Representations and Warranties of the Selling Stockholders. Each Selling Stockholder, severally and not jointly, represents and warrants that: (a) Neither such Selling Stockholder nor any person acting on behalf of such Selling Stockholder (other than, if applicable, the Company and the Underwriter) has used or referred to any “free writing prospectus” (as defined in Rule 405), relating to the Shares. (b) Such Selling Stockholder has, and immediately prior to the Closing Date on which such Selling Stockholder is selling the Shares, such 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 (the “UCC”) in respect of, the Shares to be sold by such Selling Stockholder hereunder on such Closing Date free and clear of all liens, encumbrances, equities or claims. (c) Upon payment for the Shares to be sold by such Selling Stockholder, delivery of such Shares, as directed by the Underwriter, to Cede & Co. (“Cede”) or such other nominee as may be designated by The Depository Trust Company (“DTC”), registration of such Shares in the name of Cede or such other nominee and the crediting of such Shares on the books of DTC to securities accounts of the Underwriter (assuming that neither DTC nor the Underwriter has notice of any adverse claim (within the meaning of Section 8-105 of the UCC) to such Shares), (i) DTC shall be a “protected purchaser” of such Shares within the meaning of Section 8-303 of the UCC, (ii) under Section 8-501 of the UCC, the Underwriter will acquire a valid security entitlement in respect of such Shares and (iii) no action based on any “adverse claim,” within the meaning of Section 8-102 of the UCC, to such Shares may be asserted against the Underwriter with respect to such security entitlement. For purposes of this representation, such Selling Stockholder may assume that when such payment, delivery and crediting occur, (A) such Shares will have been registered in the name of Cede or another nominee designated by DTC, in each case on the Company’s share registry in accordance with its certificate of incorporation, bylaws and applicable law, (B) DTC will be registered as a “clearing corporation” within the meaning of Section 8-102 of the UCC and (C) appropriate entries to the accounts of the Underwriter on the records of DTC will have been made pursuant to the UCC. (d) Such Selling Stockholder has full right, power and authority, corporate or otherwise, to enter into this Agreement. (e) This Agreement has been duly and validly authorized, executed and delivered by or on behalf of such Selling Stockholder. (f) The execution, delivery and performance of this Agreement by such Selling Stockholder and the consummation by such Selling Stockholder of the transactions contemplated hereby and thereby 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, any indenture, mortgage, deed of trust, loan agreement, license or other agreement or instrument to which such Selling Stockholder is a party or by which such Selling Stockholder is bound or to which any of the property or assets of such Selling Stockholder is subject, (ii) result in any violation of the provisions of the charter or by-laws or deed of trust (or similar organizational documents) of such Selling Stockholder, or (iii) result in any violation of any statute or any order, rule or regulation of any court or governmental agency or body having jurisdiction over such Selling Stockholder or the property or assets of such Selling Stockholder. (g) No consent, approval, authorization or order of, or filing or registration with, any court or governmental agency or body having jurisdiction over such Selling Stockholder or the property or assets of such Selling Stockholder is required for the execution, delivery and performance of this Agreement by such Selling Stockholder and the consummation by such Selling Stockholder of the transactions contemplated hereby and thereby, except for the registration of the Shares under the Securities Act and such consents, approvals, authorizations, registrations or qualifications as may be required under the Exchange Act and applicable state securities laws in connection with the purchase and sale of the Shares by the Underwriter. (h) All material information with respect to such Selling Stockholder contained in each of the Registration Statement, the Prospectus and the Pricing Disclosure Package (as amended and supplemented, if the Company shall have filed with the Commission any amendment or supplement thereto) (i) complied and will comply in all material respects with all applicable provisions of the Securities Act and the Rules and Regulations, (ii) contains and will contain all statements of material fact required to be stated therein in accordance with the Securities Act and the Rules and Regulations, and (iii) does not and will not contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary in order to make the statements therein not misleading. Solely with respect to the Metalmark Selling Stockholders (as defined in Schedule I hereto), such Selling Stockholder is not prompted to sell the Shares by any material non-public information relating to the business, results of operations or prospects of the Company and its subsidiaries of an adverse nature that is required to be disclosed in the Registration Statement, the Pricing Disclosure Package or the Prospectus. For this purpose, information that is set forth or incorporated by reference in the Registration Statement, the Pricing Disclosure Package or the Prospectus or that otherwise has been made publicly available about the Company shall be deemed to be public information, and any opinion or conclusion that a Metalmark Selling Stockholder may hold, or analysis performed by a Metalmark Selling Stockholder, in its capacity as an investor about the business, results of operations or prospects of the Company and its subsidiaries shall not be information that relates to the business, results of operations or prospects of the Company. (i) Such Selling Stockholder has not taken and will not take, directly or indirectly, any action that is designed to or that has constituted or that could reasonably be expected to cause or result in the stabilization or manipulation of the price of any security of the Company to facilitate the sale or resale of the Shares. (j) The sale of the Shares by such Selling Stockholder does not violate any of the Company’s internal policies regarding the sale of stock by its affiliates. Any certificate signed by any officer of any 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 such Selling Stockholder, as to matters covered thereby, to the Underwriter.
Appears in 3 contracts
Samples: Underwriting Agreement (EnerSys), Underwriting Agreement (EnerSys), Underwriting Agreement (EnerSys)
Representations and Warranties of the Selling Stockholders. Each Selling StockholderStockholder represents, warrants and covenants to the Underwriters, severally and not jointly, represents and warrants that:as follows
(a) Neither such Selling Stockholder nor any person acting This Agreement has been duly authorized, executed and delivered by or on behalf of such Selling Stockholder (other than, if applicable, the Company and the Underwriter) has used or referred to any “free writing prospectus” (as defined in Rule 405), relating to the SharesStockholder.
(b) Such Selling Stockholder has, and immediately prior With respect to the Closing Date Management Selling Stockholders, each of (i) the Stock Power signed by or on which behalf of such Management Selling Stockholder is selling Stockholder, relating to the Shares, such 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 (the “UCC”) in respect of, the Shares Underwritten Securities to be sold by such Selling Stockholder hereunder (the “Stock Power”) and (ii) the Power of Attorney appointing certain individuals named therein as such Management Selling Stockholder’s attorneys-in-fact (each, an “Attorney-in-Fact”) to the extent set forth therein relating to the transactions contemplated hereby and by the Prospectus (the “Power of Attorney”), of such Management Selling Stockholder has been duly executed and delivered by or on behalf of such Closing Date free Management Selling Stockholder and clear is a valid and binding agreement of all lienssuch Management Selling Stockholder, encumbrancesenforceable in accordance with its terms, equities except as rights to indemnification thereunder may be limited by applicable law and except as the enforcement thereof may be limited by bankruptcy, insolvency, reorganization, moratorium or claimsother similar laws relating to or affecting the rights and remedies of creditors or by general equitable principles.
(c) Upon payment for the Shares Underwritten Securities to be sold by such Selling StockholderStockholders pursuant to this Agreement, delivery of such SharesUnderwritten Securities, as directed by the UnderwriterUnderwriters, to Cede & Co. (“Cede”) or such other nominee as may be designated by The Depository Trust Company (“DTC”), registration of such Shares Underwritten Securities in the name of Cede or such other nominee and the crediting of such Shares on the books of DTC to the securities accounts account of the Underwriter Underwriters (assuming that neither DTC nor the Underwriter 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 Shares), (iA) DTC shall be a “protected purchaser” of such Shares Underwritten Securities within the meaning of Section 8-303 of the UCC, (iiB) under Section 8-501 of the UCC, the Underwriter Underwriters will acquire a valid security entitlement in respect of such Shares Underwritten Securities and (iiiC) no action based on any “adverse claim,” ”, within the meaning of Section 8-102 of the UCC, to such Shares Underwritten Securities may be asserted against the Underwriter Underwriters with respect to such security entitlement. For ; for purposes of this representation, such Selling Stockholder may assume that when such payment, delivery and crediting occur, (Ax) such Shares Underwritten Securities will have been registered in the name of Cede or another nominee designated by DTC, in each case on the Company’s share registry in accordance with its certificate of incorporation, bylaws and applicable law, (By) DTC will be registered as a “clearing corporation” within the meaning of Section 8-102 of the UCC and (Cz) appropriate entries entry to the accounts account of the Underwriter Underwriters on the records of DTC will have been made pursuant to the UCC.
(d) Such Selling Stockholder has full right, power The execution and authority, corporate or otherwise, to enter into this Agreement.
(e) This Agreement has been duly and validly authorized, executed and delivered delivery by or on behalf of such Selling Stockholder.
(f) The execution, delivery and performance of this Agreement by or such Selling Stockholder Stockholder’s Attorney-in-Fact, as applicable, of, and the consummation performance by such Selling Stockholder of its obligations under, this Agreement, and, with respect to the transactions contemplated hereby Management Selling Stockholders, the Power of Attorney and thereby do not and Stock Power, will not (i) contravene or conflict with or with, result in a breach or violation of any of the terms or provisions of, or constitute a default (or, with the giving of notice or lapse of time, would be in default) under, or require the consent of any indentureother party to, mortgage(i) in the case of the KKR Selling Stockholder, deed the limited partnership agreement of trustthe KKR Selling Stockholder, loan agreement, license or (ii) any other agreement or instrument to which such Selling Stockholder is a party or by which such Selling Stockholder it is bound or under which it is entitled to which any of the property right or assets of such Selling Stockholder is subject, (ii) result in any violation of the provisions of the charter or by-laws or deed of trust (or similar organizational documents) of such Selling Stockholder, benefit or (iii) result in any violation provision of applicable law or any judgment, order, decree or regulation applicable to such Selling Stockholder of any statute court, regulatory body, administrative agency, governmental body or any order, rule or regulation of any court or governmental agency or body arbitrator having jurisdiction over such Selling Stockholder Stockholder, except, in the case of the foregoing clauses (ii) and (iii) as would not, individually or in the property or assets of aggregate, reasonably be expected to materially impact such Selling Stockholder.
(g) ’s ability to perform its obligations under this Agreement. No consent, approval, authorization or other order of, or registration or filing or registration with, any court or other governmental agency authority or body having jurisdiction over such Selling Stockholder or the property or assets of such Selling Stockholder agency, is required for the execution, delivery and performance of this Agreement by such Selling Stockholder and the consummation by such Selling Stockholder of the transactions contemplated hereby and therebyin this Agreement, except for the registration of the Shares under the Securities Act and such consents, approvals, authorizations, registrations or qualifications as may be required under the Exchange Act and Securities Act, applicable state securities or blue sky laws in connection with and from the purchase FINRA and sale such other approvals as have been obtained on or prior to the date of the Shares by the Underwriterthis Agreement.
(he) All material information with respect furnished to the Company or the Underwriters by or on behalf of such Selling Stockholder contained in each of writing expressly for use in the Registration Statement, the Time of Sale Prospectus or the Prospectus is, and on the Pricing Disclosure Package (as amended Closing Date will be, true, correct and supplemented, if the Company shall have filed with the Commission any amendment or supplement thereto) (i) complied and will comply complete in all material respects with all applicable provisions respects, and did not, as of the Securities Act and the Rules and Regulations, (ii) contains and will contain all statements of material fact required to be stated therein in accordance with the Securities Act and the Rules and RegulationsApplicable Time, and (iii) does not and on the Closing Date will not not, contain an any untrue statement of a material fact or omit to state a any material fact required to be stated therein or necessary in order to make the statements therein such information not misleading. Solely , it being understood and agreed that the only such information consists of the information with respect to the Metalmark Selling Stockholders (as defined in Schedule I hereto), such Selling Stockholder is not prompted to sell under the Shares by any material non-public information relating to the business, results of operations or prospects of the Company caption “Principal and its subsidiaries of an adverse nature that is required to be disclosed Selling Stockholders” in the Registration Statement, the Pricing Disclosure Package or Time of Sale Prospectus and the Prospectus. For this purposeProspectus (such information, information that is set forth or incorporated by reference the “Selling Stockholders Information”).
(f) Prior to the completion of the Underwriters’ distribution of the Underwritten Securities, such Selling Stockholder has not distributed and will not distribute any offering material in connection with the offering and sale of the Underwritten Securities other than the Registration Statement, the Pricing Disclosure Package or Preliminary Prospectus, the Prospectus or that otherwise has been made publicly available about free writing prospectus listed on Schedule II and the Company shall be deemed to be public information, and any opinion or conclusion that a Metalmark Selling Stockholder may hold, or analysis performed by a Metalmark Selling Stockholder, in its capacity as an investor about the business, results of operations or prospects of the Company and its subsidiaries shall not be information that relates to the business, results of operations or prospects of the CompanyProspectus.
(ig) Such Selling Stockholder has not taken and will not take, directly or indirectly, any action that is designed to or that has constituted or that could might reasonably be expected to cause or result in the stabilization or manipulation of the price of any security of the Company to facilitate the sale or resale of the Shares.
(jh) The sale Selling Stockholder is not (i) an employee benefit plan (as defined in Section 3(3) of ERISA that is subject to the prohibited transaction provisions of Section 406 of ERISA), (ii) a “plan” as defined in Section 4975 of the Shares by such Selling Stockholder does not violate any Internal Revenue Code of 1986, as amended (the “Code”), or (iii) an entity deemed to hold “plan assets” of the Company’s internal policies regarding the sale foregoing plans described in clause (i) or (ii) pursuant to 29 CFR 2510.3-101 as modified by Section 3(42) of stock by its affiliatesERISA. Any certificate signed by any officer or on behalf of any such Selling Stockholder and delivered to the Underwriter Underwriters or to counsel for the Underwriter in connection with the offering of the Shares Underwriters shall be deemed a representation and warranty by such Selling Stockholder, Stockholder to the Underwriters as to the matters covered thereby. Such Selling Stockholder has a reasonable basis for making each of the representations set forth in this Section 2. Such Selling Stockholder acknowledges that the Underwriters and, for purposes of the opinion to be delivered pursuant to Section 8(b) hereof, counsel to such Selling Stockholder and counsel to the UnderwriterUnderwriters, will rely upon the accuracy and truthfulness of the foregoing representations and hereby consents to such reliance.
Appears in 3 contracts
Samples: Underwriting Agreement (Gardner Denver Holdings, Inc.), Underwriting Agreement (Gardner Denver Holdings, Inc.), Underwriting Agreement (Gardner Denver Holdings, Inc.)
Representations and Warranties of the Selling Stockholders. Each Selling Stockholder, Stockholder severally and not jointly, represents and warrants to, and agrees with, each Underwriter that:
(a) Neither such Selling Stockholder nor any person acting on behalf of such Selling Stockholder (other than, if applicable, the Company and the Underwriter) has used or referred to any “free writing prospectus” (as defined in Rule 405), relating to the Shares.
(b) Such Selling Stockholder has, is the record and immediately prior to the Closing Date on which such Selling Stockholder is selling the Shares, such Selling Stockholder will have, good and valid title to or a valid “security entitlement” within the meaning of Section 8-501 beneficial owner of the New York Uniform Commercial Code (the “UCC”) in respect of, the Shares Securities to be sold by such Selling Stockholder it hereunder on such Closing Date free and clear of all liens, encumbrances, equities or and claims.
(c) Upon payment for , and has full power and authority to sell its interest in the Shares to be sold by Securities, and, assuming that each Underwriter acquires its interest in the Securities it has purchased from such Selling Stockholder, delivery of such Shares, as directed by the Underwriter, to Cede & Co. (“Cede”) or such other nominee as may be designated by The Depository Trust Company (“DTC”), registration of such Shares in the name of Cede or such other nominee and the crediting of such Shares on the books of DTC to securities accounts of the Underwriter (assuming that neither DTC nor the Underwriter has Stockholder without notice of any adverse claim (within the meaning of Section 8-105 of the New York Uniform Commercial Code (“UCC) ”)), each Underwriter that has purchased such Securities delivered on the Closing Date by making payment therefor as provided herein, and that has had such Securities transferred to such Shares)Underwriter on the books and records of the Company’s transfer agent, will have acquired a security entitlement (i) DTC shall be a “protected purchaser” of such Shares within the meaning of Section 8-303 102(a)(17) of the UCC) to such Securities purchased by such Underwriter, (ii) under Section 8-501 of the UCC, the Underwriter will acquire a valid security entitlement in respect of such Shares and (iii) no action based on any “an adverse claim,” claim (within the meaning of Section 8-102 105 of the UCC, to such Shares ) may be asserted against the such Underwriter with respect to such security entitlement. For purposes of this representation, Securities.
(b) The Securities to be sold by such Selling Stockholder may assume are subject to the interest of the Underwriters, the arrangements made by such Selling Stockholder for the sale of such Securities hereunder are to that when extent irrevocable, and the obligations of such paymentSelling Stockholder hereunder shall not be terminated by any act of such Selling Stockholder, delivery and crediting by operation of law, by the death or incapacity of any individual Selling Stockholder or, in the case of a trust, by the death or incapacity of any executor or trustee or the termination of such trust, or the occurrence of any other event; if any individual Selling Stockholder or any such executor or trustee should die or become incapacitated, or if any such estate or trust should be terminated, or if any such partnership or corporation should be dissolved, or if any other such event should occur, (A) such Shares will have been registered in before 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, (B) DTC will be registered as a “clearing corporation” within the meaning of Section 8-102 delivery of the UCC and (C) appropriate entries to Securities hereunder, the accounts of the Underwriter on the records of DTC will have been made pursuant to the UCC.
(d) Such Selling Stockholder has full right, power and authority, corporate or otherwise, to enter into this Agreement.
(e) This Agreement has been duly and validly authorized, executed and Securities shall be delivered by or on behalf of such the Selling Stockholder.
(f) The execution, delivery and performance of this Agreement by such Selling Stockholder and the consummation by such Selling Stockholder of the transactions contemplated hereby and thereby 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, any indenture, mortgage, deed of trust, loan agreement, license or other agreement or instrument to which such Selling Stockholder is a party or by which such Selling Stockholder is bound or to which any of the property or assets of such Selling Stockholder is subject, (ii) result in any violation of the provisions of the charter or by-laws or deed of trust (or similar organizational documents) of such Selling Stockholder, or (iii) result in any violation of any statute or any order, rule or regulation of any court or governmental agency or body having jurisdiction over such Selling Stockholder or the property or assets of such Selling Stockholder.
(g) No consent, approval, authorization or order of, or filing or registration with, any court or governmental agency or body having jurisdiction over such Selling Stockholder or the property or assets of such Selling Stockholder is required for the execution, delivery and performance of this Agreement by such Selling Stockholder and the consummation by such Selling Stockholder of the transactions contemplated hereby and thereby, except for the registration of the Shares under the Securities Act and such consents, approvals, authorizations, registrations or qualifications as may be required under the Exchange Act and applicable state securities laws in connection with the purchase and sale of the Shares by the Underwriter.
(h) All material information with respect to such Selling Stockholder contained in each of the Registration Statement, the Prospectus and the Pricing Disclosure Package (as amended and supplemented, if the Company shall have filed with the Commission any amendment or supplement thereto) (i) complied and will comply in all material respects with all applicable provisions of the Securities Act and the Rules and Regulations, (ii) contains and will contain all statements of material fact required to be stated therein Stockholders in accordance with the Securities Act terms and conditions of this Agreement; and actions taken by the Rules and Regulations, and (iii) does not and will not contain an untrue statement of a material attorneys-in-fact or omit to state a material fact required to be stated therein or necessary in order to make the statements therein not misleading. Solely with respect pursuant to the Metalmark Selling Stockholders (as defined in Schedule I hereto), such Selling Stockholder is not prompted to sell the Shares by any material non-public information relating to the business, results power of operations or prospects of the Company and its subsidiaries of an adverse nature that is required to be disclosed in the Registration Statement, the Pricing Disclosure Package or the Prospectus. For this purpose, information that is set forth or incorporated by reference in the Registration Statement, the Pricing Disclosure Package or the Prospectus or that otherwise has been made publicly available about the Company attorney shall be deemed to be public informationas valid as if such death, and any opinion incapacity, termination, dissolution or conclusion that a Metalmark Selling Stockholder may holdother event had not occurred, regardless of whether or not the attorneys-in-fact, or analysis performed by a Metalmark Selling Stockholderany of them, in its capacity as an investor about the businessshall have received notice of such death, results of operations incapacity, termination, dissolution or prospects of the Company and its subsidiaries shall not be information that relates to the business, results of operations or prospects of the Companyother event.
(ic) Such Selling Stockholder has not taken and will not taketaken, directly or indirectly, any action that is designed to or that has constituted would constitute or that could might reasonably be expected to cause or result in 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 SharesSecurities.
(jd) No consent, approval, authorization or order of any court or governmental agency or body is required for the consummation by such Selling Stockholder of the transactions contemplated herein, except such as may have been obtained under the Act and such as may be required under the federal and provincial securities laws of the blue sky laws of any jurisdiction in connection with the purchase and distribution of the Securities by the Underwriters in the manner contemplated herein and in the Basic Prospectus, each Preliminary Final Prospectus and the Final Prospectus and such other approvals as have been obtained.
(e) Neither the sale of the Securities being sold by such Selling Stockholder nor the consummation of any other of the transactions herein contemplated by such Selling Stockholder or the fulfillment of the terms hereof by such Selling Stockholder will conflict with, result in a breach or violation of, or constitute a default under (i) the organizational documents of such Selling Stockholder if such Selling Stockholder is not a natural person, (ii) 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 (iii) any law, 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, except, in the case of clauses (ii) and (iii) above, for any breaches, violations or defaults that would not, individually or in the aggregate, have a material adverse effect on such Selling Stockholder or materially and adversely affect the ability of such Selling Stockholder to consummate the transactions contemplated hereby.
(f) In respect of any statements in or omissions from the Registration Statement, the Basic Prospectus, any Preliminary Final Prospectus, the Final Prospectus, or any amendment or supplement thereto used by the Company or any Underwriter, as the case may be, made in reliance upon and in conformity with information furnished in writing to the Company or to the Underwriters by any Selling Stockholder specifically for use in connection with the preparation thereof, such Selling Stockholder hereby represents and warrants that (i) each Preliminary Final Prospectus and the offering price per Security, when taken together as a whole, do not contain any untrue statement of a material fact or omit to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading and (ii) on the Effective Date and at the Execution Time, the Registration Statement did not 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 date of any filing pursuant to Rule 497 and on the Closing Date and any settlement date for the Option Securities, the Final Prospectus (together with any supplement thereto) will not include any untrue statement of a material fact or omit to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading, it being understood and agreed that the only such information furnished by or on behalf of any Selling Stockholder consists of its name and any information relating to its holdings of Common Stock.
(g) The sale of the Shares Securities by such Selling Stockholder does pursuant hereto is not violate prompted by any information concerning the Company or any of its subsidiaries which is not set forth in the Company’s internal policies regarding Basic Prospectus, each Preliminary Final Prospectus and the sale of stock by its affiliatesFinal Prospectus. Any certificate signed by any officer of any Selling Stockholder and delivered to the Underwriter Representatives or counsel for the Underwriter Underwriters in connection with the offering of the Shares Securities shall be deemed a representation and warranty by such Selling Stockholder, as to matters covered thereby, to the each Underwriter.
Appears in 2 contracts
Samples: Underwriting Agreement (Solar Capital Ltd.), Underwriting Agreement (Solar Capital Ltd.)
Representations and Warranties of the Selling Stockholders. Each Selling Stockholder, severally and not jointly, represents and warrants to the Underwriters as of the date hereof, the Initial Sale Time (as defined below), as of the Closing Time and as of any Option Closing Time (if any), and agrees with each Underwriter, that:
(a) Neither such Selling Stockholder nor any person acting has full power and authority to enter into this Agreement and the Custody Agreement and Power of Attorney to which it is a party. All authorizations and consents necessary for the execution and delivery by such Selling Stockholder of the Custody Agreement and Power of Attorney, and for the execution of this Agreement on behalf of such Selling Stockholder, have been given. Each of the Custody Agreement and Power of Attorney and this Agreement has been duly authorized, executed and delivered by or on behalf of such Selling Stockholder (other thanand constitutes a valid and binding agreement of such Selling Stockholder and is enforceable against such Selling Stockholder in accordance with the terms thereof and hereof, if applicableexcept as may be limited by bankruptcy, the Company insolvency, reorganization, moratorium or similar laws affecting creditors’ rights generally, and the Underwriter) has used or referred to any “free writing prospectus” (as defined in Rule 405)by general equitable principles, relating and except to the Shares.extent that the indemnification and contribution provisions of Section 11 hereof may be limited by federal or state securities laws and public policy considerations in respect thereof;
(b) Such such Selling Stockholder now has, and immediately prior to the Closing Date on which such Selling Stockholder is selling the Shares, such Selling Stockholder Time will have, good and valid title to or (i) a valid “security entitlement” (within the meaning of Section 8-501 of the New York Uniform Commercial Code (the “New York UCC”)) in respect of, of the Shares to be sold by such Selling Stockholder hereunder on such Closing Date hereunder, in each case free and clear of all liens, encumbrancesencumbrances and claims whatsoever (other than pursuant to the Custody Agreement and Power of Attorney, equities or claims.
as applicable), and (cii) full legal power and authority to enter into this Agreement and to sell, transfer and deliver a security entitlement in respect of such Shares to the Underwriters hereunder and to make the representations, warranties and agreements made by such Selling Stockholder herein. Upon (I) payment for the Shares to be sold by such Selling StockholderStockholder pursuant to this Agreement, (II) delivery of such Shares, as directed by the UnderwriterUnderwriters, to Cede & Co. (“Cede”) or such other nominee as may be designated by The Depository Trust Company DTC, (“DTC”), III) registration of such Shares in the name of DTC, Cede & Co. or such other nominee and the crediting of nominee, (IV) DTC indicating by book entries on its books that security entitlements with respect to such Shares on have been credited to the books of DTC to Underwriters’ securities accounts of accounts, the Underwriter (assuming that neither DTC nor the Underwriter has notice of any adverse claim Underwriters will acquire a valid “security entitlement” (within the meaning of Section 8-105 501 of the New York UCC) with respect to such Shares)Shares and no action based on an “adverse claim” (as defined in Section 8-102 of the New York UCC) may be asserted against the Underwriters with respect to such security entitlement, (i) and DTC shall be a “protected purchaser” of such Shares within the meaning of Section 8-303 of the UCCNew York UCC (assuming, in each case, that (iiA) under Section 8-501 none of the UCCDTC, the Cede & Co., any such other nominee or any Underwriter will acquire a valid security entitlement in respect have “notice of any adverse claim” to any of such Shares and (iii) no action based on any “adverse claim,” within the meaning of Section 8-102 105 of the New York UCC, to such Shares may be asserted against the Underwriter with respect to such security entitlement. For purposes of this representation, such Selling Stockholder may assume that when such payment, delivery and crediting occur, (A) such Shares will have been registered in the name of Cede or another nominee designated by DTC, in each case on the Company’s share registry in accordance with its certificate of incorporation, bylaws and applicable law, (B) DTC will be registered as a “clearing corporation” within the meaning of Section 8-102 of the UCC UCC, and (C) appropriate entries to the accounts of the Underwriter on the records jurisdiction of DTC will have been made pursuant to the UCC.is New York);
(dc) Such Selling Stockholder has full right, power and authority, corporate or otherwise, to enter into this Agreement.
(e) This Agreement has been duly and validly authorized, executed and delivered by or on behalf of such Selling Stockholder.
(f) The execution, delivery and the performance of this Agreement, the Custody Agreement and the Power Of Attorney by such Selling Stockholder and the consummation by such Selling Stockholder of the transactions contemplated hereby herein and thereby do not and therein will not (i) conflict with with, or result in a any breach or violation of any of the terms or provisions of, or constitute a default under (nor constitute any event which with notice, lapse of time, or both would constitute a breach of, or default under), (i) any provision of the certificate or articles of incorporation, other charter or similar constitutive documents, or the bylaws of such Selling Stockholder, or (ii) any provision of any license, indenture, mortgage, deed of trust, loan agreement, license or credit agreement or other agreement or instrument to which such Selling Stockholder is a party or by which such Selling Stockholder is it or its properties may be bound or to which any of the property or assets of such Selling Stockholder is subject, (ii) result in any violation of the provisions of the charter or by-laws or deed of trust (or similar organizational documents) of such Selling Stockholderaffected, or (iii) under any federal, state, local or foreign law, regulation or rule or any decree, judgment or order applicable to such Selling Stockholder; or result in any violation the creation or imposition of any statute lien, charge, claim or encumbrance upon any orderproperty or asset of the Selling Stockholder (other than pursuant to the Custody Agreement and Power of Attorney, rule as applicable);
(d) no approval, authorization, consent or regulation order of or filing with any court federal, state, local or foreign governmental or regulatory commission, board, body, authority or agency or body having jurisdiction over such Selling Stockholder or the property or assets any of its properties is required in connection with such Selling Stockholder.
(g) No consent, approval, authorization or order of, or filing or registration with, any court or governmental agency or body having jurisdiction over such Selling Stockholder or the property or assets of such Selling Stockholder is required for the ’s execution, delivery and performance of this Agreement by such Selling Stockholder and the Agreement, its consummation by such Selling Stockholder of the transactions contemplated hereby herein, and thereby, except for the registration its sale and delivery of the Shares Shares, other than (i) such as have been obtained, or will have been obtained at the Closing Time under the Securities Act and such consents, approvals, authorizations, registrations or qualifications as may be required under the Exchange Act and applicable state securities laws Act, (ii) such approvals as have been obtained in connection with the purchase and sale approval of the listing of the Shares on the NYSE and (iii) any necessary qualification under the securities or blue sky laws of the various jurisdictions in which the Shares are being offered by the Underwriter.Underwriters;
(he) All material information with respect to such Selling Stockholder contained is not prompted to sell Shares by any material information concerning the Company or its Subsidiaries which is not set forth in the Registration Statement, the Prospectus or the Disclosure Package;
(f) each of the Registration Statement, the Prospectus and the Pricing Disclosure Package (as amended and or supplemented, if the Company shall have filed with the Commission any amendment or supplement thereto) (i) complied as of its effective date and will comply in all material respects with all applicable provisions as of the Securities Act and date hereof, with respect to the Rules and RegulationsRegistration Statement, (ii) contains on its date, at the time of filing the Prospectus pursuant to Rule 424(b) and will contain all statements of material fact required at the Closing Time, with respect to be stated therein in accordance with the Securities Act and the Rules and RegulationsProspectus, and (iii) does as of the Initial Sale Time, with respect to the Disclosure Package, did not and will not contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary in order to make the statements therein (in the case of the Registration Statement, the Prospectus or the Disclosure Package, in light of the circumstances under which they were made) not misleading. Solely with respect ; provided, however, that this representation and warranty shall only apply to the Metalmark Selling Stockholders (as defined in Schedule I hereto), such Selling Stockholder is not prompted to sell the Shares by any material non-public information relating to the business, results of operations statements or prospects of the Company and its subsidiaries of an adverse nature that is required to be disclosed omissions in the Registration Statement, the Pricing Prospectus and the Disclosure Package made in reliance upon and in conformity with written information furnished by or the Prospectus. For this purpose, information that is set forth or incorporated by reference on behalf of such Selling Stockholder specifically for use in the Registration Statement, the Pricing Prospectus or the Disclosure Package, together with any amendment or supplement thereto used by the Company or any Underwriter, as the case may be, it being understood and agreed that the only such information furnished by or on behalf of such Selling Stockholder consists of the information relating to such Selling Stockholder in the Registration Statement, the Prospectus and the Disclosure Package or under the Prospectus or that otherwise has been made publicly available about heading “Selling Stockholders” and the Company shall be deemed to be public informationfootnote thereunder, and excluding any opinion or conclusion that a Metalmark percentages set forth therein (the “Selling Stockholder may hold, or analysis performed by a Metalmark Selling Stockholder, in its capacity as an investor about the business, results of operations or prospects of the Company and its subsidiaries shall not be information that relates to the business, results of operations or prospects of the Company.Information”);
(ig) Such such Selling Stockholder has not taken distributed and will not takedistribute any Free Writing Prospectus, preliminary prospectus, the Prospectus or any other offering material in connection with the offering and sale of the Shares, except for any such distribution to which the Representative has consented in advance; and such Selling Stockholder has not taken, directly or indirectly, any action that is designed to intended, or that has constituted or that could which would reasonably be expected expected, to cause or result in in, under the Securities Act, the Securities Act Regulations or otherwise, or which has constituted, stabilization or manipulation of the price of any security of the Company to facilitate the sale or resale of the Shares.;
(h) the Shares to be sold hereunder by such Selling Stockholder have been placed in custody, for the purpose of making delivery of such Shares under this Agreement and under the Custody Agreement and Power of Attorney which appoints American Stock Transfer & Trust Company, LLC, as custodian (the “Custodian”), for such Selling Stockholder; such Selling Stockholder agrees that the Shares held in custody for him or it under the Custody Agreement and Power of Attorney are for the benefit of and coupled with and subject to the interest thereunder of the Custodian, the Attorneys, the Underwriters, each other Selling Stockholder and the Company; that the arrangements made by such Selling Stockholder for such custody and the appointment of the Custodian and the Attorneys by such Selling Stockholder are, to the extent provided in the Custody Agreement and Power of Attorney, irrevocable; and that the obligations of such Selling Stockholder hereunder shall not be terminated by operation of law, whether by the death, disability, incapacity or liquidation of any Selling Stockholder or the occurrence of any other event; if any Selling Stockholder should die, become disabled or incapacitated or be liquidated or if any other such event should occur before the delivery of the Shares hereunder, the Shares shall be delivered by the Custodian in accordance with the terms and conditions of this Agreement and actions taken by the Attorneys and the Custodian pursuant to the Custody Agreement and Power of Attorney shall be as valid as if such death, liquidation, incapacity or other event had not occurred, regardless of whether or not the Custodian or the Attorneys, or either of them, shall have received notice thereof;
(i) such Selling Stockholder has not relied upon the Representative or legal counsel for the Representative for any legal, tax or accounting advice in connection with the offering and sale of the Shares;
(j) The sale of the Shares by such Selling Stockholder does not violate have any registration or other similar rights to have any equity or debt securities registered for sale by the Company under the Registration Statement or included in the offering contemplated by this Agreement, except for such rights as are described in the Registration Statement, the Prospectus and the Disclosure Package under “Description of Capital Stock;”
(k) neither such Selling Stockholder nor any of its subsidiaries, nor any director, officer or employee of such Selling Stockholder or any of its subsidiaries nor, to the knowledge of such Selling Stockholder, any agent, affiliate or other person associated with or acting on behalf of such Selling Stockholder or any of its subsidiaries has (i) used any corporate 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 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 Company’s internal policies regarding the sale of stock by its affiliates. Any certificate signed by foregoing, or any officer political party or party official or candidate for political office; (iii) violated or is in violation of any provision of the FCPA, or any applicable law or regulation implementing the OECD Convention on Combating Bribery of Foreign Public Officials in International Business Transactions, or committed an offence under the Bxxxxxx Xxx 0000 of the United Kingdom, or any other applicable anti-bribery or anti-corruption law; 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. Such Selling Stockholder and delivered 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;
(l) the operations of such Selling Stockholder and its subsidiaries are and have been conducted at all times in compliance with applicable financial recordkeeping and reporting requirements, including those of the Currency and Foreign Transactions Reporting Act of 1970, as amended, the applicable money laundering statutes of all jurisdictions where such Selling Stockholder or any of its subsidiaries conducts business, the rules and regulations thereunder and any related or similar rules, regulations or guidelines, issued, administered or enforced by any governmental agency (collectively, the “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 Underwriter Anti-Money Laundering Laws is pending or, to the knowledge of such Selling Stockholder, threatened;
(m) neither such Selling Stockholder nor any of its subsidiaries, directors, officers or counsel for employees, nor, to the Underwriter in connection knowledge of such Selling Stockholder, any agent, affiliate or other person associated with or acting on behalf of such Selling Stockholder or any of its subsidiaries is currently subject to any U.S. sanctions administered by the United States Government, including, without limitation, OFAC, UNSC, HMT, or other relevant Sanctions; and such Selling Stockholder will not directly or indirectly use the proceeds of the offering of the Shares shall be deemed hereunder, or lend, contribute or otherwise make available such proceeds to any subsidiary, joint venture partner or other person or entity, for the purpose of financing the activities of any person currently subject of Sanctions or in any other manner that will result in a representation and warranty 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, such Selling StockholderStockholder and its subsidiaries have not knowingly engaged in, as 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 country subject to matters covered therebySanctions;
(n) such Selling Stockholder has not taken and will not take, directly or indirectly, any action designed to or that would reasonably be expected to cause or result in any stabilization or manipulation of the price of the Shares;
(o) such selling Stockholder does not have, or has waived prior to the Underwriterdate hereof, any preemptive right, co-sale right or right of first refusal or other similar right to purchase any of the Shares that are to be sold by the Company or any of the other Selling Stockholders to the Underwriters pursuant to this Agreement; and such Selling Stockholder does not own any warrants, options or similar rights to acquire, and does not have any right or arrangement to acquire, any capital stock, right, warrants, options or other securities from the Company, other than those described in the Registration Statement and the Prospectus; and
(p) except as otherwise disclosed to the Underwriters in writing, such Selling Stockholder is not a member of or an affiliate of or associated with any member of FINRA.
Appears in 2 contracts
Samples: Underwriting Agreement (Great Ajax Corp.), Underwriting Agreement (Great Ajax Corp.)
Representations and Warranties of the Selling Stockholders. Each Selling Stockholder, severally and not jointly, represents and warrants thatto, and agrees with each of the Underwriters and the Company, as of the date hereof and as of the Closing Date, as follows:
(a) Neither such Selling Stockholder nor any person acting This Agreement has been duly authorized, executed and delivered by or on behalf of such the Selling Stockholder (other than, if applicable, the Company and the Underwriter) has used or referred to any “free writing prospectus” (as defined in Rule 405), relating to the SharesStockholder.
(b) Such Selling Stockholder has, and immediately prior to the Closing Date on which such Selling Stockholder is selling the SharesTime of Sale, such Selling Stockholder will have, good and valid title to or a valid “security entitlement” within the meaning Shares to be sold by it hereunder at the Time of Section 8-501 of Sale, and the New York Uniform Commercial Code Shares will be (the “UCC”) in respect of, upon payment for the Shares to be sold by such Selling Stockholder hereunder on such Closing Date pursuant to this Agreement at the Time of Sale) free and clear of all liens, encumbrancessecurity interests, equities mortgages, pledges, encumbrances or any other adverse claims.
(c) . Upon payment for the Shares to be sold by such Selling StockholderStockholder pursuant to this Agreement, delivery of such Shares, as directed by the UnderwriterUnderwriters, to Cede & Co. (“Cede”) or such other nominee as may be designated by The the Depository Trust Company (“DTC”), registration of such Shares in the name of Cede or such other nominee and the crediting of such Shares on the books of DTC to a securities accounts account of the Underwriter Underwriters (assuming that neither DTC nor none of DTC, Cede or such other nominee or any of the Underwriter Underwriters has notice of any adverse claim (within the meaning of as defined in Section 8-105 of the New York Uniform Commercial Code (the “UCC”) with respect to such Shares), (i) DTC shall be a “protected purchaser” of such Shares within the meaning of (as defined in Section 8-303 of the UCC), (ii) under Section 8-501 of the UCC, the Underwriter Underwriters will acquire a valid security entitlement in respect of to such Shares and (iii) under Section 8-502 of the UCC, no action based on any “adverse claim,” within the meaning of (as defined in Section 8-102 of the UCC, ) to such Shares may be asserted against the Underwriter Underwriters with respect to such security entitlement. For purposes of this representation, such Selling Stockholder may assume that when such payment, delivery and crediting occuroccurs, (A) such Shares will have been registered in the name of Cede or another nominee designated by DTC, in each case on the Company’s share registry in accordance with its certificate the Company’s articles of incorporation, bylaws as presently in effect, and applicable law, (B) DTC will be registered as a “clearing corporation” within the meaning of Section 8-102 of the UCC and UCC, (C) appropriate entries to the accounts account of the Underwriter several Underwriters on the records of DTC will have been made pursuant to the UCC and (D) the jurisdiction of DTC (and its nominee) as a securities intermediary for purposes of Section 8-110(b) of the UCC, and the jurisdiction of the Company (as the issuer of the Shares) applicable to the matters specified in subsections (a)(2) through (5) of Section 8-110 of the UCC, is the State of New York.
(c) The Selling Stockholder has, and on the Closing Date, will have the legal right and power to sell, transfer and deliver all of the Shares which may be sold by the Selling Stockholder pursuant to this Agreement and to comply with his or its other obligations hereunder.
(d) Such Selling Stockholder has full right, power The execution and authority, corporate or otherwise, to enter into delivery of this Agreement.
(e) This Agreement has been duly and validly authorized, executed and delivered by or on behalf the sale of such Selling Stockholder.
(f) The execution, delivery and performance of this Agreement the Shares to be sold by such Selling Stockholder hereunder and the consummation compliance by such Selling Stockholder with this Agreement and the consummation of the transactions herein contemplated hereby and thereby 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, any indenture, mortgage, deed of trust, loan agreement, license lease or other agreement or instrument to which such Selling Stockholder is a party or by which such Selling Stockholder is bound or to which any of the property or assets of such Selling Stockholder is subject, (ii) result in any violation of the provisions certificate of the charter partnership, certificate of formation, limited partnership agreement or by-laws or deed of trust (or similar organizational documents) limited liability company agreement, as applicable, of such Selling Stockholder, if any, or (iii) result in any a violation of any statute or any order, rule or regulation of any court or governmental agency or body having jurisdiction over such Selling Stockholder or the any of his or its property or assets assets, except, in the case of clauses (i) and (iii) above, for any such conflict, breach, violation or default that would not, individually or in the aggregate, reasonably be expected to materially impair the ability of such Selling Stockholder.
(g) Stockholder to consummate the transactions contemplated by this Agreement. No consent, approval, authorization or other order of, or registration or filing or registration with, any court or other governmental agency authority or body having jurisdiction over such Selling Stockholder or the property or assets of such Selling Stockholder agency, is required for the execution, delivery and performance of this Agreement by such Selling Stockholder and the consummation by such the Selling Stockholder of the transactions contemplated hereby and therebyin this Agreement, except for the registration of the Shares under the Securities Act and such consents, approvals, authorizations, registrations or qualifications as may be required under the Exchange Securities Act and applicable state securities laws in connection with the purchase and sale of the Shares by the Underwriteror blue sky laws.
(he) All material information with respect The Selling Stockholder: (i) does not have any registration or other similar rights to have any securities registered for sale by the Company under the Registration Statement or included in the offering contemplated by this Agreement, except for such Selling Stockholder contained rights as are described in each of the Registration Statement, the Prospectus Time of Sale Disclosure Package and the Pricing Prospectus, and (ii) does not own any warrants, options or similar rights to acquire, and does not have any right or arrangement to acquire, any capital stock, right, warrants, options or other securities from the Company, other than those described in the Registration Statement, the Time of Sale Disclosure Package and the Prospectus.
(f) Except for such consents, approvals and waivers as amended and supplementedhave been obtained by the Selling Stockholder on or prior to the date of this Agreement, if no consent, approval or waiver is required under any instrument or agreement to which the Selling Stockholder is a party or by which he or it is bound or under which he or it is entitled to any right or benefit, in connection with the offering, sale or purchase by the Underwriters of any of the Shares which may be sold by the Selling Stockholder under this Agreement or the consummation by the Selling Stockholder of any of the other transactions contemplated hereby.
(g) All information furnished to the Company shall have filed with or any Underwriter by the Commission any amendment Selling Stockholder in writing expressly for use in the Registration Statement, the Time of Sale Disclosure Package or supplement thereto) (i) complied the Prospectus is, and at the Time of Sale and on the Closing Date, will comply be, true, correct, and complete in all material respects with all applicable provisions respects, and did not, as of the Securities Act and the Rules and Regulations, (ii) contains and will contain all statements Time of material fact required to be stated therein in accordance with the Securities Act and the Rules and RegulationsSale, and (iii) does not and on the Closing Date will not not, contain an any untrue statement of a material fact or omit to state a any material fact required to be stated therein or necessary in order to make the statements therein such information not misleading. Solely with respect to the Metalmark Selling Stockholders (as defined in Schedule I hereto), such The Selling Stockholder is not prompted to sell confirms as accurate the number of Shares by any material non-public information relating to set forth opposite the business, results of operations or prospects of the Company and its subsidiaries of an adverse nature that is required to be disclosed Selling Stockholder’s name in the Registration Statement, the Pricing Time of Sale Disclosure Package or the Prospectus. For this purpose, information that is set forth or incorporated by reference in the Registration Statement, the Pricing Disclosure Package or and the Prospectus or that otherwise has been made publicly available about under the Company shall be deemed caption “Selling Stockholders” (both prior to be public information, and any opinion or conclusion that a Metalmark Selling Stockholder may hold, or analysis performed by a Metalmark Selling Stockholder, in its capacity as an investor about the business, results of operations or prospects of the Company and its subsidiaries shall not be information that relates after giving effect to the business, results of operations or prospects of the Company.
(i) Such Selling Stockholder has not taken and will not take, directly or indirectly, any action that is designed to or that has constituted or that could reasonably be expected to cause or result in the stabilization or manipulation of the price of any security of the Company to facilitate the sale or resale of the Shares).
(j) The sale of the Shares by such Selling Stockholder does not violate any of the Company’s internal policies regarding the sale of stock by its affiliates. Any certificate signed by any officer of any 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 such Selling Stockholder, as to matters covered thereby, to the Underwriter.
Appears in 2 contracts
Samples: Underwriting Agreement (Profire Energy Inc), Underwriting Agreement (Profire Energy Inc)
Representations and Warranties of the Selling Stockholders. Each of the Selling StockholderStockholders, severally and not jointly, represents and warrants to each Underwriter and the Company that:
(a) Neither such Selling Stockholder nor any person acting on behalf of such Selling Stockholder (other than, if applicable, It is the Company record and the Underwriter) has used or referred to any “free writing prospectus” (as defined in Rule 405), relating to the Shares.
(b) Such Selling Stockholder has, and immediately prior to the Closing Date on which such Selling Stockholder is selling the Shares, such Selling Stockholder will have, good and valid title to or a valid “security entitlement” within the meaning of Section 8-501 beneficial owner of the New York Uniform Commercial Code (the “UCC”) in respect of, the Shares Securities to be sold by such Selling Stockholder it hereunder on such Closing Date free and clear of all liens, encumbrances, equities or and claims.
(c) Upon payment for , and has full power and authority to sell its interest in the Shares to be sold by such Selling StockholderSecurities, delivery of such Sharesand, as directed by assuming that the Underwriter, to Cede & Co. (“Cede”) or such other nominee as may be designated by The Underwriters and the Depository Trust Company (“DTC”), registration of such Shares or other securities intermediary acquires its interest in the name of Cede or Securities it has purchased from such other nominee and the crediting of such Shares on the books of DTC to securities accounts of the Underwriter (assuming that neither DTC nor the Underwriter has Selling Stockholder without notice of any adverse claim (within the meaning of Section 8-105 of the New York Uniform Commercial Code (“UCC) to such Shares”)), the Underwriters that have purchased such Securities delivered on the Closing Date to The Depository Trust Company or other securities intermediary by making payment therefor as provided herein, and that has had such Securities credited to the respective securities accounts (i) DTC shall be a “protected purchaser” of such Shares within the meaning of Section 8-303 of the UCC, (ii) under Section 8-501 of the UCC) of the Underwriters maintained with The Depository Trust Company or such other securities intermediary, the Underwriter will acquire have acquired a valid security entitlement in respect of such Shares and (iii) no action based on any “adverse claim,” within the meaning of Section 8-102 102(a)(17) of the UCC, ) to such Shares Securities purchased by the Underwriters, and no action based on an adverse claim (within the meaning of Section 8-102(a)(1) of the UCC) may be asserted against the Underwriter Underwriters with respect to such security entitlement. For Securities; for purposes of this representation, such Selling Stockholder may assume that when such payment, delivery (within the meaning of Section 8-301 of the UCC) and crediting occur, (Ax) such Shares Securities will have been registered in the name of Cede & Co. or another nominee designated by DTCThe Depository Trust Company, in each case on the Company’s share registry in accordance with its certificate of incorporationcharter, bylaws by-laws and applicable law, (By) DTC The Depository Trust Company will be registered as a “clearing corporation” within the meaning of Section 8-102 of the UCC and (Cz) appropriate entries to the respective securities accounts (within the meaning of Section 8-501 of the Underwriter UCC) of the Underwriters on the records of DTC the Depository Trust Company will have been made pursuant to the UCC.
(db) Such Selling Stockholder has full right, power and authority, corporate or otherwise, to enter into this Agreement.
(e) This Agreement has been duly and validly authorized, executed and delivered by or on behalf of such Selling Stockholder.
(f) The execution, delivery and performance of this Agreement by such Selling Stockholder and the consummation by such Selling Stockholder of the transactions contemplated hereby and thereby 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, any indenture, mortgage, deed of trust, loan agreement, license or other agreement or instrument to which such Selling Stockholder is a party or by which such Selling Stockholder is bound or to which any of the property or assets of such Selling Stockholder is subject, (ii) result in any violation of the provisions of the charter or by-laws or deed of trust (or similar organizational documents) of such Selling Stockholder, or (iii) result in any violation of any statute or any order, rule or regulation of any court or governmental agency or body having jurisdiction over such Selling Stockholder or the property or assets of such Selling Stockholder.
(g) No consent, approval, authorization or order of, or filing or registration with, any court or governmental agency or body having jurisdiction over such Selling Stockholder or the property or assets of such Selling Stockholder is required for the execution, delivery and performance of this Agreement by such Selling Stockholder and the consummation by such Selling Stockholder of the transactions contemplated hereby and thereby, except for the registration of the Shares under the Securities Act and such consents, approvals, authorizations, registrations or qualifications as may be required under the Exchange Act and applicable state securities laws in connection with the purchase and sale of the Shares by the Underwriter.
(h) All material information with respect to such Selling Stockholder contained in each of the Registration Statement, the Prospectus and the Pricing Disclosure Package (as amended and supplemented, if the Company shall have filed with the Commission any amendment or supplement thereto) (i) complied and will comply in all material respects with all applicable provisions of the Securities Act and the Rules and Regulations, (ii) contains and will contain all statements of material fact required to be stated therein in accordance with the Securities Act and the Rules and Regulations, and (iii) does not and will not contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary in order to make the statements therein not misleading. Solely with respect to the Metalmark Selling Stockholders (as defined in Schedule I hereto), such Selling Stockholder is not prompted to sell the Shares by any material non-public information relating to the business, results of operations or prospects of the Company and its subsidiaries of an adverse nature that is required to be disclosed in the Registration Statement, the Pricing Disclosure Package or the Prospectus. For this purpose, information that is set forth or incorporated by reference in the Registration Statement, the Pricing Disclosure Package or the Prospectus or that otherwise has been made publicly available about the Company shall be deemed to be public information, and any opinion or conclusion that a Metalmark Selling Stockholder may hold, or analysis performed by a Metalmark Selling Stockholder, in its capacity as an investor about the business, results of operations or prospects of the Company and its subsidiaries shall not be information that relates to the business, results of operations or prospects of the Company.
(i) Such Selling Stockholder It has not taken and will not taketaken, directly or indirectly, any action that is designed to or that has constituted would constitute or that could might reasonably be expected to cause or result in in, under the Exchange Act or otherwise, unlawful stabilization or manipulation of the price of any security of the Company to facilitate the sale or resale of the SharesSecurities.
(jc) The sale No consent, approval, authorization, filing with or order of any court or governmental agency or body is required for the Shares consummation by such Selling Stockholder does not violate any of the Company’s internal policies regarding transactions contemplated herein, except such as have been obtained or made by such Selling Stockholder on or prior to the Closing Date under the Securities Act, under the Exchange Act, such as may be required by the Nasdaq Stock Market and such as may be required under the Blue Sky laws of any jurisdiction in connection with the purchase and distribution of the Securities by the Underwriters in the manner contemplated herein and in the Time of Sale Information and the Prospectus and except where the failure to obtain any consents, approvals, authorizations, filings or orders would not impair, in any material respect, the ability of such Selling Stockholder to consummate the transactions contemplated by this Agreement.
(d) Neither the sale of stock the Securities being sold by such Selling Stockholder nor the consummation of any other of the transactions herein contemplated by such Selling Stockholder nor the fulfillment of the terms hereof by such Selling Stockholder will conflict with, result in a breach or violation of, or constitute a default under (i) the charter, by-laws or other organizational documents of such Selling Stockholder, (ii) the terms of any indenture or other agreement or instrument to which such Selling Stockholder is a party or bound, or (iii) any statute, law, rule, regulation, judgment, order or decree applicable to such Selling Stockholder of any court, regulatory body, administrative agency, governmental body, arbitrator or other authority having jurisdiction over such Selling Stockholder, except in the case of (ii) and (iii), for such conflict, breach, violation or imposition that would not impair, in any material respect, the ability of such Selling Stockholder to consummate the transactions contemplated by this Agreement.
(e) Solely in respect of any statements in or omissions from the Registration Statement, the Prospectus (together with any supplement thereto), the Time of Sale Information and any Issuer Free Writing Prospectus made in reliance upon and in conformity with the Selling Stockholder Information, (i) on the effective date of the Registration Statement, the Registration Statement did not 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; (ii) on the date of any filing pursuant to Rule 424(b) and on the Closing Date, the Prospectus (together with any supplement thereto) will not include 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; (iii) the Time of Sale Information does not, and at the Closing Date will not, contain any untrue statement of a material fact or omit to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading; and (iv) each Issuer Free Writing Prospectus does not include any information that conflicts with the information contained in the Registration Statement, including any document incorporated by reference therein that has not been superseded or modified; provided, however, that such Selling Stockholder makes no representation or warranty as to any information contained in or omitted from the Registration Statement, the Prospectus (or any supplement thereto), the Time of Sale Information or any Issuer Free Writing Prospectus other than (i) its affiliatesname, (ii) the number of shares of Common Stock of the Company owned by it prior to the completion of the offering, (iii) the information set forth in the applicable footnote relating to such Selling Stockholder under the beneficial ownership table and (iv) the number of shares of Common Stock to be offered by such Selling Stockholder, in each case as set forth under the caption “Selling Stockholders” in each of the Registration Statement and the Prospectus (such information, the “Selling Stockholder Information”).
(f) It has not prepared or had prepared on its behalf or used or referred to, and agrees that it will not prepare or have prepared on its behalf or use or refer to, any Issuer Free Writing Prospectus, and has not distributed and will not distribute any written materials in connection with the offer or sale of the Securities other than (i) the Basic Prospectus, (ii) the Prospectus, (iii) the documents listed on Annex B-1 hereto as constituting part of the Time of Sale Information and (iv) any electronic road show or other written communications, in each case approved in writing in advance by the Underwriters specified in Annex B-2 hereto. Any certificate signed by any officer of any such Selling Stockholder and delivered pursuant to Section 7 hereto to the Underwriter Underwriters or counsel for the Underwriter Underwriters in connection with the offering of the Shares Securities shall be deemed a representation and warranty by such Selling Stockholder, as to matters covered thereby, to the UnderwriterUnderwriters.
Appears in 2 contracts
Samples: Underwriting Agreement (Walgreens Boots Alliance, Inc.), Underwriting Agreement (Walgreens Boots Alliance, Inc.)
Representations and Warranties of the Selling Stockholders. Each Selling Stockholder, severally and not jointly, Stockholder represents and warrants to, and agrees with, the several Underwriters that:
(a) Neither such Selling Stockholder nor any person acting on behalf of such Selling Stockholder (other than, if applicable, the Company and the Underwriter) has used or referred to any “free writing prospectus” (as defined in Rule 405), relating to the Shares.
(b) Such Selling Stockholder has, and immediately prior to the Closing Date on which such Selling Stockholder is selling the Shares, such 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 (the “UCC”) in respect of, the Shares to be sold by such Selling Stockholder hereunder on such Closing Date free and clear of all liens, encumbrances, equities or claims.
(c) Upon payment for the Shares to be sold by such Selling Stockholder, delivery of such Shares, as directed by the Underwriter, to Cede & Co. (“Cede”) or such other nominee as may be designated by The Depository Trust Company (“DTC”), registration of such Shares in the name of Cede or such other nominee and the crediting of such Shares on the books of DTC to securities accounts of the Underwriter (assuming that neither DTC nor the Underwriter has notice of any adverse claim (within the meaning of Section 8-105 of the UCC) to such Shares), (i) DTC shall be a “protected purchaser” of such Shares within the meaning of Section 8-303 of the UCC, (ii) under Section 8-501 of the UCC, the Underwriter will acquire a valid security entitlement in respect of such Shares and (iii) no action based on any “adverse claim,” within the meaning of Section 8-102 of the UCC, to such Shares may be asserted against the Underwriter with respect to such security entitlement. For purposes of this representation, such Selling Stockholder may assume that when such payment, delivery and crediting occur, (A) such Shares will have been registered in the name of Cede or another nominee designated by DTC, in each case on the Company’s share registry in accordance with its certificate of incorporation, bylaws and applicable law, (B) DTC will be registered as a “clearing corporation” within the meaning of Section 8-102 of the UCC and (C) appropriate entries to the accounts of the Underwriter on the records of DTC will have been made pursuant to the UCC.
(d) Such Selling Stockholder has full right, power and authority, corporate or otherwise, to enter into this Agreement.
(e) This Agreement has been duly and validly authorized, executed and delivered by or on behalf of such Selling Stockholder and is a valid and binding agreement of such Selling Stockholder, enforceable in accordance with its terms, except as rights to indemnification hereunder may be limited by applicable law and except as the enforcement hereof may be limited by bankruptcy, insolvency, reorganization, moratorium or other similar laws relating to or affecting the rights and remedies of creditors or by general equitable principles.
(fb) The executionCustody Agreement (as defined below) and the Power of Attorney (as defined below) have been duly authorized, executed and delivered by such Selling Stockholder and are valid and binding agreements of such Selling Stockholder enforceable in accordance with their respective terms, except as rights to indemnification thereunder may be limited by applicable law and except as the enforcement thereof may be limited by bankruptcy, insolvency, reorganization, moratorium or other similar laws relating to or affecting the rights and remedies of creditors or by general equitable principles.
(c) The execution and delivery by such Selling Stockholder of, and the performance by such Selling Stockholder of its obligations under, this Agreement, the Custody Agreement signed by such Selling Stockholder and the consummation Company, as Custodian, relating to the deposit of the Shares to be sold by such Selling Stockholder (the "Custody Agreement") and the Power of Attorney appointing certain individuals as such 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"), and the consummation of the transactions contemplated hereby and thereby do not and thereby, will not (i) conflict with or result in a breach or violation contravene any provision of any of the terms or provisions of, or constitute a default underapplicable law, any indenture, mortgage, deed of trust, loan agreement, license agreement or other agreement or instrument to which binding upon such Selling Stockholder is a party or by which such Selling Stockholder is bound any judgment, order or to which any of the property or assets of such Selling Stockholder is subject, (ii) result in any violation of the provisions of the charter or by-laws or deed of trust (or similar organizational documents) of such Selling Stockholder, or (iii) result in any violation decree of any statute or any ordergovernmental body, rule or regulation of any court or governmental agency or body court having jurisdiction over such Selling Stockholder or the property or assets of such Selling Stockholder.
(g) No , and no consent, approval, authorization or order of, or filing or registration qualification with, any court governmental body or governmental agency or body having jurisdiction over such Selling Stockholder or the property or assets of such Selling Stockholder is required for the execution, delivery and performance of this Agreement by such Selling Stockholder and the consummation by such Selling Stockholder of its obligations under this Agreement or the transactions contemplated hereby and therebyCustody Agreement or the Power of Attorney of such Selling Stockholder, except for the registration of the Shares under the Securities Act and such consents, approvals, authorizations, registrations or qualifications as may be required under by the Exchange Act and applicable state securities or Blue Sky laws of the various states in connection with the purchase offer and sale of the Shares.
(d) Certificates in negotiable form for such Selling Stockholder's Shares have been placed in custody, for delivery pursuant to the terms of this Agreement, under the Custody Agreement and the Power of Attorney, and the shares of Common Stock represented by the Underwritercertificates so held in custody for such Selling Stockholder are subject to the interests hereunder of the Underwriters and the Company. The arrangements for custody and delivery of such certificates, made by such Selling Stockholder hereunder and under the Custody Agreement and the Power of Attorney are not subject to termination by any acts of the Selling Stockholder, or by operation of law, whether by death or incapacity of any person acting on behalf of the Selling Stockholder or the occurrence of any other event, and if such death, incapacity or any other such event shall occur before the delivery of the Selling Stockholder's Shares hereunder, certificates for such Shares will be delivered by the Custodian in accordance with the terms and conditions of this Agreement, the Custody Agreement and the Power of Attorney as if such death, incapacity or other event had not occurred, regardless of whether the Custodian shall have received notice of such death, incapacity or other event.
(e) Each Selling Stockholder has valid title to, and is the owner of record in the stock records of the Company of, the Shares to be sold by such Selling Stockholder pursuant to this Agreement. The Shares to be sold by such Selling Stockholder pursuant to this Agreement are certificated securities in registered form and are not held by or through any securities intermediary within the meaning of the Uniform Commercial Code as in effect in the State of New York (the "NYUCC"). Such Selling Stockholder has, and, at the Closing Date and the Additional Closing Date, if applicable, will have, full right, power and authority to hold, sell, transfer and deliver the Shares to be sold by such Selling Stockholder hereunder. Upon the delivery to the Depository Trust Company ("DTC") or its agent of the Shares registered in the name of Cede & Co., as nominee for DTC against payment by the several Underwriters therefor, and the crediting by DTC of the Shares to the securities accounts of the several Underwriters with DTC, DTC will be a "protected purchaser" of the Shares (as defined in Section 8-303 of the NYUCC) and will acquire its interest in the Shares (including, without limitation, all rights that such Selling Stockholders had or has the power to transfer in such Shares) free of any adverse claim (as defined in Section 8-102(a)(1) of the NYUCC) assuming neither DTC nor any Underwriter has notice of any adverse claim. The Underwriters will acquire valid security entitlements (within the meaning of Section 8-501 of the NYUCC) in respect of the Shares to be purchased by them, and no action (whether framed in conversion, replevin, constructive trust, equitable lien, or other theory) based on an adverse claim to such Shares may be asserted against the Underwriters assuming they have no notice of any adverse claim.
(f) Such Selling Stockholder does not directly or indirectly have any registration or other similar rights to have any equity or debt securities registered for sale by the Company under the Registration Statement or included in the offering contemplated by this Agreement, other than as described in the Registration Statement and as have been waived in writing in connection with the offering contemplated hereby.
(g) The Selling Stockholder (i) does not directly or indirectly have any preemptive right, co-sale right or right of first refusal or other similar right to purchase any of the Shares that are to be sold by the Underwriters pursuant to this Agreement, and (ii) does not directly or indirectly own any warrants, options or similar rights to acquire, and does not directly or indirectly have any right or arrangement to acquire, any capital stock, rights, warrants, options or other securities from the Company, other than as described in the Registration Statement.
(h) All material information with respect to such Such Selling Stockholder contained in each has not taken, and will not take, directly or indirectly, any action designed to cause or result in, or which constitutes or which might reasonably be expected to constitute, the stabilization or manipulation of the price of the shares of Common Stock to facilitate the sale or resale of the Shares.
(i) At the time of the effectiveness of the Registration Statement or the effectiveness of any post-effective amendment to the Registration Statement, when the Prospectus and the Pricing Disclosure Package (as amended and supplemented, if the Company shall have is first filed with the Commission pursuant to Rule 424(b) or Rule 434, when any supplement to or amendment or supplement thereto) (i) complied and will comply in all material respects with all applicable provisions of the Securities Act Prospectus is filed with the Commission and at the Closing Date and the Rules and RegulationsAdditional Closing Date, (ii) contains and will contain all statements of material fact required to be stated therein in accordance with if any, the Securities Act Registration Statement and the Rules Prospectus and Regulations, any amendments thereof and (iii) does supplements thereto did not and will not contain an untrue statement of a material fact or and did not and will not omit to state a any material fact required to be stated therein or necessary in order to make the statements therein (i) in the case of the Registration Statement, not misleading and (ii) in the case of the Prospectus or any related Preliminary Prospectus in light of the circumstances under which they were made, not misleading. Solely When any related Preliminary Prospectus was first filed with the Commission (whether filed as part of the Registration Statement for the registration of the Shares or any amendment thereto or pursuant to Rule 424(a) under the Securities Act) and when any amendment thereof or supplement thereto was first filed with the Commission, such Preliminary Prospectus and any amendments thereof and supplements thereto did not contain an untrue statement of a material fact and did not omit to state any material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading. No representation and warranty is made in this subsection (i), however, with respect to any information contained in or omitted from the Metalmark Selling Stockholders Registration Statement or the Prospectus or any related Preliminary Prospectus or any amendment thereof or supplement thereto in reliance upon and in conformity with the Underwriters' Information, it being understood and agreed that the only such information is that described as such in the penultimate sentence of Section 1(b).
(j) Except as defined disclosed in Schedule I hereto)the Prospectus, there are no contracts, agreements or understandings between such Selling Stockholder and any person that would give rise to a valid claim against such Selling Stockholder or any Underwriter for a brokerage commission, finder's fee or other like payment in connection with this offering.
(k) Such Selling Stockholder, without independent verification, has no reason to believe that the representations and warranties of the Company contained in Section 1 hereof are not true and correct, is familiar with the Registration Statement and the Prospectus and has no knowledge of any material fact, condition or information not disclosed in the Registration Statement or the Prospectus which has had or may reasonably be expected to have a Material Adverse Effect on the Company and the Subsidiaries, individually or taken as a whole, and is not prompted to sell any of the Shares by any material non-public information relating to the business, results of operations or prospects of concerning the Company and its subsidiaries of an adverse nature that which is required to be disclosed not set forth in the Registration Statement, the Pricing Disclosure Package or Statement and the Prospectus. For this purpose, information that is set forth or incorporated by reference in the Registration Statement, the Pricing Disclosure Package or the Prospectus or that otherwise has been made publicly available about the Company shall be deemed to be public information, and any opinion or conclusion that a Metalmark Selling Stockholder may hold, or analysis performed by a Metalmark Selling Stockholder, in its capacity as an investor about the business, results of operations or prospects of the Company and its subsidiaries shall not be information that relates to the business, results of operations or prospects of the Company.
(il) Such Selling Stockholder has not taken and will not take, directly or indirectly, any action that is designed to or that has constituted or that could reasonably be expected to cause or result in the stabilization or manipulation of the price of any security of the Company to facilitate the sale or resale of the Shares.
(j) The sale of the Shares by such Selling Stockholder does not violate any of the Company’s internal policies regarding the sale of stock by its affiliates. Any Each certificate signed by any officer or other representative of any such Selling Stockholder and delivered to the Underwriter Underwriters or counsel for the Underwriter in connection with the offering of the Shares Underwriters' Counsel pursuant to this Agreement shall be deemed to be a representation and warranty by such Selling Stockholder, Stockholder to the Underwriters as to the matters covered thereby, to the Underwriter.
Appears in 2 contracts
Samples: Underwriting Agreement (Movie Gallery Inc), Underwriting Agreement (Movie Gallery Inc)
Representations and Warranties of the Selling Stockholders. Each Selling Stockholder, severally and not jointly, represents and warrants to and agrees with each of the Underwriters that:
(a) Neither such Selling Stockholder nor any person acting This Agreement has been duly authorized, executed and delivered by or on behalf of such Selling Stockholder (other than, if applicable, the Company and the Underwriter) has used or referred to any “free writing prospectus” (as defined in Rule 405), relating to the SharesStockholder.
(b) Such Selling Stockholder has, and immediately prior to on the Closing Date on which such Selling Stockholder is selling the Shares, such Selling Stockholder will have, good and valid title to to, or a valid “security entitlement” within the meaning of Section 8-501 of the New York Uniform Commercial Code (the “UCC”) in respect of, the Shares to be sold by such Selling Stockholder hereunder on such Closing Date free and clear of all lienssecurity interests, encumbrancesclaims, equities liens or claimsother 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 such Selling Stockholder or a security entitlement in respect of such Shares.
(c) Upon payment for the Shares to be sold by such Selling StockholderStockholder pursuant to this Agreement, delivery of such Shares, as directed by the UnderwriterUnderwriters, to Cede & Co. (“Cede”) or such other nominee as may be designated by The the Depository Trust Company (“DTC”), registration of such Shares in the name of Cede or such other nominee (unless delivery of such Shares is unnecessary because such Shares are already in possession of Cede or such nominee) and the crediting of such Shares on the books of DTC to securities accounts (within the meaning of Section 8-501(a) of the Underwriter UCC) of the Underwriters (assuming that neither DTC nor the any such Underwriter has notice of any adverse claim (within the meaning of Section 8-105 of the UCC) to such Shares), (i) DTC shall be a “protected purchaser” of such Shares within the meaning of Section 8-303 of the UCC, (iiA) under Section 8-501 of the UCC, the Underwriter Underwriters will acquire a valid security entitlement in respect of such Shares and (iiiB) no action based on any “adverse claim,” within the meaning of Section 8-102 of the UCC, to such Shares may be successfully asserted against the Underwriter Underwriters with respect to such security entitlement. For ; for purposes of this representation, such Selling Stockholder may assume assumes that when such payment, delivery and crediting occur, (Ax) 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, (By) DTC will be registered as a “clearing corporation” within the meaning of Section 8-102 of the UCC and UCC, (Cz) appropriate entries to the accounts of the Underwriter several Underwriters on the records of DTC will have been made pursuant to the UCC, (aa) no rule adopted by a clearing corporation governing rights and obligations among the clearing corporation and its participants in the clearing corporation conflicts with Article 8 of the UCC, (bb) 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 (cc) if at any time DTC or any other securities intermediary does not have sufficient Shares to satisfy claims of all of its entitlement holders with respect thereto then all holders will share pro rata in the Shares then held by DTC or such securities intermediary.
(d) Such Selling Stockholder has full right, power and authority, corporate or otherwise, to enter into this Agreement.
(e) This Agreement has been duly and validly authorized, executed and delivered by or on behalf of such Selling Stockholder.
(fi) The execution, delivery and performance of this Agreement by such Selling Stockholder and the consummation by such Selling Stockholder of the transactions contemplated hereby and thereby 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, any indenture, mortgage, deed of trust, loan agreement, license or other agreement or instrument to which such Selling Stockholder is a party or by which such Selling Stockholder is bound or to which any of the property or assets of such Selling Stockholder is subject, (ii) result in any violation of the provisions of the charter or by-laws or deed of trust (or similar organizational documents) of such Selling Stockholder, or (iii) result in any violation of any statute or any order, rule or regulation of any court or governmental agency or body having jurisdiction over such Selling Stockholder or the property or assets of such Selling Stockholder.
(g) No consent, approval, authorization or order of, or filing or registration with, any court or governmental agency or body having jurisdiction over such Selling Stockholder or the property or assets of such Selling Stockholder is required for the execution, delivery and performance of this Agreement by such Selling Stockholder and the consummation by such Selling Stockholder of the transactions contemplated hereby and thereby, except for the registration of the Shares under the Securities Act and such consents, approvals, authorizations, registrations or qualifications as may be required under the Exchange Act and applicable state securities laws in connection with the purchase and sale of the Shares by the Underwriter.
(h) All material information with respect to such Selling Stockholder contained in each of the Registration Statement, the Prospectus and the Pricing Disclosure Package (when it became effective, did not contain and, as amended and or supplemented, if applicable, will not contain, as of the Company shall have filed with the Commission any date of such amendment or supplement thereto) (i) complied and will comply in all material respects with all applicable provisions of the Securities Act and the Rules and Regulationssupplement, (ii) contains and will contain all statements of material fact required to be stated therein in accordance with the Securities Act and the Rules and Regulations, and (iii) does not and will not contain an 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. Solely , (ii) the Time of Sale Prospectus does not, as of the date of this Agreement, and at the time of each sale of the Shares in connection with respect the offering when the Prospectus is not yet available to prospective purchasers and at the Metalmark Selling Stockholders Closing Date (as defined in Schedule I heretoSection 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 required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading, and (iii) the Prospectus does not contain and, as amended or supplemented, if applicable, will not contain any untrue statement of a material fact or omit to state a material fact 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; provided, that the representations and warranties set forth in this paragraph 2(d) are limited in all respects to statements or omissions made (and only to the extent made) in reliance upon and in conformity with information relating to such Selling Stockholder is not prompted to sell the Shares by any material non-public information relating furnished to the business, results of operations or prospects of the Company and its subsidiaries of an adverse nature that is required to be disclosed in writing by such Selling Stockholder expressly for use in the Registration Statement, the Pricing Disclosure Package or the Time of Sale Prospectus. For this purpose, information that is set forth or incorporated by reference in the Registration Statement, the Pricing Disclosure Package or the Prospectus or any amendments or supplements thereto, it being understood and agreed that otherwise has been made publicly available about the Company shall be deemed to be public information, and any opinion or conclusion that a Metalmark only information furnished by such Selling Stockholder may hold, or analysis performed by a Metalmark consists of the name of such Selling Stockholder, the number of offered shares and the address and other information with respect to such Selling Stockholder (excluding percentages) which appear in its capacity the Time of Sale Prospectus in the table (and corresponding footnote(s)) under the caption “Selling Stockholders” (with respect to each Selling Stockholder, the “Selling Stockholder Information”).
(e) Such Selling Stockholder has executed a “lock-up” agreement, substantially in the form of Exhibit A hereto, relating to sales and certain other dispositions of shares of Common Stock or certain other securities, that is in full force and effect as an investor about the business, results of operations or prospects of the Company date hereof and its subsidiaries shall be in full force and effect as of the Closing Date.
(f) Such Selling Stockholder has not be information taken, directly or indirectly, any action designed to or that relates would result in stabilization or manipulation of the price of the Shares or of any “reference security” (as defined in Rule 100 of Regulation M) with respect to the businessShares, results of operations whether to facilitate the sale or prospects resale of the CompanyShares or otherwise, and has taken no action which would directly or indirectly violate Regulation M.
(g) The execution and delivery by such Selling Stockholder of, and the performance by such Selling Stockholder of its obligations under, this Agreement will not contravene or conflict with, result in a breach of, or constitute a default under, or require the consent of any other party to, the charter or by-laws, partnership agreement, trust agreement or other organizational documents of such Selling Stockholder or any other agreement or instrument to which such Selling Stockholder is a party or by which it is bound or under which it is entitled to any right or benefit, any provision of applicable law or any judgment, order, decree or regulation applicable to such Selling Stockholder of any court, regulatory body, administrative agency, governmental body or arbitrator having jurisdiction over such Selling Stockholder, except as would not, individually or in the aggregate, materially interfere with such Selling Stockholder’s ability to perform its obligations under this Agreement. No consent, approval, authorization or other order of, or registration or filing with, any court or other governmental authority or agency, is required for the consummation by such Selling Stockholder of the transactions contemplated in this Agreement, except (i) such as has been obtained or (ii) such as may be required under the Securities Act, applicable state securities or Blue Sky laws, and from FINRA.
(h) Such Selling Stockholder is not currently subject to any Sanctions and will not directly or, to its knowledge, indirectly use the proceeds of this offering, or lend, contribute or otherwise make available such proceeds to any subsidiary, or any joint venture partner or other person or entity, for the purpose of financing the activities of any person currently subject to any Sanctions or 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) of Sanctions.
(i) Such Selling Stockholder has is not taken and will prompted to sell Shares by any information concerning the Company which is not take, directly or indirectly, any action that is designed to or that has constituted or that could reasonably be expected to cause or result set forth in the stabilization or manipulation Registration Statement, the Time of Sale Prospectus and the price of any security of the Company to facilitate the sale or resale of the SharesProspectus.
(j) The sale Prior to the later of (i) the expiration or termination of the Shares by option granted to the Underwriters under Section 3 and (ii) the completion of the Underwriters’ distribution of the Shares, such Selling Stockholder does has not violate distributed and will not distribute any of the Company’s internal policies regarding the sale of stock by its affiliates. Any certificate signed by any officer of any Selling Stockholder and delivered to the Underwriter or counsel for the Underwriter offering material in connection with the offering and sale of the Shares shall be deemed a representation and warranty by such Selling Stockholderother than the Registration Statement, the Preliminary Prospectus, free writing prospectuses, if any, as to matters covered therebyset forth in Schedule II hereto, to and the UnderwriterProspectus.
Appears in 2 contracts
Samples: Underwriting Agreement (NOODLES & Co), Underwriting Agreement (Mill Road Capital II, L.P.)
Representations and Warranties of the Selling Stockholders. Each Selling Stockholder, Stockholder severally and not jointly, represents and warrants that:
(a) Neither such Selling Stockholder nor any person acting on behalf of such Selling Stockholder (other than, if applicable, the Company and the Underwriter) has used or referred to any “free writing prospectus” (as defined in Rule 405), relating to the Shares.
(b) Such The Selling Stockholder has, and immediately prior to the Closing Date on which such Selling Stockholder is selling Time and at the Shares, such Option Exercise Time 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 (the “UCC”) in respect of, the Option Shares to be sold by such the Selling Stockholder hereunder on such Closing Date date, free and clear of all liens, encumbrances, equities or claims; and upon delivery of such shares and payment therefor pursuant hereto and thereto, good and valid title to such shares, free and clear of all liens, encumbrances, equities or claims, will pass to the several Underwriters.
(b) The Selling Stockholder has placed in custody under a custody agreement (the "Custody Agreement" and, together with the similar agreement executed by the other Selling Stockholder, the "Custody Agreements") with Squire, Sandxxx & Xempxxx, xx custodian (the "Custodian"), for delivery under this Agreement, certificates in negotiable form (with signature guaranteed by a commercial bank or trust company having an office or correspondent in the United States or a member firm of the New York or American Stock Exchanges) representing the Option Shares to be sold by the Selling Stockholder hereunder.
(c) Upon payment for The Selling Stockholder has duly and irrevocably executed and delivered a power of attorney (the Shares to be sold "Power of Attorney" and, together with the similar power of attorney executed by such the other Selling Stockholder, delivery the "Powers of such SharesAttorney") appointing the Custodian and one or more other persons, as directed attorneys-in-fact, with full power of substitution, and with full authority (exercisable by the Underwriter, any one or more of them) to Cede & Co. (“Cede”) or execute and deliver this Agreement and to take such other nominee action as may be designated by The Depository Trust Company (“DTC”), registration of such Shares in necessary or desirable to carry out the name of Cede or such other nominee and the crediting of such Shares provisions hereof on the books of DTC to securities accounts behalf of the Underwriter (assuming that neither DTC nor the Underwriter has notice of any adverse claim (within the meaning of Section 8-105 of the UCC) to such Shares), (i) DTC shall be a “protected purchaser” of such Shares within the meaning of Section 8-303 of the UCC, (ii) under Section 8-501 of the UCC, the Underwriter will acquire a valid security entitlement in respect of such Shares and (iii) no action based on any “adverse claim,” within the meaning of Section 8-102 of the UCC, to such Shares may be asserted against the Underwriter with respect to such security entitlement. For purposes of this representation, such Selling Stockholder may assume that when such payment, delivery and crediting occur, (A) such Shares will have been registered in the name of Cede or another nominee designated by DTC, in each case on the Company’s share registry in accordance with its certificate of incorporation, bylaws and applicable law, (B) DTC will be registered as a “clearing corporation” within the meaning of Section 8-102 of the UCC and (C) appropriate entries to the accounts of the Underwriter on the records of DTC will have been made pursuant to the UCCStockholder.
(d) Such The Selling Stockholder has full right, power and authority, corporate or otherwise, authority to enter into this Agreement.
(e) This Agreement has been duly , the Power of Attorney and validly authorized, executed and delivered by or on behalf of such Selling Stockholder.
(f) The the Custody Agreement; the execution, delivery and performance of this Agreement, the Power of Attorney and the Custody Agreement by such the Selling Stockholder and the consummation by such the Selling Stockholder of the transactions contemplated hereby and thereby 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, any indenture, mortgage, deed of trust, loan agreement, license agreement or other agreement or instrument to which such the Selling Stockholder is a party or by which such the Selling Stockholder is bound or to which any of the property or assets of such the Selling Stockholder is subject, (ii) nor will such actions result in any violation of the provisions of the charter or by-laws or deed of trust (or similar organizational documents) of such Selling Stockholder, or (iii) result in any violation of any statute or any order, rule or regulation of any court or governmental agency or body having jurisdiction over such the Selling Stockholder or the property or assets of such the Selling Stockholder.
(g) No consent, approval, authorization or order of, or filing or registration with, any court or governmental agency or body having jurisdiction over such Selling Stockholder or the property or assets of such Selling Stockholder is required for the execution, delivery and performance of this Agreement by such Selling Stockholder and the consummation by such Selling Stockholder of the transactions contemplated hereby and thereby; and, except for the registration of the Option Shares under the Securities Act and such consents, approvals, authorizations, registrations or qualifications registrations
(e) The Registration Statement and the Prospectus do not and will not, as may be required under the Exchange Act and applicable state securities laws in connection with the purchase and sale of the Shares by applicable effective date (as to the Underwriter.
(hRegistration Statement and any amendment thereto) All material information with respect to such Selling Stockholder contained in each and as of the Registration Statement, applicable filing date (as to the Prospectus and the Pricing Disclosure Package (as amended and supplemented, if the Company shall have filed with the Commission any amendment or supplement thereto) (i) complied and will comply in all material respects with all applicable provisions of the Securities Act and the Rules and Regulations, (ii) contains and will contain all statements of material fact required to be stated therein in accordance with the Securities Act and the Rules and Regulations, and (iii) does not and will not contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary in order to make the statements therein not misleading. Solely ; provided that no representation or warranty is made as to information contained in or omitted from the Registration Statement or the Prospectus in reliance upon and in conformity with respect written information furnished to the Metalmark Selling Stockholders Company through the Representatives by or on behalf of any Underwriter specifically for inclusion therein.
(as defined in Schedule I hereto), such f) The Selling Stockholder is not prompted has no reason to sell believe that the Shares by any material non-public information relating to the business, results of operations or prospects representations and warranties of the Company contained in Section 2 hereof are not materially true and its subsidiaries correct, is familiar with the Registration Statement and the Prospectus (as amended or supplemented) and has no knowledge of an adverse nature that is required to be any material fact, condition or information not disclosed in the Registration Statement, as of the Pricing Disclosure Package or the Prospectus. For this purposeeffective date, information that is set forth or incorporated by reference in the Registration Statement, the Pricing Disclosure Package or the Prospectus (or that otherwise any amendment or supplement thereto), as of the applicable filing date, which has been made publicly available about adversely affected or may adversely affect the Company shall be deemed to be public information, and any opinion or conclusion that a Metalmark Selling Stockholder may hold, or analysis performed by a Metalmark Selling Stockholder, in its capacity as an investor about the business, results of operations or prospects business of the Company and its subsidiaries shall is not be prompted to sell shares of Common Stock by any information that relates to concerning the business, results of operations or prospects of Company which is not set forth in the CompanyRegistration Statement and the Prospectus.
(ig) Such The Selling Stockholder has not taken and will not take, directly or indirectly, any action that which is designed to or that which has constituted or that could which might reasonably be expected to cause or result in the stabilization or manipulation of the price of any security of the Company to facilitate the sale or resale of the Shares.
(jh) The sale of the Shares by such Such Selling Stockholder does has not violate distributed and will not distribute any of the Company’s internal policies regarding the sale of stock by its affiliates. Any certificate signed by any officer of any Selling Stockholder and delivered to the Underwriter prospectus or counsel for the Underwriter other offering material in connection with the offering and sale of the Shares shall be deemed a representation and warranty by such Selling Stockholder, as to matters covered thereby, to the UnderwriterShares.
Appears in 2 contracts
Samples: Underwriting Agreement (Team America Corporation), Underwriting Agreement (Team America Corporation)
Representations and Warranties of the Selling Stockholders. Each Selling StockholderStockholder represents, warrants and covenants to the Company and the Underwriters, severally and not jointly, represents and warrants thatas follows:
(a) Neither such Selling Stockholder nor any person acting This Agreement has been duly authorized, executed and delivered by or on behalf of such Selling Stockholder (other than, if applicable, the Company and the Underwriter) has used or referred to any “free writing prospectus” (as defined in Rule 405), relating to the SharesStockholder.
(b) Such Selling Stockholder has, and immediately prior to the Closing Date on which If such Selling Stockholder is selling the Sharesa Xxxxxxx Selling Stockholder, such Selling Stockholder will have, good and valid title to or a valid “security entitlement” within the meaning of Section 8(i) book-501 entry entitlements representing all of the New York Uniform Commercial Code (the “UCC”) in respect of, the Shares Securities to be sold by such Selling Stockholder hereunder have been placed in custody under a Custody Agreement, in the form heretofore furnished to you (the “Custody Agreement”), duly executed and delivered by such Selling Stockholder to Broadridge Corporate Issuer Solutions, Inc., as custodian (the “Custodian”), and (ii) such Selling Stockholder shall have duly executed and delivered a Power of Attorney, in the form heretofore furnished to you (the “Power of Attorney”), appointing Xxx Xxxxx, Xxxxxxx Xxxxxxxx, and Xxxx Xxxxxxx, and each of them, as such Selling Stockholder’s attorneys-in-fact (the “Attorneys-in-Fact”) with authority to execute and deliver this Agreement on behalf of such Closing Date free Selling Stockholder, to determine the purchase price to be paid by the Underwriters to the Selling Stockholders as provided in Section 3 hereof, to execute and clear deliver a Stock Power relating to the Underwritten Securities to be sold by such Selling Stockholder (the “Stock Power”), to authorize the delivery of all liens, encumbrances, equities or claimsthe Securities to be sold by such Selling Stockholder hereunder and to otherwise to act on behalf of such Selling Stockholder in connection with the transactions contemplated by this Agreement and the Custody Agreement.
(c) Upon payment for the Shares Underwritten Securities to be sold by such Selling StockholderStockholders pursuant to this Agreement, delivery of such SharesUnderwritten Securities, as directed by the UnderwriterRepresentatives, to Cede & Co. (“Cede”) or such other nominee as may be designated by The Depository Trust Company (“DTC”), registration of such Shares Underwritten Securities in the name of Cede or such other nominee and the crediting of such Shares Securities on the books of DTC to the securities accounts account of the Underwriter Underwriters (assuming that neither DTC nor the Underwriter 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 SharesSecurities), (iA) DTC shall be a “protected purchaser” of such Shares Underwritten Securities within the meaning of Section 8-303 of the UCC, (iiB) under Section 8-501 of the UCC, the Underwriter Underwriters will acquire a valid security entitlement in respect of such Shares Underwritten Securities and (iiiC) no action based on any “adverse claim,” ”, within the meaning of Section 8-102 of the UCC, to such Shares Underwritten Securities may be successfully asserted against the Underwriter Underwriters with respect to such security entitlement. For ; for purposes of this representation, such Selling Stockholder may assume that when such payment, delivery and crediting occur, (Ax) such Shares Underwritten Securities will have been registered in the name of Cede or another nominee designated by DTC, in each case on the Company’s share registry in accordance with its certificate of incorporation, bylaws and applicable law, (By) DTC will be registered as a “clearing corporation” within the meaning of Section 8-102 of the UCC and (Cz) appropriate entries entry to the accounts account of the Underwriter Underwriters on the records of DTC will have been made pursuant to the UCC.
(d) Such Selling Stockholder has full right, power The execution and authority, corporate or otherwise, to enter into this Agreement.
(e) This Agreement has been duly and validly authorized, executed and delivered delivery by or on behalf of such Selling Stockholder.
(f) The execution, delivery and performance of this Agreement by or such Selling Stockholder Stockholder’s Attorneys-in-Fact, as applicable, of, and the consummation performance by such Selling Stockholder of its obligations under, this Agreement, and, if such Selling Stockholder is a Xxxxxxx Selling Stockholder, the transactions contemplated hereby Power of Attorney, the Custody Agreement and thereby do not and Stock Power, will not (i) contravene or conflict with or with, result in a breach or violation of any of the terms or provisions of, or constitute a default (or, with the giving of notice or lapse of time, would be in default) under, or require the consent of any indentureother party to, mortgage(i) in the case of the KKR Selling Stockholders, deed of trust, loan the limited partnership agreement or the limited liability company agreement, license as applicable, of the KKR Selling Stockholders, (ii) in the case of the Xxxxxxx Selling Stockholders, the limited partnership agreement or limited liability company agreement, as applicable, of the Xxxxxxx Selling Stockholders, (iii) any other agreement or instrument to which such Selling Stockholder is a party or by which it is bound or (iv) any provision of applicable law or any judgment, order, decree or regulation applicable to such Selling Stockholder is bound or to which any of the property or assets of such Selling Stockholder is subject, (ii) result in any violation of the provisions of the charter or by-laws or deed of trust (or similar organizational documents) of such Selling Stockholder, or (iii) result in any violation of any statute court, regulatory body, administrative agency, governmental body or any order, rule or regulation of any court or governmental agency or body arbitrator having jurisdiction over such Selling Stockholder Stockholder, except, in the case of the foregoing clauses (iii) and (iv) as would not, individually or in the property or assets of aggregate, reasonably be expected to materially impact such Selling Stockholder.
(g) ’s ability to perform its obligations under this Agreement. No consent, approval, authorization or other order of, or registration or filing or registration with, any court or other governmental agency authority or body having jurisdiction over such Selling Stockholder or the property or assets of such Selling Stockholder agency, is required for the execution, delivery and performance of this Agreement by such Selling Stockholder and the consummation by such Selling Stockholder of the transactions contemplated hereby in this Agreement or, if such Selling Stockholder is a Xxxxxxx Selling Stockholder, under the Power of Attorney, the Custody Agreement and therebythe Stock Power, except for the registration of the Shares under the Securities Act and such consents, approvals, authorizations, registrations or qualifications as may be required under the Securities Act, the Exchange Act and Act, applicable state securities or blue sky laws in connection with and from the purchase FINRA and sale of such other approvals as have been or will be made or obtained on or prior to the Shares by the UnderwriterClosing Date.
(he) All material information with respect furnished to the Company or the Underwriters by or on behalf of such Selling Stockholder contained in each of writing expressly for use in the Registration Statement, the Prospectus and the Pricing Disclosure Package (as amended or the Prospectus is, and supplementedon the Closing Date will be, if the Company shall have filed with the Commission any amendment or supplement thereto) (i) complied true, correct and will comply complete in all material respects with all applicable provisions respects, and did not, as of the Securities Act and the Rules and Regulations, (ii) contains and will contain all statements of material fact required to be stated therein in accordance with the Securities Act and the Rules and RegulationsExecution Time, and (iii) does not and on the Closing Date will not not, contain an any untrue statement of a material fact or omit to state a any material fact required to be stated therein or necessary in order to make the statements therein such information not misleading. Solely , it being understood and agreed that the only such information consists of the name of such Selling Stockholder, the number of total shares beneficially owned, the number of offered shares and the address and other information with respect to the Metalmark Selling Stockholders (as defined in Schedule I hereto), such Selling Stockholder is not prompted to sell (excluding percentages) under the Shares by any material non-public information relating to the business, results of operations or prospects of the Company and its subsidiaries of an adverse nature that is required to be disclosed caption “Selling Stockholders” in the Registration Statement, the Pricing Disclosure Package or and the Prospectus. For this purposeProspectus (such information, information that is set forth or incorporated by reference in the “Selling Stockholders Information”).
(f) Other than the Registration Statement, the Pricing Preliminary Prospectus, the Disclosure Package and the Prospectus, such Selling Stockholder (including its agents and representatives, other than the Underwriters in their capacity as such) has not prepared, made, used, authorized, approved or the referred to and will not prepare, make, use, authorize, approve or refer to any Issuer Free Writing Prospectus or that otherwise has been made publicly available about Written Testing-the-Waters Communication, other than (i) any document not constituting a prospectus pursuant to Section 2(a)(10)(a) of the Company shall be deemed to be public informationSecurities Act or Rule 134 under the Securities Act or (ii) the documents listed in Schedule II hereto, each electronic road show and any opinion or conclusion that a Metalmark Selling Stockholder may hold, or analysis performed other written communications approved in writing in advance by a Metalmark Selling Stockholder, in its capacity as an investor about the business, results of operations or prospects of the Company and its subsidiaries shall not be information that relates to the business, results of operations or prospects of the CompanyRepresentatives.
(ig) Such Selling Stockholder has not taken and will not take, directly or indirectly, any action that is designed to or that has constituted or that could might reasonably be expected to cause or result in the stabilization or manipulation of the price of any security of the Company to facilitate the sale or resale of the Shares.
(j) The sale of the Shares by such Selling Stockholder does not violate any of the Company’s internal policies regarding the sale of stock by its affiliatesSecurities. Any certificate signed by any officer or on behalf of any such Selling Stockholder and delivered to the Underwriter Representatives or to counsel for the Underwriter Underwriters in connection with the offering of the Shares Securities shall be deemed a representation and warranty by such Selling Stockholder, Stockholder to the Underwriters as to the matters covered therebythereby with respect to such Selling Stockholder. Such Selling Stockholder has a reasonable basis for making each of the representations set forth in this Section 2. Such Selling Stockholder acknowledges that the Underwriters and, for purposes of the opinions to be delivered pursuant to Sections 8(b)(i) and (iii) and Section 8(c) hereof, counsel to such Selling Stockholder and counsel to the UnderwriterUnderwriters, will rely upon the accuracy and truthfulness of the foregoing representations and hereby consents to such reliance.
Appears in 2 contracts
Samples: Underwriting Agreement (Academy Sports & Outdoors, Inc.), Underwriting Agreement (Academy Sports & Outdoors, Inc.)
Representations and Warranties of the Selling Stockholders. (a) Each Selling Stockholder, severally and not jointly, represents and warrants that:
(a) Neither such Selling Stockholder nor any person acting on behalf of such Selling Stockholder (other thanto, if applicableand agrees with, the Company and each Underwriter as of the Underwriter) has used or referred to any “free writing prospectus” (Representation Date, as defined in Rule 405), relating to the Shares.follows:
(bi) Such Selling Stockholder hasis, and immediately prior to or upon the Closing Date on which such Selling Stockholder is selling the Shares, such Selling Stockholder will have, good and valid title to exercise of options or a valid “security entitlement” within the meaning warrants or conversion of Section 8-501 shares of Series A Cumulative Participating Convertible Preferred Stock of the New York Uniform Commercial Code Company (the “UCC”"Series A Stock") in respect ofwill be, the lawful owner of the Shares to be sold by such Selling Stockholder hereunder pursuant to this Agreement and has (or upon the exercise of options or warrants or conversion of shares of Series A Stock of the Company will have), and on such each Closing Date free Date, as applicable, will have, good, valid and clear title to such Shares, free of any and all restrictions on transfer, liens, encumbrances, equities or claimssecurity interests, equities, claims and other defects whatsoever, except for such restrictions on transfer as do not restrict the sale of the Shares to the Underwriters hereunder.
(cii) Such 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 such Selling Stockholder in the manner provided herein.
(iii) This Agreement has been duly executed and delivered by or on behalf of such Selling Stockholder and is a legal, valid and binding agreement of such Selling Stockholder, except as rights to indemnity and contribution hereunder may be limited by federal or state securities laws or public policy underlying such laws, and except as enforceability may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or other laws affecting the enforcement of creditors' rights generally and by equitable principles (whether enforcement is sought by proceedings in equity or at law).
(iv) Upon delivery of and payment for the Shares to be sold by such Selling StockholderStockholder pursuant to this Agreement, delivery of such Shares, as directed by the Underwriter, to Cede & Co. (“Cede”) or such other nominee as may be designated by The Depository Trust Company (“DTC”), registration of such Shares in the name of Cede or such other nominee and the crediting of such Shares on the books of DTC to securities accounts of the Underwriter (assuming that neither DTC nor the Underwriter has several Underwriters shall have purchased the Shares for value in good faith and without notice of any adverse claim (within the meaning of Section 8-105 the Uniform Commercial Code as adopted in the State of the UCC) to such SharesNew York), (i) DTC shall be a “protected purchaser” of such Shares within the meaning of Section 8-303 of the UCCgood, (ii) under Section 8-501 of the UCC, the Underwriter will acquire a valid security entitlement in respect of such Shares and (iii) no action based on any “adverse claim,” within the meaning of Section 8-102 of the UCC, clear title to such Shares may be asserted against the Underwriter with respect to such security entitlement. For purposes of this representation, such Selling Stockholder may assume that when such payment, delivery and crediting occur, (A) such Shares will have been registered in the name of Cede or another nominee designated by DTC, in each case on the Company’s share registry in accordance with its certificate of incorporation, bylaws and applicable law, (B) DTC will be registered as a “clearing corporation” within the meaning of Section 8-102 of the UCC and (C) appropriate entries pass to the accounts Underwriters, free and clear of the Underwriter all restrictions on the records of DTC will have been made pursuant to the UCCtransfer, liens, encumbrances, security interests, equities, claims and defects whatsoever.
(d) Such Selling Stockholder has full right, power and authority, corporate or otherwise, to enter into this Agreement.
(e) This Agreement has been duly and validly authorized, executed and delivered by or on behalf of such Selling Stockholder.
(fv) The execution, delivery and performance of this Agreement by such Selling Stockholder, the compliance by such Selling Stockholder with all the provisions hereof and the consummation by such Selling Stockholder of the transactions contemplated hereby and thereby do not and will not (iA) require such 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 Act and the Exchange Act or 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, any indenture, loan agreement, mortgage, deed of trust, loan agreementlease, license or other agreement or instrument to which such Selling Stockholder is a party or by which such Selling Stockholder is bound or to which any of the property or assets of such Selling Stockholder is subjectbound, (ii) result in any violation of the provisions of the charter or by-laws or deed of trust (or similar organizational documents) of except for such as would not adversely affect such Selling Stockholder's ability to perform its obligations hereunder, or (iiiC) result in to his knowledge, violate or conflict with any violation of any statute applicable federal, state, local or any orderforeign law, rule statute, rule, regulation or regulation judgment, order or decree of any court or any governmental body or agency or body having jurisdiction over such Selling Stockholder or the any property or assets of such Selling Stockholder.
(gvi) No consent, approval, authorization or order of, or filing or registration with, any court or governmental agency or body having jurisdiction over such Selling Stockholder or The information in the property or assets of such Selling Stockholder is required for the execution, delivery Registration Statement and performance of this Agreement by such Selling Stockholder and the consummation by such Selling Stockholder of the transactions contemplated hereby and thereby, except for the registration of the Shares Prospectus under the Securities Act caption "Selling and such consents, approvals, authorizations, registrations or qualifications as may be required under the Exchange Act and applicable state securities laws in connection with the purchase and sale of the Shares by the Underwriter.
(h) All material information with respect Principal Stockholders" which specifically relates to such Selling Stockholder contained in each of the Registration Statementdoes not, the Prospectus and the Pricing Disclosure Package (as amended and supplemented, if the Company shall have filed with the Commission any amendment or supplement thereto) (i) complied and will comply in all material respects with all applicable provisions of the Securities Act and the Rules and Regulations, (ii) contains and will contain all statements of material fact required to be stated therein in accordance with the Securities Act and the Rules and Regulations, and (iii) does not and will not on any Closing Date, contain an any untrue statement of a material fact or omit to state a any material fact required to be stated therein or necessary in order to make the statements therein therein, in the light of the circumstances under which they were made, not misleading. Solely with respect to the Metalmark Selling Stockholders (as defined in Schedule I hereto), misleading and such Selling Stockholder has agreed to immediately notify the Company, if, at any time during the period when a Prospectus is not prompted required by law to sell the Shares be delivered in connection with sales of Common Stock by an Underwriter or a dealer, there is any material non-public information relating to the business, results of operations or prospects of the Company and its subsidiaries of an adverse nature that is required to be disclosed change in the Registration Statement, the Pricing Disclosure Package or the Prospectus. For this purpose, information that is set forth or incorporated by reference in the Registration Statement, the Pricing Disclosure Package or the Prospectus or that otherwise has been made publicly available about the Company shall be deemed to be public such information, and any opinion or conclusion that a Metalmark Selling Stockholder may hold, or analysis performed by a Metalmark Selling Stockholder, in its capacity as an investor about the business, results of operations or prospects of the Company and its subsidiaries shall not be information that relates to the business, results of operations or prospects of the Company.
(ivii) Such Selling Stockholder has not taken taken, and will not take, directly or indirectly, any action that is designed to to, or that has constituted or that could which might reasonably be expected to to, cause or result in the stabilization or manipulation of the price of any security of the Company to facilitate the sale or resale of the SharesShares pursuant to the distribution contemplated by this Agreement, and, other than as permitted by the Act, such Selling Stockholder has not distributed and will not distribute any prospectus or other offering material in connection with the Offering.
(jviii) The Such Selling Stockholder has duly authorized, executed and delivered a Custody Agreement and Irrevocable Power of Attorney ("Custody Agreement"), which Custody Agreement is a legal, valid and binding agreement of such Selling Stockholder, except as rights to indemnity and contribution thereunder may be limited by federal or state securities laws or public policy underlying such laws, and except as enforceability may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or other laws affecting the enforcement of creditors' rights generally and by equitable principles (whether enforcement is sought by proceedings in equity or at law); pursuant to the Custody Agreement, such Selling Stockholder has placed in custody with American Stock Transfer & Trust Company, as Custodian (the "Custodian"), for delivery under this Agreement, certificates or securities entitlements in respect of shares held in "street name" representing the Shares to be sold by such Selling Stockholder, and/or the certificates representing shares of Series A Stock which are convertible into shares of Common Stock to be sold by such Stockholder under this Agreement, and/or an Irrevocable Exercise Notice (as defined in the Custody Agreement) with respect to an option or warrant granting the right to purchase shares of Common Stock to be sold by such Stockholder under this Agreement; and such certificates or Irrevocable Exercise Notice with respect to such option or warrant were duly and properly endorsed in blank for transfer, or were accompanied by all documents duly and properly executed that are necessary to validate the transfer of title thereto, to the Underwriters, free of any legend, restriction on transferability, proxy, lien or claim, whatsoever.
(ix) If such Selling Stockholder, is a party to that certain Preferred Stock Conversion Agreement dated as of August 29, 2003 (the "Conversion Agreement"), by and among the Company and the parties identified therein, such Selling Stockholder had the power and authority to enter into the Conversion Agreement and had duly authorized, executed and delivered the Conversion Agreement, and such Conversion Agreement is a legal, valid and binding agreement of such Selling Stockholder, except as rights to indemnity and contribution thereunder may be limited by federal or state securities laws or public policy underlying such laws, and except as enforceability may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or other laws affecting the enforcement of creditors' rights generally and by equitable principles (whether enforcement is sought by proceedings in equity or at law).
(x) Such Selling Stockholder has duly authorized, executed and delivered to the Custodian a Custody Agreement containing an irrevocable power of attorney (a "Power of Attorney") authorizing and directing the Attorneys-in-Fact designated in the Custody Agreement, or any of them, to effect the sale and delivery of the Shares being sold by such Selling Stockholder does not violate any of the Company’s internal policies regarding the sale of stock by its affiliates. Stockholder, to enter into this Agreement and to take all such other action as may be necessary hereunder.
(xi) Any certificate signed by any officer or on behalf of any such Selling Stockholder and delivered to the Underwriter Underwriters or counsel for the Underwriter in connection with the offering of the Shares Underwriters on or after the date hereof shall be deemed to be a representation and warranty by such Selling Stockholder, Stockholder to the Underwriters as to the matters covered thereby, to the Underwriter.
Appears in 2 contracts
Samples: Underwriting Agreement (Encore Capital Group Inc), Underwriting Agreement (Encore Capital Group Inc)
Representations and Warranties of the Selling Stockholders. Each Selling StockholderStockholder represents, warrants and covenants to the Company and the Underwriters, severally and not jointly, represents and warrants thatas follows:
(a) Neither such Selling Stockholder nor any person acting This Agreement has been duly authorized, executed and delivered by or on behalf of such Selling Stockholder (other than, if applicable, the Company and the Underwriter) has used or referred to any “free writing prospectus” (as defined in Rule 405), relating to the SharesStockholder.
(b) Such Selling Stockholder has, and immediately prior to the Closing Date on which such Selling Stockholder is selling the Shares, such 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 (the “UCC”) in respect of, the Shares to be sold by such Selling Stockholder hereunder on such Closing Date free and clear of all liens, encumbrances, equities or claims[Reserved].
(c) Upon payment for the Shares Securities to be sold by such Selling StockholderStockholders pursuant to this Agreement, delivery of such SharesSecurities, as directed by the UnderwriterRepresentative, to Cede & Co. (“Cede”) or such other nominee as may be designated by The Depository Trust Company (“DTC”), registration of such Shares Securities in the name of Cede or such other nominee and the crediting of such Shares Securities on the books of DTC to the securities accounts account of the Underwriter Underwriters (assuming that neither DTC nor the Underwriter 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 SharesSecurities), (iA) DTC shall be a “protected purchaser” of such Shares Securities within the meaning of Section 8-303 of the UCC, (iiB) under Section 8-501 of the UCC, the Underwriter Underwriters will acquire a valid security entitlement in respect of such Shares Securities and (iiiC) no action based on any “adverse claim,” within the meaning of Section 8-102 of the UCC, to such Shares Securities may be successfully asserted against the Underwriter Underwriters with respect to such security entitlement. For ; for purposes of this representation, such Selling Stockholder may assume that when such payment, delivery and crediting occur, (Ax) such Shares Securities will have been registered in the name of Cede or another nominee designated by DTC, in each case on the Company’s share registry in accordance with its certificate of incorporation, bylaws and applicable law, (By) DTC will be registered as a “clearing corporation” within the meaning of Section 8-102 of the UCC and (Cz) appropriate entries entry to the accounts account of the Underwriter Underwriters on the records of DTC will have been made pursuant to the UCC.
(d) Such Selling Stockholder has full right, power The execution and authority, corporate or otherwise, to enter into this Agreement.
(e) This Agreement has been duly and validly authorized, executed and delivered delivery by or on behalf of such Selling Stockholder.
(f) The execution, delivery and performance of this Agreement by such Selling Stockholder of, and the consummation performance by such Selling Stockholder of the transactions contemplated hereby and thereby do not and its obligations under, this Agreement, will not (i) contravene or conflict with or with, result in a breach or violation of any of the terms or provisions of, or constitute a default (or, with the giving of notice or lapse of time, would be in default) under, or require the consent of (i) any indenture, mortgage, deed of trust, loan other party to the limited partnership agreement or the limited liability company agreement, license or as applicable, of the Selling Stockholders, (ii) any other agreement or instrument to which such Selling Stockholder is a party or by which such Selling Stockholder it is bound or to which any of the property or assets of such Selling Stockholder is subject, (ii) result in any violation of the provisions of the charter or by-laws or deed of trust (or similar organizational documents) of such Selling Stockholder, or (iii) result in any violation provision of applicable law or any judgment, order, decree or regulation applicable to such Selling Stockholder of any statute court, regulatory body, administrative agency, governmental body or any order, rule or regulation of any court or governmental agency or body arbitrator having jurisdiction over such Selling Stockholder Stockholder, except, in the case of the foregoing clauses (ii) and (iii) as would not, individually or in the property or assets of aggregate, reasonably be expected to materially impact such Selling Stockholder.
(g) ’s ability to perform its obligations under this Agreement. No consent, approval, authorization or other order of, or registration or filing or registration with, any court or other governmental agency authority or body having jurisdiction over such Selling Stockholder or the property or assets of such Selling Stockholder agency, is required for the execution, delivery and performance of this Agreement by such Selling Stockholder and the consummation by such Selling Stockholder of the transactions contemplated hereby and therebyin this Agreement, except for the registration of the Shares under the Securities Act and such consents, approvals, authorizations, registrations or qualifications as may be required under the Securities Act, the Exchange Act and Act, applicable state securities or blue sky laws in connection with and from the purchase FINRA and sale of such other approvals as have been or will be made or obtained on or prior to the Shares by the UnderwriterClosing Date.
(he) All material information with respect furnished to the Company or the Underwriters by or on behalf of such Selling Stockholder contained in each of writing expressly for use in the Registration Statement, the Prospectus and the Pricing Disclosure Package (as amended or the Prospectus is, and supplementedon the Closing Date will be, if the Company shall have filed with the Commission any amendment or supplement thereto) (i) complied true, correct and will comply complete in all material respects with all applicable provisions respects, and did not, as of the Securities Act and the Rules and Regulations, (ii) contains and will contain all statements of material fact required to be stated therein in accordance with the Securities Act and the Rules and RegulationsExecution Time, and (iii) does not and on the Closing Date will not not, contain an any untrue statement of a material fact or omit to state a any material fact required to be stated therein or necessary in order to make the statements therein such information not misleading. Solely , it being understood and agreed that the only such information consists of the name of such Selling Stockholder, the number of total shares beneficially owned, the number of offered shares and the address and other information with respect to the Metalmark Selling Stockholders (as defined in Schedule I hereto), such Selling Stockholder is not prompted to sell (excluding percentages) under the Shares by any material non-public information relating to the business, results of operations or prospects of the Company and its subsidiaries of an adverse nature that is required to be disclosed caption “Selling Stockholders” in the Registration Statement, the Pricing Disclosure Package or and the Prospectus. For this purposeProspectus (such information, information that is set forth or incorporated by reference in the “Selling Stockholders Information”).
(f) Other than the Registration Statement, the Pricing Preliminary Prospectus, the Disclosure Package and the Prospectus, such Selling Stockholder (including its agents and representatives, other than the Underwriters in their capacity as such) has not prepared, made, used, authorized, approved or the referred to and will not prepare, make, use, authorize, approve or refer to any Issuer Free Writing Prospectus or that otherwise has been made publicly available about Written Testing-the-Waters Communication, other than (i) any document not constituting a prospectus pursuant to Section 2(a)(10)(a) of the Company shall be deemed to be public informationSecurities Act or Rule 134 under the Securities Act or (ii) the documents listed in Schedule II hereto, each electronic road show and any opinion or conclusion that a Metalmark Selling Stockholder may hold, or analysis performed other written communications approved in writing in advance by a Metalmark Selling Stockholder, in its capacity as an investor about the business, results of operations or prospects of the Company and its subsidiaries shall not be information that relates to the business, results of operations or prospects of the CompanyRepresentative.
(ig) Such Selling Stockholder has not taken and will not take, directly or indirectly, any action that is designed to or that has constituted or that could might reasonably be expected to cause or result in the stabilization or manipulation of the price of any security of the Company to facilitate the sale or resale of the Shares.
(j) The sale of the Shares by such Selling Stockholder does not violate any of the Company’s internal policies regarding the sale of stock by its affiliatesSecurities. Any certificate signed by any officer or on behalf of any such Selling Stockholder and delivered to the Underwriter Representative or to counsel for the Underwriter Underwriters in connection with the offering of the Shares Securities shall be deemed a representation and warranty by such Selling Stockholder, Stockholder to the Underwriters as to the matters covered therebythereby with respect to such Selling Stockholder. Such Selling Stockholder has a reasonable basis for making each of the representations set forth in this Section 2. Such Selling Stockholder acknowledges that the Underwriters and, for purposes of the opinions to be delivered pursuant to Sections 8(b)(i) and (iii) and Section 8(c) hereof, counsel to such Selling Stockholder and counsel to the UnderwriterUnderwriters, will rely upon the accuracy and truthfulness of the foregoing representations and hereby consents to such reliance.
Appears in 2 contracts
Samples: Underwriting Agreement (Academy Sports & Outdoors, Inc.), Underwriting Agreement (Academy Sports & Outdoors, Inc.)
Representations and Warranties of the Selling Stockholders. Each Selling Stockholder, severally and not jointly, represents represents, warrants and warrants thatcovenants to each Underwriter as follows:
(a) Neither All consents, approvals, authorizations and orders necessary for the execution and delivery by such Selling Stockholder nor any person acting on behalf of this Agreement, and for the sale and delivery of the Offered Shares to be sold by such Selling Stockholder (other thanhereunder, if applicablehave been obtained; and such Selling Stockholder has full right, power and authority to enter into this Agreement and to sell, assign, transfer and deliver the Company and the Underwriter) has used or referred Offered Shares to any “free writing prospectus” (as defined in Rule 405), relating to the Sharesbe sold by such Selling Stockholder hereunder.
(b) Such Selling Stockholder has, and immediately prior to the First Closing Date on which such Selling Stockholder is selling (or the Sharesapplicable Option Closing Date, as the case may be) such Selling Stockholder will have, good have valid and valid unencumbered 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 Offered Shares to be sold by such Selling Stockholder hereunder on such at the First Closing Date free (or the applicable Option Closing Date, as the case may be); and, upon delivery of such Offered Shares and clear of all lienspayment therefor pursuant hereto, encumbrances, equities or claims.
(c) valid and unencumbered title to such Offered Shares will pass to the several Underwriters. Upon payment for the Offered Shares to be sold by such Selling StockholderStockholder pursuant to this Agreement, delivery of such Offered Shares, as directed by the UnderwriterUnderwriters, to Cede & Co. (“Cede”) or such other nominee as may be designated by The the Depository Trust Company (“DTC”), registration of such Offered Shares in the name of Cede or such other nominee and the crediting of such Offered Shares on the books of DTC to securities accounts of the Underwriter Underwriters (assuming that neither DTC nor the any such Underwriter has notice of any adverse claim (within the meaning of Section 8-105 of the New York Uniform Commercial Code (the “UCC”)) to such Offered Shares), (iA) DTC shall be a “protected purchaser” of such Offered Shares within the meaning of Section 8-303 of the UCC, (iiB) under Section 8-501 of the UCC, the Underwriter Underwriters will acquire a valid security entitlement in respect of such Offered Shares and (iiiC) no action based on any “adverse claim,” ”, within the meaning of Section 8-102 of the UCC, to such Offered Shares may be asserted against the Underwriter Underwriters with respect to such security entitlement. For ; for purposes of this representation, such Selling Stockholder may assume that when such payment, delivery and crediting occur, (Ax) 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, (By) DTC will be registered as a “clearing corporation” within the meaning of Section 8-102 of the UCC and (Cz) appropriate entries to the accounts of the Underwriter several Underwriters on the records of DTC will have been made pursuant to the UCC.
(d) Such Selling Stockholder has full right, power and authority, corporate or otherwise, to enter into this Agreement.
(e) This Agreement has been duly and validly authorized, executed and delivered by or on behalf of such Selling Stockholder.
(fc) The execution, delivery and performance sale of this Agreement the Offered Shares to be sold by such Selling Stockholder hereunder and the consummation compliance by such Selling Stockholder with this Agreement and the consummation of the transactions herein contemplated hereby and thereby do not and will not (iA) conflict with or result in a breach or violation of any of the terms or provisions of, or constitute a default under, any statute, indenture, mortgage, deed of trust, loan agreement, license lease or other agreement or instrument to which such Selling Stockholder is a party or by which such Selling Stockholder is bound or to which any of the property or assets of such Selling Stockholder is subject, (iiB) result in any violation of the provisions of the charter certificate of incorporation or by-laws or deed of trust (or similar organizational documents) of such Selling StockholderStockholder if such Selling Stockholder is a corporation, the partnership agreement of such Selling Stockholder if such Selling Stockholder is a partnership or other similar organization documents of such Selling Stockholder if such Selling Stockholder is not a natural person, corporation or partnership or (iiiC) result in any violation of any statute or any order, rule or regulation of any court or governmental agency or body having jurisdiction over such Selling Stockholder or the any of its subsidiaries or any property or assets of such Selling Stockholder.
, except, in the case of (gA) No and (C), as would not, individually or in the aggregate, affect the validity of the Offered Shares to be sold by such Selling Stockholders or reasonably be expected to materially impact such Selling Stockholder’s ability to perform its obligations under this agreement; and no consent, approval, authorization authorization, order, registration or order of, qualification of or filing or registration with, with any such court or governmental body or agency or body having jurisdiction over such Selling Stockholder or the property or assets of such Selling Stockholder is required for the execution, delivery and performance of this Agreement by such Selling Stockholder of its obligations under this Agreement and the consummation by such Selling Stockholder of the transactions contemplated hereby and therebyby this Agreement in connection with the Offered Shares to be sold by such Selling Stockholder hereunder, except for the registration of the Shares under the Securities Act of the Offered Shares, the approval by FINRA of the underwriting terms and arrangements and such consents, approvals, authorizations, orders, registrations or qualifications as may be required under the Exchange Act and applicable state securities or “blue sky” laws in connection with the purchase and sale distribution of the Offered Shares by the UnderwriterUnderwriters.
(hd) All material information with respect On or prior to the date of the Preliminary Prospectus, such Selling Stockholder contained executed and delivered to the Underwriters an agreement substantially in each the form of Exhibit A hereto.
(e) To the extent that any statements or omissions made in the Registration Statement, any Preliminary Prospectus, the Prospectus and the Pricing Disclosure Package (as amended and supplemented, if the Company shall have filed with the Commission or any amendment or supplement thereto) (i) complied thereto are made in reliance upon and will comply in conformity with written information furnished to the Company by such Selling Stockholder expressly for use therein, such Registration Statement and Preliminary Prospectus did, and the Prospectus and any further amendments or supplements to the Registration Statement and the Prospectus will, when they become effective or are filed with the Commission, as the case may be, conform in all material respects with all applicable provisions to the requirements of the Securities Act and the Rules rules and Regulations, (ii) contains regulations of the Commission thereunder and will contain all statements of material fact required to be stated therein in accordance with the Securities Act and the Rules and Regulations, and (iii) does not and will not contain an any untrue statement of a material fact or omit to state a any material fact required to be stated therein or necessary in order to make the statements therein (in the case of the Preliminary Prospectus and the Prospectus and any amendments or supplements thereto, in the light of the circumstances under which they were made) not misleading. Solely with respect to the Metalmark Selling Stockholders (as defined in Schedule I hereto), such Selling Stockholder is not prompted to sell the Shares by any material non-public information relating to the business, results of operations or prospects of the Company and its subsidiaries of an adverse nature that is required to be disclosed in the Registration Statement, the Pricing Disclosure Package or the Prospectus. For this purpose, information that is set forth or incorporated by reference in the Registration Statement, the Pricing Disclosure Package or the Prospectus or that otherwise has been made publicly available about the Company shall be deemed to be public information, and any opinion or conclusion that a Metalmark Selling Stockholder may hold, or analysis performed by a Metalmark Selling Stockholder, in its capacity as an investor about the business, results of operations or prospects of the Company and its subsidiaries shall not be information that relates to the business, results of operations or prospects of the Company.
(if) Such Selling Stockholder has not taken and will not take, directly or indirectly, any action that is designed to or that has constituted or that could might reasonably be expected to cause or result in the stabilization or manipulation of the price of any security of the Company to facilitate the sale or resale of the Offered Shares.
(jg) Such Selling Stockholder has delivered or will deliver to you prior to or at the First Closing Date a properly completed and executed United States Treasury Department Form W-9 (or other applicable form or statement specified by Treasury Department regulations in lieu thereof) together with all required attachments to such form.
(h) The sale obligations of the Selling Stockholders hereunder shall not be terminated by operation of law, whether by the dissolution of any partnership or corporation, or by the occurrence of any other event; if any such partnership or corporation should be dissolved, or if any other such event should occur, before the delivery of the Offered Shares to be sold by such Selling Stockholder does not violate any hereunder, the Offered Shares to be sold by such Selling Stockholder hereunder shall be delivered by or on behalf of the Company’s internal policies regarding Selling Stockholders in accordance with the sale terms and conditions of stock by its affiliatesthis Agreement. Any certificate signed by any officer of any such Selling Stockholder and delivered to the any Underwriter or to counsel for the Underwriter Underwriters in connection with the offering of the Shares this Offering shall be deemed a representation and warranty by such Selling Stockholder, Stockholder to each Underwriter as to the matters covered thereby, . Notwithstanding anything to the Underwritercontrary in this Agreement, the representations and warranties of the Selling Stockholders set forth in this Section 1(B) are made only as of the date hereof and the First Closing Date (or the applicable Option Closing Date, as the case may be). Such Selling Stockholder acknowledges that the Underwriters and, for purposes of the opinions to be delivered pursuant to Section 6 hereof, counsel to the Selling Stockholders and counsel to the Underwriters, will rely upon the accuracy and truthfulness of the foregoing representations and hereby consents to such reliance.
Appears in 2 contracts
Samples: Underwriting Agreement (OptiNose, Inc.), Underwriting Agreement (OptiNose, Inc.)
Representations and Warranties of the Selling Stockholders. (a) Each of the Selling Stockholder, severally and not jointly, Stockholders represents and warrants thatthe following to each of the Underwriters:
(a) Neither such Selling Stockholder nor any person acting on behalf of such Selling Stockholder (other than, if applicable, the Company and the Underwriter) has used or referred to any “free writing prospectus” (as defined in Rule 405), relating to the Shares.
(bi) Such Selling Stockholder has, and immediately prior to is the Closing Date on which such Selling Stockholder is selling the Shares, such Selling Stockholder will have, good and valid title to or a valid “security entitlement” within the meaning lawful owner of Section 8-501 of the New York Uniform Commercial Code (the “UCC”) in respect of, the Shares to be sold by such Selling Stockholder hereunder on such Closing Date free pursuant to this Agreement and has good and clear title to the Shares, free of all restrictions on transfer, liens, encumbrances, security interests, equities or claimsand claims whatsoever.
(cii) Upon payment for Such Selling Stockholder has full legal right, power and authority, and all authorization and approval required by law, to enter into this Agreement, the Custody Agreement signed by such Selling Stockholder and [INSERT NAME OF CUSTODIAN], as Custodian, relating to the deposit of the Shares to be sold by such Selling Stockholder, delivery of such Shares, as directed by Stockholder (the Underwriter, to Cede & Co. (“Cede”"Custody Agreement") 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 Power of such Shares on the books Attorney of DTC to securities accounts of the Underwriter (assuming that neither DTC nor the Underwriter has notice of any adverse claim (within the meaning of Section 8-105 of the UCC) to such Shares), (i) DTC shall be a “protected purchaser” of such Shares within the meaning of Section 8-303 of the UCC, (ii) under Section 8-501 of the UCC, the Underwriter will acquire a valid security entitlement in respect of such Shares and (iii) no action based on any “adverse claim,” within the meaning of Section 8-102 of the UCC, to such Shares may be asserted against the Underwriter with respect to such security entitlement. For purposes of this representation, ----------------- such Selling Stockholder may assume that when appointing certain individuals as such paymentSelling Stockholder's attorneys-in-fact (the "Attorneys") to the --------- extent set forth therein, delivery relating to the transactions contemplated hereby and crediting occurby the Registration Statement and the Custody Agreement (the "Power of Attorney") and to sell, (A) assign, transfer and deliver ----------------- the Shares to be sold by such Shares will have been registered Selling Stockholder 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 manner provided herein and applicable law, (B) DTC will be registered as a “clearing corporation” within the meaning of Section 8-102 of the UCC and (C) appropriate entries to the accounts of the Underwriter on the records of DTC will have been made pursuant to the UCCtherein.
(d) Such Selling Stockholder has full right, power and authority, corporate or otherwise, to enter into this Agreement.
(eiii) This Agreement has been duly and validly authorized, executed and delivered by or on behalf of such Selling Stockholder.
(fiv) The Custody Agreement of such Selling Stockholder has been duly authorized, executed and delivered by such Selling Stockholder and is a valid and binding agreement of such Selling Stockholder, enforceable in accordance with its terms, subject to bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and similar laws of general applicability relating to or affecting creditors' rights and to general equity principles.
(v) The Power of Attorney of such Selling Stockholder has been duly authorized, executed and delivered by such Selling Stockholder and is a valid and binding instrument of such Selling Stockholder, enforceable in accordance with its terms, and, pursuant to such Power of Attorney, such Selling Stockholder has, among other things, authorized the Attorneys, or any one of them, to execute and deliver on such Selling Stockholder's behalf this Agreement and any other document that they, or any one of them, may deem necessary or desirable in connection with the transactions contemplated hereby and thereby and to deliver the Shares to be sold by such Selling Stockholder pursuant to this Agreement.
(vi) Upon delivery of and payment for the Shares to be sold by such Selling Stockholder pursuant to this Agreement, good and clear title to such Shares will pass to the Underwriters, free of all restrictions on transfer, liens, encumbrances, security interests, equities and claims whatsoever, other than pursuant to this Agreement, and, provided that the Underwriters do not have notice of any "adverse claim" (within the meaning given to such term in Article 8 of the Uniform Commercial Code of the State of New York), each of the Underwriters will be a "protected purchaser" (within the meaning given to such term in Article 8 of the Uniform Commercial Code of the State of New York) with respect to such Shares and will acquire such Shares free of any "adverse claim" (within the meaning given to such term in Article 8 of the Uniform Commercial Code of the State of New York).
(vii) On the Closing Date (and, if any Additional Shares are sold by such Selling Stockholder pursuant to the terms hereof, on the applicable Option Closing Date), the certificates representing all of the Shares to be sold by such Selling Stockholder on such date pursuant to this Agreement will be in suitable form for transfer by delivery or will be accompanied by duly executed instruments of transfer or assignment in blank with signatures guaranteed.
(viii) The execution, delivery and performance of this Agreement and the Custody Agreement and Power of Attorney of such Selling Stockholder by or on behalf of such Selling Stockholder, the compliance by such Selling Stockholder with all the provisions hereof and thereof and the consummation by such Selling Stockholder of the transactions contemplated hereby and thereby do not and will not (i) require any consent, approval, authorization or other order of, or qualification with, any court or governmental body or agency (except the registration under the Act of the Shares, such as have been already obtained or such as may be required under the securities or Blue Sky laws of the various states) or (ii)(A) conflict with or result in constitute a breach or violation of any of the terms or provisions of, or constitute a default under, (x) the organizational documents of such Selling Stockholder, if such Selling Stockholder is not an individual, or (y) any indenture, mortgage, deed of trust, loan agreement, license mortgage, lease or other agreement or instrument to which such Selling Stockholder is a party or by which such Selling Stockholder is bound or to which any of the property or assets of such Selling Stockholder is subject, (ii) result in any violation of the provisions of the charter or by-laws or deed of trust (or similar organizational documents) of such Selling Stockholder, bound or (iiiB) result in violate or conflict with any violation of any statute applicable law or any orderrule, rule regulation, judgment, order or regulation decree of any court or any governmental body or agency or body having jurisdiction over such Selling Stockholder or any property of such Selling Stockholder, other than, in the property case of clauses (A)(y) and (B), such conflicts, breaches, defaults or assets violations which, individually or in the aggregate would not have an adverse effect on the validity or enforceablity of this Agreement or on the transactions contemplated hereby and in the case of any Selling Stockholder that is not an individual, would not have a material adverse effect on the business, financial condition or results of such Selling Stockholder and its subsidiaries, taken as a whole, or , in the case of any Selling Stockholder that is an individual, would not have a material adverse effect on such Selling Stockholder.
(gix) No consent, approval, authorization or order of, or filing or registration with, any court or governmental agency or body having jurisdiction over such Selling Stockholder or The information in the property or assets of such Selling Stockholder is required for the execution, delivery and performance of this Agreement by such Selling Stockholder and the consummation by such Selling Stockholder of the transactions contemplated hereby and thereby, except for the registration of the Shares Registration Statement under the Securities Act caption "Principal and such consents, approvals, authorizations, registrations or qualifications as may be required under the Exchange Act and applicable state securities laws in connection with the purchase and sale of the Shares by the Underwriter.
(h) All material information with respect Selling Stockholders" which specifically relates to such Selling Stockholder contained in each did not, as of the effective date of the Registration Statement, the Prospectus and the Pricing Disclosure Package (as amended and supplemented, if the Company shall have filed with the Commission contain any amendment or supplement thereto) (i) complied and will comply in all material respects with all applicable provisions of the Securities Act and the Rules and Regulations, (ii) contains and will contain all statements of material fact required to be stated therein in accordance with the Securities Act and the Rules and Regulations, and (iii) does not and will not contain an untrue statement of a material fact or omit to state a any material fact required to be stated therein or necessary in order to make the statements therein therein, in the light of the circumstances under which they were made, not misleading. Solely with respect .
(x) At any time during the period described in Section 5(d), if there is any change in the information referred to the Metalmark Selling Stockholders (as defined in Schedule I heretoSection 7(a)(x), such Selling Stockholder is not prompted to sell the Shares will immediately notify you of such change.
(xi) Each certificate signed by any material non-public information relating or on behalf of such Selling Stockholder and delivered to the business, results of operations Underwriters or prospects of counsel for the Company and its subsidiaries of an adverse nature that is required to be disclosed in the Registration Statement, the Pricing Disclosure Package or the Prospectus. For this purpose, information that is set forth or incorporated by reference in the Registration Statement, the Pricing Disclosure Package or the Prospectus or that otherwise has been made publicly available about the Company Underwriters shall be deemed to be public information, a representation and any opinion or conclusion that a Metalmark warranty by such Selling Stockholder may hold, or analysis performed by a Metalmark Selling Stockholder, in its capacity as an investor about the business, results of operations or prospects of the Company and its subsidiaries shall not be information that relates to the business, results of operations or prospects of Underwriters as to the Companymatters covered thereby.
(ixii) Such Selling Stockholder has not taken and will not take, directly or indirectly, any action that is designed to or that which has constituted or that could which might reasonably be expected to cause or result under the Exchange Act or otherwise, in the stabilization or manipulation of the price of any security of the Company to facilitate the sale or resale of the SharesSecurities.
(jxiii) The Such Selling Stockholder has not taken any action that would violate Rule 102 of Regulation M of the Exchange Act.
(xiv) Neither such Selling Stockholder nor any of its affiliates directly, or indirectly through one or more intermediaries, controls, or is controlled by, or is under common control with a member, or is a "person associated with a member" (within the meaning given to such phrase in Article I, Section 1(ee) of the By-laws of the National Association of Securities Dealers, Inc.), of the National Association of Securities Dealers, Inc.
(xv) Such Selling Stockholder shall deliver to you prior to or at the Closing Date a properly completed and executed United States Treasury Department Form W-9 (or other applicable form or statement specified by Treasury Department regulations in lieu thereof).
(b) Each of the Selling Stockholders who controls (within the meaning of Section 15 of the Act or Section 20 of the Exchange Act) the Company or is controlled (within the meaning of Section 15 of the Act or Section 20 of the Exchange Act) by the Company or who is a director or officer of the Company or any equity securities of which are held by a director or officer of the Company or that is controlled (within the meaning of Section 15 of the Act or Section 20 of the Exchange Act) by a director or officer of the Company, represents and warrants to each of the Underwriters, that such Selling Stockholder has no knowledge of any material fact or condition that is not set forth in the Registration Statement or the Prospectus and has adversely affected, or may adversely affect, the business, properties, business prospects, condition (financial or otherwise) or results of operations of the Company, and the sale of the Shares proposed to be sold by such Selling Stockholder does is not violate any of the Company’s internal policies regarding the sale of stock by its affiliates. Any certificate signed prompted by any officer of any 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 such Selling Stockholder, as to matters covered thereby, to the Underwriterknowledge.
Appears in 2 contracts
Samples: Underwriting Agreement (Jfax Com Inc), Underwriting Agreement (Jfax Com Inc)
Representations and Warranties of the Selling Stockholders. Each Selling Stockholder, Stockholder severally (and not jointly, ) represents and warrants to each Underwriter that:
(ab) Neither such Selling Stockholder nor has, and at the time of delivery of such Shares will have, full legal right, power and capacity, and any person authorization or 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, the Powers of Attorney, and the Custody Agreement among Continental Stock Transfer & Trust Company, as custodian and the Selling Stockholders (the "CUSTODY AGREEMENT") have been duly authorized, executed and delivered by such Selling Stockholder and each is a legal, valid and binding agreement of such Selling Stockholder enforceable in accordance with its terms, except as the enforceability thereof may be limited by bankruptcy, insolvency, reorganization, moratorium or similar laws affecting the enforcement of creditors' rights generally and general principles of equity, whether considered in a proceeding in equity or at law, and each of the Representatives of the Selling Stockholders, acting alone, is authorized to execute and deliver this Agreement and the certificate referred to in Section 8(k) hereof on behalf of such Selling Stockholder (other thanStockholder, if applicable, to determine the Company and purchase price to be paid by the Underwriter) has used or referred several Underwriters to any “free writing prospectus” (as defined in Rule 405), relating to the Shares.
(b) Such Selling Stockholder has, and immediately prior to the Closing Date on which such Selling Stockholder is selling as provided in Section 1 hereof, to authorize the Shares, such Selling Stockholder will have, good and valid title to or a valid “security entitlement” within the meaning delivery of Section 8-501 of the New York Uniform Commercial Code (the “UCC”) in respect of, the Shares to be sold by such Selling Stockholder hereunder on under this Agreement and to duly endorse (in blank or otherwise) the certificate or certificates representing such Closing Date free and clear of all liens, encumbrances, equities Shares or claims.
(c) Upon payment for the Shares to be sold by such Selling Stockholder, delivery of such Shares, as directed by the Underwritera stock power or powers with respect thereto, to Cede & Co. (“Cede”) or such other nominee as may be designated by The Depository Trust Company (“DTC”)accept payment therefor, registration of such Shares in the name of Cede or such other nominee and the crediting of such Shares on the books of DTC otherwise to securities accounts of the Underwriter (assuming that neither DTC nor the Underwriter has notice of any adverse claim (within the meaning of Section 8-105 of the UCC) to such Shares), (i) DTC shall be a “protected purchaser” of such Shares within the meaning of Section 8-303 of the UCC, (ii) under Section 8-501 of the UCC, the Underwriter will acquire a valid security entitlement in respect of such Shares and (iii) no action based on any “adverse claim,” within the meaning of Section 8-102 of the UCC, to such Shares may be asserted against the Underwriter with respect to such security entitlement. For purposes of this representation, such Selling Stockholder may assume that when such payment, delivery and crediting occur, (A) such Shares will have been registered in the name of Cede or another nominee designated by DTC, in each case on the Company’s share registry in accordance with its certificate of incorporation, bylaws and applicable law, (B) DTC will be registered as a “clearing corporation” within the meaning of Section 8-102 of the UCC and (C) appropriate entries to the accounts of the Underwriter on the records of DTC will have been made pursuant to the UCC.
(d) Such Selling Stockholder has full right, power and authority, corporate or otherwise, to enter into this Agreement.
(e) This Agreement has been duly and validly authorized, executed and delivered by or act on behalf of such Selling Stockholder.Stockholder in connection with this Agreement;
(fd) The the sale of the Shares by such Selling Stockholder pursuant to this Agreement is not prompted by any information concerning the Company which is not set forth in the Prospectus;
(e) the execution, delivery and performance of this Agreement, the Power of Attorney and the Custody Agreement by such Selling Stockholder and the consummation by such Selling Stockholder of the transactions contemplated hereby and thereby do not and will not (i) conflict with with, or result in a any breach or violation of any of the terms or provisions of, or constitute a default under (or constitute any event which with notice, lapse of time or both would constitute a breach of, or default under), any provision of the charter or bylaws or trust agreement (as the case may be), of such Selling Stockholder or under any provision of any indenture, mortgage, deed of trust, bank loan or credit agreement, license or other agreement or instrument to which such Selling Stockholder is a party or by which such Selling Stockholder is or any of its properties may be bound or affected or under any federal, state, local or foreign law, regulation or rule or any decree, judgment or order applicable to which any of the property or assets of such Selling Stockholder is subject, (ii) result in any violation of the provisions of the charter or by-laws or deed of trust (or similar organizational documents) of such Selling Stockholder, or (iii) result in any violation of any statute or any order, rule or regulation of any court or governmental agency or body having jurisdiction over such Selling Stockholder or the property or assets of such Selling Stockholder.;
(gf) No consent, no approval, authorization authorization, consent or order of, of or filing with any federal, state, local or registration withforeign governmental or regulatory commission, any court board, body, authority or governmental agency or body having jurisdiction over such Selling Stockholder or the property or assets of such Selling Stockholder is required for in connection with the execution, delivery and performance of this Agreement by such Selling Stockholder and the consummation by such Selling Stockholder sale of the transactions Shares contemplated hereby and therebyhereby, except for the other than registration of the Shares under the Securities Act and such consents, approvals, authorizations, registrations or any necessary qualifications as may be required under the Exchange Act 11 10 federal securities or "blue sky" laws of the various jurisdictions in which the Shares are being offered by the Underwriters;
(g) certificates in negotiable form for all Shares to be sold by such Selling Stockholder under this Agreement, together with a stock power or powers duly endorsed in blank by such Selling Stockholder have been placed in custody with the Custodian for the purpose of effecting delivery hereunder;
(h) such Selling Stockholder has not taken and applicable state securities laws will not take, directly or indirectly, any action designed to or that might reasonably be expected to cause or result in stabilization or manipulation of the price of the Common Stock to facilitate the sale or resale of the Shares;
(i) all information furnished or to be furnished to the Company by or on behalf of such Selling Stockholder for use in connection with the purchase and sale preparation of the Shares by Registration Statement and the Underwriter.
(h) All material information Prospectus, insofar as it relates to such Selling Stockholder, is or will be true and correct in all respects and, with respect to such Selling Stockholder contained in each of the Registration Statement, the Prospectus and the Pricing Disclosure Package (as amended and supplemented, if the Company shall have filed with the Commission any amendment or supplement thereto) (i) complied and will comply in all material respects with all applicable provisions of the Securities Act and the Rules and Regulations, (ii) contains and will contain all statements of material fact required to be stated therein in accordance with the Securities Act and the Rules and Regulations, and (iii) does not and will not contain an untrue statement of a material fact or omit to state a any material fact required to be stated therein or necessary in order to make the statements therein not misleading. Solely , and, with respect to the Metalmark Selling Stockholders (as defined in Schedule I hereto)Prospectus, such Selling Stockholder is does not prompted to sell the Shares by any material non-public information relating to the business, results of operations or prospects of the Company and its subsidiaries of an adverse nature that is required to be disclosed in the Registration Statement, the Pricing Disclosure Package or the Prospectus. For this purpose, information that is set forth or incorporated by reference in the Registration Statement, the Pricing Disclosure Package or the Prospectus or that otherwise has been made publicly available about the Company shall be deemed to be public information, and any opinion or conclusion that a Metalmark Selling Stockholder may hold, or analysis performed by a Metalmark Selling Stockholder, in its capacity as an investor about the business, results of operations or prospects of the Company and its subsidiaries shall not be information that relates to the business, results of operations or prospects of the Company.
(i) Such Selling Stockholder has not taken and will not takecontain any untrue statement of a material fact or omit to state any material fact necessary in order to make the statements therein, directly or indirectly, any action that is designed to or that has constituted or that could reasonably be expected to cause or result in the stabilization or manipulation light of the price of any security of the Company to facilitate the sale or resale of the Shares.circumstances under which they were made, not misleading; and
(j) The sale of the Shares by nothing has come to such Selling Stockholder's attention that has caused such Selling Stockholder does not violate to believe that (A) when any Preliminary Prospectus was filed with the Commission it included any untrue statement of a material fact or omitted to state any material fact necessary in order to make the statements therein, in the light of the Company’s internal policies regarding circumstances under which they were made, not misleading, (B) when the sale Registration Statement or any amendment thereto was or is declared effective, it did or will include any untrue statement of stock a material fact or omit to state any material fact necessary to make the statements therein not misleading and (C) when the Prospectus or any amendment or supplement thereto is filed with the Commission pursuant to Rule 424(b) (or, if the Prospectus or such amendment or supplement is not required to be so filed, when the Registration Statement or the amendment thereto containing such amendment or supplement to the Prospectus was or is declared effective), and at all times subsequent thereto up to the time of purchase and the additional time of purchase, as the case may be, the Prospectus, as amended or supplemented at any such time, did or will include any untrue statement of material fact or omit to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading; provided, however, that such Selling Stockholder makes no representation or warranty with respect to information contained in or omitted from the Registration Statement or the Prospectus in reliance upon, and in conformity with, written 12 11 information furnished to the Company by its affiliates. Any certificate signed by any officer or on behalf of any Selling Stockholder and delivered to Underwriter, directly or through you, specifically for use in the Underwriter or counsel for the Underwriter in connection with the offering of the Shares shall be deemed a representation and warranty by such Selling Stockholder, as to matters covered thereby, to the Underwriterpreparation thereof.
Appears in 2 contracts
Samples: Underwriting Agreement (Stanley Furniture Co Inc/), Underwriting Agreement (Stanley Furniture Co Inc/)
Representations and Warranties of the Selling Stockholders. (a) Each of the Selling StockholderStockholders, severally and not jointly, represents and warrants that:
(a) Neither such Selling Stockholder nor any person acting on behalf warrants, as to itself, to each Underwriter as of such Selling Stockholder (other thanthe date hereof, as of the Firm Shares Closing Date and, if applicable, the Company and the Underwriter) has used or referred to any “free writing prospectus” (as defined in Rule 405), relating to the Shares.
(b) Such Selling Stockholder has, and immediately prior to the Closing Date on which such Selling Stockholder is selling the Option Shares, as of the Option Shares Closing Date (if any), as follows:
(i) Such Selling Stockholder has caused either a DWAC authorization letter to be delivered from such Selling Stockholder will have, good and valid title to or a valid “security entitlement” within certificate(s) for the meaning number of Section 8-501 of the New York Uniform Commercial Code (the “UCC”) in respect of, the Shares to be sold by such Selling Stockholder hereunder on to be delivered to American Stock Transfer and Trust Company (the “Custodian”), endorsed in blank or with blank stock powers duly executed, with a signature appropriately guaranteed, such Closing Date free certificates to be held in custody by the Custodian for delivery, pursuant to the provisions of this Agreement and clear of all liensan agreement dated May , encumbrances, equities or claims2005 among the Custodian and the Selling Stockholders substantially in the form attached hereto as Exhibit B (the “Custody Agreement”).
(cii) Upon payment for Such Institutional Selling Stockholder has granted an irrevocable power of attorney substantially in the Shares form attached hereto as Exhibit C (the “Power of Attorney”) to the person named therein, on behalf of such Institutional Selling Stockholder, to execute and deliver this Agreement and any other document necessary or desirable in connection with the transactions contemplated hereby and to deliver the shares to be sold by such Institutional Selling Stockholder, delivery of such Shares, as directed by the Underwriter, to Cede & Co. (“Cede”) or such other nominee as may be designated by The Depository Trust Company (“DTC”), registration of such Shares in the name of Cede or such other nominee and the crediting of such Shares on the books of DTC to securities accounts of the Underwriter (assuming that neither DTC nor the Underwriter has notice of any adverse claim (within the meaning of Section 8-105 of the UCC) to such Shares), (i) DTC shall be a “protected purchaser” of such Shares within the meaning of Section 8-303 of the UCC, (ii) under Section 8-501 of the UCC, the Underwriter will acquire a valid security entitlement in respect of such Shares and Stockholder pursuant hereto.
(iii) no action based This Agreement, the Custody Agreement, and the Lock-Up Agreement have each been duly authorized, executed and delivered by or on any “adverse claim,” within the meaning behalf of Section 8-102 of the UCC, to such Shares may be asserted against the Underwriter with respect to such security entitlement. For purposes of this representation, such each Selling Stockholder may assume that when such paymentand, assuming due authorization, execution and delivery by the other parties thereto, constitutes the valid and crediting occur, (A) such Shares will have been registered in legally binding agreement of each the name Selling Stockholder. The Power 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, (B) DTC will be registered as a “clearing corporation” within the meaning of Section 8-102 of the UCC and (C) appropriate entries to the accounts of the Underwriter on the records of DTC will have been made pursuant to the UCC.
(d) Such Selling Stockholder has full right, power and authority, corporate or otherwise, to enter into this Agreement.
(e) This Agreement Attorney has been duly and validly authorized, executed and delivered by or on behalf of such Institutional Selling Stockholder.
(fiv) The execution, execution and delivery and performance by such Selling Stockholder of this Agreement and the performance by such Selling Stockholder of its obligations under this Agreement, including the sale and delivery of the Shares to be sold by such Selling Stockholder and compliance by each Selling Stockholder with its obligations hereunder, do not and will not, whether with or without the consummation giving of notice or the passage of time or both, (i) violate or contravene any provision of the charter or bylaws or other organizational instrument of such Selling Stockholder, if applicable, (ii) or any applicable law, statute, regulation, or filing or any agreement or other instrument binding upon any Selling Stockholder or any judgment, order or decree of any governmental body, agency or court having jurisdiction over such Selling Stockholder, (iii) conflict with or constitute a breach of, or default under, or result in the creation or imposition of any tax, lien, charge or encumbrance upon the shares to be sold by such Selling Stockholder or any property or assets of such Selling Stockholder pursuant to the transactions contemplated hereby and thereby do not and will not (i) conflict with or result in a breach or violation terms of any of the terms or provisions of, or constitute a default under, any indenture, mortgage, deed of trust, loan agreement, license or other agreement or instrument to which such Selling Stockholder is a party or by which such any Selling Stockholder is may be bound or to which any of the property or assets of such any Selling Stockholder is subject, (ii) result in any violation of the provisions of the charter or by-laws or deed of trust (or similar organizational documents) of such Selling Stockholder, subject or (iiiiv) result in require any violation consent, approval, authorization or order of any statute or any order, rule registration or regulation of filing with any court or governmental agency or body having jurisdiction over it, except (A) such Selling Stockholder 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 the property or assets of will be effected in accordance with this Agreement and (B) for clauses (ii) and (iii), as would not result in a material adverse effect with respect to such Selling Stockholder.
(gv) No consent, approval, authorization or order of, or filing or registration with, any court or governmental agency or body having jurisdiction over such Such Selling Stockholder or has, and on the property or assets of such Selling Stockholder is required for Firm Shares Closing Date and the executionOption Share Closing Date, delivery if applicable, will have, valid and performance of this Agreement 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, except as otherwise described in the Registration Statement and Prospectus.
(vi) Such Selling Stockholder has, and on the Firm Shares Closing Date and the consummation Option Share Closing Date, if applicable, will have, the legal right, power and authority, and any approval required by law, to sell, assign, transfer and deliver the Shares to be sold by such Selling Stockholder of in the transactions contemplated hereby and thereby, except for the registration of the Shares under the Securities Act and such consents, approvals, authorizations, registrations or qualifications as may be required under the Exchange Act and applicable state securities laws in connection with the purchase and sale of the Shares manner provided by the Underwriterthis Agreement.
(hvii) All material information with respect Upon (a) the delivery of the applicable Shares by such Selling Stockholder to the Underwriters endorsed by the Selling Stockholder (or in blank by an effective endorsement), (b) the Underwriters “gives value” (as provided in Section 8-303 of the Uniform Commercial Code as in effect in the State of New York (the “Code”)) to such Selling Stockholder contained in each of the Registration Statement, the Prospectus and the Pricing Disclosure Package (as amended and supplemented, if the Company shall have filed with the Commission any amendment or supplement thereto) (i) complied and will comply in all material respects with all applicable provisions of the Securities Act and the Rules and Regulations, (ii) contains and will contain all statements of material fact required to be stated therein in accordance with the Securities Act and the Rules and RegulationsStockholder, and (iiic) the Underwriters do not have any notice of any “adverse claim” (as defined in Section 8-102 of the Code) to such Shares, then the Underwriters will be a “protected purchaser” of such Shares (as defined in Section 8-303 of the Code).
(viii) All information relating to each Selling Stockholder furnished in writing by such Selling Stockholder expressly for use in the Registration Statement and Prospectus is, and on each Closing Date will be, true, correct, and complete, and does not not, and on each Closing Date will not not, contain an any untrue statement of a material fact or omit to state a any material fact required to be stated therein or necessary in order to make the statements therein such information not misleading. Solely with respect to the Metalmark Selling Stockholders (as defined in Schedule I hereto), such Selling Stockholder is not prompted to sell the Shares by any material non-public information relating to the business, results of operations or prospects of the Company and its subsidiaries of an adverse nature that is required to be disclosed in the Registration Statement, the Pricing Disclosure Package or the Prospectus. For this purpose, information that is set forth or incorporated by reference in the Registration Statement, the Pricing Disclosure Package or the Prospectus or that otherwise has been made publicly available about the Company shall be deemed to be public information, and any opinion or conclusion that a Metalmark Selling Stockholder may hold, or analysis performed by a Metalmark Selling Stockholder, in its capacity as an investor about the business, results of operations or prospects of the Company and its subsidiaries shall not be information that relates to the business, results of operations or prospects of the Company.
(iix) Such No Selling Stockholder has not taken and no Selling Stockholder will not take, directly or indirectly, any action that is designed to or that has constituted or that could would reasonably be expected to cause or result in the stabilization or manipulation of the price of any security of the Company to facilitate the sale or resale of the Shares.
(jx) The sale representations and warranties of the Shares by such each Selling Stockholder does not violate any of in the Company’s internal policies regarding the sale of stock by its affiliates. Any certificate signed by any officer of any Selling Stockholder Custody Agreement are and delivered to the Underwriter or counsel for the Underwriter in connection with the offering of the Shares shall be deemed a representation on each Closing Date will be, true and warranty by such Selling Stockholder, as to matters covered thereby, to the Underwritercorrect.
Appears in 2 contracts
Samples: Underwriting Agreement (Seracare Life Sciences Inc), Underwriting Agreement (Seracare Life Sciences Inc)
Representations and Warranties of the Selling Stockholders. Each Selling Stockholder, severally and not jointly, represents and warrants thatto, and agrees with, the several Underwriters as follows:
(a) As of the First Delivery Date, such Selling Stockholder will be the record and a beneficial owner of the Securities to be sold by such Selling Stockholder under this Agreement, free and clear of all adverse claims, except for those arising under this Agreement; and upon delivery of and payment for such Securities hereunder in accordance with the provisions of Section 3(d) hereof, the several Underwriters will acquire a security entitlement (as that term is defined in the Uniform Commercial Code as in effect in the State of New York (the “New York UCC”) with respect to the Securities, and no action based on an adverse claim (as that term is defined under the New York UCC) to the Securities may be asserted against any of the Underwriters, provided, that each such Underwriter does not have notice of any adverse claim (within the meaning of Section 8-105 of the New York UCC). Such Selling Stockholder is selling the Securities to be sold by such Selling Stockholder for such Selling Stockholder’s own account and is not selling such Securities, directly or indirectly, for the benefit of the Company, and no part of the proceeds of such sale received by such Selling Stockholder will inure, either directly or indirectly, to the benefit of the Company other than as described in each of the Registration Statement, the most recent Preliminary Prospectus and Prospectus.
(b) Such Selling Stockholder has duly authorized, executed and delivered an Irrevocable Power of Attorney (“Irrevocable Power of Attorney”), which Irrevocable Power of Attorney is a valid and binding obligation of such Selling Stockholder, to Xxxxxxxx X. Xxxxxxx and Xxxxxxxxxxx X. Xxxxxxx, each as attorney-in-fact (the “Attorneys-in-Fact”); pursuant to the Irrevocable Power of Attorney, the Selling Stockholder has authorized and directed the Attorneys-in-Fact to effect the sale and delivery of the Securities being sold by such Selling Stockholder, to enter into this Agreement, to deliver in accordance with this Agreement the certificates representing the Securities to be sold by such Selling Stockholder and to take all such other action as may be necessary hereunder and, as of the First Delivery Date, such certificates will be duly and properly endorsed in blank for transfer, or will be accompanied by all documents duly and properly executed that are necessary to validate the transfer of title thereto, to the Underwriters, free of any legend, restriction on transferability, proxy, lien or claim, whatsoever.
(c) Such Selling Stockholder has the power and authority to enter into this Agreement and to sell, transfer and deliver the Securities to be sold by such Selling Stockholder pursuant to this Agreement.
(d) This Agreement and the Irrevocable Power of Attorney have each been duly authorized, executed and delivered by or on behalf of such Selling Stockholder and constitutes a valid and binding agreement of such Selling Stockholder, enforceable in accordance with its terms, except as rights to indemnity thereunder may be limited by federal or state securities laws and except as enforceability hereof may be limited by bankruptcy, insolvency, reorganization, moratorium or similar laws affecting enforcement of creditors’ rights or by general equitable principles (regardless of whether such enforceability is considered in a proceeding in equity or at law). The execution and delivery of this Agreement and the Irrevocable Power of Attorney and the performance of the terms hereof and thereof and the consummation of the transactions herein and therein contemplated will not (A) conflict with, result in a breach or violation of, or constitute a default (or an event that with notice or lapse of time, or both, would constitute a default) under, or result in the creation or imposition of any lien, charge or encumbrance upon any property or assets of the Selling Stockholder pursuant to any law, statute, rule or regulation or the terms of any indenture or other agreement or instrument to which such Selling Stockholder is party or bound, or to which any of the property or assets of such Selling Stockholder is subject, or (B) if such Selling Shareholder is not a natural person, result in any violation of the provisions of any charter or bylaws or certificate of formation, trust agreement, partnership agreement, articles of partnership or other organizational documents, as applicable, of the Selling Stockholder, or (C) result in any violation or breach of any judgment, order, decree statute, rule or regulation applicable to such Selling Stockholder of any court or any public, governmental or regulatory agency or body, administrative agency or arbitrator having jurisdiction over such Selling Stockholder, except in the case of clauses (A) and (C) above as would not reasonably be expected to result in a Selling Stockholder Material Adverse Effect.
(e) To such Selling Stockholder’s knowledge, no consent, approval, authorization or order of, or filing with, any court or governmental agency or body is required for the execution, delivery and performance of this Agreement and the Irrevocable Power of Attorney, including the sale of the Securities being sold by such Selling Stockholder, except such as (i) has been obtained or made under the Securities Act or the Exchange Act or as may be required by state securities or “blue sky” laws or (ii) may be required by the bylaws and rules of the FINRA.
(f) Such Selling Stockholder has not distributed and will not distribute any prospectus or other offering material in connection with the offering and sale of the Securities other than any Preliminary Prospectus or the Prospectus or other materials permitted by the Securities Act to be distributed by such Selling Stockholder. Neither such Selling Stockholder nor any person acting on behalf of such Selling Stockholder (other than, if applicable, the Company and the UnderwriterUnderwriters) has used or referred to any “free writing prospectus” (as defined in Rule 405), relating to the Shares.
(b) Such Selling Stockholder has, and immediately prior to the Closing Date on which such Selling Stockholder is selling the Shares, such 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 (the “UCC”) in respect of, the Shares to be sold by such Selling Stockholder hereunder on such Closing Date free and clear of all liens, encumbrances, equities or claims.
(c) Upon payment for the Shares to be sold by such Selling Stockholder, delivery of such Shares, as directed by the Underwriter, to Cede & Co. (“Cede”) or such other nominee as may be designated by The Depository Trust Company (“DTC”), registration of such Shares in the name of Cede or such other nominee and the crediting of such Shares on the books of DTC to securities accounts of the Underwriter (assuming that neither DTC nor the Underwriter has notice of any adverse claim (within the meaning of Section 8-105 of the UCC) to such Shares), (i) DTC shall be a “protected purchaser” of such Shares within the meaning of Section 8-303 of the UCC, (ii) under Section 8-501 of the UCC, the Underwriter will acquire a valid security entitlement in respect of such Shares and (iii) no action based on any “adverse claim,” within the meaning of Section 8-102 of the UCC, to such Shares may be asserted against the Underwriter with respect to such security entitlement. For purposes of this representation, such Selling Stockholder may assume that when such payment, delivery and crediting occur, (A) such Shares will have been registered in the name of Cede or another nominee designated by DTC, in each case on the Company’s share registry in accordance with its certificate of incorporation, bylaws and applicable law, (B) DTC will be registered as a “clearing corporation” within the meaning of Section 8-102 of the UCC and (C) appropriate entries to the accounts of the Underwriter on the records of DTC will have been made pursuant to the UCC.
(d) Such Selling Stockholder has full right, power and authority, corporate or otherwise, to enter into this Agreement.
(e) This Agreement has been duly and validly authorized, executed and delivered by or on behalf of such Selling Stockholder.
(f) The execution, delivery and performance of this Agreement by such Selling Stockholder and the consummation by such Selling Stockholder of the transactions contemplated hereby and thereby 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, any indenture, mortgage, deed of trust, loan agreement, license or other agreement or instrument to which such Selling Stockholder is a party or by which such Selling Stockholder is bound or to which any of the property or assets of such Selling Stockholder is subject, (ii) result in any violation of the provisions of the charter or by-laws or deed of trust (or similar organizational documents) of such Selling Stockholder, or (iii) result in any violation of any statute or any order, rule or regulation of any court or governmental agency or body having jurisdiction over such Selling Stockholder or the property or assets of such Selling StockholderSecurities.
(g) No consent, approval, authorization or order of, or filing or registration with, any court or governmental agency or body having jurisdiction over such Selling Stockholder or the property or assets of such Selling Stockholder is required for the execution, delivery and performance of Other than as contemplated by this Agreement by such Selling Stockholder and the consummation by such Selling Stockholder of the transactions contemplated hereby and thereby, except for the registration of the Shares under the Securities Act and such consents, approvals, authorizations, registrations or qualifications as may be required under the Exchange Act and applicable state securities laws in connection with the purchase and sale of the Shares by the Underwriter.
(h) All material information with respect to such Selling Stockholder contained disclosed in each of the Registration Statement, the most recent Preliminary Prospectus and the Pricing Disclosure Package (Prospectus, there is no broker, finder or other party that is entitled to receive from such Selling Stockholder any brokerage or finder’s fee or any other fee, commission or payment as amended and supplemented, if the Company shall have filed with the Commission any amendment or supplement thereto) (i) complied and will comply in all material respects with all applicable provisions a result of the Securities Act and transactions contemplated by this Agreement.
(h) To the Rules and Regulationsknowledge of such Selling Stockholder, (ii) contains and will contain all statements the Registration Statement did not, as of material fact required to be stated therein in accordance with the Securities Act and the Rules and RegulationsEffective Date, and (iii) does not and will not contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary in order to make the statements therein not misleading. Solely ; provided, that no representation or warranty is made as to information contained in or omitted from the Registration Statement in reliance upon and in conformity with respect written information furnished to the Metalmark Selling Stockholders Company through KBCM by or on behalf of any Underwriter specifically for inclusion therein, which information is specified in Section 8(f).
(as defined in Schedule I hereto), i) To the knowledge of such Selling Stockholder is not prompted to sell the Shares by any material non-public information relating to the businessStockholder, results of operations or prospects each of the Company most recent Preliminary Prospectus and the Prospectus will not, as of its subsidiaries date and on the applicable Delivery Date, contain an untrue statement of an adverse nature that is a material fact or omit to state a material fact required to be disclosed stated therein or necessary to make the statements therein, in the Registration Statementlight of the circumstances under which they were made, not misleading; provided, that no representation or warranty is made as to information contained in or omitted from the Prospectus in reliance upon and in conformity with written information furnished to the Company through KBCM by or on behalf of any Underwriter specifically for inclusion therein, which information is specified in Section 8(f).
(j) To the knowledge of such Selling Stockholder, the Pricing Disclosure Package or the Prospectus. For this purpose, information that is set forth or documents incorporated by reference in the Registration Statement, the Pricing Disclosure Package any Preliminary Prospectus or the Prospectus or that otherwise has been made publicly available about the Company shall be deemed to be public informationdid not, and any opinion further documents filed and incorporated by reference therein will not, when filed with the Commission, contain an untrue statement of a material fact or conclusion that omit to state a Metalmark Selling Stockholder may hold, material fact required to be stated therein or analysis performed by a Metalmark Selling Stockholdernecessary to make the statements therein, in its capacity as an investor about the business, results of operations or prospects light of the Company and its subsidiaries shall circumstances under which they were made, not be information that relates to the business, results of operations or prospects of the Companymisleading.
(ik) Such Selling Stockholder has not taken and will not take, directly or indirectly, any action that is designed to or that has constituted or that could reasonably be expected to cause or result in the stabilization or manipulation of the price of any security of the Company to facilitate the sale or resale of the Sharesshares of the Securities.
(jl) The sale representations and warranties of the Shares by such Selling Stockholder does not violate any in its Irrevocable Power of Attorney are, and on the Company’s internal policies regarding the sale of stock by its affiliatesFirst Delivery Date will be, true and correct. Any certificate signed by a Selling Stockholder (if such Selling Stockholder is a natural person) or any officer of any Selling Stockholder (if such Selling Stockholder is an entity) and delivered to the Underwriter KBCM or counsel for the Underwriter Underwriters in connection with the offering of the Shares Securities shall be deemed a representation and warranty by such Selling Stockholder, as to matters covered thereby, to the each Underwriter.
Appears in 2 contracts
Samples: Underwriting Agreement (Rex Energy Corp), Underwriting Agreement (Rex Energy Corp)
Representations and Warranties of the Selling Stockholders. Each Selling Stockholder, Stockholder hereby severally and not jointly, jointly represents and warrants thatto each Underwriter as of the date hereof, as of the Firm Shares Closing Date and, if such Selling Stockholder is selling Option Shares, as of each such Option Shares Closing Date (if any), as to itself only, as follows:
(a) Neither such Except in the case of Shares issuable upon the exercise of warrants (the "Warrants") previously issued by the Company (the "Warrant Shares"), the Selling Stockholder nor any person acting on behalf has caused certificates for the number of such Selling Stockholder (other than, if applicable, the Company and the Underwriter) has used or referred to any “free writing prospectus” (as defined in Rule 405), relating to the Shares.
(b) Such Selling Stockholder has, and immediately prior to the Closing Date on which such Selling Stockholder is selling the Shares, such 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 (the “UCC”) in respect of, the Shares to be sold by such Selling Stockholder hereunder to be delivered to Computershare Trust Company, Inc. (the "Custodian"), endorsed in blank or with blank stock powers duly executed, with a signature appropriately guaranteed, such certificates to be held in custody by the Custodian for delivery, pursuant to the provisions of this Agreement and an agreement among the Custodian and the Selling Stockholder (the "Custody Agreement"). Each Selling Stockholder selling Warrant Shares has (i) delivered to the Company an exercise notice for the exchange of the Warrants, in whole or in part, as the case may be, for the Warrant Shares; (ii) instructed the Company to deliver the Warrant Shares to the persons named in the Power of Attorney (as defined below) to be held on behalf of such Selling Stockholder; and (iii) instructed the persons named in the Power of Attorney to deliver such Warrant Shares to the Custodian, endorsed in blank or with blank stock powers duly executed, with a signature appropriately guaranteed, such certificates to be held in custody by the Custodian for delivery, pursuant to the provisions of this Agreement and the Custody Agreement. The Selling Stockholder delivering Warrant Shares for sale under this Agreement has taken all action required to exercise the Warrants in an amount necessary such that, when combined with other Shares represented by certificates delivered to the Custodian, the Selling Stockholder can deliver the specified number of Shares sold pursuant to this Agreement by such Selling Shareholder on the Firm Shares Closing Date free Date.
(b) The Selling Stockholder has granted an irrevocable power of attorney (the "Power of Attorney") to the persons named therein, on behalf of the Selling Stockholder, to execute and clear of all liens, encumbrances, equities deliver this Agreement and any other document necessary or claimsdesirable in connection with the transactions contemplated hereby and to deliver the shares to be sold by the Selling Stockholder pursuant hereto.
(c) Upon payment for This Agreement and the Shares to be sold transactions contemplated herein have been duly authorized by the Selling Stockholder, and upon execution and delivery of this Agreement by one of the Attorneys (as defined in the Power of Attorney) on behalf of such Selling Stockholder in accordance with the Power of Attorney, this Agreement will have been duly executed and delivered by such Selling Stockholder, delivery of such Shares, as directed by the Underwriter, to Cede & Co. (“Cede”) or such other nominee as may be designated by The Depository Trust Company (“DTC”), registration of such Shares in the name of Cede or such other nominee and the crediting of such Shares on the books of DTC to securities accounts of the Underwriter (assuming that neither DTC nor the Underwriter has notice of any adverse claim (within the meaning of Section 8-105 of the UCC) to such Shares), (i) DTC shall be a “protected purchaser” of such Shares within the meaning of Section 8-303 of the UCC, (ii) under Section 8-501 of the UCC, the Underwriter will acquire a valid security entitlement in respect of such Shares and (iii) no action based on any “adverse claim,” within the meaning of Section 8-102 of the UCC, to such Shares may be asserted against the Underwriter with respect to such security entitlement. For purposes of this representation, such Selling Stockholder may assume that when such payment, delivery and crediting occur, (A) such Shares will have been registered in the name of Cede or another nominee designated by DTC, in each case on the Company’s share registry in accordance with its certificate of incorporation, bylaws and applicable law, (B) DTC will be registered as a “clearing corporation” within the meaning of Section 8-102 of the UCC and (C) appropriate entries to the accounts of the Underwriter on the records of DTC will have been made pursuant to the UCC.
(d) Such Each of the Custody Agreement, the Power of Attorney, the Lock-Up Agreement, and the transactions contemplated in each, have been duly authorized, by or on behalf of the Selling Stockholder has full rightStockholder, power and authorityeach of the Custody Agreement, corporate or otherwise, to enter into this Agreement.
(e) This Power of Attorney and the Lock-Up Agreement has been duly and validly authorized, executed and delivered by or on behalf of such the Selling Stockholder, and, assuming due authorization, execution and delivery by the other parties thereto, constitutes the valid and legally binding agreement of the Selling Stockholder, enforceable against the Selling Stockholder in accordance with its terms, except as such enforceability may be limited by applicable bankruptcy, insolvency, reorganization, fraudulent transfer, moratorium or other similar laws relating to or affecting the enforcement of creditors' rights generally and by general principles of equity and public policy (regardless of whether enforcement is sought in a proceeding at law or in equity).
(fe) The execution, execution and delivery and performance by the Selling Stockholder of this Agreement by such Selling Stockholder and the consummation performance by such the Selling Stockholder of the transactions contemplated hereby and thereby its obligations under this Agreement, do not and will not not, whether with or without the giving of notice or the passage of time or both, (i) violate or contravene any provision of the limited partnership agreement, limited liability company agreement, trust agreement or declaration, charter or by-laws or other organizational instrument of the Selling Stockholder, if applicable, or any applicable law, statute, regulation, or any 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) conflict with or result in constitute a breach or violation of any of the terms or provisions of, or constitute a default under, or result in the creation or imposition of any indenturetax, mortgagelien, deed charge or encumbrance upon the shares to be sold by the Selling Stockholder or any property or assets of trust, loan agreement, license or other the Selling Stockholder pursuant to the terms of any agreement or instrument to which such the Selling Stockholder is a party or by which such the Selling Stockholder is may be bound or to which any of the property or assets of such the Selling Stockholder is subject, (ii) result in any violation of the provisions of the charter or by-laws or deed of trust (or similar organizational documents) of such Selling Stockholder, subject or (iii) result in require any violation consent, approval, authorization or order of any statute or any order, rule registration or regulation of filing with any court or governmental agency or body having jurisdiction over it, except such Selling Stockholder as may be required by the federal securities laws or the property Blue Sky laws of the various states or assets under the rules of the NASD in connection with the offer and sale of the Shares which have been or will be effected in accordance with this Agreement, and, with respect to each of (i), (ii) and (iii) above, except where such Selling Stockholder.
(g) No breach, violation, default, creation, imposition or contravention or failure to obtain such consent, approval, authorization or order oforder, individually or filing or registration within the aggregate, any court or governmental agency or body having jurisdiction over such Selling Stockholder or the property or assets of such Selling Stockholder is required for the execution, delivery and performance of this Agreement by such Selling Stockholder and would not have a material adverse effect on the consummation by such the Selling Stockholder of the transactions contemplated hereby by this Agreement.
(f) Except in the case of the Warrant Shares, the Selling Stockholder is, and therebyon the Firm Shares Closing Date and the Option Share Closing Date, except for if applicable, will be the registration lawful record owner of the Shares under to be sold by such Selling Stockholder at the Securities Act Firm Shares Closing or the Option Shares Closing, as applicable, free and clear of any lien, claim, security interest or other encumbrance, including, without limitation, any restriction on transfer, except as otherwise described in the Registration Statement and Prospectus or pursuant to the Power of Attorney or Custody Agreement. Each Selling Stockholder selling Warrant Shares on the Firm Shares Closing Date and the Option Share Closing Date, if applicable, will be the lawful record owner of the Warrant Shares to be sold by such consentsSelling Stockholder at the Firm Shares Closing or the Option Shares Closing, approvalsas applicable, authorizationsfree and clear of any lien, registrations claim, security interest or qualifications other encumbrance, including, without limitation, any restriction on transfer, except as may otherwise described in the Registration Statement and Prospectus or pursuant to the Power of Attorney or Custody Agreement.
(g) If the certificates for the Shares to be required under sold by the Exchange Act Selling Stockholder were delivered to the Underwriters in the State of New York and applicable state securities laws assuming the Underwriters purchase the Shares to be sold by such Selling Stockholder in connection good faith and without "notice of adverse claim" (as such phrase is used in Section 8-105 of the New York Uniform Commercial Code as currently in effect in the State of New York (the "NY UCC"), upon (i) delivery (as defined in Section 8-301(a) of the NY UCC) to the Underwriters of the certificates representing such Shares endorsed in blank by an effective endorsement (within the meaning of Section 8-107 of the NY UCC), and (ii) payment therefore in accordance with the purchase terms of this Agreement and sale the Custody Agreement, the Underwriters would become "protected purchasers" (as defined in Section 8-303(a) of the NY UCC) of such Shares, and will acquire such Shares free and clear of "adverse claims" (as defined in Section 8-102 of the NY UCC) except for any such adverse claims created by or at the Underwriterrequest of the Underwriters.
(h) All material information with respect relating to such the Selling Stockholder contained furnished in each of writing by the Selling Stockholder to the Company expressly for use in the Registration StatementStatement and Prospectus is, the Prospectus and the Pricing Disclosure Package (as amended on each Closing Date will be, true, correct, and supplemented, if the Company shall have filed with the Commission any amendment or supplement thereto) (i) complied and will comply complete in all material respects with all applicable provisions of the Securities Act and the Rules and Regulations, (ii) contains and will contain all statements of material fact required to be stated therein in accordance with the Securities Act and the Rules and Regulationsrespects, and (iii) does not not, and on each Closing Date will not not, contain an any untrue statement of a material fact or omit to state a any material fact required to be stated therein or necessary to make such information not misleading.
(i) Each Selling Stockholder who is an officer of the Company has reviewed the Registration Statement and Prospectus and, although the Selling Stockholder has not independently verified the accuracy or completeness of all the information contained therein, nothing has come to the attention of the Selling Stockholder that would lead the Selling Stockholder to believe that (i) on the Effective Date, the Registration Statement contained any untrue statement of a material fact or omitted to state any material fact required to be stated therein in order to make the statements made therein not misleading and (ii) on the Effective Date the Prospectus contained and, on each Closing Date contains, no untrue statement of a material fact or omitted or omits to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, misleading. Solely with respect to .
(j) The sale of Shares by the Metalmark Selling Stockholders (as defined in Schedule I hereto), such Selling Stockholder pursuant to this Agreement is not prompted to sell by the Shares by Selling Stockholder's knowledge of any material non-public information relating to the business, results of operations or prospects of concerning the Company and or any of its subsidiaries of an adverse nature that which is required to be disclosed not set forth in the Registration Statement, the Pricing Disclosure Package or the Prospectus. For this purpose, information that is set forth or incorporated by reference in the Registration Statement, the Pricing Disclosure Package or the Prospectus or that otherwise has been made publicly available about the Company shall be deemed to be public information, and any opinion or conclusion that a Metalmark Selling Stockholder may hold, or analysis performed by a Metalmark Selling Stockholder, in its capacity as an investor about the business, results of operations or prospects of the Company and its subsidiaries shall not be information that relates to the business, results of operations or prospects of the Company.
(ik) Such The Selling Stockholder has not taken and will not take, directly or indirectly, any action that is designed to or that has constituted or that could might reasonably be expected to cause or result in the stabilization or manipulation of the price of any security of the Company to facilitate the sale or resale of the Shares.
(j) The sale of the Shares by such Selling Stockholder does not violate any of the Company’s internal policies regarding the sale of stock by its affiliates. Any certificate signed by any officer of any 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 such Selling Stockholder, as to matters covered thereby, to the Underwriter.
Appears in 2 contracts
Samples: Underwriting Agreement (Carrizo Oil & Gas Inc), Underwriting Agreement (Carrizo Oil & Gas Inc)
Representations and Warranties of the Selling Stockholders. Each Selling StockholderStockholder represents, warrants and covenants to the Company and the Underwriters, severally and not jointly, represents and warrants thatas follows:
(a) Neither such Selling Stockholder nor any person acting This Agreement has been duly authorized, executed and delivered by or on behalf of such Selling Stockholder (other than, if applicable, the Company and the Underwriter) has used or referred to any “free writing prospectus” (as defined in Rule 405), relating to the SharesStockholder.
(b) Such Selling Stockholder has, and immediately prior to the Closing Date on which If such Selling Stockholder is selling the Sharesa Management Selling Stockholder, such Selling Stockholder will have, good and valid title to or a valid “security entitlement” within the meaning of Section 8(i) book-501 entry entitlements representing all of the New York Uniform Commercial Code (the “UCC”) in respect of, the Shares Securities to be sold by such Management Selling Stockholder hereunder have been placed in custody under a Custody Agreement, in the form heretofore furnished to you (the “Custody Agreement”), duly executed and delivered by such Management Selling Stockholder to Computershare Trust Company, N.A., as custodian (the “Custodian”) and (ii) such Management Selling Stockholder shall have duly executed and delivered a Power of Attorney, in the form heretofore furnished to you (the “Power of Attorney”), appointing Xxxxxxxx Xxxxxxx and Xxxxx Xxxxxxxx, and each of them, as such Management’s Selling Stockholder’s attorneys-in-fact (the “Attorneys-in-Fact”) with authority to execute and deliver this Agreement on behalf of such Closing Date free Management Selling Stockholder, to determine the purchase price to be paid by the Underwriters to the Selling Stockholders as provided in Section 3 hereof, to execute and clear deliver a Stock Power relating to the Underwritten Securities to be sold by such Management Selling Stockholder (the “Stock Power”), to authorize the delivery of all liens, encumbrances, equities or claimsthe Securities to be sold by such Management Selling Stockholder hereunder and to otherwise to act on behalf of such Management Selling Stockholder in connection with the transactions contemplated by this Agreement and the Custody Agreement.
(c) Upon payment for the Shares Underwritten Securities to be sold by such Selling StockholderStockholders pursuant to this Agreement, delivery of such SharesUnderwritten Securities, as directed by the UnderwriterRepresentatives, to Cede & Co. (“Cede”) or such other nominee as may be designated by The Depository Trust Company (“DTC”), registration of such Shares Underwritten Securities in the name of Cede or such other nominee and the crediting of such Shares on the books of DTC to the securities accounts account of the Underwriter Underwriters (assuming that neither DTC nor the Underwriter 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 Shares), (iA) DTC shall be a “protected purchaser” of such Shares Underwritten Securities within the meaning of Section 8-303 of the UCC, (iiB) under Section 8-501 of the UCC, the Underwriter Underwriters will acquire a valid security entitlement in respect of such Shares Underwritten Securities and (iiiC) no action based on any “adverse claim,” ”, within the meaning of Section 8-102 of the UCC, to such Shares Underwritten Securities may be asserted against the Underwriter Underwriters with respect to such security entitlement. For ; for purposes of this representation, such Selling Stockholder may assume that when such payment, delivery and crediting occur, (Ax) such Shares Underwritten Securities will have been registered in the name of Cede or another nominee designated by DTC, in each case on the Company’s share registry in accordance with its certificate of incorporation, bylaws and applicable law, (By) DTC will be registered as a “clearing corporation” within the meaning of Section 8-102 of the UCC and (Cz) appropriate entries entry to the accounts account of the Underwriter Underwriters on the records of DTC will have been made pursuant to the UCC.
(d) Such Selling Stockholder has full right, power The execution and authority, corporate or otherwise, to enter into this Agreement.
(e) This Agreement has been duly and validly authorized, executed and delivered delivery by or on behalf of such Selling Stockholder.
(f) The execution, delivery and performance of this Agreement by or such Selling Stockholder Stockholder’s Attorneys-in-Fact, as applicable, of, and the consummation performance by such Selling Stockholder of its obligations under, this Agreement, and, if such Selling Stockholder is a Management Selling Stockholder, the transactions contemplated hereby Power of Attorney, the Custody Agreement and thereby do not and Stock Power, will not (i) contravene or conflict with or with, result in a breach or violation of any of the terms or provisions of, or constitute a default (or, with the giving of notice or lapse of time, would be in default) under, or require the consent of any indentureother party to, mortgage(i) in the case of the KKR Selling Stockholder, deed the limited partnership agreement of trustthe KKR Selling Stockholder, loan (ii) in the case of each Berkshire Selling Stockholder, the limited partnership agreement or limited liability company agreement, license or as the case may be, of such Selling Stockholder, (iii) any other agreement or instrument to which such Selling Stockholder is a party or by which it is bound or (iv) any provision of applicable law or any judgment, order, decree or regulation applicable to such Selling Stockholder is bound or to which any of the property or assets of such Selling Stockholder is subject, (ii) result in any violation of the provisions of the charter or by-laws or deed of trust (or similar organizational documents) of such Selling Stockholder, or (iii) result in any violation of any statute court, regulatory body, administrative agency, governmental body or any order, rule or regulation of any court or governmental agency or body arbitrator having jurisdiction over such Selling Stockholder Stockholder, except, in the case of the foregoing clauses (iii) and (iv) as would not, individually or in the property or assets of aggregate, reasonably be expected to materially impact such Selling Stockholder.
(g) ’s ability to perform its obligations under this Agreement. No consent, approval, authorization or other order of, or registration or filing or registration with, any court or other governmental agency authority or body having jurisdiction over such Selling Stockholder or the property or assets of such Selling Stockholder agency, is required for the execution, delivery and performance of this Agreement by such Selling Stockholder and the consummation by such Selling Stockholder of the transactions contemplated hereby in this Agreement or, if such Selling Stockholder is a Management Selling Stockholder, under the Power of Attorney, the Custody Agreement and therebythe Stock Power, except for the registration of the Shares under the Securities Act and such consents, approvals, authorizations, registrations or qualifications as may be required under the Exchange Act and Securities Act, applicable state securities or blue sky laws in connection with and from the purchase FINRA and sale of such other approvals as have been or will be made or obtained on or prior to the Shares by the UnderwriterClosing Date.
(he) All material information with respect furnished to the Company or the Underwriters by or on behalf of such Selling Stockholder contained in each of writing expressly for use in the Registration Statement, the Prospectus and the Pricing Disclosure Package (as amended or the Prospectus is, and supplementedon the Closing Date will be, if the Company shall have filed with the Commission any amendment or supplement thereto) (i) complied true, correct and will comply complete in all material respects with all applicable provisions respects, and did not, as of the Securities Act and the Rules and Regulations, (ii) contains and will contain all statements of material fact required to be stated therein in accordance with the Securities Act and the Rules and RegulationsExecution Time, and (iii) does not and on the Closing Date will not not, contain an any untrue statement of a material fact or omit to state a any material fact required to be stated therein or necessary in order to make the statements therein such information not misleading. Solely , it being understood and agreed that the only such information consists of the information with respect to the Metalmark Selling Stockholders (as defined in Schedule I hereto), such Selling Stockholder is not prompted to sell under the Shares by any material non-public information relating to the business, results of operations or prospects of the Company and its subsidiaries of an adverse nature that is required to be disclosed caption “Selling Stockholders” in the Registration Statement, the Pricing Disclosure Package or and the Prospectus. For this purposeProspectus (such information, information that is set forth or incorporated by reference the “Selling Stockholders Information”).
(f) Prior to the completion of the Underwriters’ distribution of the Underwritten Securities, such Selling Stockholder has not distributed and will not distribute any offering material in connection with the offering and sale of the Underwritten Securities other than the Registration Statement, the Pricing Preliminary Prospectus, the Disclosure Package or and the Prospectus or that otherwise has been made publicly available about the Company shall be deemed to be public information, and any opinion or conclusion that a Metalmark Selling Stockholder may hold, or analysis performed by a Metalmark Selling Stockholder, in its capacity as an investor about the business, results of operations or prospects of the Company and its subsidiaries shall not be information that relates to the business, results of operations or prospects of the CompanyProspectus.
(ig) Such Selling Stockholder has not taken and will not take, directly or indirectly, any action that is designed to or that has constituted or that could might reasonably be expected to cause or result in the stabilization or manipulation of the price of any security of the Company to facilitate the sale or resale of the Shares.
(j) The sale of the Shares by such Selling Stockholder does not violate any of the Company’s internal policies regarding the sale of stock by its affiliatesSecurities. Any certificate signed by any officer or on behalf of any such Selling Stockholder and delivered to the Underwriter Representatives or to counsel for the Underwriter Underwriters in connection with the offering of the Shares Securities shall be deemed a representation and warranty by such Selling Stockholder, Stockholder to the Underwriters as to the matters covered therebythereby with respect to such Selling Stockholder. Such Selling Stockholder has a reasonable basis for making each of the representations set forth in this Section 2. Such Selling Stockholder acknowledges that the Underwriters and, for purposes of the opinions to be delivered pursuant to Sections 8(b)(i) and (iii) and Section 8(c) hereof, counsel to such Selling Stockholder and counsel to the UnderwriterUnderwriters, will rely upon the accuracy and truthfulness of the foregoing representations and hereby consents to such reliance.
Appears in 2 contracts
Samples: Underwriting Agreement (National Vision Holdings, Inc.), Underwriting Agreement (National Vision Holdings, Inc.)
Representations and Warranties of the Selling Stockholders. Each Selling StockholderStockholder represents, warrants and covenants to the Company and the Underwriters, severally and not jointly, represents and warrants thatas follows:
(a) Neither such Selling Stockholder nor any person acting This Agreement has been duly authorized, executed and delivered by or on behalf of such Selling Stockholder (other than, if applicable, the Company and the Underwriter) has used or referred to any “free writing prospectus” (as defined in Rule 405), relating to the SharesStockholder.
(b) Such Selling Stockholder has, and immediately prior to the Closing Date on which If such Selling Stockholder is selling the Sharesa Management Selling Stockholder, such Selling Stockholder will have, good and valid title to or a valid “security entitlement” within the meaning of Section 8(i) book-501 entry entitlements representing all of the New York Uniform Commercial Code (the “UCC”) in respect of, the Shares Securities to be sold by such Management Selling Stockholder hereunder have been placed in custody under a Custody Agreement, in the form heretofore furnished to you (the “Custody Agreement”), duly executed and delivered by such Management Selling Stockholder to Computershare Trust Company, N.A., as custodian (the “Custodian”), (ii) such Management Selling Stockholder shall have duly executed and delivered a Stock Power relating to the Underwritten Securities to be sold by such Management Selling Stockholder (the “Stock Power”), and (iii) such Management Selling Stockholder shall have duly executed and delivered a Power of Attorney, in the form heretofore furnished to you (the “Power of Attorney”), appointing Xxxxxxxx Xxxxxxx and Xxxxx Xxxxxxxx, and each of them, as such Management’s Selling Stockholder’s attorneys-in-fact (the “Attorneys-in-Fact”) with authority to execute and deliver this Agreement on behalf of such Closing Date free Management Selling Stockholder, to determine the purchase price to be paid by the Underwriters to the Selling Stockholders as provided in Section 3 hereof, to authorize the delivery of the Securities to be sold by such Management Selling Stockholder hereunder and clear otherwise to act on behalf of all liens, encumbrances, equities or claimssuch Management Selling Stockholder in connection with the transactions contemplated by this Agreement and the Custody Agreement.
(c) Upon payment for the Shares Underwritten Securities to be sold by such Selling StockholderStockholders pursuant to this Agreement, delivery of such SharesUnderwritten Securities, as directed by the UnderwriterRepresentatives, to Cede & Co. (“Cede”) or such other nominee as may be designated by The Depository Trust Company (“DTC”), registration of such Shares Underwritten Securities in the name of Cede or such other nominee and the crediting of such Shares on the books of DTC to the securities accounts account of the Underwriter Underwriters (assuming that neither DTC nor the Underwriter 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 Shares), (iA) DTC shall be a “protected purchaser” of such Shares Underwritten Securities within the meaning of Section 8-303 of the UCC, (iiB) under Section 8-501 of the UCC, the Underwriter Underwriters will acquire a valid security entitlement in respect of such Shares Underwritten Securities and (iiiC) no action based on any “adverse claim,” ”, within the meaning of Section 8-102 of the UCC, to such Shares Underwritten Securities may be asserted against the Underwriter Underwriters with respect to such security entitlement. For ; for purposes of this representation, such Selling Stockholder may assume that when such payment, delivery and crediting occur, (Ax) such Shares Underwritten Securities will have been registered in the name of Cede or another nominee designated by DTC, in each case on the Company’s share registry in accordance with its certificate of incorporation, bylaws and applicable law, (By) DTC will be registered as a “clearing corporation” within the meaning of Section 8-102 of the UCC and (Cz) appropriate entries entry to the accounts account of the Underwriter Underwriters on the records of DTC will have been made pursuant to the UCC.
(d) Such Selling Stockholder has full right, power The execution and authority, corporate or otherwise, to enter into this Agreement.
(e) This Agreement has been duly and validly authorized, executed and delivered delivery by or on behalf of such Selling Stockholder.
(f) The execution, delivery and performance of this Agreement by or such Selling Stockholder Stockholder’s Attorneys-in-Fact, as applicable, of, and the consummation performance by such Selling Stockholder of its obligations under, this Agreement, and, if such Selling Stockholder is a Management Selling Stockholder, the transactions contemplated hereby Power of Attorney, the Custody Agreement and thereby do not and Stock Power, will not (i) contravene or conflict with or with, result in a breach or violation of any of the terms or provisions of, or constitute a default (or, with the giving of notice or lapse of time, would be in default) under, or require the consent of any indentureother party to, mortgage(i) in the case of the KKR Selling Stockholder, deed the limited partnership agreement of trustthe KKR Selling Stockholder, loan (ii) in the case of each Berkshire Selling Stockholder, the limited partnership agreement or limited liability company agreement, license or as the case may be, of such Selling Stockholder, (iii) any other agreement or instrument to which such Selling Stockholder is a party or by which it is bound or (iv) any provision of applicable law or any judgment, order, decree or regulation applicable to such Selling Stockholder is bound or to which any of the property or assets of such Selling Stockholder is subject, (ii) result in any violation of the provisions of the charter or by-laws or deed of trust (or similar organizational documents) of such Selling Stockholder, or (iii) result in any violation of any statute court, regulatory body, administrative agency, governmental body or any order, rule or regulation of any court or governmental agency or body arbitrator having jurisdiction over such Selling Stockholder Stockholder, except, in the case of the foregoing clauses (iii) and (iv) as would not, individually or in the property or assets of aggregate, reasonably be expected to materially impact such Selling Stockholder.
(g) ’s ability to perform its obligations under this Agreement. No consent, approval, authorization or other order of, or registration or filing or registration with, any court or other governmental agency authority or body having jurisdiction over such Selling Stockholder or the property or assets of such Selling Stockholder agency, is required for the execution, delivery and performance of this Agreement by such Selling Stockholder and the consummation by such Selling Stockholder of the transactions contemplated hereby in this Agreement or, if such Selling Stockholder is a Management Selling Stockholder, under the Power of Attorney, the Custody Agreement and therebythe Stock Power, except for the registration of the Shares under the Securities Act and such consents, approvals, authorizations, registrations or qualifications as may be required under the Exchange Act and Securities Act, applicable state securities or blue sky laws in connection with and from the purchase FINRA and sale of such other approvals as have been or will be made or obtained on or prior to the Shares by the UnderwriterClosing Date.
(he) All material information with respect furnished to the Company or the Underwriters by or on behalf of such Selling Stockholder contained in each of writing expressly for use in the Registration Statement, the Prospectus and the Pricing Disclosure Package (as amended or the Prospectus is, and supplementedon the Closing Date will be, if the Company shall have filed with the Commission any amendment or supplement thereto) (i) complied true, correct and will comply complete in all material respects with all applicable provisions respects, and did not, as of the Securities Act and the Rules and Regulations, (ii) contains and will contain all statements of material fact required to be stated therein in accordance with the Securities Act and the Rules and RegulationsExecution Time, and (iii) does not and on the Closing Date will not not, contain an any untrue statement of a material fact or omit to state a any material fact required to be stated therein or necessary in order to make the statements therein such information not misleading. Solely , it being understood and agreed that the only such information consists of the information with respect to the Metalmark Selling Stockholders (as defined in Schedule I hereto), such Selling Stockholder is not prompted to sell under the Shares by any material non-public information relating to the business, results of operations or prospects of the Company and its subsidiaries of an adverse nature that is required to be disclosed caption “Selling Stockholders” in the Registration Statement, the Pricing Disclosure Package or and the Prospectus. For this purposeProspectus (such information, information that is set forth or incorporated by reference the “Selling Stockholders Information”).
(f) Prior to the completion of the Underwriters’ distribution of the Underwritten Securities, such Selling Stockholder has not distributed and will not distribute any offering material in connection with the offering and sale of the Underwritten Securities other than the Registration Statement, the Pricing Preliminary Prospectus, the Disclosure Package or and the Prospectus or that otherwise has been made publicly available about the Company shall be deemed to be public information, and any opinion or conclusion that a Metalmark Selling Stockholder may hold, or analysis performed by a Metalmark Selling Stockholder, in its capacity as an investor about the business, results of operations or prospects of the Company and its subsidiaries shall not be information that relates to the business, results of operations or prospects of the CompanyProspectus.
(ig) Such Selling Stockholder has not taken and will not take, directly or indirectly, any action that is designed to or that has constituted or that could might reasonably be expected to cause or result in the stabilization or manipulation of the price of any security of the Company to facilitate the sale or resale of the SharesSecurities.
(jh) The sale Such Selling Stockholder is not (i) an employee benefit plan (as defined in Section 3(3) of ERISA that is subject to the prohibited transaction provisions of Section 406 of ERISA), (ii) a “plan” as defined in Section 4975 of the Shares by such Selling Stockholder does not violate any Code or (iii) an entity deemed to hold “plan assets” of the Company’s internal policies regarding the sale foregoing plans described in clause (i) or (ii) pursuant to 29 CFR 2510.3 as modified by Section 3(42) of stock by its affiliatesERISA. Any certificate signed by any officer or on behalf of any such Selling Stockholder and delivered to the Underwriter Representatives or to counsel for the Underwriter Underwriters in connection with the offering of the Shares Securities shall be deemed a representation and warranty by such Selling Stockholder, Stockholder to the Underwriters as to the matters covered therebythereby with respect to such Selling Stockholder. Such Selling Stockholder has a reasonable basis for making each of the representations set forth in this Section 2. Such Selling Stockholder acknowledges that the Underwriters and, for purposes of the opinions to be delivered pursuant to Sections 8(b)(i) and (iii) and Section 8(c) hereof, counsel to such Selling Stockholder and counsel to the UnderwriterUnderwriters, will rely upon the accuracy and truthfulness of the foregoing representations and hereby consents to such reliance.
Appears in 2 contracts
Samples: Underwriting Agreement (National Vision Holdings, Inc.), Underwriting Agreement (National Vision Holdings, Inc.)
Representations and Warranties of the Selling Stockholders. Each Selling Stockholder, severally and not jointly, Stockholder represents and warrants to each Underwriter that:
(a) Neither such Selling Stockholder nor any person acting on behalf of such Selling Stockholder (other than, if applicable, the Company and the Underwriter) has used or referred to any “free writing prospectus” (as defined in Rule 405), relating to the Shares.
(b) Such Selling Stockholder has, and immediately prior to is the Closing Date on which such Selling Stockholder is selling the Shares, such Selling Stockholder will have, good and valid title to or a valid “security entitlement” within the meaning lawful owner of Section 8-501 of the New York Uniform Commercial Code (the “UCC”) in respect of, the Shares to be sold by such Selling Stockholder hereunder pursuant to this Agreement and has, and on such the Closing Date free will have, good and clear title to such Shares, free of all restrictions on transfer, liens, encumbrances, security interests, equities or claimsand claims whatsoever.
(b) The Shares to be sold by such Selling Stockholder have been duly authorized and are validly issued, fully paid and non-assessable.
(c) Upon payment for Such Selling Stockholder has, and on the Closing Date will have, full legal right, power and authority, and all authorization and approval required by law, to enter into this Agreement, the Custody Agreement signed by such Selling Stockholder and ______________, as Custodian, relating to the deposit of the Shares to be sold by such Selling Stockholder, delivery of such Shares, as directed by Stockholder (the Underwriter, to Cede & Co. (“Cede”"CUSTODY AGREEMENT") 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 Power of such Shares on the books Attorney of DTC to securities accounts of the Underwriter (assuming that neither DTC nor the Underwriter has notice of any adverse claim (within the meaning of Section 8-105 of the UCC) to such Shares), (i) DTC shall be a “protected purchaser” of such Shares within the meaning of Section 8-303 of the UCC, (ii) under Section 8-501 of the UCC, the Underwriter will acquire a valid security entitlement in respect of such Shares and (iii) no action based on any “adverse claim,” within the meaning of Section 8-102 of the UCC, to such Shares may be asserted against the Underwriter with respect to such security entitlement. For purposes of this representation, such Selling Stockholder may assume that when appointing certain individuals as such paymentSelling Stockholder's attorneys-in-fact (the "ATTORNEYS") to the extent set forth therein, delivery relating to the transactions contemplated hereby and crediting occurby the Registration Statement and the Custody Agreement (the "POWER OF ATTORNEY") and to sell, (A) assign, transfer and deliver the Shares to be sold by such Shares will have been registered Selling Stockholder 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 manner provided herein and applicable law, (B) DTC will be registered as a “clearing corporation” within the meaning of Section 8-102 of the UCC and (C) appropriate entries to the accounts of the Underwriter on the records of DTC will have been made pursuant to the UCCtherein.
(d) Such Selling Stockholder has full right, power and authority, corporate or otherwise, to enter into this Agreement.
(e) This Agreement has been duly and validly authorized, executed and delivered by or on behalf of such Selling Stockholder.
(e) The Custody Agreement of such Selling Stockholder has been duly authorized, executed and delivered by such Selling Stockholder and is a valid and binding agreement of such Selling Stockholder, enforceable in accordance with its terms.
(f) The Power of Attorney of such Selling Stockholder has been duly authorized, executed and delivered by such Selling Stockholder and is a valid and binding instrument of such Selling Stockholder, enforceable in accordance with its terms, and, pursuant to such Power of Attorney, such Selling Stockholder has, among other things, authorized the Attorneys, or any one of them, to execute and deliver on such Selling Stockholder's behalf this Agreement and any other document that they, or any one of them, may deem necessary or desirable in connection with the transactions contemplated hereby and thereby and to deliver the Shares to be sold by such Selling Stockholder pursuant to this Agreement.
(g) Upon delivery of and payment for the Shares to be sold by such Selling Stockholder pursuant to this Agreement, good and clear title to such Shares will pass to the Underwriters, free of all restrictions on transfer, liens, encumbrances, security interests, equities and claims whatsoever.
(h) The execution, delivery and performance of this Agreement and the Custody Agreement and Power of Attorney of such Selling Stockholder by or on behalf of such Selling Stockholder, the compliance by such Selling Stockholder with all the provisions hereof and thereof and the consummation by such Selling Stockholder of the transactions contemplated hereby and thereby do not and will not (i) require any consent, approval, authorization or other order of, or qualification with, any court or governmental body or agency (except such as may be required under the securities or Blue Sky laws of the various states), (ii) conflict with or result in constitute a breach or violation of any of the terms or provisions of, or constitute a default under, the organizational documents of such Selling Stockholder, if such Selling Stockholder is not an individual, or any indenture, mortgage, deed of trust, loan agreement, license mortgage, lease or other agreement or instrument to which such Selling Stockholder is a party or by which such Selling Stockholder is bound or to which any of the property or assets of such Selling Stockholder is subject, (ii) result in any violation of the provisions of the charter or by-laws or deed of trust (or similar organizational documents) of such Selling Stockholder, bound or (iii) result in violate or conflict with any violation of any statute applicable law or any orderrule, rule regulation, judgment, order or regulation decree of any court or any governmental body or agency or body having jurisdiction over such Selling Stockholder or the any property or assets of such Selling Stockholder.
(gi) No consent, approval, authorization or order of, or filing or registration with, any court or governmental agency or body having jurisdiction over such Selling Stockholder or The information in the property or assets of such Selling Stockholder is required for the execution, delivery and performance of this Agreement by such Selling Stockholder and the consummation by such Selling Stockholder of the transactions contemplated hereby and thereby, except for the registration of the Shares Registration Statement under the Securities Act caption "Principal and such consents, approvals, authorizations, registrations or qualifications as may be required under the Exchange Act and applicable state securities laws in connection with the purchase and sale of the Shares by the Underwriter.
(h) All material information with respect Selling Stockholders" which specifically relates to such Selling Stockholder contained in each of the Registration Statementdoes not, the Prospectus and the Pricing Disclosure Package (as amended and supplemented, if the Company shall have filed with the Commission any amendment or supplement thereto) (i) complied and will comply in all material respects with all applicable provisions of the Securities Act and the Rules and Regulations, (ii) contains and will contain all statements of material fact required to be stated therein in accordance with the Securities Act and the Rules and Regulations, and (iii) does not and will not on the Closing Date, contain an any untrue statement of a material fact or omit to state a any material fact required to be stated therein or necessary in order to make the statements therein therein, in the light of the circumstances under which they were made, not misleading. Solely with respect .
(j) At any time during the period described in Section 5(d), if there is any change in the information referred to the Metalmark Selling Stockholders (as defined in Schedule I heretoSection 7(i), such Selling Stockholder is not prompted to sell the Shares by any material non-public information relating to the business, results will immediately notify you of operations or prospects of the Company and its subsidiaries of an adverse nature that is required to be disclosed in the Registration Statement, the Pricing Disclosure Package or the Prospectus. For this purpose, information that is set forth or incorporated by reference in the Registration Statement, the Pricing Disclosure Package or the Prospectus or that otherwise has been made publicly available about the Company shall be deemed to be public information, and any opinion or conclusion that a Metalmark Selling Stockholder may hold, or analysis performed by a Metalmark Selling Stockholder, in its capacity as an investor about the business, results of operations or prospects of the Company and its subsidiaries shall not be information that relates to the business, results of operations or prospects of the Companysuch change.
(ik) Such Selling Stockholder has not taken and will not take, directly or indirectly, any action that is designed to or that has constituted or that could reasonably be expected to cause or result in the stabilization or manipulation of the price of any security of the Company to facilitate the sale or resale of the Shares.
(j) The sale of the Shares by such Selling Stockholder does not violate any of the Company’s internal policies regarding the sale of stock by its affiliates. Any Each certificate signed by any officer or on behalf of any such Selling Stockholder and delivered to the Underwriter Underwriters or counsel for the Underwriter in connection with the offering of the Shares Underwriters shall be deemed to be a representation and warranty by such Selling Stockholder, Stockholder to the Underwriters as to the matters covered thereby, to the Underwriter.
Appears in 1 contract
Representations and Warranties of the Selling Stockholders. Each Selling Stockholder, severally and not jointly, Stockholder represents and warrants to each Underwriter that:
(a) Neither such Selling Stockholder nor any person acting on behalf of such Selling Stockholder (other than, if applicable, the Company and the Underwriter) has used or referred to any “free writing prospectus” (as defined in Rule 405), relating to the Shares.
(b) Such Selling Stockholder has, and immediately prior to is the Closing Date on which such Selling Stockholder is selling the Shares, such Selling Stockholder will have, good and valid title to or a valid “security entitlement” within the meaning lawful owner of Section 8-501 of the New York Uniform Commercial Code (the “UCC”) in respect of, the Shares to be sold by such Selling Stockholder hereunder pursuant to this Agreement and has, and on such the Closing Date will have, valid title to such Shares, free and clear of all restrictions on transfer, liens, encumbrances, security interests, equities or claimsand claims whatsoever.
(b) The Shares to be sold by such Selling Stockholder have been duly authorized and are validly issued, fully paid and non-assessable.
(c) Upon payment for Such Selling Stockholder has, and on the Closing Date will have, full legal right, power and authority, and all authorization and approval required by law, to enter into this Agreement, the Custody Agreement signed by such Selling Stockholder and the Company, as Custodian, relating to the deposit of the Shares to be sold by such Selling Stockholder, delivery of such Shares, as directed by Stockholder (the Underwriter, to Cede & Co. (“Cede”"CUSTODY AGREEMENT") 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 Power of such Shares on the books Attorney of DTC to securities accounts of the Underwriter (assuming that neither DTC nor the Underwriter has notice of any adverse claim (within the meaning of Section 8-105 of the UCC) to such Shares), (i) DTC shall be a “protected purchaser” of such Shares within the meaning of Section 8-303 of the UCC, (ii) under Section 8-501 of the UCC, the Underwriter will acquire a valid security entitlement in respect of such Shares and (iii) no action based on any “adverse claim,” within the meaning of Section 8-102 of the UCC, to such Shares may be asserted against the Underwriter with respect to such security entitlement. For purposes of this representation, such Selling Stockholder may assume that when appointing certain individuals as such paymentSelling Stockholder's attorneys-in-fact (the "ATTORNEYS") to the extent set forth therein, delivery relating to the transactions contemplated hereby and crediting occurby the Registration Statement and the Custody Agreement (the "POWER OF ATTORNEY") and to sell, (A) assign, transfer and deliver the Shares to be sold by such Shares will have been registered Selling Stockholder 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 manner provided herein and applicable law, (B) DTC will be registered as a “clearing corporation” within the meaning of Section 8-102 of the UCC and (C) appropriate entries to the accounts of the Underwriter on the records of DTC will have been made pursuant to the UCCtherein.
(d) Such Selling Stockholder has full right, power and authority, corporate or otherwise, to enter into this Agreement.
(e) This Agreement has been duly and validly authorized, executed and delivered by or on behalf of such Selling Stockholder.
(e) The Custody Agreement of such Selling Stockholder has been duly authorized, executed and delivered by such Selling Stockholder and is a valid and binding agreement of such Selling Stockholder, enforceable in accordance with its terms, except as limited by applicable bankruptcy, moratorium, insolvency, or other similar laws affecting generally the rights of creditors, by principles of equity or by public policy.
(f) The Power of Attorney of such Selling Stockholder has been duly authorized, executed and delivered by such Selling Stockholder and is a valid and binding instrument of such Selling Stockholder, enforceable in accordance with its terms, except as limited by applicable bankruptcy, moratorium, insolvency, or other similar laws affecting generally the rights of creditors, by principles of equity or by public policy, and, pursuant to such Power of Attorney, such Selling Stockholder has, among other things, authorized the Attorneys, or any one of them, to execute and deliver on such Selling Stockholder's behalf this Agreement and any other document that they, or any one of them, may deem necessary or desirable in connection with the transactions contemplated hereby and thereby and to deliver the Shares to be sold by such Selling Stockholder pursuant to this Agreement.
(g) Upon delivery of and payment for the Shares to be sold by such Selling Stockholder pursuant to this Agreement, valid title to such Shares will pass to the Underwriters, free of all restrictions on transfer, liens, encumbrances, security interests, equities and claims whatsoever.
(h) The execution, delivery and performance of this Agreement and the Custody Agreement and Power of Attorney of such Selling Stockholder by or on behalf of such Selling Stockholder, the compliance by such Selling Stockholder with all the provisions hereof and thereof and the consummation by such Selling Stockholder of the transactions contemplated hereby and thereby do not and 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 have been obtained under the Act and the Exchange Act and as may be required under the securities or Blue Sky laws of the various states and the rules and regulations of the National Association of Securities Dealers, Inc.), (ii) violate or conflict with the organizational documents of such Selling Stockholder, if such Selling Stockholder is not an individual, (iii) conflict with or result in constitute 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, license mortgage, lease or other agreement or instrument to which such Selling Stockholder is a party or by which such Selling Stockholder is bound or to which any of the property or assets of such Selling Stockholder is subject, (ii) result in any violation of the provisions of the charter or by-laws or deed of trust (or similar organizational documents) of such Selling Stockholder, bound or (iiiiv) result in violate or conflict with any violation of any statute applicable law or any orderrule, rule regulation, judgment, order or regulation decree of any court or any governmental body or agency or body having jurisdiction over such Selling Stockholder or the any property or assets of such Selling Stockholder.
(gi) No consent, approval, authorization or order of, or filing or registration with, any court or governmental agency or body having jurisdiction over such Selling Stockholder or The information in the property or assets of such Selling Stockholder is required for the execution, delivery and performance of this Agreement by such Selling Stockholder and the consummation by such Selling Stockholder of the transactions contemplated hereby and thereby, except for the registration of the Shares Registration Statement under the Securities Act caption "Principal and such consents, approvals, authorizations, registrations or qualifications as may be required under the Exchange Act and applicable state securities laws in connection with the purchase and sale of the Shares by the Underwriter.
(h) All material information with respect Selling Stockholders" which specifically relates to such Selling Stockholder contained in each of the Registration Statementdoes not, the Prospectus and the Pricing Disclosure Package (as amended and supplemented, if the Company shall have filed with the Commission any amendment or supplement thereto) (i) complied and will comply in all material respects with all applicable provisions of the Securities Act and the Rules and Regulations, (ii) contains and will contain all statements of material fact required to be stated therein in accordance with the Securities Act and the Rules and Regulations, and (iii) does not and will not on the Closing Date, contain an any untrue statement of a material fact or omit to state a any material fact required to be stated therein or necessary in order to make the statements therein therein, in the light of the circumstances under which they were made, not misleading. Solely with respect .
(j) At any time during the period described in Section 5(d), if there is any change in the information referred to the Metalmark Selling Stockholders (as defined in Schedule I heretoSection 7(i), such Selling Stockholder is not prompted to sell the Shares by any material non-public information relating to the business, results will immediately notify you of operations or prospects of the Company and its subsidiaries of an adverse nature that is required to be disclosed in the Registration Statement, the Pricing Disclosure Package or the Prospectus. For this purpose, information that is set forth or incorporated by reference in the Registration Statement, the Pricing Disclosure Package or the Prospectus or that otherwise has been made publicly available about the Company shall be deemed to be public information, and any opinion or conclusion that a Metalmark Selling Stockholder may hold, or analysis performed by a Metalmark Selling Stockholder, in its capacity as an investor about the business, results of operations or prospects of the Company and its subsidiaries shall not be information that relates to the business, results of operations or prospects of the Companysuch change.
(ik) Such Selling Stockholder has not taken and will not take, directly or indirectly, any action that is designed to or that has constituted or that could reasonably be expected to cause or result in the stabilization or manipulation of the price of any security of the Company to facilitate the sale or resale of the Shares.
(j) The sale of the Shares by such Selling Stockholder does not violate any of the Company’s internal policies regarding the sale of stock by its affiliates. Any Each certificate signed by any officer or on behalf of any such Selling Stockholder and delivered to the Underwriter Underwriters or counsel for the Underwriter in connection with the offering of the Shares Underwriters shall be deemed to be a representation and warranty by such Selling Stockholder, Stockholder to the Underwriters as to the matters covered thereby, to the Underwriter.
Appears in 1 contract
Representations and Warranties of the Selling Stockholders. Each Selling Stockholder, severally and not jointly, Stockholder represents and warrants to each Underwriter that:
(a) Neither such Selling Stockholder nor any person acting on behalf of such Selling Stockholder (other than, if applicable, the Company and the Underwriter) has used or referred to any “free writing prospectus” (as defined in Rule 405), relating to the Shares.
(b) Such Selling Stockholder has, and immediately prior to is the Closing Date on which such Selling Stockholder is selling the Shares, such Selling Stockholder will have, good and valid title to or a valid “security entitlement” within the meaning lawful owner of Section 8-501 of the New York Uniform Commercial Code (the “UCC”) in respect of, the Shares to be sold by such Selling Stockholder hereunder pursuant to this Agreement and has, and on such the Closing Date free will have, good and clear title to such Shares, free of all restrictions on transfer, liens, encumbrances, security interests, equities or claimsand claims whatsoever.
(b) The Shares to be sold by such Selling Stockholder have been duly authorized and are validly issued, fully paid and non-assessable.
(c) Upon payment for Such Selling Stockholder has, and on the Closing Date will have, full legal right, power and authority, and all authorization and approval required by law, to enter into this Agreement, the Custody Agreement signed by such Selling Stockholder and, as Custodian, relating to the deposit of the Shares to be sold by such Selling Stockholder, delivery of such Shares, as directed by Stockholder (the Underwriter, to Cede & Co. (“Cede”"CUSTODY AGREEMENT") 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 Power of such Shares on the books Attorney of DTC to securities accounts of the Underwriter (assuming that neither DTC nor the Underwriter has notice of any adverse claim (within the meaning of Section 8-105 of the UCC) to such Shares), (i) DTC shall be a “protected purchaser” of such Shares within the meaning of Section 8-303 of the UCC, (ii) under Section 8-501 of the UCC, the Underwriter will acquire a valid security entitlement in respect of such Shares and (iii) no action based on any “adverse claim,” within the meaning of Section 8-102 of the UCC, to such Shares may be asserted against the Underwriter with respect to such security entitlement. For purposes of this representation, such Selling Stockholder may assume that when appointing certain individuals as such paymentSelling Stockholder's attorneys-in-fact (the "ATTORNEYS") to the extent set forth therein, delivery relating to the transactions contemplated hereby and crediting occurby the Registration Statement and the Custody Agreement (the "POWER OF ATTORNEY") and to sell, (A) assign, transfer and deliver the Shares to be sold by such Shares will have been registered Selling Stockholder 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 manner provided herein and applicable law, (B) DTC will be registered as a “clearing corporation” within the meaning of Section 8-102 of the UCC and (C) appropriate entries to the accounts of the Underwriter on the records of DTC will have been made pursuant to the UCCtherein.
(d) Such Selling Stockholder has full right, power and authority, corporate or otherwise, to enter into this Agreement.
(e) This Agreement has been duly and validly authorized, executed and delivered by or on behalf of such Selling Stockholder.
(fe) The executionCustody Agreement of such Selling Stockholder has been duly authorized, delivery executed and performance of this Agreement delivered by such Selling Stockholder and the consummation by such Selling Stockholder of the transactions contemplated hereby and thereby 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, any indenture, mortgage, deed of trust, loan agreement, license or other agreement or instrument to which such Selling Stockholder is a party or by which such Selling Stockholder is bound or to which any of the property or assets of such Selling Stockholder is subject, (ii) result in any violation of the provisions of the charter or by-laws or deed of trust (or similar organizational documents) of such Selling Stockholder, or (iii) result in any violation of any statute or any order, rule or regulation of any court or governmental agency or body having jurisdiction over such Selling Stockholder or the property or assets of such Selling Stockholder.
(g) No consent, approval, authorization or order of, or filing or registration with, any court or governmental agency or body having jurisdiction over such Selling Stockholder or the property or assets of such Selling Stockholder is required for the execution, delivery and performance of this Agreement by such Selling Stockholder and the consummation by such Selling Stockholder of the transactions contemplated hereby and thereby, except for the registration of the Shares under the Securities Act and such consents, approvals, authorizations, registrations or qualifications as may be required under the Exchange Act and applicable state securities laws in connection with the purchase and sale of the Shares by the Underwriter.
(h) All material information with respect to such Selling Stockholder contained in each of the Registration Statement, the Prospectus and the Pricing Disclosure Package (as amended and supplemented, if the Company shall have filed with the Commission any amendment or supplement thereto) (i) complied and will comply in all material respects with all applicable provisions of the Securities Act and the Rules and Regulations, (ii) contains and will contain all statements of material fact required to be stated therein in accordance with the Securities Act and the Rules and Regulations, and (iii) does not and will not contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary in order to make the statements therein not misleading. Solely with respect to the Metalmark Selling Stockholders (as defined in Schedule I hereto), such Selling Stockholder is not prompted to sell the Shares by any material non-public information relating to the business, results of operations or prospects of the Company and its subsidiaries of an adverse nature that is required to be disclosed in the Registration Statement, the Pricing Disclosure Package or the Prospectus. For this purpose, information that is set forth or incorporated by reference in the Registration Statement, the Pricing Disclosure Package or the Prospectus or that otherwise has been made publicly available about the Company shall be deemed to be public information, and any opinion or conclusion that a Metalmark Selling Stockholder may hold, or analysis performed by a Metalmark Selling Stockholder, in its capacity as an investor about the business, results of operations or prospects of the Company and its subsidiaries shall not be information that relates to the business, results of operations or prospects of the Company.
(i) Such Selling Stockholder has not taken and will not take, directly or indirectly, any action that is designed to or that has constituted or that could reasonably be expected to cause or result in the stabilization or manipulation of the price of any security of the Company to facilitate the sale or resale of the Shares.
(j) The sale of the Shares by such Selling Stockholder does not violate any of the Company’s internal policies regarding the sale of stock by its affiliates. Any certificate signed by any officer of any 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 such Selling Stockholder, as to matters covered thereby, to the Underwriter.valid and
Appears in 1 contract
Samples: Underwriting Agreement (Realty Information Group Inc)
Representations and Warranties of the Selling Stockholders. Each Selling Stockholder, severally and not jointly, Stockholder represents and warrants to each Underwriter that:
(a) Neither such Selling Stockholder nor any person acting on behalf of such Selling Stockholder (other than, if applicable, the Company and the Underwriter) has used or referred to any “free writing prospectus” (as defined in Rule 405), relating to the Shares.
(b) Such Selling Stockholder has, and immediately prior to is the Closing Date on which such Selling Stockholder is selling the Shares, such Selling Stockholder will have, good and valid title to or a valid “security entitlement” within the meaning lawful owner of Section 8-501 of the New York Uniform Commercial Code (the “UCC”) in respect of, the Shares to be sold by such Selling Stockholder hereunder pursuant to this Agreement and has, and on such the Closing Date free will have, good and clear title to such Shares, free of all restrictions on transfer, liens, encumbrances, security interests, equities or claimsand claims whatsoever.
(b) The Shares to be sold by such Selling Stockholder have been duly authorized and are validly issued, fully paid and non-assessable.
(c) Upon payment for Such Selling Stockholder has, and on the Closing Date will have, full legal right, power and authority, and all authorization and approval required by law, to enter into this Agreement, the Custody Agreement signed by such Selling Stockholder and Continental Stock Transfer & Trust Company, as Custodian, relating to the deposit of the Shares to be sold by such Selling Stockholder, delivery of such Shares, as directed by Stockholder (the Underwriter, to Cede & Co. (“Cede”"CUSTODY AGREEMENT") 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 Power of such Shares on the books Attorney of DTC to securities accounts of the Underwriter (assuming that neither DTC nor the Underwriter has notice of any adverse claim (within the meaning of Section 8-105 of the UCC) to such Shares), (i) DTC shall be a “protected purchaser” of such Shares within the meaning of Section 8-303 of the UCC, (ii) under Section 8-501 of the UCC, the Underwriter will acquire a valid security entitlement in respect of such Shares and (iii) no action based on any “adverse claim,” within the meaning of Section 8-102 of the UCC, to such Shares may be asserted against the Underwriter with respect to such security entitlement. For purposes of this representation, such Selling Stockholder may assume that when appointing certain individuals as such paymentSelling Stockholder's attorneys-in-fact (the "ATTORNEYS") to the extent set forth therein, delivery relating to the transactions contemplated hereby and crediting occurby the Registration Statement and the Custody Agreement (the "POWER OF ATTORNEY") and to sell, (A) assign, transfer and deliver the Shares to be sold by such Shares will have been registered Selling Stockholder 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 manner provided herein and applicable law, (B) DTC will be registered as a “clearing corporation” within the meaning of Section 8-102 of the UCC and (C) appropriate entries to the accounts of the Underwriter on the records of DTC will have been made pursuant to the UCCtherein.
(d) Such Selling Stockholder has full right, power and authority, corporate or otherwise, to enter into this Agreement.
(e) This Agreement has been duly and validly authorized, executed and delivered by or on behalf of such Selling Stockholder.
(fe) The executionCustody Agreement of such Selling Stockholder has been duly authorized, delivery executed and performance of this Agreement delivered by such Selling Stockholder and the consummation by such Selling Stockholder of the transactions contemplated hereby and thereby 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, any indenture, mortgage, deed of trust, loan agreement, license or other agreement or instrument to which such Selling Stockholder is a party or by which such Selling Stockholder is bound or to which any of the property or assets of such Selling Stockholder is subject, (ii) result in any violation of the provisions of the charter or by-laws or deed of trust (or similar organizational documents) valid and binding agreement of such Selling Stockholder, or (iii) result in any violation of any statute or any order, rule or regulation of any court or governmental agency or body having jurisdiction over such Selling Stockholder or the property or assets of such Selling Stockholder.
(g) No consent, approval, authorization or order of, or filing or registration with, any court or governmental agency or body having jurisdiction over such Selling Stockholder or the property or assets of such Selling Stockholder is required for the execution, delivery and performance of this Agreement by such Selling Stockholder and the consummation by such Selling Stockholder of the transactions contemplated hereby and thereby, except for the registration of the Shares under the Securities Act and such consents, approvals, authorizations, registrations or qualifications as may be required under the Exchange Act and applicable state securities laws in connection with the purchase and sale of the Shares by the Underwriter.
(h) All material information with respect to such Selling Stockholder contained in each of the Registration Statement, the Prospectus and the Pricing Disclosure Package (as amended and supplemented, if the Company shall have filed with the Commission any amendment or supplement thereto) (i) complied and will comply in all material respects with all applicable provisions of the Securities Act and the Rules and Regulations, (ii) contains and will contain all statements of material fact required to be stated therein enforceable in accordance with the Securities Act and the Rules and Regulations, and (iii) does not and will not contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary in order to make the statements therein not misleading. Solely with respect to the Metalmark Selling Stockholders (as defined in Schedule I hereto), such Selling Stockholder is not prompted to sell the Shares by any material non-public information relating to the business, results of operations or prospects of the Company and its subsidiaries of an adverse nature that is required to be disclosed in the Registration Statement, the Pricing Disclosure Package or the Prospectus. For this purpose, information that is set forth or incorporated by reference in the Registration Statement, the Pricing Disclosure Package or the Prospectus or that otherwise has been made publicly available about the Company shall be deemed to be public information, and any opinion or conclusion that a Metalmark Selling Stockholder may hold, or analysis performed by a Metalmark Selling Stockholder, in its capacity as an investor about the business, results of operations or prospects of the Company and its subsidiaries shall not be information that relates to the business, results of operations or prospects of the Company.
(i) Such Selling Stockholder has not taken and will not take, directly or indirectly, any action that is designed to or that has constituted or that could reasonably be expected to cause or result in the stabilization or manipulation of the price of any security of the Company to facilitate the sale or resale of the Shares.
(j) The sale of the Shares by such Selling Stockholder does not violate any of the Company’s internal policies regarding the sale of stock by its affiliates. Any certificate signed by any officer of any 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 such Selling Stockholder, as to matters covered thereby, to the Underwriter.its
Appears in 1 contract
Samples: Underwriting Agreement (Globix Corp)
Representations and Warranties of the Selling Stockholders. Each Selling Stockholder (or Specified Selling Stockholder, as applicable), severally and not jointly, represents and warrants to each Underwriter and the Company that:
(a) Neither such Such Specified Selling Stockholder nor any person acting on behalf has entered into a Power of Attorney (the “Power of Attorney”) and a Custody Agreement (the “Custody Agreement”) for the sale and delivery of the Shares to be sold by such Specified Selling Stockholder; and such Specified Selling Stockholder (other thanhas full right, if applicablepower and authority to enter into this Agreement, the Company Power of Attorney and the Underwriter) has used or referred Custody Agreement and to any “free writing prospectus” (as defined in Rule 405)sell, relating assign, transfer and deliver the Shares to be sold by such Specified Selling Stockholder hereunder; this Agreement, the SharesPower of Attorney and the Custody Agreement have each been duly authorized, executed and delivered by such Specified Selling Stockholder.
(b) Such Selling Stockholder has, and immediately prior to is the Closing Date on which such Selling Stockholder is selling the Shares, such Selling Stockholder will have, good and valid title to or a valid “security entitlement” within the meaning record owner of Section 8-501 of the New York Uniform Commercial Code (the “UCC”) in respect of, the Shares to be sold by such Selling Stockholder hereunder on such Closing Date free and clear of all liens, encumbrances, equities or claims.
(c) Upon payment for the Shares to be sold by such Selling Stockholder, delivery of such Shares, as directed by the Underwriter, to Cede & Co. (“Cede”) or such other nominee as may be designated by The Depository Trust Company (“DTC”), registration of and claims and has duly endorsed such Shares in the name of Cede or such other nominee blank, and the crediting of such Shares on the books of DTC to securities accounts of the Underwriter (assuming that neither DTC nor each Underwriter acquires its interest in the Underwriter Shares it has purchased from such Selling Stockholder without notice of any adverse claim (within the meaning of Section 8-105 of the New York Uniform Commercial Code (“UCC) to such Shares”)), (i) each Underwriter that has purchased such Shares delivered on the Closing Date or the Additional Closing Date, as applicable, to DTC shall be a “protected purchaser” or other securities intermediary by making payment therefor as provided herein and that has had such Shares credited to the securities account or accounts of such Shares Underwriter maintained with DTC or such other securities intermediary will have acquired a security entitlement (within the meaning of Section 8-303 102(a)(17) of the UCC, (ii) under Section 8-501 of the UCC, the Underwriter will acquire a valid security entitlement in respect of to such Shares purchased by such Underwriter, and (iii) no action based on any “an adverse claim,” claim (within the meaning of Section 8-102 of the UCC, to such Shares ) may be successfully asserted against such Underwriter under the Underwriter UCC as in effect in the State of New York with respect to such security entitlement. For purposes of this representation, such Shares.
(c) Such Selling Stockholder may assume has not taken, directly or indirectly, any action designed to or that when such paymentwould constitute or that might reasonably be expected to cause or result in, delivery and crediting occurunder the Exchange Act or otherwise, (A) such Shares will have been registered in the name of Cede stabilization or another nominee designated by DTC, in each case on the Company’s share registry in accordance with its certificate of incorporation, bylaws and applicable law, (B) DTC will be registered as a “clearing corporation” within the meaning of Section 8-102 manipulation of the UCC and (C) appropriate entries to the accounts price of any security of the Underwriter on Company to facilitate the records sale or resale of DTC will have been made pursuant to the UCCShares during the distribution of the Shares by the Underwriters.
(d) Certificates in negotiable form representing all of the Shares to be sold by such Selling Stockholder (other than those to be sold by the Specified Selling Stockholders) have been deposited with American Stock Transfer & Trust Company, LLC, the transfer agent for the Company’s Common Stock (the “Transfer Agent”). Such Selling Stockholder has full rightspecifically agrees that the Shares represented by the certificates so deposited are subject to the interests of the Underwriters hereunder, power and authoritythat the arrangements made by such Selling Stockholder for such deposit will not be revoked prior to the earlier of the sales of such Shares hereunder or the expiration of the Underwriters’ option to purchase the Option Shares. Such Selling Stockholder specifically agrees that the obligations of such Selling Stockholder hereunder shall not be terminated by operation of law by the dissolution of such partnership, corporate corporation or otherwiseorganization, to enter into this Agreement.
(e) This Agreement has been duly and validly authorizedor by the occurrence of any other event. If any such partnership, executed and corporation or similar organization should be dissolved, or if any other such event should occur, before the delivery of the Shares hereunder, certificates representing such Shares shall be delivered by or on behalf of such Selling StockholderStockholder in accordance with the terms and conditions of this Agreement.
(fe) The executionNo consent, delivery and performance approval, authorization or order of this Agreement by such Selling Stockholder and any court or governmental agency or body is required for the consummation by such Selling Stockholder of the transactions contemplated hereby herein, except such as may have been obtained under the Act and thereby do not such as may be required under the blue sky laws of any jurisdiction in connection with the purchase and distribution of the Shares by the Underwriters and such other approvals as have been obtained.
(f) Neither the sale of the Shares being sold by such Selling Stockholder nor the consummation of any other of the transactions herein contemplated by such Selling Stockholder will not (i) conflict with or with, result in a breach or violation of any of the terms or provisions of, or constitute a default under, (i) any indenturelaw applicable to such Selling Stockholder, mortgage, deed (ii) certificate of trust, loan formation; or the limited partnership agreement or limited liability company agreement, license as applicable, of such Selling Stockholder, (iii) the terms of any indenture or other agreement or instrument to which such Selling Stockholder is a party or by which bound, or (iv) any judgment, order or decree applicable to such Selling Stockholder is bound or to which any of the property or assets of such Selling Stockholder is subject, (ii) result in any violation of the provisions of the charter or by-laws or deed of trust (or similar organizational documents) of such Selling Stockholder, or (iii) result in any violation of any statute court, regulatory body, administrative agency, governmental body or any order, rule or regulation of any court or governmental agency or body arbitrator having jurisdiction over such Selling Stockholder Stockholder, except in the case of clauses (i), (iii) and (iv), for any such conflict, breach, violation or default that would not impair in any material respect the property or assets ability of such Selling StockholderStockholder to consummate the transactions contemplated by this Agreement.
(g) No consent, approval, authorization In respect of any statements in or order of, or filing or registration with, any court or governmental agency or body having jurisdiction over such Selling Stockholder or the property or assets of such Selling Stockholder is required for the execution, delivery and performance of this Agreement by such Selling Stockholder and the consummation by such Selling Stockholder of the transactions contemplated hereby and thereby, except for the registration of the Shares under the Securities Act and such consents, approvals, authorizations, registrations or qualifications as may be required under the Exchange Act and applicable state securities laws in connection with the purchase and sale of the Shares by the Underwriter.
(h) All material information with respect to such Selling Stockholder contained in each of omissions from the Registration Statement, the Prospectus and the Pricing Disclosure Package (as amended and supplementedthe Prospectus, if any Preliminary Prospectus and any Issuer Free Writing Prospectuses made in reliance upon and in conformity with any information related to such Selling Stockholder furnished in writing to the Company shall have filed by such Selling Stockholder expressly for use therein in connection with the Commission any amendment or supplement thereto) disclosure required by Form S-1 (i) complied and will comply in all material respects with all applicable provisions of such information, the Securities Act and the Rules and Regulations“Selling Stockholder Information”), (ii) contains and will contain all statements of material fact required to be stated therein in accordance with the Securities Act and the Rules and Regulations, and (iii) such information does not and will not contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary in order to make the statements therein therein, in light of the circumstances under which they were made, not misleading. Solely with respect to the Metalmark Selling Stockholders (as defined in Schedule I hereto), such Selling Stockholder is not prompted to sell the Shares by any material non-public information relating to the business, results of operations or prospects of the Company and its subsidiaries of an adverse nature that is required to be disclosed in the Registration Statement, the Pricing Disclosure Package or the Prospectus. For this purpose, information that is set forth or incorporated by reference in the Registration Statement, the Pricing Disclosure Package or the Prospectus or that otherwise has been made publicly available about the Company shall be deemed to be public information, and any opinion or conclusion that a Metalmark Selling Stockholder may hold, or analysis performed by a Metalmark Selling Stockholder, in its capacity as an investor about the business, results of operations or prospects of the Company and its subsidiaries shall not be information that relates to the business, results of operations or prospects of the Company.
(i) Such Selling Stockholder has not taken and will not take, directly or indirectly, any action that is designed to or that has constituted or that could reasonably be expected to cause or result in the stabilization or manipulation of the price of any security of the Company to facilitate the sale or resale of the Shares.
(j) The sale of the Shares by such Selling Stockholder does not violate any of the Company’s internal policies regarding the sale of stock by its affiliates. Any certificate signed by any officer of any 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 such Selling Stockholder, as to matters covered thereby, to the Underwriter.
Appears in 1 contract
Samples: Underwriting Agreement (Dunkin' Brands Group, Inc.)
Representations and Warranties of the Selling Stockholders. Each Selling Stockholder, severally and not jointly, Stockholder represents and warrants to, and agrees with, each of the several Underwriters that:
(a) Neither Such Selling Stockholder has full power (corporate and/or other) to enter into this Agreement and to sell, assign, transfer and deliver to the Underwriters the Option Securities which may be sold by such Selling Stockholder nor any person acting on behalf hereunder in accordance with the terms of this Agreement; the execution and delivery of this Agreement have been duly authorized by all necessary corporate action, if any, of such Selling Stockholder; and this Agreement has been duly executed and delivered by such Selling Stockholder, and is the valid and binding agreement of such Selling Stockholder, enforceable against such Selling Stockholder (other than, if applicable, the Company and the Underwriter) has used or referred to any “free writing prospectus” (as defined in Rule 405), relating to the Sharesaccordance with its terms.
(b) Such Selling Stockholder hashas duly executed and delivered a Letter of Transmittal and Custody Agreement and a Selling Stockholder's Irrevocable Power of Attorney (with respect to such Selling Stockholder, the "Custody Agreement" and immediately prior the "Power-of-Attorney," respectively), each in the form heretofore delivered to the Closing Date on which Representative; each of the Selling Stockholders have appointed Lawrxxxx X. Xxxxxx xx an attorney-in-fact for such Selling Stockholder is selling (the Shares"Attorney-in-Fact") with authority to execute, deliver and perform this Agreement on behalf of such Selling Stockholder will haveand appointing BankBoston, good and valid title to or a valid “security entitlement” within N.A. as custodian thereunder (the meaning of Section 8-501 "Custodian"). Certificates for all of the New York Uniform Commercial Code (the “UCC”) in respect of, the Shares to Option Securities which may be sold by the Selling Stockholders pursuant to this Agreement in suitable form for transfer by delivery or accompanied by duly executed instruments of transfer or assignment in blank with signatures appropriately guaranteed, have been deposited with the Custodian pursuant to the Custody Agreement with irrevocable conditional instructions to deliver such Selling Stockholder hereunder on such Closing Date free and clear of all liens, encumbrances, equities or claimsOption Securities to the Underwriters pursuant to this Agreement.
(c) Upon payment for the Shares to be sold by such Selling Stockholder, delivery of such Shares, as directed by the Underwriter, to Cede & Co. (“Cede”) or such other nominee as may be designated by The Depository Trust Company (“DTC”), registration of such Shares in the name of Cede or such other nominee and the crediting of such Shares on the books of DTC to securities accounts of the Underwriter (assuming that neither DTC nor the Underwriter has notice of any adverse claim (within the meaning of Section 8-105 of the UCC) to such Shares), (i) DTC shall be a “protected purchaser” of such Shares within the meaning of Section 8-303 of the UCC, (ii) under Section 8-501 of the UCC, the Underwriter will acquire a valid security entitlement in respect of such Shares and (iii) no action based on any “adverse claim,” within the meaning of Section 8-102 of the UCC, to such Shares may be asserted against the Underwriter with respect to such security entitlement. For purposes of this representation, such Selling Stockholder may assume that when such payment, delivery and crediting occur, (A) such Shares will have been registered in the name of Cede or another nominee designated by DTC, in each case on the Company’s share registry in accordance with its certificate of incorporation, bylaws and applicable law, (B) DTC will be registered as a “clearing corporation” within the meaning of Section 8-102 of the UCC and (C) appropriate entries to the accounts of the Underwriter on the records of DTC will have been made pursuant to the UCC.
(d) Such Selling Stockholder has full right, power and authority, (corporate or otherwise, and/or other) to enter into this Agreement.
(e) This the Custody Agreement has been duly and validly authorized, executed and delivered by or on behalf of such Selling Stockholder.
(f) The execution, delivery and performance of this Agreement by such Selling Stockholder and the consummation by such Selling Stockholder of the transactions contemplated hereby Power-of-Attorney and thereby 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, any indenture, mortgage, deed of trust, loan agreement, license or other agreement or instrument to which such Selling Stockholder is a party or by which such Selling Stockholder is bound or to which any of the property or assets of such Selling Stockholder is subject, (ii) result in any violation of the provisions of the charter or by-laws or deed of trust (or similar organizational documents) of such Selling Stockholder, or (iii) result in any violation of any statute or any order, rule or regulation of any court or governmental agency or body having jurisdiction over such Selling Stockholder or the property or assets of such Selling Stockholder.
(g) No consent, approval, authorization or order of, or filing or registration with, any court or governmental agency or body having jurisdiction over such Selling Stockholder or the property or assets of such Selling Stockholder is required for the execution, delivery and performance of this Agreement by such Selling Stockholder and the consummation by such Selling Stockholder of the transactions contemplated hereby and thereby, except for the registration of the Shares perform its obligations under the Securities Act and such consents, approvals, authorizations, registrations or qualifications as may be required under the Exchange Act and applicable state securities laws in connection with the purchase and sale of the Shares by the Underwriter.
(h) All material information with respect to such Selling Stockholder contained in each of the Registration Statement, the Prospectus and the Pricing Disclosure Package (as amended and supplemented, if the Company shall have filed with the Commission any amendment or supplement thereto) (i) complied and will comply in all material respects with all applicable provisions of the Securities Act and the Rules and Regulations, (ii) contains and will contain all statements of material fact required to be stated therein in accordance with the Securities Act and the Rules and Regulations, and (iii) does not and will not contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary in order to make the statements therein not misleading. Solely with respect to the Metalmark Selling Stockholders (as defined in Schedule I hereto), such Selling Stockholder is not prompted to sell the Shares by any material non-public information relating to the business, results of operations or prospects of the Company and its subsidiaries of an adverse nature that is required to be disclosed in the Registration Statement, the Pricing Disclosure Package or the Prospectus. For this purpose, information that is set forth or incorporated by reference in the Registration Statement, the Pricing Disclosure Package or the Prospectus or that otherwise has been made publicly available about the Company shall be deemed to be public information, and any opinion or conclusion that a Metalmark Selling Stockholder may hold, or analysis performed by a Metalmark Selling Stockholder, in its capacity as an investor about the business, results of operations or prospects of the Company and its subsidiaries shall not be information that relates to the business, results of operations or prospects of the Company.
(i) Such Selling Stockholder has not taken and will not take, directly or indirectly, any action that is designed to or that has constituted or that could reasonably be expected to cause or result in the stabilization or manipulation of the price of any security of the Company to facilitate the sale or resale of the Shares.
(j) The sale of the Shares by such Selling Stockholder does not violate any of the Company’s internal policies regarding the sale of stock by its affiliates. Any certificate signed by any officer of any 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 such Selling Stockholder, as to matters covered thereby, to the Underwriter.the
Appears in 1 contract
Samples: Underwriting Agreement (Citadel Communications Corp)
Representations and Warranties of the Selling Stockholders. Each Selling Stockholder, severally and not jointly, Stockholder represents and warrants to each Underwriter that:
(a) Neither such Selling Stockholder nor any person acting on behalf of such Selling Stockholder (other than, if applicable, the Company and the Underwriter) has used or referred to any “free writing prospectus” (as defined in Rule 405), relating to the Shares.
(b) Such Selling Stockholder has, and immediately prior to is the Closing Date on which such Selling Stockholder is selling the Shares, such Selling Stockholder will have, good and valid title to or a valid “security entitlement” within the meaning lawful owner of Section 8-501 of the New York Uniform Commercial Code (the “UCC”) in respect of, the Shares to be sold by such Selling Stockholder hereunder pursuant to this Agreement and has, and on such the Option Closing Date free will have, good and clear title to such Shares, free of all restrictions on transfer, liens, encumbrances, security interests, equities or claimsand claims whatsoever.
(b) The Shares to be sold by such Selling Stockholder have been duly authorized and are validly issued, fully paid and non-assessable.
(c) Upon payment for Such Selling Stockholder has, and on the Option Closing Date will have, full legal right, power and authority, and all authorization and approval required by law, to enter into this Agreement, the Custody Agreement signed by such Selling Stockholder and Continental Stock Transfer and Trust Company, as Custodian, relating to the deposit of the Shares to be sold by such Selling Stockholder, delivery of such Shares, as directed by Stockholder (the Underwriter, to Cede & Co. (“Cede”"CUSTODY AGREEMENT") 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 Power of such Shares on the books Attorney of DTC to securities accounts of the Underwriter (assuming that neither DTC nor the Underwriter has notice of any adverse claim (within the meaning of Section 8-105 of the UCC) to such Shares), (i) DTC shall be a “protected purchaser” of such Shares within the meaning of Section 8-303 of the UCC, (ii) under Section 8-501 of the UCC, the Underwriter will acquire a valid security entitlement in respect of such Shares and (iii) no action based on any “adverse claim,” within the meaning of Section 8-102 of the UCC, to such Shares may be asserted against the Underwriter with respect to such security entitlement. For purposes of this representation, such Selling Stockholder may assume that when appointing certain individuals as such paymentSelling Stockholder's attorneys-in-fact (the "ATTORNEYS") to the extent set forth therein, delivery relating to the transactions contemplated hereby and crediting occurby the Registration Statement and the Custody Agreement (the "POWER OF ATTORNEY") and to sell, (A) assign, transfer and deliver the Shares to be sold by such Shares will have been registered Selling Stockholder 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 manner provided herein and applicable law, (B) DTC will be registered as a “clearing corporation” within the meaning of Section 8-102 of the UCC and (C) appropriate entries to the accounts of the Underwriter on the records of DTC will have been made pursuant to the UCCtherein.
(d) Such Selling Stockholder has full right, power and authority, corporate or otherwise, to enter into this Agreement.
(e) This Agreement has been duly and validly authorized, executed and delivered by or on behalf of such Selling Stockholder.
(e) The Custody Agreement of such Selling Stockholder has been duly authorized, executed and delivered by such Selling Stockholder and is a valid and binding agreement of such Selling Stockholder, enforceable in accordance with its terms.
(f) The Power of Attorney of such Selling Stockholder has been duly authorized, executed and delivered by such Selling Stockholder and is a valid and binding instrument of such Selling Stockholder, enforceable in accordance with its terms, and, pursuant to such Power of Attorney, such Selling Stockholder has, among other things, authorized the Attorneys, or any one of them, to execute and deliver on such Selling Stockholder's behalf this Agreement and any other document that they, or any one of them, may deem necessary or desirable in connection with the transactions contemplated hereby and thereby and to deliver the Shares to be sold by such Selling Stockholder pursuant to this Agreement.
(g) Upon delivery of and payment for the Shares to be sold by such Selling Stockholder pursuant to this Agreement, good and clear title to such Shares will pass to the Underwriters, free of all restrictions on transfer, liens, encumbrances, security interests, equities and claims whatsoever.
(h) The execution, delivery and performance of this Agreement and the Custody Agreement and Power of Attorney of such Selling Stockholder by or on behalf of such Selling Stockholder, the compliance by such Selling Stockholder with all the provisions hereof and thereof and the consummation by such Selling Stockholder of the transactions contemplated hereby and thereby do not and will not (i) require any consent, approval, authorization or other order of, or qualification with, any court or governmental body or agency (except such as may be required under the securities or Blue Sky laws of the various states), (ii) conflict with or result in constitute a breach or violation of any of the terms or provisions of, or constitute a default under, the organizational documents of such Selling Stockholder, if such Selling Stockholder is not an individual, or any indenture, mortgage, deed of trust, loan agreement, license mortgage, lease or other agreement or instrument to which such Selling Stockholder is a party or by which such Selling Stockholder is bound or to which any of the property or assets of such Selling Stockholder is subject, (ii) result in any violation of the provisions of the charter or by-laws or deed of trust (or similar organizational documents) of such Selling Stockholder, bound or (iii) result in violate or conflict with any violation of any statute applicable law or any orderrule, rule regulation, judgment, order or regulation decree of any court or any governmental body or agency or body having jurisdiction over such Selling Stockholder or the any property or assets of such Selling Stockholder.
(gi) No consent, approval, authorization or order of, or filing or registration with, any court or governmental agency or body having jurisdiction over such Selling Stockholder or The information in the property or assets of such Selling Stockholder is required for the execution, delivery and performance of this Agreement by such Selling Stockholder and the consummation by such Selling Stockholder of the transactions contemplated hereby and thereby, except for the registration of the Shares Registration Statement under the Securities Act and such consents, approvals, authorizations, registrations or qualifications as may be required under the Exchange Act and applicable state securities laws in connection with the purchase and sale of the Shares by the Underwriter.
(h) All material information with respect caption "Principal Stockholders" which specifically relates to such Selling Stockholder contained in each of the Registration Statementdoes not, the Prospectus and the Pricing Disclosure Package (as amended and supplemented, if the Company shall have filed with the Commission any amendment or supplement thereto) (i) complied and will comply in all not on the Closing Date, contain any untrue statement of a material respects with all applicable provisions of the Securities Act and the Rules and Regulations, (ii) contains and will contain all statements of fact or omit to state any material fact required to be stated therein or necessary to make the statements therein, in accordance with the Securities Act light of the circumstances under which they were made, not misleading. With respect to those Selling Stockholders that are directors or officers of the Company, or are controlled by directors or officers of the Company, each such Selling Stockholder represents and warrants that such Selling Stockholder has no reason to believe that (i) the Rules and RegulationsRegistration Statement (other than any Rule 462(b) Registration Statement to be filed by the Company after the effectiveness of this Agreement), and (iii) does not and when it became effective, contained and, as amended, if applicable, will not contain an 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. Solely with respect , (ii) the Prospectus contains and, as amended or supplemented, if applicable, will contain any untrue statement of a material fact or omit to state a material fact necessary to make the Metalmark Selling Stockholders (as defined statements therein, in Schedule I hereto), such Selling Stockholder is not prompted to sell the Shares by any material non-public information relating to the business, results of operations or prospects light of the Company circumstances under which they were made, not misleading and its subsidiaries (iii) each preliminary prospectus filed as part of the registration statement as originally filed or as part of any amendment thereto, or filed pursuant to Rule 424 under the Act, contained an adverse nature that is untrue statement of a material fact or omitted to state a material fact required to be disclosed stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading, except that the representations and warranties set forth in this paragraph do not apply to statements or omissions in the Registration Statement, the Pricing Disclosure Package or the Prospectus. For this purpose, information that is set forth or incorporated by reference in the Registration Statement, the Pricing Disclosure Package or the Prospectus or that otherwise has been made publicly available about in any preliminary prospectus based upon information relating to any Underwriter furnished to the Company shall be deemed to be public information, and any opinion or conclusion that a Metalmark Selling Stockholder may hold, or analysis performed in writing by a Metalmark Selling Stockholder, in its capacity as an investor about the business, results of operations or prospects of the Company and its subsidiaries shall not be information that relates to the business, results of operations or prospects of the Company.
(i) Such Selling Stockholder has not taken and will not take, directly or indirectly, any action that is designed to or that has constituted or that could reasonably be expected to cause or result in the stabilization or manipulation of the price of any security of the Company to facilitate the sale or resale of the Sharessuch Underwriter through you expressly for use therein.
(j) The sale of At any time during the Shares by period described in Section 5(d), if there is any change in the information referred to in Section 7(i), such Selling Stockholder does not violate any will immediately notify you of the Company’s internal policies regarding the sale of stock by its affiliates. Any such change.
(k) Each certificate signed by any officer or on behalf of any such Selling Stockholder and delivered to the Underwriter Underwriters or counsel for the Underwriter in connection with the offering of the Shares Underwriters shall be deemed to be a representation and warranty by such Selling Stockholder, Stockholder to the Underwriters as to the matters covered thereby, to the Underwriter.
Appears in 1 contract
Representations and Warranties of the Selling Stockholders. Each Selling StockholderStockholder (except with respect to paragraph (h) hereof, severally and not jointly, which shall only be made by the Control Stockholders (as hereinafter defined)) represents and warrants to, and agrees with, the several Underwriters that:
(a) Neither such Selling Stockholder nor any person acting on behalf of such Such Selling Stockholder (other than, if applicable, the Company and the Underwriteri) has used or referred to any “free writing prospectus” (as defined in Rule 405), relating to caused a certificate(s) for the Shares.
(b) Such Selling Stockholder has, and immediately prior to the Closing Date on which such Selling Stockholder is selling the Shares, such Selling Stockholder will have, good and valid title to or a valid “security entitlement” within the meaning number of Section 8-501 of the New York Uniform Commercial Code (the “UCC”) in respect of, the Shares and/or Warrants to be sold by such Selling Stockholder hereunder to be delivered to _____________________________________, as custodian (the "CUSTODIAN"), endorsed in blank or with blank stock powers duly executed, with signatures appropriately guaranteed, if applicable; such certificate(s) to be held in custody by the Custodian, in accordance with the terms of a custody agreement (the "CUSTODY AGREEMENT"), for delivery pursuant to the provisions hereof on such the Closing Date free or the Additional Closing Date, as the case may be, and clear (ii) has granted an irrevocable power of attorney (the "POWER OF ATTORNEY") to [_____________ and ______________], or any of them, as such Selling Stockholder's attorney-in-fact (each, an "ATTORNEY-IN-FACT"), in the form heretofore delivered to the Representatives (the Custody Agreement, together with the Powers of Attorney executed by all liensSelling Stockholders being hereinafter collectively referred to as the "SELLING AGREEMENTS"), encumbranceswith authority to execute and deliver this Agreement on behalf of such Selling Stockholder, equities or claims.
(cto determine the purchase price to be paid by the Underwriters to such Selling Stockholder as provided in Section 3(a) Upon payment for hereof, to authorize the delivery of the Shares and/or Warrants to be sold by such Selling Stockholder, delivery Stockholder hereunder and to otherwise act on behalf of such Shares, as directed by the Underwriter, to Cede & Co. (“Cede”) or such other nominee as may be designated by The Depository Trust Company (“DTC”), registration of such Shares in the name of Cede or such other nominee and the crediting of such Shares on the books of DTC to securities accounts of the Underwriter (assuming that neither DTC nor the Underwriter has notice of any adverse claim (within the meaning of Section 8-105 of the UCC) to such Shares), (i) DTC shall be a “protected purchaser” of such Shares within the meaning of Section 8-303 of the UCC, (ii) under Section 8-501 of the UCC, the Underwriter will acquire a valid security entitlement in respect of such Shares and (iii) no action based on any “adverse claim,” within the meaning of Section 8-102 of the UCC, to such Shares may be asserted against the Underwriter with respect to such security entitlement. For purposes of this representation, such Selling Stockholder may assume that when such payment, delivery and crediting occur, (A) such Shares will have been registered 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, (B) DTC will be registered as a “clearing corporation” within the meaning of Section 8-102 of the UCC and (C) appropriate entries to the accounts of the Underwriter on the records of DTC will have been made pursuant to the UCC.
(d) Such Selling Stockholder has full right, power and authority, corporate or otherwise, to enter into this Agreement.
(e) This Agreement has been duly and validly authorized, executed and delivered by or on behalf of such Selling Stockholder.
(fb) The execution, delivery and performance of this Agreement and the Selling Agreements by for on behalf of such Selling Stockholder and the consummation by such Selling Stockholder of the transactions contemplated hereby and thereby do not and will not (i) conflict with or result in a the breach or violation of any of the terms or and provisions of, or constitute a default (or an event which with notice or lapse of time, or both, would constitute a default) or require consent under, or result in the creation or imposition of any indenturelien, mortgagecharge or encumbrance upon any property or assets of such Selling Stockholder pursuant to the terms of any agreement, deed of trustinstrument, loan agreementfranchise, license or other agreement or instrument permit to which such Selling Stockholder is a party or by which such Selling Stockholder is bound or to which any of the property or assets of such Selling Stockholder is subject, (ii) result in any violation of the provisions of the charter or by-laws or deed of trust (or similar organizational documents) of such Selling Stockholder's property or assets may be bound, or (iiiii) result in violate or conflict with any violation of any statute or any judgment, decree, order, statute, rule or regulation of any court or any public, governmental or regulatory agency or body having jurisdiction over such Selling Stockholder or the property or assets of such Selling Stockholder's properties or assets.
(gc) No consentSuch Selling Stockholder has, approvaland at the time of delivery of the Shares and/or Warrants to be sold by such Selling Stockholder, authorization or order of, or filing or registration with, any court or governmental agency or body having jurisdiction over such Selling Stockholder will have, full legal right, power, authority and capacity, and, except as required under the Act and state securities and Blue Sky laws, all necessary consents, approvals, authorizations, orders, registrations, filings, qualifications, licenses and permits of and from all public, regulatory or the property or assets of such Selling Stockholder is governmental agencies and bodies, as are required for the execution, delivery and performance of this Agreement by such and the Selling Stockholder Agreements and the consummation by such Selling Stockholder of the transactions contemplated hereby and thereby, except for including the registration sale, assignment, transfer and delivery of the Shares under and/or Warrants to be sold, assigned, transferred and delivered by such Selling Stockholder hereunder.
(d) Each of this Agreement and the Securities Act Selling Agreements has been duly and validly authorized, executed and delivered by such consentsSelling Stockholder and is a valid and binding obligation of such Selling Stockholder, approvals, authorizations, registrations or qualifications as enforceable against such Selling Stockholder in accordance with its terms except to the extent that rights to indemnity hereunder may be required under the Exchange Act and limited by applicable federal or state securities laws in connection with or the purchase and sale of the Shares by the Underwriterpublic policy underlying such laws.
(he) All material information Such Selling Stockholder has good, valid and marketable title to the Shares and/or Warrants to be sold by such Selling Stockholder pursuant to this Agreement, free and clear of all liens, encumbrances, claims, security interests, restrictions on transfer, stockholders' agreements, warrant agreements, voting trusts and other defects in title whatsoever, with full power to deliver such Shares and/or Warrants hereunder, and, upon the delivery of and payment for such Shares and/or Warrants as herein contemplated, each of the Underwriters will receive good, valid and marketable title to the Shares and/or Warrants purchased by it from such Selling Stockholder, free and clear of all liens, encumbrances, claims, security interests, restrictions on transfer, stockholders' agreements, warrant agreements, voting trusts and other defects in title whatsoever. With respect to any Warrants to be sold by a Selling Stockholder pursuant to this Agreement, such Selling Stockholder has not entered into any agreement with any third party or taken any other action the effect of which could be to subject the Shares issuable upon exercise of such Warrants to any lien, encumbrance, claim, security interest, restriction on transfer, stockholders' agreement, warrant agreement, voting trust or any other defect in title whatsoever.
(f) Such Selling Stockholder has not taken and will not take, directly or indirectly, any action which has constituted or which was designed to constitute or which might be reasonably expected to cause or result in stabilization or manipulation of the price of the shares of Common Stock.
(g) When the Registration Statement shall become effective, when any amendment to the Registration Statement becomes effective, when the Prospectus is first used to confirm sales of the Shares, when any amendment of or supplement to the Prospectus is filed with the Commission, at the Closing Date and, if applicable, the Additional Closing Date, such parts of the Registration Statement and the Prospectus and any amendments thereof and supplements thereto as relate to such Selling Stockholder contained and are based upon information furnished in each of the Registration Statement, the Prospectus and the Pricing Disclosure Package (as amended and supplemented, if writing to the Company shall have filed with the Commission any amendment by or supplement thereto) (i) complied and will comply in all material respects with all applicable provisions on behalf of the Securities Act and the Rules and Regulations, (ii) contains and will contain all statements of material fact required to be stated such Selling Stockholder expressly for use therein in accordance with the Securities Act and the Rules and Regulations, and (iii) does not and will not contain an untrue statement of a material fact or and will not omit to state a any material fact required to be stated therein or necessary in order to make the statements therein not misleading. Solely When any related preliminary prospectus was first filed with respect the Commission (whether filed as part of the registration statement for the registration of the Shares and Warrants or any amendment thereto or pursuant to Rule 424(a) of the Metalmark Selling Stockholders (Regulations) and when any amendment thereof or supplement thereto was first filed with the Commission, such parts of such preliminary prospectus and any amendments thereof and supplements thereto as defined in Schedule I hereto), relate to such Selling Stockholder is and are based upon information furnished in writing to the Company by or on behalf of such Selling Stockholder expressly for use therein did not prompted contain an untrue statement of a material fact and did not omit to sell the Shares by state any material non-public information relating to the business, results of operations or prospects of the Company and its subsidiaries of an adverse nature that is fact required to be disclosed stated therein or necessary in order to make the statements therein not misleading.
(h) When the Registration StatementStatement shall become effective, when any amendment to the Registration Statement becomes effective, when the Prospectus is first used to confirm sales of the Shares, when any amendment of or supplement to the Prospectus is filed with the Commission, at the Closing Date and, if applicable, the Pricing Disclosure Package or the Prospectus. For this purposeAdditional Closing Date, information that is set forth or incorporated by reference in the Registration Statement, the Pricing Disclosure Package or Statement and the Prospectus or that otherwise has been made publicly available about the Company shall be deemed and any amendments thereof 0and supplements thereto will not contain an untrue statement of a material fact and will not omit to state any material fact required to be public informationstated 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 for the registration of the Shares and Warrants or any amendment thereto or pursuant to Rule 424(a) of the Regulations) and when any amendment thereof or supplement thereto was first filed with the Commission, such preliminary prospectus and any opinion amendments thereof and supplements thereto did not contain an untrue statement of a material fact and did not omit to sate any material fact required to be stated therein or conclusion that a Metalmark Selling Stockholder may hold, or analysis performed by a Metalmark Selling Stockholder, necessary in its capacity as an investor about order to make the business, results of operations or prospects of the Company and its subsidiaries shall statements therein not be information that relates to the business, results of operations or prospects of the Companymisleading.
(i) Such In order to document the Underwriters' compliance with the reporting and withholding provisions of the Tax Equity and Fiscal Responsibility Act of 1982 with respect to the transactions herein contemplated, each of the Selling Stockholder has not taken and will not take, directly or indirectly, any action that is designed Stockholders agrees to deliver to the Representatives prior to or that has constituted at the Closing Date and, if applicable, the Additional Closing Date, a properly completed and executed United States Treasury Department Form W-9 (or that could reasonably be expected to cause other applicable form or result statement specified by Treasury Department regulations in the stabilization or manipulation of the price of any security of the Company to facilitate the sale or resale of the Shareslieu thereof).
(j) The sale Each of the Selling Stockholders specifically agrees that the Shares represented by the certificates or Warrants held in custody for such Selling Stockholder under the Selling Agreements are subject to the interests of the Underwriters hereunder and that the arrangements made by such Selling Stockholder does for such custody and the appointment by such Selling Stockholder of the Attorney-in-Fact by the Power of Attorney are to that extent irrevocable. Each of the Selling Stockholders specifically agrees that the obligations of the Selling Stockholders hereunder shall not violate be terminated by operation of law, whether by the death or incapacity of any executor or trustee or the termination of such estate or trust, or in the case of a partnership or corporation, by the dissolution of such partnership or corporation, or by the occurrence of any other event. If any individual Selling Stockholder or any such executor or trustee should die or become incapacitated, or if any such estate or trust should be terminated, or if any such partnership or corporation should be dissolved, or if any other such event should occur before the delivery of the Shares and/or Warrants hereunder, certificates representing the Shares and/or Warrants shall be delivered by or on behalf of such Selling Stockholder in accordance with the terms and conditions of this Agreement and the Selling Agreements, and actions taken by the Attorneys-in-Fact pursuant to the Powers of Attorney shall be as valid as if such death, incapacity, termination, dissolution or other event had not occurred, regardless of whether or not the Custodian, the Attorneys-in-Fact, or any of the Company’s internal policies regarding them, shall have received notice of such death, incapacity, termination, dissolution or other event.
(k) Such Selling Stockholder confirms that the sale of stock by its affiliates. Any certificate signed by any officer of any 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 such Selling Stockholder, as 's Shares and/or Warrants pursuant to matters covered thereby, to this Agreement is not prompted by any information concerning the UnderwriterCompany which is not set forth in the Prospectus.
Appears in 1 contract
Representations and Warranties of the Selling Stockholders. (a) Each Selling Stockholder, severally and not jointly, Stockholder represents and warrants to each Underwriter that:
(a) Neither such Selling Stockholder nor any person acting on behalf of such Selling Stockholder (other than, if applicable, the Company and the Underwriter) has used or referred to any “free writing prospectus” (as defined in Rule 405), relating to the Shares.
(bi) Such Selling Stockholder has, and immediately prior to is the Closing Date on which such Selling Stockholder is selling the Shares, such Selling Stockholder will have, good and valid title to or a valid “security entitlement” within the meaning lawful owner of Section 8-501 of the New York Uniform Commercial Code (the “UCC”) in respect of, the Shares to be sold by such Selling Stockholder hereunder pursuant to this Agreement and has, and on such the Closing Date free will have, good and clear title to such Shares, free of all restrictions on transfer, liens, encumbrances, security interests, equities or claimsand claims whatsoever.
(cii) Upon payment for The Shares to be sold by such Selling Stockholder have been duly authorized and are validly issued, fully paid and non-assessable.
(iii) Such Selling Stockholder has, and on the Closing Date will have, full legal right, power and authority, and all authorization and approval required by law, to enter into this Agreement, the Custody Agreement signed by such Selling Stockholder and Xxxxxx Trust and Savings Bank, as Custodian, relating to the deposit of the Shares to be sold by such Selling Stockholder, delivery of such Shares, as directed by Stockholder (the Underwriter, to Cede & Co. (“Cede”"Custody Agreement") 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 Power of such Shares on the books Attorney of DTC to securities accounts of the Underwriter (assuming that neither DTC nor the Underwriter has notice of any adverse claim (within the meaning of Section 8-105 of the UCC) to such Shares), (i) DTC shall be a “protected purchaser” of such Shares within the meaning of Section 8-303 of the UCC, (ii) under Section 8-501 of the UCC, the Underwriter will acquire a valid security entitlement in respect of such Shares and (iii) no action based on any “adverse claim,” within the meaning of Section 8-102 of the UCC, to such Shares may be asserted against the Underwriter with respect to such security entitlement. For purposes of this representation, such Selling Stockholder may assume that when appointing certain individuals as such paymentSelling Stockholder's attorneys-in-fact (the "Attorneys") to the extent set forth therein, delivery relating to the transactions contemplated hereby and crediting occurby the Registration Statement and the Custody Agreement (the "Power of Attorney") and to sell, (A) assign, transfer and deliver the Shares to be sold by such Shares will have been registered Selling Stockholder 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 manner provided herein and applicable law, (B) DTC will be registered as a “clearing corporation” within the meaning of Section 8-102 of the UCC and (C) appropriate entries to the accounts of the Underwriter on the records of DTC will have been made pursuant to the UCCtherein.
(d) Such Selling Stockholder has full right, power and authority, corporate or otherwise, to enter into this Agreement.
(eiv) This Agreement has been duly and validly authorized, executed and delivered by or on behalf of such Selling Stockholder.
(fv) The Custody Agreement of such Selling Stockholder has been duly authorized, executed and delivered by such Selling Stockholder and is a valid and binding agreement of such Selling Stockholder, enforceable in accordance with its terms.
(vi) The Power of Attorney of such Selling Stockholder has been duly authorized, executed and delivered by such Selling Stockholder and is a valid and binding instrument of such Selling Stockholder, enforceable in accordance with its terms, and, pursuant to such Power of Attorney, such Selling Stockholder has, among other things, authorized the Attorneys, or any one of them, to execute and deliver on such Selling Stockholder's behalf this Agreement and any other document that they, or any one of them, may deem necessary or desirable in connection with the transactions contemplated hereby and thereby and to deliver the Shares to be sold by such Selling Stockholder pursuant to this Agreement.
(vii) Upon delivery of and payment for the Shares to be sold by such Selling Stockholder pursuant to this Agreement, good and clear title to such Shares will pass to the Underwriters, free of all restrictions on transfer, liens, encumbrances, security interests, equities and claims whatsoever.
(viii) The execution, delivery and performance of this Agreement and the Custody Agreement and Power of Attorney of such Selling Stockholder by or on behalf of such Selling Stockholder, the compliance by such Selling Stockholder with all the provisions hereof and thereof and the consummation by such Selling Stockholder of the transactions contemplated hereby and thereby do not and will not (i) require any consent, approval, authorization or other order of, or qualification with, any court or governmental body or agency (except such as may be required under the securities or Blue Sky laws of the various states), (ii) conflict with or result in constitute a breach or violation of any of the terms or provisions of, or constitute a default under, the organizational documents of such Selling Stockholder, if such Selling Stockholder is not an individual, or any indenture, mortgage, deed of trust, loan agreement, license mortgage, lease or other agreement or instrument to which such Selling Stockholder is a party or by which such Selling Stockholder is bound or to which any of the property or assets of such Selling Stockholder is subject, (ii) result in any violation of the provisions of the charter or by-laws or deed of trust (or similar organizational documents) of such Selling Stockholder, bound or (iii) result in violate or conflict with any violation of any statute applicable law or any orderrule, rule regulation, judgment, order or regulation decree of any court or any governmental body or agency or body having jurisdiction over such Selling Stockholder or the any property or assets of such Selling Stockholder.
(gix) No consent, approval, authorization or order of, or filing or registration with, any court or governmental agency or body having jurisdiction over such Selling Stockholder or The information in the property or assets of such Selling Stockholder is required for the execution, delivery and performance of this Agreement by such Selling Stockholder and the consummation by such Selling Stockholder of the transactions contemplated hereby and thereby, except for the registration of the Shares Registration Statement under the Securities Act caption "Principal and such consents, approvals, authorizations, registrations or qualifications as may be required under the Exchange Act and applicable state securities laws in connection with the purchase and sale of the Shares by the Underwriter.
(h) All material information with respect Selling Stockholders" which specifically relates to such Selling Stockholder contained in each of the Registration Statementdoes not, the Prospectus and the Pricing Disclosure Package (as amended and supplemented, if the Company shall have filed with the Commission any amendment or supplement thereto) (i) complied and will comply in all material respects with all applicable provisions of the Securities Act and the Rules and Regulations, (ii) contains and will contain all statements of material fact required to be stated therein in accordance with the Securities Act and the Rules and Regulations, and (iii) does not and will not on the Closing Date, contain an any untrue statement of a material fact or omit to state a any material fact required to be stated therein or necessary in order to make the statements therein therein, in the light of the circumstances under which they were made, not misleading. Solely with respect .
(x) At any time during the period described in Section 5(d), if there is any change in the information referred to the Metalmark Selling Stockholders (as defined in Schedule I heretoSection 7(a)(ix), such Selling Stockholder is not prompted to sell the Shares by any material non-public information relating to the business, results will immediately notify you of operations or prospects of the Company and its subsidiaries of an adverse nature that is required to be disclosed in the Registration Statement, the Pricing Disclosure Package or the Prospectus. For this purpose, information that is set forth or incorporated by reference in the Registration Statement, the Pricing Disclosure Package or the Prospectus or that otherwise has been made publicly available about the Company shall be deemed to be public information, and any opinion or conclusion that a Metalmark Selling Stockholder may hold, or analysis performed by a Metalmark Selling Stockholder, in its capacity as an investor about the business, results of operations or prospects of the Company and its subsidiaries shall not be information that relates to the business, results of operations or prospects of the Companysuch change.
(ixi) Such Selling Stockholder has not taken and will not take, directly or indirectly, any action that is designed to or that has constituted or that could reasonably be expected to cause or result in the stabilization or manipulation of the price of any security of the Company to facilitate the sale or resale of the Shares.
(j) The sale of the Shares by such Selling Stockholder does not violate any of the Company’s internal policies regarding the sale of stock by its affiliates. Any Each certificate signed by any officer or on behalf of any such Selling Stockholder and delivered to the Underwriter Underwriters or counsel for the Underwriter in connection with the offering of the Shares Underwriters shall be deemed to be a representation and warranty by such Selling Stockholder, Stockholder to the Underwriters as to the matters covered thereby, to the Underwriter.
Appears in 1 contract
Samples: Underwriting Agreement (Superior Consultant Holdings Corp)
Representations and Warranties of the Selling Stockholders. Each Selling Stockholder, severally and not jointly, represents and warrants to, and agrees with, the Underwriters that:
(a) Neither such Selling Stockholder nor any person acting on behalf of such Selling Stockholder (other than, if applicable, the Company and the Underwriter) has used or referred to any “free writing prospectus” (as defined in Rule 405), relating to the Shares.
(b) Such Selling Stockholder has, and immediately prior to the Closing Date on which If such Selling Stockholder is selling the Sharesan individual, such Selling Stockholder will have, good has full legal capacity to enter into and valid title deliver this Agreement and 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 perform its obligations hereunder. If such Selling Stockholder hereunder on such Closing Date free is not an individual, this Agreement and clear of all liens, encumbrances, equities or claims.
(c) Upon payment for the Shares to be sold transactions contemplated herein have been duly and validly authorized by such Selling Stockholder, delivery of such Shares, as directed by the Underwriter, to Cede & Co. (“Cede”) or such other nominee as may be designated by The Depository Trust Company (“DTC”), registration of such Shares in the name of Cede or such other nominee and the crediting of such Shares on the books of DTC to securities accounts of the Underwriter (assuming that neither DTC nor the Underwriter has notice of any adverse claim (within the meaning of Section 8-105 of the UCC) to such Shares), (i) DTC shall be a “protected purchaser” of such Shares within the meaning of Section 8-303 of the UCC, (ii) under Section 8-501 of the UCC, the Underwriter will acquire a valid security entitlement in respect of such Shares and (iii) no action based on any “adverse claim,” within the meaning of Section 8-102 of the UCC, to such Shares may be asserted against the Underwriter with respect to such security entitlement. For purposes of this representation, such Selling Stockholder may assume that when such payment, delivery and crediting occur, (A) such Shares will have been registered in the name of Cede or another nominee designated by DTC, in each case on the Company’s share registry in accordance with its certificate of incorporation, bylaws and applicable law, (B) DTC will be registered as a “clearing corporation” within the meaning of Section 8-102 of the UCC and (C) appropriate entries to the accounts of the Underwriter on the records of DTC will have been made pursuant to the UCC.
(d) Such Selling Stockholder has full right, power and authority, corporate or otherwise, to enter into this Agreement.
(e) This Agreement has been duly and validly authorized, executed and delivered by or on behalf of such Selling Stockholder.
(fb) The execution, delivery and performance Each of this (i) the Custody Agreement signed by such Selling Stockholder with American Stock Transfer & Trust Company, as custodian (the "Custodian"), relating to the deposit of the Selling Stockholder Firm Shares and the consummation Additional Shares to be sold by such Selling Stockholder (the "Custody Agreement"), and (ii) the Power of Attorney signed by such Selling Stockholder appointing certain individuals named therein as such Selling Stockholder's attorneys-in-fact (each, an "Attorney-in-Fact") to the extent set forth therein (the "Power of Attorney"), and, in each case, the transactions contemplated therein, have been duly and validly authorized by such Selling Stockholder (if such Selling Stockholder is not an individual). Each of the Custody Agreement and the Power of Attorney has been duly and validly executed and delivered by such Selling Stockholder, and is a valid and binding agreement of such Selling Stockholder, enforceable in accordance with its terms, except as rights to indemnification and contribution thereunder may be limited by applicable law, and except as the enforcement thereof may be limited by bankruptcy, insolvency, reorganization, moratorium or other similar laws relating to or affecting the rights and remedies of creditors, or by general equitable principles.
(c) The Selling Stockholder Firm Shares and the Additional Shares represented by the certificates held in custody for such Selling Stockholder under the Custody Agreement are subject to the interests of the Underwriters hereunder. The arrangements made by such Selling Stockholder for such custody, and the appointment by such Selling Stockholder of the transactions contemplated hereby Attorneys-in-Fact by the Power of Attorney, are to that extent irrevocable. The obligations of the Selling Stockholders hereunder shall not be terminated by operation of law, whether by the death or incapacity of any individual Selling Stockholder or, in the case of an estate or trust, by the death or incapacity of any executor or trustee or the termination of such estate or trust, or in the case of a partnership, limited liability company or corporation, by its dissolution, or by the occurrence of any other event. If any individual Selling Stockholder, or any such executor or trustee should die or become incapacitated, or if any such estate or trust should be terminated, or if such partnership, limited liability company or corporation should be dissolved, or if any other such event should occur, before the delivery of the Selling Stockholder Firm Shares and thereby do the Additional Shares hereunder, certificates representing such Shares shall be delivered by or on behalf of the Selling Stockholders in accordance with the terms and conditions of this Agreement and the Custody Agreement, and actions taken by the Attorneys-in-Fact pursuant to the Power of Attorney shall be as valid as if such death, incapacity, termination, dissolution or other event had not occurred, regardless of whether or not the Custodian, the Attorneys-in-Fact, or any of them, shall have received notice of such death, incapacity, termination, dissolution or other event.
(d) Such Selling Stockholder is the lawful owner of the Selling Stockholder Firm Shares and the Additional Shares to be sold by such Selling Stockholder hereunder, and has, and on the Closing Date and the Additional Closing Date, if any, will have, good and valid title to all of such Shares which may be sold by such Selling Stockholder pursuant to this Agreement on such date, and the legal right and power, and all authorizations and approvals required by law and, where applicable, under its charter or by-laws, partnership agreement, trust agreement or other organizational documents, to enter into this Agreement and the Custody Agreement and Power of Attorney, to sell, transfer and deliver all of the Selling Stockholder Firm Shares and the Additional Shares which may be sold by such Selling Stockholder pursuant to this Agreement, and to comply with its other obligations hereunder and thereunder, and upon sale and delivery of, and payment for, such Shares, as provided herein, such Selling Stockholder will convey good and marketable title to such Shares, free and clear of all security interests, mortgages, pledges, liens, encumbrances or other claims.
(e) The execution and delivery by such Selling Stockholder of, and the performance by such Selling Stockholder of its obligations under, this Agreement, the Custody Agreement and the Power of Attorney, 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 (or an event which with notice or lapse of time, or both, would constitute a default) or Repayment Event (as defined above) under, require approval or consent under, or result in the creation or imposition of any indenturelien, mortgagecharge or other encumbrance upon any property or assets of such Selling Stockholder pursuant to, deed of trustany agreement, loan agreementinstrument, franchise, license or other agreement or instrument permit to which such Selling Stockholder is a party party, or by which such Selling Stockholder or its properties or assets may be bound, or under which it is bound entitled to any right or to which benefit, or (ii) violate or conflict with (A) any provision of the property certificate of incorporation, by-laws, partnership agreement, limited liability company agreement or assets trust agreement, as the case may be, or other organizational documents of such Selling Stockholder is subject, (ii) result in any violation of the provisions of the charter or by-laws or deed of trust (or similar organizational documents) of if such Selling StockholderStockholder is not an individual), or (iiiB) result in any violation of any statute or any judgment, decree, order, statute, rule or regulation of any court or any public, governmental or regulatory agency or body having jurisdiction over such Selling Stockholder or the property any of its properties or assets of such Selling Stockholder.
(g) assets. No consent, approval, authorization authorization, order, registration, filing, qualification, license or order of, permit of or filing or registration with, with any court or any public, governmental or regulatory agency or body having jurisdiction over such Selling Stockholder or the property any of its properties or assets of such Selling Stockholder is required for the execution, delivery and performance of this Agreement, the Custody Agreement by such Selling Stockholder and or the Power of Attorney, or the consummation by such Selling Stockholder of the transactions contemplated hereby and or thereby, including the issuance, sale and delivery of the Selling Stockholder Firm Shares and the Additional Shares to be issued, sold and delivered by such Selling Stockholder hereunder, and with respect to the Directed Shares, no consent, approval, authorization, order, registration, filing, qualification, license or permit of or with any court or any public, governmental or regulatory agency is necessary under the laws and regulations of foreign jurisdictions in which the Directed Shares are offered outside the United States, except for the registration of the Shares under the Securities Act of such Shares and such consents, approvals, authorizations, registrations orders, registrations, filings, qualifications, licenses and permits as have been obtained or qualifications as may be required under the Exchange Act and applicable state securities laws or Blue Sky laws, or with the NASD, in connection with the purchase and distribution of such Shares by the Underwriters.
(f) Except as have been waived in writing, such Selling Stockholder does not have any rights to the registration of securities of the Company or other similar rights to have any securities of the Company included in the offering contemplated by this Agreement, because of the filing of the Registration Statement or otherwise in connection with the sale of the Shares contemplated hereby, other than with respect to the Selling Stockholder Firm Shares and the Additional Shares included in the Registration Statement.
(g) Such Selling Stockholder does not have any preemptive right, co-sale right or right of first refusal or other similar right to purchase any of the Shares that are to be sold by Company or any of the Underwriterother Selling Stockholders to the Underwriters pursuant to this Agreement, and such Selling Stockholder does not own any warrants, options or similar rights to acquire, and does not have any right or arrangement to acquire, any capital stock, right, warrants, options or other securities from the Company.
(h) All material information with respect to furnished by or on behalf of such Selling Stockholder contained expressly for use in each of the Registration Statement, Statement and the Prospectus is, and on the Closing Date and the Pricing Disclosure Package (as amended and supplementedAdditional Closing Date, if the Company shall have filed with the Commission any amendment or supplement thereto) (i) complied any, will be, true, correct, and will comply complete in all material respects with all applicable provisions of respects, and does not, and on the Securities Act Closing Date and the Rules and RegulationsAdditional Closing Date, (ii) contains and if any, will not, contain all statements of material fact required to be stated therein in accordance with the Securities Act and the Rules and Regulations, and (iii) does not and will not contain an any untrue statement of a material fact or omit to state a any material fact required to be stated therein or necessary in order to make the statements therein such information not misleading. Solely Such Selling Stockholder confirms as accurate (prior to giving effect to the sale of the Shares) the number of shares of Common Stock set forth opposite such Selling Stockholder's name in the Prospectus under the caption "Principal and Selling Stockholders" or with respect to the Metalmark Selling Stockholders (as defined in Schedule I hereto), such Selling Stockholder is not prompted to sell as described in the Shares by any material non-public information relating footnotes to the business, results of operations or prospects of the Company and its subsidiaries of an adverse nature that is required to be disclosed in the Registration Statement, the Pricing Disclosure Package or the Prospectus. For this purpose, information that is set forth or incorporated by reference in the Registration Statement, the Pricing Disclosure Package or the Prospectus or that otherwise has been made publicly available about the Company shall be deemed to be public information, and any opinion or conclusion that a Metalmark Selling Stockholder may hold, or analysis performed by a Metalmark Selling Stockholder, in its capacity as an investor about the business, results of operations or prospects of the Company and its subsidiaries shall not be information that relates to the business, results of operations or prospects of the Companytable under such caption.
(i) Such Selling Stockholder has not taken and or will not take, directly or indirectly, any action that is designed to cause or that has constituted result in, or that could which constitutes or which might reasonably be expected to cause or result in constitute, the stabilization or manipulation of the price of any security of the Company to facilitate the sale or resale of the Shares.
(j) The Such Selling Stockholder has not distributed any offering material in connection with the offering and sale of the Shares, other than a preliminary prospectus, the Prospectus or the Registration Statement.
(k) Neither the Selling Stockholder, nor any of the Selling Stockholder's affiliates, directly or indirectly, through one or more intermediaries, controls, is controlled by, or is under common control with, or has any other association with (within the meaning of Article I of the By-laws of the NASD), any member firm of the NASD.
(l) If such Selling Stockholder is not an individual, such Selling Stockholder has been duly organized and is validly existing as a corporation, partnership, limited liability company, trust or other entity, as the case may be, in good standing under the laws of its jurisdiction of incorporation.
(m) Such Selling Stockholder has no reason to believe that the representations and warranties of the Company contained in Section 1 hereof are not true and correct, is familiar with the Registration Statement and has no knowledge of any material fact, condition or information not disclosed in the therein and in the Prospectus or any supplements thereto, which has adversely affected or may adversely affect the business of the Company or any of its subsidiaries; and the sale of the Selling Stockholder Firm Shares and the Additional Shares by such Selling Stockholder does pursuant hereto is not violate prompted by any information concerning the Company or any of its subsidiaries which is not set forth in the Company’s internal policies regarding Registration Statement and the sale of stock by its affiliatesProspectus or any supplements thereto. Any certificate or other document, including, without limitation, the Custody Agreement, the Power of Attorney, any irrevocable election to sell or any questionnaire, signed by any officer or on behalf of any Selling Stockholder and delivered to the Underwriter you or to counsel for the Underwriter in connection with the offering of the Shares Underwriters shall be deemed to be a representation and warranty by such Selling Stockholder, Stockholder to each Underwriter as to the matters covered thereby, to the Underwriterset forth therein.
Appears in 1 contract
Samples: Underwriting Agreement (Smith & Wollensky Restaurant Group Inc)
Representations and Warranties of the Selling Stockholders. Each Except as disclosed in this Agreement, including the schedules attached to this Agreement, each Selling Stockholder, Stockholder hereby severally and not jointly, represents and warrants to the Purchaser that:
(a) Neither such Selling Such Stockholder nor any person acting has all requisite corporate, partnership or individual power, as the case may be, to execute and deliver this Agreement, to consummate the transactions contemplated hereby and to perform all the terms and conditions hereof to be performed by it. The execution and delivery of this Agreement by the Stockholder, the performance by it of all the terms and conditions hereof to be performed by it and the consummation of the transactions contemplated hereby (x) have been duly authorized by all necessary action on behalf the part of such Selling Stockholder and do not require the consent or approval of any governmental or other regulatory body and (y) do not violate any provision of any federal or state law or regulation or any judgment, order or decree of any federal or state court or governmental agency applicable to or binding on such Stockholder. This Agreement constitutes the valid and binding obligation of such Stockholder enforceable in accordance with its terms, except as the enforceability hereof may be limited by (i) bankruptcy, insolvency or other than, if applicable, the Company and the Underwriter) has used or referred to any “free writing prospectus” (as defined in Rule 405), laws relating to the Sharesor affecting generally creditors' rights and (ii) general principles of equity (regardless of whether such enforceability is considered in a proceeding in equity or at law).
(b) Such Selling Except as provided in the Prior Stockholder hasAgreement and Voting Agreement, and immediately prior to the Closing Date on which if such Selling Stockholder is selling the Shares, such Selling Stockholder will have, good and valid title a party to or a valid “security entitlement” within the meaning bound by either or both of Section 8-501 such Agreements, upon delivery to Purchaser of the New York Uniform Commercial Code (certificates representing the “UCC”) in respect of, the Shares to be shares of Common Stock and Prior Warrants being sold by such Selling Stockholder to Purchaser hereunder on and payment of the purchase price therefore, Purchaser will receive good and marketable title to such Closing Date Common Stock and Prior Warrants free and clear of all liabilities, liens, encumbrancestrusts, equities stockholder agreements, equities, charges, conditional sale or claimstitle retention agreements, covenants, restrictions, reservations, rights of first refusal, commitments, mortgages, pledges, security interests or encumbrances of any nature whatsoever.
(c) Upon payment for Based solely on a reading of the Shares to be sold DPI Agreement by such an officer or key employee of the Selling Stockholder who is familiar with the Selling Stockholder's investment in DPI, delivery of such Sharesthe Selling Stockholder does not, as directed by the Underwriter, to Cede & Co. (“Cede”) or such other nominee as may be designated by The Depository Trust Company (“DTC”), registration of such Shares in the name of Cede or such other nominee and the crediting of such Shares on the books of DTC to securities accounts of date it executes this Agreement and at the Underwriter (assuming Closing Date, have any actual knowledge that neither DTC nor the Underwriter DPI Agreement has notice of any adverse claim (within the meaning of Section 8-105 of the UCC) to such Shares), (i) DTC shall misstated any material fact known by that Selling Stockholder to be a “protected purchaser” both (a) unknown to the Purchaser and (b) material to the Purchaser in regard to any sale of such Shares within the meaning of Section 8-303 of the UCC, securities pursuant to this Agreement or (ii) under Section 8-501 of omitted to state any fact known to that Selling Stockholder to be both (a) unknown to the UCC, the Underwriter will acquire a valid security entitlement in respect of such Shares Purchaser and (iiib) no action based on necessary to be known to the Purchaser to make any “adverse claim,” within the meaning of Section 8-102 of the UCC, to such Shares may be asserted against the Underwriter with respect to such security entitlement. For purposes of this representation, such Selling Stockholder may assume that when such payment, delivery and crediting occur, (A) such Shares will have been registered fact which is stated 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, (B) DTC will be registered as a “clearing corporation” within the meaning of Section 8-102 of the UCC and (C) appropriate entries DPI Agreement not materially misleading to the accounts Purchaser in regard to any sale of the Underwriter on the records of DTC will have been made securities pursuant to the UCC.
(d) Such Selling Stockholder has full right, power and authority, corporate or otherwise, to enter into this Agreement.
(e) This Agreement has been duly and validly authorized, executed and delivered by or on behalf of such Selling Stockholder.
(f) The execution, delivery and performance of this Agreement by such Selling Stockholder and the consummation by such Selling Stockholder of the transactions contemplated hereby and thereby 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, any indenture, mortgage, deed of trust, loan agreement, license or other agreement or instrument to which such Selling Stockholder is a party or by which such Selling Stockholder is bound or to which any of the property or assets of such Selling Stockholder is subject, (ii) result in any violation of the provisions of the charter or by-laws or deed of trust (or similar organizational documents) of such Selling Stockholder, or (iii) result in any violation of any statute or any order, rule or regulation of any court or governmental agency or body having jurisdiction over such Selling Stockholder or the property or assets of such Selling Stockholder.
(g) No consent, approval, authorization or order of, or filing or registration with, any court or governmental agency or body having jurisdiction over such Selling Stockholder or the property or assets of such Selling Stockholder is required for the execution, delivery and performance of this Agreement by such Selling Stockholder and the consummation by such Selling Stockholder of the transactions contemplated hereby and thereby, except for the registration of the Shares under the Securities Act and such consents, approvals, authorizations, registrations or qualifications as may be required under the Exchange Act and applicable state securities laws in connection with the purchase and sale of the Shares by the Underwriter.
(h) All material information with respect to such Selling Stockholder contained in each of the Registration Statement, the Prospectus and the Pricing Disclosure Package (as amended and supplemented, if the Company shall have filed with the Commission any amendment or supplement thereto) (i) complied and will comply in all material respects with all applicable provisions of the Securities Act and the Rules and Regulations, (ii) contains and will contain all statements of material fact required to be stated therein in accordance with the Securities Act and the Rules and Regulations, and (iii) does not and will not contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary in order to make the statements therein not misleading. Solely with respect to the Metalmark Selling Stockholders (as defined in Schedule I hereto), such Selling Stockholder is not prompted to sell the Shares by any material non-public information relating to the business, results of operations or prospects of the Company and its subsidiaries of an adverse nature that is required to be disclosed in the Registration Statement, the Pricing Disclosure Package or the Prospectus. For this purpose, information that is set forth or incorporated by reference in the Registration Statement, the Pricing Disclosure Package or the Prospectus or that otherwise has been made publicly available about the Company shall be deemed to be public information, and any opinion or conclusion that a Metalmark Selling Stockholder may hold, or analysis performed by a Metalmark Selling Stockholder, in its capacity as an investor about the business, results of operations or prospects of the Company and its subsidiaries shall not be information that relates to the business, results of operations or prospects of the Company.
(i) Such Selling Stockholder has not taken and will not take, directly or indirectly, any action that is designed to or that has constituted or that could reasonably be expected to cause or result in the stabilization or manipulation of the price of any security of the Company to facilitate the sale or resale of the Shares.
(j) The sale of the Shares by such Selling Stockholder does not violate any of the Company’s internal policies regarding the sale of stock by its affiliates. Any certificate signed by any officer of any 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 such Selling Stockholder, as to matters covered thereby, to the Underwriter.
Appears in 1 contract
Representations and Warranties of the Selling Stockholders. Each Selling Stockholder, severally and not jointlyto the extent applicable, represents and warrants to and agrees with each of the Underwriters that:
(a) Neither such Selling Stockholder nor any person acting This Agreement has been duly authorized, executed and delivered by or on behalf of such Selling Stockholder (other than, if applicable, the Company and the Underwriter) has used or referred to any “free writing prospectus” (as defined in Rule 405), relating to the SharesStockholder.
(b) Each of the Forward Agreements has been duly authorized, executed and delivered by St. Xxxx Travelers and is a valid and binding agreement of St. Xxxx Travelers, enforceable against St. Xxxx Travelers in accordance with its terms except as (A) the enforceability thereof may be limited by bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium or similar laws affecting creditors’ rights generally, (B) the availability of equitable remedies may be limited by equitable principles of general applicability and (C) may be limited by an implied covenant of good faith and fair dealing;
(c) Each of the Indemnity Agreements has been duly authorized, executed and delivered by St. Xxxx Travelers and is a valid and binding agreement of St. Xxxx Travelers, enforceable against St. Xxxx Travelers in accordance with its terms except as (A) the enforceability thereof may be limited by bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium or similar laws affecting creditors’ rights generally, (B) the availability of equitable remedies may be limited by equitable principles of general applicability, (C) may be limited by an implied covenant of good faith and fair dealing and (D) rights to indemnification may be limited by public policy;
(d) The Repurchase Agreement has been duly authorized, executed and delivered by St. Xxxx Travelers and is a valid and binding agreement of St. Xxxx Travelers, enforceable against St. Xxxx Travelers in accordance with its terms except as (A) the enforceability thereof may be limited by bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium or similar laws affecting creditors’ rights generally, (B) the availability of equitable remedies may be limited by equitable principles of general applicability and (C) may be limited by an implied covenant of good faith and fair dealing;
(e) The Separation Agreement has been duly authorized, executed and delivered by St. Xxxx Travelers and is a valid and binding agreement of St. Xxxx Travelers, enforceable against St. Xxxx Travelers in accordance with its terms except as (A) the enforceability thereof may be limited by bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium or similar laws affecting creditors’ rights generally, (B) the availability of equitable remedies may be limited by equitable principles of general applicability and (C) may be limited by an implied covenant of good faith and fair dealing;
(f) The execution and delivery by such Selling Stockholder of, and the performance by such Selling Stockholder of its obligations under, this Agreement, the Forward Agreements, the Indemnity Agreements, the Repurchase Agreement and the Separation Agreement will not contravene (i) any provision of applicable law or (ii) the certificate of incorporation or by-laws of such Selling Stockholder or (iii) any agreement or other instrument binding upon such Selling Stockholder that is material to such Selling Stockholder and its subsidiaries taken as a whole, or (iv) any judgment, order or decree of any governmental body, agency or court having jurisdiction over such Selling Stockholder, except in the case of (i), (iii) and (iv) as would not have a material adverse effect on such Selling Stockholder and its subsidiaries taken as a whole, 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, the Forward Agreements, the Indemnity Agreements, the Repurchase Agreement and the Separation Agreement, except those which have been obtained and made, and as may be required by rules of the National Association of Securities Dealers, Inc., or by the securities or Blue Sky laws of the various states in connection with the offer and sale of the Shares, and except for those the failure of which to obtain would not have a material adverse effect on such Selling Stockholder and its subsidiaries taken as a whole.
(g) Such Selling Stockholder has, and immediately has (with respect to the Class B common stock owned by such Selling Stockholder prior to the conversion of such Class B common stock to Class A common stock), and on the Closing Date on which such Selling Stockholder is selling will have (with respect to the Shares), such Selling Stockholder will have, good and valid title to to, or a valid “security entitlement” within the meaning of Section 8-501 of the New York Uniform Commercial Code (the “UCC”) in respect of, the Shares to be sold by such Selling Stockholder hereunder on such Closing Date free and clear of all security interests, claims, liens, encumbrances, equities or claimsother 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 such Selling Stockholder or a security entitlement in respect of such Shares.
(ch) Upon payment for the Shares to be sold by such Selling StockholderStockholder pursuant to this Agreement, delivery of such Shares, as directed by the UnderwriterUnderwriters, to Cede & Co. (“Cede”) or such other nominee as may be designated by The the Depository Trust Company (“DTC”), registration of such Shares in the name of Cede or such other nominee and the crediting of such Shares on the books of DTC to securities accounts of the Underwriter Underwriters (assuming that neither DTC nor the any such Underwriter has notice of any adverse claim (within the meaning of Section 8-105 of the UCC) UCC to such Shares), (iA) DTC shall be a “protected purchaser” of such Shares within the meaning of Section 8-303 of the UCC, (iiB) under Section 8-501 of the UCC, the Underwriter Underwriters will acquire a valid security entitlement in respect of such Shares and (iiiC) 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 Underwriter Underwriters with respect to such security entitlement. For ; for purposes of this representation, such Selling Stockholder may assume that when such payment, delivery and crediting occur, (Ax) 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, (By) DTC will be registered as a “clearing corporation” within the meaning of Section 8-102 of the UCC and (Cz) appropriate entries to the accounts of the Underwriter several Underwriters on the records of DTC will have been made pursuant to the UCC.
(di) Such Selling Stockholder is not prompted by any information concerning the Company or its subsidiaries which is not set forth in the Prospectus or otherwise has full right, power and authority, corporate or otherwise, been publicly disclosed by such Selling Stockholder to enter into sell its Shares pursuant to this Agreement.
(e) This Agreement has been duly and validly authorized, executed and delivered by or on behalf of such Selling Stockholder.
(fi) The execution, delivery and performance of this Agreement by such Selling Stockholder and the consummation by such Selling Stockholder of the transactions contemplated hereby and thereby 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, any indenture, mortgage, deed of trust, loan agreement, license or other agreement or instrument to which such Selling Stockholder is a party or by which such Selling Stockholder is bound or to which any of the property or assets of such Selling Stockholder is subject, (ii) result in any violation of the provisions of the charter or by-laws or deed of trust (or similar organizational documents) of such Selling Stockholder, or (iii) result in any violation of any statute or any order, rule or regulation of any court or governmental agency or body having jurisdiction over such Selling Stockholder or the property or assets of such Selling Stockholder.
(g) No consent, approval, authorization or order of, or filing or registration with, any court or governmental agency or body having jurisdiction over such Selling Stockholder or the property or assets of such Selling Stockholder is required for the execution, delivery and performance of this Agreement by such Selling Stockholder and the consummation by such Selling Stockholder of the transactions contemplated hereby and thereby, except for the registration of the Shares under the Securities Act and such consents, approvals, authorizations, registrations or qualifications as may be required under the Exchange Act and applicable state securities laws in connection with the purchase and sale of the Shares by the Underwriter.
(h) All material information with respect to such Selling Stockholder contained in each of the Registration Statement, the Prospectus and the Pricing Disclosure Package (when it became effective, did not contain and, as amended and or supplemented, if the Company shall have filed with the Commission any amendment or supplement thereto) (i) complied and will comply in all material respects with all applicable provisions of the Securities Act and the Rules and Regulationsapplicable, (ii) contains and will contain all statements of material fact required to be stated therein in accordance with the Securities Act and the Rules and Regulations, and (iii) does not and will not contain an 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. Solely with respect , and (ii) the Prospectus does not contain and, as amended or supplemented, if applicable, will not contain any untrue statement of a material fact or omit to state a material fact necessary to make the Metalmark Selling Stockholders (as defined statements therein, in Schedule I hereto)the light of the circumstances under which they were made, not misleading, provided that the representations and warranties set forth in this paragraph 2(j) are limited to statements or omissions based upon information relating to such Selling Stockholder is not prompted to sell the Shares by any material non-public information relating furnished to the business, results of operations or prospects of the Company and its subsidiaries of an adverse nature that is required to be disclosed in writing by such Selling Stockholder expressly for use in the Registration Statement, the Pricing Disclosure Package Prospectus or the Prospectus. For this purpose, any amendments or supplements thereto (such information that is set forth or incorporated by reference in the Registration Statementcollectively, the Pricing Disclosure Package or the Prospectus or that otherwise has been made publicly available about the Company shall be deemed to be public information, and any opinion or conclusion that a Metalmark “Selling Stockholder may hold, or analysis performed by a Metalmark Selling Stockholder, in its capacity as an investor about the business, results of operations or prospects of the Company and its subsidiaries shall not be information that relates to the business, results of operations or prospects of the CompanyInformation”).
(i) Such Selling Stockholder has not taken and will not take, directly or indirectly, any action that is designed to or that has constituted or that could reasonably be expected to cause or result in the stabilization or manipulation of the price of any security of the Company to facilitate the sale or resale of the Shares.
(j) The sale of the Shares by such Selling Stockholder does not violate any of the Company’s internal policies regarding the sale of stock by its affiliates. Any certificate signed by any officer of any 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 such Selling Stockholder, as to matters covered thereby, to the Underwriter.
Appears in 1 contract
Samples: Underwriting Agreement (St Paul Travelers Companies Inc)
Representations and Warranties of the Selling Stockholders. Each Selling Stockholder, severally and not jointly, Stockholder represents and warrants to each Underwriter that:
(a) Neither such Selling Stockholder nor any person acting on behalf of such Selling Stockholder (other than, if applicable, the Company and the Underwriter) has used or referred to any “free writing prospectus” (as defined in Rule 405), relating to the Shares.
(b) Such Selling Stockholder has, and immediately prior to is the Closing Date on which such Selling Stockholder is selling the Shares, such Selling Stockholder will have, good and valid title to or a valid “security entitlement” within the meaning lawful owner of Section 8-501 of the New York Uniform Commercial Code (the “UCC”) in respect of, the Shares to be sold by such Selling Stockholder hereunder pursuant to this Agreement and has, and on such the Closing Date free (and Option Closing Date, if applicable) will have, good and clear title to such Shares, free of all restrictions on transfer, liens, encumbrances, security interests, equities or claimsand claims whatsoever.
(b) The Shares to be sold by such Selling Stockholder have been duly authorized and are validly issued, fully paid and non-assessable.
(c) Upon payment for Such Selling Stockholder has, and on the Closing Date will have, full legal right, power and authority, and all authorization and approval required by law, to enter into this Agreement, the Custody Agreement signed by such Selling Stockholder and the Company as Custodian, relating to the deposit of the Shares to be sold by such Selling Stockholder, delivery of such Shares, as directed by Stockholder (the Underwriter, to Cede & Co. (“Cede”"Custody Agreement") 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 Power of such Shares on the books Attorney of DTC to securities accounts of the Underwriter (assuming that neither DTC nor the Underwriter has notice of any adverse claim (within the meaning of Section 8-105 of the UCC) to such Shares), (i) DTC shall be a “protected purchaser” of such Shares within the meaning of Section 8-303 of the UCC, (ii) under Section 8-501 of the UCC, the Underwriter will acquire a valid security entitlement in respect of such Shares and (iii) no action based on any “adverse claim,” within the meaning of Section 8-102 of the UCC, to such Shares may be asserted against the Underwriter with respect to such security entitlement. For purposes of this representation, such Selling Stockholder may assume that when appointing certain individuals as such paymentSelling Stockholder's attorneys-in-fact (the "Attorneys") to the extent set forth therein, delivery relating to the transactions contemplated hereby and crediting occurby the Registration Statement and the Custody Agreement (the "Power of Attorney") and to sell, (A) assign, transfer and deliver the Shares to be sold by such Shares will have been registered Selling Stockholder 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 manner provided herein and applicable law, (B) DTC will be registered as a “clearing corporation” within the meaning of Section 8-102 of the UCC and (C) appropriate entries to the accounts of the Underwriter on the records of DTC will have been made pursuant to the UCCtherein.
(d) Such Selling Stockholder has full right, power and authority, corporate or otherwise, to enter into this Agreement.
(e) This Agreement has been duly and validly authorized, executed and delivered by or on behalf of such Selling Stockholder.
(e) The Custody Agreement of such Selling Stockholder has been duly authorized, executed and delivered by such Selling Stockholder and is a valid and binding agreement of such Selling Stockholder, enforceable in accordance with its terms.
(f) The Power of Attorney of such Selling Stockholder has been duly authorized, executed and delivered by such Selling Stockholder and is a valid and binding instrument of such Selling Stockholder, enforceable in accordance with its terms, and, pursuant to such Power of Attorney, such Selling Stockholder has, among other things, authorized the Attorneys, or any one of them, to execute and deliver on such Selling Stockholder's behalf this Agreement and any other document that they, or any one of them, may deem necessary or desirable in connection with the transactions contemplated hereby and thereby and to deliver the Shares to be sold by such Selling Stockholder pursuant to this Agreement.
(g) Upon delivery of and payment for the Shares to be sold by such Selling Stockholder pursuant to this Agreement, good and clear title to such Shares will pass to the Underwriters, free of all restrictions on transfer, liens, encumbrances, security interests, equities and claims whatsoever.
(h) The execution, delivery and performance of this Agreement and the Custody Agreement and Power of Attorney of such Selling Stockholder by or on behalf of such Selling Stockholder, the compliance by such Selling Stockholder with all the provisions hereof and thereof and the consummation by such Selling Stockholder of the transactions contemplated hereby and thereby do not and will not (i1) require any consent, approval, authorization or other order of, or qualification with, any court or governmental body or agency (except such as may be required under the securities or Blue Sky laws of the various states), (2) conflict with or result in constitute a breach or violation of any of the terms or provisions of, or constitute a default under, the organizational documents of such Selling Stockholder, if such Selling Stockholder is not an individual, or any indenture, mortgage, deed of trust, loan agreement, license mortgage, lease or other agreement or instrument to which such Selling Stockholder is a party or by which such Selling Stockholder is bound or to which any of the property or assets of such Selling Stockholder is subject, (ii) result in any violation of the provisions of the charter or by-laws or deed of trust (or similar organizational documents) of such Selling Stockholder, bound or (iii3) result in violate or conflict with any violation of any statute applicable law or any orderrule, rule regulation, judgment, order or regulation decree of any court or any governmental body or agency or body having jurisdiction over such Selling Stockholder or the any property or assets of such Selling Stockholder.
(gi) No consent, approval, authorization or order of, or filing or registration with, any court or governmental agency or body having jurisdiction over such Selling Stockholder or The information in the property or assets of such Selling Stockholder is required for the execution, delivery and performance of this Agreement by such Selling Stockholder and the consummation by such Selling Stockholder of the transactions contemplated hereby and thereby, except for the registration of the Shares Registration Statement under the Securities Act caption "Principal and such consents, approvals, authorizations, registrations or qualifications as may be required under the Exchange Act and applicable state securities laws in connection with the purchase and sale of the Shares by the Underwriter.
(h) All material information with respect Selling Stockholders" which specifically relates to such Selling Stockholder contained in each of the Registration Statementdoes not, the Prospectus and the Pricing Disclosure Package (as amended and supplemented, if the Company shall have filed with the Commission any amendment or supplement thereto) (i) complied and will comply in all material respects with all applicable provisions of the Securities Act and the Rules and Regulations, (ii) contains and will contain all statements of material fact required to be stated therein in accordance with the Securities Act and the Rules and Regulations, and (iii) does not and will not on the Closing Date, contain an any untrue statement of a material fact or omit to state a any material fact required to be stated therein or necessary in order to make the statements therein therein, in the light of the circumstances under which they were made, not misleading. Solely with respect .
(j) At any time during the period described in Section 5(d), if there is any change in the information referred to the Metalmark Selling Stockholders (as defined in Schedule I heretoSection 7(i), such Selling Stockholder is not prompted to sell the Shares by any material non-public information relating to the business, results will immediately notify you of operations or prospects of the Company and its subsidiaries of an adverse nature that is required to be disclosed in the Registration Statement, the Pricing Disclosure Package or the Prospectus. For this purpose, information that is set forth or incorporated by reference in the Registration Statement, the Pricing Disclosure Package or the Prospectus or that otherwise has been made publicly available about the Company shall be deemed to be public information, and any opinion or conclusion that a Metalmark Selling Stockholder may hold, or analysis performed by a Metalmark Selling Stockholder, in its capacity as an investor about the business, results of operations or prospects of the Company and its subsidiaries shall not be information that relates to the business, results of operations or prospects of the Companysuch change.
(ik) Such Selling Stockholder has not taken and will not take, directly or indirectly, any action that is designed to or that has constituted or that could reasonably be expected to cause or result in the stabilization or manipulation of the price of any security of the Company to facilitate the sale or resale of the Shares.
(j) The sale of the Shares by such Selling Stockholder does not violate any of the Company’s internal policies regarding the sale of stock by its affiliates. Any Each certificate signed by any officer or on behalf of any such Selling Stockholder and delivered to the Underwriter Underwriters or counsel for the Underwriter in connection with the offering of the Shares Underwriters shall be deemed to be a representation and warranty by such Selling Stockholder, Stockholder to the Underwriters as to the matters covered thereby, to the Underwriter.
Appears in 1 contract
Samples: Underwriting Agreement (Nutraceutical International Corp)
Representations and Warranties of the Selling Stockholders. Each of the Selling Stockholder, Stockholders severally and not jointly, jointly hereby represents and warrants thatto each Underwriter as of the date hereof, as of the Firm Shares Closing Date and as of each such Option Shares Closing Date (if any), as follows:
(a) Neither such Each Selling Stockholder nor any person acting listed as a “Custodial Stockholder” on behalf of such Selling Stockholder (other than, if applicable, the Company and the Underwriter) has used or referred Schedule II to any “free writing prospectus” (as defined in Rule 405), relating to the Shares.
(b) Such Selling Stockholder has, and immediately prior to the Closing Date on which such Selling Stockholder is selling the Shares, such 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 this Agreement (the “UCCCustodial Stockholders”) in respect of, has caused the number of Shares to be sold by such Selling Stockholder hereunder to be delivered to Continental Stock Transfer & Trust Co. (the “Custodian”), endorsed in blank or with blank stock powers duly executed, with a signature appropriately guaranteed, such Shares to be held in custody by the Custodian for delivery, pursuant to the provisions of this Agreement and an agreement dated on such Closing Date free or about September 6, 2013 between the Custodian and clear each of all liensthe Custodial Stockholders substantially in the form attached hereto as Exhibit B (the “Custody Agreement”).
(b) Each Custodial Stockholder has granted an irrevocable power of attorney substantially in the form attached hereto as Exhibit C (the “Power of Attorney”) to the persons named therein, encumbrances, equities to execute and deliver this Agreement and any other document necessary or claimsdesirable in connection with the transactions contemplated hereby and to deliver the shares to be sold by each of the Custodial Stockholders pursuant hereto.
(c) Upon payment for the Shares to be sold by such Selling Stockholder, delivery of such Shares, as directed by the Underwriter, to Cede & Co. (“Cede”) or such other nominee as may be designated by The Depository Trust Company (“DTC”), registration of such Shares in the name of Cede or such other nominee This Agreement and the crediting of such Shares on the books of DTC to securities accounts of the Underwriter (assuming that neither DTC nor the Underwriter has notice of any adverse claim (within the meaning of Section 8Lock-105 of the UCC) to such Shares), (i) DTC shall be a “protected purchaser” of such Shares within the meaning of Section 8-303 of the UCC, (ii) under Section 8-501 of the UCC, the Underwriter will acquire a valid security entitlement in respect of such Shares and (iii) no action based on any “adverse claim,” within the meaning of Section 8-102 of the UCC, to such Shares may be asserted against the Underwriter with respect to such security entitlement. For purposes of this representation, such Selling Stockholder may assume that when such payment, delivery and crediting occur, (A) such Shares will Up Agreement 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, (B) DTC will be registered as a “clearing corporation” within the meaning of Section 8-102 of the UCC and (C) appropriate entries to the accounts of the Underwriter on the records of DTC will have been made pursuant to the UCC.
(d) Such Selling Stockholder has full right, power and authority, corporate or otherwise, to enter into this Agreement.
(e) This Agreement has been duly and validly authorized, executed and delivered by or on behalf of each Selling Stockholder and, assuming due authorization, execution and delivery by the other parties thereto, constitutes the valid and legally binding agreement of each Selling Stockholder, enforceable against each such Selling Stockholder in accordance with its terms. The Custody Agreement and the Power of Attorney have each been duly authorized, executed and delivered by or on behalf of each Custodial Stockholder and, assuming due authorization, execution and delivery by the other parties thereto, constitutes the valid and legally binding agreement of each Custodial Stockholder, enforceable against each such Custodial Stockholder in accordance with its terms.
(fd) The execution, execution and delivery and performance by each Selling Stockholder of this Agreement and the performance by each Selling Stockholder of its obligations under this Agreement, including the sale and delivery of the Shares to be sold by each such Selling Stockholder and the consummation by such Selling Stockholder of the transactions contemplated hereby herein and thereby compliance by each Selling Stockholder with its obligations hereunder, do not and will not not, whether with our without the giving of notice or the passage of time or both, (i) violate or contravene any provision of the charter or bylaws or other organizational instrument of any Selling Stockholder, if applicable, or any applicable law, statute, regulation, or filing or any agreement or other instrument binding upon any Selling Stockholder or any judgment, order or decree of any governmental body, agency or court having jurisdiction over any Selling Stockholder, (ii) conflict with or result in constitute a breach or violation of any of the terms or provisions of, or constitute a default under, or result in the creation or imposition of any indenturetax, mortgagelien, deed charge or encumbrance upon the shares to be sold by any Selling Stockholder or any property or assets of trust, loan agreement, license or other any Selling Stockholder pursuant to the terms of any agreement or instrument to which such any Selling Stockholder is a party or by which such any Selling Stockholder is may be bound or to which any of the property or assets of such any Selling Stockholder is subject, (ii) result in any violation of the provisions of the charter or by-laws or deed of trust (or similar organizational documents) of such Selling Stockholder, subject or (iii) result in require any violation consent, approval, authorization or order of any statute or any order, rule registration or regulation of filing with any court or governmental agency or body having jurisdiction over it, except such as may be required by the Blue Sky laws of the various states in connection with the offer and sale of the Shares which have been or will be effected in accordance with this Agreement.
(e) Each Selling Stockholder has, and on the Firm Shares Closing Date and the Option Share Closing Date, if applicable, 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, except as otherwise described in the property or assets of Registration Statement and Prospectus.
(f) Each Selling Stockholder has, and on the Firm Shares Closing Date and the Option Share Closing Date, if applicable, will have, full legal right, power and authority, and any approval required by law, to sell, assign, transfer and deliver the Shares to be sold by such Selling StockholderStockholder in the manner provided by this Agreement.
(g) No consent, approval, authorization or order of, or filing or registration with, any court or governmental agency or body having jurisdiction over such Upon delivery of and payment for the Shares to be sold by each Selling Stockholder pursuant to this Agreement, assuming each Underwriter has no notice of any adverse claim, the several Underwriters will receive valid and marketable title to such Shares free and clear of any lien, claim, mortgage, pledge, security interest or the property or assets of such Selling Stockholder is required for the execution, delivery and performance of this Agreement by such Selling Stockholder and the consummation by such Selling Stockholder of the transactions contemplated hereby and thereby, except for the registration of the Shares under the Securities Act and such consents, approvals, authorizations, registrations or qualifications as may be required under the Exchange Act and applicable state securities laws in connection with the purchase and sale of the Shares by the Underwriterother encumbrance.
(hi) All material information with respect to such Selling Stockholder contained in each of the The Registration Statement, the Prospectus and any Issuer Free Writing Prospectus, and any further amendments or supplements to the Pricing Disclosure Package (Registration Statement and the Prospectus, do not and will not, as amended of the applicable effective date as to each part of the Registration Statement and supplemented, if as of the Company shall have filed with applicable filing date as to the Commission Prospectus and any amendment or supplement thereto) (i) complied and will comply in all material respects with all applicable provisions of the Securities Act and the Rules and Regulationsthereto or to any Issuer Free Writing Prospectus, (ii) contains and will contain all statements of material fact required to be stated therein in accordance with the Securities Act and the Rules and Regulations, and (iii) does not and will not contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary in order to make the statements therein not misleading. Solely with respect The preceding sentence applies only to the Metalmark Selling Stockholders (as defined extent statements in Schedule I hereto), such Selling Stockholder is not prompted to sell the Shares by any material non-public information relating to the business, results of operations or prospects of the Company and its subsidiaries of an adverse nature that is required to be disclosed in omissions from the Registration Statement, the Pricing Disclosure Package Prospectus or any Issuer Free Writing Prospectus are based upon written information furnished to the Company by such Selling Stockholder specifically for use therein (the “Prospectus Selling Stockholder Information”); it being understood and agreed that the Prospectus Selling Stockholder Information consists only of the information concerning such Selling Stockholder under the caption “Principal and Selling Stockholders” in the Prospectus. For this purpose, information that is set forth or incorporated by reference in the Registration Statement, the Pricing Disclosure Package or the Prospectus or that otherwise has been made publicly available about the Company shall be deemed to be public information, and any opinion or conclusion that a Metalmark Selling Stockholder may hold, or analysis performed by a Metalmark Selling Stockholder, in its capacity as an investor about the business, results of operations or prospects of the Company and its subsidiaries shall not be information that relates to the business, results of operations or prospects of the Company.
(ij) Such The sale of Shares by each Selling Stockholder pursuant to this Agreement is not prompted by such Selling Stockholder’s knowledge of any material information concerning the Company or any of its subsidiaries which is not set forth in the Prospectus.
(k) No Selling Stockholder has not taken and will not take, directly or indirectly, any action that is designed to or that has constituted or that could might reasonably be expected to cause or result in the stabilization or manipulation of the price of any security of the Company to facilitate the sale or resale of the Shares.
(jl) No Selling Stockholder has prepared, used or referred to, nor will it prepare, use or refer to, any “free writing prospectus” (as defined in Rule 405 of the Rules).
(m) The sale representations and warranties of each Custodial Stockholder in the Shares by such Selling Stockholder does not violate any of the Company’s internal policies regarding the sale of stock by its affiliates. Any certificate signed by any officer of any Selling Stockholder Custody Agreement are and delivered to the Underwriter or counsel for the Underwriter in connection with the offering of the Shares shall be deemed a representation on each Closing Date will be, true and warranty by such Selling Stockholder, as to matters covered thereby, to the Underwritercorrect.
Appears in 1 contract
Representations and Warranties of the Selling Stockholders. Each ---------------------------------------------------------- Selling StockholderStockholder represents, severally warrants and not jointly, represents and warrants thatcovenants to each Underwriter as follows:
(a) Neither such Selling Stockholder nor any person acting on behalf of such Selling Stockholder (other than, if applicable, the Company and the Underwriter) has used or referred to any “free writing prospectus” (as defined in Rule 405), relating to the Shares.
(b) Such Selling Stockholder has, and immediately prior to the Closing Date on which such Selling Stockholder is selling the Shares, such 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 (the “UCC”) in respect of, the Shares to be sold by such Selling Stockholder hereunder on such Closing Date free and clear of all liens, encumbrances, equities or claims.
(c) Upon payment for the Shares to be sold by such Selling Stockholder, delivery of such Shares, as directed by the Underwriter, to Cede & Co. (“Cede”) or such other nominee as may be designated by The Depository Trust Company (“DTC”), registration of such Shares in the name of Cede or such other nominee and the crediting of such Shares on the books of DTC to securities accounts of the Underwriter (assuming that neither DTC nor the Underwriter has notice of any adverse claim (within the meaning of Section 8-105 of the UCC) to such Shares), (i) DTC shall be a “protected purchaser” of such Shares within the meaning of Section 8-303 of the UCC, (ii) under Section 8-501 of the UCC, the Underwriter will acquire a valid security entitlement in respect of such Shares and (iii) no action based on any “adverse claim,” within the meaning of Section 8-102 of the UCC, to such Shares may be asserted against the Underwriter with respect to such security entitlement. For purposes of this representation, such Selling Stockholder may assume that when such payment, delivery and crediting occur, (A) such Shares will have been registered in the name of Cede or another nominee designated by DTC, in each case on the Company’s share registry in accordance with its certificate of incorporation, bylaws and applicable law, (B) DTC will be registered as a “clearing corporation” within the meaning of Section 8-102 of the UCC and (C) appropriate entries to the accounts of the Underwriter on the records of DTC will have been made pursuant to the UCC.
(d) Such Selling Stockholder has full right, power and authority, corporate or otherwise, to enter into this Agreement.
(e) This Agreement has been duly and validly authorized, executed and delivered by or on behalf of such Selling Stockholder and is a valid and binding agreement of such Selling Stockholder, enforceable in accordance with its terms, except as rights to indemnification hereunder may be limited by applicable law and except as the enforcement hereof may be limited by bankruptcy, insolvency, reorganization, moratorium or other similar laws relating to or affecting the rights and remedies of creditors or by general equitable principles.
(fb) The execution, delivery and performance Each of this the (i) Custody Agreement signed by such Selling Stockholder and BancBoston, NA, as custodian (the "Custodian"), relating to the deposit of the Shares to be sold by such Selling Stockholder (the "Custody Agreement") and (ii) Power of Attorney appointing certain individuals named therein as such Selling Stockholder's attorneys-in-fact (each, an "Attorney-in- Fact") to the extent set forth therein relating to the transactions contemplated hereby and by the Prospectus (the "Power of Attorney"), of such Selling Stockholder has been duly authorized, executed and delivered by such Selling Stockholder and is a valid and binding agreement of such Selling Stockholder, enforceable in accordance with its terms, except as rights to indemnification thereunder may be limited by applicable law and except as the enforcement thereof may be limited by bankruptcy, insolvency, reorganization, moratorium or other similar laws relating to or affecting the rights and remedies of creditors or by general equitable principles. Each Selling Stockholder agrees that the Shares to be sold by such Selling Stockholder on deposit with the Custodian is subject to the interests of the Underwriters, that the arrangements made for such custody are to that extent irrevocable, and that the obligations of such Selling Stockholder hereunder shall not be terminated, except as provided in this Agreement or in the Custody Agreement, by any act of the Selling Stockholder, by operation of law, by death or incapacity of such Selling Stockholder or by the occurrence of any other event. If such Selling Stockholder should die or become incapacitated, or if any other event should occur, before the delivery of the Shares to be sold by such Selling Stockholder hereunder, the documents evidencing the Shares to be sold by such Selling Stockholder then on deposit with the Custodian shall be delivered by the Custodian in accordance with the terms and conditions of this Agreement as if such death, incapacity or other event had not occurred, regardless of whether or not the Custodian shall have received notice thereof.
(c) Such Selling Stockholder is the lawful owner of the Shares to be sold by such Selling Stockholder hereunder and upon sale and delivery of, and payment for, such Shares, as provided herein, such Selling Stockholder will convey good and marketable title to such Shares, free and clear of all liens, encumbrances, equities and claims whatsoever.
(d) Such Selling Stockholder has, and on the First Closing Date and the Additional Closing Date (as defined below) will have, good and valid title to all of the Shares which may be sold by such Selling Stockholder pursuant to this Agreement on such date and the legal right and power, and all authorizations and approvals required by law and under its charter or by-laws, partnership agreement, trust agreement or other organizational documents to enter into this Agreement and its Custody Agreement and Power of Attorney, to sell, transfer and deliver all of the Shares which may be sold by such Selling Stockholder pursuant to this Agreement and to comply with its other obligations hereunder and thereunder.
(e) No consent, approval, authorization or order of any court or governmental agency or body is required for the consummation by such Selling Stockholder of the transactions contemplated hereby herein, except such as may have been obtained under the Securities Act and thereby do not such as may be required under the federal and provincial securities laws of Canada or the blue sky laws or any jurisdiction in connection with the purchase and distribution of the Shares by the Underwriters and such other approvals as have been obtained.
(f) Neither the sale of the Securities being sold by such Selling Stockholder nor the consummation of any other of the transactions herein contemplated by such Selling Stockholder or the fulfillment of the terms hereof by such Selling Stockholder will not (i) conflict with or with, result in a breach or violation of any of the terms or provisions of, or constitute a default under, under any indenture, mortgage, deed law or the terms of trust, loan agreement, license any indenture or other agreement or instrument to which such Selling Stockholder is a party or by which such Selling Stockholder is bound bound, any judgement, order or decree applicable to which any of the property or assets of such Selling Stockholder is subject, (ii) result in any violation of the provisions of the charter or by-laws or deed of trust (or similar organizational documents) of such Selling Stockholder, or (iii) result in any violation of any statute or any order, rule or regulation of any court or governmental agency or body having jurisdiction over such Selling Stockholder or the property any court or assets of regulatory body, administrative agency, governmental body or arbitrator having jurisdiction over such Selling Stockholder.
(g) No consent, approval, authorization or order of, or filing or registration with, any court or governmental agency or body having jurisdiction over such Such Selling Stockholder does not have any registration or other similar rights to have any equity or debt securities registered for sale by the property Company under the Registration Statement or assets of such Selling Stockholder is required for included in the execution, delivery and performance of offering contemplated by this Agreement by such Selling Stockholder and the consummation by such Selling Stockholder of the transactions contemplated hereby and therebyAgreement, except for such rights as are described in the registration of the Prospectus under "Shares under the Securities Act and such consents, approvals, authorizations, registrations or qualifications as may be required under the Exchange Act and applicable state securities laws in connection with the purchase and sale of the Shares by the UnderwriterEligible for Future Sale".
(h) All material information with respect Such Selling Stockholder does not have, or has waived prior to the date hereof, any preemptive right, co-sale right or right of first refusal or other similar right to purchase any of the Shares that are to be sold by the Company or any of the other Selling Stockholders to the Underwriters pursuant to this Agreement; and such Selling Stockholder contained does not own any warrants, options or similar rights to acquire, and does not have any right or arrangement to acquire, any capital stock, right, warrants, options or other securities from the Company, other than those described in each of the Registration Statement, the Prospectus Statement and the Pricing Disclosure Package (as amended and supplemented, if the Company shall have filed with the Commission any amendment or supplement thereto) Prospectus.
(i) complied All information furnished by or on behalf of such Selling Stockholder in writing expressly for use in the Registration Statement and Prospectus is, and on the First Closing Date and the Additional Closing Date (as defined below) will comply be, true, correct, and complete in all material respects with all applicable provisions of respects, and does not, and on the Securities Act First Closing Date and the Rules and RegulationsAdditional Closing Date will not, (ii) contains and will contain all statements of material fact required to be stated therein in accordance with the Securities Act and the Rules and Regulations, and (iii) does not and will not contain an any untrue statement of a material fact or omit to state a any material fact required to be stated therein or necessary in order to make the statements therein such information not misleading. Solely with respect to To the Metalmark Selling Stockholders (as defined extent such information appears in Schedule I hereto)the Prospectus, such Selling Stockholder is not prompted confirms as accurate the number of shares of Shares set forth opposite such Selling Stockholder's name in the Prospectus under the caption "Principal and Selling Stockholders" (both prior to sell the Shares by any material non-public information relating and after giving effect to the business, results of operations or prospects sale of the Company and its subsidiaries of an adverse nature that is required to be disclosed in the Registration Statement, the Pricing Disclosure Package or the Prospectus. For this purpose, information that is set forth or incorporated by reference in the Registration Statement, the Pricing Disclosure Package or the Prospectus or that otherwise has been made publicly available about the Company shall be deemed to be public information, and any opinion or conclusion that a Metalmark Selling Stockholder may hold, or analysis performed by a Metalmark Selling Stockholder, in its capacity as an investor about the business, results of operations or prospects of the Company and its subsidiaries shall not be information that relates to the business, results of operations or prospects of the CompanyShares).
(ij) Such Selling Stockholder has not taken and will not take, directly or indirectly, any action that is designed to or that has constituted or that could might be reasonably be expected to cause or result in the stabilization or manipulation of the price of any security of the Company Common Stock to facilitate the sale or resale of the Shares.
(jk) The Selling Stockholder has not distributed and will not distribute, prior to the later of the Additional Closing Date (as defined below) and the completion of the Underwriters' distribution of the Shares, any offering material in connection with the offering and sale of the Shares by such Selling Stockholder does not violate any other than a preliminary prospectus, the Prospectus or the Registration Statement.
(l) Each Other Selling Stockholder has no reason to believe that the representations and warranties of the Company’s internal policies regarding Company and the sale Principal Selling Stockholders contained in Section 1(A) hereof are not true and correct, is familiar with the Registration Statement and the Prospectus and has no knowledge of stock any material fact, condition or information not disclosed in the Registration Statement or the Prospectus which has had or may result in a Material Adverse Change on the condition, financial or otherwise, or on the earnings, business, operation or prospects, whether or not arising from transactions in the ordinary course of business of the Company and its subsidiaries, considered as one entity, and is not prompted to sell the Shares to be sold by its affiliatessuch Selling Stockholder by any information concerning the Company which is not set forth in the Registration Statement and the Prospectus. Any certificate signed by any officer or on behalf of any Selling Stockholder and delivered to the Underwriter Representatives or to counsel for the Underwriter in connection with the offering of the Shares Underwriters shall be deemed to be a representation and warranty by such Selling Stockholder, Stockholder to each Underwriter as to the matters covered thereby, to the Underwriter.
Appears in 1 contract
Samples: Underwriting Agreement (Xoom Inc)
Representations and Warranties of the Selling Stockholders. Each Selling Stockholder, Stockholder severally and not jointly, represents and warrants to, and agrees with, each of the Underwriters that:
(a) Neither such Selling Stockholder nor any person acting on behalf of such Selling Stockholder (other than, if applicable, the Company and the Underwriter) has used or referred to any “free writing prospectus” (as defined in Rule 405), relating to the Shares.
(b) Such Selling Stockholder has, and immediately prior to the Closing Date on which such Selling Stockholder is selling the Shares, such 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 (the “UCC”) in respect of, the Shares to be sold by such Selling Stockholder hereunder on such Closing Date free and clear of all liens, encumbrances, equities or claims.
(c) Upon payment for the Shares to be sold by such Selling Stockholder, delivery of such Shares, as directed by the Underwriter, to Cede & Co. (“Cede”) or such other nominee as may be designated by The Depository Trust Company (“DTC”), registration of such Shares in the name of Cede or such other nominee and the crediting of such Shares on the books of DTC to securities accounts of the Underwriter (assuming that neither DTC nor the Underwriter has notice of any adverse claim (within the meaning of Section 8-105 of the UCC) to such Shares), (i) DTC shall be a “protected purchaser” of such Shares within the meaning of Section 8-303 of the UCC, (ii) under Section 8-501 of the UCC, the Underwriter will acquire a valid security entitlement in respect of such Shares and (iii) no action based on any “adverse claim,” within the meaning of Section 8-102 of the UCC, to such Shares may be asserted against the Underwriter with respect to such security entitlement. For purposes of this representation, such Selling Stockholder may assume that when such payment, delivery and crediting occur, (A) such Shares will have been registered in the name of Cede or another nominee designated by DTC, in each case on the Company’s share registry in accordance with its certificate of incorporation, bylaws and applicable law, (B) DTC will be registered as a “clearing corporation” within the meaning of Section 8-102 of the UCC and (C) appropriate entries to the accounts of the Underwriter on the records of DTC will have been made pursuant to the UCC.
(d) Such Selling Stockholder has full right, power and authority, corporate or otherwise, to enter into this Agreement.
(e) This Agreement has been duly and validly authorized, executed and delivered by or on behalf of such the Selling StockholderStockholders and is a valid and binding agreement of the Selling Stockholders, enforceable against each Selling Stockholder in accordance with its terms, except as enforcement hereof may be limited by bankruptcy, insolvency, reorganization, moratorium or other similar laws relating to or affecting the rights and remedies of creditors or by general equitable principles.
(fb) The executionEach of the Custody Agreements and Powers of Attorney (each, delivery a "Custody Agreement and performance Power of this Agreement Attorney") signed by (i) each Selling Stockholder, (ii) _______________, as custodian (in such capacity, the "Custodian"), and (iii) ______________ as the Selling Stockholders' attorney-in-fact (in such capacity, the "Attorney-In-Fact"), has been duly and validly authorized, executed and delivered by each Selling Stockholder and is a valid and binding agreement of each Selling Stockholder, enforceable against him, her or it in accordance with its terms, except as the consummation enforcement thereof may be limited by bankruptcy, insolvency, reorganization, moratorium or other similar laws relating to or affecting the rights and remedies of creditors or by general equitable principles. Xx. Xxxxxx agrees that the Additional Shares, if any, to be sold by him on deposit with the Custodian are subject to the interests of the Underwriters, that the arrangements made for such custody are to that extent irrevocable, and that the obligations of each Selling Stockholder hereunder shall not be terminated, except as provided in this Agreement or in the Custody Agreement and Power of Attorney, by any act of the transactions contemplated hereby and thereby do not and will not (i) conflict with Selling Stockholder, by operation of law, by death 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, license or other agreement or instrument to which such Selling Stockholder is a party or by which such Selling Stockholder is bound or to which any of the property or assets incapacity of such Selling Stockholder is subjector by the occurrence of any other event. If Xx. Xxxxxx should die or become incapacitated, (ii) result in or if any violation other event should occur, before the delivery of the provisions Additional Shares, if any, to be sold by Xx. Xxxxxx hereunder, the documents evidencing the Additional Shares, if any, to be sold by Xx. Xxxxxx then on deposit with the Custodian shall be delivered by the Custodian in accordance with the terms and conditions of this Agreement as if such death, incapacity or other event had not occurred, regardless of whether or not the charter or by-laws or deed of trust (or similar organizational documents) of such Selling Stockholder, or (iii) result in any violation of any statute or any order, rule or regulation of any court or governmental agency or body having jurisdiction over such Selling Stockholder or the property or assets of such Selling StockholderCustodian shall have received notice thereof.
(gc) Xx. Xxxxxx is the lawful owner of the Additional Shares, if any, to be sold by him hereunder and upon sale and delivery of, and payment for, such Additional Shares, as provided herein, Xx. Xxxxxx will convey to the Underwriters good and marketable title to such Additional Shares, free and clear of all liens, encumbrances, equities, claims and security interests whatsoever.
(d) Xx. Xxxxxx has, and on the Additional Closing Date, if any, will have, good and valid title to all of the Additional Shares which may be sold by him pursuant to this Agreement on such date and the legal right and power, and all authorizations and approvals required by law, to enter into this Agreement and the applicable Custody Agreement and Power of Attorney, to sell, transfer and deliver all of the Additional Shares which may be sold by Xx. Xxxxxx pursuant to this Agreement and to comply with his or her other obligations hereunder and thereunder.
(e) No consent, approval, authorization or order of, or filing or registration with, of any court or governmental agency or body having jurisdiction over such Selling Stockholder or the property or assets of such Selling Stockholder is required for the execution, delivery and performance of this Agreement by such Selling Stockholder and the consummation by such Selling Stockholder Xx. Xxxxxx of the transactions contemplated hereby and therebyherein, except for the registration of the Shares such as may have been obtained under the Securities Act and such consents, approvals, authorizations, registrations or qualifications as may be required under the Exchange Act and applicable state securities laws or the blue sky laws or any jurisdiction in connection with the purchase and distribution of the Additional Shares by the Underwriters and such other approvals as have been obtained.
(f) Neither the sale of the Shares Additional Shares, if any, being sold by Xx. Xxxxxx nor the consummation of any of the other transactions contemplated herein by the UnderwriterSelling Stockholders or the fulfillment of the terms hereof by the Selling Stockholders 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 any Selling Stockholder is party or bound, any judgment, order or decree applicable to any Selling Stockholder or any court or regulatory body, administrative agency, governmental body or arbitrator having jurisdiction over any Selling Stockholder.
(g) None of the Selling Stockholders has any registration or other similar rights to have any equity or debt securities registered for sale by the Company under the Registration Statement or included in the offering of the Shares, except for such rights as have been waived or which are described in the Prospectus.
(h) All material information with respect The Selling Stockholders do not have, or have waived prior to such Selling Stockholder contained in each the date hereof, any preemptive right, co-sale right or right of first refusal or other similar right to purchase any of the Registration StatementAdditional Shares, if any, that are to be sold by Xx. Xxxxxx to the Prospectus Underwriters pursuant to this Agreement; and the Pricing Disclosure Package (as amended Selling Stockholders do not own any warrants, options or similar rights to acquire, and supplementeddo not have any right or arrangement to acquire, if any capital stock, right, warrants, options or other securities from the Company shall have filed with Company, other than those described in the Commission any amendment or supplement thereto) Registration Statement and the Prospectus.
(i) complied All information furnished by or on behalf of the Selling Stockholders in writing for use in the Registration Statement and Prospectus, or any document incorporated by reference into the Registration Statement and Prospectus is, and on the Closing Date and the Additional Closing Date, if any, will comply be, true, correct, and complete in all material respects with all applicable provisions of respects, and does not, and on the Securities Act Closing Date and the Rules and RegulationsAdditional Closing Date, (ii) contains and if any, will not, contain all statements of material fact required to be stated therein in accordance with the Securities Act and the Rules and Regulations, and (iii) does not and will not contain an any untrue statement of a material fact or omit to state a any material fact required to be stated therein or necessary in order to make the statements therein such information not misleading. Solely with respect To the extent such information appears in the Prospectus, each Selling Stockholder confirms as accurate the number of shares of Common Stock and options set forth opposite such Selling Stockholder's name and as described in the related footnote in the Prospectus under the caption "Principal and Selling Stockholders" (both prior to and after giving effect to the Metalmark Selling Stockholders (as defined in Schedule I hereto), such Selling Stockholder is not prompted to sell the Shares by any material non-public information relating to the business, results of operations or prospects sale of the Company and its subsidiaries of an adverse nature that is required to be disclosed in the Registration Statement, the Pricing Disclosure Package or the Prospectus. For this purpose, information that is set forth or incorporated by reference in the Registration Statement, the Pricing Disclosure Package or the Prospectus or that otherwise has been made publicly available about the Company shall be deemed to be public information, and any opinion or conclusion that a Metalmark Selling Stockholder may hold, or analysis performed by a Metalmark Selling Stockholder, in its capacity as an investor about the business, results of operations or prospects of the Company and its subsidiaries shall not be information that relates to the business, results of operations or prospects of the CompanyAdditional Shares).
(ij) Such The Selling Stockholder has Stockholders have not taken and will not take, directly or indirectly, any action that is designed to to, or that has constituted or that could might be reasonably be expected to to, cause or result in the stabilization or manipulation of the price of any security of the Company Common Stock to facilitate the sale or resale of the Shares.
(jk) The Selling Stockholders have not distributed and will not distribute, prior to the later of the Additional Closing Date, if any, and the completion of the Underwriters' distribution of the Shares, any offering material in connection with the offering and sale of the Shares by such the Selling Stockholders other than a Preliminary Prospectus, the Prospectus or the Registration Statement.
(l) Each Selling Stockholder does has reviewed and is familiar with the Registration Statement and the Prospectus and (i) has no knowledge of any material adverse information with regard to the Company or the Subsidiaries which is not violate disclosed in the Registration Statement and the Prospectus and (ii) has no knowledge of any misstatement of a material fact or failure to state a material fact necessary to make the statements in the Prospectus, in light of the Company’s internal policies regarding circumstances under which they were made, not misleading. Xx. Xxxxxx further represents that he is not prompted to sell the sale Additional Shares, if any, to be sold by him.
(m) The representations and warranties of stock by its affiliatesthe Selling Stockholders in the respective Custody Agreements and Powers of Attorney are, and on the Closing Date and Additional Closing Date, if any, will be, true and correct. Any certificate signed by any officer or on behalf of any the Selling Stockholder and delivered to the Underwriter Representatives or counsel for the Underwriter in connection with the offering of the Shares to Underwriters' Counsel shall be deemed to be a representation and warranty by such Selling Stockholder, Shareholder to each Underwriter as to the matters covered thereby, to the Underwriter.
Appears in 1 contract
Representations and Warranties of the Selling Stockholders. Each of ----------------------------------------------------------- the Selling StockholderStockholders, severally with respect to itself, represents, warrants and not jointlycovenants to, represents and warrants thatagrees with, each Underwriter and the Company as follows:
(a) Neither such Selling Stockholder nor any person acting on behalf of such Selling Stockholder (other than, if applicable, the Company and the Underwriter) has used or referred to any “free writing prospectus” (as defined in Rule 405), relating to the Shares.
(b) Such Selling Stockholder has, and immediately prior to the Closing Date on which such Selling Stockholder is selling the Shares, such 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 (the “UCC”) in respect of, the Shares to be sold by such Selling Stockholder hereunder on such Closing Date free and clear of all liens, encumbrances, equities or claims.
(c) Upon payment for the Shares to be sold by such Selling Stockholder, delivery of such Shares, as directed by the Underwriter, to Cede & Co. (“Cede”) or such other nominee as may be designated by The Depository Trust Company (“DTC”), registration of such Shares in the name of Cede or such other nominee and the crediting of such Shares on the books of DTC to securities accounts of the Underwriter (assuming that neither DTC nor the Underwriter has notice of any adverse claim (within the meaning of Section 8-105 of the UCC) to such Shares), (i) DTC shall be a “protected purchaser” of such Shares within the meaning of Section 8-303 of the UCC, (ii) under Section 8-501 of the UCC, the Underwriter will acquire a valid security entitlement in respect of such Shares and (iii) no action based on any “adverse claim,” within the meaning of Section 8-102 of the UCC, to such Shares may be asserted against the Underwriter with respect to such security entitlement. For purposes of this representation, such Selling Stockholder may assume that when such payment, delivery and crediting occur, (A) such Shares will have been registered in the name of Cede or another nominee designated by DTC, in each case on the Company’s share registry in accordance with its certificate of incorporation, bylaws and applicable law, (B) DTC will be registered as a “clearing corporation” within the meaning of Section 8-102 of the UCC and (C) appropriate entries to the accounts of the Underwriter on the records of DTC will have been made pursuant to the UCC.
(d) Such Selling Stockholder has full right, power and authority, corporate or otherwise, to enter into this Agreement.
(e) This Agreement has been duly and validly authorizedauthorized (to the extent due authorization is a relevant concept to such Selling Stockholder), executed and delivered by or on behalf of such Selling Stockholder and is a valid and binding agreement of such Selling Stockholder, enforceable in accordance with its terms, except as rights to indemnification and contribution hereunder may be limited by applicable law and except as the enforcement hereof may be limited by bankruptcy, insolvency, reorganization, moratorium or other similar laws relating to or affecting the rights and remedies of creditors or by general equitable principles.
(fb) The execution, delivery and performance Each of this the (1) Custody Agreement signed by such Selling Stockholder and American Stock Transfer & Trust Company as custodian (the "Custodian"), relating to the deposit of the Shares to be sold by such Selling Stockholder (the "Custody Agreement") and (2) Power of Attorney appointing certain individuals named therein as such Selling Stockholder's attorneys-in-fact (each, an "Attorney-in-Fact") to the extent set forth therein relating to the transactions contemplated hereby and by the Prospectus (the "Power of Attorney"), of such Selling Stockholder has been duly authorized (to the extent due authorization is a relevant concept to such Selling Stockholder), executed and delivered by such Selling Stockholder and is a valid and binding agreement of such Selling Stockholder, enforceable in accordance with its terms, except as rights to indemnification and contribution thereunder may be limited by applicable law and except as the enforcement thereof may be limited by bankruptcy, insolvency, reorganization, moratorium or other similar laws relating to or affecting the rights and remedies of creditors or by general equitable principles. Each Selling Stockholder agrees that the Shares to be sold by such Selling Stockholder on deposit with the Custodian is subject to the interests of the Custodian, that the arrangements made for such custody are irrevocable to the extent set forth in the Custody Agreement, and that the obligations of such Selling Stockholder hereunder shall not be terminated, except as provided in this Agreement or in the Custody Agreement, by any act of the Selling Stockholder, by operation of law, by death or incapacity of such Selling Stockholder or by the occurrence of any other event. If such Selling Stockholder should die or become incapacitated, or if any other event should occur, before the delivery of the Shares to be sold by such Selling Stockholder hereunder, the documents evidencing the Shares to be sold by such Selling Stockholder then on deposit with the Custodian shall be delivered by the Custodian in accordance with the terms and conditions of this Agreement as if such death, incapacity or other event had not occurred, regardless of whether or not the Custodian shall have received notice thereof and to the extent permitted by law.
(c) Such Selling Stockholder is the lawful owner of the Shares to be sold by such Selling Stockholder hereunder and has, and on the Closing Date and an Additional Closing Date, if any, will have, good and valid title to all of the Shares which may be sold by such Selling Stockholder pursuant to this Agreement on such date and the legal right and power, and all authorizations and approvals required by law and, where applicable, under its charter or by-laws, partnership agreement, trust agreement or other organizational documents to enter into this Agreement and its Custody Agreement and Power of Attorney, to sell, transfer and deliver all of the Shares which may be sold by such Selling Stockholder pursuant to this Agreement and to comply with its other obligations hereunder and thereunder, and upon sale and delivery of, and payment for, such Shares, as provided herein, such Selling Stockholder will convey good and marketable title to such Shares, free and clear of all liens, encumbrances, equities and claims whatsoever, assuming that you are bona fide purchasers.
(d) No consent, approval, authorization or order of any court or governmental agency or body is required for the consummation by such Selling Stockholder of the transactions contemplated hereby herein, except such as may be required under the Act, state securities laws, Blue Sky laws, the rules of the NASD, the laws of any non-United States jurisdiction or except as have been obtained or may be required, and thereby do not and where applicable, will not (i) conflict with or result in constitute a breach or violation of any of the terms or provisions of, or constitute a default under, the charter or Bylaws of such Selling Stockholder, if applicable, or any indenture, mortgage, deed of trust, loan agreement, license indenture or other agreement or instrument to which such Selling Stockholder is a party or of by which such Selling Stockholder is bound or to which any of the property or assets of such Selling Stockholder is subject, (ii) result in any violation of the provisions of the charter or by-laws or deed of trust (or similar organizational documents) of such Selling Stockholderbound, or (iii) result in violate or conflict with any violation of any statute laws, administrative regulation or any order, rule ruling or regulation of any court or governmental agency or body having jurisdiction over decree applicable to such Selling Stockholder or the property or assets of such Selling Stockholder.
(ge) No consentSuch 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 the offering contemplated by this Agreement, approval, authorization or order ofexcept for such rights as are described in the Prospectus.
(f) Such Selling Stockholder does not have, or filing or registration withhas waived prior to the date hereof, any court preemptive right, co-sale right or governmental agency right of first refusal or body having jurisdiction over other similar right to purchase any of the Shares that are to be sold by the Company or any of the other Selling Stockholders to the Underwriters pursuant to this Agreement; and such Selling Stockholder does not own any warrants, options or similar rights to acquire, and does not have any right or arrangement to acquire, any capital stock, right, warrants, options or other securities from the property Company, other than those described in the aggregate in the Registration Statement and the Prospectus.
(g) All information furnished by or assets on behalf of such Selling Stockholder is required for the execution, delivery and performance of this Agreement by such in its capacity as a Selling Stockholder and the consummation by such Selling Stockholder of the transactions contemplated hereby and thereby, except in writing expressly for the registration of the Shares under the Securities Act and such consents, approvals, authorizations, registrations or qualifications as may be required under the Exchange Act and applicable state securities laws use in connection with the purchase and sale of the Shares by the Underwriter.
(h) All material information with respect to such Selling Stockholder contained in each of the Registration StatementStatement and Prospectus is, and on the Prospectus Closing Date and the Pricing Disclosure Package (as amended and supplementedan Additional Closing Date, if the Company shall have filed with the Commission any amendment or supplement thereto) (i) complied any, will be, true, correct, and will comply complete in all material respects with all applicable provisions of the Securities Act and the Rules and Regulations, (ii) contains and will contain all statements of material fact required to be stated therein in accordance with the Securities Act and the Rules and Regulationsrespects, and (iii) does not not, and on the Closing Date and an Additional Closing Date, if any, will not not, contain an 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. Solely with respect to the Metalmark Selling Stockholders (as defined in Schedule I hereto), such Selling Stockholder is not prompted to sell the Shares by any material non-public information fact, in either case relating to the business, results of operations or prospects of the Company and its subsidiaries of an adverse nature that is required to be disclosed in the Registration Statement, the Pricing Disclosure Package or the Prospectus. For this purpose, information that is set forth or incorporated by reference in the Registration Statement, the Pricing Disclosure Package or the Prospectus or that otherwise has been made publicly available about the Company shall be deemed to be public information, and any opinion or conclusion that a Metalmark Selling Stockholder may hold, or analysis performed by a Metalmark such Selling Stockholder, in its capacity as an investor about the business, results of operations or prospects of the Company and its subsidiaries shall necessary to make such information not be information that relates to the business, results of operations or prospects of the Companymisleading.
(ih) Such Selling Stockholder has not taken and will not take, directly or indirectly, any action that is designed to or that has constituted or that could might be reasonably be expected to cause or result in the stabilization or manipulation of the price of any security of the Company to facilitate the sale or resale of the Shares, and other than as permitted by the Act, such Selling Stockholder has not distributed and will not distribute any prospectus or other offering material in connection with the offering and sale or resale of the Shares.
(i) Neither the Selling Stockholder nor any of the Selling Stockholder's affiliates directly, or indirectly through one or more intermediaries, controls, is controlled by, or is under common control with, or had any other association with (within the meaning of Article I of the Bylaws of the NASD), any member firm of the NASD.
(j) The sale of At any time during the Shares by period described in Section 5(a) hereof, if there is any change in the information referred to in Section 2(f) above, such Selling Stockholder does not violate will immediately notify you of such change.
(k) Such Selling Stockholder, where applicable, has been duly organized and is a validly existing as a corporation or organization under its jurisdiction of incorporation or organization, as the case may be.
(l) Any certificate, including, without limitation, any custody agreement, power of attorney, irrevocable election to sell, questionnaire and certificate of Selling Stockholder (collectively, the Company’s internal policies regarding the sale of stock by its affiliates. Any certificate "Selling Stockholder Documents") signed by any officer or on behalf of any such Selling Stockholder and delivered to the Underwriter Representatives or to counsel for the Underwriter in connection with the offering of the Shares Underwriters shall be deemed to be a representation and warranty by such Selling Stockholder, Stockholder to each Underwriter as to the matters covered thereby, to the Underwriter.
Appears in 1 contract
Representations and Warranties of the Selling Stockholders. Each Selling Stockholder, Stockholder severally and not jointly, represents and warrants to, and agrees with, each of the Underwriters that:
(a) Neither Such Selling Stockholder has full right, power and authority to execute and deliver this Agreement, to perform its obligations hereunder and to consummate the transactions contemplated by this Agreement. To the extent applicable, this Agreement and the transactions contemplated by this Agreement have been duly and validly authorized by such Selling Stockholder. This Agreement has been duly and validly executed and delivered by such Selling Stockholder.
(b) Other than BSMB/NYCG LLC, such Selling Stockholder nor any person acting on behalf has full right, power and authority to execute and deliver a Custody Agreement and Power of Attorney substantially in the form of Exhibits B and C hereto (such Selling Stockholder’s “Custody Agreement” and “Power of Attorney”, respectively), to perform its obligations thereunder and to consummate the transactions contemplated by thereby. The Custody Agreement and Power of Attorney and the transactions contemplated by thereby have been duly and validly authorized by such Selling Stockholder, other than BSMB/NYCG LLC. The Custody Agreement and Power of Attorney have each been duly and validly executed and delivered by such Selling Stockholder, other than BSMB/NYCG LLC, and constitute the legal, valid and binding obligation of such Selling Stockholder, other than BSMB/NYCG LLC, enforceable in accordance with its terms, except as enforceability may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or similar laws affecting creditors’ rights generally and except as enforceability may be subject to general principles of equity (regardless of whether such enforceability is considered in a proceeding in equity or at law). Counterparts of such Selling Stockholder’s Custody Agreement, duly signed by (i) Xxxxxxx X. Xxxxxxx and Xxxxxx X. Xxxxxx, as custodians (in such capacity, the “Custodian”) and as such Selling Stockholders’ attorneys-in-fact (in such capacity, the “Attorneys-In-Fact”) have been delivered to the Company and the Lead Managers on or prior to the date of this Agreement.
(c) Other than BSMB/NYCG LLC, such Selling Stockholder (other thanagrees that the Selling Stockholders’ Shares and Additional Shares, if applicableany, to be sold by such Selling Stockholder, whether or not on deposit with the Custodian, are subject to the interests of the Attorneys-In-Fact, the Company and the Underwriter) has used Underwriters, that the arrangements made for such custody are to that extent irrevocable, and that the obligations of such Selling Stockholder hereunder shall not be terminated, except as provided in this Agreement or referred in the Custody Agreement and Power of Attorney, by any act of such Selling Stockholder, by operation of law or by the occurrence of any other event. If such Selling Stockholder, other than BSMB/NYCG LLC, should die or become incapacitated, or if any other event should occur affecting the legal status or capacity of such Selling Stockholder before the delivery of the Selling Stockholders’ Shares and the Additional Shares, if any, to any “free writing prospectus” (be sold by a Selling Stockholder hereunder, the documents evidencing the Selling Stockholders’ Shares and the Additional Shares, if any, to be sold by such Selling Stockholder then on deposit with the Custodian shall be delivered by the Custodian in accordance with the terms and conditions of this Agreement as defined in Rule 405)if such event had not occurred, relating to regardless of whether or not the SharesCustodian shall have received notice thereof.
(bd) Such Selling Stockholder has, and immediately prior to on the Closing Date on which such Selling Stockholder is selling the Sharesand any Additional Closing Date, such Selling Stockholder will have, good and valid title to or a valid “security entitlement” within and is the meaning of Section 8-501 lawful owner of the New York Uniform Commercial Code (the “UCC”) in respect ofSelling Stockholders’ Shares and Additional Shares, the Shares if any, to be sold by such Selling Stockholder hereunder on hereunder, and upon sale and delivery of, and payment for, such Closing Date Selling Stockholders’ Shares and Additional Shares as provided herein, such Selling Stockholder will convey to the Underwriters good and marketable title to such Selling Stockholders’ Shares and Additional Shares, free and clear of all liens, encumbrances, equities or claims.
(c) Upon payment Liens. Certificates for all of the Shares to be sold by such Selling Stockholder, other than BSMB/NYCG LLC, pursuant to this Agreement, in suitable form for transfer by delivery or accompanied by duly executed instruments of such Sharestransfer or assignment in blank with signatures guaranteed, as directed by have been placed in custody with the Underwriter, Custodian with irrevocable conditional instructions to Cede & Co. (“Cede”) or such other nominee as may be designated by The Depository Trust Company (“DTC”), registration of deliver such Shares in the name of Cede or such other nominee and the crediting of such Shares on the books of DTC to securities accounts of the Underwriter (assuming that neither DTC nor the Underwriter has notice of any adverse claim (within the meaning of Section 8-105 of the UCC) to such Shares), (i) DTC shall be a “protected purchaser” of such Shares within the meaning of Section 8-303 of the UCC, (ii) under Section 8-501 of the UCC, the Underwriter will acquire a valid security entitlement in respect of such Shares and (iii) no action based on any “adverse claim,” within the meaning of Section 8-102 of the UCC, to such Shares may be asserted against the Underwriter with respect to such security entitlement. For purposes of this representation, such Selling Stockholder may assume that when such payment, delivery and crediting occur, (A) such Shares will have been registered in the name of Cede or another nominee designated by DTC, in each case on the Company’s share registry in accordance with its certificate of incorporation, bylaws and applicable law, (B) DTC will be registered as a “clearing corporation” within the meaning of Section 8-102 of the UCC and (C) appropriate entries to the accounts of the Underwriter on the records of DTC will have been made Underwriters pursuant to the UCC.
(d) Such Selling Stockholder has full right, power and authority, corporate or otherwise, to enter into this Agreement.
(e) This No Consent of, from or with any judicial, regulatory or other legal or governmental agency or body or any third party, foreign or domestic, is required for the execution, delivery and performance by such Selling Stockholder of this Agreement has or, except for BSMB/NYCG LLC, its Custody Agreement and Power of Attorney, or consummation by such Selling Stockholder of the transactions contemplated herein or therein, except such as have been duly obtained under the Securities Act and validly authorizedsuch as may be required under the state or foreign securities laws, executed the blue sky laws of any jurisdiction, the NASD or NASDR in connection with the purchase and delivered by or on behalf distribution of such Selling Stockholder’s Shares and such Selling Stockholder’s Additional Shares by the Underwriters.
(f) The execution, delivery and performance of this Agreement by such Selling Stockholder and the consummation execution, delivery and performance of the Power of Attorney and the Custody Agreement by such Selling Stockholder other than BSMB/NYCG LLC, and the consummation of any of the other transactions contemplated hereby herein and thereby do not and therein by such Selling Stockholder or the fulfillment of the terms hereof by such Selling Stockholder will not (iA) conflict with or with, result in a breach or violation of any of the terms or provisions of, or constitute a default (or an event that with notice or lapse of time, or both, would constitute a default) under, or result in the creation or imposition of any indenturelien, mortgagecharge or encumbrance upon any property or assets of such Selling Stockholder pursuant to, deed any law, statute, rule or regulation or the terms of trust, loan agreement, license any indenture or other agreement or instrument to which such Selling Stockholder is a party or by which such Selling Stockholder is bound bound, or to which any of the property or assets of such Selling Stockholder is subject, except as would not reasonably be expected to have a Material Adverse Effect or (iiB) if such Selling Stockholder is not a natural person, result in any violation of the provisions of the any charter or by-laws bylaws or deed certificate of formation, trust (agreement, partnership agreement, articles of partnership or similar other organizational documents) , as applicable, of such Selling Stockholder, or (iiiC) result in any violation or breach of any statute or any judgment, order, decree statute, rule or regulation applicable to such Selling Stockholder of any court or any public, governmental or regulatory agency or body body, administrative agency or arbitrator having jurisdiction over such Selling Stockholder Stockholder; provided, however, no representation is made with respect to this clause (C) as to any state or foreign security laws, the property blue sky laws of any jurisdiction, the NASD or assets of such Selling Stockholder.
(g) No consent, approval, authorization or order of, or filing or registration with, any court or governmental agency or body having jurisdiction over such Selling Stockholder or the property or assets of such Selling Stockholder is required for the execution, delivery and performance of this Agreement by such Selling Stockholder and the consummation by such Selling Stockholder of the transactions contemplated hereby and thereby, except for the registration of the Shares under the Securities Act and such consents, approvals, authorizations, registrations or qualifications as may be required under the Exchange Act and applicable state securities laws NASDR in connection with the purchase and distribution of such Selling Stockholder’s Shares and such Selling Stockholder’s Additional Shares by the Underwriters.
(g) 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 the offering of the Shares by and the UnderwriterAdditional Shares, except for such rights as have been waived or which are described in the Prospectus (and which have been complied with).
(h) All material information Such Selling Stockholder does not have, or has waived prior to the date hereof, any preemptive right, co-sale right or right of first refusal or other similar right to purchase any of the Shares that are to be sold by the Company or any other Selling Stockholder to the Underwriters pursuant to this Agreement; and such Selling Stockholder does not own any warrants, options or similar rights to acquire, and does not have any right or arrangement to acquire, any capital stock, right, warrants, options or other securities from the Company, other than those described in the Registration Statement and the Pricing Prospectus.
(i) Except as disclosed in the Pricing Prospectus, there are no contracts, agreements or understandings between such Selling Stockholder and any person that would give rise to a valid claim against the Company or any Underwriter for a brokerage commission, finder’s fee or other like payment in connection with this offering or, to such Selling Stockholder’s knowledge, any other arrangements, agreements, understandings, payments or issuance with respect to such Selling Stockholder contained the Company or any of its officers, directors, stockholders, partners, employees, Subsidiaries or affiliates that may affect the Underwriters’ compensation as determined by the NASD.
(j) The information in each of the Registration Statement, the Pricing Prospectus and the Pricing Disclosure Package (as amended Prospectus under the caption “Principal and supplementedSelling Stockholders” which specifically relates to such Selling Stockholder does not, if the Company shall have filed with the Commission any amendment or supplement thereto) (i) complied and will comply in all material respects with all applicable provisions of the Securities Act and the Rules and Regulations, (ii) contains and will contain all statements of material fact required to be stated therein in accordance with the Securities Act and the Rules and Regulations, and (iii) does not and will not on the Closing Date, contain an any untrue statement of a material fact or omit to state a any material fact required to be stated therein or necessary in order to make the statements therein therein, in the light of the circumstances under which they were made, not misleading. Solely In the event there is any change in the information under the caption “Principal and Selling Stockholders” which specifically relates to such Selling Stockholder from the first business day after the date of this Agreement and from time to time thereafter for such period as in the opinion of counsel for the Underwriters a prospectus is required by law to be delivered in connection with respect to the Metalmark Selling Stockholders (as defined in Schedule I hereto)sales by an Underwriter or a dealer, such Selling Stockholder is not prompted to sell will immediately notify the Shares by any material non-public information relating to the business, results Underwriters of operations or prospects of the Company and its subsidiaries of an adverse nature that is required to be disclosed in the Registration Statement, the Pricing Disclosure Package or the Prospectus. For this purpose, information that is set forth or incorporated by reference in the Registration Statement, the Pricing Disclosure Package or the Prospectus or that otherwise has been made publicly available about the Company shall be deemed to be public information, and any opinion or conclusion that a Metalmark Selling Stockholder may hold, or analysis performed by a Metalmark Selling Stockholder, in its capacity as an investor about the business, results of operations or prospects of the Company and its subsidiaries shall not be information that relates to the business, results of operations or prospects of the Companysuch change.
(ik) Such Selling Stockholder has not taken and will not take, directly or indirectly, any action that is designed to or that has constituted to, or that could be reasonably be expected to to, cause or result in the stabilization or manipulation of the price of any security of the Company Common Stock to facilitate the sale or resale of the Shares or Additional Shares, if any.
(jl) The Such Selling Stockholder has not distributed and will not distribute, prior to the later of the Additional Closing Date, if any, and the completion of the Underwriters’ distribution of the Shares, any offering material in connection with the offering and sale of the Shares and the Additional Shares, if any, by the Selling Stockholders other than a Preliminary Prospectus, including the Pricing Prospectus, the Prospectus or the Registration Statement.
(m) The representations and warranties of such Selling Stockholder does not violate any in its Custody Agreement and Power of Attorney are, and on the Company’s internal policies regarding the sale of stock by its affiliatesClosing Date and Additional Closing Date, if any, will be, true and correct. Any certificate signed by any officer or on behalf of any the Selling Stockholder and delivered to the Underwriter Underwriters or to counsel for the Underwriter in connection with the offering of the Shares Underwriters shall be deemed to be a representation and warranty by such Selling Stockholder, Stockholder to each Underwriter as to the matters covered thereby, to the Underwriter.
Appears in 1 contract
Representations and Warranties of the Selling Stockholders. Each of the Selling Stockholder, severally and not jointly, Stockholders represents and warrants to, and agrees with, the Underwriters that:
(a) Neither such Selling Stockholder nor any person acting on behalf of such Selling Stockholder (other than, if applicable, the Company and the Underwriter) has used or referred to any “free writing prospectus” (as defined in Rule 405), relating to the Shares.
(b) Such Selling Stockholder has, and immediately prior to the Closing Date on which If such Selling Stockholder is selling the Sharesan individual, such Selling Stockholder will have, good has full legal capacity to enter into and valid title deliver this Agreement and 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 perform its obligations hereunder. If such Selling Stockholder hereunder on such Closing Date free is not an individual, this Agreement and clear of all liens, encumbrances, equities or claims.
(c) Upon payment for the Shares to be sold transactions contemplated herein have been duly and validly authorized by such Selling Stockholder, delivery of such Shares, as directed by the Underwriter, to Cede & Co. (“Cede”) or such other nominee as may be designated by The Depository Trust Company (“DTC”), registration of such Shares in the name of Cede or such other nominee and the crediting of such Shares on the books of DTC to securities accounts of the Underwriter (assuming that neither DTC nor the Underwriter has notice of any adverse claim (within the meaning of Section 8-105 of the UCC) to such Shares), (i) DTC shall be a “protected purchaser” of such Shares within the meaning of Section 8-303 of the UCC, (ii) under Section 8-501 of the UCC, the Underwriter will acquire a valid security entitlement in respect of such Shares and (iii) no action based on any “adverse claim,” within the meaning of Section 8-102 of the UCC, to such Shares may be asserted against the Underwriter with respect to such security entitlement. For purposes of this representation, such Selling Stockholder may assume that when such payment, delivery and crediting occur, (A) such Shares will have been registered in the name of Cede or another nominee designated by DTC, in each case on the Company’s share registry in accordance with its certificate of incorporation, bylaws and applicable law, (B) DTC will be registered as a “clearing corporation” within the meaning of Section 8-102 of the UCC and (C) appropriate entries to the accounts of the Underwriter on the records of DTC will have been made pursuant to the UCC.
(d) Such Selling Stockholder has full right, power and authority, corporate or otherwise, to enter into this Agreement.
(e) This Agreement has been duly and validly authorized, executed and delivered by or on behalf of such Selling Stockholder.
(fb) Each of (i) the Custody Agreement signed by such Selling Stockholders with [____________________], as custodian (the "Custodian"), relating to the deposit of any Selling Stockholder Additional Shares to be sold by such Selling Stockholders (the "Custody Agreement"), and (ii) the Power of Attorney signed by such Selling Stockholders appointing certain individuals named therein as such Selling Stockholder's attorneys-in-fact (each, an "Attorney-in-Fact") to the extent set forth therein (the "Power of Attorney"), and, in each case, the transactions contemplated therein, have been duly and validly authorized by such Selling Stockholders (if such Selling Stockholders is not an individual). Each of the Custody Agreement and the Power of Attorney has been duly and validly executed and delivered by such Selling Stockholders, and is a valid and binding agreement of such Selling Stockholders, enforceable in accordance with its terms, except as rights to indemnification and contribution thereunder may be limited by applicable law, and except as the enforcement thereof may be limited by bankruptcy, insolvency, reorganization, moratorium or other similar laws relating to or affecting the rights and remedies of creditors, or by general equitable principles.
(c) The executionSelling Stockholder Additional Shares represented by the certificates held in custody for such Selling Stockholders under the Custody Agreement are subject to the interests of the Underwriters hereunder. The arrangements made by such Selling Stockholders for such custody, and the appointment by such Selling Stockholders of the Attorneys-in-Fact by the Power of Attorney, are to that extent irrevocable. The obligations of the Selling Stockholders hereunder shall not be terminated by operation of law, whether by the death or incapacity of any such Selling Stockholders or, in the case of an estate or trust, by the death or incapacity of any executor or trustee or the termination of such estate or trust, or in the case of a partnership, limited liability company or corporation, by its dissolution, or by the occurrence of any other event. If any such Selling Stockholders, or any such executor or trustee should die or become incapacitated, or if any such estate or trust should be terminated, or if such partnership, limited liability company or corporation should be dissolved, or if any other such event should occur, before the delivery of the Selling Stockholder Additional Shares hereunder, certificates representing such Shares shall be delivered by or on behalf of the Selling Stockholders in accordance with the terms and performance conditions of this Agreement and the Custody Agreement, and actions taken by the Attorneys-in-Fact pursuant to the Power of Attorney shall be as valid as if such death, incapacity, termination, dissolution or other event had not occurred, regardless of whether or not the Custodian, the Attorneys-in-Fact, or any of them, shall have received notice of such death, incapacity, termination, dissolution or other event.
(d) Such Selling Stockholders is the lawful owner of the Selling Stockholder Additional Shares to be sold by such Selling Stockholder Stockholders hereunder, and has, and on the Closing Date and the consummation Additional Closing Date, if any, will have, good and valid title to all of such Shares which may be sold by such Selling Stockholders pursuant to this Agreement on such date, and the legal right and power, and all authorizations and approvals required by law and, where applicable, under its charter or by-laws, partnership agreement, trust agreement or other organizational documents, to enter into this Agreement and the Custody Agreement and Power of Attorney, to sell, transfer and deliver all of such Selling Stockholder Additional Shares which may be sold by such Selling Stockholders pursuant to this Agreement, and to comply with its other obligations hereunder and thereunder, and upon sale and delivery of, and payment for, such Shares, as provided herein, such Selling Stockholders will convey good and marketable title to such Shares, free and clear of all security interests, mortgages, pledges, liens, encumbrances or other claims.
(e) The execution and delivery by such Selling Stockholders of, and the transactions contemplated hereby performance by such Selling Stockholders of its obligations under, this Agreement, the Custody Agreement and thereby do not and the Power of Attorney, 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 (or an event which with notice or lapse of time, or both, would constitute a default) or Repayment Event (as defined above) under, require approval or consent under, or result in the creation or imposition of any indenturelien, mortgage, deed of trust, loan agreement, license charge or other agreement or instrument to which such Selling Stockholder is a party or by which such Selling Stockholder is bound or to which encumbrance upon any of the property or assets of such Selling Stockholder Stockholders pursuant to, any agreement, instrument, franchise, license or permit to which such Selling Stockholders is subjecta party, or by which such Selling Stockholders or its properties or assets may be bound, or under which it is entitled to any right or benefit, or (ii) result in violate or conflict with (A) any violation provision of the provisions certificate of the charter or incorporation, by-laws laws, partnership agreement, limited liability company agreement or deed of trust (agreement, as the case may be, or similar other organizational documents) documents of such Selling StockholderStockholders (if such Selling Stockholders is not an individual), or (iiiB) result in any violation of any statute or any judgment, decree, order, statute, rule or regulation of any court or any public, governmental or regulatory agency or body having jurisdiction over such Selling Stockholder Stockholders or the property any of its properties or assets of such Selling Stockholder.
(g) assets. No consent, approval, authorization authorization, order, registration, filing, qualification, license or order of, permit of or filing or registration with, with any court or any public, governmental or regulatory agency or body having jurisdiction over such Selling Stockholder Stockholders or the property any of its properties or assets of such Selling Stockholder is required for the execution, delivery and performance of this Agreement, the Custody Agreement by such Selling Stockholder and or the Power of Attorney, or the consummation by such Selling Stockholder of the transactions contemplated hereby and or thereby, except for including the registration issuance, sale and delivery of the Selling Stockholder Additional Shares under the Securities Act to be issued, sold and delivered by such Selling Stockholders hereunder, except such consents, approvals, authorizations, registrations orders, registrations, filings, qualifications, licenses and permits as have been obtained or qualifications as may be required under the Exchange Act and applicable state securities laws or Blue Sky laws, or with the NASD, in connection with the purchase and distribution of such Shares by the Underwriters.
(f) Except as have been waived in writing, such Selling Stockholders does not have any rights to the registration of securities of the Company or other similar rights to have any securities of the Company included in the offering contemplated by this Agreement, because of the filing of the Registration Statement or otherwise in connection with the sale of the Shares contemplated hereby.
(g) Such Selling Stockholders does not have any preemptive right, co-sale right or right of first refusal or other similar right to purchase any of the Shares that are to be sold by Company to the UnderwriterUnderwriters pursuant to this Agreement, and, except as set forth in the Prospectus, such Selling Stockholders does not own any warrants, options or similar rights to acquire, and does not have any right or arrangement to acquire, any capital stock, right, warrants, options or other securities from the Company.
(h) All material information with respect to furnished by or on behalf of such Selling Stockholder contained Stockholders expressly for use in each of the Registration Statement, Statement and the Prospectus is, and on the Closing Date and the Pricing Disclosure Package (as amended and supplementedAdditional Closing Date, if the Company shall have filed with the Commission any amendment or supplement thereto) (i) complied any, will be, true, correct, and will comply complete in all material respects with all applicable provisions of respects, and does not, and on the Securities Act Closing Date and the Rules and RegulationsAdditional Closing Date, (ii) contains and will contain all statements of material fact required to be stated therein in accordance with the Securities Act and the Rules and Regulationsif any, and (iii) does not and will not contain an untrue statement of a material fact fact, and do not or will not omit to state a any material fact required to be stated therein or necessary in order to make the statements therein not misleading. Solely with respect to (i) in the Metalmark Selling Stockholders (as defined in Schedule I hereto), such Selling Stockholder is not prompted to sell the Shares by any material non-public information relating to the business, results case of operations or prospects of the Company and its subsidiaries of an adverse nature that is required to be disclosed in the Registration Statement, not misleading and (ii) in the Pricing Disclosure Package or case of the Prospectus, in light of the circumstances under which they were made, not misleading. For this purpose, information that is Such Selling Stockholders confirms as accurate (prior to giving effect to the sale of the Shares) the number of shares of Common Stock set forth or incorporated by reference opposite such Selling Stockholder's name in the Registration Statement, Prospectus under the Pricing Disclosure Package caption "Principal and Selling Stockholders" or with respect to such Selling Stockholders as described in the Prospectus or that otherwise has been made publicly available about the Company shall be deemed to be public information, and any opinion or conclusion that a Metalmark Selling Stockholder may hold, or analysis performed by a Metalmark Selling Stockholder, in its capacity as an investor about the business, results of operations or prospects of the Company and its subsidiaries shall not be information that relates footnotes to the business, results of operations or prospects of the Companytable under such caption.
(i) Such Selling Stockholder Stockholders has not taken and or will not take, directly or indirectly, any action that is designed to cause or that has constituted result in, or that could which constitutes or which might reasonably be expected to cause or result in constitute, the stabilization or manipulation of the price of any security of the Company to facilitate the sale or resale of the Shares.
(j) The sale of the Shares by such Such Selling Stockholder does Stockholders has not violate distributed any of the Company’s internal policies regarding the sale of stock by its affiliates. Any certificate signed by any officer of any Selling Stockholder and delivered to the Underwriter or counsel for the Underwriter offering material in connection with the offering and sale of the Shares, other than a preliminary prospectus, the Prospectus or the Registration Statement.
(k) Neither the Selling Stockholders, nor any of the Selling Stockholders' affiliates, directly or indirectly, through one or more intermediaries, controls, is controlled by, or is under common control with, or has any other association with (within the meaning of Article I of the By-laws of the NASD), any member firm of the NASD.
(l) If such Selling Stockholders is not an individual, such Selling Stockholders has been duly organized and is validly existing as a corporation, partnership, limited liability company, trust or other entity, as the case may be, in good standing under the laws of its jurisdiction of incorporation.
(m) Such Selling Stockholders has no reason to believe that the representations and warranties of the Company contained in Section 1 hereof are not true and correct, is familiar with the Registration Statement and has no knowledge of any material fact, condition or information not disclosed in the therein and in the Prospectus or any supplements thereto, which has adversely affected or may adversely affect the business of the Company or its subsidiary; and the sale of the Selling Stockholder Additional Shares by such Selling Stockholders pursuant hereto is not prompted by any information concerning the Company or its subsidiary which is not set forth in the Registration Statement and the Prospectus or any supplements thereto. Any certificate or other document, including, without limitation, the Custody Agreement, the Power of Attorney, any irrevocable election to sell or any questionnaire, signed by or on behalf of such Selling Stockholders and delivered to you or to counsel for the Underwriters shall be deemed to be a representation and warranty by such Selling Stockholder, Stockholders to each Underwriter as to the matters covered thereby, to the Underwriterset forth therein.
Appears in 1 contract
Representations and Warranties of the Selling Stockholders. (a) Each Selling Stockholder, severally and not jointly, represents and warrants to each Underwriter, that:
(ai) Neither such Selling Stockholder nor now is the lawful owner of the number of Shares, or stock options exercisable for the number of Shares, to be sold by such Selling Stockholder pursuant to this Agreement and, at the time of delivery of such Shares (whether the time of purchase or additional time of purchase, as the case may be) will be, the lawful owner of the number of Shares to be sold by such Selling Stockholder pursuant to this Agreement; such Selling Stockholder now has valid and marketable title to such Shares or stock options exercisable for such Shares 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 (whether at the time of purchase or the additional time of purchase, as the case may be), the Underwriters will acquire valid and marketable title to such Shares free and clear of any person acting claim, lien, encumbrance, security interest, community property right, restriction on transfer or other defect in title;
(ii) such Selling Stockholder has and at the time of delivery of such Shares (whether the time of purchase or additional time of purchase, as the case may be) will have, full legal right, 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;
(iii) this Agreement and the Custody Agreement between Hxxxxx Xxxxxx LLP, as custodian, and such Selling Stockholder (each such agreement, a “Custody Agreement” and, collectively, the “Custody Agreements”) have been duly executed and delivered by such Selling Stockholder and when executed and delivered by the other parties thereto each will be a legal, valid and binding agreement of such Selling Stockholder enforceable in accordance with its terms, except as the enforceability thereof may be limited by bankruptcy, insolvency, reorganization, moratorium or similar laws affecting creditors’ rights generally and general principles of equity;
(iv) when the Registration Statement becomes effective and at all times subsequent thereto through the latest of the time of purchase, additional time of purchase or the termination of the offering of the Shares, each of the Registration Statement and the Prospectus will not contain an untrue statement of a material fact omit to state a material fact necessary in order to make the statements therein (in the case of the Prospectus, in the light of the circumstances under which they were made) not misleading;
(v) such Selling Stockholder has duly and irrevocably authorized the Representatives of the Selling Stockholders, on behalf of such Selling Stockholder (Stockholder, to execute and deliver this Agreement and any other than, if applicable, document necessary or desirable in connection with the Company transactions contemplated hereby and the Underwriter) has used or referred to any “free writing prospectus” (as defined in Rule 405), relating to the Shares.
(b) Such Selling Stockholder has, and immediately prior to the Closing Date on which such Selling Stockholder is selling the Shares, such 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 (the “UCC”) in respect of, deliver the Shares to be sold by such Selling Stockholder hereunder on such Closing Date free and clear of all liens, encumbrances, equities or claims.receive payment therefor pursuant hereto;
(cvi) Upon payment for the sale of such Selling Stockholder’s Shares pursuant to this Agreement is not prompted by any information concerning the Company which is not set forth in the Prospectus;
(vii) such Selling Stockholder has not taken any action designed, or which has constituted or might reasonably be expected to cause or result in, under the Exchange Act or otherwise, the stabilization or manipulation of the price of any security of the Company to facilitate the sale or resale of the Shares;
(viii) there are no affiliations or associations between any member of the NASD and such Selling Stockholder, except as set forth in each of the Registration Statement and the Prospectus;
(ix) other than as permitted by the Act, such Selling Stockholder has not distributed, nor will such Selling Stockholder distribute, any prospectus or other offering material in connection with the offering and sale of the Shares;
(x) at the time of purchase, all stock transfer or other taxes (other than income taxes) which are required to be paid in connection with the sale and transfer of the Shares to be sold by such Selling Stockholder, delivery of such Shares, as directed Stockholder to the several Underwriters hereunder will have been fully paid or provided for by the Underwriter, to Cede & Co. (“Cede”) or such other nominee as may be designated by The Depository Trust Company (“DTC”), registration of such Shares in the name of Cede or such other nominee and the crediting of such Shares on the books of DTC to securities accounts of the Underwriter (assuming that neither DTC nor the Underwriter has notice of any adverse claim (within the meaning of Section 8-105 of the UCC) to such Shares), (i) DTC shall be a “protected purchaser” of such Shares within the meaning of Section 8-303 of the UCC, (ii) under Section 8-501 of the UCC, the Underwriter will acquire a valid security entitlement in respect of such Shares and (iii) no action based on any “adverse claim,” within the meaning of Section 8-102 of the UCC, to such Shares may be asserted against the Underwriter with respect to such security entitlement. For purposes of this representation, such Selling Stockholder may assume that when and all laws imposing such payment, delivery and crediting occur, (A) such Shares taxes 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, (B) DTC will be registered as a “clearing corporation” within the meaning of Section 8-102 of the UCC and (C) appropriate entries to the accounts of the Underwriter on the records of DTC will have been made pursuant to the UCC.fully complied with; and
(dxi) Such Selling Stockholder has full right, power and authority, corporate or otherwise, to enter into this Agreement.
(e) This Agreement has been duly and validly authorized, executed and delivered by or on behalf of such Selling Stockholder.
(f) The the execution, delivery and performance of this Agreement by such Selling Stockholder Agreement, the sale of the Shares and the consummation by such Selling Stockholder of the transactions contemplated hereby and thereby do not and will not (i) conflict with or with, result in a any breach or violation of or constitute a default under (nor constitute any event which with notice, lapse of the terms time or provisions of, both would result in any breach of or constitute a default under, ) (A) any indenture, mortgage, deed of trust, loan agreement, license contract or other agreement or instrument to which such the Selling Stockholder is a party or by which such the Selling Stockholder is bound or to which any of the property Selling Stockholder’s properties may be bound or assets of such Selling Stockholder is subjectaffected, or (iiB) result in any violation of federal, state, local or foreign law, regulation or rule or any decree, judgment or order applicable to the provisions of the charter or by-laws or deed of trust (or similar organizational documents) of such Selling Stockholder, except in the case of clause (A) for such conflicts, breaches, violations or (iii) result in any violation of any statute or any order, rule or regulation of any court or governmental agency or body having jurisdiction over such Selling Stockholder or defaults as would not have a material adverse effect on the property or assets of such Selling Stockholder.
(g) No consent, approval, authorization or order of, or filing or registration with’s ability to consummate the transactions contemplated hereby. In addition, any court or governmental agency or body having jurisdiction over such Selling Stockholder or the property or assets of such Selling Stockholder is required for the execution, delivery and performance of this Agreement certificate signed by such Selling Stockholder and delivered to the consummation by such Selling Stockholder of the transactions contemplated hereby and thereby, except Underwriters or counsel for the registration of the Shares under the Securities Act and such consents, approvals, authorizations, registrations or qualifications as may be required under the Exchange Act and applicable state securities laws Underwriters in connection with the purchase and sale offering of the Shares shall be deemed to be a representation and warranty by the such Selling Stockholder, as to matters covered thereby, to each Underwriter.
(hb) All material information Each Selling Stockholder, severally and not jointly, represents and warrants to each Underwriter that each Preliminary Prospectus, at the time of filing thereof, and the last Preliminary Prospectus distributed in connection with respect to such Selling Stockholder contained in each the offering of the Registration StatementShares did not, the Prospectus and the Pricing Disclosure Package (as amended and supplemented, if the Company shall have filed with the Commission any amendment or supplement thereto) (i) complied and will comply in all material respects with all applicable provisions of the Securities Act and the Rules and Regulations, (ii) contains and will contain all statements of material fact required to be stated therein in accordance with the Securities Act and the Rules and Regulationsits date, and (iii) does not and will not contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in order light of the circumstances under which they were made, not misleading; and the Registration Statement did not when it became effective, does not and will not, at the time of purchase and any additional time of purchase, contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading and the Prospectus will not, as of its date and at the time of purchase and any additional time of purchase, contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading. Solely ; provided, however, that such Selling Stockholder makes no warranty or representation with respect to any statement contained in the Metalmark Selling Stockholders (as defined Preliminary Prospectus, the Registration Statement or the Prospectus in Schedule I hereto), reliance upon and in conformity with information concerning an Underwriter and furnished in writing by or on behalf of such Selling Stockholder is not prompted to sell the Shares by any material non-public information relating Underwriter through you to the business, results of operations or prospects of the Company and its subsidiaries of an adverse nature that is required to be disclosed expressly for use in the Registration StatementPreliminary Prospectus, the Pricing Disclosure Package Registration Statement or the Prospectus. For this purpose, information that is set forth or incorporated by reference in the Registration Statement, the Pricing Disclosure Package or the Prospectus or that otherwise has been made publicly available about the Company shall be deemed to be public information, and any opinion or conclusion that a Metalmark Selling Stockholder may hold, or analysis performed by a Metalmark Selling Stockholder, in its capacity as an investor about the business, results of operations or prospects of the Company and its subsidiaries shall not be information that relates to the business, results of operations or prospects of the Company.
(i) Such Selling Stockholder has not taken and will not take, directly or indirectly, any action that is designed to or that has constituted or that could reasonably be expected to cause or result in the stabilization or manipulation of the price of any security of the Company to facilitate the sale or resale of the Shares.
(j) The sale of the Shares by such Selling Stockholder does not violate any of the Company’s internal policies regarding the sale of stock by its affiliates. Any certificate signed by any officer of any 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 such Selling Stockholder, as to matters covered thereby, to the Underwriter.
Appears in 1 contract
Representations and Warranties of the Selling Stockholders. Each Selling Stockholder, Stockholder severally and not jointly, jointly represents and warrants to, and agrees with, each of the Underwriters that:
(a) Neither such Selling Stockholder nor any person acting on behalf of such Selling Stockholder (other than, if applicable, the Company and the Underwriter) has used or referred to any “free writing prospectus” (as defined in Rule 405), relating to the Shares.
(b) Such Selling Stockholder has, and immediately prior to the Closing Date on which such Selling Stockholder is selling the Shares, such 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 (the “UCC”) in respect of, the Shares to be sold by such Selling Stockholder hereunder on such Closing Date free and clear of all liens, encumbrances, equities or claims.
(c) Upon payment for the Shares to be sold by such Selling Stockholder, delivery of such Shares, as directed by the Underwriter, to Cede & Co. (“Cede”) or such other nominee as may be designated by The Depository Trust Company (“DTC”), registration of such Shares in the name of Cede or such other nominee and the crediting of such Shares on the books of DTC to securities accounts of the Underwriter (assuming that neither DTC nor the Underwriter has notice of any adverse claim (within the meaning of Section 8-105 of the UCC) to such Shares), (i) DTC shall be a “protected purchaser” of such Shares within the meaning of Section 8-303 of the UCC, (ii) under Section 8-501 of the UCC, the Underwriter will acquire a valid security entitlement in respect of such Shares and (iii) no action based on any “adverse claim,” within the meaning of Section 8-102 of the UCC, to such Shares may be asserted against the Underwriter with respect to such security entitlement. For purposes of this representation, such Selling Stockholder may assume that when such payment, delivery and crediting occur, (A) such Shares will have been registered in the name of Cede or another nominee designated by DTC, in each case on the Company’s share registry in accordance with its certificate of incorporation, bylaws and applicable law, (B) DTC will be registered as a “clearing corporation” within the meaning of Section 8-102 of the UCC and (C) appropriate entries to the accounts of the Underwriter on the records of DTC will have been made pursuant to the UCC.
(d) Such Selling Stockholder has full right, power and authority, corporate or otherwise, to enter into this Agreement.
(e) This Agreement has been duly and validly authorized, executed and delivered by or on behalf of such each Selling StockholderStockholder and is a valid and binding agreement of each of the Selling Stockholders.
(fb) The execution, delivery and performance of this Agreement by such Selling Stockholder and the consummation by such Selling Stockholder Each of the transactions contemplated hereby Custody Agreements and thereby do not Powers of Attorney (each, a "Custody Agreement and will not Power of Attorney") signed by (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, license or other agreement or instrument to which such each Selling Stockholder is a party or by which such Selling Stockholder is bound or to which any of the property or assets of such Selling Stockholder is subjectStockholder, (ii) result U.S. Stock Transfer Corporation, as custodian (in any violation of the provisions of the charter or by-laws or deed of trust (or similar organizational documents) of such Selling Stockholder, or (iii) result in any violation of any statute or any order, rule or regulation of any court or governmental agency or body having jurisdiction over such Selling Stockholder or the property or assets of such Selling Stockholder.
(g) No consent, approval, authorization or order of, or filing or registration with, any court or governmental agency or body having jurisdiction over such Selling Stockholder or the property or assets of such Selling Stockholder is required for the execution, delivery and performance of this Agreement by such Selling Stockholder and the consummation by such Selling Stockholder of the transactions contemplated hereby and thereby, except for the registration of the Shares under the Securities Act and such consents, approvals, authorizations, registrations or qualifications as may be required under the Exchange Act and applicable state securities laws in connection with the purchase and sale of the Shares by the Underwriter.
(h) All material information with respect to such Selling Stockholder contained in each of the Registration Statementcapacity, the Prospectus and the Pricing Disclosure Package (as amended and supplemented, if the Company shall have filed with the Commission any amendment or supplement thereto) (i) complied and will comply in all material respects with all applicable provisions of the Securities Act and the Rules and Regulations, (ii) contains and will contain all statements of material fact required to be stated therein in accordance with the Securities Act and the Rules and Regulations"Custodian"), and (iii) does not and will not contain an untrue statement of a material Murray Skala as the Selling Stockholders' attorney-in-fact or omit to state a material fact required to be stated therein or necessary (in order to make the statements therein not misleading. Solely with respect to the Metalmark Selling Stockholders (as defined in Schedule I heretosuch caxxxxxx, xxx "Attorney-In-Fact"), has been duly and validly authorized, executed and delivered by each Selling Stockholder and is a valid and binding agreement of each Selling Stockholder, enforceable against such Selling Stockholder is in accordance with its terms, except as the enforcement thereof may be limited by bankruptcy, insolvency, reorganization, moratorium or other similar laws relating to or affecting the rights and remedies of creditors or by general equitable principles. Each Selling Stockholder agrees that the Shares, to be sold by each Selling Stockholder on deposit with the Custodian are subject to the interests of the Underwriters, that the arrangements made for such custody are to that extent irrevocable, and that the obligations of each Selling Stockholder hereunder shall not prompted to sell be terminated, except as provided in this Agreement or in the Shares Custody Agreement and Power of Attorney, by any material non-public information relating to the business, results of operations or prospects act of the Company and its subsidiaries of an adverse nature that is required to be disclosed in the Registration Statement, the Pricing Disclosure Package or the Prospectus. For this purpose, information that is set forth or incorporated by reference in the Registration Statement, the Pricing Disclosure Package or the Prospectus or that otherwise has been made publicly available about the Company shall be deemed to be public information, and any opinion or conclusion that a Metalmark Selling Stockholder may hold, or analysis performed by a Metalmark Selling Stockholder, in its by operation of law or by the occurrence of any other event. If any event should occur impacting the legal status or capacity as an investor about the business, results of operations or prospects of the Company and its subsidiaries shall not be information that relates to Selling Stockholder, before the business, results of operations or prospects of the Company.
(i) Such Selling Stockholder has not taken and will not take, directly or indirectly, any action that is designed to or that has constituted or that could reasonably be expected to cause or result in the stabilization or manipulation of the price of any security of the Company to facilitate the sale or resale delivery of the Shares.
(j) The sale of , if any, to be sold by a Selling Stockholder hereunder, the Shares documents evidencing the Shares, if any, to be sold by such Selling Stockholder does not violate any of the Company’s internal policies regarding the sale of stock by its affiliates. Any certificate signed by any officer of any Selling Stockholder and delivered to the Underwriter or counsel for the Underwriter in connection then on deposit with the offering of the Shares Custodian shall be deemed a representation delivered by the Custodian in accordance with the terms and warranty by conditions of this Agreement as if such Selling Stockholderevent had not occurred, as to matters covered thereby, to regardless of whether or not the UnderwriterCustodian shall have received notice thereof.
Appears in 1 contract
Representations and Warranties of the Selling Stockholders. Each of the Selling StockholderStockholders, severally and not jointlyas to itself only, represents and warrants to and agrees with each of the Underwriters that:
(a) Neither such Selling Stockholder nor any person acting on behalf of such Selling Stockholder (other than, if applicable, the Company and the Underwriter) has used or referred to any “free writing prospectus” (as defined in Rule 405), relating to the Shares.
(b) Such Selling Stockholder has, and immediately prior to the Closing Date on which such Selling Stockholder is selling the Shares, such 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 (the “UCC”) in respect of, the Shares to be sold by such Selling Stockholder hereunder on such Closing Date free and clear of all liens, encumbrances, equities or claims.
(c) Upon payment for the Shares to be sold by such Selling Stockholder, delivery of such Shares, as directed by the Underwriter, to Cede & Co. (“Cede”) or such other nominee as may be designated by The Depository Trust Company (“DTC”), registration of such Shares in the name of Cede or such other nominee and the crediting of such Shares on the books of DTC to securities accounts of the Underwriter (assuming that neither DTC nor the Underwriter has notice of any adverse claim (within the meaning of Section 8-105 of the UCC) to such Shares), (i) DTC shall be a “protected purchaser” of such Shares within the meaning of Section 8-303 of the UCC, (ii) under Section 8-501 of the UCC, the Underwriter will acquire a valid security entitlement in respect of such Shares and (iii) no action based on any “adverse claim,” within the meaning of Section 8-102 of the UCC, to such Shares may be asserted against the Underwriter with respect to such security entitlement. For purposes of this representation, such Selling Stockholder may assume that when such payment, delivery and crediting occur, (A) such Shares will have been registered in the name of Cede or another nominee designated by DTC, in each case on the Company’s share registry in accordance with its certificate of incorporation, bylaws and applicable law, (B) DTC will be registered as a “clearing corporation” within the meaning of Section 8-102 of the UCC and (C) appropriate entries to the accounts of the Underwriter on the records of DTC will have been made pursuant to the UCC.
(d) Such Selling Stockholder has full right, power and authority, corporate or otherwise, to enter into this Agreement.
(e) This Agreement has been duly and validly authorized, executed and delivered by or on behalf of such Selling Stockholder.
(fb) The execution, delivery and performance of this Custody Agreement signed by such Selling Stockholder and the Company, as Custodian, relating to the custody of the Shares to be sold by such Selling Stockholder (the "CUSTODY AGREEMENT") and the Irrevocable Power of Attorney of such Selling Stockholder appointing certain individuals as such Selling Stockholder's attorney-in-fact to the extent set forth therein, relating to the transactions contemplated hereby (the "POWER OF ATTORNEY") have been duly authorized by such Selling Stockholder and, when executed and delivered by such Selling Stockholder, will constitute a valid and binding agreement of such Selling Stockholder enforceable against such Selling Stockholders in accordance with its terms except as enforceability thereof may be limited by bankruptcy, insolvency or similar laws affecting creditors' rights generally and the availability of equitable remedies may be limited by equitable principles of general applicability.
(c) The execution and delivery by such Selling Stockholder of, and the performance by such Selling Stockholder of its obligations under, this Agreement, the Custody Agreement and the Power of Attorney of such Selling Stockholder will not contravene any provision of (i) the certificate of incorporation or by-laws or other constitutive documents of such Selling Stockholder, (ii) any applicable law or any agreement or other instrument binding upon such Selling Stockholder, except for any contraventions as would not individually or in the aggregate materially and adversely affect the consummation by such Selling Stockholder of the transactions contemplated hereby and thereby 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, any indenture, mortgage, deed of trust, loan agreement, license or other agreement or instrument to which such Selling Stockholder is a party or by which such Selling Stockholder is bound or to which any of the property or assets of such Selling Stockholder is subject, (ii) result in any violation of the provisions of the charter or by-laws or deed of trust (or similar organizational documents) of such Selling Stockholder, this Agreement or (iii) result in any violation judgment, order or decree of any statute or any ordergovernmental body, rule or regulation of any court or governmental agency or body court having jurisdiction over such Selling Stockholder or the property or assets of such Selling Stockholder.
(g) No ; and no consent, approval, authorization or order of, or filing or registration qualification with, any court governmental body or governmental agency or body having jurisdiction over such Selling Stockholder or the property or assets of such Selling Stockholder is required for the execution, delivery and performance of this Agreement by such Selling Stockholder and the consummation by such Selling Stockholder of its obligations under this Agreement, the transactions contemplated hereby and therebyCustody Agreement or the Power of Attorney of such Selling Stockholder, except for the registration of the Shares under the Securities Act and such consents, approvals, authorizations, registrations or qualifications as may be required under by the Exchange Act and applicable state Securities Act, the securities or Blue Sky laws of the various states or the securities or similar laws of any foreign jurisdiction in connection with the purchase offer and sale of the Shares by the UnderwriterShares.
(hd) All material information with respect to Such Selling Stockholder has, and, on the Closing Date (as defined below), such Selling Stockholder contained in each will have, valid title to the Shares to be sold by 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, the Custody Agreement and the Power of Attorney of such Selling Stockholder and to sell, transfer and deliver the Shares to be sold by such Selling Stockholder.
(e) Delivery of the Shares to be sold by such Selling Stockholder pursuant to this Agreement and payment therefor by the Underwriters pursuant to this Agreement will pass valid title to such Shares free and clear of any adverse claim within the meaning of Section 8-102 of the New York Uniform Commercial Code to each Underwriter that has purchased such Shares without notice of an adverse claim.
(i) The Registration Statement, the Prospectus and the Pricing Disclosure Package (when it became effective, did not contain and, as amended and or supplemented, if the Company shall have filed with the Commission any amendment or supplement thereto) (i) complied and will comply in all material respects with all applicable provisions of the Securities Act and the Rules and Regulationsapplicable, (ii) contains and will contain all statements of material fact required to be stated therein in accordance with the Securities Act and the Rules and Regulations, and (iii) does not and will not contain an 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. Solely , (ii) the Registration Statement and the Prospectus comply and, as amended or supplemented, if applicable, will comply in all material respects with respect the Securities Act and the applicable rules and regulations of the Commission thereunder and (iii) the Prospectus does not contain and, as amended or supplemented, if applicable, will not contain any untrue statement of a material fact or omit to state a material fact necessary to make the Metalmark Selling Stockholders (as defined statements therein, in Schedule I hereto)the light of the circumstances under which they were made, not misleading; provided that the representations and warranties set forth in this paragraph 2(f) apply only to statements or omissions in the Registration Statement or the Prospectus based upon information relating to such Selling Stockholder is not prompted to sell the Shares by any material non-public information relating furnished to the business, results of operations or prospects of the Company and its subsidiaries of an adverse nature that is required to be disclosed in the Registration Statement, the Pricing Disclosure Package or the Prospectus. For this purpose, information that is set forth or incorporated writing by reference in the Registration Statement, the Pricing Disclosure Package or the Prospectus or that otherwise has been made publicly available about the Company shall be deemed to be public information, and any opinion or conclusion that a Metalmark such Selling Stockholder may hold, or analysis performed by a Metalmark Selling Stockholder, in its capacity as an investor about the business, results of operations or prospects of the Company and its subsidiaries shall not be information that relates to the business, results of operations or prospects of the Companyexpressly for use therein.
(ig) Such Selling Stockholder has not taken taken, and will not take, directly or indirectly, any action that is designed to to, or that has constituted or that could which might reasonably be expected to to, cause or result in the stabilization or manipulation of the price of any security of the Company to facilitate the sale or resale of the Shares.
(j) The sale of the Shares by such Selling Stockholder does not violate any of the Company’s internal policies regarding the sale of stock by its affiliates. Any certificate signed by any officer of any Selling Stockholder and delivered pursuant to the Underwriter distribution contemplated by this Agreement, and other than as permitted by the Securities Act, such selling Stockholder has not distributed and will not distribute any prospectus or counsel for the Underwriter other offering material in connection with the offering and sale of the Shares shall be deemed a representation and warranty by such Selling Stockholder, as to matters covered thereby, to the UnderwriterShares.
Appears in 1 contract
Representations and Warranties of the Selling Stockholders. Each of the Selling StockholderStockholders hereby represents, severally and not jointly, represents warrants to, and warrants agrees with, each Underwriter that:
(a) Neither Such Selling Stockholder has caused certificates for the number of Shares listed opposite such Selling Stockholder nor any person acting Stockholder’s name on behalf Schedule II hereto to be delivered to U.S. Stock Transfer Corporation (the “Custodian”), endorsed in blank or with blank stock powers duly executed, with a signature appropriately guaranteed, such certificates to be held in custody by the Custodian for delivery, pursuant to the provisions of such Selling Stockholder (other than, if applicable, this Agreement and agreements dated on or prior to the Company date of this Agreement among the Custodian and the Underwriter) has used or referred to any Selling Stockholders substantially in the form attached hereto as Exhibit B (the “free writing prospectus” (as defined in Rule 405Custody Agreement”), relating to the Shares.
(b) Such Selling Stockholder has, and immediately prior to has granted an irrevocable power of attorney substantially in the Closing Date on which such Selling Stockholder is selling the Shares, such 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 form attached hereto as Exhibit C (the “UCCPower of Attorney”) to each of the persons named therein, on behalf of such Selling Stockholder, to execute and deliver this Agreement and any other document necessary or desirable in respect of, connection with the transactions contemplated hereby and to deliver the Shares to be sold by such Selling Stockholder hereunder on such Closing Date free and clear of all liens, encumbrances, equities or claimspursuant hereto.
(c) Upon payment for This Agreement, the Shares to be sold by such Selling StockholderCustody Agreement, delivery the Power of such Shares, as directed by the Underwriter, to Cede & Co. (“Cede”) or such other nominee as may be designated by The Depository Trust Company (“DTC”), registration of such Shares in the name of Cede or such other nominee Attorney and the crediting of such Shares on the books of DTC to securities accounts of the Underwriter (assuming that neither DTC nor the Underwriter has notice of any adverse claim (within the meaning of Section 8Lock-105 of the UCC) to such Shares), (i) DTC shall be a “protected purchaser” of such Shares within the meaning of Section 8-303 of the UCC, (ii) under Section 8-501 of the UCC, the Underwriter will acquire a valid security entitlement in respect of such Shares and (iii) no action based on any “adverse claim,” within the meaning of Section 8-102 of the UCC, to such Shares may be asserted against the Underwriter with respect to such security entitlement. For purposes of this representation, such Selling Stockholder may assume that when such payment, delivery and crediting occur, (A) such Shares will Up Agreement 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, (B) DTC will be registered as a “clearing corporation” within the meaning of Section 8-102 of the UCC and (C) appropriate entries to the accounts of the Underwriter on the records of DTC will have been made pursuant to the UCC.
(d) Such Selling Stockholder has full right, power and authority, corporate or otherwise, to enter into this Agreement.
(e) This Agreement has been duly and validly authorized, executed and delivered by or on behalf of such Selling Stockholder and, assuming due authorization, execution and delivery by the other parties thereto, constitutes the valid and legally binding agreement of such Selling Stockholder, enforceable against such Selling Stockholder in accordance with its terms.
(fd) The execution, execution and delivery and performance by such Selling Stockholder of this Agreement and the performance by such Selling Stockholder of its obligations under this Agreement, including the sale and delivery of the Shares to be sold by such Selling Stockholder and the consummation of the transactions contemplated herein and compliance by such Selling Stockholder of the transactions contemplated hereby and thereby with its obligations hereunder, do not and will not not, whether with or without the giving of notice or the passage of time or both, (i) violate or contravene any provision of the charter or bylaws or other organizational instrument of such Selling Stockholder, if applicable, or any applicable law, statute, regulation, or filing 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, (ii) conflict with or result in constitute a breach or violation of any of the terms or provisions of, or constitute a default under, or result in the creation or imposition of any indenturetax, mortgagelien, deed charge or encumbrance upon the Shares to be sold by such Selling Stockholder or any property or assets of trust, loan agreement, license or other such Selling Stockholder pursuant to the terms of any agreement or instrument to which such Selling Stockholder is a party or by which such Selling Stockholder is may be bound or to which any of the property or assets of such Selling Stockholder is subject, (ii) result in any violation of the provisions of the charter or by-laws or deed of trust (or similar organizational documents) of such Selling Stockholder, subject or (iii) result in require any violation consent, approval, authorization or order of any statute or any order, rule registration or regulation of filing with any court or governmental agency or body having jurisdiction over it, except such as may be required by the NASD, the Securities Act or state securities or Blue Sky laws in connection with the offer and sale of the Shares.
(e) Such Selling Stockholder will have on the Option Shares Closing Date valid and marketable title to the Option 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, except as otherwise described in the property or assets of Registration Statement and the Pricing Prospectus.
(f) Such Selling Stockholder has and will have on the Option Shares Closing Date full legal right, power and authority, and any approval required by law, to sell, assign, transfer and deliver the Option Shares to be sold by such Selling StockholderStockholder in the manner provided by this Agreement.
(g) No consent, approval, authorization or order of, or filing or registration with, any court or governmental agency or body having jurisdiction over such Selling Stockholder or the property or assets Upon delivery of such Selling Stockholder is required and payment for the execution, delivery and performance of this Agreement Shares to be sold by such Selling Stockholder pursuant to this Agreement, and assuming each Underwriter has no notice of any adverse claim, the consummation by several Underwriters will receive valid and marketable title to such Selling Stockholder Shares free and clear of the transactions contemplated hereby and therebyany lien, except for the registration of the Shares under the Securities Act and such consentsclaim, approvalsmortgage, authorizationspledge, registrations security interest or qualifications as may be required under the Exchange Act and applicable state securities laws in connection with the purchase and sale of the Shares by the Underwriterother encumbrance.
(h) All material information with respect relating to such Selling Stockholder contained furnished in each of writing by such Selling Stockholder expressly for use in the Registration Statement, the Pricing Prospectus and the Pricing Disclosure Package (as amended and supplemented, if the Company shall have filed with the Commission any amendment or supplement thereto) (i) complied and will comply in all material respects with all applicable provisions of the Securities Act and the Rules and Regulations, (ii) contains and will contain all statements of material fact required to be stated therein in accordance with the Securities Act and the Rules and RegulationsIssuer Free Writing Prospectus is, and (iii) on each Closing Date will be, true, correct, and complete, and does not not, and on each Closing Date will not not, contain an any untrue statement of a material fact or omit to state any material fact necessary to make such information not misleading. Such Selling Stockholder confirms that the only information being supplied by such Selling Stockholder in writing expressly for use in the Registration Statement, any Preliminary Prospectus (including the Pricing Prospectus), the Prospectus, or any Issuer Free Writing Prospectus is the number of the Shares that such Selling Stockholder has agreed to sell pursuant to this Agreement and the information regarding such Selling Stockholder in the Pricing Prospectus and the Prospectus
(i) under the caption “Principal and Selling Stockholders,” including the footnotes, and, (ii) to the extent applicable, under the caption “Certain Relationships and Related Party Transactions.”
(i) Each Indemnification Stockholder has reviewed the Registration Statement and Pricing Prospectus and the Pricing Disclosure Package taken as a whole and, although such Indemnification Stockholder has not independently verified the accuracy or completeness of all the information contained therein, nothing has come to the attention of such Indemnification Stockholder that would lead such Indemnification Stockholder to believe that (i) as of the Effective Date, the Registration Statement contained any untrue statement of a material fact or omitted to state any material fact required to be stated therein to make the statements made therein not misleading or (ii) as of the Applicable Time, either the Pricing Prospectus or the Pricing Disclosure Package contained any untrue statement of a material fact or omitted to state any material fact necessary in order to make the statements therein therein, in the light of the circumstances under which they were made, not misleading. Solely with respect .
(j) The sale of Shares by each Indemnification Stockholder pursuant to the Metalmark Selling Stockholders (as defined in Schedule I hereto), such Selling Stockholder this Agreement is not prompted to sell the Shares by such Indemnification Stockholder’s knowledge of any material non-public adverse information relating to the business, results of operations or prospects of concerning the Company and or any of its subsidiaries of an adverse nature that which is required to be disclosed not set forth in the Registration Statement, the Pricing Disclosure Package or the Prospectus. For this purpose, information that is set forth or incorporated by reference in the Registration Statement, the Pricing Disclosure Package or the Prospectus or that otherwise has been made publicly available about the Company shall be deemed to be public information, and any opinion or conclusion that a Metalmark Selling Stockholder may hold, or analysis performed by a Metalmark Selling Stockholder, in its capacity as an investor about the business, results of operations or prospects of the Company and its subsidiaries shall not be information that relates to the business, results of operations or prospects of the Company.
(ik) Such Selling Stockholder has not taken and will not take, directly or indirectly, any action that is designed to or that has constituted or that could might reasonably be expected to cause or result in the stabilization or manipulation of the price of any security of the Company to facilitate the sale or resale of the Shares.
(jl) Such Selling Stockholder has no actual knowledge that any representation or warranty of the Company set forth in Section 2 above is untrue or inaccurate in any material respect.
(m) The sale representations and warranties of the Shares by such Selling Stockholder does not violate any of in the Company’s internal policies regarding the sale of stock by its affiliates. Any certificate signed by any officer of any Selling Stockholder Custody Agreement are and delivered to the Underwriter or counsel for the Underwriter in connection with the offering of the Shares shall be deemed a representation on each applicable Closing Date will be, true and warranty by such Selling Stockholder, as to matters covered thereby, to the Underwritercorrect.
Appears in 1 contract
Representations and Warranties of the Selling Stockholders. Each Selling Stockholder, Stockholder severally and not jointly, represents and warrants to each Underwriter and agrees that:
(a) Neither such The Selling Stockholder nor any person acting on behalf of such has placed in custody under a custody agreement (the "Custody Agreement" and, together with all other similar agreements executed by the other Selling Stockholder (other than, if applicableStockholders, the Company and "Custody Agreements") with [BANK], as custodian (the Underwriter) has used or referred to any “free writing prospectus” (as defined in Rule 405"Custodian"), relating for delivery under this Agreement, certificates in negotiable form (with signature guaranteed by a commercial bank or trust company having an office or correspondent in the United States or a member firm of the New York Stock Exchange) representing the Shares to be sold by the SharesSelling Stockholder.
(b) The Selling Stockholder has duly and irrevocably executed and delivered a power of attorney (the "Power of Attorney" and, together with all other similar agreements executed by the other Selling Stockholders, the "Powers of Attorney") appointing [_________], and any one of them acting singly, as attorneys-in-fact, with full power of substitution, and with full authority (exercisable by any one or more of them) to execute and deliver this Agreement and to take such other action as may be necessary or desirable to carry out the provisions hereof on behalf of the Selling Stockholder.
(c) Such Selling Stockholder hashas all legal capacity necessary to execute and deliver this Agreement, the Custody Agreement and immediately prior the Power of Attorney, to sell and deliver the Closing Date on which Shares to be sold by him, her or it hereunder and to perform all other obligations under this Agreement, the Custody Agreement and the Power of Attorney; each of this Agreement, the Custody Agreement and the Power of Attorney has been duly executed and delivered by such Selling Stockholder is selling and constitutes the Sharesvalid and binding agreement of such Selling Stockholder, enforceable against him, her or it in accordance with its terms, except that the indemnification provisions set forth in Section 9 of this Agreement may be limited by applicable law or equitable principles, and except as enforceability may be limited by bankruptcy, reorganization, moratorium or similar laws affecting the enforceability of creditors' rights generally and rules of law governing specific performance, injunctive relief and other equitable remedies; the execution, delivery and performance of this Agreement, the Custody Agreement and the Power of Attorney by such Selling Stockholder do not and will havenot conflict with, good and valid title to result in the creation or a valid “security entitlement” within the meaning imposition of Section 8-501 any lien, charge or encumbrance upon any of the New York Uniform Commercial Code (the “UCC”) in respect of, the Shares to be sold by such Selling Stockholder hereunder on such Closing Date free and clear of all liens, encumbrances, equities or claims.
(c) Upon payment for the Shares to be sold by such Selling Stockholder, delivery of such Shares, as directed by the Underwriter, to Cede & Co. (“Cede”) or such other nominee as may be designated by The Depository Trust Company (“DTC”), registration of such Shares in the name of Cede or such other nominee and the crediting of such Shares on the books of DTC to securities accounts of the Underwriter (assuming that neither DTC nor the Underwriter has notice of any adverse claim (within the meaning of Section 8-105 of the UCC) to such Shares), (i) DTC shall be a “protected purchaser” of such Shares within the meaning of Section 8-303 of the UCC, (ii) under Section 8-501 of the UCC, the Underwriter will acquire a valid security entitlement in respect of such Shares and (iii) no action based on any “adverse claim,” within the meaning of Section 8-102 of the UCC, to such Shares may be asserted against the Underwriter with respect to such security entitlement. For purposes of this representation, such Selling Stockholder may assume that when such payment, delivery and crediting occur, (A) such Shares will have been registered in the name of Cede or another nominee designated by DTC, in each case on the Company’s share registry in accordance with its certificate of incorporation, bylaws and applicable law, (B) DTC will be registered as a “clearing corporation” within the meaning of Section 8-102 of the UCC and (C) appropriate entries to the accounts of the Underwriter on the records of DTC will have been made pursuant to the UCC.
(d) Such Selling Stockholder has full right, power and authority, corporate or otherwise, to enter into this Agreement.
(e) This Agreement has been duly and validly authorized, executed and delivered by or on behalf of such Selling Stockholder.
(f) The execution, delivery and performance of this Agreement by such Selling Stockholder and the consummation by such Selling Stockholder of the transactions contemplated hereby and thereby 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, any indenture, mortgage, deed of trust, loan agreement, license agreement or other agreement or instrument to which such Selling Stockholder is a party or by which such Selling Stockholder is bound or to which any of the property or assets of such Selling Stockholder is subjectinstrument, (ii) result in any violation of the provisions of the charter or by-laws or deed of trust (or similar organizational documents) of such Selling Stockholder, or (iii) result in any violation of any statute or any order, rule or regulation of any court or governmental agency or body having jurisdiction over such Selling Stockholder or the property or assets of such Selling Stockholder.
(g) No 's properties; and except as required by the 1933 Act and applicable state securities laws, no consent, approval, authorization or order of, or filing or registration with, any court or governmental agency or body having jurisdiction over such Selling Stockholder or the property or assets of such Selling Stockholder is required (or, if required, has been obtained) for the execution, delivery and performance of this Agreement, the Custody Agreement or the Power of Attorney by such Selling Stockholder Stockholder.
(d) At the Closing Time and the consummation by any Delivery Date, such Selling Stockholder will have good and valid title to the Shares being sold by him or her hereunder; such Shares are, and at the Closing Time and any Delivery Date will be, duly authorized, validly issued and outstanding, fully paid and non-assessable Common Stock of the transactions Company with no personal liability attaching to the ownership thereof; and upon the delivery of and payment for such Shares as contemplated hereby and therebyherein, except for the registration of Underwriters will receive good title to the Shares under the Securities Act purchased by them, respectively, from such Selling Stockholder, free and such consentsclear of any and all liens, approvalsencumbrances, authorizations, registrations or qualifications as may be required under the Exchange Act security interests and applicable state securities laws in connection with the purchase and sale of the Shares by the Underwriteradverse claims.
(he) All material information with respect to Without the prior written consent of the Representatives, such Selling Stockholder contained in each Stockholder, and any affiliate controlled by him, her or it (other than the Company), will not sell or offer or contract to sell, except to the Underwriters pursuant to this Agreement, any securities of the Company which he, she or it beneficially owns, within 180 days after the effective date of the Registration Statement, the Prospectus and the Pricing Disclosure Package (as amended and supplemented, if the Company shall have filed with the Commission any amendment or supplement thereto) (i) complied and will comply in all material respects with all applicable provisions of the Securities Act and the Rules and Regulations, (ii) contains and will contain all statements of material fact required to be stated therein in accordance with the Securities Act and the Rules and Regulations, and (iii) does not and will not contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary in order to make the statements therein not misleading. Solely with respect to the Metalmark Selling Stockholders (as defined in Schedule I hereto), such Selling Stockholder is not prompted to sell the Shares by any material non-public information relating to the business, results of operations or prospects of the Company and its subsidiaries of an adverse nature that is required to be disclosed in the Registration Statement, the Pricing Disclosure Package or the Prospectus. For this purpose, information that is set forth or incorporated by reference in the Registration Statement, the Pricing Disclosure Package or the Prospectus or that otherwise has been made publicly available about the Company shall be deemed to be public information, and any opinion or conclusion that a Metalmark Selling Stockholder may hold, or analysis performed by a Metalmark Selling Stockholder, in its capacity as an investor about the business, results of operations or prospects of the Company and its subsidiaries shall not be information that relates to the business, results of operations or prospects of the Company.
(i) Such Selling Stockholder has not taken (i) taken, and agrees that he, she or it will not take, directly or indirectly, any action that is designed to or that has constituted or that could which might reasonably be expected to cause or result in the stabilization or manipulation of the price of any security of the Company to facilitate the sale or resale of the Shares, or (ii) since the filing of the Registration Statement (A) sold, bid for, purchased, or paid anyone any compensation for soliciting purchases of, the Shares, or (B) paid or agreed to pay to any person any compensation for soliciting another to purchase any other securities of the Company.
(jf) Except as set forth in the Prospectus, such Selling Stockholder is disposing of his, her or its Shares hereunder for his, her or its own account and is not selling such Shares, directly or indirectly, for the benefit of the Company or the Underwriters.
(g) When any Preliminary Prospectus was filed with the Commission (i) it contained all statements required to be stated therein regarding such Selling Stockholder in accordance with, and complied in all respects regarding such Selling Stockholder with the requirements of, the 1933 Act and 1933 Act Regulations, and (ii) such statements in the Preliminary Prospectus as are made in reliance upon and in conformity with written information furnished to the Company by such Selling Stockholder for use therein did not include any untrue statement of a material fact or omit to state any material fact necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading. When the Registration Statement or any amendment thereto or any 462(b) Registration Statement or any amendment thereto was or is declared effective and at the Closing Time or any Date of Delivery, as the case may be, (i) it contained or will contain all statements required to be stated therein regarding such Selling Stockholder in accordance with, and complied or will comply in all respects regarding such Selling Stockholder with the requirements of the 1933 Act and the 1933 Act Regulations and (ii) such statements in the Registration Statement any 462(b) Registration Statement or any amendment thereto as are made in reliance upon and in conformity with written information furnished to the Company by such Selling Stockholder specifically for use therein did not or will not include any untrue statement of a material fact or omit to state any material fact necessary to make the statements therein not misleading. When the Prospectus or any amendment or supplement thereto is filed with the Commission pursuant to Rule 424(b) (or, if any Prospectus or such amendment or supplement is not required to be so filed, when the Registration Statement or the amendment thereto containing such amendment or supplement to the Prospectus was or is declared effective), and at the Closing Time or any Date of Delivery, as the case may be, (i) the Prospectus, as amended or supplemented at any such time, contained or will contain all statements required to be contained or stated therein regarding such Selling Stockholder in accordance with, and complied or will comply in all respects regarding such Selling Stockholder with the requirements of, the 1933 Act 1933 Act Regulations and (ii) such statements in the Prospectus, as xx xxxxxed or supplemented at any such time, as are made in reliance upon and in conformity with written information furnished to the Company by such Selling Stockholder specifically for use therein will not include any untrue statement of a material fact or omit to state any material fact necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading.
(h) The sale of the Shares by such Selling Stockholder does pursuant to this Agreement is not violate prompted by any information concerning the Company that is not set forth in the Prospectus.
(i) The Selling Stockholder has not incurred any liability for a fee, commission or other compensation on account of the Company’s internal policies regarding the sale employment of stock by its affiliates. Any certificate signed by any officer of any Selling Stockholder and delivered to the Underwriter a broker or counsel for the Underwriter finder in connection with the offering of the Shares shall be deemed a representation and warranty transactions contemplated by such Selling Stockholder, this Agreement other than as to matters covered thereby, to the Underwritercontemplated hereby.
Appears in 1 contract
Representations and Warranties of the Selling Stockholders. Each of the Selling Stockholder, severally and not jointly, Stockholders hereby represents and warrants thatto each Underwriter as of the date hereof, as of the Firm Shares Closing Date and as of each Option Shares Closing Date (if any) as follows:
(a) Neither such Each Selling Stockholder nor any person acting on behalf has caused certificates for the number of such Selling Stockholder (other than, if applicable, the Company and the Underwriter) has used or referred to any “free writing prospectus” (as defined in Rule 405), relating to the Shares.
(b) Such Selling Stockholder has, and immediately prior to the Closing Date on which such Selling Stockholder is selling the Shares, such 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 (the “UCC”) in respect of, the Shares to be sold by such Selling Stockholder hereunder (except with respect to Shares to be issued upon exercise of Stock Options) to be delivered to American Stock Transfer & Trust Company (the "Custodian"), endorsed in blank or with blank stock powers duly executed, with a signature appropriately guaranteed, such certificates to be held in custody by the Custodian for delivery, pursuant to the provisions of this Agreement and an agreement dated January ___, 2006 among the Custodian and the Selling Stockholders substantially in the form attached hereto as Exhibit B (the "Custody Agreement"). The Stock Options, if any, to be exercised by each Selling Stockholder in connection with the transactions contemplated by the relevant Custody Agreement, the relevant Power of Attorney and this Agreement have been duly granted to, are fully vested and may be exercised by, such Selling Stockholder in accordance with the Plans. Each Selling Stockholder has deposited the requisite number of certificates and/or Stock Options representing its respective portion of the Shares allowing such Selling Stockholder to fulfill its obligations pursuant to the terms of this Agreement.
(b) Each Selling Stockholder has granted an irrevocable power of attorney substantially in the form attached hereto as Exhibit C (the "Power of Attorney") to the person named therein, on behalf of each such Closing Date free Selling Stockholder, to execute and clear of all liens, encumbrances, equities deliver this Agreement and any other document necessary or claimsdesirable in connection with the transactions contemplated hereby and to deliver the shares to be sold by each the Selling Stockholder pursuant hereto.
(c) Upon payment for This Agreement, the Shares to be sold by such Selling StockholderCustody Agreement, delivery the Power of such Shares, as directed by the Underwriter, to Cede & Co. (“Cede”) or such other nominee as may be designated by The Depository Trust Company (“DTC”), registration of such Shares in the name of Cede or such other nominee Attorney and the crediting of such Shares on the books of DTC to securities accounts of the Underwriter (assuming that neither DTC nor the Underwriter has notice of any adverse claim (within the meaning of Section 8Lock-105 of the UCC) to such Shares), (i) DTC shall be a “protected purchaser” of such Shares within the meaning of Section 8-303 of the UCC, (ii) under Section 8-501 of the UCC, the Underwriter will acquire a valid security entitlement in respect of such Shares and (iii) no action based on any “adverse claim,” within the meaning of Section 8-102 of the UCC, to such Shares may be asserted against the Underwriter with respect to such security entitlement. For purposes of this representation, such Selling Stockholder may assume that when such payment, delivery and crediting occur, (A) such Shares will Up Agreement 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, (B) DTC will be registered as a “clearing corporation” within the meaning of Section 8-102 of the UCC and (C) appropriate entries to the accounts of the Underwriter on the records of DTC will have been made pursuant to the UCC.
(d) Such Selling Stockholder has full right, power and authority, corporate or otherwise, to enter into this Agreement.
(e) This Agreement has been duly and validly authorized, executed and delivered by or on behalf of each Selling Stockholder and, assuming due authorization, execution and delivery by the other parties thereto, constitutes the valid and legally binding agreement of each Selling Stockholder, enforceable against each such Selling StockholderStockholder in accordance with its terms, except as such enforceability may be limited by applicable bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium and other similar laws affecting the enforcement of creditors' rights generally and by general equitable principles.
(fd) The execution, execution and delivery and performance by each Selling Stockholder of this Agreement and the performance by each Selling Stockholder of its obligations under this Agreement, including the sale and delivery of the Shares to be sold by each such Selling Stockholder and the consummation by such Selling Stockholder of the transactions contemplated hereby herein and thereby compliance by each Selling Stockholder with its obligations hereunder, do not and will not not, whether with our without the giving of notice or the passage of time or both, (i) violate or contravene any provision of the charter or bylaws or other organizational instrument of any Selling Stockholder, if applicable, or any applicable law, statute, regulation, or filing or any agreement or other instrument binding upon any Selling Stockholder or any judgment, order or decree of any governmental body, agency or court having jurisdiction over any Selling Stockholder, (ii) conflict with or result in constitute a breach or violation of any of the terms or provisions of, or constitute a default under, or result in the creation or imposition of any indenturetax, mortgagelien, deed charge or encumbrance upon the shares to be sold by any Selling Stockholder or any property or assets of trust, loan agreement, license or other any Selling Stockholder pursuant to the terms of any agreement or instrument to which such any Selling Stockholder is a party or by which such any Selling Stockholder is may be bound or to which any of the property or assets of such any Selling Stockholder is subject, (ii) result in any violation of the provisions of the charter or by-laws or deed of trust (or similar organizational documents) of such Selling Stockholder, subject or (iii) result in require any violation consent, approval, authorization or order of any statute or any order, rule registration or regulation of filing with any court or governmental agency or body having jurisdiction over it, except such as may be required by the blue sky laws of the various states in connection with the offer and sale of the Shares which have been or will be effected in accordance with this Agreement.
(e) Each Selling Stockholder has, and on the Firm Shares Closing Date and the Option Share Closing Date, if applicable, 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, except as otherwise described in the property or assets of Registration Statement and Prospectus.
(f) Each Selling Stockholder has, and on the Firm Shares Closing Date and the Option Share Closing Date, if applicable, will have, full legal right, power and authority, and any approval required by law, to sell, assign, transfer and deliver the Shares to be sold by such Selling StockholderStockholder in the manner provided by this Agreement.
(g) No consent, approval, authorization or order of, or filing or registration with, any court or governmental agency or body having jurisdiction over such Upon delivery of and payment for the Shares to be sold by each Selling Stockholder pursuant to this Agreement, assuming each Underwriter has no notice of any adverse claim, the several Underwriters will receive valid and marketable title to such Shares free and clear of any lien, claim, mortgage, pledge, security interest or the property or assets of such Selling Stockholder is required for the execution, delivery and performance of this Agreement by such Selling Stockholder and the consummation by such Selling Stockholder of the transactions contemplated hereby and thereby, except for the registration of the Shares under the Securities Act and such consents, approvals, authorizations, registrations or qualifications as may be required under the Exchange Act and applicable state securities laws in connection with the purchase and sale of the Shares by the Underwriterother encumbrance.
(h) All material information with respect relating to each Selling Stockholder furnished in writing by such Selling Stockholder contained expressly for use in each of the Registration Statement, the Statement and Prospectus and the Pricing Disclosure Package (as amended and supplemented, if the Company shall have filed with the Commission any amendment or supplement thereto) (i) complied and will comply in all material respects with all applicable provisions of the Securities Act and the Rules and Regulations, (ii) contains and will contain all statements of material fact required to be stated therein in accordance with the Securities Act and the Rules and Regulationsis, and (iii) on each Closing Date will be, true, correct, and complete, and does not not, and on each Closing Date will not not, contain an any untrue statement of a material fact or omit to state any material fact necessary to make such information not misleading.
(i) Each Selling Stockholder has reviewed the Registration Statement, the Prospectus and any Issuer Free Writing Prospectus and, although such Selling Stockholder has not independently verified the accuracy or completeness of all the information contained therein, nothing has come to the attention of such Selling Stockholder that would lead such Selling Stockholder to believe that (i) on the Effective Date, the Registration Statement contained any untrue statement of a material fact or omitted to state any material fact required to be stated therein or necessary in order to make the statements made therein not misleading; (ii) on the Effective Date the Prospectus, any amendment thereof or supplement thereto contained and, on each Closing Date contains, any untrue statement of a material fact or omitted or omits to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading; or (iii) as of the Applicable Time, either the General Disclosure Package or any individual Issuer Free Writing Prospectus, when considered together with the General Disclosure Package, included any untrue statement of any material fact or omitted to state a material fact required to be stated therein or necessary in order to make the statements therein therein, in light of the circumstances under which they were made, not misleading. Solely with respect to Except for the Metalmark free writing prospectuses, if any, identified in Schedule V hereto, no Selling Stockholder or group of Selling Stockholders has prepared, used or referred to, nor will, without the prior consent of the Representatives, prepare, use or refer to, any free writing prospectus.
(as defined in Schedule I hereto), such j) The sale of Shares by each Selling Stockholder pursuant to this Agreement is not prompted to sell the Shares by such Selling Stockholder's knowledge of any material non-public information relating to the business, results of operations or prospects of concerning the Company and its subsidiaries of an adverse nature that which is required to be disclosed not set forth in the Registration Statement, the Pricing Disclosure Package or the Prospectus. For this purpose, information that is set forth or incorporated by reference in the Registration Statement, the Pricing Disclosure Package or the Prospectus or that otherwise has been made publicly available about the Company shall be deemed to be public information, and any opinion or conclusion that a Metalmark Selling Stockholder may hold, or analysis performed by a Metalmark Selling Stockholder, in its capacity as an investor about the business, results of operations or prospects of the Company and its subsidiaries shall not be information that relates to the business, results of operations or prospects of the Company.
(ik) Such No Selling Stockholder has not taken and will not taketaken, directly or indirectly, any action that is designed to or that has constituted or that could might reasonably be expected to cause or result in the stabilization or manipulation of the price of any security of the Company to facilitate the sale or resale of the Shares.
(jl) The sale representations and warranties of the Shares by such each Selling Stockholder does not violate any of in the Company’s internal policies regarding the sale of stock by its affiliates. Any certificate signed by any officer of any Selling Stockholder Custody Agreement are, and delivered to the Underwriter or counsel for the Underwriter in connection with the offering of the Shares shall be deemed a representation on each Closing Date will be, true and warranty by such Selling Stockholder, as to matters covered thereby, to the Underwritercorrect.
Appears in 1 contract
Representations and Warranties of the Selling Stockholders. Each Selling Stockholder, Stockholder severally (but only as to itself and not jointly, as to any other Selling Stockholder) represents and warrants to, and agrees with, each of the Underwriters as of the date hereof and as of the Closing Date and each Additional Closing Date that:
(a) Neither such Selling Stockholder nor any person acting on behalf of such Selling Stockholder (other than, if applicable, the Company and the Underwriter) has used or referred to any “free writing prospectus” (as defined in Rule 405), relating to the Shares.
(b) Such Selling Stockholder has, and immediately prior to the Closing Date on which such Selling Stockholder is selling the Shares, such 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 (the “UCC”) in respect of, the Shares to be sold by such Selling Stockholder hereunder on such Closing Date free and clear of all liens, encumbrances, equities or claims.
(c) Upon payment for the Shares to be sold by such Selling Stockholder, delivery of such Shares, as directed by the Underwriter, to Cede & Co. (“Cede”) or such other nominee as may be designated by The Depository Trust Company (“DTC”), registration of such Shares in the name of Cede or such other nominee and the crediting of such Shares on the books of DTC to securities accounts of the Underwriter (assuming that neither DTC nor the Underwriter has notice of any adverse claim (within the meaning of Section 8-105 of the UCC) to such Shares), (i) DTC shall be a “protected purchaser” of such Shares within the meaning of Section 8-303 of the UCC, (ii) under Section 8-501 of the UCC, the Underwriter will acquire a valid security entitlement in respect of such Shares and (iii) no action based on any “adverse claim,” within the meaning of Section 8-102 of the UCC, to such Shares may be asserted against the Underwriter with respect to such security entitlement. For purposes of this representation, such Selling Stockholder may assume that when such payment, delivery and crediting occur, (A) such Shares will have been registered in the name of Cede or another nominee designated by DTC, in each case on the Company’s share registry in accordance with its certificate of incorporation, bylaws and applicable law, (B) DTC will be registered as a “clearing corporation” within the meaning of Section 8-102 of the UCC and (C) appropriate entries to the accounts of the Underwriter on the records of DTC will have been made pursuant to the UCC.
(d) Such Selling Stockholder has full right, power and authority, corporate or otherwiseauthority to execute and deliver this Agreement, to enter into perform its obligations hereunder and to consummate the transactions of such Selling Stockholder contemplated by this Agreement. This Agreement and the transactions contemplated by this Agreement have been duly and validly authorized by such Selling Stockholder. This Agreement has been duly and validly executed and delivered by such Selling Stockholder and constitutes the legal, valid and binding obligation of such Selling Stockholder, enforceable in accordance with its terms, except as enforceability may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or similar laws affecting creditors' rights generally and except as enforceability may be subject to general principles of equity (regardless of whether such enforceability is considered in a proceeding in equity or at law).
(b) Such Selling Stockholder has full right, power and authority to execute and deliver a Custody Agreement and Power of Attorney substantially in the form of Exhibits B and C hereto (such Selling Stockholder's "Custody Agreement" and "Power of Attorney", respectively), to perform its obligations thereunder and to consummate the transactions of such Selling Stockholder contemplated thereby. The Custody Agreement and Power of Attorney and the transactions contemplated thereby have been duly and validly authorized by such Selling Stockholder. The Custody Agreement and Power of Attorney have each been duly and validly executed and delivered by such Selling Stockholder and constitute the legal, valid and binding obligation of such Selling Stockholder, enforceable in accordance with its terms, except as enforceability may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or similar laws affecting creditors' rights generally and except as enforceability may be subject to general principles of equity (regardless of whether such enforceability is considered in a proceeding in equity or at law). Counterparts of such Selling Stockholder's Custody Agreement, duly signed by (i) Continental Stock Transfer & Trust Company, as custodian (in such capacity, the "Custodian") and (ii) Xx. Xxxxxx X. Nimmo and D.J. Xxxx X. Xxxxx, as such Selling Stockholder's attorneys-in-fact (in such capacity, the "Attorney-In-Fact") have been delivered to the Company and Bear, Xxxxxxx & Co. Inc. on or prior to the date of this Agreement.
(c) Such Selling Stockholder agrees that the Shares and Additional Shares, if any, to be sold by such Selling Stockholder, whether or not on deposit with the Custodian, are subject to the interests of the Underwriters, that the arrangements made for such custody are, subject to the terms of the Custody Agreement, irrevocable, and that the obligations of such Selling Stockholder hereunder shall not be terminated, except as provided in this Agreement or in the Custody Agreement and Power of Attorney, by any act of such Selling Stockholder, by operation of law or by the occurrence of any other event. If such Selling Stockholder should die or become incapacitated, or if any other event should occur impacting the legal status or capacity of such Selling Stockholder, before the delivery of the Shares and the Additional Shares, if any, to be sold by such Selling Stockholder hereunder, the documents evidencing the Shares and the Additional Shares, if any, to be sold by such Selling Stockholder then on deposit with the Custodian shall be delivered by the Custodian in accordance with the terms and conditions of this Agreement as if such event had not occurred, regardless of whether or not the Custodian shall have received notice thereof.
(d) Such Selling Stockholder is (or upon the exercise of options prior to the Closing Date will be) the lawful owner of the Shares and Additional Shares, if any, to be sold by such Selling Stockholder hereunder and upon sale and delivery of, and payment for, such Shares and Additional Shares as provided herein, such Selling Stockholder will convey to the Underwriters good and marketable title to such Shares and Additional Shares, free and clear of all voting trust arrangements, pledges, liens, encumbrances, equities, claims and security interests whatsoever. Certificates for all of the Shares to be sold by such Selling Stockholder pursuant to this Agreement, in suitable form for transfer by delivery or accompanied by duly executed instruments of transfer or assignment in blank with signatures guaranteed, have been placed in custody with the Custodian with irrevocable conditional instructions to deliver such Shares to the Underwriters pursuant to this Agreement.
(e) This Such Selling Stockholder has full legal right and power, and all authorizations and approvals required by law, to enter into this Agreement has and the applicable Custody Agreement and Power of Attorney, to sell, transfer and deliver all of the Shares and Additional Shares which may be sold by such Selling Stockholder pursuant to this Agreement and to comply with such Selling Stockholder's other obligations hereunder and thereunder.
(f) No Consent of, from or with any judicial, regulatory or other legal or governmental agency or body or any third party, foreign or domestic, is required for the execution, delivery and performance by such Selling Stockholder of this Agreement or its Custody Agreement and Power of Attorney, or consummation by such Selling Stockholders of the transactions of such Selling Stockholder contemplated herein or therein, except such as have been duly obtained under the Securities Act and validly authorizedsuch as may be required under the state securities laws, executed the blue sky laws of any jurisdiction or the by-laws and delivered by rules of the National Association of Securities Dealers, Inc. or on behalf NASD Regulation, Inc. in connection with the purchase and distribution of such Selling Stockholder's Shares and such Selling Stockholder's Additional Shares, if any, by the Underwriters.
(fg) The execution, delivery and performance of this Agreement, the Power of Attorney and the Custody Agreement by such Selling Stockholder and consummation of any of the consummation other transactions of such Selling Stockholder contemplated herein and therein by such Selling Stockholder or the fulfillment of the transactions contemplated hereby and thereby do not and terms hereof by such Selling Stockholder will not (iA) conflict with or with, result in a breach or violation of any of the terms or provisions of, or constitute a default (or an event that with notice or lapse of time, or both, would constitute a default) under, or result in the creation or imposition of any indenturelien, mortgagecharge or encumbrance upon any property or assets of such Selling Stockholder pursuant to any law, deed statute, rule or regulation or the terms of trust, loan agreement, license any indenture or other agreement or instrument to which such Selling Stockholder is a party or by which such Selling Stockholder is bound bound, or to which any of the property or assets of such Selling Stockholder is subject, or (iiB) result in any violation of the provisions of the any charter or by-laws bylaws or deed certificate of formation, trust (agreement, partnership agreement, articles of partnership or similar other organizational documents) , as applicable, of such Selling Stockholder, or (iii) result in any violation of any statute or any judgment, order, decree statute, rule or regulation applicable to such Selling Stockholder of any court or any public, governmental or regulatory agency or body body, administrative agency or arbitrator having jurisdiction over such Selling Stockholder or the property or assets of such Selling Stockholder.
(gh) No consentSuch 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 the offering of the Shares and the Additional Shares, approval, authorization except for such rights as have been waived (which waiver remains in full force and effect) or order ofwhich are described in the Prospectus (and which have been complied with).
(i) Such Selling Stockholder does not have, or filing or registration withhas waived prior to the date hereof (which waiver remains in full force and effect), any court preemptive right, co-sale right or governmental agency right of first refusal or body having jurisdiction over other similar right to purchase any of the Shares that are to be sold by the Company or any other Selling Stockholder to the Underwriters pursuant to this Agreement.
(j) Except as disclosed in the Prospectus, there are no contracts, agreements or understandings between such Selling Stockholder and any person that would give rise to a valid claim against the Company or the property any Underwriter for a brokerage commission, finder's fee or assets other like payment in connection with this offering.
(k) All information furnished by or on behalf of such Selling Stockholder is required in writing for use in the execution, delivery and performance of this Agreement by such Selling Stockholder Registration Statement and the consummation by such Selling Stockholder of the transactions contemplated hereby Prospectus is true, correct and thereby, except for the registration of the Shares under the Securities Act and such consents, approvals, authorizations, registrations or qualifications as may be required under the Exchange Act and applicable state securities laws in connection with the purchase and sale of the Shares by the Underwriter.
(h) All material information with respect to such Selling Stockholder contained in each of the Registration Statement, the Prospectus and the Pricing Disclosure Package (as amended and supplemented, if the Company shall have filed with the Commission any amendment or supplement thereto) (i) complied and will comply complete in all material respects with all applicable provisions of the Securities Act and the Rules and Regulations, (ii) contains and will contain all statements of material fact required to be stated therein in accordance with the Securities Act and the Rules and Regulations, and (iii) does not and will not contain an 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. Solely with respect to the Metalmark Selling Stockholders (as defined in Schedule I hereto), such Selling Stockholder is not prompted to sell the Shares by any material non-public information relating to the business, results of operations or prospects of the Company and its subsidiaries of an adverse nature that is required to be disclosed in the Registration Statement, the Pricing Disclosure Package or the Prospectus. For this purpose, information that is set forth or incorporated by reference in the Registration Statement, the Pricing Disclosure Package or the Prospectus or that otherwise has been made publicly available about the Company shall be deemed to be public information, and any opinion or conclusion that a Metalmark Selling Stockholder may hold, or analysis performed by a Metalmark Selling Stockholder, in its capacity as an investor about the business, results of operations or prospects of the Company and its subsidiaries shall not be information that relates to the business, results of operations or prospects of the Companyfact.
(il) Such Selling Stockholder has not taken and will not take, directly or indirectly, any action that is designed to to, or that has constituted or that could might be reasonably be expected to to, cause or result in the stabilization or manipulation of the price of any security of the Company Common Stock to facilitate the sale or resale of the Shares or Additional Shares, if any.
(jm) The Such Selling Stockholder has not distributed and will not distribute, prior to the later of the Additional Closing Date, if any, and the completion of the Underwriters' distribution of the Shares, any offering material in connection with the offering and sale of the Shares and the Additional Shares, if any, by the Selling Stockholders other than a Preliminary Prospectus, the Prospectus or the Registration Statement.
(n) The representations and warranties of such Selling Stockholder does not violate any in its Custody Agreement and Power of the Company’s internal policies regarding the sale of stock by its affiliatesAttorney are true and correct. Any certificate signed by any officer or on behalf of any the Selling Stockholder and delivered to the Underwriter Representatives or to counsel for the Underwriter in connection with the offering of the Shares Underwriters shall be deemed to be a representation and warranty by such Selling Stockholder, Stockholder to each Underwriter as to the matters covered thereby, to the Underwriter.
Appears in 1 contract
Samples: Underwriting Agreement (Inveresk Research Group Inc)
Representations and Warranties of the Selling Stockholders. Each Selling Stockholder, severally and not jointly, hereby represents and warrants thatto each Underwriter as of the date hereof, and as of the Firm Shares Closing Date, as follows:
(a) Neither Such Selling Stockholder has caused certificates for the number of Shares to be sold by such Selling Stockholder nor any person acting on behalf of such Selling Stockholder hereunder to be delivered to Registrar and Transfer Company (other than, if applicable, the Company and the Underwriter) has used or referred to any “free writing prospectus” (as defined in Rule 405Custodian”), relating endorsed in blank or with blank stock powers duly executed, with a signature appropriately guaranteed, such certificates to be held in custody by the SharesCustodian for delivery.
(b) Such Selling Stockholder hasThis Agreement, the Custody Agreement and immediately prior to the Closing Date on which Irrevocable Power of Attorney signed by such Selling Stockholder is selling and the Shares, such Selling Stockholder will have, good and valid title Custodian relating to or a valid “security entitlement” within the meaning deposit of Section 8-501 of the New York Uniform Commercial Code (the “UCC”) in respect of, the Shares to be sold by such Selling Stockholder hereunder on such Closing Date free and clear of all liens, encumbrances, equities or claims.
(c) Upon payment for the Shares to be sold by appointing certain individuals as such Selling Stockholder’s attorneys-in-fact (the “Attorneys-in-Fact”) to the extent set forth therein, delivery of such Shares, as directed relating to the transactions contemplated hereby and by the Underwriter, to Cede & Co. Registration Statement (the “CedeCustody Agreement”) or such other nominee as may be designated by The Depository Trust Company (“DTC”), registration of such Shares in the name of Cede or such other nominee and the crediting of such Shares on the books of DTC to securities accounts of the Underwriter (assuming that neither DTC nor the Underwriter has notice of any adverse claim (within the meaning of Section 8Lock-105 of the UCC) to such Shares), (i) DTC shall be a “protected purchaser” of such Shares within the meaning of Section 8-303 of the UCC, (ii) under Section 8-501 of the UCC, the Underwriter will acquire a valid security entitlement in respect of such Shares and (iii) no action based on any “adverse claim,” within the meaning of Section 8-102 of the UCC, to such Shares may be asserted against the Underwriter with respect to such security entitlement. For purposes of this representation, such Selling Stockholder may assume that when such payment, delivery and crediting occur, (A) such Shares will Up Agreement 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, (B) DTC will be registered as a “clearing corporation” within the meaning of Section 8-102 of the UCC and (C) appropriate entries to the accounts of the Underwriter on the records of DTC will have been made pursuant to the UCC.
(d) Such Selling Stockholder has full right, power and authority, corporate or otherwise, to enter into this Agreement.
(e) This Agreement has been duly and validly authorized, executed and delivered by or on behalf of such Selling Stockholder and, assuming due authorization, execution and delivery by the other parties thereto, each constitutes the valid and legally binding agreement of such Selling Stockholder, enforceable against such Selling Stockholder in accordance with its terms. Each of the Selling Stockholders specifically agrees that the Shares represented by the certificates held in custody for such Selling Stockholder under the Custody Agreement, are subject to the interests of the Underwriters hereunder, and that the arrangements made by such Selling Stockholder for such custody, and the appointment by such Selling Stockholder of the Attorneys-in-Fact by the Power of Attorney, are to that extent irrevocable. Each of the Selling Stockholders specifically agrees that the obligations of such Selling Stockholder hereunder shall not be terminated by operation of law, whether by the death or incapacity of any individual Selling Stockholder, or, in the case of an estate or trust, by the death or incapacity of any executor or trustee or the termination of such estate or trust, or in the case of a partnership, corporation or similar organization, by the dissolution of such partnership, corporation or organization, or by the occurrence of any other event. If any individual Selling Stockholder or any such executor or trustee should die or become incapacitated, or if any such estate or trust should be terminated, or if any such partnership, corporation or similar organization should be dissolved, or if any other such event should occur, before the delivery of the Shares hereunder, certificates representing such Shares shall be delivered by or on behalf of such Selling Stockholder in accordance with the terms and conditions of this Agreement and the Custody Agreement, and actions taken by the Attorneys-in-Fact pursuant to the Powers of Attorney shall be as valid as if such death, incapacity, termination, dissolution or other event had not occurred, regardless of whether or not the Custodian, the Attorneys-in-Fact, or any of them, shall have received notice of such death, incapacity, termination, dissolution or other event.
(fc) The executionexecution and delivery by such Selling Stockholder of, delivery and the performance by such Selling Stockholder of its obligations under, each of this Agreement and the Custody Agreement, including the sale and delivery of the Shares to be sold by such Selling Stockholder and the consummation of the transactions contemplated herein and therein and compliance by such Selling Stockholder of the transactions contemplated hereby with its obligations hereunder and thereby thereunder, do not and will not not, whether with our without the giving of notice or the passage of time or both, (i) violate or contravene any provision of the charter or bylaws or other organizational instrument of such Selling Stockholder, if applicable, or any applicable law, statute, regulation, or filing 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, (ii) conflict with or result in constitute a breach or violation of any of the terms or provisions of, or constitute a default under, or result in the creation or imposition of any indenturetax, mortgagelien, deed charge or encumbrance upon the Shares to be sold by such Selling Stockholder or any property or assets of trust, loan agreement, license or other such Selling Stockholder pursuant to the terms of any agreement or instrument to which such Selling Stockholder is a party or by which such Selling Stockholder is may be bound or to which any of the property or assets of such Selling Stockholder is subject, (ii) result in any violation of the provisions of the charter or by-laws or deed of trust (or similar organizational documents) of such Selling Stockholder, subject or (iii) result in require any violation consent, approval, authorization or order of any statute or any order, rule registration or regulation of 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.
(d) Such Selling Stockholder has good and valid title to the Shares to be sold at the Firm Shares Closing Date by such Selling Stockholder hereunder, free and clear of all liens, encumbrances, equities or adverse claims; such Selling Stockholder will have, immediately prior to the property or assets of Firm Shares Closing Date good and valid title to the Shares to be sold at the Firm Shares Closing Date by such Selling Stockholder, free and clear of all liens, encumbrances, equities or adverse claims; and, upon delivery of the certificates representing such Shares 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 several Underwriters.
(e) Such Selling Stockholder has, and on the Firm Shares Closing Date will have, full legal right, power and authority, and any approval required by law, to sell, assign, transfer and deliver the Shares to be sold by such Selling Stockholder in the manner provided by this Agreement.
(f) All information relating to such Selling Stockholder furnished in writing by such Selling Stockholder expressly for use in the Registration Statement, the General Disclosure Package, the Prospectus and any Issuer Free Writing Prospectus is, and on each Closing Date will be, true, correct, and complete, and does not, and on each Closing Date will not, contain any untrue statement of a material fact or omit to state any material fact necessary to make such information not misleading.
(g) No consent, approval, authorization or order of, or filing or registration with, any court or governmental agency or body having jurisdiction over such Such Selling Stockholder or the property or assets of such Selling Stockholder is required for the execution, delivery and performance of this Agreement by such Selling Stockholder and the consummation by such Selling Stockholder of the transactions contemplated hereby and thereby, except for the registration of the Shares under the Securities Act and such consents, approvals, authorizations, registrations or qualifications as may be required under the Exchange Act and applicable state securities laws in connection with the purchase and sale of the Shares by the Underwriter.
(h) All material information with respect to such Selling Stockholder contained in each of has reviewed the Registration Statement, the General Disclosure Package, the Prospectus and any Issuer Free Writing Prospectus and, although such Selling Stockholder has not independently verified the Pricing Disclosure Package (as amended and supplementedaccuracy or completeness of all the information contained therein, if nothing has come to the Company shall have filed with the Commission any amendment or supplement thereto) attention of such Selling Stockholder that would lead such Selling Stockholder to believe that (i) complied and will comply in all on the Effective Date, the Registration Statement contained any untrue statement of a material respects with all applicable provisions of the Securities Act and the Rules and Regulations, (ii) contains and will contain all statements of fact or omitted to state any material fact required to be stated therein in accordance with order to make the Securities Act and statements made therein not misleading, (ii) on the Rules and RegulationsEffective Date the Prospectus contained and, and (iii) does not and will not contain an on each Closing Date contains, any untrue statement of a material fact or omit omitted or omits to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, misleading. and (iii) as of the Applicable Time, the General Disclosure Package, or any individual Issuer Free Writing Prospectus, when considered together with the General Disclosure Package, included any untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary in order to make the statements therein therein, in the light of the circumstances under which they were made, not misleading. Solely with respect ; provided, however, that this Section 3(g) shall not apply to the Metalmark Selling Stockholders United Jewish Foundation of Metropolitan Detroit and the representation provided in this Section 3(g) shall be given only by Xxxxxxx Xxxxxx and Xxxxxx Properties Group, LLC.
(as defined in Schedule I hereto), h) The sale of Shares by such Selling Stockholder pursuant to this Agreement is not prompted to sell the Shares by such Selling Stockholder’s knowledge of any material non-public information relating to the business, results of operations or prospects of concerning the Company and or any of its subsidiaries of an adverse nature that which is required to be disclosed not set forth in the Registration Statement, the Pricing Disclosure Package or the Prospectus. For this purpose, information that is set forth or incorporated by reference in the Registration Statement, the Pricing Disclosure Package or the Prospectus or that otherwise has been made publicly available about the Company shall be deemed to be public information, and any opinion or conclusion that a Metalmark Selling Stockholder may hold, or analysis performed by a Metalmark Selling Stockholder, in its capacity as an investor about the business, results of operations or prospects of the Company and its subsidiaries shall not be information that relates to the business, results of operations or prospects of the Company.
(i) Such Selling Stockholder has not taken and will not take, directly or indirectly, any action that is designed to or that has constituted or that could might reasonably be expected to cause or result in the stabilization or manipulation of the price of any security of the Company to facilitate the sale or resale of the Shares.
(j) The sale Such Selling Stockholder has no actual knowledge that any representation or warranty of the Shares by such Company set forth in Section 2 above is untrue or inaccurate in any material respect.
(k) Such Selling Stockholder does has not violate prepared, used or referred to, nor will it prepare, use or refer to, any “free writing prospectus” (as defined in Rule 405 of the Company’s internal policies regarding the sale of stock by its affiliates. Any certificate signed by any officer of any 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 such Selling Stockholder, as to matters covered thereby, to the UnderwriterRules).
Appears in 1 contract
Representations and Warranties of the Selling Stockholders. Each Selling Stockholder, severally and not jointly, represents and warrants to each Underwriter that:
(a) Neither Such Selling Stockholder is the lawful owner of the Additional Shares (or security entitlements with respect thereof) to be sold by such Selling Stockholder nor any person acting on behalf of such Selling Stockholder (other than, if applicable, the Company pursuant to this Agreement and the Underwriter) has used or referred to any “free writing prospectus” (as defined in Rule 405), relating to the Shares.
(b) Such Selling Stockholder has, and immediately prior to on the Option Closing Date on which such Selling Stockholder is selling the Shares, such Selling Stockholder will have, good and valid clear title to such Additional Shares (or a valid “security entitlement” within entitlements with respect thereof), free of all restrictions on transfer, liens, encumbrances, security interests, equities and claims whatsoever;
(b) To the meaning of Section 8-501 knowledge of the New York Uniform Commercial Code (the “UCC”) in respect ofSelling Shareholder, the Additional Shares to be sold by such Selling Stockholder hereunder on such Closing Date free have been duly authorized and clear of all liensare validly issued, encumbrances, equities or claimsfully paid and non-assessable.
(c) Upon payment for Such Selling Stockholder has, and on the Option Closing Date will have, full legal right, power and authority, and all authorization and approval required by law, to enter into this Agreement and to sell, assign, transfer and deliver the Additional Shares to be sold by such Selling Stockholder, delivery of such Shares, as directed by the Underwriter, to Cede & Co. (“Cede”) or such other nominee as may be designated by The Depository Trust Company (“DTC”), registration of such Shares Stockholder in the name of Cede or such other nominee and the crediting of such Shares on the books of DTC to securities accounts of the Underwriter (assuming that neither DTC nor the Underwriter has notice of any adverse claim (within the meaning of Section 8-105 of the UCC) to such Shares), (i) DTC shall be a “protected purchaser” of such Shares within the meaning of Section 8-303 of the UCC, (ii) under Section 8-501 of the UCC, the Underwriter will acquire a valid security entitlement in respect of such Shares and (iii) no action based on any “adverse claim,” within the meaning of Section 8-102 of the UCC, to such Shares may be asserted against the Underwriter with respect to such security entitlement. For purposes of this representation, such Selling Stockholder may assume that when such payment, delivery and crediting occur, (A) such Shares will have been registered in the name of Cede or another nominee designated by DTC, in each case on the Company’s share registry in accordance with its certificate of incorporation, bylaws and applicable law, (B) DTC will be registered as a “clearing corporation” within the meaning of Section 8-102 of the UCC and (C) appropriate entries to the accounts of the Underwriter on the records of DTC will have been made pursuant to the UCCmanner provided herein.
(d) Such Selling Stockholder has full right, power and authority, corporate or otherwise, to enter into this Agreement.
(e) This Agreement has been duly and validly authorized, executed and delivered by or on behalf of such Selling Stockholder.
(e) upon payment for the Additional Shares to be sold by each selling Stockholder pursuant to this Agreement, and the deposit of such Additional Shares registered in the name of Cede & Co. or such other nominee designated by the Depository Trust Company ("DTC"), both as provided for in this Agreement, and the crediting of the Underwriters accounts with DTC, Cede & Co. or such other nominee designated by DTC, (A) DTC will be a "protected purchaser" of the Additional Shares (as defined in Section 8-303 of the Uniform Commercial Code as adopted in the State of New York (the "CODE")), (B) the Underwriters will acquire a valid "security entitlement" (within the meaning of Section 8-501 of the Code) to the Additional Shares, and (C) no action based on an "adverse claim" (as defined in Section 8-102 of the Code) may be asserted against the Underwriters with respect to such security entitlement (assuming that the Underwriters are without notice of any such adverse claim).
(f) The execution, delivery and performance of this Agreement by or on behalf of such Selling Stockholder and Stockholder, the consummation compliance by such Selling Stockholder with all the provisions hereof and the consummation of the transactions contemplated hereby and thereby do not and 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 or from the National Association of Securities Dealers, Inc.), (ii) conflict with or result in constitute a breach or violation of any of the terms or provisions of, or constitute a default under, the organizational documents of such Selling Stockholder, if such Selling Stockholder is not an individual, or any indenture, mortgage, deed of trust, loan agreement, license mortgage, lease or other agreement or instrument to which such Selling Stockholder is a party or by which such Selling Stockholder is bound or to which any of the property or assets of such Selling Stockholder is subject, (ii) result in any violation of the provisions of the charter or by-laws or deed of trust (or similar organizational documents) of such Selling Stockholder, bound or (iii) result in violate or conflict with any violation of any statute applicable law or any orderrule, rule regulation, judgment, order or regulation decree of any court or any governmental body or agency or body having jurisdiction over such Selling Stockholder or the any property or assets of such Selling Stockholder.
(g) No consent, approval, authorization or order of, or filing or registration with, any court or governmental agency or body having jurisdiction over such Selling Stockholder or The information in the property or assets of such Selling Stockholder is required for the execution, delivery and performance of this Agreement by such Selling Stockholder and the consummation by such Selling Stockholder of the transactions contemplated hereby and thereby, except for the registration of the Shares Registration Statement under the Securities Act caption "Principal and such consents, approvals, authorizations, registrations or qualifications as may be required under the Exchange Act and applicable state securities laws in connection with the purchase and sale of the Shares by the Underwriter.
(h) All material information with respect Selling Stockholders" that specifically relates to such Selling Stockholder contained in each of the Registration Statementdoes not, the Prospectus and the Pricing Disclosure Package (as amended and supplemented, if the Company shall have filed with the Commission any amendment or supplement thereto) (i) complied and will comply in all material respects with all applicable provisions of the Securities Act and the Rules and Regulations, (ii) contains and will contain all statements of material fact required to be stated therein in accordance with the Securities Act and the Rules and Regulations, and (iii) does not and will not on the Option Closing Date, contain an any untrue statement of a material fact or omit to state a any material fact required to be stated therein or necessary in order to make the statements therein therein, in the light of the circumstances under which they were made, not misleading. Solely with respect .
(h) At any time during the period described in Section 5(d), if there is any change in the information referred to the Metalmark Selling Stockholders (as defined in Schedule I heretoSection 7(G), such Selling Stockholder is not prompted to sell the Shares by any material non-public information relating to the business, results will immediately notify you of operations or prospects of the Company and its subsidiaries of an adverse nature that is required to be disclosed in the Registration Statement, the Pricing Disclosure Package or the Prospectus. For this purpose, information that is set forth or incorporated by reference in the Registration Statement, the Pricing Disclosure Package or the Prospectus or that otherwise has been made publicly available about the Company shall be deemed to be public information, and any opinion or conclusion that a Metalmark Selling Stockholder may hold, or analysis performed by a Metalmark Selling Stockholder, in its capacity as an investor about the business, results of operations or prospects of the Company and its subsidiaries shall not be information that relates to the business, results of operations or prospects of the Companysuch change.
(i) Such Selling Stockholder has not taken and will not take, directly or indirectly, any action that is designed to or that has constituted or that could reasonably be expected to cause or result in the stabilization or manipulation of the price of any security of the Company to facilitate the sale or resale of the Shares.
(j) The sale of the Shares by such Selling Stockholder does not violate any of the Company’s internal policies regarding the sale of stock by its affiliates. Any Each certificate signed by any officer or on behalf of any such Selling Stockholder and delivered to the Underwriter Underwriters or counsel for the Underwriter Underwriters in connection with the offering consummation of the Shares transactions contemplated hereby and dated the date hereof, the Closing Date, or any Option Closing Date shall be deemed to be a representation and warranty by such Selling Stockholder, Stockholder to the Underwriters as to the matters covered thereby, to the Underwriter.
Appears in 1 contract
Samples: Underwriting Agreement (Manufacturers Services LTD)
Representations and Warranties of the Selling Stockholders. Each Selling Stockholder, Stockholder severally and not jointly, represents and warrants to the Underwriters as of the date hereof, the Initial Sale Time and as of the Closing Time, and agrees with each Underwriter, that:
(a) Neither such Selling Stockholder nor any person acting has full power and authority to enter into this Agreement and the Custody Agreement and Power of Attorney to which it is a party. All authorizations and consents necessary for the execution and delivery by such Selling Stockholder of the Custody Agreement and Power of Attorney, and for the execution of this Agreement on behalf of such Selling Stockholder, have been given. Each of the Custody Agreement and Power of Attorney and this Agreement has been duly authorized, executed and delivered by or on behalf of such Selling Stockholder (other thanand constitutes a valid and binding agreement of such Selling Stockholder and is enforceable against such Selling Stockholder in accordance with the terms thereof and hereof, if applicableexcept as may be limited by bankruptcy, the Company insolvency, reorganization, moratorium or similar laws affecting creditors’ rights generally, and the Underwriter) has used or referred to any “free writing prospectus” (as defined in Rule 405)by general equitable principles, relating and except to the Shares.extent that the indemnification and contribution provisions of Section 11 hereof may be limited by federal or state securities laws and public policy considerations in respect thereof;
(b) Such such Selling Stockholder now has, and immediately prior to the Closing Date on which such Selling Stockholder is selling the Shares, such Selling Stockholder Time will have, good and valid title to or (i) a valid “security entitlement” (within the meaning of Section 8-501 of the New York Uniform Commercial Code (the “New York UCC”)) in respect of, of the Shares to be sold by such Selling Stockholder hereunder on such Closing Date hereunder, in each case free and clear of all liens, encumbrancesencumbrances and claims whatsoever (other than pursuant to the Custody Agreement and Power of Attorney, equities or claims.
as applicable), and (cii) full legal power and authority to enter into this Agreement and to sell, transfer and deliver a security entitlement in respect of such Shares to the Underwriters hereunder, and to make the representations, warranties and agreements made by such Selling Stockholder herein. Upon (1) payment for the Shares to be sold by such Selling StockholderStockholder pursuant to this Agreement, (2) delivery of such Shares, as directed by the UnderwriterUnderwriters, to Cede & Co. (“Cede”) Co., or such other nominee as may be designated by The Depository Trust Company DTC, (“DTC”), 3) registration of such Shares in the name of DTC, Cede & Co., or such other nominee and the crediting of nominee, (4) DTC indicating by book entries on its books that security entitlements with respect to such Shares on have been credited to the books of DTC to Underwriters’ securities accounts of accounts, the Underwriter (assuming that neither DTC nor the Underwriter has notice of any adverse claim Underwriters will acquire a valid “security entitlement” (within the meaning of Section 8-105 501 of the New York UCC) with respect to such Shares)Shares and no action based on an “adverse claim” (as defined in Section 8-102 of the New York UCC) may be asserted against the Underwriters with respect to such security entitlement, and (i5) DTC shall be a “protected purchaser” of such Shares within the meaning of Section 8-303 of the UCCNew York UCC (assuming, in each case, that (iiA) under Section 8-501 none of the UCCDTC, the Cede & Co., any such other nominee or any Underwriter will acquire a valid security entitlement in respect have “notice of any adverse claim” to any of such Shares and (iii) no action based on any “adverse claim,” within the meaning of Section 8-102 105 of the New York UCC, to such Shares may be asserted against the Underwriter with respect to such security entitlement. For purposes of this representation, such Selling Stockholder may assume that when such payment, delivery and crediting occur, (A) such Shares will have been registered in the name of Cede or another nominee designated by DTC, in each case on the Company’s share registry in accordance with its certificate of incorporation, bylaws and applicable law, (B) DTC will be registered as a “clearing corporation” within the meaning of Section 8-102 of the UCC UCC, and (C) appropriate entries to the accounts of the Underwriter on the records jurisdiction of DTC will have been made pursuant to the UCC.is New York);
(dc) Such Selling Stockholder has full right, power and authority, corporate or otherwise, to enter into this Agreement.
(e) This Agreement has been duly and validly authorized, executed and delivered by or on behalf of such Selling Stockholder.
(f) The execution, delivery and the performance of this Agreement, the Custody Agreement and the Power of Attorney by such Selling Stockholder and the consummation by such Selling Stockholder of the transactions contemplated hereby herein and thereby do not and therein will not (i) conflict with with, or result in a any breach or violation of any of the terms or provisions of, or constitute a default under (nor constitute any event which with notice, lapse of time, or both would constitute a breach of, or default under), (i) any provision of the certificate or articles of incorporation, other charter or similar constitutive documents, or the bylaws of such Selling Stockholder, (ii) any provision of any license, indenture, mortgage, deed of trust, loan agreement, license or credit agreement or other agreement or instrument to which such Selling Stockholder is a party or by which such Selling Stockholder is it or its properties may be bound or to which any of the property or assets of such Selling Stockholder is subject, (ii) result in any violation of the provisions of the charter or by-laws or deed of trust (or similar organizational documents) of such Selling Stockholder, affected or (iii) under any federal, state, local or foreign law, regulation or rule or any decree, judgment or order applicable to such Selling Stockholder; or result in any violation the creation or imposition of any statute lien, charge, claim or encumbrance upon any orderproperty or asset of the Selling Stockholder (other than pursuant to the Custody Agreement and Power of Attorney, rule as applicable);
(d) no approval, authorization, consent or regulation order of or filing with any court federal, state, local or foreign governmental or regulatory commission, board, body, authority or agency or body having jurisdiction over such Selling Stockholder or the property or assets any of its properties is required in connection with such Selling Stockholder.
(g) No consent, approval, authorization or order of, or filing or registration with, any court or governmental agency or body having jurisdiction over such Selling Stockholder or the property or assets of such Selling Stockholder is required for the ’s execution, delivery and performance of this Agreement by such Selling Stockholder and the Agreement, its consummation by such Selling Stockholder of the transactions contemplated hereby herein, and thereby, except for the registration its sale and delivery of the Shares Shares, other than (i) such as have been obtained, or will have been obtained at the Closing Time under the Securities Act and such consents, approvals, authorizations, registrations or qualifications as may be required under the Exchange Act and applicable state securities laws Act, (ii) such approvals as have been obtained in connection with the purchase and sale approval of the quotation of the Shares on the NYSE and (iii) any necessary qualification under the securities or blue sky laws of the various jurisdictions in which the Shares are being offered by the Underwriter.Underwriters;
(he) All such Selling Stockholder is not prompted to sell Shares by any material information concerning the Company or its Subsidiaries which is not set forth in the Registration Statement, the Disclosure Package and the Prospectus;
(f) all material information with respect to such Selling Stockholder contained in each of the Registration Statement, the Prospectus Disclosure Package and the Pricing Disclosure Package Prospectus (as amended and or supplemented, if the Company shall have filed with the Commission any amendment or supplement thereto) (i) complied as of its effective date and will comply in all material respects with all applicable provisions as of the Securities Act and date hereof, with respect to the Rules and RegulationsRegistration Statement, (ii) contains and will contain all statements on its date, at the time of material fact required filing of the Prospectus pursuant to be stated therein in accordance Rule 424(b), at the Closing Time with respect to the Securities Act and the Rules and RegulationsProspectus, and (iii) does as of the Initial Sale Time, with respect to the Disclosure Package, did not and will not contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary in order to make the statements therein (in the case of the Registration Statement, the Disclosure Package or the Prospectus, in light of the circumstances under which they were made) not misleading. Solely with respect ; provided, however, that this representation and warranty shall only apply to the Metalmark Selling Stockholders (as defined in Schedule I hereto), such Selling Stockholder is not prompted to sell the Shares by any material non-public information relating to the business, results of operations statements or prospects of the Company and its subsidiaries of an adverse nature that is required to be disclosed omissions in the Registration Statement, the Pricing Disclosure Package and the Prospectus made in reliance upon and in conformity with written information furnished by or the Prospectus. For this purpose, information that is set forth or incorporated by reference on behalf of such Selling Stockholder specifically for use in the Registration Statement, the Pricing Disclosure Package or the Prospectus Prospectus, together with any amendment or that otherwise has been made publicly available about supplement thereto used by the Company shall be deemed to be public informationor any Underwriter, as the case may be, it being understood and any opinion agreed that the only such information furnished by or conclusion that a Metalmark on behalf of such Selling Stockholder may hold, or analysis performed by a Metalmark Selling Stockholder, in its capacity as an investor about the business, results of operations or prospects consists of the Company information relating to such Selling Stockholder in the Registration Statement, the Disclosure Package and its subsidiaries shall not be information that relates to the businessProspectus under the heading “Selling Stockholders” and the footnote thereunder, results of operations or prospects of excluding any percentages set forth therein (the Company.“Selling Stockholder Information”);
(ig) Such such Selling Stockholder has not taken distributed and will not takedistribute any Free Writing Prospectus, preliminary prospectus, the Prospectus or any other offering material in connection with the offering and sale of the Shares, except for any such distribution to which the Representatives have consented in advance; and such Selling Stockholder has not taken, directly or indirectly, any action that is designed to intended, or that has constituted or that could which would reasonably be expected expected, to cause or result in in, under the Securities Act, the Securities Act Regulations or otherwise, or which has constituted, stabilization or manipulation of the price of any security of the Company to facilitate the sale or resale of the Shares.;
(h) the Shares to be sold hereunder by such Selling Stockholder have been placed in custody, for the purpose of making delivery of such Shares under this Agreement and under the Custody Agreement and Power of Attorney which appoints American Stock Transfer & Trust Company, LLC, as custodian (the “Custodian”), for such Selling Stockholder; such Selling Stockholder agrees that the Shares held in custody for him or it under the Custody Agreement and Power of Attorney are for the benefit of and coupled with and subject to the interest thereunder of the Custodian, the Attorneys, the Underwriters, each other Selling Stockholder, the Company and the Operating Partnership; that the arrangements made by such Selling Stockholder for such custody and the appointment of the Custodian and the Attorneys by such Selling Stockholder are, to the extent provided in the Custody Agreement and Power of Attorney, irrevocable; and that the obligations of such Selling Stockholder hereunder shall not be terminated by operation of law, whether by the death, disability, incapacity or liquidation of any Selling Stockholder or the occurrence of any other event; if any Selling Stockholder should die, become disabled or incapacitated or be liquidated or if any other such event should occur before the delivery of the Shares hereunder, the Shares shall be delivered by the Custodian in accordance with the terms and conditions of this Agreement and actions taken by the Attorneys and the Custodian pursuant to the Custody Agreement and Power of Attorney shall be as valid as if such death, liquidation, incapacity or other event had not occurred, regardless of whether or not the Custodian or the Attorneys, or either of them, shall have received notice thereof;
(i) such Selling Stockholder has not relied upon the Representatives or legal counsel for the Representatives for any legal, tax or accounting advice in connection with the offering and sale of the Shares;
(j) The sale of the Shares by such Selling Stockholder does not violate have any registration or other similar rights to have any equity or debt securities registered for sale by the Company under the Registration Statement or included in the offering contemplated by this Agreement, except for such rights as are described in the Registration Statement, the Disclosure Package and the Prospectus under “Description of Capital Stock” and “Shares Eligible for Future Sale;”
(k) neither such Selling Stockholder nor any of its subsidiaries, nor any director, officer or employee of such Selling Stockholder or any of its subsidiaries nor, to the knowledge of such Selling Stockholder, any agent, affiliate or other person engaged by or acting on behalf of such Selling Stockholder or any of its subsidiaries has (i) used any corporate 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 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 Company’s internal policies regarding the sale of stock by its affiliates. Any certificate signed by foregoing, or any officer political party or party official or candidate for political office; (iii) violated or is in violation of any provision of the FCPA, or any applicable law or regulation implementing the Organization for Economic Co-Operation and Development Convention on Combating Bribery of Foreign Public Officials in International Business Transactions, or committed an offence under the Xxxxxxx Xxx 0000 of the United Kingdom, or any other applicable anti-bribery or anti-corruption law; 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. Such Selling Stockholder and delivered 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;
(l) the operations of such Selling Stockholder and its subsidiaries are and have been conducted at all times in compliance in all material respects with applicable financial recordkeeping and reporting requirements, including in all respects with those of the Currency and Foreign Transactions Reporting Act of 1970, as amended, the Anti-Money Laundering Laws applicable to such Selling Stockholder and its subsidiaries, 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 Underwriter Anti-Money Laundering Laws is pending or, to the knowledge of such Selling Stockholder, threatened;
(m) neither such Selling Stockholder nor any of its subsidiaries, directors, officers or counsel for employees, nor, to the Underwriter in connection with knowledge of such Selling Stockholder, any agent, affiliate or other person engaged by or acting on behalf of such Selling Stockholder or any of its subsidiaries is currently subject to any U.S. sanctions administered by the United States Government, including, without limitation, OFAC, UNSC, the European Union, HMT, or other relevant Sanctions; and such Selling Stockholder will not directly or indirectly use the proceeds of the offering of the Shares shall be deemed hereunder, or lend, contribute or otherwise make available such proceeds to any subsidiary, joint venture partner or other person or entity, for the purpose of financing the activities of any person currently subject of Sanctions or in any other manner that will result in a representation and warranty 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, such Selling StockholderStockholder and its subsidiaries have not knowingly engaged in, as 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 country subject to matters covered therebySanctions;
(n) such Selling Stockholder has not taken and will not take, directly or indirectly, any action designed to or that would reasonably be expected to cause or result in any stabilization or manipulation of the price of the Shares;
(o) such selling Stockholder does not have, or has waived prior to the Underwriterdate hereof, any preemptive right, co-sale right or right of first refusal or other similar right to purchase any of the Shares that are to be sold by the Company or any of the other Selling Stockholders to the Underwriters pursuant to this Agreement; and such Selling Stockholder does not own any warrants, options or similar rights to acquire, and does not have any right or arrangement to acquire, any capital stock, right, warrants, options or other securities from the Company, other than those described in the Registration Statement and the Prospectus; and
(p) except as otherwise disclosed to the Underwriters in writing, such Selling Stockholder is not a member of or an affiliate of or associated with any member of FINRA.
Appears in 1 contract
Samples: Underwriting Agreement (MedEquities Realty Trust, Inc.)
Representations and Warranties of the Selling Stockholders. Each The Selling Stockholder, severally and not jointly, Stockholder hereby represents and warrants thatto the Company (solely as to itself), as of the date hereof and as of the Closing, as follows:
(a) Neither such 2.1. The Selling Stockholder nor any person acting on behalf is duly organized, validly existing and in good standing under the laws of such the jurisdiction of its organization.
2.2. As of the Closing, the Selling Stockholder (other thanis the sole beneficial owner of, if applicable, the Company and the Underwriter) has used or referred to any “free writing prospectus” (as defined in Rule 405), relating good and marketable title to the Shares.
(b) Such Selling Stockholder has. As of the Closing, and immediately prior to the Closing Date on which such Selling Stockholder is selling not a party to any stockholder agreements, proxies, or other contracts in effect with respect to the voting or transfer of any of the Shares. As of the Closing, such Shares are owned by 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 (the “UCC”) in respect of, the Shares to be sold by such Selling Stockholder hereunder on such Closing Date free and clear of all liens, encumbrances, equities or security interests, equities, claims, preemptive rights, rights of first offer, rights of first refusal, options, licenses, charges and assessments and are subject to no restrictions with respect to transferability of such Shares to the Company.
(c) Upon payment 2.3. The Selling Stockholder has the requisite power and authority to enter into and perform this Agreement and has taken all action required for the Shares to be sold by such Selling Stockholderauthorization, execution, delivery of such Sharesand performance of all of its obligations under this Agreement. The Selling Stockholder represents that this Agreement is a legal, as directed by valid and binding obligation of the UnderwriterSelling Stockholder enforceable in accordance with its terms, to Cede & Co. (“Cede”) or such other nominee except as may be designated limited by The Depository Trust Company (“DTC”), registration of such Shares in the name of Cede or such other nominee and the crediting of such Shares on the books of DTC to securities accounts of the Underwriter (assuming that neither DTC nor the Underwriter has notice of any adverse claim (within the meaning of Section 8-105 of the UCC) to such Shares), (i) DTC shall be a “protected purchaser” applicable bankruptcy, insolvency, reorganization or other laws of such Shares within general application relating to or affecting the meaning enforcement of Section 8-303 of the UCC, creditors’ rights generally and (ii) under Section 8-501 the effect of rules of law governing the availability of equitable remedies. The execution and delivery of, and the performance of the UCCobligations under, this Agreement by the Underwriter Selling Stockholder do not and will acquire not contravene or result in any breach of any law or of any regulation, order, writ, injunction or decree of any court, tribunal, governmental body, authority, agency or instrumentality applicable to the Selling Stockholder or the Shares, nor do or will such execution, delivery or performance violate, conflict with or result in (with notice or lapse of time or both result in) a valid security entitlement breach of or default under any term or provision of any agreement or contract, oral or written, or organizational document to which the Selling Stockholder or any of its Affiliates is a party or is bound or to which the Shares are subject.
2.4. The Selling Stockholder is not and will not become a party to any agreement, arrangement or understanding with any Person that could result in respect of such Shares and (iii) no action based on the Company having any “adverse claim,” within obligation or liability for any brokerage fees, commissions, underwriting discounts or other similar fees or expenses relating to the meaning of Section 8-102 of the UCC, to such Shares may be asserted against the Underwriter with respect to such security entitlementtransactions contemplated by this Agreement. For purposes of this representationAgreement, such Selling Stockholder may assume that when such payment“Person” means any individual, delivery and crediting occurcorporation, (A) such Shares will have been registered in the name of Cede company, association, partnership, limited liability company, joint venture, trust 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, (B) DTC will be registered as a “clearing corporation” within the meaning of Section 8-102 of the UCC and (C) appropriate entries to the accounts of the Underwriter on the records of DTC will have been made pursuant to the UCC.
(d) Such Selling Stockholder has full right, power and authority, corporate or otherwise, to enter into this Agreement.
(e) This Agreement has been duly and validly authorized, executed and delivered by or on behalf of such Selling Stockholder.
(f) The execution, delivery and performance of this Agreement by such Selling Stockholder and the consummation by such Selling Stockholder of the transactions contemplated hereby and thereby do not and will not (i) conflict with or result in a breach or violation of any of the terms or provisions ofunincorporated organization, or constitute a default under, any indenture, mortgage, deed of trust, loan agreement, license or other agreement or instrument to which such Selling Stockholder is a party or by which such Selling Stockholder is bound or to which any of the property or assets of such Selling Stockholder is subject, (ii) result in any violation of the provisions of the charter or by-laws or deed of trust (or similar organizational documents) of such Selling Stockholder, or (iii) result in any violation of any statute government or any order, rule or regulation of any court or governmental agency or body having jurisdiction over such Selling Stockholder or the property or assets of such Selling Stockholderpolitical subdivision thereof.
(g) No consent, approval, authorization or order of, or filing or registration with, any court or governmental agency or body having jurisdiction over such Selling Stockholder or the property or assets of such Selling Stockholder is required for the execution, delivery and performance of this Agreement by such Selling Stockholder and the consummation by such Selling Stockholder of the transactions contemplated hereby and thereby, except for the registration of the Shares under the Securities Act and such consents, approvals, authorizations, registrations or qualifications as may be required under the Exchange Act and applicable state securities laws in connection with the purchase and sale of the Shares by the Underwriter.
(h) All material information with respect to such Selling Stockholder contained in each of the Registration Statement, the Prospectus and the Pricing Disclosure Package (as amended and supplemented, if the Company shall have filed with the Commission any amendment or supplement thereto) (i) complied and will comply in all material respects with all applicable provisions of the Securities Act and the Rules and Regulations, (ii) contains and will contain all statements of material fact required to be stated therein in accordance with the Securities Act and the Rules and Regulations, and (iii) does not and will not contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary in order to make the statements therein not misleading. Solely with respect to the Metalmark Selling Stockholders (as defined in Schedule I hereto), such Selling Stockholder is not prompted to sell the Shares by any material non-public information relating to the business, results of operations or prospects of the Company and its subsidiaries of an adverse nature that is required to be disclosed in the Registration Statement, the Pricing Disclosure Package or the Prospectus. For this purpose, information that is set forth or incorporated by reference in the Registration Statement, the Pricing Disclosure Package or the Prospectus or that otherwise has been made publicly available about the Company shall be deemed to be public information, and any opinion or conclusion that a Metalmark Selling Stockholder may hold, or analysis performed by a Metalmark Selling Stockholder, in its capacity as an investor about the business, results of operations or prospects of the Company and its subsidiaries shall not be information that relates to the business, results of operations or prospects of the Company.
(i) Such Selling Stockholder has not taken and will not take, directly or indirectly, any action that is designed to or that has constituted or that could reasonably be expected to cause or result in the stabilization or manipulation of the price of any security of the Company to facilitate the sale or resale of the Shares.
(j) The sale of the Shares by such Selling Stockholder does not violate any of the Company’s internal policies regarding the sale of stock by its affiliates. Any certificate signed by any officer of any 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 such Selling Stockholder, as to matters covered thereby, to the Underwriter.
Appears in 1 contract
Samples: Stock Purchase Agreement (ALLIED PHYSICIANS OF CALIFORNIA, a PROFESSION MEDICAL Corp)
Representations and Warranties of the Selling Stockholders. Each Selling Stockholder, severally and not jointly, Stockholder represents and warrants to each Underwriter that:
(a) Neither such Selling Stockholder nor any person acting on behalf of such Selling Stockholder (other than, if applicable, the Company and the Underwriter) has used or referred to any “free writing prospectus” (as defined in Rule 405), relating to the Shares.
(b) Such Selling Stockholder has, and immediately prior to is the Closing Date on which such Selling Stockholder is selling the Shares, such Selling Stockholder will have, good and valid title to or a valid “security entitlement” within the meaning lawful owner of Section 8-501 of the New York Uniform Commercial Code (the “UCC”) in respect of, the Shares to be sold by such Selling Stockholder hereunder pursuant to this Agreement and has, and on such the Closing Date free will have, good and clear title to such Shares, free of all restrictions on transfer, liens, encumbrances, security interests, equities or claimsand claims whatsoever.
(b) The Shares to be sold by such Selling Stockholder have been duly authorized and are validly issued, fully paid and non-assessable.
(c) Upon payment for Such Selling Stockholder has, and on the Closing Date will have, full legal right, power and authority, and all authorization and approval required by law, to enter into this Agreement, the Custody Agreement signed by such Selling Stockholder and [American Stock Transfer & Trust Company], as Custodian, relating to the deposit of the Shares to be sold by such Selling Stockholder, delivery of such Shares, as directed by Stockholder (the Underwriter, to Cede & Co. (“Cede”"CUSTODY AGREEMENT") 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 Power of such Shares on the books Attorney of DTC to securities accounts of the Underwriter (assuming that neither DTC nor the Underwriter has notice of any adverse claim (within the meaning of Section 8-105 of the UCC) to such Shares), (i) DTC shall be a “protected purchaser” of such Shares within the meaning of Section 8-303 of the UCC, (ii) under Section 8-501 of the UCC, the Underwriter will acquire a valid security entitlement in respect of such Shares and (iii) no action based on any “adverse claim,” within the meaning of Section 8-102 of the UCC, to such Shares may be asserted against the Underwriter with respect to such security entitlement. For purposes of this representation, such Selling Stockholder may assume that when appointing certain individuals as such paymentSelling Stockholder's attorneys-in-fact (the "ATTORNEYS") to the extent set forth therein, delivery relating to the transactions contemplated hereby and crediting occurby the Registration Statement and the Custody Agreement (the "POWER OF ATTORNEY") and to sell, (A) assign, transfer and deliver the Shares to be sold by such Shares will have been registered Selling Stockholder 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 manner provided herein and applicable law, (B) DTC will be registered as a “clearing corporation” within the meaning of Section 8-102 of the UCC and (C) appropriate entries to the accounts of the Underwriter on the records of DTC will have been made pursuant to the UCCtherein.
(d) Such Selling Stockholder has full right, power and authority, corporate or otherwise, to enter into this Agreement.
(e) This Agreement has been duly and validly authorized, executed and delivered by or on behalf of such Selling Stockholder.
(e) The Custody Agreement of such Selling Stockholder has been duly authorized, executed and delivered by such Selling Stockholder and is a valid and binding agreement of such Selling Stockholder, enforceable in accordance with its terms.
(f) The Power of Attorney of such Selling Stockholder has been duly authorized, executed and delivered by such Selling Stockholder and is a valid and binding instrument of such Selling Stockholder, enforceable in accordance with its terms, and, pursuant to such Power of Attorney, such Selling Stockholder has, among other things, authorized the Attorneys, or any one of them, to execute and deliver on such Selling Stockholder's behalf this Agreement and any other document that they, or any one of them, may deem necessary or desirable in connection with the transactions contemplated hereby and thereby and to deliver the Shares to be sold by such Selling Stockholder pursuant to this Agreement.
(g) Upon delivery of and payment for the Shares to be sold by such Selling Stockholder pursuant to this Agreement, good and clear title to such Shares will pass to the Underwriters, free of all restrictions on transfer, liens, encumbrances, security interests, equities and claims whatsoever.
(h) The execution, delivery and performance of this Agreement and the Custody Agreement and Power of Attorney of such Selling Stockholder by or on behalf of such Selling Stockholder, the compliance by such Selling Stockholder with all the provisions hereof and thereof and the consummation by such Selling Stockholder of the transactions contemplated hereby and thereby do not and will not (i) conflict with or result in a breach or violation of require any of the terms or provisions of, or constitute a default under, any indenture, mortgage, deed of trust, loan agreement, license or other agreement or instrument to which such Selling Stockholder is a party or by which such Selling Stockholder is bound or to which any of the property or assets of such Selling Stockholder is subject, (ii) result in any violation of the provisions of the charter or by-laws or deed of trust (or similar organizational documents) of such Selling Stockholder, or (iii) result in any violation of any statute or any order, rule or regulation of any court or governmental agency or body having jurisdiction over such Selling Stockholder or the property or assets of such Selling Stockholder.
(g) No consent, approval, authorization or other order of, or filing or registration qualification with, any court or governmental agency or body having jurisdiction over such Selling Stockholder or the property or assets of such Selling Stockholder is required for the execution, delivery and performance of this Agreement by such Selling Stockholder and the consummation by such Selling Stockholder of the transactions contemplated hereby and thereby, except for the registration of the Shares under the Securities Act and such consents, approvals, authorizations, registrations or qualifications as may be required under the Exchange Act and applicable state securities laws in connection with the purchase and sale of the Shares by the Underwriter.
(h) All material information with respect to such Selling Stockholder contained in each of the Registration Statement, the Prospectus and the Pricing Disclosure Package (as amended and supplemented, if the Company shall have filed with the Commission any amendment or supplement thereto) (i) complied and will comply in all material respects with all applicable provisions of the Securities Act and the Rules and Regulations, (ii) contains and will contain all statements of material fact required to be stated therein in accordance with the Securities Act and the Rules and Regulations, and (iii) does not and will not contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary in order to make the statements therein not misleading. Solely with respect to the Metalmark Selling Stockholders (as defined in Schedule I hereto), such Selling Stockholder is not prompted to sell the Shares by any material non-public information relating to the business, results of operations or prospects of the Company and its subsidiaries of an adverse nature that is required to be disclosed in the Registration Statement, the Pricing Disclosure Package or the Prospectus. For this purpose, information that is set forth or incorporated by reference in the Registration Statement, the Pricing Disclosure Package or the Prospectus or that otherwise has been made publicly available about the Company shall be deemed to be public information, and any opinion or conclusion that a Metalmark Selling Stockholder may hold, or analysis performed by a Metalmark Selling Stockholder, in its capacity as an investor about the business, results of operations or prospects of the Company and its subsidiaries shall not be information that relates to the business, results of operations or prospects of the Company.
(i) Such Selling Stockholder has not taken and will not take, directly or indirectly, any action that is designed to or that has constituted or that could reasonably be expected to cause or result in the stabilization or manipulation of the price of any security of the Company to facilitate the sale or resale of the Shares.
(j) The sale of the Shares by such Selling Stockholder does not violate any of the Company’s internal policies regarding the sale of stock by its affiliates. Any certificate signed by any officer of any 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 such Selling Stockholder, as to matters covered thereby, to the Underwriter.or
Appears in 1 contract
Samples: Underwriting Agreement (Emcore Corp)
Representations and Warranties of the Selling Stockholders. Each Selling Stockholder, Stockholder severally and not jointly, represents and warrants to, and agrees with, each of the Underwriters that:
(a) Neither such Selling Stockholder nor any person acting on behalf of such Selling Stockholder (other than, if applicable, the Company and the Underwriter) has used or referred to any “free writing prospectus” (as defined in Rule 405), relating to the Shares.
(b) Such Selling Stockholder has, and immediately prior to the Closing Date on which such Selling Stockholder is selling the Shares, such 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 (the “UCC”) in respect of, the Shares to be sold by such Selling Stockholder hereunder on such Closing Date free and clear of all liens, encumbrances, equities or claims.
(c) Upon payment for the Shares to be sold by such Selling Stockholder, delivery of such Shares, as directed by the Underwriter, to Cede & Co. (“Cede”) or such other nominee as may be designated by The Depository Trust Company (“DTC”), registration of such Shares in the name of Cede or such other nominee and the crediting of such Shares on the books of DTC to securities accounts of the Underwriter (assuming that neither DTC nor the Underwriter has notice of any adverse claim (within the meaning of Section 8-105 of the UCC) to such Shares), (i) DTC shall be a “protected purchaser” of such Shares within the meaning of Section 8-303 of the UCC, (ii) under Section 8-501 of the UCC, the Underwriter will acquire a valid security entitlement in respect of such Shares and (iii) no action based on any “adverse claim,” within the meaning of Section 8-102 of the UCC, to such Shares may be asserted against the Underwriter with respect to such security entitlement. For purposes of this representation, such Selling Stockholder may assume that when such payment, delivery and crediting occur, (A) such Shares will have been registered in the name of Cede or another nominee designated by DTC, in each case on the Company’s share registry in accordance with its certificate of incorporation, bylaws and applicable law, (B) DTC will be registered as a “clearing corporation” within the meaning of Section 8-102 of the UCC and (C) appropriate entries to the accounts of the Underwriter on the records of DTC will have been made pursuant to the UCC.
(d) Such Selling Stockholder has full right, power and authority, corporate or otherwiseauthority to execute and deliver this Agreement, to enter into perform its obligations hereunder and to consummate the transactions contemplated by this Agreement.
(e) , the Registration Statement and the Prospectus. This Agreement and the transactions contemplated by this Agreement, the Registration Statement and the Prospectus have been duly and validly authorized by such Selling Stockholder. This Agreement has been duly and validly authorized, executed and delivered by or on behalf of such Selling Stockholder.
(f) The execution, delivery and performance of this Agreement by such Selling Stockholder and constitutes the consummation by such Selling Stockholder of the transactions contemplated hereby legal, valid and thereby 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, any indenture, mortgage, deed of trust, loan agreement, license or other agreement or instrument to which such Selling Stockholder is a party or by which such Selling Stockholder is bound or to which any of the property or assets of such Selling Stockholder is subject, (ii) result in any violation of the provisions of the charter or by-laws or deed of trust (or similar organizational documents) binding obligation of such Selling Stockholder, enforceable in accordance with its terms, except as enforceability may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or similar laws affecting creditors' rights generally and except as enforceability may be subject to general principles of equity (iiiregardless of whether such enforceability is considered in a proceeding in equity or at law).
(b) result in any violation of any statute or any order, rule or regulation of any court or governmental agency or body having jurisdiction over such Such Selling Stockholder or has full right, power and authority to execute and deliver a Custody Agreement and Power of Attorney substantially in the property or assets form of Exhibits B and C hereto (such Selling Stockholder.
(g) No consent's "Custody Agreement" and "Power of Attorney", approvalrespectively), authorization or order of, or filing or registration with, any court or governmental agency or body having jurisdiction over to perform its obligations thereunder and to consummate the transactions contemplated by its Custody Agreement and Power of Attorney. The Custody Agreement and Power of Attorney and the transactions contemplated by the Custody Agreement and Power of Attorney have been duly and validly authorized by such Selling Stockholder or the property or assets Stockholder. The Custody Agreement and Power of such Selling Stockholder is required for the execution, delivery Attorney have each been duly and performance of this Agreement validly executed and delivered by such Selling Stockholder and constitute the consummation by such Selling Stockholder legal, valid and binding obligation of the transactions contemplated hereby and thereby, except for the registration of the Shares under the Securities Act and such consents, approvals, authorizations, registrations or qualifications as may be required under the Exchange Act and applicable state securities laws in connection with the purchase and sale of the Shares by the Underwriter.
(h) All material information with respect to such Selling Stockholder contained in each of the Registration Statement, the Prospectus and the Pricing Disclosure Package (as amended and supplemented, if the Company shall have filed with the Commission any amendment or supplement thereto) (i) complied and will comply in all material respects with all applicable provisions of the Securities Act and the Rules and Regulations, (ii) contains and will contain all statements of material fact required to be stated therein in accordance with the Securities Act and the Rules and Regulations, and (iii) does not and will not contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary in order to make the statements therein not misleading. Solely with respect to the Metalmark Selling Stockholders (as defined in Schedule I hereto), such Selling Stockholder is not prompted to sell the Shares by any material non-public information relating to the business, results of operations or prospects of the Company and its subsidiaries of an adverse nature that is required to be disclosed in the Registration Statement, the Pricing Disclosure Package or the Prospectus. For this purpose, information that is set forth or incorporated by reference in the Registration Statement, the Pricing Disclosure Package or the Prospectus or that otherwise has been made publicly available about the Company shall be deemed to be public information, and any opinion or conclusion that a Metalmark Selling Stockholder may hold, or analysis performed by a Metalmark Selling Stockholder, in its capacity as an investor about the business, results of operations or prospects of the Company and its subsidiaries shall not be information that relates to the business, results of operations or prospects of the Company.
(i) Such Selling Stockholder has not taken and will not take, directly or indirectly, any action that is designed to or that has constituted or that could reasonably be expected to cause or result in the stabilization or manipulation of the price of any security of the Company to facilitate the sale or resale of the Shares.
(j) The sale of the Shares by such Selling Stockholder does not violate any of the Company’s internal policies regarding the sale of stock by its affiliates. Any certificate signed by any officer of any 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 such Selling Stockholder, enforceable in accordance with its terms, except as enforceability may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or similar laws affecting creditors' rights generally and except as enforceability may be subject to matters covered therebygeneral principles of equity (regardless of whether such enforceability is considered in a proceeding in equity or at law). Counterparts of such Selling Stockholder's Custody Agreement, to duly signed by (i) the Underwriter.Company, as custodian (in such capacity, the "Custodian") and (ii) Louis Hernandez, Jr. and Carl
Appears in 1 contract
Representations and Warranties of the Selling Stockholders. Each Selling Stockholder, Stockholder severally and but not jointly, jointly represents and warrants to, and agrees with, each of the Underwriters that:
(a) Neither Such Selling Stockholder has full right, power and authority to execute and deliver this Agreement, to perform its obligations hereunder and to consummate the transactions contemplated by this Agreement, the Deposit Agreement, the Registration Statement, the ADS Registration Statement and the Prospectus. This Agreement and the transactions contemplated by this Agreement, the Registration Statement and the Prospectus have been duly and validly authorized by such Selling Stockholder. This Agreement has been duly and validly executed and delivered by the Attorney-In-Fact (as defined below) for such Selling Stockholder nor any person acting on behalf and constitutes the legal, valid and binding obligation of such Selling Stockholder Stockholder, enforceable in accordance with its terms, except as enforceability may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or similar laws affecting creditors’ rights generally and except as enforceability may be subject to general principles of equity (other than, if applicable, the Company and the Underwriter) has used regardless of whether such enforceability is considered in a proceeding in equity or referred to any “free writing prospectus” (as defined in Rule 405at law), relating to the Shares.
(b) Such Selling Stockholder hashas full right, power and immediately prior authority to execute and deliver a Custody Agreement and Power of Attorney substantially in the Closing Date on which form of Exhibits B and C hereto (such Selling Stockholder is selling Stockholder’s “Custody Agreement” and “Power of Attorney”, respectively), to perform its obligations thereunder and to consummate the Shares, transactions contemplated by thereby. The Custody Agreement and Power of Attorney and the transactions contemplated thereby have been duly and validly authorized by such Selling Stockholder will have, good Stockholder. The Custody Agreement and valid title to or a valid “security entitlement” within the meaning Power of Section 8-501 of the New York Uniform Commercial Code (the “UCC”) in respect of, the Shares to be sold Attorney have each been duly and validly executed and delivered by such Selling Stockholder hereunder and constitute the legal, valid and binding obligation of such Selling Stockholder, enforceable in accordance with its terms, except as enforceability may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or similar laws affecting creditors’ rights generally and except as enforceability may be subject to general principles of equity (regardless of whether such enforceability is considered in a proceeding in equity or at law). Counterparts of such Selling Stockholder’s Custody Agreement, duly signed by (i) the Company, as custodian (in such capacity, the “Custodian”) and (ii) Xxx Xxx, as such Selling Stockholders’ attorney-in-fact (in such capacity, the “Attorney-In-Fact”) have been delivered to the Company and the Lead Manager on such Closing Date free and clear or prior to the date of all liens, encumbrances, equities or claimsthis Agreement.
(c) Upon payment for Such Selling Stockholder agrees that the Shares to be sold by such Selling Stockholder, delivery of such Shareswhether or not on deposit with the Custodian, as directed by are subject to the Underwriter, to Cede & Co. (“Cede”) or such other nominee as may be designated by The Depository Trust Company (“DTC”), registration of such Shares in the name of Cede or such other nominee and the crediting of such Shares on the books of DTC to securities accounts interests of the Underwriter (assuming Underwriters to the extent as stated therein, that neither DTC nor the Underwriter has notice arrangements made for such custody are to that extent irrevocable, and that the obligations of any adverse claim (within the meaning of Section 8-105 of the UCC) to such Shares), (i) DTC shall be a “protected purchaser” of such Shares within the meaning of Section 8-303 of the UCC, (ii) under Section 8-501 of the UCC, the Underwriter will acquire a valid security entitlement in respect of such Shares and (iii) no action based on any “adverse claim,” within the meaning of Section 8-102 of the UCC, to such Shares may be asserted against the Underwriter with respect to such security entitlement. For purposes of this representation, such Selling Stockholder may assume that when such paymenthereunder shall not be terminated, delivery and crediting occur, (A) such Shares will have been registered except as provided in this Agreement or in the name Custody Agreement and Power of Cede Attorney, by any act of such Selling Stockholder, by operation of law or another nominee designated by DTCthe occurrence of any other event. If such Selling Stockholder should die or become incapacitated, in each case or if any other event should occur affecting the legal status or capacity of such Selling Stockholder before the delivery of the Shares to be sold by a Selling Stockholder hereunder, the documents evidencing the Shares to be sold by such Selling Stockholder then on deposit with the Company’s share registry Custodian shall be delivered by the Custodian in accordance with its certificate the terms and conditions of incorporationthis Agreement as if such event had not occurred, bylaws and applicable law, (B) DTC will be registered as a “clearing corporation” within regardless of whether or not the meaning of Section 8-102 of the UCC and (C) appropriate entries to the accounts of the Underwriter on the records of DTC will Custodian shall have been made pursuant to the UCCreceived notice thereof.
(d) Such Selling Stockholder has full righthas, power and authorityon the Closing Date, corporate will have, good and valid title to and is the lawful owner of the Shares to be sold by such Selling Stockholder hereunder, and upon sale and delivery of, and payment for, such Shares as provided herein, such Selling Stockholder will convey to the Underwriters good and marketable title to such Shares, free and clear of all Liens. Certificates for all of the Shares to be sold by such Selling Stockholder pursuant to this Agreement, in suitable form for transfer by delivery or otherwiseaccompanied by duly executed instruments of transfer or assignment in blank with signatures guaranteed, have been placed in custody with the Custodian with irrevocable conditional instructions to enter into deliver such Shares to the Underwriters pursuant to this Agreement.
(e) This No Consent of, from or with any judicial, regulatory or other legal or governmental agency or body or any third party, foreign or domestic, is required for the execution, delivery and performance by the Selling Stockholder of this Agreement has or its Custody Agreement and Power of Attorney, or consummation by the Selling Stockholders of the transactions contemplated herein or therein, except such as have been duly obtained under the Securities Act and validly authorizedsuch as may be required under the state or foreign securities laws, executed the blue sky laws of any jurisdiction, the NASD or NASDR in connection with the purchase and delivered by or on behalf distribution of such Selling Stockholder’s Shares and the corresponding ADSs by the Underwriters.
(f) The execution, delivery and performance of this Agreement, the Power of Attorney and the Custody Agreement by such Selling Stockholder and consummation of any of the consummation other transactions contemplated herein and therein by such the Selling Stockholder or the fulfillment of the transactions contemplated hereby and thereby do not and terms hereof by the Selling Stockholder will not (iA) conflict with or with, result in a breach or violation of any of the terms or provisions of, or constitute a default (or an event that with notice or lapse of time, or both, would constitute a default) under, or result in the creation or imposition of any indenturelien, mortgagecharge or encumbrance upon any property or assets of the Selling Stockholder pursuant to any law, deed statute, rule or regulation or the terms of trust, loan agreement, license any indenture or other agreement or instrument to which such Selling Stockholder is a party or by which such Selling Stockholder is bound bound, or to which any of the property or assets of such Selling Stockholder is subject, or (iiB) if such Selling Stockholder is not a natural person, result in any violation of the provisions of the any charter or by-laws bylaws or deed certificate of formation, trust (agreement, partnership agreement, articles of partnership or similar other organizational documents) , as applicable, of such the Selling Stockholder, or (iiiC) result in any violation or breach of any statute or any judgment, order, decree statute, rule or regulation applicable to such Selling Stockholder of any court or any public, governmental or regulatory agency or body body, administrative agency or arbitrator having jurisdiction over such Selling Stockholder Stockholder, provided, however, that no representation is made with respect to this clause (c) as to any laws of any jurisdictions or the property or assets of such Selling Stockholder.
(g) No consent, approval, authorization or order of, or filing or registration with, any court or governmental agency or body having jurisdiction over such Selling Stockholder or the property or assets of such Selling Stockholder is required for the execution, delivery and performance of this Agreement by such Selling Stockholder and the consummation by such Selling Stockholder of the transactions contemplated hereby and thereby, except for the registration of the Shares under the Securities Act and such consents, approvals, authorizations, registrations or qualifications as may be required under the Exchange Act and applicable state securities laws NASD rules in connection with the purchase and sale on distribution of the Shares underlying the ADSs to be sold by such Selling Stockholder hereunder by the Underwriter.
(g) 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 the offering of the Shares, except for such rights as have been waived or which are described in the Prospectus (and which have been complied with).
(h) All material information Such Selling Stockholder does not have, or has waived prior to the date hereof, any preemptive right, co-sale right or right of first refusal or other similar right to purchase any of the Shares that are to be sold by the Company or any other Selling Stockholder to the Underwriters pursuant to this Agreement; and such Selling Stockholder does not own any warrants, options or similar rights to acquire, and does not have any right or arrangement to acquire, any capital stock, right, warrants, options or other securities from the Company, other than those described in the Registration Statement and the Prospectus.
(i) Except as disclosed in the Prospectus, there are no contracts, agreements or understandings between such Selling Stockholder and any person that would give rise to a valid claim against the Company or any Underwriter for a brokerage commission, finder’s fee or other like payment in connection with this offering or, to such Selling Stockholder’s knowledge, any other arrangements, agreements, understandings, payments or issuance with respect to the Company or any of its officers, directors, shareholders, partners, employees, subsidiaries or affiliates that may affect the Underwriters’ compensation as determined by the NASD.
(j) The information in the Registration Statement and the Prospectus which relates to such Selling Stockholder contained in each of the Registration Statementdoes not, the Prospectus and the Pricing Disclosure Package (as amended and supplemented, if the Company shall have filed with the Commission any amendment or supplement thereto) (i) complied and will comply in all material respects with all applicable provisions of the Securities Act and the Rules and Regulations, (ii) contains and will contain all statements of material fact required to be stated therein in accordance with the Securities Act and the Rules and Regulations, and (iii) does not and will not on the Closing Date, contain an untrue statement of a material fact or and did not and will not omit to state a any material fact required to be stated therein or necessary in order to make the statements therein relating to such Selling Stockholder (x) in the case of the Registration Statement, not misleading and (y) in the case of the Prospectus, in the light of the circumstances under which they were made, not misleading. Solely In addition, each of Xxx Xxx, Xudong He and Magic Health Limited, severally but not jointly, further represents and warrants to, and agrees with, each of the Underwriters that he or it, as applicable, has reviewed (but without other independent investigations) the Registration Statement and the Prospectus and (1) has no actual knowledge of any material adverse information with respect regard to the Metalmark Selling Stockholders Company or the Group Companies which is not disclosed in the Registration Statement and the Prospectus and (as defined in Schedule I hereto), such Selling Stockholder 2) is not prompted to sell the Shares and the Additional Shares, if any, to be sold by him or it, as applicable, by any material non-public information relating to the business, results of operations or prospects of concerning the Company and its subsidiaries of an adverse nature that or any Group Company which is required to be disclosed not set forth in the Registration Statement, the Pricing Disclosure Package or Statement and the Prospectus. For this purpose, information that is set forth or incorporated by reference in the Registration Statement, the Pricing Disclosure Package or the Prospectus or that otherwise has been made publicly available about the Company shall be deemed to be public information, and any opinion or conclusion that a Metalmark Selling Stockholder may hold, or analysis performed by a Metalmark Selling Stockholder, in its capacity as an investor about the business, results of operations or prospects of the Company and its subsidiaries shall not be information that relates to the business, results of operations or prospects of the Company.
(ik) Such Selling Stockholder has not taken and will not take, directly or indirectly, any action that is designed to or that has constituted to, or that could be reasonably be expected to to, cause or result in the stabilization or manipulation of the price of any security of the Company Common Stock to facilitate the sale or resale of the SharesShares or ADSs.
(jl) The Such Selling Stockholder has not distributed and will not distribute, prior to the later of the Additional Closing Date, if any, and the completion of the Underwriters’ distribution of the Shares, any offering material in connection with the offering and sale of the Shares by the Selling Stockholders other than a Preliminary Prospectus, the Prospectus or the Registration Statement.
(m) The representations and warranties of such Selling Stockholder does not violate any in its Custody Agreement and Power of Attorney are, and on the Company’s internal policies regarding the sale of stock by its affiliatesClosing Date will be, true and correct. Any certificate signed by any officer or on behalf of any the Selling Stockholder and delivered to the Underwriter Representative or to counsel for the Underwriter in connection with the offering of the Shares Underwriters shall be deemed to be a representation and warranty by such Selling Stockholder, Stockholder to each Underwriter as to the matters covered thereby, to the Underwriter.
Appears in 1 contract
Samples: Underwriting Agreement (The9 LTD)
Representations and Warranties of the Selling Stockholders. Each Selling Stockholder, Stockholder severally and not jointly, jointly represents and warrants to each Underwriter and agrees that:
(a) Neither such Such Selling Stockholder nor any person has duly and irrevocably executed and delivered a custody agreement and power of attorney (the "Custody Agreement) (i) appointing Fletcher J. McCusker and Michael N. Deitch and either one of them acting xxxxxx, xx xxxxxxxxs-in-xxxx (xxx "Xxxxxxeys-in-Fact"), with full power of substitution, and with full authority (exercisable by either one or both of them) to execute and deliver this Agreement and to take such other action as may be necessary or desirable to carry out the provisions hereof on behalf of such the Selling Stockholder and (other than, if applicable, ii) appointing SunTrust Bank as custodian (the Company and the Underwriter"Custodian") has used or referred to any “free writing prospectus” (as defined in Rule 405), relating to the Sharesthereunder.
(b) Such Selling Stockholder has, and immediately prior pursuant to the Closing Date on which such Selling Stockholder is selling the Shares, such Selling Stockholder will have, good and valid title to or a valid “security entitlement” within the meaning of Section 8-501 terms of the New York Uniform Commercial Code Custody Agreement, placed in custody, for delivery under this Agreement, the following items: (i)(A) the “UCC”) in respect ofcertificate or certificates, if any, representing not less than the total number of shares of Class A common stock that will be converted into the Shares to be sold by such Selling Stockholder hereunder to the Underwriters as set forth on Schedule I hereto or (B) if such Closing Date free Selling Stockholder is exercising, exchanging or converting derivative securities to acquire the Shares to be sold by such Selling Stockholder to the Underwriters as set forth on Schedule I hereto, (1) such derivative securities, (2) a notice of irrevocable exercise, exchange or conversion of such derivative securities and clear (3) in the case of warrant exercises for cash, the total cash exercise price payable to the Company; and (ii) in all lienscases, encumbrancesa stock power, equities duly endorsed in blank, with the signature of such Selling Stockholder thereon guaranteed by a financial institution that is a participant in the Security Transfer Agents Medallion Program or claims.
(c) Upon payment for the Stock Exchange Medallion Program, relating to the Shares to be sold by such Selling Stockholder.
(c) Such Selling Stockholder has all legal capacity necessary to execute and deliver this Agreement and the Custody Agreement, to sell and deliver the Shares to be sold by him, her or it hereunder and to perform all other obligations under this Agreement and the Custody Agreement; each of this Agreement and the Custody Agreement has been duly executed and delivered by such Selling Stockholder and constitutes the valid and binding agreement of such Selling Stockholder, enforceable against him, her or it in accordance with its terms, except as enforceability may be limited by bankruptcy, reorganization, moratorium or similar laws affecting the enforceability of creditors' rights generally and rules of law governing specific performance, injunctive relief and other equitable remedies.
(d) At the Closing Time and any Delivery Date, such Selling Stockholder will be the owner of the Shares being sold by him or her hereunder; and upon the delivery of and payment for such Shares as contemplated herein, and upon delivery to the Underwriters of the certificates evidencing such Shares, as directed by and assuming that the Underwriter, to Cede & Co. (“Cede”) or such other nominee as may be designated by The Depository Trust Company (“DTC”), registration of Underwriters have purchased such Shares in the name of Cede or such other nominee and the crediting of such Shares on the books of DTC to securities accounts of the Underwriter (assuming that neither DTC nor the Underwriter has without notice of any "adverse claim (within the meaning of Section 8-105 of the UCC) to such Shares), (i) DTC shall be a “protected purchaser” of such Shares within the meaning of Section 8-303 of the UCC, (ii) under Section 8-501 of the UCC, the Underwriter will acquire a valid security entitlement claims," as defined in respect of such Shares and (iii) no action based on any “adverse claim,” within the meaning of Section 8-102 of the UCCNew York Uniform Commercial Code, to the Underwriters will have acquired such Shares may be asserted against the Underwriter with respect to free of any such security entitlement. For purposes of this representation, such Selling Stockholder may assume that when such payment, delivery and crediting occur, (A) such Shares will have been registered in the name of Cede or another nominee designated by DTC, in each case on the Company’s share registry in accordance with its certificate of incorporation, bylaws and applicable law, (B) DTC will be registered as a “clearing corporation” within the meaning of Section 8-102 of the UCC and (C) appropriate entries to the accounts of the Underwriter on the records of DTC will have been made pursuant to the UCC.
(d) Such Selling Stockholder has full right, power and authority, corporate or otherwise, to enter into this Agreementadverse claims.
(e) This Agreement has been duly and validly authorized, executed and delivered by or on behalf of such Selling Stockholder.
(f) The execution, delivery and performance of this Agreement by such Selling Stockholder and the consummation by such Selling Stockholder of the transactions contemplated hereby and thereby 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, any indenture, mortgage, deed of trust, loan agreement, license or other agreement or instrument to which such Selling Stockholder is a party or by which such Selling Stockholder is bound or to which any of the property or assets of such Selling Stockholder is subject, (ii) result in any violation of the provisions of the charter or by-laws or deed of trust (or similar organizational documents) of such Selling Stockholder, or (iii) result in any violation of any statute or any order, rule or regulation of any court or governmental agency or body having jurisdiction over such Selling Stockholder or the property or assets of such Selling Stockholder.
(g) No consent, approval, authorization or order of, or filing or registration with, any court or governmental agency or body having jurisdiction over such Selling Stockholder or the property or assets of such Selling Stockholder is required for the execution, delivery and performance of this Agreement by such Selling Stockholder and the consummation by such Selling Stockholder of the transactions contemplated hereby and thereby, except for the registration of the Shares under the Securities Act and such consents, approvals, authorizations, registrations or qualifications as may be required under the Exchange Act and applicable state securities laws in connection with the purchase and sale of the Shares by the Underwriter.
(h) All material information with respect to such Selling Stockholder contained in each of the Registration Statement, the Prospectus and the Pricing Disclosure Package (as amended and supplemented, if the Company shall have filed with the Commission any amendment or supplement thereto) (i) complied and will comply in all material respects with all applicable provisions of the Securities Act and the Rules and Regulations, (ii) contains and will contain all statements of material fact required to be stated therein in accordance with the Securities Act and the Rules and Regulations, and (iii) does not and will not contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary in order to make the statements therein not misleading. Solely with respect to the Metalmark Selling Stockholders (as defined in Schedule I hereto), such Selling Stockholder is not prompted to sell the Shares by any material non-public information relating to the business, results of operations or prospects of the Company and its subsidiaries of an adverse nature that is required to be disclosed in the Registration Statement, the Pricing Disclosure Package or the Prospectus. For this purpose, information that is set forth or incorporated by reference in the Registration Statement, the Pricing Disclosure Package or the Prospectus or that otherwise has been made publicly available about the Company shall be deemed to be public information, and any opinion or conclusion that a Metalmark Selling Stockholder may hold, or analysis performed by a Metalmark Selling Stockholder, in its capacity as an investor about the business, results of operations or prospects of the Company and its subsidiaries shall not be information that relates to the business, results of operations or prospects of the Company.
(i) Such Selling Stockholder has not taken and will not take, directly or indirectly, any action that is designed to or that has constituted or that could reasonably be expected to cause or result in the stabilization or manipulation of the price of any security of the Company to facilitate the sale or resale of the Shares.
(j) The sale of the Shares by such Selling Stockholder does pursuant to this Agreement is not violate prompted by any information concerning the Company that is not set forth in the Prospectus.
(f) The Selling Stockholder has not incurred any liability for a fee, commission or other compensation on account of the Company’s internal policies regarding the sale employment of stock by its affiliates. Any certificate signed by any officer of any Selling Stockholder and delivered to the Underwriter a broker or counsel for the Underwriter finder in connection with the offering of the Shares shall be deemed a representation and warranty transactions contemplated by such Selling Stockholder, this Agreement other than as to matters covered thereby, to the Underwritercontemplated hereby.
Appears in 1 contract
Representations and Warranties of the Selling Stockholders. Each Selling Stockholder, severally and not jointly, Stockholder represents and warrants thatwarrants, as to itself only, to each Underwriter as follows:
(a) Neither This Agreement has been duly executed and delivered and, with respect to any entity, duly authorized by such Selling Stockholder nor any person acting on behalf and is a valid and binding obligation of such Selling Stockholder, enforceable against such Selling Stockholder in accordance with its terms, except as enforceability thereof may be limited by bankruptcy, insolvency, reorganization, fraudulent transfer, fraudulent conveyance or similar laws relating to or affecting the rights of creditors generally and by equitable principles, and except as obligations of such Selling Stockholder under the indemnification provisions hereof may be limited under federal or state securities laws and public policy relating thereto.
(b) The Power of Attorney and Custody Agreement signed by such Selling Stockholder (other thanthan Mx. Xxxxxx) and American Stock Transfer & Trust Company, if applicable, as custodian (the Company and the Underwriter) has used or referred to any “free writing prospectus” (as defined in Rule 405Custodian”), relating to the Sharesdeposit of the Common Shares to be sold by such Selling Stockholder and appointing certain individuals named therein as such Selling Stockholder’s attorneys-in-fact (each, an “Attorney-in-Fact”) to the extent set forth therein relating to the transactions contemplated hereby and by the Prospectus, and, in the case of Mx. Xxxxxx, his Power of Attorney, has been duly authorized, executed and delivered by such Selling Stockholder and is a valid and binding agreement of such Selling Stockholder, enforceable against such Selling Stockholder in accordance with its terms, except as enforceability thereof may be limited by bankruptcy, insolvency, reorganization, fraudulent transfer, fraudulent conveyance or similar laws relating to or affecting the rights of creditors generally and by equitable principles, and except as obligations of such Selling Stockholder under the indemnification provisions thereof may be limited under federal or state securities laws and public policy relating thereto.
(bc) Such Upon valid exercise of the options or warrants owned by each Selling Stockholder hasStockholder, as the case may be, pursuant to the terms of the respective grant instruments relating to such options or warrants, and immediately prior subject to payment of the exercise price to the Closing Date on which such Selling Stockholder is selling Company out of the Sharesproceeds of this offering, such Selling Stockholder will havebe, good on the Closing Date, the record and valid title beneficial owner of all of the Common Shares to be sold by such Selling Stockholder pursuant to this Agreement on such date free and clear of all liens, encumbrances or adverse claims, and the legal right, power and authority and all authorizations and approvals required by law and under its charter or by-laws, or other organizational documents, as applicable, to enter into this Agreement and its Power of Attorney and Custody Agreement, to sell, transfer and deliver the Common Shares to be sold by such Selling Stockholder pursuant to this Agreement, and to comply with its other obligations hereunder and thereunder.
(d) On the Closing Date, such Selling Stockholder will deliver or cause to be delivered the Common Shares to be sold by such Selling Stockholder to The Depository Trust Company (“DTC”) and will, on the Closing Date, have a valid security entitlement (within the meaning of Section 8-102(a)(17) of the Uniform Commercial Code as in effect in the State of New York (the “security entitlement” UCC”)) to the Common Shares to be sold by such Selling Stockholder hereunder maintained in a securities account (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 such Selling Stockholder hereunder on such Closing Date free and clear of all liens, encumbrances, equities or claims.
(c) Upon payment for the Shares to be sold by such Selling Stockholder, delivery of such Shares, as directed by the Underwriter, to Cede & Co. (“Cede”) or such other nominee as may be designated by The Depository Trust Company (“DTC”), registration of such Shares in the name of Cede or such other nominee and the crediting of such Shares on the books of DTC to securities accounts of the Underwriter (assuming that neither DTC nor the Underwriter has notice or its nominee free and clear of any action that may be asserted based on an adverse claim (within the meaning of Section 8-105 of the UCC) ), with respect to such Shares)security entitlement, (i) DTC shall be a “protected purchaser” and assuming that each Underwriter acquires its interest in the Common Shares it has purchased without notice of any adverse claim, upon the crediting of such Common Shares within to the meaning securities account of Section 8-303 of the UCCsuch Underwriter maintained with DTC and payment therefor by such Underwriter, (ii) under Section 8-501 of the UCCas provided herein, the such Underwriter will acquire have acquired a valid security entitlement in respect of to such Shares Common Shares, and (iii) no action based on any “adverse claim,” within the meaning of Section 8-102 of the UCC, to such Shares claim may be asserted against the such Underwriter with respect to such security entitlement. For purposes of this representation, such Selling Stockholder may assume that when such payment, delivery and crediting occur, (A) such Shares will have been registered in the name of Cede or another nominee designated by DTC, in each case on the Company’s share registry in accordance with its certificate of incorporation, bylaws and applicable law, (B) DTC will be registered as a “clearing corporation” within the meaning of Section 8-102 of the UCC and (C) appropriate entries to the accounts of the Underwriter on the records of DTC will have been made pursuant to the UCC.
(d) Such Selling Stockholder has full right, power and authority, corporate or otherwise, to enter into this Agreement.
(e) This Agreement has been duly The execution and validly authorized, executed and delivered by or on behalf of such Selling Stockholder.
(f) The execution, delivery and performance of this Agreement by such Selling Stockholder of, and the consummation performance by such Selling Stockholder of its obligations under, this Agreement and the transactions contemplated hereby Power of Attorney and thereby do not and Custody Agreement will not (i) conflict with or with, result in a breach or violation of any of the terms or provisions of, or constitute a default under, or require the consent of any indentureother party to, mortgage(i) the charter or by-laws, deed or other organizational documents, of trustsuch Selling Stockholder, loan agreementas applicable, license or any other agreement or instrument to which such Selling Stockholder is a party or by which such Selling Stockholder it is bound or under which it is entitled to which any of the property right or assets of such Selling Stockholder is subjectbenefit, (ii) result in any violation provision of the provisions of the charter or by-laws or deed of trust (or similar organizational documents) of such Selling Stockholder, applicable law or (iii) result in any violation judgment, order, decree or regulation applicable to such Selling Stockholder of any statute court, regulatory body, administrative agency, governmental body or any order, rule or regulation of any court or governmental agency or body arbitrator having jurisdiction over such Selling Stockholder or the property or assets of such Selling Stockholder.
(g) . No consent, approval, authorization or other order of, or registration or filing or registration with, any court or other governmental authority or agency or body having jurisdiction over such Selling Stockholder or the property or assets of such Selling Stockholder is required for the execution, delivery and performance of this Agreement by such Selling Stockholder and the consummation by such Selling Stockholder of the transactions contemplated hereby and therebyin this Agreement, except for the registration of the Shares (i) such as have been obtained or made under the Securities Act and Act, (ii) such consents, approvals, authorizations, registrations or qualifications as may be required under the Exchange Act and applicable state securities or blue sky laws and (iii) such as may be required pursuant to the rules and regulations of the NASD.
(f) Except for the (i) consent of such Selling Stockholder to the respective number of Common Shares to be sold by all of the Selling Stockholders pursuant to this Agreement and (ii) waiver by certain other holders of warrants to purchase Common Stock of certain registration rights pursuant thereto, no consent, approval or waiver is required under any instrument or agreement to which such Selling Stockholder is a party or by which it is bound or under which it is entitled to any right or benefit in connection with the offering, sale or purchase and sale by the Underwriters of any of the Common Shares which may be sold by such Selling Stockholder under this Agreement or the Underwriterconsummation by such Selling Stockholder of any of the other transactions contemplated hereby.
(hg) All material The information with respect to such Selling Stockholder contained in each of the Registration Statement, the Prospectus or the Sale Preliminary Prospectus (as amended, supplemented or superceded by the Prospectus), as of the applicable date set forth in each of the Prospectus and the Pricing Disclosure Package (as amended and supplementedSale Preliminary Prospectus, if that is based upon information furnished to the Company shall have filed with the Commission any amendment by or supplement theretoon behalf of such Selling Stockholder in writing (which information is set forth on Schedule 1(B)(g) (i) complied and will comply in all material respects with all applicable provisions of the Securities Act and the Rules and Regulations, (ii) contains and will contain all statements of material fact required to be stated therein in accordance with the Securities Act and the Rules and Regulations, and (iiihereto) does not and will not contain an 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 therein, in the light of the circumstances under which they were made, not misleading. Solely with respect to the Metalmark Selling Stockholders (as defined in Schedule I hereto), such Selling Stockholder is not prompted to sell the Shares by any material non-public information relating to the business, results of operations or prospects of the Company and its subsidiaries of an adverse nature that is required to be disclosed in the Registration Statement, the Pricing Disclosure Package or the Prospectus. For this purpose, information that is set forth or incorporated by reference in the Registration Statement, the Pricing Disclosure Package or the Prospectus or that otherwise has been made publicly available about the Company shall be deemed to be public information, and any opinion or conclusion that a Metalmark Selling Stockholder may hold, or analysis performed by a Metalmark Selling Stockholder, in its capacity as an investor about the business, results of operations or prospects of the Company and its subsidiaries shall not be information that relates to the business, results of operations or prospects of the Company.
(ih) Such Selling Stockholder has not taken and will not take, directly or indirectly, any action that is designed to or that has constituted or that could reasonably be expected to cause or result in the stabilization or manipulation of the price of any security of the Company Common Stock to facilitate the sale or resale of the Common Shares.
(i) 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 the offering contemplated by this Agreement, except for such rights that have been waived or exercised.
(j) The sale of the Shares by such Such Selling Stockholder does is not violate any prompted to sell shares of the Company’s internal policies regarding the sale of stock by its affiliates. Any certificate signed Common Stock by any officer of any Selling Stockholder information concerning the Company which is not set forth in the Registration Statement, the Sale Preliminary Prospectus 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 such Selling Stockholder, as to matters covered thereby, to the UnderwriterProspectus.
Appears in 1 contract
Samples: Underwriting Agreement (Sterling Construction Co Inc)
Representations and Warranties of the Selling Stockholders. Each of the Selling StockholderStockholders, severally and not jointly, hereby represents and warrants thatto each Underwriter and the Company (provided that any claim for breach of any representation or warranty set forth below made by the Company shall be subordinate to any claim for breach of any representation or warranty set forth below made by any Underwriter) as of the date hereof, as of the Firm Shares Closing Date and as of each such Option Shares Closing Date (if any), as follows:
(a) Neither such The Selling Stockholder nor any person acting on behalf has caused certificates for the number of such Selling Stockholder (other than, if applicable, the Company and the Underwriter) has used or referred to any “free writing prospectus” (as defined in Rule 405), relating to the Shares.
(b) Such Selling Stockholder has, and immediately prior to the Closing Date on which such Selling Stockholder is selling the Shares, such 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 (the “UCC”) in respect of, the Shares to be sold by such Selling Stockholder hereunder to be delivered to American Stock Transfer & Trust Company (the "Custodian"), endorsed in blank or with blank stock powers duly executed, with a signature appropriately guaranteed, such certificates to be held in custody by the Custodian for delivery, pursuant to the provisions of this Agreement and an agreement dated May 4, 2004 among the Custodian and the Selling Stockholders substantially in the form attached hereto as Exhibit B (the "Custody Agreement").
(b) The Selling Stockholder has granted an irrevocable power of attorney substantially in the form attached hereto as Exhibit C (the "Power of Attorney") to the persons named therein, on such Closing Date free behalf of the Selling Stockholder, to execute and clear of all liens, encumbrances, equities deliver this Agreement and any other document necessary or claimsdesirable in connection with the transactions contemplated hereby and to deliver the shares to be sold by the Selling Stockholders pursuant hereto.
(c) Upon payment for This Agreement, the Shares to be sold by such Selling StockholderCustody Agreement, delivery the Power of such Shares, as directed by the Underwriter, to Cede & Co. (“Cede”) or such other nominee as may be designated by The Depository Trust Company (“DTC”), registration of such Shares in the name of Cede or such other nominee Attorney and the crediting of such Shares on the books of DTC to securities accounts of the Underwriter (assuming that neither DTC nor the Underwriter has notice of any adverse claim (within the meaning of Section 8Lock-105 of the UCC) to such Shares), (i) DTC shall be a “protected purchaser” of such Shares within the meaning of Section 8-303 of the UCC, (ii) under Section 8-501 of the UCC, the Underwriter will acquire a valid security entitlement in respect of such Shares and (iii) no action based on any “adverse claim,” within the meaning of Section 8-102 of the UCC, to such Shares may be asserted against the Underwriter with respect to such security entitlement. For purposes of this representation, such Selling Stockholder may assume that when such payment, delivery and crediting occur, (A) such Shares will Up Agreement 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, (B) DTC will be registered as a “clearing corporation” within the meaning of Section 8-102 of the UCC and (C) appropriate entries to the accounts of the Underwriter on the records of DTC will have been made pursuant to the UCC.
(d) Such Selling Stockholder has full right, power and authority, corporate or otherwise, to enter into this Agreement.
(e) This Agreement has been duly and validly authorized, executed and delivered by or on behalf of such the Selling Stockholder and, assuming due authorization, execution and delivery by the other parties thereto, constitutes the valid and legally binding agreement of the Selling Stockholder, enforceable against the Selling Stockholder in accordance with its terms.
(fd) The execution, execution and delivery and performance by the Selling Stockholder of this Agreement and the performance by such the Selling Stockholder of its obligations under this Agreement, including the sale and delivery of the Shares to be sold by the Selling Stockholder and the consummation by such Selling Stockholder of the transactions contemplated hereby herein and thereby compliance by the Selling Stockholder with its obligations hereunder, do not and will not not, whether with our without the giving of notice or the passage of time or both, (i) violate or contravene any provision of the charter or bylaws or other organizational instrument of the Selling Stockholder, if applicable, or any applicable law, statute, regulation, or filing or any 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) conflict with or result in constitute a breach or violation of any of the terms or provisions of, or constitute a default under, or result in the creation or imposition of any indenturetax, mortgagelien, deed charge or encumbrance upon the Shares to be sold by the Selling Stockholder or any property or assets of trust, loan agreement, license or other the Selling Stockholder pursuant to the terms of any agreement or instrument to which such the Selling Stockholder is a party or by which such the Selling Stockholder is may be bound or to which any of the property or assets of such the Selling Stockholder is subject, (ii) result in any violation of the provisions of the charter or by-laws or deed of trust (or similar organizational documents) of such Selling Stockholder, subject or (iii) result in require any violation consent, approval, authorization or order of any statute or any order, rule registration or regulation of filing with any court or governmental agency or body having jurisdiction over it, except such as may be required by the Blue Sky laws of the various states in connection with the offer and sale of the Shares which have been or will be effected in accordance with this Agreement.
(e) The Selling Stockholder has, and on the Firm Shares Closing Date and the Option Shares Closing Date will have, valid and marketable title to the 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, except as otherwise described in the property or assets of such Registration Statement and Prospectus.
(f) The Selling StockholderStockholder has, and on the Firm Shares Closing Date and the Option Shares Closing Date, will have, full legal right, power and authority, and any approval required by law, to sell, assign, transfer and deliver the Shares to be sold by the Selling Stockholder in the manner provided by this Agreement.
(g) No consent, approval, authorization or order of, or filing or registration with, any court or governmental agency or body having jurisdiction over such Upon delivery of and payment for the Shares to be sold by the Selling Stockholder pursuant to this Agreement, assuming each Underwriter has no notice of any adverse claim, the several Underwriters will receive valid and marketable title to such Shares free and clear of any lien, claim, mortgage, pledge, security interest or the property or assets of such Selling Stockholder is required for the execution, delivery and performance of this Agreement by such Selling Stockholder and the consummation by such Selling Stockholder of the transactions contemplated hereby and thereby, except for the registration of the Shares under the Securities Act and such consents, approvals, authorizations, registrations or qualifications as may be required under the Exchange Act and applicable state securities laws in connection with the purchase and sale of the Shares by the Underwriterother encumbrance.
(h) All material information with respect relating to such the Selling Stockholder contained furnished by the Selling Stockholder expressly for use in each of the Registration Statement, the Statement and Prospectus and the Pricing Disclosure Package (as amended and supplemented, if the Company shall have filed with the Commission any amendment or supplement thereto) (i) complied and will comply in all material respects with all applicable provisions of the Securities Act and the Rules and Regulations, (ii) contains and will contain all statements of material fact required to be stated therein in accordance with the Securities Act and the Rules and Regulationsis, and (iii) on each Closing Date will be, true, correct, and complete, and does not not, and on each Closing Date will not not, contain an any untrue statement of a material fact or omit to state any material fact necessary to make such information not misleading.
(i) The Selling Stockholder has reviewed the Registration Statement and Prospectus and, although the Selling Stockholder has not independently verified the accuracy or completeness of all the information contained therein, nothing has come to the attention of the Selling Stockholder that would lead the Selling Stockholder to believe that (i) on the Effective Date, the Registration Statement contained any untrue statement of a material fact or omitted to state any material fact required to be stated therein in order to make the statements made therein not misleading and (ii) on the Effective Date the Prospectus contained and, on each Closing Date contains, no untrue statement of a material fact or omitted or omits to state any material fact necessary in order to make the statements therein not therein, in the light of the circumstances under which they were made, misleading. Solely with respect to .
(j) The sale of Shares by the Metalmark Selling Stockholders (as defined in Schedule I hereto), such Selling Stockholder pursuant to this Agreement is not prompted to sell by the Shares by Selling Stockholder's knowledge of any material non-public information relating to the business, results of operations or prospects of concerning the Company and or any of its subsidiaries of an adverse nature that which is required to be disclosed not set forth in the Registration Statement, the Pricing Disclosure Package or the Prospectus. For this purpose, information that is set forth or incorporated by reference in the Registration Statement, the Pricing Disclosure Package or the Prospectus or that otherwise has been made publicly available about the Company shall be deemed to be public information, and any opinion or conclusion that a Metalmark Selling Stockholder may hold, or analysis performed by a Metalmark Selling Stockholder, in its capacity as an investor about the business, results of operations or prospects of the Company and its subsidiaries shall not be information that relates to the business, results of operations or prospects of the Company.
(ik) Such The Selling Stockholder has not taken and will not take, directly or indirectly, any action that is designed to or that has constituted or that could might reasonably be expected to cause or result in the stabilization or manipulation of the price of any security of the Company to facilitate the sale or resale of the Shares.
(jl) The sale Selling Stockholder has no actual knowledge that any representation or warranty of the Shares by such Company set forth in Section 2 above is untrue or inaccurate in any material respect.
(m) The representations and warranties of the Selling Stockholder does not violate any of in the Company’s internal policies regarding the sale of stock by its affiliates. Any certificate signed by any officer of any Selling Stockholder Custody Agreement are and delivered to the Underwriter or counsel for the Underwriter in connection with the offering of the Shares shall be deemed a representation on each Closing Date will be, true and warranty by such Selling Stockholder, as to matters covered thereby, to the Underwritercorrect.
Appears in 1 contract
Representations and Warranties of the Selling Stockholders. Each Selling Stockholder, severally and not jointly, represents and warrants that:
(a) Neither such the Selling Stockholder nor any person acting on behalf of such the Selling Stockholder (other than, if applicable, the Company and the UnderwriterUnderwriters) has used or referred to any “free writing prospectus” (as defined in Rule 405), 405 under the Securities Act) relating to the SharesStock.
(b) Such Upon completion of the Reorganization, the Selling Stockholder has, and immediately prior to the Closing any Delivery Date on which such the Selling Stockholder is selling shares of Stock, the Shares, such Selling Stockholder will have, good and valid marketable title to or a valid the shares of Stock to be sold by the Selling Stockholder hereunder on such Delivery Date and any “security entitlement” within the meaning of Section 8-501 of the New York Uniform Commercial Code (the “UCC”) in respect ofthereof, the Shares to be sold by such Selling Stockholder hereunder on such Closing Date free and clear of all liens, encumbrances, equities, restrictions on transfer or claims, except for any liens, encumbrances, equities or claimsclaims arising under the Custody Agreement (as defined below).
(c) Upon payment for the Shares Stock to be sold by such Selling Stockholder, delivery of such SharesStock, as directed by the UnderwriterUnderwriters, to Cede & Co. (“Cede”) or such other nominee as may be designated by The Depository Trust Company (“DTC”), registration of such Shares Stock in the name of Cede or such other nominee and the crediting of such Shares Stock on the books of DTC to securities accounts of the Underwriter Underwriters (assuming that neither i) DTC nor will acquire good and marketable title to the Underwriter has notice Stock free and clear of any adverse claim (within the meaning of Section 8-105 of the UCC) to such Shares)all liens, encumbrances, equities, restrictions on transfer or claims, (iii) DTC shall be a “protected purchaser” of such Shares Stock within the meaning of Section 8-303 of the UCC, (iiiii) under Section 8-501 of the UCC, the Underwriter Underwriters will acquire a valid security entitlement in respect of such Shares Stock, and (iiiiv) no an action based on any “an adverse claim,” within the meaning of Section 8-102 of the UCC, claim to such Shares securities entitlement, whether framed in conversion, replevin, constructive trust, equitable lien or other theory may not be asserted against the Underwriter Underwriters with respect to such security entitlement. For purposes of this representation, such Selling Stockholder may assume that when such payment, delivery and crediting occur, (Aw) such Shares Stock 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, (Bx) DTC will be registered as a “clearing corporation” within the meaning of Section 8-102 of the UCC and UCC, (Cy) appropriate entries to the accounts of the Underwriter several Underwriters on the records of DTC will have been made pursuant to the UCCUCC and (z) such Underwriter acquires its interests in the Stock without notice of any adverse claim.
(d) Such The Selling Stockholder has placed in custody under a custody agreement (the “Custody Agreement”) with Xxxxx Fargo Shareowner Services, as custodian (the “Custodian”), for delivery under this Agreement, certificates in negotiable form (with signature guaranteed by a participant in the Securities Transfer Agents Medallion Program, the New York Stock Exchange Medallion Signature Program or the Stock Exchange Medallion Program) representing the shares of Stock to be sold by the Selling Stockholder hereunder.
(e) The Selling Stockholder has duly and irrevocably executed and delivered a power of attorney (the “Power of Attorney”) appointing the Custodian and Messrs. [•] as attorneys-in-fact, with full power of substitution, and with full authority (exercisable by any one or more of them) to execute and deliver this Agreement and to take such other action as may be necessary or desirable to carry out the provisions hereof on behalf of the Selling Stockholder.
(f) The Selling Stockholder has full right, power and authority, corporate or otherwise, to enter into this Agreement, the Custody Agreement and the Power of Attorney.
(eg) This Agreement has been duly and validly authorized, executed and delivered by or on behalf of such the Selling Stockholder.
(fh) The Power of Attorney and the Custody Agreement have been duly and validly authorized, executed and delivered by or on behalf of such Selling Stockholder and constitute valid and legally binding obligations of such Selling Stockholder enforceable against the Selling Stockholder in accordance with their terms, subject to (i) the effects of bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium and other similar laws relating to or affecting creditors’ rights generally, (ii) general equitable principles (whether considered in a proceeding in equity or at law), and (iii) an implied covenant of good faith and fair dealing.
(i) The sale of the Stock by the Selling Stockholder, the execution, delivery and performance of this Agreement, the Custody Agreement and the Power of Attorney by such the Selling Stockholder Stockholders and the consummation by such the Selling Stockholder Stockholders of the transactions contemplated hereby and thereby 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, any indenture, mortgage, deed of trust, loan agreement, license license, lease or other agreement or instrument to which such the Selling Stockholder is a party or by which such the Selling Stockholder is bound or to which any of the property or assets of such the Selling Stockholder is subject, (ii) result in any violation of the provisions of the charter certificate of formation or by-laws or deed of trust limited liability company agreement (or similar organizational documents) of such the Selling Stockholder, Stockholder or (iii) result in any violation of any statute or any judgment, order, decree, rule or regulation of any court or governmental agency or body having jurisdiction over such the Selling Stockholder or the property or assets of such the Selling Stockholder, except in the case of clause (ii) above, for any default or violation that would not, individually or in the aggregate, reasonably be expected to have a material adverse effect on the Selling Stockholder’s ability to perform its obligations under this Agreement.
(gj) No consent, approval, authorization or order of, or filing or registration with, any court or governmental agency or body having jurisdiction over such the Selling Stockholder or the property or assets of such the Selling Stockholder is required for the sale of the Stock by the Selling Stockholder, the execution, delivery and performance of this Agreement, the Custody Agreement or the Power of Attorney by such the Selling Stockholder and the consummation by such the Selling Stockholder of the transactions contemplated hereby and thereby, except (A) such as have been, or prior to the Initial Delivery Date, will be obtained or made, (B) for the registration of the Shares Stock under the Securities Act and such consents, approvals, authorizations, orders, filings, registrations or qualifications as may be required under the Exchange Act and Act, applicable state securities laws laws, and the bylaws and rules of FINRA in connection with the purchase and sale of the Shares Stock by the UnderwriterUnderwriters, (C) for such that, if not obtained, have not or would not, individually or in the aggregate, reasonably be expected to have a material adverse effect on the Selling Stockholder’s ability to perform its obligations under this Agreement and (D) as described in the Registration Statement and the most recent Preliminary Prospectus.
(hk) All material information with respect to such Selling Stockholder contained in each of the Registration Statement, the Prospectus and the Pricing Disclosure Package (as amended and supplemented, if the Company shall have filed with the Commission any amendment or supplement thereto) (i) complied and will comply in all material respects with all applicable provisions of the Securities Act and the Rules and Regulations, (ii) contains and will contain all statements of material fact required to be stated therein in accordance with the Securities Act and the Rules and Regulations, and (iii) does not and will not contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary in order to make the statements therein not misleading. Solely with respect to the Metalmark Selling Stockholders (as defined in Schedule I hereto), such The Selling Stockholder is not prompted to sell the Shares shares of Common Stock by any material non-public information relating to the business, results of operations or prospects of concerning the Company and its subsidiaries of an adverse nature that is required to be disclosed not set forth in the Registration Statement, the Pricing Disclosure Package or and the Prospectus. For this purpose, information that is set forth or incorporated by reference in the Registration Statement, the Pricing Disclosure Package or the Prospectus or that otherwise has been made publicly available about the Company shall be deemed to be public information, and any opinion or conclusion that a Metalmark Selling Stockholder may hold, or analysis performed by a Metalmark Selling Stockholder, in its capacity as an investor about the business, results of operations or prospects of the Company and its subsidiaries shall not be information that relates to the business, results of operations or prospects of the Company.
(il) Such The Selling Stockholder has not taken and will not taketaken, directly or indirectly, any action that is designed to or that has constituted or that could would reasonably be expected to cause or result in the stabilization or manipulation of the price of any security of the Company to facilitate in connection with the sale or resale offering of the Sharesshares of the Stock.
(jm) The sale In respect of any statements in or omissions from the Shares Registration Statement, the Prospectus, the Pricing Disclosure Package, any Issuer Free Writing Prospectus, or any amendment or supplement thereto used by such the Company or any Underwriter, as the case may be, made in reliance upon and in conformity with information furnished in writing to the Company by the Selling Stockholder does not violate any of specifically for use in connection with the preparation thereof, the Selling Stockholder hereby makes the same representations and warranties to each Underwriter as the Company makes to such Underwriter under Sections (1)(e), (f), (g) and (h), respectively; it being understood and agreed that the foregoing applies only to such information furnished by the Selling Stockholder to the Company’s internal policies regarding , which consists of (A) the sale legal name, address and the number of stock shares of Common Stock owned by its affiliates. the Selling Stockholder, and (B) the other information with respect to the Selling Stockholder (excluding percentages) which appear in the table (and corresponding footnotes) under the caption “Principal and Selling Stockholders.” Any certificate signed by any officer of any Selling Stockholder and delivered to the Underwriter Representatives or counsel for the Underwriter Underwriters in connection with the offering of the Shares Stock shall be deemed a representation and warranty by such Selling Stockholder, as to matters covered thereby, to the each Underwriter.
Appears in 1 contract
Samples: Underwriting Agreement (WildHorse Resource Development Corp)
Representations and Warranties of the Selling Stockholders. Each of the Selling Stockholder, Stockholders severally and not jointly, represents and warrants to, and agrees with each of the Underwriters as of the date hereof, the Closing Date and any Additional Closing Date that:
(a) Neither such Selling Stockholder nor any person acting on behalf of such Selling Stockholder (other than, if applicable, the Company and the Underwriter) has used or referred to any “free writing prospectus” (as defined in Rule 405), relating to the Shares.
(b) Such Selling Stockholder has, and immediately prior to the Closing Date on which such Selling Stockholder is selling the Shares, such 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 (the “UCC”) in respect of, the Shares to be sold by such Selling Stockholder hereunder on such Closing Date free and clear of all liens, encumbrances, equities or claims.
(c) Upon payment for the Shares to be sold by such Selling Stockholder, delivery of such Shares, as directed by the Underwriter, to Cede & Co. (“Cede”) or such other nominee as may be designated by The Depository Trust Company (“DTC”), registration of such Shares in the name of Cede or such other nominee and the crediting of such Shares on the books of DTC to securities accounts of the Underwriter (assuming that neither DTC nor the Underwriter has notice of any adverse claim (within the meaning of Section 8-105 of the UCC) to such Shares), (i) DTC shall be a “protected purchaser” of such Shares within the meaning of Section 8-303 of the UCC, (ii) under Section 8-501 of the UCC, the Underwriter will acquire a valid security entitlement in respect of such Shares and (iii) no action based on any “adverse claim,” within the meaning of Section 8-102 of the UCC, to such Shares may be asserted against the Underwriter with respect to such security entitlement. For purposes of this representation, such Selling Stockholder may assume that when such payment, delivery and crediting occur, (A) such Shares will have been registered in the name of Cede or another nominee designated by DTC, in each case on the Company’s share registry in accordance with its certificate of incorporation, bylaws and applicable law, (B) DTC will be registered as a “clearing corporation” within the meaning of Section 8-102 of the UCC and (C) appropriate entries to the accounts of the Underwriter on the records of DTC will have been made pursuant to the UCC.
(d) Such Selling Stockholder has full right, power and authority, corporate or otherwise, to enter into this Agreement.
(e) This Agreement has been duly and validly authorized, executed and delivered by or on behalf of such Selling Stockholder and is a valid and binding agreement of such Selling Stockholder, enforceable against it, him or her in accordance with its terms, except as enforcement hereof may be limited by bankruptcy, insolvency, reorganization, moratorium or other similar laws relating to or affecting the rights and remedies of creditors or by general equitable principles.
(b) Each of the Custody Agreements and Powers of Attorney (each, a "Custody Agreement and Power of Attorney") signed by (i) such Selling Stockholder, (ii) the Company, as custodian (in such capacity, the "Custodian"), and (iii) Xxxxxx X. Xxxxxx and Xxxxxxx X. Xxxxxxxxxx, each the Selling Stockholders' attorney-in-fact (in such capacity, the "Attorney-In-Fact"), has been duly and validly authorized, executed and delivered by such Selling Stockholder and is a valid and binding agreement of such Selling Stockholder, enforceable against it, him or her in accordance with its terms, except as the enforcement thereof may be limited by bankruptcy, insolvency, reorganization, moratorium or other similar laws relating to or affecting the rights and remedies of creditors or by general equitable principles.
(c) Such Selling Stockholder agrees that the Shares to be sold by it, him or her on deposit with the Custodian are subject to the interests of the Underwriters, that the arrangements made for such custody are to that extent irrevocable, and that the obligations of such Selling Stockholder hereunder shall not be terminated, except as provided in this Agreement or in the Custody Agreement and Power of Attorney, by any act of the Selling Stockholder, by operation of law, by death or incapacity of such Selling Stockholder or by the occurrence of any other event. If such Selling Stockholder should die or become incapacitated, or if any other event should occur, before the delivery of the Shares to be sold by such Selling Stockholder hereunder, the documents evidencing the Shares to be sold by such Selling Stockholder then on deposit with the Custodian shall be delivered by the Custodian in accordance with the terms and conditions of this Agreement as if such death, incapacity or other event had not occurred, regardless of whether or not the Custodian shall have received notice thereof.
(d) Such Selling Stockholder is the lawful owner of the Shares proposed to be sold by such Selling Stockholder hereunder and upon sale and delivery of, and payment for, such Shares as provided herein, such Selling Stockholder will convey to the Underwriters good and marketable title to such Shares, free and clear of all liens, charges, encumbrances, equities, claims and security interests whatsoever. Certificates for all of the Shares to be sold by such Selling Stockholder pursuant to this Agreement, in suitable form for transfer by delivery or accompanied by duly executed instruments of transfer or assignment in blank with signatures guaranteed, have been placed in custody with the Custodian with irrevocable conditional instructions to deliver such Shares to the Underwriters pursuant to this Agreement.
(e) Such Selling Stockholder has good and valid title to all of the Shares which may be sold by such Selling Stockholder pursuant to this Agreement on such date and the legal right and power and capacity, and all authorizations and approvals required by law to enter into this Agreement and the applicable Custody Agreement and Power of Attorney, to sell, transfer and deliver all of the Shares which may be sold by such Selling Stockholder pursuant to this Agreement and to comply with its, his or her other obligations hereunder and thereunder.
(f) No consent, approval, authorization or order of any court or governmental agency or body is required for the execution, delivery and performance by such Selling Stockholder of this Agreement and the consummation by the Selling Stockholder of the transactions contemplated herein, except (i) such as may have been obtained under the Securities Act, (ii) such as may be required under the state securities laws or the blue sky laws or any jurisdiction in connection with the purchase and distribution of the Shares by the Underwriters and (iii) such other approvals as have been obtained.
(g) The execution, delivery and performance of this Agreement, the Power of Attorney and the Custody Agreement by such Selling Stockholder and the consummation by such Selling Stockholder of the transactions contemplated hereby and thereby do not and or the fulfillment of the terms hereof by such Selling Stockholder will not (i) conflict with or with, result in a breach or violation of any of the terms or provisions of, or constitute a default under, under any indenture, mortgage, deed law or the terms of trust, loan agreement, license any indenture or other agreement or instrument to which such Selling Stockholder is a party or by which such Selling Stockholder is bound bound, or to which any of the property or assets of such Selling Stockholder is subject, (ii) nor will such actions result in any violation of the provisions of the charter or by-laws bylaws or deed certificate of trust formation or partnership agreement or the articles of partnership, as applicable, of the Selling Stockholder or, any judgment, order or decree applicable to the Selling Stockholder or any court or regulatory body, administrative agency, governmental body or arbitrator having jurisdiction over the Selling Stockholder.
(h) 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 the offering of the Shares, except for such rights as have been waived or which are described in the Registration Statement and the Prospectus or incorporated by reference therein.
(i) Such Selling Stockholder does not own any warrants, options or similar organizational documentsrights to acquire, and do not have any right or arrangement to acquire, any capital stock, right, warrants, options or other securities from the Company, other than those described in the Registration Statement and the Prospectus.
(j) All information furnished by or on behalf of such Selling StockholderStockholder in writing for use in the Registration Statement and Prospectus is true, or (iii) result correct, and complete in all material respects and does not and will not contain any violation untrue statement of any statute or any order, rule or regulation of any court or governmental agency or body having jurisdiction over such Selling Stockholder a material fact; provided that this representation and warranty is made only as to information contained in the Registration Statement or the property or assets of Prospectus under the caption "Principal and Selling Stockholders" and relating to such Selling Stockholder.
(g) No consent, approval, authorization or order of, or filing or registration with, any court or governmental agency or body having jurisdiction over such Selling Stockholder or the property or assets of such Selling Stockholder is required for the execution, delivery and performance of this Agreement by such Selling Stockholder and the consummation by such Selling Stockholder of the transactions contemplated hereby and thereby, except for the registration of the Shares under the Securities Act and such consents, approvals, authorizations, registrations or qualifications as may be required under the Exchange Act and applicable state securities laws in connection with the purchase and sale of the Shares by the Underwriter.
(h) All material information with respect to such Selling Stockholder contained in each of the Registration Statement, the Prospectus and the Pricing Disclosure Package (as amended and supplemented, if the Company shall have filed with the Commission any amendment or supplement thereto) (i) complied and will comply in all material respects with all applicable provisions of the Securities Act and the Rules and Regulations, (ii) contains and will contain all statements of material fact required to be stated therein in accordance with the Securities Act and the Rules and Regulations, and (iii) does not and will not contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary in order to make the statements therein not misleading. Solely with respect to the Metalmark Selling Stockholders (as defined in Schedule I hereto), such Selling Stockholder is not prompted to sell the Shares by any material non-public information relating to the business, results of operations or prospects of the Company and its subsidiaries of an adverse nature that is required to be disclosed in the Registration Statement, the Pricing Disclosure Package or the Prospectus. For this purpose, information that is set forth or incorporated by reference in the Registration Statement, the Pricing Disclosure Package or the Prospectus or that otherwise has been made publicly available about the Company shall be deemed to be public information, and any opinion or conclusion that a Metalmark Selling Stockholder may hold, or analysis performed by a Metalmark Selling Stockholder, in its capacity as an investor about the business, results of operations or prospects of the Company and its subsidiaries shall not be information that relates to the business, results of operations or prospects of the Company.
(ik) Such Selling Stockholder has not taken and will not take, directly or indirectly, any action that which is designed to or that which has constituted or that could which might reasonably be expected to cause or result in the stabilization or manipulation of the price of any security of the Company to facilitate the sale or resale of the Shares.
(jl) The Such Selling Stockholder has not distributed and will not distribute, prior to the later of the Additional Closing Date, if any, and the completion of the Underwriters' distribution of the Shares, any offering material in connection with the offering and sale of the Shares by the Selling Stockholder other than a Preliminary Prospectus, the Prospectus or the Registration Statement.
(m) The representations and warranties of such Selling Stockholder does not violate any in the Custody Agreements and Powers of the Company’s internal policies regarding the sale of stock by its affiliatesAttorney are and will be true and correct. Any certificate signed by any officer or on behalf of any such Selling Stockholder and delivered to the Underwriter Representatives or counsel for the Underwriter in connection with the offering of the Shares to Underwriters' Counsel shall be deemed to be a representation and warranty by such Selling Stockholder, Stockholder to each Underwriter as to the matters covered thereby, to the Underwriter.
Appears in 1 contract
Representations and Warranties of the Selling Stockholders. Each Selling Stockholder, severally and not jointly, Stockholder represents and warrants thatwarrants, as to himself only, to the Underwriter as follows:
(a) Neither This Agreement has been duly executed and delivered by such Selling Stockholder, and is a valid and binding obligation of such Selling Stockholder, enforceable against such Selling Stockholder nor any person acting on behalf in accordance with its terms, except as enforceability thereof may be limited by bankruptcy, insolvency, reorganization, fraudulent transfer, fraudulent conveyance or similar laws relating to or affecting the rights of creditors generally and by equitable principles, and except as obligations of such Selling Stockholder under the indemnification provisions hereof may be limited under federal or state securities laws and public policy relating thereto.
(other thanb) The Power of Attorney and Custody Agreement signed by such Selling Stockholder and American Stock Transfer & Trust Company, if applicable, as custodian (the Company and the Underwriter) has used or referred to any “free writing prospectus” (as defined in Rule 405Custodian”), relating to the Sharesdeposit of the Common Shares to be sold by such Selling Stockholder and appointing certain individuals named therein as such Selling Stockholder’s attorneys-in-fact (each, an “Attorney-in-Fact”) to the extent set forth therein relating to the transactions contemplated hereby and by the Prospectus, has been duly executed and delivered by such Selling Stockholder and is a valid and binding agreement of such Selling Stockholder, enforceable against such Selling Stockholder in accordance with its terms, except as enforceability thereof may be limited by bankruptcy, insolvency, reorganization, fraudulent transfer, fraudulent conveyance or similar laws relating to or affecting the rights of creditors generally and by equitable principles, and except as obligations of such Selling Stockholder under the indemnification provisions thereof may be limited under federal or state securities laws and public policy relating thereto.
(bc) Such Upon valid exercise of any options owned by a Selling Stockholder haspursuant to the terms of the respective grant instruments relating to such options, and immediately prior subject to payment of the exercise price to the Closing Date on which such Selling Stockholder is selling Company out of the Sharesproceeds of this offering, such Selling Stockholder will havebe, good on the Closing Date, the record and valid title beneficial owner of all of the Common Shares to be sold by such Selling Stockholder pursuant to this Agreement on such date free and clear of all liens, encumbrances or adverse claims, and the legal right, power and authority and all authorizations and approvals required by law and under its charter or by-laws, or other organizational documents, as applicable, to enter into this Agreement and its Power of Attorney and Custody Agreement, to sell, transfer and deliver the Common Shares to be sold by such Selling Stockholder pursuant to this Agreement, and to comply with its other obligations hereunder and thereunder.
(d) On the Closing Date, such Selling Stockholder will deliver or cause to be delivered the Common Shares to be sold by such Selling Stockholder to The Depository Trust Company (“DTC”) and will, on the Closing Date, have a valid security entitlement (within the meaning of Section 8-102(a)(17) of the Uniform Commercial Code as in effect in the State of New York (the “security entitlement” UCC”)) to the Common Shares to be sold by such Selling Stockholder hereunder maintained in a securities account (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 such Selling Stockholder hereunder on such Closing Date free and clear of all liens, encumbrances, equities or claims.
(c) Upon payment for the Shares to be sold by such Selling Stockholder, delivery of such Shares, as directed by the Underwriter, to Cede & Co. (“Cede”) or such other nominee as may be designated by The Depository Trust Company (“DTC”), registration of such Shares in the name of Cede or such other nominee and the crediting of such Shares on the books of DTC to securities accounts of the Underwriter (assuming that neither DTC nor the Underwriter has notice or its nominee free and clear of any action that may be asserted based on an adverse claim (within the meaning of Section 8-105 of the UCC) ), with respect to such Shares)security entitlement, (i) DTC shall be a “protected purchaser” and assuming that the Underwriter acquires its interest in the Common Shares it has purchased without notice of any adverse claim, upon the crediting of such Common Shares within to the meaning of Section 8-303 securities account of the UCCUnderwriter maintained with DTC and payment therefor by the Underwriter, (ii) under Section 8-501 of the UCCas provided herein, the Underwriter will acquire have acquired a valid security entitlement in respect of to such Shares Common Shares, and (iii) no action based on any “adverse claim,” within the meaning of Section 8-102 of the UCC, to such Shares claim may be asserted against the Underwriter with respect to such security entitlement. For purposes of this representation, such Selling Stockholder may assume that when such payment, delivery and crediting occur, (A) such Shares will have been registered in the name of Cede or another nominee designated by DTC, in each case on the Company’s share registry in accordance with its certificate of incorporation, bylaws and applicable law, (B) DTC will be registered as a “clearing corporation” within the meaning of Section 8-102 of the UCC and (C) appropriate entries to the accounts of the Underwriter on the records of DTC will have been made pursuant to the UCC.
(d) Such Selling Stockholder has full right, power and authority, corporate or otherwise, to enter into this Agreement.
(e) This Agreement has been duly The execution and validly authorized, executed and delivered by or on behalf of such Selling Stockholder.
(f) The execution, delivery and performance of this Agreement by such Selling Stockholder of, and the consummation performance by such Selling Stockholder of its obligations under, this Agreement and the transactions contemplated hereby Power of Attorney and thereby do not and Custody Agreement will not (i) conflict with or with, result in a breach or violation of any of the terms or provisions of, or constitute a default under, or require the consent of any indentureother party to, mortgage, deed of trust, loan agreement, license or other (i) any agreement or instrument to which such Selling Stockholder is a party or by which such Selling Stockholder it is bound or under which it is entitled to which any of the property right or assets of such Selling Stockholder is subjectbenefit, (ii) result in any violation provision of the provisions of the charter or by-laws or deed of trust (or similar organizational documents) of such Selling Stockholder, applicable law or (iii) result in any violation judgment, order, decree or regulation applicable to such Selling Stockholder of any statute court, regulatory body, administrative agency, governmental body or any order, rule or regulation of any court or governmental agency or body arbitrator having jurisdiction over such Selling Stockholder or the property or assets of such Selling Stockholder.
(g) . No consent, approval, authorization or other order of, or registration or filing or registration with, any court or other governmental authority or agency or body having jurisdiction over such Selling Stockholder or the property or assets of such Selling Stockholder is required for the execution, delivery and performance of this Agreement by such Selling Stockholder and the consummation by such Selling Stockholder of the transactions contemplated hereby and therebyin this Agreement, except for the registration of the Shares (i) such as have been obtained or made under the Securities Act and Act, (ii) such consents, approvals, authorizations, registrations or qualifications as may be required under the Exchange Act and applicable state securities or blue sky laws and (iii) such as may be required pursuant to the rules and regulations of the NASD.
(f) Except for the (i) consent of such Selling Stockholder to the respective number of Common Shares to be sold by all of the Selling Stockholders pursuant to this Agreement and (ii) waiver by certain other holders of warrants to purchase Common Stock of certain registration rights pursuant thereto, no consent, approval or waiver is required under any instrument or agreement to which such Selling Stockholder is a party or by which it is bound or under which it is entitled to any right or benefit in connection with the offering, sale or purchase and sale by the Underwriter of any of the Common Shares which may be sold by such Selling Stockholder under this Agreement or the Underwriterconsummation by such Selling Stockholder of any of the other transactions contemplated hereby.
(hg) All material The information with respect to such Selling Stockholder contained in each of the Registration Statement, the Prospectus or the Sale Preliminary Prospectus (as amended, supplemented or superceded by the Prospectus), as of the applicable date set forth in each of the Prospectus and the Pricing Disclosure Package (as amended and supplementedSale Preliminary Prospectus, if that is based upon information furnished to the Company shall have filed with the Commission any amendment by or supplement theretoon behalf of such Selling Stockholder in writing (which information is set forth on Schedule 1(B)(g) (i) complied and will comply in all material respects with all applicable provisions of the Securities Act and the Rules and Regulations, (ii) contains and will contain all statements of material fact required to be stated therein in accordance with the Securities Act and the Rules and Regulations, and (iiihereto) does not and will not contain an 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 therein, in the light of the circumstances under which they were made, not misleading. Solely with respect to the Metalmark Selling Stockholders (as defined in Schedule I hereto)In addition, such Selling Stockholder is not prompted confirms as accurate the number of shares of Common Stock set forth opposite such Selling Stockholder’s name in each of the Sale Preliminary Prospectus and the Prospectus under the caption “Selling Stockholders” (both prior to sell the Shares by any material non-public information relating and after giving effect to the business, results of operations or prospects sale of the Company and its subsidiaries of an adverse nature that is required to be disclosed in the Registration Statement, the Pricing Disclosure Package or the Prospectus. For this purpose, information that is set forth or incorporated by reference in the Registration Statement, the Pricing Disclosure Package or the Prospectus or that otherwise has been made publicly available about the Company shall be deemed to be public information, and any opinion or conclusion that a Metalmark Selling Stockholder may hold, or analysis performed by a Metalmark Selling Stockholder, in its capacity as an investor about the business, results of operations or prospects of the Company and its subsidiaries shall not be information that relates to the business, results of operations or prospects of the CompanyCommon Shares).
(ih) Such Selling Stockholder has not taken and will not take, directly or indirectly, any action that is designed to or that has constituted or that could reasonably be expected to cause or result in the stabilization or manipulation of the price of any security of the Company Common Stock to facilitate the sale or resale of the Common Shares.
(i) 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 the offering contemplated by this Agreement, except for such rights that have been waived or exercised.
(j) The sale of the Shares by such Such Selling Stockholder does is not violate any prompted to sell shares of the Company’s internal policies regarding the sale of stock by its affiliates. Any certificate signed Common Stock by any officer of any Selling Stockholder and delivered to information concerning the Company which is not set forth in the Registration Statement, the Sale Preliminary Prospectus, the Prospectus or the Incorporated Documents.
(k) Other than written communications approved in advance by the Underwriter or counsel for the Underwriter listed in Schedule 1(B)(g) hereto, no Selling Stockholder has prepared or used a Free Writing Prospectus in connection with the offering and resale of the Shares shall be deemed a representation and warranty by such Selling Stockholder, as to matters covered thereby, to the UnderwriterCommon Shares.
Appears in 1 contract
Samples: Underwriting Agreement (Sterling Construction Co Inc)
Representations and Warranties of the Selling Stockholders. Each Selling Stockholder (or Specified Selling Stockholder, as applicable), severally and not jointly, represents and warrants to each Underwriter and the Company that:
(a) Neither such Selling Stockholder nor any person acting on behalf of such Such Specified Selling Stockholder (other thanas defined below) has entered into a Power of Attorney (the “Power of Attorney”) and a Custody Agreement (the “Custody Agreement”) for the sale and delivery of the Shares to be sold by certain Selling Stockholders identified on Schedule 2 hereto (the “Specified Selling Stockholders”); and such Specified Selling Stockholder has full right, if applicablepower and authority to enter into this Agreement, the Company Power of Attorney and the Underwriter) has used or referred Custody Agreement and to any “free writing prospectus” (as defined in Rule 405)sell, relating assign, transfer and deliver the Shares to be sold by such Specified Selling Stockholder hereunder; this Agreement, the SharesPower of Attorney and the Custody Agreement have each been duly authorized, executed and delivered by such Specified Selling Stockholder.
(b) Such Selling Stockholder has, and immediately prior to is the Closing Date on which such Selling Stockholder is selling the Shares, such Selling Stockholder will have, good and valid title to or a valid “security entitlement” within the meaning record owner of Section 8-501 of the New York Uniform Commercial Code (the “UCC”) in respect of, the Shares to be sold by such Selling Stockholder hereunder on such Closing Date free and clear of all liens, encumbrances, equities or claims.
(c) Upon payment for the Shares to be sold by such Selling Stockholder, delivery of such Shares, as directed by the Underwriter, to Cede & Co. (“Cede”) or such other nominee as may be designated by The Depository Trust Company (“DTC”), registration of and claims and has duly endorsed such Shares in the name of Cede or such other nominee blank, and the crediting of such Shares on the books of DTC to securities accounts of the Underwriter (assuming that neither DTC nor each Underwriter acquires its interest in the Underwriter Shares it has purchased from such Selling Stockholder without notice of any adverse claim (within the meaning of Section 8-105 of the New York Uniform Commercial Code (“UCC) to such Shares”)), (i) each Underwriter that has purchased such Shares delivered on the Closing Date or the Additional Closing Date, as applicable, to DTC shall be a “protected purchaser” or other securities intermediary by making payment therefor as provided herein and that has had such Shares credited to the securities account or accounts of such Shares Underwriter maintained with DTC or such other securities intermediary will have acquired a security entitlement (within the meaning of Section 8-303 102(a)(17) of the UCC, (ii) under Section 8-501 of the UCC, the Underwriter will acquire a valid security entitlement in respect of to such Shares purchased by such Underwriter, and (iii) no action based on any “an adverse claim,” claim (within the meaning of Section 8-102 of the UCC, to such Shares ) may be successfully asserted against such Underwriter under the Underwriter UCC as in effect in the State of New York with respect to such security entitlement. For purposes of this representation, such Shares.
(c) Such Selling Stockholder may assume has not taken, directly or indirectly, any action designed to or that when such paymentwould constitute or that might reasonably be expected to cause or result in, delivery and crediting occurunder the Exchange Act or otherwise, (A) such Shares will have been registered in the name of Cede stabilization or another nominee designated by DTC, in each case on the Company’s share registry in accordance with its certificate of incorporation, bylaws and applicable law, (B) DTC will be registered as a “clearing corporation” within the meaning of Section 8-102 manipulation of the UCC and (C) appropriate entries to the accounts price of any security of the Underwriter on Company to facilitate the records sale or resale of DTC will have been made pursuant to the UCCShares during the distribution of the Shares by the Underwriters.
(d) Certificates in negotiable form representing all of the Shares to be sold by such Selling Stockholder [(other than those to be sold by the Specified Selling Stockholders)] have been deposited with American Stock Transfer & Trust Company, LLC, the transfer agent for the Company’s Common Stock (the “Transfer Agent”). Such Selling Stockholder has full rightspecifically agrees that the Shares represented by the certificates so deposited are subject to the interests of the Underwriters hereunder, power and authoritythat the arrangements made by such Selling Stockholder for such deposit will not be revoked prior to the earlier of the sales of such Shares hereunder or the expiration of the Underwriters’ option to purchase the Option Shares. Such Selling Stockholder specifically agrees that the obligations of such Selling Stockholder hereunder shall not be terminated by operation of law by the dissolution of such partnership, corporate corporation or otherwiseorganization, to enter into this Agreement.
(e) This Agreement has been duly and validly authorizedor by the occurrence of any other event. If any such partnership, executed and corporation or similar organization should be dissolved, or if any other such event should occur, before the delivery of the Shares hereunder, certificates representing such Shares shall be delivered by or on behalf of such Selling StockholderStockholder in accordance with the terms and conditions of this Agreement.
(fe) The executionNo consent, delivery and performance approval, authorization or order of this Agreement by such Selling Stockholder and any court or governmental agency or body is required for the consummation by such Selling Stockholder of the transactions contemplated hereby herein, except such as may have been obtained under the Act and thereby do not such as may be required under the blue sky laws of any jurisdiction in connection with the purchase and distribution of the Shares by the Underwriters and such other approvals as have been obtained.
(f) Neither the sale of the Shares being sold by such Selling Stockholder nor the consummation of any other of the transactions herein contemplated by such Selling Stockholder will not (i) conflict with or with, result in a breach or violation of any of the terms or provisions of, or constitute a default under, (i) any indenturelaw applicable to such Selling Stockholder, mortgage, deed (ii) certificate of trust, loan formation; or the limited partnership agreement or limited liability company agreement, license as applicable, of such Selling Stockholder, (iii) the terms of any indenture or other agreement or instrument to which such Selling Stockholder is a party or by which bound, or (iv) any judgment, order or decree applicable to such Selling Stockholder is bound or to which any of the property or assets of such Selling Stockholder is subject, (ii) result in any violation of the provisions of the charter or by-laws or deed of trust (or similar organizational documents) of such Selling Stockholder, or (iii) result in any violation of any statute court, regulatory body, administrative agency, governmental body or any order, rule or regulation of any court or governmental agency or body arbitrator having jurisdiction over such Selling Stockholder Stockholder, except in the case of clauses (i), (iii) and (iv), for any such conflict, breach, violation or default that would not impair in any material respect the property or assets ability of such Selling StockholderStockholder to consummate the transactions contemplated by this Agreement.
(g) No consent, approval, authorization In respect of any statements in or order of, or filing or registration with, any court or governmental agency or body having jurisdiction over such Selling Stockholder or the property or assets of such Selling Stockholder is required for the execution, delivery and performance of this Agreement by such Selling Stockholder and the consummation by such Selling Stockholder of the transactions contemplated hereby and thereby, except for the registration of the Shares under the Securities Act and such consents, approvals, authorizations, registrations or qualifications as may be required under the Exchange Act and applicable state securities laws in connection with the purchase and sale of the Shares by the Underwriter.
(h) All material information with respect to such Selling Stockholder contained in each of omissions from the Registration Statement, the Prospectus and the Pricing Disclosure Package (as amended and supplementedthe Prospectus, if any Preliminary Prospectus and any Issuer Free Writing Prospectuses made in reliance upon and in conformity with any information related to such Selling Stockholder furnished in writing to the Company shall have filed by such Selling Stockholder expressly for use therein in connection with the Commission any amendment or supplement thereto) disclosure required by Form S-1 (i) complied and will comply in all material respects with all applicable provisions of such information, the Securities Act and the Rules and Regulations“Selling Stockholder Information”), (ii) contains and will contain all statements of material fact required to be stated therein in accordance with the Securities Act and the Rules and Regulations, and (iii) such information does not and will not contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary in order to make the statements therein therein, in light of the circumstances under which they were made, not misleading. Solely with respect to the Metalmark Selling Stockholders (as defined in Schedule I hereto), such Selling Stockholder is not prompted to sell the Shares by any material non-public information relating to the business, results of operations or prospects of the Company and its subsidiaries of an adverse nature that is required to be disclosed in the Registration Statement, the Pricing Disclosure Package or the Prospectus. For this purpose, information that is set forth or incorporated by reference in the Registration Statement, the Pricing Disclosure Package or the Prospectus or that otherwise has been made publicly available about the Company shall be deemed to be public information, and any opinion or conclusion that a Metalmark Selling Stockholder may hold, or analysis performed by a Metalmark Selling Stockholder, in its capacity as an investor about the business, results of operations or prospects of the Company and its subsidiaries shall not be information that relates to the business, results of operations or prospects of the Company.
(i) Such Selling Stockholder has not taken and will not take, directly or indirectly, any action that is designed to or that has constituted or that could reasonably be expected to cause or result in the stabilization or manipulation of the price of any security of the Company to facilitate the sale or resale of the Shares.
(j) The sale of the Shares by such Selling Stockholder does not violate any of the Company’s internal policies regarding the sale of stock by its affiliates. Any certificate signed by any officer of any 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 such Selling Stockholder, as to matters covered thereby, to the Underwriter.
Appears in 1 contract
Samples: Underwriting Agreement (Dunkin' Brands Group, Inc.)
Representations and Warranties of the Selling Stockholders. Each Selling StockholderStockholder listed on Schedule II, severally and not jointly, represents and warrants to each Underwriter and the Company that:
(a) Neither Such Selling Stockholder has, and on the Option Closing Date will have, full right, power and authority to enter into this Agreement and to sell, assign, transfer and deliver the Option Shares to be sold by such Selling Stockholder nor any person acting on behalf hereunder. This Agreement and the Power of Attorney attached hereto as Exhibit A (the "Power of Attorney") have been duly authorized, executed and delivered by such Selling Stockholder, constitute the valid and binding agreements of such Selling Stockholder, enforceable against such Selling Stockholder (in accordance with their respective terms, subject, as to enforcement, to applicable bankruptcy, insolvency, reorganization and moratorium laws and other than, if applicable, the Company and the Underwriter) has used or referred to any “free writing prospectus” (as defined in Rule 405), laws relating to or affecting the Sharesenforcement of creditors' rights generally and to general equitable principles and except as the enforcement of rights to indemnity and contribution under this Agree ment may be limited under applicable securities laws or the public policy underlying such laws.
(b) Such Selling Stockholder has, and immediately prior to the Closing Date on which such Selling Stockholder is selling the Shares, such Selling Stockholder will have, convey good and valid title to or a valid “security entitlement” within the meaning Shares to be delivered by such Selling Stockholder hereunder, free and clear of Section 8-501 allliens, encumbrances, equities and claims whatsoever. Certificates in negotiable form for the aggregate number of the New York Uniform Commercial Code (the “UCC”) in respect of, the Shares to be sold by such Selling Stockholder hereunder on such Closing Date free and clear of all lienshave been placed in custody, encumbrances, equities or claimsunder a Custody Agreement with [ ] as custodian in substantially the form attached hereto as Exhibit B (the "Custody Agreement").
(c) Upon payment for the Shares to be sold by such Selling Stockholder, delivery of such Shares, as directed by the Underwriter, to Cede & Co. (“Cede”) or such other nominee as may be designated by The Depository Trust Company (“DTC”), registration of such Shares in the name of Cede or such other nominee and the crediting of such Shares on the books of DTC to securities accounts of the Underwriter (assuming that neither DTC nor the Underwriter has notice of any adverse claim (within the meaning of Section 8-105 of the UCC) to such Shares), (i) DTC shall be a “protected purchaser” of such Shares within the meaning of Section 8-303 of the UCC, (ii) under Section 8-501 of the UCC, the Underwriter will acquire a valid security entitlement in respect of such Shares and (iii) no action based on any “adverse claim,” within the meaning of Section 8-102 of the UCC, to such Shares may be asserted against the Underwriter information with respect to such security entitlement. For purposes of this representation, such Selling Stockholder may assume that when such payment, delivery and crediting occur, (A) such Shares will have been registered included in the name Registration Statement and the Prospectus under the captions "Principal and Selling Stockholders" does not contain any untrue statement of Cede a material fact or another nominee designated by DTComit to state any material fact required to be stated therein or necessary in order to make the statements therein, in each case on the Company’s share registry in accordance with its certificate of incorporation, bylaws and applicable law, (B) DTC will be registered as a “clearing corporation” within the meaning of Section 8-102 light of the UCC and (C) appropriate entries to the accounts of the Underwriter on the records of DTC will have been made pursuant to the UCCcircumstances under which they were made, not misleading.
(d) Such Selling Stockholder has full rightNo consent, power and authorityapproval, corporate authorization or otherwise, to enter into this Agreement.
(e) This Agreement has been duly and validly authorized, executed and delivered by order of any court or on behalf of such Selling Stockholder.
(f) The execution, delivery and performance of this Agreement by such Selling Stockholder and governmental agency or body is required for the consummation by such Selling Stockholder of the transactions transaction contemplated hereby herein, except such as may have been obtained under the Act or otherwise and thereby do not such as may be required under state securi ties or the "Blue Sky" laws.
(e) The execution and delivery by such Selling Stockholder of, and the performance by such Selling Stockholder of its obligations under, this Agreement will not (with or without the giving of notice or the passage of time or both) (i) conflict with any term or provision of such Selling Stockholder's articles of incorpo ration or bylaws or other organizational documents, as amended (if such Selling Stockholder is a corporation, limited liability company, partnership or other entity), (ii) 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, license lease or other agreement or instrument to which such the Selling Stockholder is a party or by which such Selling Stockholder is bound or to which any of the property its properties or assets of such Selling Stockholder is subject, (ii) result in any violation of the provisions of the charter or by-laws or deed of trust (or similar organizational documents) of such Selling Stockholder, subject or (iii) result in conflict with or violate any violation of any statute law, statute, rule or regulation or any order, rule judgment or regulation decree of any court or governmental agency or body having jurisdiction over such Selling Stockholder or the property or assets any of such Selling Stockholder's properties or assets.
(g) No consent, approval, authorization or order of, or filing or registration with, any court or governmental agency or body having jurisdiction over such Selling Stockholder or the property or assets of such Selling Stockholder is required for the execution, delivery and performance of this Agreement by such Selling Stockholder and the consummation by such Selling Stockholder of the transactions contemplated hereby and thereby, except for the registration of the Shares under the Securities Act and such consents, approvals, authorizations, registrations or qualifications as may be required under the Exchange Act and applicable state securities laws in connection with the purchase and sale of the Shares by the Underwriter.
(h) All material information with respect to such Selling Stockholder contained in each of the Registration Statement, the Prospectus and the Pricing Disclosure Package (as amended and supplemented, if the Company shall have filed with the Commission any amendment or supplement thereto) (i) complied and will comply in all material respects with all applicable provisions of the Securities Act and the Rules and Regulations, (ii) contains and will contain all statements of material fact required to be stated therein in accordance with the Securities Act and the Rules and Regulations, and (iii) does not and will not contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary in order to make the statements therein not misleading. Solely with respect to the Metalmark Selling Stockholders (as defined in Schedule I hereto), such Selling Stockholder is not prompted to sell the Shares by any material non-public information relating to the business, results of operations or prospects of the Company and its subsidiaries of an adverse nature that is required to be disclosed in the Registration Statement, the Pricing Disclosure Package or the Prospectus. For this purpose, information that is set forth or incorporated by reference in the Registration Statement, the Pricing Disclosure Package or the Prospectus or that otherwise has been made publicly available about the Company shall be deemed to be public information, and any opinion or conclusion that a Metalmark Selling Stockholder may hold, or analysis performed by a Metalmark Selling Stockholder, in its capacity as an investor about the business, results of operations or prospects of the Company and its subsidiaries shall not be information that relates to the business, results of operations or prospects of the Company.
(if) Such Selling Stockholder has not taken and will not take(i) taken, directly or indirectly, any action that is designed to cause or result in, or that has constituted or that could might reasonably be expected to cause or result in constitute, the stabilization or manipulation of the price of any security of the Company to facilitate the sale or resale of the SharesShares or (ii) since the filing of the Registration Statement (A) sold, bid for, purchased or paid anyone any compensation for soliciting purchases of, the Shares or (B) paid or agreed to pay to any person any compensation for soliciting another to purchase any other securities of the Company.
(jg) The sale of Such statements in the Shares Registration Statement, the Prospectus or any post-effective amendment or supplement thereto made in reliance upon and in conformity with written information furnished to the Company by such Selling Stockholder does not violate any expressly for use therein will (when they become effective or are filed with the Commission, as the case may be) conform in all material respects to the requirements of the Company’s internal policies regarding Act and the sale rules and regulations promulgated thereunder and not contain any untrue statement of stock by its affiliates. Any certificate signed by a material fact or omit to state any officer of any Selling Stockholder and delivered material fact required to be stated therein or necessary to make the Underwriter or counsel for statements therein, in the Underwriter in connection with the offering light of the Shares shall be deemed a representation and warranty by such Selling Stockholdercircumstances under which they were made, as to matters covered thereby, to the Underwriternot misleading.
Appears in 1 contract
Representations and Warranties of the Selling Stockholders. Each Selling StockholderStockholder represents, warrants and covenants to the Underwriters, severally and not jointly, represents and warrants that:as follows
(a) Neither such Selling Stockholder nor any person acting This Agreement has been duly authorized, executed and delivered by or on behalf of such Selling Stockholder (other than, if applicable, the Company and the Underwriter) has used or referred to any “free writing prospectus” (as defined in Rule 405), relating to the SharesStockholder.
(b) Such Selling Stockholder has, and immediately prior With respect to the Closing Date Management Selling Stockholders, each of (i) the Stock Power signed by or on which behalf of such Management Selling Stockholder is selling Stockholder, relating to the Shares, such 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 (the “UCC”) in respect of, the Shares Underwritten Securities to be sold by such Selling Stockholder hereunder (the “Stock Power”) and (ii) the Power of Attorney appointing certain individuals named therein as such Management Selling Stockholder’s attorneys-in-fact (each, an “Attorney-in-Fact”) to the extent set forth therein relating to the transactions contemplated hereby and by the Prospectus (the “Power of Attorney”), of such Management Selling Stockholder has been duly executed and delivered by or on behalf of such Closing Date free Management Selling Stockholder and clear is a valid and binding agreement of all lienssuch Management Selling Stockholder, encumbrancesenforceable in accordance with its terms, equities except as rights to indemnification thereunder may be limited by applicable law and except as the enforcement thereof may be limited by bankruptcy, insolvency, reorganization, moratorium or claimsother similar laws relating to or affecting the rights and remedies of creditors or by general equitable principles.
(c) Upon payment for the Shares Underwritten Securities to be sold by such Selling StockholderStockholders pursuant to this Agreement, delivery of such SharesUnderwritten Securities, as directed by the UnderwriterUnderwriters, to Cede & Co. (“Cede”) or such other nominee as may be designated by The Depository Trust Company (“DTC”), registration of such Shares Underwritten Securities in the name of Cede or such other nominee and the crediting of such Shares on the books of DTC to the securities accounts account of the Underwriter Underwriters (assuming that neither DTC nor the Underwriter 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 Shares), (iA) DTC shall be a “protected purchaser” of such Shares Underwritten Securities within the meaning of Section 8-303 of the UCC, (iiB) under Section 8-501 of the UCC, the Underwriter Underwriters will acquire a valid security entitlement in respect of such Shares Underwritten Securities and (iiiC) no action based on any “adverse claim,” ”, within the meaning of Section 8-102 of the UCC, to such Shares Underwritten Securities may be asserted against the Underwriter Underwriters with respect to such security entitlement. For ; for purposes of this representation, such Selling Stockholder may assume that when such payment, delivery and crediting occur, (Ax) such Shares Underwritten Securities will have been registered in the name of Cede or another nominee designated by DTC, in each case on the Company’s share registry in accordance with its certificate of incorporation, bylaws and applicable law, (By) DTC will be registered as a “clearing corporation” within the meaning of Section 8-102 of the UCC and (Cz) appropriate entries entry to the accounts account of the Underwriter Underwriters on the records of DTC will have been made pursuant to the UCC.
(d) Such Selling Stockholder has full right, power The execution and authority, corporate or otherwise, to enter into this Agreement.
(e) This Agreement has been duly and validly authorized, executed and delivered delivery by or on behalf of such Selling Stockholder.
(f) The execution, delivery and performance of this Agreement by or such Selling Stockholder Stockholder’s Attorney-in-Fact, as applicable, of, and the consummation performance by such Selling Stockholder of its obligations under, this Agreement, and, with respect to the transactions contemplated hereby Management Selling Stockholders, the Power of Attorney and thereby do not and Stock Power, will not (i) contravene or conflict with or with, result in a breach or violation of any of the terms or provisions of, or constitute a default (or, with the giving of notice or lapse of time, would be in default) under, or require the consent of any indentureother party to, mortgage(i) in the case of the KKR Selling Stockholder, deed the limited partnership agreement of trustthe KKR Selling Stockholder, loan agreement, license or (ii) any other agreement or instrument to which such Selling Stockholder is a party or by which such Selling Stockholder it is bound or under which it is entitled to which any of the property right or assets of such Selling Stockholder is subject, (ii) result in any violation of the provisions of the charter or by-laws or deed of trust (or similar organizational documents) of such Selling Stockholder, benefit or (iii) result in any violation provision of applicable law or any judgment, order, decree or regulation applicable to such Selling Stockholder of any statute court, regulatory body, administrative agency, governmental body or any order, rule or regulation of any court or governmental agency or body arbitrator having jurisdiction over such Selling Stockholder Stockholder, except, in the case of the foregoing clauses (ii) and (iii) as would not, individually or in the property or assets of aggregate, reasonably be expected to materially impact such Selling Stockholder.
(g) ’s ability to perform its obligations under this Agreement. No consent, approval, authorization or other order of, or registration or filing or registration with, any court or other governmental agency authority or body having jurisdiction over such Selling Stockholder or the property or assets of such Selling Stockholder agency, is required for the execution, delivery and performance of this Agreement by such Selling Stockholder and the consummation by such Selling Stockholder of the transactions contemplated hereby and therebyin this Agreement, except for the registration of the Shares under the Securities Act and such consents, approvals, authorizations, registrations or qualifications as may be required under the Exchange Act and Securities Act, applicable state securities or blue sky laws in connection with and from the purchase FINRA and sale such other approvals as have been obtained on or prior to the date of the Shares by the Underwriterthis Agreement.
(he) All material information with respect furnished to the Company or the Underwriters by or on behalf of such Selling Stockholder contained in each of writing expressly for use in the Registration Statement, the Time of Sale Prospectus or the Prospectus is, and on the Pricing Disclosure Package (as amended Closing Date will be, true, correct and supplemented, if the Company shall have filed with the Commission any amendment or supplement thereto) (i) complied and will comply complete in all material respects with all applicable provisions respects, and did not, as of the Securities Act and the Rules and Regulations, (ii) contains and will contain all statements of material fact required to be stated therein in accordance with the Securities Act and the Rules and RegulationsApplicable Time, and (iii) does not and on the Closing Date will not not, contain an any untrue statement of a material fact or omit to state a any material fact required to be stated therein or necessary in order to make the statements therein such information not misleading. Solely , it being understood and agreed that the only such information consists of the information with respect to the Metalmark Selling Stockholders (as defined in Schedule I hereto), such Selling Stockholder is not prompted to sell under the Shares by any material non-public information relating to the business, results of operations or prospects of the Company and its subsidiaries of an adverse nature that is required to be disclosed caption “Selling Stockholders” in the Registration Statement, the Pricing Disclosure Package or Time of Sale Prospectus and the Prospectus. For this purposeProspectus (such information, information that is set forth or incorporated by reference the “Selling Stockholders Information”).
(f) Prior to the completion of the Underwriters’ distribution of the Underwritten Securities, such Selling Stockholder has not distributed and will not distribute any offering material in connection with the offering and sale of the Underwritten Securities other than the Registration Statement, the Pricing Disclosure Package or Preliminary Prospectus, the Prospectus or that otherwise has been made publicly available about free writing prospectus listed on Schedule II and the Company shall be deemed to be public information, and any opinion or conclusion that a Metalmark Selling Stockholder may hold, or analysis performed by a Metalmark Selling Stockholder, in its capacity as an investor about the business, results of operations or prospects of the Company and its subsidiaries shall not be information that relates to the business, results of operations or prospects of the CompanyProspectus.
(ig) Such Selling Stockholder has not taken and will not take, directly or indirectly, any action that is designed to or that has constituted or that could might reasonably be expected to cause or result in the stabilization or manipulation of the price of any security of the Company to facilitate the sale or resale of the Shares.
(jh) The sale Selling Stockholder is not (i) an employee benefit plan (as defined in Section 3(3) of ERISA that is subject to the prohibited transaction provisions of Section 406 of ERISA), (ii) a “plan” as defined in Section 4975 of the Shares by such Selling Stockholder does not violate any Internal Revenue Code of 1986, as amended (the “Code”), or (iii) an entity deemed to hold “plan assets” of the Company’s internal policies regarding the sale foregoing plans described in clause (i) or (ii) pursuant to 29 CFR 2510.3-101 as modified by Section 3(42) of stock by its affiliatesERISA. Any certificate signed by any officer or on behalf of any such Selling Stockholder and delivered to the Underwriter Underwriters or to counsel for the Underwriter in connection with the offering of the Shares Underwriters shall be deemed a representation and warranty by such Selling Stockholder, Stockholder to the Underwriters as to the matters covered thereby. Such Selling Stockholder has a reasonable basis for making each of the representations set forth in this Section 2. Such Selling Stockholder acknowledges that the Underwriters and, for purposes of the opinion to be delivered pursuant to Section 8(b) hereof, counsel to such Selling Stockholder and counsel to the UnderwriterUnderwriters, will rely upon the accuracy and truthfulness of the foregoing representations and hereby consents to such reliance.
Appears in 1 contract
Samples: Underwriting Agreement (Gardner Denver Holdings, Inc.)
Representations and Warranties of the Selling Stockholders. Each Selling Stockholder, severally and not jointly, represents and warrants thatto, and agrees with, the several Underwriters as follows:
(a) As of the First Delivery Date, such Selling Stockholder will be the record and a beneficial owner of the Securities to be sold by such Selling Stockholder under this Agreement, free and clear of all adverse claims, except for those arising under this Agreement; and upon delivery of and payment for such Securities hereunder in accordance with the provisions of Section 3(d) hereof, the several Underwriters will acquire a security entitlement (as that term is defined in the Uniform Commercial Code as in effect in the State of New York (the “New York UCC”) with respect to the Securities, and no action based on an adverse claim (as that term is defined under the New York UCC) to the Securities may be asserted against any of the Underwriters, provided, that each such Underwriter does not have notice of any adverse claim (within the meaning of Section 8-105 of the New York UCC). Such Selling Stockholder is selling the Securities to be sold by such Selling Stockholder for such Selling Stockholder’s own account and is not selling such Securities, directly or indirectly, for the benefit of the Company, and no part of the proceeds of such sale received by such Selling Stockholder will inure, either directly or indirectly, to the benefit of the Company other than as described in each of the Registration Statement, the most recent Preliminary Prospectus and Prospectus.
(b) Such Selling Stockholder is, and will be until consummation of the Reorganization Transactions, the record and beneficial owner of the Founding Company Equity Interests owned by such Selling Stockholder, free and clear of all adverse claims or Liens.
(c) Such Selling Stockholder has duly authorized, executed and delivered a Letter of Transmittal and Custody Agreement (“Custody Agreement”), which Custody Agreement is a valid and binding obligation of such Selling Stockholder, to the Company, as Custodian (the “Custodian”); pursuant to the Custody Agreement the Selling Stockholder will, on or prior to the First Delivery Date, place in custody with the Custodian, for delivery under this Agreement, the certificates representing the Securities to be sold by such Selling Stockholder; and, as of the First Delivery Date, such certificates will be duly and properly endorsed in blank for transfer, or will be accompanied by all documents duly and properly executed that are necessary to validate the transfer of title thereto, to the Underwriters, free of any legend, restriction on transferability, proxy, lien or claim, whatsoever.
(d) Such Selling Stockholder has the power and authority to enter into this Agreement and each of the Reorganization Transaction Agreements to which such Selling Stockholder is a party, and to sell, transfer and deliver the Securities to be sold by such Selling Stockholder pursuant to this Agreement; and such Selling Stockholder has duly authorized, executed and delivered to Xxxxxxxx X. Xxxxxxx and Xxxxxxxxxxx X. Xxxxxxx, each as attorney-in-fact (the “Attorneys-in-Fact”), an irrevocable power of attorney (a “Power of Attorney”) authorizing and directing the Attorneys-in-Fact to effect the sale and delivery of the Securities being sold by such Selling Stockholder, to enter into this Agreement and to take all such other action as may be necessary hereunder.
(e) This Agreement, the Custody Agreement and the Power of Attorney have each been duly authorized, executed and delivered by or on behalf of such Selling Stockholder and each of the Reorganization Transaction Agreements to which such Selling Stockholder is a party constitutes a valid and binding agreement of such Selling Stockholder, enforceable in accordance with its terms, except as rights to indemnity thereunder may be limited by federal or state securities laws and except as enforceability hereof may be limited by bankruptcy, insolvency, reorganization, moratorium or similar laws affecting enforcement of creditors’ rights or by general equitable principles (regardless of whether such enforceability is considered in a proceeding in equity or at law). The execution and delivery of this Agreement, the Custody Agreement, the Power of Attorney and each of the Reorganization Transaction Agreements to which such Selling Stockholder is a party and the performance of the terms hereof and thereof and the consummation of the transactions herein and therein contemplated will not (A) conflict with, result in a breach or violation of, or constitute a default (or an event that with notice or lapse of time, or both, would constitute a default) under, or result in the creation or imposition of any lien, charge or encumbrance upon any property or assets of the Selling Stockholder pursuant to any law, statute, rule or regulation or the terms of any indenture or other agreement or instrument to which such Selling Stockholder is party or bound, or to which any of the property or assets of such Selling Stockholder is subject, or (B) if such Selling Shareholder is not a natural person, result in any violation of the provisions of any charter or bylaws or certificate of formation, trust agreement, partnership agreement, articles of partnership or other organizational documents, as applicable, of the Selling Stockholder, or (C) result in any violation or breach of any judgment, order, decree statute, rule or regulation applicable to such Selling Stockholder of any court or any public, governmental or regulatory agency or body, administrative agency or arbitrator having jurisdiction over such Selling Stockholder, except in the case of clauses (A) and (C) above as would not reasonably be expected to result in a Selling Stockholder Material Adverse Effect.
(f) To such Selling Stockholder’s knowledge, no consent, approval, authorization or order of, or filing with, any court or governmental agency or body is required for the execution, delivery and performance of this Agreement, the Custody Agreement, the Power of Attorney and each of the Reorganization Transaction Agreements to which such Selling Stockholder is a party or for the consummation of the transactions contemplated hereby and thereby, including the sale of the Securities being sold by such Selling Stockholder, except such as (i) has been obtained or made under the Securities Act or the Exchange Act or as may be required by state securities or “blue sky” laws or (ii) may be required by the bylaws and rules of the NASD.
(g) Such Selling Stockholder has not distributed and will not distribute any prospectus or other offering material in connection with the offering and sale of the Securities other than any Preliminary Prospectus or the Prospectus or other materials permitted by the Securities Act to be distributed by such Selling Stockholder. Neither such Selling Stockholder nor any person acting on behalf of such Selling Stockholder (other than, if applicable, the Company and the UnderwriterUnderwriters) has used or referred to any “free writing prospectus” (as defined in Rule 405), relating to the Shares.
(b) Such Selling Stockholder has, and immediately prior to the Closing Date on which such Selling Stockholder is selling the Shares, such 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 (the “UCC”) in respect of, the Shares to be sold by such Selling Stockholder hereunder on such Closing Date free and clear of all liens, encumbrances, equities or claims.
(c) Upon payment for the Shares to be sold by such Selling Stockholder, delivery of such Shares, as directed by the Underwriter, to Cede & Co. (“Cede”) or such other nominee as may be designated by The Depository Trust Company (“DTC”), registration of such Shares in the name of Cede or such other nominee and the crediting of such Shares on the books of DTC to securities accounts of the Underwriter (assuming that neither DTC nor the Underwriter has notice of any adverse claim (within the meaning of Section 8-105 of the UCC) to such Shares), (i) DTC shall be a “protected purchaser” of such Shares within the meaning of Section 8-303 of the UCC, (ii) under Section 8-501 of the UCC, the Underwriter will acquire a valid security entitlement in respect of such Shares and (iii) no action based on any “adverse claim,” within the meaning of Section 8-102 of the UCC, to such Shares may be asserted against the Underwriter with respect to such security entitlement. For purposes of this representation, such Selling Stockholder may assume that when such payment, delivery and crediting occur, (A) such Shares will have been registered in the name of Cede or another nominee designated by DTC, in each case on the Company’s share registry in accordance with its certificate of incorporation, bylaws and applicable law, (B) DTC will be registered as a “clearing corporation” within the meaning of Section 8-102 of the UCC and (C) appropriate entries to the accounts of the Underwriter on the records of DTC will have been made pursuant to the UCC.
(d) Such Selling Stockholder has full right, power and authority, corporate or otherwise, to enter into this Agreement.
(e) This Agreement has been duly and validly authorized, executed and delivered by or on behalf of such Selling Stockholder.
(f) The execution, delivery and performance of this Agreement by such Selling Stockholder and the consummation by such Selling Stockholder of the transactions contemplated hereby and thereby 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, any indenture, mortgage, deed of trust, loan agreement, license or other agreement or instrument to which such Selling Stockholder is a party or by which such Selling Stockholder is bound or to which any of the property or assets of such Selling Stockholder is subject, (ii) result in any violation of the provisions of the charter or by-laws or deed of trust (or similar organizational documents) of such Selling Stockholder, or (iii) result in any violation of any statute or any order, rule or regulation of any court or governmental agency or body having jurisdiction over such Selling Stockholder or the property or assets of such Selling Stockholder.
(g) No consent, approval, authorization or order of, or filing or registration with, any court or governmental agency or body having jurisdiction over such Selling Stockholder or the property or assets of such Selling Stockholder is required for the execution, delivery and performance of this Agreement by such Selling Stockholder and the consummation by such Selling Stockholder of the transactions contemplated hereby and thereby, except for the registration of the Shares under the Securities Act and such consents, approvals, authorizations, registrations or qualifications as may be required under the Exchange Act and applicable state securities laws in connection with the purchase and sale of the Shares by the UnderwriterSecurities.
(h) All material information with respect to such Selling Stockholder contained Other than as contemplated by this Agreement and except as disclosed in each of the Registration Statement, the most recent Preliminary Prospectus and Prospectus, there is no broker, finder or other party that is entitled to receive from such Selling Stockholder any brokerage or finder’s fee or any other fee, commission or payment as a result of the Pricing Disclosure Package (as amended and supplemented, if the Company shall have filed with the Commission any amendment or supplement thereto) transactions contemplated by this Agreement.
(i) complied and will comply in all material respects with all applicable provisions To the knowledge of such Selling Stockholder, the Registration Statement did not, as of the Securities Act and the Rules and RegulationsEffective Date, (ii) contains and will contain all statements of material fact required to be stated therein in accordance with the Securities Act and the Rules and Regulations, and (iii) does not and will not contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary in order to make the statements therein not misleading. Solely ; provided, that no representation or warranty is made as to information contained in or omitted from the Registration Statement in reliance upon and in conformity with respect written information furnished to the Metalmark Selling Stockholders Company through KBCM by or on behalf of any Underwriter specifically for inclusion therein, which information is specified in Section 8(f).
(as defined in Schedule I hereto), j) To the knowledge of such Selling Stockholder is not prompted to sell the Shares by any material non-public information relating to the businessStockholder, results of operations or prospects each of the Company most recent Preliminary Prospectus and the Prospectus will not, as of its subsidiaries date and on the applicable Delivery Date, contain an untrue statement of an adverse nature that is a material fact or omit to state a material fact required to be disclosed stated therein or necessary to make the statements therein, in the Registration Statementlight of the circumstances under which they were made, the Pricing Disclosure Package not misleading; provided, that no representation or the Prospectus. For this purpose, warranty is made as to information that is set forth contained in or incorporated by reference in the Registration Statement, the Pricing Disclosure Package or omitted from the Prospectus or that otherwise has been made publicly available about in reliance upon and in conformity with written information furnished to the Company shall be deemed to be public informationthrough KBCM by or on behalf of any Underwriter specifically for inclusion therein, and any opinion or conclusion that a Metalmark Selling Stockholder may hold, or analysis performed by a Metalmark Selling Stockholder, which information is specified in its capacity as an investor about the business, results of operations or prospects of the Company and its subsidiaries shall not be information that relates to the business, results of operations or prospects of the CompanySection 8(f).
(ik) Such Selling Stockholder has not taken and will not take, directly or indirectly, any action that is designed to or that has constituted or that could reasonably be expected to cause or result in the stabilization or manipulation of the price of any security of the Company to facilitate the sale or resale of the Sharesshares of the Securities.
(jl) The sale representations and warranties of the Shares by such Selling Stockholder does not violate any in its Custody Agreement and Power of Attorney are, and on the Company’s internal policies regarding the sale of stock by its affiliatesFirst Delivery Date will be, true and correct. Any certificate signed by a Selling Stockholder (if such Selling Stockholder is a natural person) or any officer of any Selling Stockholder (if such Selling Stockholder is an entity) and delivered to the Underwriter KBCM or counsel for the Underwriter Underwriters in connection with the offering of the Shares Securities shall be deemed a representation and warranty by such Selling Stockholder, as to matters covered thereby, to the each Underwriter.
Appears in 1 contract
Representations and Warranties of the Selling Stockholders. Each Selling Stockholder, severally and not jointly, Stockholder hereby represents and warrants thatto each Underwriter as of the date hereof, the Firm Shares Closing Date and, if such Selling Stockholder is selling Option Shares, as of each such Option Shares Closing Date (if any), as follows:
(a) Neither such Such Selling Stockholder nor any person acting on behalf has previously delivered to the Representatives a Lock-Up Agreement in the form attached hereto as Exhibit A; the terms of such Selling Stockholder (other than, if applicable, the Company and the Underwriter) has used or referred to any “free writing prospectus” (as defined in Rule 405), relating to the SharesLock-Up Agreement are incorporated herein by reference.
(b) Such Selling Stockholder has, and immediately prior to the Closing Date on which such Selling Stockholder is selling the Shares, such Selling Stockholder will have, good and valid title to or a valid “security entitlement” within the meaning has caused certificates representing all of Section 8-501 of the New York Uniform Commercial Code (the “UCC”) in respect of, the Shares to be sold by such Selling Stockholder hereunder to be delivered to the Company (the “Custodian”) in negotiable form and accompanied by an executed assignment form, with a signature by or on behalf of such Selling Stockholder appropriately guaranteed, to be held in custody by the Custodian for delivery pursuant to the provisions of this Agreement and an agreement dated , 2007 between the Custodian and such Selling Stockholder substantially in the form attached hereto as Exhibit B (the “Custody Agreement”). The representations and warranties of such Selling Stockholder in the Custody Agreement are, and on each Closing Date free will be, true and clear of all liens, encumbrances, equities or claimscorrect.
(c) Upon payment for Such Selling Stockholder has granted an irrevocable power of attorney substantially in the form attached hereto as Exhibit C (the “Power of Attorney”) to the persons named therein as such Selling Stockholder’s attorneys-in-fact (“Attorneys-in-Fact”) with the authority, on behalf of such Selling Stockholder, to execute, deliver and perform this Agreement, to authorize the delivery of the Shares to be sold by such Selling StockholderStockholder hereunder to or for the account of the Underwriters and to execute and deliver any other document, delivery instrument and take any and all other actions necessary or desirable in connection with the consummation of such Sharesthe transactions contemplated by this Agreement, as directed by the Underwriter, to Cede & Co. (“Cede”) or such other nominee as may be designated by The Depository Trust Company (“DTC”), registration of such Shares in the name of Cede or such other nominee Custody Agreement and the crediting Power of such Shares on the books Attorney. The representations and warranties of DTC to securities accounts of the Underwriter (assuming that neither DTC nor the Underwriter has notice of any adverse claim (within the meaning of Section 8-105 of the UCC) to such Shares), (i) DTC shall be a “protected purchaser” of such Shares within the meaning of Section 8-303 of the UCC, (ii) under Section 8-501 of the UCC, the Underwriter will acquire a valid security entitlement in respect of such Shares and (iii) no action based on any “adverse claim,” within the meaning of Section 8-102 of the UCC, to such Shares may be asserted against the Underwriter with respect to such security entitlement. For purposes of this representation, such Selling Stockholder may assume that when such payment, delivery and crediting occur, (A) such Shares will have been registered in the name Power of Cede or another nominee designated by DTCAttorney are, in and on each case on the Company’s share registry in accordance with its certificate of incorporationClosing Date will be, bylaws true and applicable law, (B) DTC will be registered as a “clearing corporation” within the meaning of Section 8-102 of the UCC and (C) appropriate entries to the accounts of the Underwriter on the records of DTC will have been made pursuant to the UCCcorrect.
(d) Such Selling Stockholder has full rightThis Agreement, power the Custody Agreement, the Power of Attorney and authority, corporate or otherwise, to enter into this Agreement.
(e) This the Lock-Up Agreement has have been duly and validly authorized, executed and delivered by or on behalf of such Selling Stockholder.
(fe) The Neither the execution, delivery and performance of this Agreement, the Custody Agreement, the Power of Attorney and the Lock-Up Agreement by or on behalf of such Selling Stockholder and nor the consummation by such Selling Stockholder of any of the transactions contemplated hereby and or thereby do not and by such Selling Stockholder (including the sale of the Shares to be sold by it hereunder) will not (i) give rise to a right to terminate or accelerate the due date of any payment under, or conflict with or result in a breach or violation of any of the terms or provisions of, or constitute a default (or an event which with notice or lapse of time or both would constitute a default) under, or require any Authorization or Permit under, or result in the creation or imposition of any lien, charge, mortgage, pledge, claim, security interest, limitation, restriction, preferential arrangement, defect or encumbrance of any kind upon the Shares to be sold by it pursuant to, as applicable, (i) any bond, debenture, note, indenture, mortgage, deed of trust, loan agreement, license agreement or other agreement or instrument to which such Selling Stockholder is a party or by which such Selling Stockholder it is bound or to which any of the property or assets of such Selling Stockholder is Shares to be sold by it are subject, (ii) result in any violation Permit or applicable Law, or (iii) any provision of the provisions certificate of the charter incorporation or by-laws laws, operating agreement, partnership agreement or deed of trust (or similar any other organizational documents) instrument of such Selling Stockholder, or (iii) result in any violation of any statute or any order, rule or regulation of any court or governmental agency or body having jurisdiction over such Selling Stockholder or the property or assets of such Selling Stockholder.
(g) No consent, approval, authorization or order of, or filing or registration with, any court or governmental agency or body having jurisdiction over such Selling Stockholder or the property or assets of such Selling Stockholder is required for the execution, delivery and performance of this Agreement by such Selling Stockholder and the consummation by such Selling Stockholder of the transactions contemplated hereby and thereby, except for the registration of the Shares under the Securities Act and such consents, approvals, authorizations, registrations or qualifications as may be required under the Exchange Securities Act and applicable state and foreign securities and Blue Sky laws or for such Authorizations or Permits that have already been made or obtained and are in connection with full force and effect.
(f) Such Selling Stockholder has, and on the purchase Firm Shares Closing Date and sale of the Option Shares Closing Date, if applicable, will have, good, valid and marketable title to the Shares to be sold by such Selling Stockholder hereunder free and clear of any lien, charge, mortgage, pledge, claim, security interest, preferential arrangement, defect or other encumbrance, including any restriction on transfer, except as otherwise described in the UnderwriterRegistration Statement and Prospectus.
(g) Except as may be required under the Securities Act and state and foreign securities and Blue Sky laws or for such Authorizations that have already been made or obtained and are in full force and effect, no Authorization is necessary or required for such Stockholder to execute, deliver and perform this Agreement, the Custody Agreement, the Power of Attorney and the Lock-Up Agreement and consummate the transactions contemplated hereby (including to sell the Shares to be sold by it hereunder) and thereby.
(h) Such Selling Stockholder has full legal right, power and authority to execute, deliver and perform this Agreement, the Custody Agreement, the Power of Attorney and the Lock-Up Agreement and consummate the transactions contemplated hereby (including to sell the Shares to be sold by it hereunder) and thereby, and on the Firm Shares Closing Date and the Option Share Closing Date, if applicable, will have, full legal right, power and authority to sell, assign, transfer and deliver the Shares to be sold by such Selling Stockholder hereunder.
(i) Upon delivery of and payment for the Shares to be sold by such Selling Stockholder hereunder, the Selling Stockholders will pass and the Underwriters will receive good and valid title to such Shares free and clear of any lien, charge, mortgage, pledge, claim, security interest, preferential arrangement, defect or other encumbrance.
(j) All material information with respect relating to such Selling Stockholder contained furnished in each of writing by such Selling Stockholder expressly for use in the Registration Statement, the Statutory Prospectus, the Prospectus and the Pricing Disclosure Package (as amended and supplemented, if the Company shall have filed with the Commission any amendment or supplement thereto) (i) complied and will comply in all material respects with all applicable provisions of the Securities Act and the Rules and Regulations, (ii) contains and will contain all statements of material fact required to be stated therein in accordance with the Securities Act and the Rules and RegulationsIssuer Free Writing Prospectus is, and (iii) on each Closing Date will be, true and correct, and does not not, and on each Closing Date will not not, contain an any untrue statement of a material fact or omit to state any material fact necessary to make such information not misleading.
(k) To the extent that any statements or omissions made in the Registration Statement, the Statutory Prospectus, the Prospectus or any Issuer Free Writing Prospectus (or any amendments thereof or supplements thereto) are made in reliance upon, and in conformity with, the information furnished in writing by or on behalf of such Selling Stockholder specifically for use therein, with respect to such information relating to such Selling Stockholder (x) on the Effective Date, the Registration Statement complied, and on the date of the Prospectus, the date any post-effective amendment to the Registration Statement becomes effective, the date any supplement or amendment to the Prospectus is filed with the Commission and each Closing Date, the Registration Statement (and any post-effective amendment thereto), the Prospectus (and any amendment thereof or supplement thereto) will comply, in all material respects with the requirements of the Securities Act and the Rules and the Exchange Act and the rules and regulations of the Commission thereunder, (y) 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. Solely with respect ; and on the other dates referred to above neither the Metalmark Selling Stockholders Registration Statement (as defined in Schedule I hereto), such Selling Stockholder is not prompted or any post-effective amendment thereto) nor the Prospectus (or any amendment thereof or supplement thereto) will contain any untrue statement of a material fact or will omit to sell the Shares by state any material non-public information relating to the business, results of operations or prospects of the Company and its subsidiaries of an adverse nature that is fact required to be disclosed stated therein or necessary in order to make the statements therein not misleading, and (z) when any Preliminary Prospectus was first filed with the Commission (whether filed as part of the Registration StatementStatement or any amendment thereto or pursuant to Rule 424(a) of the Rules) and when any amendment thereof or supplement thereto was first filed with the Commission, such Preliminary Prospectus as amended or supplemented complied in all material respects with the Pricing Disclosure Package applicable provisions of the Securities Act and the Rules and did not contain any untrue statement of a material fact or the Prospectus. For this purpose, information that is set forth or incorporated by reference in the Registration Statement, the Pricing Disclosure Package or the Prospectus or that otherwise has been made publicly available about the Company shall be deemed omit to state any material fact required to be public information, and any opinion stated therein or conclusion that a Metalmark Selling Stockholder may hold, or analysis performed by a Metalmark Selling Stockholder, necessary in its capacity as an investor about order to make the business, results of operations or prospects of the Company and its subsidiaries shall statements therein not be information that relates to the business, results of operations or prospects of the Companymisleading.
(il) Such Selling Stockholder has not taken and taken, nor will not it take, directly or indirectly, any action that is designed to or that has constituted or that could might reasonably be expected to cause or result in in, or that constituted or might reasonably be expected to constitute, the stabilization or manipulation of the price of the Common Stock any security of the Company to facilitate the sale or resale of the Shares.
(jm) The sale No Selling Stockholder has prepared, used or referred to, nor will it prepare, use or refer to, any “free writing prospectus” (as defined in Rule 405 of the Shares by such Selling Stockholder does not violate any of the Company’s internal policies regarding the sale of stock by its affiliates. Any certificate signed by any officer of any 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 such Selling Stockholder, as to matters covered thereby, to the UnderwriterRules).
Appears in 1 contract
Representations and Warranties of the Selling Stockholders. Each Selling Stockholder, severally and not jointly, represents and warrants that:
(a) Neither such Selling Stockholder nor any person acting on behalf of such Selling Stockholder (other than, if applicable, the Company and the UnderwriterUnderwriters) has used or referred to any “free writing prospectus” (as defined in Rule 405), 405 under the Securities Act) relating to the SharesStock.
(b) Such Selling Stockholder has, and immediately prior to the Closing At any Delivery Date on which such Selling Stockholder is selling the Sharesshares of Stock, such Selling Stockholder will have, good and valid marketable title to or a valid “security entitlement” within the meaning shares of Section 8-501 of the New York Uniform Commercial Code (the “UCC”) in respect of, the Shares Stock to be sold by such Selling Stockholder hereunder on such Closing Date Delivery Date, free and clear of all liens, encumbrances, equities, community property rights, restrictions on transfer or claims except for any liens, encumbrances, equities or claimsclaims arising under the Custody Agreement (defined below).
(c) Upon payment for the Shares Stock to be sold by such Selling StockholderStockholder pursuant to this Agreement, delivery of such SharesStock, as directed by the UnderwriterUnderwriters, to Cede & Co. (“Cede”) or such other nominee as may be designated by The Depository Trust Company (“DTC”), registration of such Shares Stock in the name of Cede or such other nominee and the crediting of such Shares Stock on the books of DTC to securities accounts of the Underwriter (assuming that neither DTC nor the Underwriter has notice of any adverse claim (within the meaning of Section 8-105 of the UCC) to such Shares)Underwriters, (i) DTC will acquire good and marketable title to the Stock free and clear of all liens, encumbrances, equities, community property rights, restrictions on transfer or claims, (ii) DTC shall be a “protected purchaser” of such Shares Stock within the meaning of Section 8-303 of the New York Uniform Commercial Code (the “UCC”), (iiiii) under Section 8-501 of the UCC, the Underwriter Underwriters will acquire a valid security entitlement in respect of such Shares Stock, and (iiiiv) no an action based on any an “adverse claim,” within the meaning of (as defined in Section 8-102 of the UCC, ) to such Shares securities entitlement, whether framed in conversion, replevin, constructive trust, equitable lien or other theory may not be asserted against the Underwriter Underwriters with respect to such security entitlemententitlement (assuming that the Underwriters are purchasing such Stock without notice of any adverse claim). For purposes of this representation, such Selling Stockholder may assume that when such payment, delivery and crediting occur, (Ax) such Shares Stock 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, (By) DTC will be registered as a “clearing corporation” within the meaning of Section 8-102 of the UCC UCC, and (Cz) appropriate entries to the accounts of the Underwriter several Underwriters on the records of DTC will have been made pursuant to the UCC.
(d) Such Selling Stockholder will, prior to the Initial Delivery Date, place in custody under a custody agreement (the “Custody Agreement” and, together with all other similar agreements executed by the other Selling Stockholders, the “Custody Agreements”) with American Stock Transfer & Trust Company, LLC, as custodian (the “Custodian”), for delivery under this Agreement, certificates in negotiable form (with signature guaranteed by a participant in the Securities Transfer Agents Medallion Program, the New York Stock Exchange Medallion Signature Program or the Stock Exchanges Medallion Program) representing the shares of Stock to be sold by the Selling Stockholder hereunder.
(e) Such Selling Stockholder has duly and irrevocably executed and delivered a power of attorney (the “Power of Attorney” and, together with all other similar agreements executed by the other Selling Stockholders, the “Powers of Attorney”) appointing Xxxxx XxXxxxx, Xxxxxx Xxxxxxx and Xxx Xxxxxx as attorneys in fact, with full power of substitution, and with full authority (exercisable by any one or more of them) to execute and deliver this Agreement and to take such other action as may be necessary or desirable to carry out the provisions hereof on behalf of the Selling Stockholder.
(f) Such Selling Stockholder has full right, power and authority, corporate or otherwise, to enter into this Agreement, the Custody Agreement and the Power of Attorney.
(eg) This Agreement has been duly and validly authorized, executed and delivered by or on behalf of such Selling Stockholder.
(fh) The Powers of Attorney have been, and prior to the Initial Delivery Date the Custody Agreements will be, duly and validly authorized, executed and delivered by or on behalf of each Selling Stockholder and constitute valid and legally binding obligations of such Selling Stockholder enforceable against such Selling Stockholder in accordance with their terms, subject to (A) applicable bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium or similar laws affecting the enforcement of creditors’ rights generally or equitable principles (whether considered in a proceeding at law or in equity) relating to enforceability and (B) public policy, applicable law relating to fiduciary duties and indemnification and an implied covenant of good faith and fair dealing.
(i) The sale of the Stock by such Selling Stockholder, the execution, delivery and performance of this Agreement, the Custody Agreement and the Power of Attorney by such Selling Stockholder and the consummation by such Selling Stockholder of the transactions contemplated hereby and thereby 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, any indenture, mortgage, deed of trust, loan agreement, license license, lease or other agreement or instrument to which such Selling Stockholder is a party or by which such Selling Stockholder is bound or to which any of the property or assets of such Selling Stockholder is subject, (ii) if applicable result in any violation of the provisions of the charter or by-laws or deed of trust (or similar organizational documents) of such Selling Stockholder, Stockholder or (iii) result in any violation of any statute or any judgment, order, decree, rule or regulation of any court or governmental agency or body having jurisdiction over such Selling Stockholder or the property or assets of such Selling Stockholder, except in the case of clauses (i) or (iii) above, for any default or violation that would not, in the aggregate, reasonably be expected to have a material adverse effect on the ability of the Selling Stockholder to consummate the transactions contemplated by this Agreement, the Custody Agreement or the Power of Attorney.
(gj) No consent, approval, authorization or order of, or filing or registration with, any court or governmental agency or body having jurisdiction over such Selling Stockholder or the property or assets of such Selling Stockholder is required for the sale of the Stock by such Selling Stockholder, the execution, delivery and performance of this Agreement, the Custody Agreement or the Power of Attorney by such Selling Stockholder and the consummation by such Selling Stockholder of the transactions contemplated hereby and thereby, except (A) such as have been or, prior to the Initial Delivery Date will be, obtained or made, (B) for the registration of the Shares Stock under the Securities Act and such consents, approvals, authorizations, orders, filings, registrations or qualifications as may be required under the Exchange Act and applicable state securities laws in connection with the purchase and sale of the Shares Stock by the UnderwriterUnderwriters, (C) for such that, if not obtained, have not or would not, in the aggregate, reasonably be expected to have a material adverse effect on the ability of the Selling Stockholder to consummate the transactions contemplated by this Agreement, the Custody Agreement or the Power of Attorney, and (D) as described in the Registration Statement and the most recent Preliminary Prospectus.
(k) In respect of any statements in or omissions from the Registration Statement, the Prospectus, the Pricing Disclosure Package or any Issuer Free Writing Prospectus or any amendment or supplement thereto used by the Company or any Underwriter, as the case may be, made in reliance upon and in conformity with information furnished in writing to the Company by such Selling Stockholder specifically for use in connection with the preparation thereof, such Selling Stockholder hereby makes the same representations and warranties to each Underwriter as the Company makes to such Underwriter under Sections (1)(f), (g), (h) All material and (i); it being understood and agreed that the foregoing applies only to such information furnished by such Selling Stockholder to the Company, which consists of (A) the legal name, address and the number of shares of Common Stock owned by such Selling Stockholder, and (B) the other information with respect to such Selling Stockholder contained (excluding percentages) which appear in each of the Registration Statementtable (and corresponding footnotes) under the caption “Principal and Selling Stockholders” (collectively, the Prospectus and the Pricing Disclosure Package “Selling Stockholder Information”).
(as amended and supplemented, if the Company shall have filed with the Commission any amendment or supplement theretol) (i) complied and will comply in all material respects with all applicable provisions of the Securities Act and the Rules and Regulations, (ii) contains and will contain all statements of material fact required to be stated therein in accordance with the Securities Act and the Rules and Regulations, and (iii) does not and will not contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary in order to make the statements therein not misleading. Solely with respect to the Metalmark Selling Stockholders (as defined in Schedule I hereto), such Such Selling Stockholder is not prompted to sell the Shares shares of Stock by any material non-public information relating to the business, results of operations or prospects of concerning the Company and its subsidiaries of an adverse nature that is required to be disclosed not set forth in the Registration Statement, the Pricing Disclosure Package or and the Prospectus. For this purpose, information that is set forth or incorporated by reference in the Registration Statement, the Pricing Disclosure Package or the Prospectus or that otherwise has been made publicly available about the Company shall be deemed to be public information, and any opinion or conclusion that a Metalmark Selling Stockholder may hold, or analysis performed by a Metalmark Selling Stockholder, in its capacity as an investor about the business, results of operations or prospects of the Company and its subsidiaries shall not be information that relates to the business, results of operations or prospects of the Company.
(im) Such Except as disclosed in the most recent Preliminary Prospectus, the Selling Stockholder has not taken and will not taketaken, directly or indirectly, any action that is designed to or that has constituted or that could reasonably be expected to cause or result in the stabilization or manipulation of the price of any security of the Company to facilitate in connection with the sale or resale offering of the Shares.
(j) The sale shares of the Shares by such Selling Stockholder does not violate any of the Company’s internal policies regarding the sale of stock by its affiliatesStock. Any certificate signed by any officer of any such Selling Stockholder and delivered to the Underwriter Representatives or counsel for the Underwriter Underwriters in connection with the offering of the Shares Stock shall be deemed a representation and warranty by such Selling Stockholder, as to matters covered thereby, to the each Underwriter.
Appears in 1 contract
Representations and Warranties of the Selling Stockholders. Each Selling StockholderStockholder represents and warrants, severally and not jointly, represents and warrants to each U.S. Underwriter that:
(a) Neither such Selling Stockholder nor any person acting on behalf of such Selling Stockholder (other than, if applicable, the Company and the Underwriter) has used or referred to any “free writing prospectus” (as defined in Rule 405), relating to the Shares.
(b) Such Selling Stockholder has, now has valid and immediately prior marketable title to the Closing Date on which such Selling Stockholder is selling the Shares, such 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 (the “UCC”) in respect of, the Shares Class B Common Stock to be sold by such Selling Stockholder hereunder on such Closing Date free and clear of all liens, encumbrances, equities or claims.
(c) Upon payment for converted in the reclassification into the Shares to be sold by such Selling Stockholder, delivery and on the Closing Date and any Option Closing Date will have valid and marketable title to the Shares to be sold by such Selling Stockholder, free and clear of such Sharesany lien, claim, security interest or other encumbrance, including, without limitation, any restriction on transfer, except as directed otherwise described in the Prospectuses.
(b) Such 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 the Underwriterlaw, to Cede & Co. (“Cede”) or such other nominee as may be designated by The Depository Trust Company (“DTC”)sell, registration of assign, transfer and deliver such Shares in the name of Cede or such other nominee manner provided in this Agreement and the crediting International Underwriting Agreement, and upon delivery of and payment for such Shares on hereunder, the books several U.S. Underwriters will acquire valid and marketable title to such Shares free and clear of DTC to securities accounts of any lien, claim, security interest, or other encumbrance, assuming the Underwriter (assuming that neither DTC nor the Underwriter has U.S. Underwriters purchase such Shares for value therefor pursuant hereto without notice of any adverse claim claim, as defined in the Uniform Commercial Code as adopted in the State of New York (within the meaning "UCC") and are otherwise bona fide purchasers for the purposes of the UCC and that such U.S. Underwriters' rights are not limited by subsection (4) of Section 8-105 302 of the UCC) to such Shares), (i) DTC shall be a “protected purchaser” of such Shares within the meaning of Section 8-303 of the UCC, (ii) under Section 8-501 of the UCC, the Underwriter will acquire a valid security entitlement in respect of such Shares and (iii) no action based on any “adverse claim,” within the meaning of Section 8-102 of the UCC, to such Shares may be asserted against the Underwriter with respect to such security entitlement. For purposes of this representation, such Selling Stockholder may assume that when such payment, delivery and crediting occur, (A) such Shares will have been registered in the name of Cede or another nominee designated by DTC, in each case on the Company’s share registry in accordance with its certificate of incorporation, bylaws and applicable law, (B) DTC will be registered as a “clearing corporation” within the meaning of Section 8-102 of the UCC and (C) appropriate entries to the accounts of the Underwriter on the records of DTC will have been made pursuant to the UCC.
(d) Such Selling Stockholder has full right, power and authority, corporate or otherwise, to enter into this Agreement.
(ec) This Agreement has and the International Underwriting Agreement have been duly and validly authorized, executed and delivered by or on behalf of such Selling StockholderStockholder and are the valid and binding agreements of such Selling Stockholder enforceable against such Selling Stockholder in accordance with their terms, except as the enforcement hereof and thereof may be limited by bankruptcy, insolvency or other similar laws affecting the enforcement of creditors' right generally and subject to the applicability of general principles of equity, and except as rights to indemnity and contribution hereunder and thereunder may be limited by Federal or state securities laws or principles of public policy.
(fd) The Neither the sale of the Shares, the execution, delivery and or performance of this Agreement or the International Underwriting Agreement by or on behalf of such Selling Stockholder and nor the consummation by or on behalf of such Selling Stockholder of the transactions contemplated hereby and thereby do not and will not (i) requires any consent, approval, authorization or other order of, or registration or filing with, any court, regulatory body, administrative agency or other governmental body, agency or official (except such as may be required for the registration of the Shares under the Act or compliance with the securities or Blue Sky laws of various jurisdictions), or (ii) conflicts or will 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, in any material respect, any material agreement, indenture, mortgage, deed of trust, loan agreement, license lease or other instrument to which such Selling Stockholder is a party or by which such Selling Stockholder is or may be bound, or violates or will violate in any material respect any statute, law, regulation or filing or judgment, injunction, order or decree applicable to such Selling Stockholder, or will result in the creation or imposition of any material lien, charge or encumbrance upon any property or assets of such Selling Stockholder pursuant to the terms of any agreement or instrument to which such Selling Stockholder is a party or by which such Selling Stockholder is may be bound or to which any of the property or assets of such Selling Stockholder is subject, (ii) result in any violation of the provisions of the charter or by-laws or deed of trust (or similar organizational documents) of such Selling Stockholder, or (iii) result in any violation of any statute or any order, rule or regulation of any court or governmental agency or body having jurisdiction over such Selling Stockholder or the property or assets of such Selling Stockholder.
(ge) No consentSuch Selling Stockholder has not taken, approval, authorization directly or order of, or filing or registration withindirectly, any court action designed to or governmental agency that might reasonably be expected to cause or body having jurisdiction over such Selling Stockholder result in stabilization or manipulation of the property price of the Common Stock to facilitate the sale or assets resale of such Selling Stockholder is required the Shares, except for the executionlock-up arrangements referred to in the Prospectuses.
(f) To the extent, delivery but only to the extent, that any statements or omissions made in the Registration Statement, any Preliminary Prospectus, the Prospectuses or any amendment or supplement thereto are made in reliance upon and performance of this Agreement in conformity with written information furnished to the Company by such Selling Stockholder and the consummation by expressly for use therein, such Selling Stockholder of the transactions contemplated hereby and thereby, except for the registration of the Shares under the Securities Act and such consents, approvals, authorizations, registrations or qualifications as may be required under the Exchange Act and applicable state securities laws in connection with the purchase and sale of the Shares by the Underwriter.
(h) All material information with respect to such Selling Stockholder contained in each of the Registration Statement, the Preliminary Prospectus and the Pricing Disclosure Package (as amended Registration Statement did, and supplementedthe Prospectuses and any further amendments or supplements to the Registration Statement and the Prospectuses, if the Company shall have when they become effective or are filed with the Commission any amendment or supplement thereto) (i) complied and Commission, as the case may be, will comply conform in all material respects with all applicable provisions to the requirements of the Securities Act and the Rules rules and Regulations, (ii) contains regulations of the Commission thereunder and the Registration Statement will not contain all statements any untrue statement of a material fact or omit to state any material fact required to be stated therein in accordance with or necessary to make the Securities Act statements therein not misleading and the Rules Preliminary Prospectuses and Regulations, and (iii) does not and Prospectuses will not contain an include 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 therein, in the light of the circumstances under which they were made, not misleading. Solely with respect to the Metalmark Selling Stockholders (as defined in Schedule I hereto), such Selling Stockholder is not prompted to sell the Shares by any material non-public information relating to the business, results of operations or prospects of the Company and its subsidiaries of an adverse nature that is required to be disclosed in the Registration Statement, the Pricing Disclosure Package or the Prospectus. For this purpose, information that is set forth or incorporated by reference in the Registration Statement, the Pricing Disclosure Package or the Prospectus or that otherwise has been made publicly available about the Company shall be deemed to be public information, and any opinion or conclusion that a Metalmark Selling Stockholder may hold, or analysis performed by a Metalmark Selling Stockholder, in its capacity as an investor about the business, results of operations or prospects of the Company and its subsidiaries shall not be information that relates to the business, results of operations or prospects of the Company.
(i) Such Selling Stockholder has not taken and will not take, directly or indirectly, any action that is designed to or that has constituted or that could reasonably be expected to cause or result in the stabilization or manipulation of the price of any security of the Company to facilitate the sale or resale of the Shares.
(j) The sale of the Shares by such Selling Stockholder does not violate any of the Company’s internal policies regarding the sale of stock by its affiliates. Any certificate signed by any officer of any 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 such Selling Stockholder, as to matters covered thereby, to the Underwriter.
Appears in 1 contract
Samples: u.s. Underwriting Agreement (National Equipment Services Inc)
Representations and Warranties of the Selling Stockholders. Each Selling Stockholder, Stockholder severally and not jointly, represents and warrants to, and agrees with, each of the Underwriters that:
(a) Neither such Selling Stockholder nor any person acting on behalf of such Selling Stockholder (other than, if applicable, the Company and the Underwriter) has used or referred to any “free writing prospectus” (as defined in Rule 405), relating to the Shares.
(b) Such Selling Stockholder has, and immediately prior to the Closing Date on which such Selling Stockholder is selling the Shares, such 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 (the “UCC”) in respect of, the Shares to be sold by such Selling Stockholder hereunder on such Closing Date free and clear of all liens, encumbrances, equities or claims.
(c) Upon payment for the Shares to be sold by such Selling Stockholder, delivery of such Shares, as directed by the Underwriter, to Cede & Co. (“Cede”) or such other nominee as may be designated by The Depository Trust Company (“DTC”), registration of such Shares in the name of Cede or such other nominee and the crediting of such Shares on the books of DTC to securities accounts of the Underwriter (assuming that neither DTC nor the Underwriter has notice of any adverse claim (within the meaning of Section 8-105 of the UCC) to such Shares), (i) DTC shall be a “protected purchaser” of such Shares within the meaning of Section 8-303 of the UCC, (ii) under Section 8-501 of the UCC, the Underwriter will acquire a valid security entitlement in respect of such Shares and (iii) no action based on any “adverse claim,” within the meaning of Section 8-102 of the UCC, to such Shares may be asserted against the Underwriter with respect to such security entitlement. For purposes of this representation, such Selling Stockholder may assume that when such payment, delivery and crediting occur, (A) such Shares will have been registered in the name of Cede or another nominee designated by DTC, in each case on the Company’s share registry in accordance with its certificate of incorporation, bylaws and applicable law, (B) DTC will be registered as a “clearing corporation” within the meaning of Section 8-102 of the UCC and (C) appropriate entries to the accounts of the Underwriter on the records of DTC will have been made pursuant to the UCC.
(d) Such Selling Stockholder has full right, power and authority, corporate or otherwiseauthority to execute and deliver this Agreement, to enter into perform its obligations hereunder and to consummate the transactions contemplated by this Agreement.
(e) , the Registration Statement and the Prospectus. This Agreement and the transactions contemplated by this Agreement, the Registration Statement and the Prospectus have been duly and validly authorized by such Selling Stockholder. This Agreement has been duly and validly authorized, executed and delivered by or on behalf of such Selling Stockholder.
(f) The execution, delivery and performance of this Agreement by such Selling Stockholder and constitutes the consummation by such Selling Stockholder of the transactions contemplated hereby legal, valid and thereby 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, any indenture, mortgage, deed of trust, loan agreement, license or other agreement or instrument to which such Selling Stockholder is a party or by which such Selling Stockholder is bound or to which any of the property or assets of such Selling Stockholder is subject, (ii) result in any violation of the provisions of the charter or by-laws or deed of trust (or similar organizational documents) binding obligation of such Selling Stockholder, enforceable in accordance with its terms, except as enforceability may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or similar laws affecting creditors' rights generally and except as enforceability may be subject to general principles of equity (iiiregardless of whether such enforceability is considered in a proceeding in equity or at law).
(b) result in any violation of any statute or any order, rule or regulation of any court or governmental agency or body having jurisdiction over such Such Selling Stockholder or has full right, power and authority to execute and deliver a Custody Agreement and Power of Attorney substantially in the property or assets form of Exhibits B and C hereto (such Selling Stockholder.
(g) No consent's "Custody Agreement" and "Power of Attorney", approvalrespectively), authorization or order of, or filing or registration with, any court or governmental agency or body having jurisdiction over to perform its obligations thereunder and to consummate the transactions contemplated by its Custody Agreement and Power of Attorney. The Custody Agreement and Power of Attorney and the transactions contemplated by the Custody Agreement and Power of Attorney have been duly and validly authorized by such Selling Stockholder or the property or assets Stockholder. The Custody Agreement and Power of such Selling Stockholder is required for the execution, delivery Attorney have each been duly and performance of this Agreement validly executed and delivered by such Selling Stockholder and constitute the consummation by such Selling Stockholder legal, valid and binding obligation of the transactions contemplated hereby and thereby, except for the registration of the Shares under the Securities Act and such consents, approvals, authorizations, registrations or qualifications as may be required under the Exchange Act and applicable state securities laws in connection with the purchase and sale of the Shares by the Underwriter.
(h) All material information with respect to such Selling Stockholder contained in each of the Registration Statement, the Prospectus and the Pricing Disclosure Package (as amended and supplemented, if the Company shall have filed with the Commission any amendment or supplement thereto) (i) complied and will comply in all material respects with all applicable provisions of the Securities Act and the Rules and Regulations, (ii) contains and will contain all statements of material fact required to be stated therein in accordance with the Securities Act and the Rules and Regulations, and (iii) does not and will not contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary in order to make the statements therein not misleading. Solely with respect to the Metalmark Selling Stockholders (as defined in Schedule I hereto), such Selling Stockholder is not prompted to sell the Shares by any material non-public information relating to the business, results of operations or prospects of the Company and its subsidiaries of an adverse nature that is required to be disclosed in the Registration Statement, the Pricing Disclosure Package or the Prospectus. For this purpose, information that is set forth or incorporated by reference in the Registration Statement, the Pricing Disclosure Package or the Prospectus or that otherwise has been made publicly available about the Company shall be deemed to be public information, and any opinion or conclusion that a Metalmark Selling Stockholder may hold, or analysis performed by a Metalmark Selling Stockholder, in its capacity as an investor about the business, results of operations or prospects of the Company and its subsidiaries shall not be information that relates to the business, results of operations or prospects of the Company.
(i) Such Selling Stockholder has not taken and will not take, directly or indirectly, any action that is designed to or that has constituted or that could reasonably be expected to cause or result in the stabilization or manipulation of the price of any security of the Company to facilitate the sale or resale of the Shares.
(j) The sale of the Shares by such Selling Stockholder does not violate any of the Company’s internal policies regarding the sale of stock by its affiliates. Any certificate signed by any officer of any 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 such Selling Stockholder, enforceable in accordance with its terms, except as enforceability may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or similar laws affecting creditors' rights generally and except as enforceability may be subject to matters covered thereby, to the Underwriter.general principles of equity (regardless of whether such enforceability is considered in a proceeding in
Appears in 1 contract
Representations and Warranties of the Selling Stockholders. Each Selling Stockholder, severally and not jointly, represents and warrants to and agrees with each of the Underwriters that:
(a) Neither such Selling Stockholder nor any person acting This Agreement has been duly authorized, executed and delivered by or on behalf of such Selling Stockholder (other than, if applicable, the Company and the Underwriter) has used or referred to any “free writing prospectus” (as defined in Rule 405), relating to the Shares.
(b) Such Selling Stockholder has, and immediately prior to the Closing Date on which such Selling Stockholder is selling the Shares, such 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 (the “UCC”) in respect of, the Shares to be sold by such Selling Stockholder hereunder on such Closing Date free and clear of all liens, encumbrances, equities or claims.
(c) Upon payment for the Shares to be sold by such Selling Stockholder, delivery of such Shares, as directed by the Underwriter, to Cede & Co. (“Cede”) or such other nominee as may be designated by . The Depository Trust Company (“DTC”), registration of such Shares in the name of Cede or such other nominee and the crediting of such Shares on the books of DTC to securities accounts of the Underwriter (assuming that neither DTC nor the Underwriter has notice of any adverse claim (within the meaning of Section 8-105 of the UCC) to such Shares), (i) DTC shall be a “protected purchaser” of such Shares within the meaning of Section 8-303 of the UCC, (ii) under Section 8-501 of the UCC, the Underwriter will acquire a valid security entitlement in respect of such Shares and (iii) no action based on any “adverse claim,” within the meaning of Section 8-102 of the UCC, to such Shares may be asserted against the Underwriter with respect to such security entitlement. For purposes of this representation, such Selling Stockholder may assume that when such payment, delivery and crediting occur, (A) such Shares will have been registered in the name of Cede or another nominee designated by DTC, in each case on the Company’s share registry in accordance with its certificate of incorporation, bylaws and applicable law, (B) DTC will be registered as a “clearing corporation” within the meaning of Section 8-102 of the UCC and (C) appropriate entries to the accounts of the Underwriter on the records of DTC will have been made pursuant to the UCC.
(d) Such Selling Stockholder has full right, power and authority, corporate or otherwise, to enter into this Agreement.
(eb) This The Selling Stockholder has placed in custody under a custody agreement (the “Custody Agreement” and, together with all other similar agreements executed by the other Selling Stockholders, the Custody Agreements”) with Computershare Investor Services, as custodian (the “Custodian”), for delivery under this Agreement, the following: (i) shares of Common Stock, either in certificated form or book-entry form; (ii) duly completed and executed irrevocable Option exercise notices (the “Option Exercise Notices”), in the forms specified by any relevant Option Agreement between the Selling Stockholder and the Company, so that, in accordance with the terms and conditions set forth in such Option Agreements, the Selling Stockholder may purchase shares of Common Stock from the Company; (iii) any certificates representing shares of Common Stock to be sold by the Selling Stockholder hereunder, in negotiable form with signature guarantees as may be required by the transfer agent, registrar or depositary employed by the Company; and (iv) duly executed instruments of transfer in blank. The number of shares placed in custody with the Custodian, along with the shares of Common Stock issuable by the Company upon delivery of the Option Exercise Notices, represent in the aggregate at least the number of Shares to be sold by the Selling Stockholder hereunder.
(c) The Selling Stockholder has been duly and validly authorized, irrevocably executed and delivered a power of attorney (the “Power of Attorney” and, together with all other similar agreements executed by the other Selling Stockholders, the “Powers of Attorney”) appointing the Custodian and Messrs. Xxxxx X. Xxxxxx and Xxxxx Xxxxxxx as attorneys-in-fact, with full power of substitution, and with full authority (exercisable by any one or more of them) to execute and deliver this Agreement and to take such other action as may be necessary or desirable to carry out the provisions hereof on behalf of such the Selling Stockholder.
(fd) The execution, execution and delivery and performance of this Agreement by such Selling Stockholder of, and the consummation performance by such Selling Stockholder of its obligations under, this Agreement, the transactions contemplated hereby Custody Agreement, the Power of Attorney and thereby do not and the Option Exercise Notices will not (i) contravene, conflict with or result in a breach or violation of any of the terms or and provisions of, or constitute a default or Selling Stockholder Repayment Event (as defined below) under, or result in the creation or imposition of any indenturelien, mortgage, deed of trust, loan agreement, license charge or other agreement or instrument to which such Selling Stockholder is a party or by which such Selling Stockholder is bound or to which encumbrance upon any of the property or assets of such Selling Stockholder is subjectpursuant to any obligation, (ii) result in any violation of the provisions of the charter or by-laws or deed of trust (or similar organizational documents) of such Selling Stockholderagreement, or (iii) result in any violation of any statute or any order, rule or regulation of any court or governmental agency or body having jurisdiction over such Selling Stockholder or the property or assets of such Selling Stockholder.
(g) No consent, approval, authorization or order of, or filing or registration with, any court or governmental agency or body having jurisdiction over such Selling Stockholder or the property or assets of such Selling Stockholder is required for the execution, delivery and performance of this Agreement by such Selling Stockholder and the consummation by such Selling Stockholder of the transactions contemplated hereby and thereby, except for the registration of the Shares under the Securities Act and such consents, approvals, authorizations, registrations or qualifications as may be required under the Exchange Act and applicable state securities laws in connection with the purchase and sale of the Shares by the Underwriter.
(h) All material information with respect to such Selling Stockholder contained in each of the Registration Statement, the Prospectus and the Pricing Disclosure Package (as amended and supplemented, if the Company shall have filed with the Commission any amendment or supplement thereto) (i) complied and will comply in all material respects with all applicable provisions of the Securities Act and the Rules and Regulations, (ii) contains and will contain all statements of material fact required to be stated therein in accordance with the Securities Act and the Rules and Regulations, and (iii) does not and will not contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary in order to make the statements therein not misleading. Solely with respect to the Metalmark Selling Stockholders (as defined in Schedule I hereto), such Selling Stockholder is not prompted to sell the Shares by any material non-public information relating to the business, results of operations or prospects of the Company and its subsidiaries of an adverse nature that is required to be disclosed in the Registration Statement, the Pricing Disclosure Package or the Prospectus. For this purpose, information that is set forth or incorporated by reference in the Registration Statement, the Pricing Disclosure Package or the Prospectus or that otherwise has been made publicly available about the Company shall be deemed to be public information, and any opinion or conclusion that a Metalmark Selling Stockholder may hold, or analysis performed by a Metalmark Selling Stockholder, in its capacity as an investor about the business, results of operations or prospects of the Company and its subsidiaries shall not be information that relates to the business, results of operations or prospects of the Company.
(i) Such Selling Stockholder has not taken and will not take, directly or indirectly, any action that is designed to or that has constituted or that could reasonably be expected to cause or result in the stabilization or manipulation of the price of any security of the Company to facilitate the sale or resale of the Shares.
(j) The sale of the Shares by such Selling Stockholder does not violate any of the Company’s internal policies regarding the sale of stock by its affiliates. Any certificate signed by any officer of any 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 such Selling Stockholder, as to matters covered thereby, to the Underwriter.covenant or
Appears in 1 contract
Representations and Warranties of the Selling Stockholders. Each of the Selling Stockholder, severally and not jointly, Stockholders hereby represents and warrants thatto each Underwriter as of the date hereof and as of the Firm Shares Closing Date, as follows:
(a) Neither such Selling Stockholder nor any person acting on behalf of such Selling Stockholder (other than, if applicable, the Company and the Underwriter) has used or referred to any “free writing prospectus” (as defined in Rule 405), relating to the Shares.
(b) Such Selling Stockholder has, and immediately prior to has caused certificates for the Closing Date on which such Selling Stockholder is selling the Shares, such Selling Stockholder will have, good and valid title to or a valid “security entitlement” within the meaning number of Section 8-501 of the New York Uniform Commercial Code (the “UCC”) in respect of, the Shares to be sold by such Selling Stockholder hereunder on to be delivered to Continental Stock Transfer & Trust Company (the “Custodian”), endorsed in blank or with blank stock powers duly executed, with a signature appropriately guaranteed, such Closing Date free certificates to be held in custody by the Custodian for delivery, pursuant to the provisions of this Agreement and clear of all liens, encumbrances, equities or claimsa Custody Agreement among the Custodian and the Selling Stockholders substantially in the form attached hereto as Exhibit B (the “Custody Agreement”).
(cb) Upon payment for Such Selling Stockholder has granted an irrevocable power of attorney substantially in the Shares form attached hereto as Exhibit C (the “Power of Attorney”) to the person named therein, on behalf of such Selling Stockholder, to execute and deliver this Agreement and any other document necessary or desirable in connection with the transactions contemplated hereby and to deliver the shares to be sold by such Selling Stockholder, delivery of such Shares, as directed by the Underwriter, to Cede & Co. (“Cede”) or such other nominee as may be designated by The Depository Trust Company (“DTC”), registration of such Shares in the name of Cede or such other nominee and the crediting of such Shares on the books of DTC to securities accounts of the Underwriter (assuming that neither DTC nor the Underwriter has notice of any adverse claim (within the meaning of Section 8-105 of the UCC) to such Shares), (i) DTC shall be a “protected purchaser” of such Shares within the meaning of Section 8-303 of the UCC, (ii) under Section 8-501 of the UCC, the Underwriter will acquire a valid security entitlement in respect of such Shares and (iii) no action based on any “adverse claim,” within the meaning of Section 8-102 of the UCC, to such Shares may be asserted against the Underwriter with respect to such security entitlement. For purposes of this representation, such Selling Stockholder may assume that when such payment, delivery and crediting occur, (A) such Shares will have been registered in the name of Cede or another nominee designated by DTC, in each case on the Company’s share registry in accordance with its certificate of incorporation, bylaws and applicable law, (B) DTC will be registered as a “clearing corporation” within the meaning of Section 8-102 of the UCC and (C) appropriate entries to the accounts of the Underwriter on the records of DTC will have been made pursuant to the UCChereto.
(d) Such Selling Stockholder has full right, power and authority, corporate or otherwise, to enter into this Agreement.
(ec) This Agreement, the Custody Agreement, the Power of Attorney and the Lock-Up Agreement has have each been duly and validly authorized, executed and delivered by or on behalf of such Selling Stockholder and, assuming due authorization, execution and delivery by the other parties thereto, constitutes the valid and legally binding agreement of such Selling Stockholder, enforceable against such Selling Stockholder in accordance with its terms.
(fd) The execution, execution and delivery and performance by such Selling Stockholder of this Agreement and the performance by such Selling Stockholder of its obligations under this Agreement, including the sale and delivery of the Shares to be sold by such Selling Stockholder and the consummation of the transactions contemplated herein and compliance by such Selling Stockholder of the transactions contemplated hereby and thereby with its obligations hereunder, do not and will not not, whether with or without the giving of notice or the passage of time or both: (i) violate or contravene any provision of the charter or bylaws or other organizational instrument of such Selling Stockholder, if applicable, or any applicable law, statute, regulation, or filing 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, (ii) conflict with or result in constitute a breach or violation of any of the terms or provisions of, or constitute a default under, or result in the creation or imposition of any indenture, mortgage, deed tax or Lien upon the shares to be sold by such Selling Stockholder or any property or assets of trust, loan agreement, license or other such Selling Stockholder pursuant to the terms of any agreement or instrument to which such Selling Stockholder is a party or by which such Selling Stockholder is may be bound or to which any of the property or assets of such Selling Stockholder is subject, (ii) result in any violation of the provisions of the charter or by-laws or deed of trust (or similar organizational documents) of such Selling Stockholder, subject or (iii) result in require any violation consent, approval, authorization or order of any statute or any order, rule registration or regulation of filing with any court or governmental agency or body having jurisdiction over it, except such as may be required by the Blue Sky laws of the various states in connection with the offer and sale of the Shares which have been or will be effected in accordance with this Agreement.
(e) Such Selling Stockholder has, and on the Firm Shares Closing Date will have, valid and marketable title to the Shares to be sold by such Selling Stockholder or free and clear of any Lien, including, without limitation, any restriction on transfer, except as otherwise described in the property or assets of Registration Statement and Prospectus.
(f) Such Selling Stockholder has, and on the Firm Shares Closing Date will have, full legal right, power and authority, and any approval required by law, to sell, assign, transfer and deliver the Shares to be sold by such Selling StockholderStockholder in the manner provided by this Agreement.
(g) No consent, approval, authorization or order of, or filing or registration with, any court or governmental agency or body having jurisdiction over such Selling Stockholder or the property or assets Upon delivery of such Selling Stockholder is required and payment for the execution, delivery and performance of this Agreement Shares to be sold by such Selling Stockholder pursuant to this Agreement, assuming each Underwriter has no notice of any adverse claim, the several Underwriters will receive valid and the consummation by marketable title to such Selling Stockholder Shares free and clear of the transactions contemplated hereby and thereby, except for the registration of the Shares under the Securities Act and such consents, approvals, authorizations, registrations or qualifications as may be required under the Exchange Act and applicable state securities laws in connection with the purchase and sale of the Shares by the Underwriterany Lien.
(h) All material information with respect relating to such Selling Stockholder contained furnished in each of the Registration Statement, the Prospectus and the Pricing Disclosure Package (as amended and supplemented, if the Company shall have filed with the Commission any amendment or supplement thereto) writing by such Selling Stockholder expressly for use (i) complied in the Registration Statement and will comply in all material respects with all applicable provisions of the Securities Act Prospectus and the Rules and Regulations, (ii) contains by the Representative in connection with FINRA’s review of the Underwriters’ compensation in connection with transaction contemplated hereby is, and on the Firm Shares Closing Date will be, true, correct, and complete, and does not, and on the Firm Shares Closing Date will not, contain any untrue statement of a material fact or omit to state any material fact necessary to make such information not misleading.
(i) Such Selling Stockholder has reviewed the Registration Statement and Prospectus and, although such Selling Stockholder has not independently verified the accuracy or completeness of all statements the information contained therein, nothing has come to the attention of such Selling Stockholder that would lead such Selling Stockholder to believe that: (i) on the Effective Date, the Registration Statement contained any untrue statement of a material fact or omitted to state any material fact required to be stated therein in accordance with order to make the Securities Act and statements made therein not misleading; (ii) on the Rules and RegulationsEffective Date the Prospectus contained and, and (iii) does not and will not contain an on each Closing Date contains, any untrue statement of a material fact or omit omitted or omits to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading; and (iii) as of the Applicable Time, the General Disclosure Package included any untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary in order to make the statements therein therein, in the light of the circumstances under which they were made, not misleading. Solely The preceding sentence applies only to statements in or omissions from any such document in reliance upon and in conformity with written information furnished to the Company by such Selling Stockholder specifically for use therein, it being understood and agreed that the only such information consists of information with respect to the Metalmark Selling Stockholders (as defined in Schedule I hereto), such Selling Stockholder is not prompted to sell that appears in the Shares by table and corresponding footnotes thereto (excluding any material non-public information relating to percentages) under the business, results of operations or prospects of the Company caption “Principal and its subsidiaries of an adverse nature that is required to be disclosed Selling Stockholders” in the Registration Statement, the Pricing Prospectus and the General Disclosure Package (the “Selling Stockholder Information”).
(j) The sale of Shares by such Selling Stockholder pursuant to this Agreement is not prompted by such Selling Stockholder’s knowledge of any material information concerning the Company or any of its Subsidiaries which is not set forth in the Prospectus. For this purpose, information that is set forth or incorporated by reference in the Registration Statement, the Pricing Disclosure Package or the Prospectus or that otherwise has been made publicly available about the Company shall be deemed to be public information, and any opinion or conclusion that a Metalmark .
(k) Neither such Selling Stockholder may holdnor, or analysis performed by a Metalmark to the knowledge of such Selling Stockholder, in its capacity as an investor about any other person associated with or acting on behalf of such Selling Stockholder (including, without limitation, any director, officer, agent or employee of such Selling Stockholder) has offered or caused the business, results Underwriters to offer any of operations the Shares to any individual or prospects entity with the specific intent to unlawfully influence: (i) a customer or supplier of the Company and or such Selling Stockholder to alter the customer’s or supplier’s level or type of business with the Company or such Selling Stockholder or (ii) a journalist or publication to write or publish favorable information about such Selling Stockholder, the Company or its subsidiaries shall not be information that relates to the business, results of operations or prospects of the Companyproducts.
(il) Such Selling Stockholder has not taken and will not take, directly or indirectly, any action that is designed to or that has constituted or that could might reasonably be expected to cause or result in the stabilization or manipulation of the price of any security of the Company to facilitate the sale or resale of the Shares.
(jm) The sale of the Shares by such Such Selling Stockholder does not violate have actual knowledge that any representation or warranty of the Company’s internal policies regarding the sale of stock by its affiliates. Any certificate signed by Company set forth in Section 2 above is untrue or inaccurate in any officer of any material respect.
(n) Such Selling Stockholder and has not prepared, used or referred to, nor will it prepare, use or refer to, any “free writing prospectus” (as defined in Rule 405 of the Rules).
(o) If the Selling Stockholder is: (i) acting through a trustee or via any fiduciary or representative capacity, such Selling Stockholder has delivered to the Underwriter Representative true and complete copies of each trust agreement, will, letters testamentary or counsel for other instrument which demonstrate the Underwriter in connection with authorization of such Selling Stockholder to enter into this Agreement, the offering Custody Agreement, and the Power of Attorney and effect the transactions contemplated hereby and thereby; or (ii) a limited liability company, such Selling Stockholder has delivered to the Representative true and accurate extracts of any applicable provisions of its operating agreement (and applicable provisions of the Shares shall be deemed a representation and warranty by organizational documents) authorizing such Selling StockholderStockholder to enter into this Agreement, as to matters covered the Custody Agreement, and the Power of Attorney and effect the transactions contemplated hereby and thereby, to the Underwriter.
Appears in 1 contract
Samples: Underwriting Agreement (Pioneer Power Solutions, Inc.)
Representations and Warranties of the Selling Stockholders. Each of the Selling Stockholder, Stockholders severally and not jointly, jointly hereby represents and warrants thatto each Underwriter as of the date hereof, as of the Firm Shares Closing Date and as of each such Option Shares Closing Date (if any), as follows:
(a) Neither such Each Selling Stockholder nor any person acting listed as a “Custodial Stockholder” on behalf of such Selling Stockholder (other than, if applicable, the Company and the Underwriter) has used or referred Schedule II to any “free writing prospectus” (as defined in Rule 405), relating to the Shares.
(b) Such Selling Stockholder has, and immediately prior to the Closing Date on which such Selling Stockholder is selling the Shares, such 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 this Agreement (the “UCCCustodial Stockholders”) in respect of, has caused the number of Shares to be sold by such Selling Stockholder hereunder to be delivered to Continental Stock Transfer & Trust Co. (the “Custodian”), endorsed in blank or with blank stock powers duly executed, with a signature appropriately guaranteed, such Shares to be held in custody by the Custodian for delivery, pursuant to the provisions of this Agreement and an agreement dated on such Closing Date free or about September 6, 2013 between the Custodian and clear each of all liensthe Custodial Stockholders substantially in the form attached hereto as Exhibit B (the “Custody Agreement”).
(b) Each Custodial Stockholder has granted an irrevocable power of attorney substantially in the form attached hereto as Exhibit C (the “Power of Attorney”) to the persons named therein, encumbrances, equities to execute and deliver this Agreement and any other document necessary or claimsdesirable in connection with the transactions contemplated hereby and to deliver the shares to be sold by each of the Custodial Stockholders pursuant hereto.
(c) Upon payment for the Shares to be sold by such Selling Stockholder, delivery of such Shares, as directed by the Underwriter, to Cede & Co. (“Cede”) or such other nominee as may be designated by The Depository Trust Company (“DTC”), registration of such Shares in the name of Cede or such other nominee This Agreement and the crediting of such Shares on the books of DTC to securities accounts of the Underwriter (assuming that neither DTC nor the Underwriter has notice of any adverse claim (within the meaning of Section 8Lock-105 of the UCC) to such Shares), (i) DTC shall be a “protected purchaser” of such Shares within the meaning of Section 8-303 of the UCC, (ii) under Section 8-501 of the UCC, the Underwriter will acquire a valid security entitlement in respect of such Shares and (iii) no action based on any “adverse claim,” within the meaning of Section 8-102 of the UCC, to such Shares may be asserted against the Underwriter with respect to such security entitlement. For purposes of this representation, such Selling Stockholder may assume that when such payment, delivery and crediting occur, (A) such Shares will Up Agreement 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, (B) DTC will be registered as a “clearing corporation” within the meaning of Section 8-102 of the UCC and (C) appropriate entries to the accounts of the Underwriter on the records of DTC will have been made pursuant to the UCC.
(d) Such Selling Stockholder has full right, power and authority, corporate or otherwise, to enter into this Agreement.
(e) This Agreement has been duly and validly authorized, executed and delivered by or on behalf of each Selling Stockholder and, assuming due authorization, execution and delivery by the other parties thereto, constitutes the valid and legally binding agreement of each Selling Stockholder, enforceable against each such Selling Stockholder in accordance with its terms. The Custody Agreement and the Power of Attorney have each been duly authorized, executed and delivered by or on behalf of each Custodial Stockholder and, assuming due authorization, execution and delivery by the other parties thereto, constitutes the valid and legally binding agreement of each Custodial Stockholder, enforceable against each such Custodial Stockholder in accordance with its terms.
(fd) The execution, execution and delivery and performance by each Selling Stockholder of this Agreement and the performance by each Selling Stockholder of its obligations under this Agreement, including the sale and delivery of the Shares to be sold by each such Selling Stockholder and the consummation by such Selling Stockholder of the transactions contemplated hereby herein and thereby compliance by each Selling Stockholder with its obligations hereunder, do not and will not not, whether with our without the giving of notice or the passage of time or both, (i) violate or contravene any provision of the charter or bylaws or other organizational instrument of any Selling Stockholder, if applicable, or any applicable law, statute, regulation, or filing or any agreement or other instrument binding upon any Selling Stockholder or any judgment, order or decree of any governmental body, agency or court having jurisdiction over any Selling Stockholder, (ii) conflict with or result in constitute a breach or violation of any of the terms or provisions of, or constitute a default under, or result in the creation or imposition of any indenturetax, mortgagelien, deed charge or encumbrance upon the shares to be sold by any Selling Stockholder or any property or assets of trust, loan agreement, license or other any Selling Stockholder pursuant to the terms of any agreement or instrument to which such any Selling Stockholder is a party or by which such any Selling Stockholder is may be bound or to which any of the property or assets of such any Selling Stockholder is subject, (ii) result in any violation of the provisions of the charter or by-laws or deed of trust (or similar organizational documents) of such Selling Stockholder, subject or (iii) result in require any violation consent, approval, authorization or order of any statute or any order, rule registration or regulation of filing with any court or governmental agency or body having jurisdiction over it, except such as may be required by the Blue Sky laws of the various states in connection with the offer and sale of the Shares which have been or will be effected in accordance with this Agreement.
(e) Each Selling Stockholder has, and on the Firm Shares Closing Date and the Option Share Closing Date, if applicable, 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, except as otherwise described in the property or assets of Registration Statement and Prospectus.
(f) Each Selling Stockholder has, and on the Firm Shares Closing Date and the Option Share Closing Date, if applicable, will have, full legal right, power and authority, and any approval required by law, to sell, assign, transfer and deliver the Shares to be sold by such Selling StockholderStockholder in the manner provided by this Agreement.
(g) No consent, approval, authorization or order of, or filing or registration with, any court or governmental agency or body having jurisdiction over such Upon delivery of and payment for the Shares to be sold by each Selling Stockholder pursuant to this Agreement, assuming each Underwriter has no notice of any adverse claim, the several Underwriters will receive valid and marketable title to such Shares free and clear of any lien, claim, mortgage, pledge, security interest or the property or assets of such Selling Stockholder is required for the execution, delivery and performance of this Agreement by such Selling Stockholder and the consummation by such Selling Stockholder of the transactions contemplated hereby and thereby, except for the registration of the Shares under the Securities Act and such consents, approvals, authorizations, registrations or qualifications as may be required under the Exchange Act and applicable state securities laws in connection with the purchase and sale of the Shares by the Underwriterother encumbrance.
(h) All material information with respect to such Selling Stockholder contained in each of the The Registration Statement, the Prospectus and any Issuer Free Writing Prospectus, and any further amendments or supplements to the Pricing Disclosure Package (Registration Statement and the Prospectus, do not and will not, as amended of the applicable effective date as to each part of the Registration Statement and supplemented, if as of the Company shall have filed with applicable filing date as to the Commission Prospectus and any amendment or supplement thereto) (i) complied and will comply in all material respects with all applicable provisions of the Securities Act and the Rules and Regulationsthereto or to any Issuer Free Writing Prospectus, (ii) contains and will contain all statements of material fact required to be stated therein in accordance with the Securities Act and the Rules and Regulations, and (iii) does not and will not contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary in order to make the statements therein not misleading. Solely with respect The preceding sentence applies only to the Metalmark Selling Stockholders (as defined extent statements in Schedule I hereto), such Selling Stockholder is not prompted to sell the Shares by any material non-public information relating to the business, results of operations or prospects of the Company and its subsidiaries of an adverse nature that is required to be disclosed in omissions from the Registration Statement, the Pricing Disclosure Package Prospectus or any Issuer Free Writing Prospectus are based upon written information furnished to the Company by such Selling Stockholder specifically for use therein (the “Prospectus Selling Stockholder Information”); it being understood and agreed that the Prospectus Selling Stockholder Information consists only of the information concerning such Selling Stockholder under the caption “Principal and Selling Stockholders” in the Prospectus. For this purpose, information that is set forth or incorporated by reference in the Registration Statement, the Pricing Disclosure Package or the Prospectus or that otherwise has been made publicly available about the Company shall be deemed to be public information, and any opinion or conclusion that a Metalmark Selling Stockholder may hold, or analysis performed by a Metalmark Selling Stockholder, in its capacity as an investor about the business, results of operations or prospects of the Company and its subsidiaries shall not be information that relates to the business, results of operations or prospects of the Company.
(i) Such The sale of Shares by each Selling Stockholder pursuant to this Agreement is not prompted by such Selling Stockholder’s knowledge of any material information concerning the Company or any of its subsidiaries which is not set forth in the Prospectus.
(j) No Selling Stockholder has not taken and will not take, directly or indirectly, any action that is designed to or that has constituted or that could might reasonably be expected to cause or result in the stabilization or manipulation of the price of any security of the Company to facilitate the sale or resale of the Shares.
(jk) No Selling Stockholder has prepared, used or referred to, nor will it prepare, use or refer to, any “free writing prospectus” (as defined in Rule 405 of the Rules).
(l) The sale representations and warranties of each Custodial Stockholder in the Shares by such Selling Stockholder does not violate any of the Company’s internal policies regarding the sale of stock by its affiliates. Any certificate signed by any officer of any Selling Stockholder Custody Agreement are and delivered to the Underwriter or counsel for the Underwriter in connection with the offering of the Shares shall be deemed a representation on each Closing Date will be, true and warranty by such Selling Stockholder, as to matters covered thereby, to the Underwritercorrect.
Appears in 1 contract
Representations and Warranties of the Selling Stockholders. Each Selling StockholderStockholder represents and warrants, severally and not jointly, represents and warrants to each Underwriter that:
(a) Neither such Selling Stockholder nor any person acting on behalf of such Selling Stockholder (other than, if applicable, the Company and the Underwriter) has used or referred to any “free writing prospectus” (as defined in Rule 405), relating to the Shares.
(b) Such Selling Stockholder has, and immediately prior to is the Closing Date on which such Selling Stockholder is selling the Shares, such Selling Stockholder will have, good and valid title to or a valid “security entitlement” within the meaning lawful owner of Section 8-501 of the New York Uniform Commercial Code (the “UCC”) in respect of, the Shares to be sold by such Selling Stockholder hereunder pursuant to this Agreement and has, and on such the Closing Date free will have, good and clear title to such Shares, free of all restrictions on transfer, liens, encumbrances, security interests, equities or claimsand claims whatsoever.
(b) The Shares to be sold by such Selling Stockholder have been duly authorized and are validly issued, fully paid and non-assessable.
(c) Upon payment for Such Selling Stockholder has, and on the Closing Date will have, full legal right, power and authority, and all authorization and approval required by law, to enter into this Agreement, the Custody Agreement, as appropriate, signed by such Selling Stockholder and The First National Bank of Boston, as Custodian, relating to the deposit of the Shares to be sold by such Selling Stockholder, delivery of such Shares, as directed by Stockholder (the Underwriter, to Cede & Co. (“Cede”"CUSTODY AGREEMENT") 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 Power of such Shares on the books Attorney of DTC to securities accounts of the Underwriter (assuming that neither DTC nor the Underwriter has notice of any adverse claim (within the meaning of Section 8-105 of the UCC) to such Shares), (i) DTC shall be a “protected purchaser” of such Shares within the meaning of Section 8-303 of the UCC, (ii) under Section 8-501 of the UCC, the Underwriter will acquire a valid security entitlement in respect of such Shares and (iii) no action based on any “adverse claim,” within the meaning of Section 8-102 of the UCC, to such Shares may be asserted against the Underwriter with respect to such security entitlement. For purposes of this representation, such Selling Stockholder may assume that when appointing certain individuals as such paymentSelling Stockholder's attorneys-in-fact (the "ATTORNEYS") to the extent set forth therein, delivery relating to the transactions contemplated hereby and crediting occurby the Registration Statement and the Custody Agreement, as appropriate (Athe "POWER OF ATTORNEY") and to sell, assign, transfer and deliver the Shares to be sold by such Shares will have been registered Selling Stockholder 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 manner provided herein and applicable law, (B) DTC will be registered as a “clearing corporation” within the meaning of Section 8-102 of the UCC and (C) appropriate entries to the accounts of the Underwriter on the records of DTC will have been made pursuant to the UCCtherein.
(d) Such Selling Stockholder has full right, power and authority, corporate or otherwise, to enter into this Agreement.
(e) This Agreement has been duly and validly authorized, executed and delivered by or on behalf of such Selling Stockholder.
(e) The Custody Agreement, as appropriate, of such Selling Stockholder has been duly authorized, executed and delivered by such Selling Stockholder and is a valid and binding agreement of such Selling Stockholder, enforceable in accordance with its terms.
(f) The Power of Attorney of such Selling Stockholder has been duly authorized, executed and delivered by such Selling Stockholder and is a valid and binding instrument of such Selling Stockholder, enforceable in accordance with its terms, and, pursuant to such Power of Attorney, such Selling Stockholder has, among other things, authorized the Attorneys, or any one of them, to execute and deliver on such Selling Stockholder's behalf this Agreement and any other document that they, or any one of them, may deem necessary or desirable in connection with transactions contemplated hereby and thereby and to deliver the Shares to be sold by such Selling Stockholder pursuant to this Agreement.
(g) Upon delivery of and payment for the Shares to be sold by such Selling Stockholder pursuant to this Agreement, good and clear title to such Shares will pass to the Underwriters, free of all restrictions on transfer, liens, encumbrances, security interests, equities and claims whatsoever.
(h) The execution, delivery and performance of this Agreement and the Custody Agreement, as appropriate, and Power of Attorney of such Selling Stockholder by or on behalf of such Selling Stockholder, compliance by such Selling Stockholder with all the provisions hereof and thereof and the consummation by such Selling Stockholder of the transactions contemplated hereby and thereby do will not require any consent, approval, authorization or other order of, or qualification with, any court or governmental body or agency (except such as may be required under the securities or Blue Sky laws of the various states) and will not (i) conflict with or result in constitute a breach or violation of any of the terms or provisions of, or constitute a default under, the organizational documents of such Selling Stockholder, if such Selling Stockholder is not an individual, or any indenture, mortgage, deed of trust, loan agreement, license mortgage, lease or other agreement or instrument to which such Selling Stockholder is a party or by which such Selling Stockholder is bound or to which any of the property or assets of such Selling Stockholder is subject, (ii) result in any violation of the provisions of the charter or by-laws or deed of trust (or similar organizational documents) of such Selling Stockholderbound, or (iii) result in violate or conflict with any violation of any statute applicable law or any orderrule, rule regulation, judgment, order or regulation decree of any court or any governmental body or agency or body having jurisdiction over such Selling Stockholder or the any property or assets of such Selling Stockholder.
(gi) No consent, approval, authorization or order of, or filing or registration with, any court or governmental agency or body having jurisdiction over such Selling Stockholder or The information in the property or assets of such Selling Stockholder is required for the execution, delivery and performance of this Agreement by such Selling Stockholder and the consummation by such Selling Stockholder of the transactions contemplated hereby and thereby, except for the registration of the Shares Registration Statement under the Securities Act and such consents, approvals, authorizations, registrations or qualifications as may be required under the Exchange Act and applicable state securities laws in connection with the purchase and sale of the Shares by the Underwriter.
(h) All material information with respect caption "Selling Stockholders" which specifically relates to such Selling Stockholder contained in each of the Registration Statementdoes not, the Prospectus and the Pricing Disclosure Package (as amended and supplemented, if the Company shall have filed with the Commission any amendment or supplement thereto) (i) complied and will comply in all material respects with all applicable provisions of the Securities Act and the Rules and Regulations, (ii) contains and will contain all statements of material fact required to be stated therein in accordance with the Securities Act and the Rules and Regulations, and (iii) does not and will not on the Closing Date, contain an any untrue statement of a material fact or omit to state a any material fact required to be stated therein or necessary in order to make the statements therein therein, in the light of the circumstances under which they were made, not misleading. Solely with respect .
(j) At any time during the period described in Section 5(d), if there is any change in the information referred to the Metalmark Selling Stockholders (as defined in Schedule I heretoSection 7(i), such Selling Stockholder is not prompted to sell the Shares by any material non-public information relating to the business, results will immediately notify you of operations or prospects of the Company and its subsidiaries of an adverse nature that is required to be disclosed in the Registration Statement, the Pricing Disclosure Package or the Prospectus. For this purpose, information that is set forth or incorporated by reference in the Registration Statement, the Pricing Disclosure Package or the Prospectus or that otherwise has been made publicly available about the Company shall be deemed to be public information, and any opinion or conclusion that a Metalmark Selling Stockholder may hold, or analysis performed by a Metalmark Selling Stockholder, in its capacity as an investor about the business, results of operations or prospects of the Company and its subsidiaries shall not be information that relates to the business, results of operations or prospects of the Companysuch change.
(i) Such Selling Stockholder has not taken and will not take, directly or indirectly, any action that is designed to or that has constituted or that could reasonably be expected to cause or result in the stabilization or manipulation of the price of any security of the Company to facilitate the sale or resale of the Shares.
(j) The sale of the Shares by such Selling Stockholder does not violate any of the Company’s internal policies regarding the sale of stock by its affiliates. Any certificate signed by any officer of any 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 such Selling Stockholder, as to matters covered thereby, to the Underwriter.
Appears in 1 contract
Samples: Underwriting Agreement (Florida Panthers Holdings Inc)
Representations and Warranties of the Selling Stockholders. Each Selling Stockholder, severally and not jointly, Stockholder represents and warrants to, and agrees with, the Underwriter, and shall be deemed to represent and warrant to the Underwriter on the Closing Date, that:
(a) Neither Such Selling Stockholder has full right, power and authority to execute and deliver this Agreement, to perform its obligations hereunder and to consummate the transactions contemplated by this Agreement. This Agreement and the transactions contemplated by this Agreement have been duly and validly authorized by such Selling Stockholder nor any person acting on behalf of Stockholder. This Agreement has been duly and validly executed and delivered by such Selling Stockholder (other than, if applicable, the Company and the Underwriter) has used or referred to any “free writing prospectus” (as defined in Rule 405), relating to the SharesStockholder.
(b) Such Selling Stockholder is, and on the Closing Date will be, the record and beneficial owner of the Shares to be sold by it hereunder, free and clear of all Liens. Such Selling Stockholder has, and immediately prior to on the Closing Date on which such Selling Stockholder is selling the Shares, such Selling Stockholder will have, good and valid title to to, or a valid “security entitlement” (within the meaning of Section 8-501 of the New York Uniform Commercial Code (the “UCC”)) in with respect of, the Shares to be sold by such Selling Stockholder hereunder on such Closing Date Stockholder’s Shares, free and clear of all liens, encumbrances, equities or claims.
(c) Upon payment for Liens. Assuming that the Underwriter acquires its interest in the Shares to be sold by it has purchased from such Selling Stockholder, delivery of such Shares, as directed by the Underwriter, to Cede & Co. (“Cede”) or such other nominee as may be designated by The Depository Trust Company (“DTC”), registration of such Shares in the name of Cede or such other nominee and the crediting of such Shares on the books of DTC to securities accounts of the Underwriter (assuming that neither DTC nor the Underwriter has Stockholder without notice of any adverse claim (within the meaning of Section 8-105 of the New York Uniform Commercial Code (“UCC) to such Shares”)), (i) DTC shall be a “protected purchaser” the Underwriter, upon purchase of such Shares delivered on the Closing Date to The Depository Trust Company or other securities intermediary by making payment therefor as provided herein, and upon credit to its securities account that is maintained with The Depository Trust Company or such other securities intermediary, will acquire a valid “security entitlement” (within the meaning of Section 8-303 102(a)(17) of the UCC) to such Shares, (ii) under Section 8-501 of the UCC, the Underwriter will acquire a valid security entitlement in respect of such Shares and (iii) no action based on any “an adverse claim,” claim (within the meaning of Section 8-102 102(a)(1) of the UCC, to such Shares ) may be asserted against the Underwriter with respect to such security entitlement. For purposes of this representation, such Selling Stockholder may assume that when such payment, delivery and crediting occur, (A) such Shares will have been registered in the name of Cede or another nominee designated by DTC, in each case on the Company’s share registry in accordance with its certificate of incorporation, bylaws and applicable law, (B) DTC will be registered as a “clearing corporation” within the meaning of Section 8-102 of the UCC and (C) appropriate entries to the accounts of the Underwriter on the records of DTC will have been made pursuant to the UCCShares.
(d) Such Selling Stockholder has full right, power and authority, corporate or otherwise, to enter into this Agreement.
(e) This Agreement has been duly and validly authorized, executed and delivered by or on behalf of such Selling Stockholder.
(f) The execution, delivery and performance of this Agreement by such Selling Stockholder and the consummation by such Selling Stockholder of the transactions contemplated hereby and thereby 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, any indenture, mortgage, deed of trust, loan agreement, license or other agreement or instrument to which such Selling Stockholder is a party or by which such Selling Stockholder is bound or to which any of the property or assets of such Selling Stockholder is subject, (ii) result in any violation of the provisions of the charter or by-laws or deed of trust (or similar organizational documents) of such Selling Stockholder, or (iii) result in any violation of any statute or any order, rule or regulation of any court or governmental agency or body having jurisdiction over such Selling Stockholder or the property or assets of such Selling Stockholder.
(g) No consent, approval, authorization or order of, or filing or registration with, any court or governmental agency or body having jurisdiction over such Selling Stockholder or the property or assets of such Selling Stockholder is required for the execution, delivery and performance of this Agreement by such Selling Stockholder and the consummation by such Selling Stockholder of the transactions contemplated hereby and thereby, except for the registration of the Shares under the Securities Act and such consents, approvals, authorizations, registrations or qualifications as may be required under the Exchange Act and applicable state securities laws in connection with the purchase and sale of the Shares by the Underwriter.
(h) All material information with respect to such Selling Stockholder contained in each of the Registration Statement, the Prospectus and the Pricing Disclosure Package (as amended and supplemented, if the Company shall have filed with the Commission any amendment or supplement thereto) (i) complied and will comply in all material respects with all applicable provisions of the Securities Act and the Rules and Regulations, (ii) contains and will contain all statements of material fact required to be stated therein in accordance with the Securities Act and the Rules and Regulations, and (iii) does not and will not contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary in order to make the statements therein not misleading. Solely with respect to the Metalmark Selling Stockholders (as defined in Schedule I hereto), such Selling Stockholder is not prompted to sell the Shares by any material non-public information relating to the business, results of operations or prospects of the Company and its subsidiaries of an adverse nature that is required to be disclosed in the Registration Statement, the Pricing Disclosure Package or the Prospectus. For this purpose, information that is set forth or incorporated by reference in the Registration Statement, the Pricing Disclosure Package or the Prospectus or that otherwise has been made publicly available about the Company shall be deemed to be public information, and any opinion or conclusion that a Metalmark Selling Stockholder may hold, or analysis performed by a Metalmark Selling Stockholder, in its capacity as an investor about the business, results of operations or prospects of the Company and its subsidiaries shall not be information that relates to the business, results of operations or prospects of the Company.
(ic) Such Selling Stockholder has not taken and will not taketaken, directly or indirectly, any action that is designed to or that has constituted would constitute or that could might reasonably be expected to cause or result in 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.
(jd) The sale No consent, approval, authorization or other order of any court, regulatory or governmental body, arbitrator, administrative agency or instrumentality of the United States or other country or jurisdiction is required for the execution and delivery of this Agreement by such Selling Stockholder, the performance of its obligations hereunder, or the consummation of the transactions contemplated hereby, except for compliance with the Act, the Exchange Act, the Blue Sky Laws applicable to the public offering of the Shares by the Underwriter and the clearance of such offering and the underwriting arrangements evidenced hereby with the NASD.
(e) The execution, delivery and performance of this Agreement by such Selling Stockholder does not and the consummation of the transactions described herein will not: (i) violate any provisions of the Company’s internal policies regarding organizational documents of such Selling Stockholder; (ii) violate any provisions of, or result in the sale breach, modification or termination of, or constitute a default under, any provision of stock any agreement, lease, franchise, license, indenture, permit, mortgage, deed of trust, evidence of indebtedness or other instrument to which such Selling Stockholder is a party or by its affiliateswhich such Selling Stockholder, or any property owned or leased by such Selling Stockholder, may be bound or affected; (iii) violate any statute, ordinance, rule or regulation or any rule or regulation of any self-regulatory organization or other non-governmental regulatory authority (including, but not limited to Nasdaq) applicable to such Selling Stockholder, or order or decree of any court, regulatory or governmental body, arbitrator, administrative agency or instrumentality of the United States or other country or jurisdiction having jurisdiction over such Selling Stockholder; or (iv) result in the creation or imposition of any Lien upon any property or assets of such Selling Stockholder. Any certificate signed by any officer or other authorized person of any such 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 warranty, to the Underwriter by such Selling Stockholder, as to matters covered thereby, to the Underwriter.
Appears in 1 contract
Representations and Warranties of the Selling Stockholders. Each Selling Stockholder, Stockholder severally and not jointly, jointly represents and warrants to, and agrees with, each of the Underwriters as of the date hereof and as of the Closing Date and each Additional Closing Date that:
(a) Neither such Selling Stockholder nor any person acting on behalf of such Selling Stockholder (other than, if applicable, the Company and the Underwriter) has used or referred to any “free writing prospectus” (as defined in Rule 405), relating to the Shares.
(b) Such Selling Stockholder has, and immediately prior to the Closing Date on which such Selling Stockholder is selling the Shares, such 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 (the “UCC”) in respect of, the Shares to be sold by such Selling Stockholder hereunder on such Closing Date free and clear of all liens, encumbrances, equities or claims.
(c) Upon payment for the Shares to be sold by such Selling Stockholder, delivery of such Shares, as directed by the Underwriter, to Cede & Co. (“Cede”) or such other nominee as may be designated by The Depository Trust Company (“DTC”), registration of such Shares in the name of Cede or such other nominee and the crediting of such Shares on the books of DTC to securities accounts of the Underwriter (assuming that neither DTC nor the Underwriter has notice of any adverse claim (within the meaning of Section 8-105 of the UCC) to such Shares), (i) DTC shall be a “protected purchaser” of such Shares within the meaning of Section 8-303 of the UCC, (ii) under Section 8-501 of the UCC, the Underwriter will acquire a valid security entitlement in respect of such Shares and (iii) no action based on any “adverse claim,” within the meaning of Section 8-102 of the UCC, to such Shares may be asserted against the Underwriter with respect to such security entitlement. For purposes of this representation, such Selling Stockholder may assume that when such payment, delivery and crediting occur, (A) such Shares will have been registered in the name of Cede or another nominee designated by DTC, in each case on the Company’s share registry in accordance with its certificate of incorporation, bylaws and applicable law, (B) DTC will be registered as a “clearing corporation” within the meaning of Section 8-102 of the UCC and (C) appropriate entries to the accounts of the Underwriter on the records of DTC will have been made pursuant to the UCC.
(d) Such Selling Stockholder has full right, power and authority, corporate or otherwiseauthority to execute and deliver this Agreement, to enter into perform its obligations hereunder and to consummate the transactions contemplated by this Agreement, the Registration Statement and the Prospectus. If such Selling Stockholder is not a natural person, this Agreement and the transactions contemplated by this Agreement, the Registration Statement and the Prospectus have been duly and validly authorized by such Selling Stockholder. This Agreement has been duly and validly executed and delivered by such Selling Stockholder and constitutes the legal, valid and binding obligation of such Selling Stockholder, enforceable in accordance with its terms, except as enforceability may be limited by applicable bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium or similar laws affecting creditors' rights generally and except as enforceability may be subject to general principles of equity (regardless of whether such enforceability is considered in a proceeding in equity or at law) and the unenforceability under certain circumstances under federal or state securities laws of provisions providing for the indemnification of a party.
(b) Such Selling Stockholder has full right, power and authority to execute and deliver a Custody Agreement and Power of Attorney substantially in the form of Exhibits and hereto (such Selling Stockholder's "Custody Agreement" and "Power of Attorney", respectively), to perform its obligations thereunder and to consummate the transactions contemplated thereby. The Custody Agreement and Power of Attorney and the transactions contemplated thereby have been duly and validly authorized by such Selling Stockholder. The Custody Agreement and Power of Attorney have each been duly and validly executed and delivered by such Selling Stockholder and constitute the legal, valid and binding obligation of such Selling Stockholder, enforceable in accordance with its terms, except as enforceability may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or similar laws affecting creditors' rights generally and except as enforceability may be subject to general principles of equity (regardless of whether such enforceability is considered in a proceeding in equity or at law). Counterparts of such Selling Stockholder's Custody Agreement, duly signed by (i) , as custodian (in such capacity, the "Custodian") and (ii) , as such Selling Stockholder's attorney-in-fact (in such capacity, the "Attorney-In-Fact") have been delivered to the Company and the Lead Managers on or prior to the date of this Agreement.
(c) Such Selling Stockholder agrees that the Shares and Additional Shares, if any, to be sold by such Selling Stockholder, whether or not on deposit with the Custodian, are subject to the interests of the Underwriters, that the arrangements made for such custody are to that extent irrevocable, and that the obligations of such Selling Stockholder hereunder shall not be terminated, except as provided in this Agreement or in the Custody Agreement and Power of Attorney, by any act of such Selling Stockholder, by operation of law or by the occurrence of any other event. If such Selling Stockholder should die or become incapacitated, or if any other event should occur affecting the legal status or capacity of such Selling Stockholder before the delivery of the Shares and the Additional Shares, if any, to be sold by a Selling Stockholder hereunder, the documents evidencing the Shares and the Additional Shares, if any, to be sold by such Selling Stockholder then on deposit with the Custodian shall be delivered by the Custodian in accordance with the terms and conditions of this Agreement as if such event had not occurred, regardless of whether or not the Custodian shall have received notice thereof.
(d) Such Selling Stockholder has, and on the Closing Date and any Additional Closing Date will have, good and valid title to and is the lawful owner of the Shares and Additional Shares, if any, to be sold by such Selling Stockholder hereunder, and upon sale and delivery of, and payment for, such Shares and Additional Shares as provided herein, such Selling Stockholder will convey to the Underwriters good and marketable title to such Shares and Additional Shares, free and clear of all Liens. Certificates for all of the Shares to be sold by such Selling Stockholder pursuant to this Agreement, in suitable form for transfer by delivery or accompanied by duly executed instruments of transfer or assignment in blank with signatures guaranteed, have been placed in custody with the Custodian with irrevocable conditional instructions to deliver such Shares to the Underwriters pursuant to this Agreement.
(e) This No Consent of, from or with any judicial, regulatory or other legal or governmental agency or body or any third party, foreign or domestic, is required for the execution, delivery and performance by such Selling Stockholder of this Agreement has or its Custody Agreement and Power of Attorney, or consummation by such Selling Stockholders of the transactions contemplated herein or therein, except such as have been duly obtained under the Securities Act or otherwise and validly authorizedsuch as may be required under the state or foreign securities laws, executed the blue sky laws of any jurisdiction, the NASD or NASDR in connection with the purchase and delivered by or on behalf distribution of such Selling Stockholder's Shares and such Selling Stockholder's Additional Shares by the Underwriters.
(f) The execution, delivery and performance of this Agreement, the Power of Attorney and the Custody Agreement by such Selling Stockholder and consummation of any of the consummation other transactions contemplated herein and therein by such Selling Stockholder or the fulfillment of the transactions contemplated hereby and thereby do not and terms hereof by such Selling Stockholder will not (iA) conflict with or with, result in a breach or violation of any of the terms or provisions of, or constitute a default (or an event that with notice or lapse of time, or both, would constitute a default) under, or result in the creation or imposition of any indenturelien, mortgagecharge or encumbrance upon any property or assets of such Selling Stockholder pursuant to any law, deed statute, rule or regulation or the terms of trust, loan agreement, license any indenture or other agreement or instrument to which such Selling Stockholder is a party or by which such Selling Stockholder is bound bound, or to which any of the property or assets of such Selling Stockholder is subject, or (iiB) if such Selling Stockholder is not a natural person, result in any violation of the provisions of the any charter or by-laws bylaws or deed certificate of formation, trust (agreement, partnership agreement, articles of partnership or similar other organizational documents) , as applicable, of such the Selling Stockholder, or (iiiC) result in any violation or breach of any statute or any judgment, order, decree statute, rule or regulation applicable to such Selling Stockholder of any court or any public, governmental or regulatory agency or body body, administrative agency or arbitrator having jurisdiction over such Selling Stockholder except, in the cases of clauses (A) and (C) above, where such conflict, violation, breach or default would not, individually or in the aggregate, adversely affect such Selling Shareholder's ability to fulfill its obligations under or consummate the transactions contemplated by this Agreement, the Custody Agreement or the property or assets Power of such Selling StockholderAttorney.
(g) No consent, approval, authorization or order of, or filing or registration with, any court or governmental agency or body having jurisdiction over such Such Selling Stockholder does not have any registration or other similar rights to have any equity or debt securities registered for sale by the property Company under the Registration Statement or assets included in the offering of such Selling Stockholder is required for the execution, delivery and performance of this Agreement by such Selling Stockholder Shares and the consummation by such Selling Stockholder of the transactions contemplated hereby and therebyAdditional Shares, except for such rights as have been waived or which are described in the registration of Registration Statement and the Shares under the Securities Act Prospectus (and such consents, approvals, authorizations, registrations or qualifications as may be required under the Exchange Act and applicable state securities laws in connection with the purchase and sale of the Shares by the Underwriterwhich have been complied with).
(h) All material information Such Selling Stockholder does not have, or has waived prior to the date hereof, any preemptive right, co-sale right or right of first refusal or other similar right to purchase any of the Shares that are to be sold by the Company or any other Selling Stockholder to the Underwriters pursuant to this Agreement; and such Selling Stockholder does not own any warrants, options or similar rights to acquire, and does not have any right or arrangement to acquire, any capital stock, right, warrants, options or other securities from the Company, other than those described in the Registration Statement and the Prospectus.
(i) Except as disclosed in the Prospectus, there are no contracts, agreements or understandings between such Selling Stockholder and any person that would give rise to a valid claim against the Company or any Underwriter for a brokerage commission, finder's fee or other like payment in connection with this offering or, to such Selling Stockholder's knowledge, any other arrangements, agreements, understandings, payments or issuance with respect to the Company or any of its officers, directors, shareholders, partners, employees, Subsidiaries or affiliates that may affect the Underwriters' compensation as determined by the NASD.
(j) Such Selling Stockholder is not prompted to sell the Shares and the Additional Shares, if any, to be sold by the Selling Stockholder by any information concerning the Company or any Subsidiary which is not set forth in the Registration Statement and the Prospectus.
(k) The information relating to such Selling Stockholder contained furnished in each writing by or on behalf of such Selling Stockholder expressly for use in the Registration Statement, Statement and the Prospectus under the caption "Principal and the Pricing Disclosure Package (as amended and supplemented, if the Company shall have filed with the Commission any amendment or supplement thereto) (i) complied and will comply in all material respects with all applicable provisions of the Securities Act and the Rules and Regulations, (ii) contains and will contain all statements of material fact required Selling Stockholders" that specifically relates to be stated therein in accordance with the Securities Act and the Rules and Regulationssuch Selling Stockholder does not, and (iii) does not and on each Closing Date will not not, contain an any untrue statement of a material fact or omit to state a any material fact required to be stated therein or necessary in order to make the statements therein therein, in the light of the circumstances under which they were made, not misleading. Solely In the event there is any change in the information referred to in this Section 2(k) that specifically relates to such Selling Stockholder from the date of this Agreement and from time to time thereafter for such period as in the opinion of counsel for the Underwriters a Prospectus is required by law to be delivered in connection with respect to the Metalmark Selling Stockholders (as defined in Schedule I hereto)sales by an Underwriter or a dealer, such Selling Stockholder is not prompted to sell will promptly notify the Shares by any material non-public information relating to the business, results Underwriters of operations or prospects of the Company and its subsidiaries of an adverse nature that is required to be disclosed in the Registration Statement, the Pricing Disclosure Package or the Prospectus. For this purpose, information that is set forth or incorporated by reference in the Registration Statement, the Pricing Disclosure Package or the Prospectus or that otherwise has been made publicly available about the Company shall be deemed to be public information, and any opinion or conclusion that a Metalmark Selling Stockholder may hold, or analysis performed by a Metalmark Selling Stockholder, in its capacity as an investor about the business, results of operations or prospects of the Company and its subsidiaries shall not be information that relates to the business, results of operations or prospects of the Companysuch change.
(il) Such Selling Stockholder has not taken and will not take, directly or indirectly, any action that is designed to or that has constituted to, or that could be reasonably be expected to to, cause or result in the stabilization or manipulation of the price of any security of the Company Common Stock to facilitate the sale or resale of the Shares or Additional Shares, if any.
(jm) The Such Selling Stockholder has not distributed and will not distribute, prior to the later of the Additional Closing Date, if any, and the completion of the Underwriters' distribution of the Shares, any offering material in connection with the offering and sale of the Shares and the Additional Shares, if any, by the Selling Stockholders other than a Preliminary Prospectus, the Prospectus or the Registration Statement.
(n) The representations and warranties of such Selling Stockholder does not violate any in its Custody Agreement and Power of Attorney are, and on the Company’s internal policies regarding the sale of stock by its affiliatesClosing Date and Additional Closing Date, if any, will be, true and correct. Any certificate signed by any officer or on behalf of any the Selling Stockholder and delivered to the Underwriter Representatives or to counsel for the Underwriter in connection with the offering of the Shares Underwriters shall be deemed to be a representation and warranty by such Selling Stockholder, Stockholder to each Underwriter as to the matters covered thereby, to the Underwriter.
Appears in 1 contract
Representations and Warranties of the Selling Stockholders. Each Selling Stockholder, Stockholder severally and not jointly, jointly represents and warrants to each Underwriter and agrees that:
(a) Neither such Such Selling Stockholder nor any person has duly and irrevocably executed and delivered a custody agreement and power of attorney (the "Custody Agreement") (i) appointing Xxxxxxxx X. XxXxxxxx and Xxxxxxx X. Xxxxxx and either one of them acting singly, as attorneys-in-fact (the "Attorneys-in-Fact"), with full power of substitution, and with full authority (exercisable by either one or both of them) to execute and deliver this Agreement and to take such other action as may be necessary or desirable to carry out the provisions hereof on behalf of such the Selling Stockholder and (other than, if applicable, ii) appointing SunTrust Bank as custodian (the Company and the Underwriter"Custodian") has used or referred to any “free writing prospectus” (as defined in Rule 405), relating to the Sharesthereunder.
(b) Such Selling Stockholder has, and immediately prior pursuant to the Closing Date on which terms of the Custody Agreement, placed in custody, for delivery under this Agreement, the following items: (i) the certificate or certificates, if any, representing not less than the total number of Shares to be sold by such Selling Stockholder is selling to the SharesUnderwriters as set forth on Schedule I hereto; and (ii) a stock power, duly endorsed in blank, with the signature of such Selling Stockholder thereon guaranteed by a financial institution that is a participant in the Security Transfer Agents Medallion Program or the Stock Exchange Medallion Program, relating to the Shares to be sold by such Selling Stockholder.
(c) Such Selling Stockholder has all legal capacity necessary to execute and deliver this Agreement and the Custody Agreement, to sell and deliver the Shares to be sold by him, her or it hereunder and to perform all other obligations under this Agreement and the Custody Agreement; each of this Agreement and the Custody Agreement has been duly executed and delivered by such Selling Stockholder and constitutes the valid and binding agreement of such Selling Stockholder, enforceable against him, her or it in accordance with its terms, except that the indemnification provisions set forth in Section 9 of this Agreement may be limited by applicable law or equitable principles, and except as enforceability may be limited by bankruptcy, reorganization, moratorium or similar laws affecting the enforceability of creditors' rights generally and rules of law governing specific performance, injunctive relief and other equitable remedies; the execution, delivery and performance of this Agreement and the Custody Agreement by such Selling Stockholder do not and will havenot conflict with, good and valid title to result in the creation or a valid “security entitlement” within the meaning imposition of Section 8-501 any lien, charge or encumbrance upon any of the New York Uniform Commercial Code (the “UCC”) in respect of, the Shares to be sold by such Selling Stockholder hereunder on such Closing Date free and clear of all liens, encumbrances, equities or claims.
(c) Upon payment for the Shares to be sold by such Selling Stockholder, delivery of such Shares, as directed by the Underwriter, to Cede & Co. (“Cede”) or such other nominee as may be designated by The Depository Trust Company (“DTC”), registration of such Shares in the name of Cede or such other nominee and the crediting of such Shares on the books of DTC to securities accounts of the Underwriter (assuming that neither DTC nor the Underwriter has notice of any adverse claim (within the meaning of Section 8-105 of the UCC) to such Shares), (i) DTC shall be a “protected purchaser” of such Shares within the meaning of Section 8-303 of the UCC, (ii) under Section 8-501 of the UCC, the Underwriter will acquire a valid security entitlement in respect of such Shares and (iii) no action based on any “adverse claim,” within the meaning of Section 8-102 of the UCC, to such Shares may be asserted against the Underwriter with respect to such security entitlement. For purposes of this representation, such Selling Stockholder may assume that when such payment, delivery and crediting occur, (A) such Shares will have been registered in the name of Cede or another nominee designated by DTC, in each case on the Company’s share registry in accordance with its certificate of incorporation, bylaws and applicable law, (B) DTC will be registered as a “clearing corporation” within the meaning of Section 8-102 of the UCC and (C) appropriate entries to the accounts of the Underwriter on the records of DTC will have been made pursuant to the UCC.
(d) Such Selling Stockholder has full right, power and authority, corporate or otherwise, to enter into this Agreement.
(e) This Agreement has been duly and validly authorized, executed and delivered by or on behalf of such Selling Stockholder.
(f) The execution, delivery and performance of this Agreement by such Selling Stockholder and the consummation by such Selling Stockholder of the transactions contemplated hereby and thereby 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, any indenture, mortgage, deed of trust, loan agreement, license agreement or other agreement or instrument to which such Selling Stockholder is a party or by which such Selling Stockholder is bound or to which any of the property or assets of such Selling Stockholder is subjectinstrument, (ii) result in any violation of the provisions of the charter or by-laws or deed of trust (or similar organizational documents) of such Selling Stockholder, or (iii) result in any violation of any statute or any order, rule or regulation of any court or governmental agency or body having jurisdiction over such Selling Stockholder or the property or assets of such Selling Stockholder.
(g) No 's properties other than any lien, charge or encumbrance contemplated by this Agreement and/or the Custody Agreement; and except as required by the 1933 Act and applicable state securities laws, no consent, approval, authorization or order of, or filing or registration with, any court or governmental agency or body having jurisdiction over such Selling Stockholder or the property or assets of such Selling Stockholder is required (or, if required, has been obtained) for the execution, delivery and performance of this Agreement and the Custody Agreement by such Selling Stockholder and the consummation by such Selling Stockholder of the transactions contemplated hereby and thereby, except for the registration of the Shares under the Securities Act and such consents, approvals, authorizations, registrations or qualifications as may be required under the Exchange Act and applicable state securities laws in connection with the purchase and sale of the Shares by the UnderwriterStockholder.
(hd) All material information with respect to such Selling Stockholder contained in each of At the Registration Statement, the Prospectus Closing Time and the Pricing Disclosure Package (as amended and supplemented, if the Company shall have filed with the Commission any amendment or supplement thereto) (i) complied and will comply in all material respects with all applicable provisions of the Securities Act and the Rules and Regulations, (ii) contains and will contain all statements of material fact required to be stated therein in accordance with the Securities Act and the Rules and Regulations, and (iii) does not and will not contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary in order to make the statements therein not misleading. Solely with respect to the Metalmark Selling Stockholders (as defined in Schedule I hereto)Delivery Date, such Selling Stockholder is not prompted will have good and valid title to sell the Shares being sold by him, her or it hereunder; such Shares are, and at the Closing Time and any material Delivery Date will be, duly authorized, validly issued and outstanding, fully paid and non-public information relating to the business, results of operations or prospects assessable Common Stock of the Company with no personal liability attaching to the ownership thereof; and its subsidiaries upon the delivery of an adverse nature that is required to be disclosed in the Registration Statementand payment for such Shares as contemplated herein, the Pricing Disclosure Package or Underwriters will receive good title to the Prospectus. For this purposeShares purchased by them, information that is set forth or incorporated by reference in the Registration Statementrespectively, the Pricing Disclosure Package or the Prospectus or that otherwise has been made publicly available about the Company shall be deemed to be public information, and any opinion or conclusion that a Metalmark Selling Stockholder may hold, or analysis performed by a Metalmark from such Selling Stockholder, in its capacity as an investor about the businessfree and clear of any and all liens, results of operations or prospects of the Company encumbrances, security interests and its subsidiaries shall not be information that relates to the business, results of operations or prospects of the Companyadverse claims.
(ie) Such Selling Stockholder has not taken (i) taken, and agrees that he, she or it will not take, directly or indirectly, any action that is designed to or that has constituted or that could which might reasonably be expected to cause or result in the stabilization or manipulation of the price of any security of the Company to facilitate the sale or resale of the Shares, or (ii) since the filing of the Registration Statement (A) sold, bid for, purchased, or paid anyone any compensation for soliciting purchases of, the Shares, or (B) paid or agreed to pay to any person any compensation for soliciting another to purchase any other securities of the Company.
(jf) Except as set forth in the Prospectus, such Selling Stockholder is disposing of his, her or its Shares hereunder for such Selling Stockholder's own account and is not selling such Shares, directly or indirectly, for the benefit of the Company.
(g) When the Registration Statement or any amendment thereto or any 462(b) Registration Statement or any amendment thereto was or is declared effective and at the Closing Time or any Date of Delivery, as the case may be, (i) it contained or will contain all statements required to be stated therein regarding such Selling Stockholder in accordance with the requirements of the 1933 Act and the 1933 Act Regulations and (ii) such statements regarding such Selling Stockholder in the Registration Statement, any 462(b) Registration Statement or any amendment thereto as are made in reliance upon and in conformity with written information furnished to the Company by such Selling Stockholder specifically for use therein did not or will not include any untrue statement of a material fact or omit to state any material fact regarding such Selling Stockholder necessary to make the statements therein not misleading. When the Prospectus or any amendment or supplement thereto is filed with the Commission pursuant to Rule 424(b) (or, if any Prospectus or such amendment or supplement is not required to be so filed, when the Registration Statement or the amendment thereto containing such amendment or supplement to the Prospectus was or is declared effective), and at the Closing Time or any Date of Delivery, as the case may be, (a) the Prospectus, as amended or supplemented at any such time, contained or will contain all statements required to be contained or stated therein regarding such Selling Stockholder in accordance with the requirements of the 1933 Act and the 1933 Act Regulations and (b) such statements regarding such Selling Stockholder in the Prospectus, as so amended or supplemented at any such time, as are made in reliance upon and in conformity with written information furnished to the Company by such Selling Stockholder specifically for use therein will not include any untrue statement of a material fact or omit to state any material fact regarding such Selling Stockholder necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading.
(h) The sale of the Shares by such Selling Stockholder does pursuant to this Agreement is not violate prompted by any information concerning the Company that is not set forth in the Prospectus.
(i) The Selling Stockholder has not incurred any liability for a fee, commission or other compensation on account of the Company’s internal policies regarding the sale employment of stock by its affiliates. Any certificate signed by any officer of any Selling Stockholder and delivered to the Underwriter a broker or counsel for the Underwriter finder in connection with the offering of the Shares shall be deemed a representation and warranty transactions contemplated by such Selling Stockholder, this Agreement other than as to matters covered thereby, to the Underwritercontemplated hereby.
Appears in 1 contract
Representations and Warranties of the Selling Stockholders. Each Selling Stockholder, severally and not jointly, represents and warrants to and agrees with each of the Underwriters that (it being understood that:, to the extent any representation or warranty in this Section 2 relates solely to the Non-KKR Selling Stockholders, such representation or warranty is being made only by the Non-KKR Selling Stockholders and not the KKR Selling Stockholder):
(a) Neither This Agreement has been duly authorized, executed and delivered by such Selling Stockholder.
(b) The execution and delivery by or on behalf of such Selling Stockholder nor any person acting of, and the performance by such Selling Stockholder of its obligations under, this Agreement and, in the case of a Non-KKR Selling Stockholder, the execution and delivery by or on behalf of such Non-KKR Selling Stockholder of, and the performance by such Non-KKR Selling Stockholder of its obligations under, the Custody Agreement signed by such Non-KKR Selling Stockholder and Computershare Trust Company, N.A., as Custodian, relating to the deposit of the Shares to be sold by such Non-KKR Selling Stockholder (the “Custody Agreement”), the Agreement to Sell signed by or on behalf of such Selling Stockholder (other thanthe “Agreement to Sell”), if applicable, the Company and the Underwriter) has used or referred Power of Attorney appointing certain individuals as such Non-KKR Selling Stockholder’s attorneys-in-fact to any “free writing prospectus” (as defined in Rule 405)the extent set forth therein, relating to the transactions contemplated hereby and by the Registration Statement (the “Power of Attorney”) will not contravene (i) any provision of applicable law or any judgment, order or decree of any governmental body, agency or court having jurisdiction over such Selling Stockholder with respect to this Agreement and over such Non-KKR Selling Stockholder with respect to the Custody Agreement, Agreement to Sell, and Power of Attorney, (ii) the limited partnership agreement of the KKR Selling Stockholder with respect to this Agreement and the certificate of incorporation or by-laws (or similar organizational documents) of such Non-KKR Selling Stockholder with respect to this Agreement, the Custody Agreement, Agreement to Sell, and Power of Attorney (if such Non-KKR Selling Stockholder is a corporation or similar entity), or (iii) any agreement or other instrument binding upon such Selling Stockholder with respect to this Agreement and upon such Non-KKR Selling Stockholder with respect to the Custody Agreement, Agreement to Sell, and the Power of Attorney, except, in the case of the foregoing clauses (i) and (iii) as would not, individually or in the aggregate, reasonably be expected to materially impact such Selling Stockholder’s ability to perform its obligations under this Agreement, and, with respect to such Non-KKR Selling Stockholder, as would not, individually or in the aggregate, reasonably be expected to have a material adverse effect on the ability of such Non-KKR Selling Stockholder to consummate the transactions contemplated by the Custody Agreement, Agreement to Sell, and the Power of Attorney. No consent, approval, authorization or order of, or qualification with, any governmental body, agency or court is required for the performance by such Selling Stockholder of its obligations under this Agreement or, with respect to such Non-KKR Selling Stockholder, the Custody Agreement, Agreement to Sell, or Power of Attorney of such Non-KKR Selling Stockholder, except such as have been obtained and made under the Securities Act, the Exchange Act, or the rules and 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 such other approvals as have been or will be made or obtained on or prior to the Closing Date in connection with the offer and sale of the Shares.
(bc) Such With respect to any Shares to be sold by such Selling Stockholder that are outstanding on the date hereof, such Selling Stockholder has, and immediately prior to on the Closing Date on which such Selling Stockholder is selling and the SharesOption Closing Date, such Selling Stockholder will have, good and valid title to to, or a valid “security entitlement” within the meaning of Section 8-501 of the New York Uniform Commercial Code (the “UCC”) in respect of, the Shares to be sold by such Selling Stockholder hereunder on such Closing Date Stockholder, free and clear of all security interests, claims, liens, encumbrances, equities or claimsother encumbrances and the legal right and power, and all authorization and approval required by law, to enter into this Agreement, and, with respect to a Non-KKR Selling Stockholder, to enter into the Custody Agreement, Agreement to Sell, and the Power of Attorney, and to sell, transfer and deliver the Shares to be sold by such Selling Stockholder or a security entitlement in respect of such Shares.
(cd) If such Selling Stockholder is a Non-KKR Selling Stockholder, the Custody Agreement, Agreement to Sell, and the Power of Attorney have been duly authorized, executed and delivered by such Non-KKR Selling Stockholder and are valid and binding agreements of such Non-KKR Selling Stockholder subject to the effects of 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 Selling StockholderStockholder pursuant to this Agreement, delivery of such Shares, as directed by the UnderwriterUnderwriters, to Cede & Co. (“Cede”) or such other nominee as may be designated by The the Depository Trust Company (“DTC”), registration of such Shares in the name of Cede or such other nominee and the crediting of such Shares on the books of DTC to securities accounts of the Underwriter Underwriters (assuming that neither DTC nor the any such Underwriter has notice of any adverse claim (within the meaning of Section 8-105 of the New York Uniform Commercial Code (the “UCC”)) to such Shares), (iA) DTC shall be a “protected purchaser” of such Shares within the meaning of Section 8-303 of the UCC, (iiB) under Section 8-501 of the UCC, the Underwriter Underwriters will acquire a valid security entitlement in respect of such Shares and (iiiC) no action based on any “adverse claim,” within the meaning of Section 8-102 of the UCC, to such Shares may be asserted against the Underwriter Underwriters with respect to such security entitlement. For ; for purposes of this representation, such Selling Stockholder may assume that when such payment, delivery and crediting occur, (Ax) 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, (By) DTC will be registered as a “clearing corporation” within the meaning of Section 8-102 of the UCC and (Cz) appropriate entries to the accounts of the Underwriter several Underwriters on the records of DTC will have been made pursuant to the UCC.
(df) Such Selling Stockholder has full right, power and authority, corporate or otherwise, delivered to enter into this the Representatives an executed lock-up agreement in substantially the form attached hereto as Exhibit A (the “Lock-up Agreement”).
(eg) This Agreement has been duly and validly authorized, executed and delivered All information furnished to the Company or the Underwriters by or on behalf of such Selling Stockholder.
(f) The execution, delivery and performance of this Agreement by such Selling Stockholder and the consummation by such Selling Stockholder of the transactions contemplated hereby and thereby 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, any indenture, mortgage, deed of trust, loan agreement, license or other agreement or instrument to which such Selling Stockholder is a party or by which such Selling Stockholder is bound or to which any of the property or assets of such Selling Stockholder is subject, (ii) result writing expressly for use in any violation of the provisions of the charter or by-laws or deed of trust (or similar organizational documents) of such Selling Stockholder, or (iii) result in any violation of any statute or any order, rule or regulation of any court or governmental agency or body having jurisdiction over such Selling Stockholder or the property or assets of such Selling Stockholder.
(g) No consent, approval, authorization or order of, or filing or registration with, any court or governmental agency or body having jurisdiction over such Selling Stockholder or the property or assets of such Selling Stockholder is required for the execution, delivery and performance of this Agreement by such Selling Stockholder and the consummation by such Selling Stockholder of the transactions contemplated hereby and thereby, except for the registration of the Shares under the Securities Act and such consents, approvals, authorizations, registrations or qualifications as may be required under the Exchange Act and applicable state securities laws in connection with the purchase and sale of the Shares by the Underwriter.
(h) All material information with respect to such Selling Stockholder contained in each of the Registration Statement, the Prospectus and the Pricing Disclosure Package (as amended and supplementedTime of Sale Prospectus, each broadly available road show, if the Company shall have filed any, when considered together with the Commission any amendment Time of Sale Prospectus, or supplement thereto) the Prospectus is (i) complied including, with respect to the Time of Sale Prospectus, 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 Closing Date will comply be, true, correct and complete in all material respects with all applicable provisions respects, and did not, at the time of each sale of the Securities Act and the Rules and Regulations, (ii) contains and will contain all statements of material fact required to be stated therein Shares in accordance connection with the Securities Act and offering when the Rules and RegulationsProspectus is not yet available to prospective purchasers, and (iii) does not and on the Closing Date will not not, contain an any untrue statement of a material fact or omit to state a any material fact required to be stated therein or necessary in order to make the statements therein such information not misleading. Solely , it being understood and agreed that the only such information consists of the name of such Selling Stockholder, the number of total shares beneficially owned, the number of offered shares and the address and other information with respect to the Metalmark Selling Stockholders (as defined in Schedule I hereto), such Selling Stockholder is not prompted to sell (excluding percentages) under the Shares by any material non-public information relating to the business, results of operations or prospects of the Company caption “Principal and its subsidiaries of an adverse nature that is required to be disclosed Selling Stockholders” in the Registration Statement, the Pricing Disclosure Package or Time of Sale Prospectus and the Prospectus. For this purpose, information that is set forth or incorporated by reference in the Registration StatementProspectus (such information, the Pricing Disclosure Package or the Prospectus or that otherwise has been made publicly available about the Company shall be deemed to be public information, and any opinion or conclusion that a Metalmark “Selling Stockholder may holdInformation”).
(h) None of such Selling Stockholder or any of its subsidiaries, or analysis performed by a Metalmark or, to the knowledge of such 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 its capacity as an investor about a country or territory that is the businesssubject of Sanctions (including, results of operations without limitation, Crimea, Cuba, Iran, North Korea and Syria).
(ii) Such Selling Stockholder will not, directly or prospects indirectly, use the proceeds of the Company offering, or lend, contribute or otherwise make available such proceeds to any subsidiary, joint venture partner or other Person:
(A) to fund or facilitate any activities or business of or with any Person or in any country or territory that, at the time of such funding or facilitation, is the subject of Sanctions; or
(B) in any other manner that will result in a violation of Sanctions by any Person (including any Person participating in the offering, whether as underwriter, advisor, investor or otherwise).
(iii) Such Selling 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 such Selling Stockholder or any of its subsidiaries, or, to the knowledge of such 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) such Selling Stockholder and each of its subsidiaries shall not be information that relates 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 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 businessAnti-Money Laundering Laws is pending or, results of operations or prospects to the best knowledge of the CompanySelling Stockholder, threatened.
(i) Such Selling Stockholder has represents and warrants that it is not taken and will not take, directly or indirectly, any action that is designed (i) an employee benefit plan subject to or that has constituted or that could reasonably be expected to cause or result in the stabilization or manipulation Title I of the price 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 security such plan or account under Section 3(42) of the Company to facilitate the sale ERISA, 29 C.F.R. 2510.3-101, or resale of the Sharesotherwise.
(j) The sale of the Shares by such Such Non-KKR Selling Stockholder does is not violate prompted by any material non-public information concerning the Company or any of its subsidiaries that is not disclosed in the Company’s internal policies regarding Time of Sale Prospectus, or the sale of stock by Prospectus to sell its affiliates. Any certificate signed by any officer of any Selling Stockholder and delivered Shares pursuant to the Underwriter or counsel for the Underwriter in connection with the offering of the Shares shall be deemed a representation and warranty by such Selling Stockholder, as to matters covered thereby, to the Underwriterthis Agreement.
Appears in 1 contract
Representations and Warranties of the Selling Stockholders. Each Selling Stockholder, severally and not jointly, represents and warrants to each Underwriter that:
(a) Neither to the extent that such Selling Stockholder nor any person acting on behalf of will be delivering certificate(s) representing and/or notice(s) to exercise options exercisable for Common Stock to American Stock Transfer & Trust Company (the "CUSTODIAN"), such Selling Stockholder now is and, at the time of delivery of notice(s) to exercise (other than, if applicable, whether the Company and the Underwriter) has used time of purchase or referred to any “free writing prospectus” (as defined in Rule 405additional time of purchase), relating will be the lawful owner of the options exercisable for the number of Shares to the Shares.be sold by such Selling Stockholder pursuant to this Agreement;
(b) Such Selling Stockholder has, and immediately prior to the Closing Date on which extent that such Selling Stockholder is selling will be delivering Common Stock to the SharesCustodian, such Selling Stockholder will havenow is the lawful owner of the number of Shares to be sold by such Selling Stockholder pursuant to this Agreement and has valid and marketable title to, good and valid title to or a valid “"security entitlement” " within the meaning of Section 8-501 of the New York Uniform Commercial Code (the “UCC”) in respect of, such Shares;
(c) such Selling Stockholder at the time of delivery of such Shares (whether the time of purchase or additional time of purchase, as the case may be) will be the lawful owner of the number of Shares to be sold by such Selling Stockholder hereunder on pursuant to this Agreement and 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, such Closing Date Shares, and upon delivery of and payment for such Shares (whether at the time of purchase or the additional time of purchase, as the case may be), the Underwriters will acquire 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, such Shares free and clear of all liensany claim, encumbranceslien, equities encumbrance, security interest, community property right, restriction on transfer or claims.other defect in title;
(cd) Upon payment to the extent that such Selling Stockholder will be delivering certificates representing and/or notice(s) to exercise options exercisable for Common Stock to the Custodian, such Selling Stockholder has and at the time of delivery of such certificates and/or notice(s) to exercise (whether the time of purchase or the additional time of purchase, as the case may be) will have, full legal right, 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 options exercisable for the number of Shares to be sold by such Selling Stockholder, delivery of such Shares, as directed by the Underwriter, to Cede & Co. (“Cede”) or such other nominee as may be designated by The Depository Trust Company (“DTC”), registration of such Shares in the name of Cede or such other nominee and the crediting of such Shares on the books of DTC to securities accounts of the Underwriter (assuming that neither DTC nor the Underwriter has notice of any adverse claim (within the meaning of Section 8-105 of the UCC) to such Shares), (i) DTC shall be a “protected purchaser” of such Shares within the meaning of Section 8-303 of the UCC, (ii) under Section 8-501 of the UCC, the Underwriter will acquire a valid security entitlement in respect of such Shares and (iii) no action based on any “adverse claim,” within the meaning of Section 8-102 of the UCC, to such Shares may be asserted against the Underwriter with respect to such security entitlement. For purposes of this representation, such Selling Stockholder may assume that when such payment, delivery and crediting occur, (A) such Shares will have been registered in the name of Cede or another nominee designated by DTC, in each case on the Company’s share registry in accordance with its certificate of incorporation, bylaws and applicable law, (B) DTC will be registered as a “clearing corporation” within the meaning of Section 8-102 of the UCC and (C) appropriate entries to the accounts of the Underwriter on the records of DTC will have been made pursuant to the UCC.
(d) Such Selling Stockholder has full right, power and authority, corporate or otherwise, to enter into this Agreement.
(e) This Agreement such Selling Stockholder has been duly and validly authorized, executed and delivered by or on behalf at the time of delivery of such Selling Stockholder.Shares (whether the time of purchase or additional time of purchase, as the case may be) will have, full legal right, 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;
(f) The execution, delivery and performance of this Agreement and each Custody Agreement among the Custodian, and the Selling Stockholders (each, a "Custody Agreement") have been duly executed and delivered - 14 - by such Selling Stockholder and, with respect to the Custody Agreement assuming due authorization, execution and delivery by the consummation by such Selling Stockholder of the transactions contemplated hereby and thereby do not and will not (i) conflict with or result in a breach or violation of any of the terms or provisions ofcustodian, or constitute a default under, any indenture, mortgage, deed of trust, loan agreement, license or other agreement or instrument to which such Selling Stockholder each is a party or by which such Selling Stockholder is bound or to which any of the property or assets legal, valid and binding agreement of such Selling Stockholder is subject, enforceable in accordance with its terms;
(iig) result in any violation when the Registration Statement becomes effective and at all times subsequent thereto through the latest of the provisions time of purchase, additional time of purchase or the termination of the charter offering of the Shares, the Registration Statement and Prospectus, and any supplements or by-laws or deed of trust (or similar organizational documents) of amendments thereto, as they relate to such Selling Stockholder, or (iii) result in any violation of any statute or any order, rule or regulation of any court or governmental agency or body having jurisdiction over such Selling Stockholder or the property or assets of such Selling Stockholder.
(g) No consent, approval, authorization or order of, or filing or registration with, any court or governmental agency or body having jurisdiction over such Selling Stockholder or the property or assets of such Selling Stockholder is required for the execution, delivery and performance of this Agreement by such Selling Stockholder and the consummation by such Selling Stockholder of the transactions contemplated hereby and thereby, except for the registration of the Shares under the Securities Act and such consents, approvals, authorizations, registrations or qualifications as may be required under the Exchange Act and applicable state securities laws in connection with the purchase and sale of the Shares by the Underwriter.
(h) All material information with respect to such Selling Stockholder contained in each of the Registration Statement, the Prospectus and the Pricing Disclosure Package (as amended and supplemented, if the Company shall have filed with the Commission any amendment or supplement thereto) (i) complied and will comply in all material respects with all applicable provisions of the Securities Act and the Rules and Regulations, (ii) contains and will contain all statements of material fact required to be stated therein in accordance with the Securities Act and the Rules and Regulations, and (iii) does not and will not contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary in order to make the statements therein not misleading. Solely with respect ; provided, however, that the foregoing representation and warranty, as it relates to such Selling Stockholder, is limited to information included in the Registration Statement and Prospectus, and any supplements or amendments thereto, concerning such Selling Stockholder furnished in writing by or on behalf of such Selling Stockholder to the Metalmark Company expressly for use therein;
(h) such Other Selling Stockholders Stockholder has duly and irrevocably authorized the Representatives of the Other Selling Stockholders, on behalf of such Other Selling Stockholder to execute and deliver this Agreement and any other document necessary or desirable in connection with the transactions contemplated hereby and to deliver the Shares to be sold by such Other Selling Stockholder and receive payment therefor pursuant hereto;
(as defined i) the sale of such Selling Stockholder's Shares pursuant to this Agreement is not prompted by any information concerning the Company which is not set forth in Schedule I hereto)the Prospectus;
(j) the execution, delivery and performance of this Agreement by or on behalf of such Selling Stockholder, the compliance by the undersigned with all the provisions hereof and the consummation of the transactions contemplated hereby will not (i) conflict with or constitute a breach of any of the terms or provisions of, or a default under, the organizational documents of such Selling Stockholder, if such Selling Stockholder is not prompted an individual, or any indenture, loan agreement, mortgage, lease or other agreement or instrument to sell the Shares by any material non-public information relating to the business, results of operations or prospects of the Company and its subsidiaries of an adverse nature that is required to be disclosed in the Registration Statement, the Pricing Disclosure Package or the Prospectus. For this purpose, information that is set forth or incorporated by reference in the Registration Statement, the Pricing Disclosure Package or the Prospectus or that otherwise has been made publicly available about the Company shall be deemed to be public information, and any opinion or conclusion that a Metalmark which such Selling Stockholder may holdis a party or by which such Selling Stockholder or any property of such Selling Stockholder is bound or (ii) violate or conflict with any applicable law or any rule, regulation, judgment, order or analysis performed by a Metalmark decree of any court or any governmental body or agency having jurisdiction over such Selling Stockholder or any property of such Selling Stockholder, in its capacity as an investor about the business, results of operations or prospects of the Company and its subsidiaries shall not be information that relates to the business, results of operations or prospects of the Company.; and
(ik) Such such Selling Stockholder has not taken and will not taketaken, directly or indirectly, any action that is designed to or that has constituted or that could reasonably be expected to cause or result in in, or which has constituted under the Exchange Act or otherwise, the stabilization or manipulation of the price of any security of the Company to facilitate the sale or resale of the Shares.
(j) The sale of the Shares by such Selling Stockholder does not violate any of the Company’s internal policies regarding the sale of stock by its affiliates. Any certificate signed by any officer of any 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 such Selling Stockholder, as to matters covered thereby, to the Underwriter.
Appears in 1 contract
Representations and Warranties of the Selling Stockholders. Each Selling StockholderStockholder hereby represents and warrants, severally and not jointly, represents to each Underwriter, as of the date of this Agreement, the Closing Time, and warrants thatagrees with each Underwriter, as follows:
(a) Neither such if the Selling Stockholder nor any person acting on behalf is not an individual, it has been duly incorporated (or organized) and is validly existing as a corporation (or other organization) in good standing under the laws of such Selling Stockholder its jurisdiction of incorporation (other than, if applicable, the Company and the Underwriter) has used or referred to any “free writing prospectus” (as defined in Rule 405organization), relating to the Shares.;
(b) Such the Selling Stockholder has full power and authority to enter into this Agreement, the Custody Agreement and the Power of Attorney to which it is a party. The execution and delivery of this Agreement, the Custody Agreement and the Power of Attorney by the Selling Stockholder and the consummation by it of the transactions contemplated hereby and thereby have been duly authorized by all necessary action on the part of the Selling Stockholder and no further action is required by the Selling Stockholder (and, if the Selling Stockholder is not an individual, the Selling Stockholder’s board of directors or its stockholders) in connection herewith or therewith; this Agreement, the Custody Agreement and the Power of Attorney have been duly executed by the Selling Stockholder and, when delivered in accordance with the terms hereof and thereof, will constitute the valid and binding obligation of the Selling Stockholder enforceable against the Selling Stockholder in accordance with the terms hereof and thereof, except as the enforcement thereof may be limited by bankruptcy, insolvency, reorganization, moratorium or other similar laws relating to or affecting the rights and remedies of creditors or by general equitable principles and except as rights to indemnity and contribution hereunder and thereunder may be limited by general equitable principles or federal or state securities laws or public policy underlying such laws;
(c) the Selling Stockholder now has, and immediately prior to the Closing Date on which such Selling Stockholder is selling the Shares, such Selling Stockholder Time will have, good and valid title to or (i) a valid “security entitlement” (within the meaning of Section 8-501 of the New York Uniform Commercial Code (the “New York UCC”)) in respect of, of the Shares to be sold by such Selling Stockholder hereunder on such Closing Date hereunder, in each case free and clear of all liens, encumbrancesencumbrances and claims whatsoever (other than pursuant to the Custody Agreement and Power of Attorney, equities or claims.
as applicable), and (cii) full legal power and authority to enter into this Agreement and to sell, transfer and deliver a security entitlement in respect of such Shares to the Underwriters hereunder and to make the representations, warranties and agreements made by such Selling Stockholder herein. Upon (I) payment for the Shares to be sold by such Selling StockholderStockholder pursuant to this Agreement, (II) delivery of such Shares, as directed by the UnderwriterUnderwriters, to Cede & Co. (“Cede”) or such other nominee as may be designated by The Depository Trust Company DTC, (“DTC”), III) registration of such Shares in the name of DTC, Cede & Co. or such other nominee and the crediting of nominee, (IV) DTC indicating by book entries on its books that security entitlements with respect to such Shares on have been credited to the books of DTC to Underwriters’ securities accounts of accounts, the Underwriter (assuming that neither DTC nor the Underwriter has notice of any adverse claim Underwriters will acquire a valid “security entitlement” (within the meaning of Section 8-105 501 of the New York UCC) with respect to such Shares)Shares and no action based on an “adverse claim” (as defined in Section 8-102 of the New York UCC) may be asserted against the Underwriters with respect to such security entitlement, (i) and DTC shall be a “protected purchaser” of such Shares within the meaning of Section 8-303 of the UCCNew York UCC (assuming, in each case, that (iiA) under Section 8-501 none of the UCCDTC, the Cede & Co., any such other nominee or any Underwriter will acquire a valid security entitlement in respect have “notice of any adverse claim” to any of such Shares and (iii) no action based on any “adverse claim,” within the meaning of Section 8-102 105 of the New York UCC, to such Shares may be asserted against the Underwriter with respect to such security entitlement. For purposes of this representation, such Selling Stockholder may assume that when such payment, delivery and crediting occur, (A) such Shares will have been registered in the name of Cede or another nominee designated by DTC, in each case on the Company’s share registry in accordance with its certificate of incorporation, bylaws and applicable law, (B) DTC will be registered as a “clearing corporation” within the meaning of Section 8-102 of the UCC UCC, and (C) appropriate entries to the accounts of the Underwriter on the records jurisdiction of DTC will have been made pursuant to the UCC.is New York);
(d) Such Selling Stockholder has full right, power and authority, corporate or otherwise, to enter into this Agreement.
(e) This Agreement has been duly and validly authorized, executed and delivered by or on behalf of such Selling Stockholder.
(f) The execution, delivery and performance of this Agreement by such Selling Stockholder and the consummation by such Selling Stockholder of the transactions contemplated hereby and thereby 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, any indenture, mortgage, deed of trust, loan agreement, license or other agreement or instrument to which such Selling Stockholder is a party or by which such Selling Stockholder is bound or to which any of the property or assets of such Selling Stockholder is subject, (ii) result in any violation of the provisions of the charter or by-laws or deed of trust (or similar organizational documents) of such Selling Stockholder, or (iii) result in any violation of any statute or any order, rule or regulation of any court or governmental agency or body having jurisdiction over such Selling Stockholder or the property or assets of such Selling Stockholder.
(g) No consent, approval, authorization or order of, or filing or registration with, any court or governmental agency or body having jurisdiction over such Selling Stockholder or the property or assets of such Selling Stockholder is required for the execution, delivery and performance by the Selling Stockholder of this Agreement, the Custody Agreement by such Selling Stockholder and the Power of Attorney, the consummation by such the Selling Stockholder of the transactions contemplated hereby and thereby, except for the registration compliance by the Selling Stockholder with the terms and provisions hereunder and thereunder and the sale and delivery of the Shares by the Selling Stockholder, will not conflict with, or result in any breach of or constitute a default under (nor constitute any event which with notice, lapse of time, or both would constitute a breach of, or default under), (i) if the Selling Stockholder is not an individual, any provision of any of its certificate of incorporation, bylaws, operating agreement or any other organizational documents, (ii) any provision of any material contract, license, indenture, mortgage, deed of trust, bank loan or credit agreement or other agreement or instrument to which the Selling Stockholder is a party or by which it or its respective assets may be bound or affected, or (iii) any Law issued by any Governmental Authority applicable to the Selling Stockholder;
(e) no filing with, or authorization, approval, consent, license, order, registration, qualification or decree of, any Governmental Authority is necessary or required for the performance by the Selling Stockholder of its obligations hereunder or under the Securities Act and Custody Agreement or the Power of Attorney, in connection with the offering or sale of the Shares hereunder or the consummation of the transactions contemplated by this Agreement, the Custody Agreement or the Power of Attorney, except such consents, approvals, authorizations, registrations as have been already obtained or qualifications as may be required under the Exchange Act and applicable state securities laws in connection with the purchase and sale of the Shares by the Underwriter.
(h) All material information with respect to such Selling Stockholder contained in each of the Registration StatementSecurities Act, the Prospectus and the Pricing Disclosure Package (as amended and supplemented, if the Company shall have filed with the Commission any amendment or supplement thereto) (i) complied and will comply in all material respects with all applicable provisions of the Securities Act and the Rules and Regulations, the Investment Company Act, the rules of the Nasdaq Global Select Market, state securities laws or the rules of FINRA;
(iif) contains the Selling Stockholder is not prompted to sell Shares by any material information concerning the Company or its Subsidiaries that is not set forth in the Disclosure Package;
(g) at the time the Registration Statement became effective and will contain all statements of material fact required to be stated therein in accordance with on the Securities Act and date hereof, the Rules and Regulations, and (iii) does Registration Statement did not and will does not contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary in order to make the statements therein therein, in the light of the circumstances under which they were made, not misleading. Solely ; the Preliminary Prospectus did not, as of its date, and will not, as of the date of any amendment or supplement thereto, contain 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; the Disclosure Package, as of the Applicable Time, or any individual Issuer Free Writing Prospectus when considered together with the Disclosure Package, did not contain 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; the Company’s Road Show presentation or materials did not contain 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; the Final Prospectus will not, as of its date, at the Closing Time, contain 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 this representation and warranty shall only apply to statements or omissions in the Preliminary Prospectus, the Disclosure Package, any Issuer Free Writing Prospectus, the Final Prospectus, or the Company’s Road Show presentation that was made in reliance upon and in conformity with information furnished in writing by such Selling Stockholder to the Company expressly for use in the Preliminary Prospectus, the Disclosure Package, any Issuer Free Writing Prospectus, or the Final Prospectus (or in any amendment or supplement thereof), such information being limited to the information relating to such Selling Stockholder under the heading “Selling Stockholders” and the footnote thereunder, excluding any percentages set forth therein (collectively, the “Selling Stockholder Information”);
(h) the Selling Stockholder has not distributed and will not distribute, prior to the later of the Closing Date and the completion of the Underwriters’ distribution of the Shares, any offering material in connection with the offering and sale of the Shares;
(i) the Shares to be sold hereunder by the Selling Stockholder have been placed in custody, for the purpose of making delivery of such Shares under this Agreement and under the Custody Agreement and Power of Attorney which appoints American Stock Transfer & Trust Company, LLC, as custodian (the “Custodian”), for such Selling Stockholder; such Selling Stockholder agrees that the Shares held in custody for him, her or it under the Custody Agreement and Power of Attorney are for the benefit of and coupled with and subject to the interest thereunder of the Custodian, the Attorneys, the Underwriters, each other Selling Stockholder and the Company; that the arrangements made by such Selling Stockholder for such custody and the appointment of the Custodian and the Attorneys by such Selling Stockholder are, to the extent provided in the Custody Agreement and Power of Attorney, irrevocable; and that the obligations of such Selling Stockholder hereunder shall not be terminated by operation of law, whether by the death, disability, incapacity or liquidation of any Selling Stockholder or the occurrence of any other event; if any Selling Stockholder should die, become disabled or incapacitated or be liquidated or if any other such event should occur before the delivery of the Shares hereunder, the Shares shall be delivered by the Custodian in accordance with the terms and conditions of this Agreement and actions taken by the Attorneys and the Custodian pursuant to the Custody Agreement and Power of Attorney shall be as valid as if such death, liquidation, incapacity or other event had not occurred, regardless of whether or not the Custodian or the Attorneys, or either of them, shall have received notice thereof;
(j) the Selling Stockholder has not relied upon the Representatives or legal counsel for the Representatives for any legal, tax or accounting advice in connection with the offering and sale of the Shares;
(k) 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 the offering contemplated by this Agreement, except for such rights as are described in the Disclosure Package under “Description of our Capital Stock”;
(l) the operations of the Selling Stockholder and its affiliates are and have been conducted at all times in compliance with applicable financial recordkeeping and reporting requirements of the Money Laundering Laws; no action, suit or proceeding by or before any Governmental Authority or any arbitrator involving the Stockholder or any of its affiliates with respect to the Metalmark Money Laundering Laws is pending or, to the knowledge of the Selling Stockholders (as defined in Schedule I hereto)Stockholder, such threatened; and the Selling Stockholder is not prompted to sell the Shares by any material non-public information relating to the business, results of operations or prospects of the Company and its subsidiaries and, to the knowledge of an adverse nature that is required the Selling Stockholders, their respective affiliates, have conducted their businesses in compliance with applicable anti-corruption laws and have instituted and maintain and will continue to be disclosed in maintain policies and procedures designed to promote and achieve compliance with such laws;
(m) none of the Registration Statement, the Pricing Disclosure Package or the Prospectus. For this purpose, information that is set forth or incorporated by reference in the Registration Statement, the Pricing Disclosure Package or the Prospectus or that otherwise has been made publicly available about the Company shall be deemed to be public information, and any opinion or conclusion that a Metalmark Selling Stockholder may hold, or analysis performed by a Metalmark Selling Stockholder, in its capacity as an investor about subsidiaries, the businessdirectors, results of operations officers or prospects employees of the Company and Selling Stockholder or any of its subsidiaries shall not be information that relates subsidiary, or, to the business, results of operations or prospects knowledge of the Company.
Selling Stockholder, the affiliates, agents or any person acting on behalf of the Selling Stockholder or any subsidiary thereof is currently subject to, or a target of, any sanctions administered or enforced by the U.S. government (including, without limitation, OFAC or the U.S. Department of State, and including, without limitation, the designation as a “specially designated national” or “blocked person”); and the Selling Stockholder will not directly or indirectly use the proceeds of the offering of the Shares hereunder, or lend, contribute or otherwise make available such proceeds to any subsidiary, joint venture partner or other person or entity, (i) Such for the purpose of financing the activities of any person currently subject to any U.S. sanctions administered by OFAC, (ii) to fund or facilitate any activities of or business in any Sanctioned Country in violation of applicable law or (iii) in any other manner that will result in a violation by any person (including any person participating in the transaction, whether as underwriting, advisor, investor or otherwise) of applicable sanctions laws. Neither the Selling Stockholder nor any of its subsidiaries have knowingly engaged in, nor are they now knowingly engaged 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 applicable sanctions laws or with any Sanctioned Country, except as permitted by applicable law;
(n) neither the Selling Stockholder nor any of its subsidiaries, nor any affiliates of the Selling Stockholder or its subsidiaries, has not taken taken, directly, or indirectly, and neither the Selling Stockholder nor any of its subsidiaries, nor any affiliates of the Selling Stockholder or its subsidiaries, will not take, directly or indirectly, any action that is designed to cause or that has constituted result in, or that could which constitutes or might reasonably be expected to cause or result in constitute, the stabilization or manipulation of the price of any security of the Company or any “reference security” (as defined in Rule 100 of Regulation M under the Exchange Act) to facilitate the sale or resale of the Shares.Shares or otherwise, and has taken no action which would directly or indirectly violate Regulation M under the Exchange Act;
(jo) The the Selling Stockholder does not have, or has waived prior to the date hereof, any preemptive right, co-sale right or right of first refusal or other similar right to purchase any of the Shares that are to be sold by the Company or any of the other Selling Stockholders to the Underwriters pursuant to this Agreement; and such Selling Stockholder does not violate own any of warrants, options or similar rights to acquire, and does not have any right or arrangement to acquire, any capital stock, right, warrants, options or other securities from the Company’s internal policies regarding , other than those described in the sale of stock by its affiliates. Any certificate signed by any officer of any Disclosure Package; and
(p) except as otherwise disclosed to the Underwriters in writing, such Selling Stockholder and delivered to the Underwriter is not a member of or counsel for the Underwriter in connection an affiliate of or associated with the offering any member of the Shares shall be deemed a representation and warranty by such Selling Stockholder, as to matters covered thereby, to the UnderwriterFINRA.
Appears in 1 contract
Representations and Warranties of the Selling Stockholders. Each Except with respect to Section 4(l) which does not apply to any Selling Stockholder that is not a party to the Share Repurchase Agreement, each Selling Stockholder (or Specified Selling Stockholder, as applicable), severally and not jointly, represents and warrants to the Underwriter and the Company that:
(a) Neither such Such Specified Selling Stockholder nor any person acting on behalf has entered into a Power of Attorney (the “Power of Attorney”) and a Custody Agreement (the “Custody Agreement”) for the sale and delivery of the Shares to be sold by such Specified Selling Stockholder; and such Specified Selling Stockholder (other thanhas full right, if applicablepower and authority to enter into this Agreement, the Company Power of Attorney and the Underwriter) has used or referred Custody Agreement and to any “free writing prospectus” (as defined in Rule 405)sell, relating assign, transfer and deliver the Shares to be sold by such Specified Selling Stockholder hereunder; this Agreement, the SharesPower of Attorney and the Custody Agreement have each been duly authorized, executed and delivered by such Specified Selling Stockholder.
(b) Such Selling Stockholder has, and immediately prior to is the Closing Date on which such Selling Stockholder is selling the Shares, such Selling Stockholder will have, good and valid title to or a valid “security entitlement” within the meaning record owner of Section 8-501 of the New York Uniform Commercial Code (the “UCC”) in respect of, the Shares to be sold by such Selling Stockholder hereunder on such Closing Date free and clear of all liens, encumbrances, equities or claims.
(c) Upon payment for the Shares to be sold by such Selling Stockholder, delivery of such Shares, as directed by the Underwriter, to Cede & Co. (“Cede”) or such other nominee as may be designated by The Depository Trust Company (“DTC”), registration of and claims and has duly endorsed such Shares in the name of Cede or such other nominee blank, and the crediting of such Shares on the books of DTC to securities accounts of assuming that the Underwriter (assuming that neither DTC nor acquires its interest in the Underwriter Shares it has purchased from such Selling Stockholder without notice of any adverse claim (within the meaning of Section 8-105 of the New York Uniform Commercial Code (“UCC) to such Shares”)), (i) DTC shall be a “protected purchaser” of the Underwriter that has purchased such Shares delivered on the Closing Date to DTC or other securities intermediary by making payment therefor as provided herein and that has had such Shares credited to the securities account or accounts of the Underwriter maintained with DTC or such other securities intermediary will have acquired a security entitlement (within the meaning of Section 8-303 102(a)(17) of the UCC, (ii) under Section 8-501 of the UCC, the Underwriter will acquire a valid security entitlement in respect of to such Shares purchased by the Underwriter, and (iii) no action based on any “an adverse claim,” claim (within the meaning of Section 8-102 of the UCC, to such Shares ) may be successfully asserted against the Underwriter under the UCC as in effect in the State of New York with respect to such security entitlement. For purposes of this representation, such Shares.
(c) Such Selling Stockholder may assume has not taken, directly or indirectly, any action designed to or that when such paymentwould constitute or that might reasonably be expected to cause or result in, delivery and crediting occurunder the Exchange Act or otherwise, (A) such Shares will have been registered in the name of Cede stabilization or another nominee designated by DTC, in each case on the Company’s share registry in accordance with its certificate of incorporation, bylaws and applicable law, (B) DTC will be registered as a “clearing corporation” within the meaning of Section 8-102 manipulation of the UCC and (C) appropriate entries to the accounts price of any security of the Underwriter on Company to facilitate the records sale or resale of DTC will have been made pursuant to the UCCShares during the distribution of the Shares by the Underwriter.
(d) Certificates in negotiable form representing all of the Shares to be sold by such Selling Stockholder (other than those to be sold by the Specified Selling Stockholders) have been deposited with American Stock Transfer & Trust Company, LLC, the transfer agent for the Company’s Common Stock (the “Transfer Agent”). Such Selling Stockholder has full rightspecifically agrees that the Shares represented by the certificates so deposited are subject to the interests of the Underwriter hereunder, power and authoritythat the arrangements made by such Selling Stockholder for such deposit will not be revoked prior to the earlier of the sales of such Shares hereunder. Such Selling Stockholder specifically agrees that the obligations of such Selling Stockholder hereunder shall not be terminated by operation of law by the dissolution of such partnership, corporate corporation or otherwiseorganization, to enter into this Agreement.
(e) This Agreement has been duly and validly authorizedor by the occurrence of any other event. If any such partnership, executed and corporation or similar organization should be dissolved, or if any other such event should occur, before the delivery of the Shares hereunder, certificates representing such Shares shall be delivered by or on behalf of such Selling StockholderStockholder in accordance with the terms and conditions of this Agreement.
(fe) The executionNo consent, delivery and performance approval, authorization or order of this Agreement by such Selling Stockholder and any court or governmental agency or body is required for the consummation by such Selling Stockholder of the transactions contemplated hereby herein, except such as may have been obtained under the Act and thereby do not such as may be required under the blue sky laws of any jurisdiction in connection with the purchase and distribution of the Shares by the Underwriter and such other approvals as have been obtained.
(f) Neither the sale of the Shares being sold by such Selling Stockholder nor the consummation of any other of the transactions herein contemplated by such Selling Stockholder will not (i) conflict with or with, result in a breach or violation of any of the terms or provisions of, or constitute a default under, (i) any indenturelaw applicable to such Selling Stockholder, mortgage, deed (ii) certificate of trust, loan formation; or the limited partnership agreement or limited liability company agreement, license as applicable, of such Selling Stockholder, (iii) the terms of any indenture or other agreement or instrument to which such Selling Stockholder is a party or by which bound, or (iv) any judgment, order or decree applicable to such Selling Stockholder is bound or to which any of the property or assets of such Selling Stockholder is subject, (ii) result in any violation of the provisions of the charter or by-laws or deed of trust (or similar organizational documents) of such Selling Stockholder, or (iii) result in any violation of any statute court, regulatory body, administrative agency, governmental body or any order, rule or regulation of any court or governmental agency or body arbitrator having jurisdiction over such Selling Stockholder Stockholder, except in the case of clauses (i), (iii) and (iv), for any such conflict, breach, violation or default that would not impair in any material respect the property or assets ability of such Selling StockholderStockholder to consummate the transactions contemplated by this Agreement.
(g) No consent, approval, authorization In respect of any statements in or order of, or filing or registration with, any court or governmental agency or body having jurisdiction over such Selling Stockholder or the property or assets of such Selling Stockholder is required for the execution, delivery and performance of this Agreement by such Selling Stockholder and the consummation by such Selling Stockholder of the transactions contemplated hereby and thereby, except for the registration of the Shares under the Securities Act and such consents, approvals, authorizations, registrations or qualifications as may be required under the Exchange Act and applicable state securities laws in connection with the purchase and sale of the Shares by the Underwriter.
(h) All material information with respect to such Selling Stockholder contained in each of omissions from the Registration Statement, the Prospectus and the Pricing Disclosure Package (as amended and supplementedthe Prospectus, if any Preliminary Prospectus and any Issuer Free Writing Prospectuses made in reliance upon and in conformity with any information related to such Selling Stockholder furnished in writing to the Company shall have filed by such Selling Stockholder expressly for use therein in connection with the Commission any amendment or supplement thereto) disclosure required by Form S-3 (i) complied and will comply in all material respects with all applicable provisions of such information, the Securities Act and the Rules and Regulations“Selling Stockholder Information”), (ii) contains and will contain all statements of material fact required to be stated therein in accordance with the Securities Act and the Rules and Regulations, and (iii) such information does not and will not contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary in order to make the statements therein therein, in light of the circumstances under which they were made, not misleading. Solely with respect to the Metalmark Selling Stockholders (as defined in Schedule I hereto), such Selling Stockholder is not prompted to sell the Shares by any material non-public information relating to the business, results of operations or prospects of the Company and its subsidiaries of an adverse nature that is required to be disclosed in the Registration Statement, the Pricing Disclosure Package or the Prospectus. For this purpose, information that is set forth or incorporated by reference in the Registration Statement, the Pricing Disclosure Package or the Prospectus or that otherwise has been made publicly available about the Company shall be deemed to be public information, and any opinion or conclusion that a Metalmark Selling Stockholder may hold, or analysis performed by a Metalmark Selling Stockholder, in its capacity as an investor about the business, results of operations or prospects of the Company and its subsidiaries shall not be information that relates to the business, results of operations or prospects of the Company.
(i) Such Selling Stockholder has not taken and will not take, directly or indirectly, any action that is designed to or that has constituted or that could reasonably be expected to cause or result in the stabilization or manipulation of the price of any security of the Company to facilitate the sale or resale of the Shares.
(j) The sale of the Shares by such Selling Stockholder does not violate any of the Company’s internal policies regarding the sale of stock by its affiliates. Any certificate signed by any officer of any 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 such Selling Stockholder, as to matters covered thereby, to the Underwriter.
Appears in 1 contract
Samples: Underwriting Agreement (Dunkin' Brands Group, Inc.)
Representations and Warranties of the Selling Stockholders. Each Selling Stockholder, severally and not jointly, represents and warrants that:
(a) Neither such Selling Stockholder nor any person acting on behalf of such Selling Stockholder (other than, if applicable, the Company and the UnderwriterUnderwriters) has used or referred to any “free writing prospectus” (as defined in Rule 405), 405 under the Securities Act) relating to the SharesStock.
(b) Such Selling Stockholder hasUpon completion of the Reorganization Transactions, and immediately prior to the Closing any Delivery Date on which such Selling Stockholder is selling the Sharesshares of Stock, such Selling Stockholder will have, good and valid marketable title to or a valid “security entitlement” within the meaning shares of Section 8-501 of the New York Uniform Commercial Code (the “UCC”) in respect of, the Shares Stock to be sold by such Selling Stockholder hereunder on such Closing Date Delivery Date, free and clear of all liens, encumbrances, equities, community property rights, restrictions on transfer or claims except for any liens, encumbrances, equities or claimsclaims arising under the Custody Agreement (defined below).
(c) Upon payment for the Shares Stock to be sold by such Selling StockholderStockholder pursuant to this Agreement, delivery of such SharesStock, as directed by the UnderwriterUnderwriters, to Cede & Co. (“Cede”) or such other nominee as may be designated by The Depository Trust Company (“DTC”), registration of such Shares Stock in the name of Cede or such other nominee and the crediting of such Shares Stock on the books of DTC to securities accounts of the Underwriter Underwriters (assuming that neither i) DTC nor will acquire good and marketable title to the Underwriter has notice Stock free and clear of any adverse claim (within the meaning of Section 8-105 of the UCC) to such Shares)all liens, encumbrances, equities, community property rights, restrictions on transfer or claims, (iii) DTC shall be a “protected purchaser” of such Shares Stock within the meaning of Section 8-303 of the New York Uniform Commercial Code (the “UCC”), (iiiii) under Section 8-501 of the UCC, the Underwriter Underwriters will acquire a valid security entitlement in respect of such Shares Stock, and (iiiiv) no an action based on any an “adverse claim,” within the meaning of (as defined in Section 8-102 of the UCC, ) to such Shares securities entitlement, whether framed in conversion, replevin, constructive trust, equitable lien or other theory may not be asserted against the Underwriter Underwriters with respect to such security entitlemententitlement (assuming that the Underwriters are purchasing such Stock without notice of any adverse claim). For purposes of this representation, such Selling Stockholder may assume that when such payment, delivery and crediting occur, (Ax) such Shares Stock 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, (By) DTC will be registered as a “clearing corporation” within the meaning of Section 8-102 of the UCC UCC, and (Cz) appropriate entries to the accounts of the Underwriter several Underwriters on the records of DTC will have been made pursuant to the UCC.
(d) Such Selling Stockholder will, prior to the Initial Delivery Date, place in custody under a custody agreement (the “Custody Agreement” and, together with all other similar agreements executed by the other Selling Stockholders, the “Custody Agreements”) with American Stock Transfer & Trust Company, LLC, as custodian (the “Custodian”), for delivery under this Agreement, certificates in negotiable form (with signature guaranteed by a participant in the Securities Transfer Agents Medallion Program, the New York Stock Exchange Medallion Signature Program or the Stock Exchanges Medallion Program) representing the shares of Stock to be sold by the Selling Stockholder hereunder.
(e) Such Selling Stockholder has duly and irrevocably executed and delivered a power of attorney (the “Power of Attorney” and, together with all other similar agreements executed by the other Selling Stockholders, the “Powers of Attorney”) appointing the Custodian and Xxxxx XxXxxxx and Xxxxxx Xxxxxxx as attorneys in fact, with full power of substitution, and with full authority (exercisable by any one or more of them) to execute and deliver this Agreement and to take such other action as may be necessary or desirable to carry out the provisions hereof on behalf of the Selling Stockholder.
(f) Such Selling Stockholder has full right, power and authority, corporate or otherwise, to enter into this Agreement, the Custody Agreement and the Power of Attorney.
(eg) This Agreement has been duly and validly authorized, executed and delivered by or on behalf of such Selling Stockholder.
(fh) The Powers of Attorney have been, and prior to the Initial Delivery Date the Custody Agreements will be, duly and validly authorized, executed and delivered by or on behalf of each Selling Stockholder and constitute valid and legally binding obligations of such Selling Stockholder enforceable against such Selling Stockholder in accordance with their terms, subject to (A) applicable bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium or similar laws affecting the enforcement of creditors’ rights generally or equitable principles (whether considered in a proceeding at law or in equity) relating to enforceability and (B) public policy, applicable law relating to fiduciary duties and indemnification and an implied covenant of good faith and fair dealing.
(i) The sale of the Stock by such Selling Stockholder, the execution, delivery and performance of this Agreement, the Custody Agreement and the Power of Attorney by such Selling Stockholder and the consummation by such Selling Stockholder of the transactions contemplated hereby and thereby 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, any indenture, mortgage, deed of trust, loan agreement, license license, lease or other agreement or instrument to which such Selling Stockholder is a party or by which such Selling Stockholder is bound or to which any of the property or assets of such Selling Stockholder is subject, (ii) if applicable result in any violation of the provisions of the charter or by-laws or deed of trust (or similar organizational documents) of such Selling Stockholder, Stockholder or (iii) result in any violation of any statute or any judgment, order, decree, rule or regulation of any court or governmental agency or body having jurisdiction over such Selling Stockholder or the property or assets of such Selling Stockholder, except in the case of clauses (i) or (iii) above, for any default or violation that would not, in the aggregate, reasonably be expected to have a material adverse effect on the ability of the Selling Stockholder to consummate the transactions contemplated by this Agreement, the Custody Agreement or the Power of Attorney.
(gj) No consent, approval, authorization or order of, or filing or registration with, any court or governmental agency or body having jurisdiction over such Selling Stockholder or the property or assets of such Selling Stockholder is required for the sale of the Stock by such Selling Stockholder, the execution, delivery and performance of this Agreement, the Custody Agreement or the Power of Attorney by such Selling Stockholder and the consummation by such Selling Stockholder of the transactions contemplated hereby and thereby, except (A) such as have been or, prior to the Initial Delivery Date will be, obtained or made, (B) for the registration of the Shares Stock under the Securities Act and such consents, approvals, authorizations, orders, filings, registrations or qualifications as may be required under the Exchange Act and applicable state securities laws in connection with the purchase and sale of the Shares Stock by the UnderwriterUnderwriters, (C) for such that, if not obtained, have not or would not, in the aggregate, reasonably be expected to have a material adverse effect on the ability of the Selling Stockholder to consummate the transactions contemplated by this Agreement, the Custody Agreement or the Power of Attorney, and (D) as described in the Registration Statement and the most recent Preliminary Prospectus.
(k) In respect of any statements in or omissions from the Registration Statement, the Prospectus, the Pricing Disclosure Package or any Issuer Free Writing Prospectus or any amendment or supplement thereto used by the Company or any Underwriter, as the case may be, made in reliance upon and in conformity with information furnished in writing to the Company by such Selling Stockholder specifically for use in connection with the preparation thereof, such Selling Stockholder hereby makes the same representations and warranties to each Underwriter as the Company makes to such Underwriter under Sections (1)(f), (g), (h) All material and (i); it being understood and agreed that the foregoing applies only to such information furnished by such Selling Stockholder to the Company, which consists of (A) the legal name, address and the number of shares of Common Stock owned by such Selling Stockholder, and (B) the other information with respect to such Selling Stockholder contained (excluding percentages) which appear in each of the Registration Statementtable (and corresponding footnotes) under the caption “Principal and Selling Stockholders” (collectively, the Prospectus and the Pricing Disclosure Package “Selling Stockholder Information”).
(as amended and supplemented, if the Company shall have filed with the Commission any amendment or supplement theretol) (i) complied and will comply in all material respects with all applicable provisions of the Securities Act and the Rules and Regulations, (ii) contains and will contain all statements of material fact required to be stated therein in accordance with the Securities Act and the Rules and Regulations, and (iii) does not and will not contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary in order to make the statements therein not misleading. Solely with respect to the Metalmark Selling Stockholders (as defined in Schedule I hereto), such Such Selling Stockholder is not prompted to sell the Shares shares of Stock by any material non-public information relating to the business, results of operations or prospects of concerning the Company and its subsidiaries of an adverse nature that is required to be disclosed not set forth in the Registration Statement, the Pricing Disclosure Package or and the Prospectus. For this purpose, information that is set forth or incorporated by reference in the Registration Statement, the Pricing Disclosure Package or the Prospectus or that otherwise has been made publicly available about the Company shall be deemed to be public information, and any opinion or conclusion that a Metalmark Selling Stockholder may hold, or analysis performed by a Metalmark Selling Stockholder, in its capacity as an investor about the business, results of operations or prospects of the Company and its subsidiaries shall not be information that relates to the business, results of operations or prospects of the Company.
(im) Such Except as disclosed in the most recent Preliminary Prospectus, the Selling Stockholder has not taken and will not taketaken, directly or indirectly, any action that is designed to or that has constituted or that could reasonably be expected to cause or result in the stabilization or manipulation of the price of any security of the Company to facilitate in connection with the sale or resale offering of the Shares.
(j) The sale shares of the Shares by such Selling Stockholder does not violate any of the Company’s internal policies regarding the sale of stock by its affiliatesStock. Any certificate signed by any officer of any such Selling Stockholder and delivered to the Underwriter Representatives or counsel for the Underwriter Underwriters in connection with the offering of the Shares Stock shall be deemed a representation and warranty by such Selling Stockholder, as to matters covered thereby, to the each Underwriter.
Appears in 1 contract
Representations and Warranties of the Selling Stockholders. Each Selling Stockholder, severally and not jointly, Stockholder represents and warrants to the Underwriter that:
(a) Neither such Selling Stockholder nor any person acting on behalf of such Selling Stockholder (other than, if applicable, the Company and the Underwriter) has used or referred to any “free writing prospectus” (as defined in Rule 405), relating to the Shares.
(b) Such Selling Stockholder has, and immediately prior to is the Closing Date on which such Selling Stockholder is selling the Shares, such Selling Stockholder will have, good and valid title to or a valid “security entitlement” within the meaning lawful owner of Section 8-501 of the New York Uniform Commercial Code (the “UCC”) in respect of, the Shares to be sold by such Selling Stockholder hereunder pursuant to this Agreement and has, and on such the Closing Date free will have, good and clear title to such Shares, free of all restrictions on transfer, liens, encumbrances, security interests, equities and claims whatsoever.
(b) The Shares to be sold by such Selling Stockholder have been duly authorized and validly issued and are fully paid, non-assessable and were not issued in violation of any preemptive or claimssimilar rights.
(c) Such Selling Stockholder has, and on the Closing Date will have, full legal right, power and authority, and all authorization and approval required by law, to enter into this Agreement and to sell, assign, transfer and deliver the Shares to be sold by such Selling Stockholder in the manner provided herein and therein.
(d) This Agreement has been duly authorized, executed and delivered by or on behalf of such Selling Stockholder.
(e) [reserved].
(f) [reserved].
(g) Upon delivery of and payment for the Shares to be sold by such Selling StockholderStockholder pursuant to this Agreement, delivery of such Sharesand, as directed by assuming that the Underwriter, to Cede & Co. (“Cede”) or such other nominee as may be designated by The Depository Trust Company (“DTC”), registration of such Shares Underwriter acquires its interest in the name of Cede or Shares it has purchased from such other nominee and the crediting of such Shares on the books of DTC to securities accounts of the Underwriter (assuming that neither DTC nor the Underwriter has Selling Stockholder without notice of any adverse claim (within the meaning of Section 8-105 of the New York Uniform Commercial Code ("UCC) to such Shares")), (i) DTC shall be a “protected purchaser” of the Underwriter who purchased such Shares delivered on the Closing Date to The Depository Trust Company or other securities intermediary by making payment therefor as provided herein, and who had such Shares credited to the securities account or accounts of the Underwriter maintained with The Depository Trust Company or such other securities intermediary will have acquired a security entitlement (within the meaning of Section 8-303 102(a)(17) of the UCC, (ii) under Section 8-501 of the UCC, the Underwriter will acquire a valid security entitlement in respect of to such Shares purchased by the Underwriter, and (iii) no action based on any “an adverse claim,” claim (within the meaning of Section 8-102 105 of the UCC, to such Shares ) may be asserted against the Underwriter with respect to such security entitlement. For purposes of this representation, such Selling Stockholder may assume that when such payment, delivery and crediting occur, (A) such Shares will have been registered in the name of Cede or another nominee designated by DTC, in each case on the Company’s share registry in accordance with its certificate of incorporation, bylaws and applicable law, (B) DTC will be registered as a “clearing corporation” within the meaning of Section 8-102 of the UCC and (C) appropriate entries to the accounts of the Underwriter on the records of DTC will have been made pursuant to the UCCShares.
(d) Such Selling Stockholder has full right, power and authority, corporate or otherwise, to enter into this Agreement.
(e) This Agreement has been duly and validly authorized, executed and delivered by or on behalf of such Selling Stockholder.
(fh) The execution, delivery and performance of this Agreement the compliance by such Selling Stockholder with all the provisions hereof and the consummation by such Selling Stockholder of the transactions contemplated hereby and thereby do not and will not (i) require any consent, approval, authorization or other order of, or qualification with, any court or governmental body or agency (except such as may be required under the securities or blue sky laws of the various states), (ii) conflict with or result in constitute a breach or violation of any of the terms or provisions of, or constitute a default under, the organizational documents of such Selling Stockholder or any indenture, mortgage, deed of trust, loan agreement, license mortgage, lease or other agreement or instrument to which such Selling Stockholder is a party or by which such Selling Stockholder is bound or to which any of the property or assets of such Selling Stockholder is subject, (ii) result in any violation of bound and which is material to the provisions of the charter or by-laws or deed of trust (or similar organizational documents) business of such Selling Stockholder, Stockholder or (iii) result in violate or conflict with any violation of any statute applicable law or any orderrule, rule regulation, judgment, order or regulation decree of any court or any governmental body or agency or body having jurisdiction over such Selling Stockholder or the any property or assets of such Selling Stockholder.
(gi) No consent, approval, authorization or order of, or filing or registration with, any court or governmental agency or body having jurisdiction over such Selling Stockholder or The information in the property or assets of such Selling Stockholder is required for the execution, delivery and performance of this Agreement by such Selling Stockholder and the consummation by such Selling Stockholder of the transactions contemplated hereby and thereby, except for the registration of the Shares Registration Statement under the Securities Act and such consents, approvals, authorizations, registrations or qualifications as may be required under the Exchange Act and applicable state securities laws in connection with the purchase and sale of the Shares by the Underwriter.
(h) All material information with respect caption "Selling Stockholder" that specifically relates to such Selling Stockholder contained in each of the Registration Statement, the Prospectus and the Pricing Disclosure Package (as amended and supplemented, if the Company shall have filed with the Commission any amendment or supplement thereto) (i) complied and will comply in all material respects with all applicable provisions of the Securities Act and the Rules and Regulations, (ii) contains and will contain all statements of material fact required to be stated therein in accordance with the Securities Act and the Rules and Regulationsdoes not, and (iii) does not and on the Closing Date will not not, contain an any untrue statement of a material fact or omit to state a any material fact required to be stated therein or necessary in order to make the statements therein therein, in the light of the circumstances under which they were made, not misleading. Solely with respect .
(j) At any time during the period described in Section 5(f), if there is any change in the information referred to the Metalmark Selling Stockholders (as defined in Schedule I heretoSection 7(i), such Selling Stockholder is not prompted to sell will immediately notify the Shares Underwriter of such change.
(k) Each certificate signed by any material non-public information relating or on behalf of such Selling Stockholder and delivered to the business, results of operations Underwriter or prospects of counsel for the Company and its subsidiaries of an adverse nature that is required to be disclosed in the Registration Statement, the Pricing Disclosure Package or the Prospectus. For this purpose, information that is set forth or incorporated by reference in the Registration Statement, the Pricing Disclosure Package or the Prospectus or that otherwise has been made publicly available about the Company Underwriter shall be deemed to be public information, a representation and any opinion or conclusion that a Metalmark warranty by such Selling Stockholder may hold, or analysis performed by a Metalmark Selling Stockholder, in its capacity as an investor about the business, results of operations or prospects of the Company and its subsidiaries shall not be information that relates to the business, results of operations or prospects of Underwriter as to the Companymatters covered thereby.
(il) Such Selling Stockholder is not an "investment company" within the meaning of the Investment Company Act of 1940, as amended.
(m) Such Selling Stockholder has not taken and will not take, directly or indirectly, any action that which is designed to or that which has constituted or that could which might reasonably be expected to cause or result in the stabilization or manipulation of the price of any security of the Company to facilitate the sale or resale of the Shares.
(j) The sale of the Shares by such Selling Stockholder does not violate any of the Company’s internal policies regarding the sale of stock by its affiliates. Any certificate signed by any officer of any 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 such Selling Stockholder, as to matters covered thereby, to the Underwriter.
Appears in 1 contract
Representations and Warranties of the Selling Stockholders. Each Selling Stockholder, severally and not jointly, represents and warrants to each Underwriter that:
(a) Neither Such Selling Stockholder is the lawful owner of the Shares to be sold by such Selling Stockholder nor any person acting pursuant to this Agreement and has, and on behalf each of such Selling Stockholder (other than, if applicable, the Company Closing Date and the Underwriter) has used or referred Option Closing Date will have, good and clear title to any “such Shares, free writing prospectus” (as defined in Rule 405)of all restrictions on transfer, relating to the Sharesliens, encumbrances, security interests, equities and claims whatsoever.
(b) Such Selling Stockholder has, and immediately prior to on each of the Closing Date on which and the Option Closing Date will have, full legal right, power and authority, and all authorization and approval required by law, to enter into this Agreement, the Custody Agreement signed by such Selling Stockholder is selling the Sharesand ___, such 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 as custodian (the “UCC”) in respect of"CUSTODIAN"), relating to the deposit of the Shares to be sold by such Selling Stockholder hereunder on (the "CUSTODY AGREEMENT") and the Power of Attorney of such Closing Date free Selling Stockholder appointing certain individuals as such Selling Stockholder's attorneys-in-fact (the "ATTORNEYS") to the extent set forth therein, relating to the transactions contemplated hereby and clear of all liensby the Registration Statement and the Custody Agreement (the "POWER OF ATTORNEY") and to sell, encumbrancesassign, equities or claims.
(c) Upon payment for transfer and deliver the Shares to be sold by such Selling Stockholder, delivery of such Shares, as directed by the Underwriter, to Cede & Co. (“Cede”) or such other nominee as may be designated by The Depository Trust Company (“DTC”), registration of such Shares Stockholder in the name of Cede or such other nominee manner provided herein and the crediting of such Shares on the books of DTC to securities accounts of the Underwriter (assuming that neither DTC nor the Underwriter has notice of any adverse claim (within the meaning of Section 8-105 of the UCC) to such Shares), (i) DTC shall be a “protected purchaser” of such Shares within the meaning of Section 8-303 of the UCC, (ii) under Section 8-501 of the UCC, the Underwriter will acquire a valid security entitlement in respect of such Shares and (iii) no action based on any “adverse claim,” within the meaning of Section 8-102 of the UCC, to such Shares may be asserted against the Underwriter with respect to such security entitlement. For purposes of this representation, such Selling Stockholder may assume that when such payment, delivery and crediting occur, (A) such Shares will have been registered in the name of Cede or another nominee designated by DTC, in each case on the Company’s share registry in accordance with its certificate of incorporation, bylaws and applicable law, (B) DTC will be registered as a “clearing corporation” within the meaning of Section 8-102 of the UCC and (C) appropriate entries to the accounts of the Underwriter on the records of DTC will have been made pursuant to the UCCtherein.
(d) Such Selling Stockholder has full right, power and authority, corporate or otherwise, to enter into this Agreement.
(ec) This Agreement has been duly and validly authorized, executed and delivered by or on behalf of such Selling Stockholder.
(d) The Custody Agreement of such Selling Stockholder has been duly authorized, executed and delivered by such Selling Stockholder and is a valid and binding agreement of such Selling Stockholder, enforceable in accordance with its terms, subject to applicable bankruptcy, insolvency, reorganization, moratorium or other laws of general application affecting the enforcement of creditors' rights.
(e) The Power of Attorney of such Selling Stockholder has been duly authorized, executed and delivered by such Selling Stockholder and is a valid and binding instrument of such Selling Stockholder, enforceable in accordance with its terms, subject to applicable bankruptcy, insolvency, reorganization, moratorium or other laws of general application affecting the enforcement of creditors' rights, and, pursuant to such Power of Attorney, such Selling Stockholder has, among other things, authorized the Attorneys, or any one of them, to execute and deliver on such Selling Stockholder's behalf this Agreement and any other document that they, or any one of them, may deem necessary or desirable in connection with the transactions contemplated hereby and thereby and to deliver the Shares to be sold by such Selling Stockholder pursuant to this Agreement.
(f) Upon delivery of and payment for the Shares to be sold by such Selling Stockholder pursuant to this Agreement, good and clear title to such Shares will pass to the Underwriters, free of all restrictions on transfer, liens, encumbrances, security interests, equities and claims whatsoever.
(g) The execution, delivery and performance of this Agreement and the Custody Agreement and Power of Attorney of such Selling Stockholder by or on behalf of such Selling Stockholder, the compliance by such Selling Stockholder with all the provisions hereof and thereof and the consummation by such Selling Stockholder of the transactions contemplated hereby and thereby do not and will not (i) require any consent, approval, authorization or other order of, or qualification with, any court or governmental body or agency (except such as may be required under the securities or Blue Sky laws of the various states), (ii) conflict with or result in constitute a breach or violation of any of the terms or provisions of, or constitute a default under, the organizational documents of such Selling Stockholder, if such Selling Stockholder is not an individual, or any indenture, mortgage, deed of trust, loan agreement, license mortgage, lease or other agreement or instrument to which such Selling Stockholder is a party or by which such Selling Stockholder is bound or to which any of the property or assets of such Selling Stockholder is subject, (ii) result in any violation of the provisions of the charter or by-laws or deed of trust (or similar organizational documents) of such Selling Stockholder, bound or (iii) result in violate or conflict with any violation of any statute applicable law or any orderrule, rule regulation, judgment, order or regulation decree of any court or any governmental body or agency or body having jurisdiction over such Selling Stockholder or the any property or assets of such Selling Stockholder.
(g) No consent, approval, authorization or order of, or filing or registration with, any court or governmental agency or body having jurisdiction over such Selling Stockholder or the property or assets of such Selling Stockholder is required for the execution, delivery and performance of this Agreement by such Selling Stockholder and the consummation by such Selling Stockholder of the transactions contemplated hereby and thereby, except for the registration of the Shares under the Securities Act and such consents, approvals, authorizations, registrations or qualifications as may be required under the Exchange Act and applicable state securities laws in connection with the purchase and sale of the Shares by the Underwriter.
(h) All material information with respect to such Selling Stockholder contained in each of the Registration Statement, the Prospectus and the Pricing Disclosure Package (as amended and supplemented, if the Company shall have filed with the Commission any amendment or supplement thereto) (i) complied and will comply in all material respects with all applicable provisions of the Securities Act and the Rules and Regulations, (ii) contains and will contain all statements of material fact required to be stated therein in accordance with the Securities Act and the Rules and Regulations, and (iii) does not and will not contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary in order to make the statements therein not misleading. Solely with respect to the Metalmark Selling Stockholders (as defined in Schedule I hereto), such Selling Stockholder is not prompted to sell the Shares by any material non-public information relating to the business, results of operations or prospects of the Company and its subsidiaries of an adverse nature that is required to be disclosed in the Registration Statement, the Pricing Disclosure Package or the Prospectus. For this purpose, information that is set forth or incorporated by reference in the Registration Statement, the Pricing Disclosure Package or the Prospectus or that otherwise has been made publicly available about the Company shall be deemed to be public information, and any opinion or conclusion that a Metalmark Selling Stockholder may hold, or analysis performed by a Metalmark Selling Stockholder, in its capacity as an investor about the business, results of operations or prospects of the Company and its subsidiaries shall not be information that relates to the business, results of operations or prospects of the Company.
(i) Such Selling Stockholder has not taken and will not take, directly or indirectly, any action that is designed to or that has constituted or that could reasonably be expected to cause or result in the stabilization or manipulation of the price of any security of the Company to facilitate the sale or resale of the Shares.
(j) The sale of the Shares by such Selling Stockholder does not violate any of the Company’s internal policies regarding the sale of stock by its affiliates. Any Each certificate signed by any officer or on behalf of any such Selling Stockholder and delivered to the Underwriter Underwriters or counsel for the Underwriter in connection with the offering of the Shares Underwriters shall be deemed to be a representation and warranty by such Selling Stockholder, Stockholder to the Underwriters as to the matters covered thereby, to the Underwriter.
Appears in 1 contract
Samples: Underwriting Agreement (Ultimate Software Group Inc)
Representations and Warranties of the Selling Stockholders. Each Selling Stockholder, severally and not jointly, represents and warrants that:
(a) Neither such Selling Stockholder nor any person acting on behalf of such Selling Stockholder (other than, if applicable, the Company and the Underwriter) has used or referred to any “free writing prospectus” (as defined in Rule 405), 405 under the Securities Act) relating to the SharesStock.
(b) Such Selling Stockholder has, and immediately prior to the Closing At any Delivery Date on which such Selling Stockholder is selling the Sharesshares of Stock, such Selling Stockholder will have, have good and valid marketable title to or a valid “security entitlement” within the meaning shares of Section 8-501 of the New York Uniform Commercial Code (the “UCC”) in respect of, the Shares Stock to be sold by such Selling Stockholder hereunder on such Closing Date Delivery Date, free and clear of all liens, encumbrances, equities, community property rights, restrictions on transfer or claims except for any liens, encumbrances, equities or claimsclaims arising under the Custody Agreement (defined below), as applicable.
(c) Upon payment for the Shares Stock to be sold by such Selling StockholderStockholder pursuant to this Agreement, delivery of such SharesStock, as directed by the Underwriter, to Cede & Co. (“Cede”) or such other nominee as may be designated by The Depository Trust Company (“DTC”), registration of such Shares Stock in the name of Cede or such other nominee and the crediting of such Shares Stock on the books of DTC to securities accounts of the Underwriter (assuming that neither DTC nor the Underwriter has notice of any adverse claim (within the meaning of Section 8-105 of the UCC) to such Shares)Underwriter, (i) DTC will acquire good and marketable title to the Stock free and clear of all liens, encumbrances, equities, community property rights, restrictions on transfer or claims, (ii) DTC shall be a “protected purchaser” of such Shares Stock within the meaning of Section 8-303 of the New York Uniform Commercial Code (the “UCC”), (iiiii) under Section 8-501 of the UCC, the Underwriter will acquire a valid security entitlement in respect of such Shares Stock, and (iiiiv) no an action based on any an “adverse claim,” within the meaning of (as defined in Section 8-102 of the UCC, ) to such Shares securities entitlement, whether framed in conversion, replevin, constructive trust, equitable lien or other theory may not be asserted against the Underwriter with respect to such security entitlemententitlement (assuming that the Underwriter is purchasing such Stock without notice of any adverse claim). For purposes of this representation, such Selling Stockholder may assume that when such payment, delivery and crediting occur, (Ax) such Shares Stock 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, (By) DTC will be registered as a “clearing corporation” within the meaning of Section 8-102 of the UCC UCC, and (Cz) appropriate entries entry to the accounts account of the Underwriter on the records of DTC will have been made pursuant to the UCC.
(d) Such Selling Stockholder will, prior to the Initial Delivery Date, place in custody under a custody agreement (the “Custody Agreement” and, together with all other similar agreements executed by the other Selling Stockholders, the “Custody Agreements”) with American Stock Transfer & Trust Company, LLC, as custodian (the “Custodian”), for delivery under this Agreement, certificates in negotiable form or book-entry form (with signature guaranteed by a participant in the Securities Transfer Agents Medallion Program, the New York Stock Exchange Medallion Signature Program or the Stock Exchanges Medallion Program) representing the shares of Stock to be sold by the Selling Stockholder hereunder.
(e) In the case of Production Opportunities II, L.P. and Natural Gas Partners VIII, L.P., such Selling Stockholder has duly and irrevocably executed and delivered a power of attorney (the “Power of Attorney” and, together with all other similar agreements executed by the other Selling Stockholders, the “Powers of Attorney”) appointing the Custodian as custodian and Xxxxx XxXxxxx and Xxxxx X. Xxxxxx as attorneys in fact, with full power of substitution, and with full authority (exercisable by any one or more of them) to execute and deliver this Agreement and to take such other action as may be necessary or desirable to carry out the provisions hereof on behalf of the Selling Stockholder.
(f) Such Selling Stockholder has full right, power and authority, corporate or otherwise, to enter into this Agreement, the Custody Agreement and, in the case of Production Opportunities II, L.P. and Natural Gas Partners VIII, L.P., the Power of Attorney.
(eg) This Agreement has been duly and validly authorized, executed and delivered by or on behalf of such Selling Stockholder.
(fh) The Powers of Attorney (in the case of Production Opportunities II, L.P. and Natural Gas Partners VIII, L.P.) have been, and prior to the Initial Delivery Date the Custody Agreements will be, duly and validly authorized, executed and delivered by or on behalf of each Selling Stockholder and constitute valid and legally binding obligations of such Selling Stockholder enforceable against such Selling Stockholder in accordance with their terms, subject to (A) applicable bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium or similar laws affecting the enforcement of creditors’ rights generally or equitable principles (whether considered in a proceeding at law or in equity) relating to enforceability and (B) public policy, applicable law relating to fiduciary duties and indemnification and an implied covenant of good faith and fair dealing.
(i) The sale of the Stock by such Selling Stockholder, the execution, delivery and performance of this Agreement, the Custody Agreement and the Power of Attorney (in the case of Production Opportunities II, L.P. and Natural Gas Partners VIII, L.P.) by such Selling Stockholder and the consummation by such Selling Stockholder of the transactions contemplated hereby and thereby 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, any indenture, mortgage, deed of trust, loan agreement, license license, lease or other agreement or instrument to which such Selling Stockholder is a party or by which such Selling Stockholder is bound or to which any of the property or assets of such Selling Stockholder is subject, (ii) if applicable result in any violation of the provisions of the charter or by-laws or deed of trust bylaws (or similar organizational documents) of such Selling Stockholder, Stockholder or (iii) result in any violation of any statute or any judgment, order, decree, rule or regulation of any court or governmental agency or body having jurisdiction over such Selling Stockholder or the property or assets of such Selling Stockholder, except in the case of clauses (i) or (iii) above, for any default or violation that would not, in the aggregate, reasonably be expected to have a material adverse effect on the ability of the Selling Stockholder to consummate the transactions contemplated by this Agreement, the Custody Agreement or the Power of Attorney (in the case of Production Opportunities II, L.P. and Natural Gas Partners VIII, L.P.).
(gj) No consent, approval, authorization or order of, or filing or registration with, any court or governmental agency or body having jurisdiction over such Selling Stockholder or the property or assets of such Selling Stockholder is required for the sale of the Stock by such Selling Stockholder, the execution, delivery and performance of this Agreement, the Custody Agreement or the Power of Attorney (in the case of Production Opportunities II, L.P. and Natural Gas Partners VIII, L.P.) by such Selling Stockholder and the consummation by such Selling Stockholder of the transactions contemplated hereby and thereby, except (A) such as have been or, prior to the Initial Delivery Date will be, obtained or made, (B) for the registration of the Shares Stock under the Securities Act and such consents, approvals, authorizations, orders, filings, registrations or qualifications as may be required under the Exchange Act and applicable state securities laws in connection with the purchase and sale of the Shares Stock by the Underwriter, (C) for such that, if not obtained, have not or would not, in the aggregate, reasonably be expected to have a material adverse effect on the ability of the Selling Stockholder to consummate the transactions contemplated by this Agreement, the Custody Agreement or the Power of Attorney (in the case of Production Opportunities II, L.P. and Natural Gas Partners VIII, L.P.), and (D) as described in the Registration Statement and the most recent Preliminary Prospectus.
(k) In respect of any statements in or omissions from the Registration Statement, the Prospectus, the Pricing Disclosure Package or any Issuer Free Writing Prospectus or any amendment or supplement thereto used by the Company or the Underwriter, as the case may be, made in reliance upon and in conformity with information furnished in writing to the Company by such Selling Stockholder specifically for use in connection with the preparation thereof, such Selling Stockholder hereby makes the same representations and warranties to the Underwriter as the Company makes to the Underwriter under Sections (1)(g), (h), (i) All material and (j); it being understood and agreed that the foregoing applies only to such information furnished by such Selling Stockholder to the Company, which consists of (A) the legal name, address and the number of shares of Common Stock owned by such Selling Stockholder, and (B) the other information with respect to such Selling Stockholder contained (excluding percentages) that appear in each of the Registration Statementtable (and corresponding footnotes) under the caption “Selling Stockholders” (collectively, the Prospectus and the Pricing Disclosure Package “Selling Stockholder Information”).
(as amended and supplemented, if the Company shall have filed with the Commission any amendment or supplement theretol) (i) complied and will comply in all material respects with all applicable provisions of the Securities Act and the Rules and Regulations, (ii) contains and will contain all statements of material fact required to be stated therein in accordance with the Securities Act and the Rules and Regulations, and (iii) does not and will not contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary in order to make the statements therein not misleading. Solely with respect to the Metalmark Selling Stockholders (as defined in Schedule I hereto), such Such Selling Stockholder is not prompted to sell the Shares shares of Stock by any material non-public information relating to the business, results of operations or prospects of concerning the Company and its subsidiaries of an adverse nature that is required to be disclosed not set forth in the Registration Statement, the Pricing Disclosure Package or and the Prospectus. For this purpose, information that is set forth or incorporated by reference in the Registration Statement, the Pricing Disclosure Package or the Prospectus or that otherwise has been made publicly available about the Company shall be deemed to be public information, and any opinion or conclusion that a Metalmark Selling Stockholder may hold, or analysis performed by a Metalmark Selling Stockholder, in its capacity as an investor about the business, results of operations or prospects of the Company and its subsidiaries shall not be information that relates to the business, results of operations or prospects of the Company.
(im) Such Except as disclosed in the most recent Preliminary Prospectus, the Selling Stockholder has not taken and will not taketaken, directly or indirectly, any action that is designed to or that has constituted or that could reasonably be expected to cause or result in the stabilization or manipulation of the price of any security of the Company to facilitate in connection with the sale or resale offering of the Shares.
(j) The sale shares of the Shares by such Selling Stockholder does not violate any of the Company’s internal policies regarding the sale of stock by its affiliatesStock. Any certificate signed by any officer of any such Selling Stockholder and delivered to the Underwriter or counsel for the Underwriter in connection with the offering of the Shares Stock shall be deemed a representation and warranty by such Selling Stockholder, as to matters covered thereby, to the Underwriter. Each Selling Stockholder acknowledges that for purposes of the opinions to be delivered to the Underwriter pursuant to Section 9 of this Agreement, counsel to the Company, counsel to the Selling Stockholder and counsel to the Underwriter will rely upon the accuracy and truth of the foregoing representations, and the Selling Stockholder hereby consents to such reliance.
Appears in 1 contract
Representations and Warranties of the Selling Stockholders. Each Selling Stockholder, severally and not jointly, Stockholder hereby represents and warrants thatto each Underwriter as of the date hereof, the Firm Shares Closing Date and, if such Selling Stockholder is selling Option Shares, as of each such Option Shares Closing Date (if any), as follows:
(a) Neither such Such Selling Stockholder nor any person acting on behalf of such Selling Stockholder (other than, if applicable, the Company and the Underwriter) has used or referred to any “free writing prospectus” (as defined in Rule 405), relating previously delivered to the SharesUnderwriters a Lock-Up Agreement in the form attached hereto as Exhibit A-1 or Exhibit A-2, as applicable; the terms of its Lock-Up Agreement are incorporated herein by reference.
(b) Such Selling Stockholder has, and immediately prior to the Closing Date on which such Selling Stockholder is selling the Shares, such Selling Stockholder will have, good and valid title to or a valid “security entitlement” within the meaning has caused certificates representing all of Section 8-501 of the New York Uniform Commercial Code (the “UCC”) in respect of, the Shares to be sold by such Selling Stockholder hereunder to be delivered to the Company or Hxxxxx Ventures II, LLC, as applicable (each a “Custodian” and together, the “Custodians”), in negotiable form and accompanied by an executed assignment form, with a signature by or on behalf of such Selling Stockholder appropriately guaranteed, to be held in custody by its Custodian for delivery pursuant to the provisions of this Agreement and an agreement between its Custodian and such Selling Stockholder substantially in the form attached hereto as Exhibit B-1, Exhibit B-2A / B-2B or Exhibit B-3, as applicable (each a “Custody Agreement” and collectively, the “Custody Agreements”). The representations and warranties of such Selling Stockholder in its Custody Agreement are, and on each Closing Date free will be, true and clear of all liens, encumbrances, equities or claimscorrect.
(c) Upon payment for Such Selling Stockholder has granted an irrevocable power of attorney substantially in the form attached hereto as Exhibit C-1, Exhibit C-2A / C-2B or Exhibit C-3, as applicable (each a “Power of Attorney” and collectively, the “Powers of Attorney”), to the persons named therein as such Selling Stockholder’s attorneys-in-fact (“Attorneys-in-Fact”) with the authority, on behalf of such Selling Stockholder, to execute, deliver and perform this Agreement, to authorize the delivery of the Shares to be sold by such Selling Stockholder, delivery of such Shares, as directed by Stockholder hereunder to or for the Underwriter, to Cede & Co. (“Cede”) or such other nominee as may be designated by The Depository Trust Company (“DTC”), registration of such Shares in the name of Cede or such other nominee and the crediting of such Shares on the books of DTC to securities accounts account of the Underwriter (assuming that neither DTC nor Underwriters and to execute and deliver any other document, instrument and take any and all other actions necessary or desirable in connection with the Underwriter has notice of any adverse claim (within the meaning of Section 8-105 consummation of the UCC) to such Shares)transactions contemplated by this Agreement, (i) DTC shall be a “protected purchaser” its Custody Agreement and its Power of such Shares within the meaning Attorney. The representations and warranties of Section 8-303 of the UCC, (ii) under Section 8-501 of the UCC, the Underwriter will acquire a valid security entitlement in respect of such Shares and (iii) no action based on any “adverse claim,” within the meaning of Section 8-102 of the UCC, to such Shares may be asserted against the Underwriter with respect to such security entitlement. For purposes of this representation, such Selling Stockholder may assume that when such paymentin its Power of Attorney are, delivery and crediting occuron each Closing Date will be, (A) such Shares will have been registered in the name of Cede or another nominee designated by DTC, in each case on the Company’s share registry in accordance with its certificate of incorporation, bylaws true and applicable law, (B) DTC will be registered as a “clearing corporation” within the meaning of Section 8-102 of the UCC and (C) appropriate entries to the accounts of the Underwriter on the records of DTC will have been made pursuant to the UCCcorrect.
(d) Such Selling Stockholder has full rightThis Agreement, power its Custody Agreement, its Power of Attorney and authority, corporate or otherwise, to enter into this Agreement.
(e) This its Lock-Up Agreement has have been duly and validly authorized, executed and delivered by or on behalf of such Selling Stockholder.
(fe) The Neither the execution, delivery and performance of this Agreement, its Custody Agreement, its Power of Attorney and its Lock-Up Agreement by or on behalf of such Selling Stockholder and nor the consummation by such Selling Stockholder of any of the transactions contemplated hereby and or thereby do not and by such Selling Stockholder (including the sale of the Shares to be sold by it hereunder) will not (i) give rise to a right to terminate or accelerate the due date of any payment under, or conflict with or result in a breach or violation of any of the terms or provisions of, or constitute a default (or an event which with notice or lapse of time or both would constitute a default) under, or require any Authorization or Permit under, or result in the creation or imposition of any lien, charge, mortgage, pledge, claim, security interest, limitation, restriction, preferential arrangement, defect or encumbrance of any kind upon the Shares to be sold by it pursuant to, as applicable, (i) any bond, debenture, note, indenture, mortgage, deed of trust, loan agreement, license agreement or other agreement or instrument to which such Selling Stockholder is a party or by which such Selling Stockholder it is bound or to which any of the property or assets of such Selling Stockholder is Shares to be sold by it are subject, (ii) result in any violation Permit or applicable Law, or (iii) any provision of the provisions certificate of the charter incorporation or by-laws laws, operating agreement, partnership agreement or deed of trust (or similar any other organizational documents) instrument of such Selling Stockholder, or (iii) result in any violation of any statute or any order, rule or regulation of any court or governmental agency or body having jurisdiction over such Selling Stockholder or the property or assets of such Selling Stockholder.
(g) No consent, approval, authorization or order of, or filing or registration with, any court or governmental agency or body having jurisdiction over such Selling Stockholder or the property or assets of such Selling Stockholder is required for the execution, delivery and performance of this Agreement by such Selling Stockholder and the consummation by such Selling Stockholder of the transactions contemplated hereby and thereby, except for the registration of the Shares under the Securities Act and such consents, approvals, authorizations, registrations or qualifications as may be required under the Exchange Securities Act and applicable state and foreign securities and Blue Sky laws or for such Authorizations or Permits that have already been made or obtained and are in full force and effect.
(f) Except with respect to any Selling Stockholder exercising stock option(s) in connection with the purchase Shares to be sold by such Selling Stockholder hereunder, such Selling Stockholder has good, valid and sale of marketable title to the Shares to be sold by such Selling Stockholder hereunder free and clear of any lien, charge, mortgage, pledge, claim, security interest, preferential arrangement, defect or other encumbrance, including any restriction on transfer, except as otherwise described in the UnderwriterRegistration Statement and Prospectus. Such Selling Stockholder on the Firm Shares Closing Date and the Option Shares Closing Date, if applicable, will have, good, valid and marketable title to the Shares to be sold by such Selling Stockholder hereunder free and clear of any lien, charge, mortgage, pledge, claim, security interest, preferential arrangement, defect or other encumbrance, including any restriction on transfer, except as otherwise described in the Registration Statement and Prospectus.
(g) Except as may be required under the Securities Act and state and foreign securities and Blue Sky laws or for such Authorizations that have already been made or obtained and are in full force and effect, no Authorization is necessary or required for such Stockholder to execute, deliver and perform this Agreement, its Custody Agreement, its Power of Attorney and its Lock-Up Agreement and consummate the transactions contemplated hereby (including to sell the Shares to be sold by it hereunder) and thereby.
(h) Such Selling Stockholder has full legal right, power and authority to execute, deliver and perform this Agreement, its Custody Agreement, its Power of Attorney and its Lock-Up Agreement and consummate the transactions contemplated hereby (including to sell the Shares to be sold by it hereunder) and thereby, and on the Firm Shares Closing Date and the Option Share Closing Date, if applicable, will have, full legal right, power and authority to sell, assign, transfer and deliver the Shares to be sold by such Selling Stockholder hereunder.
(i) Upon delivery of and payment for the Shares to be sold by such Selling Stockholder hereunder, such Selling Stockholder will pass and the Underwriters will receive good and valid title to such Shares free and clear of any lien, charge, mortgage, pledge, claim, security interest, preferential arrangement, defect or other encumbrance.
(j) All material information with respect relating to such Selling Stockholder contained furnished in each of writing by such Selling Stockholder expressly for use in the Registration Statement, the Statutory Prospectus, the Prospectus and the Pricing Disclosure Package (as amended and supplemented, if the Company shall have filed with the Commission any amendment or supplement thereto) (i) complied and will comply in all material respects with all applicable provisions of the Securities Act and the Rules and Regulations, (ii) contains and will contain all statements of material fact required to be stated therein in accordance with the Securities Act and the Rules and RegulationsIssuer Free Writing Prospectus is, and (iii) on each Closing Date will be, true and correct, and does not not, and on each Closing Date will not not, contain an any untrue statement of a material fact or omit to state any material fact necessary to make such information not misleading.
(k) To the extent that any statements or omissions made in the Registration Statement, the Statutory Prospectus, the Prospectus or any Issuer Free Writing Prospectus (or any amendments thereof or supplements thereto) are made in reliance upon, and in conformity with, the information furnished in writing by or on behalf of such Selling Stockholder specifically for use therein, with respect to such information relating to such Selling Stockholder (x) on the Effective Date, the Registration Statement complied, and on the date of the Prospectus, the date any post-effective amendment to the Registration Statement becomes effective, the date any supplement or amendment to the Prospectus is filed with the Commission and each Closing Date, the Registration Statement (and any post-effective amendment thereto), the Prospectus (and any amendment thereof or supplement thereto) will comply, in all material respects with the requirements of the Securities Act and the Rules and the Exchange Act and the rules and regulations of the Commission thereunder, (y) 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. Solely with respect ; and on the other dates referred to above neither the Metalmark Selling Stockholders Registration Statement (as defined in Schedule I hereto), such Selling Stockholder is not prompted or any post-effective amendment thereto) nor the Prospectus (or any amendment thereof or supplement thereto) will contain any untrue statement of a material fact or will omit to sell the Shares by state any material non-public information relating to the business, results of operations or prospects of the Company and its subsidiaries of an adverse nature that is fact required to be disclosed stated therein or necessary in order to make the statements therein not misleading, and (z) when any Preliminary Prospectus was first filed with the Commission (whether filed as part of the Registration StatementStatement or any amendment thereto or pursuant to Rule 424(a) of the Rules) and when any amendment thereof or supplement thereto was first filed with the Commission, such Preliminary Prospectus as amended or supplemented complied in all material respects with the Pricing Disclosure Package applicable provisions of the Securities Act and the Rules and did not contain any untrue statement of a material fact or the Prospectus. For this purpose, information that is set forth or incorporated by reference in the Registration Statement, the Pricing Disclosure Package or the Prospectus or that otherwise has been made publicly available about the Company shall be deemed omit to state any material fact required to be public information, and any opinion stated therein or conclusion that a Metalmark Selling Stockholder may hold, or analysis performed by a Metalmark Selling Stockholder, necessary in its capacity as an investor about order to make the business, results of operations or prospects of the Company and its subsidiaries shall statements therein not be information that relates to the business, results of operations or prospects of the Companymisleading.
(il) Such Selling Stockholder has not taken and taken, nor will not it take, directly or indirectly, any action that is designed to or that has constituted or that could might reasonably be expected to cause or result in in, or that constituted or might reasonably be expected to constitute, the stabilization or manipulation of the price of the Common Stock or any other security of the Company to facilitate the sale or resale of the Shares.
(jm) The sale Such Selling Stockholder has not prepared, used or referred to, nor will it prepare, use or refer to, any “free writing prospectus” (as defined in Rule 405 of the Shares by such Selling Stockholder does not violate any of the Company’s internal policies regarding the sale of stock by its affiliates. Any certificate signed by any officer of any 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 such Selling Stockholder, as to matters covered thereby, to the UnderwriterRules).
Appears in 1 contract
Representations and Warranties of the Selling Stockholders. Each Selling Stockholder, Stockholder severally and not jointly, represents and warrants to, and agrees with, each of the Underwriters that:
(a) Neither such Selling Stockholder nor any person acting on behalf of such Selling Stockholder (other than, if applicable, the Company and the Underwriter) has used or referred to any “free writing prospectus” (as defined in Rule 405), relating to the Shares.
(b) Such Selling Stockholder has, and immediately prior to the Closing Date on which such Selling Stockholder is selling the Shares, such 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 (the “UCC”) in respect of, the Shares to be sold by such Selling Stockholder hereunder on such Closing Date free and clear of all liens, encumbrances, equities or claims.
(c) Upon payment for the Shares to be sold by such Selling Stockholder, delivery of such Shares, as directed by the Underwriter, to Cede & Co. (“Cede”) or such other nominee as may be designated by The Depository Trust Company (“DTC”), registration of such Shares in the name of Cede or such other nominee and the crediting of such Shares on the books of DTC to securities accounts of the Underwriter (assuming that neither DTC nor the Underwriter has notice of any adverse claim (within the meaning of Section 8-105 of the UCC) to such Shares), (i) DTC shall be a “protected purchaser” of such Shares within the meaning of Section 8-303 of the UCC, (ii) under Section 8-501 of the UCC, the Underwriter will acquire a valid security entitlement in respect of such Shares and (iii) no action based on any “adverse claim,” within the meaning of Section 8-102 of the UCC, to such Shares may be asserted against the Underwriter with respect to such security entitlement. For purposes of this representation, such Selling Stockholder may assume that when such payment, delivery and crediting occur, (A) such Shares will have been registered in the name of Cede or another nominee designated by DTC, in each case on the Company’s share registry in accordance with its certificate of incorporation, bylaws and applicable law, (B) DTC will be registered as a “clearing corporation” within the meaning of Section 8-102 of the UCC and (C) appropriate entries to the accounts of the Underwriter on the records of DTC will have been made pursuant to the UCC.
(d) Such Selling Stockholder has full right, power and authority, corporate or otherwise, to enter into this Agreement.
(e) This Agreement has been duly and validly authorized, executed and delivered by or on behalf of such the Selling StockholderStockholders and is a valid and binding agreement of the Selling Stockholders, enforceable against each Selling Stockholder in accordance with its terms, except as enforcement hereof may be limited by bankruptcy, insolvency, reorganization, moratorium or other similar laws relating to or affecting the rights and remedies of creditors or by general equitable principles.
(fb) The executionEach of the Custody Agreements and Powers of Attorney ("Custody Agreement and Power of Attorney") signed by (i) each Selling Stockholder, delivery (ii) the Company, as custodian (in such capacity, the "Custodian"), and performance (iii) [ ] and [ ], as the Selling Stockholders' attorneys-in-fact (in such capacity, the "Attorneys-In-Fact"), has been duly and validly authorized, executed and delivered by each Selling Stockholder and is a valid and binding agreement of each Selling Stockholder, enforceable against him in accordance with its terms, except as the enforcement thereof may be limited by bankruptcy, insolvency, reorganization, moratorium or other similar laws relating to or affecting the rights and remedies of creditors or by general equitable principles. Each Selling Stockholder agrees that the Additional Shares, if any, to be sold by each Selling Stockholder on deposit with the Custodian are subject to the interests of the Underwriters, that the arrangements made for such custody are to that extent irrevocable, and that the obligations of each Selling Stockholder hereunder shall not be terminated, except as provided in this Agreement or in the Custody Agreement and Power of Attorney, by any act of a Selling Stockholder, by operation of law, by death or incapacity of such Selling Stockholder or by the occurrence of any other event. If a Selling Stockholder should die or become incapacitated, or if any other event should occur, before the delivery of the Additional Shares, if any, to be sold by such Selling Stockholder and hereunder, the consummation documents evidencing the Additional Shares, if any, to be sold by such Selling Stockholder then on deposit with the Custodian shall be delivered by the Custodian in accordance with the terms and conditions of this Agreement as if such death, incapacity or other event had not occurred, regardless of whether or not the transactions contemplated hereby and thereby do not and will not Custodian shall have received notice thereof.
(c) Each Selling Stockholder (i) conflict with or result in a breach or violation of any is the lawful owner of the terms or provisions ofAdditional Shares, or constitute a default underif any, any indenture, mortgage, deed of trust, loan agreement, license or other agreement or instrument to which be sold by such Selling Stockholder is hereunder or (ii) holds fully exercisable stock options ("Stock Options") to purchase a party or number of shares of Common Stock at least equal to the number of Additional Shares, if any, to be sold by which such Selling Stockholder is bound or hereunder, and will on the Additional Closing Date be the lawful owner of such Additional Shares, and in each case upon sale and delivery of, and payment for, such Additional Shares, as provided herein, each Selling Stockholder will convey to which any the Underwriters good and marketable title to such Additional Shares, free and clear of all liens, encumbrances, equities, claims and security interests whatsoever.
(d) Each Selling Stockholder (unless holding and exercising the Stock Options referred to in paragraph (c) above) has, and on the Additional Closing Date, if any, will have, good and valid title to all of the property or assets of Additional Shares which may be sold by such Selling Stockholder is subjectpursuant to this Agreement on such date and the legal right and power, (ii) result in any violation and all authorizations and approvals required by law, to enter into this Agreement and the applicable Custody Agreement and Power of Attorney, to sell, transfer and deliver all of the provisions of the charter or by-laws or deed of trust (or similar organizational documents) of such Selling Stockholder, or (iii) result in any violation of any statute or any order, rule or regulation of any court or governmental agency or body having jurisdiction over Additional Shares which may be sold by such Selling Stockholder or the property or assets of such Selling Stockholderpursuant to this Agreement and to comply with his other obligations hereunder and thereunder.
(ge) No consent, approval, authorization or order of, or filing or registration with, of any court or governmental agency or body having jurisdiction over such Selling Stockholder or the property or assets of such Selling Stockholder is required for the execution, delivery and performance of this Agreement by such Selling Stockholder and the consummation by such the Selling Stockholder Stockholders of the transactions contemplated hereby and therebyherein, except for the registration of the Shares such as may have been obtained under the Securities Act and such consents, approvals, authorizations, registrations or qualifications as may be required under the Exchange Act and applicable state securities laws or the blue sky laws or any jurisdiction in connection with the purchase and distribution of the Additional Shares by the Underwriters and such other approvals as have been obtained.
(f) Neither the sale of the Shares Additional Shares, if any, being sold by the Underwriter.
(h) All material information with respect to such Selling Stockholder contained in each Stockholders nor the consummation of any of the Registration Statement, other transactions contemplated herein by the Prospectus and Selling Stockholders or the Pricing Disclosure Package (as amended and supplemented, if the Company shall have filed with the Commission any amendment or supplement thereto) (i) complied and will comply in all material respects with all applicable provisions fulfillment of the Securities Act and terms hereof by the Rules and Regulations, (ii) contains and will contain all statements of material fact required to be stated therein in accordance with the Securities Act and the Rules and Regulations, and (iii) does not and will not contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary in order to make the statements therein not misleading. Solely with respect to the Metalmark Selling Stockholders (as defined will conflict with, result in Schedule I hereto)a breach or violation of, such or constitute a default under any law or the terms of any indenture or other agreement or instrument to which any Selling Stockholder is not prompted to sell the Shares by any material non-public information relating to the business, results of operations party or prospects of the Company and its subsidiaries of an adverse nature that is required to be disclosed in the Registration Statement, the Pricing Disclosure Package or the Prospectus. For this purpose, information that is set forth or incorporated by reference in the Registration Statement, the Pricing Disclosure Package or the Prospectus or that otherwise has been made publicly available about the Company shall be deemed to be public information, and any opinion or conclusion that a Metalmark Selling Stockholder may hold, or analysis performed by a Metalmark Selling Stockholder, in its capacity as an investor about the business, results of operations or prospects of the Company and its subsidiaries shall not be information that relates to the business, results of operations or prospects of the Company.
(i) Such Selling Stockholder has not taken and will not take, directly or indirectlybound, any action that is designed judgment, order or decree applicable to or that has constituted or that could reasonably be expected to cause or result in the stabilization or manipulation of the price of any security of the Company to facilitate the sale or resale of the Shares.
(j) The sale of the Shares by such Selling Stockholder does not violate any of the Company’s internal policies regarding the sale of stock by its affiliates. Any certificate signed by any officer of any 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 such Selling Stockholderany court or regulatory body, as to matters covered therebyadministrative agency, to the Underwriter.governmental body or arbitrator having jurisdiction over any Selling
Appears in 1 contract
Samples: Underwriting Agreement (Herley Industries Inc /New)
Representations and Warranties of the Selling Stockholders. Each Selling Stockholder, severally and not jointly, represents and warrants that:
(a) Neither such Selling Stockholder nor any person acting on behalf of such Selling Stockholder (other than, if applicable, the Company and the UnderwriterUnderwriters) has used or referred to any “free writing prospectus” (as defined in Rule 405), 405 under the Securities Act) relating to the SharesStock.
(b) Such Selling Stockholder has, and immediately prior to the Closing At any Delivery Date on which such Selling Stockholder is selling the Sharesshares of Stock, such Selling Stockholder will have, good and valid marketable title to or a valid “security entitlement” within the meaning shares of Section 8-501 of the New York Uniform Commercial Code (the “UCC”) in respect of, the Shares Stock to be sold by such Selling Stockholder hereunder on such Closing Date Delivery Date, free and clear of all liens, encumbrances, equities, community property rights, restrictions on transfer or claims except for any liens, encumbrances, equities or claimsclaims arising under the Custody Agreement (defined below).
(c) Upon payment for the Shares Stock to be sold by such Selling StockholderStockholder pursuant to this Agreement, delivery of such SharesStock, as directed by the UnderwriterUnderwriters, to Cede & Co. (“Cede”) or such other nominee as may be designated by The Depository Trust Company (“DTC”), registration of such Shares Stock in the name of Cede or such other nominee and the crediting of such Shares Stock on the books of DTC to securities accounts of the Underwriter (assuming that neither DTC nor the Underwriter has notice of any adverse claim (within the meaning of Section 8-105 of the UCC) to such Shares)Underwriters, (i) DTC will acquire good and marketable title to the Stock free and clear of all liens, encumbrances, equities, community property rights, restrictions on transfer or claims, (ii) DTC shall be a “protected purchaser” of such Shares Stock within the meaning of Section 8-303 of the New York Uniform Commercial Code (the “UCC”), (iiiii) under Section 8-501 of the UCC, the Underwriter Underwriters will acquire a valid security entitlement in respect of such Shares Stock, and (iiiiv) no an action based on any an “adverse claim,” within the meaning of (as defined in Section 8-102 of the UCC, ) to such Shares securities entitlement, whether framed in conversion, replevin, constructive trust, equitable lien or other theory may not be asserted against the Underwriter Underwriters with respect to such security entitlemententitlement (assuming that the Underwriters are purchasing such Stock without notice of any adverse claim). For purposes of this representation, such Selling Stockholder may assume that when such payment, delivery and crediting occur, (Ax) such Shares Stock 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, (By) DTC will be registered as a “clearing corporation” within the meaning of Section 8-102 of the UCC UCC, and (Cz) appropriate entries to the accounts of the Underwriter several Underwriters on the records of DTC will have been made pursuant to the UCC.
(d) Such Selling Stockholder will, prior to the Initial Delivery Date, place in custody under a custody agreement (the “Custody Agreement” and, together with all other similar agreements executed by the other Selling Stockholders, the “Custody Agreements”) with American Stock Transfer & Trust Company, LLC, as custodian (the “Custodian”), for delivery under this Agreement, certificates in negotiable form (with signature guaranteed by a participant in the Securities Transfer Agents Medallion Program, the New York Stock Exchange Medallion Signature Program or the Stock Exchanges Medallion Program) representing the shares of Stock to be sold by the Selling Stockholder hereunder.
(e) Such Selling Stockholder has duly and irrevocably executed and delivered a power of attorney (the “Power of Attorney” and, together with all other similar agreements executed by the other Selling Stockholders, the “Powers of Attorney”) appointing Xxxxx XxXxxxx, Xxxxxx Xxxxxxx and Xxxxx Xxxxxx as attorneys in fact, with full power of substitution, and with full authority (exercisable by any one or more of them) to execute and deliver this Agreement and to take such other action as may be necessary or desirable to carry out the provisions hereof on behalf of the Selling Stockholder.
(f) Such Selling Stockholder has full right, power and authority, corporate or otherwise, to enter into this Agreement, the Custody Agreement and the Power of Attorney.
(eg) This Agreement has been duly and validly authorized, executed and delivered by or on behalf of such Selling Stockholder.
(fh) The Powers of Attorney have been, and prior to the Initial Delivery Date the Custody Agreements will be, duly and validly authorized, executed and delivered by or on behalf of each Selling Stockholder and constitute valid and legally binding obligations of such Selling Stockholder enforceable against such Selling Stockholder in accordance with their terms, subject to (A) applicable bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium or similar laws affecting the enforcement of creditors’ rights generally or equitable principles (whether considered in a proceeding at law or in equity) relating to enforceability and (B) public policy, applicable law relating to fiduciary duties and indemnification and an implied covenant of good faith and fair dealing.
(i) The sale of the Stock by such Selling Stockholder, the execution, delivery and performance of this Agreement, the Custody Agreement and the Power of Attorney by such Selling Stockholder and the consummation by such Selling Stockholder of the transactions contemplated hereby and thereby 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, any indenture, mortgage, deed of trust, loan agreement, license license, lease or other agreement or instrument to which such Selling Stockholder is a party or by which such Selling Stockholder is bound or to which any of the property or assets of such Selling Stockholder is subject, (ii) if applicable result in any violation of the provisions of the charter or by-laws or deed of trust (or similar organizational documents) of such Selling Stockholder, Stockholder or (iii) result in any violation of any statute or any judgment, order, decree, rule or regulation of any court or governmental agency or body having jurisdiction over such Selling Stockholder or the property or assets of such Selling Stockholder, except in the case of clauses (i) or (iii) above, for any default or violation that would not, in the aggregate, reasonably be expected to have a material adverse effect on the ability of the Selling Stockholder to consummate the transactions contemplated by this Agreement, the Custody Agreement or the Power of Attorney.
(gj) No consent, approval, authorization or order of, or filing or registration with, any court or governmental agency or body having jurisdiction over such Selling Stockholder or the property or assets of such Selling Stockholder is required for the sale of the Stock by such Selling Stockholder, the execution, delivery and performance of this Agreement, the Custody Agreement or the Power of Attorney by such Selling Stockholder and the consummation by such Selling Stockholder of the transactions contemplated hereby and thereby, except (A) such as have been or, prior to the Initial Delivery Date will be, obtained or made, (B) for the registration of the Shares Stock under the Securities Act and such consents, approvals, authorizations, orders, filings, registrations or qualifications as may be required under the Exchange Act and applicable state securities laws in connection with the purchase and sale of the Shares Stock by the UnderwriterUnderwriters, (C) for such that, if not obtained, have not or would not, in the aggregate, reasonably be expected to have a material adverse effect on the ability of the Selling Stockholder to consummate the transactions contemplated by this Agreement, the Custody Agreement or the Power of Attorney, and (D) as described in the Registration Statement and the most recent Preliminary Prospectus.
(k) In respect of any statements in or omissions from the Registration Statement, the Prospectus, the Pricing Disclosure Package or any Issuer Free Writing Prospectus or any amendment or supplement thereto used by the Company or any Underwriter, as the case may be, made in reliance upon and in conformity with information furnished in writing to the Company by such Selling Stockholder specifically for use in connection with the preparation thereof, such Selling Stockholder hereby makes the same representations and warranties to each Underwriter as the Company makes to such Underwriter under Sections (1)(f), (g), (h) All material and (i); it being understood and agreed that the foregoing applies only to such information furnished by such Selling Stockholder to the Company, which consists of (A) the legal name, address and the number of shares of Common Stock owned by such Selling Stockholder, and (B) the other information with respect to such Selling Stockholder contained (excluding percentages) which appear in each of the Registration Statementtable (and corresponding footnotes) under the caption “Principal and Selling Stockholders” (collectively, the Prospectus and the Pricing Disclosure Package “Selling Stockholder Information”).
(as amended and supplemented, if the Company shall have filed with the Commission any amendment or supplement theretol) (i) complied and will comply in all material respects with all applicable provisions of the Securities Act and the Rules and Regulations, (ii) contains and will contain all statements of material fact required to be stated therein in accordance with the Securities Act and the Rules and Regulations, and (iii) does not and will not contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary in order to make the statements therein not misleading. Solely with respect to the Metalmark Selling Stockholders (as defined in Schedule I hereto), such Such Selling Stockholder is not prompted to sell the Shares shares of Stock by any material non-public information relating to the business, results of operations or prospects of concerning the Company and its subsidiaries of an adverse nature that is required to be disclosed not set forth in the Registration Statement, the Pricing Disclosure Package or and the Prospectus. For this purpose, information that is set forth or incorporated by reference in the Registration Statement, the Pricing Disclosure Package or the Prospectus or that otherwise has been made publicly available about the Company shall be deemed to be public information, and any opinion or conclusion that a Metalmark Selling Stockholder may hold, or analysis performed by a Metalmark Selling Stockholder, in its capacity as an investor about the business, results of operations or prospects of the Company and its subsidiaries shall not be information that relates to the business, results of operations or prospects of the Company.
(im) Such Except as disclosed in the most recent Preliminary Prospectus, the Selling Stockholder has not taken and will not taketaken, directly or indirectly, any action that is designed to or that has constituted or that could reasonably be expected to cause or result in the stabilization or manipulation of the price of any security of the Company to facilitate in connection with the sale or resale offering of the Shares.
(j) The sale shares of the Shares by such Selling Stockholder does not violate any of the Company’s internal policies regarding the sale of stock by its affiliatesStock. Any certificate signed by any officer of any such Selling Stockholder and delivered to the Underwriter Representatives or counsel for the Underwriter Underwriters in connection with the offering of the Shares Stock shall be deemed a representation and warranty by such Selling Stockholder, as to matters covered thereby, to the each Underwriter.
Appears in 1 contract
Representations and Warranties of the Selling Stockholders. Each Selling Stockholder, Stockholder severally and not jointly, jointly represents and warrants to, and agrees that:
(a) Neither such Selling Stockholder nor any person acting on behalf of such Selling Stockholder (other than, if applicable, the Company and the Underwriter) has used or referred to any “free writing prospectus” (as defined in Rule 405), relating to the Shares.
(b) Such Selling Stockholder has, and immediately prior to the Closing Date on which such Selling Stockholder is selling the Shares, such Selling Stockholder will have, either (x) has good and valid title to or a valid “security entitlement” within the meaning of Section 8-501 of the New York Uniform Commercial Code (the “UCC”) in respect of, the Shares to be sold by such Selling Stockholder hereunder on such Closing Date free and clear of all liens, encumbrances, equities or claims.
, or (cy) Upon payment for has completed a notice of option exercise in respect of the Shares to be sold by such Selling StockholderStockholder hereunder and placed such notice in custody as described in paragraph (b) below; and immediately prior to the Closing Date such Selling Stockholder will have, good and valid title to the Shares to be sold by such Selling Stockholder hereunder free and clear of all liens, encumbrances, equities or claims; and upon delivery of such Shares, as directed by the Underwriter, to Cede & Co. (“Cede”) or such other nominee as may be designated by The Depository Trust Company (“DTC”), registration of such Shares in the name of Cede or such other nominee and the crediting of such Shares on the books of DTC to securities accounts of the Underwriter (assuming that neither DTC nor the Underwriter has notice of any adverse claim (within the meaning of Section 8-105 of the UCC) to such Shares), (i) DTC shall be a “protected purchaser” of such Shares within the meaning of Section 8-303 of the UCC, (ii) under Section 8-501 of the UCC, the Underwriter will acquire a valid security entitlement in respect of such Shares and payment therefor pursuant hereto, good and valid title to such Shares, free and clear of all liens, encumbrances, equities or claims, will pass to the several Underwriters.
(iiib) no action based on any “adverse claim,” within Such Selling Stockholder either (x) has placed in custody under a custody agreement (the meaning of Section 8-102 "Custody Agreement" and, together with all other similar agreements executed by the other Selling Stockholders, the "Custody Agreements") with Boston Equiserve, as custodian (the "Custodian"), for delivery under this Agreement, certificates in negotiable form (with signature guaranteed by a commercial bank or trust company having an office or correspondent in the United States or a member firm of the UCC, New York or American Stock Exchanges) representing the Shares to such Shares may be asserted against the Underwriter with respect to such security entitlement. For purposes of this representation, sold by such Selling Stockholder may assume that when hereunder or (y) has completed a notice of option exercise in respect of the Shares to be sold by such paymentSelling Stockholder hereunder and placed such notice in custody with the Custodian.
(c) Such Selling Stockholder has duly and irrevocably executed and delivered a power of attorney (the "Power of Attorney" and, delivery together with all other similar agreements executed by the other Selling Stockholders, the "Powers of Attorney") appointing certain officers of the Company as attorneys-in-fact, with full power of substitution, and crediting occur, (A) such Shares will have been registered in the name of Cede or another nominee designated by DTC, in each case with full authority on the Company’s share registry in accordance with its certificate terms set forth therein (exercisable by any one or more of incorporation, bylaws them) to execute and applicable law, (B) DTC will deliver this Agreement and to take such other action as may be registered as a “clearing corporation” within necessary or desirable to carry out the meaning provisions hereof on behalf of Section 8-102 of the UCC and (C) appropriate entries to the accounts of the Underwriter on the records of DTC will have been made pursuant to the UCCsuch Selling Stockholder.
(d) Such Selling Stockholder has full right, power and authority, corporate or otherwise, authority to enter into this Agreement.
(e) This Agreement has been duly , the Power of Attorney and validly authorized, executed and delivered by or on behalf of such Selling Stockholder.
(f) The the Custody Agreement; the execution, delivery and performance of this Agreement, the Power of Attorney and the Custody Agreement by such Selling Stockholder and the consummation by such Selling Stockholder of the transactions contemplated hereby and thereby do not and will not (i) conflict with or result in a breach or violation of the provisions of the constituent documents of such Selling Stockholder, if any, or any of the terms or provisions of, or constitute a default under, any indenture, mortgage, deed of trust, loan agreement, license agreement or other agreement or instrument to which such Selling Stockholder is a party or by which such Selling Stockholder is bound or to which any of the property or assets of such Selling Stockholder is subject, (ii) result in any violation of the provisions of the charter or by-laws or deed of trust (or similar organizational documents) of such Selling Stockholder, or (iii) result in any violation of any statute or any order, rule or regulation of any court or governmental agency or body having jurisdiction over such Selling Stockholder or the property or assets of such Selling Stockholder.
(g) No consent, approval, authorization or order of, or filing or registration with, any court or governmental agency or body having jurisdiction over such Selling Stockholder or the property or assets of such Selling Stockholder is required for the execution, delivery and performance of this Agreement by such Selling Stockholder and the consummation by such Selling Stockholder of the transactions contemplated hereby and thereby, except for the registration of the Shares under the Securities Act and such consents, approvals, authorizations, registrations or qualifications as may be required under the Exchange Act and applicable state securities laws in connection with the purchase and sale of the Shares by the Underwriter.
(h) All material information with respect to such Selling Stockholder contained in each of the Registration Statement, the Prospectus and the Pricing Disclosure Package (as amended and supplemented, if the Company shall have filed with the Commission any amendment or supplement thereto) (i) complied and will comply in all material respects with all applicable provisions of the Securities Act and the Rules and Regulations, (ii) contains and will contain all statements of material fact required to be stated therein in accordance with the Securities Act and the Rules and Regulations, and (iii) does not and will not contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary in order to make the statements therein not misleading. Solely with respect to the Metalmark Selling Stockholders (as defined in Schedule I hereto), such Selling Stockholder is not prompted to sell the Shares by any material non-public information relating to the business, results of operations or prospects of the Company and its subsidiaries of an adverse nature that is required to be disclosed in the Registration Statement, the Pricing Disclosure Package or the Prospectus. For this purpose, information that is set forth or incorporated by reference in the Registration Statement, the Pricing Disclosure Package or the Prospectus or that otherwise has been made publicly available about the Company shall be deemed to be public information, and any opinion or conclusion that a Metalmark Selling Stockholder may hold, or analysis performed by a Metalmark Selling Stockholder, in its capacity as an investor about the business, results of operations or prospects of the Company and its subsidiaries shall not be information that relates to the business, results of operations or prospects of the Company.
(i) Such Selling Stockholder has not taken and will not take, directly or indirectly, any action that is designed to or that has constituted or that could reasonably be expected to cause or result in the stabilization or manipulation of the price of any security of the Company to facilitate the sale or resale of the Shares.
(j) The sale of the Shares by such Selling Stockholder does not violate any of the Company’s internal policies regarding the sale of stock by its affiliates. Any certificate signed by any officer of any 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 such Selling Stockholder, as to matters covered thereby, to the Underwriter.to
Appears in 1 contract
Samples: Underwriting Agreement (Covad Communications Group Inc)
Representations and Warranties of the Selling Stockholders. Each Selling Stockholder, severally and not jointly, Stockholder represents and warrants to each Underwriter that:
(a) Neither such Selling Stockholder nor any person acting on behalf of such Selling Stockholder (other than, if applicable, the Company and the Underwriter) has used or referred to any “free writing prospectus” (as defined in Rule 405), relating to the Shares.
(b) Such Selling Stockholder has, and immediately prior to is the Closing Date on which such Selling Stockholder is selling the Shares, such Selling Stockholder will have, good and valid title to or a valid “security entitlement” within the meaning lawful owner of Section 8-501 of the New York Uniform Commercial Code (the “UCC”) in respect of, the Shares to be sold by such Selling Stockholder hereunder pursuant to this Agreement and has, and on such the Closing Date free will have, good and clear title to such Shares, free of all restrictions on transfer, liens, encumbrances, security interests, equities or claimsand claims whatsoever.
(b) The Shares to be sold by such Selling Stockholder have been duly authorized and are validly issued, fully paid and non-assessable.
(c) Upon payment for Such Selling Stockholder has, and on the Closing Date will have, full legal right, power and authority, and all authorization and approval required by law, to enter into this Agreement, the Custody Agreement signed by such Selling Stockholder and American Securities Transfer and Trust, Inc., as Custodian, relating to the deposit of the Shares to be sold by such Selling Stockholder, delivery of such Shares, as directed by Stockholder (the Underwriter, to Cede & Co. (“Cede”"Custody Agreement") 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 Power of such Shares on the books Attorney of DTC to securities accounts of the Underwriter (assuming that neither DTC nor the Underwriter has notice of any adverse claim (within the meaning of Section 8-105 of the UCC) to such Shares), (i) DTC shall be a “protected purchaser” of such Shares within the meaning of Section 8-303 of the UCC, (ii) under Section 8-501 of the UCC, the Underwriter will acquire a valid security entitlement in respect of such Shares and (iii) no action based on any “adverse claim,” within the meaning of Section 8-102 of the UCC, to such Shares may be asserted against the Underwriter with respect to such security entitlement. For purposes of this representation, such Selling Stockholder may assume that when appointing certain individuals as such paymentSelling Stockholder's attorneys-in-fact (the "Attorneys") to the extent set forth therein, delivery relating to the transactions contemplated hereby and crediting occurby the Registration Statement and the Custody Agreement (the "Power of Attorney") and to sell, (A) assign, transfer and deliver the Shares to be sold by such Shares will have been registered Selling Stockholder 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 manner provided herein and applicable law, (B) DTC will be registered as a “clearing corporation” within the meaning of Section 8-102 of the UCC and (C) appropriate entries to the accounts of the Underwriter on the records of DTC will have been made pursuant to the UCCtherein.
(d) Such Selling Stockholder has full right, power and authority, corporate or otherwise, to enter into this Agreement.
(e) This Agreement has been duly and validly authorized, executed and delivered by or on behalf of such Selling Stockholder.
(e) The Custody Agreement of such Selling Stockholder has been duly authorized, executed and delivered by such Selling Stockholder and is a valid and binding agreement of such Selling Stockholder, enforceable in accordance with its terms.
(f) The Power of Attorney of such Selling Stockholder has been duly authorized, executed and delivered by such Selling Stockholder and is a valid and binding instrument of such Selling Stockholder, enforceable in accordance with its terms, and, pursuant to such Power of Attorney, such Selling Stockholder has, among other things, authorized the Attorneys, or any one of them, to execute and deliver on such Selling Stockholder's behalf this Agreement and any other document that they, or any one of them, may deem necessary or desirable in connection with the transactions contemplated hereby and thereby and to deliver the Shares to be sold by such Selling Stockholder pursuant to this Agreement.
(g) Upon delivery of and payment for the Shares to be sold by such Selling Stockholder pursuant to this Agreement, the Underwriters will acquire the Shares free and clear of all adverse claims, assuming that each of the Underwriters who purchased such Shares did so in good faith and without knowledge of any such adverse claims within the meaning of the UCC.
(h) The execution, delivery and performance of this Agreement and the Custody Agreement and Power of Attorney of such Selling Stockholder by or on behalf of such Selling Stockholder, the compliance by such Selling Stockholder with all the provisions hereof and thereof and the consummation by such Selling Stockholder of the transactions contemplated hereby and thereby do not and will not (i) require any consent, approval, authorization or other order of, or qualification with, any court or governmental body or agency (except such as may be required under the securities or Blue Sky laws of the various states and other than registration under the Securities Act as contem- plated hereby), (ii) conflict with or result in constitute a breach or violation of any of the terms or provisions of, or constitute a default under, the organizational documents of such Selling Stockholder, if such Selling Stockholder is not an individual, or any indenture, mortgage, deed of trust, loan agreement, license mortgage, lease or other agreement or instrument to which such Selling Stockholder is a party or by which such Selling Stockholder is bound or to which any of the property or assets of such Selling Stockholder is subject, (ii) result in any violation of the provisions of the charter or by-laws or deed of trust (or similar organizational documents) of such Selling Stockholder, bound or (iii) result in violate or conflict with any violation of any statute applicable law or any orderrule, rule regulation, judgment, order or regulation decree of any court or any governmental body or agency or body having jurisdiction over such Selling Stockholder or the any property or assets of such Selling Stockholder.
(gi) No consent, approval, authorization or order of, or filing or registration with, any court or governmental agency or body having jurisdiction over such Selling Stockholder or To the property or assets best of such Selling Stockholder is required for Stockholder's knowledge, the execution, delivery and performance Registration Statement (other than any Rule 462(b) Registration Statement to be filed by the Company after the effectiveness of this Agreement by such Selling Stockholder and the consummation by such Selling Stockholder of the transactions contemplated hereby and therebyAgreement), except for the registration of the Shares under the Securities Act and such consentswhen it became effective, approvalsdid not, authorizationsand, registrations or qualifications as may be required under the Exchange Act and applicable state securities laws in connection with the purchase and sale of the Shares by the Underwriter.
(h) All material information with respect to such Selling Stockholder contained in each of the Registration Statement, the Prospectus and the Pricing Disclosure Package (as amended and supplemented, (if the Company shall have filed with the Commission any amendment or supplement theretoapplicable) (i) complied and will comply in all material respects with all applicable provisions of the Securities Act and the Rules and Regulations, (ii) contains and will contain all statements of material fact required to be stated therein in accordance with the Securities Act and the Rules and Regulations, and (iii) does not and will not contain an contain, any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary in order to make the statements therein not misleading. Solely with respect , (ii) if the Company is required to file a Rule 462(b) Registration Statement after the Metalmark Selling Stockholders (as defined in Schedule I hereto)effectiveness of this Agreement, such Selling Stockholder is Rule 462(b) Registration Statement and any amendments thereto, when they become effective (A) will not prompted contain any untrue statement of a material fact or omit to sell state a material fact required to be stated therein or necessary to make the Shares by statements therein not misleading and (B) will comply in all material respects with the Act and (iii) the Prospectus does not, and, as amended or supplemented (if applicable) will not, contain any untrue statement of a material non-public fact or omit to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading, except that the representations and warranties set forth in this paragraph do not apply to statements or omissions in the Registration Statement or the Prospectus based upon information relating to the business, results of operations or prospects of any Underwriter furnished to the Company and its subsidiaries of an adverse nature that is required to be disclosed in the Registration Statement, the Pricing Disclosure Package or the Prospectus. For this purpose, information that is set forth or incorporated writing by reference in the Registration Statement, the Pricing Disclosure Package or the Prospectus or that otherwise has been made publicly available about the Company shall be deemed to be public information, and any opinion or conclusion that a Metalmark Selling Stockholder may hold, or analysis performed by a Metalmark Selling Stockholder, in its capacity as an investor about the business, results of operations or prospects of the Company and its subsidiaries shall not be information that relates to the business, results of operations or prospects of the Company.
(i) Such Selling Stockholder has not taken and will not take, directly or indirectly, any action that is designed to or that has constituted or that could reasonably be expected to cause or result in the stabilization or manipulation of the price of any security of the Company to facilitate the sale or resale of the Sharessuch Underwriter through you expressly for use therein.
(j) The sale At any time during the period described in Section 5(d), if there is any change in the information referred to in Section 7(i), such Selling Stockholder, upon learning of the Shares by event or the circumstances giving rise to such Selling Stockholder does not violate any change, will immediately notify you of the Company’s internal policies regarding the sale of stock by its affiliatessuch change. Any Each certificate signed by any officer or on behalf of any such Selling Stockholder and delivered to the Underwriter Underwriters or counsel for the Underwriter in connection with the offering of the Shares Underwriters shall be deemed to be a representation and warranty by such Selling Stockholder, Stockholder to the Underwriters as to the matters covered thereby, to the Underwriter.
Appears in 1 contract
Representations and Warranties of the Selling Stockholders. Each Selling Stockholder, severally and not jointly, represents and warrants to, and agrees with, each of the Underwriters that:
(a) Neither such Selling Stockholder nor any person acting on behalf of such Selling Stockholder (other than, if applicable, the Company and the Underwriter) has used or referred to any “free writing prospectus” (as defined in Rule 405), relating to the Shares.
(b) Such Selling Stockholder has, and immediately prior to the Closing Date on which such Selling Stockholder is selling the Shares, such 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 (the “UCC”) in respect of, the Shares to be sold by such Selling Stockholder hereunder on such Closing Date free and clear of all liens, encumbrances, equities or claims.
(c) Upon payment for the Shares to be sold by such Selling Stockholder, delivery of such Shares, as directed by the Underwriter, to Cede & Co. (“Cede”) or such other nominee as may be designated by The Depository Trust Company (“DTC”), registration of such Shares in the name of Cede or such other nominee and the crediting of such Shares on the books of DTC to securities accounts of the Underwriter (assuming that neither DTC nor the Underwriter has notice of any adverse claim (within the meaning of Section 8-105 of the UCC) to such Shares), (i) DTC shall be a “protected purchaser” of such Shares within the meaning of Section 8-303 of the UCC, (ii) under Section 8-501 of the UCC, the Underwriter will acquire a valid security entitlement in respect of such Shares and (iii) no action based on any “adverse claim,” within the meaning of Section 8-102 of the UCC, to such Shares may be asserted against the Underwriter with respect to such security entitlement. For purposes of this representation, such Selling Stockholder may assume that when such payment, delivery and crediting occur, (A) such Shares will have been registered in the name of Cede or another nominee designated by DTC, in each case on the Company’s share registry in accordance with its certificate of incorporation, bylaws and applicable law, (B) DTC will be registered as a “clearing corporation” within the meaning of Section 8-102 of the UCC and (C) appropriate entries to the accounts of the Underwriter on the records of DTC will have been made pursuant to the UCC.
(d) Such Selling Stockholder has full right, power and authority, corporate or otherwiseauthority to execute and deliver this Agreement, to enter into perform its obligations hereunder and to consummate the transactions contemplated by this Agreement. To the extent applicable (because such Selling Stockholder is an entity), this Agreement and the transactions contemplated by this Agreement have been duly and validly authorized by such Selling Stockholder. This Agreement has been duly and validly executed and delivered by such Selling Stockholder.
(b) Such Selling Stockholder has full right, power and authority to execute and deliver a Custody Agreement and Power of Attorney substantially in the forms of Exhibits B and C hereto (such Selling Stockholder's "Custody Agreement" and "Power of Attorney," respectively), to perform its obligations thereunder and to consummate the transactions contemplated thereby. To the extent applicable (because such Selling Stockholder is an entity), the Custody Agreement and Power of Attorney and the transactions contemplated thereby have been duly and validly authorized by such Selling Stockholder. The Custody Agreement and Power of Attorney have each been duly and validly executed and delivered by such Selling Stockholder and constitute the legal, valid and binding obligation of such Selling Stockholder, enforceable against it in accordance with its terms, except as enforceability may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or similar laws affecting creditors' rights generally and except as enforceability may be subject to general principles of equity (regardless of whether such enforceability is considered in a proceeding in equity or at law). Counterparts of such Selling Stockholder's Custody Agreement and Power of Attorney, duly signed by Xxxxxxx X. Xxxxxx and Xxxxxxx X. Xxxxxxx, as custodians (in such capacity, the "Custodian") and as such Selling Stockholders' attorneys-in-fact (in such capacity, the "Attorneys-In-Fact"), have been delivered to the Company and the Lead Managers on or prior to the date of this Agreement.
(c) Such Selling Stockholder agrees that the Firm Shares and Additional Shares, if any, to be sold by such Selling Stockholder, whether or not on deposit with the Custodian, are subject to the interests of the Underwriters, that the arrangements made for such custody are to that extent irrevocable, and that the obligations of such Selling Stockholder hereunder shall not be terminated, except as provided in this Agreement or in the Custody Agreement and Power of Attorney, by any act of such Selling Stockholder, by operation of law or by the occurrence of any other event. If such Selling Stockholder should die or become incapacitated, or if any other event should occur affecting the legal status or capacity of such Selling Stockholder before the delivery of the Firm Shares and Additional Shares, if any, to be sold by a Selling Stockholder hereunder, the documents evidencing the Firm Shares and Additional Shares, if any, to be sold by such Selling Stockholder then on deposit with the Custodian shall be delivered by the Custodian in accordance with the terms and conditions of this Agreement as if such event had not occurred, regardless of whether or not the Custodian shall have received notice thereof.
(d) Such Selling Stockholder has, and on the Closing Date and any Additional Closing Date, will have, good and valid title to and is the lawful owner of the Firm Shares and Additional Shares, if any, to be sold by such Selling Stockholder hereunder, and upon sale and delivery of, and payment of the consideration for the Firm Shares and Additional Shares, if any, to be sold by such Selling Stockholder as provided in this Agreement and the crediting of such Firm Shares and Additional Shares, if any, to the "security account" or "security accounts" (as defined in Section 8-501(a) of the Uniform Commercial Code of the State of New York (the "UCC")) of the Underwriters maintained with The Depository Trust Company ("DTC"), each of the Underwriters will become the legal owner of the Firm Shares and Additional Shares, if any, purchased by it from such Selling Stockholder, free and clear of all Liens. Certificates for all of such Shares to be sold by such Selling Stockholder pursuant to this Agreement, in suitable form for transfer by delivery or accompanied by duly executed instruments of transfer or assignment in blank with signatures guaranteed, have been placed in custody with the Custodian with irrevocable conditional instructions to deliver such Shares to the Underwriters as required under this Agreement.
(e) This No Consent is required for the execution, delivery and performance by such Selling Stockholder of this Agreement has or its Custody Agreement and Power of Attorney, or the consummation by such Selling Stockholder of the transactions contemplated herein or therein, except (i) such as have been duly obtained under the Securities Act (provided that a filing with the Commission pursuant to Rule 424(b) may be made after the date of this Agreement so long as it is made within the time period specified in the applicable provision of that rule) and validly authorizedsuch as may be required under the state or foreign securities laws, executed the blue sky laws of any jurisdiction, and delivered by the NASD or on behalf NASD Rules and Regulations in connection with the purchase and distribution of such Selling Stockholder's Shares and such Selling Stockholder's Additional Shares, if any, by the Underwriters, and (ii) for any Consent the absence of which would not reasonably be expected to have a Material Adverse Effect.
(f) The execution, delivery and performance of this Agreement by such Selling Stockholder and the execution, delivery and performance of the Power of Attorney and the Custody Agreement by such Selling Stockholder, and the consummation of any of the other transactions contemplated herein and therein by such Selling Stockholder or the fulfillment of the transactions contemplated hereby and thereby do not and terms hereof by such Selling Stockholder will not (iA) conflict with or with, result in a breach or violation of any of the terms or provisions of, or constitute a default (or an event that with notice or lapse of time, or both, would constitute a default) under, or result in the creation or imposition of any indentureLien upon any property or assets of such Selling Stockholder pursuant to, mortgageany law, deed statute, rule or regulation or the terms of trust, loan agreement, license any indenture or other agreement or instrument to which such Selling Stockholder is a party or by which such Selling Stockholder is bound bound, or to which any of the property or assets of such Selling Stockholder is subject, or (iiB) if such Selling Stockholder is not a natural person, result in any violation of the provisions of the any charter or by-laws bylaws or deed certificate of formation, trust (agreement, partnership agreement, articles of partnership or similar other organizational documents) , as applicable, of such Selling Stockholder, Stockholder or (iiiC) result in any violation or breach of any statute or any judgment, order, decree, statute, rule or regulation applicable to such Selling Stockholder of any court or any public, governmental or regulatory agency or body body, administrative agency or arbitrator having jurisdiction over such Selling Stockholder or Stockholder, except (in the property or assets case of such Selling Stockholderclauses (A) and (C) above) as would not reasonably be expected to have a Material Adverse Effect.
(g) No consent, approval, authorization or order of, or filing or registration with, any court or governmental agency or body having jurisdiction over such Such Selling Stockholder does not have any registration or other similar rights to have any equity or debt securities registered for sale by the property Company under the Registration Statement or assets included in the offering of such Selling Stockholder is required for the execution, delivery and performance of this Agreement by such Selling Stockholder Firm Shares and the consummation by such Selling Stockholder of the transactions contemplated hereby and therebyAdditional Shares, except for such rights as have been waived or which are described in the registration of Registration Statement and the Shares under the Securities Act Pricing Prospectus (and such consents, approvals, authorizations, registrations or qualifications as may be required under the Exchange Act and applicable state securities laws in connection with the purchase and sale of the Shares by the Underwriterwhich have been complied with).
(h) All material information Such Selling Stockholder does not have, or has waived prior to the date hereof, any preemptive right, co-sale right or right of first refusal or other similar right to purchase any of the Shares that are to be sold by any other Selling Stockholder to the Underwriters pursuant to this Agreement; and such Selling Stockholder does not own any warrants, options or similar rights to acquire, and does not have any right or arrangement to acquire, any capital stock, right, warrants, options or other securities from the Company, other than those described in the Registration Statement and the Pricing Prospectus.
(i) Except as disclosed in the Pricing Prospectus, there are no contracts, agreements or understandings between such Selling Stockholder and any person that would give rise to a valid claim against the Company or any Underwriter for a brokerage commission, finder's fee or other like payment in connection with the Offering and, to such Selling Stockholder's knowledge, there are no arrangements, agreements, understandings, payments or issuances with respect to the Company or any of its officers, directors, shareholders, partners, employees, Subsidiaries or affiliates relating to the Underwriters' compensation or compensation paid to a member of the NASD or any affiliate of, or person "associated with," a member of the NASD, as such terms are used in the NASD Rules and Regulations) that have not been disclosed to the Underwriters or their counsel.
(j) The information under the caption "Principal and Selling Stockholders" which specifically relates to such Selling Stockholder contained (i) in each of the Registration Statement, the Prospectus and the Pricing Disclosure Package (as amended and supplementeddid not, if the Company shall have filed with the Commission when it became effective, contain any amendment or supplement thereto) (i) complied and will comply in all material respects with all applicable provisions of the Securities Act and the Rules and Regulations, (ii) contains and will contain all statements of material fact required to be stated therein in accordance with the Securities Act and the Rules and Regulations, and (iii) does not and will not contain an untrue statement of a material fact or omit to state a any material fact required to be stated therein or necessary in order to make the statements therein not misleading and (ii) in the Pricing Prospectus, the Prospectus, any Issuer Free Writing Prospectus and any further amendments or supplements thereto, when they were or are filed with the Commission, as the case may be, did not and will not, as the case may be, contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading. Solely In the event there is any change in the information under the caption "Principal and Selling Stockholders" which specifically relates to such Selling Stockholder from the first business day after the date of this Agreement and from time to time thereafter for such period as in the opinion of counsel for the Underwriters a prospectus is required by law to be delivered in connection with respect to the Metalmark Selling Stockholders (as defined in Schedule I hereto)sales by an Underwriter or a dealer, such Selling Stockholder will immediately notify the Underwriters of such change. Such Selling Stockholder has reviewed and is familiar with the Registration Statement, the Pricing Prospectus and the Prospectus and each Selling Stockholder is not prompted to sell the Firm Shares and the Additional Shares, if any, to be sold by the Selling Stockholder by any material non-public information relating to the business, results of operations or prospects of concerning the Company and its subsidiaries of an adverse nature that or any Subsidiary which is required to be disclosed not set forth in the Registration Statement, the Pricing Disclosure Package or Prospectus and the Prospectus. For this purpose, information that is set forth or incorporated by reference in the Registration Statement, the Pricing Disclosure Package or the Prospectus or that otherwise has been made publicly available about the Company shall be deemed to be public information, and any opinion or conclusion that a Metalmark Selling Stockholder may hold, or analysis performed by a Metalmark Selling Stockholder, in its capacity as an investor about the business, results of operations or prospects of the Company and its subsidiaries shall not be information that relates to the business, results of operations or prospects of the Company.
(ik) Such Selling Stockholder has not taken and will not take, directly or indirectly, any action that is designed to or that has constituted to, or that could be reasonably be expected to to, cause or result in the stabilization or manipulation of the price of any security of the Company Common Stock to facilitate the sale or resale of the Firm Shares or Additional Shares, if any.
(jl) The Such Selling Stockholder has not distributed and will not distribute, prior to the later of the Additional Closing Date, if any, and the completion of the Underwriters' distribution of the Shares, any offering material in connection with the offering and sale of the Firm Shares and the Additional Shares, if any, by such Selling Stockholder does not violate any other than the Pricing Prospectus, the Prospectus or the Registration Statement.
(m) The representations and warranties of such Selling Stockholder in its Custody Agreement and Power of Attorney are, and on the Company’s internal policies regarding the sale of stock by its affiliatesClosing Date and Additional Closing Date, if any, will be, true and correct in all material respects. Any certificate signed by any officer or on behalf of any the Selling Stockholder and delivered to the Underwriter Underwriters or to counsel for the Underwriter in connection with the offering of the Shares Underwriters shall be deemed to be a representation and warranty by such Selling Stockholder, Stockholder to each Underwriter as to the matters covered thereby, to the Underwriter.
Appears in 1 contract
Representations and Warranties of the Selling Stockholders. Each Selling Stockholder, severally and not jointly, represents and warrants to and agrees with each Underwriter and the Company that:
(a) Neither such Selling Stockholder nor any person acting on behalf of such Selling Stockholder (other than, if applicable, the Company and the Underwriter) has used or referred to any “free writing prospectus” (as defined in Rule 405), relating to the Shares.
(b) Such Selling Stockholder has, now has and immediately prior to on the Closing Date on which such Selling Stockholder is selling the Shares, such Selling Stockholder will have, have good and valid marketable 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 such Selling Stockholder hereunder on such Closing Date free and clear of all liens, encumbrances, equities or claims.
(c) Upon payment for the Shares to be sold by such Selling Stockholder, free and clear of any pledge, lien, security interest, encumbrance, claim or equitable interest other than pursuant to this Agreement; and upon delivery of such SharesShares hereunder and payment of the purchase price as herein contemplated, as directed by each of the Underwriter, to Cede & Co. (“Cede”) or such other nominee as may be designated by The Depository Trust Company (“DTC”), registration of Underwriters who acquire such Shares in the name of Cede or such other nominee and the crediting of such Shares on the books of DTC to securities accounts of the Underwriter (assuming that neither DTC nor the Underwriter has notice without knowledge of any adverse claim (within claim, will obtain good and marketable title to the meaning Shares purchased by it from such Selling Stockholder, free and clear of Section 8-105 of the UCC) any pledge, lien, security interest pertaining to such Shares), (i) DTC shall be a “protected purchaser” of such Shares within the meaning of Section 8-303 of the UCC, (ii) under Section 8-501 of the UCC, the Underwriter will acquire a valid security entitlement in respect of such Shares and (iii) no action based on any “adverse claim,” within the meaning of Section 8-102 of the UCC, to such Shares may be asserted against the Underwriter with respect to such security entitlement. For purposes of this representation, such Selling Stockholder may assume that when or such paymentSelling Stockholder's property, delivery encumbrance, claim or equitable interest, or any liability to or claims of any creditor, devisee, legatee or beneficiary of such Selling Stockholder.
(b) Such Selling Stockholder has duly authorized (if applicable), executed and crediting occurdelivered, (A) such Shares will have been registered in the name form heretofore furnished to the Representatives, an irrevocable Power of Cede or another nominee designated by DTCAttorney (the "Power of Attorney") appointing Xxxxxxx Xxxxx and Xxxxxx Xxxxx as attorneys-in-fact (collectively, in the "Attorneys" and individually, an "Attorney") and a Letter of Transmittal and Custody Agreement (the "Custody Agreement") with U.S. State Transfer Corporation, as custodian (the "Custodian"); each case of the Power of Attorney and the Custody Agreement constitutes a valid and binding agreement on the Company’s share registry part of such Selling Stockholder, enforceable in accordance with its certificate of incorporationterms, bylaws except as the enforcement thereof may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or other similar laws relating to or affecting creditors' rights generally or by general equitable principles and applicable law, (B) DTC will be registered except insofar as a “clearing corporation” within the meaning indemnification and contribution provisions of Section 8-102 9 of this Agreement may be affected by public policy concerns; and each of such Selling Stockholder's Attorneys, acting alone, is authorized to execute and deliver this Agreement and the certificate referred to in Section 7(f) hereof on behalf of such Selling Stockholder, to determine the purchase price to be paid by the several Underwriters to such Selling Stockholder as provided in Section 3 hereof, to authorize the delivery of the UCC Firm Shares to be sold by such Selling Stockholder under this Agreement and to duly endorse (Cin blank or otherwise) appropriate entries the certificate or certificates representing such Shares or a stock power or powers with respect thereto, to accept payment therefor, and otherwise to act on behalf of such Selling Stockholder in connection with this Agreement.
(c) All consents, approvals, authorizations and orders required for the accounts execution and delivery by such Selling Stockholder of the Underwriter Power of Attorney and the Custody Agreement, the execution and delivery by or on behalf of such Selling Stockholder of this Agreement and the records sale and delivery of DTC will the Firm Shares to be sold by such Selling Stockholder under this Agreement (other than, at the time of the execution hereof (if the Registration Statement has not yet been declared effective by the Commission), the issuance of the order of the Commission declaring the Registration Statement effective and such consents, approvals, authorizations or orders as may be necessary under state or other securities or Blue Sky laws) have been made pursuant obtained and are in full force and effect; such Selling Stockholder, if other than a natural person, has been duly organized and is validly existing in good standing under the laws of the jurisdiction of its organization as the type of entity that it purports to be; and such Selling Stockholder has full legal right, power and authority to enter into and perform its obligations under this Agreement and such Power of Attorney and Custody Agreement, and to sell, assign, transfer and deliver the UCCShares to be sold by such Selling Stockholder under this Agreement.
(d) Such Certificates in negotiable form for all Firm Shares to be sold by such Selling Stockholder has full right, power and authority, corporate or otherwise, to enter into under this Agreement, together with a stock power or powers duly endorsed in blank by such Selling Stockholder, have been placed in custody with the Custodian for the purpose of effecting delivery hereunder.
(e) This Agreement has been duly authorized by each Selling Stockholder that is not a natural person and validly authorized, has been duly executed and delivered by or on behalf of such Selling Stockholder and is a valid and binding agreement of such Selling Stockholder.
(f) The execution, delivery enforceable in accordance with its terms, except as rights to indemnification hereunder may be limited by applicable law and except as the enforcement hereof may be limited by bankruptcy, insolvency, reorganization, moratorium or other similar laws relating to or affecting creditors' rights generally or by general equitable principles and except insofar as the indemnification and contribution provisions of Section 9 of this Agreement may be affected by public policy concerns; and the performance of this Agreement by such Selling Stockholder and the consummation by such Selling Stockholder of the transactions herein contemplated hereby and thereby do not and will not (i) conflict with or result in a breach or violation of any of the terms or and provisions of, of or constitute a material default underunder any bond, debenture, note or other evidence of indebtedness, or under any lease, contract, indenture, mortgage, deed of trust, loan agreement, license joint venture or other agreement or instrument to which such Selling Stockholder is a party or by which such Selling Stockholder is bound or to which any of the property or assets best of such Selling Stockholder is subject, (ii) result in any violation of the provisions of the charter or by-laws or deed of trust (or similar organizational documents) of Stockholder's knowledge by which such Selling Stockholder, or (iii) any Firm Shares to be sold by such Selling Stockholder hereunder, may be bound or, to the best of such Selling Stockholders' knowledge, result in any violation of any statute or any law, order, rule rule, regulation, writ, injunction, judgment or regulation decree of any court court, government or governmental agency or body body, domestic or foreign, having jurisdiction over such Selling Stockholder or over the property properties of such Selling Stockholder, or, if such Selling Stockholder is other than a natural person, result in any violation of any provisions of the charter, bylaws or assets other organizational documents of such Selling Stockholder.
(f) Such 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 the Common Stock.
(g) No consent, approval, authorization or order of, or filing or registration with, any court or governmental agency or body having jurisdiction over such Such Selling Stockholder has not distributed to the public and will not distribute to the public any prospectus or the property or assets of such Selling Stockholder is required for the execution, delivery and performance of this Agreement by such Selling Stockholder and the consummation by such Selling Stockholder of the transactions contemplated hereby and thereby, except for the registration of the Shares under the Securities Act and such consents, approvals, authorizations, registrations or qualifications as may be required under the Exchange Act and applicable state securities laws other offering material in connection with the purchase offering and sale of the Shares by the UnderwriterShares.
(h) All material information with respect furnished by or on behalf of such Selling Stockholder relating to such Selling Stockholder and the Firm Shares that is contained in each the representations and warranties of such Selling Stockholder in such Selling Stockholder's Power of Attorney or set forth in the Registration Statement, Statement or the Prospectus is, and at the Pricing Disclosure Package (time the Registration Statement became or becomes, as amended the case may be, effective and supplementedat all times subsequent thereto up to and on the Closing Date was or will be, if the Company shall have filed with the Commission any amendment or supplement thereto) (i) complied true, correct and will comply complete in all material respects with all applicable provisions of the Securities Act and the Rules and Regulations, (ii) contains and will contain all statements of material fact required to be stated therein in accordance with the Securities Act and the Rules and Regulationsrespects, and (iii) such information furnished by or on behalf such Selling Stockholder does not not, and at the time the Registration Statement became or becomes, as the case may be, effective and at all times subsequent thereto up to and on the Closing Date will not not, contain an 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 therein, in light of the circumstances in which they are made, not misleading. Solely with respect to the Metalmark Selling Stockholders (as defined in Schedule I hereto), such Selling Stockholder is not prompted to sell the Shares by any material non-public information relating to the business, results of operations or prospects of the Company and its subsidiaries of an adverse nature that is required to be disclosed in the Registration Statement, the Pricing Disclosure Package or the Prospectus. For this purpose, information that is set forth or incorporated by reference in the Registration Statement, the Pricing Disclosure Package or the Prospectus or that otherwise has been made publicly available about the Company shall be deemed to be public information, and any opinion or conclusion that a Metalmark Selling Stockholder may hold, or analysis performed by a Metalmark Selling Stockholder, in its capacity as an investor about the business, results of operations or prospects of the Company and its subsidiaries shall not be information that relates to the business, results of operations or prospects of the Company.
(i) Such Selling Stockholder has not taken will review the Prospectus and will not take, directly comply with all agreements and satisfy all conditions on its part to be complied with or indirectly, satisfied pursuant to this Agreement on or prior to the Closing Date and will advise one of its Attorneys and Xxx Xxxxxx & Company prior to the Closing Date if any action that is designed statement to or that has constituted or that could reasonably be expected to cause or result made on behalf of such Selling Stockholder in the stabilization or manipulation certificate contemplated by Section 7(f) would be inaccurate if made as of the price of any security of the Company to facilitate the sale or resale of the Sharessuch date.
(j) The Such Selling Stockholder does not have, or has waived prior to the date hereof, any preemptive right, co-sale right or right of first refusal or other similar right to purchase any of the Shares that are to be sold by the Company or any of the other Selling Stockholders to the Underwriters pursuant to this Agreement; such Selling Stockholder does not violate have, or has waived prior to the date hereof, any registration right or other similar right to participate in the offering made by the Prospectus, other than such rights of participation as have been satisfied by the participation of such Selling Stockholder in the transactions to which this Agreement relates in accordance with the terms of this Agreement; and such Selling Stockholder does not own any warrants, options or similar rights to acquire, and does not have any right or arrangement to acquire, any capital stock, rights, warrants, options or other securities from the Company, other than those described in the Registration Statement and the Prospectus or those which are not required to be described in the Registration Statement and the Prospectus.
(k) Such Selling Stockholder is not aware (without having conducted any investigation or inquiry) that any of the Company’s internal policies regarding the sale of stock by its affiliates. Any certificate signed by any officer of any Selling Stockholder representations and delivered to the Underwriter or counsel for the Underwriter in connection with the offering warranties of the Shares shall be deemed a representation and warranty by Company set forth in Section 1 above is untrue or inaccurate in any material respect.
(l) To the best of such Selling Stockholder's knowledge, when any Preliminary Prospectus was filed with the Commission it (i) contained all statements required to be contained therein and complied in all respects with the requirements of the Securities Act, the Rules and Regulations, the Exchange Act and the Exchange Act Rules and Regulations and (ii) did not include any untrue statement of a material fact or omit to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading. To the best of such Selling Stockholder's knowledge, on the Effective Date, the Registration Statement (i) contained or will contain all statements required to be contained therein and complied or will comply in all respects with the requirements of the Securities Act, the Rules and Regulations, the Exchange Act and the Exchange Act Rules and Regulations and (ii) did not or will not include any untrue statement of a material fact or omit to state any material fact necessary to make the statements therein, in light of the circumstances under which they were made, not misleading. To the best of such Selling Stockholder's knowledge, when the Prospectus or any Term Sheet that is a part thereof or any amendment or supplement to the Prospectus is filed with the Commission pursuant to Rule 424(b) (or, if the Prospectus or part thereof or such amendment or supplement is not required to be so filed, when the Registration Statement or the amendment thereto containing such amendment or supplement to the Prospectus was or is declared effective) and on any date on which Option Shares are to be purchased by the Underwriters pursuant to this Agreement, the Prospectus, as amended or supplemented at any such time, (i) contained or will contain all statements required to matters covered therebybe contained therein and complied or will comply in all respects with the requirements of the Securities Act, the Rules and Regulations and the Exchange Act Rules and Regulations and (ii) did not or will not include any untrue statement of a material fact or omit to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading. The foregoing provisions of this paragraph (l) do not apply to statements or omissions made in any Preliminary Prospectus, the Registration Statement or any amendment thereto or the Prospectus or any amendment or supplement thereto in reliance upon and in conformity with written information furnished to the UnderwriterCompany by or on behalf of any Underwriter through the Representatives specifically for use therein.
Appears in 1 contract
Representations and Warranties of the Selling Stockholders. Each of the Selling StockholderStockholders, severally and not jointly, represents and warrants to each Underwriter and agrees as follows that:
(a) Neither such Such Selling Stockholder nor any person acting on behalf of such Selling Stockholder (other than, if applicable, at the Company and the Underwriter) has used or referred to any “free writing prospectus” First Closing Date (as defined in Rule 405), relating herein) will have valid and marketable title to the Shares.
(b) Such Selling Stockholder has, and immediately prior to the Closing Date on which such Selling Stockholder is selling the Shares, such 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 (the “UCC”) Shares set forth in respect of, the Shares Schedule I to be sold by such Selling Stockholder hereunder on such Closing Date Stockholder, free and clear of all any liens, encumbrancesclaims, encumbrances or equities (other than as imposed by the Securities Act or claims.
(c) Upon this Agreement), and full right, power and authority to effect the sale and delivery of such Shares; and upon the delivery of and payment for the Shares to be sold by such Selling StockholderStockholder pursuant to this Agreement, delivery of such Sharesvalid and marketable title thereto, as directed by the Underwriter, to Cede & Co. (“Cede”) or such other nominee as may be designated by The Depository Trust Company (“DTC”), registration of such Shares in the name of Cede or such other nominee free and the crediting of such Shares on the books of DTC to securities accounts of the Underwriter (assuming that neither DTC nor the Underwriter has notice clear of any adverse claim (within the meaning of Section 8-105 of the UCC) to such Shares)liens, (i) DTC shall be a “protected purchaser” of such Shares within the meaning of Section 8-303 of the UCCclaims, (ii) under Section 8-501 of the UCCencumbrances or equities, the Underwriter will acquire a valid security entitlement in respect of such Shares and (iii) no action based on any “adverse claim,” within the meaning of Section 8-102 of the UCC, to such Shares may be asserted against the Underwriter with respect to such security entitlement. For purposes of this representation, such Selling Stockholder may assume that when such payment, delivery and crediting occur, (A) such Shares will have been registered in the name of Cede or another nominee designated by DTC, in each case on the Company’s share registry in accordance with its certificate of incorporation, bylaws and applicable law, (B) DTC will be registered as a “clearing corporation” within the meaning of Section 8-102 of the UCC and (C) appropriate entries transferred to the accounts of the Underwriter on the records of DTC will have been made pursuant to the UCCUnderwriters.
(db) Such Selling Stockholder has full right, power and authority, corporate or otherwise, to enter into this Agreement.
(e) This Agreement has been duly and validly authorized, executed and delivered by or the Custody Agreement and Power of Attorney in the form previously delivered to the Representatives, appointing Georxx X. Xxxxxx xxx Tim X. Xxxxx, xxd each of them as each Selling Stockholder's attorney-in-fact (the "Attorney-in-Fact") and as custodian (the "Custodian"). The Attorney-in-Fact is authorized to execute, deliver and perform this Agreement on behalf of such Selling Stockholder.
(f) The execution, delivery and performance of this Agreement to deliver the Shares to be sold by such Selling Stockholder hereunder, to accept payment therefor and the consummation by such Selling Stockholder of the transactions contemplated hereby and thereby 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, any indenture, mortgage, deed of trust, loan agreement, license or other agreement or instrument otherwise to which such Selling Stockholder is a party or by which such Selling Stockholder is bound or to which any of the property or assets act on behalf of such Selling Stockholder is subject, (ii) result in any violation of the provisions of the charter or by-laws or deed of trust (or similar organizational documents) of such Selling Stockholder, or (iii) result in any violation of any statute or any order, rule or regulation of any court or governmental agency or body having jurisdiction over such Selling Stockholder or the property or assets of such Selling Stockholder.
(g) No consent, approval, authorization or order of, or filing or registration with, any court or governmental agency or body having jurisdiction over such Selling Stockholder or the property or assets of such Selling Stockholder is required for the execution, delivery and performance of this Agreement by such Selling Stockholder and the consummation by such Selling Stockholder of the transactions contemplated hereby and thereby, except for the registration of the Shares under the Securities Act and such consents, approvals, authorizations, registrations or qualifications as may be required under the Exchange Act and applicable state securities laws in connection with this Agreement. If the purchase and sale of the Shares by the Underwriter.
(h) All material information with respect Selling Stockholder's shares are issuable pursuant to such Selling Stockholder contained in each of the Registration Statementa warrant agreement, the Prospectus and the Pricing Disclosure Package (as amended and supplemented, if the Company shall have filed with the Commission any amendment or supplement thereto) (i) complied and will comply in all material respects with all applicable provisions of the Securities Act and the Rules and Regulations, (ii) contains and will contain all statements of material fact required to be stated therein in accordance with the Securities Act and the Rules and Regulations, and (iii) does not and will not contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary in order to make the statements therein not misleading. Solely with respect to the Metalmark Selling Stockholders (as defined in Schedule I hereto), such Selling Stockholder is not prompted to sell the Shares by any material non-public information relating to the business, results of operations or prospects of the Company and its subsidiaries of an adverse nature that is required to be disclosed in the Registration Statement, the Pricing Disclosure Package or the Prospectus. For this purpose, information that is set forth or incorporated by reference in the Registration Statement, the Pricing Disclosure Package or the Prospectus or that otherwise has been made publicly available about the Company shall be deemed to be public information, and any opinion or conclusion that a Metalmark Selling Stockholder may hold, or analysis performed by a Metalmark Selling Stockholder, in its capacity as an investor about the business, results of operations or prospects of the Company and its subsidiaries shall not be information that relates to the business, results of operations or prospects of the Company.
(i) Such Selling Stockholder has not taken and will not take, directly or indirectly, any action that is designed to or that has constituted or that could reasonably be expected to cause or result in the stabilization or manipulation of the price of any security of the Company to facilitate the sale or resale of the Shares.
(j) The sale of the Shares by such Selling Stockholder does not violate any of the Company’s internal policies regarding the sale of stock by its affiliates. Any certificate signed by any officer of any 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 such Selling Stockholder, as to matters covered thereby, to the Underwriter.Selling
Appears in 1 contract
Samples: Underwriting Agreement (Ultrak Inc)
Representations and Warranties of the Selling Stockholders. Each Selling Stockholder, severally and not jointly, Stockholder represents and warrants to each Underwriter that:
(a) Neither such Selling Stockholder nor any person acting on behalf of such Selling Stockholder (other than, if applicable, the Company and the Underwriter) has used or referred to any “free writing prospectus” (as defined in Rule 405), relating to the Shares.
(b) Such Selling Stockholder has, and immediately prior to is the Closing Date on which such Selling Stockholder is selling the Shares, such Selling Stockholder will have, good and valid title to or a valid “security entitlement” within the meaning lawful owner of Section 8-501 of the New York Uniform Commercial Code (the “UCC”) in respect of, the Shares to be sold by such Selling Stockholder hereunder pursuant to this Agreement and has, and on such the Closing Date free will have, good and clear title to such Shares, free of all restrictions on transfer, liens, encumbrances, security interests, equities or claimsand claims whatsoever.
(b) The Shares to be sold by such Selling Stockholder have been duly authorized and are validly issued, fully paid and non-assessable.
(c) Upon payment for Such Selling Stockholder has, and on the Closing Date will have, full legal right, power and authority, and all authorization and approval required by law, to enter into this Agreement, the Power of Attorney and Custody Agreement signed by such Selling Stockholder and Edwaxx Xxxxxxxx, Xxchxxx Xxxxxxx xx [ ], as the case may be, as Attorney-In-Fact and Custodian ("Attorney-In-Fact"), relating to the deposit of the Shares to be sold by such Selling Stockholder, delivery of such Shares, as directed Stockholder and the transactions contemplated hereby and by the UnderwriterRegistration Statement (the "POWER OF ATTORNEY AND CUSTODY AGREEMENT") and to sell, assign, transfer and deliver the Shares to Cede & Co. (“Cede”) or such other nominee as may be designated sold by The Depository Trust Company (“DTC”), registration of such Shares in the name of Cede or such other nominee and the crediting of such Shares on the books of DTC to securities accounts of the Underwriter (assuming that neither DTC nor the Underwriter has notice of any adverse claim (within the meaning of Section 8-105 of the UCC) to such Shares), (i) DTC shall be a “protected purchaser” of such Shares within the meaning of Section 8-303 of the UCC, (ii) under Section 8-501 of the UCC, the Underwriter will acquire a valid security entitlement in respect of such Shares and (iii) no action based on any “adverse claim,” within the meaning of Section 8-102 of the UCC, to such Shares may be asserted against the Underwriter with respect to such security entitlement. For purposes of this representation, such Selling Stockholder may assume that when such payment, delivery and crediting occur, (A) such Shares will have been registered in the name of Cede or another nominee designated by DTC, in each case on the Company’s share registry in accordance with its certificate of incorporation, bylaws manner provided herein and applicable law, (B) DTC will be registered as a “clearing corporation” within the meaning of Section 8-102 of the UCC and (C) appropriate entries to the accounts of the Underwriter on the records of DTC will have been made pursuant to the UCCtherein.
(d) Such Selling Stockholder has full right, power and authority, corporate or otherwise, to enter into this Agreement.
(e) This Agreement has been duly and validly authorized, executed and delivered by or on behalf of such Selling Stockholder.
(e) The Power of Attorney and Custody Agreement of such Selling Stockholder has been duly authorized, executed and delivered by such Selling Stockholder and is a valid and binding agreement of such Selling Stockholder, enforceable in accordance with its terms and, pursuant to the power of attorney conferred thereby, such Selling Stockholder has, among other things, authorized the Attorney-In-Fact to execute and deliver on such Selling Stockholder's behalf this Agreement and any other document that such Selling Stockholder may deem necessary or desirable in connection with the transactions contemplated hereby and thereby and to deliver the Shares to be sold by such Selling Stockholder pursuant to this Agreement.
(f) Upon delivery of and payment for the Shares to be sold by such Selling Stockholder pursuant to this Agreement, good and clear title to such Shares will pass to the Underwriters, free of all restrictions on transfer, liens, encumbrances, security interests, equities and claims whatsoever.
(g) The execution, delivery and performance of this Agreement and the Power of Attorney and Custody Agreement of such Selling Stockholder by or on behalf of such Selling Stockholder, the compliance by such Selling Stockholder with all the provisions hereof and thereof and the consummation by such Selling Stockholder of the transactions contemplated hereby and thereby do not and will not (i) require any consent, approval, authorization or other order of, or qualification with, any court or governmental body or agency (except such as may be required under the securities or Blue Sky laws of the various states), (ii) conflict with or result in constitute a breach or violation of any of the terms or provisions of, or constitute a default under, the organizational documents of such Selling Stockholder, if such Selling Stockholder is not an individual, or any indenture, mortgage, deed of trust, loan agreement, license mortgage, lease or other agreement or instrument to which such Selling Stockholder is a party or by which such Selling Stockholder is bound or to which any of the property or assets of such Selling Stockholder is subject, (ii) result in any violation of the provisions of the charter or by-laws or deed of trust (or similar organizational documents) of such Selling Stockholder, bound or (iii) result in violate or conflict with any violation of any statute applicable law or any orderrule, rule regulation, judgment, order or regulation decree of any court or any governmental body or agency or body having jurisdiction over such Selling Stockholder or the any property or assets of such Selling Stockholder.
(gh) No consent, approval, authorization or order of, or filing or registration with, any court or governmental agency or body having jurisdiction over such Selling Stockholder or The information in the property or assets of such Selling Stockholder is required for the execution, delivery and performance of this Agreement by such Selling Stockholder and the consummation by such Selling Stockholder of the transactions contemplated hereby and thereby, except for the registration of the Shares Registration Statement under the Securities Act caption "Principal and such consents, approvals, authorizations, registrations or qualifications as may be required under the Exchange Act and applicable state securities laws in connection with the purchase and sale of the Shares by the Underwriter.
(h) All material information with respect Selling Stockholders" which specifically relates to such Selling Stockholder contained in each of the Registration Statementdoes not, the Prospectus and the Pricing Disclosure Package (as amended and supplemented, if the Company shall have filed with the Commission any amendment or supplement thereto) (i) complied and will comply in all material respects with all applicable provisions of the Securities Act and the Rules and Regulations, (ii) contains and will contain all statements of material fact required to be stated therein in accordance with the Securities Act and the Rules and Regulations, and (iii) does not and will not on the Closing Date, contain an any untrue statement of a material fact or omit to state a any material fact required to be stated therein or necessary in order to make the statements therein therein, in the light of the circumstances under which they were made, not misleading. Solely with respect .
(i) At any time during the period described in Section 5(d), if there is any change in the information referred to the Metalmark Selling Stockholders (as defined in Schedule I heretoSection 7(h), such Selling Stockholder is not prompted will immediately notify you of such change.
(j) Each Selling Stockholder (i) has made an independent investment decision with respect to its decision to offer and sell the Shares by any material non-public information relating to of Common Stock set forth opposite its name on Schedule II hereto; (ii) had, at the business, results time of operations or prospects the consummation of the distribution of Common Stock of the Company and its subsidiaries to stockholders of an adverse nature that is required Pittway Corporation pursuant to be disclosed in the Registration StatementCombination Agreement, the Pricing Disclosure Package no plan or the Prospectus. For this purpose, information that is set forth intention to sell or incorporated by reference in the Registration Statement, the Pricing Disclosure Package otherwise dispose of any shares of Common Stock or the Prospectus or that otherwise has been made publicly available about the Company shall be deemed to be public information, and any opinion or conclusion that a Metalmark Selling Stockholder may hold, or analysis performed by a Metalmark Selling Stockholder, in its capacity as an investor about the business, results of operations or prospects other equity security of the Company Company; (iii) has no present plan or intention to acquire shares of Common Stock or any other equity security of the Company; and its subsidiaries shall not be information that relates (iv) other than shares of Common Stock referred to the businessin clause (i) of this paragraph (i), results has no present plan or intention to dispose of operations any shares of Common Stock or prospects any other equity security of the Company.
(ik) Such Selling Stockholder has not taken and will not take, directly or indirectly, any action that is designed to or that has constituted or that could reasonably be expected to cause or result in the stabilization or manipulation of the price of any security of the Company to facilitate the sale or resale of the Shares.
(j) The sale of the Shares by such Selling Stockholder does not violate any of the Company’s internal policies regarding the sale of stock by its affiliates. Any Each certificate signed by any officer or on behalf of any such Selling Stockholder and delivered to the Underwriter Underwriters or counsel for the Underwriter in connection with the offering of the Shares Underwriters shall be deemed to be a representation and warranty by such Selling Stockholder, Stockholder to the Underwriters as to the matters covered thereby, to the Underwriter.
Appears in 1 contract
Representations and Warranties of the Selling Stockholders. Each Selling Stockholder, severally and not jointly, represents represents, warrants and warrants agrees that:
(ai) Neither such the Selling Stockholder nor any person acting on behalf of such the Selling Stockholder (other than, if as applicable, the Company and the UnderwriterUnderwriters) has used or referred to any “free writing prospectus” (as defined in Rule 405), 405 under the Act) relating to the SharesSecurities.
(bii) Such The Selling Stockholder has, and immediately prior to the any Closing Date on which such the Selling Stockholder is selling any Securities, will have good and marketable title to the Shares, such Securities to be sold by the Selling Stockholder will have, good hereunder on such Closing (and valid title to or a valid any “security entitlement” within the meaning of Section 8-501 of the New York Uniform Commercial Code (the “UCC”) in respect ofthereof), the Shares to be sold by such Selling Stockholder hereunder on such Closing Date free and clear of all liens, encumbrances, equities, community property rights, restrictions on transfer or claims except for any liens, encumbrances, equities or claimsclaims arising under the Custody Agreement (as defined below).
(ciii) The Securities to be sold by the Selling Stockholder hereunder are subject to the interest of the Underwriters, and the obligations of the Selling Stockholder hereunder shall not be terminated by any act of the Selling Stockholder, by operation of law or the occurrence of any other event.
(iv) Upon payment for the Shares Securities to be sold by such Selling Stockholder, delivery of such SharesSecurities, as directed by the UnderwriterUnderwriters, to Cede & Co. (“Cede”) or such other nominee as may be designated by The Depository Trust Company (“DTC”), registration of such Shares Securities in the name of Cede or such other nominee and the crediting of such Shares Securities on the books of DTC to securities accounts of the Underwriter Underwriters (assuming that neither i) DTC nor will acquire good and marketable title to the Underwriter has notice Securities free and clear of any adverse claim (within the meaning of Section 8-105 of the UCC) to such Shares)all liens, encumbrances, equities, community property rights, restrictions on transfer or claims, (iii) DTC shall be a “protected purchaser” of such Shares Securities within the meaning of Section 8-303 of the UCC, (iiiii) under Section 8-501 of the UCC, the Underwriter Underwriters will acquire a valid security entitlement in respect of such Shares Securities, and (iiiiv) no an action based on any an “adverse claim,” within the meaning of (as defined in Section 8-102 of the UCC, ) to such Shares securities entitlement, whether framed in conversion, replevin, constructive trust, equitable lien or other theory may not be successfully asserted against the Underwriter Underwriters with respect to such security entitlement. For purposes of this representation, such Selling Stockholder may assume that when such payment, delivery and crediting occur, (Aw) neither DTC nor any Underwriter has notice of any “adverse claim” to such Securities within the meaning of Section 8-105 of the UCC, (x) such Shares Securities will have been registered in the name of Cede or another nominee designated by DTC, in each case on the Company’s share registry in accordance with its certificate of incorporation, bylaws and applicable law, (By) DTC will be registered as a “clearing corporation” within the meaning of Section 8-102 of the UCC UCC, and (Cz) appropriate entries to the accounts of the Underwriter several Underwriters on the records of DTC will have been made pursuant to the UCC.
(dv) Such The Selling Stockholder has placed in custody under a custody agreement (the “Custody Agreement” and, together with all other similar agreements executed by the other Selling Stockholders, the “Custody Agreement”) with American Stock Transfer & Trust Company, LLC, as custodian (the “Custodian”), the Securities to be sold by the Selling Stockholder hereunder.
(vi) The Selling Stockholder has duly and irrevocably executed and delivered a power of attorney (the “Power of Attorney” and, together with all other similar agreements executed by the other Selling Stockholders, the “Powers of Attorney”) appointing Xxxxxxxx X. Xxxxx and Xxxx X. Xxxxxx as attorneys-in-fact and with full authority (exercisable by any one or more of them) to execute and deliver this Agreement and to take such other action as may be necessary or desirable to carry out the provisions hereof on behalf of the Selling Stockholder (with signature guaranteed by a participant in the Securities Transfer Agents Medallion Program, the New York Stock Exchange Medallion Signature Program or the Stock Exchange Medallion Program).
(vii) The Selling Stockholder has full right, power and authority, corporate or otherwise, to enter into this Agreement, the Custody Agreement and the Power of Attorney.
(eviii) This Agreement has been duly and validly authorized, executed and delivered or on behalf of the Selling Stockholder.
(ix) The Power of Attorney and the Custody Agreement have been duly and validly authorized, executed and delivered by or on behalf of such the Selling StockholderStockholder and constitute valid and legally binding obligations of the Selling Stockholder enforceable against the Selling Stockholder in accordance with their respective terms, subject to (i) the effects of bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium and other similar laws relating to or affecting creditors’ rights generally, (ii) general equitable principles (whether considered in a proceeding in equity or at law), and (iii) an implied covenant of good faith and fair dealing.
(fx) The sale of the Securities by the Selling Stockholder, the execution, delivery and performance of this Agreement, the Custody Agreement and the Power of Attorney by such the Selling Stockholder and the consummation by such the Selling Stockholder of the transactions contemplated hereby and thereby 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, any indenture, mortgage, deed of trust, loan agreement, license license, lease or other agreement or instrument to which such the Selling Stockholder is a party or by which such the Selling Stockholder is bound or to which any of the property or assets of such the Selling Stockholder is subject, (ii) result in any violation of the provisions of the charter or by-laws or deed of trust (or similar organizational documents) of such the Selling Stockholder, or (iii) result in any violation of any statute or any judgment, order, decree, rule or regulation of any court or governmental agency or body having jurisdiction over such the Selling Stockholder or the property or assets of such the Selling Stockholder, except in the case of clauses (i) and (iii), for any such conflict, breach, violation or default that would not, individually or in the aggregate, reasonably be expected to have a material adverse effect on the ability of the Selling Stockholder to consummate the transactions contemplated by this Agreement.
(gxi) No consent, approval, authorization or order of, or filing or registration with, any court or governmental agency or body having jurisdiction over such the Selling Stockholder or the property or assets of such the Selling Stockholder is required for the sale of the Securities by the Selling Stockholder, the execution, delivery and performance of this Agreement, the Custody Agreement or the Power of Attorney by such the Selling Stockholder and the consummation by such the Selling Stockholder of the transactions contemplated hereby and thereby, except (A) such as have been or prior to the First Closing Date will be obtained or made, (B) for the registration of the Shares Securities under the Securities Act and such consents, approvals, authorizations, orders, filings, registrations or qualifications as may be required under the Exchange Act and Act, applicable state securities laws and the rules of FINRA in connection with the purchase and sale of the Shares Securities by the UnderwriterUnderwriters, (C) for such that, if not obtained, would not, individually or in the aggregate, reasonably be expected to have a material adverse effect on the ability of the Selling Stockholder to consummate the transactions contemplated by this Agreement and (D) as described in the Registration Statement and the most recent Preliminary Prospectus.
(hxii) All material information with respect to such Selling Stockholder contained in each To the knowledge of the Registration StatementSelling Stockholder, the Prospectus and the Pricing Disclosure Package (Registration Statement did not, as amended and supplemented, if the Company shall have filed with the Commission any amendment or supplement thereto) (i) complied and will comply in all material respects with all applicable provisions of the Securities Act and the Rules and Regulationseffective date, (ii) contains and will contain all statements of material fact required to be stated therein in accordance with the Securities Act and the Rules and Regulations, and (iii) does not and will not contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary in order to make the statements therein not misleading. Solely ; provided that (A) no representation or warranty is made as to information contained in or omitted from the Registration Statement in reliance upon and in conformity with written information furnished to the Company through the Representatives by or on behalf of any Underwriter specifically for inclusion therein, which information is specified in Section 6(f) and (B) the representations and warranties set forth in this paragraph 2(b)(xii) are limited in all respects to statements or omissions made in reliance upon and in conformity with written information relating to the Selling Stockholder furnished to the Company in writing by the Selling Stockholder expressly for use in the Registration Statement, 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 Metalmark Selling Stockholders Stockholder (excluding percentages) which appear in the Registration Statement in the table (and corresponding footnotes) under the caption “Principal and Selling Stockholders” (such information furnished by the Selling Stockholder, the “Selling Stockholder Information”).
(xiii) To the knowledge of the Selling Stockholder, the Prospectus will not, as defined of its date or as of the applicable Closing, contain an untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading; provided that (A) no representation or warranty is made as to information contained in or omitted from the Prospectus in reliance upon and in conformity with written information furnished to the Company through the Representatives by or on behalf of any Underwriter specifically for inclusion therein, which information is specified in Section 6(f) and (B) the representations and warranties set forth in this paragraph 2(b)(xiii) are limited in all respects to statements or omissions made in reliance upon and in conformity with the Selling Stockholder Information.
(xiv) To the knowledge of the Selling Stockholder, the Time of Sale Disclosure Package did not, as of the Time of Sale, contain an untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading; provided that (A) no representation or warranty is made as to information contained in or omitted from the Time of Sale Disclosure Package in reliance upon and in conformity with written information furnished to the Company through the Representatives by or on behalf of any Underwriter specifically for inclusion therein, which information is specified in Section 6(f) and (B) the representations and warranties set forth in this paragraph 2(b)(xiv) are limited in all respects to statements or omissions made in reliance upon and in conformity with the Selling Stockholder Information.
(xv) To the knowledge of the Selling Stockholder, the Time of Sale Disclosure Package, when taken together with each issuer free writing prospectus listed in Schedule I III hereto), such did not, as of the Time of Sale, contain an untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading; provided that (A) no representation or warranty is made as to information contained in or omitted from the Time of Sale Disclosure Package (or any issuer free writing prospectus listed in Schedule III hereto) in reliance upon and in conformity with written information furnished to the Company through the Representatives by or on behalf of any Underwriter specifically for inclusion therein, which information is specified in Section 6(f) and (B) the representations and warranties set forth in this paragraph 2(b)(xv) are limited in all respects to statements or omissions made in reliance upon and in conformity with the Selling Stockholder Information.
(xvi) The Selling Stockholder is not prompted to sell the Shares shares of Common Stock by any material non-public information relating to the business, results of operations or prospects of concerning the Company and its subsidiaries of an adverse nature that is required to be disclosed not set forth in the Registration Statement, the Pricing Time of Sale Disclosure Package or and the Prospectus. For this purpose, information that is set forth or incorporated by reference in the Registration Statement, the Pricing Disclosure Package or the Prospectus or that otherwise has been made publicly available about the Company shall be deemed to be public information, and any opinion or conclusion that a Metalmark Selling Stockholder may hold, or analysis performed by a Metalmark Selling Stockholder, in its capacity as an investor about the business, results of operations or prospects of the Company and its subsidiaries shall not be information that relates to the business, results of operations or prospects of the Company.
(ixvii) Such The Selling Stockholder has not taken and will not taketaken, directly or indirectly, any action that is designed to or that has constituted or that could would reasonably be expected to cause or result in the stabilization or manipulation of the price of any security of the Company to facilitate the sale or resale of the Shares.
(j) The sale of the Shares by such Selling Stockholder does not violate any of the Company’s internal policies regarding the sale of stock by its affiliates. Any certificate signed by any officer of any Selling Stockholder and delivered to the Underwriter or counsel for the Underwriter in connection with the offering the shares of the Shares shall be deemed a Securities, provided that the Selling Stockholder does not make any representation and or warranty by such Selling Stockholder, as to matters covered thereby, to under this Section 2(b)(xvii) regarding the Underwriteractivities of the Company or the Underwriters.
Appears in 1 contract
Samples: Underwriting Agreement (Pfenex Inc.)
Representations and Warranties of the Selling Stockholders. Each Selling Stockholder, severally and severally, but not jointly, represents represents, warrants and warrants thatcovenants to each Underwriter as follows:
(a) Neither such Selling Stockholder nor any person acting on behalf of such Selling Stockholder (other than, if applicable, the Company and the Underwriter) has used or referred to any “free writing prospectus” (as defined in Rule 405), relating to the Shares.
(b) Such Selling Stockholder has, and immediately prior to the Closing Date on which such Selling Stockholder is selling the Shares, such 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 (the “UCC”) in respect of, the Shares to be sold by such Selling Stockholder hereunder on such Closing Date free and clear of all liens, encumbrances, equities or claims.
(c) Upon payment for the Shares to be sold by such Selling Stockholder, delivery of such Shares, as directed by the Underwriter, to Cede & Co. (“Cede”) or such other nominee as may be designated by The Depository Trust Company (“DTC”), registration of such Shares in the name of Cede or such other nominee and the crediting of such Shares on the books of DTC to securities accounts of the Underwriter (assuming that neither DTC nor the Underwriter has notice of any adverse claim (within the meaning of Section 8-105 of the UCC) to such Shares), (i) DTC shall be a “protected purchaser” of such Shares within the meaning of Section 8-303 of the UCC, (ii) under Section 8-501 of the UCC, the Underwriter will acquire a valid security entitlement in respect of such Shares and (iii) no action based on any “adverse claim,” within the meaning of Section 8-102 of the UCC, to such Shares may be asserted against the Underwriter with respect to such security entitlement. For purposes of this representation, such Selling Stockholder may assume that when such payment, delivery and crediting occur, (A) such Shares will have been registered in the name of Cede or another nominee designated by DTC, in each case on the Company’s share registry in accordance with its certificate of incorporation, bylaws and applicable law, (B) DTC will be registered as a “clearing corporation” within the meaning of Section 8-102 of the UCC and (C) appropriate entries to the accounts of the Underwriter on the records of DTC will have been made pursuant to the UCC.
(d) Such Selling Stockholder has full right, power and authority, corporate or otherwise, to enter into this Agreement.
(e) This Agreement has been duly and validly authorized, executed and delivered by or on behalf of such Selling Stockholder and is a valid and binding agreement of such Selling Stockholder, enforceable in accordance with its terms, except as rights to indemnification hereunder may be limited by applicable law and except as the enforcement hereof may be limited by bankruptcy, insolvency, reorganization, moratorium or other similar laws relating to or affecting the rights and remedies of creditors or by general equitable principles.
(fb) The executionEach of the (i) Custody Agreement signed by or on behalf of such Selling Stockholder and , delivery as custodian (the “Custodian”), relating to the deposit of the Shares to be sold by such Selling Stockholder (the “Custody Agreement”) and performance (ii) Power of this Agreement Attorney appointing certain individuals named therein as such Selling Stockholder’s attorneys-in-fact (each, an “Attorney-in-Fact”) to the extent set forth therein relating to the transactions contemplated hereby and by the Prospectus (the “Power of Attorney”), of such Selling Stockholder has been duly authorized, executed and delivered by such Selling Stockholder and is a valid and binding agreement of such Selling Stockholder, enforceable in accordance with its terms, except as rights to indemnification thereunder may be limited by applicable law and except as the consummation enforcement thereof may be limited by bankruptcy, insolvency, reorganization, moratorium or other similar laws relating to or affecting the rights and remedies of creditors or by general equitable principles.
(c) Such Selling Stockholder has, and on the Closing Date will have, good and valid title to all of the Shares which may be sold by such Selling Stockholder pursuant to this Agreement on such date and the legal right and power, and all authorizations and approvals required by law and under its charter or by-laws, partnership agreement, trust agreement or other organizational documents to enter into this Agreement and its Custody Agreement and Power of Attorney, to sell, transfer and deliver all of the Shares which may be sold by such Selling Stockholder pursuant to this Agreement and to comply with its other obligations hereunder and thereunder.
(d) Delivery of and payment for the Shares which are sold by such Selling Stockholder pursuant to this Agreement will pass good and valid title to such Shares, free and clear of any security interest, mortgage, pledge, lien, encumbrance or other claim.
(e) The execution and delivery by such Selling Stockholder of, and the performance by such Selling Stockholder of its obligations under, this Agreement, the transactions contemplated hereby Custody Agreement and thereby do not and the Power of Attorney will not (i) conflict with or with, result in a breach or violation of any of the terms or provisions of, or constitute a default under, or require the consent of any indentureother party to, mortgagethe charter or by-laws, deed of trust, loan partnership agreement, license trust agreement or other organizational documents of such Selling Stockholder or any other agreement or instrument to which such Selling Stockholder is a party or by which it is bound or under which it is entitled to any right or benefit, any provision of applicable law or any judgment, order, decree or regulation applicable to such Selling Stockholder is bound or to which any of the property or assets of such Selling Stockholder is subject, (ii) result in any violation of the provisions of the charter or by-laws or deed of trust (or similar organizational documents) of such Selling Stockholder, or (iii) result in any violation of any statute court, regulatory body, administrative agency, governmental body or any order, rule or regulation of any court or governmental agency or body arbitrator having jurisdiction over such Selling Stockholder or the property or assets of such Selling Stockholder.
(g) . No consent, approval, authorization or other order of, or registration or filing or registration with, any court or other governmental agency authority or body having jurisdiction over such Selling Stockholder or the property or assets of such Selling Stockholder agency, is required for the execution, delivery and performance of this Agreement by such Selling Stockholder and the consummation by such Selling Stockholder of the transactions contemplated hereby in this Agreement, except such as have been obtained by the Company or made and therebyare in full force and effect under the Securities Act, applicable state securities or blue sky laws and from the NASD.
(f) 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 the offering contemplated by this Agreement, except for such rights as are described in the Prospectus under “Shares Eligible for Future Sale.”
(g) Except for waiver by certain other holders of Common Stock of certain registration of the Shares under the Securities Act and such consentsrights which waivers have been obtained, approvalsno consent, authorizations, registrations approval or qualifications as may be waiver is required under the Exchange Act and applicable state securities laws any instrument or agreement to which such Selling Stockholder is a party or by which it is bound or under which it is entitled to any right or benefit, in connection with the offering, sale or purchase and sale by the Underwriters of any of the Shares which may be sold by such Selling Stockholder under this Agreement or the Underwriterconsummation by such Selling Stockholder of any of the other transactions contemplated hereby.
(h) All material information furnished by or with respect to the approval of such Selling Stockholder contained in each of writing expressly for use in the Registration StatementStatement and Prospectus is, and on the Prospectus Firm Shares Closing Date and the Pricing Disclosure Package (as amended Option Shares Closing Date will be, true, correct, and supplemented, if the Company shall have filed with the Commission any amendment or supplement thereto) (i) complied and will comply complete in all material respects with all applicable provisions of respects, and does not, and on the Securities Act Firm Shares Closing Date and the Rules and RegulationsOption Shares Closing Date will not, (ii) contains and will contain all statements of material fact required to be stated therein in accordance with the Securities Act and the Rules and Regulations, and (iii) does not and will not contain an any untrue statement of a material fact or omit to state a any material fact required to be stated therein or necessary in order to make the statements therein such information not misleading. Solely with respect Such Selling Stockholder confirms as accurate the number of shares of Common Stock set forth opposite such Selling Stockholder’s name in the Prospectus under the caption “Principal and Selling Stockholders” (both prior to and after giving effect to the Metalmark Selling Stockholders (as defined in Schedule I hereto), such Selling Stockholder is not prompted to sell the Shares by any material non-public information relating to the business, results of operations or prospects sale of the Company and its subsidiaries of an adverse nature that is required to be disclosed in the Registration Statement, the Pricing Disclosure Package or the Prospectus. For this purpose, information that is set forth or incorporated by reference in the Registration Statement, the Pricing Disclosure Package or the Prospectus or that otherwise has been made publicly available about the Company shall be deemed to be public information, and any opinion or conclusion that a Metalmark Selling Stockholder may hold, or analysis performed by a Metalmark Selling Stockholder, in its capacity as an investor about the business, results of operations or prospects of the Company and its subsidiaries shall not be information that relates to the business, results of operations or prospects of the CompanyFirm Shares).
(i) Such Selling Stockholder has not taken and will not take, directly or indirectly, any action that is designed to or that has constituted or that could might be reasonably be expected to cause or result in the stabilization or manipulation of the price of any security of the Company Common Stock to facilitate the sale or resale of the Shares.
(j) The sale Nothing has come to the attention of the Shares by such Selling Stockholder does not violate any that has caused such Selling Stockholder to believe that the representations and warranties of the Company’s internal policies regarding Company contained in Section 2 hereof are not true and correct, and such Selling Stockholder has reviewed the sale Registration Statement and the Prospectus and has no knowledge of stock any material fact, condition or information not disclosed in the Registration Statement or the Prospectus which has had or which could reasonably be expected to have a Material Adverse Effect and is not prompted to sell shares of Common Stock by its affiliatesany information concerning the Company which is not set forth in the Registration Statement and the Prospectus. Any certificate signed by any officer or on behalf of any Selling Stockholder and delivered to the Underwriter Representatives or to counsel for the Underwriter in connection with the offering of the Shares Underwriters shall be deemed to be a representation and warranty by such Selling Stockholder, Stockholder to each Underwriter as to the matters covered thereby. Such Selling Stockholder acknowledges that the Underwriters and, for purposes of the opinions to be delivered pursuant to Section 4 hereof, counsel to the UnderwriterCompany, counsel to the Underwriters, and counsel to the Selling Stockholders will rely upon the accuracy and truthfulness of the foregoing representations and hereby consents to such reliance.
Appears in 1 contract
Representations and Warranties of the Selling Stockholders. Each Selling Stockholder, severally jointly and not jointlyseverally, represents and warrants thatto, and agrees with, the several Underwriters as follows:
(a) Neither such Selling Stockholder nor any person acting on behalf As of such Selling Stockholder (other than, if applicable, the Company and the Underwriter) has used or referred to any “free writing prospectus” (as defined in Rule 405), relating to the Shares.
(b) Such Selling Stockholder has, and immediately prior to the Closing Date on which such Selling Stockholder is selling the SharesFirst Delivery Date, such Selling Stockholder will havebe the sole record and beneficial owner of the Securities to be sold by such Selling Stockholder under this Agreement, good free and valid title to or a valid “security entitlement” clear of all adverse claims (within the meaning of Section 8-501 102 of the New York UCC (as defined below)), except for those arising under this Agreement; and upon delivery of and payment for such Securities hereunder in accordance with the provisions of Section 3(d) hereof, the several Underwriters will acquire a security entitlement (as that term is defined in the Uniform Commercial Code as in effect in the State of New York (the “New York UCC”) in with respect ofto the Securities, and no action based on an adverse claim (as that term is defined under the Shares New York UCC) to be sold by such Selling Stockholder hereunder on such Closing Date free and clear of all liens, encumbrances, equities or claims.
(c) Upon payment for the Shares to be sold by such Selling Stockholder, delivery of such Shares, as directed by the Underwriter, to Cede & Co. (“Cede”) or such other nominee as Securities 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 asserted against any of the Underwriters, provided, that each such Underwriter (assuming that neither DTC nor the Underwriter has does not have notice of any adverse claim (within the meaning of Section 8-105 of the New York UCC) ). Such Selling Stockholder is selling the Securities to such Shares), (i) DTC shall be a “protected purchaser” of such Shares within the meaning of Section 8-303 of the UCC, (ii) under Section 8-501 of the UCC, the Underwriter will acquire a valid security entitlement in respect of such Shares and (iii) no action based on any “adverse claim,” within the meaning of Section 8-102 of the UCC, to such Shares may be asserted against the Underwriter with respect to such security entitlement. For purposes of this representation, sold by such Selling Stockholder may assume that when for such paymentSelling Stockholder’s own account and is not selling such Securities, delivery directly or indirectly, for the benefit of the Company, and crediting occurno part of the proceeds of such sale received by such Selling Stockholder will inure, (A) such Shares will have been registered in either directly or indirectly, to the name benefit of Cede or another nominee designated by DTC, the Company other than as described in each case on the Company’s share registry in accordance with its certificate of incorporation, bylaws and applicable law, (B) DTC will be registered as a “clearing corporation” within the meaning of Section 8-102 of the UCC Registration Statement, the most recent Preliminary Prospectus and the Prospectus.
(Cb) appropriate entries Such Selling Stockholder has the power and authority to enter into, and has duly authorized, executed and delivered, a Stock Custody Agreement (the accounts “Custody Agreement”), which Custody Agreement is a valid and binding obligation of such Selling Stockholder, to Meadowbrook Insurance Group, Inc., as Custodian (the Underwriter on the records of DTC will have been made “Custodian”); pursuant to the UCCCustody Agreement the Selling Stockholder has placed in custody with the Custodian, for delivery under this Agreement, the certificates in negotiable form representing the Securities to be sold by such Selling Stockholder; such certificates represent validly issued, outstanding, fully paid and nonassessable shares of Common Stock; and, as of the First Delivery Date, such certificates will be duly and properly endorsed in blank for transfer, or will be accompanied by all documents duly and properly executed that are necessary to validate the transfer of title thereto, to the Underwriters, free of any legend, restriction on transferability, proxy, lien or claim, whatsoever.
(c) Such Selling Stockholder has the power and authority to enter into, and has duly authorized, executed and delivered to Rxxxxx X. Xxxxxx, Mxxxxxx X. Xxxxxxxx and Kxxxx X. Xxxxx, each as attorney-in-fact (the “Attorneys-in-Fact”), an irrevocable power of attorney (the “Power of Attorney”) authorizing and directing the Attorneys-in-Fact to effect the sale and delivery of the Securities being sold by such Selling Stockholder, to enter into this Agreement and to take all such other action as may be necessary hereunder.
(d) Such Selling Stockholder has full right, power Each of the Custody Agreement and authority, corporate or otherwise, to enter into this Agreement.
(e) This Agreement has the Power of Attorney have been duly and validly authorized, executed and delivered by or on behalf of such Selling Stockholder and constitutes a valid and binding agreement of such Selling Stockholder, enforceable against such Selling Stockholder in accordance with its terms, except as enforceability thereof may be limited by bankruptcy, insolvency, reorganization, moratorium or similar laws affecting enforcement of creditors’ rights or by general equitable principles (regardless of whether such enforceability is considered in a proceeding in equity or at law).
(e) Such Selling Stockholder has the power and authority to enter into this Agreement and to sell, transfer and deliver the Securities to be sold by such Selling Stockholder pursuant to this Agreement.
(f) The executionThis Agreement has been duly authorized, delivery executed and performance delivered by or on behalf of this Agreement by such Selling Stockholder and the consummation constitutes a valid and binding agreement of such Selling Stockholder, enforceable against such Selling Stockholder in accordance with its terms, except as rights to indemnity hereunder may be limited by federal or state securities laws and except as enforceability hereof may be limited by bankruptcy, insolvency, reorganization, moratorium or similar laws affecting enforcement of creditors’ rights or by general equitable principles (regardless of whether such enforceability is considered in a proceeding in equity or at law).
(g) The execution and delivery by such Selling Stockholder of this Agreement, the Custody Agreement, the Power of Attorney and the performance of the terms hereof and thereof and the consummation of the transactions herein and therein contemplated hereby and thereby do not and will not (i) conflict with or result in (A) a breach or violation of any of the terms or and provisions of, impose any lien, charge or encumbrance upon any property or assets of such Selling Stockholder, or constitute a default underunder any, any indenture, mortgage, deed of trust, loan agreement, license or other agreement or instrument to which such Selling Stockholder is a party or by which such Selling Stockholder is bound or to which any of the property or assets of such Selling Stockholder is subject, (ii) result in any violation of the provisions of the charter or by-laws or deed of trust (or similar organizational documents) of such Selling Stockholderbound, or (iii) result in any violation of any statute federal, state, local or foreign law, regulation or rule or any orderdecree, rule judgment or regulation of any court or governmental agency or body having jurisdiction over order applicable to such Selling Stockholder or (B) the creation or imposition of any lien, charge, claim or encumbrance upon any property or assets of such Selling Stockholder.
(gh) No consent, approval, authorization or order of, or filing or registration with, any court or any federal, state or local governmental agency or regulatory commission or body having jurisdiction over such Selling Stockholder or the property or assets of such Selling Stockholder is required for the execution, delivery and performance of this Agreement by such Selling Stockholder of this Agreement, the Custody Agreement and the Power of Attorney or for the consummation by such Selling Stockholder of the transactions contemplated hereby and thereby, except for including the registration sale of the Shares Securities being sold by such Selling Stockholder, except such as (i) has been obtained or made under the Securities Act and such consents, approvals, authorizations, registrations or qualifications the Exchange Act or as may be required under the Exchange Act and applicable by state securities or “blue sky” laws or (ii) may be required by the bylaws and rules of the NASD.
(i) Such Selling Stockholder has not distributed and will not distribute any prospectus or other offering material in connection with the purchase offering and sale of the Shares by Securities other than any Preliminary Prospectus or the UnderwriterProspectus. Neither such Selling Stockholder nor any person acting on behalf of such Selling Stockholder (other than, if applicable, the Company and the Underwriters) has used or referred to any “free writing prospectus” (as defined in Rule 405 of the Securities Act Regulations) relating to the Securities.
(hj) All material information with respect to such Selling Stockholder contained Other than as contemplated by this Agreement and except as disclosed in each of the Registration Statement, the most recent Preliminary Prospectus and the Pricing Disclosure Package (Prospectus, there is no broker, finder or other party that is entitled to receive from such Selling Stockholder any brokerage or finder’s fee or any other fee, commission or payment as amended and supplemented, if the Company shall have filed with the Commission any amendment or supplement thereto) (i) complied and will comply in all material respects with all applicable provisions a result of the Securities Act and transactions contemplated by this Agreement.
(k) To the Rules and Regulationsknowledge of such Selling Stockholder, (ii) contains and will contain all statements the Registration Statement did not, as of material fact required to be stated therein in accordance with the Securities Act and the Rules and RegulationsEffective Date, and (iii) does not and will not contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary in order to make the statements therein not misleading. Solely ; provided, that no representation or warranty is made as to information contained in or omitted from the Registration Statement in reliance upon and in conformity with respect written information furnished to the Metalmark Company through the Representative by or on behalf of any Underwriter specifically for inclusion therein, which information is specified in Section 8(f).
(l) To the knowledge of such Selling Stockholders Stockholder, the Exchange Act Reports did not, as of their respective dates, and will not on the First Delivery Date, contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading.
(m) To the knowledge of such Selling Stockholder, the Prospectus will not, as defined of its date and on the First Delivery Date, contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in Schedule I heretothe light of the circumstances under which they were made, not misleading; provided, that no representation or warranty is made as to information contained in or omitted from the Prospectus in reliance upon and in conformity with written information furnished to the Company through the Representative by or on behalf of any Underwriter specifically for inclusion therein, which information is specified in Section 8(f).
(n) To the knowledge of such Selling Stockholder, such the Pricing Disclosure Package did not, as of the Applicable Time, contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading, provided, that no representation or warranty is made as to information contained in or omitted from the Pricing Disclosure Package in reliance upon and in conformity with written information furnished to the Company through the Representative by or on behalf of any Underwriter specifically for inclusion therein, which information is specified in Section 8(f).
(o) Such Selling Stockholder is not prompted to sell the Shares Securities by any material non-public information relating to the business, results of operations or prospects of concerning the Company and its subsidiaries of an adverse nature that is required to be disclosed not set forth in the Registration Statement, the Pricing Disclosure Package or most recent Preliminary Prospectus and the Prospectus. For this purpose, information that is set forth or incorporated by reference in the Registration Statement, the Pricing Disclosure Package or the Prospectus or that otherwise has been made publicly available about the Company shall be deemed to be public information, and any opinion or conclusion that a Metalmark Selling Stockholder may hold, or analysis performed by a Metalmark Selling Stockholder, in its capacity as an investor about the business, results of operations or prospects of the Company and its subsidiaries shall not be information that relates to the business, results of operations or prospects of the Company.
(ip) Such Selling Stockholder has not taken and will not take, directly or indirectly, any action that is designed to or that has constituted or that could would reasonably be expected to cause or result in the stabilization or manipulation of the price of any security of the Company to facilitate the sale or resale of the SharesSecurities.
(jq) The sale of the Shares Securities by such the Selling Stockholder does not violate any of the Company’s internal policies regarding the sale of stock by its affiliates.
(r) Such Selling Stockholder has not relied upon the Representative or legal counsel for the Underwriters for any legal, tax or accounting advice in connection with the offering and sale of the Securities.
(s) 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 the offering contemplated by this Agreement, except for such rights as are described in both the Preliminary Prospectus and the Prospectus under the captions “Selling Shareholders” (in the base prospectus) and “Selling and Principal Shareholders” (in the prospectus supplement).
(t) Such Selling Stockholder does not have, or has waived prior to the date hereof, any preemptive right, co-sale right or right of first refusal or other similar right to purchase any of the Securities that are to be sold by the Company or any of the other Selling Stockholders to the Underwriters pursuant to this Agreement.
(u) As of the First Delivery Date, all stock transfer or other taxes (other than income taxes) that are required to be paid in connection with the sale and transfer of the Securities to be sold by such Selling Stockholder to the Underwriters hereunder will have been fully paid or provided for by such Selling Stockholder and all laws imposing such taxes will have been fully complied with. Any certificate signed by a Selling Stockholder (if such Selling Stockholder is a natural person) or any officer of any Selling Stockholder (if such Selling Stockholder is an entity) and delivered to the Underwriter Representative or counsel for the Underwriter Underwriters in connection with the offering of the Shares Securities shall be deemed a representation and warranty by such Selling Stockholder, as to matters covered thereby, to the each Underwriter.
Appears in 1 contract
Samples: Underwriting Agreement (Meadowbrook Insurance Group Inc)
Representations and Warranties of the Selling Stockholders. Each Selling StockholderStockholder represents and warrants to, and agrees with, each of the several Underwriters, severally and not jointly, represents and warrants that:
(a) Neither Such Selling Stockholder has full power to enter into this Agreement and to sell, assign, transfer and deliver to the Underwriters the Securities to be sold by such Selling Stockholder nor any person acting on behalf hereunder in accordance with the terms of this Agreement; and this Agreement has been duly executed and delivered by such Selling Stockholder, and is the valid and binding agreement of such Selling Stockholder, enforceable against each such Selling Stockholder (other than, if applicable, the Company and the Underwriter) has used or referred to any “free writing prospectus” (as defined in Rule 405), relating to the Sharesaccordance with its terms.
(b) Such Selling Stockholder hashas duly executed and delivered a power of attorney and custody agreement (with respect to such Selling Stockholder, the "Power-of-Attorney" and immediately prior the "Custody Agreement", respectively), each in the form heretofore delivered to the Closing Date Representatives, appointing Jamex X. Xxxxxxxx xxx R. Sxxxxx Xxxmxx xx such Selling Stockholder's attorney-in-fact (the "Attorney-in-Fact") with authority to execute, deliver and perform this Agreement on which behalf of such Selling Stockholder is selling the Sharesand appointing Hutcxxxx, such Selling Stockholder will haveXxeexxx & Xittxxx, good and valid title to or a valid “security entitlement” within the meaning of Section 8-501 of the New York Uniform Commercial Code X Professional Corporation, as custodian thereunder (the “UCC”) "Custodian"). Certificates in respect ofnegotiable form, endorsed in blank or accompanied by blank stock powers duly executed, with signatures appropriately guaranteed, representing the Shares Securities to be sold by such Selling Stockholder hereunder have been deposited with the Custodian pursuant to the Custody Agreement for the purpose of delivery pursuant to this Agreement. Such Selling Stockholder has full power to enter into the Custody Agreement and the Power-of-Attorney and to perform its obligations under the Custody Agreement. If such Selling Stockholder is a corporation, the execution and delivery of the Custody Agreement and the Power-of-Attorney have been duly authorized by all necessary corporate action of such Selling Stockholder; the Custody Agreement and the Power-of-Attorney have been duly executed and delivered by such Selling Stockholder and, assuming due authorization, execution and delivery by the Custodian, are the legal, valid, binding and enforceable instruments of such Selling Stockholder. Such Selling Stockholder agrees that each of the Securities represented by the certificates on deposit with the Custodian is subject to the interests of the Underwriters hereunder, that the arrangements made for such Closing Date free custody, the appointment of the Attorney-in-Fact and clear the right, power and authority of all liensthe Attorney-in-Fact to execute and deliver this Agreement, encumbrancesto agree on the price at which the Securities (including such Selling Stockholder's Securities) are to be sold to the Underwriters, equities and to carry out the terms of this Agreement, are to that extent irrevocable and that the obligations of such Selling Stockholder hereunder shall not be terminated, except as provided in this Agreement or claimsthe Custody Agreement, by any act of such Selling Stockholder, by operation of law or otherwise, whether in the case of any individual Selling Stockholder by the death or incapacity of such Selling Stockholder, in the case of a trust or estate by the death of the trustee or trustees or the executor or executors or the termination of such trust or estate, or in the case of a corporate or partnership Selling Stockholder by its liquidation or dissolution or by the occurrence of any other event. If any individual Selling Stockholder, trustee or executor should die or become incapacitated or any such trust should be terminated, or if any corporate or partnership Selling Stockholder shall liquidate or dissolve, or if any other event should occur, before the delivery of such Securities hereunder, the certificates for such Securities deposited with the Custodian shall be delivered by the Custodian in accordance with the respective terms and conditions of this Agreement as if such death, incapacity, termination, liquidation or dissolution or other event had not occurred, regardless of whether or not the Custodian or the Attorney-in-Fact shall have received notice thereof.
(c) Upon payment for Such Selling Stockholder is the Shares lawful owner of the Securities to be sold by such Selling StockholderStockholder hereunder and upon sale and delivery of, delivery of and payment for, such SharesSecurities, as directed by the Underwriter, to Cede & Co. (“Cede”) or such other nominee as may be designated by The Depository Trust Company (“DTC”), registration of such Shares in the name of Cede or such other nominee and the crediting of such Shares on the books of DTC to securities accounts of the Underwriter (assuming that neither DTC nor the Underwriter has notice of any adverse claim (within the meaning of Section 8-105 of the UCC) to such Shares), (i) DTC shall be a “protected purchaser” of such Shares within the meaning of Section 8-303 of the UCC, (ii) under Section 8-501 of the UCC, the Underwriter will acquire a valid security entitlement in respect of such Shares and (iii) no action based on any “adverse claim,” within the meaning of Section 8-102 of the UCC, to such Shares may be asserted against the Underwriter with respect to such security entitlement. For purposes of this representationprovided herein, such Selling Stockholder will convey good and marketable title to such Securities, free and clear of any security interests, liens, encumbrances, equities, claims or other defects. Such Selling Stockholder has obtained all authorizations and approvals required by law and under its charter or bylaws, partnership agreement, trust agreement or other organizational documents, as the case may assume that when be, to enter this Agreement, such paymentSelling Stockholder's Power of Attorney and Custody Agreement, delivery to sell, transfer and crediting occur, (A) such Shares will have been registered in the name of Cede or another nominee designated by DTC, in each case on the Company’s share registry in accordance with its certificate of incorporation, bylaws and applicable law, (B) DTC will be registered as a “clearing corporation” within the meaning of Section 8-102 deliver all of the UCC and (C) appropriate entries to the accounts shares of the Underwriter on the records of DTC will have been made Common Stock which may be sold by such Selling stockholder pursuant to the UCCthis Agreement; and to comply with other obligations hereunder and thereunder.
(d) Such Selling Stockholder has full right, power and authority, corporate or otherwise, to enter into this Agreement.
(e) This Agreement has been duly and validly authorized, executed and delivered by or on behalf of such Selling Stockholder.
(f) The execution, delivery and performance of this Agreement by such Selling Stockholder and the consummation by such Selling Stockholder of the transactions contemplated hereby and thereby 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, any indenture, mortgage, deed of trust, loan agreement, license or other agreement or instrument to which such Selling Stockholder is a party or by which such Selling Stockholder is bound or to which any of the property or assets of such Selling Stockholder is subject, (ii) result in any violation of the provisions of the charter or by-laws or deed of trust (or similar organizational documents) of such Selling Stockholder, or (iii) result in any violation of any statute or any order, rule or regulation of any court or governmental agency or body having jurisdiction over such Selling Stockholder or the property or assets of such Selling Stockholder.
(g) No consent, approval, authorization or order of, or filing or registration with, any court or governmental agency or body having jurisdiction over such Selling Stockholder or the property or assets of such Selling Stockholder is required for the execution, delivery and performance of this Agreement by such Selling Stockholder and the consummation by such Selling Stockholder of the transactions contemplated hereby and thereby, except for the registration of the Shares under the Securities Act and such consents, approvals, authorizations, registrations or qualifications as may be required under the Exchange Act and applicable state securities laws in connection with the purchase and sale of the Shares by the Underwriter.
(h) All material information with respect to such Selling Stockholder contained in each of the Registration Statement, the Prospectus and the Pricing Disclosure Package (as amended and supplemented, if the Company shall have filed with the Commission any amendment or supplement thereto) (i) complied and will comply in all material respects with all applicable provisions of the Securities Act and the Rules and Regulations, (ii) contains and will contain all statements of material fact required to be stated therein in accordance with the Securities Act and the Rules and Regulations, and (iii) does not and will not contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary in order to make the statements therein not misleading. Solely with respect to the Metalmark Selling Stockholders (as defined in Schedule I hereto), such Selling Stockholder is not prompted to sell the Shares by any material non-public information relating to the business, results of operations or prospects of the Company and its subsidiaries of an adverse nature that is required to be disclosed in the Registration Statement, the Pricing Disclosure Package or the Prospectus. For this purpose, information that is set forth or incorporated by reference in the Registration Statement, the Pricing Disclosure Package or the Prospectus or that otherwise has been made publicly available about the Company shall be deemed to be public information, and any opinion or conclusion that a Metalmark Selling Stockholder may hold, or analysis performed by a Metalmark Selling Stockholder, in its capacity as an investor about the business, results of operations or prospects of the Company and its subsidiaries shall not be information that relates to the business, results of operations or prospects of the Company.
(i) Such Selling Stockholder has not taken and will not takenot, directly or indirectly, (i) taken any action that is designed to cause or result in, or that has constituted or that could which might reasonably be expected to cause or result in constitute, the stabilization or manipulation of the price of any security of the Company to facilitate the sale or resale of the SharesSecurities or (ii) since the filing of the Registration Statement (A) sold, bid for, purchased, or paid anyone any compensation for soliciting purchases of, the Securities or (B) paid or agreed to pay to any person any compensation for soliciting another to purchase any other securities of the Company (except for the sale of Securities by the Selling Stockholders under this Agreement).
(je) To the extent that any statements or omissions are made in the Registration Statement, any Preliminary Prospectus, the Prospectus or any amendment or supplement thereto in reliance upon and in conformity with written information furnished to the Company by such Selling Stockholder specifically for use therein, such Preliminary Prospectus did, and the Registration Statement and the Prospectus and any amendments or supplements thereto, when they become effective or are filed with the Commission, as the case may be, will conform in all material respects to the requirements of the Act and the respective rules and regulations of the Commission thereunder and will not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they are made, not misleading. Such Selling Stockholder has reviewed the Prospectus (or, if the Prospectus is not in existence, the most recent Preliminary Prospectus) and the Registration Statement, and the information regarding such Selling Stockholder set forth therein under the caption "Principal and Selling Stockholders" is complete and accurate.
(f) The sale by such Selling Stockholder of Securities pursuant hereto is not prompted by any adverse information known to such Selling Stockholder concerning the Company that is not set forth in the Registration Statement or the Prospectus (or, if the Prospectus is not in existence, the most recent Preliminary Prospectus).
(g) The sale of the Shares Securities to the Underwriters by such Selling Stockholder does pursuant to this Agreement, the compliance by such Selling Stockholder with the other provisions of this Agreement, the Power of Attorney, the Custody Agreement and the consummation of the other transactions herein contemplated do not violate (i) require the consent, approval, authorization, registration or qualification of or with any governmental authority, except such as have been obtained, such as may be required under state securities or blue sky laws and, if the registration statement filed with respect to the Securities (as amended) is not effective under the Act as of the time of execution hereof, such as may be required (and shall be obtained as provided in this Agreement) under the Act, or (ii) conflict with or result in a breach or violation of any of the Company’s internal policies regarding terms and provisions of, or constitute a default under any indenture, mortgage, deed of trust, lease or other agreement or instrument to which such Selling Stockholder or, if applicable, to which such Selling Stockholder or any of its subsidiaries is a party or by which such Selling Stockholder or, if applicable, by which such Selling Stockholder or any of its subsidiaries or any of such Selling Stockholder's properties are bound, or the sale charter documents or by-laws of stock by such Selling Stockholder or any statute or any judgment, decree, order, rule or regulation of any court or other governmental authority or any arbitrator applicable to such Selling Stockholder or, if applicable, to such Selling Stockholder or any of its affiliates. Any subsidiaries.
(h) Each certificate signed by such Selling Stockholder or any officer of any such Selling Stockholder and delivered to the Underwriter Representatives or counsel for the Underwriter in connection with the offering of the Shares Underwriters shall be deemed to be a representation and warranty by such Selling Stockholder, Stockholder to each Underwriter as to the matters covered thereby, to the Underwriter.
Appears in 1 contract
Samples: Underwriting Agreement (Mercury Computer Systems Inc)
Representations and Warranties of the Selling Stockholders. Each of the Selling StockholderStockholders, severally individually with respect to itself only and not jointlyjointly and severally, represents represent and warrants warrant and agree with each of the Underwriters that:
(a) Neither such Selling Stockholder nor any person acting This Agreement has been duly authorized, executed and delivered by or on behalf of such each of the Selling Stockholder (other than, if applicable, Stockholders. All necessary action has been taken by each of the Company Selling Stockholders to authorize the execution and delivery of this Agreement and the Underwriter) has used or referred to any “free writing prospectus” (as defined in Rule 405), relating to the Sharestransactions contemplated hereby.
(b) Such Each of the Shareholder Documents has been duly authorized by each of the Selling Stockholder hasStockholders and, at or before the Closing Date, will have been duly executed and delivered by each of the Selling Stockholders and, assuming the due authorization, execution and delivery by the other parties thereto, each will be a valid and binding obligation of each of the Selling Stockholders, enforceable against each such party in accordance with its terms, except, with respect to each Shareholder Document, as the enforceability thereof may be limited by (i) applicable bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium or similar laws from time to time in effect affecting creditors’ rights and remedies generally, and immediately prior to (ii) general principles of equity (regardless of whether such principles are considered in a proceeding in equity or at law).
(c) On the Closing Date on which such Selling Stockholder is selling the SharesDate, such Selling Stockholder will have, good and valid title to or a valid “security entitlement” within the meaning of Section 8-501 each of the New York Uniform Commercial Code (Selling Stockholders will be the “UCC”) in respect of, record and beneficial owner of the Secondary Shares and Additional Shares to be sold by such Selling Stockholder hereunder on such Closing Date it hereunder, free and clear of all security interests, claims, liens, encumbrances, equities or claimsother encumbrances and will have full power and authority to enter into this Agreement and to sell its interest in such Shares.
(cd) Upon payment for the Secondary Shares and Additional Shares to be sold by such each of the Selling Stockholder, Stockholders pursuant to this Agreement and delivery of such Secondary Shares and Additional Shares, as directed by the UnderwriterUnderwriters, to Cede & Co. (“Cede”) or such other nominee as may be designated by The Depository Trust Company (“DTC”), registration of such Shares in the name of Cede or such other nominee and the crediting of such Shares on the books of DTC Underwriters pursuant to securities accounts of the Underwriter this Agreement (assuming that neither DTC nor the no such Underwriter has notice of any adverse claim (within the meaning of Section 8-105 of the New York Uniform Commercial Code (the “UCC”) or Section 18 of the Securities Transfer Act (British Columbia) (the “STA”), to such Secondary Shares and Additional Shares)), (iA) DTC shall be under section 8-501 of the UCC and Section 95 of the STA, each Underwriter that has purchased such Secondary Shares and Additional Shares by making payment therefor as provided herein, and that has had such Secondary Shares and Additional Shares credited to the securities account or accounts of such Underwriter maintained with the The Canadian Depository for Securities Limited, The Depository Trust Company or such other securities intermediary will have acquired a “protected purchasersecurity entitlement” of such Shares (within the meaning of Section 8-303 102(a)(17) of the UCC, (iiUCC and Section 1(1) under Section 8-501 of the UCC, the Underwriter will acquire a valid security entitlement in respect of STA) to such Secondary Shares and Additional Shares and (iiiB) no action based on any “adverse claim,” (within the meaning of Section 8-102 105 of the UCC, to such Shares UCC and Section 1(1) of the STA) may be asserted against the such Underwriter with respect to such security entitlement. For purposes of this representation, such Selling Stockholder may assume that when such payment, delivery Secondary Shares and crediting occur, (A) such Shares will have been registered in the name of Cede or another nominee designated by DTC, in each case on the Company’s share registry in accordance with its certificate of incorporation, bylaws and applicable law, (B) DTC will be registered as a “clearing corporation” within the meaning of Section 8-102 of the UCC and (C) appropriate entries to the accounts of the Underwriter on the records of DTC will have been made pursuant to the UCC.
(d) Such Selling Stockholder has full right, power and authority, corporate or otherwise, to enter into this AgreementAdditional Shares.
(e) This Agreement has been duly and validly authorizedExcept as previously disclosed in writing to the Representatives, executed and delivered by none of the Selling Stockholders or, to the knowledge the Selling Stockholders, any of their controlled affiliates directly, or on behalf indirectly through one or more intermediaries, controls, or is controlled by, or is under common control with any member firm of such Selling StockholderFINRA or is a person associated with a member (within the meaning of the FINRA By-Laws) of FINRA.
(f) The execution, delivery and performance of this Agreement by such Selling Stockholder and the consummation by such Selling Stockholder None of the transactions contemplated hereby and thereby do not Selling Stockholders has taken, and will not (i) conflict with take, directly or indirectly, any action designed to, or which might reasonably be expected to, cause or result in a breach stabilization or violation manipulation of the price of any equity security of the terms or provisions of, or constitute a default under, any indenture, mortgage, deed of trust, loan agreement, license or other agreement or instrument Company (except that no representation is made as to which such Selling Stockholder is a party or by which such Selling Stockholder is bound or to which any the activities of the property or assets of such Selling Stockholder is subject, (ii) result in any violation of the provisions of the charter or by-laws or deed of trust (or similar organizational documents) of such Selling Stockholder, or (iii) result in any violation of any statute or any order, rule or regulation of any court or governmental agency or body having jurisdiction over such Selling Stockholder or the property or assets of such Selling StockholderUnderwriters).
(g) No consent, approval, authorization approval or order of, or filing or registration qualification with, any court governmental body or governmental agency or body having jurisdiction over such Selling Stockholder or the property or assets of such Selling Stockholder is required for the execution, delivery and performance by each of the Selling Stockholders of their respective obligations under this Agreement by such Selling Stockholder and the consummation by such Selling Stockholder of the transactions contemplated hereby and therebyShareholder Documents, except for the registration of the Shares under the Securities Act and such consents, approvals, authorizations, orders, registrations or qualifications (i) as may be required under the Securities Act or Exchange Act Act, applicable securities exchanges or automated quotation systems, blue sky laws of any relevant jurisdictions or the bylaws and applicable state securities laws rules of FINRA in connection with the purchase issue and sale of the Secondary Shares and the Additional Shares to be sold by the UnderwriterSelling Stockholders, or (ii) such consents, approvals, authorizations, orders, registrations, qualifications, waivers, amendments or termination as will have been obtained or made prior to the Closing Date, including but not limited to the filing of the Canadian Supplemented Prospectus.
(h) All material information with respect None of (i) the execution and delivery by each of the Selling Stockholders of, or the performance by each of the Selling Stockholders of its obligations under, this Agreement or the Shareholder Documents nor (ii) the issue and sale of the Secondary Shares and the Additional Shares to be sold by the Selling Stockholders will conflict with, result in a breach or violation of or constitute a default, as applicable, under (A) any provision of law applicable to such Selling Stockholder, (B) the organizational documents of any non-individual Selling Stockholder, (C) any agreement or other instrument binding upon such Selling Stockholder contained that is material to such Selling Stockholder, or (D) any judgment, order or decree of any governmental body, agency or court having jurisdiction over such Selling Stockholder; except in the case of clause (C), for any such breach, violation or default that would not reasonably be expected to have a Material Adverse Effect.
(i) The sale of the Secondary Shares and the Additional Shares by each of the Registration Statement, Selling Stockholders pursuant to this Agreement is not prompted by any material information concerning the Company or any of its subsidiaries that is required to be included but is not set forth in the Time of Sale Prospectus and the Pricing Disclosure Package (Prospectus, provided, however, that no representation or warranty is being made hereby as amended and supplemented, if to whether the Company shall have filed with the Commission any amendment or supplement thereto) (i) complied and will comply in all material respects with all applicable provisions Time of the Securities Act Sale Prospectus and the Rules and Regulations, (ii) Prospectus contains and will contain all statements of material fact required to be stated therein in accordance with the Securities Act and the Rules and Regulations, and (iii) does not and will not contain an any untrue statement of a material fact or omit omits to state a any material fact required to be stated therein or necessary in order to make the statements therein therein, in light of the circumstances in which they are made, not misleading. Solely with respect to the Metalmark Selling Stockholders (as defined in Schedule I hereto), such Selling Stockholder is not prompted to sell the Shares by any material non-public information relating to the business, results of operations or prospects of the Company and its subsidiaries of an adverse nature that is required to be disclosed in the Registration Statement, the Pricing Disclosure Package or the Prospectus. For this purpose, information that is set forth or incorporated by reference in the Registration Statement, the Pricing Disclosure Package or the Prospectus or that otherwise has been made publicly available about the Company shall be deemed to be public information, and any opinion or conclusion that a Metalmark Selling Stockholder may hold, or analysis performed by a Metalmark Selling Stockholder, in its capacity as an investor about the business, results of operations or prospects of the Company and its subsidiaries shall not be information that relates to the business, results of operations or prospects of the Company.
(i) Such Selling Stockholder has not taken and will not take, directly or indirectly, any action that is designed to or that has constituted or that could reasonably be expected to cause or result in the stabilization or manipulation of the price of any security of the Company to facilitate the sale or resale of the Shares.
(j) The sale None of the Shares by such Selling Stockholder does Stockholders has prepared, used or referred to, and will not violate prepare, use or refer to, any “free writing prospectus” (as defined in Rule 405 of the Company’s internal policies regarding the sale of stock by its affiliates. Any certificate signed by Securities Act), and has not distributed any officer of any Selling Stockholder and delivered to the Underwriter or counsel for the Underwriter written materials in connection with the offering offer or sale of Shares. None of the Selling Stockholders has engaged in any Testing-the-Waters Communications in connection with the offer and sale of Shares, except as had been previously agreed in writing with the Company and the Representatives.
(k) The Selling Stockholder’s Shares shall be deemed have been placed in custody, for delivery pursuant to the terms of this Agreement, under a representation Custody Agreement and, as applicable, Power of Attorney duly authorized (if applicable), executed and warranty delivered by such Selling Stockholder, in the form heretofore furnished to you (the “Custody Agreement”) with Xxxxx Fargo Shareowner Services, as to matters covered thereby, Custodian (the “Custodian”); the Shares held in custody for each Selling Stockholder are subject to the Underwriterinterests hereunder of the Underwriters; the arrangements for custody and delivery of such certificates, made by such Selling Stockholder hereunder and under the Custody Agreement, are not subject to termination by any acts of such Selling Stockholder, or by operation of law, whether by the death or incapacity of such Selling Stockholder or the occurrence of any other event; and if any such death, incapacity or any other such event shall occur before the delivery of such Shares hereunder, certificates for the Shares will be delivered by the Custodian in accordance with the terms and conditions of this Agreement and the Custody Agreement as if such death, incapacity or other event had not occurred, regardless of whether or not the Custodian shall have received notice of such death, incapacity or other event.
Appears in 1 contract
Representations and Warranties of the Selling Stockholders. Each Selling Stockholder, severally and not jointly, represents and warrants to, and agrees with, each of the Underwriters as of the date hereof and as of the Closing Date and each Additional Closing Date that:
(a) Neither Such Selling Stockholder has full right, power and authority to execute and deliver this Agreement, to perform its obligations hereunder and to consummate the transactions contemplated by this Agreement. With respect to each Selling Stockholder that is an entity, this Agreement and the transactions contemplated by this Agreement have been duly and validly authorized by such Selling Stockholder. This Agreement has been duly and validly executed and delivered by such Selling Stockholder nor any person acting on behalf and constitutes the legal, valid and binding obligation of such Selling Stockholder Stockholder, enforceable in accordance with its terms, except as enforceability may be limited by applicable bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium or similar laws affecting creditors’ rights generally and except as enforceability may be subject to general principles of equity (other than, if applicable, the Company and the Underwriter) has used regardless of whether such enforceability is considered in a proceeding in equity or referred to any “free writing prospectus” (as defined in Rule 405at law), relating to the Shares.
(b) Such Selling Stockholder hashas full right, power and authority to execute and deliver (i) a Custody Agreement by and between such Selling Stockholder and the Company as custodian (in such capacity, the “Custodian”), and immediately (ii) a Power of Attorney by and among Rxxxx X. Xxxxxxxx and J. Bxxxxxx Xxxxxx as such Selling Stockholder’s attorneys-in-fact (each, an “Attorney-in-Fact”), substantially in the form of Exhibits B and C hereto (such Selling Stockholder’s “Custody Agreement” and “Power of Attorney”, respectively), to perform its obligations thereunder and to consummate the transactions contemplated by the Custody Agreement and Power of Attorney. With respect to each Selling Stockholder that is an entity, the Custody Agreement and Power of Attorney and the transactions contemplated thereby have been duly and validly authorized by such Selling Stockholder. The Custody Agreement and Power of Attorney have each been duly and validly executed and delivered by such Selling Stockholder and constitute the legal, valid and binding obligation of such Selling Stockholder, enforceable in accordance with its terms, except as enforceability may be limited by applicable bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium or similar laws affecting creditors’ rights generally and except as enforceability may be subject to general principles of equity (regardless of whether such enforceability is considered in a proceeding in equity or at law). Counterparts of such Selling Stockholder’s Custody Agreement and Power of Attorney have been delivered to the Company and the Lead Manager on or prior to the Closing Date on which such Selling Stockholder is selling date of this Agreement.
(c) As of the SharesApplicable Time, such Selling Stockholder agrees that the Firm Shares and Additional Shares, if any, to be sold by such Selling Stockholder, whether or not on deposit with the Custodian, are subject to the interests of the Underwriters, that the arrangements made for such custody are to that extent irrevocable, and that the obligations of such Selling Stockholder hereunder shall not be terminated, except as provided in this Agreement or in the Custody Agreement and Power of Attorney, by any act of such Selling Stockholder, by operation of law or by the occurrence of any other event. If such Selling Stockholder should die or become incapacitated, or if any other event should occur affecting the legal status or capacity of such Selling Stockholder before the delivery of the Firm Shares and the Additional Shares, if any, to be sold by a Selling Stockholder hereunder, the documents evidencing the Firm Shares and the Additional Shares, if any, to be sold by such Selling Stockholder then on deposit with the Custodian shall be delivered by the Custodian in accordance with the terms and conditions of this Agreement as if such event had not occurred, regardless of whether or not the Custodian shall have received notice thereof.
(d) Such Selling Stockholder has, and on the Closing Date and any Additional Closing Date, will have, good and valid title to or a valid “security entitlement” within and is the meaning of Section 8-501 lawful owner of the New York Uniform Commercial Code (the “UCC”) in respect Selling Stockholders’ Shares and Additional Shares, if any, to be sold by such Selling Stockholder hereunder, and upon sale and delivery of, and payment of the consideration for the Selling Stockholders’ Shares and Additional Shares to be sold by such Selling Stockholder hereunder on as provided in this Agreement and the crediting of such Closing Date free Selling Stockholders’ Shares and clear of all liens, encumbrances, equities or claims.
(c) Upon payment for the Additional Shares to be sold by such Selling Stockholder, delivery the “security account” or “security accounts” (as defined in Section 8-501(a) of such Shares, as directed by the Underwriter, to Cede & Co. Uniform Commercial Code of the State of New York (the “CedeUCC”)) or such other nominee as may be designated by of the Underwriters maintained with 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 each of the Underwriter (Underwriters will become the legal owner of the Selling Stockholders’ Shares and Additional Shares purchased by it from such Selling Stockholder, free and clear of all Liens, and, assuming that neither DTC nor none of the Underwriter Underwriters has “notice of any an adverse claim claim” (within the meaning of Section 8-105 of the UCC) with respect to such Shares), (i) DTC shall will be a “protected purchaser” of such Shares within the meaning of Section 8-303 of the UCC, each of the Underwriters will acquire a “security entitlement” (ii) under within the meaning of UCC Section 8-501 of 102(a)(17)) to the UCCShares purchased by such Underwriter from such Selling Stockholder, the Underwriter will acquire a valid security entitlement in respect of such Shares and (iii) no action based on any “adverse claim,” (within the meaning of UCC Section 8-102 of the UCC, to such Shares 102(a)(1)) may be successfully asserted against the such Underwriter with respect to such security entitlementSecurities. For purposes Certificates for all of this representation, the Shares to be sold by such Selling Stockholder may assume that when such paymentpursuant to this Agreement, in suitable form for transfer by delivery and crediting occuror accompanied by duly executed instruments of transfer or assignment in blank with signatures guaranteed, (A) have been placed in custody with the Custodian with irrevocable conditional instructions to deliver 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, (B) DTC will be registered as a “clearing corporation” within the meaning of Section 8-102 of the UCC and (C) appropriate entries to the accounts of the Underwriter on the records of DTC will have been made Underwriters pursuant to this Agreement subject to the UCC.
(d) Such terms of such Selling Stockholder has full right, power and authority, corporate or otherwise, to enter into this Stockholder’s Custody Agreement.
(e) This No Consent is required for the execution, delivery and performance by the Selling Stockholder of this Agreement has been duly or its Custody Agreement and validly authorizedPower of Attorney, executed or consummation by the Selling Stockholder of the transactions contemplated herein or therein, except (i) for the registration under the Securities Act of the Shares and delivered by such consents as may be required under the state or on behalf foreign securities laws, the blue sky laws of any jurisdiction, the by-laws and rules of the NASD or NASDR in connection with the purchase and distribution of such Selling Stockholder’s Shares and such Selling Stockholder’s Additional Shares by the Underwriters, each Consent of which has been obtained and is in full force and effect, (ii) for each Consent which, individually or in the aggregate, would not reasonably be expected to have a material adverse effect on the ability of the Selling Stockholder to consummate the Offering or any transaction contemplated by this Agreement, the Custody Agreement or the Power of Attorney (a “Selling Stockholder Material Adverse Effect”) and (iii) if the Selling Stockholder is an entity, such Consents as may be applicable under the Selling Stockholder’s charter, bylaws, operating agreement, partnership agreement or other organizational documents, which Consent has been obtained.
(f) The execution, delivery and performance of this Agreement, the Power of Attorney and the Custody Agreement by such Selling Stockholder and consummation of any of the consummation other transactions contemplated herein and therein by such the Selling Stockholder or the fulfillment of the transactions contemplated hereby and thereby do not and terms hereof by the Selling Stockholder will not (iA) conflict with or with, result in a breach or violation of any of the terms or provisions of, or constitute a default (or an event that with notice or lapse of time, or both, would constitute a default) under, or result in the creation or imposition of any indenturelien, mortgagecharge or encumbrance upon any property or assets of the Selling Stockholder pursuant to any law, deed statute, rule or regulation or the terms of trust, loan agreement, license any indenture or other agreement or instrument to which such Selling Stockholder is a party or by which such Selling Stockholder is bound bound, or to which any of the property or assets of such Selling Stockholder is subject, or (iiB) if such Selling Shareholder is not a natural person, result in any violation of the provisions of the any charter or by-laws bylaws or deed certificate of formation, trust (agreement, partnership agreement, articles of partnership or similar other organizational documents) , as applicable, of such the Selling Stockholder, or (iiiC) result in any violation or breach of any statute or any judgment, order, decree statute, rule or regulation applicable to such Selling Stockholder of any court or any public, governmental or regulatory agency or body body, administrative agency or arbitrator having jurisdiction over such Selling Stockholder, except in the case of clauses (A) and (C) above as would not reasonably be expected to result in a Selling Stockholder or the property or assets of such Selling StockholderMaterial Adverse Effect.
(g) No consent, approval, authorization or order of, or filing or registration with, any court or governmental agency or body having jurisdiction over such Such Selling Stockholder does not have any registration or other similar rights to have any equity or debt securities registered for sale by the property Company under the Registration Statement or assets included in the offering of such Selling Stockholder is required for the execution, delivery and performance of this Agreement by such Selling Stockholder Firm Shares and the consummation by such Selling Stockholder of the transactions contemplated hereby and therebyAdditional Shares, except for such rights as have been waived or which are described in the registration of Registration Statement, the Shares under Pricing Prospectus and the Securities Act Prospectus (and such consents, approvals, authorizations, registrations or qualifications as may be required under the Exchange Act and applicable state securities laws in connection with the purchase and sale of the Shares by the Underwriterwhich have been complied with).
(h) All material information with respect Such Selling Stockholder does not have, or has waived prior to the date hereof, any preemptive right, co-sale right or right of first refusal, or other similar right, to purchase any of the Shares that are to be sold by the Company or any other Selling Stockholder to the Underwriters pursuant to this Agreement; and such Selling Stockholder contained does not own any warrants, options or similar rights to acquire, and does not have any right or arrangement to acquire, any capital stock, right, warrants, options or other securities from the Company, other than those described in each of the Registration Statement, the Pricing Prospectus or the Prospectus.
(i) Except as disclosed in the Registration Statement, the Pricing Prospectus and the Pricing Disclosure Package (as amended Prospectus, there are no contracts, agreements or understandings between such Selling Stockholder and supplemented, if any person that would give rise to a valid claim against the Company shall have filed or any Underwriter for a brokerage commission, finder’s fee or other like payment in connection with the Commission Offering or, to such Selling Stockholder’s knowledge, any amendment other arrangements, agreements, understandings, payments or supplement theretoissuance with respect to the Company or any of its officers, directors, shareholders, partners, employees, Subsidiaries or affiliates relating to the Underwriters’ compensation as determined by the NASD.
(j) (i) complied The Registration Statement complies, and the Prospectus and any further amendments or supplements to the Registration Statement or the Prospectus will comply comply, in all material respects with all the applicable provisions of the Securities Act and the rules and regulations of the Commission thereunder (the “Rules and Regulations, (ii) contains and will contain all statements of material fact required to be stated therein in accordance with the Securities Act and the Rules and Regulations”), and (iii) does do not and will not not, as of the applicable effective date as to each part of the Registration Statement and as of the applicable filing date as to the Prospectus and any amendment thereof or supplement thereto, contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary in order to make the statements therein (x) in the case of the Registration Statement or any amendment thereto, not misleading and (y) in the case of the Prospectus or any amendment or supplements thereto, in light of the circumstances under which they were made, not misleading. Solely ; provided, however, with respect to each Selling Stockholder, the Metalmark representations and warranties set forth in this paragraph 2(j) apply only to the information under the caption “Principal and Selling Stockholders (as defined in Schedule I hereto), Stockholders” which specifically relates to such Selling Stockholder in the Pricing Prospectus, the Prospectus, any Issuer Free Writing Prospectus and any further amendments or supplements thereto. Each Selling Stockholder has reviewed and is familiar with the Registration Statement, the Pricing Prospectus and the Prospectus and is not prompted to sell the Firm Shares and the Additional Shares, if any, to be sold by the Selling Stockholder by any material non-public information relating to the business, results of operations or prospects of concerning the Company and its subsidiaries of an adverse nature that or any Subsidiary which is required to be disclosed not set forth in the Registration Statement, the Pricing Disclosure Package or Prospectus and the Prospectus. For this purpose, information that is set forth or incorporated by reference in the Registration Statement, the Pricing Disclosure Package or the Prospectus or that otherwise has been made publicly available about the Company shall be deemed to be public information, and any opinion or conclusion that a Metalmark Selling Stockholder may hold, or analysis performed by a Metalmark Selling Stockholder, in its capacity as an investor about the business, results of operations or prospects of the Company and its subsidiaries shall not be information that relates to the business, results of operations or prospects of the Company.
(ik) Such Selling Stockholder has not taken and will not take, directly or indirectly, any action that is designed to to, or that has constituted or that could would be reasonably be expected to to, cause or result in the stabilization or manipulation of the price of any security of the Company Common Stock to facilitate the sale or resale of the Firm Shares or Additional Shares, if any.
(jl) The Such Selling Stockholder has not distributed and will not distribute, prior to the later of the Additional Closing Date, if any, and the completion of the Underwriters’ distribution of the Shares, any offering material in connection with the offering and sale of the Shares and the Additional Shares, if any, by the Selling Stockholders other than the Pricing Prospectus or the Prospectus.
(m) The representations and warranties of such Selling Stockholder does not violate any in its Custody Agreement and Power of Attorney are, and on the Company’s internal policies regarding the sale of stock by its affiliatesClosing Date and Additional Closing Date, if any, will be, true and correct. Any certificate signed by any officer or on behalf of any the Selling Stockholder and delivered to the Underwriter Representatives or to counsel for the Underwriter in connection with the offering of the Shares Underwriters shall be deemed to be a representation and warranty by such Selling Stockholder, severally and not jointly, to each Underwriter as to the matters covered thereby, to the Underwriter.
Appears in 1 contract
Samples: Underwriting Agreement (Metropcs Communications Inc)
Representations and Warranties of the Selling Stockholders. Each Selling Stockholder, Stockholder acting severally and not jointly, and Spiex, xx the best of his knowledge, individually and on behalf of the other Selling Stockholders, represents and warrants to, and covenants with, each Underwriter that:
(a) Neither Such Selling Stockholder has full power and authority to enter into this Agreement and the Custody Agreement. All authorizations and consents necessary for the execution and delivery by such Selling Stockholder nor any person acting of the Custody Agreement, and for the execution of this Agreement on behalf of such Selling Stockholder Stockholder, have been given. Each of the Custody Agreement and this Agreement has been duly authorized (other than, if applicable, the Company and the Underwriter) has used or referred to any “free writing prospectus” (as defined in Rule 405), relating to the Shares.
(b) Such Selling Stockholder has, and immediately prior to the Closing Date on which extent such Selling Stockholder is selling the Shares, such Selling Stockholder will have, good and valid title to or not 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 such Selling Stockholder hereunder on such Closing Date free and clear of all liens, encumbrances, equities or claims.
(c) Upon payment for the Shares to be sold by such Selling Stockholder, delivery of such Shares, as directed by the Underwriter, to Cede & Co. (“Cede”) or such other nominee as may be designated by The Depository Trust Company (“DTC”natural person), registration of such Shares in the name of Cede or such other nominee and the crediting of such Shares on the books of DTC to securities accounts of the Underwriter (assuming that neither DTC nor the Underwriter has notice of any adverse claim (within the meaning of Section 8-105 of the UCC) to such Shares), (i) DTC shall be a “protected purchaser” of such Shares within the meaning of Section 8-303 of the UCC, (ii) under Section 8-501 of the UCC, the Underwriter will acquire a valid security entitlement in respect of such Shares and (iii) no action based on any “adverse claim,” within the meaning of Section 8-102 of the UCC, to such Shares may be asserted against the Underwriter with respect to such security entitlement. For purposes of this representation, such Selling Stockholder may assume that when such payment, delivery and crediting occur, (A) such Shares will have been registered in the name of Cede or another nominee designated by DTC, in each case on the Company’s share registry in accordance with its certificate of incorporation, bylaws and applicable law, (B) DTC will be registered as a “clearing corporation” within the meaning of Section 8-102 of the UCC and (C) appropriate entries to the accounts of the Underwriter on the records of DTC will have been made pursuant to the UCC.
(d) Such Selling Stockholder has full right, power and authority, corporate or otherwise, to enter into this Agreement.
(e) This Agreement has been duly and validly authorized, executed and delivered by or on behalf of such Selling StockholderStockholder and constitutes a valid and binding agreement of such Selling Stockholder and is enforceable against such Selling Stockholder in accordance with the terms thereof and hereof, except as rights to indemnification and contribution hereunder may be limited by applicable law and public policy and except as the enforcement thereof may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or other similar laws relating to or affecting creditors rights generally or by general equitable principles.
(fb) Such Selling Stockholder now has, and at the time of delivery thereof hereunder will have, (i) good and valid title to the Firm Shares to be sold by such Selling Stockholder hereunder, free and clear of all liens, encumbrances and claims whatsoever (other than pursuant to the Agreement and the Custody Agreement), and (ii) full legal right and power, and all authorizations and approvals required by law, to sell, transfer and deliver such Firm Shares to the Underwriters hereunder and to make the representations, warranties and agreements made by such Selling Stockholder herein. Upon the delivery of and payment for such Firm Shares hereunder, assuming each Underwriter has no notice of any adverse claim as such term is used in the Uniform Commercial Code such Selling Stockholder will deliver good and valid title thereto, free and clear of all liens, charges, claims, encumbrances, pledges, security interests, defects or restrictions of any kind whatsoever.
(c) On the Closing Date all stock transfer or other taxes (other than income taxes) which are required to be paid in connection with the sale and transfer of the Firm Shares to be sold by such Selling Stockholder to the several Underwriters hereunder will have been fully paid or provided for by the Selling Stockholder, and all laws imposing such taxes will have been fully complied with.
(d) The execution, delivery and performance of this Agreement by such Selling Stockholder and the consummation by such Selling Stockholder of the transactions contemplated hereby and thereby do not and will not (i) conflict with result in the creation or imposition of any lien, charge or encumbrance upon any of the assets of such Selling Stockholder pursuant to the terms or provisions of, or result in a breach or violation of any of the terms or provisions of, or constitute a default under, or result in the acceleration of any indentureobligation under, mortgageas to such Selling Stockholder, deed of trust, loan agreement, license any contract or other agreement or instrument to which such Selling Stockholder is a party or by which such Selling Stockholder or any of his property is bound or to which any of the property or assets of such Selling Stockholder is subject, (ii) result in any violation of the provisions of the charter or by-laws or deed of trust (or similar organizational documents) of such Selling Stockholderaffected, or (iii) result in any violation of any statute or any ruling, decree, judgment, order, statute, rule or regulation of any court or other governmental agency or body having jurisdiction over such Selling Stockholder or the property or assets of such Selling Stockholder, except for violations, defaults, breaches or accelerations which would not result in a material adverse effect in the financial condition of the Selling Stockholder.
(ge) No consent, approval, authorization or order of, or any filing or registration declaration with, any court or governmental agency or body having jurisdiction over such Selling Stockholder or the property or assets of such Selling Stockholder is required for the execution, delivery and performance of this Agreement by such Selling Stockholder and the consummation by such Selling Stockholder of the transactions on his part contemplated hereby herein and therebyin the Custody Agreement, except for the registration of the Shares such as have been obtained under the Securities Act or the Rules and Regulations and such consents, approvals, authorizations, registrations or qualifications as may be required under the Exchange Act and applicable state securities or Blue Sky laws or the by-laws and rules of the NASD in connection with the purchase and sale distribution by the Underwriters of the Firm Shares to be sold by the Underwritersuch Selling Stockholder.
(hf) All material The information with respect to such under the caption "Selling Stockholder contained Stockholder" in each of the Registration Statement, the Prospectus is complete and the Pricing Disclosure Package (as amended and supplemented, if the Company shall have filed with the Commission any amendment or supplement thereto) (i) complied and will comply accurate in all material respects with all applicable provisions of respects.
(g) Other than as permitted by the Securities Act and the Rules and Regulations, (ii) contains and will contain all statements of material fact required to be stated therein in accordance with the Securities Act and the Rules and Regulations, and (iii) does such Selling Stockholder has not distributed and will not contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary in order to make the statements therein not misleading. Solely with respect to the Metalmark Selling Stockholders (as defined in Schedule I hereto)distribute any preliminary prospectus, such Selling Stockholder is not prompted to sell the Shares by any material non-public information relating to the business, results of operations or prospects of the Company and its subsidiaries of an adverse nature that is required to be disclosed in the Registration Statement, the Pricing Disclosure Package or the Prospectus. For this purpose, information that is set forth or incorporated by reference in the Registration Statement, the Pricing Disclosure Package or the Prospectus or that otherwise has been made publicly available about any other offering material in connection with the Company shall be deemed to be public information, offering and any opinion or conclusion that a Metalmark Selling Stockholder may hold, or analysis performed by a Metalmark Selling Stockholder, in its capacity as an investor about the business, results of operations or prospects sale of the Company and its subsidiaries shall not be information that relates to the business, results of operations or prospects of the Company.
(i) Shares. Such Selling Stockholder has not taken and will not taketaken, directly or indirectly, any action that is designed intended to cause or that has constituted result in, or that could which might reasonably be expected to cause or result in the in, or which has caused or resulted in, stabilization or manipulation manipulation, under the Act or otherwise, of the price of any security of the Company to facilitate the sale or resale of the Shares.
(jh) The sale of Certificates in negotiable form for the Firm Shares to be sold hereunder by such Selling Stockholder does not violate any have been placed in custody, for the purpose of making delivery of such Firm Shares under this Agreement, under the Custody Agreement which appoints the Company's Registrar and Transfer Agent as custodian (the "CUSTODIAN") for such Selling Stockholder. Such Selling Stockholder agrees that the Firm Shares represented by the certificates held in custody for him under the Custody Agreement are for the benefit of and coupled with and subject to the interest hereunder of the Custodian, the Underwriters and the Company’s internal policies regarding , that the sale arrangements made by such Selling Stockholder for such custody and the appointment of stock the Custodian by its affiliates. Any certificate signed such Selling Stockholder are irrevocable, and that the obligations of such Selling Stockholder hereunder shall not be terminated by any officer operation of law, whether by the death, disability or incapacity of such Selling Stockholder or the occurrence of any other event. If the Selling Stockholder and delivered to should die, become disabled or incapacitated or if any other such event should occur before the Underwriter or counsel delivery of the Firm Shares hereunder, certificates for the Underwriter in connection with the offering of the Firm Shares shall be deemed a representation delivered by the Custodian in accordance with the terms and warranty conditions of this Agreement, and actions taken by such Selling Stockholderthe Custodian pursuant to the Agreement and the Custody Agreement shall be as valid, as to matters covered therebyif such death, to incapacity or other event had not occurred, regardless of whether or not the UnderwriterCustodian shall have received notice thereof.
Appears in 1 contract
Samples: Underwriting Agreement (Powerhouse Technologies Inc /De)
Representations and Warranties of the Selling Stockholders. Each Selling Stockholder, severally and not jointly, represents and warrants to, and agrees with, each of the Underwriters as of the date hereof and as of the Closing Date and each Additional Closing Date that:
(a) Neither such Selling Stockholder nor any person acting on behalf of such Selling Stockholder (other than, if applicable, the Company and the Underwriter) has used or referred to any “free writing prospectus” (as defined in Rule 405), relating to the Shares.
(b) Such Selling Stockholder has, and immediately prior to the Closing Date on which such Selling Stockholder is selling the Shares, such 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 (the “UCC”) in respect of, the Shares to be sold by such Selling Stockholder hereunder on such Closing Date free and clear of all liens, encumbrances, equities or claims.
(c) Upon payment for the Shares to be sold by such Selling Stockholder, delivery of such Shares, as directed by the Underwriter, to Cede & Co. (“Cede”) or such other nominee as may be designated by The Depository Trust Company (“DTC”), registration of such Shares in the name of Cede or such other nominee and the crediting of such Shares on the books of DTC to securities accounts of the Underwriter (assuming that neither DTC nor the Underwriter has notice of any adverse claim (within the meaning of Section 8-105 of the UCC) to such Shares), (i) DTC shall be a “protected purchaser” of such Shares within the meaning of Section 8-303 of the UCC, (ii) under Section 8-501 of the UCC, the Underwriter will acquire a valid security entitlement in respect of such Shares and (iii) no action based on any “adverse claim,” within the meaning of Section 8-102 of the UCC, to such Shares may be asserted against the Underwriter with respect to such security entitlement. For purposes of this representation, such Selling Stockholder may assume that when such payment, delivery and crediting occur, (A) such Shares will have been registered in the name of Cede or another nominee designated by DTC, in each case on the Company’s share registry in accordance with its certificate of incorporation, bylaws and applicable law, (B) DTC will be registered as a “clearing corporation” within the meaning of Section 8-102 of the UCC and (C) appropriate entries to the accounts of the Underwriter on the records of DTC will have been made pursuant to the UCC.
(d) Such Selling Stockholder has full right, power and authority, corporate or otherwiseauthority to execute and deliver this Agreement, to enter into perform its obligations hereunder and to consummate the transactions contemplated by this Agreement.
(e) . With respect to each Selling Stockholder that is an entity, this Agreement and the transactions contemplated by this Agreement have been duly and validly authorized by such Selling Stockholder. This Agreement has been duly and validly authorized, executed and delivered by or on behalf of such Selling Stockholder.
(f) The execution, delivery and performance of this Agreement by such Selling Stockholder and constitutes the consummation by such Selling Stockholder of the transactions contemplated hereby legal, valid and thereby 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, any indenture, mortgage, deed of trust, loan agreement, license or other agreement or instrument to which such Selling Stockholder is a party or by which such Selling Stockholder is bound or to which any of the property or assets of such Selling Stockholder is subject, (ii) result in any violation of the provisions of the charter or by-laws or deed of trust (or similar organizational documents) binding obligation of such Selling Stockholder, enforceable in accordance with its terms, except as enforceability may be limited by applicable bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium or similar laws affecting creditors’ rights generally and except as enforceability may be subject to general principles of equity (iii) result regardless of whether such enforceability is considered in any violation of any statute a proceeding in equity or any order, rule or regulation of any court or governmental agency or body having jurisdiction over such Selling Stockholder or the property or assets of such Selling Stockholderat law).
(gb) No consent, approval, authorization or order of, or filing or registration with, any court or governmental agency or body having jurisdiction over such Such Selling Stockholder or the property or assets of such Selling Stockholder is required for the executionhas full right, delivery power and performance of this authority to execute and deliver (i) a Custody Agreement by and between such Selling Stockholder and the consummation Company as custodian (in such capacity, the “Custodian”), and (ii) a Power of Attorney by and among Rxxxx X. Xxxxxxxx and J. Bxxxxxx Xxxxxx as such Selling Stockholder Stockholder’s attorneys-in-fact (each, an “Attorney-in-Fact”), substantially in the form of Exhibits B and C hereto (such Selling Stockholder’s “Custody Agreement” and “Power of Attorney”, respectively), to perform its obligations thereunder and to consummate the transactions contemplated hereby and thereby, except for the registration of the Shares under the Securities Act and such consents, approvals, authorizations, registrations or qualifications as may be required under the Exchange Act and applicable state securities laws in connection with the purchase and sale of the Shares by the Underwriter.
(h) All material information with respect to such Selling Stockholder contained in each of the Registration Statement, the Prospectus and the Pricing Disclosure Package (as amended and supplemented, if the Company shall have filed with the Commission any amendment or supplement thereto) (i) complied and will comply in all material respects with all applicable provisions of the Securities Act and the Rules and Regulations, (ii) contains and will contain all statements of material fact required to be stated therein in accordance with the Securities Act and the Rules and Regulations, and (iii) does not and will not contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary in order to make the statements therein not misleading. Solely with respect to the Metalmark Selling Stockholders (as defined in Schedule I hereto), such Selling Stockholder is not prompted to sell the Shares by any material non-public information relating to the business, results of operations or prospects of the Company and its subsidiaries of an adverse nature that is required to be disclosed in the Registration Statement, the Pricing Disclosure Package or the Prospectus. For this purpose, information that is set forth or incorporated by reference in the Registration Statement, the Pricing Disclosure Package or the Prospectus or that otherwise has been made publicly available about the Company shall be deemed to be public information, and any opinion or conclusion that a Metalmark Selling Stockholder may hold, or analysis performed by a Metalmark Selling Stockholder, in its capacity as an investor about the business, results of operations or prospects of the Company and its subsidiaries shall not be information that relates to the business, results of operations or prospects of the Company.
(i) Such Selling Stockholder has not taken and will not take, directly or indirectly, any action that is designed to or that has constituted or that could reasonably be expected to cause or result in the stabilization or manipulation of the price of any security of the Company to facilitate the sale or resale of the Shares.
(j) The sale of the Shares by such Selling Stockholder does not violate any of the Company’s internal policies regarding the sale of stock by its affiliates. Any certificate signed by any officer of any 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 such Selling Stockholder, as to matters covered thereby, to the Underwriter.Custody
Appears in 1 contract
Samples: Underwriting Agreement (Metropcs Communications Inc)
Representations and Warranties of the Selling Stockholders. Each Selling Stockholder, severally and not jointly, Stockholder represents and warrants to each Underwriter that:
(a) Neither such Selling Stockholder nor any person acting on behalf of such Selling Stockholder (other than, if applicable, the Company and the Underwriter) has used or referred to any “free writing prospectus” (as defined in Rule 405), relating to the Shares.
(b) Such Selling Stockholder has, and immediately prior to is the Closing Date on which such Selling Stockholder is selling the Shares, such Selling Stockholder will have, good and valid title to or a valid “security entitlement” within the meaning lawful owner of Section 8-501 of the New York Uniform Commercial Code (the “UCC”) in respect of, the Shares to be sold by such Selling Stockholder hereunder pursuant to this Agreement and has, and on such the Closing Date free or the Option Closing Date, as applicable, will have, good and clear title to such Shares, free of all restrictions on transfer, liens, encumbrances, security interests, equities or claimsand claims whatsoever.
(b) The Shares to be sold by such Selling Stockholder have been duly authorized and are validly issued, fully paid and non-assessable.
c) Upon payment for Such Selling Stockholder has, and on the Closing Date will have, full legal right, power and authority, and all authorization and approval required by law, to enter into this Agreement, the Custody Agreement signed by such Selling Stockholder and the Company, as Custodian, relating to the deposit of the Shares to be sold by such Selling Stockholder, delivery of such Shares, as directed by Stockholder (the Underwriter, to Cede & Co. (“Cede”"Custody Agreement") 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 Power of such Shares on the books Attorney of DTC to securities accounts of the Underwriter (assuming that neither DTC nor the Underwriter has notice of any adverse claim (within the meaning of Section 8-105 of the UCC) to such Shares), (i) DTC shall be a “protected purchaser” of such Shares within the meaning of Section 8-303 of the UCC, (ii) under Section 8-501 of the UCC, the Underwriter will acquire a valid security entitlement in respect of such Shares and (iii) no action based on any “adverse claim,” within the meaning of Section 8-102 of the UCC, to such Shares may be asserted against the Underwriter with respect to such security entitlement. For purposes of this representation, such Selling Stockholder may assume that when appointing certain individuals as such paymentSelling Stockholder's attorneys-in-fact (the "Attorneys") to the extent set forth therein, delivery relating to the transactions contemplated hereby and crediting occurby the Registration Statement and the Custody Agreement (the "Power of Attorney") and to sell, (A) assign, transfer and deliver the Shares to be sold by such Shares will have been registered Selling Stockholder 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 manner provided herein and applicable law, (B) DTC will be registered as a “clearing corporation” within the meaning of Section 8-102 of the UCC and (C) appropriate entries to the accounts of the Underwriter on the records of DTC will have been made pursuant to the UCCtherein.
(d) Such Selling Stockholder has full right, power and authority, corporate or otherwise, to enter into this Agreement.
(e) This Agreement has been duly and validly authorized, executed and delivered by or on behalf of such Selling Stockholder.
(e) The Custody Agreement of such Selling Stockholder has been duly authorized, executed and delivered by such Selling Stockholder and is a valid and binding agreement of such Selling Stockholder, enforceable in accordance with its terms.
f) The Power of Attorney of such Selling Stockholder has been duly authorized, executed and delivered by such Selling Stockholder and is a valid and binding instrument of such Selling Stockholder, enforceable in accordance with its terms, and, pursuant to such Power of Attorney, such Selling Stockholder has, among other things, authorized the Attorneys, or any one of them, to execute and deliver on such Selling Stockholder's behalf this Agreement and any other document that they, or any one of them, may deem necessary or desirable in connection with the transactions contemplated hereby and thereby and to deliver the Shares to be sold by such Selling Stockholder pursuant to this Agreement.
g) Upon delivery of and payment for the Shares to be sold by such Selling Stockholder pursuant to this Agreement, good and clear title to such Shares will pass to the Underwriters, free of all restrictions on transfer, liens, encumbrances, security interests, equities and claims whatsoever.
h) The execution, delivery and performance of this Agreement and the Custody Agreement and Power of Attorney of such Selling Stockholder by or on behalf of such Selling Stockholder, the compliance by such Selling Stockholder with all the provisions hereof and thereof and the consummation by such Selling Stockholder of the transactions contemplated hereby and thereby do not and will not (i) require any consent, approval, authorization or other order of, or qualification with, any court or governmental body or agency (except such as may be required under the securities or Blue Sky laws of the various states), (ii) conflict with or result in constitute a breach or violation of any of the terms or provisions of, or constitute a default under, the organizational documents of such Selling Stockholder, if such Selling Stockholder is not an individual, or any indenture, mortgage, deed of trust, loan agreement, license mortgage, lease or other agreement or instrument to which such Selling Stockholder is a party or by which such Selling Stockholder is bound or to which any of the property or assets of such Selling Stockholder is subject, (ii) result in any violation of the provisions of the charter or by-laws or deed of trust (or similar organizational documents) of such Selling Stockholderbound, or (iii) result in violate or conflict with any violation of any statute applicable law or any orderrule, rule regulation, judgment, order or regulation decree of any court or any governmental body or agency or body having jurisdiction over such Selling Stockholder or the any property or assets of such Selling Stockholder.
(gi) No consent, approval, authorization or order of, or filing or registration with, any court or governmental agency or body having jurisdiction over such Selling Stockholder or The information in the property or assets of such Selling Stockholder is required for the execution, delivery and performance of this Agreement by such Selling Stockholder and the consummation by such Selling Stockholder of the transactions contemplated hereby and thereby, except for the registration of the Shares Registration Statement under the Securities Act caption "Principal and such consents, approvals, authorizations, registrations or qualifications as may be required under the Exchange Act and applicable state securities laws in connection with the purchase and sale of the Shares by the Underwriter.
(h) All material information with respect Selling Stockholders" which specifically relates to such Selling Stockholder contained in each of the Registration Statementdoes not, the Prospectus and the Pricing Disclosure Package (as amended and supplemented, if the Company shall have filed with the Commission any amendment or supplement thereto) (i) complied and will comply in all material respects with all applicable provisions of the Securities Act and the Rules and Regulations, (ii) contains and will contain all statements of material fact required to be stated therein in accordance with the Securities Act and the Rules and Regulations, and (iii) does not and will not on the Closing Date, contain an any untrue statement of a material fact or omit to state a any material fact required to be stated therein or necessary in order to make the statements therein therein, in the light of the circumstances under which they were made, not misleading. Solely with respect .
j) At any time during the period described in Section 5(d), if there is any change in the information referred to the Metalmark Selling Stockholders (as defined in Schedule I heretoSection 7(i), such Selling Stockholder is not prompted to sell the Shares by any material non-public information relating to the business, results will immediately notify you of operations or prospects of the Company and its subsidiaries of an adverse nature that is required to be disclosed in the Registration Statement, the Pricing Disclosure Package or the Prospectus. For this purpose, information that is set forth or incorporated by reference in the Registration Statement, the Pricing Disclosure Package or the Prospectus or that otherwise has been made publicly available about the Company shall be deemed to be public information, and any opinion or conclusion that a Metalmark Selling Stockholder may hold, or analysis performed by a Metalmark Selling Stockholder, in its capacity as an investor about the business, results of operations or prospects of the Company and its subsidiaries shall not be information that relates to the business, results of operations or prospects of the Companysuch change.
(ik) Such Selling Stockholder has not taken and will not take, directly or indirectly, any action that is designed to or that has constituted or that could reasonably be expected to cause or result in the stabilization or manipulation of the price of any security of the Company to facilitate the sale or resale of the Shares.
(j) The sale of the Shares by such Selling Stockholder does not violate any of the Company’s internal policies regarding the sale of stock by its affiliates. Any Each certificate signed by any officer or on behalf of any such Selling Stockholder and delivered to the Underwriter Underwriters or counsel for the Underwriter in connection with the offering of the Shares Underwriters shall be deemed to be a representation and warranty by such Selling Stockholder, Stockholder to the Underwriters as to the matters covered thereby, to the Underwriter.
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