is a corporation), as directed or any agreement or other instrument binding upon such Selling Stockholder or any judgment, order or decree of any governmental body, agency or court having jurisdiction over such Selling Stockholder, and no consent, approval, authorization or order of, or qualification with, any governmental body or agency is required for the performance by such Selling Stockholder of its obligations under this Agreement or the UnderwritersCustody Agreement or Power of Attorney of such Selling Stockholder, to Cede & Co. (“Cede”) or except such other nominee as may be designated required by the Depository Trust Company (“DTC”), registration of such Shares in the name of Cede securities or such other nominee and the crediting of such Shares on the books of DTC to securities accounts Blue Sky laws of the Underwriters (assuming that neither DTC nor any such Underwriter has notice of any adverse claim (within the meaning of Section 8-105 of the New York Uniform Commercial Code (the “UCC”)) to such Shares), (A) DTC shall be a “protected purchaser” of such Shares within the meaning of Section 8-303 of the UCC, (B) under Section 8-501 of the UCC, the Underwriters will acquire a valid security entitlement in respect of such Shares and (C) no action based on any “adverse claim”, within the meaning of Section 8-102 of the UCC, to such Shares may be asserted against the Underwriters with respect to such security entitlement; for purposes of this representation, the Selling Stockholder may assume that when such payment, delivery and crediting occur, (x) such Shares will have been registered in the name of Cede or another nominee designated by DTC, in each case on the Company’s share registry in accordance with its certificate of incorporation, bylaws and applicable law, (y) DTC will be registered as a “clearing corporation” within the meaning of Section 8-102 of the UCC and (z) appropriate entries to the accounts of the several Underwriters on the records of DTC will have been made pursuant to the UCC.
(f) The Selling Stockholder has no reason to believe that the representations and warranties of the Company contained in Section 1 are not true and correct, is familiar with the Registration Statement, the Time of Sale Prospectus and the Prospectus and has no knowledge of any material fact, condition or information not disclosed in the Time of Sale Prospectus or the Prospectus that has had, or may have, a material adverse effect on the Company and its subsidiaries, taken as a whole. The Selling Stockholder does not possess any material non-public information concerning the Company or its subsidiaries which is not set forth in the Time of Sale Prospectus.
(i) Solely to the extent that any statements in, or omissions from, the Registration Statement are made in reliance upon and in conformity with information furnished to the Company by the Selling Stockholder expressly for use therein, 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) solely to the extent that any statements in, or omissions from, the Time of Sale Prospectus are made in reliance upon and in conformity with information furnished to the Company by the Selling Stockholder expressly for use therein, the Time of Sale Prospectus does not, and at the time of each sale of the Shares various states in connection with the offering when the Prospectus is not yet available to prospective purchasers, the Time of Sale Prospectus, as then amended or supplemented by the Company, if applicable, will not, contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in the light offer and sale of the circumstances under which they were made, not misleading, and (iii) solely to the extent that any statements in, or omissions from, the Prospectus are made in reliance upon and in conformity with information furnished to the Company by the Selling Stockholder expressly for use therein, 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) 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 thereinShares.
Appears in 1 contract
Samples: Underwriting Agreement (Cymer Inc)
Representations and Warranties of the Selling Stockholder. The Selling Stockholder represents represents, warrants and warrants covenants to and agrees with each of the Underwriters thatUnderwriter as follows:
(a) None of the Registration Statement, the Time of Sale Prospectus or the Prospectus or any amendments or supplements thereto includes any untrue statement of a material fact or omits to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading, provided that such representations and warranties set forth in this subsection B(a) apply only to statements or omissions made in reliance upon and in conformity with information relating to the Selling Stockholder furnished in writing by or on behalf of the Selling Stockholder expressly for use in the Registration Statement, the Time of Sale Prospectus, the Prospectus or any other free writing prospectus or any amendment or supplement thereto; it being understood and agreed that such information only includes the information relating to the Selling Stockholder under the caption “Selling Stockholders” in the Base Prospectus and under the caption “Selling Stockholder” in the Time of Sale Prospectus or the Prospectus.
(b) This Agreement has been duly authorized, executed and delivered by or on behalf of the Selling Stockholder.
(bc) The execution, execution and delivery of this Agreement and performance the sale and delivery of the Offered Shares to be sold by the Selling Stockholder and the consummation of this Agreement the transactions contemplated herein and compliance by the Selling Stockholder with its obligations hereunder do not and will not not, whether with or without the giving of notice or passage of time or both (i) conflict with or result in constitute a breach or violation of any of the terms or provisions of, or constitute a default under under, or result in the creation or imposition of any tax, lien, charge or encumbrance upon the Offered Shares to be sold by the Selling Stockholder or any property or assets of the Selling Stockholder pursuant to any contract, indenture, mortgage, deed of trust, loan agreement or credit agreement, note, license, lease or other agreement or instrument to which the Selling Stockholder is a party or by which the Selling Stockholder may be bound, or to which any of the property or assets of the Selling Stockholder is boundsubject, (ii) result in any violation of the provisions of the charter or by-laws or similar other organizational documents instrument of the Selling Stockholder or Stockholder, if applicable, (iii) result in the any violation of the provisions of any law or statute or any applicable law, statute, rule, regulation, judgment, order, rule writ or regulation decree of any court government, government instrumentality or arbitrator court, domestic or governmental foreign, having jurisdiction over the Selling Stockholder or regulatory authorityany of its properties, except, except in the case of clauses (i) and (iii) above, for any such conflict, breach, default or violation that would not, individually or default in the aggregate, have a material adverse effect on the ability of the Selling Stockholder to consummate the transactions contemplated by this Agreement or the ability of the Selling Stockholder to perform its obligations hereunder and except in the case of (i) for any such tax, lien, charge or encumbrance that would not materially and adversely affect be paid or eliminated prior to the sale delivery of the Offered Shares and the consummation of any other of the transactions herein contemplated.
(c) No consent, approval, authorization, order, registration or qualification of or with any court or arbitrator or governmental or regulatory authority is required for the execution, delivery and performance by the Selling Stockholder of this Agreementon the First Closing Date or any applicable Option Closing Date, except such as the case may be required for the registration of the Shares under the Securities Act and such consents, approvals, authorizations, orders and registrations or qualifications as have been obtained or may be required by FINRA and under applicable state securities laws and foreign securities laws in connection with the purchase and distribution of the Shares by the Underwritersbe.
(d) The Selling Stockholder has, and on at the First Closing Date and each Option Closing Date, will have, valid title to, or a valid “security entitlement” within to the meaning of Section 8-501 of the New York Uniform Commercial Code in respect of, the Offered Shares to be sold by the Selling Stockholder 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 Offered Shares to be sold by the Selling Stockholder or a valid security entitlement in respect of such Offered Shares.
(e) Upon payment of the purchase price for the Offered Shares to be sold by such the Selling Stockholder pursuant to this Agreement, delivery of such Offered Shares, as directed by the UnderwritersUnderwriter, to Cede & Co. (“Cede”) or such other nominee as may be designated by the The Depository Trust Company (“DTC”) (unless delivery of such Offered Shares is unnecessary because such Offered Shares are already in possession of Cede or such nominee), registration of such Offered Shares in the name of Cede or such other nominee (unless registration of such Offered Shares is unnecessary because such Offered Shares are already registered in the name of Cede or such nominee), and the crediting of such Offered Shares on the books of DTC to securities accounts (within the meaning of Section 8-501(a) of the Underwriters UCC) of the Underwriter (assuming that neither DTC nor any such Underwriter has notice of any “adverse claim (claim,” within the meaning of Section 8-105 of the New York Uniform Commercial Code then in effect in the State of New York (the “UCC”)) , to such Offered Shares), (A) DTC shall be a “protected purchaser” of such Shares within the meaning of Section 8-303 of the UCC, (B) under Section 8-501 of the UCC, the Underwriters Underwriter will acquire a valid “security entitlement entitlement” in respect of such Offered Shares and (CB) 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 Offered Shares may be asserted against the Underwriters Underwriter with respect to such security entitlement; for purposes of this representation, the Selling Stockholder may assume that when such payment, delivery (if necessary) and crediting occur, (xI) such Offered 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, (yII) DTC will be registered as a “clearing corporation,” within the meaning of Section 8-102 of the UCC and UCC, (zIII) appropriate entries to the accounts account of the several Underwriters 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 Offered Shares, maintains any “financial asset” (as defined in Section 8-102(a)(9) of the UCC) in a clearing corporation pursuant to Section 8-111 of the UCC, the rules of such clearing corporation may affect the rights of DTC or such securities intermediaries and the ownership interest of the Underwriter, (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 Offered Shares to satisfy claims of all of its entitlement holders with respect thereto then all holders will share pro rata in the Offered Shares then held by DTC or such securities intermediary.
(f) The Selling Stockholder has no reason not taken, and will not take, directly or indirectly, any action that is designed to believe that or which constituted or would be expected to cause or result in stabilization or manipulation of the representations and warranties price of any security of the Company contained in Section 1 are not true and correctto facilitate the sale or resale of the Offered Shares.
(g) No filing with, or consent, approval, authorization, order, registration, qualification or decree of any arbitrator, court, governmental body, regulatory body, administrative agency or other authority, body or agency, domestic or foreign, is familiar necessary or required for the performance by the Selling Stockholder of its obligations hereunder, or in connection with the sale and delivery of the Offered Shares hereunder or the consummation of the transactions contemplated by this Agreement, except such as have been already obtained or as may be required under the Securities Act, the Exchange Act, the rules of the NYSE, state securities laws or the rules of FINRA.
(h) The Selling Stockholder does not have any registration or other similar rights to have any equity or debt securities registered for sale by the Company under the Registration Statement, except as described in the Registration Statement, the Time of Sale Prospectus and the Prospectus and has no knowledge of (or any material factdisclosure incorporated by reference therein), condition or information not disclosed included in the Time of Sale Prospectus or the Prospectus that has had, or may have, a material adverse effect on the Company and its subsidiaries, taken as a whole. The Selling Stockholder does not possess any material non-public information concerning the Company or its subsidiaries which is not set forth in the Time of Sale Prospectusoffering contemplated by this Agreement.
(i) Solely The Selling Stockholder has not prepared or had prepared on its behalf or used or referred to, any free writing prospectus, and has not distributed any written materials in connection with the offer or sale of the Offered Shares.
(j) The Selling Stockholder is not currently subject to any U.S. sanctions administered by OFAC and will not directly or indirectly use the extent that any statements inproceeds of this offering, or omissions fromlend, contribute or otherwise make available such proceeds to any subsidiary, or any joint venture partner or other person or entity, for the Registration Statement are made purpose of financing the activities of any person currently subject to any U.S. sanctions administered by OFAC or in reliance upon and any other manner that will result in conformity with information furnished to a violation by any person (including any person participating in the Company transaction whether as underwriter, advisor, investor or otherwise) of U.S. sanctions administered by OFAC. Any certificate signed by the Selling Stockholder expressly for use therein, 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) solely and delivered to the extent that any statements in, Underwriter or omissions from, to counsel for the Time of Sale Prospectus are made in reliance upon Underwriter shall be deemed a representation and in conformity with information furnished to the Company warranty by the Selling Stockholder expressly to the Underwriter as to the matters covered thereby. The Selling Stockholder has a reasonable basis for use therein, the Time of Sale Prospectus does not, and at the time of making each sale of the Shares in connection with the offering when the Prospectus is not yet available to prospective purchasers, the Time of Sale Prospectus, as then amended or supplemented by the Company, if applicable, will not, contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading, and (iii) solely to the extent that any statements in, or omissions from, the Prospectus are made in reliance upon and in conformity with information furnished to the Company by the Selling Stockholder expressly for use therein, 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) do not apply Section 1B. The Selling Stockholder acknowledges that the Underwriter and, for purposes of the opinion to statements or omissions in the Registration Statement or the Prospectus based upon information relating be delivered pursuant to any Underwriter furnished Section 6 hereof, counsel to the Company in writing by Selling Stockholder and counsel to the Underwriter, will rely upon the accuracy and truthfulness of the foregoing representations and hereby consents to such Underwriter through you expressly for use thereinreliance.
Appears in 1 contract
Representations and Warranties of the Selling Stockholder. The Selling Stockholder represents and warrants to to, and agrees with each of with, the Underwriters Underwriter that:
(ai) The Selling Stockholder on the Closing Date will have good and marketable title to the Selling Stockholder Firm Shares and, if applicable, any Additional Shares to be sold by the Selling Stockholder hereunder and full right, power and authority to enter into this Agreement and to sell, assign, transfer and deliver the Selling Stockholder Shares free and clear of all voting trust arrangements, pledges, liens, encumbrances, equities, security interests and claims; and upon the delivery and payment for such Shares hereunder, the Underwriter will acquire good and marketable title to such Shares, free and clear of all voting trust arrangements, pledges, liens, encumbrances, equities, security interests and claims.
(ii) This Agreement and the transactions contemplated herein have been duly and validly authorized by the Selling Stockholder, and this Agreement has been duly authorized, and validly executed and delivered by or on behalf of the Selling Stockholder.
(biii) The execution, delivery and performance by the Selling Stockholder of this Agreement and the consummation of the transactions contemplated hereby will not (iA) conflict with or result in a breach or violation of any of the terms or and provisions of, or constitute a default under (or an event which with notice or lapse of time, or both, would constitute a default) under, or result in the creation or imposition of any indenturelien, mortgagecharge or encumbrance upon any property or assets of the Selling Stockholder pursuant to any agreement, deed of trustinstrument, loan agreement franchise, license or other agreement or instrument permit to which the Selling Stockholder is a party or by which the Selling Stockholder is bound, any of its properties or assets may be bound or (iiB) result in violate or conflict with any violation of the provisions of the charter or by-laws or similar organizational documents limited partnership agreement of the Selling Stockholder or (iii) result in the violation of any law or statute or any judgment, decree, order, statute, rule or regulation of any court or arbitrator or any public, governmental or regulatory authority, except, in agency or body having jurisdiction over the case Selling Stockholder or any of clauses (i) and (iii) above, for any such conflict, breach, violation its properties or default that would not materially and adversely affect the sale of the Shares and the consummation of any other of the transactions herein contemplated.
(c) assets. No consent, approval, authorization, order, registration registration, filing, qualification, license or qualification permit of or with any court or arbitrator or any public, governmental or regulatory authority agency or body having jurisdiction over the Selling Stockholder or any of its properties or assets is required for the execution, delivery and performance by the Selling Stockholder of this AgreementAgreement or the consummation of the transactions contemplated hereby, except such as may be required for the registration under the Act of the Shares Shares, filings under the Securities Exchange Act resulting from the sale of the Firm Shares and the Additional Shares, if any, and such consents, approvals, authorizations, orders orders, registrations, filings, qualifications, licenses and registrations or qualifications permits as have been obtained or may be required by FINRA and under applicable state securities laws and foreign securities or Blue Sky laws in connection with the purchase and distribution of the Shares by the UnderwritersUnderwriter.
(d) The Selling Stockholder has, and on the Closing Date will have, valid title to, or a valid “security entitlement” within the meaning of Section 8-501 of the New York Uniform Commercial Code in respect of, the Shares to be sold by the Selling Stockholder free and clear of all security interests, claims, liens, equities or other encumbrances and the legal right and power, and all authorization and approval required by law, to enter into this Agreement and to sell, transfer and deliver the Shares to be sold by the Selling Stockholder or a security entitlement in respect of such Shares.
(e) Upon payment for the Shares to be sold by such Selling Stockholder pursuant to this Agreement, delivery of such Shares, as directed by the Underwriters, to Cede & Co. (“Cede”) or such other nominee as may be designated by the Depository Trust Company (“DTC”), registration of such Shares in the name of Cede or such other nominee and the crediting of such Shares on the books of DTC to securities accounts of the Underwriters (assuming that neither DTC nor any such Underwriter has notice of any adverse claim (within the meaning of Section 8-105 of the New York Uniform Commercial Code (the “UCC”)) to such Shares), (A) DTC shall be a “protected purchaser” of such Shares within the meaning of Section 8-303 of the UCC, (B) under Section 8-501 of the UCC, the Underwriters will acquire a valid security entitlement in respect of such Shares and (C) no action based on any “adverse claim”, within the meaning of Section 8-102 of the UCC, to such Shares may be asserted against the Underwriters with respect to such security entitlement; for purposes of this representation, the Selling Stockholder may assume that when such payment, delivery and crediting occur, (x) such Shares will have been registered in the name of Cede or another nominee designated by DTC, in each case on the Company’s share registry in accordance with its certificate of incorporation, bylaws and applicable law, (y) DTC will be registered as a “clearing corporation” within the meaning of Section 8-102 of the UCC and (z) appropriate entries to the accounts of the several Underwriters on the records of DTC will have been made pursuant to the UCC.
(fiv) The Selling Stockholder has no reason not taken and will not take, directly or indirectly, any action designed to believe that cause or result in, or which constitutes or which might be reasonably be expected to constitute, the representations and warranties stabilization or manipulation of the Company contained in Section 1 are not true and correct, is familiar with price of the Registration Statement, shares of Common Stock to facilitate the Time sale or resale of Sale Prospectus and the Prospectus and has no knowledge of any material fact, condition or information not disclosed in the Time of Sale Prospectus or the Prospectus that has had, or may have, a material adverse effect on the Company and its subsidiaries, taken as a whole. The Selling Stockholder does not possess any material non-public information concerning the Company or its subsidiaries which is not set forth in the Time of Sale ProspectusShares.
(iv) Solely to At the extent that any statements in, or omissions from, time of the effectiveness of the Registration Statement are made in reliance upon and in conformity with information furnished or the effectiveness of the post-effective amendment to the Company by the Selling Stockholder expressly for use therein, the Registration Statement, when it became effectivethe Prospectus is first filed with the Commission pursuant to the Rule 424(b) of the Regulations, did not contain andwhen any supplement to or amendment of the Prospectus is filed with the Commission, as amended or supplementedwhen any document is filed under the Exchange Act and at the Closing Date and the Additional Closing Date, if applicableany, the Registration Statement and the Prospectus and any amendments thereof and supplements thereto, insofar as they relate to the Selling Stockholder, comply or will comply in all material respects with the applicable provisions of the Act and the Regulations and the Exchange Act and the respective rules and regulations thereunder and do not or will not contain any an untrue statement of a material fact and do not or 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, in light of the circumstances in 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 or pursuant to Rule 424(a) of the Regulations) and when any amendment thereof or supplement thereto was first filed with the Commission, insofar as such preliminary prospectus relates to the Selling Stockholder, such preliminary prospectus and any amendments thereof and supplements thereto complied in all material respects with the applicable provisions of the Act and the Regulations and the Exchange Act and the respective rules and regulations thereunder 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 to make the statements therein in light of the circumstances under which they were made not misleading. No representation and warranty is made in this subsection (v), (ii) solely however, with respect to any information contained in or omitted from the extent that Registration Statement or the Prospectus or any statements in, related preliminary prospectus or omissions from, the Time of Sale Prospectus are made any amendment thereof or supplement thereto in reliance upon and in conformity with information furnished in writing to the Company by or on behalf the Selling Stockholder Underwriter as herein stated expressly for use therein, the Time of Sale Prospectus does not, and at the time of each sale of the Shares in connection with the offering when preparation thereof.
(i) The Selling Stockholder and the Prospectus is related parties listed on SCHEDULE II agree with the Company and the Underwriter, except as provided in this Agreement, not yet available to prospective purchaserssell, offer or agree to sell, grant any option for the sale of, pledge or otherwise dispose of, directly or indirectly, any Common Stock for a period of 90 days after this Agreement becomes effective without the Underwriter's prior written consent. Notwithstanding the preceding sentence, the Time Underwriter acknowledges that all shares of Sale Prospectus, as then amended or supplemented by the Company, if applicable, will not, contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading, and (iii) solely to the extent that any statements in, or omissions from, the Prospectus are made in reliance upon and in conformity with information furnished to the Company Common Stock owned by the Selling Stockholder expressly for use thereinare held in a brokerage margin account and are pledged to secure margin borrowings, and the Underwriter agree that any such shares not sold to the Underwriter hereunder may continue to be so pledged during the 90-day period described in such sentence.
(ii) In order to document the Underwriter's compliance with the reporting and withholding provisions of the Internal Revenue Code of 1986, as amended, with respect to the transactions herein contemplated, the Prospectus does not contain and, as amended or supplemented, if applicable, will not contain any untrue statement of a material fact or omit Selling Stockholder agrees 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) do not apply to statements or omissions in the Registration Statement or the Prospectus based upon information relating to any Underwriter furnished deliver to the Company Underwriter prior to or on 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 writing by such Underwriter through you expressly for use thereinlieu thereof).
Appears in 1 contract
Samples: Underwriting Agreement (Lone Star Technologies Inc)
Representations and Warranties of the Selling Stockholder. The Selling Stockholder represents and warrants to and agrees with each of the Underwriters that:
(a) This Agreement has been duly authorized, executed and delivered by or on behalf of the Selling Stockholder.
(b) The executionexecution and delivery by or on behalf of the Selling Stockholder of, delivery and the performance by the Selling Stockholder of its obligations under, this Agreement will not contravene (i) conflict with any provision of applicable law or result in a breach any judgment, order or violation decree of any of the terms governmental body, agency or provisions of, or constitute a default under any indenture, mortgage, deed of trust, loan agreement or other agreement or instrument to which court having jurisdiction over the Selling Stockholder is a party or by which the Selling Stockholder is boundStockholder, (ii) result in any violation of the provisions of the charter or by-laws or similar organizational documents limited partnership agreement of the Selling Stockholder Stockholder, or (iii) result in any agreement or other instrument binding upon the violation of any law or statute or any judgment, order, rule or regulation of any court or arbitrator or governmental or regulatory authoritySelling Stockholder, except, in the case of the foregoing clauses (i) and (iii) aboveas would not, for any such conflictindividually or in the aggregate, breach, violation or default that would not reasonably be expected to materially and adversely affect impact the sale of the Shares and the consummation of any other of the transactions herein contemplated.
(c) Selling Stockholder’s ability to perform its obligations under this Agreement. No consent, approval, authorizationauthorization or order of, order, registration or qualification of with, any governmental body, agency or with any court or arbitrator or governmental or regulatory authority is required for the execution, delivery and performance by the Selling Stockholder of its obligations under this Agreement, except such as may be required for the registration of the Shares have been obtained and made under the Securities Act Act, the Exchange Act, or the rules and such consents, approvals, authorizations, orders and registrations or qualifications as have been obtained regulations thereunder or may be required by the applicable securities or Blue Sky laws of the various states or foreign jurisdictions and from FINRA and under applicable state securities laws and foreign securities laws such other approvals as have been or will be made or obtained on or prior to the Closing Date in connection with the purchase offer and distribution sale of the Shares by the UnderwritersShares.
(dc) The With respect to any Shares to be sold by the Selling Stockholder that are outstanding on the date hereof, the Selling Stockholder has, and on the Closing Date the Selling Stockholder will have, valid title to, or a valid “security entitlement” within the meaning of Section 8-501 of the New York Uniform Commercial Code (the “UCC”) in respect of, the Shares to be sold by the Selling Stockholder Stockholder, free and clear of all security interests, claims, liens, equities or other encumbrances and the legal right and power, and all authorization and approval required by law, to enter into this Agreement Agreement, and to sell, transfer and deliver the Shares to be sold by the Selling Stockholder or a security entitlement in respect of such Shares.
(ed) Upon payment for the Shares to be sold by such the Selling Stockholder pursuant to this Agreement, delivery of such Shares, as directed by the Underwriters, to Cede & Co. (“Cede”) or such other nominee as may be designated by the Depository Trust Company (“DTC”), registration of such Shares in the name of Cede or such other nominee and the crediting of such Shares on the books of DTC to securities accounts of the Underwriters (assuming that neither DTC nor any such Underwriter has notice of any adverse claim (within the meaning of Section 8-105 of the New York Uniform Commercial Code (the “UCC”)) to such Shares), (A) DTC shall be a “protected purchaser” of such Shares within the meaning of Section 8-303 of the UCC, (B) under Section 8-501 of the UCC, the Underwriters will acquire a valid security entitlement in respect of such Shares and (C) no action based on any “adverse claim”, ,” within the meaning of Section 8-102 of the UCC, to such Shares may be asserted against the Underwriters with respect to such security entitlement; for purposes of this representation, the Selling Stockholder may assume that when such payment, delivery and crediting occur, (x) such Shares will have been registered in the name of Cede or another nominee designated by DTC, in each case on the Company’s share registry in accordance with its certificate of incorporation, bylaws and applicable law, (y) DTC will be registered as a “clearing corporation” within the meaning of Section 8-102 of the UCC and (z) appropriate entries to the accounts of the several Underwriters on the records of DTC will have been made pursuant to the UCC.
(fe) The Selling Stockholder has no reason delivered to believe that the representations and warranties Representative an executed lock-up agreement in substantially the form attached hereto as Exhibit A.
(f) All information furnished to the Company or the Underwriters by or on behalf of the Company contained Selling Stockholder in Section 1 are not true and correct, is familiar with writing expressly for use in the Registration Statement, the Time of Sale Prospectus and the Prospectus and has no knowledge of any material factProspectus, condition or information not disclosed in each broadly available road show, if any, when considered together with the Time of Sale Prospectus or the Prospectus that has hadis (including, or may have, a material adverse effect on the Company and its subsidiaries, taken as a whole. The Selling Stockholder does not possess any material non-public information concerning the Company or its subsidiaries which is not set forth in with respect to the Time of Sale Prospectus.
(i) Solely , 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 on the extent that any statements inClosing Date will be, or omissions fromtrue, the Registration Statement are made correct and complete in reliance upon all material respects, and in conformity with information furnished to the Company by the Selling Stockholder expressly for use therein, 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) solely to the extent that any statements in, or omissions from, the Time of Sale Prospectus are made in reliance upon and in conformity with information furnished to the Company by the Selling Stockholder expressly for use therein, 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 on the Time of Sale Prospectus, as then amended or supplemented by the Company, if applicable, Closing Date will not, contain any untrue statement of a material fact or omit to state a any material fact necessary to make the statements therein, in the light of the circumstances under which they were made, such information not misleading, it being understood and agreed that the only such information consists of the name of the Selling Stockholder, the number of total shares beneficially owned, the number of offered shares and the address and other information with respect to the Selling Stockholder (excluding percentages) under the caption “Selling Stockholder” in the Registration Statement, the Time of Sale Prospectus and the Prospectus (such information, the “Selling Stockholder Information”).
(i) None of the Selling Stockholder or any of its subsidiaries, or, to the knowledge of the Selling Stockholder, any director, officer, employee, agent, representative, or controlled affiliate thereof, is a Person that is, or is owned or controlled by one or more Persons that are:
(A) the subject of any Sanctions, or
(B) located, organized or resident in a country or territory that is the subject of Sanctions (including, without limitation, the so-called Donetsk People’s Republic, the so-called Luhansk People’s Republic, any other “Covered Region” of Ukraine identified pursuant to Executive Order 14065, Crimea, Cuba, Iran, North Korea and Syria).
(ii) The Selling Stockholder will not, directly or indirectly, use the proceeds of the offering, or lend, contribute or otherwise make available such proceeds to any subsidiary, joint venture partner or other Person:
(A) to fund or facilitate any activities or business of or with any Person or in any country or territory that, at the time of such funding or facilitation, is the subject of Sanctions; or
(B) in any other manner that will result in a violation of Sanctions by any Person (including any Person participating in the offering, whether as underwriter, advisor, investor or otherwise).
(iii) solely to the extent that any statements The Selling Stockholder has not knowingly engaged in, is not now knowingly engaged in, and will not engage in, any dealings or omissions fromtransactions with any Person, or in any country or territory, that at the Prospectus are made in reliance upon and in conformity with information furnished to time of the Company by dealing or transaction is or was the subject of Sanctions.
(a) None of the Selling Stockholder expressly for use thereinor any of its subsidiaries, or, to the knowledge of the Selling Stockholder, any director, officer, employee, agent, representative, or controlled affiliate thereof has taken or will take any action in furtherance of an offer, payment, promise to pay, or authorization or approval of the payment giving or receipt of money, property, gifts or anything else of value, directly or indirectly, to any Government Official in order to influence official action, or to any person in violation of any applicable anti-corruption laws; (b) the Selling Stockholder and each of its subsidiaries have conducted their businesses in compliance with applicable anti-corruption laws and have instituted and maintained and will continue to maintain policies and procedures reasonably designed to promote and achieve compliance with such laws and with the representations and warranties contained herein; and (c) neither the Selling Stockholder nor any of its subsidiaries will use, directly or indirectly, the Prospectus does proceeds of the offering in furtherance of an offer, payment, promise to pay, or authorization of the payment or giving of money, or anything else of value, to any person in violation of any applicable anti-corruption laws.
(v) The operations of the Selling Stockholder and each of its subsidiaries are and have been conducted at all times in material compliance with all applicable Anti-Money Laundering Laws, and no action, suit or proceeding by or before any court or governmental agency, authority or body or any arbitrator involving the Selling Stockholder or any of its subsidiaries with respect to the Anti-Money Laundering Laws is pending or, to the best knowledge of the Selling Stockholder, threatened.
(h) The Selling Stockholder represents and warrants that it is not contain and(i) an employee benefit plan subject to Title I of the Employee Retirement Income Security Act of 1974, as amended (“ERISA”), (ii) a plan or account subject to Section 4975 of the Internal Revenue Code of 1986, as amended or supplemented(iii) an entity deemed to hold “plan assets” of any such plan or account under Section 3(42) of ERISA, if applicable29 C.F.R. 2510.3-101, 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) 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 thereinotherwise.
Appears in 1 contract
Representations and Warranties of the Selling Stockholder. The Selling Stockholder represents and warrants to and agrees with each of the Underwriters Underwriter that:
(a) The Selling Stockholder now has, and on the Closing Date will have, valid and marketable title to the Shares to be sold by such Selling Stockholder, free and clear of any lien, claim, security interest or other encumbrance, including, without limitation, any restriction on transfer.
(b) The Selling Stockholder now has, and on the Closing Date will have, full legal right, power and authorization, and any approval required by law, to sell, assign transfer and deliver such Shares in the manner provided in this Agreement, and upon delivery of and payment for such Shares hereunder, the several Underwriters will acquire valid and marketable title to such Shares free and clear of any lien, claim, security interest, or other encumbrance (assuming the Underwriters are without notice of any adverse claim, as defined in the Uniform Commercial Code and are otherwise bona fide purchasers for purposes of the Uniform Commercial Code).
(c) This Agreement has been duly authorized, executed and delivered by or on behalf the Selling Stockholder and is the valid and binding agreement of the Selling StockholderStockholder enforceable against the Selling Stockholder in accordance with its terms.
(bd) The execution, Neither the execution and delivery and performance of this Agreement by the Selling Stockholder nor the consummation of this Agreement the transactions herein contemplated by the Selling Stockholder requires any consent, approval, authorization or order of, or filing or registration with, any court, regulatory body, administrative agency or other governmental body, agency or official (except such as may be required under the Act or such as may be required under state securities or Blue Sky laws governing the purchase and distribution of the Shares) or conflicts or will not (i) conflict with or result in constitutes or will constitute a breach or violation of any of the terms or provisions of, or constitute a default under under, or violates or will violate, any indentureagreement, mortgage, deed of trust, loan agreement indenture or other agreement or instrument to which the Selling Stockholder is a party or by which the Selling Stockholder is bound, (ii) result in or may be bound or to which any violation of the provisions of the charter Selling Stockholder's property or by-laws assets is subject, or similar organizational documents of any statute, law, rule, regulation, ruling, judgment, injunction, order or decree applicable to the Selling Stockholder or (iii) result in the violation of to any law property or statute or any judgment, order, rule or regulation of any court or arbitrator or governmental or regulatory authority, except, in the case of clauses (i) and (iii) above, for any such conflict, breach, violation or default that would not materially and adversely affect the sale assets of the Shares and the consummation of any other of the transactions herein contemplated.
(c) No consent, approval, authorization, order, registration or qualification of or with any court or arbitrator or governmental or regulatory authority is required for the execution, delivery and performance by the Selling Stockholder of this Agreement, except such as may be required for the registration of the Shares under the Securities Act and such consents, approvals, authorizations, orders and registrations or qualifications as have been obtained or may be required by FINRA and under applicable state securities laws and foreign securities laws in connection with the purchase and distribution of the Shares by the Underwriters.
(d) The Selling Stockholder has, and on the Closing Date will have, valid title to, or a valid “security entitlement” within the meaning of Section 8-501 of the New York Uniform Commercial Code in respect of, the Shares to be sold by the Selling Stockholder free and clear of all security interests, claims, liens, equities or other encumbrances and the legal right and power, and all authorization and approval required by law, to enter into this Agreement and to sell, transfer and deliver the Shares to be sold by the Selling Stockholder or a security entitlement in respect of such SharesStockholder.
(e) Upon payment for the Shares to be sold by such Selling Stockholder pursuant to this Agreement, delivery of such Shares, as directed by the Underwriters, to Cede & Co. (“Cede”) or such other nominee as may be designated by the Depository Trust Company (“DTC”), registration of such Shares in the name of Cede or such other nominee The Registration Statement and the crediting of such Shares on the books of DTC Prospectus, insofar as they relate to securities accounts of the Underwriters (assuming that neither DTC nor any such Underwriter has notice of any adverse claim (within the meaning of Section 8-105 of the New York Uniform Commercial Code (the “UCC”)) to such Shares), (A) DTC shall be a “protected purchaser” of such Shares within the meaning of Section 8-303 of the UCC, (B) under Section 8-501 of the UCC, the Underwriters will acquire a valid security entitlement in respect of such Shares and (C) no action based on any “adverse claim”, within the meaning of Section 8-102 of the UCC, to such Shares may be asserted against the Underwriters with respect to such security entitlement; for purposes of this representation, the Selling Stockholder may assume that when such paymentStockholder, delivery do not and crediting occur, (x) such Shares will have been registered in the name of Cede or another nominee designated by DTC, in each case on the Company’s share registry in accordance with its certificate of incorporation, bylaws and applicable law, (y) DTC will be registered as a “clearing corporation” within the meaning of Section 8-102 of the UCC and (z) appropriate entries to the accounts of the several Underwriters on the records of DTC will have been made pursuant to the UCC.
(f) The Selling Stockholder has no reason to believe that the representations and warranties of the Company contained in Section 1 are not true and correct, is familiar with the Registration Statement, the Time of Sale Prospectus and the Prospectus and has no knowledge of any material fact, condition or information not disclosed in the Time of Sale Prospectus or the Prospectus that has had, or may have, a material adverse effect on the Company and its subsidiaries, taken as a whole. The Selling Stockholder does not possess any material non-public information concerning the Company or its subsidiaries which is not set forth in the Time of Sale Prospectus.
(i) Solely to the extent that any statements in, or omissions from, the Registration Statement are made in reliance upon and in conformity with information furnished to the Company by the Selling Stockholder expressly for use therein, the Registration Statement, when it became effective, did not contain and, as amended or supplemented, if applicable, will not contain any an untrue statement of a material fact or omit to state a any material fact required to be stated therein or necessary to make the statements therein not misleading, .
(iif) solely to the extent that any statements in, or omissions from, the Time of Sale Prospectus are made in reliance upon and in conformity with information furnished to the Company by the The Selling Stockholder expressly for use therein, does not have any knowledge or any reason to believe that the Time of Sale Prospectus does not, and at the time of each sale of the Shares in connection with the offering when Registration State- ment or the Prospectus is not yet available to prospective purchasers, the Time of Sale Prospectus, as then amended (or supplemented by the Company, if applicable, will not, contain any amendment or supplement thereto) contains any untrue statement of a material fact or omit omits to state a any material fact required to be stated therein or necessary to make the statements thereintherein not misleading.
(g) The Selling Stockholder has not taken, directly or indirectly, any action designed to or that might reasonably be expected to cause or result in the light stabilization or manipulation of the circumstances under which they were made, not misleading, and (iii) solely to the extent that any statements in, or omissions from, the Prospectus are made in reliance upon and in conformity with information furnished to the Company by the Selling Stockholder expressly for use therein, 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 price of the circumstances under which they were made, not misleading, except that Common Stock to facilitate the representations and warranties set forth in this paragraph 2(g) do not apply to statements sale or omissions in resale of 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 thereinShares.
Appears in 1 contract
Representations and Warranties of the Selling Stockholder. The Selling Stockholder represents and represents, warrants to and agrees with each of the Underwriters that:
(a) The Selling Stockholder has full right, power and authority to enter into this Agreement.
(b) This Agreement has been duly authorized, executed and delivered by or on behalf of the Selling Stockholder.
(bc) The execution, delivery and performance of this Agreement by the Selling Stockholder of this Agreement will not (i) conflict with or result in a breach or violation of any of the terms or provisions of, or constitute a default under under, any indenture, mortgage, deed of trust, loan agreement or other agreement or instrument to which the Selling Stockholder is a party or by which the Selling Stockholder is boundbound or to which any of the property or assets of the Selling Stockholder is subject, (ii) result in any violation of the provisions of the charter deed of trust or by-laws or similar organizational documents of the trust agreement governing the Selling Stockholder or (iii) result in the any violation of any law or statute or any judgment, order, rule or regulation of any court or arbitrator governmental agency or governmental or regulatory authority, except, in the case of clauses (i) and (iii) above, for any such conflict, breach, violation or default that would not materially and adversely affect the sale of the Shares and the consummation of any other of the transactions herein contemplated.
(c) No consent, approval, authorization, order, registration or qualification of or with any court or arbitrator or governmental or regulatory authority is required for the execution, delivery and performance by body having jurisdiction over the Selling Stockholder or any of this Agreement, its properties or assets; and except such as may be required for the registration of the Shares Stock under the Securities Act and such consents, approvals, authorizations, orders and registrations or qualifications as have been obtained or may be required by FINRA under the Exchange Act and under applicable state securities laws and foreign securities laws in connection with the purchase and distribution of the Shares Stock by the Underwriters, no consent, approval, authorization or order of, or filing or registration with, any such court or governmental agency or body is required for the execution, delivery and performance of this Agreement by the Selling Stockholder and the consummation of the transactions contemplated hereby, except for such consents, approvals, authorizations, orders, filings or registrations as have been obtained or made.
(d) The Selling Stockholder has, and on the Closing First Delivery Date (as defined in Section 5 hereof) will have, good and valid title to, or a valid “security entitlement” within the meaning of Section 8-501 102(a)(17) of the New York Uniform Commercial Code (the “NYUCC”) in respect of, the Shares shares of Stock to be sold by the Selling Stockholder Stockholder, free and clear of all security interests, claims, liens, equities or other encumbrances encumbrances, and the legal right and power, and all authorization and approval required by law, to enter Selling Stockholder’s entry into this Agreement and to sellthe Selling Stockholder’s sale, transfer and deliver delivery of the Shares shares of Stock to be sold by the Selling Stockholder or have been duly authorized by all necessary organizational action, if any, and the Selling Stockholder has the legal right and power to sell, transfer and deliver a security entitlement in respect of such Sharesthe shares of Stock to be sold by the Selling Stockholder. The shares of Stock to be sold by the Selling Stockholder are not subject to any preemptive or similar rights.
(e) Upon payment Assuming the proper execution of an entitlement order (within the meaning of Section 8-102(a)(8) of the NYUCC) given by the Selling Stockholder to the securities intermediary (within the meaning of Section 8-102(a)(14) of the NYUCC) maintaining the security entitlement for the Shares Selling Stockholder with respect to the shares of Stock to be sold by the Selling Stockholder, or delivery of the stock certificate representing such Selling Stockholder pursuant Stock, accompanied by a duly executed stock power, and assuming that as a result of the execution of such order or such delivery a security entitlement with respect to the shares of Stock is properly credited at a securities intermediary (within the meaning of Section 8-102(a)(14) of the NYUCC) to the account of the Underwriter purchasing such shares of Stock, upon payment for such shares of Stock as contemplated by this Agreement, delivery then no action based on an adverse claim within the meaning of Section 8-102 of the NYUCC may be asserted against such Underwriter with respect to such security entitlement to the extent that (i) such Underwriter had no notice of such Shares, as directed by the Underwriters, to Cede & Co. (“Cede”) or such other nominee as may be designated by the Depository Trust Company (“DTC”), registration of such Shares in the name of Cede or such other nominee and the crediting of such Shares on the books of DTC to securities accounts of the Underwriters (assuming that neither DTC nor any such Underwriter has notice of any adverse claim (within the meaning of Section 8-105 of the New York Uniform Commercial Code NYUCC and (ii) such Underwriter is the “UCC”)) to such Shares), entitlement holder (A) DTC shall be a “protected purchaser” of such Shares within the meaning of Section 8-303 102(a)(8) of the UCC, (BNYUCC) under Section 8-501 of the UCC, the Underwriters will acquire a valid security entitlement in respect of such Shares and (C) no action based on any “adverse claim”, within the meaning of Section 8-102 of the UCC, to such Shares may be asserted against the Underwriters with respect to the securities account to which such security entitlement; for purposes of this representation, the Selling Stockholder may assume that when such payment, delivery and crediting occur, (x) such Shares will have been registered in the name of Cede or another nominee designated by DTC, in each case on the Company’s share registry in accordance with its certificate of incorporation, bylaws and applicable law, (y) DTC will be registered as a “clearing corporation” within the meaning of Section 8-102 of the UCC and (z) appropriate entries to the accounts of the several Underwriters on the records of DTC will have been made pursuant to the UCCentitlement is credited.
(f) The Selling Stockholder has no reason is not prompted to believe that sell the representations and warranties shares of Stock to be sold to the Company contained in Section 1 are not true and correct, is familiar with the Registration Statement, the Time of Sale Prospectus and the Prospectus and has no knowledge of any material fact, condition or information not disclosed in the Time of Sale Prospectus or the Prospectus that has had, or may have, a material adverse effect on the Company and its subsidiaries, taken as a whole. The Selling Stockholder does not possess Underwriters hereunder by any material non-public information concerning the Company or its subsidiaries which is not set forth or incorporated by reference in the Time Prospectus to sell its shares of Sale ProspectusStock pursuant to this Agreement.
(ig) Solely to To the extent that any statements in, or omissions fromknowledge of the Selling Stockholder after due inquiry, the Registration Statement are made in reliance upon and in conformity with information furnished the Prospectus and any further amendments or supplements to the Company by Registration Statement or the Selling Stockholder expressly for use thereinProspectus, when they become effective or are filed with the Commission, as the case may be, do not and will not, as of the applicable effective date (as to the Registration Statement, when it became effective, did not Statement and any amendment thereto) and as of the applicable filing date (as to the Prospectus and any amendment or supplement thereto) contain and, as amended or supplemented, if applicable, will not contain any an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading, (ii) solely ; provided that no representation or warranty is made as to information contained in or omitted from the extent that any statements in, Registration Statement or omissions from, the Time of Sale Prospectus are made in reliance upon and in conformity with written information furnished to the Company through the Representatives by the or on behalf of any Underwriter specifically for inclusion therein.
(h) The Selling Stockholder expressly for use therein, 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 has no reason to prospective purchasers, the Time of Sale Prospectus, as then amended or supplemented by the Company, if applicable, will not, contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading, and (iii) solely to the extent that any statements in, or omissions from, the Prospectus are made in reliance upon and in conformity with information furnished to the Company by the Selling Stockholder expressly for use therein, 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 believe that the representations and warranties of the Company contained in Section 1 hereof are not materially true and correct, is familiar with the Registration Statement and the 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 this paragraph 2(g) do not apply to statements or omissions in the Registration Statement and the Prospectus.
(i) The Selling Stockholder does not have any registration or other similar rights to have any equity or debt securities registered for sale by the Prospectus based upon information relating to any Underwriter furnished to the Company in writing by such Underwriter through you expressly for use thereinCompany.
Appears in 1 contract
Representations and Warranties of the Selling Stockholder. The Selling Stockholder represents and warrants to and agrees with each of the Underwriters that:
(a) This Agreement has been duly authorized, executed and delivered by or on behalf of the Selling Stockholder.
(b) The execution, execution and delivery and performance by the Selling Stockholder of, and the performance by Selling Stockholder of its obligations under, this Agreement Agreement, will not contravene (i) conflict with or result in a breach or violation any provision of any of the terms or provisions of, or constitute a default under any indenture, mortgage, deed of trust, loan agreement or other agreement or instrument to which the Selling Stockholder is a party or by which the Selling Stockholder is boundapplicable law, (ii) result in any violation the certificate of the provisions of the charter or incorporation, by-laws or similar organizational other comparable governing or constituent documents of the Selling Stockholder, (iii) any agreement or other instrument binding upon the Selling Stockholder or (iiiiv) result in the violation of any law or statute or any judgment, order, rule order or regulation decree of any governmental body, agency or court or arbitrator or governmental or regulatory authorityhaving jurisdiction over the Selling Stockholder, except, except in the case of clauses (i), (iii) and (iiiiv) aboveas would not, for any such conflictindividually or in the aggregate, breach, violation or default that would not materially and adversely affect have a material adverse effect on the sale ability of the Shares and the consummation of any other of Selling Stockholder to consummate the transactions herein contemplated.
(c) No contemplated by this Agreement, and no consent, approval, authorizationauthorization or order of, order, registration or qualification of with, any governmental body or with any court or arbitrator or governmental or regulatory authority agency is required for the execution, delivery and performance by the Selling Stockholder of its obligations under this Agreement, except such as have been obtained and made under the Securities Act, such as may be required for by the registration of the Shares under the Securities Exchange Act and such consents, approvals, authorizations, orders and registrations or qualifications as have been obtained or may be required by FINRA and under applicable state the securities or Blue Sky laws and of the various states or foreign securities laws jurisdictions in connection with the purchase offer and distribution sale of the Shares by the UnderwritersShares.
(dc) The Selling Stockholder has, and on the Closing Date will have, valid title to, or a valid “security entitlement” within the meaning of Section 8-501 of the New York Uniform Commercial Code in respect of, the Shares to be sold by the such Selling Stockholder free and clear of all security interests, claims, liens, equities or other encumbrances and the legal right and power, and all authorization and approval required by law, to enter into this Agreement Agreement, and to sell, transfer and deliver the Shares to be sold by the such Selling Stockholder or a security entitlement in respect of such Shares.
(d) [Reserved]
(e) Upon payment for the Shares to be sold by such the Selling Stockholder pursuant to this Agreement, delivery of such Shares, as directed by the Underwriters, to Cede & Co. (“Cede”) or such other nominee as may be designated by the Depository Trust Company (“DTC”), registration of such Shares in the name of Cede or such other nominee and the crediting of such Shares on the books of DTC to securities accounts of the Underwriters (assuming that neither DTC nor any such Underwriter has notice of any adverse claim (within the meaning of Section 8-105 of the New York Uniform Commercial Code (the “UCC”)) to such Shares), (A) DTC shall be a “protected purchaser” of such Shares within the meaning of Section 8-303 of the UCC, (B) under Section 8-501 of the UCC, the Underwriters will acquire a valid security entitlement in respect of such Shares and (C) no action based on any “adverse claim”, within the meaning of Section 8-102 of the UCC, to such Shares may be successfully asserted against the Underwriters with respect to such security entitlement; for purposes of this representation, the such Selling Stockholder may assume that when such payment, delivery and crediting occur, (x) such Shares will have been registered in the name of Cede or another nominee designated by DTC, in each case on the Company’s share registry in accordance with its certificate of incorporation, bylaws and applicable law, (y) DTC will be registered as a “clearing corporation” within the meaning of Section 8-102 of the UCC and (z) appropriate entries to the accounts of the several Underwriters on the records of DTC will have been made pursuant to the UCC.
(f) The Selling Stockholder has no reason to believe that the representations and warranties of the Company contained in Section 1 are not true and correct, is familiar with the Registration Statement, the Time of Sale Prospectus and the Prospectus and has no knowledge of any material fact, condition or information not disclosed in the Time of Sale Prospectus or the Prospectus that has had, or may have, a material adverse effect on the Company and its subsidiaries, taken as a whole. The Selling Stockholder does not possess any material non-public information concerning the Company or its subsidiaries which is not set forth in the Time of Sale Prospectus.[Reserved]
(i) Solely to the extent that any statements in, or omissions from, the The Registration Statement are made in reliance upon and in conformity with information furnished to the Company by the Selling Stockholder expressly for use therein, the Registration StatementFile No. 333-249870, when it became effective, did not contain and, as amended or supplemented, if applicable, will not contain contain, as of the date of such amendment or supplement, any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleadingmisleading , (ii) solely to the extent that any statements in, or omissions from, the Time of Sale Prospectus are made in reliance upon and in conformity with information furnished to the Company by the Selling Stockholder expressly for use therein, 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 purchaserspurchasers at the Closing 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 or omit to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading, and (iii) solely to the extent that any statements in, or omissions from, the Prospectus are made in reliance upon and in conformity with information furnished to the Company by the Selling Stockholder expressly for use therein, the Prospectus does not contain and, as amended or supplementedeach broadly available road show, if applicableany, will when considered together with the Time of Sale Prospectus, does not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading and (iv) the Prospectus, as of its date, does not contain and, as amended or supplemented, if applicable, will not contain, as of its date, at the Closing Date, 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 provided that the representations and warranties set forth in this paragraph 2(g) do not apply to statements or omissions in the Registration Statement with File No. 333-249870, 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 you the Representative expressly for use thereintherein and are limited in all respects to statements or omissions made in reliance upon and in conformity with information relating to the Selling Stockholder furnished to the Company in writing by such Selling Stockholder expressly for use in the Registration Statement with File No. 333-249870, the Time of Sale Prospectus, the Prospectus or any amendments or supplements thereto, it being understood and agreed that the only information furnished by such Selling Stockholder consists of the name of such Selling Stockholder, the number of offered shares, the address and other information with respect to such Selling Stockholder (excluding percentages) which appear in the Registration Statement with File No. 333-249870, Time of Sale Prospectus, and the Prospectus in the table (and corresponding footnotes) under the caption “Selling Stockholder” (with respect to the Selling Stockholder, the “Selling Stockholder Information”).
(i) The Selling Stockholder, or, to the knowledge of such Selling Stockholder, any director, officer, employee, agent, controlled affiliate or representative of the Selling Stockholder, is a Person that is, or is owned or controlled by one or more Persons that are:
(A) the subject of any Sanctions, or
(B) located, organized or resident in a country or territory that is the subject of Sanctions.
(ii) The Selling Stockholder 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
Representations and Warranties of the Selling Stockholder. The Selling Stockholder represents and warrants to and agrees with each of the Underwriters that:
(a) The Selling Stockholder has been duly incorporated and is validly existing as a public company with limited liability as naamloze vennootschap under the laws of The Netherlands and has the corporate power and authority to enter into and perform its obligations under this Agreement.
(b) This Agreement has been duly authorized, executed and delivered by or on behalf of the Selling Stockholder.
(bc) The executionexecution and delivery by the Selling Stockholder, delivery and the performance by the Selling Stockholder of its obligations under, this Agreement Agreement, and the consummation of the transactions contemplated hereby will not (i) conflict with or contravene, result in a breach or violation of any of the terms or provisions of, or constitute a default under under, or will not result in the creation or imposition of any indenturelien, mortgagecharge, deed claim or encumbrance upon any property or assets of trust, loan agreement or other agreement or instrument to which the Selling Stockholder is a party or by which the Selling Stockholder is boundany of its subsidiaries pursuant to, (i) any provision of applicable law, (ii) result in any violation provision of the provisions certificate of the charter incorporation or by-laws or similar other organizational or governing documents of the Selling Stockholder or any of its subsidiaries, (iii) result in any agreement or other instrument binding upon the violation Selling Stockholder or any of its subsidiaries or to which the Selling Stockholder or any of its subsidiaries is a party or to which any of its respective properties are subject or (iv) any regulation, rule, judgment, order or decree of any law governmental body, agency or statute court having jurisdiction over the Selling Stockholder or any judgment, order, rule of its subsidiaries or regulation any of any court or arbitrator or governmental or regulatory authorityits respective properties, except, in the case of clauses (i), (iii) and (iiiiv) above, for any such conflict, breach, violation or default violations that would not materially and adversely affect not, singly or in the sale aggregate, have a material adverse effect on the ability of the Shares and the consummation of any other of the transactions herein contemplated.
(c) Selling Stockholder to perform its obligations hereunder. No permit, consent, approval, authorizationauthorization or order of, order, registration or qualification of with, any governmental body or with any agency or court or arbitrator or governmental or regulatory authority financial institution is required for the executionexecution and delivery by the Selling Stockholder, delivery and of, or the performance by the Selling Stockholder of its obligations under, this Agreement, or the consummation of the transactions contemplated hereby, except such as may be required for by the registration securities or Blue Sky laws or insurance securities laws of the various states in connection with the offer and sale of the Shares under the Securities Act and such consents, approvals, authorizations, orders and registrations or qualifications as except for those which have been obtained or may be required by FINRA and under applicable state securities laws and foreign securities laws in connection with the purchase and distribution of the Shares by the Underwritersmade.
(d) The Selling Stockholder has, and on the Closing Date will have, valid title to, or a valid “"security entitlement” " within the meaning of Section 8-501 of the New York Uniform Commercial Code (the "UCC") in respect of, the Shares to be sold by the Selling Stockholder free and clear of all security interests, claims, liens, equities or other encumbrances encumbrances, and the legal right and power, and all authorization and approval required by law, to enter into this Agreement and to sell, transfer and deliver the Shares to be sold by the Selling Stockholder or a security entitlement in respect of such Shares. The Shares to be sold by the Selling Stockholder are not subject to any preemptive or similar rights.
(e) Upon payment for the Shares to be sold by such the Selling Stockholder pursuant to this Agreement, delivery of such Shares, as directed by the Underwriters, to Cede & Co. (“Cede”"CEDE") or such other nominee as may be designated by the Depository Trust Company (“"DTC”"), registration of such Shares in the name of Cede or such other nominee and the crediting of such Shares on the books of DTC to securities accounts of the Underwriters (assuming that neither DTC nor any such Underwriter has notice of any adverse claim (within the meaning of Section 8-105 of the New York Uniform Commercial Code (the “UCC”)) to such Shares), (A) DTC shall be a “"protected purchaser” " of such Shares within the meaning of Section 8-303 of the UCC, (B) under Section 8-501 of the UCC, the Underwriters will acquire a valid security entitlement in respect of such Shares and (C) no action based on any “"adverse claim”, ," within the meaning of Section 8-102 of the UCC, to such Shares may be asserted against the Underwriters with respect to such security entitlement; for purposes of this representation, the Selling Stockholder may assume that when such payment, delivery and crediting occur, (x) such Shares will have been registered in the name of Cede or another nominee designated by DTC, in each case on the Company’s 's share registry in accordance with its certificate of incorporation, bylaws and applicable law, (y) DTC will be registered as a “"clearing corporation” " within the meaning of Section 8-102 of the UCC and (z) appropriate entries to the accounts of the several Underwriters on the records of DTC will have been made pursuant to the UCC.
(f) The Selling Stockholder has no reason to believe that the representations and warranties of the Company contained in Section 1 are not true and correct, (i) is familiar with the Registration Statement, the Time of Sale Statement and Prospectus and the Prospectus and (ii) has no actual knowledge of any material fact, condition or information not disclosed in the Time of Sale Prospectus or the Prospectus that has had, or may have, a material adverse effect on the Company and its subsidiaries, taken as a whole. The Selling Stockholder does is not possess prompted by any material non-public information concerning the Company or its subsidiaries which is not set forth in the Time of Sale ProspectusProspectus to sell its Shares pursuant to this Agreement.
(i) Solely to the extent that any statements in, or omissions from, the Registration Statement are made in reliance upon and in conformity with information furnished to the Company by the Selling Stockholder expressly for use therein, the The Registration Statement, when it became effective, did not contain and, as amended or supplemented, if applicable, will not contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading, misleading and (ii) solely to the extent that any statements in, or omissions from, the Time of Sale Prospectus are made in reliance upon and in conformity with information furnished to the Company by the Selling Stockholder expressly for use therein, 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, the Time of Sale Prospectus, as then amended or supplemented by the Company, if applicable, will not, contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading, and (iii) solely to the extent that any statements in, or omissions from, the Prospectus are made in reliance upon and in conformity with information furnished to the Company by the Selling Stockholder expressly for use therein, 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 ; provided that the representations and warranties set forth in this paragraph 2(g) do not apply are limited 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 the Selling Stockholder expressly for use thereinin the Registration Statement, the Prospectus or any amendments or supplements thereto (such information collectively, the "FORTIS INFORMATION"), which Fortis Information is identified in Schedule III hereto.
(h) Neither the Selling Stockholder nor any of its subsidiaries has taken, directly or indirectly, any action designed to or that would constitute or that might reasonably be expected to 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 Shares.
Appears in 1 contract
Representations and Warranties of the Selling Stockholder. The Selling Stockholder represents and warrants to and agrees with each of the Underwriters Underwriter that:
(a) This Agreement has been duly authorized, executed and delivered by or on behalf of the Selling Stockholder.
(b) The executionexecution and delivery by the Selling Shareholder of, delivery and the performance by the Selling Stockholder of its obligations under, this Agreement will not (i) conflict with or result in a breach or violation contravene any provision of any of the terms or provisions ofapplicable law, or constitute a default under any indenture, mortgage, deed the certificate of trust, loan agreement or other agreement or instrument to which the Selling Stockholder is a party or by which the Selling Stockholder is bound, (ii) result in any violation of the provisions of the charter incorporation or by-laws of the Selling Stockholder, or similar organizational documents of any agreement or other instrument binding upon the Selling Stockholder or (iii) result in the violation of any law or statute or any judgment, order, rule order or regulation decree of any governmental body, agency or court or arbitrator or governmental or regulatory authorityhaving jurisdiction over the Selling Stockholder, except, in the case of clauses (i) and (iii) above, for any such conflict, breach, violation or default that would not materially and adversely affect the sale of the Shares and the consummation of any other of the transactions herein contemplated.
(c) No no consent, approval, authorizationauthorization or order of, order, registration or qualification of with, any governmental body or with any court or arbitrator or governmental or regulatory authority agency is required for the execution, delivery and performance by the Selling Stockholder of its obligations under this Agreement, except such as may be required for by the registration Financial Industry Regulatory Authority, Inc. (“FINRA”) and the securities or Blue Sky laws of the Shares under the Securities Act and such consents, approvals, authorizations, orders and registrations or qualifications as have been obtained or may be required by FINRA and under applicable state securities laws and foreign securities laws various states in connection with the purchase offer and distribution sale of the Shares by the UnderwritersShares.
(dc) The Selling Stockholder has, and on the Closing Date will have, valid title to, or a valid “security entitlement” within the meaning of Section 8-501 of the New York Uniform Commercial Code in respect of, the Shares to be sold by the Selling Stockholder free and clear of all security interests, claims, liens, equities or other encumbrances and the legal right and power, and all authorization and approval required by law, to enter into this Agreement and to sell, transfer and deliver the Shares to be sold by the Selling Stockholder or a security entitlement in respect of such Shares.
(ed) Upon payment for the Shares to be sold by such the Selling Stockholder pursuant to this Agreement, delivery of such Shares, as directed by the UnderwritersUnderwriter, to Cede & Co. (“Cede”) or such other nominee as may be designated by the Depository Trust Company (“DTC”), registration of such Shares in the name of Cede or such other nominee and the crediting of such Shares on the books of DTC to securities accounts of the Underwriters Underwriter (assuming that neither DTC nor any such the Underwriter has notice of any adverse claim (within the meaning of Section 8-105 of the New York Uniform Commercial Code (the “UCC”)) to such Shares), (A) DTC shall be a “protected purchaser” of such Shares within the meaning of Section 8-303 of the UCC, (B) under Section 8-501 of the UCC, the Underwriters Underwriter will acquire a valid security entitlement in respect of such Shares and (C) no action based on any “adverse claim”, within the meaning of Section 8-102 of the UCC, to such Shares may be asserted against the Underwriters Underwriter with respect to such security entitlement; for purposes of this representation, the Selling Stockholder may assume that when such payment, delivery and crediting occur, (x) such Shares will have been registered in the name of Cede or another nominee designated by DTC, in each case on the Company’s share registry in accordance with its certificate of incorporation, bylaws and applicable law, (y) DTC will be registered as a “clearing corporation” within the meaning of Section 8-102 of the UCC and (z) appropriate entries to the accounts of the several Underwriters Underwriter on the records of DTC will have been made pursuant to the UCC.
(fe) The Selling Stockholder has no reason to believe that the representations and warranties of the Company contained in Section 1 are not true and correct, is familiar with the Registration Statement, the Time of Sale Prospectus and the Prospectus and has no knowledge of any material fact, condition or information not disclosed in the Time of Sale Prospectus or the Prospectus that has had, or may have, a material adverse effect on the Company and its subsidiaries, taken as a whole. The Selling Stockholder does is not possess prompted by any material non-public information concerning the Company or its subsidiaries which is not set forth in the Time of Sale ProspectusProspectus to sell its Shares pursuant to this Agreement.
(i) Solely to the extent that any statements in, or omissions from, the Registration Statement are made in reliance upon and in conformity with information furnished to the Company by the Selling Stockholder expressly for use therein, the The Registration Statement, when it became effective, did not contain and, as amended or supplemented, if applicable, will not contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading, (ii) solely to the extent that any statements inRegistration Statement and the Prospectus comply and, as amended or omissions fromsupplemented, if applicable, will comply in all material respects with the Time Securities Act and the applicable rules and regulations of Sale Prospectus are made in reliance upon and in conformity with information furnished to the Company by the Selling Stockholder expressly for use thereinCommission 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, the Time of Sale Prospectus, as then amended or supplemented by the Company, if applicable, will not, contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading, (iv) each broadly available road show, if any, when considered together with the Time of Sale Prospectus, does not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading and (iiiv) solely to the extent that any statements inProspectus, or omissions fromas of its date, the Prospectus are made in reliance upon and in conformity with information furnished to the Company by the Selling Stockholder expressly for use therein, the Prospectus does not contain and, at the Closing Date (as defined in Section 5), 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 ; provided that the representations and warranties set forth in this paragraph 2(g2(f) do not apply are limited to statements or omissions made in the Registration Statement or the Prospectus based reliance upon and in conformity with information relating to any Underwriter the Selling Stockholder furnished to the Company in writing by such Underwriter through you the Selling Stockholder expressly for use thereinin the Registration Statement, the Time of Sale Prospectus, the Prospectus or any amendments or supplement thereto, which information is understood to be limited to the information regarding the Selling Stockholder in the Time of Sale Prospectus under the caption “Selling Stockholder” (the “Selling Stockholder Information”).
Appears in 1 contract
Representations and Warranties of the Selling Stockholder. The Selling Stockholder represents and warrants to and agrees with each of the Underwriters on the date hereof, on the Closing Date and on each Option Closing Date, if any, that:
(a) This Agreement has been duly authorized, executed and delivered by or on behalf of the Selling Stockholder.
(b) The executionNeither the execution and delivery by the Selling Stockholder of, delivery and nor the performance by the Selling Stockholder of its obligations under, this Agreement and the Custody Agreement to be entered into by the Selling Stockholder and American Stock Transfer and Trust Company, as Custodian, relating to the deposit of the Shares to be sold by the Selling Stockholder (the “Custody Agreement”) will not (i) conflict with or with, contravene, result in a breach or violation of, or imposition of any lien, charge or encumbrance upon any assets of the terms or provisions ofSelling Stockholder pursuant to, or constitute a default under (i) any indenturestatute, mortgagelaw, deed rule, regulation, judgment, order or decree of trustany governmental body, loan agreement regulatory or other agreement administrative agency or court having jurisdiction over the Selling Stockholder, provided that no warranty is made in this clause (i) with respect to the antifraud provisions of federal and state securities laws; or (ii) any contract, agreement, obligation, covenant or instrument to which the Selling Stockholder is a party or by which the Selling Stockholder is bound, (ii) result in any violation of the provisions of the charter or by-laws or similar organizational documents of the Selling Stockholder or (iii) result in the violation of any law or statute or any judgment, order, rule of its assets) is subject or regulation of any court or arbitrator or governmental or regulatory authoritybound, except, in the case of clauses this clause (i) and (iii) aboveii), for any such conflictconflicts, breachbreaches, violation violations or default defaults that would not materially and adversely affect the sale of the Shares and reasonably be expected to impair in any material respect the consummation of any other of the transactions herein contemplated.
(c) No Selling Stockholder’s obligations under this Agreement or the Custody Agreement; and no consent, approval, authorizationauthorization or order of, order, registration or qualification of with, any governmental body or with any court or arbitrator or governmental or regulatory authority agency is required for the execution, delivery and performance by the Selling Stockholder of its obligations under this Agreement or the Custody Agreement, except such as may be required for the registration of the Shares under the Securities Act and such consents, approvals, authorizations, orders and registrations or qualifications as have been obtained or may (i) be required by FINRA and under applicable state the securities or blue sky laws and foreign securities laws of the various jurisdictions in connection with the purchase offer and distribution sale of the Shares by Shares, (ii) not be reasonably expected to impair in any material respect the Underwritersconsummation of the Selling Stockholder’s obligations hereunder and (iii) have previously been made or obtained.
(dc) The Shares to be sold by the Selling Stockholder pursuant to this Agreement are held in book-entry form (the “Current Shares”). The Selling Stockholder hasis now the lawful owner of the Current Shares, and on the Closing Date will be the lawful owner of the number of Shares to be sold by the Selling Stockholder pursuant to this Agreement, and has now with respect to the Current Shares, and on the Closing Date with respect to the Current Shares will have, valid marketable title to, or a valid “security entitlement” (within the meaning of Section 8-501 of the New York Uniform Commercial Code then in effect in the State of New York (the “UCC”) or other applicable state statute) in respect of, the number of Shares to be sold by the Selling Stockholder under this Agreement, free and clear of all security interests, claims, liens, equities or other encumbrances encumbrances, and the legal right and power, and all authorization and approval required by law, to enter into this Agreement and the Custody Agreement and to sell, transfer and deliver the Shares to be sold by the Selling Stockholder pursuant to this Agreement or a security entitlement in respect of such Shares.
(d) The Custody Agreement has been, or on or before the Closing Date will be, duly authorized, executed and delivered by the Selling Stockholder and will be a valid and binding agreement of the Selling Stockholder.
(e) Upon payment for the Shares to be sold by such the Selling Stockholder pursuant to this Agreement, delivery (within the meaning of Section 8-301 of the UCC) of such Shares, as directed by the Underwriters, to Cede & Co. (“Cede”) or such other nominee as may be designated by the Depository Trust Company (“DTC”), registration of such Shares in the name of Cede or such other nominee and the crediting of such Shares on the books of DTC to securities accounts of the Underwriters (assuming that neither DTC nor any such Underwriter has notice of any adverse claim (within the meaning of Section 8-105 of the New York Uniform Commercial Code (the “UCC”)) to such Shares), (Ai) DTC shall be a “protected purchaser” of such Shares (within the meaning of Section 8-303 303(1) of the UCC), (Bii) under Section 8-501 of the UCC, the Underwriters will acquire a valid security entitlement in respect of such Shares Shares, and (Ciii) no action based on any “adverse claim”, ” (within the meaning of Section 8-102 of the UCC, ) to such Shares security entitlement may be asserted against the Underwriters with respect to such security entitlementUnderwriters; for purposes of this representation, the Selling Stockholder may assume that when such payment, delivery and crediting occur, (xw) such Shares 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, (yx) DTC will be registered as a “clearing corporation” (within the meaning of Section 8-102 of the UCC and UCC), (zy) appropriate entries to the accounts of each of the several Underwriters on the records of DTC will have been made pursuant to the UCC and (z) the jurisdiction of DTC and its nominee for purposes of Section 8-110 of the UCC, and the jurisdiction applicable to the matters specified in subsection (a)(2) through (5) of Section 8-110 of the UCC, is the State of New York.
(f) The Selling Stockholder has no reason not, prior to believe that the representations and warranties execution of this Agreement, offered or sold any Shares by means of any “prospectus” (within the meaning of the Company contained in Section 1 are not true and correct, is familiar with Securities Act) or used any “prospectus” (within the Registration Statement, the Time of Sale Prospectus and the Prospectus and has no knowledge of any material fact, condition or information not disclosed in the Time of Sale Prospectus or the Prospectus that has had, or may have, a material adverse effect on the Company and its subsidiaries, taken as a whole. The Selling Stockholder does not possess any material non-public information concerning the Company or its subsidiaries which is not set forth in the Time of Sale Prospectus.
(i) Solely to the extent that any statements in, or omissions from, the Registration Statement are made in reliance upon and in conformity with information furnished to the Company by the Selling Stockholder expressly for use therein, 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) solely to the extent that any statements in, or omissions from, the Time of Sale Prospectus are made in reliance upon and in conformity with information furnished to the Company by the Selling Stockholder expressly for use therein, the Time of Sale Prospectus does not, and at the time of each sale meaning of the Shares Securities Act) in connection with the offering when offer or sale of the Prospectus is not yet available to prospective purchasers, the Time of Sale Prospectus, as then amended or supplemented by the Company, if applicable, will not, contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements thereinShares, in each case other than the light of the circumstances under which they were made, not misleading, and (iii) solely to the extent that any statements in, or omissions from, the Prospectus are made in reliance upon and in conformity with information furnished to the Company by the Selling Stockholder expressly for use therein, 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) 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 thereinthen most recent Preliminary Prospectus.
Appears in 1 contract
Samples: Underwriting Agreement (Roadrunner Transportation Systems, Inc.)
Representations and Warranties of the Selling Stockholder. The Selling Stockholder represents and warrants to and agrees with each of the Underwriters that:
(a) This Agreement has been duly authorized, executed and delivered by or on behalf of the Selling Stockholder.
(b) The execution, delivery and performance by the Selling Stockholder of this Agreement will not (i) conflict with or result in a breach or violation of any of the terms or provisions of, or constitute a default under any indenture, mortgage, deed of trust, loan agreement or other agreement or instrument to which the Selling Stockholder is a party or by which corporation duly organized, validly existing and in good standing under the Selling Stockholder is bound, (ii) result in any violation laws of the provisions State of the charter or by-laws or similar organizational documents of the Selling Stockholder or (iii) result in the violation of any law or statute or any judgment, order, rule or regulation of any court or arbitrator or governmental or regulatory authority, except, in the case of clauses (i) and (iii) above, for any such conflict, breach, violation or default that would not materially and adversely affect the sale of the Shares and the consummation of any other of the transactions herein contemplated.
(c) No consent, approval, authorization, order, registration or qualification of or with any court or arbitrator or governmental or regulatory authority is required for the execution, delivery and performance by the Selling Stockholder of this Agreement, except such as may be required for the registration of the Shares under the Securities Act and such consents, approvals, authorizations, orders and registrations or qualifications as have been obtained or may be required by FINRA and under applicable state securities laws and foreign securities laws in connection with the purchase and distribution of the Shares by the Underwriters.
(d) Delaware. The Selling Stockholder has, has all requisite corporate power and on the Closing Date will have, valid title to, or a valid “security entitlement” within the meaning of Section 8-501 of the New York Uniform Commercial Code in respect of, the Shares to be sold by the Selling Stockholder 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, authority to enter into this Agreement and to sell, transfer perform its obligations hereunder. This Agreement has been duly executed and deliver the Shares to be sold delivered by the Selling Stockholder and constitutes a legal, valid and binding obligation of the Selling Stockholder, enforceable against the Selling Stockholder in accordance with its terms.
(b) No consent, approval, license, permit, order or a authorization of, or registration, declaration or filing with, any Federal, state, local or foreign government or any court of competent jurisdiction, administrative agency or commission or other governmental authority or instrumentality, domestic or foreign or nongovernmental third party is required to be obtained or made by or with respect to the Selling Stockholder in connection with the execution, delivery and performance of this Agreement except as has been previously obtained or made.
(c) The Selling Stockholder has good and valid title to the Shares, free and clear of any liens, claims, encumbrances, security entitlement in respect interests, options, charges or restrictions of any kind. Other than this Agreement, the Shares are not subject to any voting trust agreement or other contract, agreement, arrangement, commitment or understanding, including any such agreement, arrangement, commitment or understanding restricting or otherwise relating to the voting, dividend rights or disposition of the Shares.
(e) Upon payment for the Shares to be sold by such Selling Stockholder pursuant to this Agreement, delivery of such Shares, as directed by the Underwriters, to Cede & Co. (“Cede”) or such other nominee as may be designated by the Depository Trust Company (“DTC”), registration of such Shares in the name of Cede or such other nominee and the crediting of such Shares on the books of DTC to securities accounts of the Underwriters (assuming that neither DTC nor any such Underwriter has notice In respect of any adverse claim (within the meaning of Section 8-105 of the New York Uniform Commercial Code (the “UCC”)) to such Shares), (A) DTC shall be a “protected purchaser” of such Shares within the meaning of Section 8-303 of the UCC, (B) under Section 8-501 of the UCC, the Underwriters will acquire a valid security entitlement statements in respect of such Shares and (C) no action based on any “adverse claim”, within the meaning of Section 8-102 of the UCC, to such Shares may be asserted against the Underwriters with respect to such security entitlement; for purposes of this representation, the Selling Stockholder may assume that when such payment, delivery and crediting occur, (x) such Shares will have been registered in the name of Cede or another nominee designated by DTC, in each case on the Company’s share registry in accordance with its certificate of incorporation, bylaws and applicable law, (y) DTC will be registered as a “clearing corporation” within the meaning of Section 8-102 of the UCC and (z) appropriate entries to the accounts of the several Underwriters on the records of DTC will have been made pursuant to the UCC.
(f) The Selling Stockholder has no reason to believe that the representations and warranties of the Company contained in Section 1 are not true and correct, is familiar with omissions from the Registration Statement, the Time of Sale Prospectus and the Prospectus and has no knowledge of any material fact, condition or information not disclosed in the Time of Sale Prospectus Statement or the Prospectus that has had, or may have, a material adverse effect on the Company and its subsidiaries, taken as a whole. The Selling Stockholder does not possess any material non-public information concerning the Company or its subsidiaries which is not set forth in the Time of Sale Prospectus.
(i) Solely to the extent that any statements in, or omissions from, the Registration Statement are supplements thereto made in reliance upon and in conformity with information furnished in writing to the Company by the Selling Stockholder expressly specifically for use thereinin connection with the preparation thereof, 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) solely to the extent that any statements in, or omissions from, the Time of Sale Prospectus are made in reliance upon and in conformity with information furnished to the Company by the Selling Stockholder expressly for use therein, hereby makes the Time same representations and warranties to the Underwriter as the Company makes to the Underwriter under paragraph (b) of Sale Prospectus does not, and at the time of each sale Section 2. Any certificate signed by any officer of the Shares Selling Stockholder and delivered to the Underwriter or Underwriter's counsel in connection with the offering when the Prospectus is not yet available to prospective purchasers, the Time of Sale Prospectus, as then amended or supplemented by the Company, if applicable, will not, contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading, Shares shall be deemed a representation and (iii) solely to the extent that any statements in, or omissions from, the Prospectus are made in reliance upon and in conformity with information furnished to the Company warranty by the Selling Stockholder expressly for use therein, the Prospectus does not contain andStockholder, as amended or supplementedto matters covered thereby, 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) 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 thereinUnderwriter.
Appears in 1 contract
Representations and Warranties of the Selling Stockholder. The Selling Stockholder represents and warrants to to, and agrees with with, each of the several Underwriters and the Company that:
(ai) This The Selling Stockholder is a corporation in good standing under the laws of the State of Israel. The Selling Stockholder has full power and authority to own its assets and to conduct its business.
(ii) The Selling Stockholder has full right, power (corporate and other) and authority to enter into this Agreement has and the Agreement and Power of Attorney and to sell, assign, transfer and deliver to the Underwriters the Shares to be sold by the Selling Stockholder hereunder; and the execution and delivery of this Agreement and the Agreement and Power of Attorney have been duly authorized, executed and delivered authorized by or on behalf all necessary action of the Selling Stockholder.
(biii) The executionSelling Stockholder has duly executed and delivered this Agreement and the Agreement and Power of Attorney and, delivery assuming due execution of this Agreement by the Representatives of the Underwriters, this Agreement and performance the Agreement and Power of Attorney constitute the valid and binding agreements of the Selling Stockholder enforceable against the Selling Stockholder in accordance with its terms, subject, as to enforcement, to applicable bankruptcy, insolvency, reorganization and moratorium laws and other laws relating to or affecting the enforcement of creditors' rights generally and to general equitable principles and, with respect to this Agreement and the Agreement and Power of Attorney, except as the enforceability of rights to indemnity and contribution under this Agreement may be limited under applicable securities laws or the public policy underlying such laws.
(iv) No consent, approval, authorization, order or declaration of or form, or registration, qualification or filing with, any court or governmental agency or body is required for the sale of the Shares to be sold by the Selling Stockholder or the consummation of the transactions contemplated by this Agreement and the Agreement and Power of Attorney, 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 Underwriters.
(v) The sale of the Shares to be sold by the Selling Stockholder and the performance of this Agreement and the Agreement and the Power of Attorney and the consummation of the transactions therein and herein contemplated will not (i) conflict with, or, with or without the giving of notice or the passage of time or both, result in a breach or violation of any of the terms or provisions of, or constitute a default under under, any material indenture, mortgage, deed of trust, loan agreement agreement, lease or other agreement or instrument to which the Selling Stockholder or any of its subsidiaries is a party or by to which the Selling Stockholder any of their respective material properties or assets is boundsubject, (ii) result in nor will such action conflict with or violate any violation of the provisions provision of the charter documents or by-by- laws or similar organizational documents of the Selling Stockholder or (iii) result in the violation governing instruments of any law or statute of its subsidiaries or any judgment, orderstatute, rule or regulation or any order, judgement or decree of any court or arbitrator governmental agency or governmental body having jurisdiction over the Selling Stockholder or regulatory authority, except, in the case of clauses (i) and (iii) above, for any such conflict, breach, violation or default that would not materially and adversely affect the sale of the Shares and the consummation of any other of the transactions herein contemplatedSelling Stockholder's material properties or assets.
(c) No consent, approval, authorization, order, registration or qualification of or with any court or arbitrator or governmental or regulatory authority is required for the execution, delivery and performance by the Selling Stockholder of this Agreement, except such as may be required for the registration of the Shares under the Securities Act and such consents, approvals, authorizations, orders and registrations or qualifications as have been obtained or may be required by FINRA and under applicable state securities laws and foreign securities laws in connection with the purchase and distribution of the Shares by the Underwriters.
(dvi) The Selling Stockholder has, and on immediately prior to the Option Closing Date (as defined in Section 4 hereof), the Selling Stockholder will have, good and valid title to, or a valid “security entitlement” within the meaning of Section 8-501 of the New York Uniform Commercial Code in respect of, to the Shares to be sold by the Selling Stockholder hereunder, free and clear of all liens, security interests, claimspledges, lienscharges, encumbrances, defects, shareholders' agreements, voting trusts, equities or claims of any nature whatsoever (other encumbrances and the legal right and power, and all authorization and approval required by law, than pursuant to enter into this Agreement and the Agreement and Power of Attorney); and, upon delivery of such Shares against payment therefor as provided herein, good and valid title to sellsuch Shares, transfer free and deliver clear of all liens, security interests, pledges, charges, encumbrances, defects, stockholders' agreements, voting trusts, equities or claims of any nature whatsoever, will pass to the Shares to be sold by several Underwriters.
(vii) Neither the Selling Stockholder nor any of its officers, directors or a 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 entitlement in respect of such Sharesthe 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.
(eviii) Upon payment for To the Shares to be sold by such Selling Stockholder pursuant to this Agreement, delivery of such Shares, as directed by the Underwriters, to Cede & Co. (“Cede”) or such other nominee as may be designated by the Depository Trust Company (“DTC”), registration of such Shares in the name of Cede or such other nominee and the crediting of such Shares on the books of DTC to securities accounts best knowledge of the Underwriters (assuming that neither DTC nor any such Underwriter has notice of any adverse claim (within the meaning of Section 8-105 of the New York Uniform Commercial Code (the “UCC”)) to such Shares)Selling Stockholder, (A) DTC shall be a “protected purchaser” of such Shares within the meaning of Section 8-303 of the UCC, (B) under Section 8-501 of the UCC, the Underwriters will acquire a valid security entitlement in respect of such Shares and (C) no action based on any “adverse claim”, within the meaning of Section 8-102 of the UCC, to such Shares may be asserted against the Underwriters with respect to such security entitlement; for purposes of this representation, the Selling Stockholder may assume that when such payment, delivery and crediting occur, (x) such Shares will have been registered in the name of Cede or another nominee designated by DTC, in each case on the Company’s share registry in accordance with its certificate of incorporation, bylaws and applicable law, (y) DTC will be registered as a “clearing corporation” within the meaning of Section 8-102 of the UCC and (z) appropriate entries to the accounts of the several Underwriters on the records of DTC will have been made pursuant to the UCC.
(f) The Selling Stockholder has no reason to believe that the representations and warranties of the Company contained in Section 1 1(a) hereof are not true and correct.
(ix) Certificates in negotiable form for the Optional shares to be sold hereunder by the Selling Stockholder have been placed in custody, is familiar with for the Registration Statementpurpose of making delivery of such Optional Shares under this Agreement, under the Time Agreement and Power of Sale Prospectus and Attorney which appoints Xxxxx Xxxxxxxx as custodian (the Prospectus and has no knowledge of any material fact, condition or information not disclosed in "Custodian") for 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 wholeSelling Stockholder. The Selling Stockholder does not possess any material non-public information concerning agrees that the Company or its subsidiaries which is not set forth Optional Shares represented by the certificates held in custody for it under the Time Agreement and Power of Sale Prospectus.
(i) Solely Attorney are for the benefit of and coupled with and subject to the extent that any statements in, or omissions frominterest hereunder of the Custodian, the Registration Statement are Underwriters and the Company, that the arrangements made in reliance upon and in conformity with information furnished to the Company by the Selling Stockholder expressly for use therein, such custody and the Registration Statement, when it became effective, did not contain and, as amended or supplemented, if applicable, will not contain any untrue statement appointment 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) solely to the extent that any statements in, or omissions from, the Time of Sale Prospectus are made in reliance upon and in conformity with information furnished to the Company Custodian by the Selling Stockholder expressly for use therein, the Time of Sale Prospectus does notare irrevocable, and at that the time obligations of each sale of the Shares in connection with the offering when the Prospectus is not yet available to prospective purchasers, the Time of Sale Prospectus, as then amended or supplemented by the Company, if applicable, will not, contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading, and (iii) solely to the extent that any statements in, or omissions from, the Prospectus are made in reliance upon and in conformity with information furnished to the Company by the Selling Stockholder expressly for use thereinhereunder shall not be terminated by operation of law, 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 liquidation of the circumstances under which they were madeSelling Stockholder or any other event, not misleadingand after any such liquidation or event, except that certificates for the representations Optional Shares shall be delivered by the Custodian in accordance with the terms and warranties set forth in conditions of this paragraph 2(g) do not apply to statements or omissions in Agreement and any actions taken by the Registration Statement or the Prospectus based upon information relating to any Underwriter furnished Custodian pursuant to the Company Agreement and Power of Attorney shall be as valid as if such liquidation or other event had not occurred, regardless of whether or not the Custodian shall have received notice thereof. In order to document the Underwriters' compliance with the reporting and withholding provisions of the Code, with respect to the transactions herein contemplated, the Selling Stockholder agrees to deliver to the Representatives prior to or at the Option Closing Date, a properly completed and executed United States Treasury Department Form W-8 or other applicable form or statement specified by Treasury Department regulations in writing by such Underwriter through you expressly for use thereinlieu thereof.
Appears in 1 contract
Representations and Warranties of the Selling Stockholder. The Selling Stockholder represents represents, warrants and warrants covenants to and agrees with each of the Underwriters thatUnderwriter as follows:
(a) None of the Registration Statement, the Time of Sale Prospectus or the Prospectus or any amendments or supplements thereto includes any untrue statement of a material fact or omits to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading, provided that such representations and warranties set forth in this subsection B(a) apply only to statements or omissions made in reliance upon and in conformity with information relating to the Selling Stockholder furnished in writing by or on behalf of the Selling Stockholder expressly for use in the Registration Statement, the Time of Sale Prospectus, the Prospectus or any other free writing prospectus or any amendment or supplement thereto; it being understood and agreed that such information only includes the information relating to the Selling Stockholder under the caption “Selling Stockholder” in the Time of Sale Prospectus or the Prospectus.
(b) This Agreement has been duly authorized, executed and delivered by or on behalf of the Selling Stockholder.
(bc) The execution, execution and delivery of this Agreement and performance the sale and delivery of the Offered Shares to be sold by the Selling Stockholder and the consummation of this Agreement the transactions contemplated herein and compliance by the Selling Stockholder with its obligations hereunder do not and will not not, whether with or without the giving of notice or passage of time or both (i) conflict with or result in constitute a breach or violation of any of the terms or provisions of, or constitute a default under under, or result in the creation or imposition of any tax, lien, charge or encumbrance upon the Offered Shares to be sold by the Selling Stockholder or any property or assets of the Selling Stockholder pursuant to any contract, indenture, mortgage, deed of trust, loan agreement or credit agreement, note, license, lease or other agreement or instrument to which the Selling Stockholder is a party or by which the Selling Stockholder may be bound, or to which any of the property or assets of the Selling Stockholder is boundsubject, (ii) result in any violation of the provisions of the charter or by-laws or similar other organizational documents instrument of the Selling Stockholder or Stockholder, if applicable, (iii) result in the any violation of the provisions of any law or statute or any applicable law, statute, rule, regulation, judgment, order, rule writ or regulation decree of any court government, government instrumentality or arbitrator court, domestic or governmental foreign, having jurisdiction over the Selling Stockholder or regulatory authorityany of its properties, except, except in the case of clauses (i) and (iii) above, for any such conflict, breach, default or violation that would not, individually or default in the aggregate, have a material adverse effect on the ability of the Selling Stockholder to consummate the transactions contemplated by this Agreement or the ability of the Selling Stockholder to perform its obligations hereunder and except in the case of (i) for any such tax, lien, charge or encumbrance that would not materially and adversely affect be paid or eliminated prior to the sale delivery of the Offered Shares and the consummation of any other of the transactions herein contemplated.
(c) No consent, approval, authorization, order, registration or qualification of or with any court or arbitrator or governmental or regulatory authority is required for the execution, delivery and performance by the Selling Stockholder of this Agreementon the First Closing Date or any applicable Option Closing Date, except such as the case may be required for the registration of the Shares under the Securities Act and such consents, approvals, authorizations, orders and registrations or qualifications as have been obtained or may be required by FINRA and under applicable state securities laws and foreign securities laws in connection with the purchase and distribution of the Shares by the Underwritersbe.
(d) The Selling Stockholder has, and on at the First Closing Date and each Option Closing Date, will have, valid title to, or a valid “security entitlement” within to the meaning of Section 8-501 of the New York Uniform Commercial Code in respect of, the Offered Shares to be sold by the Selling Stockholder 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 Offered Shares to be sold by the Selling Stockholder or a valid security entitlement in respect of such Offered Shares.
(e) Upon payment of the purchase price for the Offered Shares to be sold by such the Selling Stockholder pursuant to this Agreement, delivery of such Offered Shares, as directed by the UnderwritersUnderwriter, to Cede & Co. (“Cede”) or such other nominee as may be designated by the The Depository Trust Company (“DTC”) (unless delivery of such Offered Shares is unnecessary because such Offered Shares are already in possession of Cede or such nominee), registration of such Offered Shares in the name of Cede or such other nominee (unless registration of such Offered Shares is unnecessary because such Offered Shares are already registered in the name of Cede or such nominee), and the crediting of such Offered Shares on the books of DTC to securities accounts (within the meaning of Section 8-501(a) of the Underwriters UCC) of the Underwriter (assuming that neither DTC nor any such Underwriter has notice of any “adverse claim (claim,” within the meaning of Section 8-105 of the New York Uniform Commercial Code then in effect in the State of New York (the “UCC”)) , to such Offered Shares), (A) DTC shall be a “protected purchaser” of such Shares within the meaning of Section 8-303 of the UCC, (B) under Section 8-501 of the UCC, the Underwriters Underwriter will acquire a valid “security entitlement entitlement” in respect of such Offered Shares and (CB) 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 Offered Shares may be asserted against the Underwriters Underwriter with respect to such security entitlement; for purposes of this representation, the Selling Stockholder may assume that when such payment, delivery (if necessary) and crediting occur, (xI) such Offered 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, (yII) DTC will be registered as a “clearing corporation,” within the meaning of Section 8-102 of the UCC and UCC, (zIII) appropriate entries to the accounts account of the several Underwriters 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 Offered Shares, maintains any “financial asset” (as defined in Section 8-102(a)(9) of the UCC) in a clearing corporation pursuant to Section 8-111 of the UCC, the rules of such clearing corporation may affect the rights of DTC or such securities intermediaries and the ownership interest of the Underwriter, (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 Offered Shares to satisfy claims of all of its entitlement holders with respect thereto then all holders will share pro rata in the Offered Shares then held by DTC or such securities intermediary.
(f) The Selling Stockholder has no reason not taken, and will not take, directly or indirectly, any action that is designed to believe that or which constituted or would be expected to cause or result in stabilization or manipulation of the representations and warranties price of any security of the Company contained in Section 1 are not true and correctto facilitate the sale or resale of the Offered Shares.
(g) No filing with, or consent, approval, authorization, order, registration, qualification or decree of any arbitrator, court, governmental body, regulatory body, administrative agency or other authority, body or agency, domestic or foreign, is familiar necessary or required for the performance by the Selling Stockholder of its obligations hereunder, or in connection with the sale and delivery of the Offered Shares hereunder or the consummation of the transactions contemplated by this Agreement, except such as have been already obtained or as may be required under the Securities Act, the Exchange Act, the rules of the NYSE, state securities laws or the rules of FINRA.
(h) The Selling Stockholder does not have any registration or other similar rights to have any equity or debt securities registered for sale by the Company under the Registration Statement, except as described in the Registration Statement, the Time of Sale Prospectus and the Prospectus and has no knowledge of (or any material factdisclosure incorporated by reference therein), condition or information not disclosed included in the Time of Sale Prospectus or the Prospectus that has had, or may have, a material adverse effect on the Company and its subsidiaries, taken as a whole. The Selling Stockholder does not possess any material non-public information concerning the Company or its subsidiaries which is not set forth in the Time of Sale Prospectusoffering contemplated by this Agreement.
(i) Solely The Selling Stockholder has not prepared or had prepared on its behalf or used or referred to, any free writing prospectus, and has not distributed any written materials in connection with the offer or sale of the Offered Shares.
(j) The Selling Stockholder is not currently subject to any U.S. sanctions administered by OFAC and will not directly or indirectly use the extent that any statements inproceeds of this offering, or omissions fromlend, contribute or otherwise make available such proceeds to any subsidiary, or any joint venture partner or other person or entity, for the Registration Statement are made purpose of financing the activities of any person currently subject to any U.S. sanctions administered by OFAC or in reliance upon and any other manner that will result in conformity with information furnished to a violation by any person (including any person participating in the Company transaction whether as underwriter, advisor, investor or otherwise) of U.S. sanctions administered by OFAC. Any certificate signed by the Selling Stockholder expressly for use therein, 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) solely and delivered to the extent that any statements in, Underwriter or omissions from, to counsel for the Time of Sale Prospectus are made in reliance upon Underwriter shall be deemed a representation and in conformity with information furnished to the Company warranty by the Selling Stockholder expressly to the Underwriter as to the matters covered thereby. The Selling Stockholder has a reasonable basis for use therein, the Time of Sale Prospectus does not, and at the time of making each sale of the Shares in connection with the offering when the Prospectus is not yet available to prospective purchasers, the Time of Sale Prospectus, as then amended or supplemented by the Company, if applicable, will not, contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading, and (iii) solely to the extent that any statements in, or omissions from, the Prospectus are made in reliance upon and in conformity with information furnished to the Company by the Selling Stockholder expressly for use therein, 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) do not apply Section 1B. The Selling Stockholder acknowledges that the Underwriter and, for purposes of the opinion to statements or omissions in the Registration Statement or the Prospectus based upon information relating be delivered pursuant to any Underwriter furnished Section 6 hereof, counsel to the Company in writing by Selling Stockholder and counsel to the Underwriter, will rely upon the accuracy and truthfulness of the foregoing representations and hereby consents to such Underwriter through you expressly for use thereinreliance.
Appears in 1 contract
Representations and Warranties of the Selling Stockholder. The Selling Stockholder represents and warrants to and agrees with each of the Underwriters that:
(a) This Agreement has been duly authorized, executed and delivered by or on behalf of the Selling Stockholder.
(b) The executionexecution and delivery by the Selling Stockholder of, delivery and the performance by the Selling Stockholder of the Selling Stockholder's obligations under, this Agreement will not contravene any provision of applicable law (i) conflict with or result in excluding any violation arising from a breach or violation of any of the terms or provisions ofCompany's representation in Section 1(b)), or constitute a default under any indenture, mortgage, deed of trust, loan agreement or other agreement or instrument to which the Selling Stockholder is a party or by which the Selling Stockholder is bound, (ii) result in any violation of the provisions of the charter or by-laws or similar organizational documents of binding upon the Selling Stockholder or (iii) result in the violation of any law or statute or any judgment, order, rule order or regulation decree of any governmental body, agency or court or arbitrator or governmental or regulatory authorityhaving jurisdiction over the Selling Stockholder, except, in the case of clauses (i) and (iii) above, for any such conflict, breach, violation or default that would not materially and adversely affect the sale of the Shares and the consummation of any other of the transactions herein contemplated.
(c) No consent, approval, authorization, order, registration or qualification of or with any court or arbitrator or governmental or regulatory authority no Approval is required for the execution, delivery issuance and performance sale of the Additional Shares by the Selling Stockholder to the Underwriters pursuant to the terms of this Agreement, except such as may be required for by the registration securities or Blue Sky laws of the Shares under the Securities Act and such consents, approvals, authorizations, orders and registrations or qualifications as have been obtained or may be required by FINRA and under applicable state securities laws and foreign securities laws various states in connection with the purchase offer and distribution sale of the Additional Shares by the UnderwritersSelling Stockholder, and except for Approvals which if not obtained would not have a material adverse effect on the Selling Stockholder and would not materially impair the Selling Stockholder's performance of its obligations under this Agreement.
(dc) The Selling Stockholder has, and on the Closing Date will have, valid title to, or a valid “security entitlement” within to the meaning of Section 8-501 of the New York Uniform Commercial Code in respect of, the Additional Shares to be sold by the Selling Stockholder 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 Additional Shares to be sold by the Selling Stockholder.
(d) Delivery of the Shares to be sold by the Selling Stockholder pursuant to this Agreement will pass title to such Shares free and clear of any security interests, claims, liens, equities and other encumbrances created or a security entitlement in respect of such Sharessuffered by the Selling Stockholder except restrictions imposed by applicable securities laws.
(e) Upon payment for the Shares to be sold All information furnished in writing by or on behalf of such Selling Stockholder pursuant relating to this Agreement, delivery of such Shares, as directed by the Underwriters, to Cede & Co. (“Cede”) or such other nominee as may be designated by the Depository Trust Company (“DTC”), registration of such Shares in the name of Cede or such other nominee and the crediting of such Shares on the books of DTC to securities accounts of the Underwriters (assuming that neither DTC nor any such Underwriter has notice of any adverse claim (within the meaning of Section 8-105 of the New York Uniform Commercial Code (the “UCC”)) to such Shares), (A) DTC shall be a “protected purchaser” of such Shares within the meaning of Section 8-303 of the UCC, (B) under Section 8-501 of the UCC, the Underwriters will acquire a valid security entitlement in respect of such Shares and (C) no action based on any “adverse claim”, within the meaning of Section 8-102 of the UCC, to such Shares may be asserted against the Underwriters with respect to such security entitlement; for purposes of this representation, the Selling Stockholder may assume that when such payment, delivery and crediting occur, (x) such Shares will have been registered for use in the name of Cede or another nominee designated by DTC, in each case on the Company’s share registry in accordance with its certificate of incorporation, bylaws and applicable law, (y) DTC will be registered as a “clearing corporation” within the meaning of Section 8-102 of the UCC and (z) appropriate entries to the accounts of the several Underwriters on the records of DTC will have been made pursuant to the UCC.
(f) The Selling Stockholder has no reason to believe that the representations and warranties of the Company contained in Section 1 are not true and correct, is familiar with the Registration Statement, the Time of Sale Prospectus and the Prospectus and has no knowledge of any material fact, condition or information not disclosed in the Time of Sale Prospectus or the Prospectus that has had, or may have, a material adverse effect on the Company and its subsidiaries, taken as a whole. The Selling Stockholder does not possess any material non-public information concerning the Company or its subsidiaries which is not set forth in the Time of Sale Prospectus.
(i) Solely to the extent that any statements in, or omissions from, the Registration Statement are made in reliance upon and in conformity with information furnished to the Company by the Selling Stockholder expressly for use therein, 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) solely to the extent that any statements in, or omissions from, the Time of Sale Prospectus are made in reliance upon and in conformity with information furnished to the Company by the Selling Stockholder expressly for use therein, the Time of Sale Prospectus does not, and at on the time of each sale of the Shares in connection with the offering when the Prospectus is not yet available to prospective purchasers, the Time of Sale Prospectus, as then amended or supplemented by the Company, if applicable, Closing Date will not, contain any untrue statement of a material fact or omit to state a any material fact necessary to make the statements therein, in the light of the circumstances under which they were made, such information not misleading, and (iii) solely to the extent that any statements in, or omissions from, the Prospectus are made in reliance upon and in conformity with all information furnished in writing by or on behalf of such Selling Stockholder relating to the Company by the Selling Stockholder expressly for use therein, in 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 any material fact necessary to make the statements therein, such information not misleading 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 you expressly for use therein.
Appears in 1 contract
Representations and Warranties of the Selling Stockholder. The Selling Stockholder represents and warrants to and agrees with each of the Underwriters that:
(a) This Agreement has been duly authorized, executed and delivered by or on behalf of the Selling Stockholder.
(b) The executionexecution and delivery by the Selling Stockholder of, delivery and the performance by the Selling Stockholder of its obligations under, this Agreement and the Power of Attorney appointing certain individuals as the Selling Stockholder’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) conflict with any provision of applicable law, (ii) the certificate of incorporation or result in a breach bylaws or violation of any equivalent documents of the terms or provisions ofSelling Stockholder, or constitute a default under (iii) any indenture, mortgage, deed of trust, loan agreement lease or other similar agreement or instrument to which binding upon the Selling Stockholder, (iv) any agreement or other instrument binding upon the Selling Stockholder that is a party or by which the Selling Stockholder is bound, (ii) result in any violation of the provisions of the charter or by-laws or similar organizational documents of material to the Selling Stockholder or (iiiv) result in the violation of any law or statute or any judgment, order, rule order or regulation decree of any governmental body, agency or court or arbitrator or governmental or regulatory authorityhaving jurisdiction over the Selling Stockholder, except, in the case of clauses (i), (iii), (iv) and (iiiv) above, for any such conflict, breach, violation or default contraventions that would not materially reasonably be expected to have a material adverse effect on the Selling Stockholder’s ability to perform its obligations under this Agreement, and adversely affect the sale of the Shares and the consummation of any other of the transactions herein contemplated.
(c) No no consent, approval, authorizationauthorization or order of, order, registration or qualification of with, any governmental body or with any court or arbitrator or governmental or regulatory authority agency is required for the execution, delivery and performance by the Selling Stockholder of its obligations under this AgreementAgreement or the Power of Attorney of the Selling Stockholder, except such as may be required for by the registration securities or Blue Sky laws of the Shares under the Securities Act and such consents, approvals, authorizations, orders and registrations or qualifications as have been obtained or may be required by FINRA and under applicable state securities laws and foreign securities laws various states in connection with the purchase offer and distribution sale of the Shares by the UnderwritersShares.
(dc) The Selling Stockholder has, and on the Closing Date will have, valid title to, or a valid “security entitlement” within the meaning of Section 8-501 of the New York Uniform Commercial Code in respect of, the Shares to be sold by the Selling Stockholder free and clear of all security interests, claims, liens, equities or other encumbrances and the legal right and power, and all authorization and approval required by law, to enter into this Agreement and the Power of Attorney and to sell, transfer and deliver the Shares to be sold by the Selling Stockholder or a security entitlement in respect of such Shares.
(d) The Power of Attorney has been duly authorized, executed and delivered by the Selling Stockholder and is a valid and binding agreement of the Selling Stockholder.
(e) Upon payment for the Shares to be sold by such the Selling Stockholder pursuant to this Agreement, delivery of such Shares, as directed by the Underwriters, to Cede & Co. (“Cede”) or such other nominee as may be designated by the Depository Trust Company (“DTC”), registration of such Shares in the name of Cede or such other nominee and the crediting of such Shares on the books of DTC to securities accounts of the Underwriters (assuming that neither DTC nor any such Underwriter has notice of any adverse claim (within the meaning of Section 8-105 of the New York Uniform Commercial Code (the “UCC”)) to such Shares), (A) DTC each of the Underwriters shall be a “protected purchaser” of such Shares within the meaning of Section 8-303 of the UCC, (B) under Section 8-501 of the UCC, the Underwriters will acquire a valid security entitlement in respect of such Shares and (C) no action based on any “adverse claim”, ,” within the meaning of Section 8-102 of the UCC, to such Shares may be asserted against the Underwriters with respect to such security entitlement; for purposes of this representation, the Selling Stockholder 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 corporationsecurities intermediary” within the meaning of Section 8-102 of the UCC and (z) appropriate entries to the accounts of the several Underwriters on the records of DTC will have been made pursuant to the UCC.
(f) The Selling Stockholder has no reason to believe that the representations and warranties of the Company contained in Section 1 are is not true and correct, is familiar with the Registration Statement, the Time of Sale Prospectus and the Prospectus and has no knowledge of any material fact, condition or information not disclosed in the Time of Sale Prospectus or the Prospectus that has had, or may have, a material adverse effect on the Company and its subsidiaries, taken as a whole. The Selling Stockholder does not possess prompted by any material non-public information concerning the Company or its subsidiaries which is not set forth in the Time of Sale ProspectusProspectus to sell its Shares pursuant to this Agreement.
(i) Solely to the extent that any statements in, or omissions from, the Registration Statement are made in reliance upon and in conformity with information furnished to the Company by the Selling Stockholder expressly for use therein, the The Registration Statement, when it became effective, did not contain and, as amended or supplemented, if applicable, will not contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading, (ii) solely to the extent that any statements in, or omissions from, the Time of Sale Prospectus are made in reliance upon and in conformity with information furnished to the Company by the Selling Stockholder expressly for use therein, 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 purchaserspurchasers and at the Closing 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 or omit to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading, and (iii) solely 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 extent that any statements in, or omissions from, the Prospectus are made in reliance upon and in conformity with information furnished to the Company by the Selling Stockholder expressly for use therein, in the light of the circumstances under which they were made, not misleading and (iv) the Prospectus does not contain and, as amended or supplemented, if applicable, will not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading, except provided that the representations and warranties set forth in this paragraph 2(g) do not apply are limited to statements or omissions made in the Registration Statement or the Prospectus based reliance upon information relating to any Underwriter the Selling Stockholder furnished to the Company in writing by such Underwriter through you the Selling Stockholder expressly for use thereinin the Registration Statement, the Time of Sale Prospectus, the roadshow the Prospectus or any amendments or supplements thereto. For purposes of this Agreement, the only information furnished to the Company by the Selling Stockholder is the legal name and address of, and the number of shares beneficially owned and offered by, the Selling Stockholder, and the other information with respect to and furnished by the Selling Stockholder that appears under the caption “Principal and Selling Stockholders” in the Preliminary Prospectus (collectively, the “Selling Stockholder Information”).
(i) Neither the Selling Stockholder nor any of its subsidiaries, or, to the knowledge of the Selling Stockholder, any director, officer, employee, agent, representative, or affiliate thereof, is a Person that is, or is owned or controlled by one or more Persons that are:
(A) the subject of any Sanctions, or
(B) located, organized or resident in a country or territory that is the subject of Sanctions (including, without limitation, Crimea, Cuba, Iran, North Korea and Syria).
(ii) The Selling Stockholder will not, directly or indirectly, use the proceeds of the offering, or lend, contribute or otherwise make available such proceeds to any subsidiary, joint venture partner or other Person:
(A) to fund or facilitate any activities or business of or with any Person or in any country or territory that, at the time of such funding or facilitation, is the subject of Sanctions; or
(B) in any other manner that will result in a violation of Sanctions by any Person (including any Person participating in the offering, whether as underwriter, advisor, investor or otherwise).
(iii) For the past five years, the Selling Stockholder has not knowingly engaged in, is not now knowingly engaged in, and will not engage in any dealings or transactions with any Person, or in any country or territory, that at the time of the dealing or transaction is or was the subject of Sanctions.
(a) Neither the Selling Stockholder nor its subsidiaries, or, to the knowledge of the Selling Stockholder, any director, officer, employee, agent, representative, or affiliate thereof has taken or will take any action in furtherance of an offer, payment, promise to pay, or authorization or approval of the payment giving or receipt of money, property, gifts or anything else of value, directly or indirectly, to any Government Official in order to influence official action, or to any person in violation of any applicable anti-corruption laws; (b) the Selling Stockholder and its subsidiaries have conducted their businesses in compliance with applicable anti-corruption laws and have instituted and maintained and will continue to maintain policies and procedures reasonably designed to promote and achieve compliance with such laws and with the representations and warranties contained herein; and (c) neither the Selling Stockholder nor any of its subsidiaries will use, directly or indirectly, the proceeds of the offering in furtherance of an offer, payment, promise to pay, or authorization of the payment or giving of money, or anything else of value, to any person in violation of any applicable anti-corruption laws.
(v) The operations of the Selling Stockholder and its subsidiaries are and have been conducted at all times in compliance with all applicable Anti-Money Laundering Laws, and no action, suit or proceeding by or before any court or governmental agency, authority or body or any arbitrator involving the Selling Stockholder or any of its subsidiaries with respect to the Anti-Money Laundering Laws is pending or, to the knowledge of the Selling Stockholder, threatened.
(i) The Selling Stockholder represents and warrants that it is not (i) an employee benefit plan subject to Title I of the Employee Retirement Income Security Act of 1974, as amended (“ERISA”), (ii) a plan or account subject to Section 4975 of the Internal Revenue Code of 1986, as amended or (iii) an entity deemed to hold “plan assets” of any such plan or account under Section 3(42) of ERISA, 29 C.F.R. 2510.3-101, or otherwise.
(j) No Dutch registration tax, stamp duty, or any other similar documentary tax or duty is payable in the Netherlands or to any Dutch taxing authority by or on behalf of the Underwriters, the Company or any of its subsidiaries as a result of (i) the execution, delivery or consummation of this Agreement by the Selling Stockholder, (ii) the sale and delivery of the Shares to be sold by the Selling Stockholder to the Underwriters or purchasers procured by the Underwriters, or (iii) the resale and delivery of such Shares by the Underwriters in the manner contemplated herein.
(k) The Selling Stockholder has the power to submit, and pursuant to Section 9(d) has, to the extent permitted by law, legally, validly, effectively and irrevocably submitted, to the jurisdiction of the Specified Courts (as defined in Section 9(d)), and has the power to designate, appoint and empower, and pursuant to Section 9(d), has legally, validly and effectively designated, appointed and empowered an agent for service of process in any suit or proceeding based on or arising under this Agreement in any of the Specified Courts.
Appears in 1 contract
Representations and Warranties of the Selling Stockholder. The Selling Stockholder represents and warrants to to, and agrees with each of with, the Underwriters Underwriter that:: (a)
(ai) The Selling Stockholder on the Closing Date will have good and marketable title to the Selling Stockholder Firm Shares and, if applicable, any Additional Shares to be sold by the Selling Stockholder hereunder and full right, power and authority to enter into this Agreement and to sell, assign, transfer and deliver the Selling Stockholder Shares free and clear of all voting trust arrangements, pledges, liens, encumbrances, equities, security interests and claims; and upon the delivery and payment for such Shares hereunder, the Underwriter will acquire good and marketable title to such Shares, free and clear of all voting trust arrangements, pledges, liens, encumbrances, equities, security interests and claims.
(ii) This Agreement and the transactions contemplated herein have been duly and validly authorized by the Selling Stockholder, and this Agreement has been duly authorized, and validly executed and delivered by or on behalf of the Selling Stockholder.
(biii) The execution, delivery and performance by the Selling Stockholder of this Agreement and the consummation of the transactions contemplated hereby will not (iA) conflict with or result in a breach or violation of any of the terms or and provisions of, or constitute a default under (or an event which with notice or lapse of time, or both, would constitute a default) under, or result in the creation or imposition of any indenturelien, mortgagecharge or encumbrance upon any property or assets of the Selling Stockholder pursuant to any agreement, deed of trustinstrument, loan agreement franchise, license or other agreement or instrument permit to which the Selling Stockholder is a party or by which the Selling Stockholder is bound, any of its properties or assets may be bound or (iiB) result in violate or conflict with any violation of the provisions of the charter or by-laws or similar organizational documents limited partnership agreement of the Selling Stockholder or (iii) result in the violation of any law or statute or any judgment, decree, order, statute, rule or regulation of any court or arbitrator or any public, governmental or regulatory authority, except, in agency or body having jurisdiction over the case Selling Stockholder or any of clauses (i) and (iii) above, for any such conflict, breach, violation its properties or default that would not materially and adversely affect the sale of the Shares and the consummation of any other of the transactions herein contemplated.
(c) assets. No consent, approval, authorization, order, registration registration, filing, qualification, license or qualification permit of or with any court or arbitrator or any public, governmental or regulatory authority agency or body having jurisdiction over the Selling Stockholder or any of its properties or assets is required for the execution, delivery and performance by the Selling Stockholder of this AgreementAgreement or the consummation of the transactions contemplated hereby, except such as may be required for the registration under the Act of the Shares Shares, filings under the Securities Exchange Act resulting from the sale of the Firm Shares and the Additional Shares, if any, and such consents, approvals, authorizations, orders orders, registrations, filings, qualifications, licenses and registrations or qualifications permits as have been obtained or may be required by FINRA and under applicable state securities laws and foreign securities or Blue Sky laws in connection with the purchase and distribution of the Shares by the UnderwritersUnderwriter.
(d) The Selling Stockholder has, and on the Closing Date will have, valid title to, or a valid “security entitlement” within the meaning of Section 8-501 of the New York Uniform Commercial Code in respect of, the Shares to be sold by the Selling Stockholder free and clear of all security interests, claims, liens, equities or other encumbrances and the legal right and power, and all authorization and approval required by law, to enter into this Agreement and to sell, transfer and deliver the Shares to be sold by the Selling Stockholder or a security entitlement in respect of such Shares.
(e) Upon payment for the Shares to be sold by such Selling Stockholder pursuant to this Agreement, delivery of such Shares, as directed by the Underwriters, to Cede & Co. (“Cede”) or such other nominee as may be designated by the Depository Trust Company (“DTC”), registration of such Shares in the name of Cede or such other nominee and the crediting of such Shares on the books of DTC to securities accounts of the Underwriters (assuming that neither DTC nor any such Underwriter has notice of any adverse claim (within the meaning of Section 8-105 of the New York Uniform Commercial Code (the “UCC”)) to such Shares), (A) DTC shall be a “protected purchaser” of such Shares within the meaning of Section 8-303 of the UCC, (B) under Section 8-501 of the UCC, the Underwriters will acquire a valid security entitlement in respect of such Shares and (C) no action based on any “adverse claim”, within the meaning of Section 8-102 of the UCC, to such Shares may be asserted against the Underwriters with respect to such security entitlement; for purposes of this representation, the Selling Stockholder may assume that when such payment, delivery and crediting occur, (x) such Shares will have been registered in the name of Cede or another nominee designated by DTC, in each case on the Company’s share registry in accordance with its certificate of incorporation, bylaws and applicable law, (y) DTC will be registered as a “clearing corporation” within the meaning of Section 8-102 of the UCC and (z) appropriate entries to the accounts of the several Underwriters on the records of DTC will have been made pursuant to the UCC.
(fiv) The Selling Stockholder has no reason not taken and will not take, directly or indirectly, any action designed to believe that cause or result in, or which constitutes or which might be reasonably be expected to constitute, the representations and warranties stabilization or manipulation of the Company contained in Section 1 are not true and correct, is familiar with price of the Registration Statement, shares of Common Stock to facilitate the Time sale or resale of Sale Prospectus and the Prospectus and has no knowledge of any material fact, condition or information not disclosed in the Time of Sale Prospectus or the Prospectus that has had, or may have, a material adverse effect on the Company and its subsidiaries, taken as a whole. The Selling Stockholder does not possess any material non-public information concerning the Company or its subsidiaries which is not set forth in the Time of Sale ProspectusShares.
(iv) Solely to At the extent that any statements in, or omissions from, time of the effectiveness of the Registration Statement are made in reliance upon and in conformity with information furnished or the effectiveness of the post-effective amendment to the Company by the Selling Stockholder expressly for use therein, the Registration Statement, when it became effectivethe Prospectus is first filed with the Commission pursuant to the Rule 424(b) of the Regulations, did not contain andwhen any supplement to or amendment of the Prospectus is filed with the Commission, as amended or supplementedwhen any document is filed under the Exchange Act and at the Closing Date and the Additional Closing Date, if applicableany, the Registration Statement and the Prospectus and any amendments thereof and supplements thereto, insofar as they relate to the Selling Stockholder, comply or will comply in all material respects with the applicable provisions of the Act and the Regulations and the Exchange Act and the respective rules and regulations thereunder and do not or will not contain any an untrue statement of a material fact and do not or 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, in light of the circumstances in 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 or pursuant to Rule 424(a) of the Regulations) and when any amendment thereof or supplement thereto was first filed with the Commission, insofar as such preliminary prospectus relates to the Selling Stockholder, such preliminary prospectus and any amendments thereof and supplements thereto complied in all material respects with the applicable provisions of the Act and the Regulations and the Exchange Act and the respective rules and regulations thereunder 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 to make the statements therein in light of the circumstances under which they were made not misleading. No representation and warranty is made in this subsection (v), (ii) solely however, with respect to any information contained in or omitted from the extent that Registration Statement or the Prospectus or any statements in, related preliminary prospectus or omissions from, the Time of Sale Prospectus are made any amendment thereof or supplement thereto in reliance upon and in conformity with information furnished in writing to the Company by or on behalf the Selling Stockholder Underwriter as herein stated expressly for use therein, the Time of Sale Prospectus does not, and at the time of each sale of the Shares in connection with the offering when preparation thereof. (b) (i) The Selling Stockholder and the Prospectus is related parties listed on Schedule II agree with the Company and the Underwriter, except as provided in this Agreement, not yet available to prospective purchaserssell, offer or agree to sell, grant any option for the sale of, pledge or otherwise dispose of, directly or indirectly, any Common Stock for a period of 90 days after this Agreement becomes effective without the Underwriter's prior written consent. Notwithstanding the preceding sentence, the Time Underwriter acknowledges that all shares of Sale Prospectus, as then amended or supplemented by the Company, if applicable, will not, contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading, and (iii) solely to the extent that any statements in, or omissions from, the Prospectus are made in reliance upon and in conformity with information furnished to the Company Common Stock owned by the Selling Stockholder expressly for use thereinare held in a brokerage margin account and are pledged to secure margin borrowings, and the Prospectus does Underwriter agree that any such shares 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) do not apply to statements or omissions in the Registration Statement or the Prospectus based upon information relating to any Underwriter furnished sold to the Company Underwriter hereunder may continue to be so pledged during the 90-day period described in writing by such Underwriter through you expressly for use thereinsentence.
Appears in 1 contract
Representations and Warranties of the Selling Stockholder. The Selling Stockholder represents and warrants to and agrees with each of the Underwriters Company that:
(a) The Seller Stockholder has all requisite corporate power and authority to enter into this Agreement and to consummate the transactions contemplated hereby.
(b) This Agreement has been duly authorized, executed and delivered by or on behalf the Selling Stockholder, has been effectively authorized by all necessary action, and constitutes the legal, valid and binding obligation of the Selling Stockholder, enforceable against the Selling Stockholder in accordance with its terms, except as such enforceability may be limited by laws relating to bankruptcy, insolvency, reorganization or other laws relating to creditors’ rights generally or by general principles of equity.
(bc) The executionSelling Stockholder is the record and beneficial owner of the Securities. The Selling Stockholder has good and valid title to the Securities, free and clear of all adverse claims within the meaning of the New York Uniform Commercial Code.
(d) The execution and delivery of this Agreement by the Selling Stockholder and performance the consummation by the Selling Stockholder of this Agreement the transactions contemplated hereby do not and will not (i) conflict with or result in a breach or violation of any of the terms or provisions of, or constitute a default under under, or conflict with (i)the certificate of incorporation or bylaws of the Selling Stockholder, (ii) any indenture, mortgage, deed of trust, loan material agreement or other agreement or instrument to which the Selling Stockholder is a party or by which it is bound, (iii) any judgment, decree, order or award of any court, governmental body or arbitrator by which the Selling Stockholder is boundbound or (iv) any material Federal or State law, (ii) result in any violation of the provisions of the charter rule or by-laws or similar organizational documents of regulation applicable to the Selling Stockholder or (iii) result in the violation of any law or statute or any judgment, order, rule or regulation of any court or arbitrator or governmental or regulatory authority, except, in the case of clauses (i) and (iii) above, for any such conflict, breach, violation or default that would not materially and adversely affect the sale of the Shares and the consummation of any other of the transactions herein contemplatedits property.
(ce) No consent, approval, authorization, filing, order, registration or qualification of or with any court or arbitrator governmental agency or governmental or regulatory authority body is required for the execution, delivery and performance sale of the Securities by the Selling Stockholder of this Agreement, except such as may be required for the registration of the Shares under the Securities Act and such consents, approvals, authorizations, orders and registrations or qualifications as have been obtained or may be required by FINRA and under applicable state securities laws and foreign securities laws in Stockholder.
(f) In connection with the purchase and distribution Selling Stockholder’s sale of the Shares by Securities, the Underwriters.
(d) Selling Stockholder has had the opportunity to ask the Company any and all relevant questions regarding, among other things, the business and operations of the Company. The Selling Stockholder has, and on to 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 extent deemed necessary by the Selling Stockholder free and clear Stockholder, consulted with the Selling Stockholder’s advisors (including the Selling Stockholder’s attorney, accountant or investment advisors) regarding the sale of all security interests, claims, liens, equities the Securities to the Company.
(g) No broker or other encumbrances and the legal right and power, and all authorization and approval required by law, to enter into this Agreement and to sell, transfer and deliver the Shares to be sold by finder has acted for the Selling Stockholder in connection with this Agreement or a security entitlement the transactions contemplated hereby, and no broker or finder is entitled to any brokerage or finder’s fee or other commissions in respect of such Sharestransactions.
(e) Upon payment for the Shares to be sold by such Selling Stockholder pursuant to this Agreement, delivery of such Shares, as directed by the Underwriters, to Cede & Co. (“Cede”) or such other nominee as may be designated by the Depository Trust Company (“DTC”), registration of such Shares in the name of Cede or such other nominee and the crediting of such Shares on the books of DTC to securities accounts of the Underwriters (assuming that neither DTC nor any such Underwriter has notice of any adverse claim (within the meaning of Section 8-105 of the New York Uniform Commercial Code (the “UCC”)) to such Shares), (A) DTC shall be a “protected purchaser” of such Shares within the meaning of Section 8-303 of the UCC, (B) under Section 8-501 of the UCC, the Underwriters will acquire a valid security entitlement in respect of such Shares and (C) no action based on any “adverse claim”, within the meaning of Section 8-102 of the UCC, to such Shares may be asserted against the Underwriters with respect to such security entitlement; for purposes of this representation, the Selling Stockholder may assume that when such payment, delivery and crediting occur, (x) such Shares will have been registered in the name of Cede or another nominee designated by DTC, in each case on the Company’s share registry in accordance with its certificate of incorporation, bylaws and applicable law, (y) DTC will be registered as a “clearing corporation” within the meaning of Section 8-102 of the UCC and (z) appropriate entries to the accounts of the several Underwriters on the records of DTC will have been made pursuant to the UCC.
(f) The Selling Stockholder has no reason to believe that the representations and warranties of the Company contained in Section 1 are not true and correct, is familiar with the Registration Statement, the Time of Sale Prospectus and the Prospectus and has no knowledge of any material fact, condition or information not disclosed in the Time of Sale Prospectus or the Prospectus that has had, or may have, a material adverse effect on the Company and its subsidiaries, taken as a whole. The Selling Stockholder does not possess any material non-public information concerning the Company or its subsidiaries which is not set forth in the Time of Sale Prospectus.
(i) Solely to the extent that any statements in, or omissions from, the Registration Statement are made in reliance upon and in conformity with information furnished to the Company by the Selling Stockholder expressly for use therein, 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) solely to the extent that any statements in, or omissions from, the Time of Sale Prospectus are made in reliance upon and in conformity with information furnished to the Company by the Selling Stockholder expressly for use therein, 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, the Time of Sale Prospectus, as then amended or supplemented by the Company, if applicable, will not, contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading, and (iii) solely to the extent that any statements in, or omissions from, the Prospectus are made in reliance upon and in conformity with information furnished to the Company by the Selling Stockholder expressly for use therein, 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) 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.
Appears in 1 contract
Samples: Repurchase Agreement (DreamWorks Animation SKG, Inc.)
Representations and Warranties of the Selling Stockholder. (a) The Selling Stockholder represents and warrants to to, and agrees with with, each Underwriter as of the Underwriters thatRepresentation Date, as follows:
(ai) The Selling Stockholder is the lawful owner of the Shares to be sold by the Selling Stockholder pursuant to this Agreement and has, and on each Closing Date, as applicable, will have, good, valid and clear title to such Shares, free of any and all restrictions on transfer, liens, encumbrances, security interests, equities, claims and other defects whatsoever.
(ii) The Selling Stockholder has, and on each Closing Date, as applicable, will have, full legal right, power and authority, and all authorizations and approvals required by law, to enter into this Agreement and to sell, assign, transfer and deliver the Shares to be sold by the Selling Stockholder in the manner provided herein.
(iii) This Agreement has been duly authorized, executed and delivered by or on behalf of the Selling Stockholder and is a legal, valid and binding agreement of the Selling Stockholder.
(biv) Upon delivery of and payment for the Shares to be sold by the Selling Stockholder pursuant to this Agreement, good, valid and clear title to such Shares will pass to the Underwriters, free and clear of all restrictions on transfer, liens, encumbrances, security interests, equities, claims and defects whatsoever.
(v) The execution, delivery and performance of this Agreement by the Selling Stockholder, the compliance by the Selling Stockholder with all the provisions hereof and the consummation by the Selling Stockholder of this Agreement the transactions contemplated hereby will not (iA) require the Selling Stockholder to obtain any consent, approval, authorization or other order of, or qualification with, any court or governmental body or agency (except as such may be required under the securities or blue sky laws of the various states or as have been or will be obtained), (B) conflict with or result in constitute a breach or violation of any of the terms or provisions of, or constitute a default under under, any indenture, loan agreement, mortgage, deed of trust, loan agreement lease, license or other agreement or instrument to which the Selling Stockholder is a party or by which the Selling Stockholder is bound, (ii) result in or any violation of the provisions of the charter or by-laws or similar organizational documents property of the Selling Stockholder is bound or (iiiC) result in the violation of to his knowledge, violate or conflict with any law applicable federal, state, local or statute foreign law, statute, rule, regulation or any judgment, order, rule order or regulation decree of any court or arbitrator any governmental body or governmental or regulatory authority, except, in the case of clauses (i) and (iii) above, for any such conflict, breach, violation or default that would not materially and adversely affect the sale of the Shares and the consummation of any other of the transactions herein contemplated.
(c) No consent, approval, authorization, order, registration or qualification of or with any court or arbitrator or governmental or regulatory authority is required for the execution, delivery and performance by the Selling Stockholder of this Agreement, except such as may be required for the registration of the Shares under the Securities Act and such consents, approvals, authorizations, orders and registrations or qualifications as have been obtained or may be required by FINRA and under applicable state securities laws and foreign securities laws in connection with the purchase and distribution of the Shares by the Underwriters.
(d) The Selling Stockholder has, and on the Closing Date will have, valid title to, or a valid “security entitlement” within the meaning of Section 8-501 of the New York Uniform Commercial Code in respect of, the Shares to be sold by the Selling Stockholder free and clear of all security interests, claims, liens, equities or other encumbrances and the legal right and power, and all authorization and approval required by law, to enter into this Agreement and to sell, transfer and deliver the Shares to be sold by agency having jurisdiction over the Selling Stockholder or a security entitlement in respect any property of such Sharesthe Selling Stockholder.
(evi) Upon payment for the Shares to be sold by such Selling Stockholder pursuant to this Agreement, delivery of such Shares, as directed by the Underwriters, to Cede & Co. (“Cede”) or such other nominee as may be designated by the Depository Trust Company (“DTC”), registration of such Shares The information in the name of Cede or such other nominee Registration Statement and Prospectus under the crediting of such Shares on the books of DTC caption "Principal and Selling Stockholder" which specifically relates to securities accounts of the Underwriters (assuming that neither DTC nor any such Underwriter has notice of any adverse claim (within the meaning of Section 8-105 of the New York Uniform Commercial Code (the “UCC”)) to such Shares), (A) DTC shall be a “protected purchaser” of such Shares within the meaning of Section 8-303 of the UCC, (B) under Section 8-501 of the UCC, the Underwriters will acquire a valid security entitlement in respect of such Shares and (C) no action based on any “adverse claim”, within the meaning of Section 8-102 of the UCC, to such Shares may be asserted against the Underwriters with respect to such security entitlement; for purposes of this representation, the Selling Stockholder may assume that when such paymentdoes not, delivery and crediting occur, (x) such Shares will have been registered in the name of Cede or another nominee designated by DTC, in each case on the Company’s share registry in accordance with its certificate of incorporation, bylaws and applicable law, (y) DTC will be registered as a “clearing corporation” within the meaning of Section 8-102 of the UCC and (z) appropriate entries to the accounts of the several Underwriters on the records of DTC will have been made pursuant to the UCC.
(f) The Selling Stockholder has no reason to believe that the representations and warranties of the Company contained in Section 1 are not true and correct, is familiar with the Registration Statement, the Time of Sale Prospectus and the Prospectus and has no knowledge of any material fact, condition or information not disclosed in the Time of Sale Prospectus or the Prospectus that has had, or may have, a material adverse effect on the Company and its subsidiaries, taken as a whole. The Selling Stockholder does not possess any material non-public information concerning the Company or its subsidiaries which is not set forth in the Time of Sale Prospectus.
(i) Solely to the extent that any statements in, or omissions from, the Registration Statement are made in reliance upon and in conformity with information furnished to the Company by the Selling Stockholder expressly for use therein, the Registration Statement, when it became effective, did not contain and, as amended or supplemented, if applicable, will not on any 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 to make the statements therein not misleading, (ii) solely to the extent that any statements in, or omissions from, the Time of Sale Prospectus are made in reliance upon and in conformity with information furnished to the Company by the Selling Stockholder expressly for use therein, 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, the Time of Sale Prospectus, as then amended or supplemented by the Company, if applicable, will not, contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleadingmisleading and the Selling Stockholder has agreed to immediately notify the Company, if, at any time during the period when a Prospectus is required by law to be delivered in connection with sales of Class A Common Stock by an Underwriter or a dealer, there is any material change in such information.
(vii) The Selling Stockholder has not taken, and (iii) solely 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 extent that any statements indistribution contemplated by this Agreement, or omissions fromand, other than as permitted by the Act, the Prospectus are made Selling Stockholder has not distributed and will not distribute any prospectus or other offering material in reliance upon connection with the Offering.
(viii) Each certificate signed by or on behalf of the Selling Stockholder and in conformity with information furnished delivered to the Company Underwriters or counsel of the Underwriters shall be deemed to be a representation and warranty by the Selling Stockholder expressly for use therein, 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) 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 thereinUnderwriters as to the matters covered thereby.
Appears in 1 contract
Samples: Underwriting Agreement (Mantech International Corp)
Representations and Warranties of the Selling Stockholder. (a) The Selling Stockholder represents and warrants to and to, and agrees with each of with, the Underwriters thatUnderwriter as follows:
(ai) This Each of this Agreement and the Custody Agreement (as defined below) (collectively, the “Selling Stockholder Agreements”) has been duly authorized, executed and delivered by or on behalf the Selling Stockholder, and constitutes a valid, legal and binding obligation of the Selling Stockholder.
(b) , enforceable in accordance with its terms, except as rights to indemnity hereunder may be limited by federal or state securities laws and except as such enforceability may be limited by bankruptcy, insolvency, reorganization or similar laws affecting the rights of creditors generally and subject to general principles of equity. The execution, delivery and performance by of the Selling Stockholder Agreements and the consummation of this Agreement the transactions herein and therein contemplated will not (i) conflict with or result in a breach or violation of any of the terms or and provisions of, or constitute a default under under, any indenture, mortgage, deed of trust, loan agreement statute or other agreement or instrument Contract to which the Selling Stockholder is a party or by which the Selling Stockholder is bound, (ii) result in bound or to which any violation of the provisions Selling Stockholder’s property is subject, or any order, rule, regulation or decree of the charter any court or by-laws governmental agency or similar organizational documents of body having jurisdiction over the Selling Stockholder or (iii) any of the Selling Stockholder’s properties, except for violations and defaults that individually or in the aggregate could not reasonably be expected to result in the violation of any law or statute or any judgment, order, rule or regulation of any court or arbitrator or governmental or regulatory authority, except, in the case of clauses (i) and a material adverse effect upon the Selling Stockholder’s ability to perform its obligations under this Agreement or (iiiii) abovethe creation of any lien, for any such conflictclaim, breachsecurity interest, violation equity or default that would not materially and adversely affect the sale of other encumbrance on the Shares and to be sold by the consummation of any other of the transactions herein contemplated.
Selling Stockholder (c) each, a “Selling Stockholder Material Adverse Effect”). No consent, approval, authorizationauthorization or order of, orderor filing with, registration or qualification of or with any court or arbitrator governmental agency or governmental or regulatory authority body is required for the execution, delivery and performance by of the Selling Stockholder of this Agreement, except such as may be required Agreements or for the registration consummation of the Shares under transactions contemplated hereby or thereby, including the Securities Act and such consents, approvals, authorizations, orders and registrations or qualifications as have been obtained or may be required by FINRA and under applicable state securities laws and foreign securities laws in connection with the purchase and distribution sale of the Shares by the UnderwritersSelling Stockholder, except as may be required under the Securities Act or state securities or blue sky laws; and the Selling Stockholder has the legal capacity, power and authority to enter into the Selling Stockholder Agreements and to sell the Shares as contemplated by the Selling Stockholder Agreements.
(dii) The Selling Stockholder hasis, and on the Closing Date will havedate hereof, valid title to, or a valid “security entitlement” within the meaning record and beneficial owner of Section 8-501 all of the New York Uniform Commercial Code in respect of, the Shares to be sold by the Selling Stockholder hereunder free and clear of all liens, claims, security interests, equities and other encumbrances and has duly indorsed such Shares in blank or has duly signed a stock power assigning all right, title and interest to the Shares to be sold by the Selling Stockholder, with all signatures appropriately guaranteed by an eligible guarantor institution with membership in an approved medallion guaranty program pursuant to Rule 17Ad-15 under the Exchange Act and, upon delivery of such Shares and payment therefor pursuant hereto, good and valid title to such Shares, free and clear of all liens, claims, lienssecurity interests, equities claims or other encumbrances will pass to the Underwriter.
(iii) On any Option Closing Date, all stock transfer or other taxes (other than income taxes) that are required to be paid in connection with the sale and transfer by the Selling Stockholder of the Shares will be fully paid or provided for by the Selling Stockholder and all laws imposing such taxes will be fully complied with.
(iv) The Selling Stockholder, directly or indirectly, has not entered into any existing commitment, transaction or other arrangement, including any prepaid forward contract, 10b5-1 plan or similar agreement, which transfers or may transfer any of the legal right and poweror beneficial ownership or any of the economic consequences of ownership of the Shares, and except as has been previously disclosed in writing to the Underwriter.
(v) Shares in book entry form representing all authorization and approval required by law, to enter into this Agreement and to sell, transfer and deliver of the Shares to be sold by the Selling Stockholder or hereunder have been placed in custody under a security entitlement Custody Agreement, in respect of such Sharesthe form heretofore furnished to you (the “Custody Agreement”), duly executed and delivered by the Selling Stockholder to American Stock Transfer & Trust Company, LLC, as custodian (the “Custodian”).
(evi) Upon payment for the Shares to be sold by such Selling Stockholder pursuant to this Agreement, delivery of such Shares, as directed by the Underwriters, to Cede & Co. (“Cede”) or such other nominee as may be designated by the Depository Trust Company (“DTC”), registration of such Shares in the name of Cede or such other nominee and the crediting of such Shares on the books of DTC to securities accounts of the Underwriters (assuming that neither DTC nor any such Underwriter has notice of any adverse claim (within the meaning of Section 8-105 of the New York Uniform Commercial Code (the “UCC”)) to such Shares), (A) DTC shall be a “protected purchaser” of such Shares within the meaning of Section 8-303 of the UCC, (B) under Section 8-501 of the UCC, the Underwriters will acquire a valid security entitlement book entry form held in respect of such Shares and (C) no action based on any “adverse claim”, within the meaning of Section 8-102 of the UCC, to such Shares may be asserted against the Underwriters with respect to such security entitlement; custody for purposes of this representation, the Selling Stockholder may assume under the Custody Agreement are subject to the interests of the Underwriter hereunder; the arrangements made by the Selling Stockholder for such custody are to that when extent irrevocable; the obligations of the Selling Stockholder under the Selling Stockholder Agreements shall not be terminated by operation of law, whether by the death or incapacity of any individual Selling Stockholder; and if any individual Selling Stockholder should die or become incapacitated, or if any other such payment, delivery and crediting event should occur, (x) such before the delivery of the Shares will have been registered in hereunder, the name Shares shall be delivered by or on behalf of Cede or another nominee designated by DTC, in each case on the Company’s share registry Selling Stockholder in accordance with its certificate the terms and conditions of incorporation, bylaws this 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 Custody Agreement, regardless of whether or not the accounts Custodian shall have received notice of the several Underwriters on the records of DTC will have been made pursuant to the UCCsuch death, incapacity, termination, dissolution or other event.
(fvii) The Selling Stockholder has no reason to believe represents and warrants that the representations and warranties Selling Stockholder has not prepared or had prepared on the Selling Stockholder’s behalf or used or referred to any “free writing prospectus” (as defined in Rule 405 of the Company contained Act) and further represents that the Selling Stockholder has not distributed and will not distribute any written materials in Section 1 are not true and correct, is familiar connection with the offer or sale of the Shares that could otherwise constitute a “free writing prospectus” (as defined in Rule 405 of the Act) required to be filed with the Commission or retained under Rule 433 of the Act.
(viii) All information relating to the Selling Stockholder in the Registration Statement, the Time of Sale Prospectus and the Prospectus and has no knowledge of Disclosure Package or any material fact, condition or information not disclosed in the Time of Sale Prospectus or the Prospectus that has had, or may have, a material adverse effect on the Company and its subsidiaries, taken as a whole. The Selling Stockholder does not possess any material non-public information concerning the Company or its subsidiaries which is not set forth in the Time of Sale Prospectus.
(i) Solely to the extent that any statements in, or omissions from, the Registration Statement are made in reliance upon and in conformity with information furnished to the Company by the Selling Stockholder expressly for use therein, the Registration Statement, when it became effective, did not contain and, as amended or supplementedthe case may be, if applicableis as of the Closing Date and any Option Closing Date, will not contain any untrue statement of a true, correct, and complete in all material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleadingrespects, (ii) solely to the extent that any statements in, or omissions from, the Time of Sale Prospectus are made in reliance upon and in conformity with information furnished to the Company by the Selling Stockholder expressly for use therein, 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, the Time of Sale Prospectus, as then amended or supplemented by the Company, if applicable, will not, contain any untrue statement of a material fact or omit to state a any material fact necessary to make such information not misleading. In addition, the statements therein, Selling Stockholder confirms as accurate the number of shares of Common Stock set forth opposite the Selling Stockholder’s name in the light Time of Sale Disclosure Package and any Prospectus under the caption “Principal and Selling Stockholders” (both prior to and after giving effect to the sale of the circumstances Shares).
(ix) The Selling Stockholder does not have any registration or other similar rights to have any equity or debt securities registered for sale by the Company under which they were madethe Registration Statement or included in an offering contemplated by this Agreement, except for such rights that have been fully and irrevocably waived.
(x) The Selling Stockholder has not misleadingtaken 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 any security of the Company to facilitate the sale or resale of the Shares.
(b) Any certificate signed by the Selling Stockholder, as the Selling Stockholder hereunder, and (iii) solely delivered to the extent that any statements in, Underwriter or omissions from, the Prospectus are made in reliance upon and in conformity with information furnished to the Company Underwriter’s counsel shall be deemed a representation and warranty by the Selling Stockholder expressly for use therein, 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) 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 thereinas to the matters covered thereby.
Appears in 1 contract
Representations and Warranties of the Selling Stockholder. The Selling Stockholder represents and warrants to and agrees with each of the Underwriters that:
(a) This Agreement has been duly authorized, executed and delivered by or on behalf of the Selling Stockholder.
(b) The executionexecution and delivery by or on behalf of the Selling Stockholder of, delivery and the performance by the Selling Stockholder of its obligations under, this Agreement, the Custody Agreement signed by the Selling Stockholder and American Stock Transfer & Trust Company, LLC, as Custodian, relating to the deposit of the Shares to be sold by the Selling Stockholder (the “Custody Agreement”) and the Power of Attorney appointing certain individuals as the Selling Stockholder’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) conflict with or result in a breach or violation any provision of any of the terms or provisions ofapplicable law, or constitute a default under any indenture, mortgage, deed of trust, loan agreement or other agreement or instrument to which the Selling Stockholder is a party or by which the Selling Stockholder is bound, (ii) result in any violation the memorandum and articles of the provisions of the charter or by-laws association, or similar organizational documents of the Selling Stockholder Stockholder, or (iii) result in any agreement or other instrument binding upon the violation of any law Selling Stockholder or statute or (iv) any judgment, order, rule order or regulation decree of any governmental body, agency or court or arbitrator or governmental or regulatory authorityhaving jurisdiction over the Selling Stockholder, except, except in the case of clauses (i), (iii) and (iiiiv) aboveas would not, for any such conflictindividually or in the aggregate, breach, violation or default that would not materially and adversely affect have a material adverse effect on the sale ability of the Shares Selling Stockholder to consummate the transactions contemplated by this Agreement, the Custody Agreement and the consummation Power of any other of the transactions herein contemplated.
(c) No Attorney, and no consent, approval, authorizationauthorization or order of, order, registration or qualification of with, any governmental body, agency or with any court or arbitrator or governmental or regulatory authority is required for the execution, delivery and performance by the Selling Stockholder of its obligations under this AgreementAgreement or the Custody Agreement or Power of Attorney of the Selling Stockholder, except such as have been obtained and made under the Securities Act, such as may be required for by the registration of Exchange Act or the Shares under the Securities Act rules and such consents, approvals, authorizations, orders and registrations or qualifications as have been obtained regulations thereunder or may be required by FINRA and under applicable state the securities or Blue Sky laws and foreign securities laws of the various states or non-US jurisdictions in connection with the purchase offer and distribution sale of the Shares by the UnderwritersShares.
(dc) The Selling Stockholder has, and on the Closing Date will have, valid title to, or a valid “security entitlement” within the meaning of Section 8-501 of the New York Uniform Commercial Code in respect of, the Shares to be sold by the Selling Stockholder free and clear of all security interests, claims, liens, equities or other encumbrances and the legal right and power, and all authorization and approval required by law, to enter into this Agreement, the Custody Agreement and the Power of Attorney and to sell, transfer and deliver the Shares to be sold by the such Selling Stockholder or a security entitlement in respect of such Shares.
(d) The Custody Agreement and the Power of Attorney have been duly authorized, executed and delivered by or on behalf of the Selling Stockholder and are valid and binding agreements of the Selling Stockholder, enforceable against the Selling Stockholder, 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.
(e) Upon payment for the Shares to be sold by such the Selling Stockholder pursuant to this Agreement, delivery of such Shares, as directed by the Underwriters, to Cede & Co. (“Cede”) or such other nominee as may be designated by the Depository Trust Company (“DTC”), registration of such Shares in the name of Cede or such other nominee and the crediting of such Shares on the books of DTC to securities accounts of the Underwriters (assuming that neither DTC nor any such Underwriter has notice of any adverse claim (within the meaning of Section 8-105 of the New York Uniform Commercial Code (the “UCC”)) to such Shares), (A) DTC shall be a “protected purchaser” of such Shares within the meaning of Section 8-303 of the UCC, (B) under Section 8-501 of the UCC, the Underwriters will acquire a valid security entitlement in respect of such Shares and (C) no action based on any “adverse claim”, within the meaning of Section 8-102 of the UCC, to such Shares may be successfully asserted against the Underwriters with respect to such security entitlement; for purposes of this representation, the Selling Stockholder may assume that when such payment, delivery and crediting occur, (x) such Shares will have been registered in the name of Cede or another nominee designated by DTC, in each case on the Company’s share registry in accordance with its certificate of incorporation, bylaws and applicable law, (y) DTC will be registered as a “clearing corporation” within the meaning of Section 8-102 of the UCC and (z) appropriate entries to the accounts of the several Underwriters on the records of DTC will have been made pursuant to the UCC.
(f) The Selling Stockholder has no reason delivered to believe that the representations and warranties of Representatives an executed lock-up agreement in substantially the Company contained in Section 1 are not true and correct, is familiar with form attached hereto as Exhibit A (the Registration Statement, the Time of Sale Prospectus and the Prospectus and has no knowledge of any material fact, condition or information not disclosed in the Time of Sale Prospectus or the Prospectus that has had, or may have, a material adverse effect on the Company and its subsidiaries, taken as a whole. “Lock-up Agreement”).
(g) The Selling Stockholder does is not possess prompted by any material non-public information concerning the Company or its subsidiaries which is not set forth in the Time of Sale ProspectusProspectus to sell its Shares pursuant to this Agreement.
(i) Solely to the extent that any statements in, or omissions from, the Registration Statement are made in reliance upon and in conformity with information furnished to the Company by the Selling Stockholder expressly for use therein, the The Registration Statement, when it became effective, did not contain and, as amended or supplemented, if applicable, will not contain contain, as of the date of such amendment or supplement, any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading, (ii) solely to the extent that any statements in, or omissions from, the Time of Sale Prospectus are made in reliance upon and in conformity with information furnished to the Company by the Selling Stockholder expressly for use therein, 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 purchaserspurchasers and at the Closing Date (as defined in Section 5), the Time of Sale Prospectus, as then amended or supplemented by the Company, if applicable, will not, contain contain, as of the date of such amendment or supplement, any untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading, and (iii) solely 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 extent that any statements in, or omissions from, the Prospectus are made in reliance upon and in conformity with information furnished to the Company by the Selling Stockholder expressly for use therein, in the Prospectus light of the circumstances under which they were made, not misleading and (iv) the Prospectus, as of its date, does not contain and, as amended or supplemented, if applicable, will not contain as of the date of any amendment or supplement 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) do not apply are limited in all respects to statements or omissions made in the Registration Statement or the Prospectus based reliance upon and in conformity with information relating to any Underwriter the Selling Stockholder furnished to the Company in writing by such Underwriter through you the Selling Stockholder expressly for use thereinin the Registration Statement, any roadshow or Prospectus or any amendment or supplement thereto, it being understood and agreed that the only information furnished by the Selling Stockholder consists of the name of the Selling Stockholder, the number of offered shares and the address and other information with respect to the Selling Stockholder (excluding percentages) which appear in the Registration Statement or any Prospectus in the table (and corresponding footnotes) under the caption “Principal and Selling Stockholders” (with respect to the Selling Stockholder, the “Selling Stockholder Information”).
(i) Neither the Selling Stockholder nor any of its subsidiaries, or, to the knowledge of the Selling Stockholder, any director, officer, employee, agent, representative, or affiliate thereof, is a Person that is, or is owned or controlled by one or more Persons that are:
(A) the subject of any Sanctions; or
(B) located, organized or resident in a country or territory that is the subject of Sanctions (including, without limitation, Crimea, Cuba, Iran, North Korea and Syria).
(ii) The Selling Stockholder will not, directly or indirectly, use the proceeds of the offering, or lend, contribute or otherwise make available such proceeds to any subsidiary, joint venture partner or other Person:
(A) to fund or facilitate any activities or business of or with any Person or in any country or territory that, at the time of such funding or facilitation, is the subject of Sanctions; or
(B) in any other manner that will result in a violation of Sanctions by any Person (including any Person participating in the offering, whether as underwriter, advisor, investor or otherwise).
(iii) For the past 5 years, the Selling Stockholder has not knowingly engaged in, is not now knowingly engaged in, and will not knowingly engage in, any dealings or transactions with any Person, or in any country or territory, that at the time of the dealing or transaction is or was the subject of Sanctions.
(a) Neither the Selling Stockholder nor any of its subsidiaries or controlled affiliates, or, to the knowledge of the Selling Stockholder, any director, officer, employee, agent, representative, or affiliate thereof has taken or will take any action in furtherance of an offer, payment, promise to pay, or authorization or approval of the payment giving or receipt of money, property, gifts or anything else of value, directly or indirectly, to any Government Official in order to influence official action, or to any person in violation of any applicable anti-corruption laws; (b) the Selling Stockholder and each of its subsidiaries and controlled affiliates have conducted their businesses in compliance with applicable anti-corruption laws; and (c) neither the Selling Stockholder nor any of its subsidiaries will use, directly or indirectly, the proceeds of the offering in furtherance of an offer, payment, promise to pay, or authorization of the payment or giving of money, or anything else of value, to any person in violation of any applicable anti-corruption laws.
(j) The operations of such Selling Stockholder and each of its subsidiaries are and have been conducted at all times in material compliance with all applicable Anti-Money Laundering Laws, and no action, suit or proceeding by or before any court or governmental agency, authority or body or any arbitrator involving such Selling Stockholder or any of its subsidiaries with respect to the Anti-Money Laundering Laws is pending or, to the knowledge of the Selling Stockholder, threatened.
(k) The Selling Stockholder represents and warrants that it is not (i) an employee benefit plan subject to Title I of the Employee Retirement Income Security Act of 1974, as amended (“ERISA”), (ii) a plan or account subject to Section 4975 of the Internal Revenue Code of 1986, as amended or (iii) an entity deemed to hold “plan assets” of any such plan or account under Section 3(42) of ERISA, 29 C.F.R. 2510.3-101, or otherwise.
(l) The Selling Stockholder has not taken, directly or indirectly, any action designed to or that would reasonably be expected to cause or result in any stabilization or manipulation of the price of the Shares.
(m) No stamp, documentary, issuance, registration, transfer, withholding, capital gains, income or other taxes or duties are payable by or on behalf of the Underwriters, the Company or any of its subsidiaries or to any taxing authority thereof or therein in connection with (i) the execution, delivery or consummation of this Agreement, (ii) the sale and delivery of the Shares to the Underwriters or purchasers procured by the Underwriters, or (iii) the resale and delivery of the Shares by the Underwriters in the manner contemplated herein.
(n) The Selling Stockholder has the power to submit, and pursuant to Section 18(a) has, to the extent permitted by law, legally, validly, effectively and irrevocably submitted, to the jurisdiction of the Specified Courts (as defined in Section 18(a)), and has the power to designate, appoint and empower, and pursuant to Section 18(c), has legally, validly and effectively designated, appointed and empowered an agent for service of process in any suit or proceeding based on or arising under this Agreement in any of the Specified Courts.
Appears in 1 contract
Representations and Warranties of the Selling Stockholder. The Selling Stockholder represents and warrants to to, and agrees with each with, the several Underwriters as of the Underwriters date hereof and as of the Closing Date and each Additional Closing Date that:
(a) This Agreement has been duly authorized, executed and delivered by or on behalf of the Selling Stockholder. The Selling Stockholder has full legal capacity, right and authority to sell, transfer and deliver in the manner provided in this Agreement the Shares being sold by such Selling Stockholder hereunder.
(b) The executionSuch Selling Stockholder has good and valid title to the Shares to be sold by such Selling Stockholder hereto, free and clear of all security interests, liens, encumbrances, equities or other claims, and, upon delivery of and performance by payment for such Shares, the Selling Stockholder will deliver to the Underwriters good and valid title to such Shares, free and clear of this Agreement will not (i) conflict with or result in a breach or violation of any of the terms or provisions ofall security interests, or constitute a default under any indentureliens, mortgageencumbrances, deed of trust, loan agreement equities or other agreement or instrument to which the Selling Stockholder is a party or by which the Selling Stockholder is bound, (ii) result in any violation of the provisions of the charter or by-laws or similar organizational documents of the Selling Stockholder or (iii) result in the violation of any law or statute or any judgment, order, rule or regulation of any court or arbitrator or governmental or regulatory authority, except, in the case of clauses (i) and (iii) above, for any such conflict, breach, violation or default that would not materially and adversely affect the sale of the Shares and the consummation of any other of the transactions herein contemplatedclaims.
(c) No consent, approval, authorization, and no order, registration or qualification of of, or with filing with, any third party (whether acting in an individual, fiduciary or other capacity) or any court or arbitrator governmental agency or governmental or regulatory authority body is required for the execution, delivery and performance consummation by the such Selling Stockholder of this Agreementthe transactions contemplated herein, except such as may be required for the registration of the Shares have been obtained under the Securities Act and such consents, approvals, authorizations, orders and registrations or qualifications as have been obtained or may be required by FINRA and under applicable state securities the blue sky laws and foreign securities laws of any jurisdiction in connection with the purchase and distribution of the Shares by the UnderwritersUnderwriters and such other approvals as have been obtained.
(d) The Neither the sale of the Shares being sold by such Selling Stockholder has, and on nor the Closing Date will have, valid title to, or a valid “security entitlement” within the meaning consummation of Section 8-501 any other of the New York Uniform Commercial Code in respect of, the Shares to be sold transactions herein contemplated by the Selling Stockholder free and clear of all security interests, claims, liens, equities or other encumbrances and the legal right and power, and all authorization and approval required by law, to enter into this Agreement and to sell, transfer and deliver the Shares to be sold by the such Selling Stockholder or the fulfillment of the terms hereof by such Selling Stockholder will conflict with, result in a security entitlement in respect breach or violation of, or constitute a default under any law or the charter, by-laws or other organizational documents of such SharesSelling Stockholder or the terms of any indenture or other agreement or instrument to which such Selling Stockholder or any of its subsidiaries is a party or by which such Selling Stockholder or any of its subsidiaries is bound, or any statute, rule, regulation, judgment, order or decree applicable to such Selling Stockholder or any of its subsidiaries of any court, regulatory body, administrative agency, governmental body or arbitrator having jurisdiction over such Selling Stockholder or any of its subsidiaries.
(e) Upon payment for Except as disclosed in the Shares to be sold by such Prospectus, there are no contracts, agreements or understandings between the Selling Stockholder pursuant and any person that would give rise to this Agreement, delivery of such Shares, as directed by a valid claim against the Underwriters, to Cede & Co. (“Cede”) Selling Stockholder or such other nominee as may be designated by the Depository Trust Company (“DTC”), registration of such Shares in the name of Cede or such other nominee and the crediting of such Shares on the books of DTC to securities accounts any of the Underwriters (assuming that neither DTC nor any such Underwriter has notice of any adverse claim (within for a brokerage commission, finder's fee or other like payment in connection with the meaning of Section 8-105 of the New York Uniform Commercial Code (the “UCC”)) to such Shares), (A) DTC shall be a “protected purchaser” of such Shares within the meaning of Section 8-303 of the UCC, (B) under Section 8-501 of the UCC, the Underwriters will acquire a valid security entitlement in respect of such Shares and (C) no action based on any “adverse claim”, within the meaning of Section 8-102 of the UCC, to such Shares may be asserted against the Underwriters with respect to such security entitlement; for purposes of transactions contemplated by this representation, the Selling Stockholder may assume that when such payment, delivery and crediting occur, (x) such Shares will have been registered in the name of Cede or another nominee designated by DTC, in each case on the Company’s share registry in accordance with its certificate of incorporation, bylaws and applicable law, (y) DTC will be registered as a “clearing corporation” within the meaning of Section 8-102 of the UCC and (z) appropriate entries to the accounts of the several Underwriters on the records of DTC will have been made pursuant to the UCCAgreement.
(f) The Selling Stockholder has no reason Subject to believe the last sentence of this Section 2(f), at the respective times that the representations Registration Statement and warranties of any post-effective amendments thereto became effective and at the Company contained in Section 1 are not true and correctClosing Date or Additional Closing Date, is familiar with the Registration Statement, the Time of Sale Prospectus and the Prospectus and has no knowledge of any material fact, condition or information not disclosed in the Time of Sale Prospectus or the Prospectus that has had, or may have, a material adverse effect on the Company and its subsidiaries, taken as a whole. The Selling Stockholder does not possess any material non-public information concerning the Company or its subsidiaries which is not set forth in the Time of Sale Prospectus.
(i) Solely to the extent that any statements in, or omissions fromappropriate, the Registration Statement are made in reliance upon and in conformity with information furnished to the Company by the Selling Stockholder expressly for use therein, the Registration Statement, when it became effective, any amendments and supplements thereto did not contain and, as amended or supplemented, if applicable, and will not contain any an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading, (ii) solely . Subject to the extent that last sentence of this Section 2(f), neither the Prospectus nor any amendment or supplement thereto, at the time the Prospectus or any amendment or supplement thereto was issued and at the Closing Date or Additional Closing Date, as appropriate, included or will include an untrue statement of a material fact or omitted or will omit to state a material fact necessary in order to make the statements intherein, in light of the circumstances under which they were made, not misleading. The representations and warranties in this subsection shall only apply to statements in or omissions from, from the Time of Sale Registration Statement or the Prospectus are made in reliance upon and in conformity with information furnished to the Company in writing by the Selling Stockholder expressly for use thereinin the Registration Statement or the Prospectus, which the Time of Sale Prospectus does not, parties acknowledge that the information set forth under the caption "Principal and at the time of each sale of the Shares Selling Stockholder" in connection with the offering when the Prospectus is not yet available to prospective purchasers, the Time of Sale Prospectus, as then amended or supplemented by the Company, if applicable, will not, contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading, and (iii) solely that relates to the extent that any statements in, or omissions from, Selling Stockholder (the Prospectus are made in reliance upon and in conformity with "Selling Stockholder Statements") constitute the only information furnished to the Company in writing by or on behalf of the Selling Stockholder expressly for use therein, 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) do not apply to statements or omissions in the Registration Statement relating to the Shares as originally filed or in any amendment thereof, related preliminary prospectus or the Prospectus based upon information relating or in any amendment thereof or supplement thereto, as the case may be.
(g) Such Selling Stockholder has not taken, directly or indirectly, any action designed to or that would constitute or that could reasonably be expected to cause or result in, under the Exchange Act or otherwise, stabilization or manipulation of the price of any Underwriter furnished security of the Company to facilitate the sale or resale of the Shares in violation of Regulation M under the Exchange Act.
(h) The Selling Stockholder has not distributed and, prior to the Company completion of the distribution of the Shares, will not distribute without the Representatives' prior written consent, any offering material in writing connection with the offering and sale of the Shares other than as permitted by such Underwriter through you expressly the Securities Act. Any certificate signed by or on behalf of the Selling Stockholder and delivered to the Representatives or to counsel for use thereinthe Underwriters shall be deemed to be a representation and warranty by the Selling Stockholder to the Underwriters as to the matters covered thereby.
Appears in 1 contract
Representations and Warranties of the Selling Stockholder. (a) The Selling Stockholder represents and warrants to to, and agrees with each of with, the Underwriters thatas follows:
(ai) This Agreement has and the custody agreement and stock power related to the deposit of the Secondary Shares (the “Custody Documents”) have been duly authorized, executed and delivered by or on behalf the Selling Stockholder, and constitute valid, legal and binding obligations of the Selling Stockholder.
(b) , enforceable in accordance with their terms, except as rights to indemnity hereunder may be limited by federal or state securities laws and except as such enforceability may be limited by bankruptcy, insolvency, reorganization or similar laws affecting the rights of creditors generally and subject to general principles of equity. The execution, delivery and performance by the Selling Stockholder of this Agreement and the Custody Documents and the consummation of the transactions herein and therein contemplated will not (i) conflict with or result in a breach or violation of any of the terms or and provisions of, or constitute a default under under, any indenturestatute, mortgage, deed of trust, loan agreement or other agreement or instrument to which the Selling Stockholder is a party or by which it is bound or to which any of its property is subject, or any order, rule, regulation or decree of any court or governmental agency or body having jurisdiction over the Selling Stockholder is boundor any of its properties. The execution, (ii) delivery and performance of this Agreement and the Custody Documents and the consummation of the transactions herein and therein contemplated will not result in any a breach or violation of the provisions any of the terms and provisions of, or constitute a default under, the Selling Stockholder’s charter or by-laws or similar organizational documents of the Selling Stockholder or (iii) result in the violation of any law or statute or any judgment, order, rule or regulation of any court or arbitrator or governmental or regulatory authority, except, in the case of clauses (i) and (iii) above, for any such conflict, breach, violation or default that would not materially and adversely affect the sale of the Shares and the consummation of any other of the transactions herein contemplated.
(c) laws. No consent, approval, authorizationauthorization or order of, orderor filing with, registration or qualification of or with any court or arbitrator governmental agency or governmental or regulatory authority body is required for the execution, delivery and performance of this Agreement or the Custody Documents or for the consummation of the transactions contemplated hereby or thereby, including the sale of the Secondary Shares by the Selling Stockholder of this AgreementStockholder, except such as may be required for the registration of the Shares under the Securities Act and such consents, approvals, authorizations, orders and registrations or qualifications as have been obtained or may be required by FINRA and under applicable state securities laws or blue sky laws; and foreign securities laws in connection with the purchase Selling Stockholder has the power and distribution of authority to enter into this Agreement and to sell the Shares as contemplated by the Underwritersthis Agreement.
(dii) The Selling Stockholder hasis, and on the Closing Date will havedate hereof, valid title to, or a valid “security entitlement” within the meaning record and beneficial owner of Section 8-501 all of the New York Uniform Commercial Code Shares to be sold by it hereunder free and clear of all liens, encumbrances, equities and claims and has duly indorsed such Shares in respect ofblank or has duly signed a stock power assigning all right, title and interest to the Shares to be sold by the Selling Stockholder free and clear of Stockholder, with all security interestssignatures appropriately guaranteed by an eligible guarantor institution with membership in an approved medallion guaranty program pursuant to Rule 17Ad-15 under the Exchange Act.
(iii) On the applicable Closing Date, claims, liens, equities all stock transfer or other encumbrances and the legal right and power, and all authorization and approval taxes (other than income taxes) that are required by law, to enter into this Agreement and to sell, transfer and deliver the Shares to be sold paid in connection with the sale and transfer by the Selling Stockholder of the Shares will be fully paid or a security entitlement in respect of provided for by the Selling Stockholder and all laws imposing such Sharestaxes will be fully complied with.
(eiv) Upon payment for the Shares to be sold by such Selling Stockholder pursuant to this Agreement, delivery of such Shares, as directed by the Underwriters, to Cede & Co. (“Cede”) or such other nominee as may be designated by the Depository Trust Company (“DTC”), registration of such Shares in the name of Cede or such other nominee and the crediting of such Shares on the books of DTC to securities accounts of the Underwriters (assuming that neither DTC nor any such Underwriter has notice of any adverse claim (within the meaning of Section 8-105 of the New York Uniform Commercial Code (the “UCC”)) to such Shares), (A) DTC shall be a “protected purchaser” of such Shares within the meaning of Section 8-303 of the UCC, (B) under Section 8-501 of the UCC, the Underwriters will acquire a valid security entitlement in respect of such Shares and (C) no action based on any “adverse claim”, within the meaning of Section 8-102 of the UCC, to such Shares may be asserted against the Underwriters All information with respect to such security entitlement; for purposes of this representation, the Selling Stockholder may assume that when such payment, delivery and crediting occur, (x) such Shares will have been registered contained in the name Registration Statement, the Time of Cede Sale Disclosure Package and the Final Prospectus, or another nominee designated by DTCany amendment or supplement thereto, complied or will comply in each case on the Company’s share registry in accordance all material respects with its certificate of incorporation, bylaws and all applicable law, (y) DTC will be registered as a “clearing corporation” within the meaning of Section 8-102 requirements of the UCC Securities Act and (z) appropriate entries does 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 accounts of the several Underwriters on the records of DTC will have been made pursuant to the UCCstatements therein not misleading.
(fv) The Selling Stockholder has no reason not, directly or indirectly, entered into any commitment, transaction or other arrangement, including any prepaid forward contract, 10b5-1 plan or similar agreement, which transfers or may transfer any of the legal or beneficial ownership or any of the economic consequences of ownership of the Shares, except as has been previously disclosed in writing to the Underwriters.
(vi) The Selling Stockholder represents and warrants that it has not prepared or had prepared on its behalf or used or referred to any “free writing prospectus” (as defined in Rule 405 of the Act) and further represents that it has not distributed and will not distribute any written materials in connection with the offer or sale of the Shares that could otherwise constitute a “free writing prospectus” (as defined in Rule 405 of the Act) required to be filed with the Commission or retained under Rule 433 of the Act.
(vii) All information relating to the Selling Stockholder furnished by or on behalf of it in writing expressly for use in the Registration Statement, the Time of Sale Disclosure Package or the Final Prospectus, as the case may be, is as of the applicable Closing Date, true, correct, and complete in all material respects, and does not, and will not, contain any untrue statement of a material fact or omit to state any material fact necessary to make such information not misleading. In addition, the Selling Stockholder confirms as accurate the number of shares of Common Stock set forth opposite the Selling Stockholder’s name in the Time of Sale Disclosure Package and any Prospectus under the caption “Selling Stockholder” (both prior to and after giving effect to the sale of the Shares).
(viii) The Selling Stockholder does not have any registration or other similar rights to have any equity or debt securities registered for sale by the Company under the Registration Statement or included in an offering contemplated by this Agreement, except for such rights that have been waived.
(ix) The Selling Stockholder 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 any security of the Company to facilitate the sale or resale of the Shares.
(x) Nothing has come to the attention of the Selling Stockholder that has caused it to believe that the representations and warranties of the Company contained in this Section 1 are not true and correct, is familiar with ; the Selling Stockholder has reviewed the Registration Statement, the Time of Sale Prospectus Disclosure Package and the each Prospectus and has no knowledge of any material fact, condition or information not disclosed in the Registration Statement, the Time of Sale Disclosure Package or such Prospectus which has had or which could reasonably be expected to result in a Material Adverse Effect, and the Prospectus that has had, or may have, a material adverse effect on the Company and its subsidiaries, taken as a whole. The Selling Stockholder does is not possess prompted to sell shares of Common Stock by any material non-public information concerning the Company or its subsidiaries which that is not set forth in the Time of Sale Prospectus.
(i) Solely to the extent that any statements in, or omissions from, the Registration Statement are made in reliance upon and in conformity with information furnished to the Company by the Selling Stockholder expressly for use therein, 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) solely to the extent that any statements in, or omissions from, the Time of Sale Prospectus are made in reliance upon Disclosure Package or a Prospectus.
(b) Any certificate signed by any officer of the Selling Stockholder and in conformity with information furnished delivered to the Company Underwriters or to counsel for Xxxx Capital Partners, LLC shall be deemed a representation and warranty by the Selling Stockholder expressly for use therein, 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, the Time of Sale Prospectus, as then amended or supplemented by the Company, if applicable, will not, contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading, and (iii) solely to the extent that any statements in, or omissions from, the Prospectus are made in reliance upon and in conformity with information furnished Underwriters as to the Company by the Selling Stockholder expressly for use therein, 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) 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 thereinmatters covered thereby.
Appears in 1 contract
Representations and Warranties of the Selling Stockholder. The Selling Stockholder represents and warrants to and agrees with each of the Underwriters Underwriter that:
(a) None of the Registration Statement, the Time of Sale Prospectus or the Prospectus or any amendments or supplements thereto included or will include any untrue statement of a material fact or omitted or will omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading, provided 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 information relating to the Selling Stockholder as required by Item 7 of Form S-3 furnished in writing by or on behalf of the Selling Stockholder expressly for use in the Registration Statement, the Time of Sale Prospectus, the Prospectus or any amendment or supplement thereto (the “Selling Stockholder Information”).
(b) This Agreement has been duly authorized, executed and delivered by or on behalf of the Selling Stockholder.
(bc) The execution, execution and delivery of this Agreement and performance the sale and delivery of the Shares to be sold by the Selling Stockholder and the consummation of this Agreement the transactions contemplated herein and compliance by the Selling Stockholder with its obligations hereunder do not and will not not, whether with or without the giving of notice or passage of time or both, (iA) conflict with or result in constitute a breach or violation of any of the terms or provisions of, or constitute a default under under, or result in the creation or imposition of any lien, charge or encumbrance upon the Shares to be sold by the Selling Stockholder or any property or assets of the Selling Stockholder pursuant to any contract, indenture, mortgage, deed of trust, loan agreement or credit agreement, note, license, lease or other agreement or instrument to which the Selling Stockholder is a party or by which the Selling Stockholder is may be bound, or to which any of the property or assets of the Selling Stockholder is subject, (iiB) result in any violation of the provisions of the charter or by-laws or similar other organizational documents instrument of the Selling Stockholder or (iiiC) result in the any violation of any law or statute or any applicable treaty, law, statute, rule, regulation, judgment, order, rule writ or regulation decree of any court government, government instrumentality or arbitrator court, domestic or governmental foreign, having jurisdiction over the Selling Stockholder or regulatory authorityany of its properties, except, in the case of clauses (iA) and (iii) above, for any such conflict, breach, violation or default that would not materially and adversely affect the sale of the Shares and the consummation of any other of the transactions herein contemplated.
(c) No consent, approval, authorization, order, registration or qualification of or with any court or arbitrator or governmental or regulatory authority is required for the execution, delivery and performance by the Selling Stockholder of this Agreement, except such as may be required for the registration of the Shares under the Securities Act and such consents, approvals, authorizations, orders and registrations or qualifications as have been obtained or may be required by FINRA and under applicable state securities laws and foreign securities laws in connection with the purchase and distribution of the Shares by the Underwriters.
(d) The Selling Stockholder has, and on the Closing Date will have, valid title to, or a valid “security entitlement” within the meaning of Section 8-501 of the New York Uniform Commercial Code in respect of, the Shares to be sold by the Selling Stockholder free and clear of all security interests, claims, liens, equities or other encumbrances and the legal right and power, and all authorization and approval required by law, to enter into this Agreement and to sell, transfer and deliver the Shares to be sold by the Selling Stockholder or a security entitlement in respect of such Shares.
(e) Upon payment for the Shares to be sold by such Selling Stockholder pursuant to this Agreement, delivery of such Shares, as directed by the Underwriters, to Cede & Co. (“Cede”) or such other nominee as may be designated by the Depository Trust Company (“DTC”C), registration of such Shares in the name of Cede or such other nominee and the crediting of such Shares on the books of DTC to securities accounts of the Underwriters (assuming that neither DTC nor any such Underwriter has notice of any adverse claim (within the meaning of Section 8-105 of the New York Uniform Commercial Code (the “UCC”)) to such Shares), (A) DTC shall be a “protected purchaser” of such Shares within the meaning of Section 8-303 of the UCC, (B) under Section 8-501 of the UCC, the Underwriters will acquire a valid security entitlement in respect of such Shares and (C) no action based on any “adverse claim”, within the meaning of Section 8-102 of the UCC, to such Shares may be asserted against the Underwriters with respect to such security entitlement; for purposes of this representation, the Selling Stockholder may assume that when such payment, delivery and crediting occur, (x) such Shares will have been registered in the name of Cede or another nominee designated by DTC, in each case on the Company’s share registry in accordance with its certificate of incorporation, bylaws and applicable law, (y) DTC will be registered as a “clearing corporation” within the meaning of Section 8-102 of the UCC and (z) appropriate entries to the accounts of the several Underwriters on the records of DTC will have been made pursuant to the UCC.
(f) The Selling Stockholder has no reason to believe that the representations and warranties of the Company contained in Section 1 are not true and correct, is familiar with the Registration Statement, the Time of Sale Prospectus and the Prospectus and has no knowledge of any material fact, condition or information not disclosed in the Time of Sale Prospectus or the Prospectus that has had, or may have, a material adverse effect on the Company and its subsidiaries, taken as a whole. The Selling Stockholder does not possess any material non-public information concerning the Company or its subsidiaries which is not set forth in the Time of Sale Prospectus.
(i) Solely to the extent that any statements in, or omissions from, the Registration Statement are made in reliance upon and in conformity with information furnished to the Company by the Selling Stockholder expressly for use therein, 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) solely to the extent that any statements in, or omissions from, the Time of Sale Prospectus are made in reliance upon and in conformity with information furnished to the Company by the Selling Stockholder expressly for use therein, 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, the Time of Sale Prospectus, as then amended or supplemented by the Company, if applicable, will not, contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading, and (iii) solely to the extent that any statements in, or omissions from, the Prospectus are made in reliance upon and in conformity with information furnished to the Company by the Selling Stockholder expressly for use therein, 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) 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.,
Appears in 1 contract
Representations and Warranties of the Selling Stockholder. The Selling Stockholder represents represents, warrants and warrants covenants to and agrees with each of the Underwriters thatUnderwriter as follows:
(a) None of the Registration Statement, the Time of Sale Prospectus or the Prospectus or any amendments or supplements thereto includes any untrue statement of a material fact or omits to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading, provided that such representations and warranties set forth in this subsection (B)(a) apply only to statements or omissions made in reliance upon and in conformity with information relating to the Selling Stockholder furnished in writing by or on behalf of the Selling Stockholder expressly for use in the Registration Statement, the Time of Sale Prospectus, the Prospectus or any other free writing prospectus or any amendment or supplement thereto; it being understood and agreed that such information only includes the information relating to the Selling Stockholder under the caption “Selling Stockholder” in the Time of Sale Prospectus or the Prospectus.
(b) This Agreement has been duly authorized, executed and delivered by or on behalf of the Selling Stockholder.
(bc) The execution, execution and delivery of this Agreement and performance the sale and delivery of the Offered Shares to be sold by the Selling Stockholder and the consummation of this Agreement the transactions contemplated herein and compliance by the Selling Stockholder with its obligations hereunder do not and will not not, whether with or without the giving of notice or passage of time or both (i) conflict with or result in constitute a breach or violation of any of the terms or provisions of, or constitute a default under under, or result in the creation or imposition of any tax, lien, charge or encumbrance upon the Offered Shares to be sold by the Selling Stockholder or any property or assets of the Selling Stockholder pursuant to any contract, indenture, mortgage, deed of trust, loan agreement or credit agreement, note, license, lease or other agreement or instrument to which the Selling Stockholder is a party or by which the Selling Stockholder may be bound, or to which any of the property or assets of the Selling Stockholder is boundsubject, (ii) result in any violation of the provisions of the charter or by-laws or similar other organizational documents instrument of the Selling Stockholder or Stockholder, if applicable, (iii) result in the any violation of the provisions of any law or statute or any applicable law, statute, rule, regulation, judgment, order, rule writ or regulation decree of any court government, government instrumentality or arbitrator court, domestic or governmental foreign, having jurisdiction over the Selling Stockholder or regulatory authorityany of its properties, except, except in the case of clauses (i) and (iii) above, for any such conflict, breach, default or violation that would not, individually or default in the aggregate, have a material adverse effect on the ability of the Selling Stockholder to consummate the transactions contemplated by this Agreement or the ability of the Selling Stockholder to perform its obligations hereunder and except in the case of (i) for any such tax, lien, charge or encumbrance that would not materially and adversely affect be paid or eliminated prior to the sale delivery of the Offered Shares and the consummation of any other of the transactions herein contemplated.
(c) No consent, approval, authorization, order, registration or qualification of or with any court or arbitrator or governmental or regulatory authority is required for the execution, delivery and performance by the Selling Stockholder of this Agreementon the First Closing Date or any applicable Option Closing Date, except such as the case may be required for the registration of the Shares under the Securities Act and such consents, approvals, authorizations, orders and registrations or qualifications as have been obtained or may be required by FINRA and under applicable state securities laws and foreign securities laws in connection with the purchase and distribution of the Shares by the Underwritersbe.
(d) The Selling Stockholder has, and on at the First Closing Date and each Option Closing date will have, valid title to, or a valid “security entitlement” within to the meaning of Section 8-501 of the New York Uniform Commercial Code in respect of, the Offered Shares to be sold by the Selling Stockholder 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 Offered Shares to be sold by the Selling Stockholder or a valid security entitlement in respect of such Offered Shares.
(e) Upon payment of the purchase price for the Offered Shares to be sold by such the Selling Stockholder pursuant to this Agreement, delivery of such Offered Shares, as directed by the Underwriters, to Cede & Co. (“Cede”) or such other nominee as may be designated by the The Depository Trust Company (“DTC”) (unless delivery of such Offered Shares is unnecessary because such Offered Shares are already in possession of Cede or such nominee), registration of such Offered Shares in the name of Cede or such other nominee (unless registration of such Offered Shares is unnecessary because such Offered Shares are already registered in the name of Cede or such nominee), and the crediting of such Offered Shares on the books of DTC to securities accounts (within the meaning of Section 8-501(a) of the UCC) of the Underwriters (assuming that neither DTC nor any such Underwriter has notice of any “adverse claim (claim,” within the meaning of Section 8-105 of the New York Uniform Commercial Code then in effect in the State of New York (the “UCC”)) , to such Offered 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 entitlement” in respect of such Offered Shares and (CB) 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 Offered Shares may be asserted against the Underwriters with respect to such security entitlement; for purposes of this representation, the Selling Stockholder may assume that when such payment, delivery (if necessary) and crediting occur, (xI) such Offered 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, (yII) DTC will be registered as a “clearing corporation,” within the meaning of Section 8-102 of the UCC and UCC, (zIII) appropriate entries to the accounts of the several Underwriters on the records of DTC will have been made pursuant to the UCC, (IV) to the extent DTC, or any other securities intermediary which acts as “clearing corporation” with respect to the Offered Shares, maintains any “financial asset” (as defined in Section 8-102(a)(9) of the UCC) in a clearing corporation pursuant to Section 8-111 of the UCC, the rules of such clearing corporation may affect the rights of DTC or such securities intermediaries and the ownership interest of the Underwriters, (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 Offered Shares to satisfy claims of all of its entitlement holders with respect thereto then all holders will share pro rata in the Offered Shares then held by DTC or such securities intermediary.
(f) The Selling Stockholder has no reason not taken, and will not take, directly or indirectly, any action which is designed to believe that or which constituted or would be expected to cause or result in stabilization or manipulation of the representations and warranties price of any security of the Company contained in Section 1 are not true and correctto facilitate the sale or resale of the Offered Shares.
(g) No filing with, or consent, approval, authorization, order, registration, qualification or decree of any arbitrator, court, governmental body, regulatory body, administrative agency or other authority, body or agency, domestic or foreign, is familiar necessary or required for the performance by the Selling Stockholder of its obligations hereunder, or in connection with the sale and delivery of the Offered Shares hereunder or the consummation of the transactions contemplated by this Agreement, except such as have been already obtained or as may be required under the Securities Act, the rules of the NYSE, state securities laws or the rules of FINRA.
(h) The Selling Stockholder does not have any registration or other similar rights to have any equity or debt securities registered for sale by the Company under the Registration Statement, except as described in the Registration Statement, the Time of Sale Prospectus and the Prospectus and has no knowledge of (or any material factdisclosure incorporated by reference therein), condition or information not disclosed included in the Time of Sale Prospectus or the Prospectus that has had, or may have, a material adverse effect on the Company and its subsidiaries, taken as a whole. The Selling Stockholder does not possess any material non-public information concerning the Company or its subsidiaries which is not set forth in the Time of Sale Prospectusoffering contemplated by this Agreement.
(i) Solely The Selling Stockholder has not prepared or had prepared on its behalf or used or referred to, any free writing prospectus, and has not distributed any written materials in connection with the offer or sale of the Offered Shares.
(j) The Selling Stockholder is not currently subject to any U.S. sanctions administered by OFAC and will not directly or indirectly use the extent that any statements inproceeds of this offering, or omissions fromlend, contribute or otherwise make available such proceeds to any subsidiary, or any joint venture partner or other person or entity, for the Registration Statement are made purpose of financing the activities of any person currently subject to any U.S. sanctions administered by OFAC or in reliance upon and any other manner that will result in conformity with information furnished to a violation by any person (including any person participating in the Company transaction whether as underwriter, advisor, investor or otherwise) of U.S. sanctions administered by OFAC. Any certificate signed by the Selling Stockholder expressly and delivered to any Underwriter or to counsel for use therein, the Registration Statement, when it became effective, did not contain and, as amended or supplemented, if applicable, will not contain any untrue statement of Underwriters shall be deemed 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) solely to the extent that any statements in, or omissions from, the Time of Sale Prospectus are made in reliance upon representation and in conformity with information furnished to the Company warranty by the Selling Stockholder expressly to each Underwriter as to the matters covered thereby. The Selling Stockholder has a reasonable basis for use therein, the Time of Sale Prospectus does not, and at the time of making each sale of the Shares in connection with the offering when the Prospectus is not yet available to prospective purchasers, the Time of Sale Prospectus, as then amended or supplemented by the Company, if applicable, will not, contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading, and (iii) solely to the extent that any statements in, or omissions from, the Prospectus are made in reliance upon and in conformity with information furnished to the Company by the Selling Stockholder expressly for use therein, 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) do not apply Section 1(B). The Selling Stockholder acknowledges that the Underwriters and, for purposes of the opinion to statements or omissions in the Registration Statement or the Prospectus based upon information relating be delivered pursuant to any Underwriter furnished Section 6 hereof, counsel to the Company in writing by Selling Stockholder and counsel to the Underwriters, will rely upon the accuracy and truthfulness of the foregoing representations and hereby consents to such Underwriter through you expressly for use thereinreliance.
Appears in 1 contract
Representations and Warranties of the Selling Stockholder. The Selling Stockholder represents and warrants to and agrees with each of the Underwriters Company that:
(a) The Seller Stockholder has all requisite corporate power and authority to enter into this Agreement and to consummate the transactions contemplated hereby.
(b) This Agreement has been duly authorized, executed and delivered by or on behalf the Selling Stockholder, has been effectively authorized by all necessary action, and constitutes the legal, valid and binding obligation of the Selling Stockholder, enforceable against the Selling Stockholder in accordance with its terms, except as such enforceability may be limited by laws relating to bankruptcy, insolvency, reorganization or other laws relating to creditors’ rights generally or by general principles of equity.
(bc) The executionSelling Stockholder is the record and beneficial owner of the Securities. The Selling Stockholder has good and valid title to the Securities, free and clear of all adverse claims within the meaning of the New York Uniform Commercial Code.
(d) The execution and delivery of this Agreement by the Selling Stockholder and performance the consummation by the Selling Stockholder of this Agreement the transactions contemplated hereby do not and will not (i) conflict with or result in a breach or violation of any of the terms or provisions of, or constitute a default under under, or conflict with (i) the certificate of incorporation or bylaws of the Selling Stockholder, (ii) any indenture, mortgage, deed of trust, loan material agreement or other agreement or instrument to which the Selling Stockholder is a party or by which it is bound, (iii) any judgment, decree, order or award of any court, governmental body or arbitrator by which the Selling Stockholder is boundbound or (iv) any material Federal or State law, (ii) result in any violation of the provisions of the charter rule or by-laws or similar organizational documents of regulation applicable to the Selling Stockholder or (iii) result in the violation of any law or statute or any judgment, order, rule or regulation of any court or arbitrator or governmental or regulatory authority, except, in the case of clauses (i) and (iii) above, for any such conflict, breach, violation or default that would not materially and adversely affect the sale of the Shares and the consummation of any other of the transactions herein contemplatedits property.
(ce) No consent, approval, authorization, filing, order, registration or qualification of or with any court or arbitrator governmental agency or governmental or regulatory authority body is required for the execution, delivery and performance sale of the Securities by the Selling Stockholder of this Agreement, except such as may be required for the registration of the Shares under the Securities Act and such consents, approvals, authorizations, orders and registrations or qualifications as have been obtained or may be required by FINRA and under applicable state securities laws and foreign securities laws in Stockholder.
(f) In connection with the purchase and distribution Selling Stockholder’s sale of the Shares by Securities, the Underwriters.
(d) Selling Stockholder has had the opportunity to ask the Company any and all relevant questions regarding, among other things, the business and operations of the Company. The Selling Stockholder has, and on to 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 extent deemed necessary by the Selling Stockholder free and clear Stockholder, consulted with the Selling Stockholder’s advisors (including the Selling Stockholder’s attorney, accountant or investment advisors) regarding the sale of all security interests, claims, liens, equities the Securities to the Company.
(g) No broker or other encumbrances and the legal right and power, and all authorization and approval required by law, to enter into this Agreement and to sell, transfer and deliver the Shares to be sold by finder has acted for the Selling Stockholder in connection with this Agreement or a security entitlement the transactions contemplated hereby, and no broker or finder is entitled to any brokerage or finder’s fee or other commissions in respect of such Sharestransactions.
(e) Upon payment for the Shares to be sold by such Selling Stockholder pursuant to this Agreement, delivery of such Shares, as directed by the Underwriters, to Cede & Co. (“Cede”) or such other nominee as may be designated by the Depository Trust Company (“DTC”), registration of such Shares in the name of Cede or such other nominee and the crediting of such Shares on the books of DTC to securities accounts of the Underwriters (assuming that neither DTC nor any such Underwriter has notice of any adverse claim (within the meaning of Section 8-105 of the New York Uniform Commercial Code (the “UCC”)) to such Shares), (A) DTC shall be a “protected purchaser” of such Shares within the meaning of Section 8-303 of the UCC, (B) under Section 8-501 of the UCC, the Underwriters will acquire a valid security entitlement in respect of such Shares and (C) no action based on any “adverse claim”, within the meaning of Section 8-102 of the UCC, to such Shares may be asserted against the Underwriters with respect to such security entitlement; for purposes of this representation, the Selling Stockholder may assume that when such payment, delivery and crediting occur, (x) such Shares will have been registered in the name of Cede or another nominee designated by DTC, in each case on the Company’s share registry in accordance with its certificate of incorporation, bylaws and applicable law, (y) DTC will be registered as a “clearing corporation” within the meaning of Section 8-102 of the UCC and (z) appropriate entries to the accounts of the several Underwriters on the records of DTC will have been made pursuant to the UCC.
(f) The Selling Stockholder has no reason to believe that the representations and warranties of the Company contained in Section 1 are not true and correct, is familiar with the Registration Statement, the Time of Sale Prospectus and the Prospectus and has no knowledge of any material fact, condition or information not disclosed in the Time of Sale Prospectus or the Prospectus that has had, or may have, a material adverse effect on the Company and its subsidiaries, taken as a whole. The Selling Stockholder does not possess any material non-public information concerning the Company or its subsidiaries which is not set forth in the Time of Sale Prospectus.
(i) Solely to the extent that any statements in, or omissions from, the Registration Statement are made in reliance upon and in conformity with information furnished to the Company by the Selling Stockholder expressly for use therein, 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) solely to the extent that any statements in, or omissions from, the Time of Sale Prospectus are made in reliance upon and in conformity with information furnished to the Company by the Selling Stockholder expressly for use therein, 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, the Time of Sale Prospectus, as then amended or supplemented by the Company, if applicable, will not, contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading, and (iii) solely to the extent that any statements in, or omissions from, the Prospectus are made in reliance upon and in conformity with information furnished to the Company by the Selling Stockholder expressly for use therein, 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) 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.
Appears in 1 contract
Samples: Repurchase Agreement (DreamWorks Animation SKG, Inc.)
Representations and Warranties of the Selling Stockholder. The Selling Stockholder represents and warrants to to, and agrees with each with, the Underwriter as of the Underwriters date hereof and as of the Closing Date that:
(a) This Agreement has been duly authorized, executed and delivered by or on behalf of the Selling Stockholder. The Selling Stockholder has full legal capacity, right and authority to sell, transfer and deliver in the manner provided in this Agreement the Shares being sold by such Selling Stockholder hereunder.
(b) The executionSuch Selling Stockholder has good and valid title to the Shares to be sold by such Selling Stockholder hereto, free and clear of all security interests, liens, encumbrances, equities or other claims, and, upon delivery of and performance by payment for such Shares, the Selling Stockholder will deliver to the Underwriter good and valid title to such Shares, free and clear of this Agreement will not (i) conflict with or result in a breach or violation of any of the terms or provisions ofall security interests, or constitute a default under any indentureliens, mortgageencumbrances, deed of trust, loan agreement equities or other agreement or instrument to which the Selling Stockholder is a party or by which the Selling Stockholder is bound, (ii) result in any violation of the provisions of the charter or by-laws or similar organizational documents of the Selling Stockholder or (iii) result in the violation of any law or statute or any judgment, order, rule or regulation of any court or arbitrator or governmental or regulatory authority, except, in the case of clauses (i) and (iii) above, for any such conflict, breach, violation or default that would not materially and adversely affect the sale of the Shares and the consummation of any other of the transactions herein contemplatedclaims.
(c) No consent, approval, authorization, and no order, registration or qualification of of, or with filing with, any third party (whether acting in an individual, fiduciary or other capacity) or any court or arbitrator governmental agency or governmental or regulatory authority body is required for the execution, delivery and performance consummation by the such Selling Stockholder of this Agreementthe transactions contemplated herein, except such as may be required for the registration of the Shares have been obtained under the Securities Act and such consents, approvals, authorizations, orders and registrations or qualifications as have been obtained or may be required by FINRA and under applicable state securities the blue sky laws and foreign securities laws of any jurisdiction in connection with the purchase and distribution of the Shares by the UnderwritersUnderwriter and such other approvals as have been obtained.
(d) The Neither the sale of the Shares being sold by such Selling Stockholder has, and on nor the Closing Date will have, valid title to, or a valid “security entitlement” within the meaning consummation of Section 8-501 any other of the New York Uniform Commercial Code in respect of, the Shares to be sold transactions herein contemplated by the Selling Stockholder free and clear of all security interests, claims, liens, equities or other encumbrances and the legal right and power, and all authorization and approval required by law, to enter into this Agreement and to sell, transfer and deliver the Shares to be sold by the such Selling Stockholder or the fulfillment of the terms hereof by such Selling Stockholder will conflict with, result in a security entitlement in respect breach or violation of, or constitute a default under any law or the charter, by-laws or other organizational documents of such SharesSelling Stockholder or the terms of any indenture or other agreement or instrument to which such Selling Stockholder or any of its subsidiaries is a party or by which such Selling Stockholder or any of its subsidiaries is bound, or any statute, rule, regulation, judgment, order or decree applicable to such Selling Stockholder or any of its subsidiaries of any court, regulatory body, administrative agency, governmental body or arbitrator having jurisdiction over such Selling Stockholder or any of its subsidiaries.
(e) Upon payment for the Shares to be sold by such Selling Stockholder pursuant to this Agreement, delivery of such Shares, Except 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 disclosed in the name of Cede Prospectus, there are no contracts, agreements or such other nominee and the crediting of such Shares on the books of DTC to securities accounts of the Underwriters (assuming that neither DTC nor any such Underwriter has notice of any adverse claim (within the meaning of Section 8-105 of the New York Uniform Commercial Code (the “UCC”)) to such Shares), (A) DTC shall be a “protected purchaser” of such Shares within the meaning of Section 8-303 of the UCC, (B) under Section 8-501 of the UCC, the Underwriters will acquire a valid security entitlement in respect of such Shares and (C) no action based on any “adverse claim”, within the meaning of Section 8-102 of the UCC, to such Shares may be asserted against the Underwriters with respect to such security entitlement; for purposes of this representation, understandings between the Selling Stockholder may assume and any person that when such paymentwould give rise to a valid claim against the Selling Stockholder or the Underwriter for a brokerage commission, delivery and crediting occur, (x) such Shares will have been registered finder's fee or other like payment in connection with the name of Cede or another nominee designated transactions contemplated 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 UCCthis Agreement.
(f) The Selling Stockholder has no reason to believe that the representations and warranties of the Company contained in Section 1 are not true and correct, is familiar with the Registration Statement, the Time of Sale Prospectus and the Prospectus and has no knowledge of any material fact, condition or information not disclosed in the Time of Sale Prospectus or the Prospectus that has had, or may have, a material adverse effect on the Company and its subsidiaries, taken as a whole. The Selling Stockholder does not possess any material non-public information concerning the Company or its subsidiaries which is not set forth in the Time of Sale Prospectus.
(i) Solely Subject to the extent last sentence of this Section 2(f), at the respective times that any statements in, or omissions from, the Registration Statement are made in reliance upon and in conformity with information furnished to any post-effective amendments thereto became effective and at the Company by the Selling Stockholder expressly for use therein, Closing Date the Registration Statement, when it became effective, Statement and any amendments and supplements thereto did not contain and, as amended or supplemented, if applicable, and will not contain any an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading, (ii) solely . Subject to the extent that last sentence of this Section 2(f), neither the Prospectus nor any amendment or supplement thereto, at the time the Prospectus or any amendment or supplement thereto was issued and at the Closing Date included or will include an untrue statement of a material fact or omitted or will omit to state a material fact necessary in order to make the statements intherein, in light of the circumstances under which they were made, not misleading. The representations and warranties in this subsection shall only apply to statements in or omissions from, from the Time of Sale Registration Statement or the Prospectus are made in reliance upon and in conformity with information furnished to the Company in writing by the Selling Stockholder expressly for use thereinin the Registration Statement or the Prospectus, which the Time of Sale Prospectus does not, parties acknowledge that the information set forth under the caption "Principal and at the time of each sale of the Shares Selling Stockholder" in connection with the offering when the Prospectus is not yet available to prospective purchasers, the Time of Sale Prospectus, as then amended or supplemented by the Company, if applicable, will not, contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading, and (iii) solely that relates to the extent that any statements in, or omissions from, Selling Stockholder (the Prospectus are made in reliance upon and in conformity with "Selling Stockholder Statements") constitute the only information furnished to the Company in writing by or on behalf of the Selling Stockholder expressly for use therein, 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) do not apply to statements or omissions in the Registration Statement relating to the Shares as originally filed or in any amendment thereof, related preliminary prospectus or the Prospectus based upon information relating or in any amendment thereof or supplement thereto, as the case may be.
(g) Such Selling Stockholder has not taken, directly or indirectly, any action designed to or that would constitute or that could reasonably be expected to cause or result in, under the Exchange Act or otherwise, stabilization or manipulation of the price of any Underwriter furnished security of the Company to facilitate the sale or resale of the Shares in violation of Regulation M under the Exchange Act.
(h) The Selling Stockholder has not distributed and, prior to the Company completion of the distribution of the Shares, will not distribute without the Underwriter's prior written consent, any offering material in writing connection with the offering and sale of the Shares other than as permitted by such the Securities Act. Any certificate signed by or on behalf of the Selling Stockholder and delivered to the Underwriter through you expressly or to counsel for use thereinthe Underwriter shall be deemed to be a representation and warranty by the Selling Stockholder to the Underwriter as to the matters covered thereby.
Appears in 1 contract
Representations and Warranties of the Selling Stockholder. The Selling Stockholder represents and warrants to to, and agrees with each of with, the Underwriters Underwriter that:
(ai) The Selling Stockholder on the Closing Date and the Additional Closing Date, if any, will have good and marketable title to the Selling Stockholder Firm Shares and, if applicable, any Additional Shares to be sold by the Selling Stockholder hereunder and full right, power and authority to enter into this Agreement and to sell, assign, transfer and deliver the Selling Stockholder Firm Shares and any such Additional Shares, free and clear of all voting trust arrangements, pledges, liens, encumbrances, equities, security interests and claims; and upon the delivery and payment for such Shares hereunder, the several Underwriters will acquire good and marketable title to such Shares, free and clear of all voting trust arrangements, pledges, liens, encumbrances, equities, security interests and claims.
(ii) This Agreement and the transactions contemplated herein have been duly and validly authorized by the Selling Stockholder, and this Agreement has been duly authorized, and validly executed and delivered by or on behalf of the Selling Stockholder.
(biii) The execution, delivery and performance by the Selling Stockholder of this Agreement and the consummation of the transactions contemplated hereby will not (iA) conflict with or result in a breach or violation of any of the terms or and provisions of, or constitute a default under (or an event which with notice or lapse of time, or both, would constitute a default) under, or result in the creation or imposition of any indenturelien, mortgagecharge or encumbrance upon any property or assets of the Selling Stockholder pursuant to any agreement, deed of trustinstrument, loan agreement franchise, license or other agreement or instrument permit to which the Selling Stockholder is a party or by which the Selling Stockholder is bound, any of its properties or assets may be bound or (iiB) result in violate or conflict with any violation of the provisions of the charter or by-laws or similar organizational documents limited partnership agreement of the Selling Stockholder or (iii) result in the violation of any law or statute or any judgment, decree, order, statute, rule or regulation of any court or arbitrator or any public, governmental or regulatory authority, except, in agency or body having jurisdiction over the case Selling Stockholder or any of clauses (i) and (iii) above, for any such conflict, breach, violation its properties or default that would not materially and adversely affect the sale of the Shares and the consummation of any other of the transactions herein contemplated.
(c) assets. No consent, approval, authorization, order, registration registration, filing, qualification, license or qualification permit of or with any court or arbitrator or any public, governmental or regulatory authority agency or body having jurisdiction over the Selling Stockholder or any of its properties or assets is required for the execution, delivery and performance by the Selling Stockholder of this AgreementAgreement or the consummation of the transactions contemplated hereby, except such as may be required for the registration under the Act of the Shares Shares, filings under the Securities Exchange Act resulting from the sale of the Firm Shares and the Additional Shares, if any, and such consents, approvals, authorizations, orders orders, registrations, filings, qualifications, licenses and registrations or qualifications permits as have been obtained or may be required by FINRA and under applicable state securities laws and foreign securities or Blue Sky laws in connection with the purchase and distribution of the Shares by the Underwriters.
(d) The Selling Stockholder has, and on the Closing Date will have, valid title to, or a valid “security entitlement” within the meaning of Section 8-501 of the New York Uniform Commercial Code in respect of, the Shares to be sold by the Selling Stockholder free and clear of all security interests, claims, liens, equities or other encumbrances and the legal right and power, and all authorization and approval required by law, to enter into this Agreement and to sell, transfer and deliver the Shares to be sold by the Selling Stockholder or a security entitlement in respect of such Shares.
(e) Upon payment for the Shares to be sold by such Selling Stockholder pursuant to this Agreement, delivery of such Shares, as directed by the Underwriters, to Cede & Co. (“Cede”) or such other nominee as may be designated by the Depository Trust Company (“DTC”), registration of such Shares in the name of Cede or such other nominee and the crediting of such Shares on the books of DTC to securities accounts of the Underwriters (assuming that neither DTC nor any such Underwriter has notice of any adverse claim (within the meaning of Section 8-105 of the New York Uniform Commercial Code (the “UCC”)) to such Shares), (A) DTC shall be a “protected purchaser” of such Shares within the meaning of Section 8-303 of the UCC, (B) under Section 8-501 of the UCC, the Underwriters will acquire a valid security entitlement in respect of such Shares and (C) no action based on any “adverse claim”, within the meaning of Section 8-102 of the UCC, to such Shares may be asserted against the Underwriters with respect to such security entitlement; for purposes of this representation, the Selling Stockholder may assume that when such payment, delivery and crediting occur, (x) such Shares will have been registered in the name of Cede or another nominee designated by DTC, in each case on the Company’s share registry in accordance with its certificate of incorporation, bylaws and applicable law, (y) DTC will be registered as a “clearing corporation” within the meaning of Section 8-102 of the UCC and (z) appropriate entries to the accounts of the several Underwriters on the records of DTC will have been made pursuant to the UCC.
(fiv) The Selling Stockholder has no reason not taken and will not take, directly or indirectly, any action designed to believe that cause or result in, or which constitutes or which might be reasonably be expected to constitute, the representations and warranties stabilization or manipulation of the Company contained in Section 1 are not true and correct, is familiar with price of the Registration Statement, shares of Common Stock to facilitate the Time sale or resale of Sale Prospectus and the Prospectus and has no knowledge of any material fact, condition or information not disclosed in the Time of Sale Prospectus or the Prospectus that has had, or may have, a material adverse effect on the Company and its subsidiaries, taken as a whole. The Selling Stockholder does not possess any material non-public information concerning the Company or its subsidiaries which is not set forth in the Time of Sale ProspectusShares.
(iv) Solely to At the extent that any statements in, or omissions from, time of the effectiveness of the Registration Statement are made in reliance upon and in conformity with information furnished or the effectiveness of the post-effective amendment to the Company by the Selling Stockholder expressly for use therein, the Registration Statement, when it became effectivethe Prospectus is first filed with the Commission pursuant to the Rule 424(b) of the Regulations, did not contain andwhen any supplement to or amendment of the Prospectus is filed with the Commission, as amended or supplementedwhen any document filed under the Exchange Act and at the Closing Date and the Additional Closing Date, if applicableany, the Registration Statement and the Prospectus and any amendments thereof and supplements thereto, insofar as they relate to the Selling Stockholder, comply or will comply in all material respects with the applicable provisions of the Act and the Regulations and the Exchange Act and the respective rules and regulations thereunder and do not or will not contain any an untrue statement of a material fact and do not or 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, in light of the circumstances in 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 or pursuant to Rule 424(a) of the Regulations) and when any amendment thereof or supplement thereto was first filed with the Commission, insofar as such preliminary prospectus relates to the Selling Stockholder, such preliminary prospectus and any amendments thereof and supplements thereto complied in all material respects with the applicable provisions of the Act and the Regulations and the Exchange Act and the respective rules and regulations thereunder 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 to make the statements therein in light of the circumstances under which they were made not misleading. No representation and warranty is made in this subsection (v), (ii) solely however, with respect to any information contained in or omitted from the extent that Registration Statement or the Prospectus or any statements in, related preliminary prospectus or omissions from, the Time of Sale Prospectus are made any amendment thereof or supplement thereto in reliance upon and in conformity with information furnished in writing to the Company by the Selling Stockholder or on behalf of any Underwriter through you as herein stated expressly for use therein, the Time of Sale Prospectus does not, and at the time of each sale of the Shares in connection with the offering when preparation thereof.
(i) The Selling Stockholder and the Prospectus is related parties listed on Schedule III agree with the Company and the Underwriters, except as provided in this Agreement, not yet available to prospective purchaserssell, offer or agree to sell, grant any option for the sale of, pledge or otherwise dispose of, directly or indirectly, any Common Stock for a period of 120 days after this Agreement becomes effective without your prior written consent. Notwithstanding the preceding sentence, you acknowledge that all shares of Common Stock owned by the Selling Stockholder are held in a brokerage margin account and are pledged to secure margin borrowings, and you agree that any such shares not sold to you hereunder may continue to be so pledged during the 120-day period described in such sentence.
(ii) In order to document the Underwriters' compliance with the reporting and withholding provisions of the Internal Revenue Code of 1986, as amended, with respect to the transactions herein contemplated, the Time of Sale Prospectus, as then amended Selling Stockholder agrees to deliver to you prior to or supplemented by on the CompanyClosing Date and Additional Closing Date, if applicable, will not, contain any untrue a properly completed and executed United States Treasury Department Form W-9 (or other applicable form or statement of a material fact or omit to state a material fact necessary to make the statements therein, specified by Treasury Department regulations in the light of the circumstances under which they were made, not misleading, and (iii) solely to the extent that any statements in, or omissions from, the Prospectus are made in reliance upon and in conformity with information furnished to the Company by the Selling Stockholder expressly for use therein, 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) 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 thereinlieu thereof).
Appears in 1 contract
Samples: Underwriting Agreement (Lone Star Technologies Inc)
Representations and Warranties of the Selling Stockholder. The Selling Stockholder represents and warrants to to, and agrees with each with, the Underwriter as of the Underwriters date hereof and as of the Closing Date that:
(a) This Agreement has been duly authorized, executed and delivered by or on behalf of the Selling Stockholder. The Selling Stockholder has full legal capacity, right and authority to sell, transfer and deliver in the manner provided in this Agreement the Shares being sold by such Selling Stockholder hereunder.
(b) The executionSuch Selling Stockholder has good and valid title to the Shares to be sold by such Selling Stockholder hereto, free and clear of all security interests, liens, encumbrances, equities or other claims, and, upon delivery of and performance by payment for such Shares, the Selling Stockholder will deliver to the Underwriter good and valid title to such Shares, free and clear of this Agreement will not (i) conflict with or result in a breach or violation of any of the terms or provisions ofall security interests, or constitute a default under any indentureliens, mortgageencumbrances, deed of trust, loan agreement equities or other agreement or instrument to which the Selling Stockholder is a party or by which the Selling Stockholder is bound, (ii) result in any violation of the provisions of the charter or by-laws or similar organizational documents of the Selling Stockholder or (iii) result in the violation of any law or statute or any judgment, order, rule or regulation of any court or arbitrator or governmental or regulatory authority, except, in the case of clauses (i) and (iii) above, for any such conflict, breach, violation or default that would not materially and adversely affect the sale of the Shares and the consummation of any other of the transactions herein contemplatedclaims.
(c) No consent, approval, authorization, and no order, registration or qualification of of, or with filing with, any third party (whether acting in an individual, fiduciary or other capacity) or any court or arbitrator governmental agency or governmental or regulatory authority body is required for the execution, delivery and performance consummation by the such Selling Stockholder of this Agreementthe transactions contemplated herein, except such as may be required for the registration of the Shares have been obtained under the Securities Act and such consents, approvals, authorizations, orders and registrations or qualifications as have been obtained or may be required by FINRA and under applicable state securities the blue sky laws and foreign securities laws of any jurisdiction in connection with the purchase and distribution of the Shares by the UnderwritersUnderwriter and such other approvals as have been obtained.
(d) The Neither the sale of the Shares being sold by such Selling Stockholder has, and on nor the Closing Date will have, valid title to, or a valid “security entitlement” within the meaning consummation of Section 8-501 any other of the New York Uniform Commercial Code in respect of, the Shares to be sold transactions herein contemplated by the Selling Stockholder free and clear of all security interests, claims, liens, equities or other encumbrances and the legal right and power, and all authorization and approval required by law, to enter into this Agreement and to sell, transfer and deliver the Shares to be sold by the such Selling Stockholder or the fulfillment of the terms hereof by such Selling Stockholder will conflict with, result in a security entitlement in respect breach or violation of, or constitute a default under any law or the charter, by-laws or other organizational documents of such SharesSelling Stockholder or the terms of any indenture or other agreement or instrument to which such Selling Stockholder or any of its subsidiaries is a party or by which such Selling Stockholder or any of its subsidiaries is bound, or any statute, rule, regulation, judgment, order or decree applicable to such Selling Stockholder or any of its subsidiaries of any court, regulatory body, administrative agency, governmental body or arbitrator having jurisdiction over such Selling Stockholder or any of its subsidiaries.
(e) Upon payment for the Shares to be sold by such Selling Stockholder pursuant to this Agreement, delivery of such Shares, Except 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 disclosed in the name of Cede Prospectus, there are no contracts, agreements or such other nominee and the crediting of such Shares on the books of DTC to securities accounts of the Underwriters (assuming that neither DTC nor any such Underwriter has notice of any adverse claim (within the meaning of Section 8-105 of the New York Uniform Commercial Code (the “UCC”)) to such Shares), (A) DTC shall be a “protected purchaser” of such Shares within the meaning of Section 8-303 of the UCC, (B) under Section 8-501 of the UCC, the Underwriters will acquire a valid security entitlement in respect of such Shares and (C) no action based on any “adverse claim”, within the meaning of Section 8-102 of the UCC, to such Shares may be asserted against the Underwriters with respect to such security entitlement; for purposes of this representation, understandings between the Selling Stockholder may assume and any person that when such paymentwould give rise to a valid claim against the Selling Stockholder or the Underwriter for a brokerage commission, delivery and crediting occur, (x) such Shares will have been registered finder’s fee or other like payment in connection with the name of Cede or another nominee designated transactions contemplated 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 UCCthis Agreement.
(f) The Selling Stockholder has no reason to believe that the representations and warranties of the Company contained in Section 1 are not true and correct, is familiar with the Registration Statement, the Time of Sale Prospectus and the Prospectus and has no knowledge of any material fact, condition or information not disclosed in the Time of Sale Prospectus or the Prospectus that has had, or may have, a material adverse effect on the Company and its subsidiaries, taken as a whole. The Selling Stockholder does not possess any material non-public information concerning the Company or its subsidiaries which is not set forth in the Time of Sale Prospectus.
(i) Solely Subject to the extent last sentence of this Section 2(f), at the respective times that any statements in, or omissions from, the Registration Statement are made in reliance upon and in conformity with information furnished to any post-effective amendments thereto became effective and at the Company by the Selling Stockholder expressly for use therein, Closing Date the Registration Statement, when it became effective, Statement and any amendments and supplements thereto did not contain and, as amended or supplemented, if applicable, and will not contain any an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading, (ii) solely . Subject to the extent that last sentence of this Section 2(f), neither the Prospectus nor any amendment or supplement thereto, at the time the Prospectus or any amendment or supplement thereto was issued and at the Closing Date included or will include an untrue statement of a material fact or omitted or will omit to state a material fact necessary in order to make the statements intherein, in light of the circumstances under which they were made, not misleading. The representations and warranties in this subsection shall only apply to statements in or omissions from, from the Time of Sale Registration Statement or the Prospectus are made in reliance upon and in conformity with information furnished to the Company in writing by the Selling Stockholder expressly for use thereinin the Registration Statement or the Prospectus, which the Time of Sale Prospectus does not, parties acknowledge that the information set forth under the caption “Principal and at the time of each sale of the Shares Selling Stockholder” in connection with the offering when the Prospectus is not yet available to prospective purchasers, the Time of Sale Prospectus, as then amended or supplemented by the Company, if applicable, will not, contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading, and (iii) solely that relates to the extent that any statements in, or omissions from, Selling Stockholder (the Prospectus are made in reliance upon and in conformity with “Selling Stockholder Statements”) constitute the only information furnished to the Company in writing by or on behalf of the Selling Stockholder expressly for use therein, 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) do not apply to statements or omissions in the Registration Statement relating to the Shares as originally filed or in any amendment thereof, related preliminary prospectus or the Prospectus based upon information relating or in any amendment thereof or supplement thereto, as the case may be.
(g) Such Selling Stockholder has not taken, directly or indirectly, any action designed to or that would constitute or that could reasonably be expected to cause or result in, under the Exchange Act or otherwise, stabilization or manipulation of the price of any Underwriter furnished security of the Company to facilitate the sale or resale of the Shares in violation of Regulation M under the Exchange Act.
(h) The Selling Stockholder has not distributed and, prior to the Company completion of the distribution of the Shares, will not distribute without the Underwriter’s prior written consent, any offering material in writing connection with the offering and sale of the Shares other than as permitted by such the Securities Act. Any certificate signed by or on behalf of the Selling Stockholder and delivered to the Underwriter through you expressly or to counsel for use thereinthe Underwriter shall be deemed to be a representation and warranty by the Selling Stockholder to the Underwriter as to the matters covered thereby.
Appears in 1 contract
Representations and Warranties of the Selling Stockholder. The Selling Stockholder represents and warrants to and agrees with each of the Underwriters that:
(a) This Agreement has been duly authorized, executed and delivered by or on behalf of the Selling Stockholder.
(b) The executionexecution and delivery by the Selling Stockholder of, delivery and the performance by the Selling Stockholder of its obligations under, this Agreement will not (i) conflict with or result in a breach or violation contravene any provision of any of the terms or provisions ofapplicable law, or constitute a default under any indenture, mortgage, deed the certificate of trust, loan agreement or other agreement or instrument to which the Selling Stockholder is a party or by which the Selling Stockholder is bound, (ii) result in any violation of the provisions of the charter incorporation or by-laws of the Selling Stockholder, or similar organizational documents of any agreement or other instrument binding upon the Selling Stockholder or (iii) result in the violation of any law or statute or any judgment, order, rule order or regulation decree of any governmental body, agency or court or arbitrator or governmental or regulatory authorityhaving jurisdiction over the Selling Stockholder, except, in the case of clauses (i) and (iii) above, for any such conflict, breach, violation or default that would not materially and adversely affect the sale of the Shares and the consummation of any other of the transactions herein contemplated.
(c) No no consent, approval, authorizationauthorization or order of, order, registration or qualification of with, any governmental body or with any court or arbitrator or governmental or regulatory authority agency is required for the execution, delivery and performance by the Selling Stockholder of its obligations under this Agreement, except such as may be required for by the registration securities or Blue Sky laws of the Shares under the Securities Act and such consents, approvals, authorizations, orders and registrations or qualifications as have been obtained or may be required by FINRA and under applicable state securities laws and foreign securities laws various states in connection with the purchase offer and distribution sale of the Shares by the UnderwritersShares.
(dc) The Selling Stockholder has, and on the Closing Date will have, valid title to, or a valid “security entitlement” within the meaning of Section 8-501 of the New York Uniform Commercial Code in respect of, to the Shares to be sold by the Selling Stockholder free and clear of all security interests, claims, liens, equities or other encumbrances and the legal right and power, and all authorization and approval required by law, to enter into this Agreement and to sell, transfer and deliver the Shares to be sold by the Selling Stockholder or a security entitlement in respect of such SharesStockholder.
(ed) Upon payment for Delivery of the Shares to be sold by such the Selling Stockholder pursuant to this Agreement, delivery of such Shares, as directed by the Underwriters, to Cede & Co. (“Cede”) or such other nominee as may be designated by the Depository Trust Company (“DTC”), registration of such Shares in the name of Cede or such other nominee and the crediting of such Shares on the books of DTC to securities accounts of the Underwriters (assuming that neither DTC nor any such Underwriter has notice of any adverse claim (within the meaning of Section 8-105 of the New York Uniform Commercial Code (the “UCC”)) to such Shares), (A) DTC shall be a “protected purchaser” of such Shares within the meaning of Section 8-303 of the UCC, (B) under Section 8-501 of the UCC, the Underwriters Agreement will acquire a valid security entitlement in respect of such Shares and (C) no action based on any “adverse claim”, within the meaning of Section 8-102 of the UCC, pass title to such Shares may be asserted against the Underwriters with respect to such security entitlement; for purposes of this representation, the Selling Stockholder may assume that when such payment, delivery and crediting occur, (x) such Shares will have been registered in the name of Cede or another nominee designated by DTC, in each case on the Company’s share registry in accordance with its certificate of incorporation, bylaws and applicable law, (y) DTC will be registered as a “clearing corporation” within the meaning of Section 8-102 of the UCC and (z) appropriate entries to the accounts of the several Underwriters on the records of DTC will have been made pursuant to the UCC.
(f) The Selling Stockholder has no reason to believe that the representations underwriters free and warranties of the Company contained in Section 1 are not true and correct, is familiar with the Registration Statement, the Time of Sale Prospectus and the Prospectus and has no knowledge clear of any material factsecurity interests, condition or information not disclosed in the Time of Sale Prospectus or the Prospectus that has hadclaims, or may haveliens, a material adverse effect on the Company equities and its subsidiaries, taken as a whole. The Selling Stockholder does not possess any material non-public information concerning the Company or its subsidiaries which is not set forth in the Time of Sale Prospectusother encumbrances.
(i) Solely to the extent that any statements in, or omissions from, the Registration Statement are made in reliance upon and in conformity with information furnished to the Company by the Selling Stockholder expressly for use therein, the The Registration Statement, when it became effective, did not contain and, as amended or supplemented, if applicable, will not contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading, (ii) solely to the extent that any statements in, or omissions from, the Time of Sale Prospectus are made in reliance upon Registration Statement and in conformity with information furnished to the Company by the Selling Stockholder expressly for use therein, 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, the Time of Sale Prospectuscomply and, as then amended or supplemented by the Companysupplemented, if applicable, will not, contain any untrue statement of a comply in all material fact or omit to state a material fact necessary to make respects with the statements therein, in Securities Act and the light applicable rules and regulations of the circumstances under which they were made, not misleading, Commission thereunder and (iii) solely to the extent that any statements in, or omissions from, the Prospectus are made in reliance upon and in conformity with information furnished to the Company by the Selling Stockholder expressly for use therein, the Prospectus does not contain and, as amended or supplemented, if applicable, will not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading; provided, except that the representations and -------- warranties set forth in this paragraph 2(g2(e) do not apply only to statements or omissions in the Registration Statement or the Prospectus based upon information relating to any Underwriter the Selling Stockholder furnished to the Company in writing by such Underwriter through you Selling Stockholder expressly for use therein.
Appears in 1 contract
Samples: Underwriting Agreement (Provident Companies Inc /De/)
Representations and Warranties of the Selling Stockholder. The Selling Stockholder represents and warrants to and agrees with each of the Underwriters Underwriter that:
(a) The Selling Stockholder now has, and on the Closing Date and any Option Closing Date will have, valid and marketable title to the Additional Shares to be sold by the Selling Stockholder, free and clear of any lien, claim, security interest or other encumbrance, including, without limitation, any restriction on transfer.
(b) The Selling Stockholder now has, and on the Closing Date and any Option Closing Date will have, full legal right, power and authorization, and any approval required by law, to sell, assign transfer and deliver such Additional Shares in the manner provided in this Agreement, and upon delivery of and payment for such Additional Shares hereunder, the several Underwriters will acquire valid and marketable title to such Additional Shares free and clear of any lien, claim, security interest, or other encumbrance.
(c) This Agreement has and the Custody Agreement have been duly authorized, executed and delivered by or on behalf of the Selling StockholderStockholder and the Custody Agreement is the valid and binding agreement of the Selling Stockholder enforceable against the Selling Stockholder in accordance with its terms.
(bd) The execution, Neither the execution and delivery and performance of this Agreement or the Custody Agreement by or on behalf of the Selling Stockholder nor the consummation of this Agreement the transactions herein or therein contemplated by or on behalf of the Selling Stockholder requires any consent, approval, authorization or order of, or filing or registration with, any court, regulatory body, administrative agency or other governmental body, agency or official (except such as may be required under the Act or such as may be required under state securities or Blue Sky laws governing the purchase and distribution of the Shares) or conflicts or will not (i) conflict with or result in constitutes or will constitute a breach or violation of any of the terms or provisions of, or constitute a default under under, or violates or will violate, any indentureagreement, mortgage, deed of trust, loan agreement indenture or other agreement or instrument to which the Selling Stockholder is a party or by which the Selling Stockholder is bound, (ii) result in or may be bound or to which any violation of the provisions of the charter Selling Stockholder's property or by-laws assets is subject, or similar organizational documents of any statute, law, rule, regulation, ruling, judgment, injunction, order or decree applicable to the Selling Stockholder or (iii) result in the violation of to any law property or statute or any judgment, order, rule or regulation of any court or arbitrator or governmental or regulatory authority, except, in the case of clauses (i) and (iii) above, for any such conflict, breach, violation or default that would not materially and adversely affect the sale assets of the Shares and the consummation of any other of the transactions herein contemplated.
(c) No consent, approval, authorization, order, registration or qualification of or with any court or arbitrator or governmental or regulatory authority is required for the execution, delivery and performance by the Selling Stockholder of this Agreement, except such as may be required for the registration of the Shares under the Securities Act and such consents, approvals, authorizations, orders and registrations or qualifications as have been obtained or may be required by FINRA and under applicable state securities laws and foreign securities laws in connection with the purchase and distribution of the Shares by the Underwriters.
(d) The Selling Stockholder has, and on the Closing Date will have, valid title to, or a valid “security entitlement” within the meaning of Section 8-501 of the New York Uniform Commercial Code in respect of, the Shares to be sold by the Selling Stockholder free and clear of all security interests, claims, liens, equities or other encumbrances and the legal right and power, and all authorization and approval required by law, to enter into this Agreement and to sell, transfer and deliver the Shares to be sold by the Selling Stockholder or a security entitlement in respect of such SharesStockholder.
(e) Upon payment for the Shares to be sold by such Selling Stockholder pursuant to this Agreement, delivery of such Shares, as directed by the Underwriters, to Cede & Co. (“Cede”) or such other nominee as may be designated by the Depository Trust Company (“DTC”), registration of such Shares in the name of Cede or such other nominee The Registration Statement and the crediting of such Shares on the books of DTC Prospectus, insofar as they relate to securities accounts of the Underwriters (assuming that neither DTC nor any such Underwriter has notice of any adverse claim (within the meaning of Section 8-105 of the New York Uniform Commercial Code (the “UCC”)) to such Shares), (A) DTC shall be a “protected purchaser” of such Shares within the meaning of Section 8-303 of the UCC, (B) under Section 8-501 of the UCC, the Underwriters will acquire a valid security entitlement in respect of such Shares and (C) no action based on any “adverse claim”, within the meaning of Section 8-102 of the UCC, to such Shares may be asserted against the Underwriters with respect to such security entitlement; for purposes of this representation, the Selling Stockholder may assume that when such paymentStockholder, delivery do not and crediting occur, (x) such Shares will have been registered in the name of Cede or another nominee designated by DTC, in each case on the Company’s share registry in accordance with its certificate of incorporation, bylaws and applicable law, (y) DTC will be registered as a “clearing corporation” within the meaning of Section 8-102 of the UCC and (z) appropriate entries to the accounts of the several Underwriters on the records of DTC will have been made pursuant to the UCC.
(f) The Selling Stockholder has no reason to believe that the representations and warranties of the Company contained in Section 1 are not true and correct, is familiar with the Registration Statement, the Time of Sale Prospectus and the Prospectus and has no knowledge of any material fact, condition or information not disclosed in the Time of Sale Prospectus or the Prospectus that has had, or may have, a material adverse effect on the Company and its subsidiaries, taken as a whole. The Selling Stockholder does not possess any material non-public information concerning the Company or its subsidiaries which is not set forth in the Time of Sale Prospectus.
(i) Solely to the extent that any statements in, or omissions from, the Registration Statement are made in reliance upon and in conformity with information furnished to the Company by the Selling Stockholder expressly for use therein, the Registration Statement, when it became effective, did not contain and, as amended or supplemented, if applicable, will not contain any an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading, (ii) solely to the extent that any statements in, or omissions from, the Time of Sale Prospectus are made in reliance upon and in conformity with information furnished to the Company by the Selling Stockholder expressly for use therein, 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, the Time of Sale Prospectus, as then amended or supplemented by the Company, if applicable, will not, contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading, and (iii) solely to the extent that any statements in, or omissions from, the Prospectus are made in reliance upon and in conformity with information furnished to the Company by the Selling Stockholder expressly for use therein, 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) 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.state
Appears in 1 contract
Samples: Underwriting Agreement (First Aviation Services Inc)
Representations and Warranties of the Selling Stockholder. The Selling Stockholder represents and warrants to and agrees with each of the Underwriters Company that:
(a) The Seller Stockholder has all requisite corporate power and authority to enter into this Agreement and to consummate the transactions contemplated hereby.
(b) This Agreement has been duly authorized, executed and delivered by or on behalf the Selling Stockholder, has been effectively authorized by all necessary action, and constitutes the legal, valid and binding obligation of the Selling Stockholder, enforceable against the Selling Stockholder in accordance with its terms, except as such enforceability may be limited by laws relating to bankruptcy, insolvency, reorganization or other laws relating to creditors’ rights generally or by general principles of equity.
(bc) The executionSelling Stockholder is the record and beneficial owner of the Securities. The Selling Stockholder has good and valid title to the Securities, free and clear of all adverse claims within the meaning of the New York Uniform Commercial Code.
(d) The execution and delivery of this Agreement by the Selling Stockholder and performance the consummation by the Selling Stockholder of this Agreement the transactions contemplated hereby do not and will not (i) conflict with or result in a breach or violation of any of the terms or provisions of, or constitute a default under under, or conflict with (i) the articles of incorporation or bylaws of the Selling Stockholder, (ii) any indenture, mortgage, deed of trust, loan material agreement or other agreement or instrument to which the Selling Stockholder is a party or by which it is bound, (iii) any judgment, decree, order or award of any court, governmental body or arbitrator by which the Selling Stockholder is boundbound or (iv) any material Federal or State law, (ii) result in any violation of the provisions of the charter rule or by-laws or similar organizational documents of regulation applicable to the Selling Stockholder or (iii) result in the violation of any law or statute or any judgment, order, rule or regulation of any court or arbitrator or governmental or regulatory authority, except, in the case of clauses (i) and (iii) above, for any such conflict, breach, violation or default that would not materially and adversely affect the sale of the Shares and the consummation of any other of the transactions herein contemplatedits property.
(ce) No consent, approval, authorization, filing, order, registration or qualification of or with any court or arbitrator governmental agency or governmental or regulatory authority body is required for the execution, delivery and performance sale of the Securities by the Selling Stockholder of this Agreement, except such as may be required for the registration of the Shares under the Securities Act and such consents, approvals, authorizations, orders and registrations or qualifications as have been obtained or may be required by FINRA and under applicable state securities laws and foreign securities laws in Stockholder.
(f) In connection with the purchase and distribution Selling Stockholder’s sale of the Shares by Securities, the Underwriters.
(d) Selling Stockholder has had the opportunity to ask the Company any and all relevant questions regarding, among other things, the business and operations of the Company. The Selling Stockholder has, and on to 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 extent deemed necessary by the Selling Stockholder free and clear Stockholder, consulted with the Selling Stockholder’s advisors (including the Selling Stockholder’s attorney, accountant or investment advisors) regarding the sale of all security interests, claims, liens, equities the Securities to the Company.
(g) No broker or other encumbrances and the legal right and power, and all authorization and approval required by law, to enter into this Agreement and to sell, transfer and deliver the Shares to be sold by finder has acted for the Selling Stockholder in connection with this Agreement or a security entitlement the transactions contemplated hereby, and no broker or finder is entitled to any brokerage or finder’s fee or other commissions in respect of such Sharestransactions.
(e) Upon payment for the Shares to be sold by such Selling Stockholder pursuant to this Agreement, delivery of such Shares, as directed by the Underwriters, to Cede & Co. (“Cede”) or such other nominee as may be designated by the Depository Trust Company (“DTC”), registration of such Shares in the name of Cede or such other nominee and the crediting of such Shares on the books of DTC to securities accounts of the Underwriters (assuming that neither DTC nor any such Underwriter has notice of any adverse claim (within the meaning of Section 8-105 of the New York Uniform Commercial Code (the “UCC”)) to such Shares), (A) DTC shall be a “protected purchaser” of such Shares within the meaning of Section 8-303 of the UCC, (B) under Section 8-501 of the UCC, the Underwriters will acquire a valid security entitlement in respect of such Shares and (C) no action based on any “adverse claim”, within the meaning of Section 8-102 of the UCC, to such Shares may be asserted against the Underwriters with respect to such security entitlement; for purposes of this representation, the Selling Stockholder may assume that when such payment, delivery and crediting occur, (x) such Shares will have been registered in the name of Cede or another nominee designated by DTC, in each case on the Company’s share registry in accordance with its certificate of incorporation, bylaws and applicable law, (y) DTC will be registered as a “clearing corporation” within the meaning of Section 8-102 of the UCC and (z) appropriate entries to the accounts of the several Underwriters on the records of DTC will have been made pursuant to the UCC.
(f) The Selling Stockholder has no reason to believe that the representations and warranties of the Company contained in Section 1 are not true and correct, is familiar with the Registration Statement, the Time of Sale Prospectus and the Prospectus and has no knowledge of any material fact, condition or information not disclosed in the Time of Sale Prospectus or the Prospectus that has had, or may have, a material adverse effect on the Company and its subsidiaries, taken as a whole. The Selling Stockholder does not possess any material non-public information concerning the Company or its subsidiaries which is not set forth in the Time of Sale Prospectus.
(i) Solely to the extent that any statements in, or omissions from, the Registration Statement are made in reliance upon and in conformity with information furnished to the Company by the Selling Stockholder expressly for use therein, 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) solely to the extent that any statements in, or omissions from, the Time of Sale Prospectus are made in reliance upon and in conformity with information furnished to the Company by the Selling Stockholder expressly for use therein, 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, the Time of Sale Prospectus, as then amended or supplemented by the Company, if applicable, will not, contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading, and (iii) solely to the extent that any statements in, or omissions from, the Prospectus are made in reliance upon and in conformity with information furnished to the Company by the Selling Stockholder expressly for use therein, 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) 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.
Appears in 1 contract
Samples: Repurchase Agreement (DreamWorks Animation SKG, Inc.)
Representations and Warranties of the Selling Stockholder. The Selling Stockholder represents and warrants to and agrees with each of the Underwriters Company that:
(a) The Seller Stockholder has all requisite power and authority to enter into this Agreement and to consummate the transactions contemplated hereby.
(b) This Agreement has been duly authorized, executed and delivered by or on behalf the Selling Stockholder, has been effectively authorized by all necessary action, and constitutes the legal, valid and binding obligation of the Selling Stockholder, enforceable against the Selling Stockholder in accordance with its terms, except as such enforceability may be limited by laws relating to bankruptcy, insolvency, reorganization or other laws relating to creditors’ rights generally or by general principles of equity.
(bc) The executionSelling Stockholder is the record and beneficial owner of the Securities. The Selling Stockholder has good and valid title to the Securities, free and clear of all adverse claims within the meaning of the New York Uniform Commercial Code.
(d) The execution and delivery of this Agreement by the Selling Stockholder and performance the consummation by the Selling Stockholder of this Agreement the transactions contemplated hereby do not and will not (i) conflict with or result in a breach or violation of any of the terms or provisions of, or constitute a default under under, or conflict with (i) any indenture, mortgage, deed of trust, loan material agreement or other agreement or instrument to which the Selling Stockholder is a party or by which the Selling Stockholder he is bound, (ii) result in any violation judgment, decree, order or award of any court, governmental body or arbitrator by which the provisions of the charter Selling Stockholder is bound or by-laws (iii) any material Federal or similar organizational documents of State law, rule or regulation applicable to the Selling Stockholder or (iii) result in the violation of any law or statute or any judgment, order, rule or regulation of any court or arbitrator or governmental or regulatory authority, except, in the case of clauses (i) and (iii) above, for any such conflict, breach, violation or default that would not materially and adversely affect the sale of the Shares and the consummation of any other of the transactions herein contemplatedhis property.
(ce) No consent, approval, authorization, filing, order, registration or qualification of or with any court or arbitrator governmental agency or governmental or regulatory authority body is required for the execution, delivery and performance sale of the Securities by the Selling Stockholder of this Agreement, except such as may be required for the registration of the Shares under the Securities Act and such consents, approvals, authorizations, orders and registrations or qualifications as have been obtained or may be required by FINRA and under applicable state securities laws and foreign securities laws in Stockholder.
(f) In connection with the purchase and distribution Selling Stockholder’s sale of the Shares by Securities, the Underwriters.
(d) Selling Stockholder has had the opportunity to ask the Company any and all relevant questions regarding, among other things, the business and operations of the Company. The Selling Stockholder has, and on to 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 extent deemed necessary by the Selling Stockholder free and clear Stockholder, consulted with the Selling Stockholder’s advisors (including the Selling Stockholder’s attorney, accountant or investment advisors) regarding the sale of all security interests, claims, liens, equities the Securities to the Company.
(g) No broker or other encumbrances and the legal right and power, and all authorization and approval required by law, to enter into this Agreement and to sell, transfer and deliver the Shares to be sold by finder has acted for the Selling Stockholder in connection with this Agreement or a security entitlement the transactions contemplated hereby, and no broker or finder is entitled to any brokerage or finder’s fee or other commissions in respect of such Sharestransactions.
(e) Upon payment for the Shares to be sold by such Selling Stockholder pursuant to this Agreement, delivery of such Shares, as directed by the Underwriters, to Cede & Co. (“Cede”) or such other nominee as may be designated by the Depository Trust Company (“DTC”), registration of such Shares in the name of Cede or such other nominee and the crediting of such Shares on the books of DTC to securities accounts of the Underwriters (assuming that neither DTC nor any such Underwriter has notice of any adverse claim (within the meaning of Section 8-105 of the New York Uniform Commercial Code (the “UCC”)) to such Shares), (A) DTC shall be a “protected purchaser” of such Shares within the meaning of Section 8-303 of the UCC, (B) under Section 8-501 of the UCC, the Underwriters will acquire a valid security entitlement in respect of such Shares and (C) no action based on any “adverse claim”, within the meaning of Section 8-102 of the UCC, to such Shares may be asserted against the Underwriters with respect to such security entitlement; for purposes of this representation, the Selling Stockholder may assume that when such payment, delivery and crediting occur, (x) such Shares will have been registered in the name of Cede or another nominee designated by DTC, in each case on the Company’s share registry in accordance with its certificate of incorporation, bylaws and applicable law, (y) DTC will be registered as a “clearing corporation” within the meaning of Section 8-102 of the UCC and (z) appropriate entries to the accounts of the several Underwriters on the records of DTC will have been made pursuant to the UCC.
(f) The Selling Stockholder has no reason to believe that the representations and warranties of the Company contained in Section 1 are not true and correct, is familiar with the Registration Statement, the Time of Sale Prospectus and the Prospectus and has no knowledge of any material fact, condition or information not disclosed in the Time of Sale Prospectus or the Prospectus that has had, or may have, a material adverse effect on the Company and its subsidiaries, taken as a whole. The Selling Stockholder does not possess any material non-public information concerning the Company or its subsidiaries which is not set forth in the Time of Sale Prospectus.
(i) Solely to the extent that any statements in, or omissions from, the Registration Statement are made in reliance upon and in conformity with information furnished to the Company by the Selling Stockholder expressly for use therein, 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) solely to the extent that any statements in, or omissions from, the Time of Sale Prospectus are made in reliance upon and in conformity with information furnished to the Company by the Selling Stockholder expressly for use therein, 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, the Time of Sale Prospectus, as then amended or supplemented by the Company, if applicable, will not, contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading, and (iii) solely to the extent that any statements in, or omissions from, the Prospectus are made in reliance upon and in conformity with information furnished to the Company by the Selling Stockholder expressly for use therein, 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) 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.
Appears in 1 contract
Samples: Repurchase Agreement (DreamWorks Animation SKG, Inc.)
Representations and Warranties of the Selling Stockholder. The Selling --------------------------------------------------------- Stockholder represents and warrants to to, and agrees with each of with, the Underwriters Agent that:
(a) The Selling Stockholder is the lawful owner of the Shares to be sold by the Selling Stockholder hereunder and the Selling Stockholder has good and marketable title to such Shares, free and clear of all liens, encumbrances, equities and claims whatsoever, except for the restrictions on transfer referenced by the legends on the certificates evidencing such Shares.
(b) The Selling Stockholder has not taken, 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 the sale or resale of the Shares.
(c) No consent, approval, authorization or order of any court or governmental agency or body is required to be obtained or made by the Selling Stockholder for the consummation by the Selling Stockholder of the transactions contemplated herein in connection with the sale of the Shares, except (i) such as may be required as a result of the identity of the purchaser or purchasers of the Shares, including filings required under Section 13 of the Exchange Act and filings required under the Xxxx-Xxxxx-Xxxxxx Antitrust Improvement Act of 1978, as amended (the "HSR Act"), (ii) such as may have been obtained under the ------- Securities Act, (iii) such as may be required by the National Association of Securities Dealers (the "NASD") and under the blue sky laws of any jurisdiction ---- in connection with the sale of the Shares by the Selling Stockholder, and (iv) such other approvals as may be required under state securities laws.
(d) Neither the sale of the Shares being sold by the Selling Stockholder nor the consummation of any other of the transactions herein contemplated by the Selling Stockholder or the fulfillment of the terms hereof by the Selling Stockholder will conflict with, result in a breach or violation of, or constitute a default under any law or the terms of any indenture or other agreement or instrument to which the Selling Stockholder is a party or bound, or any judgement, order or decree applicable to the Selling Stockholder of any court, regulatory body, administrative agency, governmental body or arbitrator having jurisdiction over the Selling Stockholder.
(e) This Agreement has been duly authorized, executed and delivered by or on behalf of the Selling Stockholder and is a valid and binding agreement of the Selling Stockholder.
(b) The execution, delivery and performance by enforceable against the Selling Stockholder of this Agreement will not (i) conflict with or result in a breach or violation of any of the terms or provisions of, or constitute a default under any indenture, mortgage, deed of trust, loan agreement or other agreement or instrument to which the Selling Stockholder is a party or by which the Selling Stockholder is bound, (ii) result in any violation of the provisions of the charter or by-laws or similar organizational documents of the Selling Stockholder or (iii) result in the violation of any law or statute or any judgment, order, rule or regulation of any court or arbitrator or governmental or regulatory authority, except, in the case of clauses (i) and (iii) above, for any such conflict, breach, violation or default that would not materially and adversely affect the sale of the Shares and the consummation of any other of the transactions herein contemplated.
(c) No consent, approval, authorization, order, registration or qualification of or with any court or arbitrator or governmental or regulatory authority is required for the execution, delivery and performance by the Selling Stockholder of this Agreement, except such as may be required for the registration of the Shares under the Securities Act and such consents, approvals, authorizations, orders and registrations or qualifications as have been obtained or may be required by FINRA and under applicable state securities laws and foreign securities laws in connection with the purchase and distribution of the Shares by the Underwriters.
(d) The Selling Stockholder has, and on the Closing Date will have, valid title to, or a valid “security entitlement” within the meaning of Section 8-501 of the New York Uniform Commercial Code in respect of, the Shares to be sold by the Selling Stockholder free and clear of all security interests, claims, liens, equities or other encumbrances and the legal right and power, and all authorization and approval required by law, to enter into this Agreement and to sell, transfer and deliver the Shares to be sold by the Selling Stockholder or a security entitlement in respect of such Shares.
(e) Upon payment for the Shares to be sold by such Selling Stockholder pursuant to this Agreement, delivery of such Shares, as directed by the Underwriters, to Cede & Co. (“Cede”) or such other nominee as may be designated by the Depository Trust Company (“DTC”), registration of such Shares in the name of Cede or such other nominee and the crediting of such Shares on the books of DTC to securities accounts of the Underwriters (assuming that neither DTC nor any such Underwriter has notice of any adverse claim (within the meaning of Section 8-105 of the New York Uniform Commercial Code (the “UCC”)) to such Shares), (A) DTC shall be a “protected purchaser” of such Shares within the meaning of Section 8-303 of the UCC, (B) under Section 8-501 of the UCC, the Underwriters will acquire a valid security entitlement in respect of such Shares and (C) no action based on any “adverse claim”, within the meaning of Section 8-102 of the UCC, to such Shares may be asserted against the Underwriters with respect to such security entitlement; for purposes of this representation, the Selling Stockholder 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 terms, subject to bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and similar laws of incorporation, bylaws general applicability relating to or affecting creditors' rights 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 UCCgeneral equity principles.
(f) The Selling Stockholder has no reason to believe that the representations and warranties of the Company contained in Section 1 are not true and correct, is familiar with the Registration Statement, the Time of Sale Prospectus and the Prospectus and has no knowledge of any material fact, condition or information not disclosed in the Time of Sale Prospectus or the Prospectus that has had, or may have, a material adverse effect on the Company and its subsidiaries, taken as a whole. The Selling Stockholder does not possess any material non-public information concerning the Company or its subsidiaries which is not set forth in the Time of Sale Prospectus.
(i) Solely to the extent that any statements in, or omissions from, the Registration Statement are made in reliance upon and in conformity with information furnished to the Company Any certificate signed by the Selling Stockholder expressly for use therein, 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) solely and delivered to the extent that any statements in, Agent or omissions from, counsel for the Time of Sale Prospectus are made in reliance upon and in conformity with information furnished to the Company by the Selling Stockholder expressly for use therein, the Time of Sale Prospectus does not, and at the time of each sale of the Shares Agent in connection with the offering when Offering shall be deemed a representation and warranty by the Selling Stockholder, as to matters covered thereby, to the Agent.
(g) The information in the Prospectus is not yet available under the caption "Selling Stockholders," which specifically relates to prospective purchasers, such Selling Stockholder (consisting of such Selling Stockholder's name and number of shares of Common Stock beneficially owned by such Selling Stockholder both before and after the Time of Sale Prospectus, as then amended or supplemented by the Company, if applicableoffering contemplated hereby), will notnot on the date of the execution of this Agreement or on any 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 to make the statements therein, in the light of the circumstances under which they were made, not misleading.
(h) Upon sale, delivery of and (iii) solely payment for the Shares to be sold by such Selling Stockholder pursuant to this Agreement and the extent that any statements in, or omissions from, the Prospectus are made in reliance upon and in conformity with information furnished to removal by the Company and its transfer agent of the restrictions on transfer referenced by the legends on the certificates evidencing such Shares, the Selling Stockholder expressly for use thereinshall have transferred such Shares, free and clear of all restrictions on transfer, liens, encumbrances, security interests, equities and claims whatsoever, other than any such restriction on transfer, lien, encumbrance, security interest, equity or claim created by this Agreement, the Prospectus does not contain Agent or any purchaser of such Shares or resulting from any actions taken by the Agent or any such purchaser of the Shares. The Company and the Selling Stockholder acknowledge that the Agent and, as amended or supplementedfor purposes of the opinions to be delivered to the Agent pursuant to Sections 8(b) ------------- and 8(c) hereof, if applicablecounsel to the Company, counsel to the Selling Stockholder and ---- counsel to the Agent, will not contain any untrue statement of a material fact or omit to state a material fact necessary to make rely upon the statements therein, in the light accuracy and truth of the circumstances under which they were made, not misleading, except that the foregoing representations as to matters of fact and warranties set forth in this paragraph 2(g) do not apply hereby consent 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 thereinreliance.
Appears in 1 contract
Representations and Warranties of the Selling Stockholder. The Selling Stockholder represents and warrants to and agrees with each of the Underwriters that:
(a) This Agreement has been duly authorized, executed and delivered by or on behalf of the Selling Stockholder.
(b) The executionSelling Stockholder has been duly incorporated and is validly existing as a société anonyme under French law, with full power and authority to execute and perform its obligations under this Agreement.
(c) The execution and delivery by the Selling Stockholder of, and the performance by the Selling Stockholder of its obligations under, this Agreement and the consummation by the Selling Stockholder of any other of the transactions contemplated hereby, or the fulfillment by the Selling Stockholder of such terms will not (isubject to compliance by the Underwriters with the provisions of Section 3 of this Agreement) conflict with or result in a breach or violation of any of the terms or provisions of, or constitute a default under under, any indentureinstrument, mortgage, deed of trust, loan agreement or other agreement or instrument order to which the Selling Stockholder is a party or by which the Selling Stockholder is boundbound or infringe any law, (ii) result in any violation of regulation, order, rule, decree or statute applicable to the Selling Stockholder and are not contrary to the provisions of the charter or by-laws or similar organizational constitutional documents of the Selling Stockholder or (iii) result in the violation of any law or statute or any judgmentStockholder. All consents, orderapprovals, rule or regulation of any court or arbitrator or governmental or regulatory authorityauthorizations, exceptorders, in the case of clauses (i) filings and (iii) above, for any such conflict, breach, violation or default that would not materially and adversely affect the sale of the Shares and the consummation of any other of the transactions herein contemplated.
(c) No consent, approval, authorization, order, registration or qualification registrations of or with any court or arbitrator governmental authority have been given, fulfilled or governmental or regulatory authority done and no other action is required to be taken, fulfilled or done by the Selling Stockholder for or in connection with the execution, delivery and performance by the Selling Stockholder of this Agreement and consummation of the transactions contemplated by this Agreement, except such as may be required for the registration of the Shares under the Securities Act and Act, such consents, approvals, authorizations, orders and registrations or qualifications as have been obtained or may be required by FINRA and under applicable state such as may be required by the securities or Blue Sky laws of the various states and foreign securities laws in connection with the purchase and distribution of the Shares by the Underwriters.
(d) The Selling Stockholder has, and on the Closing Date will have, valid title to, or a valid “security entitlement” within the meaning of Section 8-501 of the New York Uniform Commercial Code in respect of, the Shares to be sold by the Selling Stockholder free and clear of all security interests, claims, liens, equities or other encumbrances and the legal right and power, and all authorization and approval required by law, to enter into this Agreement and to sell, transfer and deliver the Shares to be sold by the Selling Stockholder or a security entitlement in respect of such Shares.
(e) Upon payment for the Shares to be sold by such the Selling Stockholder Shareholder pursuant to this Agreement, delivery of such Shares, as directed by the Underwriters, to Cede & Co. (“Cede”) or such other nominee as may be designated by the Depository Trust Company (“DTC”), registration of such Shares in the name of Cede or such other nominee and the crediting of such Shares on the books of DTC to securities accounts of the Underwriters (assuming that neither DTC nor any such Underwriter has notice of any adverse claim (within the meaning of Section 8-105 of the New York Uniform Commercial Code (the “UCC”)) to such Shares), (A) DTC shall be a “protected purchaser” of such Shares within the meaning of Section 8-303 of the UCC, (B) under Section 8-501 of the UCC, the Underwriters will acquire a valid security entitlement in respect of such Shares and (C) no action based on any “adverse claim”, within the meaning of Section 8-102 of the UCC, to such Shares may be asserted against the Underwriters with respect to such security entitlement; for purposes of this representation, the Selling Stockholder may assume that when such payment, delivery and crediting occur, (x) such Shares will have been registered in the name of Cede or another nominee designated by DTC, in each case on the Company’s share registry in accordance with its certificate of incorporation, bylaws and applicable law, (y) DTC will be registered as a “clearing corporation” within the meaning of Section 8-102 of the UCC and (z) appropriate entries to the accounts of the several Underwriters on the records of DTC will have been made pursuant to the Section 8-501 of the UCC.
(f) The Selling Stockholder has no reason to believe that the representations and warranties of the Company contained in Section 1 are is not true and correct, is familiar with the Registration Statement, the Time of Sale Prospectus and the Prospectus and has no knowledge of any material fact, condition or information not disclosed in the Time of Sale Prospectus or the Prospectus that has had, or may have, a material adverse effect on the Company and its subsidiaries, taken as a whole. The Selling Stockholder does not possess prompted by any material non-public information concerning the Company or its subsidiaries which is not set forth in the Time of Sale ProspectusProspectus to sell its Shares pursuant to this Agreement.
(g) (i) Solely to the extent that any statements in, or omissions from, the Registration Statement are made in reliance upon and in conformity with information furnished to the Company by the Selling Stockholder expressly for use therein, the The Registration Statement, when it became effective, did not contain and, as amended or supplemented, if applicable, will not contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading, (ii) solely to the extent that any statements in, or omissions from, the Time of Sale Prospectus are made in reliance upon and in conformity with information furnished to the Company by the Selling Stockholder expressly for use therein, 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 purchaserspurchasers and at the Closing Date (as defined in Section 5), the Time of Sale Prospectus, as then amended or supplemented by the Company, if applicable, will not, contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading, and (iii) solely 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 extent that any statements in, or omissions from, the Prospectus are made in reliance upon and in conformity with information furnished to the Company by the Selling Stockholder expressly for use therein, in the light of the circumstances under which they were made, not misleading and (iv) the Prospectus does not contain and, as amended or supplemented, if applicable, will not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading, ; except that the representations and warranties set forth in this paragraph Section 2(g) apply solely to the extent such statements or omissions are made in reliance upon and in conformity with the Selling Stockholder Information and 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.
(i) The Selling Stockholder will not knowingly cause or permit the proceeds of the sale of the Shares to be used directly to make a loan or other advance to, invest in or continue to or otherwise support the activities or business of any person, entity, country or governmental authority that is the subject of any applicable economic sanctions or trade embargoes imposed, administered or enforced from time to time by the U.S. Department of Treasury’s Office of Foreign Assets Control (“OFAC”) or the European Union (“EU”) (collectively, “OFAC/EU Sanctions”) in any manner that would violate such OFAC/EU Sanctions; and
(ii) The Selling Stockholder is not listed on any OFAC/EU Sanctions-related list of specifically designated nationals or designated persons or entities (or equivalent) maintained by OFAC or the EU.
(i) The 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, in each case other than the Time of Sale Prospectus.
Appears in 1 contract
Samples: Underwriting Agreement (AXA Equitable Holdings, Inc.)
Representations and Warranties of the Selling Stockholder. The Selling Stockholder represents and warrants to to, and agrees with with, each of Underwriter and the Underwriters Company that:
(a) This Agreement has been duly authorized, executed and delivered by or on behalf the Selling Stockholder and, when duly executed and delivered in accordance with its terms by each of the other parties thereto, will constitute a valid and legally binding agreement of the Selling StockholderStockholder enforceable against the Selling Stockholder in accordance with its terms, subject to the Enforceability Exceptions.
(b) The execution, delivery and performance by the Selling Stockholder of this Agreement will not (i) conflict with or result in a breach or violation of any of the terms or provisions of, or constitute a default under any indenture, mortgage, deed of trust, loan agreement or other agreement or instrument to which the Selling Stockholder is a party or by which the Selling Stockholder is bound, (ii) result in any violation of the provisions of the charter or by-laws or similar organizational documents of the Selling Stockholder or (iii) result in the violation of any law or statute or any judgment, order, rule or regulation of any court or arbitrator or governmental or regulatory authority, except, in the case of clauses (i) and (iii) above, for any such conflict, breach, violation or default that would not materially and adversely affect the sale of the Shares and the consummation of any other of the transactions herein contemplated.
(c) No consent, approval, authorizationauthorization or other order of, order, or registration or qualification of or with filing with, any court or arbitrator or other governmental or regulatory authority or agency is required for sale of the execution, delivery and performance Shares by the Selling Stockholder or the consummation of this Agreementthe transactions contemplated hereby by the Selling Stockholder, except such as may be required for (i) the registration under the Act of the Shares under the Securities Act and (ii) for such consents, approvals, authorizations, orders and registrations or qualifications as have been obtained or (A) may be required by FINRA and under applicable state securities or Blue Sky laws or the rules and foreign securities laws regulations of FINRA in connection with the purchase and distribution of the Shares by the Underwriters, (B) will have been obtained or made on or prior to the closing of the Offering or (C) would not, individually or in the aggregate, reasonably be expected to have a material adverse effect on the sale and delivery of the Shares or the ability of the Selling Stockholder to consummate the transactions contemplated hereby; the Selling Stockholder has the power and authority to enter into and perform its obligations under this Agreement and to sell, assign, transfer and deliver the Shares to be sold by the Selling Stockholder hereunder.
(c) The sale of the Shares by the Selling Stockholder hereunder and the compliance by the Selling Stockholder with all of the provisions of this Agreement and the consummation of the transactions contemplated hereby (i) will not result in any violation of the provisions of the charter, bylaws or other constitutive document of the Selling Stockholder, (ii) will not conflict with or constitute a breach of, or default under any indenture, mortgage, loan or credit agreement, note, contract, franchise, lease or other instrument to which the Selling Stockholder is a party or by which it may be bound and (iii) will not result in any violation of any law, administrative regulation or administrative or court decree applicable to the Selling Stockholder, except in the case of clauses (ii) and (iii) above, for such conflicts, breaches, defaults or violations as would not, individually or in the aggregate, reasonably be expected to have a material adverse effect on the sale and delivery of the Shares or the ability of the Selling Stockholder to consummate the transactions contemplated hereby.
(d) The Selling Stockholder has, and on immediately prior to the Closing Date and any Option Closing Date, the Selling Stockholder will have, valid title to, or a valid “security entitlement” within the meaning of pursuant to Section 8-501 102(a)(17) of the New York Uniform Commercial Code (the “NYUCC”) in respect of, the Shares to be sold by the Selling Stockholder free and clear of all security interests, claims, liens, equities or other encumbrances and the legal right and power, and all authorization and approval required by law, to enter into this Agreement Agreement, and to sell, transfer and deliver the Shares to be sold by the Selling Stockholder or a security entitlement in respect of such the Shares.
(e) Upon payment for . Each Underwriter that has purchased the Shares delivered at the Closing Date and any Option Closing Date to be sold by such Selling Stockholder pursuant to this Agreement, delivery of such Shares, as directed by the Underwriters, to Cede & Co. (“Cede”) or such other nominee as may be designated by the The Depository Trust Company (“DTC”)) by making payment therefore as provided herein, registration of such and that has the Shares in credited by book entry to the name of Cede “securities account” 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 accounts” (within the meaning of Section 8-105 501(a) of the New York Uniform Commercial Code NYUCC) will acquire a security entitlement to the Shares purchased by such Underwriter, and no action based on an “adverse claim” (the “UCC”)) to such Shares), (A) DTC shall be a “protected purchaser” of such Shares within the meaning of Section 8-303 102(a)(1) of the UCC, (BNYUCC) under Section 8-501 of the UCC, the Underwriters will acquire a valid security entitlement in respect of such Shares and (C) no action based on any “adverse claim”, within the meaning of Section 8-102 of the UCC, to such Shares may be asserted against the Underwriters such Underwriter with respect to such security entitlement; for the Shares. For purposes of this representation, the Selling Stockholder may assume that when such payment, delivery (if necessary) and crediting occur, (xi) such the Shares will have been registered in the name of Cede & Co. 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, (yii) DTC will be registered as is a “clearing corporationsecurities intermediary” within the meaning of Section 8-102 102(a)(14) of the UCC and NYUCC, (ziii) appropriate entries to the accounts of the several Underwriters on the records of DTC will have been made pursuant to the UCCNYUCC, and (iv) the several Underwriters have no notice (within the meaning of Section 8-105 of the NYUCC) of any adverse claim.
(e) The Selling Stockholder has not taken, directly or indirectly, any action designed to or that be reasonably 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.
(f) The sale of the Shares by the Selling Stockholder has no reason to believe that the representations and warranties of the Company contained in Section 1 are pursuant hereto is not true and correct, is familiar with the Registration Statement, the Time of Sale Prospectus and the Prospectus and has no knowledge of prompted by any material fact, condition or information not disclosed in the Time of Sale Prospectus or the Prospectus that has had, or may have, a material adverse effect on the Company and its subsidiaries, taken as a whole. The Selling Stockholder does not possess any material non-public information concerning the Company or any of its subsidiaries which is not set forth in the Registration Statement, the Time of Sale ProspectusInformation and the Prospectus or any amendment or supplement thereto.
(ig) Solely The Registration Statement, the Pricing Prospectus, the Prospectus and the Issuer Free Writing Prospectus and any further amendments or supplements to the extent that any statements in, or omissions from, the Registration Statement are made in reliance upon and in conformity with information furnished to the Company by the Selling Stockholder expressly for use therein, the Registration StatementProspectus, when it became effectivethey become effective or are filed with the Commission, as the case may be, did not contain and, as amended or supplemented, if applicable, and will not contain any untrue statement of a material fact or omit to state a any material fact required to be stated therein or necessary to make the statements therein not misleading, (ii) solely to the extent that any statements in, or omissions from, the Time of Sale Prospectus are made in reliance upon and in conformity with information furnished to the Company by the Selling Stockholder expressly for use therein, 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, the Time of Sale Prospectus, as then amended or supplemented by the Company, if applicable, will not, contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading; provided, however that the Selling Stockholder’s representations and (iii) warranties under this Section are limited solely to the extent that any statements in, or omissions from, the Prospectus are made in reliance upon and in conformity with information furnished to the Company by the Selling Stockholder expressly for use therein, 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) 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 thereinInformation.
Appears in 1 contract
Samples: Underwriting Agreement (Alcoa Corp)
Representations and Warranties of the Selling Stockholder. The Selling Stockholder represents represents, warrants and warrants covenants to and agrees with each of the Underwriters thatUnderwriter as follows:
(a) None of the Registration Statement, the Time of Sale Prospectus or the Prospectus or any amendments or supplements thereto includes any untrue statement of a material fact or omits to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading, provided that such representations and warranties set forth in this subsection B(a) apply only to statements or omissions made in reliance upon and in conformity with information relating to the Selling Stockholder furnished in writing by or on behalf of the Selling Stockholder expressly for use in the Registration Statement, the Time of Sale Prospectus, the Prospectus or any other free writing prospectus or any amendment or supplement thereto; it being understood and agreed that such information only includes the information relating to the Selling Stockholder under the caption “Selling Stockholder” in the Time of Sale Prospectus or the Prospectus.
(b) This Agreement has been duly authorized, executed and delivered by or on behalf of the Selling Stockholder.
(bc) The execution, execution and delivery of this Agreement and performance the sale and delivery of the Offered Shares to be sold by the Selling Stockholder and the consummation of this Agreement the transactions contemplated herein and compliance by the Selling Stockholder with its obligations hereunder do not and will not not, whether with or without the giving of notice or passage of time or both (i) conflict with or result in constitute a breach or violation of any of the terms or provisions of, or constitute a default under under, or result in the creation or imposition of any tax, lien, charge or encumbrance upon the Offered Shares to be sold by the Selling Stockholder or any property or assets of the Selling Stockholder pursuant to any contract, indenture, mortgage, deed of trust, loan agreement or credit agreement, note, license, lease or other agreement or instrument to which the Selling Stockholder is a party or by which the Selling Stockholder may be bound, or to which any of the property or assets of the Selling Stockholder is boundsubject, (ii) result in any violation of the provisions of the charter or by-laws or similar other organizational documents instrument of the Selling Stockholder or Stockholder, if applicable, (iii) result in the any violation of the provisions of any law or statute or any applicable law, statute, rule, regulation, judgment, order, rule writ or regulation decree of any court government, government instrumentality or arbitrator court, domestic or governmental foreign, having jurisdiction over the Selling Stockholder or regulatory authorityany of its properties, except, except in the case of clauses (i) and (iii) above, for any such conflict, breach, default or violation that would not, individually or default in the aggregate, have a material adverse effect on the ability of the Selling Stockholder to consummate the transactions contemplated by this Agreement or the ability of the Selling Stockholder to perform its obligations hereunder and except in the case of (i) for any such tax, lien, charge or encumbrance that would not materially and adversely affect be paid or eliminated prior to the sale delivery of the Offered Shares and the consummation of any other of the transactions herein contemplated.
(c) No consent, approval, authorization, order, registration or qualification of or with any court or arbitrator or governmental or regulatory authority is required for the execution, delivery and performance by the Selling Stockholder of this Agreementon the First Closing Date or any applicable Option Closing Date, except such as the case may be required for the registration of the Shares under the Securities Act and such consents, approvals, authorizations, orders and registrations or qualifications as have been obtained or may be required by FINRA and under applicable state securities laws and foreign securities laws in connection with the purchase and distribution of the Shares by the Underwritersbe.
(d) The Selling Stockholder has, and on at the First Closing Date and each Option Closing date will have, valid title to, or a valid “security entitlement” within to the meaning of Section 8-501 of the New York Uniform Commercial Code in respect of, the Offered Shares to be sold by the Selling Stockholder 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 Offered Shares to be sold by the Selling Stockholder or a valid security entitlement in respect of such Offered Shares.
(e) Upon payment of the purchase price for the Offered Shares to be sold by such the Selling Stockholder pursuant to this Agreement, delivery of such Offered Shares, as directed by the Underwriters, to Cede & Co. (“Cede”) or such other nominee as may be designated by the The Depository Trust Company (“DTC”) (unless delivery of such Offered Shares is unnecessary because such Offered Shares are already in possession of Cede or such nominee), registration of such Offered Shares in the name of Cede or such other nominee (unless registration of such Offered Shares is unnecessary because such Offered Shares are already registered in the name of Cede or such nominee), and the crediting of such Offered Shares on the books of DTC to securities accounts (within the meaning of Section 8-501(a) of the UCC) of the Underwriters (assuming that neither DTC nor any such Underwriter has notice of any “adverse claim (claim,” within the meaning of Section 8-105 of the New York Uniform Commercial Code then in effect in the State of New York (the “UCC”)) , to such Offered 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 entitlement” in respect of such Offered Shares and (CB) 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 Offered Shares may be asserted against the Underwriters with respect to such security entitlement; for purposes of this representation, the Selling Stockholder may assume that when such payment, delivery (if necessary) and crediting occur, (xI) such Offered 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, (yII) DTC will be registered as a “clearing corporation,” within the meaning of Section 8-102 of the UCC and UCC, (zIII) appropriate entries to the accounts of the several Underwriters on the records of DTC will have been made pursuant to the UCC, (IV) to the extent DTC, or any other securities intermediary which acts as “clearing corporation” with respect to the Offered Shares, maintains any “financial asset” (as defined in Section 8-102(a)(9) of the UCC) in a clearing corporation pursuant to Section 8-111 of the UCC, the rules of such clearing corporation may affect the rights of DTC or such securities intermediaries and the ownership interest of the Underwriters, (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 Offered Shares to satisfy claims of all of its entitlement holders with respect thereto then all holders will share pro rata in the Offered Shares then held by DTC or such securities intermediary.
(f) The Selling Stockholder has no reason not taken, and will not take, directly or indirectly, any action which is designed to believe that or which constituted or would be expected to cause or result in stabilization or manipulation of the representations and warranties price of any security of the Company contained in Section 1 are not true and correctto facilitate the sale or resale of the Offered Shares.
(g) No filing with, or consent, approval, authorization, order, registration, qualification or decree of any arbitrator, court, governmental body, regulatory body, administrative agency or other authority, body or agency, domestic or foreign, is familiar necessary or required for the performance by the Selling Stockholder of its obligations hereunder, or in connection with the sale and delivery of the Offered Shares hereunder or the consummation of the transactions contemplated by this Agreement, except such as have been already obtained or as may be required under the Securities Act, the rules of the NYSE, state securities laws or the rules of FINRA.
(h) The Selling Stockholder does not have any registration or other similar rights to have any equity or debt securities registered for sale by the Company under the Registration Statement, except as described in the Registration Statement, the Time of Sale Prospectus and the Prospectus and has no knowledge of (or any material factdisclosure incorporated by reference therein), condition or information not disclosed included in the Time of Sale Prospectus or the Prospectus that has had, or may have, a material adverse effect on the Company and its subsidiaries, taken as a whole. The Selling Stockholder does not possess any material non-public information concerning the Company or its subsidiaries which is not set forth in the Time of Sale Prospectusoffering contemplated by this Agreement.
(i) Solely The Selling Stockholder has not prepared or had prepared on its behalf or used or referred to, any free writing prospectus, and has not distributed any written materials in connection with the offer or sale of the Offered Shares.
(j) The Selling Stockholder is not currently subject to any U.S. sanctions administered by OFAC and will not directly or indirectly use the extent that any statements inproceeds of this offering, or omissions fromlend, contribute or otherwise make available such proceeds to any subsidiary, or any joint venture partner or other person or entity, for the Registration Statement are made purpose of financing the activities of any person currently subject to any U.S. sanctions administered by OFAC or in reliance upon and any other manner that will result in conformity with information furnished to a violation by any person (including any person participating in the Company transaction whether as underwriter, advisor, investor or otherwise) of U.S. sanctions administered by OFAC. Any certificate signed by the Selling Stockholder expressly and delivered to any Underwriter or to counsel for use therein, the Registration Statement, when it became effective, did not contain and, as amended or supplemented, if applicable, will not contain any untrue statement of Underwriters shall be deemed 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) solely to the extent that any statements in, or omissions from, the Time of Sale Prospectus are made in reliance upon representation and in conformity with information furnished to the Company warranty by the Selling Stockholder expressly to each Underwriter as to the matters covered thereby. The Selling Stockholder has a reasonable basis for use therein, the Time of Sale Prospectus does not, and at the time of making each sale of the Shares in connection with the offering when the Prospectus is not yet available to prospective purchasers, the Time of Sale Prospectus, as then amended or supplemented by the Company, if applicable, will not, contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading, and (iii) solely to the extent that any statements in, or omissions from, the Prospectus are made in reliance upon and in conformity with information furnished to the Company by the Selling Stockholder expressly for use therein, 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) do not apply Section 1B. The Selling Stockholder acknowledges that the Underwriters and, for purposes of the opinion to statements or omissions in the Registration Statement or the Prospectus based upon information relating be delivered pursuant to any Underwriter furnished Section 6 hereof, counsel to the Company in writing by Selling Stockholder and counsel to the Underwriters, will rely upon the accuracy and truthfulness of the foregoing representations and hereby consents to such Underwriter through you expressly for use thereinreliance.
Appears in 1 contract
Representations and Warranties of the Selling Stockholder. The Selling Stockholder represents and warrants to and agrees with each of the Underwriters that:
(a) This Agreement has been duly authorized, executed and delivered by or on behalf of the Selling Stockholder.
(b) The executionexecution and delivery by the Selling Stockholder of, delivery and the performance by the Selling Stockholder of its obligations under, this Agreement will not contravene (i) conflict with any provision of applicable law, or result in a breach (ii) the certificate of incorporation or violation of any by-laws of the terms or provisions of, or constitute a default under any indenture, mortgage, deed of trust, loan agreement or other agreement or instrument to which the Selling Stockholder (if such Selling Stockholder is a party corporation), or by which the Selling Stockholder is bound, (iiiii) result in any violation of the provisions of the charter agreement or by-laws or similar organizational documents of other instrument binding upon the Selling Stockholder or (iii) result in the violation of any law or statute or any judgment, order, rule order or regulation decree of any governmental body, agency or court or arbitrator or governmental or regulatory authorityhaving jurisdiction over the Selling Stockholder, except, except in the case of clauses (i) and (iii) above), for as would not, individually or in the aggregate, reasonably be expected to impair the Selling Stockholder’s ability to perform its obligations under this Agreement in any such conflict, breach, violation or default that would not materially and adversely affect the sale of the Shares and the consummation of any other of the transactions herein contemplated.
(c) No material respect; no consent, approval, authorizationauthorization or order of, order, registration or qualification of with, any governmental body, agency or with any court or arbitrator or governmental or regulatory authority is required for the execution, delivery and performance by the Selling Stockholder of its obligations under this Agreement, except such as may be required for by the registration securities or Blue Sky laws of the Shares under the Securities Act and such consents, approvals, authorizations, orders and registrations or qualifications as have been obtained or may be required by FINRA and under applicable state securities laws and foreign securities laws various states in connection with the purchase offer and distribution sale of the Shares by the UnderwritersShares.
(dc) The Selling Stockholder has, and on the Closing Date will have, valid title to, or a valid “security entitlement” within the meaning of Section 8-501 of the New York Uniform Commercial Code in respect of, the Shares to be sold by the Selling Stockholder free and clear of all security interests, claims, liens, equities or other encumbrances and the legal right and power, and all authorization and approval required by law, to enter into this Agreement and to sell, transfer and deliver the Shares to be sold by the Selling Stockholder or a security entitlement in respect of such Shares.
(ed) Upon payment for the Shares to be sold by such the Selling Stockholder pursuant to this Agreement, delivery of such Shares, as directed by the Underwriters, to Cede & Co. (“Cede”) or such other nominee as may be designated by the The Depository Trust Company (“DTC”), registration of such the Shares in the name of Cede or such other nominee and the crediting of such Shares on the books of DTC to securities accounts of the Underwriters (assuming that neither DTC nor any such Underwriter has notice of any adverse claim (within the meaning of Section 8-105 of the New York Uniform Commercial Code (the “UCC”)) to such Shares), (A) DTC shall be a “protected purchaser” of such Shares within the meaning of Section 8-303 of the UCC, (B) under Section 8-501 of the UCC, the Underwriters will acquire a valid security entitlement in respect of such Shares and (C) no action based on any “adverse claim”, ,” within the meaning of Section 8-102 of the UCC, to such Shares may be asserted against the Underwriters with respect to such security entitlement; for purposes of this representation, the Selling Stockholder may assume that when such payment, delivery and crediting occur, (x) such Shares will have been registered in the name of Cede or another nominee designated by DTC, in each case on the Company’s share registry in accordance with its certificate of incorporation, bylaws and applicable law, (y) DTC will be registered as a “clearing corporation” within the meaning of Section 8-102 of the UCC and (z) appropriate entries to the accounts of the several Underwriters on the records of DTC will have been made pursuant to the UCC.
(fe) The Selling Stockholder has no reason delivered to believe that the representations and warranties of Representatives an executed lock-up agreement in substantially the Company contained in Section 1 are not true and correct, is familiar with form attached hereto as Exhibit A (the Registration Statement, the Time of Sale Prospectus and the Prospectus and has no knowledge of any material fact, condition or information not disclosed in the Time of Sale Prospectus or the Prospectus that has had, or may have, a material adverse effect on the Company and its subsidiaries, taken as a whole. The Selling Stockholder does not possess any material non“Lock-public information concerning the Company or its subsidiaries which is not set forth in the Time of Sale Prospectusup Agreement”).
(i) Solely to the extent that any statements in, or omissions from, the Registration Statement are made in reliance upon and in conformity with information furnished to the Company by the Selling Stockholder expressly for use therein, the The Registration Statement, when it became effective, did not contain and, as amended or supplemented, if applicable, will not contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading, (ii) solely to the extent that any statements inRegistration Statement and the Prospectus comply and, as amended or omissions fromsupplemented, if applicable, will comply in all material respects with the Time Securities Act and the applicable rules and regulations of Sale Prospectus are made in reliance upon and in conformity with information furnished to the Company by the Selling Stockholder expressly for use thereinCommission 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 purchaserspurchasers and at the Closing Date (as defined in Section 5), the Time of Sale Prospectus, as then amended or supplemented by the Company, if applicable, will not, contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading, (iv) each investor presentation, when considered together with the Time of Sale Prospectus, does not contain any untrue statement of material fact or omit to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading and (iiiv) solely to the extent that any statements in, or omissions from, the Prospectus are made in reliance upon and in conformity with information furnished to the Company by the Selling Stockholder expressly for use therein, the Prospectus does not contain and, as amended or supplemented, if applicable, will not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading; provided, except that the representations and warranties set forth in this paragraph 2(g) do not apply only to statements or omissions in the Registration Statement Statement, the Time of Sale Prospectus or the Prospectus based that are made in reliance upon and in conformity with written information relating to any Underwriter furnished to the Company by the Selling Stockholder in writing by such Underwriter through you expressly for use therein; provided, further, that it is agreed that such information furnished by the Selling Stockholder to the Company consists only of (A) the legal name, address and the number of Shares owned by the Selling Stockholder before and after the offering, and (B) the other information with respect to such Selling Stockholder (excluding percentages) which appear in the table (and corresponding footnotes) under the caption “Principal and Selling Stockholders” in the Registration Statement, the Time of Sale Prospectus or the Prospectus (such information, the “Selling Stockholder Information”).
(i) Neither the Selling Stockholder nor, to the knowledge of the Selling Stockholder, any director, officer, employee, agent, representative, or affiliate thereof, other than any director, officer, employee, agent, representative, or affiliate thereof of the Company or any portfolio company under common control with the Selling Stockholder, is a Person that is, or is owned or controlled, directly or indirectly, by one or more Persons that are:
(A) the subject of any Sanctions; or
(B) located, organized or resident in a country or territory that is the subject of Sanctions (including, without limitation, Crimea, Cuba, Iran, North Korea and Syria).
(ii) The Selling Stockholder will not, directly or indirectly, use the proceeds of the offering, or lend, contribute or otherwise make available such proceeds to any subsidiary, joint venture partner or other Person:
(A) to fund or facilitate any activities or business of or with any Person or in any country or territory that, at the time of such funding or facilitation, is the subject of Sanctions; or
(B) in any other manner that will result in a violation of Sanctions by any Person (including any Person participating in the offering, whether as underwriter, advisor, investor or otherwise).
(iii) Neither the Selling Stockholder nor, to the knowledge of the Selling Stockholder, any director, officer, employee, agent, representative, or affiliate thereof, other than any director, officer, employee, agent, representative, or affiliate thereof of the Company or any portfolio company under common control with the Selling Stockholder, has knowingly engaged in, is now knowingly engaged in, and will engage in, any dealings or transactions with any Person, or in any country or territory, that at the time of the dealing or transaction is or was the subject of Sanctions.
(a) The Selling Stockholder has not taken and will not take any action in furtherance of an offer, payment, promise to pay, or authorization or approval of the payment giving or receipt of money, property, gifts or anything else of value, directly or indirectly, to any Government Official in order to influence official action, or to any person in violation of any applicable anti-corruption laws; (b) the Selling Stockholder has conducted its businesses in compliance with applicable anti-corruption laws and the investment advisor advising the Selling Stockholder has instituted and maintained and will continue to maintain policies and procedures reasonably designed to promote and achieve compliance with such laws and with the representations and warranties contained herein; and (c) the Selling Stockholder will not use, directly or indirectly, the proceeds of the offering in furtherance of an offer, payment, promise to pay, or authorization of the payment or giving of money, or anything else of value, to any person in violation of any applicable anti-corruption laws.
(v) The operations of the Selling Stockholder are and have been conducted at all times in material compliance with all applicable Anti-Money Laundering Laws, and no action, suit or proceeding by or before any court or governmental agency, authority or body or any arbitrator involving the Selling Stockholder with respect to the Anti-Money Laundering Laws is pending or, to the best knowledge of the Selling Stockholder, threatened.
(h) The Selling Stockholder represents and warrants that it is not (i) an employee benefit plan subject to Title I of the Employee Retirement Income Security Act of 1974, as amended (“ERISA”), (ii) a plan or account subject to Section 4975 of the Internal Revenue Code of 1986, as amended or (iii) an entity deemed to hold “plan assets” of any such plan or account under Section 3(42) of ERISA, 29 C.F.R. 2510.3-101, or otherwise.
Appears in 1 contract
Representations and Warranties of the Selling Stockholder. The Selling Stockholder represents and warrants to and agrees with each of the Underwriters that:
(a) This Agreement has been duly authorized, executed and delivered by or on behalf of the Selling Stockholder.
(b) The executionexecution and delivery by the Selling Stockholder of, delivery and the performance by the Selling Stockholder of its obligations under, this Agreement Agreement, will not contravene (i) conflict with or result in a breach or violation any provision of any of the terms or provisions of, or constitute a default under any indenture, mortgage, deed of trust, loan agreement or other agreement or instrument to which the Selling Stockholder is a party or by which the Selling Stockholder is boundapplicable law, (ii) result in any violation the certificate of formation or operating agreement of the provisions of the charter Selling Stockholder, (iii) any agreement or by-laws or similar organizational documents of other instrument binding upon the Selling Stockholder or (iiiiv) result in the violation of any law or statute or any judgment, order, rule order or regulation decree of any governmental body, agency or court or arbitrator or governmental or regulatory authorityhaving jurisdiction over the Selling Stockholder, except, except in the case of clauses (i) and (iii) above, for any such conflict, breach, violation or default that as would not materially and adversely affect individually or in the sale aggregate have a material adverse effect on the ability of the Shares and the consummation of any other of such Selling Stockholder to consummate the transactions herein contemplated.
(c) No contemplated by this Agreement, and no consent, approval, authorizationauthorization or order of, order, registration or qualification of with, any governmental body or with any court or arbitrator or governmental or regulatory authority agency is required for the execution, delivery and performance by the Selling Stockholder of its obligations under this Agreement, except such as may be required for the registration of the Shares under the Securities Act and such consents, approvals, authorizations, orders and registrations or qualifications as have been obtained or may be required by FINRA and to be obtained or made under applicable state securities or "blue sky" laws or by the rules and foreign securities laws regulations of the NASD in connection with the purchase and distribution sale of the Shares by the Underwriters.
(dc) The Selling Stockholder has, and on the Closing Date will have, valid title to, or a valid “"security entitlement” " within the meaning of Section 8-501 of the New York Uniform Commercial Code in respect of, the Shares to be sold by the Selling Stockholder free and clear of all security interests, claims, liens, equities or other encumbrances and the legal right and power, and all authorization and approval required by law, to enter into this Agreement and to sell, transfer and deliver the Shares to be sold by the Selling Stockholder or a security entitlement in respect of such the Shares.
(ed) Upon payment for the Shares to be sold by such the Selling Stockholder pursuant to this Agreement, delivery of such the Shares, as directed by the Underwriters, to Cede & Co. (“Cede”"CEDE") or such other nominee as may be designated by the The Depository Trust Company (“"DTC”"), registration of such the Shares in the name of Cede or such other nominee and the crediting of such the Shares on the books of DTC to securities accounts of the Underwriters (assuming that neither DTC nor any such Underwriter has notice of any adverse claim (within the meaning of Section 8-105 of the New York Uniform Commercial Code (the “"UCC”")) to such the Shares), (A) DTC shall be a “"protected purchaser” " of such the 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 the Shares and (C) no action based on any “"adverse claim”", within the meaning of Section 8-102 of the UCC, to such the Shares may be asserted against the Underwriters with respect to such security entitlement; for purposes of this representation, the Selling Stockholder may assume that when such payment, delivery and crediting occur, (x) such the Shares will have been registered in the name of Cede or another nominee designated by DTC, in each case on the Company’s 's share registry in accordance with its certificate of incorporation, bylaws and applicable law, (y) DTC will be registered as a “"clearing corporation” " within the meaning of Section 8-102 of the UCC and (z) appropriate entries to the accounts of the several Underwriters on the records of DTC will have been made pursuant to the UCC.
(fe) The Selling Stockholder has no reason is not prompted to believe that the representations and warranties of the Company contained in Section 1 are not true and correct, is familiar with the Registration Statement, the Time of Sale Prospectus and the Prospectus and has no knowledge of sell its Shares pursuant to this Agreement by any material fact, condition or information not disclosed in the Time of Sale Prospectus or the Prospectus that has had, or may have, a material adverse effect on the Company and its subsidiaries, taken as a whole. The Selling Stockholder does not possess any material non-public information concerning the Company or its subsidiaries which is that has not set forth in the Time of Sale Prospectusbeen publicly disclosed.
(i) Solely to the extent that any statements in, or omissions from, the Registration Statement are made in reliance upon and in conformity with information furnished to the Company by the Selling Stockholder expressly for use therein, the The Registration Statement, when it became effective, did not contain and, as amended or supplemented, if applicable, will not contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading, (ii) solely to the extent that any statements in, or omissions from, the Time of Sale Prospectus are made in reliance upon and in conformity with information furnished to the Company by the Selling Stockholder expressly for use therein, the Time of Sale Prospectus does not, and at the time of each sale of the Shares in connection with the offering when and at the Prospectus is not yet available to prospective purchasersClosing Date (as defined in Section 5), the Time of Sale Prospectus, as then amended or supplemented by the Company, if applicable, will not, contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading, and (iii) solely 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 extent that any statements in, or omissions from, the Prospectus are made in reliance upon and in conformity with information furnished to the Company by the Selling Stockholder expressly for use therein, in the light of the circumstances under which they were made, not misleading and (iv) the Prospectus does not contain and, as amended or supplemented, if applicable, will not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading, except ; provided that each of the representations and warranties set forth in clauses (i) to (iv) of this paragraph 2(gParagraph 2(f) do not apply is limited solely to statements or omissions made in the Registration Statement or the Prospectus based reliance upon information relating to any Underwriter the Selling Stockholder furnished to the Company in writing by such Underwriter through you the Selling Stockholder expressly for use thereinin the Registration Statement, the Time of Sale Prospectus, the Prospectus or any amendments or supplements thereto. Any certificate signed by any officer of the Selling Stockholder 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 the Selling Stockholder, as to matters covered thereby, to each Underwriter.
Appears in 1 contract
Representations and Warranties of the Selling Stockholder. The Selling Stockholder represents and warrants to to, and agrees with each of with, the Underwriters Underwriter that:
(a) The Selling Stockholder is a corporation duly organized, validly existing and in good standing under the laws of the State of Delaware. The Selling Stockholder has all requisite corporate power and authority to enter into this Agreement and to perform its obligations hereunder. This Agreement has been duly authorized, executed and delivered by or on behalf the Selling Stockholder and constitutes a legal, valid and binding obligation of the Selling Stockholder, enforceable against the Selling Stockholder in accordance with its terms.
(b) The No consent, approval, license, permit, order or authorization of, or registration, declaration or filing with, any Federal, state, local or foreign government or any court of competent jurisdiction, administrative agency or commission or other governmental authority or instrumentality, domestic or foreign or nongovernmental third party is required to be obtained or made by or with respect to the Selling Stockholder in connection with the 5 5 execution, delivery and performance by the Selling Stockholder of this Agreement will not except as has been previously obtained or made.
(ic) conflict with or result in a breach or violation The Selling Stockholder has good and valid title to the Shares, free and clear of any liens, claims, encumbrances, security interests, options, charges or restrictions of any kind. Other than this Agreement, the terms or provisions of, or constitute a default under Shares are not subject to any indenture, mortgage, deed of trust, loan voting trust agreement or other agreement contract, agreement, arrangement, commitment or instrument understanding, including any such agreement, arrangement, commitment or understanding restricting or otherwise relating to which the Selling Stockholder is a party voting, dividend rights or by which the Selling Stockholder is bound, (ii) result in any violation disposition of the provisions of the charter or by-laws or similar organizational documents of the Selling Stockholder or Shares.
(iiid) result in the violation of any law or statute or any judgment, order, rule or regulation of any court or arbitrator or governmental or regulatory authority, except, in the case of clauses (i) and (iii) above, for any such conflict, breach, violation or default that would not materially and adversely affect Neither the sale of the Shares and being sold by such Selling Stockholder nor the consummation of any other of the transactions herein contemplated.
(c) No consent, approval, authorization, order, registration or qualification of or with any court or arbitrator or governmental or regulatory authority is required for the execution, delivery and performance contemplated by the Selling Stockholder of this Agreement, except such as may be required for the registration of the Shares under the Securities Act and such consents, approvals, authorizations, orders and registrations or qualifications as have been obtained or may be required by FINRA and under applicable state securities laws and foreign securities laws in connection with the purchase and distribution of the Shares by the Underwriters.
(d) The Selling Stockholder has, and on the Closing Date will have, valid title to, or a valid “security entitlement” within the meaning of Section 8-501 of the New York Uniform Commercial Code in respect of, the Shares to be sold by the Selling Stockholder free and clear of all security interests, claims, liens, equities or other encumbrances and the legal right and power, and all authorization and approval required by law, to enter into this Agreement and to sell, transfer and deliver the Shares to be sold by the Selling Stockholder or the fulfillment of the terms hereof by such Selling Stockholder will conflict with, result in a security entitlement in respect breach or violation of, or constitute a default under any law or the charter or by-laws of such SharesSelling Stockholder or the terms of any indenture or other agreement or instrument to which such Selling Stockholder or any of its subsidiaries is a party or bound, or any judgment, order or decree applicable to such Selling Stockholder or any of its subsidiaries of any court, regulatory body, administrative agency, governmental body or arbitrator having jurisdiction over such Selling Stockholder or any of its subsidiaries.
(e) Upon payment for the Shares to be sold by such Selling Stockholder pursuant to this Agreement, delivery of such Shares, as directed by the Underwriters, to Cede & Co. (“Cede”) or such other nominee as may be designated by the Depository Trust Company (“DTC”), registration of such Shares in the name of Cede or such other nominee and the crediting of such Shares on the books of DTC to securities accounts of the Underwriters (assuming that neither DTC nor any such Underwriter has notice In respect of any adverse claim (within the meaning of Section 8-105 of the New York Uniform Commercial Code (the “UCC”)) to such Shares), (A) DTC shall be a “protected purchaser” of such Shares within the meaning of Section 8-303 of the UCC, (B) under Section 8-501 of the UCC, the Underwriters will acquire a valid security entitlement statements in respect of such Shares and (C) no action based on any “adverse claim”, within the meaning of Section 8-102 of the UCC, to such Shares may be asserted against the Underwriters with respect to such security entitlement; for purposes of this representation, the Selling Stockholder may assume that when such payment, delivery and crediting occur, (x) such Shares will have been registered in the name of Cede or another nominee designated by DTC, in each case on the Company’s share registry in accordance with its certificate of incorporation, bylaws and applicable law, (y) DTC will be registered as a “clearing corporation” within the meaning of Section 8-102 of the UCC and (z) appropriate entries to the accounts of the several Underwriters on the records of DTC will have been made pursuant to the UCC.
(f) The Selling Stockholder has no reason to believe that the representations and warranties of the Company contained in Section 1 are not true and correct, is familiar with omissions from the Registration Statement, the Time of Sale Prospectus and the Prospectus and has no knowledge of any material fact, condition or information not disclosed in the Time of Sale Prospectus Statement or the Prospectus that has had, or may have, a material adverse effect on the Company and its subsidiaries, taken as a whole. The Selling Stockholder does not possess any material non-public information concerning the Company or its subsidiaries which is not set forth in the Time of Sale Prospectus.
(i) Solely to the extent that any statements in, or omissions from, the Registration Statement are supplements thereto made in reliance upon and in conformity with information furnished in writing to the Company by the Selling Stockholder expressly specifically for use thereinin connection with the preparation thereof, such Selling Stockholder hereby makes 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) solely same representations and warranties to the extent that any statements in, or omissions from, Underwriter as the Time of Sale Prospectus are made in reliance upon and in conformity with information furnished Company makes to the Company Underwriter under paragraph (b) of Section 2. Any certificate signed by any officer of the Selling Stockholder expressly for use therein, and delivered to the Time of Sale Prospectus does not, and at the time of each sale of the Shares Underwriter or Underwriter's counsel in connection with the offering when of the Prospectus is not yet available to prospective purchasers, the Time of Sale ProspectusShares shall be deemed a representation and warranty by such Selling Stockholder, as then amended or supplemented by the Companyto matters covered thereby, if applicable, will not, contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading, and (iii) solely to the extent that any statements in, or omissions from, the Prospectus are made in reliance upon and in conformity with information furnished to the Company by the Selling Stockholder expressly for use therein, 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) 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 thereinUnderwriter.
Appears in 1 contract
Representations and Warranties of the Selling Stockholder. (a) The Selling Stockholder represents and warrants to to, and agrees with each of with, the Underwriters thatfor whom you are acting as Representative as follows:
(ai) This Agreement has been duly authorized, executed and delivered by or on behalf of the such Selling Stockholder.
(b) , and constitutes a valid, legal and binding obligation of such Selling Stockholder, enforceable in accordance with its terms, except as rights to indemnity hereunder may be limited by federal or state securities laws and except as such enforceability may be limited by bankruptcy, insolvency, reorganization or similar laws affecting the rights of creditors generally and subject to general principles of equity. The execution, delivery and performance by the Selling Stockholder of this Agreement and the consummation of the transactions herein contemplated will not (i) conflict with or result in a breach or violation of any of the terms or and provisions of, or constitute a default under under, any indenturestatute, mortgage, deed of trust, loan agreement or other agreement or instrument to which the Selling Stockholder is a party or by which it is bound or to which any of its property is subject, or any order, rule, regulation or decree of any court or governmental agency or body having jurisdiction over the Selling Stockholder is boundor any of its properties, (ii) except for violations and defaults that individually or in the aggregate would not reasonably be expected to have a Material Adverse Effect. The execution, delivery and performance of this Agreement and the consummation of the transactions herein contemplated will not result in any a breach or violation of the provisions any of the terms and provisions of, or constitute a default under, the Selling Stockholder’s charter or by-laws or similar organizational documents of the Selling Stockholder or (iii) result in the violation of any law or statute or any judgment, order, rule or regulation of any court or arbitrator or governmental or regulatory authority, except, in the case of clauses (i) and (iii) above, for any such conflict, breach, violation or default that would not materially and adversely affect the sale of the Shares and the consummation of any other of the transactions herein contemplated.
(c) laws. No consent, approval, authorizationauthorization or order of, orderor filing with, registration or qualification of or with any court or arbitrator governmental agency or governmental or regulatory authority body is required for the execution, delivery and performance by the Selling Stockholder of this Agreement, except such as may be required Agreement or for the registration consummation of the Shares under transactions contemplated hereby, including the Securities Act and such consents, approvals, authorizations, orders and registrations or qualifications as have been obtained or may be required by FINRA and under applicable state securities laws and foreign securities laws in connection with the purchase and distribution sale of the Shares by the UnderwritersSelling Stockholder, except as may be required under the Securities Act or state securities or blue sky laws; and the Selling Stockholder has the power and authority to enter into this Agreement and to sell the Shares as contemplated by this Agreement.
(dii) The Such Selling Stockholder hasis, and on the Closing Date will havedate hereof, valid title to, or a valid “security entitlement” within the meaning record and beneficial owner of Section 8-501 all of the New York Uniform Commercial Code in respect of, the Shares to be sold by the Selling Stockholder hereunder free and clear of all security interests, claims, liens, encumbrances, equities and claims and has duly indorsed such Shares in blank or other encumbrances has duly signed a stock power assigning all right, title and the legal right and power, and all authorization and approval required by law, interest to enter into this Agreement and to sell, transfer and deliver the Shares to be sold by the Selling Stockholder or a security entitlement in respect of such Shares.
(e) Upon payment for the Shares to be sold by such Selling Stockholder Stockholder, with all signatures appropriately guaranteed by an eligible guarantor institution with membership in an approved medallion guaranty program pursuant to this AgreementRule 17Ad-15 under the Exchange Act.
(iii) On the Closing Date, delivery of such Shares, as directed all stock transfer or other taxes (other than income taxes) that are required to be paid in connection with the sale and transfer by the Underwriters, to Cede & Co. (“Cede”) or such other nominee as may be designated by the Depository Trust Company (“DTC”), registration of such Shares in the name of Cede or such other nominee and the crediting of such Shares on the books of DTC to securities accounts of the Underwriters (assuming that neither DTC nor any such Underwriter has notice of any adverse claim (within the meaning of Section 8-105 of the New York Uniform Commercial Code (the “UCC”)) to such Shares), (A) DTC shall be a “protected purchaser” of such Shares within the meaning of Section 8-303 of the UCC, (B) under Section 8-501 of the UCC, the Underwriters will acquire a valid security entitlement in respect of such Shares and (C) no action based on any “adverse claim”, within the meaning of Section 8-102 of the UCC, to such Shares may be asserted against the Underwriters with respect to such security entitlement; for purposes of this representation, the Selling Stockholder may assume that when such payment, delivery and crediting occur, (x) such of the Shares will have been registered in the name of Cede be fully paid or another nominee designated provided for by DTC, in each case on the Company’s share registry in accordance with its certificate of incorporation, bylaws such Selling Stockholder and applicable law, (y) DTC all laws imposing such taxes 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 UCCfully complied with.
(fiv) The Selling Stockholder, directly or indirectly, has not entered into any commitment, transaction or other arrangement, including any prepaid forward contract, 10b5-1 plan or similar agreement, which transfers or may transfer any of the legal or beneficial ownership or any of the economic consequences of ownership of the Shares, except as has been previously disclosed in writing to the Representative.
(v) The Selling Stockholder represents and warrants that it has no reason not prepared or had prepared on its behalf or used or referred to believe that the representations and warranties any “free writing prospectus” (as defined in Rule 405 of the Company Act) and further represents that it has not distributed and will not distribute any written materials in connection with the offer or sale of the Shares that could otherwise constitute a “free writing prospectus” (as defined in Rule 405 of the Act) required to be filed with the Commission or retained under Rule 433 of the Act.
(vi) All information relating to the Selling Stockholder contained in Section 1 are not true and correct, is familiar with the Registration Statement, the Time of Sale Prospectus and the Prospectus and has no knowledge of Disclosure Package or any material fact, condition or information not disclosed in the Time of Sale Prospectus or the Prospectus that has had, or may have, a material adverse effect on the Company and its subsidiaries, taken as a whole. The Selling Stockholder does not possess any material non-public information concerning the Company or its subsidiaries which is not set forth in the Time of Sale Prospectus.
(i) Solely to the extent that any statements in, or omissions from, the Registration Statement are made in reliance upon and in conformity with information furnished to the Company by the Selling Stockholder expressly for use therein, the Registration Statement, when it became effective, did not contain and, as amended or supplementedthe case may be, if applicableis as of the applicable Closing Date, will not contain any untrue statement of a true, correct, and complete in all material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleadingrespects, (ii) solely to the extent that any statements in, or omissions from, the Time of Sale Prospectus are made in reliance upon and in conformity with information furnished to the Company by the Selling Stockholder expressly for use therein, 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, the Time of Sale Prospectus, as then amended or supplemented by the Company, if applicable, will not, contain any untrue statement of a material fact or omit to state a any material fact necessary to make the statements therein, in the light of the circumstances under which they were made, such information not misleading. In addition, and (iii) solely to the extent that any statements in, or omissions from, the Prospectus are made in reliance upon and in conformity with information furnished to the Company by the Selling Stockholder expressly for use therein, confirms as accurate the number of shares of Common Stock set forth opposite the Selling Stockholder’s name in the Time of Sale Disclosure Package and any Prospectus does under the caption “Selling Stockholder” (both prior to and after giving effect to the sale of the Shares).
(vii) The Selling Stockholder has not contain and, as amended or supplemented, if applicable, taken and will not contain take, directly or indirectly, any untrue statement of a material fact action designed to or omit that might be reasonably expected to state a material fact necessary to make the statements therein, cause or result in the light stabilization or manipulation of the circumstances under which they were made, not misleading, except that price of any security of the representations Company to facilitate the sale or resale of the Shares.
(b) Any certificate signed by any officer of the Selling Stockholder 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 delivered to the Company in writing Representative or to counsel to the Underwriters shall be deemed a representation and warranty by such Underwriter through you expressly for use thereinSelling Stockholder to the Underwriters as to the matters covered thereby.
Appears in 1 contract
Representations and Warranties of the Selling Stockholder. The Selling Stockholder represents and warrants to and agrees with each of the Underwriters that:
(a) This Agreement has been duly authorized, executed and delivered by or on behalf of the Selling Stockholder.
(b) The executionexecution and delivery by the Selling Stockholder of, delivery and the performance by the Selling Stockholder of its obligations under, this Agreement Agreement, will not contravene (i) conflict with or result in a breach or violation any provision of any of the terms or provisions of, or constitute a default under any indenture, mortgage, deed of trust, loan agreement or other agreement or instrument to which the Selling Stockholder is a party or by which the Selling Stockholder is boundapplicable law, (ii) result in any violation or the certificate of the provisions of the charter incorporation or by-laws or similar equivalent organizational documents or formation documents, as applicable, of the Selling Stockholder or Stockholder, (iii) result in any agreement or other instrument binding upon the violation of any law Selling Stockholder, or statute or (iv) any judgment, order, rule order or regulation decree of any governmental body, agency or court or arbitrator or governmental or regulatory authorityhaving jurisdiction over the Selling Stockholder, except, except in the case of clauses (i), (iii) and (iiiiv) aboveas would not, for any such conflictindividually or in the aggregate, breach, violation or default that would not materially and adversely affect have a material adverse effect on the sale ability of the Shares and the consummation of any other of Selling Stockholder to consummate the transactions herein contemplated.
(c) No contemplated by this Agreement and no consent, approval, authorizationauthorization or order of, order, registration or qualification of with, any governmental body or with any court or arbitrator or governmental or regulatory authority agency is required for the execution, delivery and performance by the Selling Stockholder of its obligations under this Agreement, except such have been obtained and made under the Securities Act, such as may be required for by the registration of Exchange Act or the Shares under the Securities Act rules and such consents, approvals, authorizations, orders and registrations regulations thereunder or qualifications as have been obtained or may be required by FINRA and under applicable state the securities or Blue Sky laws and of the various states or foreign securities laws jurisdiction in connection with the purchase offer and distribution sale of the Shares by the UnderwritersShares.
(dc) The Selling Stockholder has, and on the Closing Date will have, valid title to, or a valid “security entitlement” within the meaning of Section 8-501 of the New York Uniform Commercial Code (the “UCC”) in respect of, the Shares to be sold by the Selling Stockholder free and clear of all security interests, claims, liens, equities or other encumbrances and the legal right and power, and all authorization and approval required by law, to enter into this Agreement and to sell, transfer and deliver the Shares to be sold by the Selling Stockholder or a security entitlement in respect of such Shares.
(ed) Upon payment for the Shares to be sold by such the Selling Stockholder pursuant to this Agreement, delivery of such Shares, as directed by the Underwriters, to Cede & Co. (“Cede”) or such other nominee as may be designated by the Depository Trust Company (“DTC”), registration of such Shares in the name of Cede or such other nominee and the crediting of such Shares on the books of DTC to securities accounts of the Underwriters (assuming that neither DTC nor any such Underwriter has notice of any adverse claim (within the meaning of Section 8-105 of the New York Uniform Commercial Code (the “UCC”)) 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, the Selling Stockholder may assume that when such payment, delivery and crediting occur, (x) such Shares will have been registered in the name of Cede or another nominee designated by DTC, in each case on the Company’s share registry in accordance with its certificate of incorporation, bylaws and applicable law, (y) DTC will be registered as a “clearing corporation” within the meaning of Section 8-102 of the UCC and (z) appropriate entries to the accounts of the several Underwriters on the records of DTC will have been made pursuant to the UCC.
(e) The Selling Stockholder has delivered to the Representatives an executed lock-up agreement in substantially the form attached hereto as Exhibit A (the “Lock-up Agreement”).
(f) The Selling Stockholder has no reason to believe that the representations and warranties of the Company contained in Section 1 are not true and correct, is familiar with the Registration Statement, the Time of Sale Prospectus and the Prospectus and has no knowledge of any material fact, condition or information not disclosed in the Registration Statement, the Time of Sale Prospectus or the Prospectus that has had, or may have, a material adverse effect on the Company and its subsidiaries, taken as a whole. The Selling Stockholder does is not possess prompted by any material non-public information concerning the Company or its subsidiaries which is not set forth in the Registration Statement, the Time of Sale ProspectusProspectus or the Prospectus to sell its Shares pursuant to this Agreement.
(i) Solely to the extent that any statements in, or omissions from, the Registration Statement are made in reliance upon and in conformity with information furnished to the Company by the Selling Stockholder expressly for use therein, the The Registration Statement, when it became effective, did not contain and, as amended or supplemented, if applicable, will not not, as of the date of such amendment or supplement 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) solely to the extent that any statements in, or omissions from, the Time of Sale Prospectus are made in reliance upon and in conformity with information furnished to the Company by the Selling Stockholder expressly for use therein, 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 purchaserspurchasers and at the Closing Date (as defined in Section 5), the Time of Sale Prospectus, as then amended or supplemented by the Company, if applicable, will not, contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading, and (iii) solely 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 extent that any statements in, or omissions from, the Prospectus are made in reliance upon and in conformity with information furnished to the Company by the Selling Stockholder expressly for use therein, in the light of the circumstances under which they were made, not misleading and (iv) the Prospectus does not contain and, as amended or supplemented, if applicable, will not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading, except that the representations and warranties set forth in this paragraph 2(g(A) do not apply to statements or omissions in the Registration Statement or Statement, the Time of Sale Prospectus, the Prospectus or any amendments or supplements thereto based upon information relating to any Underwriter furnished to the Company in writing by such Underwriter through you the Representatives expressly for use therein and (B) are limited in all respects to statements or omissions made in reliance upon and conformity with information relating to the Selling Stockholder expressly for use in the Registration Statement, the Time of Sale Prospectus, the road show, the Prospectus or any amendments or supplements thereto, it being understood and agreed that the only such information furnished by the Selling Stockholder consists of the Selling Stockholder Information (as defined below).
(i) None of the Selling Stockholder or any of its subsidiaries, or, to the knowledge of the Selling Stockholder, any director, officer, employee, agent, representative, or affiliate thereof, is a Person that is, or is owned or controlled by one or more Persons that are:
(A) the subject of any Sanctions, or
(B) located, organized or resident in a country or territory that is the subject of Sanctions (including, without limitation, the Crimea region of Ukraine, Cuba, Iran, North Korea and Syria).
(ii) The Selling Stockholder will not, directly or indirectly, use the proceeds of the offering, or lend, contribute or otherwise make available such proceeds to any subsidiary, joint venture partner or other Person:
(A) to fund or facilitate any activities or business of or with any Person or in any country or territory that, at the time of such funding or facilitation, is the subject of Sanctions; or
(B) in any other manner that will result in a violation of Sanctions by any Person (including any Person participating in the offering, whether as underwriter, advisor, investor or otherwise).
(iii) The Selling Stockholder has not knowingly engaged in, is not now knowingly engaged in, and will not engage in, any dealings or transactions with any Person, or in any country or territory, that at the time of the dealing or transaction is or was the subject of Sanctions.
(a) None of the Selling Stockholder, or, to the extent applicable, its subsidiaries, or, to the knowledge of the Selling Stockholder, any director, officer, employee, agent, representative, or controlled affiliate thereof has taken or will take any action in furtherance of an offer, payment, promise to pay, or authorization or approval of the payment giving or receipt of money, property, gifts or anything else of value, directly or indirectly, to any Government Official in order to influence official action, or to any person in violation of any applicable anti-corruption laws; (b) the Selling Stockholder and each of its subsidiaries have conducted their businesses in compliance with applicable anti-corruption laws and the Selling Stockholder and its subsidiaries have instituted and maintained and will continue to maintain policies and procedures reasonably designed to promote and achieve compliance with such laws and with the representations and warranties contained herein; and (c) neither the Selling Stockholder nor any of its subsidiaries will use, directly or indirectly, the proceeds of the offering in furtherance of an offer, payment, promise to pay, or authorization of the payment or giving of money, or anything else of value, to any person in violation of any applicable anti-corruption laws.
(v) The operations of the Selling Stockholder and each of its subsidiaries are and have been conducted at all times in material compliance with all applicable Anti-Money Laundering Laws, and no action, suit or proceeding by or before any court or governmental agency, authority or body or any arbitrator involving the Selling Stockholder or any of its subsidiaries with respect to the Anti-Money Laundering Laws is pending or, to the knowledge of the Selling Stockholder, threatened.
(i) The Selling Stockholder represents and warrants that it is not (i) an employee benefit plan subject to Title I of the Employee Retirement Income Security Act of 1974, as amended (“ERISA”), (ii) a plan or account subject to Section 4975 of the Internal Revenue Code of 1986, as amended or (iii) an entity deemed to hold “plan assets” of any such plan or account under Section 3(42) of ERISA, 29 C.F.R. 2510.3-101, or otherwise.
(j) No stamp, documentary, issuance, registration, transfer, withholding, capital gains, income or other taxes or duties are payable by or on behalf of the Underwriters, in the United Kingdom, the Cayman Islands or the People’s Republic of China, or to any taxing authority thereof or therein, in connection with the sale and delivery of the Shares by the Selling Stockholder to the Underwriters or purchasers procured by the Underwriters.
(k) The Selling Stockholder has the power to submit, and pursuant to Section 20(a) has, to the extent permitted by law, legally, validly, effectively and irrevocably submitted, to the jurisdiction of the Specified Courts (as defined in Section 20(a)), and has the power to designate, appoint and empower, and pursuant to Section 20(c), has legally, validly and effectively designated, appointed and empowered an agent for service of process in any suit or proceeding based on or arising under this Agreement in any of the Specified Courts.
Appears in 1 contract
Representations and Warranties of the Selling Stockholder. The Selling Stockholder represents and warrants to and agrees with each of the Underwriters and the Company that:
(a) This Agreement has been duly authorized, executed and delivered by or on behalf of the Selling Stockholder.
(b) The executionexecution and delivery by the Selling Stockholder of, delivery and the performance by the Selling Stockholder of its obligations under, this Agreement will not (i) conflict with or result in a breach or violation contravene any provision of any of the terms or provisions ofapplicable law, or constitute a default under any indenturethe certificate of incorporation, mortgage, deed of trust, loan agreement or other agreement or instrument to which the Selling Stockholder is a party or by which the Selling Stockholder is bound, (ii) result in any violation of the provisions of the charter or by-laws or similar other governing or organizational documents of the Selling Stockholder, or any agreement or other instrument binding upon the Selling Stockholder or (iii) result in the violation of any law or statute or any judgment, order, rule order or regulation decree of any governmental body, agency or court or arbitrator or governmental or regulatory authorityhaving jurisdiction over the Selling Stockholder, except, in the case of clauses (i) and (iii) above, for any such conflict, breach, violation or default that would not materially and adversely affect the sale of the Shares and the consummation of any other of the transactions herein contemplated.
(c) No no consent, approval, authorizationauthorization or order of, order, registration or qualification of with, any governmental body or with any court or arbitrator or governmental or regulatory authority agency is required for the execution, delivery and performance by the Selling Stockholder of its obligations under this Agreement, except such as may be required for by the registration securities or Blue Sky laws of the Shares under the Securities Act and such consents, approvals, authorizations, orders and registrations or qualifications as have been obtained or may be required by FINRA and under applicable state securities laws and foreign securities laws various states in connection with the purchase offer and distribution sale of the Shares by the UnderwritersShares.
(dc) The Selling Stockholder has, and on the Closing Date will have, valid title to, or a valid “security entitlement” within the meaning of Section 8-501 of the New York Uniform Commercial Code in respect of, to the Shares to be sold by the Selling Stockholder free and clear of all security interests, claims, liens, equities or other encumbrances and the legal right and power, and all authorization and approval required by law, to enter into this Agreement and to sell, transfer and deliver the Shares to be sold by the Selling Stockholder or a security entitlement in respect of such SharesStockholder.
(ed) Upon payment for delivery of the Shares to be sold by such the Selling Stockholder pursuant to this Agreement against payment therefor in accordance with this Agreement, delivery of such Shares, as directed by the Underwriters, to Cede & Co. (“Cede”) or such other nominee as may be designated by the Depository Trust Company (“DTC”), registration of such Shares in the name of Cede or such other nominee purchasers thereof will obtain good and the crediting of such Shares on the books of DTC to securities accounts of the Underwriters (assuming that neither DTC nor any such Underwriter has notice of any adverse claim (within the meaning of Section 8-105 of the New York Uniform Commercial Code (the “UCC”)) to such Shares), (A) DTC shall be a “protected purchaser” of such Shares within the meaning of Section 8-303 of the UCC, (B) under Section 8-501 of the UCC, the Underwriters will acquire a valid security entitlement in respect of such Shares and (C) no action based on any “adverse claim”, within the meaning of Section 8-102 of the UCC, title to such Shares may be asserted against the Underwriters with respect to such free and clear of any security entitlement; for purposes of this representationinterests, the Selling Stockholder may assume that when such paymentclaims, delivery liens, equities and crediting occur, (x) such Shares will have been registered in the name of Cede or another nominee designated by DTC, in each case on the Company’s share registry in accordance with its certificate of incorporation, bylaws and applicable law, (y) DTC will be registered as a “clearing corporation” within the meaning of Section 8-102 of the UCC and (z) appropriate entries to the accounts of the several Underwriters on the records of DTC will have been made pursuant to the UCCother encumbrances.
(fe) The Selling Stockholder has no reason to believe that the representations and warranties of the Company contained statements in Section 1 are not true and correct, is familiar with the Registration Statement, the Time of Sale Prospectus and the Prospectus under the captions "Selling Stockholder" are true, correct 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 complete and its subsidiaries, taken as a whole. The Selling Stockholder does not possess any material non-public information concerning the Company or its subsidiaries which is not set forth in the Time of Sale Prospectus.
(i) Solely to the extent that any statements in, or omissions from, the Registration Statement are made in reliance upon and in conformity with information furnished to the Company by the Selling Stockholder expressly for use therein, the Registration Statement, when it became effective, did not contain and, as amended or supplemented, if applicable, will do 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) solely to the extent that any statements in, or omissions from, the Time of Sale Prospectus are made in reliance upon and in conformity with information furnished to the Company by the Selling Stockholder expressly for use therein, 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, the Time of Sale Prospectus, as then amended or supplemented by the Company, if applicable, will not, contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements thereinsuch statements, in the light of the circumstances under which they were made, not misleading, and (iii) solely to the extent that any statements in, or omissions from, the Prospectus are made in reliance upon and in conformity with information furnished to the Company by the Selling Stockholder expressly for use therein, 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) 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.
Appears in 1 contract
Representations and Warranties of the Selling Stockholder. The Selling Stockholder represents and warrants to and agrees with each of the Underwriters and the Independent Underwriter that:
(a) This Agreement has been duly authorized, executed and delivered by or on behalf of the Selling Stockholder.
(b) The executionexecution and delivery by the Selling Stockholder of, delivery and the performance by the Selling Stockholder of its obligations under, this Agreement will not (with or without notice, lapse of time or both) contravene (i) conflict with or result in a breach or violation of any of the terms or provisions of, or constitute a default under any indenture, mortgage, deed of trust, loan agreement or other agreement or instrument to which the Selling Stockholder is a party or by which the Selling Stockholder is bound, (ii) result in any violation of the provisions of the charter organizational documents or by-laws or similar organizational documents of the Selling Stockholder Stockholder; (ii) any agreement or other instrument binding upon the Selling Stockholder; or (iii) result in the violation any provision of any applicable law or statute or any judgment, order, rule order or regulation decree of any governmental body, agency or court or arbitrator or governmental or regulatory authorityhaving jurisdiction over the Selling Stockholder, except, in the case of clauses clause (i) and (iiiii) above, for any such conflict, breach, violation or default contraventions that would not not, individually or in the aggregate, (x) have a material adverse effect on the Company and its subsidiaries, taken as a whole, or (y) prevent or materially and adversely affect the sale of the Shares and interfere with the consummation of any other of the transactions herein contemplated.
(c) contemplated hereby. No consent, approval, authorizationauthorization or order of, order, registration or qualification of with, any governmental body or with any court or arbitrator or governmental or regulatory authority agency is required for the execution, delivery and performance by the Selling Stockholder of its obligations under this Agreement, except such as may be required for by the registration securities or Blue Sky laws of the Shares under the Securities Act and such consents, approvals, authorizations, orders and registrations or qualifications as have been obtained or may be required by FINRA and under applicable state securities laws and foreign securities laws various states in connection with the purchase offer and distribution sale of the Shares by the UnderwritersShares.
(dc) The Selling Stockholder has, and on the Closing Date will have, valid title to, or a valid “security entitlement” within the meaning of Section 8-501 of the New York Uniform Commercial Code in respect of, the Shares to be sold by the Selling Stockholder free and clear of all security interests, claims, liens, equities or other encumbrances and the legal right and power, and all authorization and approval required by law, to enter into this Agreement and to sell, transfer and deliver the Shares to be sold by the Selling Stockholder or a security entitlement in respect of such Shares.
(ed) Upon payment for Delivery of the Shares to be sold by such the Selling Stockholder and payment therefor pursuant to this Agreement, delivery of Agreement will pass valid title to such Shares, as directed by the Underwriters, to Cede & Co. (“Cede”) or such other nominee as may be designated by the Depository Trust Company (“DTC”), registration of such Shares in the name of Cede or such other nominee free and the crediting of such Shares on the books of DTC to securities accounts of the Underwriters (assuming that neither DTC nor any such Underwriter has notice clear of any adverse claim (within the meaning of Section 8-105 of the New York Uniform Commercial Code (the “UCC”)) to such Shares), (A) DTC shall be a “protected purchaser” of such Shares within the meaning of Section 8-303 of the UCC, (B) under Section 8-501 of the UCC, the Underwriters will acquire a valid security entitlement in respect of such Shares and (C) no action based on any “adverse claim”, within the meaning of Section 8-102 of the UCCNew York Uniform Commercial Code, to each Underwriter who has purchased such Shares may be asserted against the Underwriters with respect to such security entitlement; for purposes without notice of this representation, the Selling Stockholder may assume that when such payment, delivery and crediting occur, (x) such Shares will have been registered in the name of Cede or another nominee designated by DTC, in each case on the Company’s share registry in accordance with its certificate of incorporation, bylaws and applicable law, (y) DTC will be registered as a “clearing corporation” within the meaning of Section 8-102 of the UCC and (z) appropriate entries to the accounts of the several Underwriters on the records of DTC will have been made pursuant to the UCCan adverse claim.
(fe) The Selling Stockholder has no reason to believe that the representations and warranties of the Company contained in Section 1 are not true and correct, is familiar with the Registration Statement, the Time of Sale Prospectus and the Prospectus and has no knowledge of any material fact, condition or information not disclosed in the Time of Sale Prospectus or the Prospectus that has had, or may have, a material adverse effect on the Company and its subsidiaries, taken as a whole. The Selling Stockholder does is not possess prompted by any material non-public information concerning the Company or its subsidiaries which is not set forth in the Time of Sale ProspectusProspectus to sell its Shares pursuant to this Agreement.
(i) Solely to the extent that any statements in, or omissions from, the Registration Statement are made in reliance upon and in conformity with information furnished to the Company by the Selling Stockholder expressly for use therein, the The Registration Statement, when it became effective, did not contain and, as amended or supplemented, if applicable, will not contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading, (ii) solely to the extent that any statements inRegistration Statement and the Prospectus comply and, as amended or omissions fromsupplemented, if applicable, will comply in all material respects with the Time Securities Act and the applicable rules and regulations of Sale Prospectus are made in reliance upon and in conformity with information furnished to the Company by the Selling Stockholder expressly for use thereinCommission thereunder, (iii) the Time of Sale Prospectus does not, and at the time of each sale of the Shares in connection with the offering when the Prospectus is not yet available to prospective purchasers, and, at the Closing Date (as defined in Section 5), the Time of Sale Prospectus, as then amended or supplemented by the Company, if applicable, will not, contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading, (iv) each broadly available road show, if any, when considered together with the Time of Sale Prospectus, does not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading and (iiiv) solely to the extent that any statements in, or omissions from, the Prospectus are made in reliance upon and in conformity with information furnished to the Company by the Selling Stockholder expressly for use therein, 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 ; provided that the representations and warranties set forth in this paragraph 2(g2(f) do not apply are limited to statements or omissions made in the Registration Statement or the Prospectus based reliance upon information relating to any Underwriter the Selling Stockholder furnished to the Company in writing by such Underwriter through you the Selling Stockholder expressly for use thereinin the Registration Statement, the Time of Sale Prospectus, the Prospectus or any amendments or supplements thereto.
Appears in 1 contract
Samples: Underwriting Agreement (CKE Inc.)
Representations and Warranties of the Selling Stockholder. The Selling Stockholder represents and warrants warrant to and agrees with each of the Underwriters Underwriter that:
(a) This the Selling Stockholder now is and at the time of delivery of the Shares will be, the lawful owner of the Shares and has and, at the time of delivery thereof, will have valid and marketable title to such Shares, and upon delivery of and payment for such Shares, the Underwriter will acquire valid and marketable title to the Shares free and clear of any claim, lien, encumbrance, security interest, community property right, restriction on transfer or other defect in title;
(b) the Selling Stockholder has and at the time of delivery of such Shares will have, full legal right, partnership authority, power and capacity, and any approval required by law (other than those imposed by the Act and the securities or blue sky laws of certain jurisdictions), to sell, assign, transfer and deliver such Shares in the manner provided in this Agreement;
(c) this Agreement has been duly authorized, executed and delivered by or on behalf the Selling Stockholder and is a legal, valid and binding agreement of the Selling Stockholder.
(b) The executionStockholder enforceable in accordance with its terms, delivery and performance by the execution thereof does not and will not, whether with or without the giving of notice or passage of time or both, conflict with or constitute a breach of, or default under, or result in the creation or imposition of any lien, charge or encumbrance upon the Shares or any property or assets of the Selling Stockholder of this Agreement will not (i) conflict with or result in a breach or violation of pursuant to any of the terms or provisions ofcontract, or constitute a default under any indenture, mortgage, deed of trust, loan agreement or credit agreement, note, license, lease or other agreement or instrument to which the Selling Stockholder is a party or by which the Selling Stockholder is may be bound, (ii) or to which any of the property or assets of the Selling Stockholder is subject, nor will such action result in any violation of the provisions of the charter limited partnership agreement of the Selling Stockholder, or by-laws any applicable treaty, law, statute, rule, regulation, judgment, order, writ or similar organizational documents decree of any government, government instrumentality or court, domestic or foreign, having jurisdiction over the Selling Stockholder or any of its properties;
(iiid) the Selling Stockholder has not taken, and will not take, directly or indirectly, any action which is designed to or which has constituted or which might reasonably be expected to cause or result in stabilization or manipulation of the violation price of any law or statute or any judgment, order, rule or regulation security of any court or arbitrator or governmental or regulatory authority, except, in the case of clauses (i) and (iii) above, for any such conflict, breach, violation or default that would not materially and adversely affect Company to facilitate the sale or resale of the Shares and the consummation of any other of the transactions herein contemplated.Shares;
(ce) No no filing with, or consent, approval, authorization, order, registration registration, qualification or qualification of or with decree of, any court or arbitrator governmental authority or governmental agency, domestic or regulatory authority foreign, is necessary or required for the execution, delivery and performance by the Selling Stockholder of its obligations hereunder or in connection with the sale and delivery of the Shares hereunder or the consummation of the transactions contemplated by this Agreement, except such as may be required for the registration of the Shares under the Securities Act and such consents, approvals, authorizations, orders and registrations have previously been made or qualifications as have been obtained or as may be required by FINRA and under applicable the Act or the Exchange Act or state securities laws and foreign securities laws in connection with the purchase and distribution of the Shares by the Underwriters.
(d) The Selling Stockholder has, and on the Closing Date will have, valid title to, or a valid “security entitlement” within the meaning of Section 8-501 of the New York Uniform Commercial Code in respect of, the Shares to be sold by the Selling Stockholder free and clear of all security interests, claims, liens, equities or other encumbrances and the legal right and power, and all authorization and approval required by law, to enter into this Agreement and to sell, transfer and deliver the Shares to be sold by the Selling Stockholder or a security entitlement in respect of such Shares.
(e) Upon payment for the Shares to be sold by such Selling Stockholder pursuant to this Agreement, delivery of such Shares, as directed by the Underwriters, to Cede & Co. (“Cede”) or such other nominee as may be designated by the Depository Trust Company (“DTC”), registration of such Shares in the name of Cede or such other nominee and the crediting of such Shares on the books of DTC to securities accounts of the Underwriters (assuming that neither DTC nor any such Underwriter has notice of any adverse claim (within the meaning of Section 8-105 of the New York Uniform Commercial Code (the “UCC”)) to such Shares), (A) DTC shall be a “protected purchaser” of such Shares within the meaning of Section 8-303 of the UCC, (B) under Section 8-501 of the UCC, the Underwriters will acquire a valid security entitlement in respect of such Shares and (C) no action based on any “adverse claim”, within the meaning of Section 8-102 of the UCC, to such Shares may be asserted against the Underwriters with respect to such security entitlement; for purposes of this representation, the Selling Stockholder may assume that when such payment, delivery and crediting occur, (x) such Shares will have been registered in the name of Cede or another nominee designated by DTC, in each case on the Company’s share registry in accordance with its certificate of incorporation, bylaws and applicable law, (y) DTC will be registered as a “clearing corporation” within the meaning of Section 8-102 of the UCC and (z) appropriate entries to the accounts of the several Underwriters on the records of DTC will have been made pursuant to the UCC.laws;
(f) The Selling Stockholder has no reason to believe that the representations and warranties as of the Company contained in Section 1 are not true date of this Agreement and correct, is familiar with until the Registration Statement, latest of the Time time of Sale Prospectus and the Prospectus and has no knowledge of any material fact, condition or information not disclosed in the Time of Sale Prospectus purchase or the Prospectus that has had, or may have, a material adverse effect on termination of the Company and its subsidiaries, taken as a whole. The Selling Stockholder does not possess any material non-public information concerning offering of the Company or its subsidiaries which is not set forth in the Time of Sale Prospectus.
(i) Solely to the extent that any statements in, or omissions fromShares, the Registration Statement are made in reliance upon and in conformity with information furnished Prospectus, and any supplements or amendments thereto as relate to the Company by the such Selling Stockholder expressly for use therein, the Registration Statement, when it became effective, did do not contain and, as amended or supplemented, if applicable, and will not contain any an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading, ; and
(iig) solely to the extent that any statements in, or omissions from, the Time of Sale Prospectus are made in reliance upon and in conformity with information furnished to the Company by the Selling Stockholder expressly for use therein, 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 pursuant to this Agreement is not yet available to prospective purchasers, the Time of Sale Prospectus, as then amended or supplemented prompted by the Company, if applicable, will not, contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading, and (iii) solely to the extent that any statements in, or omissions from, the Prospectus are made in reliance upon and in conformity with information furnished to concerning the Company by the Selling Stockholder expressly for use therein, the Prospectus does which is not contain and, as amended or supplemented, if applicable, will not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, 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 you expressly for use thereinProspectus.
Appears in 1 contract
Representations and Warranties of the Selling Stockholder. (a) The Selling Stockholder represents and warrants to and to, and agrees with each of with, the Underwriters thatas follows:
(ai) This Agreement has been duly authorized, executed and delivered by or on behalf of the such Selling Stockholder.
(b) , and constitutes a valid, legal and binding obligation of such Selling Stockholder, enforceable in accordance with its terms, except as rights to indemnity hereunder may be limited by federal or state securities laws and except as such enforceability may be limited by bankruptcy, insolvency, reorganization or similar laws affecting the rights of creditors generally and subject to general principles of equity. The execution, delivery and performance by the Selling Stockholder of this Agreement and the consummation of the transactions herein contemplated will not (i) conflict with or result in a breach or violation of any of the terms or and provisions of, or constitute a default under under, any indenturestatute, mortgage, deed of trust, loan agreement or other agreement or instrument to which the Selling Stockholder is a party or by which the Selling Stockholder it is boundbound or to which any of its property is subject, (ii) result in or any violation order, rule, regulation or decree of the provisions of the charter any court or by-laws governmental agency or similar organizational documents of body having jurisdiction over the Selling Stockholder or (iii) result any of its properties, except for violations and defaults that individually or in the violation of any law or statute or any judgment, order, rule or regulation of any court or arbitrator or governmental or regulatory authority, except, in the case of clauses (i) and (iii) above, for any such conflict, breach, violation or default that aggregate would not materially reasonably be expected to have a Material Adverse Effect. The execution, delivery and adversely affect the sale performance of the Shares this Agreement and the consummation of any other of the transactions herein contemplated.
(c) contemplated will not result in a breach or violation of any of the terms and provisions of, or constitute a default under, the Selling Stockholder’s charter or by laws. No consent, approval, authorizationauthorization or order of, orderor filing with, registration or qualification of or with any court or arbitrator governmental agency or governmental or regulatory authority body is required for the execution, delivery and performance by the Selling Stockholder of this Agreement, except such as may be required Agreement or for the registration consummation of the Shares under transactions contemplated hereby, including the Securities Act and such consents, approvals, authorizations, orders and registrations or qualifications as have been obtained or may be required by FINRA and under applicable state securities laws and foreign securities laws in connection with the purchase and distribution sale of the Shares by the UnderwritersSelling Stockholder, except as may be required under the Securities Act or state securities or blue sky laws; and the Selling Stockholder has the power and authority to enter into this Agreement and to sell the Shares as contemplated by this Agreement.
(dii) The Such Selling Stockholder hasis, and on the Closing Date will havedate hereof, valid title to, or a valid “security entitlement” within the meaning record and beneficial owner of Section 8-501 all of the New York Uniform Commercial Code in respect of, the Shares to be sold by the Selling Stockholder hereunder free and clear of all security interests, claims, liens, encumbrances, equities and claims and has duly indorsed such Shares in blank or other encumbrances has duly signed a stock power assigning all right, title and the legal right and power, and all authorization and approval required by law, interest to enter into this Agreement and to sell, transfer and deliver the Shares to be sold by the Selling Stockholder or a security entitlement in respect of such Shares.
(e) Upon payment for the Shares to be sold by such Selling Stockholder Stockholder, with all signatures appropriately guaranteed by an eligible guarantor institution with membership in an approved medallion guaranty program pursuant to this AgreementRule 17Ad-15 under the Exchange Act.
(iii) On the applicable Closing Date, delivery of all stock transfer or other taxes (other than income taxes) that are required to be paid in connection with the sale and transfer by such Shares, as directed by the Underwriters, to Cede & Co. (“Cede”) or such other nominee as may be designated by the Depository Trust Company (“DTC”), registration of such Shares in the name of Cede or such other nominee and the crediting of such Shares on the books of DTC to securities accounts Selling Stockholder of the Underwriters Shares will be fully paid or provided for by such Selling Stockholder and all laws imposing such taxes will be fully complied with.
(assuming that neither DTC nor any such Underwriter has notice of any adverse claim (within the meaning of Section 8-105 of the New York Uniform Commercial Code (the “UCC”)iv) to such Shares), (A) DTC shall be a “protected purchaser” of such Shares within the meaning of Section 8-303 of the UCC, (B) under Section 8-501 of the UCC, the Underwriters will acquire a valid security entitlement in respect of such Shares and (C) no action based on any “adverse claim”, within the meaning of Section 8-102 of the UCC, to such Shares may be asserted against the Underwriters All information with respect to such security entitlement; for purposes of this representationSelling Stockholder contained in the Registration Statement, the Time of Sale Disclosure Package and any Prospectus, or any amendment or supplement thereto, complied or will comply in all material respects with all applicable requirements of the Securities Act and the Rules and Regulations promulgated thereunder and does 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.
(v) Such Selling Stockholder, directly or indirectly, has not entered into any commitment, transaction or other arrangement, including any prepaid forward contract, 10b5-1 plan or similar agreement, which transfers or may transfer any of the legal or beneficial ownership or any of the economic consequences of ownership of the Shares, except as has been previously disclosed in writing to the Underwriters.
(vi) Such Selling Stockholder represents and warrants that it has not prepared or had prepared on its behalf or used or referred to any “free writing prospectus” (as defined in Rule 405 of the Act) and further represents that it has not distributed and will not distribute any written materials in connection with the offer or sale of the Shares that could otherwise constitute a “free writing prospectus” (as defined in Rule 405 of the Act) required to be filed with the Commission or retained under Rule 433 of the Act.
(vii) All information relating to such Selling Stockholder furnished by or on behalf of such Selling Stockholder in writing expressly for use in the Registration Statement, the Time of Sale Disclosure Package or any Prospectus, as the case may assume be, is as of the applicable Closing Date, true, correct, and complete in all material respects, and does not, and will not, contain any untrue statement of a material fact or omit to state any material fact necessary to make such information not misleading. In addition, such Selling Stockholder confirms as accurate the number of shares of Common Stock set forth opposite such Selling Stockholder’s name in the Time of Sale Disclosure Package and any Prospectus under the caption “Selling Stockholder” (both prior to and after giving effect to the sale of the Shares).
(viii) Such Selling Stockholder does not have any registration or other similar rights to have any equity or debt securities registered for sale by the Company under the Registration Statement or included in an offering contemplated by this Agreement, except for such rights that when such paymenthave been waived.
(ix) Such Selling Stockholder has not taken and will not take, delivery and crediting occurdirectly or indirectly, any action designed to or that might be reasonably 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.
(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 Nothing has come to the accounts attention of the several Underwriters on the records of DTC will have been made pursuant to the UCC.
(f) The such Selling Stockholder that has no reason caused such Selling Stockholder to believe that the representations and warranties of the Company contained in this Section 1 are not true and correct, is familiar with ; such Selling Stockholder has reviewed the Registration Statement, the Time of Sale Prospectus Disclosure Package and the each Prospectus and has no knowledge of any material fact, condition or information not disclosed in the Registration Statement, the Time of Sale Disclosure Package or such Prospectus which has had or the Prospectus that has hadwhich could reasonably be expected to result in a Material Adverse Effect, or may have, a material adverse effect on the Company and its subsidiaries, taken as a whole. The such Selling Stockholder does is not possess prompted to sell shares of Common Stock by any material non-public information concerning the Company or its subsidiaries which that is not set forth in the Time of Sale Prospectus.
(i) Solely to the extent that any statements in, or omissions from, the Registration Statement are made in reliance upon and in conformity with information furnished to the Company by the Selling Stockholder expressly for use therein, 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) solely to the extent that any statements in, or omissions from, the Time of Sale Prospectus are made in reliance upon and in conformity with information furnished to the Company Disclosure Package or a Prospectus.
(b) Any certificate signed by any officer of the Selling Stockholder expressly for use therein, 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, the Time of Sale Prospectus, as then amended or supplemented by the Company, if applicable, will not, contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading, and (iii) solely delivered to the extent that any statements in, Representative or omissions from, the Prospectus are made in reliance upon and in conformity with information furnished to the Company Underwriters’ counsel shall be deemed a representation and warranty by the such Selling Stockholder expressly for use therein, 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) 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 thereinUnderwriters as to the matters covered thereby.
Appears in 1 contract
Representations and Warranties of the Selling Stockholder. The Selling Stockholder represents and warrants to and agrees with each of the Underwriters that:
(a) This Agreement has been duly authorized, executed and delivered by or on behalf of the Selling Stockholder.
(b) The executionexecution and delivery by the Selling Stockholder of, delivery and the performance by the Selling Stockholder of its obligations under, this Agreement will not contravene (i) conflict with any provision of applicable law, or result in a breach (ii) the certificate of incorporation or violation of any by-laws of the terms or provisions of, or constitute a default under any indenture, mortgage, deed of trust, loan agreement or other agreement or instrument to which the Selling Stockholder (if such Selling Stockholder is a party corporation), or by which the Selling Stockholder is bound, (iiiii) result in any violation of the provisions of the charter agreement or by-laws or similar organizational documents of other instrument binding upon the Selling Stockholder or (iii) result in the violation of any law or statute or any judgment, order, rule order or regulation decree of any governmental body, agency or court or arbitrator or governmental or regulatory authorityhaving jurisdiction over the Selling Stockholder, except, except in the case of clauses (i) and (iii) above), for as would not, individually or in the aggregate, reasonably be expected to impair the Selling Stockholder’s ability to perform its obligations under this Agreement in any such conflict, breach, violation or default that would not materially and adversely affect the sale of the Shares and the consummation of any other of the transactions herein contemplated.
(c) No material respect; no consent, approval, authorizationauthorization or order of, order, registration or qualification of with, any governmental body, agency or with any court or arbitrator or governmental or regulatory authority is required for the execution, delivery and performance by the Selling Stockholder of its obligations under this Agreement, except such as may be required for by the registration securities or Blue Sky laws of the Shares under the Securities Act and such consents, approvals, authorizations, orders and registrations or qualifications as have been obtained or may be required by FINRA and under applicable state securities laws and foreign securities laws various states in connection with the purchase offer and distribution sale of the Shares by the UnderwritersShares.
(dc) The Selling Stockholder has, and on the Closing Date will have, valid title to, or a valid “security entitlement” within the meaning of Section 8-501 of the New York Uniform Commercial Code in respect of, the Shares to be sold by the Selling Stockholder free and clear of all security interests, claims, liens, equities or other encumbrances and the legal right and power, and all authorization and approval required by law, to enter into this Agreement and to sell, transfer and deliver the Shares to be sold by the Selling Stockholder or a security entitlement in respect of such Shares.
(ed) Upon payment for the Shares to be sold by such the Selling Stockholder pursuant to this Agreement, delivery of such Shares, as directed by the Underwriters, to Cede & Co. (“Cede”) or such other nominee as may be designated by the The Depository Trust Company (“DTC”), registration of such the Shares in the name of Cede or such other nominee and the crediting of such Shares on the books of DTC to securities accounts of the Underwriters (assuming that neither DTC nor any such Underwriter has notice of any adverse claim (within the meaning of Section 8-105 of the New York Uniform Commercial Code (the “UCC”)) to such Shares), (A) DTC shall be a “protected purchaser” of such Shares within the meaning of Section 8-303 of the UCC, (B) under Section 8-501 of the UCC, the Underwriters will acquire a valid security entitlement in respect of such Shares and (C) no action based on any “adverse claim”, ,” within the meaning of Section 8-102 of the UCC, to such Shares may be asserted against the Underwriters with respect to such security entitlement; for purposes of this representation, the Selling Stockholder may assume that when such payment, delivery and crediting occur, (x) such Shares will have been registered in the name of Cede or another nominee designated by DTC, in each case on the Company’s share registry in accordance with its certificate of incorporation, bylaws and applicable law, (y) DTC will be registered as a “clearing corporation” within the meaning of Section 8-102 of the UCC and (z) appropriate entries to the accounts of the several Underwriters on the records of DTC will have been made pursuant to the UCC.
(fe) The Selling Stockholder has no reason delivered to believe that the representations and warranties of Representatives an executed lock-up agreement in substantially the Company contained in Section 1 are not true and correct, is familiar with form attached hereto as Exhibit A (the Registration Statement, the Time of Sale Prospectus and the Prospectus and has no knowledge of any material fact, condition or information not disclosed in the Time of Sale Prospectus or the Prospectus that has had, or may have, a material adverse effect on the Company and its subsidiaries, taken as a whole. The Selling Stockholder does not possess any material non“Lock-public information concerning the Company or its subsidiaries which is not set forth in the Time of Sale Prospectusup Agreement”).
(i) Solely to the extent that any statements in, or omissions from, the Registration Statement are made in reliance upon and in conformity with information furnished to the Company by the Selling Stockholder expressly for use therein, the The Registration Statement, when it became effective, did not contain and, as amended or supplemented, if applicable, will not contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading, (ii) solely to the extent that any statements inRegistration Statement and the Prospectus comply and, as amended or omissions fromsupplemented, if applicable, will comply in all material respects with the Time Securities Act and the applicable rules and regulations of Sale Prospectus are made in reliance upon and in conformity with information furnished to the Company by the Selling Stockholder expressly for use thereinCommission 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 purchaserspurchasers and at the Closing Date (as defined in Section 5), the Time of Sale Prospectus, as then amended or supplemented by the Company, if applicable, will not, contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading, (iv) each investor presentation, when considered together with the Time of Sale Prospectus, does not contain any untrue statement of material fact or omit to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading and (iiiv) solely to the extent that any statements in, or omissions from, the Prospectus are made in reliance upon and in conformity with information furnished to the Company by the Selling Stockholder expressly for use therein, the Prospectus does not contain and, as amended or supplemented, if applicable, will not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading; provided, except that the representations and warranties set forth in this paragraph 2(g) do not apply only to statements or omissions in the Registration Statement Statement, the Time of Sale Prospectus or the Prospectus based that are made in reliance upon and in conformity with written information relating to any Underwriter furnished to the Company by the Selling Stockholder in writing by such Underwriter through you expressly for use therein; provided, further, that it is agreed that such information furnished by the Selling Stockholder to the Company consists only of (A) the legal name, address and the number of Shares owned by the Selling Stockholder before and after the offering, and (B) the other information with respect to such Selling Stockholder (excluding percentages) which appear in the table (and corresponding footnotes) under the caption “Principal and Selling Stockholders” in the Registration Statement, the Time of Sale Prospectus or the Prospectus (such information, the “Selling Stockholder Information”).
(g) (i) Neither the Selling Stockholder nor, to the knowledge of the Selling Stockholder, any director, officer, employee, agent, representative, or affiliate thereof, other than any director, officer, employee, agent, representative, or affiliate thereof of the Company or any portfolio company under common control with the Selling Stockholder, is a Person that is, or is owned or controlled, directly or indirectly, by one or more Persons that are:
(A) the subject of any Sanctions; or
(B) located, organized or resident in a country or territory that is the subject of Sanctions (including, without limitation, Crimea, Cuba, Iran, North Korea and Syria).
(ii) The Selling Stockholder will not, directly or indirectly, use the proceeds of the offering, or lend, contribute or otherwise make available such proceeds to any subsidiary, joint venture partner or other Person:
(A) to fund or facilitate any activities or business of or with any Person or in any country or territory that, at the time of such funding or facilitation, is the subject of Sanctions; or
(B) in any other manner that will result in a violation of Sanctions by any Person (including any Person participating in the offering, whether as underwriter, advisor, investor or otherwise).
(iii) Neither the Selling Stockholder nor, to the knowledge of the Selling Stockholder, any director, officer, employee, agent, representative, or affiliate thereof, other than any director, officer, employee, agent, representative, or affiliate thereof of the Company or any portfolio company under common control with the Selling Stockholder, has knowingly engaged in, is now knowingly engaged in, and will engage in, any dealings or transactions with any Person, or in any country or territory, that at the time of the dealing or transaction is or was the subject of Sanctions.
(a) The Selling Stockholder has not taken and will not take any action in furtherance of an offer, payment, promise to pay, or authorization or approval of the payment giving or receipt of money, property, gifts or anything else of value, directly or indirectly, to any Government Official in order to influence official action, or to any person in violation of any applicable anti-corruption laws; (b) the Selling Stockholder has conducted its businesses in compliance with applicable anti-corruption laws and the investment advisor advising the Selling Stockholder has instituted and maintained and will continue to maintain policies and procedures reasonably designed to promote and achieve compliance with such laws and with the representations and warranties contained herein; and (c) the Selling Stockholder will not use, directly or indirectly, the proceeds of the offering in furtherance of an offer, payment, promise to pay, or authorization of the payment or giving of money, or anything else of value, to any person in violation of any applicable anti-corruption laws.
(v) The operations of the Selling Stockholder are and have been conducted at all times in material compliance with all applicable Anti-Money Laundering Laws, and no action, suit or proceeding by or before any court or governmental agency, authority or body or any arbitrator involving the Selling Stockholder with respect to the Anti-Money Laundering Laws is pending or, to the best knowledge of the Selling Stockholder, threatened.
(h) The Selling Stockholder represents and warrants that it is not (i) an employee benefit plan subject to Title I of the Employee Retirement Income Security Act of 1974, as amended (“ERISA”), (ii) a plan or account subject to Section 4975 of the Internal Revenue Code of 1986, as amended or (iii) an entity deemed to hold “plan assets” of any such plan or account under Section 3(42) of ERISA, 29 C.F.R. 2510.3-101, or otherwise.
Appears in 1 contract
Representations and Warranties of the Selling Stockholder. The Selling Stockholder represents and warrants to and agrees with each of the Underwriters that:
(a) This Agreement has been duly authorized, executed and delivered by or on behalf of the Selling Stockholder.
(b) The executionexecution and delivery by the Selling Stockholder of, delivery and the performance by the Selling Stockholder of its obligations under, this Agreement, the Letter to the Transfer Agent (as defined below) and the power of attorney appointing certain individuals as the Selling Stockholder's attorneys in fact to execute and deliver this Agreement and the documents and certificates contemplated hereby (the "Power of Attorney") will not violate (i) conflict with or result in a breach or violation of any provision of the terms certificate of incorporation or provisions ofby-laws (or equivalent constituent documents) of the Selling Stockholder, or constitute a default under (ii) except in each case for violations that would not materially and adversely affect the consummation by the Selling Stockholder of the transactions contemplated by this Agreement, any indentureprovision of law applicable to the Selling Stockholder, mortgage, deed of trust, loan any agreement or other agreement instrument binding upon such Selling Stockholder or instrument any property of such Selling Stockholder or to which the Selling Stockholder is a party or by which the Selling Stockholder is bound, (ii) result in any violation of the provisions of the charter or by-laws or similar organizational documents of the Selling Stockholder or (iii) result in the violation of any law or statute or any judgment, order, rule order or regulation decree of any governmental body, agency or court or arbitrator or governmental or regulatory authority, except, in having jurisdiction over the case of clauses (i) Selling Stockholder; and (iii) above, for any such conflict, breach, violation or default that would not materially and adversely affect the sale of the Shares and the consummation of any other of the transactions herein contemplated.
(c) No no consent, approval, authorizationauthorization or order of, order, registration or qualification of with, any governmental body or with any court or arbitrator or governmental or regulatory authority agency is required for the execution, delivery or performance of this Agreement, the Letter to the Transfer Agent and performance the Power of Attorney by the Selling Stockholder of this AgreementStockholder, except such as may be required for by the registration securities or Blue Sky laws of the Shares under the Securities Act and such consents, approvals, authorizations, orders and registrations or qualifications as have been obtained or may be required by FINRA and under applicable state securities laws and foreign securities laws various states in connection with the purchase offer and distribution sale of the Shares by the UnderwritersShares.
(dc) The Selling Stockholder has, and on the Closing Date will have, valid title to, or a valid “security entitlement” within the meaning of Section 8-501 of the New York Uniform Commercial Code in respect of, the Shares to be sold by the Selling Stockholder 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, corporate power to enter into this Agreement Agreement, the Letter to the Transfer Agent and the Power of Attorney, to sell, transfer and deliver the Shares to be sold by the Selling Stockholder and perform its obligations under this Agreement, the Letter to the Transfer Agent or the Power of Attorney.
(d) The Selling Stockholder has delivered a security entitlement letter to UMB Bank, n.a., (the "transfer agent"), substantially in respect the form attached as Exhibit A hereto (the "Letter to the Transfer Agent"), and the Selling Stockholder has received the transfer agent's signed acknowledgment of such Sharesletter and has not received any notice that the transfer agent does not intend to comply with the instructions therein.
(e) Upon payment for The Selling Stockholder will be, as of the Closing Date, the record owner of the Shares to be sold by such the Selling Stockholder pursuant to this Agreement, delivery of such Shares, as directed by the Underwriters, to Cede & Co. (“Cede”) or such other nominee as may be designated by the Depository Trust Company (“DTC”), registration of such Shares in the name of Cede or such other nominee and the crediting of such Shares on the books of DTC to securities accounts of the Underwriters (assuming that neither DTC nor any such Underwriter has notice is not aware of any "adverse claim claims" (within the meaning of Section 8-105 of the New York Uniform Commercial Code as adopted by the State of New York (the “"UCC”)") to such Shares), (A) DTC shall be a “protected purchaser” of such Shares within the meaning of Section 8-303 of the UCC, (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 that may be asserted against the Underwriters Selling Stockholder with respect to such security entitlement; for purposes of this representation, the Selling Stockholder may assume that when such payment, delivery and crediting occur, (x) such Shares will have been registered in the name of Cede or another nominee designated by DTC, in each case on the Company’s share registry in accordance with its certificate of incorporation, bylaws and applicable law, (y) DTC will be registered as a “clearing corporation” within the meaning of Section 8-102 of the UCC and (z) appropriate entries to the accounts of the several Underwriters on the records of DTC will have been made pursuant to the UCCShares.
(f) The Selling Stockholder has no reason to believe that the representations and warranties of the Company contained in Section 1 are not true and correct, is familiar with the Registration Statement, the Time of Sale Prospectus and the Prospectus and has no knowledge of any material fact, condition or information not disclosed in the Time of Sale Prospectus or the Prospectus that has had, or may have, a material adverse effect on the Company and its subsidiaries, taken as a whole. The Selling Stockholder does not possess any material non-public information concerning the Company or its subsidiaries which is not set forth in the Time of Sale Prospectus.
(i) Solely to the extent that any statements in, or omissions from, the Registration Statement are made in reliance upon and in conformity with information furnished to the Company by the Selling Stockholder expressly for use therein, 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) solely to the extent that any statements in, or omissions from, the Time of Sale Prospectus are made in reliance upon misleading and in conformity with information furnished to the Company by the Selling Stockholder expressly for use therein, 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, the Time of Sale Prospectus, as then amended or supplemented by the Company, if applicable, will not, contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading, and (iii) solely to the extent that any statements in, or omissions from, the Prospectus are made in reliance upon and in conformity with information furnished to the Company by the Selling Stockholder expressly for use therein, the Prospectus does not contain and, at the Closing Date, the Prospectus 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) do not apply only to statements or omissions in the Registration Statement or the Prospectus based upon information relating to any Underwriter the Selling Stockholder furnished to the Company in writing by such Underwriter through you the Selling Stockholder expressly for use therein.
(g) The sale of the Selling Stockholder Shares pursuant to this Agreement is not prompted by any material, non-public information in the Selling Stockholder's possession concerning the Company that would cause such sale to constitute a violation by the Selling Stockholder of Rule 10b-5 promulgated under the Exchange Act.
(h) The 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 any stabilization or manipulation of the price of any security of the Company to facilitate the sale of the Shares pursuant to the distribution contemplated by this Agreement and, other than as permitted by the Securities Act, the 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.
Appears in 1 contract
Samples: Underwriting Agreement (Sprint Corp)
Representations and Warranties of the Selling Stockholder. The Selling Stockholder represents and warrants to and agrees with each of the Underwriters that:
(a) This Agreement has been duly authorized, executed and delivered by or on behalf of the Selling Stockholder.
(b) The executionexecution and delivery by the Selling Stockholder of, delivery and the performance by the Selling Stockholder of its obligations under, this Agreement will not (i) conflict with contravene any provision of applicable law, or result in a breach the certificate of incorporation or violation of any bylaws of the terms or provisions ofSelling Stockholder, or constitute a default under any indenture, mortgage, deed of trust, loan agreement or other agreement or instrument to which the Selling Stockholder is a party or by which the Selling Stockholder is bound, (ii) result in any violation of the provisions of the charter or by-laws or similar organizational documents of binding upon the Selling Stockholder or (iii) result in the violation of any law or statute or any judgment, order, rule order or regulation decree of any governmental body, agency or court or arbitrator or governmental or regulatory authorityhaving jurisdiction over the Selling Stockholder, except, in the case of clauses (i) and (iii) above, for any such conflict, breach, violation or default that would not materially and adversely affect the sale of the Shares and the consummation of any other of the transactions herein contemplated.
(c) No no consent, approval, authorizationauthorization or order of, order, registration or qualification of with, any governmental body or with any court or arbitrator or governmental or regulatory authority agency is required for the execution, delivery and performance by the Selling Stockholder of its obligations under this Agreement, except such as may be required for by the registration securities or Blue Sky laws of the Shares under the Securities Act and such consents, approvals, authorizations, orders and registrations or qualifications as have been obtained or may be required by FINRA and under applicable state securities laws and foreign securities laws various states in connection with the purchase offer and distribution sale of the Shares by the UnderwritersShares.
(dc) The Selling Stockholder has, and on the each Applicable Closing Date (as defined below) will have, valid title to, or a valid “security entitlement” within the meaning of Section 8-501 of the New York Uniform Commercial Code (the “UCC”) in respect of, the Shares to be sold by the Selling Stockholder free and clear of all security interests, claims, liens, equities or other encumbrances and the legal right and power, and all authorization and approval required by law, to enter into this Agreement and to sell, transfer and deliver the Shares to be sold by the Selling Stockholder or a security entitlement in respect of such Shares.
(ed) Upon payment by the Underwriters for the Shares to be sold by such the Selling Stockholder pursuant to this Agreement, delivery of such Shares, as directed by the Underwriters, to Cede & Co. (“Cede”) or such other nominee as may be designated by the Depository Trust Company (“DTC”)) to hold the Shares on its behalf, registration of such Shares in the name of Cede or such other nominee and the crediting indication by DTC, as securities intermediary for each Underwriter, in its records, by book entry, that the Shares being purchased by such Underwriter have been credited to a securities account of such Shares on the books of Underwriter at DTC to securities accounts of the Underwriters (assuming that neither DTC nor any such Underwriter 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 SharesShares or the security entitlement with respect thereto), (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) to the extent governed by Article 8 of the UCC, no action based on any “adverse claim”, ,” within the meaning of Section 8-102 of the UCC, to such Shares may be asserted against the Underwriters with respect to such security entitlement; for purposes of this representation, the Selling Stockholder may assume that when such payment, delivery and crediting indication occur, (x) such Shares will have been registered in the name of Cede or another nominee designated by DTC, in each case on the Company’s share registry in accordance with its certificate of incorporation, bylaws and applicable law, (y) DTC will be registered as a “clearing corporation” within the meaning of Section 8-102 of the UCC and (z) appropriate entries to the accounts of the several Underwriters on the records of DTC will have been made pursuant to the UCC.
(fe) The Selling Stockholder has no reason to believe that the representations and warranties of the Company contained in Section 1 are is not true and correct, is familiar with the Registration Statement, the Time of Sale Prospectus and the Prospectus and has no knowledge of prompted by any material factinformation concerning the Company, condition RMCO or information any of their subsidiaries that is 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 to sell its subsidiaries, taken as a whole. The Selling Stockholder does not possess any material non-public information concerning the Company or its subsidiaries which is not set forth in the Time of Sale ProspectusShares pursuant to this Agreement.
(i) Solely to the extent that any statements in, or omissions from, the Registration Statement are made in reliance upon and in conformity with information furnished to the Company by the Selling Stockholder expressly for use therein, the The Registration Statement, when it became effective, did not contain and, as amended or supplemented, if applicable, will not contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading, (ii) solely to the extent that any statements inRegistration Statement and the Prospectus comply and, as amended or omissions fromsupplemented, if applicable, will comply in all material respects with the Time Securities Act and the applicable rules and regulations of Sale Prospectus are made in reliance upon and in conformity with information furnished to the Company by the Selling Stockholder expressly for use thereinCommission 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, the Time of Sale Prospectus, as then amended or supplemented by the Company, if applicable, will not, contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading, (iv) each broadly available road show, if any, when considered together with the Time of Sale Prospectus, does not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading and (iiiv) solely to the extent that any statements inProspectus, or omissions fromas of its date, the Prospectus are made in reliance upon and in conformity with information furnished to the Company by the Selling Stockholder expressly for use therein, the Prospectus does not contain and, at the Closing Date (as defined in Section 5), 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 ; provided that the representations and warranties set forth in this paragraph 2(g2(f) do not apply are limited to statements or omissions made in the Registration Statement or the Prospectus based reliance upon and in conformity with information relating to any Underwriter the Selling Stockholder furnished to the Company in writing by such Underwriter through you the Selling Stockholder expressly for use thereinin the Registration Statement, the Time of Sale Prospectus, the Prospectus or any amendments or supplement thereto, which information is understood to be limited to the information regarding the Selling Stockholder in the Registration Statement, the Time of Sale Prospectus and the Prospectus under the caption “Selling Stockholder” as well as the biographical information relating to shareholders of the Selling Stockholder who are officers and directors of the Company included under the caption “Corporate Governance” incorporated by reference into the Registration Statement, the Time of Sale Prospectus and the Prospectus from the Company’s Definitive Proxy Statement on Schedule 14A (filed on March 27, 2015) (collectively, the “Selling Stockholder Information”).
(g) The Selling Stockholder 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
Representations and Warranties of the Selling Stockholder. The Selling Stockholder Stockholder, represents and warrants to to, and agrees with each of the Underwriters Company that:
(a) The Seller Stockholder has all requisite corporate power and authority to enter into this Agreement and to consummate the transactions contemplated hereby.
(b) This Agreement has been duly authorized, executed and delivered by or on behalf the Selling Stockholder, has been effectively authorized by all necessary action, and constitutes the legal, valid and binding obligation of the Selling Stockholder, enforceable against the Selling Stockholder in accordance with its terms, except as such enforceability may be limited by laws relating to bankruptcy, insolvency, reorganization or other laws relating to creditors’ rights generally or by general principles of equity.
(bc) The executionSelling Stockholder is the record and beneficial owner of the Securities. The Selling Stockholder has good and valid title to the Securities, free and clear of all adverse claims within the meaning of the New York Uniform Commercial Code.
(d) The execution and delivery of this Agreement by the Selling Stockholder and performance the consummation by the Selling Stockholder of this Agreement the transactions contemplated hereby do not and will not (i) conflict with or result in a breach or violation of any of the terms or provisions of, or constitute a default under under, or conflict with (i) the certificate of incorporation or bylaws of the Selling Stockholder, (ii) any indenture, mortgage, deed of trust, loan material agreement or other agreement or instrument to which the Selling Stockholder is a party or by which it is bound, (iii) any judgment, decree, order or award of any court, governmental body or arbitrator by which the Selling Stockholder is boundbound or (iv) any material Federal or State law, (ii) result in any violation of the provisions of the charter rule or by-laws or similar organizational documents of regulation applicable to the Selling Stockholder or (iii) result in the violation of any law or statute or any judgment, order, rule or regulation of any court or arbitrator or governmental or regulatory authority, except, in the case of clauses (i) and (iii) above, for any such conflict, breach, violation or default that would not materially and adversely affect the sale of the Shares and the consummation of any other of the transactions herein contemplatedits property.
(ce) No consent, approval, authorization, filing, order, registration or qualification of or with any court or arbitrator governmental agency or governmental or regulatory authority body is required for the execution, delivery and performance sale of the Securities by the Selling Stockholder of this Agreement, except such as may be required for the registration of the Shares under the Securities Act and such consents, approvals, authorizations, orders and registrations or qualifications as have been obtained or may be required by FINRA and under applicable state securities laws and foreign securities laws in connection with the purchase and distribution of the Shares by the Underwriters.
(d) The Selling Stockholder has, and on the Closing Date will have, valid title to, or a valid “security entitlement” within the meaning of Section 8-501 of the New York Uniform Commercial Code in respect of, the Shares to be sold by the Selling Stockholder free and clear of all security interests, claims, liens, equities or other encumbrances and the legal right and power, and all authorization and approval required by law, to enter into this Agreement and to sell, transfer and deliver the Shares to be sold by the Selling Stockholder or a security entitlement in respect of such Shares.
(e) Upon payment for the Shares to be sold by such Selling Stockholder pursuant to this Agreement, delivery of such Shares, as directed by the Underwriters, to Cede & Co. (“Cede”) or such other nominee as may be designated by the Depository Trust Company (“DTC”), registration of such Shares in the name of Cede or such other nominee and the crediting of such Shares on the books of DTC to securities accounts of the Underwriters (assuming that neither DTC nor any such Underwriter has notice of any adverse claim (within the meaning of Section 8-105 of the New York Uniform Commercial Code (the “UCC”)) to such Shares), (A) DTC shall be a “protected purchaser” of such Shares within the meaning of Section 8-303 of the UCC, (B) under Section 8-501 of the UCC, the Underwriters will acquire a valid security entitlement in respect of such Shares and (C) no action based on any “adverse claim”, within the meaning of Section 8-102 of the UCC, to such Shares may be asserted against the Underwriters with respect to such security entitlement; for purposes of this representation, the Selling Stockholder may assume that when such payment, delivery and crediting occur, (x) such Shares will have been registered in the name of Cede or another nominee designated by DTC, in each case on the Company’s share registry in accordance with its certificate of incorporation, bylaws and applicable law, (y) DTC will be registered as a “clearing corporation” within the meaning of Section 8-102 of the UCC and (z) appropriate entries to the accounts of the several Underwriters on the records of DTC will have been made pursuant to the UCCStockholder.
(f) The Selling Stockholder No broker or finder has no reason to believe that the representations and warranties of the Company contained in Section 1 are not true and correct, is familiar with the Registration Statement, the Time of Sale Prospectus and the Prospectus and has no knowledge of any material fact, condition or information not disclosed in the Time of Sale Prospectus or the Prospectus that has had, or may have, a material adverse effect on the Company and its subsidiaries, taken as a whole. The Selling Stockholder does not possess any material non-public information concerning the Company or its subsidiaries which is not set forth in the Time of Sale Prospectus.
(i) Solely to the extent that any statements in, or omissions from, the Registration Statement are made in reliance upon and in conformity with information furnished to the Company by acted for the Selling Stockholder expressly for use therein, 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) solely to the extent that any statements in, or omissions from, the Time of Sale Prospectus are made in reliance upon and in conformity with information furnished to the Company by the Selling Stockholder expressly for use therein, the Time of Sale Prospectus does not, and at the time of each sale of the Shares in connection with this Agreement or the offering when the Prospectus is not yet available to prospective purchasers, the Time of Sale Prospectus, as then amended or supplemented by the Company, if applicable, will not, contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleadingtransactions contemplated hereby, and (iii) solely to the extent that any statements in, no broker or omissions from, the Prospectus are made in reliance upon and in conformity with information furnished to the Company by the Selling Stockholder expressly for use therein, 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) do not apply to statements or omissions in the Registration Statement or the Prospectus based upon information relating finder is entitled to any Underwriter furnished to the Company brokerage or finder’s fee or other commissions in writing by respect of such Underwriter through you expressly for use thereintransactions.
Appears in 1 contract
Samples: Repurchase Agreement (DreamWorks Animation SKG, Inc.)
Representations and Warranties of the Selling Stockholder. (a) The Selling Stockholder represents and warrants to to, and agrees with with, each Underwriter as of the Underwriters thatRepresentation Date, as follows:
(ai) The Selling Stockholder is the lawful owner of the Shares to be sold by the Selling Stockholder pursuant to this Agreement and has, and on each Closing Date, as applicable, will have, good, valid and clear title to such Shares, free of any and all restrictions on transfer, liens, encumbrances, security interests, equities, claims and other defects whatsoever.
(ii) The Selling Stockholder has, and on each Closing Date, as applicable, will have, full legal right, power and authority, and all authorizations and approvals required by law, to enter into this Agreement and to sell, assign, transfer and deliver the Shares to be sold by the Selling Stockholder in the manner provided herein.
(iii) This Agreement has been duly authorized, executed and delivered by or on behalf of the Selling Stockholder and is a legal, valid and binding agreement of the Selling Stockholder.
(biv) Upon delivery of and payment for the Shares to be sold by the Selling Stockholder pursuant to this Agreement, good, valid and clear title to such Shares will pass to the Underwriters, free and clear of all restrictions on transfer, liens, encumbrances, security interests, equities, claims and defects whatsoever.
(v) The execution, delivery and performance of this Agreement by the Selling Stockholder, the compliance by the Selling Stockholder with all the provisions hereof and the consummation by the Selling Stockholder of this Agreement the transactions contemplated hereby will not (iA) require the Selling Stockholder to obtain any consent, approval, authorization or other order of, or qualification with, any court or governmental body or agency (except as such may be required under the securities or blue sky laws of the various states or as have been or will be obtained), (B) conflict with or result in constitute a breach or violation of any of the terms or provisions of, or constitute a default under under, any indenture, loan agreement, mortgage, deed of trust, loan agreement lease, license or other agreement or instrument to which the Selling Stockholder is a party or by which the Selling Stockholder is bound, (ii) result in or any violation of the provisions of the charter or by-laws or similar organizational documents property of the Selling Stockholder is bound or (iiiC) result in the violation of to his knowledge, violate or conflict with any law applicable federal, state, local or statute foreign law, statute, rule, regulation or any judgment, order, rule order or regulation decree of any court or arbitrator any governmental body or governmental or regulatory authority, except, in the case of clauses (i) and (iii) above, for any such conflict, breach, violation or default that would not materially and adversely affect the sale of the Shares and the consummation of any other of the transactions herein contemplated.
(c) No consent, approval, authorization, order, registration or qualification of or with any court or arbitrator or governmental or regulatory authority is required for the execution, delivery and performance by the Selling Stockholder of this Agreement, except such as may be required for the registration of the Shares under the Securities Act and such consents, approvals, authorizations, orders and registrations or qualifications as have been obtained or may be required by FINRA and under applicable state securities laws and foreign securities laws in connection with the purchase and distribution of the Shares by the Underwriters.
(d) The Selling Stockholder has, and on the Closing Date will have, valid title to, or a valid “security entitlement” within the meaning of Section 8-501 of the New York Uniform Commercial Code in respect of, the Shares to be sold by the Selling Stockholder free and clear of all security interests, claims, liens, equities or other encumbrances and the legal right and power, and all authorization and approval required by law, to enter into this Agreement and to sell, transfer and deliver the Shares to be sold by agency having jurisdiction over the Selling Stockholder or a security entitlement in respect any property of such Sharesthe Selling Stockholder.
(evi) Upon payment for the Shares to be sold by such Selling Stockholder pursuant to this Agreement, delivery of such Shares, as directed by the Underwriters, to Cede & Co. (“Cede”) or such other nominee as may be designated by the Depository Trust Company (“DTC”), registration of such Shares The information in the name of Cede or such other nominee Registration Statement and Prospectus under the crediting of such Shares on the books of DTC caption "Principal and Selling Stockholder" which specifically relates to securities accounts of the Underwriters (assuming that neither DTC nor any such Underwriter has notice of any adverse claim (within the meaning of Section 8-105 of the New York Uniform Commercial Code (the “UCC”)) to such Shares), (A) DTC shall be a “protected purchaser” of such Shares within the meaning of Section 8-303 of the UCC, (B) under Section 8-501 of the UCC, the Underwriters will acquire a valid security entitlement in respect of such Shares and (C) no action based on any “adverse claim”, within the meaning of Section 8-102 of the UCC, to such Shares may be asserted against the Underwriters with respect to such security entitlement; for purposes of this representation, the Selling Stockholder may assume that when such payment, delivery and crediting occur, (x) such Shares will have been registered in the name of Cede or another nominee designated by DTC, in each case on the Company’s share registry in accordance with its certificate of incorporation, bylaws and applicable law, (y) DTC will be registered as a “clearing corporation” within the meaning of Section 8-102 of the UCC and (z) appropriate entries to the accounts of the several Underwriters on the records of DTC will have been made pursuant to the UCC.
(f) The Selling Stockholder has no reason to believe that the representations and warranties of the Company contained in Section 1 are not true and correct, is familiar with the Registration Statement, the Time of Sale Prospectus and the Prospectus and has no knowledge of any material fact, condition or information not disclosed in the Time of Sale Prospectus or the Prospectus that has had, or may have, a material adverse effect on the Company and its subsidiaries, taken as a whole. The Selling Stockholder does not possess any material non-public information concerning the Company or its subsidiaries which is not set forth in the Time of Sale Prospectus.
(i) Solely to the extent that any statements in, or omissions from, the Registration Statement are made in reliance upon and in conformity with information furnished to the Company by the Selling Stockholder expressly for use therein, 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) solely to the extent that any statements in, or omissions from, the Time of Sale Prospectus are made in reliance upon and in conformity with information furnished to the Company by the Selling Stockholder expressly for use therein, the Time of Sale Prospectus does not, and at the time of each sale of the Shares in connection with the offering when the Prospectus is will not yet available to prospective purchasers, the Time of Sale Prospectus, as then amended or supplemented by the Company, if applicable, will noton any 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 to make the statements therein, in the light of the circumstances under which they were made, not misleadingmisleading and the Selling Stockholder has agreed to immediately notify the Company, if, at any time during the period when a Prospectus is required by law to be delivered in connection with sales of Class A Common Stock by an Underwriter or a dealer, there is any material change in such information.
(vii) The Selling Stockholder has not taken, and (iii) solely 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 extent that any statements indistribution contemplated by this Agreement, or omissions fromand, other than as permitted by the Act, the Prospectus are made Selling Stockholder has not distributed and will not distribute any prospectus or other offering material in reliance upon connection with the Offering.
(viii) Each certificate signed by or on behalf of the Selling Stockholder and in conformity with information furnished delivered to the Company Underwriters or counsel of the Underwriters shall be deemed to be a representation and warranty by the Selling Stockholder expressly for use therein, 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) 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 thereinUnderwriters as to the matters covered thereby.
Appears in 1 contract
Samples: Underwriting Agreement (Mantech International Corp)
Representations and Warranties of the Selling Stockholder. The Selling Stockholder represents and warrants to and agrees with [each of of] the Underwriters Underwriter[s] that:
(a) This Agreement has been duly authorized, executed and delivered by or on behalf of the Selling Stockholder. The place of execution of this Agreement by or on behalf of the Selling Stockholder was [New York, New York].
(b) The executionSelling Stockholder has been duly incorporated and is validly existing as a société anonyme under French law, with full power and authority to execute and perform its obligations under this Agreement.
(c) The execution and delivery by the Selling Stockholder of, and the performance by the Selling Stockholder of its obligations under, this Agreement and the consummation by the Selling Stockholder of any other of the transactions contemplated hereby, or the fulfillment by the Selling Stockholder of such terms will not (isubject to compliance by the Underwriter[s] with the provisions of Section 3 of this Agreement) conflict with or result in a breach or violation of any of the terms or provisions of, or constitute a default under under, any indentureinstrument, mortgage, deed of trust, loan agreement or other agreement or instrument order to which the Selling Stockholder is a party or by which the Selling Stockholder is boundbound or infringe any law, (ii) result in any violation of regulation, order, rule, decree or statute applicable to the Selling Stockholder and are not contrary to the provisions of the charter or by-laws or similar organizational constitutional documents of the Selling Stockholder or (iii) result in the violation of any law or statute or any judgmentStockholder. All consents, orderapprovals, rule or regulation of any court or arbitrator or governmental or regulatory authorityauthorizations, exceptorders, in the case of clauses (i) filings and (iii) above, for any such conflict, breach, violation or default that would not materially and adversely affect the sale of the Shares and the consummation of any other of the transactions herein contemplated.
(c) No consent, approval, authorization, order, registration or qualification registrations of or with any court or arbitrator governmental authority have been given, fulfilled or governmental or regulatory authority done and no other action is required to be taken, fulfilled or done by the Selling Stockholder for or in connection with the execution, delivery and performance by the Selling Stockholder of this Agreement and consummation of the transactions contemplated by this Agreement, except such as may be required for the registration of the Shares under the Securities Act and Act, such consents, approvals, authorizations, orders and registrations or qualifications as have been obtained or may be required by FINRA and under applicable state such as may be required by the securities or Blue Sky laws of the various states and foreign securities laws in connection with the purchase and distribution of the Shares by the UnderwritersUnderwriter[s].
(d) The Selling Stockholder has, and on the Closing Date will have, valid title to, or a valid “security entitlement” within the meaning of Section 8-501 of the New York Uniform Commercial Code in respect of, the Shares to be sold by the Selling Stockholder free and clear of all security interests, claims, liens, equities or other encumbrances and the legal right and power, and all authorization and approval required by law, to enter into this Agreement and to sell, transfer and deliver the Shares to be sold by the Selling Stockholder or a security entitlement in respect of such Shares.
(e) Upon payment for the Shares to be sold by such the Selling Stockholder pursuant to this Agreement, delivery of such Shares, as directed by the UnderwritersUnderwriter[s], to Cede & Co. (“Cede”) or such other nominee as may be designated by the Depository Trust Company (“DTC”), registration of such Shares in the name of Cede or such other nominee and the crediting of such Shares on the books of DTC to securities accounts of the Underwriters Underwriter[s] (assuming that neither DTC nor [the/any such such] Underwriter has notice of any adverse claim (within the meaning of Section 8-105 of the New York Uniform Commercial Code (the “UCC”)) to such Shares), (A) DTC shall be a “protected purchaser” of such Shares within the meaning of Section 8-303 of the UCC, (B) under Section 8-501 of the UCC, the Underwriters Underwriter[s] will acquire a valid security entitlement in respect of such Shares and (C) no action based on any “adverse claim”, within the meaning of Section 8-102 of the UCC, to such Shares may be asserted against the Underwriters Underwriter[s] with respect to such security entitlement; for purposes of this representation, the Selling Stockholder may assume that when such payment, delivery and crediting occur, (x) such Shares will have been registered in the name of Cede or another nominee designated by DTC, in each case on the Company’s share registry in accordance with its certificate of incorporation, bylaws and applicable law, (y) DTC will be registered as a “clearing corporation” within the meaning of Section 8-102 of the UCC and (z) appropriate entries to the accounts account[s] of the several Underwriters [several] Underwriter[s] on the records of DTC will have been made pursuant to the Section 8-501 of the UCC.
(f) The Selling Stockholder has no reason to believe that the representations and warranties of the Company contained in Section 1 are is not true and correct, is familiar with the Registration Statement, the Time of Sale Prospectus and the Prospectus and has no knowledge of any material fact, condition or information not disclosed in the Time of Sale Prospectus or the Prospectus that has had, or may have, a material adverse effect on the Company and its subsidiaries, taken as a whole. The Selling Stockholder does not possess prompted by any material non-public information concerning the Company or its subsidiaries which is not set forth in the Time of Sale ProspectusProspectus to sell its Shares pursuant to this Agreement.
(g) (i) Solely to the extent that any statements in, or omissions from, the Registration Statement are made in reliance upon and in conformity with information furnished to the Company by the Selling Stockholder expressly for use therein, the The Registration Statement, when it became effective, did not contain and, as amended or supplemented, if applicable, will not contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading, (ii) solely to the extent that any statements in, or omissions from, the Time of Sale Prospectus are made in reliance upon and in conformity with information furnished to the Company by the Selling Stockholder expressly for use therein, 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 purchaserspurchasers and at the Closing Date (as defined in Section 5), the Time of Sale Prospectus, as then amended or supplemented by the Company, if applicable, will not, contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading, and (iii) solely 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 extent that any statements in, or omissions from, the Prospectus are made in reliance upon and in conformity with information furnished to the Company by the Selling Stockholder expressly for use therein, in the light of the circumstances under which they were made, not misleading and (iv) the Prospectus does not contain and, as amended or supplemented, if applicable, will not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading, ; except that the representations and warranties set forth in this paragraph Section 2(g) apply solely to the extent such statements or omissions are made in reliance upon and in conformity with the Selling Stockholder Information and do not apply to statements or omissions in the Registration Statement or the Prospectus based upon information relating to any [the/any] Underwriter furnished to the Company in writing by such [the/such] Underwriter [through you you] expressly for use therein.
(i) The Selling Stockholder will not knowingly cause or permit the proceeds of the sale of the Shares to be used directly to make a loan or other advance to, invest in or continue to or otherwise support the activities or business of any person, entity, country or governmental authority that is the subject of any applicable economic sanctions or trade embargoes imposed, administered or enforced from time to time by the U.S. Department of Treasury’s Office of Foreign Assets Control (“OFAC”) or the European Union (“EU”) (collectively, “OFAC/EU Sanctions”) in any manner that would violate such OFAC/EU Sanctions; and
(ii) The Selling Stockholder is not listed on any OFAC/EU Sanctions-related list of specifically designated nationals or designated persons or entities (or equivalent) maintained by OFAC or the EU.
(i) The 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, in each case other than the Time of Sale Prospectus.
Appears in 1 contract
Samples: Underwriting Agreement (AXA Equitable Holdings, Inc.)
Representations and Warranties of the Selling Stockholder. The Selling Stockholder represents and warrants to you, and agrees with each of the Underwriters you, that:
(a) The Selling Stockholder is the lawful owner of the Shares to be sold by the Selling Stockholder pursuant to this Agreement and has, and on the Closing Date will have, good and marketable title to such Shares, free of all restrictions on transfer (other than any restrictions arising pursuant to applicable securities laws), liens, encumbrances, security interests, equities and claims whatsoever.
(b) This Agreement has been duly authorized, executed and delivered by or on behalf of the Selling Stockholder.
(bc) Upon delivery of and payment for the Shares to be sold by the Selling Stockholder pursuant to this Agreement, and assuming the Underwriter has no notice of adverse claim, good and marketable title to such Shares will pass to the Underwriter, free of all restrictions on transfer, liens, encumbrances, security interests, equities and claims whatsoever.
(d) The execution, delivery and performance of this Agreement by or on behalf of the Selling Stockholder, the compliance by the Selling Stockholder with all the provisions hereof and thereof and the consummation of this Agreement 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 result in constitute a breach or violation of any of the terms or provisions of, or a default under, the organizational documents of the Selling Stockholder, (iii) conflict with or constitute a breach of any of the terms or provisions of, or default under under, any indenture, loan agreement, mortgage, deed of trust, loan agreement lease or other agreement or instrument to which the Selling Stockholder is a party or by which the Selling Stockholder is bound, (ii) result in or any violation of the provisions of the charter or by-laws or similar organizational documents property of the Selling Stockholder is bound or (iiiiv) result in the violation of violate or conflict with any applicable law or statute or any rule, regulation, judgment, order, rule order or regulation decree of any court or arbitrator any governmental body or governmental or regulatory authority, except, in the case of clauses (i) and (iii) above, for any such conflict, breach, violation or default that would not materially and adversely affect the sale of the Shares and the consummation of any other of the transactions herein contemplated.
(c) No consent, approval, authorization, order, registration or qualification of or with any court or arbitrator or governmental or regulatory authority is required for the execution, delivery and performance by agency having jurisdiction over the Selling Stockholder of this Agreement, except such as may be required for the registration or any property of the Shares under the Securities Act and Selling Stockholder; except for such consents, approvals, authorizations, orders and registrations or qualifications as have been obtained which if not made or may be required by FINRA and under applicable state securities laws and foreign securities laws in connection with the purchase and distribution of the Shares by the Underwriters.
(d) The Selling Stockholder has, and on the Closing Date will have, valid title toobtained, or a valid “security entitlement” within conflicts, violations or defaults which if existing, would not prevent or otherwise adversely affect the meaning of Section 8-501 of the New York Uniform Commercial Code in respect of, the Shares to be sold performance by the Selling Stockholder free and clear of all security interests, claims, liens, equities or other encumbrances and the legal right and power, and all authorization and approval required by law, to enter into this Agreement and to sell, transfer and deliver the Shares to be sold by the Selling Stockholder or a security entitlement in respect of such Sharesits obligations hereunder.
(e) Upon payment for the Shares to be sold by such Selling Stockholder pursuant to this Agreement, delivery of such Shares, as directed by the Underwriters, to Cede & Co. (“Cede”) or such other nominee as may be designated by the Depository Trust Company (“DTC”), registration of such Shares The information in the name of Cede or such other nominee and Prospectus under the crediting of such Shares on the books of DTC captions "The Selling Stockholder" which specifically relates to securities accounts of the Underwriters (assuming that neither DTC nor any such Underwriter has notice of any adverse claim (within the meaning of Section 8-105 of the New York Uniform Commercial Code (the “UCC”)) to such Shares), (A) DTC shall be a “protected purchaser” of such Shares within the meaning of Section 8-303 of the UCC, (B) under Section 8-501 of the UCC, the Underwriters will acquire a valid security entitlement in respect of such Shares and (C) no action based on any “adverse claim”, within the meaning of Section 8-102 of the UCC, to such Shares may be asserted against the Underwriters with respect to such security entitlement; for purposes of this representation, the Selling Stockholder may assume that when such payment, delivery and crediting occur, (x) such Shares will have been registered in the name of Cede or another nominee designated by DTC, in each case on the Company’s share registry in accordance with its certificate of incorporation, bylaws and applicable law, (y) DTC will be registered as a “clearing corporation” within the meaning of Section 8-102 of the UCC and (z) appropriate entries to the accounts of the several Underwriters on the records of DTC will have been made pursuant to the UCC.
(f) The Selling Stockholder has no reason to believe that the representations and warranties of the Company contained in Section 1 are not true and correct, is familiar with the Registration Statement, the Time of Sale Prospectus and the Prospectus and has no knowledge of any material fact, condition or information not disclosed in the Time of Sale Prospectus or the Prospectus that has had, or may have, a material adverse effect on the Company and its subsidiaries, taken as a whole. The Selling Stockholder does not possess any material non-public information concerning the Company or its subsidiaries which is not set forth in the Time of Sale Prospectus.
(i) Solely to the extent that any statements in, or omissions from, the Registration Statement are made in reliance upon and in conformity with information furnished to the Company by the Selling Stockholder expressly for use therein, 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) solely to the extent that any statements in, or omissions from, the Time of Sale Prospectus are made in reliance upon and in conformity with information furnished to the Company by the Selling Stockholder expressly for use therein, the Time of Sale Prospectus does not, and at will not on the time of each sale of the Shares in connection with the offering when the Prospectus is not yet available to prospective purchasers, the Time of Sale Prospectus, as then amended or supplemented by the Company, if applicable, will notClosing Date, contain any untrue statement of a material fact or omit to state a any material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading.
(f) At any time during the period described in Section 5(d), if there is any change in the information referred to in Section 7(h), the Selling Stockholder will immediately notify you of such change.
(g) Each certificate signed by or on behalf of the Selling Stockholder and (iii) solely delivered on the Closing Date to the extent that any statements in, Underwriter or omissions from, counsel for the Prospectus are made in reliance upon Underwriter shall be deemed to be a representation and in conformity with information furnished to the Company warranty by the Selling Stockholder expressly for use thereinto the Underwriter as to the matters covered thereby.
(h) The Selling Stockholder has not taken and will not take, directly or indirectly, any action designated to cause or result in or which constitutes or which might reasonably be expected to constitute, the Prospectus does not contain and, as amended stabilization 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 manipulation of the circumstances under which they were madeprice of the shares of Common Stock to facilitate the sale or resale of the Shares.
(i) To the best knowledge of the Selling Stockholder, not misleadingafter due inquiry, except that the all 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 of the Company in writing by such Underwriter through you expressly for use thereinmade herein are true and correct.
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