Representations and Warranties of the Selling Stockholders. Each Selling Stockholder, severally and not jointly, represents and warrants to each Underwriter that: (a) to the extent that such Selling Stockholder will be delivering certificate(s) representing and/or notice(s) to exercise options for Common Stock to Continental Stock Transfer & Trust Company (the “Custodian”), such Selling Stockholder now is and, at the time of delivery of such Shares and/or notice(s) to exercise (whether at the time of purchase or the additional time of purchase, as the case may be) will be, the lawful owner of the Shares issuable upon exercise of such options to be sold by such Selling Stockholder pursuant to this Agreement, and will have valid and marketable title to the Shares issuable upon exercise of such options, 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 claim, lien, encumbrance, security interest, community property right, restriction on transfer or other defect in title; (b) to the extent that such Selling Stockholder will be delivering Common Stock to the Custodian, such Selling Stockholder now is and at the time of delivery of such Shares (whether at the time of purchase or the 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 and has and, at the time of delivery thereof, will have valid and marketable title to such Shares, and upon delivery of and payment for such Shares (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 claim, lien, encumbrance, security interest, community property right, restriction on transfer or other defect in title; (c) 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 at 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 pursuant to this Agreement; (d) such Selling Stockholder has and at the time of delivery of such Shares (whether at 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 Shares in the manner provided in this Agreement; (e) this Agreement and each Custody Agreement between the Custodian and the Selling Stockholders (each, a “Custody Agreement”) have been duly executed and delivered by such Selling Stockholder and, with respect to the Custody Agreement only, assuming due authorization, execution and delivery by the Custodian, each is a legal, valid and binding agreement of such Selling Stockholder enforceable in accordance with its terms; (f) such Selling Stockholder has duly and irrevocably authorized the Representatives of the Selling Stockholders, 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 thereby and to deliver the Shares to be sold by such Selling Stockholder and receive payment therefor pursuant hereto; (g) 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; and (h) the Prospectus and any amendment or supplement thereto, on the date of filing thereof with the Commission pursuant to Rule 424(b) and at the time of purchase and, if applicable, at the additional time of purchase, did not or will not include an untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading; 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; provided, however, that no Selling Stockholder makes any warranty or representation with respect to any statement contained in the Preliminary Prospectus Supplement, the Registration Statement or the Prospectus in reliance upon and in conformity with information concerning an Underwriter and furnished in writing by or on behalf of such Underwriter through you to the Company expressly for use in the Preliminary Prospectus Supplement, the Registration Statement or the Prospectus, and provided, further, that no Non-Management Selling Stockholder (as defined herein) makes any warranty or representation with respect to any statement contained in the Prospectus or the Registration Statement other than the Selling Stockholder Information (as defined below) relating to such Selling Stockholder furnished by such Non-Management Selling Stockholder. 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, the Registration Statement and Prospectus, and any supplements or amendments thereto as relate to such Selling Stockholder will not contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading; provided, however, that the foregoing representation and warranty, as it relates to such Non-Management Selling Stockholder, is limited to the Selling Stockholder Information (as defined herein) concerning such Non-Management Selling Stockholder included in the Registration Statement and Prospectus, and any supplements or amendments thereto. Each Non-Management Selling Stockholder severally confirms and the Underwriters acknowledge that the name, address and number of shares of Common Stock beneficially owned by such
Appears in 1 contract
Representations and Warranties of the Selling Stockholders. Each Selling Stockholder, severally and not jointly, represents represents, warrants and warrants covenants to each Underwriter that:
(a) to the extent that such Such Selling Stockholder will be delivering certificate(s) representing and/or notice(s) has full power and authority to exercise options enter into this Agreement and the Custody Agreement and Power of Attorney. All authorizations and consents necessary for Common Stock to Continental Stock Transfer & Trust Company (the “Custodian”), such Selling Stockholder now is and, at the time of execution and delivery of such Shares and/or notice(s) to exercise (whether at the time of purchase or the additional time of purchase, as the case may be) will be, the lawful owner of the Shares issuable upon exercise of such options to be sold by such Selling Stockholder pursuant to this Agreementof the Custody Agreement and Power of Attorney, and will have valid and marketable title to for the Shares issuable upon exercise execution of this Agreement on behalf of such optionsSelling Stockholder, 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 claim, lien, encumbrance, security interest, community property right, restriction on transfer or other defect in title;
(b) to the extent that such Selling Stockholder will be delivering Common Stock to the Custodian, such Selling Stockholder now is and at the time of delivery of such Shares (whether at the time of purchase or the additional time of purchase, as the case may be) will be, the lawful owner have been given. Each of the number Custody Agreement and Power of Shares to be sold by such Selling Stockholder pursuant to Attorney and this Agreement and has and, at the time of delivery thereof, will have valid and marketable title to such Shares, and upon delivery of and payment for such Shares (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 claim, lien, encumbrance, security interest, community property right, restriction on transfer or other defect in title;
(c) 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 at 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 pursuant to this Agreement;
(d) such Selling Stockholder has and at the time of delivery of such Shares (whether at 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 Shares in the manner provided in this Agreement;
(e) this Agreement and each Custody Agreement between the Custodian and the Selling Stockholders (each, a “Custody Agreement”) have been duly authorized, executed and delivered by or on behalf of such Selling Stockholder and, with respect to assuming the Custody Agreement only, assuming due authorization, execution and delivery by the Custodian, each is Representatives and the Company constitutes a legal, valid and binding agreement of such Selling Stockholder and is enforceable against such Selling Stockholder in accordance with its terms;the terms thereof and hereof 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 and except as rights to indemnity and contribution hereunder may be limited by applicable law.
(fb) such Such Selling Stockholder has duly now has, and irrevocably authorized at the Representatives time of delivery thereof hereunder will have, (i) good and marketable title to the Selling Stockholders, on behalf shares of such Selling Stockholder, to execute and deliver this Agreement and any other document necessary or desirable in connection with the transactions contemplated thereby and to deliver the Shares Common Stock to be sold by such Selling Stockholder hereunder, free and receive clear of all liens, encumbrances and claims whatsoever (other than pursuant to the Custody Agreement and Power of Attorney) and (ii) full legal right and power, and all authorizations and approvals required by law, to sell, transfer and deliver such Common Stock to the Underwriters hereunder and to make the representations, warranties and agreements made by such Selling Stockholder herein. Upon the delivery of and payment therefor pursuant hereto;for such Common Stock hereunder, such Selling Stockholder will deliver good and marketable title thereto, free and clear of all liens, encumbrances and claims whatsoever.
(gc) On the Closing Date or Option Closing Date, as the case may be, all stock transfer or other taxes (other than income taxes) which are required to be paid in connection with the sale and transfer of the shares to be sold by such Selling Stockholder to the several 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.
(d) The performance of this Agreement and the consummation of the transactions contemplated hereby will not 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 obligation under, any indenture, mortgage, deed of trust, voting trust agreement, loan agreement, bond, debenture, note agreement or other evidence of indebtedness, lease, contract or other agreement or instrument to which such Selling Stockholder is a party or by which such Selling Stockholder or any of its property is bound or affected, or under any ruling, decree, judgment, order, statute, rule or regulation of any court or other governmental agency or body having jurisdiction over such Selling Stockholder or the property of such Selling Stockholder’s Shares pursuant .
(e) No consent, approval, authorization or order of, or any filing or declaration with, any court or governmental agency or body is required for the consummation by such Selling Stockholder of the transactions on its part contemplated herein and in the Custody Agreement and Power of Attorney, except such as have been obtained under the Act or the Rules and Regulations and such as may be required under state securities or Blue Sky laws or the by-laws and rules of the NASD in connection with the purchase and distribution by the Underwriters of the Common Stock to this Agreement be sold by such Selling Stockholder.
(f) Such Selling Stockholder has no knowledge of any material fact or condition not set forth in the Registration Statement or Prospectus which has adversely affected, or may have a material adverse effect on the Company's business, operating results and financial condition, and the sale of the shares of Common Stock proposed to be sold by such Selling Stockholder is not prompted by any such knowledge.
(g) All information concerning with respect to such Selling Stockholder contained in the Registration Statement and the Prospectus (as amended or supplemented, if the Company which is not set forth in shall have filed with the Prospectus; and
(h) the Prospectus and Commission any amendment or supplement thereto, on the date of filing thereof ) complied and will comply with the Commission pursuant to Rule 424(b) and at the time of purchase and, if applicable, at the additional time of purchase, did not or will not include an untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in the light all applicable provisions of the circumstances under which they were madeAct and the Rules and Regulations, not misleading; the Registration Statement did not when it became effective, does not contains 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 all statements required to be stated therein or necessary to make in accordance with the statements therein not misleading; provided, however, that no Selling Stockholder makes any warranty or representation with respect to any statement contained in Act and the Preliminary Prospectus Supplement, the Registration Statement or the Prospectus in reliance upon Rules and in conformity with information concerning an Underwriter and furnished in writing by or on behalf of such Underwriter through you to the Company expressly for use in the Preliminary Prospectus Supplement, the Registration Statement or the ProspectusRegulations, and provided, further, that no Non-Management Selling Stockholder (as defined herein) makes any warranty or representation with respect to any statement contained in the Prospectus or the Registration Statement other than the Selling Stockholder Information (as defined below) relating to such Selling Stockholder furnished by such Non-Management Selling Stockholder. When the Registration Statement becomes effective does not 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, the Registration Statement and Prospectus, and any supplements or amendments thereto as relate to such Selling Stockholder 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; provided.
(h) Other than as permitted by the Act and the Rules and Regulations, however, that the foregoing representation and warranty, as it relates to such Non-Management Selling Stockholder, is limited to the Selling Stockholder Information (as defined herein) concerning such Non-Management has not distributed and will not distribute any Preliminary Prospectus, the Prospectus or any other offering material in connection with the offering and sale of the Common Stock. Such Selling Stockholder included has not taken, directly or indirectly, any action designed, or which might reasonably be expected, to cause or result in, under the Act or otherwise, or which has caused or resulted in, stabilization or manipulation of the price of any security of the Company to facilitate the sale or resale of the Common Stock.
(i) Certificates in negotiable form for the Registration Statement and Prospectus, and any supplements or amendments thereto. Each Non-Management Selling Stockholder severally confirms and the Underwriters acknowledge that the name, address and number of shares of Common Stock beneficially owned to be sold hereunder by suchsuch Selling Stockholder have been placed in custody with American Stock Transfer & Trust Company (the "Custodian"), for the purpose of making delivery of such Common Stock under this Agreement, under the Custody Agreement and Power of Attorney which appoints ____________ as attorney-in-fact for each Selling Stockholder. Such Selling Stockholder agrees that the shares of Common Stock represented by the certificates held in custody for him or it under the Agreement and Power of Attorney are for the benefit of and coupled with and subject to the interest hereunder of the Custodian, the attorney-in-fact, 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 attorney-in-fact by such Selling Stockholder are 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 is liquidated or if any other such event should occur before the delivery of the Common Stock hereunder, certificates for the Common Stock shall be delivered by the Custodian in accordance with the terms and conditions of this Agreement and actions taken by the attorney-in-fact and the Custodian pursuant to the Agreement and Power of Attorney shall be as valid as if such death, liquidation, incapacity or other event had not occurred, regardless of whether or not the Custodian or the attorney-in-fact, or either of them, shall have received notice thereof.
Appears in 1 contract
Representations and Warranties of the Selling Stockholders. Each of the Selling Stockholder, Stockholders hereby severally and not jointly, represents and warrants to each Underwriter on the date hereof (except as otherwise set forth herein), and shall be deemed to severally represent and warrant to each Underwriter on the Additional Closing Date, if any, that:
(a) to All consents, approvals, authorizations and orders necessary for the extent that such Selling Stockholder will be delivering certificate(s) representing and/or notice(s) to exercise options for Common Stock to Continental Stock Transfer & Trust Company (the “Custodian”), such Selling Stockholder now is and, at the time of execution and delivery of such Shares and/or notice(s) to exercise (whether at the time of purchase or the additional time of purchase, as the case may be) will be, the lawful owner of the Shares issuable upon exercise of such options to be sold by such Selling Stockholder pursuant to of this Agreement, the Power of Attorney (the "Power of Attorney") and will have valid and marketable title the Custody Agreement (the "Custody Agreement") referred to in the Shares issuable upon exercise last paragraph of such optionsthis Section 7, and upon for the sale and 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 claim, lien, encumbrance, security interest, community property right, restriction on transfer or other defect in title;
(b) to the extent that such Selling Stockholder will be delivering Common Stock to the Custodian, such Selling Stockholder now is and at the time of delivery of such Shares (whether at the time of purchase or the 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 hereunder, have been obtained; and has and, at the time of delivery thereof, will have valid and marketable title to such Shares, and upon delivery of and payment for such Shares (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 claim, lien, encumbrance, security interest, community property right, restriction on transfer or other defect in title;
(c) 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 at the time of purchase or the additional time of purchase, as the case may be) will have, full legal right, power and capacityauthority to enter into this Agreement, the Power of Attorney and the Custody Agreement, 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 pursuant to this Agreement;
(d) such Selling Stockholder has and at the time of delivery of such Shares (whether at 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 Shares in the manner provided in this Agreement;
(e) this Agreement and each Custody Agreement between the Custodian and the Selling Stockholders (each, a “Custody Agreement”) have been duly executed and delivered by such Selling Stockholder and, with respect to the Custody Agreement only, assuming due authorization, execution and delivery by the Custodian, each is a legal, valid and binding agreement of such Selling Stockholder enforceable in accordance with its terms;
(f) such Selling Stockholder has duly and irrevocably authorized the Representatives of the Selling Stockholders, 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 thereby and to deliver the Shares to be sold by such Selling Stockholder hereunder.
(b) This Agreement, the Power of Attorney and receive the Custody Agreement have been duly authorized, executed and delivered by such Selling Stockholder and this Agreement, the Power of Attorney and the Custody Agreement constitute the valid and binding agreements of such Selling Stockholder enforceable against such Selling Stockholder in accordance with their respective terms, except as may be limited by bankruptcy, insolvency, reorganization or other laws of general application relating to or affecting enforcement of creditors' rights generally or the availability of equitable remedies, regardless of whether such enforcement is considered in a proceeding in equity or at law; the performance of this Agreement, the Power of Attorney and the Custody Agreement and the consummation of the transactions contemplated herein and therein will not 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, voting trust agreement, note agreement, lease or other agreement or instrument to which such Selling Stockholder is a party or by which such Selling Stockholder or such Selling Stockholder's properties are bound, or under any order, rule or regulation of any court or governmental agency or body applicable to such Selling Stockholder or the business or property of such Selling Stockholder.
(c) Such Selling Stockholder has, and immediately prior to the Additional Closing Date, if any, 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, stockholder agreements, voting trusts or claims of any nature whatsoever, and, upon delivery of such Shares and payment therefor pursuant hereto;, good and valid title to such Shares, free and clear of all liens, encumbrances, equities, stockholder agreements, voting trusts or claims of any nature whatsoever (other than these arising by or through the Underwriters), will pass to the several Underwriters.
(d) Such Selling Stockholder will not, during the Lock-up Period, effect the Disposition of any Securities now owned or hereafter acquired by such Selling Stockholder or with respect to which such Selling Stockholder has or hereafter acquires the power of disposition, without the prior written consent of Xxxxxxx Xxxxx & Associates. The foregoing restriction is expressly agreed to preclude the holder of the Securities from engaging in any hedging or other transaction which is designed to or reasonably expected to lead to or result in a Disposition of Securities during the Lock-up Period, even if such Securities would be disposed of by someone other than the Selling Stockholder. Such prohibited hedging or other transactions would include, without limitation, any short sale (whether or not against the box) or any purchase, sale or grant of any right (including, without limitation, any put or call option) with respect to any Securities or with respect to any security (other than a broad-based market basket or index) that includes, relates to or derives any significant part of its value from Securities. Such Selling Stockholder also agrees and consents to the entry of stop transfer instructions with the Company's transfer agent against the transfer of the securities held by such Selling Stockholder except in compliance with this restriction.
(e) Such Selling Stockholder has not taken, and will not take, directly or indirectly, any action designed to or which has constituted or which might reasonably be expected to cause or result in stabilization or manipulation of the price of any security of the Company to facilitate the sale or resale of the Shares or otherwise.
(f) No consent, approval, authorization or order of, or any filing or declaration with, any court or governmental agency or body is required for the consummation by the Selling Stockholder of the transactions on his part contemplated herein or in the Power of Attorney or the Custody Agreement, except such as have been obtained under the Act and such as may be required under state securities or Blue Sky laws or the by-laws and rules of the NASD in connection with the purchase and distribution by the Underwriters of the Shares to be sold by the Selling Stockholder.
(g) Such Selling Stockholder has read with the Registration Statement, the Prepricing Prospectus and the Prospectus and has no knowledge of any material fact or condition not set forth in the Registration Statement, the Prepricing Prospectus or the Prospectus which has adversely affected, or may reasonably be expected to 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’s Shares pursuant to this Agreement Stockholder is not prompted by any information concerning the Company which is not set forth in the Prospectus; andsuch knowledge.
(h) All information with respect to such Selling Stockholder contained in the Registration Statement, the Prepricing Prospectus and the Prospectus and (as amended or supplemented, if the Company shall have filed with the Commission any amendment or supplement thereto, on the date of filing thereof ) complied and will comply in all material respects with the Commission pursuant to Rule 424(b) and at the time of purchase and, if applicable, at the additional time of purchase, did not or will not include an untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in the light all applicable provisions of the circumstances under which they were madeAct, not misleading; the Registration Statement did not when it became effective, does not contains 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 all statements required to be stated therein or necessary to make the statements therein not misleading; provided, however, that no Selling Stockholder makes any warranty or representation with respect to any statement contained in the Preliminary Prospectus Supplement, the Registration Statement or the Prospectus in reliance upon and in conformity with information concerning an Underwriter and furnished in writing by or on behalf of such Underwriter through you to the Company expressly for use in the Preliminary Prospectus Supplement, the Registration Statement or the Prospectustherein, and provided, further, that no Non-Management Selling Stockholder (as defined herein) makes any warranty or representation with respect to any statement contained in the Prospectus or the Registration Statement other than the Selling Stockholder Information (as defined below) relating to such Selling Stockholder furnished by such Non-Management Selling Stockholder. When the Registration Statement becomes effective does not 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, the Registration Statement and Prospectus, and any supplements or amendments thereto as relate to such Selling Stockholder 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; provided.
(i) Such Selling Stockholder is not aware (without having conducted any investigation or inquiry) that any of the representations and warranties of the Company set forth in Section 6 above is untrue or inaccurate in any material respect.
(j) Other than as permitted by the Act and the Rules and Regulations, howeversuch Selling Stockholder has not distributed and will not distribute any Prepricing Prospectus or any other offering material in connection with the offering and sale of the Shares.
(k) On the Closing Date, and on the Additional Closing Date, if any, all stock transfer and other taxes (other than income taxes) which are required to be paid in connection with the sale and transfer of the Shares to be sold by the Selling Stockholders to the several Underwriters hereunder will have been fully paid by such Selling Stockholder and all laws imposing such taxes will have been fully complied with. In order to document the Underwriters' compliance with the reporting and withholding provisions of the Tax Equity and Fiscal Responsibility Act of 1982 with respect to the transactions herein contemplated, the Selling Stockholders severally agree to deliver to you at least two days prior to the Closing a properly completed and executed United States Treasury Department Form W-9 (or other applicable form or statement specified by Treasury Department regulations in lieu thereof). Each of the Selling Stockholders represents and warrants that certificates in negotiable form representing all of the foregoing representation Shares to be sold by such Selling Stockholder hereunder have been placed in custody under a Custody Agreement, in the form heretofore furnished to you, duly executed and warrantydelivered by such Selling Stockholder to the Company, as it relates custodian (the "custodian"), and that such Selling Stockholder has duly executed and delivered a Power of Attorney, in the form heretofore furnished to you, appointing Xxxxxx X. Xxxxxxx and Xxxxxxxx Xxxx as such NonSelling Stockholder's attorneys-Management in-fact (the "Attorneys-in-Fact") with authority to execute and deliver this Agreement on behalf of such Selling Stockholder, is limited to determine the purchase price to be paid by the Underwriters to the Selling Stockholder Information (Stockholders as defined herein) concerning provided in Section 2 hereof, to authorize the delivery of the Shares to be sold by such Non-Management Selling Stockholder included hereunder or otherwise to act on behalf of such Selling Stockholder in connection with the transactions contemplated by this Agreement and the Custody Agreement. Each of the Selling Stockholders specifically agrees that the Shares represented by the certificates held in custody for such Selling Stockholders under the Custody Agreement are subject to the interest 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 Stockholders hereunder shall not be terminated by operation of law, whether by the death or incapacity of any individual Selling Stockholder or, in the Registration Statement case of an estate or trust, by the death or incapacity of any executor or trustee or the termination of such estate or trust, or in the case of a partnership or corporation, by the dissolution of such partnership or corporation, or by the occurrence of any other event. If any individual Selling Stockholder or any executor or trustee should die or become incapacitated, or if any such estate or trust shall be terminated, or if any such partnership or corporation should be dissolved, or if any other such event should occur before the delivery of the Shares hereunder, certificates representing the Shares shall be delivered by or on behalf of the Selling Stockholders in accordance with the terms and Prospectusconditions 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 supplements of them, shall have received notice of such death, incapacity, termination, dissolution or amendments thereto. Each Non-Management Selling Stockholder severally confirms and the Underwriters acknowledge that the name, address and number of shares of Common Stock beneficially owned by suchother event.
Appears in 1 contract
Representations and Warranties of the Selling Stockholders. Each Selling Stockholder, severally and not jointly, represents and warrants to each Underwriter Underwriter, solely in such Selling Stockholder's capacity as a Selling Stockholder, that:
(a) to the extent that such Such Selling Stockholder will be delivering certificate(s(i) representing and/or notice(s) to exercise options for Common Stock to Continental Stock Transfer & Trust Company (is, and on the “Custodian”), such Selling Stockholder now is and, at the time of delivery of such Shares and/or notice(s) to exercise (whether at the time of purchase or the additional time of purchase, as the case may be) Closing Date will be, the lawful owner of the Shares issuable upon exercise (other than that number of Shares, if any, listed opposite the name of such options Selling Stockholder under the heading "Option Shares" in Schedule III hereto (with respect to each Selling Stockholder, such number of Shares is hereinafter referred to as the "Option Shares")) to be sold by such Selling Stockholder pursuant to this AgreementAgreement and (ii) owns, and on the Closing Date will have valid and marketable title to the Shares issuable upon exercise of such options, and upon delivery of and payment for own such Shares (whether at other than the time of purchase or the additional time of purchase, as the case may beOption Shares), free of all restrictions on transfer, liens, encumbrances, security interests, equities and claims whatsoever, other than pursuant to the Underwriters Custody Agreement (as defined below), if any, the Power of Attorney (as defined below), this Agreement and the restrictions on transfer set forth in the Management Voting Trust Agreement and the Stockholders' Agreement, with which such Selling Stockholder is, and on the Closing Date will acquire valid be, in compliance, and marketable title to other than any such Shares free and clear of any claimrestriction on transfer, lien, encumbrance, security interest, community property right, restriction on transfer equity or other defect in title;
(b) to claim created by an Underwriter or resulting from any actions taken by an Underwriter. If any Shares are listed opposite the extent that such name of a Selling Stockholder will be delivering Common Stock to under the Custodianheading "Option Shares" in Schedule III hereto, such Selling Stockholder now (i) is and at the time holder of delivery of an Award Granted to such Shares (whether at Selling Stockholder under the time of purchase or the additional time of purchaseYoung & Rubicam Holdings Inc. Management Stock Option Plan, as amended (the case may be"PLAN") (as such terms are defined therein), with respect to the Option Shares and (ii) pursuant to the Plan and such Selling Stockholder's Stock Option Agreement (as defined in the Plan), on the Closing Date such Selling Stockholder (A) will be, be the lawful owner of the number of Option Shares to be sold by such Selling Stockholder pursuant to this Agreement and has and, at the time of delivery thereof, (B) will have valid and marketable title to own such Option Shares, and upon delivery in each case subject to the terms of and payment for such Shares (whether at the time of purchase or the additional time of purchase, as the case may be)this Agreement, the Underwriters Custody Agreement and the Power of Attorney, free of all restrictions on transfer, liens, encumbrances, security interests, equities and claims whatsoever, other than the restrictions on transfer set forth in the Management Voting Trust Agreement and the Stockholders' Agreement, with which such Selling 18 Stockholder is, and on the Closing Date will acquire valid be, in compliance, and marketable title to other than any such Shares free and clear of any claimrestriction on transfer, lien, encumbrance, security interest, community property right, restriction on transfer equity or other defect in title;claim created by an Underwriter or resulting from any actions taken by an Underwriter.
(cb) to the extent that such Such Selling Stockholder will be delivering certificates representing and/or notice(s) to exercise options exercisable for Common Stock to has, and on the Custodian, such Selling Stockholder has and at the time of delivery of such certificates and/or notice(s) to exercise (whether at the time of purchase or the additional time of purchase, as the case may be) Closing Date will have, full legal right, power and capacityauthority, and any all authorization and approval required by law law, (i) to enter into this Agreement, the Letter of Transmittal and Custody Agreement, if any, signed by or on behalf of such Selling Stockholder and The Bank of New York, as Custodian (the "CUSTODY AGREEMENT"), relating to the deposit of the Shares (other than those imposed the Option Shares) to be sold by such Selling Stockholder and the Power of Attorney of such Selling Stockholder (the "POWER OF ATTORNEY") appointing certain individuals as such Selling Stockholder's attorneys-in-fact (with respect to the Y&R Selling Stockholders and the KBM Selling Stockholders, the "Y&R ATTORNEYS," with respect to the H&F Selling Stockholders, the "H&F ATTORNEYS," with respect to BearTel, the "BEARTEL ATTORNEYS" and collectively the "ATTORNEYS") to the extent set forth therein, relating to the transactions contemplated hereby and by the Act Registration Statement and the securities or blue sky laws of certain jurisdictions)Custody Agreement, if any, and (ii) to sell, assign, transfer and deliver such options exercisable for on the number of Closing Date the Shares to be sold by such Selling Stockholder pursuant to this Agreement;in the manner provided herein and therein.
(c) This Agreement has been duly authorized, executed, and delivered by or on behalf of such Selling Stockholder.
(d) The Custody Agreement, if any, of such Selling Stockholder has been duly authorized, executed and at the time of delivery delivered by or on behalf of such Shares (whether at the time Selling Stockholder and is a valid and binding agreement of purchase or the additional time of purchasesuch Selling Stockholder, 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 enforceable in the manner provided in this Agreement;accordance with its terms.
(e) this Agreement and each Custody Agreement between the Custodian and the The Power of Attorney of such Selling Stockholders (each, a “Custody Agreement”) have Stockholder has been duly authorized, executed and delivered by such Selling Stockholder and, with respect to the Custody Agreement only, assuming due authorization, execution and delivery by the Custodian, each is a legal, valid and binding agreement instrument of such Selling Stockholder Stockholder, enforceable in accordance with its terms;
(f) , and pursuant to the applicable Power of Attorney, such Selling Stockholder has duly and irrevocably has, among other things, authorized the Representatives applicable Attorneys, or any one of the Selling Stockholders, on behalf of such Selling Stockholderthem, to execute and deliver on such Selling Stockholder's behalf this Agreement Agreement, in the case of both the Y&R Selling Stockholders and the KBM Selling Stockholders, the Custody Agreement, and, in the case of all Selling Stockholders, 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 sale and receive delivery of and payment therefor for the Shares to be sold by such Selling Stockholder pursuant hereto;to this Agreement, the Underwriters will own such Shares, free and clear of all restrictions on transfer, liens, encumbrances, security interests, equities and claims whatsoever, other than any such restriction on transfer, lien, encumbrance, security interest, equity or claim created by an Underwriter or resulting from any actions taken by an Underwriter.
(g) Assuming that the sale representations and warranties of the Company in Section 6 hereof are true and accurate in all material respects, the execution and delivery of this Agreement and the Custody Agreement, if any, and Power of Attorney of such Selling Stockholder by or on behalf of such Selling Stockholder’s Shares pursuant to this Agreement , the compliance by such Selling Stockholder with all the provisions hereof and thereof and the performance by such Selling Stockholder of its obligations hereunder and thereunder will not (i) require any consent, approval, authorization or other order of, or qualification with, any court or governmental agency or body (except such as have been obtained or may be required under the Act or the securities or Blue Sky laws of the various states), (ii) conflict with or constitute a breach of any of the terms or provisions of, or a default under, the organizational documents of such Selling Stockholder, if such Selling Stockholder is not prompted an individual, or any indenture, loan agreement, mortgage, lease or other agreement or instrument to which such Selling Stockholder or any spouse of such Selling Stockholder is a party or by which such Selling Stockholder or any information concerning the Company which spouse or property of such Selling Stockholder is not set forth in the Prospectus; andbound or (iii) violate or conflict with any applicable law or any rule, regulation, judgment, order or decree of any court or any governmental body or agency having jurisdiction over such Selling Stockholder or any spouse or property of such Selling Stockholder.
(h) The information in the Prospectus under the caption "Selling Stockholders" which specifically relates to such Selling Stockholder (consisting of such Selling Stockholder's name and any amendment or supplement thereto, number of shares of Common Stock beneficially owned by such Selling Stockholder both before and after the offering contemplated hereby) will not on the date of filing thereof with the Commission pursuant to Rule 424(b) and at execution of this Agreement or on the time of purchase andClosing Date, if applicable, at the additional time of purchase, did not or will not include an contain any untrue statement of a material fact or omit to state a any material fact required to be stated therein or necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading; .
(i) At any time during the Registration Statement did not when it became effective, does not period commencing on the first business day after the date of this Agreement and will not, at from time to time thereafter for such period as in the time reasonable opinion of purchase and any additional time of purchase, contain an untrue statement of counsel for the Underwriters a material fact or omit to state a material fact prospectus is required by law to be stated therein delivered in connection with sales by an Underwriter or necessary dealer, if there is any change in the information referred to make the statements therein not misleading; providedin Section 7(h) above, however, that no such Selling Stockholder makes any warranty or representation with respect to any statement contained in will promptly notify you and the Preliminary Prospectus Supplement, the Registration Statement or the Prospectus in reliance upon and in conformity with information concerning an Underwriter and furnished in writing Company of such change.
(j) Each certificate signed by or on behalf of such Underwriter through you Selling Stockholder and delivered to the Company expressly Underwriters or counsel for use in the Preliminary Prospectus Supplement, the Registration Statement or the Prospectus, Underwriters pursuant to Section 9(e) shall be deemed to be a representation and provided, further, that no Non-Management Selling Stockholder (as defined herein) makes any warranty or representation with respect to any statement contained in the Prospectus or the Registration Statement other than the Selling Stockholder Information (as defined below) relating to such Selling Stockholder furnished by such Non-Management Selling Stockholder. 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, the Registration Statement and Prospectus, and any supplements or amendments thereto as relate to such Selling Stockholder will not contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading; provided, however, that the foregoing representation and warranty, as it relates to such Non-Management Selling Stockholder, is limited in its capacity as such, to the Selling Stockholder Information (Underwriters as defined herein) concerning such Non-Management Selling Stockholder included in to the Registration Statement and Prospectus, and any supplements or amendments thereto. Each Non-Management Selling Stockholder severally confirms and the Underwriters acknowledge that the name, address and number of shares of Common Stock beneficially owned by suchmatters covered thereby.
Appears in 1 contract
Representations and Warranties of the Selling Stockholders. Each The Selling Stockholder, Stockholders severally represent and not jointly, represents and warrants warrant to each Underwriter that:
(a) to the extent that such Such Selling Stockholder will be delivering certificate(s) representing and/or notice(s) to exercise options for Common Stock to Continental Stock Transfer & Trust Company (the “Custodian”), such Selling Stockholder now is and, at the time of delivery of such Shares and/or notice(s) to exercise (whether at the time of purchase or the additional time of purchase, as the case may be) will be, the lawful owner of the Shares issuable upon exercise of such options to be sold by such Selling Stockholder pursuant to this Agreement, and will have valid and marketable title to the Shares issuable upon exercise of such options, 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 claim, lien, encumbrance, security interest, community property right, restriction on transfer or other defect in title;
(b) to the extent that such Selling Stockholder will be delivering Common Stock to the Custodian, such Selling Stockholder now is and at the time of delivery of such Shares (whether at the time of purchase or the 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 and has andhas, at and on the time of delivery thereofClosing Date (and Option Closing Date, if applicable) will have valid have, good and marketable clear title to such Shares, free of all restrictions on transfer, liens, encumbrances, security interests and upon claims whatsoever.
(b) Upon delivery of and payment for such Shares (whether at the time of purchase or the additional time of purchasepursuant to this Agreement, as the case may be), the Underwriters will acquire valid good and marketable clear title to such Shares will pass to the Underwriters, free and clear of any claimall restrictions on transfer, lienliens, encumbranceencumbrances, security interest, community property right, restriction on transfer or other defect in title;interests and claims whatsoever.
(c) Certificates in negotiable form for such Selling Stockholder's Shares have been placed in custody for delivery pursuant to the extent that such terms of this Agreement, under a Custody Agreement duly authorized,
(d) Such Selling Stockholder will be delivering certificates representing and/or notice(s) to exercise options exercisable for Common Stock to has, and on the Custodian, such Selling Stockholder has and at the time of delivery of such certificates and/or notice(s) to exercise (whether at the time of purchase or the additional time of purchase, as the case may be) Closing Date will have, full legal right, power and capacity, and any approval required by law (other than those imposed by the Act authority to enter into this Agreement and the securities or blue sky laws of certain jurisdictions), to sell, assign, transfer Custody Agreement and deliver such options exercisable for the number of Shares to be sold by such Selling Stockholder pursuant to this Agreement;
(d) such Selling Stockholder has and at the time of delivery of such Shares (whether at 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 Shares in the manner provided in this Agreement;
(e) herein and therein, and this Agreement and each the Custody Agreement between the Custodian and the Selling Stockholders (each, a “Custody Agreement”) have been duly authorized, executed and delivered by or on behalf of such Selling Stockholder and, with respect to and each of this Agreement and the Custody Agreement only, assuming due authorization, execution and delivery by the Custodian, each is a legal, valid and binding agreement of such Selling Stockholder enforceable in accordance with its terms;, except as rights to indemnity and contribution hereunder may be limited by applicable law.
(fe) Such Selling Stockholder has not taken, and will not take, directly or indirectly, any action designed to, or which might reasonably be expected to, cause or result in stabilization or manipulation of the price of any security of the Company to facilitate the sale or resale of the Shares pursuant to the distribution contemplated by this Agreement, and other than as permitted by the Act, such Selling Stockholder has duly not distributed and irrevocably authorized the Representatives of the Selling Stockholders, on behalf of such Selling Stockholder, to execute and deliver this Agreement and will not distribute any prospectus or other document necessary or desirable offering material in connection with the transactions contemplated thereby offering and to deliver the Shares to be sold by such Selling Stockholder and receive payment therefor pursuant hereto;
(g) 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; and
(h) the Prospectus and any amendment or supplement thereto, on the date of filing thereof with the Commission pursuant to Rule 424(b) and at the time of purchase and, if applicable, at the additional time of purchase, did not or will not include an untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading; 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; provided, however, that no Selling Stockholder makes any warranty or representation with respect to any statement contained in the Preliminary Prospectus Supplement, the Registration Statement or the Prospectus in reliance upon and in conformity with information concerning an Underwriter and furnished in writing by or on behalf of such Underwriter through you to the Company expressly for use in the Preliminary Prospectus Supplement, the Registration Statement or the Prospectus, and provided, further, that no Non-Management Selling Stockholder (as defined herein) makes any warranty or representation with respect to any statement contained in the Prospectus or the Registration Statement other than the Selling Stockholder Information (as defined below) relating to such Selling Stockholder furnished by such Non-Management Selling Stockholder. 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, the Registration Statement and Prospectus, and any supplements or amendments thereto as relate to such Selling Stockholder will not contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading; provided, however, that the foregoing representation and warranty, as it relates to such Non-Management Selling Stockholder, is limited to the Selling Stockholder Information (as defined herein) concerning such Non-Management Selling Stockholder included in the Registration Statement and Prospectus, and any supplements or amendments thereto. Each Non-Management Selling Stockholder severally confirms and the Underwriters acknowledge that the name, address and number of shares of Common Stock beneficially owned by such.
Appears in 1 contract
Samples: Underwriting Agreement (Ustel Inc)
Representations and Warranties of the Selling Stockholders. Each Selling StockholderStockholder severally, severally and not jointly, represents and warrants to each Underwriter thatthe Underwriters as follows:
(a) to the extent that such Selling Stockholder will be delivering certificate(s) representing and/or notice(s) to exercise options for Common Stock to Continental Stock Transfer & Trust Company (the “Custodian”), such Such Selling Stockholder now is and, has and at the time of delivery of such Shares and/or notice(s) to exercise Closing Date (whether at the time of purchase or the additional time of purchase, as the case may bedefined herein) will behave good, the lawful owner of the Shares issuable upon exercise of such options to be sold by such Selling Stockholder pursuant to this Agreement, and will have valid and marketable title to the Shares issuable upon exercise of to be sold by such optionsSelling Stockholder, 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 claimpledge, lien, encumbrance, security interest, mortgage, preemptive or similar right, stockholder’s agreement, voting trust, community property right, restriction on transfer claim or defect in title whatsoever and full legal right, power and authority (corporate or otherwise) to effect the sale and delivery of such Shares; such Selling Stockholder, if an individual, is 18 years of age or older, is of sound mind, and is not presently adjudged to be incompetent or otherwise to lack the capacity to contract and no legal guardian has been appointed for such Selling Stockholder; and upon the delivery of, against payment for, such Shares pursuant to this Agreement, the Underwriters will acquire good, valid and marketable title thereto, free and clear of any pledge, lien, encumbrance, security interest, mortgage, preemptive or similar right, stockholder’s agreement, voting trust, community property right, claim or defect in title whatsoever. Other than as created hereby, there are no outstanding options, warrants, rights or other defect in title;agreements or arrangements requiring such Selling Stockholder at any time to transfer any Shares to be sold hereunder.
(b) to All authorizations, approvals, consents and orders necessary for the extent that execution and delivery by such Selling Stockholder will be delivering Common Stock to of the CustodianSelling Stockholder’s Power of Attorney (“Power of Attorney”) and the Letter of Transmittal and Custody Agreement (“Custody Agreement”), the execution and delivery by such Selling Stockholder now is of this Agreement, and at the time of sale and delivery of such Shares (whether at the time of purchase or the additional time of purchase, as the case may be) will be, the lawful owner of the number of those Firm Shares to be sold by such Selling Stockholder pursuant to under this Agreement have been obtained and has and, at the time of delivery thereof, will have valid are in full force and marketable title to such Shares, and upon delivery of and payment for such Shares effect (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 claim, lien, encumbrance, security interest, community property right, restriction on transfer or other defect in title;
(c) 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 Custodianhowever, such Selling Stockholder has makes no representation as to any of the same required from the NASD or under state securities and at Blue Sky laws) and this Agreement, the time Power of delivery of such certificates and/or notice(s) to exercise (whether at 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 Attorney 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 pursuant to this Agreement;
(d) such Selling Stockholder has and at the time of delivery of such Shares (whether at 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 Shares in the manner provided in this Agreement;
(e) this Agreement and each Custody Agreement between the Custodian and the Selling Stockholders (each, a “Custody Agreement”) each have been duly authorized, executed and delivered by such each Selling Stockholder and, with respect to the Custody Agreement only, assuming due authorization, execution and delivery by the Custodian, each is a legal, valid and binding agreement of such Selling Stockholder enforceable against such Selling Stockholder in accordance with its terms;, except as may be limited by bankruptcy, insolvency, reorganization, moratorium or similar laws affecting creditors’ rights generally, and by general principles of equity, and except to the extent that the indemnification and contribution provisions of Section 10 hereof may be limited by federal or state securities laws and public policy considerations in respect thereof.
(fc) The execution, delivery and performance of this Agreement, the Power of Attorney and the Custody Agreement, and the consummation by such Selling Stockholder has duly and irrevocably authorized the Representatives of the transactions herein and therein contemplated and the fulfillment by such Selling StockholdersStockholder of the terms hereof and thereof (including any Lock-Up Agreement (as defined in Section 5(l)) executed by the Selling Stockholder) will not require any consent, on behalf approval, authorization, or other order of any court, regulatory body, administrative agency or other governmental body (except as may be required under the Act, state securities laws or Blue Sky laws) and will not result in a breach of any of the terms and provisions of, or constitute a default under, or constitute an event which with giving of notice, lapse of time or both would constitute a breach of or default under (i) the organizational documents of such Selling Stockholder, if not an individual, or (ii) any provision of any license, indenture, mortgage, deed of trust, note, loan or credit agreement, sale and leaseback arrangement or other agreement or instrument to execute which such Selling Stockholder is a party or by which such Selling Stockholder’s properties may be bound or affected, or (iii) of any decree, judgment, order, federal, state, local or foreign law, including federal or state securities laws, rule or regulation applicable to such Selling Stockholder of any court or of any regulatory body or administrative agency or other governmental body having jurisdiction.
(d) Such Selling Stockholder has not taken and deliver this Agreement will not take, directly or indirectly, any action designed to, or which has constituted, or which might reasonably be expected to cause or result in the stabilization or manipulation of the price of the Common Stock of the Company to facilitate the sale or resale of the Shares and such Selling Stockholder is not aware of any such action taken or to be taken by affiliates of such Selling Stockholder and, other document necessary than as permitted by the Act, the Selling Stockholder will not distribute any prospectus or desirable other offering material in connection with the transactions contemplated thereby offering of the Shares.
(e) Without having undertaken to determine independently the accuracy or completeness of either the representations and warranties of the Company contained herein or the information contained in the Registration Statement, such Selling Stockholder has no reason to deliver believe that the representations and warranties of the Company contained in Section 1 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 Registration Statement which has adversely affected or may adversely affect the business of the Company or any of the Subsidiaries; and the sale of the Shares to be sold by such Selling Stockholder and receive payment therefor pursuant hereto;
(g) the sale of such Selling Stockholder’s Shares pursuant to this Agreement hereto is not prompted by any information concerning the Company or any of the Subsidiaries which is not set forth in the Prospectus; andRegistration Statement.
(hf) the Prospectus and any amendment or supplement thereto, on the date of filing thereof with the Commission pursuant to Rule 424(b) and at the time of purchase and, if applicable, at the additional time of purchase, did not or will not include an untrue statement of a material fact or omit to state a material fact necessary The information in order to make the statements therein, in the light of the circumstances under which they were made, not misleading; the Registration Statement did not when it became effectiveand any amendments thereto, does as specifically refers to such Selling Stockholder, do not and will not, at as the time case may be, in each case as of purchase and any additional time of purchasethe applicable effective 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 therein, in the light of the circumstances under which they were made, not misleading; provided, however, that no Selling Stockholder makes any warranty or representation with respect to any statement contained and such information in the each Preliminary Prospectus Supplement, the Registration Statement or the Prospectus in reliance upon and in conformity with information concerning an Underwriter and furnished in writing by or on behalf of such Underwriter through you to the Company expressly for use in the Preliminary Prospectus Supplement, the Registration Statement or the Prospectus, and provided, further, that no Non-Management Selling Stockholder (as defined herein) makes any warranty or representation with respect to any statement contained in the Prospectus or any amendment or supplement thereto does not and will not, as the Registration Statement other than case may be, in each case as of the Selling Stockholder Information (as defined below) relating to such Selling Stockholder furnished by such Non-Management Selling Stockholder. When the Registration Statement becomes effective applicable filing date and at all times subsequent thereto through the latest of the time of purchaseClosing Date, additional time of purchase or the termination of the offering of the Shares, the Registration Statement and Prospectus, and any supplements or amendments thereto as relate to such Selling Stockholder 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 therein, in the light of the circumstances under which they were made, not misleading; provided.
(g) Each of such Selling Stockholder’s Attorneys-in-Fact, howeveracting alone, that is authorized to execute and deliver this Agreement and the foregoing representation and warranty, as it relates certificates referred to in Section 8 on behalf of such Non-Management Selling Stockholder, to authorize the delivery of those Firm Shares to be sold by such Selling Stockholder under this Agreement and to duly endorse (in blank or otherwise) the certificate or certificates representing such Firm Shares or a stock power or powers with respect thereto, to accept payment therefore, and otherwise to act on behalf of such Selling Stockholder in connection with this Agreement.
(h) Certificates in negotiable form for all Firm 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 and thereunder.
(i) There is limited not pending or threatened against such Selling Stockholder any action, suit or proceeding (or circumstances that may give rise to the same) which (i) questions the validity of this Agreement, the Custody Agreement, the Power of Attorney or of any action taken or to be taken by such Selling Stockholder Information pursuant to or in connection with any of the foregoing or (as defined hereinii) concerning such Non-Management Selling Stockholder included is required to be disclosed in the Registration Statement and the Prospectus which is not so disclosed and such proceedings which are summarized in the Registration Statement and the Prospectus, and if any, are accurately summarized in all material respects.
(j) No stamp duty or similar tax is payable by or on behalf of any supplements Underwriter in connection with (i) the sale of the Firm Shares to be sold by such Selling Stockholder, (ii) the purchase by the Underwriters of the Firm Shares to be sold by such Selling Stockholder, or amendments thereto. Each Non-Management (iii) the consummation by such Selling Stockholder severally confirms of any of its obligations under this Agreement, the Custody Agreement or the Power of Attorney.
(k) Such Selling Stockholder does not have any registration rights or other similar rights with respect to any securities of the Company which are not satisfied by the registration contemplated by the Registration Statement, and such Selling Stockholder does not have any right of first refusal or other similar right to purchase any securities of the Company upon the issuance or sale thereof by the Company or upon the sale thereof by any other stockholder of the Company.
(l) Neither such Selling Stockholder nor to the knowledge of such Selling Stockholder any associate of such Selling Stockholder is affiliated with any firm directly or indirectly engaged in the securities business as a broker or dealer, as an employee acting in any capacity (including that of an officer or registered representative), as a director or partner, or as an equity investor or debt investor, excluding for this purpose (i) any ownership of debt arising as a result of trading activities and (ii) any investment in publicly traded securities of corporations that themselves have investments in firms in the securities business provided such Selling Stockholder’s ownership of such publicly traded securities does not exceed 5% of such class.
(m) Such Selling Stockholder has not since the filing of the initial Registration Statement (i) sold, bid for, purchased, attempted to induce any person to purchase, or paid anyone any compensation for soliciting purchases of, Common Stock, or (ii) paid or agreed to pay to any person any compensation for soliciting another to purchase any securities of the Company (except for the sale of the Firm Shares by the Selling Stockholders to the Underwriters acknowledge that under this Agreement and except as otherwise permitted by law). Any list or other statement or information set forth in the namePower of Attorney, address Custody Agreement, this Agreement or in any certificate or other instrument delivered by the Selling Stockholder pursuant to the Power of Attorney, Custody Agreement or this Agreement, shall be deemed a representation and number warranty by the Selling Stockholder to the Underwriters and shall be deemed to be a part of shares of Common Stock beneficially owned this Section 2 and incorporated herein by suchreference.
Appears in 1 contract
Representations and Warranties of the Selling Stockholders. Each of the Selling Stockholder, Stockholders severally and not jointly, represents and warrants to each Underwriter and the Company that:
(a) to the extent that Such Selling Stockholder has and on each Closing Date hereinafter mentioned, such Selling Stockholder will be delivering certificate(s) representing and/or notice(s) to exercise options for Common Stock to Continental Stock Transfer & Trust Company (the “Custodian”), such Selling Stockholder now is and, at the time of delivery of such Shares and/or notice(s) to exercise (whether at the time of purchase or the additional time of purchase, as the case may be) will be, the lawful owner of the Shares issuable upon exercise of such options to be sold by such Selling Stockholder pursuant to this Agreement, and will have valid and marketable unencumbered title to the Shares issuable upon exercise of such options, 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 claim, lien, encumbrance, security interest, community property right, restriction on transfer or other defect in title;
(b) to the extent that such Selling Stockholder will be delivering Common Stock to the Custodian, such Selling Stockholder now is and at the time of delivery of such Shares (whether at the time of purchase or the 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 on such Closing Date and has and, at the time of delivery thereof, will have valid and marketable title to such Shares, and upon delivery of and payment for such Shares (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 claim, lien, encumbrance, security interest, community property right, restriction on transfer or other defect in title;
(c) 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 at the time of purchase or the additional time of purchase, as the case may be) will have, full legal right, power and capacity, authority to enter into this Agreement 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 pursuant to this Agreement;
(d) such Selling Stockholder has and at the time of delivery of such Shares (whether at 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 Shares in the manner provided in this Agreement;
(e) this Agreement and each Custody Agreement between the Custodian and the Selling Stockholders (each, a “Custody Agreement”) have been duly executed and delivered by such Selling Stockholder and, with respect to the Custody Agreement only, assuming due authorization, execution and delivery by the Custodian, each is a legal, valid and binding agreement of such Selling Stockholder enforceable in accordance with its terms;
(f) such Selling Stockholder has duly and irrevocably authorized the Representatives of the Selling Stockholders, 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 thereby and to deliver the Shares to be sold by such Selling Stockholder on such Closing Date hereunder; and receive upon the delivery of and payment therefor pursuant hereto;for the Shares on each Closing Date hereunder each Underwriter will acquire valid and unencumbered title to the Shares to be delivered by such Selling Stockholder to such Underwriter on such Closing Date.
(gb) 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; and
(h) the Prospectus and any amendment or supplement thereto, on the date of filing thereof with the Commission pursuant to Rule 424(b) and at the time of purchase and, if applicableThe Pricing Disclosure Package, at the additional time Applicable Time did not, and as of purchasethe Closing Date and as of the Additional Closing Date, did not or as the case may be, will not include an not, contain any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading; provided that this representation and warranty is limited solely to information about such Selling Stockholder provided by such Selling Stockholder to the Company expressly for use in the Pricing Disclosure Package.
(c) Other than the Registration Statement, the Preliminary Prospectus and the Prospectus, such Selling Stockholder (including its agents and representatives, other than the Underwriters in their capacity as such) has not prepared, used, authorized, approved or referred to and will not prepare, use, authorize, approve or refer to any Issuer Free Writing Prospectus, other than (i) any document not constituting a prospectus pursuant to Section 2(a)(10)(a) of the Securities Act or Rule 134 under the Securities Act or (ii) the documents listed on Annex B hereto, each electronic road show and any other written communications approved in writing in advance by the Company and the Representatives.
(d) As of the applicable effective date of the Registration Statement and any post effective amendment thereto, the Registration Statement and any such post-effective amendment did not when it became effective, does not and will not, at the time of purchase and not contain 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 in order to make the statements therein not misleading; providedand as of the date of the Prospectus and any amendment or supplement thereto and as of the Closing Date and as of the Additional Closing Date, however, that no Selling Stockholder makes any warranty or representation with respect to any statement contained in as the Preliminary Prospectus Supplementcase may be, the Registration Statement or the Prospectus in reliance upon and in conformity with information concerning an Underwriter and furnished in writing by or on behalf of such Underwriter through you to the Company expressly for use in the Preliminary Prospectus Supplement, the Registration Statement or the Prospectus, and provided, further, that no Non-Management Selling Stockholder (as defined herein) makes any warranty or representation with respect to any statement contained in the Prospectus or the Registration Statement other than the Selling Stockholder Information (as defined below) relating to such Selling Stockholder furnished by such Non-Management Selling Stockholder. 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, the Registration Statement and Prospectus, and any supplements or amendments thereto as relate to such Selling Stockholder 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; provided, however, provided that the foregoing this representation and warranty, as it relates to such Non-Management Selling Stockholder, warranty is limited solely to information about such Selling Stockholder provided by such Selling Stockholder to the Selling Stockholder Information (as defined herein) concerning such Non-Management Selling Stockholder included Company expressly for use in the Registration Statement and the Prospectus.
(e) Except as disclosed in the Pricing Disclosure Package, 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.
(f) Such Selling Stockholder has not taken, directly or indirectly, any action that is designed to or that has constituted or that would reasonably be expected to cause or result in the stabilization or manipulation of the price of any security of the Company to facilitate the sale or resale of the Shares.
(g) This Agreement has been duly executed, delivered and, with respect to each Selling Stockholder that is not a natural person, authorized by or on behalf of such Selling Stockholder.
(h) Each of the Custody Agreement (the “Custody Agreement”) and the Power of Attorney (the “Power of Attorney”) has been duly executed, delivered and, with respect to each Selling Stockholder that is not a natural person, authorized by such Selling Stockholder and constitutes a valid and legally binding instrument 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.
(i) The sale of the Shares by such Selling Stockholder pursuant to this Agreement is not prompted by any material information concerning the Company or any of its subsidiaries that is not set forth the Pricing Disclosure Package.
(j) No consent, approval, authorization or order of, or filing with, any person (including any governmental agency or body or any court) is required to be obtained or made by any Selling Stockholders for the consummation of the transactions contemplated by the Custody Agreement or this Agreement in connection with the offering and sale of the Shares sold by the Selling Stockholders, except such as have been obtained and made under the Securities Act and such as may be required under state securities laws.
(k) The execution, delivery and performance of the Custody Agreement and this Agreement and the consummation of the transactions therein and herein contemplated will not result in a breach or violation of any of the terms and provisions of, or constitute a default under, or result in the imposition of any lien, charge or encumbrance upon any property or assets of any Selling Stockholders pursuant to, any statute, any rule, regulation or order of any governmental agency or body or any court having jurisdiction over any Selling Stockholder or any of their properties or any agreement or instrument to which any Selling Stockholder is a party or by which any Selling Stockholder is bound or to which any of the properties of any Selling Stockholder is subject or the charter or by-laws of any Selling Stockholder that is a corporation or the constituent documents of any Selling Stockholder that is not a natural person or a corporation; Each of the Selling Stockholders represents and warrants that certificates in negotiable form representing all of the Shares to be sold by such Selling Stockholders hereunder have been placed in custody under a custody agreement relating to such Shares, in the form heretofore furnished to you, duly executed and delivered by such Selling Stockholder to American Stock Transfer and Trust Company, as custodian (the “Custodian”), and that such Selling Stockholder has duly executed and delivered Powers of Attorney, in the form heretofore furnished to you, appointing the person or persons indicated in Schedule II hereto, and each of them, as such Selling Stockholder’s Attorneys-in-fact (the “Attorneys-in-Fact” or any supplements or amendments theretoone of them the “Attorney-in Fact”) with authority to execute and deliver this Agreement on behalf of such Selling Stockholder, to determine the purchase price to be paid by the Underwriters to the Selling Stockholders as provided herein, to authorize the delivery of the Shares to be sold by such Selling Stockholder hereunder and otherwise to act on behalf of such Selling Stockholder in connection with the transactions contemplated by this Agreement and the Custody Agreement. Each Non-Management of the Selling Stockholders specifically agrees that the Shares represented by the certificates held in custody for such Selling Stockholder severally confirms 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 Underwriters acknowledge 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 nameobligations of such Selling Stockholder hereunder shall not be terminated by operation of law, address 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 number conditions of shares this Agreement and the Custody Agreement, and actions taken by the Attorneys-in-Fact pursuant to the Powers of Common Stock beneficially owned by suchAttorney shall be as valid as if such death, incapacity, termination, dissolution or other event had not occurred, regardless of whether or not the Custodian, the Attorneys-in-Fact, or any of them, shall have received notice of such death, incapacity, termination, dissolution or other event.
Appears in 1 contract
Samples: Underwriting Agreement (Enernoc Inc)
Representations and Warranties of the Selling Stockholders. Each The Selling StockholderStockholders jointly and severally represent and warrant to, severally and not jointlyagree with, represents and warrants to each Underwriter of the Underwriters that:
(a) They (i) have the full right, power and authority to execute and deliver this Agreement; (ii) on the extent that such Selling Stockholder Option Closing Date will be delivering certificate(s) representing and/or notice(s) to exercise options for Common Stock to Continental Stock Transfer & Trust Company (the “Custodian”), such Selling Stockholder now is and, at the time of delivery of such Shares and/or notice(s) to exercise (whether at the time of purchase or the additional time of purchase, as the case may be) will be, the lawful owner owners of the Shares issuable upon exercise of such options to be sold by such Selling Stockholder pursuant to this AgreementStockholders' Optional Shares, and will have valid and marketable title to the Shares issuable upon exercise of such options, 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 claimall liens, liencharges, encumbrance, security interest, community property right, restriction encumbrances and restrictions; (iii) have paid the full purchase price required to be paid for such Stock; (iv) on the Option Closing Date will have paid or provided for all stock transfer or other defect taxes (other than income taxes) required to be paid by the Selling Stockholders in title;
(b) to connection with the extent that such Selling Stockholder will be delivering Common Stock to the Custodian, such Selling Stockholder now is sale and at the time of delivery of such Shares (whether at the time of purchase or the additional time of purchase, as the case may be) will be, the lawful owner transfer of the number of Selling Stockholders' Optional Shares to be sold by and all laws imposing such Selling Stockholder pursuant to this Agreement and has and, at the time of delivery thereof, taxes will have valid been fully complied with; and marketable title to such Shares, and upon delivery of and payment for such Shares (whether at v) on the time of purchase or Option Closing Date will have 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 claim, lien, encumbrance, security interest, community property right, restriction on transfer or other defect in title;
(c) 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 at 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), authority to sell, assign, transfer and deliver such options exercisable for the number of Selling Stockholders' Optional Shares hereunder and convey good and marketable title to be sold by such Selling Stockholder pursuant to this Agreement;Stockholders' Optional Shares, free and clear of all liens, charges, encumbrances, equities, claims and restrictions whatsoever.
(db) such Selling Stockholder This Agreement has and at the time of delivery of such Shares (whether at 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 Shares in the manner provided in this Agreement;
(e) this Agreement and each Custody Agreement between the Custodian and the Selling Stockholders (each, a “Custody Agreement”) have been duly authorized executed and delivered by such the Selling Stockholder and, with respect to Stockholders. This Agreement constitutes the Custody Agreement only, assuming due authorization, execution and delivery by the Custodian, each is a legal, valid and binding agreement agreements of such the Selling Stockholder Stockholders enforceable in accordance with its terms;.
(fc) such Neither the execution and delivery of this Agreement nor the consummation of the transactions herein or contemplated nor the compliance with the terms hereof by the Selling Stockholder has duly Stockholders will conflict with, or result in a breach of any of the terms or provisions of, or constitute a default under any indenture, mortgage deed of trust, purchase agreement or other agreement or instrument to which the Selling Stockholders or any one of them is a party or by which the Selling Stockholders are bound and irrevocably authorized no consent, approval, authorization or order of any court or governmental agency or body is required for the Representatives consummation by the Selling Stockholders of the transactions on the Selling Stockholders' part herein contemplated, on behalf except such as may be required under the Act or under state securities or blue sky laws.
(d) The Selling Stockholders have not, and at the Option Closing Date will not have, taken, and agree that they will not take, directly or indirectly, any action to cause or result in, or which has constituted, or might reasonably be expected to constitute, the stabilization or manipulation of such the price of the Stock to facilitate the sale or resale of any of the Shares. Other than as permitted by the Act and the Rules and Regulations thereunder, the Selling StockholderStockholders have not distributed and will not distribute any Preliminary Prospectus, to execute and deliver this Agreement and the Prospectus or any other document necessary or desirable offering material in connection with the transactions contemplated thereby offering and to deliver the Shares to be sold by such Selling Stockholder and receive payment therefor pursuant hereto;
(g) 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; and
(h) the Prospectus and any amendment or supplement thereto, on the date of filing thereof with the Commission pursuant to Rule 424(b) and at the time of purchase and, if applicable, at the additional time of purchase, did not or will not include an untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading; 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; provided, however, that no Selling Stockholder makes any warranty or representation with respect to any statement contained in the Preliminary Prospectus Supplement, the Registration Statement or the Prospectus in reliance upon and in conformity with information concerning an Underwriter and furnished in writing by or on behalf of such Underwriter through you to the Company expressly for use in the Preliminary Prospectus Supplement, the Registration Statement or the Prospectus, and provided, further, that no Non-Management Selling Stockholder (as defined herein) makes any warranty or representation with respect to any statement contained in the Prospectus or the Registration Statement other than the Selling Stockholder Information (as defined below) relating to such Selling Stockholder furnished by such Non-Management Selling Stockholder. 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, the Registration Statement and Prospectus, and any supplements or amendments thereto as relate to such Selling Stockholder will not contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading; provided, however, that the foregoing representation and warranty, as it relates to such Non-Management Selling Stockholder, is limited to the Selling Stockholder Information (as defined herein) concerning such Non-Management Selling Stockholder included in the Registration Statement and Prospectus, and any supplements or amendments thereto. Each Non-Management Selling Stockholder severally confirms and the Underwriters acknowledge that the name, address and number of shares of Common Stock beneficially owned by such.
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) to the extent that such Selling Stockholder will be delivering certificate(s) representing and/or notice(s) to exercise options for Common Stock to Continental Stock Transfer & Trust Company (the “Custodian”), such Selling Stockholder now is and, at the time of delivery of such Shares and/or notice(s) to exercise (whether at the time of purchase or the additional time of purchase, as the case may be) will be, the lawful owner of the Shares issuable upon exercise of such options to be sold by such Selling Stockholder pursuant to this Agreement, and will have valid and marketable title to the Shares issuable upon exercise of such options, 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 claim, lien, encumbrance, security interest, community property right, restriction on transfer or other defect in title;
(b) to the extent that such Selling Stockholder will be delivering Common Stock to the Custodian, such Selling Stockholder now is and at the time of delivery of such Shares (whether at the time of purchase or the 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 and has and, at the time of delivery thereof, will have valid and marketable title to such Shares, and upon delivery of and payment for such Shares (whether at the time of purchase or the additional time of purchase, as the case may be)Shares, the Underwriters will acquire valid and marketable title to such Shares free and clear of any claim, lien, encumbrance, security interest, community property right, restriction on transfer or other defect in title;
(c) 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 at 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 pursuant to this Agreement;
(db) such Selling Stockholder has and at the time of delivery of such Shares (whether at 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 Shares in the manner provided in this Agreement;
(ec) this Agreement and each Custody Agreement between the Custodian and the Selling Stockholders (each, a “Custody Agreement”) have been duly executed and delivered by such Selling Stockholder and, with respect to the Custody Agreement only, assuming due authorization, execution and delivery by the Custodian, each is a legal, valid and binding agreement of such Selling Stockholder enforceable in accordance with its terms;
(f) such Selling Stockholder has duly and irrevocably authorized the Representatives of the Selling Stockholders, on behalf knowledge of such Selling Stockholder, to execute and deliver this Agreement and any other document necessary or desirable in connection with the transactions contemplated thereby and to deliver the Shares to be sold by such Selling Stockholder and receive payment therefor pursuant hereto;
(g) 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; and
(h) the Prospectus and any amendment or supplement thereto, on the date of filing thereof with the Commission pursuant to Rule 424(b) and at the time of purchase and, if applicable, at the additional time of purchase, did not or will not include an untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading; the Registration Statement did not not, when it became effective, does not and will not, at the time of purchase and any additional time of purchase, not contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading and the Prospectus 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 light of the circumstances under which they were made, not misleading; provided, however, that no such Selling Stockholder makes any no warranty or representation with respect to any statement contained in the Preliminary Prospectus SupplementProspectus, the Registration Statement or the Prospectus in reliance upon and in conformity with information concerning an Underwriter and furnished in writing by or on behalf of such Underwriter through you to the Company expressly for use in the Preliminary Prospectus SupplementProspectus, the Registration Statement or the Prospectus, and provided, further, that no Non-Management ; and
(d) the sale of such Selling Stockholder (as defined herein) makes Stockholder’s Shares pursuant to this Agreement is not prompted by any warranty or representation with respect to any statement contained information concerning the Company which is not set forth in the Prospectus or the Registration Statement other than the Selling Stockholder Information (as defined below) relating to such Selling Stockholder furnished by such Non-Management Selling Stockholder. 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, the Registration Statement and Prospectus, and any supplements or amendments thereto as relate to such Selling Stockholder will not contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading; provided, however, that the foregoing representation and warranty, as it relates to such Non-Management Selling Stockholder, is limited to the Selling Stockholder Information (as defined herein) concerning such Non-Management Selling Stockholder included in the Registration Statement and Prospectus, and any supplements or amendments thereto. Each Non-Management Selling Stockholder severally confirms and the Underwriters acknowledge that the name, address and number of shares of Common Stock beneficially owned by such.
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 each Underwriter that:
(a) to the extent that such Selling Stockholder will be delivering certificate(s) representing and/or notice(s) to exercise options for Common Stock to Continental Stock Transfer & Trust Company (the “Custodian”), such Such Selling Stockholder now is andhas, at and on the time 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 delivery of any lien, claim, security interest or other encumbrance, including, without limitation, any restriction on transfer or other defect in title.
(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 law (except such Shares and/or notice(s) to exercise (whether at as may be required under the time of Act or state securities or Blue Sky laws governing the purchase or the additional time of purchase, as the case may be) will be, the lawful owner and distribution of the Shares), to sell, assign, transfer and deliver the Shares issuable upon exercise of such options to be sold by such Selling Stockholder pursuant to in the manner provided in this Agreement, and will have valid and marketable title to the Shares issuable upon exercise of such options, 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)hereunder, the several Underwriters will acquire valid and marketable title to such Shares Shares, free and clear of any claim, lien, encumbranceclaim, security interest, community property right, or other encumbrance or restriction on transfer or other defect in title;
(b) to the extent that such Selling Stockholder will be delivering Common Stock to the Custodian, such Selling Stockholder now is and at the time of delivery of such Shares (whether at the time of purchase or the 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 and has and, at the time of delivery thereof, will have valid and marketable title to such Shares, and upon delivery of and payment for such Shares (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 claim, lien, encumbrance, security interest, community property right, restriction on transfer or other defect in title;.
(c) to This Agreement and the extent that Custody Agreement have been duly authorized, and the Custody Agreement has been, and this Agreement, when executed and delivered on behalf of such Selling Stockholder will be delivering certificates representing and/or notice(s) to exercise options exercisable for Common Stock to in accordance with the CustodianCustody Agreement, such Selling Stockholder has and at the time of delivery of such certificates and/or notice(s) to exercise (whether at the time of purchase or the additional time of purchase, as in the case may be) will haveof the Pecks Managed Entities, full legal rightby Pecks Management Partners, power and capacityLtd., 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 pursuant to this Agreement;
(d) such Selling Stockholder has and at the time of delivery of such Shares (whether at 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 Shares in the manner provided in this Agreement;
(e) this Agreement and each Custody Agreement between the Custodian and the Selling Stockholders (each, a “Custody Agreement”) have been duly executed and delivered by such Selling Stockholder and, with respect to the Custody Agreement only, assuming due authorization, execution and delivery by the Custodian, each is a legal, valid and binding agreement of such Selling Stockholder enforceable in accordance with its terms;
(f) such Selling Stockholder has duly and irrevocably authorized the Representatives of the Selling Stockholders, or 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 thereby and to deliver the Shares to be sold by such Selling Stockholder and receive payment therefor pursuant hereto;
(g) are the sale valid and binding agreements of such Selling Stockholder’s Shares pursuant , enforceable against such Selling Stockholder in accordance with their respective terms, except as rights to indemnity and contribution hereunder may be limited by federal or state securities laws or principles of public policy and except as enforcement hereof and thereof may be limited by bankruptcy, fraudulent conveyance, insolvency, reorganization, moratorium and other laws relating to or affecting creditors' rights generally and by general equitable principles.
(d) Neither the execution and delivery of this Agreement is not prompted by any information concerning the Company which is not set forth in the Prospectus; and
(h) the Prospectus and any amendment or supplement thereto, on the date of filing thereof with the Commission pursuant to Rule 424(b) and at the time of purchase and, if applicable, at the additional time of purchase, did not or will not include an untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading; 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; provided, however, that no Selling Stockholder makes any warranty or representation with respect to any statement contained in the Preliminary Prospectus Supplement, the Registration Statement or the Prospectus in reliance upon and in conformity with information concerning an Underwriter and furnished in writing Custody Agreement by or on behalf of such Underwriter through you to the Company expressly for use in the Preliminary Prospectus Supplement, the Registration Statement or the Prospectus, and provided, further, that no Non-Management Selling Stockholder (as defined herein) makes any warranty nor the consummation of the transactions herein or representation with respect to any statement contained in the Prospectus therein contemplated by or the Registration Statement other than the Selling Stockholder Information (as defined below) relating to on behalf of such Selling Stockholder furnished by requires any consent, approval, authorization or order of, or filing or registration with, any court, regulatory body, administrative agency or other governmental body, agency or official (except such Non-Management Selling Stockholder. When as may be required under the Registration Statement becomes effective Act or state securities or Blue Sky laws governing the purchase and at all times subsequent thereto through the latest of the time of purchase, additional time of purchase or the termination of the offering distribution of the Shares) or conflicts or will conflict with or constitutes or will constitute a breach of, the Registration Statement and Prospectusor default under, and any supplements or amendments thereto as relate to such Selling Stockholder violates or will not contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading; providedviolate, however, that the foregoing representation and warranty, as it relates to such Non-Management Selling Stockholder, is limited to the Selling Stockholder Information (as defined herein) concerning such Non-Management Selling Stockholder included in the Registration Statement and Prospectus, and any supplements or amendments thereto. Each Non-Management Selling Stockholder severally confirms and the Underwriters acknowledge that the name, address and number of shares of Common Stock beneficially owned by suchany
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) to the extent that such Such Selling Stockholder will be delivering certificate(s) representing and/or notice(s) to exercise options for Common Stock to Continental Stock Transfer & Trust Company (the “Custodian”), such Selling Stockholder now is and, at the time of delivery of such Shares and/or notice(s) to exercise (whether at the time of purchase or the additional time of purchase, as the case may be) will be, the lawful owner of the Shares issuable upon exercise of such options to be sold by such Selling Stockholder pursuant to this Agreement, and will have valid and marketable title to the Shares issuable upon exercise of such options, 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 claim, lien, encumbrance, security interest, community property right, restriction on transfer or other defect in title;
(b) to the extent that such Selling Stockholder will be delivering Common Stock to the Custodian, such Selling Stockholder now is and at the time of delivery of such Shares (whether at the time of purchase or the 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 and has andhas, at and on the time of delivery thereofClosing Date (and the Option Closing Date with respect to the Additional Shares sold by such Selling Stockholder, if applicable) will have valid have, good and marketable clear title to such Shares, and upon delivery free of and payment for such Shares (whether at the time of purchase or the additional time of purchaseall restrictions on transfer, as the case may be)liens, the Underwriters will acquire valid and marketable title to such Shares free and clear of any claim, lien, encumbranceencumbrances, security interestinterests, community property right, restriction on transfer or other defect in title;equities and claims whatsoever.
(cb) to the extent that such Such Selling Stockholder will be delivering certificates representing and/or notice(s) to exercise options exercisable for Common Stock to has, and on the Custodian, such Selling Stockholder has and at the time of delivery of such certificates and/or notice(s) to exercise (whether at the time of purchase or the additional time of purchase, as the case may be) Closing Date will have, full legal right, power and capacityauthority, and any all authorization and approval required by law law, to enter into this Agreement, the Custody Agreement signed by such Selling Stockholder and Boston EquiServe L.P., as Custodian, relating to the deposit of the Shares to be sold by such Selling Stockholder (other than those imposed the "CUSTODY AGREEMENT") and the Power of Attorney of such 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 by the Act Registration Statement and the securities or blue sky laws of certain jurisdictions), Custody Agreement (the "POWER OF ATTORNEY") and to sell, assign, transfer and deliver such options exercisable for the number of Shares to be sold by such Selling Stockholder pursuant to this Agreement;in the manner provided herein and therein.
(c) This Agreement has been duly authorized, executed and delivered by or on behalf of such Selling Stockholder.
(d) The Custody Agreement of such Selling Stockholder has and at the time of delivery of such Shares (whether at 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 Shares in the manner provided in this Agreement;
(e) this Agreement and each Custody Agreement between the Custodian and the Selling Stockholders (each, a “Custody Agreement”) have been duly authorized, executed and delivered by such Selling Stockholder and, with respect to the Custody Agreement only, assuming due authorization, execution and delivery by the Custodian, each is a legal, valid and binding agreement of such Selling Stockholder Stockholder, enforceable in accordance with its terms;.
(fe) The Power of Attorney of such Selling Stockholder has been duly authorized, executed and irrevocably authorized the Representatives of the delivered by such Selling Stockholders, on behalf 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.
(f) Upon delivery of and receive payment therefor for the Shares to be sold by such Selling Stockholder pursuant hereto;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 sale Custody Agreement and Power of Attorney of such Selling Stockholder by or on behalf of such Selling Stockholder’s Shares pursuant to this Agreement , the compliance by such Selling Stockholder with all the provisions hereof and thereof and the consummation of the transactions contemplated hereby and thereby will not (i) require any consent, approval, authorization or other order of, or qualification with, any court or governmental body or agency (except such as may be required under the securities or Blue Sky laws of the various states), (ii) conflict with or constitute a breach of any of the terms or provisions of, or a default under, the organizational documents of such Selling Stockholder, if such Selling Stockholder is not prompted an individual, or any indenture, loan agreement, mortgage, lease or other agreement or instrument to which such Selling Stockholder is a party or by which such Selling Stockholder or any information concerning the Company which property of such Selling Stockholder is not set forth in the Prospectus; andbound or (iii) violate or conflict with any applicable law or any rule, regulation, judgment, order or decree of any court or any governmental body or agency having jurisdiction over such Selling Stockholder or any property of such Selling Stockholder.
(h) The information in the Prospectus Registration Statement under the caption "Principal and any amendment or supplement theretoSelling Stockholders" which specifically relates to such Selling Stockholder does not, and will not on the date of filing thereof with the Commission pursuant to Rule 424(b) and at the time of purchase andClosing Date, if applicable, at the additional time of purchase, did not or will not include an contain any untrue statement of a material fact or omit to state a any material fact required to be stated therein or necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading; .
(i) At any time during the Registration Statement did not when it became effectiveperiod described in Section 5(d), does not and will notif there is any change in the information referred to in Section 7(h), 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; provided, however, that no such Selling Stockholder makes any warranty or representation with respect to any statement contained in the Preliminary Prospectus Supplement, the Registration Statement or the Prospectus in reliance upon and in conformity with information concerning an Underwriter and furnished in writing will immediately notify you of such change.
(j) Each certificate signed by or on behalf of such Underwriter through you Selling Stockholder and delivered to the Company expressly Underwriters or counsel for use in the Preliminary Prospectus Supplement, the Registration Statement or the Prospectus, Underwriters shall be deemed to be a representation and provided, further, that no Non-Management Selling Stockholder (as defined herein) makes any warranty or representation with respect to any statement contained in the Prospectus or the Registration Statement other than the Selling Stockholder Information (as defined below) relating to by such Selling Stockholder furnished by such Non-Management Selling Stockholder. 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, the Registration Statement and Prospectus, and any supplements or amendments thereto as relate to such Selling Stockholder will not contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading; provided, however, that the foregoing representation and warranty, as it relates to such Non-Management Selling Stockholder, is limited to the Selling Stockholder Information (Underwriters as defined herein) concerning such Non-Management Selling Stockholder included in to the Registration Statement and Prospectus, and any supplements or amendments thereto. Each Non-Management Selling Stockholder severally confirms and the Underwriters acknowledge that the name, address and number of shares of Common Stock beneficially owned by suchmatters covered thereby.
Appears in 1 contract
Representations and Warranties of the Selling Stockholders. Each of the Selling Stockholder, Stockholders severally and not jointly, jointly hereby represents and warrants to each Underwriter thatas of the date hereof, as of the Firm Shares Closing Date and, if the Selling Stockholders are selling Option Shares, as of each such Option Shares Closing Date (if any), as follows:
(a) Such Selling Stockholder has caused certificates covering the number of Shares to the extent that be sold by such Selling Stockholder will hereunder to be delivering certificate(s) representing and/or notice(s) delivered to exercise options for Common Stock to Continental 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 , 2004 between the Custodian and such Selling Stockholder now is and, at substantially in the time of delivery of such Shares and/or notice(s) to exercise form attached hereto as Exhibit B (whether at the time of purchase or the additional time of purchase, as the case may be) will be, the lawful owner of the Shares issuable upon exercise of such options to be sold by such Selling Stockholder pursuant to this “Custody Agreement, and will have valid and marketable title to the Shares issuable upon exercise of such options, 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 claim, lien, encumbrance, security interest, community property right, restriction on transfer or other defect in title;.
(b) to the extent that such Each Selling Stockholder will be delivering Common Stock to has granted an irrevocable power of attorney substantially in the Custodian, such Selling Stockholder now is and at form attached hereto as Exhibit C (the time “Power of delivery of such Shares (whether at the time of purchase or the 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 and has and, at the time of delivery thereof, will have valid and marketable title to such Shares, and upon delivery of and payment for such Shares (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 claim, lien, encumbrance, security interest, community property right, restriction on transfer or other defect in title;
(cAttorney”) 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 at 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 pursuant to this Agreement;
(d) such Selling Stockholder has and at the time of delivery of such Shares (whether at 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 Shares in the manner provided in this Agreement;
(e) this Agreement and each Custody Agreement between the Custodian and the Selling Stockholders (each, a “Custody Agreement”) have been duly executed and delivered by such Selling Stockholder and, with respect to the Custody Agreement only, assuming due authorization, execution and delivery by the Custodian, each is a legal, valid and binding agreement of such Selling Stockholder enforceable in accordance with its terms;
(f) such Selling Stockholder has duly and irrevocably authorized the Representatives of the Selling Stockholdersperson named therein, on behalf of each such Selling Stockholder, to execute and deliver this Agreement and any other document necessary or desirable in connection with the transactions contemplated thereby hereby and to deliver the shares to be sold by each such Selling Stockholder pursuant hereto.
(c) This Agreement, the Custody Agreement, the Power of Attorney and the Lock-Up Agreement have each been duly authorized, executed and delivered by or on behalf of each Selling 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, except as the enforceability thereof may be limited by bankruptcy, insolvency, reorganization, moratorium and other similar laws affecting the enforceability of creditors’ rights generally, general equitable principles, and, with respect to this Agreement, the unenforceability under certain circumstances under law or court decisions of provisions for the indemnification of or contribution to a party.
(d) The execution and delivery by each Selling Stockholder of this Agreement, the Custody Agreement, the Power of Attorney and the Lock-Up Agreement and the performance by each Selling Stockholder of its obligations thereunder, including the sale and delivery of the Shares to be sold by each such Selling Stockholder and the consummation of the transactions contemplated herein and compliance by each Selling Stockholder with its obligations hereunder, do not and will not, whether with or without the giving of notice or the passage of time or both, (i) violate or contravene any provision of the charter or bylaws or other organizational instrument of any Selling 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 constitute a breach of, or default under, or result in the creation or imposition of any tax, lien, charge or encumbrance upon the shares to be sold by any Selling Stockholder or any property or assets of any Selling Stockholder pursuant to the terms of any agreement or instrument to which any Selling Stockholder is a party or by which any Selling Stockholder may be bound or to which any of the property or assets of any Selling Stockholder is subject, or (iii) require any consent, approval, authorization or order of or registration or filing with any court or governmental agency or body having jurisdiction over it, except for such consents, approvals, authorizations or orders of or registrations or filings which have already been obtained and are in full force and effect, and 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 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 Stockholder and receive payment therefor pursuant hereto;in the manner provided by this Agreement.
(g) Assuming that each of the sale Underwriters does not have “notice” of any “adverse claim” (within the meaning of Section 8-105 of the New York Uniform Commercial Code (the “New York UCC”)) to the Shares, upon indication by book entry that the Shares have been credited to securities accounts maintained by the Representatives at the DTC and payment therefor in accordance with this Agreement, the several Underwriters will acquire a securities entitlement with respect to such Selling Stockholder’s Shares pursuant and, under the New York UCC, an action based on an adverse claim to this Agreement is such securities entitlement, whether framed in conversion, replevin, constructive trust, equitable lien or other theory may not prompted by any information concerning be asserted against the Company which is not set forth in the Prospectus; andseveral Underwriters.
(h) 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, and on each Closing Date will not, contain any amendment or supplement thereto, on the date of filing thereof with the Commission pursuant to Rule 424(b) and at the time of purchase and, if applicable, at the additional time of purchase, did not or will not include an untrue statement of a material fact or omit to state any material fact necessary to make such information not misleading it being understood and agreed that the only such information furnished in writing by such Selling Stockholder consists of the name of such Selling Stockholder, the number of shares of Common Stock beneficially owned by, and the number of Firm Shares to be offered by, such Selling Stockholder, and the address and other information with respect to such Selling Stockholder (excluding any percentage) which appears under the caption “Principal and Selling Stockholders” in the Registration Statement and the Prospectus.
(i) Each of JH Capital Partners, L.P., JH Capital Partners II, L.P., Xxxxx.Xxxxxx Co-Investment Vehicle, LP, Xxxxxx Xxxxxx, Jr., Xxxxx Xxxxxxxxx and Xxxxx Xxxxxxx, as a Selling Stockholder, has reviewed the Registration Statement and 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 in order to make the statements made therein not misleading and (ii) on the Effective Date the Prospectus contained and, on each Closing Date contains, no untrue statement of a material fact or omitted or omits to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading; the Registration Statement did not when it became effective, does not and will not, at the time .
(j) The sale 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; provided, however, that no Shares by each Selling Stockholder makes pursuant to this Agreement is not prompted by such Selling Stockholder’s knowledge of any warranty or representation with respect to any statement contained material information concerning the Company which is not set forth in the Preliminary Prospectus SupplementProspectus.
(k) No Selling Stockholder has taken or will take, directly or indirectly, any action designed to or that might reasonably be expected to cause or result in stabilization or manipulation of the Registration Statement or the Prospectus in reliance upon and in conformity with information concerning an Underwriter and furnished in writing by or on behalf price of such Underwriter through you to any security of the Company expressly for use in to facilitate the Preliminary Prospectus Supplement, the Registration Statement sale or the Prospectus, and provided, further, that no Non-Management Selling Stockholder (as defined herein) makes any warranty or representation with respect to any statement contained in the Prospectus or the Registration Statement other than the Selling Stockholder Information (as defined below) relating to such Selling Stockholder furnished by such Non-Management Selling Stockholder. 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 resale of the Shares.
(l) None of JH Capital Partners, the Registration Statement and ProspectusL.P., and any supplements or amendments thereto as relate to such Selling Stockholder will not contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading; providedJH Capital Partners II, howeverL.P., that the foregoing representation and warrantyXxxxx.Xxxxxx Co-Investment Vehicle, LP, Xxxxxx Xxxxxx, Jr., Xxxxx Xxxxxxxxx nor Xxxxx Xxxxxxx, as it relates to such Non-Management a Selling Stockholder, has actual knowledge that any representation or warranty of the Company set forth in Section 2 above is limited to the untrue or inaccurate in any material respect.
(m) The representations and warranties of each Selling Stockholder Information (as defined herein) concerning such Non-Management Selling Stockholder included in the Registration Statement Custody Agreement are and Prospectuson each Closing Date will be, true and any supplements or amendments thereto. Each Non-Management Selling Stockholder severally confirms and the Underwriters acknowledge that the name, address and number of shares of Common Stock beneficially owned by suchcorrect.
Appears in 1 contract
Representations and Warranties of the Selling Stockholders. Each Selling Stockholder, severally and not jointlyjointly with the other Selling Stockholders, represents and warrants to each Underwriter of the Underwriters that:
(a) all Selling Stockholders Statements (as defined below) with respect to the extent that such Selling Stockholder included (i) in the Registration Statement, any Preliminary Prospectus or the Prospectus complied and will comply in all material respects with all applicable provisions of the Act or (ii) in the Registration Statement did not, as of the Effective Time, contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make such Selling Stockholder Statements not misleading; at no time during the period that begins on the earlier of the date of such Preliminary Prospectus and the date such Preliminary Prospectus was filed with the Commission and ends at the time of purchase did or will any Selling Stockholder Statements with respect to such Selling Stockholder in any such Preliminary Prospectus, as then amended or supplemented, include an untrue statement of a material fact or omit to state a material fact necessary in order to make such Selling Stockholder Statements, in the light of the circumstances under which they were made, not misleading, and at no time during such period did or will any Preliminary Prospectus, as then amended or supplemented, together with any combination of one or more of the then issued Permitted Free Writing Prospectuses, if any, contain any Selling Stockholder Statements with respect to such Selling Stockholder that include an untrue statement of a material fact or omit to state a material fact necessary in order to make such Selling Stockholder Statements, in the light of the circumstances under which they were made, not misleading; at no time during the period that begins on the earlier of the date of the Prospectus and the date the Prospectus is filed with the Commission and ends at the later of the time of purchase, the latest additional time of purchase, if any, and the end of the period during which a prospectus is required by the Act to be delivered (whether physically or through compliance with Rule 172 under the Act or any similar rule) in connection with any sale of Shares did or will the Prospectus, as then amended or supplemented, contain any Selling Stockholder Statements with respect to such Selling Stockholder that include an untrue statement of a material fact or omit to state a material fact necessary in order to make such Selling Stockholder Statements, in the light of the circumstances under which they were made, not misleading; at no time during the period that begins on the date of such Permitted Free Writing Prospectus and ends at the time of purchase did or will any Permitted Free Writing Prospectus, contain any Selling Xxxxxxxxxxx Xxxxxxxxxx with respect to such Selling Stockholder that include an untrue statement of a material fact or omit to state a material fact necessary in order to make such Selling Stockholder Statements, in the light of the circumstances under which they were made, not misleading (as used herein “Selling Stockholder Statements” are the statements set forth in the sections of the Registration Statement, any Preliminary Prospectus, the Prospectus or any Permitted Free Writing Prospectus entitled “Selling stockholders” and “Principal stockholders”);
(b) such Selling Stockholder has not, prior to the execution of this Agreement, offered or sold any Shares by means of any “prospectus” (within the meaning of the Act), or used any “prospectus” (within the meaning of the Act) in connection with the offer or sale of the Shares, in each case other than the then most recent Preliminary Prospectus;
(c) neither the execution, delivery and performance of this Agreement or the Custody Agreement or Power of Attorney to which such Selling Stockholder is a party nor the sale by such Selling Stockholder of the Shares to be sold by such Selling Stockholder pursuant to this Agreement nor the consummation of the transactions contemplated hereby or thereby will conflict with, result in any breach or violation of or constitute a default under (or constitute any event which with notice, lapse of time or both would result in any breach or violation of or constitute a default under) (i) if such Selling Stockholder is not an individual, the charter or bylaws or other organizational instruments of such Selling Stockholder, (ii) any indenture, mortgage, deed of trust, bank loan or credit agreement or other evidence of indebtedness, or any license, lease, contract or other agreement or instrument to which such Selling Stockholder is a party or by which such Selling Stockholder or any of its properties may be bound or affected, (iii) any federal, state, local or foreign law, regulation or rule, (iv) or any rule or regulation of any self-regulatory organization or other non-governmental regulatory authority (including, without limitation, the rules and regulations of the NASDAQ), or (v) any decree, judgment or order applicable to such Selling Stockholder or any of its properties, except, in the case of clause (ii), for any such breach, violation, default or acceleration that is described in the Registration Statement (excluding the exhibits thereto), the Preliminary Prospectuses and the Prospectus or that would not, individually or in the aggregate, have a Material Adverse Effect.
(d) no approval, authorization, consent or order of or filing with any federal, state, local or foreign governmental or regulatory commission, board, body, authority or agency, or of or with any self-regulatory organization or other non-governmental regulatory authority (including, without limitation, the NASDAQ), is required in connection with the sale of the Shares to be sold by such Selling Stockholder pursuant to this Agreement or the consummation by such Selling Stockholder of the transactions contemplated hereby or by the Custody Agreement or Power of Attorney to which such Selling Stockholder is a party other than (i) registration of the Shares under the Act, which has been effected or, with respect to any registration statement to be filed hereunder pursuant to Rule 462(b) under the Act, will be delivering certificate(seffected in accordance herewith, (ii) representing and/or notice(sany necessary qualification under the securities or blue sky laws of the various jurisdictions in which the Shares are being offered by the Underwriters or (iii) under the rules and regulations of the NASD, all of which have been obtained;
(e) neither such Selling Stockholder nor any of its affiliates has taken, directly or indirectly, any action designed to, or which has constituted or might reasonably be expected to exercise options for Common Stock cause or result in the stabilization or manipulation of the price of any security of the Company to Continental Stock Transfer & Trust Company facilitate the sale or resale of the Shares;
(f) there are no affiliations or associations between any member of the “Custodian”NASD and such Selling Stockholder, except as disclosed in the Registration Statement (excluding the exhibits thereto), the Preliminary Prospectuses and the Prospectus; none of the proceeds received by such Selling Stockholder from the sale of the Shares to be sold by such Selling Stockholder pursuant to this Agreement will be paid to a member of the NASD or any affiliate of (or person “associated with,” as such terms are used in the Rules of the NASD) such member;
(g) such Selling Stockholder now is and, at the time of delivery of such Shares and/or notice(s) to exercise (whether at the time of purchase or the any additional time of purchase, as the case may be) ), will be, be the lawful owner of the number of Shares issuable upon exercise of such options to be sold by such Selling Stockholder pursuant to this AgreementAgreement and has and, and at the time of delivery of such Shares, will have valid and marketable title to the Shares issuable upon exercise of such optionsShares, and upon delivery of and payment for such Shares (whether at the time of purchase or the any 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 claim, lien, encumbrance, security interest, community property right, restriction on transfer or other defect in title;
(bh) to the extent that such Selling Stockholder will be delivering Common Stock to the Custodianhas and, such Selling Stockholder now is and at the time of delivery of such Shares (whether at the time of purchase or the 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 and has and, at the time of delivery thereof, will have valid and marketable title to such Shares, and upon delivery of and payment for such Shares (whether at the time of purchase or the any 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 claim, lien, encumbrance, security interest, community property right, restriction on transfer or other defect in title;
(c) 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 at the time of purchase or the additional time of purchase, as the case may be) will have, have full legal right, power and capacity, and any approval all authorizations and approvals required by law (other than those imposed by the Act and the state securities or blue sky laws of certain jurisdictionslaws), to (i) enter into this Agreement and the Custody Agreement (as defined below) and to execute a Power of Attorney, (ii) sell, assign, transfer and deliver such options exercisable for the number of Shares to be sold by such Selling Stockholder pursuant to this Agreement;
(d) such Selling Stockholder has and at the time of delivery of such Shares (whether at 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 Shares Agreement in the manner provided in this AgreementAgreement and (iii) make the representations, warranties and agreements made by such Selling Stockholder herein;
(ei) this Agreement and each Custody Agreement between the Custodian and custody agreement (the Selling Stockholders (each, a “Custody Agreement”) ), between Mellon Investor Services LLC, as custodian (the “Custodian”), and such Selling Stockholder and the Power of Attorney to which such Selling Stockholder is a party have each been duly executed and delivered by (or, in the case of this Agreement, on behalf of) such Selling Stockholder and, with respect to the Custody Agreement only, assuming due authorization, execution and delivery by the Custodian, each is a legal, valid and binding agreement of such Selling Stockholder enforceable in accordance with its termsStockholder;
(fj) such Selling Stockholder has duly and irrevocably authorized the Representatives Representative of the Selling Stockholders, on behalf of such Selling Stockholder, to execute and deliver this Agreement and any other document documents necessary or desirable in connection with the transactions contemplated hereby or thereby and to deliver the Shares to be sold by such Selling Stockholder pursuant to this Agreement and receive payment therefor pursuant hereto;
(gk) the sale of the Shares to be sold by such Selling Stockholder’s Shares Stockholder pursuant to this Agreement is not prompted by any information concerning the Company or any Subsidiary which is not set forth in the Registration Statement (excluding the exhibits thereto), each Preliminary Prospectus and the Prospectus; and;
(hl) the Prospectus and any amendment or supplement thereto, on the date of filing thereof with the Commission pursuant to Rule 424(b) and at the time of purchase and, if applicable, at the additional time of purchase, did not or will not include an untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading; the Registration Statement did not when it became effective, does not and will not, at the time of purchase and any each additional time of purchase, contain an untrue statement of a material fact all stock transfer or omit to state a material fact other taxes (other than income taxes), if any, that are required to be stated therein or necessary paid in connection with the sale and transfer of the Shares to make the statements therein not misleading; provided, however, that no be sold by such Selling Stockholder makes to the several Underwriters hereunder will be fully paid or provided for by such Selling Stockholder, and all laws imposing such taxes will be fully complied with;
(m) pursuant to the Custody Agreement to which such Selling Stockholder is a party, certificates in negotiable form or book-entry credits for the Shares to be sold by such Selling Stockholder pursuant to this Agreement have been placed in custody for the purpose of making delivery of such Shares in accordance with this Agreement; such Selling Stockholder agrees that (i) such Shares represented by such certificates or book-entry credits are for the benefit of, and coupled with and subject to the interest of, the Custodian, the Representative of the Selling Stockholders, the Underwriters and the Company, (ii) the arrangements made by such Selling Stockholder for custody and for the appointment of the Custodian and the Representative of the Selling Stockholders by such Selling Stockholder are irrevocable, and (iii) the obligations of such Selling Stockholder hereunder shall not be terminated by operation of law, whether by the death, disability or incapacity of such Selling Stockholder (or, if such Selling Stockholder is not an individual, the liquidation, dissolution, merger or consolidation of such Selling Stockholder) or the occurrence of any warranty other event (each, an “Event”); if an Event occurs before the delivery of the Shares hereunder, certificates or representation book-entry credits for the Shares shall be delivered by the Custodian in accordance with the terms and conditions of the Power of Attorney to which such Selling Stockholder is a party, the Custody Agreement to which such Selling Stockholder is a party and this Agreement, and actions taken by the Custodian and the Representative of the Selling Stockholders pursuant to such Power or Attorney or such Custody Agreement shall be as valid as if such Event had not occurred, regardless of whether or not the Custodian or the Representative of the Selling Stockholders, or either of them, shall have received notice thereof; and In addition, any certificate signed by any Selling Stockholder (or, with respect to any statement contained in the Preliminary Prospectus Supplement, the Registration Statement or the Prospectus in reliance upon and in conformity with information concerning an Underwriter and furnished in writing by or on behalf of such Underwriter through you to the Company expressly for use in the Preliminary Prospectus Supplement, the Registration Statement or the Prospectus, and provided, further, that no Non-Management Selling Stockholder (as defined herein) makes that is not an individual, any warranty or representation with respect to any statement contained in the Prospectus or the Registration Statement other than the Selling Stockholder Information (as defined below) relating to officer of such Selling Stockholder furnished by or of any of such Non-Management Selling Stockholder. When ’s subsidiaries) or by the Registration Statement becomes effective and at all times subsequent thereto through the latest Representative of the time of purchase, additional time of purchase Selling Stockholders and delivered to the Underwriters or counsel for the termination of Underwriters in connection with the offering of the Shares, the Registration Statement and Prospectus, and any supplements or amendments thereto as relate to such Selling Stockholder will not contain an untrue statement of a material fact or omit to state a material fact required Shares shall be deemed to be stated therein or necessary to make the statements therein not misleading; provided, however, that the foregoing a representation and warranty, as it relates to warranty by such Non-Management Selling Stockholder, is limited as to the Selling Stockholder Information (as defined herein) concerning such Non-Management Selling Stockholder included in the Registration Statement and Prospectusmatters covered thereby, and any supplements or amendments thereto. Each Non-Management Selling Stockholder severally confirms and the Underwriters acknowledge that the name, address and number of shares of Common Stock beneficially owned by suchto each Underwriter.
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 to each Underwriter thatas of the date hereof, as of the Firm Shares Closing Date and as of each Option Shares Closing Date (if any), as follows:
(a) to the extent that such Selling Stockholder will be delivering certificate(s) representing and/or notice(s) to exercise options for Common Stock to Continental Stock Transfer & Trust Company (the “Custodian”), such Selling Stockholder now is and, at the time of delivery of such Shares and/or notice(s) to exercise (whether at the time of purchase or the additional time of purchase, as the case may be) will be, the lawful owner of the Shares issuable upon exercise of such options to be sold by such Selling Stockholder pursuant to this Agreement, and will have valid and marketable title to the Shares issuable upon exercise of such options, 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 claim, lien, encumbrance, security interest, community property right, restriction on transfer or other defect in title;
(b) to the extent that such Selling Stockholder will be delivering Common Stock to the Custodian, such Selling Stockholder now is and at the time of delivery of such Shares (whether at the time of purchase or the 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 and has and, at the time of delivery thereof, will have valid and marketable title to such Shares, and upon delivery of and payment for such Shares (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 claim, lien, encumbrance, security interest, community property right, restriction on transfer or other defect in title;
(c) 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 Each Selling Stockholder has and at the time of delivery of such caused certificates and/or notice(s) to exercise (whether at 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 hereunder to be delivered to the Custodian, endorsed in blank or with blank stock powers duly executed, with a signature appropriately guaranteed, such certificates to be held in custody by the Custodian for delivery, pursuant to this Agreement;
(d) such Selling Stockholder has and at the time provisions of delivery of such Shares (whether at 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 Shares in the manner provided in this Agreement;
(e) this Agreement and each Custody Agreement between an agreement dated October __, 2005 among the Custodian and the Selling Stockholders substantially in the form attached hereto as Exhibit B (each, a “the "Custody Agreement”) have been duly executed and delivered by such Selling Stockholder and, with respect to the Custody Agreement only, assuming due authorization, execution and delivery by the Custodian, each is a legal, valid and binding agreement of such Selling Stockholder enforceable in accordance with its terms;").
(fb) such Each Selling Stockholder has duly and irrevocably authorized granted an irrevocable power of attorney substantially in the Representatives form attached hereto as Exhibit C (the "Power of Attorney") to the Selling Stockholdersperson 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 thereby hereby and to deliver the shares to be sold by such Selling Stockholder pursuant hereto.
(c) This Agreement, the Custody Agreement, the Power of Attorney and the Lock-Up Agreement have each been duly authorized, executed and delivered by or on behalf of each Selling 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, except as the enforceability thereof may be limited by bankruptcy, insolvency, reorganization, moratorium or other similar laws affecting the enforcement of creditors' rights generally and by general equitable principles.
(d) The execution and delivery by 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 of the transactions contemplated herein and compliance by each Selling Stockholder with its obligations hereunder, do not and will not, whether with or without the giving of notice or the passage of time or both, (i) violate or contravene any provision of the charter or bylaws or other organizational instrument of any Selling 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 the Selling Stockholder, (ii) conflict with or constitute a breach of, or default under, or result in the creation or imposition of any tax, lien, charge or encumbrance upon the shares to be sold by any Selling Stockholder or any property or assets of any Selling Stockholder pursuant to the terms of any agreement or instrument to which any Selling Stockholder is a party or by which any Selling Stockholder may be bound or to which any of the property or assets of any Selling Stockholder is subject or (iii) require any consent, approval, authorization or order of or registration or filing with any court or governmental agency or body having jurisdiction over it, except such as may be required by the Blue Sky laws of the various states in connection with the offer and sale of the Shares which have been or will be effected in accordance with this Agreement.
(e) Each Selling 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 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.
(f) Each 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 and receive payment therefor pursuant hereto;in the manner provided by this Agreement.
(g) Upon delivery of and payment for the sale of such Shares to be sold by each Selling Stockholder’s Shares Stockholder pursuant to this Agreement is not prompted by Agreement, assuming each Underwriter has no notice of any information concerning adverse claim, the Company which is not set forth in the Prospectus; andseveral Underwriters will receive valid and marketable title to such Shares free and clear of any lien, claim, mortgage, pledge, security interest or other encumbrance.
(h) 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, and on each Closing Date will not, contain any amendment or supplement thereto, on the date of filing thereof with the Commission pursuant to Rule 424(b) and at the time of purchase and, if applicable, at the additional time of purchase, did not or will not include an 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 and 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 in order to make the statements made therein not misleading and (ii) on the Effective Date the Prospectus contained and, on each Closing Date contains, no untrue statement of a material fact or omitted or omits to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading; .
(j) The sale of Shares by each Selling Stockholder pursuant to this Agreement is not prompted by such Selling Stockholder's knowledge of any material information concerning the Registration Statement did Company or any of its subsidiaries which is not when it became effectiveset forth in the Prospectus.
(k) No Selling Stockholder has taken, does and no Selling Stockholder will take, directly or indirectly, any action designed to or that might reasonably be expected to cause or result in stabilization or manipulation of the price of any security of the Company to facilitate the sale or resale of the Shares.
(l) No Selling Stockholder has actual knowledge that any representation or warranty of the Company set forth in Section 2 above is untrue or inaccurate in any material respect.
(m) The representations and warranties of each Selling Stockholder in the Custody Agreement are and on each Closing Date will be, true and correct.
(n) Each Selling Stockholder acknowledges and agrees that each of the Underwriters has acted and is acting solely in the capacity of a principal in an arm's length transaction between the Company and the Selling Stockholders, on the one hand, and the Underwriters, on the other hand, with respect to the offering of Shares contemplated hereby (including in connection with determining the terms of the offering) and not as a financial advisor, agent or fiduciary to the Company, the Selling Stockholders or any other person. Additionally, each Selling Stockholder acknowledges and agrees that the Underwriters have not and will notnot advise the Company, at the time of purchase and Selling Stockholders or any additional time of purchaseother person as to any legal, contain an untrue statement of a material fact tax, investment, accounting or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading; provided, however, that no regulatory matters in any jurisdiction. Each Selling Stockholder makes has consulted with its own advisors concerning such matters and shall be responsible for making its own independent investigation and appraisal of the transactions contemplated hereby, and the Underwriters shall have no responsibility or liability to the Company, the Selling Stockholders or any warranty or representation other person with respect thereto, whether arising prior to any statement contained in or after the Preliminary Prospectus Supplementdate hereof. Any review by the Underwriters of the Company, the Registration Statement transactions contemplated hereby or other matters relating to such transactions have been and will be performed solely for the Prospectus in reliance upon benefit of the Underwriters and in conformity with information concerning an Underwriter and furnished in writing by or shall not be on behalf of such Underwriter through you the Company or the Selling Stockholders. Each Selling Stockholder agrees that it will not claim that the Underwriters, or any of them, has rendered advisory services of any nature or respect, or owes a fiduciary duty to the Company expressly for use Company, any Selling Stockholder or any other person in the Preliminary Prospectus Supplement, the Registration Statement connection with any such transaction or the Prospectus, and provided, further, that no Non-Management Selling Stockholder (as defined herein) makes any warranty or representation with respect to any statement contained in the Prospectus or the Registration Statement other than the Selling Stockholder Information (as defined below) relating to such Selling Stockholder furnished by such Non-Management Selling Stockholder. 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, the Registration Statement and Prospectus, and any supplements or amendments thereto as relate to such Selling Stockholder will not contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading; provided, however, that the foregoing representation and warranty, as it relates to such Non-Management Selling Stockholder, is limited to the Selling Stockholder Information (as defined herein) concerning such Non-Management Selling Stockholder included in the Registration Statement and Prospectus, and any supplements or amendments process leading thereto. Each Non-Management Selling Stockholder severally confirms and the Underwriters acknowledge that the name, address and number of shares of Common Stock beneficially owned by such.
Appears in 1 contract
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 Underwriter, that:
(a) such Selling Stockholder 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 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 may be limited by bankruptcy, insolvency, reorganization, moratorium or similar laws affecting creditors’ rights generally, and by general equitable principles, and except to the extent that such Selling Stockholder will the indemnification and contribution provisions of Section 11 hereof may be delivering certificate(slimited by federal or state securities laws and public policy considerations in respect thereof;
(b) representing and/or notice(s) to exercise options for Common Stock to Continental Stock Transfer & Trust Company (the “Custodian”), such Selling Stockholder now is andhas, at and immediately prior to the time Closing Time will have, (i) a valid “security entitlement” (within the meaning of delivery Section 8-501 of the New York Uniform Commercial Code (the “New York UCC”)) in respect of the Shares to be sold by such Selling Stockholder hereunder, in each case free and clear of all liens, encumbrances and claims whatsoever (other than pursuant to the Custody Agreement and Power of Attorney, as applicable), and (ii) full legal power and authority to enter into this Agreement and to sell, transfer and deliver a security entitlement in respect of such Shares and/or notice(sto the Underwriters hereunder and to make the representations, warranties and agreements made by such Selling Stockholder herein. Upon (I) to exercise (whether at the time of purchase or the additional time of purchase, as the case may be) will be, the lawful owner of payment for the Shares issuable upon exercise of such options to be sold by such Selling Stockholder pursuant to this Agreement, and will (II) delivery of such Shares, as directed by the Underwriters, to Cede & Co. or such other nominee as may be designated by DTC, (III) registration of such Shares in the name of DTC, Cede & Co. or such other nominee, (IV) DTC indicating by book entries on its books that security entitlements with respect to such Shares have valid and marketable title been credited to the Shares issuable upon exercise of such options, 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)Underwriters’ securities accounts, the Underwriters will acquire a valid and marketable title “security entitlement” (within the meaning of Section 8-501 of the New York UCC) with respect to such Shares free and clear no action based on an “adverse claim” (as defined in Section 8-102 of any claimthe New York UCC) may be asserted against the Underwriters with respect to such security entitlement, lien, encumbrance, security interest, community property right, restriction on transfer or other defect in title;
(b) to the extent that such Selling Stockholder will and DTC shall be delivering Common Stock to the Custodian, such Selling Stockholder now is and at the time of delivery a “protected purchaser” of such Shares (whether at within the time meaning of purchase or the additional time of purchase, as the case may be) will be, the lawful owner Section 8-303 of the number New York UCC (assuming, in each case, that (A) none of Shares to be sold by DTC, Cede & Co., any such Selling Stockholder pursuant to this Agreement and has and, at the time of delivery thereof, other nominee or any Underwriter will have valid and marketable title “notice of any adverse claim” to any of such SharesShares within the meaning of Section 8-105 of the New York UCC, (B) DTC will be registered as a “clearing corporation” within the meaning of Section 8-102 of the UCC, and upon delivery (C) the jurisdiction of and payment for such Shares (whether at the time of purchase or the additional time of purchase, as the case may beDTC is New York), the Underwriters will acquire valid and marketable title to such Shares free and clear of any claim, lien, encumbrance, security interest, community property right, restriction on transfer or other defect in title;
(c) to the extent that performance of this Agreement, the Custody Agreement and the Power Of Attorney by such Selling Stockholder will be delivering certificates representing and/or notice(s) to exercise options exercisable for Common Stock to and the Custodian, consummation by such Selling Stockholder has of the transactions contemplated herein and at therein will not conflict with, or result in any breach of, or constitute a default under (nor constitute any event which with notice, lapse of time, or both would constitute a breach of, or default under), (i) any provision of the time certificate or articles of delivery incorporation, other charter or similar constitutive documents, or the bylaws of such certificates and/or notice(sSelling Stockholder, or (ii) any provision of any license, indenture, mortgage, deed of trust, loan or credit agreement or other agreement or instrument to exercise which such Selling Stockholder is a party or by which it or its properties may be bound or affected, or (whether at 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 the time creation or imposition of purchase any lien, charge, claim or encumbrance upon any property or asset of the additional time of purchase, as the case may be) will have, full legal right, power and capacity, and any approval required by law Selling Stockholder (other than those imposed by pursuant to the Custody Agreement and Power of Attorney, as applicable);
(d) no approval, authorization, consent or order of or filing with any federal, state, local or foreign governmental or regulatory commission, board, body, authority or agency having jurisdiction over such Selling Stockholder or any of its properties is required in connection with such Selling Stockholder’s execution, delivery and performance of this Agreement, its consummation of the transactions contemplated herein, and its sale and delivery of the Shares, other than (i) such as have been obtained, or will have been obtained at the Closing Time under the Securities Act and the Exchange Act, (ii) such approvals as have been obtained in connection with the approval of the listing of the Shares on the NYSE and (iii) any necessary qualification under the securities or blue sky laws of certain jurisdictions), to sell, assign, transfer and deliver such options exercisable for the number of various jurisdictions in which the Shares to be sold by such Selling Stockholder pursuant to this Agreement;
(d) such Selling Stockholder has and at the time of delivery of such Shares (whether at 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 are being offered 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 AgreementUnderwriters;
(e) this Agreement and each Custody Agreement between the Custodian and the Selling Stockholders (each, a “Custody Agreement”) have been duly executed and delivered by such Selling Stockholder and, with respect to the Custody Agreement only, assuming due authorization, execution and delivery by the Custodian, each is a legal, valid and binding agreement of such Selling Stockholder enforceable in accordance with its terms;
(f) such Selling Stockholder has duly and irrevocably authorized the Representatives of the Selling Stockholders, 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 thereby and to deliver the Shares to be sold by such Selling Stockholder and receive payment therefor pursuant hereto;
(g) the sale of such Selling Stockholder’s Shares pursuant to this Agreement is not prompted to sell Shares by any material information concerning the Company or its Subsidiaries which is not set forth in the Prospectus; andRegistration Statement, the Prospectus or the Disclosure Package;
(hf) each of the Registration Statement, the Prospectus and the Disclosure Package (as amended or supplemented, if the Company shall have filed with the Commission any amendment or supplement thereto, on ) (i) as of its effective date and as of the date hereof, with respect to the Registration Statement, (ii) on its date, at the time of filing thereof with the Commission Prospectus pursuant to Rule 424(b) and at the time of purchase andClosing Time, if applicable, at the additional time of purchase, did not or will not include an untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading; 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; provided, however, that no Selling Stockholder makes any warranty or representation with respect to any statement contained in the Preliminary Prospectus Supplement, the Registration Statement or the Prospectus in reliance upon and in conformity with information concerning an Underwriter and furnished in writing by or on behalf of such Underwriter through you to the Company expressly for use in the Preliminary Prospectus Supplement, the Registration Statement or the Prospectus, and provided(iii) as of the Initial Sale Time, further, that no Non-Management Selling Stockholder (as defined herein) makes any warranty or representation with respect to any statement contained in the Prospectus or the Registration Statement other than the Selling Stockholder Information (as defined below) relating to such Selling Stockholder furnished by such Non-Management Selling Stockholder. When the Registration Statement becomes effective Disclosure Package, did not 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, the Registration Statement and Prospectus, and any supplements or amendments thereto as relate to such Selling Stockholder 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 the case of the Registration Statement, the Prospectus or the Disclosure Package, in light of the circumstances under which they were made) not misleading; provided, however, that the foregoing this representation and warrantywarranty shall only apply to any statements or omissions in the Registration Statement, the Prospectus and the Disclosure Package made in reliance upon and in conformity with written information furnished by or on behalf of such Selling Stockholder specifically for use in the Registration Statement, the 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 relates 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 Non-Management Selling Stockholder in the Registration Statement, the Prospectus and the Disclosure Package under the heading “Selling Stockholders” and the footnote thereunder, excluding any percentages set forth therein (the “Selling Stockholder Information”);
(g) such Selling Stockholder has not distributed and will not distribute 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 intended, or which would reasonably be expected, to cause or result in, under the Securities Act, the Securities Act Regulations or otherwise, or which has constituted, stabilization or manipulation of the price of any security of the Company to facilitate the sale or resale of the Shares;
(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 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) 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 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 foregoing, or any political party or party official or candidate for political office; (iii) violated or is limited 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 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 Anti-Money Laundering Laws is pending or, to the knowledge of such Selling Stockholder, threatened;
(m) neither such Selling Stockholder Information (as defined herein) concerning nor any of its subsidiaries, directors, officers or employees, nor, to the knowledge of such Non-Management Selling Stockholder, any agent, affiliate or other person associated with or acting on behalf of such Selling Stockholder included 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 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 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 Stockholder and its subsidiaries have not knowingly engaged in, are not now knowingly engaged in and will not engage in any dealings or transactions with any person that at the time of the dealing or transaction is or was the subject or the target of Sanctions or with any country subject to Sanctions;
(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 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 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, and any supplements or amendments thereto. Each Non-Management such Selling Stockholder severally confirms and the Underwriters acknowledge that the name, address and number is not a member of shares or an affiliate of Common Stock beneficially owned by suchor associated with any member of FINRA.
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 to each Underwriter thatas of the date hereof, as of the Firm Shares Closing Date [and, if the Selling Stockholders is selling Option Shares, as of each such Option Shares Closing Date (if any),] as follows:
(a) to the extent that such Selling Stockholder will be delivering certificate(s) representing and/or notice(s) to exercise options for Common Stock to Continental Stock Transfer & Trust Company (the “Custodian”), such Selling Stockholder now is and, at the time of delivery of such Shares and/or notice(s) to exercise (whether at the time of purchase or the additional time of purchase, as the case may be) will be, the lawful owner of the Shares issuable upon exercise of such options to be sold by such Selling Stockholder pursuant to this Agreement, and will have valid and marketable title to the Shares issuable upon exercise of such options, 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 claim, lien, encumbrance, security interest, community property right, restriction on transfer or other defect in title;
(b) to the extent that such Selling Stockholder will be delivering Common Stock to the Custodian, such Selling Stockholder now is and at the time of delivery of such Shares (whether at the time of purchase or the 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 and has and, at the time of delivery thereof, will have valid and marketable title to such Shares, and upon delivery of and payment for such Shares (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 claim, lien, encumbrance, security interest, community property right, restriction on transfer or other defect in title;
(c) 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 Each Selling Stockholder has and at the time of delivery of such caused certificates and/or notice(s) to exercise (whether at 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 hereunder to be delivered to Citi Trends, 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 this Agreement;
(d) such Selling Stockholder has and at the time provisions of delivery of such Shares (whether at 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 Shares in the manner provided in this Agreement;
(e) this Agreement and each Custody Agreement between an agreement dated ____________ among the Custodian and the Selling Stockholders substantially in the form attached hereto as Exhibit B (each, a “the "Custody Agreement”) have been duly executed and delivered by such Selling Stockholder and, with respect to the Custody Agreement only, assuming due authorization, execution and delivery by the Custodian, each is a legal, valid and binding agreement of such Selling Stockholder enforceable in accordance with its terms;").
(fb) such Each Selling Stockholder has duly and irrevocably authorized granted an irrevocable power of attorney substantially in the Representatives form attached hereto as Exhibit C (the "Power of Attorney") to the Selling Stockholdersperson named therein, on behalf of each such Selling Stockholder, to execute and deliver this Agreement and any other document necessary or desirable in connection with the transactions contemplated thereby hereby and to deliver the shares to be sold by each the Selling Stockholder pursuant hereto.
(c) This Agreement, the Custody Agreement, the Power of Attorney and the Lock-Up Agreement have each been duly authorized, executed and delivered by or on behalf of each Selling 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, 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.
(d) The execution and delivery 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 of the transactions contemplated herein and compliance by each Selling Stockholder with its obligations hereunder, do not and will not, whether with our without the giving of notice or the passage of time or both, (i) violate or contravene any provision of the charter or bylaws or other organizational instrument of 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 constitute a breach of, or default under, or result in the creation or imposition of any tax, lien, charge or encumbrance upon the shares to be sold by any Selling Stockholder or any property or assets of any Selling Stockholder pursuant to the terms of any agreement or instrument to which any Selling Stockholder is a party or by which any Selling Stockholder may be bound or to which any of the property or assets of any Selling Stockholder is subject or (iii) require any consent, approval, authorization or order of or registration or filing with any court or governmental agency or body having jurisdiction over it, except such as may be required by the blue sky laws of the various states in connection with the offer and sale of the Shares which have been or will be effected in accordance with this Agreement.
(e) Each Selling 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 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 Stockholder and receive payment therefor pursuant hereto;in the manner provided by this Agreement.
(g) Upon delivery of and payment for the sale of such Shares to be sold by each Selling Stockholder’s Shares Stockholder pursuant to this Agreement is not prompted by Agreement, assuming each Underwriter has no notice of any information concerning adverse claim, the Company which is not set forth in the Prospectus; andseveral Underwriters will receive valid and marketable title to such Shares free and clear of any lien, claim, mortgage, pledge, security interest or other encumbrance.
(h) 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, and on each Closing Date will not, contain any amendment or supplement thereto, on the date of filing thereof with the Commission pursuant to Rule 424(b) and at the time of purchase and, if applicable, at the additional time of purchase, did not or will not include an 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 and 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 and (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; the Registration Statement did not when it became effective, does not and will not, at the time .
(j) The sale 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; provided, however, that no Shares by each Selling Stockholder makes pursuant to this Agreement is not prompted by such Selling Stockholder's knowledge of any warranty or representation with respect to any statement contained material information concerning the Company which is not set forth in the Preliminary Prospectus SupplementProspectus.
(k) No Selling Stockholder has taken, directly or indirectly, any action designed to or that might reasonably be expected to cause or result in stabilization or manipulation of the Registration Statement or the Prospectus in reliance upon and in conformity with information concerning an Underwriter and furnished in writing by or on behalf price of such Underwriter through you to any security of the Company expressly for use in to facilitate the Preliminary Prospectus Supplement, the Registration Statement sale or the Prospectus, and provided, further, that no Non-Management Selling Stockholder (as defined herein) makes any warranty or representation with respect to any statement contained in the Prospectus or the Registration Statement other than the Selling Stockholder Information (as defined below) relating to such Selling Stockholder furnished by such Non-Management Selling Stockholder. 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 resale of the Shares, .
(l) No Selling Stockholder has knowledge that any representation or warranty of the Registration Statement Company set forth in Section 2 above is untrue or inaccurate in any material respect.
(m) The representations and Prospectuswarranties of each Selling Stockholder in the Custody Agreement are, and any supplements or amendments thereto as relate to such Selling Stockholder on each Closing Date will not contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading; providedbe, however, that the foregoing representation true and warranty, as it relates to such Non-Management Selling Stockholder, is limited to the Selling Stockholder Information (as defined herein) concerning such Non-Management Selling Stockholder included in the Registration Statement and Prospectus, and any supplements or amendments thereto. Each Non-Management Selling Stockholder severally confirms and the Underwriters acknowledge that the name, address and number of shares of Common Stock beneficially owned by suchcorrect.
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) the Shares to be sold by such Selling Stockholder pursuant to this Agreement are certificated securities in registered form and are not held in any securities account or by or through any securities intermediary within the extent meaning of the Uniform Commercial Code as in effect in the State of New York. Such Selling Stockholder has, and, at the Time of Purchase and, if applicable, at the Additional Time of Purchase, will have, full right, power and authority to hold, sell, transfer and deliver the Shares to be sold by such Selling Stockholder pursuant to this Agreement; and upon the Underwriters’ acquiring possession of such Shares and paying the purchase price therefor as herein contemplated, the Underwriters will acquire their respective interests in such Shares (including, without limitation, all rights that such Selling Stockholder will be delivering certificate(shad or has the power to transfer in such Securities) representing and/or notice(sfree of any adverse claim;
(b) to exercise options certificates for Common Stock to Continental Stock Transfer & Trust Company (the “Custodian”), such Selling Stockholder now is and, at the time of delivery of such Shares and/or notice(s) to exercise (whether at the time of purchase or the additional time of purchase, as the case may be) will be, the lawful owner all of the Shares issuable upon exercise of such options to be sold by such Selling Stockholder pursuant to this Agreement, and will in suitable form for transfer by delivery or accompanied by duly executed instruments of transfer or assignment in blank, with signatures guaranteed, have valid and marketable title been placed in custody with the custodian pursuant to the Shares issuable upon exercise terms of such optionsCustody Agreements between National City Bank, as custodian, and upon delivery each of and payment for the Selling Stockholders, dated, in case, prior to the date hereof (the “Custody Agreement”), in the form heretofore furnished to the Representatives of the Selling Stockholders, with irrevocable conditional instructions to deliver such Shares (whether at the time of purchase or the additional time of purchase, as the case may be), to the Underwriters will acquire valid and marketable title to such Shares free and clear of any claim, lien, encumbrance, security interest, community property right, restriction on transfer or other defect in title;
(b) to the extent that such Selling Stockholder will be delivering Common Stock to the Custodian, such Selling Stockholder now is and at the time of delivery of such Shares (whether at the time of purchase or the 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 and has and, at the time of delivery thereof, will have valid and marketable title to such Shares, and upon delivery of and payment for such Shares (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 claim, lien, encumbrance, security interest, community property right, restriction on transfer or other defect in title;
(c) 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 at 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 pursuant to this Agreement;
(dc) such Selling Stockholder has and at the time of delivery of such Shares (whether at the time Time of purchase Purchase or the additional time Additional Time of purchasePurchase, 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;
(ed) this Agreement Agreement, the Irrevocable Power of Attorney of Selling Stockholder duly authorized, executed and delivered by each Selling Stockholder appointing Xxxxxxx X. Xxxxxxxxx, III and Xxxxx X. Xxxxx as attorneys-in-fact, dated, in case, prior to the date hereof (the “Power of Attorney”) and the Custody Agreement between the Custodian and the Selling Stockholders (each, a “Custody Agreement”) have been duly authorized, executed and delivered by such Selling Stockholder and, with respect to the Custody Agreement only, assuming due authorization, execution and delivery by the Custodian, each is a legal, valid and binding agreement of such Selling Stockholder enforceable in accordance with its terms;
(e) 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, the Registration Statement and Prospectus, and any supplements or amendments thereto as they relate to such Selling Stockholder will not contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading, 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 the Prospectus, and any supplements or amendments thereto, concerning such Selling Stockholder furnished in writing by or on behalf of such Selling Stockholder to New FreightCar America expressly for use therein;
(f) pursuant to the terms of the Power of Attorney, such Selling Stockholder has duly and irrevocably authorized the Representatives of the Selling Stockholders, 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 thereby hereby and to deliver the Shares to be sold by such Selling Stockholder and receive payment therefor pursuant hereto;
(g) neither the execution and delivery of this Agreement, the Power of Attorney and the Custody Agreement and neither the sale of Shares being sold by such Selling Stockholder nor the consummation of any other of the transactions herein contemplated herein nor the fulfillment of the terms hereof by such Selling Stockholder or compliance by such Selling Stockholder with its obligations hereunder conflict or will conflict with, result in a breach or violation of, or constitute a default under any law or the organizational documents of such Selling Stockholder’s Shares pursuant to this Agreement , if such Selling Stockholder is not prompted an individual, or the terms of any indenture or other agreement or instrument to which such Selling Stockholder or any of its Subsidiaries is a party or bound, or any judgment, order or decree applicable to such Selling Stockholder or any of its Subsidiaries of any court, regulatory body, administrative agency, governmental body or arbitrator having jurisdiction over such Selling Stockholder or any of its properties;
(h) such Selling Stockholder has no reason to believe that the representations and warranties of New FreightCar America contained in Section 3 are not true and correct; the sale of shares of Common Stock by such Selling Stockholder pursuant hereto is not motivated by any information concerning the Company or any of its Subsidiaries which is not set forth in the ProspectusProspectus or any supplement thereto;
(i) such Selling Stockholder has not taken, and will not take, directly or indirectly, any action which is designed to or which has constituted or would be expected to cause or result in stabilization or manipulation of the price of any security of the Company to facilitate the sale or resale of the Shares; and
(hj) no filing with, or consent, approval, authorization, order, registration, qualification or decree of, any court or governmental authority or agency, domestic or foreign, is necessary or required for the performance by each Selling Stockholder of its obligations hereunder or in the Power of Attorney or the Custody Agreement, or in connection with the sale and delivery of the Shares hereunder or the consummation of the transactions contemplated by this Agreement, except such as may have previously been made or obtained or as may be required under the Act or state securities laws. In addition, each of the Selling Stockholders named in Schedule E annexed hereto (the “Designated Selling Stockholders”), severally and not jointly further represents and warrants to each Underwriter that such Designated Selling Stockholder has reviewed and is familiar with the Registration Statement and the Prospectus and (i) has no knowledge of any amendment material fact, condition or information not disclosed in the Prospectus or any supplement thereto, on thereto which has adversely affected or may adversely affect the date business of filing thereof with the Commission pursuant to Rule 424(bCompany or any of its Subsidiaries; and (ii) and at neither the time of purchase and, if applicable, at the additional time of purchase, did not Prospectus nor any amendments or will not include an supplements thereto contains any untrue statement of a material fact or omit omits to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading; the Registration Statement did not when it became effective, does not provided that these representations and will not, at the time warranties of purchase and any additional time of purchase, contain an untrue statement of a material fact or omit to state a material fact required each Designated Selling Stockholder contained in this paragraph shall only be deemed to be stated therein or necessary to make the statements therein not misleading; provided, however, that no made by each Designated Selling Stockholder makes any warranty or representation with respect to any statement contained in upon the Preliminary Prospectus Supplement, exercise by the Registration Statement or the Prospectus in reliance upon and in conformity with information concerning an Underwriter and furnished in writing by or on behalf of such Underwriter through you to the Company expressly for use in the Preliminary Prospectus Supplement, the Registration Statement or the Prospectus, and provided, further, that no Non-Management Selling Stockholder (as defined herein) makes any warranty or representation with respect to any statement contained in the Prospectus or the Registration Statement other than the Selling Stockholder Information (as defined below) relating to such Selling Stockholder furnished by such Non-Management Selling Stockholder. When the Registration Statement becomes effective and at all times subsequent thereto through the latest Underwriters of the time of purchase, additional time of option to purchase or the termination of the offering of the Additional Shares, the Registration Statement and Prospectus, and any supplements or amendments thereto as relate to such Selling Stockholder will not contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading; provided, however, that the foregoing representation and warranty, as it relates to such Non-Management Selling Stockholder, is limited to the Selling Stockholder Information (as defined herein) concerning such Non-Management Selling Stockholder included described in the Registration Statement and Prospectus, and any supplements or amendments thereto. Each Non-Management Selling Stockholder severally confirms and the Underwriters acknowledge that the name, address and number of shares of Common Stock beneficially owned by suchSection 1 hereof.
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 the several Underwriters and the Company, and shall be deemed to represent and warrant to the several Underwriters and the Company on each Underwriter Closing Date on which such Selling Stockholder sells Shares to the several Underwriters pursuant to this Agreement, that:
(a) to Such Selling Stockholder has duly executed and delivered a custody agreement and a power of attorney (“Power of Attorney and Custody Agreement”) naming Xxxxxx X. Xxxxxxxxx and Xxxx X. Xxxxxx, or either of them, as such Selling Stockholder’s attorneys-in-fact (“Attorneys-in-Fact”) for the extent that purpose of entering into and carrying out this Agreement and naming Equiserve Trust Company N.A. as custodian (“Custodian”) of the Shares or the option grant agreement and notice of exercise of such option grant agreement (the “Option”) of such Selling Stockholder will be delivering certificate(s) representing and/or notice(s) to exercise options for Common Stock to Continental Stock Transfer & Trust Company (the “Custodian”), such Selling Stockholder now is and, at the time purpose of delivery of selling such Shares and/or notice(s) to exercise (whether at the time of purchase or the additional time of purchaseUnderwriters, as or, in the case may be) will be, the lawful owner of the Option, for the purpose of simultaneously exercising such Option to purchase the Shares issuable upon exercise of such options and selling the Shares to be sold the Underwriters, on each Closing Date and receiving payment therefor.
(b) All consents, approvals, authorizations and orders necessary for the execution and delivery by such Selling Stockholder pursuant to of this Agreement, Agreement and will have valid the Power of Attorney and marketable title to Custody Agreement and for the Shares issuable upon exercise of such options, sale 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 claim, lien, encumbrance, security interest, community property right, restriction on transfer or other defect in title;
(b) to the extent that such Selling Stockholder will be delivering Common Stock to the Custodian, such Selling Stockholder now is and at the time of delivery of such Shares (whether at the time of purchase or the 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 and has and, at the time of delivery thereof, will have valid and marketable title to such Shares, and upon delivery of and payment for such Shares (whether at the time of purchase or the additional time of purchasehereunder, as set forth on Schedule II annexed hereto, have been obtained, except for compliance with the case may be)Act, the Underwriters will acquire valid Exchange Act and marketable title to such Shares free and clear of any claim, lien, encumbrance, security interest, community property right, restriction on transfer or other defect in title;
(c) state securities laws applicable to the extent that such Selling Stockholder will be delivering certificates representing and/or notice(s) to exercise options exercisable for Common Stock to public offering of the Custodian, such Shares by the several Underwriters. Such Selling Stockholder has good and valid title to the Shares or the Option, and at the time of delivery of the Shares hereunder such certificates and/or notice(s) to exercise (whether at the time of purchase or the additional time of purchase, as the case may be) Selling Stockholder will have, full legal right, power good and capacity, and any approval required by law (other than those imposed by valid title to 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 proposed to be sold by such Selling Stockholder pursuant hereunder, free and clear of all voting trust arrangements, liens, claims, encumbrances and security interests, other than any created by the Power of Attorney and Custody Agreement or this Agreement for the benefit of the Underwriters and except for agreements to this Agreement;
(d) which such Selling Stockholder has and is a party to be terminated at the time of delivery of such Shares (whether at the time of purchase or the additional time of purchase, as the case may be) will have, Closing. Such Selling Stockholder has full legal right, power and capacity, and any approval required by law (other than those imposed by the Act authority to enter into this Agreement and the securities or blue sky laws Power of certain jurisdictions), Attorney and Custody Agreement and to sell, assign, transfer and deliver such Shares hereunder, free and clear of all voting trust arrangements, liens, claims, encumbrances, security interests and community property rights, other than any created by the Power of Attorney and Custody Agreement or this Agreement for the benefit of the Underwriters and except for agreements to which such Selling Stockholder is a party to be terminated at the Closing. Upon delivery of and payment for such Shares hereunder, the Underwriters will acquire good and valid title thereto, free and clear of all voting trust arrangements, liens, claims, encumbrances and security interests assuming the Underwriters purchase such Shares without any notice of any adverse claim.
(c) Such Selling Stockholder has not distributed and will not distribute any Preliminary Prospectus, the Prospectus or any other material in connection with the offering and sale of the Shares. Such Selling Stockholder has not taken and will not take, directly or indirectly, any action designed to or which would reasonably be expected to cause or result in, under the Act, the Exchange Act or otherwise, stabilization or manipulation of the price of any security of the Company to facilitate the sale or resale of the Common Stock.
(d) The execution, delivery and performance by such Selling Stockholder of this Agreement and the Power of Attorney and Custody Agreement will not, if applicable, result in the manner provided violation of any provisions of the certificate of incorporation, by-laws, partnership agreement, limited liability company agreement or other governing documents of such Selling Stockholder, or violate any provisions of, or result in the breach, modification or termination of, or constitute a default under any provision of any material agreement, franchise, license, indenture, mortgage, deed of trust or other instrument to which such Selling Stockholder is a party or by which such Selling Stockholder or such Selling Stockholder’s property may be bound or affected, or violate any statute, rule or regulation applicable to such Selling Stockholder or any order or decree of any court, regulatory body, administrative agency or other governmental body having jurisdiction over such Selling Stockholder or any of such Selling Stockholder’s property, except in each case where such violation, breach, modification, termination or default would not have a material adverse effect on the condition (financial or otherwise), business, properties, net worth or results of operations of such Selling Stockholder. No consent, approval, authorization or other order of any court, regulatory body, administrative agency or other governmental body is required for the execution and delivery of, and performance under, this Agreement by such Selling Stockholder or the consummation by such Selling Stockholder of the transactions contemplated by this Agreement;, except for compliance with the Act, the Exchange Act, and any state securities laws. Such Selling Stockholder hereby represents and warrants that each Attorney-in-Fact has been duly appointed as attorney-in-fact by such Selling Stockholder for the purpose of entering into and carrying out this Agreement.
(e) this This Agreement and each the Power of Attorney and Custody Agreement between the Custodian and the Selling Stockholders (each, a “Custody Agreement”) have been duly executed and delivered by such Selling Stockholder and, with respect to the Custody Agreement only, assuming due authorization, execution and delivery by the Custodian, are each is a legal, valid and binding agreement agreements of such Selling Stockholder enforceable in accordance with its their respective terms;, except as rights to indemnity or contribution hereunder and thereunder may be limited by applicable law or the public policy underlying such law and except as enforceability hereof and thereof may be limited by bankruptcy, insolvency, reorganization, moratorium or similar laws affecting creditors’ rights generally and by equitable principles limiting the right to specific performance or other equitable relief.
(f) Such Selling Stockholder has deposited in custody, under the Power of Attorney and Custody Agreement, certificates in negotiable form or an Option grant agreement for the Shares to be sold hereunder by such Selling Stockholder has duly and irrevocably authorized as set forth opposite such Selling Stockholder’s name on Schedule II annexed hereto for the Representatives purpose of further delivery pursuant to this Agreement. Such Selling Stockholder agrees that the Shares or Option grant agreement of such Selling Stockholder on deposit with the Custodian are subject to the interests of the Company, the Underwriters and the other Selling Stockholders, on behalf that the arrangements made for such custody, and the appointment of the Attorneys-in-Fact pursuant to the Power of Attorney and Custody Agreement, are to that extent irrevocable, and that the obligations of such Selling Stockholder hereunder and under the Power of Attorney and Custody Agreement shall not be terminated, except as provided in this Agreement and the Power of Attorney and Custody Agreement, by any act of such Selling Stockholder, by operation of law, or, by the dissolution, winding up or other event affecting the legal life of such entity, or by the occurrence of any other event. If any event should occur before the delivery of the Shares hereunder, the certificates for Shares and the Shares issuable upon exercise of the Option then on deposit with the Custodian shall, to the extent such Shares are purchased by the Underwriters, be delivered by the Custodian in accordance with the terms and conditions of this Agreement and the Power of Attorney and Custody Agreement as if such event had not occurred, regardless of whether or not the Custodian shall have received notice thereof. Such Selling Stockholder represents that each Attorney-in-Fact has been authorized by such Selling Stockholder to execute and deliver this Agreement and any other document necessary or desirable in connection with each of the transactions contemplated thereby Selling Stockholders represents that the Custodian has been authorized to exercise the Option where applicable and to deliver receive and acknowledge receipt of the proceeds of sale of the Shares to be sold by such Selling Stockholder against delivery thereof and receive payment therefor pursuant hereto;otherwise to act on behalf of such Selling Stockholder.
(g) To the sale of such Selling Stockholder’s Shares pursuant extent, but only to this Agreement is not prompted by the extent, that any information concerning the Company which is not set forth statements or omissions made in the Registration Statement, any Preliminary Prospectus; and
(h) , the Prospectus and Prospectus, or any amendment or supplement theretothereto are made in reliance upon and in conformity with written information furnished to the Company by such Selling Stockholder expressly for use therein, on the date (i) each Preliminary Prospectus, as of filing thereof its date, has conformed in all material respects with the Commission pursuant to Rule 424(b) and at requirements of the time of purchase Act and, if applicableas of its date, at the additional time of purchase, did has not or will not include an included any untrue statement of a material fact or omit omitted to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading; and (ii) on the effective date of the Registration Statement and on each Closing Date, (x) the Registration Statement and the Prospectus, did not when it became effectiveor will comply as to form in all material respects to the requirements of the Act, does not and (y) neither the Registration Statement nor the Prospectus did or will not, at the time of purchase and include any additional time of purchase, contain an untrue statement of a material fact or omit to state a any material fact required to be stated therein therein, in light of the circumstances under which they were made, or necessary to make the statements therein not misleading; provided, however, that no Selling Stockholder makes any warranty or representation with respect to any statement .
(h) The information contained in such Selling Stockholder’s Questionnaire completed in connection with the Preliminary Prospectus SupplementCompany’s public offering and delivered to the Representatives was, as of the Registration Statement or date of such questionnaire, and is, as of the Prospectus in reliance upon date of this Agreement, true and in conformity with information concerning an Underwriter and furnished in writing correct. A certificate signed by or on behalf of any Selling Stockholder as such Underwriter through you and delivered to the Company expressly Representatives or to counsel for use in the Preliminary Prospectus Supplement, the Registration Statement or the Prospectus, Underwriters shall be deemed a representation and provided, further, that no Non-Management Selling Stockholder (as defined herein) makes any warranty or representation with respect to any statement contained in the Prospectus or the Registration Statement other than the Selling Stockholder Information (as defined below) relating to by such Selling Stockholder to the Underwriters as to the matters covered thereby. A certificate delivered by or on behalf of any Selling Stockholder to counsel for the Selling Stockholders for purposes of enabling such counsel to render the opinion referred in subsection (e) to section 10 hereof will also be furnished to the Representatives and counsel for the Underwriters and shall be deemed to be additional representations and warranties to the Underwriters by such Non-Management Selling Stockholder. 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, the Registration Statement and Prospectus, and any supplements or amendments thereto as relate to such Selling Stockholder will not contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading; provided, however, that the foregoing representation and warranty, as it relates to such Non-Management Selling Stockholder, is limited to the Selling Stockholder Information (as defined herein) concerning such Non-Management Selling Stockholder included in the Registration Statement and Prospectus, and any supplements or amendments thereto. Each Non-Management Selling Stockholder severally confirms and the Underwriters acknowledge that the name, address and number of shares of Common Stock beneficially owned by suchmatters covered thereby.
Appears in 1 contract
Samples: Underwriting Agreement (Rc2 Corp)
Representations and Warranties of the Selling Stockholders. Each Selling Stockholder, severally and not jointly, represents and warrants to the Underwriters and the Company as of the date hereof, the Initial Sale Time and as of the Closing Time, and agrees with each Underwriter thatUnderwriter, as follows:
(a) All of the Shares to be sold to the Underwriters by the Selling Stockholders were acquired pursuant to the transactions contemplated by the Purchase/Placement Agreement, dated as of December 19, 2019, as amended by Amendment No.1 to the Purchase/Placement Agreement, dated as of January 10, 2020, and Amendment No. 2 to the Purchase/Placement Agreement, dated as of January 30, 2020, by and among the Company, the Operating Partnership, and Stifel;
(b) Such Selling Stockholder has full power and authority to enter into this Agreement and the Custody Agreement and Power of Attorney to which it is a party. 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 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 may be limited by bankruptcy, insolvency, reorganization, moratorium or similar laws affecting creditors’ rights generally, and by general equitable principles, and except to the extent that the indemnification and contribution provisions of Section 11 hereof may be limited by federal or state securities laws and public policy considerations in respect thereof;
(c) Such Selling Stockholder now has, and immediately prior to the Closing Time will have, (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 the Shares to be sold by such Selling Stockholder will be delivering certificate(s) representing and/or notice(s) hereunder, in each case free and clear of all liens, encumbrances and claims whatsoever (other than pursuant to exercise options for Common Stock to Continental Stock Transfer & Trust Company (the “Custodian”Custody Agreement and Power of Attorney, as applicable), and (ii) 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 now is and, at the time of delivery of such Shares and/or notice(sherein. Upon (1) to exercise (whether at the time of purchase or the additional time of purchase, as the case may be) will be, the lawful owner of payment for the Shares issuable upon exercise of such options to be sold by such Selling Stockholder pursuant to this Agreement, (2) delivery of such Shares, as directed by the Underwriters, to Cede & Co., or such other nominee as may be designated by DTC, (3) registration of such Shares in the name of DTC, Cede & Co., or such other nominee and will (4) DTC indicating by book entries on its books that security entitlements with respect to such Shares have valid and marketable title been credited to the Shares issuable upon exercise of such optionsUnderwriters’ securities accounts, 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), x) the Underwriters will acquire a valid and marketable title “security entitlement” (within the meaning of Section 8-501 of the New York UCC) with respect to such Shares free and clear 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 (y) DTC shall be a “protected purchaser” of such Shares within the meaning of Section 8-303 of the New York UCC (assuming, in each case, that (A) none of DTC, Cede & Co., any such other nominee or any Underwriter will have “notice of any adverse claim” to any of such Shares within the meaning of Section 8-105 of the New York UCC, lien(B) DTC will be registered as a “clearing corporation” within the meaning of Section 8-102 of the New York UCC, encumbrance, security interest, community property right, restriction on transfer or other defect in titleand (C) the jurisdiction of DTC is New York);
(bd) to the extent that such Selling Stockholder will be delivering Common Stock to the Custodian, such Selling Stockholder now is and at the time The performance of delivery of such Shares (whether at the time of purchase or the additional time of purchase, as the case may be) will bethis Agreement, the lawful owner Custody Agreement and Power of the number of Shares to be sold Attorney by such Selling Stockholder pursuant and the consummation by such Selling Stockholder of the transactions contemplated herein and therein will not conflict with, or result in any breach of, or constitute a default under (nor constitute any event which with notice, lapse of time, or both would constitute a breach of, or default under), (i) any provision of the certificate or articles of incorporation, other charter or similar constitutive documents, or the bylaws of such Selling Stockholder, (ii) any provisions of any lease, contract, license, indenture, mortgage, deed of trust, bank loan or credit agreement or other agreement or instrument to this Agreement and has andwhich such Selling Stockholder is a party or by which it or its properties are bound or affected, at the time of delivery thereof, will have valid and marketable title or (iii) any Legal Requirement issued by a Governmental Authority applicable to such SharesSelling Stockholder, except, in the case of clauses (ii) and upon delivery of and payment (iii) above, for such Shares (whether at breaches or defaults which would not reasonably be expected, individually or in the time of purchase or the additional time of purchaseaggregate, as the case may be), the Underwriters will acquire valid and marketable title to materially interfere with such Shares free and clear of any claim, lien, encumbrance, security interest, community property right, restriction on transfer or other defect in titleSelling Stockholder’s ability to perform its obligations under this Agreement;
(ce) to the extent that No approval, authorization, consent or order of or filing with any Governmental Authority having jurisdiction over such Selling Stockholder will be delivering certificates representing and/or notice(s) to exercise options exercisable for Common Stock to the Custodian, is required in connection with such Selling Stockholder has Stockholder’s execution, delivery and performance of this Agreement, its consummation of the transactions contemplated herein, and its sale and delivery of the Shares, other than (i) such as have been obtained or made, or will have been obtained or made at the time of delivery of such certificates and/or notice(sClosing Time, (ii) to exercise (whether at 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 necessary qualification under the securities or blue sky laws of certain jurisdictions)the various jurisdictions in which the Shares are being offered by the Underwriters, (iii) as may be required under the Securities Act and the Exchange Act, the NYSE or the rules and regulations of FINRA and (iv) such other approvals, authorizations, consents, orders or filings, the failure of which to obtain or make would not reasonably be expected, individually or in the aggregate, to sell, assign, transfer and deliver such options exercisable for the number of Shares to be sold by materially interfere with such Selling Stockholder pursuant Stockholder’s ability to perform its obligations under this Agreement;
(df) such Such Selling Stockholder has and at the time of delivery of such Shares (whether at 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 Shares in the manner provided in this Agreement;
(e) this Agreement and each Custody Agreement between the Custodian and the Selling Stockholders (each, a “Custody Agreement”) have been duly executed and delivered by such Selling Stockholder and, with respect to the Custody Agreement only, assuming due authorization, execution and delivery by the Custodian, each is a legal, valid and binding agreement of such Selling Stockholder enforceable in accordance with its terms;
(f) such Selling Stockholder has duly and irrevocably authorized the Representatives of the Selling Stockholders, 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 thereby and to deliver the Shares to be sold by such Selling Stockholder and receive payment therefor pursuant hereto;
(g) the sale of such Selling Stockholder’s Shares pursuant to this Agreement 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; and;
(hg) the Prospectus and any amendment or supplement thereto, on the date of filing thereof with the Commission pursuant to Rule 424(b) and at the time of purchase and, if applicable, at the additional time of purchase, did not or will not include an untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading; 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; provided, however, that no Selling Stockholder makes any warranty or representation All information with respect to any statement contained in the Preliminary Prospectus Supplement, the Registration Statement or the Prospectus in reliance upon and in conformity with information concerning an Underwriter and furnished in writing by or on behalf of such Underwriter through you to the Company expressly for use in the Preliminary Prospectus Supplement, the Registration Statement or the Prospectus, and provided, further, that no Non-Management Selling Stockholder (as defined herein) makes any warranty or representation with respect to any statement contained in the Prospectus or the Registration Statement other than the Selling Stockholder Information (as defined below) relating to such Selling Stockholder furnished by such Non-Management Selling Stockholder. When contained in the Registration Statement becomes as of its effective date and at all times subsequent thereto through the latest as of the time of purchasedate hereof, additional time of purchase or the termination of the offering of the Shares, the Registration Statement did not and Prospectus, and any supplements or amendments thereto as relate to such Selling Stockholder 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 not misleading; each of the Prospectus, and any amendment or supplement thereto, as of the applicable filing date, and the Disclosure Package, as of the Initial Sale Time, did not and will not contain an untrue statement of a material fact or omit to state a material fact necessary to make the statements therein in the light of the circumstances under which they were made, not misleading; provided, however, that the foregoing this representation and warrantywarranty shall only apply to any statements or omissions in the Registration Statement, the Disclosure Package and the Prospectus and any amendment or supplement thereto, made in reliance upon and in conformity with written information furnished by or on behalf of such Selling Stockholder specifically for use in the Registration Statement, the Disclosure Package or the Prospectus, together with any amendment or supplement thereto used by the Company or any Underwriter, as the case may be, it relates 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 Non-Management Selling Stockholder in the Registration Statement, the Disclosure Package and the Prospectus under the heading “Selling Stockholders” and the footnotes thereunder, excluding any percentages set forth therein (the “Selling Stockholder Information”);
(h) Such Selling Stockholder has not distributed and will not distribute 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 intended, or which would reasonably be expected, to cause or result in, under the Securities Act, the Exchange Act or otherwise, in, or which has constituted, stabilization or manipulation of the price of any security of the Company to facilitate the sale or resale of the Shares;
(i) 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, among other things, appoints Computershare Trust Company, N.A., 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;
(j) Such Selling Stockholder has not relied upon the Representatives or legal counsel for the Underwriters for any legal, tax or accounting advice in connection with the offering and sale of the Shares;
(k) 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 Registration Statement, the Disclosure Package and the Prospectus under “Description of Our Capital Stock” and “Shares Eligible for Future Sale”;
(l) Neither such Selling Stockholder nor any of its subsidiaries, nor, to the knowledge of such Selling Stockholder, any officer, director or employee of such Selling Stockholder purporting to act on behalf of such Selling Stockholder or any of its Subsidiaries, nor any agent, affiliate or other person or entity acting on behalf of such Selling Stockholder or any of its Subsidiaries is limited aware of or has taken any action, directly or indirectly, that has resulted or would result in (i) the use of any funds for any unlawful contribution, gift, entertainment or other unlawful expense relating to political activity; (ii) the making or taking of an act in furtherance of an offer, promise or authorization of any direct or indirect unlawful payment or benefit to any foreign or domestic government or regulatory official or employee, including, without limitation, of any government-owned or controlled entity or of a public international organization, or any person or entity acting in an official capacity for or on behalf of any of the foregoing, or any political party or party official or candidate for political office; (iii) a violation by any such person or entity of any provision of the Foreign Corrupt Practices Act of 1977, as amended, or any applicable law or regulation implementing the OECD Convention on Combating Bribery of Foreign Public Officials in International Business Transactions, or committed an offence under the Xxxxxxx Xxx 0000 of the United Kingdom, or any other applicable anti-bribery or anti-corruption laws, or (iv) the making, offering, requesting or taking of, or the agreement to take, 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 its subsidiaries have instituted, maintained and enforced, and will continue to maintain and enforce policies and procedures reasonably designed to promote and ensure compliance with all applicable anti-bribery and anti-corruption laws;
(m) The operations of such Selling Stockholder and its subsidiaries are and have been conducted at all times in compliance with the Anti-Money Laundering Laws, and no action, suit or proceeding by or before any court or governmental or regulatory agency, authority or body or any arbitrator involving such Selling Stockholder or any of its subsidiaries with respect to the Anti-Money Laundering Laws is pending or, to the knowledge of such Selling Stockholder Information or any of its subsidiaries, threatened;
(as defined hereinn) concerning Neither such Non-Management Selling Stockholder included nor any of its subsidiaries nor, to its knowledge, any of their respective directors, officers, agents, employees, affiliates or other person or entity acting on behalf of such Selling Stockholder or any of its subsidiaries is currently the subject or the target of any Sanctions, nor is such Selling Stockholder nor any of its subsidiaries located, organized or resident in a Sanctioned Country; and such Selling Stockholder will not directly or indirectly use any of the proceeds of the offering, or lend, contribute or otherwise make available such proceeds to any subsidiary, joint venture partner or other person or entity (i) to fund or facilitate any activities of or business with any person or entity that, at the time of such funding or facilitation, is the subject or the target of any Sanctions, (ii) to fund or facilitate any activities of or any business in any Sanctioned Country or (iii) in any other manner that could result in a violation by any person or entity (including any person or entity participating in the transaction, whether as underwriter, advisor, investor or otherwise) of any Sanctions. For the past five years, such Selling Stockholder and its subsidiaries have not knowingly engaged in, are not now knowingly engaged in, and will not engage in, any dealings or transactions with any person or entity that at the time of the dealing or transaction is or was the subject or the target of any Sanctions or with any Sanctioned Country;
(o) 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;
(p) 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 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
(q) Except as otherwise disclosed to the Underwriters in writing, and any supplements or amendments thereto. Each Non-Management such Selling Stockholder severally confirms and the Underwriters acknowledge that the name, address and number is not a member of shares or an affiliate of Common Stock beneficially owned by suchor associated with any member of FINRA.
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 each Underwriter of the Underwriters that:
(a) Such Selling Stockholder is the owner of the Firm Common Shares and Firm Warrants to be sold by such Selling Stockholder pursuant to this Agreement and has, and on the Closing Date will have, good and clear title to such Firm Common Shares and Firm Warrants free of all restrictions on transfer, liens, encumbrances, security interests, equities and claims whatsoever, except for restrictions on transfer, encumbrances or claims pursuant to the Custody Agreement and Power of Attorney (each as defined below).
(b) Such Selling Stockholder has, and on the Closing Date will have, all necessary organizational power and authority to enter into this Agreement, the Custody Agreement signed by such Selling Stockholder and the Company, as Custodian, relating to the deposit of the Firm Common Shares and the Warrants to be sold by such Selling Stockholder (the "CUSTODY AGREEMENT") and the Power of Attorney of such Selling Stockholder appointing certain individuals as such Selling Stockholder's attorneys-in-fact (the "ATTORNEYS") to the extent that set forth therein, relating to the transactions contemplated hereby and by the Registration Statement and the Custody Agreement (the "POWER OF ATTORNEY") and to sell, assign, transfer and deliver the Firm Common Shares and Warrants to be sold by such Selling Stockholder will be delivering certificate(sin the manner provided herein and therein.
(c) representing and/or notice(sThis Agreement has been duly executed and delivered by or on behalf of such Selling Stockholder.
(d) to exercise options for Common Stock to Continental Stock Transfer & Trust Company (the “Custodian”), The Custody Agreement and Power of Attorney of such Selling Stockholder now has been duly executed and delivered by such Selling Stockholder and is anda valid and binding agreement of such Selling Stockholder, enforceable in accordance with its terms, except as may be limited by bankruptcy, insolvency, reorganization, moratorium or similar laws relating to or affecting creditors' rights generally, and by general principles of equity, regardless of whether considered in a proceeding in equity or at the time of law.
(e) Upon delivery of such and payment for the Firm Common Shares and/or notice(s) to exercise (whether at the time of purchase or the additional time of purchase, as the case may be) will be, the lawful owner of the Shares issuable upon exercise of such options and Warrants to be sold by such Selling Stockholder pursuant to this Agreement, good and will have valid and marketable title to the Shares issuable upon exercise of such options, 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 clear title to such Firm Common Shares and Warrants will pass to the Underwriters, free and clear of any claimall restrictions on transfer, lienliens, encumbranceencumbrances, security interestinterests, community property right, restriction on transfer or other defect in title;equities and claims whatsoever.
(bi) to the extent that such Selling Stockholder will be delivering Common Stock to the CustodianThe Registration Statement, such Selling Stockholder now is and at the time of delivery of such Shares (whether at the time of purchase or the 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 and has and, at the time of delivery thereof, will have valid and marketable title to such Shares, and upon delivery of and payment for such Shares (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 claim, lien, encumbrance, security interest, community property right, restriction on transfer or other defect in title;
(c) 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 at 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 pursuant to this Agreement;
(d) such Selling Stockholder has and at the time of delivery of such Shares (whether at 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 Shares in the manner provided in this Agreement;
(e) this Agreement and each Custody Agreement between the Custodian and the Selling Stockholders (each, a “Custody Agreement”) have been duly executed and delivered by such Selling Stockholder and, with respect to the Custody Agreement only, assuming due authorization, execution and delivery by the Custodian, each is a legal, valid and binding agreement of such Selling Stockholder enforceable in accordance with its terms;
(f) such Selling Stockholder has duly and irrevocably authorized the Representatives of the Selling Stockholders, 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 thereby and to deliver the Shares to be sold by such Selling Stockholder and receive payment therefor pursuant hereto;
(g) 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; and
(h) the Prospectus and any amendment or supplement thereto, on the date of filing thereof with the Commission pursuant to Rule 424(b) and at the time of purchase and, if applicable, at the additional time of purchase, did not or will not include an untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading; the Registration Statement did not when it became effective, does did not and contain and, as amended or supplemented, if applicable, will not, at the time of purchase and not contain 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; provided, however, that no Selling Stockholder makes any warranty or representation with respect to any statement contained in the Preliminary Prospectus Supplement, the Registration Statement or the Prospectus in reliance upon and in conformity with information concerning an Underwriter and furnished in writing by or on behalf of such Underwriter through you to the Company expressly for use in the Preliminary Prospectus Supplement, the Registration Statement or the Prospectus, and provided, further, that no Non-Management Selling Stockholder (as defined hereinii) makes any warranty or representation with respect to any statement contained in the Prospectus or the Registration Statement other than the Selling Stockholder Information (as defined below) relating to such Selling Stockholder furnished by such Non-Management Selling Stockholder. 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, the Registration Statement and Prospectusthe Prospectus comply and, as amended or supplemented, if applicable, will comply in all material respects with the Securities Act and any supplements the applicable rules and regulations of the Commission thereunder and (iii) the Prospectus does not contain and, as amended or amendments thereto as relate to such Selling Stockholder supplemented, 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 to make the statements therein therein, in the light of the circumstances under which they were made, not misleading; provided, however, except that the foregoing representation representations and warranty, as it relates warranties set forth in this paragraph 2(f) apply only to such Non-Management Selling Stockholder, is limited to the Selling Stockholder Information (as defined herein) concerning such Non-Management Selling Stockholder included statements or omissions in the Registration Statement or the Prospectus based upon information relating to any Selling Stockholder furnished to the Company in writing by such Selling Stockholder expressly for use therein.
(g) The execution, delivery and Prospectusperformance 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 of the transactions contemplated hereby and thereby will not (i) require any consent, approval, authorization or other order of, or qualification with, any court or governmental body or agency (except such as may be required under the securities or Blue Sky laws of the various states), (ii) conflict with or constitute a breach of any of the terms or provisions of, or a default under, the charter, bylaws or other governing documents of such Selling Stockholder, any indenture, loan agreement, mortgage, lease or other agreement or instrument to which such Selling Stockholder is a party or by which such Selling Stockholder or any property of such Selling Stockholder is bound, except for such conflicts, breaches or defaults as would not have a material adverse effect on the Shares or the transactions contemplated hereby or (iii) violate or conflict with any applicable law or any rule, regulation, judgment, order or decree of any court or any governmental body or agency having jurisdiction over such Selling Stockholder or any property of such Selling Stockholder.
(h) Such Selling Stockholder has not taken, and will not take, directly or indirectly, any supplements action designed to, or amendments thereto. Each Non-Management which might reasonably be expected to, cause or result in stabilization or manipulation of the price of any security of the Company to facilitate the sale or resale of the Shares pursuant to the distribution contemplated by this Agreement, and other than as permitted by the Securities Act, such Selling Stockholder severally confirms has not distributed and will not distribute any prospectus or other offering material in connection with the offering and sale of the Shares.
(i) Each certificate signed by or on behalf of such Selling Stockholder and delivered to the Underwriters acknowledge that or counsel for the name, address Underwriters shall be deemed to be a representation and number of shares of Common Stock beneficially owned warranty by suchsuch Selling Stockholder to the Underwriters as to the matters covered thereby.
Appears in 1 contract
Samples: Underwriting Agreement (Univision Communications Inc)
Representations and Warranties of the Selling Stockholders. Each of the Selling Stockholder, severally and not jointly, Stockholders hereby represents and warrants to each Underwriter thatas of the date hereof, as of the Firm Shares Closing Date and as of each Option Shares Closing Date (if any), as follows:
(a) to the extent that such Selling Stockholder will be delivering certificate(s) representing and/or notice(s) to exercise options for Common Stock to Continental Stock Transfer & Trust Company (the “Custodian”), such Selling Stockholder now is and, at the time of delivery of such Shares and/or notice(s) to exercise (whether at the time of purchase or the additional time of purchase, as the case may be) will be, the lawful owner of the Shares issuable upon exercise of such options to be sold by such Selling Stockholder pursuant to this Agreement, and will have valid and marketable title to the Shares issuable upon exercise of such options, 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 claim, lien, encumbrance, security interest, community property right, restriction on transfer or other defect in title;
(b) to the extent that such Selling Stockholder will be delivering Common Stock to the Custodian, such Selling Stockholder now is and at the time of delivery of such Shares (whether at the time of purchase or the 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 and has and, at the time of delivery thereof, will have valid and marketable title to such Shares, and upon delivery of and payment for such Shares (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 claim, lien, encumbrance, security interest, community property right, restriction on transfer or other defect in title;
(c) 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 Each Selling Stockholder has and at the time of delivery of such caused certificates and/or notice(s) to exercise (whether at 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 hereunder to be delivered to the Custodian, endorsed in blank or with blank stock powers duly executed, with a signature appropriately guaranteed, such certificates to be held in custody by the Custodian for delivery, pursuant to this Agreement;
(d) such Selling Stockholder has and at the time provisions of delivery of such Shares (whether at 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 Shares in the manner provided in this Agreement;
(e) this Agreement and each Custody Agreement between an agreement dated October 17, 2005 among the Custodian and the Selling Stockholders substantially in the form attached hereto as Exhibit B (each, a the “Custody Agreement”) have been duly executed and delivered by such Selling Stockholder and, with respect to the Custody Agreement only, assuming due authorization, execution and delivery by the Custodian, each is a legal, valid and binding agreement of such Selling Stockholder enforceable in accordance with its terms;).
(fb) such Each Selling Stockholder has duly and irrevocably authorized granted an irrevocable power of attorney substantially in the Representatives form attached hereto as Exhibit C (the “Power of Attorney”) to the Selling Stockholdersperson 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 thereby hereby and to deliver the shares to be sold by such Selling Stockholder pursuant hereto.
(c) This Agreement, the Custody Agreement, the Power of Attorney and the Lock-Up Agreement have each been duly authorized, executed and delivered by or on behalf of each Selling 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, except as the enforceability thereof may be limited by bankruptcy, insolvency, reorganization, moratorium or other similar laws affecting the enforcement of creditors’ rights generally and by general equitable principles.
(d) The execution and delivery by 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 of the transactions contemplated herein and compliance by each Selling Stockholder with its obligations hereunder, do not and will not, whether with or without the giving of notice or the passage of time or both, (i) violate or contravene any provision of the charter or bylaws or other organizational instrument of any Selling 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 the Selling Stockholder, (ii) conflict with or constitute a breach of, or default under, or result in the creation or imposition of any tax, lien, charge or encumbrance upon the shares to be sold by any Selling Stockholder or any property or assets of any Selling Stockholder pursuant to the terms of any agreement or instrument to which any Selling Stockholder is a party or by which any Selling Stockholder may be bound or to which any of the property or assets of any Selling Stockholder is subject or (iii) require any consent, approval, authorization or order of or registration or filing with any court or governmental agency or body having jurisdiction over it, except such as may be required by the Blue Sky laws of the various states in connection with the offer and sale of the Shares which have been or will be effected in accordance with this Agreement.
(e) Each Selling 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 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.
(f) Each 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 and receive payment therefor pursuant hereto;in the manner provided by this Agreement.
(g) Upon delivery of and payment for the sale of such Shares to be sold by each Selling Stockholder’s Shares Stockholder pursuant to this Agreement is not prompted by Agreement, assuming each Underwriter has no notice of any information concerning adverse claim, the Company which is not set forth in the Prospectus; andseveral Underwriters will receive valid and marketable title to such Shares free and clear of any lien, claim, mortgage, pledge, security interest or other encumbrance.
(h) 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, and on each Closing Date will not, contain any amendment or supplement thereto, on the date of filing thereof with the Commission pursuant to Rule 424(b) and at the time of purchase and, if applicable, at the additional time of purchase, did not or will not include an 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 and 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 in order to make the statements made therein not misleading and (ii) on the Effective Date the Prospectus contained and, on each Closing Date contains, no untrue statement of a material fact or omitted or omits to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading; .
(j) The sale of Shares by each Selling Stockholder pursuant to this Agreement is not prompted by such Selling Stockholder’s knowledge of any material information concerning the Registration Statement did Company or any of its subsidiaries which is not when it became effectiveset forth in the Prospectus.
(k) No Selling Stockholder has taken, does and no Selling Stockholder will take, directly or indirectly, any action designed to or that might reasonably be expected to cause or result in stabilization or manipulation of the price of any security of the Company to facilitate the sale or resale of the Shares.
(l) No Selling Stockholder has actual knowledge that any representation or warranty of the Company set forth in Section 2 above is untrue or inaccurate in any material respect.
(m) The representations and warranties of each Selling Stockholder in the Custody Agreement are and on each Closing Date will be, true and correct.
(n) Each Selling Stockholder acknowledges and agrees that each of the Underwriters has acted and is acting solely in the capacity of a principal in an arm’s length transaction between the Company and the Selling Stockholders, on the one hand, and the Underwriters, on the other hand, with respect to the offering of Shares contemplated hereby (including in connection with determining the terms of the offering) and not as a financial advisor, agent or fiduciary to the Company, the Selling Stockholders or any other person. Additionally, each Selling Stockholder acknowledges and agrees that the Underwriters have not and will notnot advise the Company, at the time of purchase and Selling Stockholders or any additional time of purchaseother person as to any legal, contain an untrue statement of a material fact tax, investment, accounting or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading; provided, however, that no regulatory matters in any jurisdiction. Each Selling Stockholder makes has consulted with its own advisors concerning such matters and shall be responsible for making its own independent investigation and appraisal of the transactions contemplated hereby, and the Underwriters shall have no responsibility or liability to the Company, the Selling Stockholders or any warranty or representation other person with respect thereto, whether arising prior to any statement contained in or after the Preliminary Prospectus Supplementdate hereof. Any review by the Underwriters of the Company, the Registration Statement transactions contemplated hereby or other matters relating to such transactions have been and will be performed solely for the Prospectus in reliance upon benefit of the Underwriters and in conformity with information concerning an Underwriter and furnished in writing by or shall not be on behalf of such Underwriter through you the Company or the Selling Stockholders. Each Selling Stockholder agrees that it will not claim that the Underwriters, or any of them, has rendered advisory services of any nature or respect, or owes a fiduciary duty to the Company expressly for use Company, any Selling Stockholder or any other person in the Preliminary Prospectus Supplement, the Registration Statement connection with any such transaction or the Prospectus, and provided, further, that no Non-Management Selling Stockholder (as defined herein) makes any warranty or representation with respect to any statement contained in the Prospectus or the Registration Statement other than the Selling Stockholder Information (as defined below) relating to such Selling Stockholder furnished by such Non-Management Selling Stockholder. 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, the Registration Statement and Prospectus, and any supplements or amendments thereto as relate to such Selling Stockholder will not contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading; provided, however, that the foregoing representation and warranty, as it relates to such Non-Management Selling Stockholder, is limited to the Selling Stockholder Information (as defined herein) concerning such Non-Management Selling Stockholder included in the Registration Statement and Prospectus, and any supplements or amendments process leading thereto. Each Non-Management Selling Stockholder severally confirms and the Underwriters acknowledge that the name, address and number of shares of Common Stock beneficially owned by such.
Appears in 1 contract
Representations and Warranties of the Selling Stockholders. Each Selling Stockholder, severally and not jointly, represents and warrants to each Underwriter the Underwriters that:
(a) to the extent that such Selling Stockholder will be delivering certificate(s) representing and/or notice(s) has full power and authority to exercise options enter into this Agreement. All authorizations and consents necessary for Common Stock to Continental Stock Transfer & Trust Company (the “Custodian”), such Selling Stockholder now is and, at the time of execution and delivery of such Shares and/or notice(s) to exercise (whether at the time of purchase or the additional time of purchase, as the case may be) will be, the lawful owner of the Shares issuable upon exercise of such options to be sold by such Selling Stockholder pursuant to this Agreement, and will have valid and marketable title to the Shares issuable upon exercise of such options, 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 claim, lien, encumbrance, security interest, community property right, restriction on transfer or other defect in title;
(b) to the extent that such Selling Stockholder will be delivering Common Stock to the Custodian, such Selling Stockholder now is and at the time of delivery of such Shares (whether at the time of purchase or the 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 and has and, at the time of delivery thereof, will have valid and marketable title to such Shares, and upon delivery of and payment for such Shares (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 claim, lien, encumbrance, security interest, community property right, restriction on transfer or other defect in title;
(c) 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 at 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 pursuant to this Agreement;
(d) such Selling Stockholder has and at the time of delivery of such Shares (whether at 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 Shares in the manner provided in this Agreement;
(e) this Agreement and each Custody Agreement between the Custodian and the Selling Stockholders (each, a “Custody Agreement”) have been given. This Agreement has been duly authorized, executed and delivered by such Selling Stockholder and, with respect to the Custody Agreement only, assuming due authorization, execution and delivery by the Custodian, each is constitutes a legal, valid and binding agreement of such Selling Stockholder and is enforceable against such Selling Stockholder in accordance with its termsthe terms thereof and hereof, except as may be limited by bankruptcy, insolvency, reorganization, moratorium or similar laws affecting creditors' rights generally, and by general equitable principles, and except to the extent that the indemnification and contribution provisions of Section 11 hereof may be limited by federal or state securities laws and public policy considerations in respect thereof;
(fb) such Selling Stockholder has duly now has, and irrevocably authorized at the Representatives of Closing Time or the Selling Stockholdersapplicable Option Closing Time will have, on behalf of such Selling Stockholder, (i) good and marketable title to execute and deliver this Agreement and any other document necessary or desirable in connection with the transactions contemplated thereby and to deliver the Shares to be sold by such Selling Stockholder hereunder, free and receive payment therefor clear of all liens, encumbrances and claims whatsoever (other than pursuant heretoto the letter of instruction ("Letter of Instruction") delivered to the Transfer Agent with respect to the transfer of the Shares pursuant to the offering), and (ii) full legal right and power, and all authorizations and approvals required by law, to sell, transfer and deliver such Shares to the Underwriters hereunder and to comply with its other obligations hereunder;
(gc) assuming each Underwriter acquires its interest in the Shares to be sold by such Selling Shareholder without notice of any adverse claim (within the meaning of the Uniform Commercial Code as in effect in the State of New York (the "UCC")) and such Underwriter has paid the purchase price for such Shares and has had such Shares credited to the securities account of such Underwriter or a security intermediary (as defined in Section 8-102(14) of the UCC) on behalf of such Underwriter maintained with the Depository Trust Company, then such Underwriter will have acquired a securities entitlement (as defined in Section 8-102(a)(17) of the UCC) to such Shares purchased by such Underwriter and no action based on an adverse claim to such securities credited to such account, whether framed in conversion, replevin, constructive trust, equitable lien or other theory, may be asserted against such Underwriter;
(d) the performance of this Agreement and the consummation of the transactions contemplated herein will not conflict with, or result in any breach of, or constitute a default under (nor constitute any event which with notice, lapse of time, or both would constitute a breach of, or default under), (i) any provision of the organizational documents of the Selling Stockholder, or (ii) any provision of any license, indenture, mortgage, deed of trust, loan or credit agreement or other agreement or instrument to which the Selling Stockholder is a party or by which it or its properties may be bound or affected, or (iii) any federal, state, local or foreign law, regulation or rule or any decree, judgment or order applicable to the Selling Stockholder, solely with respect to this clause (ii) or (iii) which would have a material adverse effect on the Selling Stockholder; or result in the creation or imposition of any lien, charge, claim or encumbrance upon any property or asset of the Selling Stockholder;
(e) no approval, authorization, consent or order of or filing with any federal, state or local governmental or regulatory commission, board, body, authority or agency is required in connection with the Selling Stockholder's execution, delivery and performance of this Agreement, its consummation of the transactions contemplated herein, and its sale and delivery of the Shares, other than (i) such as have been obtained, or will have been obtained at the Closing Time or the relevant Option Closing Time, as the case may be, under the Securities Act and the Exchange Act, (ii) such approvals as have been obtained in connection with the approval of the listing of the Shares on the Nasdaq National Market and (iii) any necessary qualification under the securities or blue sky laws of the various jurisdictions in which the Shares are being offered by the Underwriters;
(f) such Selling Stockholder’s Shares pursuant to this Agreement Stockholder is not prompted to sell Shares by any material information concerning the Company which is not set forth in the Prospectus; andRegistration Statement, the Prospectus or the Disclosure Package;
(hg) all material information with respect to such Selling Stockholder furnished by or on behalf of such Selling Stockholder in each of the Registration Statement, the Prospectus and the Disclosure Package (as amended or supplemented, if the Company shall have filed with the Commission any amendment or supplement thereto) complied and will comply in all material respects with all applicable provisions of the Securities Act and the Securities Act Regulations; the Registration Statement, on the date Preliminary Prospectus and the Prospectus, as amended and supplemented, contain and will contain all statements of filing thereof material fact with respect to such Selling Stockholder required to be stated therein in accordance with the Commission pursuant to Rule 424(b) Securities Act and at the time of purchase andSecurities Act Regulations; the Registration Statement, if applicableas amended, at the additional time of purchase, did does not or and will not include contain an untrue statement of a material fact with respect to such Selling Stockholder or omit to state a material fact with respect to such Selling Stockholder required to be stated therein or necessary in order to make the statements therein not misleading; and the Prospectus and the Disclosure Package, as amended and supplemented, does not and will not contain an untrue statement of a material fact with respect to such Selling Stockholder or omit to state a material fact with respect to such Selling Stockholder required to be stated therein or necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading;
(h) such Selling Stockholder has not distributed and will not distribute 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 Registration Statement did Representatives have consented in advance; and such Selling Stockholder has not when it became effectivetaken, directly or indirectly, any action intended, or which might reasonably be expected, to cause or result in, under the Securities Act, the Securities Act Regulations or otherwise, or which has constituted, stabilization or manipulation of the price of any security of the Company to facilitate the sale or resale of the Shares;
(i) certificates in negotiable form for the Shares to be sold hereunder by such Selling Stockholder have been or will be delivered to the Transfer Agent with the Letter of Instruction;
(j) 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 to be sold by it;
(k) such Selling Stockholder does not and will not, at have any registration or other similar rights to have any equity or debt securities registered for sale by 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; provided, however, that no Selling Stockholder makes any warranty or representation with respect to any statement contained in the Preliminary Prospectus Supplement, Company under the Registration Statement or included in the offering contemplated by this Agreement, except for such rights as are described in both the Prospectus in reliance upon and in conformity with information concerning an Underwriter and furnished in writing by or on behalf of such Underwriter through you to the Company expressly Disclosure Package under "Shares Eligible for use in the Preliminary Prospectus Supplement, the Registration Statement or the Prospectus, and provided, further, that no Non-Management Selling Stockholder Future Sale";
(as defined hereinl) makes any warranty or representation with respect to any statement contained in the Prospectus or the Registration Statement other than the Selling Stockholder Information (as defined below) relating to such Selling Stockholder furnished by such Nondoes not have, or has waived prior to the date hereof, any preemptive right, co-Management Selling Stockholder. When the Registration Statement becomes effective and at all times subsequent thereto through the latest sale right or right of first refusal or other similar right to purchase any of the time of purchase, additional time of purchase Shares that are to be sold by the Company or the termination any of the offering of other Selling Stockholders to the Shares, the Registration Statement Underwriters pursuant to this Agreement; and Prospectus, and any supplements or amendments thereto as relate to such Selling Stockholder will does not contain an untrue statement of a material fact own any warrants, options or omit similar rights to state a material fact required acquire, and does not have any right or arrangement to be stated therein acquire, any capital stock, right, warrants, options or necessary to make other securities from the statements therein not misleading; providedCompany, however, that the foregoing representation and warranty, as it relates to such Non-Management Selling Stockholder, is limited to the Selling Stockholder Information (as defined herein) concerning such Non-Management Selling Stockholder included other than those described in the Registration Statement Statement, the Prospectus and Prospectusthe Disclosure Package; and
(m) except for the investment of the Selling Stockholders and/or their affiliates in optionsXpress Holdings, Inc. and any supplements or amendments thereto. Each Non-Management Liquidnet, Inc. and as otherwise disclosed to the Underwriters in writing, such Selling Stockholder severally confirms is not a member of or an affiliate of or associated with any member of the NASD (within the meaning of Article 1 of the By-Laws and the Underwriters acknowledge that applicable rules of the name, address and number of shares of Common Stock beneficially owned by suchNASD).
Appears in 1 contract
Samples: Underwriting Agreement (Seabright Insurance Holdings Inc)
Representations and Warranties of the Selling Stockholders. Each Selling Stockholder, severally and not jointly, represents and warrants to each Underwriter that:
(a) to the extent that such Selling Stockholder will be delivering certificate(s) representing and/or notice(s) to exercise options for Common Stock to Continental Stock Transfer & Trust Company (the “Custodian”), such Selling Stockholder now is and, at the time of delivery of such Shares and/or notice(s) to exercise (whether at the time of purchase or the additional time of purchase, as the case may be) will be, the lawful owner of the Shares issuable upon exercise of such options to be sold by such Selling Stockholder pursuant to this Agreement, and will have valid and marketable title to the Shares issuable upon exercise of such options, 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 claim, lien, encumbrance, security interest, community property right, restriction on transfer or other defect in title;
(b) to the extent that such Selling Stockholder will be delivering Common Stock to the Custodian, such Selling Stockholder now is and at the time of delivery of such Shares (whether at the time of purchase or the 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 and has and, at the time of delivery thereof, will have valid and marketable title to such Shares, and upon delivery of and payment for such Shares (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 claim, lien, encumbrance, security interest, community property right, restriction on transfer or other defect in title;
(c) 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 at 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 pursuant to this Agreement;
(db) such Selling Stockholder has and at the time of delivery of such Shares (whether at 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 Shares in the manner provided in this Agreement;
(ec) this Agreement and each the Custody Agreement between the Custodian among American Stock Transfer & Trust Company, as custodian, and the Selling Stockholders (each, a “Custody Agreement”the "CUSTODY AGREEMENT") have been duly executed and delivered by such Selling Stockholder and, with respect to the Custody Agreement only, assuming due authorization, execution and delivery by the Custodian, each is a legal, valid and binding agreement of such Selling Stockholder enforceable in accordance with its terms;
(fd) such Selling Stockholder has reviewed carefully the Registration Statement, each Preliminary Prospectus, the Prospectus and the Permitted Free Writing Prospectuses, if any, and the Registration Statement, as to information relating to such Selling Stockholder, did not, as of the Effective Time, contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading; at no time during the period that begins on the earlier of the date of such Preliminary Prospectus and the date such Preliminary Prospectus was filed with the Commission and ends at the time of purchase did or will any Preliminary Prospectus, as then amended or supplemented, as to information relating to such Selling Stockholder in such Preliminary Prospectus, include an untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading, and at no time during such period did or will any Preliminary Prospectus, as then amended or supplemented, together with any combination of one or more of the then issued Permitted Free Writing Prospectuses, if any, in each case as to information relating to such Selling Stockholder, include an untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading; at no time during the period that begins on the earlier of the date of the Prospectus and the date the Prospectus is filed with the Commission and ends at the later of the time of purchase, the latest additional time of purchase, if any, and the end of the period during which a prospectus is required by the Act to be delivered (whether physically or through compliance with Rule 172 under the Act or any similar rule) in connection with any sale of Shares did or will the Prospectus, as then amended or supplemented, as to information relating to such Selling Stockholder in the Prospectus, include an untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading; at no time during the period that begins on the date of such Permitted Free Writing Prospectus and ends at the time of purchase did or will any Permitted Free Writing Prospectus, as to information relating to such Selling Stockholder in such Permitted Free Writing Prospectus, include an untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading;
(e) such Selling Stockholder has duly and irrevocably authorized the Representatives of the Selling Stockholders, 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 thereby and to deliver the Shares to be sold by such Selling Stockholder and receive payment therefor pursuant hereto;
(gf) the sale of such Selling Stockholder’s 's Shares pursuant to this Agreement is not prompted by any information concerning the Company which is not set forth in the Registration Statement (excluding the exhibits thereto), each Preliminary Prospectus and the Prospectus;
(g) the Shares to be sold by such Selling Stockholder pursuant hereto have been duly and validly authorized and issued and are and, after they are delivered against payment therefor as provided herein, will be fully paid, non-assessable and free of statutory and contractual preemptive rights, resale rights, rights of first refusal and similar rights; and
(h) the Prospectus and any amendment or supplement thereto, on the date of filing thereof with the Commission pursuant to Rule 424(b) and at the time of purchase and, if applicable, at the additional time of purchase, did not or will not include an untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading; 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; provided, however, that no Selling Stockholder makes any warranty or representation with respect to any statement contained in the Preliminary Prospectus Supplement, the Registration Statement or the Prospectus in reliance upon and in conformity with information concerning an Underwriter and furnished in writing by or on behalf of such Underwriter through you to the Company expressly for use in the Preliminary Prospectus Supplement, the Registration Statement or the Prospectus, and provided, further, that no Non-Management Selling Stockholder (as defined herein) makes any warranty or representation with respect to any statement contained in the Prospectus or the Registration Statement other than the Selling Stockholder Information (as defined below) relating to such Selling Stockholder furnished by such Non-Management Selling Stockholder. When the Registration Statement becomes effective and at all times subsequent thereto through the latest of the time of purchase, additional time of purchase all stock transfer or other taxes (other than income taxes) which are required to be paid in connection with the termination sale and transfer of the offering of the Shares, the Registration Statement and Prospectus, and any supplements or amendments thereto as relate Shares to be sold by such Selling Stockholder will not contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading; provided, however, that the foregoing representation and warranty, as it relates to such Non-Management Selling Stockholder, is limited to the several Underwriters hereunder will have been fully paid or provided for by such Selling Stockholder Information (as defined herein) concerning and all laws imposing such Non-Management Selling Stockholder included in the Registration Statement and Prospectus, and any supplements or amendments thereto. Each Non-Management Selling Stockholder severally confirms and the Underwriters acknowledge that the name, address and number of shares of Common Stock beneficially owned by suchtaxes will have been fully complied with.
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) the Shares to be sold by such Selling Stockholder pursuant to this Agreement are certificated securities in registered form and are not held in any securities account or by or through any securities intermediary within the extent meaning of the Uniform Commercial Code as in effect in the State of New York. Such Selling Stockholder has, and, at the Time of Purchase and, if applicable, at the Additional Time of Purchase, will have, full right, power and authority to hold, sell, transfer and deliver the Shares to be sold by such Selling Stockholder pursuant to this Agreement; and upon the Underwriters’ acquiring possession of such Shares and paying the purchase price therefor as herein contemplated, the Underwriters will acquire their respective interests in such Shares (including, without limitation, all rights that such Selling Stockholder will be delivering certificate(shad or has to transfer such Securities) representing and/or notice(sfree of any adverse claim;
(b) to exercise options certificates for Common Stock to Continental Stock Transfer & Trust Company (the “Custodian”), such Selling Stockholder now is and, at the time of delivery of such Shares and/or notice(s) to exercise (whether at the time of purchase or the additional time of purchase, as the case may be) will be, the lawful owner all of the Shares issuable upon exercise of such options to be sold by such Selling Stockholder pursuant to this Agreement, and will in suitable form for transfer by delivery or accompanied by duly executed instruments of transfer or assignment in blank, with signatures guaranteed, have valid and marketable title been placed in custody with the custodian pursuant to the Shares issuable upon exercise terms of such optionsCustody Agreements between National City Bank, as custodian (the “Custodian”), and upon delivery each of and payment for the Selling Stockholders, dated, in each case, prior to the date hereof (the “Custody Agreement”), in the form heretofore furnished to the Representatives of the Selling Stockholders, with irrevocable conditional instructions to deliver such Shares (whether at the time of purchase or the additional time of purchase, as the case may be), to the Underwriters will acquire valid and marketable title pursuant to such Shares free and clear of any claim, lien, encumbrance, security interest, community property right, restriction on transfer or other defect in titlethis Agreement;
(bc) to the extent that such Selling Stockholder will be delivering Common Stock to the Custodianhas, such Selling Stockholder now is and at the time of delivery of such Shares (whether at the time Time of purchase Purchase or the additional time 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 and has and, at the time of delivery thereof, will have valid and marketable title to such Shares, and upon delivery of and payment for such Shares (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 claim, lien, encumbrance, security interest, community property right, restriction on transfer or other defect in title;
(c) 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 at 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 pursuant to this Agreement;
(d) such Selling Stockholder has and at the time of delivery of such Shares (whether at the time of purchase or the additional time of purchasePurchase, 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;
(ed) this Agreement and each Custody Agreement between Agreement, the Custodian and the Irrevocable Power of Attorney of such Selling Stockholders (eachStockholder duly authorized, a “Custody Agreement”) have been duly executed and delivered by such Selling Stockholder andappointing Xxxxxxx X. Xxxxxxxxx, with respect III and Xxxxx X. Xxxxx as attorneys-in-fact, dated, in each case, prior to the date hereof (the “Power of Attorney”) and the Custody Agreement onlyhave been duly authorized, assuming due authorization, execution executed and delivery delivered by the Custodian, such Selling Stockholder and each is a legal, valid and binding agreement of such Selling Stockholder enforceable in accordance with its terms;
(e) when the Registration Statement becomes effective and at all times subsequent thereto through the latest of the Time of Purchase, the Additional Time of Purchase or the termination of the offering of the Shares, the Registration Statement and Prospectus, and any supplements or amendments thereto as they relate to such Selling Stockholder will not contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading, 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 the Prospectus, and any supplements or amendments thereto, concerning such Selling Stockholder furnished in writing by or on behalf of such Selling Stockholder to the Company expressly for use therein;
(f) pursuant to the terms of the Power of Attorney, such Selling Stockholder has duly and irrevocably authorized the Representatives of the Selling Stockholders, 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 thereby hereby and to deliver the Shares to be sold by such Selling Stockholder and receive payment therefor pursuant hereto;
(g) neither the execution and delivery of this Agreement, the Power of Attorney and the Custody Agreement nor the sale of Shares being sold by such Selling Stockholder nor the consummation of the transactions contemplated herein nor the fulfillment of the terms hereof by such Selling Stockholder or compliance by such Selling Stockholder with its obligations hereunder conflict or will conflict with, result in a breach or violation of, or constitute a default under any law or the organizational documents of such Selling Stockholder’s Shares pursuant to this Agreement , if such Selling Stockholder is not prompted an individual, or the terms of any indenture or other agreement or instrument to which such Selling Stockholder or any of its Subsidiaries is a party or bound, or any judgment, order or decree applicable to such Selling Stockholder or any of its Subsidiaries of any court, regulatory body, administrative agency, governmental body or arbitrator having jurisdiction over such Selling Stockholder or any of its properties;
(h) such Selling Stockholder has no reason to believe that the representations and warranties of the Company contained in Section 3 are not true and correct; the sale of shares of Common Stock by such Selling Stockholder pursuant hereto is not motivated by any information concerning the Company or any of its Subsidiaries which is not set forth in the ProspectusProspectus or any supplement thereto;
(i) such Selling Stockholder has not taken, and will not take, directly or indirectly, any action which is designed to or which has constituted or would be expected to cause or result in stabilization or manipulation of the price of any security of the Company to facilitate the sale or resale of the Shares; and
(hj) no filing with, or consent, approval, authorization, order, registration, qualification or decree of, any court or governmental authority or agency, domestic or foreign, is necessary or required for the performance by each Selling Stockholder of its obligations hereunder or in the Power of Attorney or the Custody Agreement, or in connection with the sale and delivery of the Shares hereunder or the consummation of the transactions contemplated by this Agreement, except such as may have previously been made or obtained or as may be required under the Act or state securities laws. In addition, each of the Selling Stockholders named in Schedule F annexed hereto (the “Designated Selling Stockholders”), severally and not jointly further represents and warrants to each Underwriter that such Designated Selling Stockholder has reviewed and is familiar with the Registration Statement and the Prospectus and (i) has no knowledge of any amendment material fact, condition or information not disclosed in the Prospectus or any supplement thereto, on thereto which has adversely affected or may adversely affect the date business of filing thereof with the Commission pursuant to Rule 424(bCompany or any of its Subsidiaries; and (ii) and at neither the time of purchase and, if applicable, at the additional time of purchase, did not Prospectus nor any amendments or will not include an supplements thereto contains any untrue statement of a material fact or omit omits to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading; 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; provided, however, that no Selling Stockholder makes any warranty or representation with respect to any statement contained in the Preliminary Prospectus Supplement, the Registration Statement or the Prospectus in reliance upon and in conformity with information concerning an Underwriter and furnished in writing by or on behalf of such Underwriter through you to the Company expressly for use in the Preliminary Prospectus Supplement, the Registration Statement or the Prospectus, and provided, further, that no Non-Management Selling Stockholder (as defined herein) makes any warranty or representation with respect to any statement contained in the Prospectus or the Registration Statement other than the Selling Stockholder Information (as defined below) relating to such Selling Stockholder furnished by such Non-Management Selling Stockholder. 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, the Registration Statement and Prospectus, and any supplements or amendments thereto as relate to such Selling Stockholder will not contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading; provided, however, that the foregoing representation and warranty, as it relates to such Non-Management Selling Stockholder, is limited to the Selling Stockholder Information (as defined herein) concerning such Non-Management Selling Stockholder included in the Registration Statement and Prospectus, and any supplements or amendments thereto. Each Non-Management Selling Stockholder severally confirms and the Underwriters acknowledge that the name, address and number of shares of Common Stock beneficially owned by such.
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 the several Underwriters and the Company, and shall be deemed to represent and warrant to the several Underwriters and the Company on each Underwriter Closing Date, that:
(a) to Such Selling Stockholder has duly executed a power of attorney and custody agreement ("Power of Attorney and Custody Agreement") naming [____________], or either of them, as such Selling Stockholder's attorneys-in-fact ("Attorneys-in-Fact") for the extent that purpose of entering into and carrying out this Agreement and naming [___________] as custodian ("Custodian") of the Shares of such Selling Stockholder will be delivering certificate(s) representing and/or notice(s) to exercise options for Common Stock to Continental Stock Transfer & Trust Company (the “Custodian”), such Selling Stockholder now is and, at the time purpose of delivery of selling such Shares and/or notice(sto the Underwriters on each Closing Date and receiving payment therefor.
(b) to exercise (whether at All consents, approvals, authorizations and orders necessary for the time of purchase or the additional time of purchase, as the case may be) will be, the lawful owner of the Shares issuable upon exercise of such options to be sold execution and delivery by such Selling Stockholder pursuant to of this Agreement, Agreement and will have valid the Power of Attorney and marketable title to Custody Agreement and for the Shares issuable upon exercise of such options, sale 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 claim, lien, encumbrance, security interest, community property right, restriction on transfer or other defect in title;
(b) to the extent that such Selling Stockholder will be delivering Common Stock to the Custodian, such Selling Stockholder now is and at the time of delivery of such Shares (whether at the time of purchase or the 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 and has and, at the time of delivery thereof, will have valid and marketable title to such Shares, and upon delivery of and payment for such Shares (whether at the time of purchase or the additional time of purchasehereunder, as the case may be)set forth on Schedule II annexed hereto, the Underwriters will acquire valid and marketable title to such Shares free and clear of any claim, lien, encumbrance, security interest, community property right, restriction on transfer or other defect in title;
(c) to the extent that such have been obtained. Such Selling Stockholder will be delivering certificates representing and/or notice(s) to exercise options exercisable for Common Stock to the Custodianhas, such Selling Stockholder has and at the time of delivery of thereof hereunder such certificates and/or notice(s) to exercise (whether at the time of purchase or the additional time of purchase, as the case may be) Selling Stockholder will have, full legal right, power good and capacity, and any approval required by law (other than those imposed by valid title to 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 proposed to be sold by such Selling Stockholder pursuant hereunder, free and clear of all voting trust arrangements, liens, encumbrances, security interests, equities and claims, other than any created by the Power of Attorney and Custody Agreement or this Agreement for the benefit of the Underwriters, except for agreements to this Agreement;
(d) which such Selling Stockholder has and is a party to be terminated at the time of delivery of such Shares (whether at the time of purchase or the additional time of purchase, as the case may be) will have, Closing. Such Selling Stockholder has full legal right, power and capacity, and any approval required by law (other than those imposed by the Act authority to enter into this Agreement and the securities or blue sky laws Power of certain jurisdictions), Attorney and Custody Agreement and to sell, assign, transfer and deliver such Shares in hereunder, free and clear of all voting trust arrangements, liens, encumbrances, security interests, equities, claims and community property rights, other than any created by the manner provided in Power of Attorney and Custody Agreement or this Agreement;Agreement for the benefit of the Underwriters, except for agreements to which such Selling Stockholder is a party to be terminated at the Closing. Upon delivery of and payment for such Shares hereunder, the Underwriters will acquire good and valid title thereto, free and clear of all voting trust arrangements, liens, encumbrances, security interests, equities, and claims assuming the Underwriters purchase such Shares without any notice of any adverse claim.
(ec) Such Selling Stockholder has not distributed and will not distribute any Preliminary Prospectus, the Prospectus or any other material in connection with the offering and sale of the Shares. Such Selling Stockholder has not taken and will not take, directly or indirectly, any action designed to or which would reasonably be expected to cause or result in, under the Act, the Exchange Act or otherwise, stabilization or manipulation of the price of any security of the Company to facilitate the sale or resale of the Common Stock.
(d) The execution, delivery and performance by such Selling Stockholder of this Agreement and each the Power of Attorney and Custody Agreement between will not, if applicable, result in the Custodian violation of any provisions of the certificate of incorporation, by-laws, partnership agreement, limited liability operating agreement or other governing documents of such Selling Stockholder, or constitute a breach, or be in contravention, of any provision of any material agreement, franchise, license, indenture, mortgage, deed of trust or other instrument to which such Selling Stockholder is a party or by which such Selling Stockholder or such Selling Stockholder's property may be bound or affected, or any statute, rule or regulation applicable to such Selling Stockholder, or violate any order or decree of any court, regulatory body, administrative agency or other governmental body having jurisdiction over such Selling Stockholder or any of such Selling Stockholder's property. No consent, approval, authorization or other order of any court, regulatory body, administrative agency or other governmental body is required for the execution and delivery of, and performance under, this Agreement by such Selling Stockholder or the consummation by such Selling Stockholder of the transactions contemplated by this Agreement, except for compliance with the Act, the Exchange Act, and the clearance of such offering with the NASD. Such Selling Stockholders (eachStockholder hereby represents and warrants that each Attorney-in-Fact has been duly appointed as attorney-in-fact by such Selling Stockholder for the purpose of entering into and carrying out this Agreement, a “and the Power of Attorney and Custody Agreement”) have Agreement has been duly executed and delivered by or on behalf of such Selling Stockholder and, with respect to the Representatives.
(e) This Agreement and the Power of Attorney and Custody Agreement only, assuming due authorization, execution and delivery by the Custodian, are each is a legal, valid and binding agreement agreements of such Selling Stockholder enforceable in accordance with its their respective terms;.
(f) Such Selling Stockholder has deposited in custody, under the Power of Attorney and Custody Agreement, certificates in negotiable form for the Shares to be sold hereunder by such Selling Stockholder has duly and irrevocably authorized as set forth opposite such Selling Stockholder's name on Schedule II annexed hereto for the Representatives purpose of further delivery pursuant to this Agreement. Such Selling Stockholder agrees that the Shares of such Selling Stockholder on deposit with the Custodian are subject to the interests of the Company, the Underwriters and the other Selling Stockholders, on behalf that the arrangements made for such custody, and the appointment of the Attorneys-in-Fact pursuant to the Power of Attorney and Custody Agreement, are to that extent irrevocable, and that the obligations of such Selling Stockholder hereunder and under the Power of Attorney and Custody Agreement shall not be terminated, except as provided in this Agreement and the Power of Attorney and Custody Agreement, by any act of such Selling Stockholder, by operation of law, or, by the dissolution, winding up or other event affecting the legal life of such entity, or by the occurrence of any other event. If any event should occur before the delivery of the Shares hereunder, the certificates for Shares then on deposit with the Custodian shall, to the extent such Shares are purchased by the Underwriters, be delivered by the Custodian in accordance with the terms and conditions of this Agreement and the Power of Attorney and Custody Agreement as if such event had not occurred, regardless of whether or not the Custodian shall have received notice thereof. Such Selling Stockholder represents that each Attorney-in-Fact has been authorized by such Selling Stockholder to execute and deliver this Agreement and any other document necessary or desirable in connection with the transactions contemplated thereby Custodian has been authorized to receive and to deliver acknowledge receipt of the proceeds of sale of the Shares to be sold by such Selling Stockholder against delivery thereof and receive payment therefor pursuant hereto;otherwise to act on behalf of such Selling Stockholder.
(g) To the sale of such Selling Stockholder’s Shares pursuant extent, but only to this Agreement is not prompted by the extent, that any information concerning the Company which is not set forth statements or omissions made in the Registration Statement, any Preliminary Prospectus; and
(h) , the Prospectus and Prospectus, or any amendment or supplement theretothereto are made in reliance upon and in conformity with written information furnished to the Company by such Selling Stockholder expressly for use therein, on the date (i) each Preliminary Prospectus, as of filing thereof its date, has conformed in all material respects with the Commission pursuant to Rule 424(b) and at requirements of the time of purchase Act and, if applicableas of its date, at the additional time of purchase, did has not or will not include an included any untrue statement of a material fact or omit omitted to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading; and (ii) on the effective date of the Registration Statement and on each Closing Date, (x) the Registration Statement and the Prospectus, did not when it became effectiveor will comply as to form in all material respects to the requirements of the Act, does not and (y) neither the Registration Statement nor the Prospectus did or will not, at the time of purchase and include any additional time of purchase, contain an untrue statement of a material fact or omit to state a any material fact required to be stated therein therein, in light of the circumstances under which they were made, or necessary to make the statements therein not misleading; provided, however, that no Selling Stockholder makes any warranty or representation with respect to any statement .
(h) The information contained in such Selling Stockholder's Questionnaire completed in connection with the Preliminary Prospectus SupplementCompany's public offering and delivered to the Representatives was, as of the date of such questionnaire, and is, as of the date of this Agreement, true and correct.
(i) To the knowledge of the Selling Stockholders, the Registration Statement or representations and warranties of the Prospectus Company set forth in reliance upon Section 2 hereof are true and in conformity with information concerning an Underwriter and furnished in writing correct. A certificate signed by or on behalf of any Selling Stockholder as such Underwriter through you and delivered to the Company expressly Representatives or to counsel for use in the Preliminary Prospectus Supplement, the Registration Statement or the Prospectus, Underwriters shall be deemed a representation and provided, further, that no Non-Management Selling Stockholder (as defined herein) makes any warranty or representation with respect to any statement contained in the Prospectus or the Registration Statement other than the Selling Stockholder Information (as defined below) relating to by such Selling Stockholder to the Underwriters as to the matters covered thereby. A certificate delivered by or on behalf of any Selling Stockholder to counsel for the Selling Stockholders for purposes of enabling such counsel to render the opinion referred in subsection (e) to section 10 hereof will also be furnished to the Representatives and counsel for the Underwriters and shall be deemed to be additional representations and warranties to the Underwriters by such Non-Management Selling Stockholder. 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, the Registration Statement and Prospectus, and any supplements or amendments thereto as relate to such Selling Stockholder will not contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading; provided, however, that the foregoing representation and warranty, as it relates to such Non-Management Selling Stockholder, is limited to the Selling Stockholder Information (as defined herein) concerning such Non-Management Selling Stockholder included in the Registration Statement and Prospectus, and any supplements or amendments thereto. Each Non-Management Selling Stockholder severally confirms and the Underwriters acknowledge that the name, address and number of shares of Common Stock beneficially owned by suchmatters covered thereby.
Appears in 1 contract
Representations and Warranties of the Selling Stockholders. Each Selling Stockholder, severally and not jointly, represents represents, warrants, and warrants covenants to each Underwriter that:
(a) to the extent that such Such Selling Stockholder will be delivering certificate(s) representing and/or notice(s) has full power and authority to exercise options enter into this Agreement and the Custody Agreement. All authorizations and consents necessary for Common Stock to Continental Stock Transfer & Trust Company (the “Custodian”), such Selling Stockholder now is and, at the time of execution and delivery of such Shares and/or notice(s) to exercise (whether at the time of purchase or the additional time of purchase, as the case may be) will be, the lawful owner of the Shares issuable upon exercise of such options to be sold by such Selling Stockholder pursuant to this of the Custody Agreement, and will have valid and marketable title to for the Shares issuable upon exercise execution of this Agreement on behalf of such optionsSelling Stockholder, 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 claim, lien, encumbrance, security interest, community property right, restriction on transfer or other defect in title;
(b) to the extent that such Selling Stockholder will be delivering Common Stock to the Custodian, such Selling Stockholder now is and at the time of delivery of such Shares (whether at the time of purchase or the additional time of purchase, as the case may be) will be, the lawful owner have been given. Each of the number of Shares to be sold by such Selling Stockholder pursuant to Custody Agreement and this Agreement and has and, at the time of delivery thereof, will have valid and marketable title to such Shares, and upon delivery of and payment for such Shares (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 claim, lien, encumbrance, security interest, community property right, restriction on transfer or other defect in title;
(c) 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 at 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 pursuant to this Agreement;
(d) such Selling Stockholder has and at the time of delivery of such Shares (whether at 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 Shares in the manner provided in this Agreement;
(e) this Agreement and each Custody Agreement between the Custodian and the Selling Stockholders (each, a “Custody Agreement”) have been duly authorized, executed and delivered by or on behalf of such Selling Stockholder and, with respect to the Custody Agreement only, assuming due authorization, execution and delivery by the Custodian, each is constitutes a legal, valid and binding agreement of such Selling Stockholder and is enforceable against such Selling Stockholder in accordance with its terms;the terms thereof and hereof, except as limited by applicable bankruptcy and similar laws.
(fb) such Such Selling Stockholder has duly now has, and irrevocably authorized at the Representatives time of the Selling Stockholdersdelivery thereof hereunder will have, on behalf of such Selling Stockholder, (i) good and marketable title to execute and deliver this Agreement and any other document necessary or desirable in connection with the transactions contemplated thereby and to deliver the Shares to be sold by such Selling Stockholder hereunder, free and receive clear of all liens, encumbrances and claims whatsoever (other than pursuant to the Custody Agreement), and (ii) full legal right and power, and all authorizations and approvals required by law, to sell, transfer and deliver such Shares to the Underwriters hereunder and to make the representations, warranties and agreements made by such Selling Stockholder herein. Upon the delivery of and payment therefor pursuant hereto;for such Shares hereunder, such Selling Stockholder will deliver good and marketable title thereto, free and clear of all liens, encumbrances and claims whatsoever.
(gc) On the Option 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 Shares to be sold by such Selling Stockholder to the several 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.
(d) The performance of this Agreement and the consummation of the transactions contemplated hereby will not 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 obligation under, if such Selling Stockholder is a corporation or partnership, the organizational documents of such Selling Stockholder’s , or, as to all such Selling Stockholders, any indenture, mortgage, deed of trust, voting trust agreement, loan agreement, bond, debenture, note agreement or other evidence of indebtedness, lease, contract or other agreement or instrument to which such Selling Stockholder is a party or by which such Selling Stockholder or any of its property is bound or affected, or under any ruling, decree, judgment, order, statute, rule or regulation of any court or other governmental agency or body having jurisdiction over such Selling Stockholder or the property of such Selling Stockholder.
(e) No consent, approval, authorization or order of, or any filing or declaration with, any court or governmental agency or body is required for the consummation by such Selling Stockholder of the transactions on its part contemplated herein and in the Custody Agreement, except such as have been obtained under the Act or the Rules and Regulations and such as may be required under state securities or Blue Sky laws or the by-laws and rules of the NASD in connection with the purchase and distribution by the Underwriters of the Shares pursuant to this Agreement is not prompted be sold by such Selling Stockholder.
(f) Such Selling Stockholder has no knowledge of any information concerning the Company which is material fact or condition not set forth in the Prospectus; and
(h) the Prospectus and any amendment or supplement thereto, on the date of filing thereof with the Commission pursuant to Rule 424(b) and at the time of purchase and, if applicable, at the additional time of purchase, did not or will not include an untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading; 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; provided, however, that no Selling Stockholder makes any warranty or representation with respect to any statement contained in the Preliminary Prospectus Supplement, the Registration Statement or the Prospectus in reliance upon and in conformity with information concerning an Underwriter and furnished in writing by which has adversely affected, or on behalf may adversely affect, the business, properties, business prospects, condition (financial or otherwise) or results of such Underwriter through you to operations of the Company expressly for use in the Preliminary Prospectus Supplement, the Registration Statement or the Prospectusand its subsidiaries, and provided, further, that no Non-Management the sale of the Shares proposed to be sold by such Selling Stockholder is not prompted by any such knowledge.
(as defined hereing) makes any warranty or representation All information with respect to any statement contained in the Prospectus or the Registration Statement other than the Selling Stockholder Information (as defined below) relating to such Selling Stockholder furnished by such Non-Management Selling Stockholder. 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, contained in the Registration Statement and Prospectusthe Prospectus (as amended or supplemented, if the Company shall have filed with the Commission any amendment or supplement thereto) complied and will comply with all applicable provisions of the Act and the Rules and Regulations, contains and will contain all statements required to be stated therein in accordance with the Act and the Rules and Regulations, and any supplements or amendments thereto as relate to such Selling Stockholder 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; provided.
(h) To the knowledge of such Selling Stockholder, howeverwithout conducting an independent inquiry, the representations and warranties of the Company contained in Section 3 are true and correct.
(i) Other than as permitted by the Act and the Rules and Regulations, such Selling Stockholder has not distributed and will not distribute any preliminary prospectus, the Prospectus or any other offering material in connection with the offering and sale of the Shares. Such Selling Stockholder has not taken, directly or indirectly, any action designed, or which might reasonably be expected, to cause or result in, under the Act or otherwise, or which has caused or resulted in, stabilization or manipulation of the price of any security of the Company to facilitate the sale or resale of the Shares.
(j) Certificates in negotiable form for the Option Shares (or notices of exercise of options to purchase the Option Shares, as the case may be) to be sold hereunder by such Selling Stockholders have been placed in custody, for the purpose of making delivery of such Option Shares under this Agreement, under the Custody Agreement. Such Selling Stockholder agrees that the Shares represented by the certificates held in custody for him under the Agreement and Custody Agreement are for the benefit of and coupled with and subject to the interest hereunder of the Custodian, the Attorneys, the Underwriters, each other Selling Stockholder and the Company, that the foregoing representation arrangements made by such Selling Stockholder for such custody and warrantythe appointment of the Custodian and the Attorneys by such Selling Stockholder are irrevocable, as it relates to and that the obligations of such Non-Management Selling StockholderStockholder 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 is limited liquidated or if any other such event should occur before the delivery of the Shares hereunder, certificates for the Shares shall be delivered by the Custodian in accordance with the terms and conditions of this Agreement and actions taken by the Attorneys and the Custodian pursuant to the Selling Stockholder Information (Custody Agreement shall be as defined herein) concerning valid as if such Non-Management Selling Stockholder included in death, liquidation, incapacity or other event had not occurred, regardless of whether or not the Registration Statement and ProspectusCustodian or the Attorneys, and any supplements or amendments thereto. Each Non-Management Selling Stockholder severally confirms and the Underwriters acknowledge that the nameeither of them, address and number of shares of Common Stock beneficially owned by suchshall have received notice thereof.
Appears in 1 contract
Samples: Underwriting Agreement (Hologic Inc)
Representations and Warranties of the Selling Stockholders. Each Selling Stockholder, severally and not jointly, represents and warrants to each Underwriter that:
(a) to the extent that such Such Selling Stockholder will be delivering certificate(s) representing and/or notice(s) to exercise options for Common Stock to Continental Stock Transfer & Trust Company is (the “Custodian”)or, such Selling Stockholder now is and, at the time of delivery of such Shares and/or notice(s) to exercise (whether at the time of purchase or the additional time of purchase, as in the case may besolely of Dan P. Kourkoumelis, on the Closixx Xxxx xxxx xx) will be, the xxe lawful owner of the Firm Shares issuable upon exercise of such options to be sold by such Selling Stockholder pursuant to this Agreement, and will have valid and marketable title to the Shares issuable upon exercise of such options, 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 claim, lien, encumbrance, security interest, community property right, restriction on transfer or other defect in title;
(b) to the extent that such Selling Stockholder will be delivering Common Stock to the Custodian, such Selling Stockholder now is and at the time of delivery of such Shares (whether at the time of purchase or the additional time of purchase, as the case may be) will be, the lawful owner of the number of Additional Shares to be sold by such Selling Stockholder pursuant to this Agreement and has and(or, at in the time case solely of delivery thereofDan P. Kourkoumelis, on the Closixx Xxxx xxxx xxxx), and on the Closing Date will have valid have, good and marketable clear title to such Firm Shares and Additional Shares, and upon delivery free of and payment for such Shares (whether at the time of purchase or the additional time of purchaseall restrictions on transfer, as the case may be)liens, the Underwriters will acquire valid and marketable title to such Shares free and clear of any claim, lien, encumbranceencumbrances, security interestinterests, community property right, restriction on transfer or other defect in title;equities and claims whatsoever (subject to any lien created hereby).
(cb) to the extent that such Such Selling Stockholder will be delivering certificates representing and/or notice(s) to exercise options exercisable for Common Stock to has, and on the Custodian, such Selling Stockholder has and at the time of delivery of such certificates and/or notice(s) to exercise (whether at the time of purchase or the additional time of purchase, as the case may be) Closing Date will have, full legal right, power and capacityauthority, and any all authorization and approval required by law law, to enter into this Agreement and, if applicable, the Custody Agreement (other than those imposed the "Custody Agreement") signed by such Selling Stockholder and the Company, as Custodian, relating to the deposit of the Firm Shares and Additional Shares to be sold by such Selling Stockholder and, if applicable, the Power of Attorney (the "Power of Attorney") with respect to the appointment of 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 by the Act Registration Statement and the securities or blue sky laws of certain jurisdictions), to sell, assign, transfer and deliver the Firm Shares and Additional Shares to be sold by such options exercisable for Selling Stockholder in the number manner provided herein and therein.
(c) This Agreement has been duly authorized, executed and delivered by or on behalf of such Selling Stockholder.
(d) Each of the Custody Agreement and the Power of Attorney of such Selling Stockholder (if applicable) 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.
(e) Pursuant to the Power of Attorney (if applicable), 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 Firm Shares and Additional Shares to be sold by such Selling Stockholder pursuant to this Agreement;
(d) such Selling Stockholder has and at the time of delivery of such Shares (whether at 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 Shares in the manner provided in this Agreement;
(e) this Agreement and each Custody Agreement between the Custodian and the Selling Stockholders (each, a “Custody Agreement”) have been duly executed and delivered by such Selling Stockholder and, with respect to the Custody Agreement only, assuming due authorization, execution and delivery by the Custodian, each is a legal, valid and binding agreement of such Selling Stockholder enforceable in accordance with its terms;.
(f) such Selling Stockholder has duly Upon delivery of and irrevocably authorized payment for the Representatives of the Selling Stockholders, on behalf of such Selling Stockholder, to execute Firm Shares and deliver this Agreement and any other document necessary or desirable in connection with the transactions contemplated thereby and to deliver the Additional Shares to be sold by such Selling Stockholder pursuant to this Agreement, good and receive payment therefor pursuant hereto;clear title to such Firm Shares and Additional 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, the sale Custody Agreement and the Power of Attorney (if applicable) of such Selling Stockholder by or on behalf of such Selling Stockholder’s Shares pursuant to this Agreement , the compliance by such Selling Stockholder with all the provisions hereof and thereof and the consummation of the transactions contemplated hereby and thereby will not (i) require any consent, approval, authorization or other order of, or qualification with, any court or governmental body or agency (except such as may be required under the Act and the securities or Blue Sky laws of the various states), (ii) conflict with or constitute a breach of any of the terms or provisions of, or a default under, the organizational documents of such Selling Stockholder, if such Selling Stockholder is not prompted an individual, or any indenture, loan agreement, mortgage, lease or other agreement or instrument to which such Selling Stockholder is a party or by which such Selling Stockholder or any information concerning the Company which property of such Selling Stockholder is not set forth bound or (iii) violate or conflict with any applicable law or any rule, regulation, judgment, order or decree of any court or any governmental body or agency having jurisdiction over such Selling Stockholder or any property of such Selling Stockholder, other than, in the Prospectus; andcase of clauses (ii) and (iii), any conflict or violation that would not affect the validity of, or adversely affect the Selling Stockholder's ability to consummate, the transactions contemplated hereunder.
(h) The information in the Prospectus Registration Statement under the caption "Principal and any amendment Selling Stockholders" and furnished in writing to the Company by or supplement theretoon behalf of such Selling Stockholder for inclusion therein does not, and will not on the date of filing thereof with the Commission pursuant to Rule 424(b) and at the time of purchase andClosing Date, if applicable, at the additional time of purchase, did not or will not include an contain any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading; 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 therein, in light of the circumstances under which they were made, not misleading; provided, however, that no .
(i) Such Selling Stockholder makes has not taken, and will not take, directly or indirectly, any warranty action designed to, or representation which might reasonably be expected to, cause or result in stabilization or manipulation of the price of any security of the Company to facilitate the sale or resale of the Shares pursuant to the distribution contemplated by this Agreement, and other than as permitted by the Act, such Selling Stockholder has not distributed and will not distribute any prospectus or other offering material in connection with respect to the offering and sale of the Shares.
(j) At any statement contained time during the period described in Section 5(d), if there is any change in the Preliminary Prospectus Supplementinformation referred to in Section 7(h), the Registration Statement or the Prospectus in reliance upon and in conformity with information concerning an Underwriter and furnished in writing such Selling Stockholder will immediately notify you of such change.
(k) Each certificate signed by or on behalf of such Underwriter through you Selling Stockholder and delivered to the Company expressly Underwriters or counsel for use in the Preliminary Prospectus Supplement, the Registration Statement or the Prospectus, Underwriters shall be deemed to be a representation and provided, further, that no Non-Management Selling Stockholder (as defined herein) makes any warranty or representation with respect to any statement contained in the Prospectus or the Registration Statement other than the Selling Stockholder Information (as defined below) relating to by such Selling Stockholder furnished by such Non-Management Selling Stockholder. 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, the Registration Statement and Prospectus, and any supplements or amendments thereto as relate to such Selling Stockholder will not contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading; provided, however, that the foregoing representation and warranty, as it relates to such Non-Management Selling Stockholder, is limited to the Selling Stockholder Information (Underwriters as defined herein) concerning such Non-Management Selling Stockholder included in to the Registration Statement and Prospectus, and any supplements or amendments thereto. Each Non-Management Selling Stockholder severally confirms and the Underwriters acknowledge that the name, address and number of shares of Common Stock beneficially owned by suchmatters covered thereby.
Appears in 1 contract
Representations and Warranties of the Selling Stockholders. Each Selling Stockholder, severally and not jointly, represents and warrants to each the Underwriter thatas of the date hereof, as of the Applicable Time and as of the Closing Date, and agrees, severally and not jointly, with the Underwriter, as follows:
(a) to Neither the extent that such Selling Stockholder will be delivering certificate(s) representing and/or notice(s) to exercise options for Common Stock to Continental Stock Transfer & Trust Company (the “Custodian”), such Selling Stockholder now is and, at the time of delivery of such Shares and/or notice(s) to exercise (whether at the time of purchase or the additional time of purchase, as the case may be) will be, the lawful owner of the Shares issuable upon exercise of such options to be sold by such Selling Stockholder pursuant to this Agreement, and will have valid and marketable title to the Shares issuable upon exercise of such options, 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 claim, lien, encumbrance, security interest, community property right, restriction on transfer or other defect in title;
(b) to the extent that such Selling Stockholder will be delivering Common Stock to the Custodian, such Selling Stockholder now is and at the time of delivery of such Shares (whether at the time of purchase or the 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 and has and, at the time of delivery thereof, will have valid and marketable title to such Shares, and upon delivery of and payment for such Shares (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 claim, lien, encumbrance, security interest, community property right, restriction on transfer or other defect in title;
(c) 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 at 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 pursuant to this Agreement;
(d) such Selling Stockholder has and at the time of delivery of such Shares (whether at 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 Shares in the manner provided in this Agreement;
(e) this Agreement and each Custody Agreement between the Custodian and the Selling Stockholders (each, a “Custody Agreement”) have been duly executed and delivered by such Selling Stockholder and, with respect to the Custody Agreement only, assuming due authorization, execution and delivery by the Custodian, each is a legal, valid and binding agreement of such Selling Stockholder enforceable in accordance with its terms;
(f) such Selling Stockholder has duly and irrevocably authorized the Representatives of the Selling Stockholders, 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 thereby and to deliver the Shares to be sold by such Selling Stockholder and receive payment therefor pursuant hereto;
(g) 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; and
(h) General Disclosure Package nor the Prospectus and or any amendment amendments or supplement thereto, on the date of filing thereof with the Commission pursuant to Rule 424(b) and at the time of purchase and, if applicable, at the additional time of purchase, did not supplements thereto included or will not include an any untrue statement of a material fact or omitted or will omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading; the Registration Statement did not when it became effective, does not provided that such representations and will not, at the time of purchase and any additional time of purchase, contain an untrue statement of a material fact warranties set forth in this subsection (2)(a) apply only to statements or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading; provided, however, that no Selling Stockholder makes any warranty or representation with respect to any statement contained in the Preliminary Prospectus Supplement, the Registration Statement or the Prospectus omissions made in reliance upon and in conformity with information concerning an Underwriter and relating to such Selling Stockholder furnished in writing by or on behalf of such Underwriter through you to the Company Selling Stockholder expressly for use in the Preliminary Prospectus SupplementRegistration Statement, the General Disclosure Package, the Prospectus or any amendment or supplement thereto (the “Selling Stockholder Information”); such Selling Stockholder is not prompted to sell the Shares to be sold by such Selling Stockholder hereunder by any “material, non-public information” (within the meaning of the 0000 Xxx) concerning the Company or any of its subsidiaries which is known by such Selling Stockholder but not set forth or incorporated by reference in the Registration Statement or Statement, the General Disclosure Package and the Prospectus.
(b) The execution and delivery of, and provided, further, that no Non-Management the performance by such Selling Stockholder of such Selling Stockholder’s obligations under this Agreement have been duly and validly authorized by all necessary corporate, limited partnership or similar action on the part of such Selling Stockholder and this Agreement has been duly executed and delivered by such Selling Stockholder.
(c) Each of (i) the Power of Attorney of such Selling Stockholder (if it is indicated on Schedule I that such Selling Stockholder has delivered a Power of Attorney) appointing each of Xxxx Xxx, Xxxxxx XxXxxxxxx and Xxxxx Xxxxxxxx as its Attorney-in-Fact with respect to this Agreement and related matters, in the form attached hereto as Exhibit B (the “Power of Attorney”), (ii) the Custody Agreement, by and between American Stock Transfer & Trust Company, LLC and such Selling Stockholder, in the form attached hereto as Exhibit C (the “Custody Agreement”) and (iii) the Lock-Up Agreement (as defined herein) makes any warranty or representation with respect to any statement contained in the Prospectus or the Registration Statement other than the ), has been duly authorized (if applicable), executed and delivered by such Selling Stockholder Information and is the valid and binding agreement of such Selling Stockholder.
(as defined belowd) relating The execution and delivery of this Agreement, the Power of Attorney, if applicable, the Custody Agreement and the Lock-Up Agreement and 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 with its obligations hereunder do not and will not, whether with or without the giving of notice or passage of time or both, constitute a breach of, or default under, any contract applicable to such Selling Stockholder furnished by Stockholder, nor will such Nonaction result in any violation of the provisions of the charter or by-Management laws or other organizational instrument of such Selling Stockholder. When the Registration Statement becomes effective and at all times subsequent thereto through the latest , if applicable, or any applicable law rule, regulation, judgment, order, writ or decree of the time of purchaseany government, additional time of purchase government instrumentality or the termination of the offering of the Sharescourt, the Registration Statement and Prospectusdomestic or foreign, and any supplements or amendments thereto as relate to having jurisdiction over such Selling Stockholder or any of its properties, except as would not have a Material Adverse Effect.
(e) Such Selling Stockholder has, and at the Closing Date will not contain an untrue statement of a material fact or omit have, valid title to state a material fact required the Shares to be stated therein sold by such Selling Stockholder free and clear of all security interests, claims, liens, equities or necessary other encumbrances and the legal right and power to make enter into this Agreement, the statements therein not misleading; providedPower of Attorney, howeverif applicable, that the foregoing representation Custody Agreement and warrantythe Lock-Up Agreement and to sell, as it relates transfer and deliver the Shares to be sold by such Non-Management Selling Stockholder, is limited to the Selling Stockholder Information (as defined herein) concerning such Non-Management Selling Stockholder included in the Registration Statement and Prospectus, and any supplements or amendments thereto. Each Non-Management Selling Stockholder severally confirms and the Underwriters acknowledge that the name, address and number of shares of Common Stock beneficially owned by such.
Appears in 1 contract
Samples: Equity Underwriting Agreement (Ladder Capital Corp)
Representations and Warranties of the Selling Stockholders. Each Selling Stockholder, severally and not jointly, represents and warrants to each Underwriter that:
(a) to the extent that such Selling Stockholder will be delivering certificate(s) representing and/or notice(s) to exercise options for Common Stock to Continental Stock Transfer & Trust Company (the “Custodian”), such Selling Stockholder now is andStockholder, at the time of delivery of such Shares and/or notice(s) to exercise (whether at the time of purchase or the additional time of purchaseShares, as the case may be) will be, the lawful owner of the Shares issuable upon exercise of such options to be sold by such Selling Stockholder pursuant to this Agreement, and will have valid and marketable title to the Shares issuable upon exercise of such options, 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 claim, lien, encumbrance, security interest, community property right, restriction on transfer or other defect in title;
(b) to the extent that such Selling Stockholder will be delivering Common Stock to the Custodian, such Selling Stockholder now is and at the time of delivery of such Shares (whether at the time of purchase or the 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 and has and, at the time of delivery thereof, will have valid and marketable title to such Shares, and upon delivery of and payment for such Shares (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 claim, lien, encumbrance, security interest, community property right, restriction on transfer or other defect in title;
(cb) 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 CustodianStockholder, such Selling Stockholder has and at the time of delivery of such certificates and/or notice(s) to exercise (whether at the time of purchase or the additional time of purchaseShares, 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 pursuant to this Agreement;
(d) such Selling Stockholder has and at the time of delivery of such Shares (whether at 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 Shares in the manner provided in this Agreement;
(ec) this Agreement and each the Custody Agreement between the Custodian ChaseMellon Shareholder Services, as custodian, and the Selling Stockholders (each, a “the Custody Agreement”) have been duly executed and delivered by such Selling Stockholder and, with respect to the Custody Agreement only, assuming due authorization, execution and delivery by the Custodian, each is a legal, valid and binding agreement of such Selling Stockholder enforceable in accordance with its their terms;
(fd) such Selling Stockholder has duly and irrevocably authorized the Representatives of the Selling Stockholders, 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 thereby and to deliver the Shares to be sold by such Selling Stockholder and receive payment therefor pursuant hereto;
(g) 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; and
(h) the Prospectus and any amendment or supplement thereto, on the date of filing thereof with the Commission pursuant to Rule 424(b) and at the time of purchase and, if applicable, at the additional time of purchase, did not or will not include an untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading; 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; provided, however, that no Selling Stockholder makes any warranty or representation with respect to any statement contained in the Preliminary Prospectus Supplement, the Registration Statement or the Prospectus in reliance upon and in conformity with information concerning an Underwriter and furnished in writing by or on behalf of such Underwriter through you to the Company expressly for use in the Preliminary Prospectus Supplement, the Registration Statement or the Prospectus, and provided, further, that no Non-Management Selling Stockholder (as defined herein) makes any warranty or representation with respect to any statement contained in the Prospectus or the Registration Statement other than the Selling Stockholder Information (as defined below) relating to such Selling Stockholder furnished by such Non-Management Selling Stockholder. 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, the Registration Statement and Prospectus, and any supplements or amendments thereto as relate to such Selling Stockholder will not contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading; provided;
(e) such Selling Stockholder has duly and irrevocably authorized the Representatives of the Selling Stockholders, however, that the foregoing representation and warranty, as it relates to on behalf of such Non-Management Selling Stockholder, is limited to execute and deliver this Agreement and any other document necessary or desirable in connection with the transactions contemplated thereby and to deliver the Shares to be sold by such Selling Stockholder Information and receive payment therefor pursuant hereto; and
(as defined hereinf) the sale of such Selling Stockholder's Shares pursuant to this Agreement is not prompted by any information concerning such Non-Management Selling Stockholder included the Company which is not set forth in the Registration Statement and Prospectus, and any supplements or amendments thereto. Each Non-Management Selling Stockholder severally confirms and the Underwriters acknowledge that the name, address and number of shares of Common Stock beneficially owned by such.
Appears in 1 contract
Representations and Warranties of the Selling Stockholders. Each Selling Stockholder, severally and not jointlyjointly with the other Selling Stockholders, represents and warrants to each Underwriter of the Underwriters that:
(a) the Registration Statement, as it relates to the extent that such Selling Stockholder will be delivering certificate(s) representing and/or notice(s) to exercise options for Common Stock to Continental Stock Transfer & Trust Company (the “Custodian”), such Selling Stockholder now is and, at the time of delivery of such Shares and/or notice(s) to exercise (whether at the time of purchase or the additional time of purchase, as the case may be) will be, the lawful owner of the Shares issuable upon exercise of such options to be sold by such Selling Stockholder pursuant to this Agreement, and will have valid and marketable title to the Shares issuable upon exercise of such options, 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 claim, lien, encumbrance, security interest, community property right, restriction on transfer or other defect in title;
(b) to the extent that such Selling Stockholder will be delivering Common Stock to the Custodian, such Selling Stockholder now is and at the time of delivery of such Shares (whether at the time of purchase or the 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 and has and, at the time of delivery thereof, will have valid and marketable title to such Shares, and upon delivery of and payment for such Shares (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 claim, lien, encumbrance, security interest, community property right, restriction on transfer or other defect in title;
(c) 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 at 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 pursuant to this Agreement;
(d) such Selling Stockholder has and at the time of delivery of such Shares (whether at 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 Shares in the manner provided in this Agreement;
(e) this Agreement and each Custody Agreement between the Custodian and the Selling Stockholders (each, a “Custody Agreement”) have been duly executed and delivered by such Selling Stockholder and, with respect to the Custody Agreement only, assuming due authorization, execution and delivery by the Custodian, each is a legal, valid and binding agreement of such Selling Stockholder enforceable in accordance with its terms;
(f) such Selling Stockholder has duly and irrevocably authorized the Representatives of the Selling Stockholders, 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 thereby and to deliver the Shares to be sold by such Selling Stockholder and receive payment therefor pursuant hereto;
(g) 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; and
(h) the Prospectus and any amendment or supplement theretodid not, on the date of filing thereof with the Commission pursuant to Rule 424(b) and at the time of purchase and, if applicable, at the additional time of purchase, did not or will not include an untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in the light as of the circumstances under which they were made, not misleading; the Registration Statement did not when it became effective, does not and will not, at the time of purchase and any additional time of purchaseEffective Time, contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading; providedthe Disclosure Package, however, that no Selling Stockholder makes any warranty or representation with respect to any statement contained in the Preliminary Prospectus Supplement, the Registration Statement or the Prospectus in reliance upon and in conformity with information concerning an Underwriter and furnished in writing by or on behalf of such Underwriter through you as it relates to the Company expressly for use in the Preliminary Prospectus Supplement, the Registration Statement or the Prospectus, and provided, further, that no Non-Management Selling Stockholder (as defined herein) makes any warranty or representation with respect to any statement contained in the Prospectus or the Registration Statement other than the Selling Stockholder Information (as defined below) relating to such Selling Stockholder furnished by such Non-Management Selling Stockholder. When the Registration Statement becomes effective and at all times subsequent thereto through the latest , did not, as of the time of purchaseApplicable Time, additional time of purchase or the termination of the offering of the Shares, the Registration Statement and Prospectus, and any supplements or amendments thereto as relate to such Selling Stockholder will not contain include 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; providedas of the date the Prospectus is filed with the Commission, howeverthe time of purchase and each additional time of purchase, that if any, the foregoing representation and warrantyProspectus, as then amended or supplemented, as it relates to such Non-Management Selling Stockholder, is will not include an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading; provided that the representations and warranties set forth in this paragraph are limited solely to the Information Regarding Such Selling Stockholder. The Underwriters, the Company and the Selling Stockholders agree that the “Information Regarding Such Selling Stockholder” consists solely of (A) the legal name and address of such Selling Stockholder Information and (as defined hereinB) concerning such Non-Management Selling Stockholder included in the Registration Statement and Prospectus, and any supplements or amendments thereto. Each Non-Management Selling Stockholder severally confirms and the Underwriters acknowledge that the name, address and number of shares of Common Stock beneficially common stock owned by suchsuch Selling Stockholder before and after the offering (excluding percentages), in each case as such information with respect to such Selling Stockholder appears in the table (and corresponding footnotes) under the caption “Principal and Selling Stockholders” in each of the Registration Statement, the Disclosure Package and the Prospectus; and it being further understood and agreed that Information Regarding Such Selling Stockholder consists only of information furnished by or on behalf of such Selling Stockholder;
(b) such Selling Stockholder has not, prior to the execution of this Agreement, offered or sold any Shares by means of any “prospectus” (within the meaning of the Act), or used any “prospectus” (within the meaning of the Act) in connection with the offer or sale of the Shares, in each case other than the Disclosure Package;
(c) the sale of the Shares to be sold by such Selling Stockholder hereunder and the compliance by such Selling Stockholder with this Agreement and the Custody Agreement (as defined below) and the consummation of the transactions herein and therein contemplated will not (a) 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, bank loan or credit agreement or other evidence of indebtedness, or any license, lease, contract or other agreement or instrument binding upon such Selling Stockholder, (b) result in any violation of the provisions of the certificate of incorporation or by-laws of such Selling Stockholder 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 (c) 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, except, in the case of (a) and (c), 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 no consent, approval, authorization, order, registration or qualification of or with any such court or governmental body or agency is required for the performance by such Selling Stockholder of its obligations under this Agreement and the Custody Agreement and the consummation by such Selling Stockholder of the transactions contemplated by this Agreement and the Custody Agreement, as applicable, in connection with the Shares to be sold by such Selling Stockholder hereunder, except as may have previously been obtained, the registration under the Act of the 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 state securities or blue sky laws in connection with the purchase and distribution of the Shares by the Underwriters;
(d) such Selling Stockholder has not taken, directly or indirectly, any action that is designed to or that has constituted or might reasonably be expected to cause or result in unlawful stabilization or manipulation of the price of any security of the Company to facilitate the sale or resale of the Shares;
(e) upon delivery of the Shares to be sold by such Selling Stockholder and payment therefor pursuant hereto, valid and unencumbered title to such Shares will pass to the several Underwriters. Upon payment for the Shares to be sold by such Selling Stockholder pursuant to this Agreement, delivery of such Shares, as directed by the Underwriters, to Cede & Co. (“Cede”) or such other nominee as may be designated by the Depository Trust Company (“DTC”), registration of such Shares in the name of Cede or such other nominee and the crediting of such Shares on the books of DTC to securities accounts of the Underwriters (assuming that neither DTC nor any such Underwriter has notice of any adverse claim (within the meaning of Section 8-105 of the New York Uniform Commercial Code (the “UCC”)) to such Shares), (A) DTC shall be a “protected purchaser” of such Shares within the meaning of Section 8-303 of the UCC, (B) under Section 8-501 of the UCC, the Underwriters will acquire a valid security entitlement in respect of such Shares and (C) no action based on any “adverse claim,” within the meaning of Section 8-102 of the UCC, to such Shares may be asserted against the Underwriters with respect to such security entitlement; for purposes of this representation, such Selling Stockholder may assume that when such payment, delivery and crediting occur, (x) such Shares will have been registered in the name of Cede or another nominee designated by DTC, in each case on the Company’s share registry in accordance with its certificate of incorporation, bylaws and applicable law, (y) DTC will be registered as a “clearing corporation” within the meaning of Section 8-102 of the UCC and (z) appropriate entries to the accounts of the several Underwriters on the records of DTC will have been made pursuant to the UCC;
(f) such Selling Stockholder has and, at the time of delivery of the Shares to be sold by such Selling Stockholder pursuant to this Agreement (whether the time of purchase or any additional time of purchase, as the case may be), will have full legal right, power and capacity, and all authorizations and approvals required by law (other than those imposed by the Act and state securities or blue sky laws), to (i) enter into this Agreement and the Custody Agreement and, (ii) sell, assign, transfer and deliver the Shares to be sold by such Selling Stockholder pursuant to this Agreement in the manner provided in this Agreement;
(g) this Agreement and the custody agreement (the “Custody Agreement”), dated [·], 2017 between American Stock Transfer & Trust Company, LLC, as custodian (the “Custodian”), and such Selling Stockholder have each been duly executed and delivered by such Selling Stockholder, and each is a legal, valid and binding agreement of such Selling Stockholder;
(h) at the time of purchase and each additional time of purchase, all stock transfer or other similar taxes (other than income taxes), if any, that are required to be paid in connection with the sale and transfer of the Shares to be sold by such Selling Stockholder to the several Underwriters hereunder will be fully paid or provided for by such Selling Stockholder, and all laws imposing such taxes will be fully complied with; and
(i) each Selling Stockholder has delivered or will deliver to you prior to or at the additional time of purchase 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; In addition, any certificate signed by any Selling Stockholder or officer of such Selling Stockholder and delivered to the Underwriters or counsel for the Underwriters in connection with the offering of the Shares shall be deemed to be a representation and warranty by such Selling Stockholder, as to matters covered thereby, to each Underwriter.
Appears in 1 contract
Representations and Warranties of the Selling Stockholders. Each of the Selling Stockholder, Stockholders with respect to itself and severally and not jointly, represents and warrants to you and each Underwriter that:
(a) to the extent that such Such Selling Stockholder will be delivering certificate(s) representing and/or notice(s) to exercise options for Common Stock to Continental Stock Transfer & Trust Company (is the “Custodian”), such Selling Stockholder now is and, at the time of delivery of such Shares and/or notice(s) to exercise (whether at the time of purchase or the additional time of purchase, as the case may be) will be, the lawful sole owner of the number of Shares issuable upon exercise of such options to be sold by set forth opposite such Selling Stockholder pursuant to this AgreementStockholder's name in Schedule I hereto; and, and will have valid and marketable title to the Shares issuable upon exercise of such options, 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 claim, lien, encumbrance, security interest, community property right, restriction on transfer or other defect in title;
(b) to the extent that such Selling Stockholder will be delivering Common Stock to the Custodian, such Selling Stockholder now is and at the time of delivery of such Shares (whether at the time of purchase or the additional time of purchase, as the case may be) will be, the lawful owner of the number of Shares to be sold by such the Selling Stockholder pursuant to each Underwriter in accordance with this Agreement and has andAgreement, 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 will be free and clear of any claim, lien, encumbranceall liens, security interestinterests, community property rightpledges, restriction on transfer or charges, encumbrances, stockholders' agreements, voting trusts and any claims whatsoever (other defect than any placed thereon by the Underwriters).
(b) Such Selling Stockholder has been duly organized and is validly existing as a corporation in title;good standing under the laws of the British Virgin Islands and has all requisite corporate power and authority to enter into and perform its obligations under this Agreement.
(c) 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 This Agreement has and at the time of delivery of such certificates and/or notice(s) to exercise (whether at 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 pursuant to this Agreement;
(d) such Selling Stockholder has and at the time of delivery of such Shares (whether at 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 Shares in the manner provided in this Agreement;
(e) this Agreement and each Custody Agreement between the Custodian and the Selling Stockholders (each, a “Custody Agreement”) have been duly and validly authorized, executed and delivered by such Selling Stockholder and, with respect to (or the Custody Agreement only, assuming due authorization, execution and delivery by the Custodian, each is a legal, valid and binding agreement Attorneys-in-Fact on behalf of such Selling Stockholder) and is a legal and binding obligation of such Selling Stockholder, enforceable against such Selling Stockholder enforceable in accordance with its terms;, subject to applicable bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium and other similar laws affecting creditors' rights and remedies generally, and subject, as to enforceability, to general principles of equity, including principles of commercial reasonableness, good faith and fair dealing (regardless of whether enforcement is sought in a proceeding at law or in equity) and except insofar as rights to indemnification and contribution contained herein may be limited by federal or state securities laws or related public policy.
(fd) The execution and delivery by such Selling Stockholder has duly and irrevocably authorized (or the Representatives of the Selling StockholdersAttorneys-in-Fact, on behalf of such Selling Stockholder) of, and its performance of its obligations under, this Agreement, the Custody Agreement (defined herein) and the consummation of the transactions contemplated hereby and thereby, respectively (including the sale of the Shares hereunder), will not (i) conflict with or result in a breach of any of the terms and provisions of, or constitute a default under (or an event that with notice or lapse of time, or both, would constitute a default under) or require approval or consent under, or result in the creation or imposition of any lien, charge or encumbrance upon any property or assets of such Selling Stockholder or any of its subsidiaries pursuant to execute the terms of any agreement, contract, indenture, mortgage, lease, license, arrangement or understanding to which such Selling Stockholder or any of its subsidiaries is a party, or to which any of its respective properties is subject, that is material to such Selling Stockholder or any of its subsidiaries or any governmental franchise, license or permit heretofore issued to such Selling Stockholder or any of its subsidiaries that is material to such Selling Stockholder or any of its subsidiaries, or (ii) violate or conflict with any provision of the articles or certificate of incorporation, by-laws or similar governing instruments of such Selling Stockholder or any of its subsidiaries 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 any of its subsidiaries or any of their respective properties or assets, except for those violations or conflicts that, individually or in the aggregate, would not have a Material Adverse Effect (defined herein) on such Selling Stockholder or any of its subsidiaries, taken as a whole.
(e) No filing with, or consent, approval, authorization, order, registration, qualification, license, permit or decree of, any court or any public, governmental or regulatory agency or body having jurisdiction over a Selling Stockholder or any of its properties or assets is required for (i) such Selling Stockholder's execution and deliver delivery of, and performance of its obligations under, this Agreement, the Custody Agreement and any other document necessary the consummation of the transactions contemplated hereby and thereby, respectively (including the sale of the Shares hereunder), except for the registration of the Shares under the Act and the Exchange Act, the authorization of the Shares for quotation on the Nasdaq National Market, such filings and registration as may be required under state securities or desirable Blue Sky laws and the securities laws of foreign jurisdictions in connection with the transactions contemplated thereby purchase and to deliver distribution of the Shares by the Underwriters and those already obtained.
(f) Such Selling Stockholder has placed in custody under the Irrevocable Power of Attorney and Custody Agreement with Manoxxx X. Xxxx, X'Neil Xxxxxxxx xxx Babu Srinivas, or any of them, as Attorneys-in-Fact (the "Custody Agreement"), for delivery under this Agreement, certificates in negotiable form representing the Shares to be sold by such Selling Stockholder hereunder. Such Selling Stockholder specifically agrees that the Shares represented by the certificates so held in custody for such Selling Stockholder are subject to the interest of the Underwriters, that the arrangements made by such Selling Stockholder for such custody are to that extent irrevocable and receive payment therefor pursuant hereto;that the obligations of such Selling Stockholder hereunder shall not be terminated by any act of such Selling Stockholder, by operation of law, by dissolution or insolvency of such Selling Stockholder or the occurrence of any other event.
(g) To 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 extent that statements or omissions are made in the Prospectus; and
(h) Registration Statement, the Prospectus and or any amendment or supplement theretothereto in reliance upon and in conformity with written information furnished to the Company by such Selling Stockholder specifically for use therein (the "Written Information"), on the Effective Date, the date of filing thereof the Prospectus is first filed with the Commission pursuant to Rule 424(b) and at of the time of purchase and, Act (if applicablerequired), at all times subsequent thereto and including the additional time of purchaseFirm Closing Date, did not or will not include an untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading; the when any 462(b) Registration Statement did not when it became becomes effective, does not and will not, at the time of purchase and when any additional time of purchase, contain an untrue statement of a material fact or omit post-effective amendment to state a material fact required to be stated therein or necessary to make the statements therein not misleading; provided, however, that no Selling Stockholder makes any warranty or representation with respect to any statement contained in the Preliminary Prospectus Supplement, the Registration Statement or the Prospectus in reliance upon and in conformity with information concerning an Underwriter and furnished in writing by or on behalf of such Underwriter through you to the Company expressly for use in the Preliminary Prospectus Supplement, the Registration Statement or the Prospectus, and provided, further, that no Non-Management Selling Stockholder (as defined herein) makes any warranty or representation with respect to any statement contained in the Prospectus or the Registration Statement other than the Selling Stockholder Information (as defined below) relating to such Selling Stockholder furnished by such Non-Management Selling Stockholder. When the Registration Statement becomes effective or any amendment or supplement to the Prospectus is filed with the Commission, and at all times subsequent thereto through during such longer period as the latest Prospectus may be required to be delivered in connection with sales of Shares by the time of purchase, additional time of purchase Underwriters or the termination of the offering of the Sharesa dealer, the Registration Statement and ProspectusStatement, any 462(b) Registration Statement, and any supplements the Prospectus (as amended or amendments thereto as relate to such Selling Stockholder supplemented if the Company shall have filed with the Commission an amendment or supplement thereto) did 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 made therein (in the case of the Prospectus, in light of the circumstances under which it was made) not misleading; provided. Such Selling Stockholder has reviewed the most recent preliminary prospectus, howeverthe Prospectus (if the same shall be in existence) and the Registration Statement, and the information regarding such Selling Stockholder set forth therein that is based upon the foregoing representation Written Information is complete and warrantyaccurate. From the Effective Date through the Firm Closing Date, as such Selling Stockholder will advise the Representatives in writing if and to the extent that such information based upon the Written Information does not conform with the requirements of the Act or contains any untrue statement of a material fact or omits to state any material fact required to be stated therein or necessary in order to make the statements made therein (in the case of the Prospectus, in light of the circumstances under which it relates was made) not misleading.
(h) There are no contracts, agreements or understandings between such Selling Stockholder and any person entitling such person to any fee, commission or payment from such Non-Management Selling Stockholder in connection with the Shares to be sold by such Selling Stockholder, is limited other than the compensation due and payable to the Selling Stockholder Information (Underwriters as defined herein) concerning such Non-Management Selling Stockholder included described in the Registration Statement and Prospectus, and Statement. Any certificate signed by any supplements or amendments thereto. Each Non-Management officer of such Selling Stockholder severally confirms and delivered to the Representatives or to counsel to the Underwriters acknowledge that shall be deemed a representation and warranty by such Selling Stockholder to each Underwriter as to the name, address and number of shares of Common Stock beneficially owned by suchmatters covered thereby.
Appears in 1 contract
Samples: Underwriting Agreement (Ubics Inc)
Representations and Warranties of the Selling Stockholders. Each Selling Stockholder, Stockholder severally and not jointly, represents and warrants to each Underwriter the Underwriters that:
(a) to the extent that such Selling Stockholder will be delivering certificate(s) representing and/or notice(s) has full power and authority to exercise options enter into this Agreement and the Custody Documents to which it is a party. All authorizations and consents necessary for Common Stock to Continental Stock Transfer & Trust Company (the “Custodian”), such Selling Stockholder now is and, at the time of execution and delivery of such Shares and/or notice(s) to exercise (whether at the time of purchase or the additional time of purchase, as the case may be) will be, the lawful owner of the Shares issuable upon exercise of such options to be sold by such Selling Stockholder pursuant to this Agreementof the Custody Documents, and will have valid and marketable title to for the Shares issuable upon exercise execution of this Agreement on behalf of such optionsSelling Stockholder, 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 claim, lien, encumbrance, security interest, community property right, restriction on transfer or other defect in title;
(b) to the extent that such Selling Stockholder will be delivering Common Stock to the Custodian, such Selling Stockholder now is and at the time of delivery of such Shares (whether at the time of purchase or the additional time of purchase, as the case may be) will be, the lawful owner have been given. Each of the number of Shares to be sold by such Selling Stockholder pursuant to Custody Documents and this Agreement and has and, at the time of delivery thereof, will have valid and marketable title to such Shares, and upon delivery of and payment for such Shares (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 claim, lien, encumbrance, security interest, community property right, restriction on transfer or other defect in title;
(c) 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 at 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 pursuant to this Agreement;
(d) such Selling Stockholder has and at the time of delivery of such Shares (whether at 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 Shares in the manner provided in this Agreement;
(e) this Agreement and each Custody Agreement between the Custodian and the Selling Stockholders (each, a “Custody Agreement”) have been duly authorized, executed and delivered by or on behalf of such Selling Stockholder and, with respect to the Custody Agreement only, assuming due authorization, execution and delivery by the Custodian, each is constitutes a legal, valid and binding agreement of such Selling Stockholder and is enforceable against such Selling Stockholder in accordance with its termsthe terms thereof and hereof, subject to bankruptcy, insolvency, reorganization, moratorium or similar laws affecting creditors' rights generally, and to general equitable principles (regardless of whether such principles are considered in a proceeding at law or in equity), and except to the extent that the indemnification and contribution provisions of Section 11 hereof may be limited by federal or state securities laws and public policy considerations in respect thereof;
(fb) such Selling Stockholder now has duly and irrevocably authorized and, at the Representatives Option Closing Time or the Date of Delivery of the Selling StockholdersOption Shares, on behalf of such Selling Stockholder, will have (i) good and marketable title to execute and deliver this Agreement and any other document necessary or desirable in connection with the transactions contemplated thereby and to deliver the Shares to be sold by such Selling Stockholder hereunder, free and receive clear of all pledges, liens, encumbrances, security interests and claims whatsoever (other than pursuant to the Custody Documents), and (ii) full legal right and power, and all authorizations and approvals required by law, to sell, transfer and deliver such Shares to the Underwriters hereunder and to make the representations, warranties and agreements made by such Selling Stockholder herein;
(c) certificates in negotiable form for the Shares to be sold hereunder by such Selling Stockholder have been placed in custody, for the purpose of making delivery of such Shares to the Underwriters under this Agreement;
(d) upon payment therefor for the Shares to be sold by each Selling Stockholder pursuant heretoto this Agreement, delivery of the certificates representing such Shares, as directed by the Underwriters, to Cede & Co. or such other nominee as may be designated by DTC, registration of such Shares in the name of Cede & Co. or such other nominee and the crediting of such Shares on the records of DTC to securities accounts of the respective Underwriters, (A) DTC will be a "protected purchaser" of such Shares within the meaning of Section 8-303 of the Uniform Commercial Code of the State of New York ("UCC") if it has no notice of any adverse claim with respect to such Shares within the meaning of Section 8-105 of the UCC, (B) under Section 8-501 of the UCC, the respective Underwriters will acquire a security entitlement in respect of such Shares and (C) no action based on an adverse claim to such security entitlement may be asserted against the respective Underwriters, if the respective Underwriters have no notice of such adverse claim within the meaning of Section 8-105 of the UCC;
(e) at the Option Closing Time or the Date of Delivery of the Option Shares, 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 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;
(f) the performance of this Agreement and the consummation of the transactions contemplated herein will not conflict with, or result in any breach of, or constitute a default under (nor constitute any event which with notice, lapse of time, or both would constitute a breach of, or default under) (i) any provision of the organizational documents or the bylaws of the Selling Stockholder, (ii) any provision of any license, indenture, mortgage, deed of trust, loan or credit agreement or other agreement or instrument to which the Selling Stockholder is a party or by which it or its properties may be bound or affected, or (iii) any federal, state, local or foreign law, regulation or rule or any decree, judgment or order applicable to the Selling Stockholder; or result in the creation or imposition of any lien, charge, claim or encumbrance upon any property or asset of the Selling Stockholder;
(g) no approval, authorization, consent or order of or filing with any federal, state or local governmental or regulatory commission, board, body, authority or agency is required in connection with the Selling Stockholder's execution, delivery and performance of this Agreement, its consummation of the transactions contemplated herein, and its sale and delivery of the Shares to be sold by such Selling Stockholder’s , other than (i) such as have been obtained, or will have been obtained at the Option Closing Time, under the Securities Act and the Exchange Act, (ii) such approvals as have been obtained in connection with the approval of the listing of the Shares pursuant to on the Nasdaq National Market and (iii) any necessary qualification under the securities or blue sky laws of the various jurisdictions in which the Shares are being offered by the Underwriters;
(h) such Selling Stockholder (i) has carefully reviewed the representations and warranties of the Company contained in Section 3(ll) of this Agreement and has no reason to believe that such representations and warranties insofar as such representations and warranties relate to such Selling Stockholder are untrue or incorrect; and (ii) is not prompted to sell Shares to be sold by it by any information concerning the Company which is not set forth in the Registration Statement or the Prospectus; and;
(hi) all material information with respect to such Selling Stockholder contained in the Registration Statement, the Preliminary Prospectus and the Prospectus and (as amended or supplemented, if the Company shall have filed with the Commission any amendment or supplement thereto) complied and will comply in all material respects with all applicable provisions of the Securities Act and the Securities Act Regulations; the Registration Statement, on the date Preliminary Prospectus and the Prospectus, as amended and supplemented, contain and will contain all statements of filing thereof material fact with respect to such Selling Stockholder required to be stated therein in accordance with the Commission pursuant to Rule 424(b) Securities Act and at the time of purchase andSecurities Act Regulations; the Registration Statement, if applicableas amended, at the additional time of purchase, did does not or and will not include contain an untrue statement of a material fact with respect to such Selling Stockholder or omit to state a material fact with respect to such Selling Stockholder required to be stated therein or necessary in order to make the statements therein not misleading; and the Preliminary Prospectus and the Prospectus, as amended and supplemented, does not and will not contain an untrue statement of a material fact with respect to such Selling Stockholder or omit to state a material fact with respect to such Selling Stockholder required to be stated therein or necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading;
(j) other than as permitted by the Securities Act and the Securities Act Regulations, such Selling Stockholder has not distributed and will not distribute any Preliminary Prospectus, the Prospectus or any other offering material in connection with the offering and sale of the Shares; such Selling Stockholder has not taken, directly or indirectly, any action intended, or which might reasonably be expected, to cause or result in, under the Registration Statement did 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;
(k) such Selling Stockholder agrees that the Shares represented by the certificates held in custody under the Custody Documents are for the benefit of and coupled with and subject to the interest hereunder of the Bank of New York, as custodian (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 irrevocable;
(l) such Selling Stockholder has not when it became effectiverelied 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 to be sold by it;
(m) such Selling Stockholder does not and will not, at have any registration or other similar rights to have any equity or debt securities registered for sale by 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; provided, however, that no Selling Stockholder makes any warranty or representation with respect to any statement contained in the Preliminary Prospectus Supplement, Company under the Registration Statement or the Prospectus in reliance upon and in conformity with information concerning an Underwriter and furnished in writing by or on behalf of such Underwriter through you to the Company expressly for use included in the Preliminary Prospectus Supplementoffering contemplated by this Agreement, the Registration Statement or the Prospectus, and provided, further, that no Non-Management Selling Stockholder (except for such rights as defined herein) makes any warranty or representation with respect to any statement contained are described in the Prospectus under "Shares Eligible for Future Sale";
(n) such selling Stockholder does not have, or has waived prior to the Registration Statement date hereof, any preemptive right, co-sale right or right of first refusal or other than similar right to purchase any of the Shares that are to be sold by the Company or any of the other Selling Stockholder Information (as defined below) relating Stockholders to the Underwriters pursuant to this Agreement; and such Selling Stockholder furnished by such Non-Management Selling Stockholder. When the Registration Statement becomes effective and at all times subsequent thereto through the latest of the time of purchasedoes not own any warrants, additional time of purchase options or the termination of the offering of the Shares, the Registration Statement and Prospectussimilar rights to acquire, and does not have any supplements right or amendments thereto as relate arrangement to such Selling Stockholder will not contain an untrue statement of a material fact acquire, any capital stock, right, warrants, options or omit to state a material fact required to be stated therein or necessary to make other securities from the statements therein not misleading; providedCompany, however, that the foregoing representation and warranty, as it relates to such Non-Management Selling Stockholder, is limited to the Selling Stockholder Information (as defined herein) concerning such Non-Management Selling Stockholder included other than those described in the Registration Statement and the Prospectus, and any supplements or amendments thereto. Each Non-Management ; and
(o) such Selling Stockholder severally confirms is not a member of or an affiliate of or associated with any member of the NASD (within the meaning of Article 1 of the By-Laws and the Underwriters acknowledge that applicable rules of the name, address and number of shares of Common Stock beneficially owned by suchNASD).
Appears in 1 contract
Representations and Warranties of the Selling Stockholders. Each Selling Stockholder, severally and not jointly, represents represents, warrants and warrants covenants to each Underwriter that:
(a) to the extent that such Such Selling Stockholder will be delivering certificate(s) representing and/or notice(s) has full power and authority to exercise options enter into this Agreement and the Agreement and Power of Attorney. All authorizations and consents necessary for Common Stock to Continental Stock Transfer & Trust Company (the “Custodian”), such Selling Stockholder now is and, at the time of execution and delivery of such Shares and/or notice(s) to exercise (whether at the time of purchase or the additional time of purchase, as the case may be) will be, the lawful owner of the Shares issuable upon exercise of such options to be sold by such Selling Stockholder pursuant to this Agreementof the Agreement and Power of Attorney, and will have valid and marketable title to for the Shares issuable upon exercise execution of this Agreement on behalf of such optionsSelling Stockholder, 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 claim, lien, encumbrance, security interest, community property right, restriction on transfer or other defect in title;
(b) to the extent that such Selling Stockholder will be delivering Common Stock to the Custodian, such Selling Stockholder now is and at the time of delivery of such Shares (whether at the time of purchase or the additional time of purchase, as the case may be) will be, the lawful owner have been given. Each of the number Agreement and Power of Shares to be sold by such Selling Stockholder pursuant to Attorney and this Agreement and has and, at the time of delivery thereof, will have valid and marketable title to such Shares, and upon delivery of and payment for such Shares (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 claim, lien, encumbrance, security interest, community property right, restriction on transfer or other defect in title;
(c) 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 at 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 pursuant to this Agreement;
(d) such Selling Stockholder has and at the time of delivery of such Shares (whether at 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 Shares in the manner provided in this Agreement;
(e) this Agreement and each Custody Agreement between the Custodian and the Selling Stockholders (each, a “Custody Agreement”) have been duly authorized, executed and delivered by or on behalf of such Selling Stockholder and, with respect to the Custody Agreement only, assuming due authorization, execution and delivery by the Custodian, each is constitutes a legal, valid and binding agreement of such Selling Stockholder and is enforceable against such Selling Stockholder in accordance with its terms;the terms thereof and hereof.
(fb) such Such Selling Stockholder has duly now has, and irrevocably authorized at the Representatives time of the Selling Stockholdersdelivery thereof hereunder will have, on behalf of such Selling Stockholder, (i) good and marketable title to execute and deliver this Agreement and any other document necessary or desirable in connection with the transactions contemplated thereby and to deliver the Shares to be sold by such Selling Stockholder hereunder, free and receive payment therefor pursuant hereto;
clear of all liens, encumbrances and claims whatsoever (g) the sale of such Selling Stockholder’s Shares other than pursuant to this the Agreement is not prompted and Power of Attorney), and (ii) full legal right and power, and all authorizations and approvals required by any information concerning law, to sell, transfer and deliver such Shares to the Company which is not set forth in the Prospectus; and
(h) the Prospectus Underwriters hereunder and any amendment or supplement thereto, on the date of filing thereof with the Commission pursuant to Rule 424(b) and at the time of purchase and, if applicable, at the additional time of purchase, did not or will not include an untrue statement of a material fact or omit to state a material fact necessary in order to make the statements thereinrepresentations, in the light of the circumstances under which they were made, not misleading; the Registration Statement did not when it became effective, does not warranties 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; provided, however, that no Selling Stockholder makes any warranty or representation with respect to any statement contained in the Preliminary Prospectus Supplement, the Registration Statement or the Prospectus in reliance upon and in conformity with information concerning an Underwriter and furnished in writing agreements made by or on behalf of such Underwriter through you to the Company expressly for use in the Preliminary Prospectus Supplement, the Registration Statement or the Prospectus, and provided, further, that no Non-Management Selling Stockholder (as defined herein) makes any warranty or representation with respect to any statement contained in the Prospectus or the Registration Statement other than the Selling Stockholder Information (as defined below) relating to such Selling Stockholder furnished by herein. Upon the delivery of and payment for such Non-Management Selling Stockholder. When the Registration Statement becomes effective and at all times subsequent thereto through the latest of the time of purchaseShares hereunder, additional time of purchase or the termination of the offering of the Shares, the Registration Statement and Prospectus, and any supplements or amendments thereto as relate to such Selling Stockholder will not contain an untrue statement deliver good and marketable title thereto, free and clear 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; providedall liens, however, that the foregoing representation encumbrances and warranty, as it relates to such Non-Management Selling Stockholder, is limited to the Selling Stockholder Information (as defined herein) concerning such Non-Management Selling Stockholder included in the Registration Statement and Prospectus, and any supplements or amendments thereto. Each Non-Management Selling Stockholder severally confirms and the Underwriters acknowledge that the name, address and number of shares of Common Stock beneficially owned by suchclaims whatsoever.
Appears in 1 contract
Samples: Underwriting Agreement (Credentials Services International Inc)
Representations and Warranties of the Selling Stockholders. Each Selling Stockholder, severally and not jointly, represents and warrants to each Underwriter that:
(a) the Shares to be sold by such Selling Stockholder pursuant to this Agreement are certificated securities in registered form and are not held in any securities account or by or through any securities intermediary within the extent meaning of the Uniform Commercial Code as in effect in the State of New York. Such Selling Stockholder has, and, at the Time of Purchase and, if applicable, at the Additional Time of Purchase, will have, full right, power and authority to hold, sell, transfer and deliver the Shares to be sold by such Selling Stockholder pursuant to this Agreement; and upon the Underwriters’ acquiring possession of such Shares and paying the purchase price therefor as herein contemplated, the Underwriters will acquire their respective interests in such Shares (including, without limitation, all rights that such Selling Stockholder will be delivering certificate(shad or has to transfer such Securities) representing and/or notice(sfree of any adverse claim;
(b) to exercise options certificates for Common Stock to Continental Stock Transfer & Trust Company (the “Custodian”), such Selling Stockholder now is and, at the time of delivery of such Shares and/or notice(s) to exercise (whether at the time of purchase or the additional time of purchase, as the case may be) will be, the lawful owner all of the Shares issuable upon exercise of such options to be sold by such Selling Stockholder pursuant to this Agreement, and will in suitable form for transfer by delivery or accompanied by duly executed instruments of transfer or assignment in blank, with signatures guaranteed, have valid and marketable title been placed in custody with the custodian pursuant to the Shares issuable upon exercise terms of such optionsCustody Agreements between National City Bank, as custodian, and upon delivery each of and payment for the Selling Stockholders, dated, in each case, prior to the date hereof (the “Custody Agreement”), in the form heretofore furnished to the Representatives of the Selling Stockholders, with irrevocable conditional instructions to deliver such Shares (whether at the time of purchase or the additional time of purchase, as the case may be), to the Underwriters will acquire valid and marketable title pursuant to such Shares free and clear of any claim, lien, encumbrance, security interest, community property right, restriction on transfer or other defect in titlethis Agreement;
(bc) to the extent that such Selling Stockholder will be delivering Common Stock to the Custodianhas, such Selling Stockholder now is and at the time of delivery of such Shares (whether at the time Time of purchase Purchase or the additional time 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 and has and, at the time of delivery thereof, will have valid and marketable title to such Shares, and upon delivery of and payment for such Shares (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 claim, lien, encumbrance, security interest, community property right, restriction on transfer or other defect in title;
(c) 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 at 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 pursuant to this Agreement;
(d) such Selling Stockholder has and at the time of delivery of such Shares (whether at the time of purchase or the additional time of purchasePurchase, 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;
(ed) this Agreement and each Custody Agreement between Agreement, the Custodian and the Irrevocable Power of Attorney of such Selling Stockholders (eachStockholder duly authorized, a “Custody Agreement”) have been duly executed and delivered by such Selling Stockholder andappointing Xxxxxxx X. Xxxxxxxxx, with respect III and Xxxxx X. Xxxxx as attorneys-in-fact, dated, in each case, prior to the date hereof (the “Power of Attorney”) and the Custody Agreement onlyhave been duly authorized, assuming due authorization, execution executed and delivery delivered by the Custodian, such Selling Stockholder and each is a legal, valid and binding agreement of such Selling Stockholder enforceable in accordance with its terms;
(e) when the Registration Statement becomes effective and at all times subsequent thereto through the latest of the Time of Purchase, the Additional Time of Purchase or the termination of the offering of the Shares, the Registration Statement and Prospectus, and any supplements or amendments thereto as they relate to such Selling Stockholder will not contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading, 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 the Prospectus, and any supplements or amendments thereto, concerning such Selling Stockholder furnished in writing by or on behalf of such Selling Stockholder to New FreightCar America expressly for use therein;
(f) pursuant to the terms of the Power of Attorney, such Selling Stockholder has duly and irrevocably authorized the Representatives of the Selling Stockholders, 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 thereby hereby and to deliver the Shares to be sold by such Selling Stockholder and receive payment therefor pursuant hereto;
(g) neither the execution and delivery of this Agreement, the Power of Attorney and the Custody Agreement nor the sale of Shares being sold by such Selling Stockholder nor the consummation of any other of the transactions herein contemplated herein nor the fulfillment of the terms hereof by such Selling Stockholder or compliance by such Selling Stockholder with its obligations hereunder conflict or will conflict with, result in a breach or violation of, or constitute a default under any law or the organizational documents of such Selling Stockholder’s Shares pursuant to this Agreement , if such Selling Stockholder is not prompted an individual, or the terms of any indenture or other agreement or instrument to which such Selling Stockholder or any of its Subsidiaries is a party or bound, or any judgment, order or decree applicable to such Selling Stockholder or any of its Subsidiaries of any court, regulatory body, administrative agency, governmental body or arbitrator having jurisdiction over such Selling Stockholder or any of its properties;
(h) such Selling Stockholder has no reason to believe that the representations and warranties of New FreightCar America contained in Section 3 are not true and correct; the sale of shares of Common Stock by such Selling Stockholder pursuant hereto is not motivated by any information concerning the Company or any of its Subsidiaries which is not set forth in the ProspectusProspectus or any supplement thereto;
(i) such Selling Stockholder has not taken, and will not take, directly or indirectly, any action which is designed to or which has constituted or would be expected to cause or result in stabilization or manipulation of the price of any security of the Company to facilitate the sale or resale of the Shares; and
(hj) no filing with, or consent, approval, authorization, order, registration, qualification or decree of, any court or governmental authority or agency, domestic or foreign, is necessary or required for the performance by each Selling Stockholder of its obligations hereunder or in the Power of Attorney or the Custody Agreement, or in connection with the sale and delivery of the Shares hereunder or the consummation of the transactions contemplated by this Agreement, except such as may have previously been made or obtained or as may be required under the Act or state securities laws. In addition, each of the Selling Stockholders named in Schedule F annexed hereto (the “Designated Selling Stockholders”), severally and not jointly further represents and warrants to each Underwriter that such Designated Selling Stockholder has reviewed and is familiar with the Registration Statement and the Prospectus and (i) has no knowledge of any amendment material fact, condition or information not disclosed in the Prospectus or any supplement thereto, on thereto which has adversely affected or may adversely affect the date business of filing thereof with the Commission pursuant to Rule 424(bCompany or any of its Subsidiaries; and (ii) and at neither the time of purchase and, if applicable, at the additional time of purchase, did not Prospectus nor any amendments or will not include an supplements thereto contains any untrue statement of a material fact or omit omits to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading; 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; provided, however, that no Selling Stockholder makes any warranty or representation with respect to any statement contained in the Preliminary Prospectus Supplement, the Registration Statement or the Prospectus in reliance upon and in conformity with information concerning an Underwriter and furnished in writing by or on behalf of such Underwriter through you to the Company expressly for use in the Preliminary Prospectus Supplement, the Registration Statement or the Prospectus, and provided, further, that no Non-Management Selling Stockholder (as defined herein) makes any warranty or representation with respect to any statement contained in the Prospectus or the Registration Statement other than the Selling Stockholder Information (as defined below) relating to such Selling Stockholder furnished by such Non-Management Selling Stockholder. 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, the Registration Statement and Prospectus, and any supplements or amendments thereto as relate to such Selling Stockholder will not contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading; provided, however, that the foregoing representation and warranty, as it relates to such Non-Management Selling Stockholder, is limited to the Selling Stockholder Information (as defined herein) concerning such Non-Management Selling Stockholder included in the Registration Statement and Prospectus, and any supplements or amendments thereto. Each Non-Management Selling Stockholder severally confirms and the Underwriters acknowledge that the name, address and number of shares of Common Stock beneficially owned by such.
Appears in 1 contract
Representations and Warranties of the Selling Stockholders. Each Selling Stockholder, including the Principal Selling Stockholders, severally and but not jointly, represents and warrants to each Underwriter the Underwriters, that:
(a) to the extent that such Selling Stockholder will be delivering certificate(s) representing and/or notice(s) has full power and authority to exercise options enter into this Agreement and the Custody Agreement and Power of Attorney to which it is a party. All authorizations and consents necessary for Common Stock to Continental Stock Transfer & Trust Company (the “Custodian”), such Selling Stockholder now is and, at the time of execution and delivery of such Shares and/or notice(s) to exercise (whether at the time of purchase or the additional time of purchase, as the case may be) will be, the lawful owner of the Shares issuable upon exercise of such options to be sold by such Selling Stockholder pursuant to this Agreementof the Custody Agreement and Power of Attorney, and will have valid and marketable title to for the Shares issuable upon exercise execution of this Custody Agreement on behalf of such optionsSelling Stockholder, 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 claim, lien, encumbrance, security interest, community property right, restriction on transfer or other defect in title;
(b) to the extent that such Selling Stockholder will be delivering Common Stock to the Custodian, such Selling Stockholder now is and at the time of delivery of such Shares (whether at the time of purchase or the additional time of purchase, as the case may be) will be, the lawful owner have been given. Each of the number Custody Agreement and Power of Shares to be sold by such Selling Stockholder pursuant to Attorney and this Agreement and has and, at the time of delivery thereof, will have valid and marketable title to such Shares, and upon delivery of and payment for such Shares (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 claim, lien, encumbrance, security interest, community property right, restriction on transfer or other defect in title;
(c) 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 at 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 pursuant to this Agreement;
(d) such Selling Stockholder has and at the time of delivery of such Shares (whether at 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 Shares in the manner provided in this Agreement;
(e) this Agreement and each Custody Agreement between the Custodian and the Selling Stockholders (each, a “Custody Agreement”) have been duly authorized, executed and delivered by or on behalf of such Selling Stockholder and, with respect to the Custody Agreement only, assuming due authorization, execution and delivery by the Custodian, each is constitutes a legal, valid and binding agreement of such Selling Stockholder and is enforceable against such Selling Stockholder in accordance with its termsthe terms thereof and hereof, except as may be limited by bankruptcy, insolvency, reorganization, moratorium or similar laws affecting creditors’ rights generally, and by general equitable principles, and except to the extent that the indemnification and contribution provisions of Section 11 hereof may be limited by federal or state securities laws and public policy considerations in respect thereof;
(fb) such Selling Stockholder has duly now has, and irrevocably authorized at the Representatives Closing Time or the applicable Date of the Selling StockholdersDelivery will have, on behalf of such Selling Stockholder, (i) good and marketable title to execute and deliver this Agreement and any other document necessary or desirable in connection with the transactions contemplated thereby and to deliver the Shares to be sold by such Selling Stockholder hereunder, free and receive clear of all liens, encumbrances and claims whatsoever (other than pursuant to the Custody Agreement and Power of Attorney), and (ii) full legal right and power, and all authorizations and approvals required by law, to sell, transfer and deliver such Shares to the Underwriters hereunder and to make the representations, warranties and agreements made by such Selling Stockholder herein. Upon the delivery of and payment therefor pursuant heretofor such Shares hereunder, such Selling Stockholder will deliver good and marketable title thereto, free and clear of any pledge, lien, encumbrance, security interest or other claim;
(gc) at the Closing Time or the applicable Date of Delivery, 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 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;
(d) the sale performance of this Agreement and the consummation of the transactions contemplated herein will not (A) conflict with, or result in any breach of, or constitute a default under (nor constitute any event which with notice, lapse of time, or both would constitute a breach of, or default under), (i) any provision of the certificate or articles of incorporation, other charter or similar constitutive documents, or the bylaws of the Selling Stockholder, or (ii) any provision of any license, indenture, mortgage, deed of trust, loan or credit agreement or other agreement or instrument to which the Selling Stockholder is a party or by which it or its properties may be bound or affected, or under any federal, state, local or foreign law, regulation or rule or any decree, judgment or order applicable to the Selling Stockholder except in the case of this clause (ii) for such conflicts, breaches or defaults which could not reasonably be expected to have a Material Adverse Effect; or (B) result in the creation or imposition of any lien, charge, claim or encumbrance upon any property or asset of the Selling Stockholder;
(e) no approval, authorization, consent or order of or filing with any federal, state or local governmental or regulatory commission, board, body, authority or agency is required in connection with the Selling Stockholder’s execution, delivery and performance of this Agreement, its consummation of the transactions contemplated herein, and its sale and delivery of the Shares pursuant contemplated to this Agreement be sold by the Selling Stockholder hereunder, other than (i) such as have been obtained, or will have been obtained at the Closing Time or the relevant Date of Delivery, as the case may be, under the Securities Act and the Exchange Act, (ii) such approvals as have been obtained in connection with the approval of the quotation of the Shares on the Nasdaq National Market and (iii) any necessary qualification under the securities or blue sky laws of the various jurisdictions in which the Shares are being offered by the Underwriters and approval of the underwriting terms and arrangements by the NASD;
(f) such Selling Stockholder is not prompted to sell Shares by any information concerning the Company which is not set forth in the Registration Statement or the Prospectus; and;
(hg) all material information with respect to such Selling Stockholder contained in the Registration Statement and the Prospectus and (as amended or supplemented, if the Company shall have filed with the Commission any amendment or supplement thereto, on the date of filing thereof ) complied and will comply in all material respects with the Commission pursuant to Rule 424(b) and at the time of purchase and, if applicable, at the additional time of purchase, did not or will not include an untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in the light all applicable provisions of the circumstances under which they were madeSecurities Act and the Securities Act Regulations, not misleading; the Registration Statement did not when it became effective, does not contains and will not, at the time contain all statements 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 in accordance with the statements therein not misleading; provided, however, that no Selling Stockholder makes any warranty or representation with respect to any statement contained in Securities Act and the Preliminary Prospectus Supplement, the Registration Statement or the Prospectus in reliance upon and in conformity with information concerning an Underwriter and furnished in writing by or on behalf of such Underwriter through you to the Company expressly for use in the Preliminary Prospectus Supplement, the Registration Statement or the ProspectusSecurities Act Regulations, and provided, further, that no Non-Management Selling Stockholder (as defined herein) makes any warranty or representation with respect to any statement contained in the Prospectus or the Registration Statement other than the Selling Stockholder Information (as defined below) relating to such Selling Stockholder furnished by such Non-Management Selling Stockholder. When the Registration Statement becomes effective does not 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, the Registration Statement and Prospectus, and any supplements or amendments thereto as relate to such Selling Stockholder will not contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary in order to make the statements therein not misleading;
(h) other than as permitted by the Securities Act and the Securities Act Regulations, such Selling Stockholder has not distributed and will not distribute any preliminary prospectus, the Prospectus or any other offering material in connection with the offering and sale of the Shares. Such Selling Stockholder has not taken, directly or indirectly, any action intended, or which might reasonably be expected, to cause or result in, under the Securities Act, the Securities Act Regulations or otherwise, or which has constituted, stabilization or manipulation of the price of any security of the Company to facilitate the sale or resale of the Shares;
(i) certificates in negotiable form for 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 Online Resources Corporation as custodian (the “Custodian”), for such Selling Stockholder; provided, however, such Selling Stockholder agrees that the foregoing representation Shares represented by the certificates held in custody for him or it under the Custody Agreement and warranty, as it relates to such Non-Management Selling Stockholder, is limited Power of Attorney are for the benefit of and coupled with and subject to the interest hereunder of the Custodian, the Attorneys-in-Fact, the Underwriters, each other Selling Stockholder Information (as defined herein) concerning and the Company; that the arrangements made by such Non-Management Selling Stockholder for such custody and the appointment of the Custodian and the Attorneys-in-Fact by such Selling Stockholder are 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, certificates for the Shares shall be delivered by the Custodian in accordance with the terms and conditions of this Agreement and actions taken by the Attorneys-in-Fact 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-in-Fact, or any of them, shall have received notice thereof;
(j) 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;
(k) 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;
(l) 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 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
(m) except as otherwise disclosed to the Underwriters in writing, and any supplements or amendments thereto. Each Non-Management such Selling Stockholder severally confirms is not a member of or an affiliate of or associated with any member of the NASD. In addition to the above, each Principal Selling Stockholder represents and warrants to the Underwriters that such Principal Selling Stockholder (i) has carefully reviewed the representations and warranties of the Company contained in this Agreement and has no reason to believe that such representations and warranties are untrue or incorrect; and (ii) is familiar with the Registration Statement and the Underwriters acknowledge that Prospectus and has no knowledge of the nameRegistration Statement or the Prospectus containing an untrue statement of a material fact, address and number or omitting to state a material fact required to be stated therein or necessary to make the statements therein, in light of shares of Common Stock beneficially owned by suchthe circumstances under which they are made, not misleading.
Appears in 1 contract
Representations and Warranties of the Selling Stockholders. Each Selling Stockholder, severally and not jointlyjointly with the other Selling Stockholders, represents and warrants to each Underwriter of the Underwriters that:
(a) all information with respect to such Selling Stockholder included in the Registration Statement, any Preliminary Prospectus or the Prospectus complied and will comply with all applicable provisions of the Act; the information with respect to the Selling Stockholder in the Registration Statement did not, as of the Effective Time, contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading; at no time during the period that begins on the earlier of the date of such Preliminary Prospectus and the date such Preliminary Prospectus was filed with the Commission and ends at the time of purchase did or will any Preliminary Prospectus, as then amended or supplemented, with respect to the information regarding the Selling Stockholder, include an untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading, and at no time during such period did or will any Preliminary Prospectus, as then amended or supplemented, together with any combination of one or more of the then issued Permitted Free Writing Prospectuses, if any, in each case with respect to the information regarding the Selling Stockholder, include an untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading; at no time during the period that begins on the earlier of the date of the Prospectus and the date the Prospectus is filed with the Commission and ends at the later of the time of purchase, the latest additional time of purchase, if any, and the end of the period during which a prospectus is required by the Act to be delivered (whether physically or through compliance with Rule 172 under the Act or any similar rule) in connection with any sale of Shares did or will the Prospectus, as then amended or supplemented, with respect to the information regarding the Selling Stockholder, include an untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading; at no time during the period that begins on the date of such Permitted Free Writing Prospectus and ends at the time of purchase did or will any Permitted Free Writing Prospectus, with respect to the information regarding the Selling Stockholder, include an untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading; representations and warranties in this paragraph shall apply only to the extent that any statements in or omissions, from the Registration Statement, Preliminary Prospectus, Prospectus or Free Writing Prospectuses are based on written information furnished by the Selling Stockholder specifically for use therein;
(b) such Selling Stockholder has not, prior to the execution of this Agreement, offered or sold any Shares by means of any “prospectus” (within the meaning of the Act), or used any “prospectus” (within the meaning of the Act) in connection with the offer or sale of the Shares, in each case other than the then most recent Preliminary Prospectus;
(c) neither the execution, delivery and performance of this Agreement or the Custody Agreement (as defined below) or Powers of Attorney to which such Selling Stockholder is a party nor the sale by such Selling Stockholder of the Shares to be sold by such Selling Stockholder pursuant to this Agreement nor the consummation of the transactions contemplated hereby or thereby will conflict with, result in any breach or violation of or constitute a default under (or constitute any event which with notice, lapse of time or both would result in any breach or violation of or constitute a default under) (i) if such Selling Stockholder is not an individual, the charter or bylaws or other organizational instruments of such Selling Stockholder, (ii) any indenture, mortgage, deed of trust, bank loan or credit agreement or other evidence of indebtedness, or any license, lease, contract or other agreement or instrument to which such Selling Stockholder is a party or by which such Selling Stockholder or any of its properties may be bound or affected, (iii) any federal, state, local or foreign law, regulation or rule, (iv) or any rule or regulation of any self-regulatory organization or other non-governmental regulatory authority (including, without limitation, the rules and regulations of the NASDAQ), or (v) any decree, judgment or order applicable to such Selling Stockholder or any of its properties.
(d) no approval, authorization, consent or order of or filing with any federal, state, local or foreign governmental or regulatory commission, board, body, authority or agency, or of or with any self-regulatory organization or other non-governmental regulatory authority (including, without limitation, the NASDAQ), is required in connection with the sale of the Shares to be sold by such Selling Stockholder pursuant to this Agreement or the consummation by such Selling Stockholder of the transactions contemplated hereby or by the Custody Agreement or Power of Attorney to which such Selling Stockholder is a party other than (i) registration of the Shares under the Act, which has been effected (or, with respect to any registration statement to be filed hereunder pursuant to Rule 462(b) under the Act, will be delivering certificate(s) representing and/or notice(s) to exercise options for Common Stock to Continental Stock Transfer & Trust Company (the “Custodian”effected in accordance herewith), (ii) any necessary qualification under the securities or blue sky laws of the various jurisdictions in which the Shares are being offered by the Underwriters or (iii) under the Conduct Rules of the NASD;
(e) neither such Selling Stockholder nor any of its affiliates has taken, directly or indirectly, any action designed to, or which has constituted or 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;
(f) there are no affiliations or associations between any member of the NASD and such Selling Stockholder, except as disclosed in the Registration Statement (excluding the exhibits thereto), each Preliminary Prospectus and the Prospectus; none of the proceeds received by such Selling Stockholder from the sale of the Shares to be sold by such Selling Stockholder pursuant to this Agreement will be paid to a member of the NASD or any affiliate of (or person “associated with,” as such terms are used in the Rules of the NASD) such member;
(g) such Selling Stockholder now is and, at the time of delivery of such Shares and/or notice(s) to exercise (whether at the time of purchase or the any additional time of purchase, as the case may be) ), will be, be the lawful owner of the number of Shares issuable upon exercise of such options to be sold by such Selling Stockholder pursuant to this AgreementAgreement and has and, and at the time of delivery of such Shares, will have valid and marketable title to the Shares issuable upon exercise of such optionsShares, and upon delivery of and payment for such Shares (whether at the time of purchase or the any 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 claim, lien, encumbrance, security interest, community property right, restriction on transfer or other defect in title;
(bh) to the extent that such Selling Stockholder will be delivering Common Stock to the Custodianhas and, such Selling Stockholder now is and at the time of delivery of such Shares (whether at the time of purchase or the 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 and has and, at the time of delivery thereof, will have valid and marketable title to such Shares, and upon delivery of and payment for such Shares (whether at the time of purchase or the any 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 claim, lien, encumbrance, security interest, community property right, restriction on transfer or other defect in title;
(c) 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 at the time of purchase or the additional time of purchase, as the case may be) will have, have full legal right, power and capacity, and any approval all authorizations and approvals required by law (other than those imposed by the Act and the state securities or blue sky laws of certain jurisdictionslaws), to (i) enter into this Agreement and the Custody Agreement and to execute the Powers of Attorney, (ii) sell, assign, transfer and deliver such options exercisable for the number of Shares to be sold by such Selling Stockholder pursuant to this Agreement;
(d) such Selling Stockholder has and at the time of delivery of such Shares (whether at 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 Shares Agreement in the manner provided in this AgreementAgreement and (iii) make the representations, warranties and agreements made by such Selling Stockholder herein;
(ei) this Agreement and each Custody Agreement between the Custodian and custody agreement (the Selling Stockholders (each, a “Custody Agreement”) ), dated [•], between [•], as custodian (the “Custodian”), and such Selling Stockholder and the Powers of Attorney to which such Selling Stockholder is a party have each been duly executed and delivered by (or, in the case of this Agreement, on behalf of) such Selling Stockholder andStockholder, with respect to the Custody Agreement only, assuming due authorization, execution and delivery by the Custodian, each is a legal, valid and binding agreement of such Selling Stockholder enforceable in accordance with its terms;
(fj) such Selling Stockholder has duly and irrevocably authorized each of the Representatives of the Selling StockholdersStockholders (whether acting alone or together), on behalf of such Selling Stockholder, to execute and deliver this Agreement and any other document documents necessary or desirable in connection with the transactions contemplated hereby or thereby and to deliver the Shares to be sold by such Selling Stockholder pursuant to this Agreement and receive payment therefor pursuant hereto;
(gk) the sale of the Shares to be sold by such Selling Stockholder’s Shares Stockholder pursuant to this Agreement is not prompted by any information concerning the Company or any Subsidiary which is not set forth in the Registration Statement (excluding the exhibits thereto), each Preliminary Prospectus and the Prospectus; and;
(hl) the Prospectus and any amendment or supplement thereto, on the date of filing thereof with the Commission pursuant to Rule 424(b) and at the time of purchase and, if applicable, at the additional time of purchase, did not or will not include an untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading; the Registration Statement did not when it became effective, does not and will not, at the time of purchase and any each additional time of purchase, contain an untrue statement of a material fact all stock transfer or omit to state a material fact other taxes (other than income taxes), if any, that are required to be stated therein or necessary paid in connection with the sale and transfer of the Shares to make the statements therein not misleading; provided, however, that no be sold by such Selling Stockholder makes to the several Underwriters hereunder will be fully paid or provided for by such Selling Stockholder, and all laws imposing such taxes will be fully complied with;
(m) Such Selling Stockholder is not, or and has not been at any warranty time, a “United States Real Property Holding Corporation” within the meaning of Section 897(c)(2) of the Internal Revenue Code of 1986, as amended (the “Code”);
(n) pursuant to the Custody Agreement to which such Selling Stockholder is a party, certificates in negotiable form for the Shares to be sold by such Selling Stockholder pursuant to this Agreement have been placed in custody for the purpose of making delivery of such Shares in accordance with this Agreement; such Selling Stockholder agrees that (i) such Shares represented by such certificates are for the benefit of, and coupled with and subject to the interest of, the Custodian, the Representatives of the Selling Stockholders, the Underwriters and the Company, (ii) the arrangements made by such Selling Stockholder for custody and for the appointment of the Custodian and the Representatives of the Selling Stockholders by such Selling Stockholder are irrevocable, and (iii) the obligations of such Selling Stockholder hereunder shall not be terminated by operation of law, whether by the death, disability or representation incapacity of such Selling Stockholder (or, if such Selling Stockholder is not an individual, the liquidation, dissolution, merger or consolidation of such Selling Stockholder) or the occurrence of any other event (each, an “Event”); if an Event occurs before the delivery of the Shares hereunder, certificates for the Shares shall be delivered by the Custodian in accordance with the terms and conditions of the Powers of Attorney to which such Selling Stockholder is a party, the Custody Agreement to which such Selling Stockholder is a party and this Agreement, and actions taken by the Custodian and the Representatives of the Selling Stockholders pursuant to such Powers of Attorney or such Custody Agreement shall be as valid as if such Event had not occurred, regardless of whether or not the Custodian or the Representatives of the Selling Stockholders, or either of them, shall have received notice thereof; and In addition, any certificate signed by any Selling Stockholder (or, with respect to any statement contained in the Preliminary Prospectus Supplement, the Registration Statement or the Prospectus in reliance upon and in conformity with information concerning an Underwriter and furnished in writing by or on behalf of such Underwriter through you to the Company expressly for use in the Preliminary Prospectus Supplement, the Registration Statement or the Prospectus, and provided, further, that no Non-Management Selling Stockholder (as defined herein) makes that is not an individual, any warranty or representation with respect to any statement contained in the Prospectus or the Registration Statement other than the Selling Stockholder Information (as defined below) relating to officer of such Selling Stockholder furnished by or of any of such Non-Management Selling Stockholder. When the Registration Statement becomes effective and at all times subsequent thereto through the latest ’s subsidiaries) or by any Representative of the time of purchase, additional time of purchase Selling Stockholders and delivered to the Underwriters or counsel for the termination of Underwriters in connection with the offering of the Shares, the Registration Statement and Prospectus, and any supplements or amendments thereto as relate to such Selling Stockholder will not contain an untrue statement of a material fact or omit to state a material fact required Shares shall be deemed to be stated therein or necessary to make the statements therein not misleading; provided, however, that the foregoing a representation and warranty, as it relates to warranty by such Non-Management Selling Stockholder, is limited as to the Selling Stockholder Information (as defined herein) concerning such Non-Management Selling Stockholder included in the Registration Statement and Prospectusmatters covered thereby, and any supplements or amendments thereto. Each Non-Management Selling Stockholder severally confirms and the Underwriters acknowledge that the name, address and number of shares of Common Stock beneficially owned by suchto each Underwriter.
Appears in 1 contract
Representations and Warranties of the Selling Stockholders. Each of the Selling StockholderStockholders, severally and not jointly, hereby represents and warrants to each Underwriter thatas of the date hereof, as of the Firm Shares Closing Date and, if the Selling Stockholders are selling Option Shares, as of each such Option Shares Closing Date (if any), as follows:
(a) to the extent that such Selling Stockholder will be delivering certificate(s) representing and/or notice(s) to exercise options for Common Stock to Continental Stock Transfer & Trust Company (the “Custodian”), such Selling Stockholder now is and, at the time of delivery of such Shares and/or notice(s) to exercise (whether at the time of purchase or the additional time of purchase, as the case may be) will be, the lawful owner of the Shares issuable upon exercise of such options to be sold by such Selling Stockholder pursuant to this Agreement, and will have valid and marketable title to the Shares issuable upon exercise of such options, 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 claim, lien, encumbrance, security interest, community property right, restriction on transfer or other defect in title;
(b) to the extent that such Selling Stockholder will be delivering Common Stock to the Custodian, such Selling Stockholder now is and at the time of delivery of such Shares (whether at the time of purchase or the 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 and has and, at the time of delivery thereof, will have valid and marketable title to such Shares, and upon delivery of and payment for such Shares (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 claim, lien, encumbrance, security interest, community property right, restriction on transfer or other defect in title;
(c) 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 Such Selling Stockholder has and at the time of delivery of such caused certificates and/or notice(s) to exercise (whether at 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 hereunder to be delivered to Wachovia Bank N.A. (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 this Agreement;
(d) such Selling Stockholder has and at the time provisions of delivery of such Shares (whether at 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 Shares in the manner provided in this Agreement;
(e) this Agreement and each Custody Agreement a custody agreement dated , 2005 between the Custodian and each such Selling Stockholder substantially in the Selling Stockholders form attached hereto as Exhibit B (each, a “Custody Agreement”) have been duly executed and delivered by such Selling Stockholder and, with respect to the Custody Agreement only, assuming due authorization, execution and delivery by the Custodian, each is a legal, valid and binding agreement of such Selling Stockholder enforceable in accordance with its terms;).
(fb) such Such Selling Stockholder has duly and irrevocably authorized granted an irrevocable power of attorney substantially in the Representatives form attached hereto as Exhibit C (each, a “Power of Attorney”) to the Selling Stockholderspersons 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 thereby hereby and to deliver the shares to be sold by such Selling Stockholder pursuant hereto.
(c) This Agreement, the Custody Agreement, the Power of Attorney and the Lock-Up Agreement have each been duly authorized, executed and delivered by or on behalf of 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, except as the enforceability thereof may be limited by bankruptcy, insolvency, reorganization, moratorium and other similar laws affecting the enforceability of creditors’ rights generally, general equitable principles and, with respect to this Agreement, the unenforceability under certain circumstances under law or court decisions of provisions for the indemnification of or contribution to a party.
(d) The execution and delivery by such Selling Stockholder of this Agreement, the Custody Agreement, the Power of Attorney and the Lock-Up Agreement, and the performance by such Selling Stockholder of its obligations hereunder and thereunder, 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 with its obligations hereunder, do not and will 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 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 terms of any agreement or instrument to which such Selling Stockholder is a party or by which such Selling Stockholder may be bound or to which any of the property or assets of such Selling Stockholder is subject or (iii) require any consent, approval, authorization or order of or registration or filing with any court or governmental agency or body having jurisdiction over it, except for such consent, approvals, authorizations or orders or registrations or filings which have already been obtained and are in full force and effect and except such as may be required under the Securities Act and 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 and the Option Share Closing Date, if applicable, 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 (the “New York UCC”) in respect of, 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.
(f) Such 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 Stockholder and receive payment therefor pursuant hereto;in the manner provided by this Agreement.
(g) Assuming that each of the sale Underwriters does not have “notice” of any “adverse claim” (within the meaning of Section 8-105 of the New York UCC) to the Shares, upon indication by book entry that the Shares have been credited to securities accounts maintained by the Representatives at the DTC and payment therefor in accordance with this Agreement, the several Underwriters will acquire a securities entitlement with respect to such Selling Stockholder’s Shares pursuant and, under the New York UCC, an action based on an adverse claim to this Agreement is such securities entitlement, whether framed in conversion, replevin, constructive trust, equitable lien or other theory may not prompted by any information concerning be asserted against the Company which is not set forth in the Prospectus; andseveral Underwriters.
(h) All information relating to such 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, and on each Closing Date will not, contain any amendment or supplement thereto, on the date of filing thereof with the Commission pursuant to Rule 424(b) and at the time of purchase and, if applicable, at the additional time of purchase, did not or will not include an untrue statement of a material fact or omit to state any material fact necessary to make such information not misleading, it being understood and agreed that the only such information furnished in writing by such Selling Stockholder (other than Xxxx Xxxxxxxxx and Xxxxxxx Xxxxx Xxxxxxxxx as co-trustees of the Gladstone 1999 Family Trust dated June 11, 1999) consists of the name of such Selling Stockholder, the number of shares of Common Stock beneficially owned by, and the number of Firm Shares to be offered by, such Selling Stockholder, and the address and other information with respect to such Selling Stockholder (excluding any percentage) which appears under the caption “Principal and Selling Stockholders” in the Registration Statement and the Prospectus.
(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 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 order to make the statements made therein not misleading and (ii) on the Effective Date the Prospectus contained and, on each Closing Date contains, no untrue statement of a material fact or omitted or omits to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading; the Registration Statement did not when it became effective, does not and will not, at the time .
(j) The sale 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; provided, however, that no Selling Stockholder makes any warranty or representation with respect to any statement contained in the Preliminary Prospectus Supplement, the Registration Statement or the Prospectus in reliance upon and in conformity with information concerning an Underwriter and furnished in writing Shares by or on behalf of such Underwriter through you to the Company expressly for use in the Preliminary Prospectus Supplement, the Registration Statement or the Prospectus, and provided, further, that no Non-Management Selling Stockholder (as defined herein) makes any warranty or representation with respect to any statement contained in the Prospectus or the Registration Statement other than the Selling Stockholder Information (as defined below) relating to such Selling Stockholder furnished pursuant to this Agreement is not prompted by such Non-Management Selling Stockholder. When ’s knowledge of any material information concerning the Registration Statement becomes effective Company or its subsidiary which is not set forth in the Prospectus.
(k) Such Selling Stockholder has not taken and at all times subsequent thereto through the latest 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 time price of purchase, additional time of purchase or the termination any security of the offering Company to facilitate the sale or resale of the Shares, .
(l) Such Selling Stockholder has no actual knowledge that any representation or warranty of the Registration Statement Company set forth in Section 2 above is untrue or inaccurate in any material respect.
(m) The representations and Prospectus, and any supplements or amendments thereto as relate to warranties of such Selling Stockholder will not contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading; provided, however, that the foregoing representation and warranty, as it relates to such Non-Management Selling Stockholder, is limited to the Selling Stockholder Information (as defined herein) concerning such Non-Management Selling Stockholder included in the Registration Statement Custody Agreement are and Prospectuson each Closing Date will be, true and any supplements or amendments thereto. Each Non-Management Selling Stockholder severally confirms and the Underwriters acknowledge that the name, address and number of shares of Common Stock beneficially owned by suchcorrect.
Appears in 1 contract
Representations and Warranties of the Selling Stockholders. Each Selling Stockholder, severally and not jointly, represents represents, warrants and warrants covenants to each Underwriter that:
(a) to the extent that such Such Selling Stockholder will be delivering certificate(s) representing and/or notice(s) has full power and authority to exercise options enter into this Agreement and the Agreement and Power of Attorney. All authorizations and consents necessary for Common Stock to Continental Stock Transfer & Trust Company (the “Custodian”), such Selling Stockholder now is and, at the time of execution and delivery of such Shares and/or notice(s) to exercise (whether at the time of purchase or the additional time of purchase, as the case may be) will be, the lawful owner of the Shares issuable upon exercise of such options to be sold by such Selling Stockholder pursuant to this Agreementof the Agreement and Power of Attorney, and will have valid and marketable title to for the Shares issuable upon exercise execution of this Agreement on behalf of such optionsSelling Stockholder, 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 claim, lien, encumbrance, security interest, community property right, restriction on transfer or other defect in title;
(b) to the extent that such Selling Stockholder will be delivering Common Stock to the Custodian, such Selling Stockholder now is and at the time of delivery of such Shares (whether at the time of purchase or the additional time of purchase, as the case may be) will be, the lawful owner have been given. Each of the number Agreement and Power of Shares to be sold by such Selling Stockholder pursuant to Attorney and this Agreement and has and, at the time of delivery thereof, will have valid and marketable title to such Shares, and upon delivery of and payment for such Shares (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 claim, lien, encumbrance, security interest, community property right, restriction on transfer or other defect in title;
(c) 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 at 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 pursuant to this Agreement;
(d) such Selling Stockholder has and at the time of delivery of such Shares (whether at 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 Shares in the manner provided in this Agreement;
(e) this Agreement and each Custody Agreement between the Custodian and the Selling Stockholders (each, a “Custody Agreement”) have been duly authorized, executed and delivered by or on behalf of such Selling Stockholder and, with respect to the Custody Agreement only, assuming due authorization, execution and delivery by the Custodian, each is constitutes a legal, valid and binding agreement of such Selling Stockholder and is enforceable against such Selling Stockholder in accordance with its terms;the terms thereof and hereof.
(fb) such Such Selling Stockholder has duly now has, and irrevocably authorized at the Representatives time of the Selling Stockholdersdelivery thereof hereunder will have, on behalf of such Selling Stockholder, (i) good and marketable title to execute and deliver this Agreement and any other document necessary or desirable in connection with the transactions contemplated thereby and to deliver the Shares to be sold by such Selling Stockholder hereunder, free and receive payment therefor pursuant hereto;
clear of all liens, encumbrances and claims whatsoever (g) the sale of such Selling Stockholder’s Shares other than pursuant to this the Agreement is not prompted and Power of Attorney), and (ii) full legal right and power, and all authorizations and approvals required by any information concerning law, to sell, transfer and deliver such Shares to the Company which is not set forth in the Prospectus; and
(h) the Prospectus Underwriters hereunder and any amendment or supplement thereto, on the date of filing thereof with the Commission pursuant to Rule 424(b) and at the time of purchase and, if applicable, at the additional time of purchase, did not or will not include an untrue statement of a material fact or omit to state a material fact necessary in order to make the statements thereinrepresentations, in the light of the circumstances under which they were made, not misleading; the Registration Statement did not when it became effective, does not warranties 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; provided, however, that no Selling Stockholder makes any warranty or representation with respect to any statement contained in the Preliminary Prospectus Supplement, the Registration Statement or the Prospectus in reliance upon and in conformity with information concerning an Underwriter and furnished in writing agreements made by or on behalf of such Underwriter through you to the Company expressly for use in the Preliminary Prospectus Supplement, the Registration Statement or the Prospectus, and provided, further, that no Non-Management Selling Stockholder (as defined herein) makes any warranty or representation with respect to any statement contained in the Prospectus or the Registration Statement other than the Selling Stockholder Information (as defined below) relating to such Selling Stockholder furnished by herein. Upon the delivery of and payment for such Non-Management Selling Stockholder. When the Registration Statement becomes effective and at all times subsequent thereto through the latest of the time of purchaseShares hereunder, additional time of purchase or the termination of the offering of the Shares, the Registration Statement and Prospectus, and any supplements or amendments thereto as relate to such Selling Stockholder will not contain an untrue statement deliver good and marketable title thereto, free and clear of a material fact all liens, encumbrances and claims whatsoever.
(c) On the Closing Date or omit to state a material fact the Option Closing Date, as the case may be, all stock transfer or other taxes (other than income taxes) which are required to be stated therein or necessary paid in connection with the sale and transfer of the Shares to make the statements therein not misleading; provided, however, that the foregoing representation and warranty, as it relates to be sold by such Non-Management Selling Stockholder, is limited Stockholder to the several Underwriters hereunder will have been fully paid or provided for by such Selling Stockholder Information and all laws imposing such taxes will have been fully complied with.
(as defined hereind) concerning The performance of this Agreement and the consummation of the transactions contemplated hereby will not result in the creation or imposition of any lien, charge or encumbrance upon any of the assets of such Non-Management Selling Stockholder included 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 Registration Statement and Prospectusacceleration of any obligation under, and any supplements or amendments thereto. Each Non-Management if such Selling Stockholder severally confirms and is a corporation or partnership, the Underwriters acknowledge that the name, address and number organizational documents of shares of Common Stock beneficially owned by such
Appears in 1 contract
Samples: Underwriting Agreement (Credentials Services International Inc)
Representations and Warranties of the Selling Stockholders. Each of the Selling Stockholder, Stockholders severally and not jointly, represents and warrants to each to, and agrees with, the Underwriter that:
(a) to the extent that This Agreement has been duly authorized, executed and delivered by or on behalf of such Selling Stockholder.
(b) The execution and delivery by such Selling Stockholder will be delivering certificate(s) representing and/or notice(s) to exercise options for Common Stock to Continental Stock Transfer & Trust Company (of, and the “Custodian”), performance by such Selling Stockholder now is andof its obligations under, at this Agreement, the time of delivery of Custody Agreement signed by such Shares and/or notice(s) to exercise (whether at the time of purchase or the additional time of purchaseSelling Stockholder and American Stock Transfer, as Custodian, relating to the case may be) will be, the lawful owner deposit of the Shares issuable upon exercise of such options to be sold by such Selling Stockholder pursuant (the "Custody Agreement") and the Power of Attorney of such Selling Stockholder appointing certain individuals as such Selling Stockholder's attorneys-in-fact to this Agreementthe extent set forth therein, relating to the transactions contemplated hereby and by the Registration Statement (the "Power of Attorney") will not contravene any provision of applicable law, or the certificate of incorporation or by-laws of such Selling Stockholder (if such Selling Stockholder is a corporation), the partnership agreement of such Selling Stockholder (if such Selling Stockholder is a partnership) or the trust instrument of such Selling Stockholder (if such Selling Stockholder is a trust) or any agreement or other instrument binding upon such Selling Stockholder or any judgment, order or decree of any governmental body, agency or court having jurisdiction over such Selling Stockholder, and no consent, approval, authorization or order of, or qualification with, any governmental body or agency is required for the performance by such Selling Stockholder of its obligations under this Agreement or the Custody Agreement or Power of Attorney of such Selling Stockholder, except such as may have already been obtained and such as may be required by the securities or Blue Sky laws of the various states in connection with the offer and sale of the Shares.
(c) Such Selling Stockholder has, and on the Closing Date will have have, valid and marketable title to the Shares issuable upon exercise to be sold by such Selling Stockholder and the legal right and power, and all authorization and approval required by law, to enter into this Agreement, the Custody Agreement and the Power of Attorney and to sell, transfer and deliver the Shares to be sold by such Selling Stockholder.
(d) The Custody Agreement and the Power of Attorney have been duly authorized, executed and delivered by such Selling Stockholder and are valid and binding agreements of such options, and upon delivery of and payment for such Shares Selling Stockholder except as to enforceability (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 claim, lien, encumbrance, security interest, community property right, restriction on transfer or other defect in title;
(bi) to the extent that such Selling Stockholder will the provisions relating to indemnification or contribution may be delivering Common Stock contrary to public policy or (ii) to the Custodianeffect of any bankruptcy, such Selling Stockholder now is and at insolvency, reorganization, moratorium or similar laws affecting the time rights of delivery creditors generally or general principles of such Shares equity.
(whether at the time of purchase or the additional time of purchase, as the case may bee) will be, the lawful owner Delivery of the number of Shares to be sold by such Selling Stockholder pursuant to this Agreement and has and, at the time of delivery thereof, will have valid and marketable title to such Shares, and upon delivery of and payment for such Shares (whether at the time of purchase or the additional time of purchase, as the case may be), the Underwriters will acquire valid and marketable pass title to such Shares free and clear of any claimsecurity interests, lienclaims, encumbranceliens, security interest, community property right, restriction on transfer or equities and other defect in title;
(c) 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 at 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 pursuant to this Agreement;
(d) such Selling Stockholder has and at the time of delivery of such Shares (whether at 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 Shares in the manner provided in this Agreement;
(e) this Agreement and each Custody Agreement between the Custodian and the Selling Stockholders (each, a “Custody Agreement”) have been duly executed and delivered by such Selling Stockholder and, with respect to the Custody Agreement only, assuming due authorization, execution and delivery by the Custodian, each is a legal, valid and binding agreement of such Selling Stockholder enforceable in accordance with its terms;encumbrances.
(f) Such parts of the Registration Statement under the caption "Selling Stockholders" which specifically relate to such Selling Stockholder has duly do not, and irrevocably authorized the Representatives of the Selling Stockholders, 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 thereby and to deliver the Shares to be sold by such Selling Stockholder and receive payment therefor pursuant hereto;
(g) the sale of such Selling Stockholder’s Shares pursuant to this Agreement is will not prompted by any information concerning the Company which is not set forth in the Prospectus; and
(h) the Prospectus and any amendment or supplement thereto, on the date of filing thereof with the Commission pursuant to Rule 424(b) and at the time of purchase andClosing Date, if applicable, at the additional time of purchase, did not or will not include an contain any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading; 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 therein, in light of the circumstances under which they were made, not misleading; provided, however, that no Selling Stockholder makes any warranty or representation with respect to any statement contained in the Preliminary Prospectus Supplement, the Registration Statement or the Prospectus in reliance upon and in conformity with information concerning an Underwriter and furnished in writing by or on behalf of such Underwriter through you to the Company expressly for use in the Preliminary Prospectus Supplement, the Registration Statement or the Prospectus, and provided, further, that no Non-Management Selling Stockholder (as defined herein) makes any warranty or representation with respect to any statement contained in the Prospectus or the Registration Statement other than the Selling Stockholder Information (as defined below) relating to such Selling Stockholder furnished by such Non-Management Selling Stockholder. 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, the Registration Statement and Prospectus, and any supplements or amendments thereto as relate to such Selling Stockholder will not contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading; provided, however, that the foregoing representation and warranty, as it relates to such Non-Management Selling Stockholder, is limited to the Selling Stockholder Information (as defined herein) concerning such Non-Management Selling Stockholder included in the Registration Statement and Prospectus, and any supplements or amendments thereto. Each Non-Management Selling Stockholder severally confirms and the Underwriters acknowledge that the name, address and number of shares of Common Stock beneficially owned by such.
Appears in 1 contract
Samples: Underwriting Agreement (Aftermarket Technology Corp)
Representations and Warranties of the Selling Stockholders. Each The Selling Stockholder, severally and not jointly, Stockholder represents and warrants to each Underwriter the Underwriters that:
(a) the Selling Stockholder 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 the Selling Stockholder of the Custody Agreement and Power of Attorney, and for the execution of this Agreement on behalf of the 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 the Selling Stockholder and constitutes a valid and binding agreement of the Selling Stockholder and is enforceable against the Selling Stockholder in accordance with the terms thereof and hereof, except as may be limited by bankruptcy, insolvency, reorganization, moratorium or similar laws affecting creditors’ rights generally, and by general equitable principles, and except to the extent that such Selling Stockholder will the indemnification and contribution provisions of Section 11 hereof may be delivering certificate(slimited by federal or state securities laws and public policy considerations in respect thereof;
(b) representing and/or notice(s) to exercise options for Common Stock to Continental Stock Transfer & Trust Company (the “Custodian”), such Selling Stockholder now is andhas, and at the time of delivery of such Shares and/or notice(sapplicable Option Closing Time will have, (i) to exercise (whether at the time of purchase or the additional time of purchase, as the case may be) will be, the lawful owner of the Shares issuable upon exercise of such options to be sold by such Selling Stockholder pursuant to this Agreement, and will have valid good and marketable title to the Shares issuable upon exercise to be sold by the Selling Stockholder hereunder, free and clear of such optionsall liens, encumbrances and claims whatsoever (other than as may exist pursuant to the Custody Agreement and Power of Attorney), and upon (ii) full legal right and power, and all authorizations and approvals required by law, to sell, transfer and deliver such Shares to the Underwriters hereunder and to make the representations, warranties and agreements made by the Selling Stockholder herein. Upon the delivery of and payment for such Shares hereunder, the Selling Stockholder will deliver good and marketable title thereto, free and clear of any pledge, lien, encumbrance, security interest or other claim;
(whether c) at the time applicable Option Closing Time, all stock transfer or other taxes (other than income taxes) which are required to be paid in connection with the sale and transfer of purchase the Shares to be sold by the Selling Stockholder to the 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 performance of this Agreement and the consummation of the transactions contemplated herein will not conflict with, or result in any breach of, or constitute a default under (nor constitute any event which with notice, lapse of time, or both would constitute a breach of, or default under), (i) any provision of the certificate or articles of incorporation, other charter or similar constitutive documents, or the additional time bylaws of purchasethe Selling Stockholder, or (ii) any provision of any license, indenture, mortgage, deed of trust, loan or credit agreement or other agreement or instrument to which the Selling Stockholder is a party or by which it or its properties may be bound or affected, or under any federal, state, local or foreign law, regulation or rule or any decree, judgment or order applicable to the Selling Stockholder; or result in the creation or imposition of any lien, charge, claim or encumbrance upon any property or asset of the Selling Stockholder;
(e) no approval, authorization, consent or order of or filing with any federal, state, local or foreign governmental or regulatory commission, board, body, authority or agency is required in connection with the Selling Stockholder’s execution, delivery and performance of this Agreement, its consummation of the transactions contemplated herein, and its sale and delivery of the Shares, other than (i) such as have been obtained, or will have been obtained at the relevant Option Closing Time, as the case may be), under the Underwriters will acquire valid Securities Act and marketable title to the Exchange Act, (ii) such Shares free and clear of any claim, lien, encumbrance, security interest, community property right, restriction on transfer or other defect approvals as have been obtained in title;
(b) to connection with the extent that such Selling Stockholder will be delivering Common Stock to the Custodian, such Selling Stockholder now is and at the time of delivery of such Shares (whether at the time of purchase or the additional time of purchase, as the case may be) will be, the lawful owner approval of the number quotation of the Shares to be sold by such Selling Stockholder pursuant to this Agreement on The Nasdaq Global Market and has and, at the time of delivery thereof, will have valid and marketable title to such Shares, and upon delivery of and payment for such Shares (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 iii) any claim, lien, encumbrance, security interest, community property right, restriction on transfer or other defect in title;
(c) 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 at 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 necessary qualification under the securities or blue sky laws of certain jurisdictions), to sell, assign, transfer and deliver such options exercisable for the number of various jurisdictions in which the Shares to be sold by such Selling Stockholder pursuant to this Agreement;
(d) such Selling Stockholder has and at the time of delivery of such Shares (whether at 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 are being offered 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;
(e) this Agreement and each Custody Agreement between the Custodian and the Selling Stockholders (each, a “Custody Agreement”) have been duly executed and delivered by such Selling Stockholder and, with respect to the Custody Agreement only, assuming due authorization, execution and delivery by the Custodian, each is a legal, valid and binding agreement of such Selling Stockholder enforceable in accordance with its termsUnderwriters;
(f) such all material information with respect to the Selling Stockholder has duly and irrevocably authorized the Representatives contained in each of the Selling StockholdersRegistration Statement, 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 thereby and to deliver the Shares to be sold by such Selling Stockholder and receive payment therefor pursuant hereto;
(g) 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; and
(h) the Prospectus and the Disclosure Package (as amended or supplemented, if the Company shall have filed with the Commission any amendment or supplement thereto, on the date of filing thereof ) complied and will comply in all material respects with the Commission pursuant to Rule 424(b) and at the time of purchase and, if applicable, at the additional time of purchase, did not or will not include an untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in the light all applicable provisions of the circumstances under which they were madeSecurities Act and the Securities Act Regulations, not misleading; the Registration Statement did not when it became effective, does not contains and will not, at the time contain all statements 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 in accordance with the statements therein not misleading; provided, however, that no Selling Stockholder makes any warranty or representation with respect to any statement contained in Securities Act and the Preliminary Prospectus Supplement, the Registration Statement or the Prospectus in reliance upon and in conformity with information concerning an Underwriter and furnished in writing by or on behalf of such Underwriter through you to the Company expressly for use in the Preliminary Prospectus Supplement, the Registration Statement or the ProspectusSecurities Act Regulations, and provided, further, that no Non-Management Selling Stockholder (as defined herein) makes any warranty or representation with respect to any statement contained in the Prospectus or the Registration Statement other than the Selling Stockholder Information (as defined below) relating to such Selling Stockholder furnished by such Non-Management Selling Stockholder. When the Registration Statement becomes effective does not 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, the Registration Statement and Prospectus, and any supplements or amendments thereto as relate to such Selling Stockholder 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; provided, however, that the foregoing representation and warranty, as it relates to such Non-Management Selling Stockholder, is limited to ;
(g) the Selling Stockholder Information (as defined herein) concerning has not distributed and will not distribute 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 Non-Management distribution to which the Representative has consented in advance; and the Selling Stockholder has not taken, directly or indirectly, any action intended, or which might reasonably be expected, to cause or result in, under the Securities Act, the Securities Act Regulations or otherwise, or which has constituted, stabilization or manipulation of the price of any security of the Company to facilitate the sale or resale of the Shares;
(h) the 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;
(i) the Selling Stockholder does not have any registration or other similar rights to have any equity or debt securities registered for sale by the Company under the Registration Statement or included in the offering contemplated by this Agreement, except for such rights as are described in both the Prospectus and the Disclosure Package under “Shares Eligible for Future Sale”;
(j) 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 to the Underwriters pursuant to this Agreement; and the 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
(k) except as otherwise disclosed to the Underwriters in writing, and any supplements or amendments thereto. Each Non-Management the Selling Stockholder severally confirms and the Underwriters acknowledge that the name, address and number is not a member of shares or an affiliate of Common Stock beneficially owned by suchor associated with any member of FINRA.
Appears in 1 contract
Samples: Underwriting Agreement (ExOne Co)
Representations and Warranties of the Selling Stockholders. Each Selling Stockholder, severally and not jointlyjointly with the other Selling Stockholders, represents and warrants to each Underwriter of the Underwriters that:
(a) all information with respect to the extent that such Selling Stockholder included in the Registration Statement, the Disclosure Package and the Prospectus did not, as of the Effective Time, contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading; the Disclosure Package, as it relates to the Selling Stockholder, did not, as of the Applicable Time, include an untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading; as of the date the Prospectus is filed with the Commission, the time of purchase and each additional time of purchase, if any, the Prospectus, as then amended or supplemented, as it relates to such Selling Stockholder, will not include an untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading; and in each case any such information is limited in all respects to statements or omissions made in reliance upon and in conformity with information relating to such Selling Stockholder furnished to the Company in writing by such Selling Stockholder expressly for use in the Registration Statement, the Disclosure Package, the Prospectus or any amendments or supplements thereto, it being understood and agreed that the only information furnished by such Selling Stockholder consists of the name of such Selling Stockholder, the number of offered shares and the address and other information with respect to such Selling Stockholder (excluding percentages) which appear in the Disclosure Package in the table (and corresponding footnotes) under the caption “Principal and Selling Stockholders” (with respect to each Selling Stockholder, the “Selling Stockholder Information”);
(b) such Selling Stockholder has not, prior to the execution of this Agreement, offered or sold any Shares by means of any “prospectus” (within the meaning of the Act), or used any “prospectus” (within the meaning of the Act) in connection with the offer or sale of the Shares, in each case other than the then most recent Preliminary Prospectus; the Company has not authorized such Selling Stockholder to engage in any Exempt Oral Communication or Covered Exempt Written Communication;
(c) neither the execution, delivery and performance of this Agreement or the Custody Agreement or Power of Attorney to which such Selling Stockholder is a party nor the sale by such Selling Stockholder of the Shares to be sold by such Selling Stockholder pursuant to this Agreement nor the consummation of the transactions contemplated hereby or thereby will conflict with, result in any breach or violation of or constitute a default under (or constitute any event which with notice, lapse of time or both would result in any breach or violation of or constitute a default under) (i) if such Selling Stockholder is not an individual, the charter or bylaws or other organizational instruments of such Selling Stockholder, (ii) any indenture, mortgage, deed of trust, bank loan or credit agreement or other evidence of indebtedness, or any license, lease, contract or other agreement or instrument to which such Selling Stockholder is a party or by which such Selling Stockholder or any of its properties may be bound or affected, (iii) any federal, state, local or foreign law, regulation or rule, (iv) or any rule or regulation of any self-regulatory organization or other non-governmental regulatory authority (including, without limitation, the rules and regulations of the Nasdaq), or (v) any decree, judgment or order applicable to such Selling Stockholder or any of its properties; except in the case of the foregoing clauses (ii), (iii) and (iv), for any such conflict, breach, violation or default that would not impair in any material respect the ability of such Selling Stockholder to consummate the transactions contemplated by this Agreement and its obligations hereunder (a “Selling Stockholder MAE”);
(d) no approval, authorization, consent or order of or filing with any federal, state, local or foreign governmental or regulatory commission, board, body, authority or agency, or of or with any self-regulatory organization or other non-governmental regulatory authority (including, without limitation, the Nasdaq), is required in connection with the sale of the Shares to be sold by such Selling Stockholder pursuant to this Agreement or the consummation by such Selling Stockholder of the transactions contemplated hereby or by the Custody Agreement or Power of Attorney other than (i) registration of the Shares under the Act, which has been effected (or, with respect to any registration statement to be filed hereunder pursuant to Rule 462(b) under the Act, will be delivering certificate(s) representing and/or notice(s) to exercise options for Common Stock to Continental Stock Transfer & Trust Company (the “Custodian”effected in accordance herewith), (ii) any necessary qualification under the securities or blue sky laws of the various jurisdictions in which the Shares are being offered by the Underwriters or (iii) under the Conduct Rules of FINRA;
(e) neither such Selling Stockholder nor any of its affiliates has taken, directly or indirectly, any action designed to, or which has constituted or 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;
(f) there are no affiliations or associations between any member of FINRA and such Selling Stockholder, except as disclosed in the Registration Statement (excluding the exhibits thereto), the Disclosure Package and the Prospectus or as disclosed in writing to the Underwriters pursuant the FINRA questionnaire for such Selling Stockholder; none of the proceeds received by such Selling Stockholder from the sale of the Shares to be sold by such Selling Stockholder pursuant to this Agreement will be paid to a member of FINRA or any affiliate of (or person “associated with,” as such terms are used in the Bylaws of FINRA) such member other than as disclosed in such FINRA questionnaire;
(g) such Selling Stockholder now is and, at the time of delivery of such Shares and/or notice(s) to exercise (whether at the time of purchase or the any additional time of purchase, as the case may be) ), will be, be the lawful owner of the number of Shares issuable upon exercise of such options to be sold by such Selling Stockholder pursuant to this AgreementAgreement and has and, and at the time of delivery of such Shares, will have valid and marketable title to the Shares issuable upon exercise of such optionsShares, and upon delivery of and payment for such Shares (whether at the time of purchase or the any 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 claim, lien, encumbrance, security interest, community property right, restriction on transfer or other defect in title;
(bh) to the extent that such Selling Stockholder will be delivering Common Stock to the Custodianhas and, such Selling Stockholder now is and at the time of delivery of such Shares (whether at the time of purchase or the 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 and has and, at the time of delivery thereof, will have valid and marketable title to such Shares, and upon delivery of and payment for such Shares (whether at the time of purchase or the any 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 claim, lien, encumbrance, security interest, community property right, restriction on transfer or other defect in title;
(c) 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 at the time of purchase or the additional time of purchase, as the case may be) will have, have full legal right, power and capacity, and any approval all authorizations and approvals required by law (other than those imposed by the Act and the state securities or blue sky laws of certain jurisdictionslaws), to (i) enter into this Agreement and the Custody Agreement (as defined below) and to execute the Power of Attorney, (ii) sell, assign, transfer and deliver such options exercisable for the number of Shares to be sold by such Selling Stockholder pursuant to this Agreement;
(d) such Selling Stockholder has and at the time of delivery of such Shares (whether at 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 Shares Agreement in the manner provided in this AgreementAgreement and (iii) make the representations, warranties and agreements made by such Selling Stockholder herein;
(ei) this Agreement and each Custody Agreement between Agreement, the Custodian and custody agreement (the Selling Stockholders (each, a “Custody Agreement”) ), dated [·], between [·], as custodian (the “Custodian”), and the Selling Stockholders, and the Power of Attorney to which each Selling Stockholder is a party have each been duly executed and delivered by (or, in the case of this Agreement and the Custody Agreement, on behalf of) such Selling Stockholder andStockholder, with respect to the Custody Agreement only, assuming due authorization, execution and delivery by the Custodian, each is a legal, valid and binding agreement of such Selling Stockholder enforceable in accordance with its terms;
(fj) such Selling Stockholder has duly and irrevocably authorized each of the Representatives of the Selling StockholdersStockholders (whether acting alone or together), on behalf of such Selling Stockholder, to execute and deliver this Agreement and any other document documents necessary or desirable in connection with the transactions contemplated hereby or thereby and to deliver the Shares to be sold by such Selling Stockholder pursuant to this Agreement and receive payment therefor pursuant hereto;
(gk) the sale of the Shares to be sold by such Selling Stockholder’s Shares Stockholder pursuant to this Agreement is not prompted by any material information concerning the Company or any Subsidiary which is not set forth in the Registration Statement (excluding the exhibits thereto), each Preliminary Prospectus and the Prospectus; and;
(hl) the Prospectus and any amendment or supplement thereto, on the date of filing thereof with the Commission pursuant to Rule 424(b) and at the time of purchase and, if applicable, at the additional time of purchase, did not or will not include an untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading; 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; provided, however, that no Selling Stockholder makes any warranty or representation with respect to any statement contained in the Preliminary Prospectus Supplement, the Registration Statement or the Prospectus in reliance upon and in conformity with information concerning an Underwriter and furnished in writing by or on behalf of such Underwriter through you to the Company expressly for use in the Preliminary Prospectus Supplement, the Registration Statement or the Prospectus, and provided, further, that no Non-Management Selling Stockholder (as defined herein) makes any warranty or representation with respect to any statement contained in the Prospectus or the Registration Statement other than the Selling Stockholder Information (as defined below) relating to such Selling Stockholder furnished by such Non-Management Selling Stockholder. When the Registration Statement becomes effective and at all times subsequent thereto through the latest of the time of purchase, additional time all stock issue, transfer or other similar taxes (excluding for the avoidance of purchase doubt income taxes), if any, that are required to be paid in connection with the sale and transfer of the Shares to be sold by such Selling Stockholder to the several Underwriters hereunder will be fully paid or provided for by such Selling Stockholder, and all U.S. laws imposing such taxes will be fully complied with;
(m) pursuant to the Custody Agreement, certificates in negotiable form or book-entry securities entitlements for or representing the Shares to be sold by such Selling Stockholder pursuant to this Agreement have been placed in custody for the purpose of making delivery of such Shares in accordance with this Agreement; such Selling Stockholder agrees that (i) such Shares represented by such certificates or book-entry securities entitlements are for the benefit of, and coupled with and subject to the interest of, the Custodian, the Representatives of the Selling Stockholders, the Underwriters and the Company, (ii) the arrangements made by such Selling Stockholder for custody and for the appointment of the Custodian and the Representatives of the Selling Stockholders by such Selling Stockholder are irrevocable, and (iii) the obligations of such Selling Stockholder hereunder shall not be terminated by operation of law, whether by the death, disability or incapacity of such Selling Stockholder (or, if such Selling Stockholder is not an individual, the liquidation, dissolution, merger or consolidation of such Selling Stockholder) or the termination occurrence of any other event (each, an “Event”); if an Event occurs before the delivery of the Shares hereunder, certificates or book-entry securities entitlements for or representing the Shares shall be delivered by the Custodian in accordance with the terms and conditions of the Power of Attorney, the Custody Agreement and this Agreement, and actions taken by the Custodian and the Representatives of the Selling Stockholders pursuant to such Power or Attorney or such Custody Agreement shall be as valid as if such Event had not occurred, regardless of whether or not the Custodian or the Representatives of the Selling Stockholders, or either of them, shall have received notice thereof; In addition, any certificate signed by any Selling Stockholder (or, with respect to any Selling Stockholder that is not an individual, any officer of such Selling Stockholder or of any of such Selling Stockholder’s subsidiaries) or by any Representative of the Selling Stockholders and delivered to the Underwriters or counsel for the Underwriters in connection with the offering of the Shares, the Registration Statement and Prospectus, and any supplements or amendments thereto as relate to such Selling Stockholder will not contain an untrue statement of a material fact or omit to state a material fact required Shares shall be deemed to be stated therein or necessary to make the statements therein not misleading; provided, however, that the foregoing a representation and warranty, as it relates to warranty by such Non-Management Selling Stockholder, is limited as to the Selling Stockholder Information (as defined herein) concerning such Non-Management Selling Stockholder included in the Registration Statement and Prospectusmatters covered thereby, and any supplements or amendments thereto. Each Non-Management Selling Stockholder severally confirms and the Underwriters acknowledge that the name, address and number of shares of Common Stock beneficially owned by suchto each Underwriter.
Appears in 1 contract
Samples: Underwriting Agreement (Acell Inc)
Representations and Warranties of the Selling Stockholders. Each Selling Stockholder, severally and not jointlyjointly with the other Selling Stockholders, represents and warrants to each Underwriter of the Underwriters that:
(a) all Selling Stockholders Statements (as defined below) with respect to the extent that such Selling Stockholder included (i) in the Registration Statement, any Preliminary Prospectus or the Prospectus complied and will comply in all material respects with all applicable provisions of the Act or (ii) in the Registration Statement did not, as of the Effective Time, contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make such Selling Stockholder Statements not misleading; at no time during the period that begins on the earlier of the date of such Preliminary Prospectus and the date such Preliminary Prospectus was filed with the Commission and ends at the time of purchase did or will any Selling Stockholder Statements with respect to such Selling Stockholder in any such Preliminary Prospectus, as then amended or supplemented, include an untrue statement of a material fact or omit to state a material fact necessary in order to make such Selling Stockholder Statements, in the light of the circumstances under which they were made, not misleading, and at no time during such period did or will any Preliminary Prospectus, as then amended or supplemented, together with any combination of one or more of the then issued Permitted Free Writing Prospectuses, if any, contain any Selling Stockholder Statements with respect to such Selling Stockholder that include an untrue statement of a material fact or omit to state a material fact necessary in order to make such Selling Stockholder Statements, in the light of the circumstances under which they were made, not misleading; at no time during the period that begins on the earlier of the date of the Prospectus and the date the Prospectus is filed with the Commission and ends at the later of the time of purchase, the latest additional time of purchase, if any, and the end of the period during which a prospectus is required by the Act to be delivered (whether physically or through compliance with Rule 172 under the Act or any similar rule) in connection with any sale of Shares did or will the Prospectus, as then amended or supplemented, contain any Selling Stockholder Statements with respect to such Selling Stockholder that include an untrue statement of a material fact or omit to state a material fact necessary in order to make such Selling Stockholder Statements, in the light of the circumstances under which they were made, not misleading; at no time during the period that begins on the date of such Permitted Free Writing Prospectus and ends at the time of purchase did or will any Permitted Free Writing Prospectus, contain any Selling Stockholder Statements with respect to such Selling Stockholder that include an untrue statement of a material fact or omit to state a material fact necessary in order to make such Selling Stockholder Statements, in the light of the circumstances under which they were made, not misleading (as used herein "Selling Stockholder Statements" are the statements set forth in the sections of the Registration Statement, any Preliminary Prospectus, the Prospectus or any Permitted Free Writing Prospectus entitled "Selling stockholders" and "Principal stockholders";
(b) such Selling Stockholder has not, prior to the execution of this Agreement, offered or sold any Shares by means of any "prospectus" (within the meaning of the Act), or used any "prospectus" (within the meaning of the Act) in connection with the offer or sale of the Shares, in each case other than the then most recent Preliminary Prospectus;
(c) neither the execution, delivery and performance of this Agreement or the Custody Agreement or Power of Attorney to which such Selling Stockholder is a party nor the sale by such Selling Stockholder of the Shares to be sold by such Selling Stockholder pursuant to this Agreement nor the consummation of the transactions contemplated hereby or thereby will conflict with, result in any breach or violation of or constitute a default under (or constitute any event which with notice, lapse of time or both would result in any breach or violation of or constitute a default under) (i) if such Selling Stockholder is not an individual, the charter or bylaws or other organizational instruments of such Selling Stockholder, (ii) any indenture, mortgage, deed of trust, bank loan or credit agreement or other evidence of indebtedness, or any license, lease, contract or other agreement or instrument to which such Selling Stockholder is a party or by which such Selling Stockholder or any of its properties may be bound or affected, (iii) any federal, state, local or foreign law, regulation or rule, (iv) or any rule or regulation of any self-regulatory organization or other non-governmental regulatory authority (including, without limitation, the rules and regulations of the NASDAQ), or (v) any decree, judgment or order applicable to such Selling Stockholder or any of its properties, except, in the case of clause (ii), for any such breach, violation, default or acceleration that is described in the Registration Statement (excluding the exhibits thereto), the Preliminary Prospectuses and the Prospectus or that would not, individually or in the aggregate, have a Material Adverse Effect.
(d) no approval, authorization, consent or order of or filing with any federal, state, local or foreign governmental or regulatory commission, board, body, authority or agency, or of or with any self-regulatory organization or other non-governmental regulatory authority (including, without limitation, the NASDAQ), is required in connection with the sale of the Shares to be sold by such Selling Stockholder pursuant to this Agreement or the consummation by such Selling Stockholder of the transactions contemplated hereby or by the Custody Agreement or Power of Attorney to which such Selling Stockholder is a party other than (i) registration of the Shares under the Act, which has been effected or, with respect to any registration statement to be filed hereunder pursuant to Rule 462(b) under the Act, will be delivering certificate(seffected in accordance herewith, (ii) representing and/or notice(sany necessary qualification under the securities or blue sky laws of the various jurisdictions in which the Shares are being offered by the Underwriters or (iii) under the rules and regulations of the NASD, all of which have been obtained;
(e) neither such Selling Stockholder nor any of its affiliates has taken, directly or indirectly, any action designed to, or which has constituted or might reasonably be expected to exercise options for Common Stock cause or result in the stabilization or manipulation of the price of any security of the Company to Continental Stock Transfer & Trust Company facilitate the sale or resale of the Shares;
(f) there are no affiliations or associations between any member of the “Custodian”NASD and such Selling Stockholder, except as disclosed in the Registration Statement (excluding the exhibits thereto), the Preliminary Prospectuses and the Prospectus; none of the proceeds received by such Selling Stockholder from the sale of the Shares to be sold by such Selling Stockholder pursuant to this Agreement will be paid to a member of the NASD or any affiliate of (or person "associated with," as such terms are used in the Rules of the NASD) such member;
(g) such Selling Stockholder now is and, at the time of delivery of such Shares and/or notice(s) to exercise (whether at the time of purchase or the any additional time of purchase, as the case may be) ), will be, be the lawful owner of the number of Shares issuable upon exercise of such options to be sold by such Selling Stockholder pursuant to this AgreementAgreement and has and, and at the time of delivery of such Shares, will have valid and marketable title to the Shares issuable upon exercise of such optionsShares, and upon delivery of and payment for such Shares (whether at the time of purchase or the any 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 claim, lien, encumbrance, security interest, community property right, restriction on transfer or other defect in title;
(bh) to the extent that such Selling Stockholder will be delivering Common Stock to the Custodianhas and, such Selling Stockholder now is and at the time of delivery of such Shares (whether at the time of purchase or the 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 and has and, at the time of delivery thereof, will have valid and marketable title to such Shares, and upon delivery of and payment for such Shares (whether at the time of purchase or the any 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 claim, lien, encumbrance, security interest, community property right, restriction on transfer or other defect in title;
(c) 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 at the time of purchase or the additional time of purchase, as the case may be) will have, have full legal right, power and capacity, and any approval all authorizations and approvals required by law (other than those imposed by the Act and the state securities or blue sky laws of certain jurisdictionslaws), to (i) enter into this Agreement and the Custody Agreement (as defined below) and to execute a Power of Attorney, (ii) sell, assign, transfer and deliver such options exercisable for the number of Shares to be sold by such Selling Stockholder pursuant to this Agreement;
(d) such Selling Stockholder has and at the time of delivery of such Shares (whether at 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 Shares Agreement in the manner provided in this AgreementAgreement and (iii) make the representations, warranties and agreements made by such Selling Stockholder herein;
(ei) this Agreement and each the custody agreement (the "Custody Agreement Agreement"), dated November [__], 2006, between Mellon Investor Services LLC, as custodian (the Custodian "Custodian"), and such Selling Stockholder and the Power of Attorney to which such Selling Stockholders (each, Stockholder is a “Custody Agreement”) party have each been duly executed and delivered by (or, in the case of this Agreement, on behalf of) such Selling Stockholder and, with respect to the Custody Agreement only, assuming due authorization, execution and delivery by the Custodian, each is a legal, valid and binding agreement of such Selling Stockholder enforceable in accordance with its termsStockholder;
(fj) such Selling Stockholder has duly and irrevocably authorized the Representatives Representative of the Selling Stockholders, on behalf of such Selling Stockholder, to execute and deliver this Agreement and any other document documents necessary or desirable in connection with the transactions contemplated hereby or thereby and to deliver the Shares to be sold by such Selling Stockholder pursuant to this Agreement and receive payment therefor pursuant hereto;
(gk) the sale of the Shares to be sold by such Selling Stockholder’s Shares Stockholder pursuant to this Agreement is not prompted by any information concerning the Company or any Subsidiary which is not set forth in the Registration Statement (excluding the exhibits thereto), each Preliminary Prospectus and the Prospectus; and;
(hl) the Prospectus and any amendment or supplement thereto, on the date of filing thereof with the Commission pursuant to Rule 424(b) and at the time of purchase and, if applicable, at the additional time of purchase, did not or will not include an untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading; the Registration Statement did not when it became effective, does not and will not, at the time of purchase and any each additional time of purchase, contain an untrue statement of a material fact all stock transfer or omit to state a material fact other taxes (other than income taxes), if any, that are required to be stated therein or necessary paid in connection with the sale and transfer of the Shares to make the statements therein not misleading; provided, however, that no be sold by such Selling Stockholder makes to the several Underwriters hereunder will be fully paid or provided for by such Selling Stockholder, and all laws imposing such taxes will be fully complied with;
(m) pursuant to the Custody Agreement to which such Selling Stockholder is a party, certificates in negotiable form for the Shares to be sold by such Selling Stockholder pursuant to this Agreement have been placed in custody for the purpose of making delivery of such Shares in accordance with this Agreement; such Selling Stockholder agrees that (i) such Shares represented by such certificates are for the benefit of, and coupled with and subject to the interest of, the Custodian, the Representative of the Selling Stockholders, the Underwriters and the Company, (ii) the arrangements made by such Selling Stockholder for custody and for the appointment of the Custodian and the Representative of the Selling Stockholders by such Selling Stockholder are irrevocable, and (iii) the obligations of such Selling Stockholder hereunder shall not be terminated by operation of law, whether by the death, disability or incapacity of such Selling Stockholder (or, if such Selling Stockholder is not an individual, the liquidation, dissolution, merger or consolidation of such Selling Stockholder) or the occurrence of any warranty other event (each, an "Event"); if an Event occurs before the delivery of the Shares hereunder, certificates for the Shares shall be delivered by the Custodian in accordance with the terms and conditions of the Power of Attorney to which such Selling Stockholder is a party, the Custody Agreement to which such Selling Stockholder is a party and this Agreement, and actions taken by the Custodian and the Representative of the Selling Stockholders pursuant to such Power or representation Attorney or such Custody Agreement shall be as valid as if such Event had not occurred, regardless of whether or not the Custodian or the Representative of the Selling Stockholders, or either of them, shall have received notice thereof; and In addition, any certificate signed by any Selling Stockholder (or, with respect to any statement contained in the Preliminary Prospectus Supplement, the Registration Statement or the Prospectus in reliance upon and in conformity with information concerning an Underwriter and furnished in writing by or on behalf of such Underwriter through you to the Company expressly for use in the Preliminary Prospectus Supplement, the Registration Statement or the Prospectus, and provided, further, that no Non-Management Selling Stockholder (as defined herein) makes that is not an individual, any warranty or representation with respect to any statement contained in the Prospectus or the Registration Statement other than the Selling Stockholder Information (as defined below) relating to officer of such Selling Stockholder furnished by or of any of such Non-Management Selling Stockholder. When 's subsidiaries) or by the Registration Statement becomes effective and at all times subsequent thereto through the latest Representative of the time of purchase, additional time of purchase Selling Stockholders and delivered to the Underwriters or counsel for the termination of Underwriters in connection with the offering of the Shares, the Registration Statement and Prospectus, and any supplements or amendments thereto as relate to such Selling Stockholder will not contain an untrue statement of a material fact or omit to state a material fact required Shares shall be deemed to be stated therein or necessary to make the statements therein not misleading; provided, however, that the foregoing a representation and warranty, as it relates to warranty by such Non-Management Selling Stockholder, is limited as to the Selling Stockholder Information (as defined herein) concerning such Non-Management Selling Stockholder included in the Registration Statement and Prospectusmatters covered thereby, and any supplements or amendments thereto. Each Non-Management Selling Stockholder severally confirms and the Underwriters acknowledge that the name, address and number of shares of Common Stock beneficially owned by suchto each Underwriter.
Appears in 1 contract
Representations and Warranties of the Selling Stockholders. Each Selling Stockholder, severally and not jointly, represents represents, warrants and warrants covenants to each Underwriter that:
(a) to the extent that such Such Selling Stockholder will be delivering certificate(s) representing and/or notice(s) has full power and authority to exercise options enter into this Agreement and the Agreement and Power of Attorney. All authorizations and consents necessary for Common Stock to Continental Stock Transfer & Trust Company (the “Custodian”), such Selling Stockholder now is and, at the time of execution and delivery of such Shares and/or notice(s) to exercise (whether at the time of purchase or the additional time of purchase, as the case may be) will be, the lawful owner of the Shares issuable upon exercise of such options to be sold by such Selling Stockholder pursuant to this Agreementof the Agreement and Power of Attorney, and will have valid and marketable title to for the Shares issuable upon exercise execution of this Agreement on behalf of such optionsSelling Stockholder, 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 claim, lien, encumbrance, security interest, community property right, restriction on transfer or other defect in title;
(b) to the extent that such Selling Stockholder will be delivering Common Stock to the Custodian, such Selling Stockholder now is and at the time of delivery of such Shares (whether at the time of purchase or the additional time of purchase, as the case may be) will be, the lawful owner have been given. Each of the number Agreement and Power of Shares to be sold by such Selling Stockholder pursuant to Attorney and this Agreement and has and, at the time of delivery thereof, will have valid and marketable title to such Shares, and upon delivery of and payment for such Shares (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 claim, lien, encumbrance, security interest, community property right, restriction on transfer or other defect in title;
(c) 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 at 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 pursuant to this Agreement;
(d) such Selling Stockholder has and at the time of delivery of such Shares (whether at 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 Shares in the manner provided in this Agreement;
(e) this Agreement and each Custody Agreement between the Custodian and the Selling Stockholders (each, a “Custody Agreement”) have been duly authorized, executed and delivered by or on behalf of such Selling Stockholder and, with respect to the Custody Agreement only, assuming due authorization, execution and delivery by the Custodian, each is constitutes a legal, valid and binding agreement of such Selling Stockholder and is enforceable against such Selling Stockholder in accordance with its terms;the terms thereof and hereof, except as may be limited by the effect of any applicable bankruptcy, insolvency, moratorium or similar laws affecting creditors' rights generally.
(fb) such Such Selling Stockholder has duly now has, and irrevocably authorized at the Representatives time of the Selling Stockholdersdelivery thereof hereunder will have, on behalf of such Selling Stockholder, (i) good and valid title to execute and deliver this Agreement and any other document necessary or desirable in connection with the transactions contemplated thereby and to deliver the Shares to be sold by such Selling Stockholder hereunder, free and receive clear of all liens, encumbrances and claims whatsoever (other than pursuant to the Agreement and Power of Attorney), and (ii) full legal right and power, and all authorizations and approvals required by law, to sell, transfer and deliver such Shares to the Underwriters hereunder and to make the representations, warranties and agreements made by such Selling Stockholder herein. Upon the delivery of and payment therefor pursuant hereto;for such Shares hereunder, such Selling Stockholder will deliver good and valid title thereto, free and clear of all liens, encumbrances and claims whatsoever.
(gc) The performance of this Agreement and the sale consummation of the transactions contemplated hereby will not 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 obligation under, if such Selling Stockholder is a corporation or partnership, the organizational documents of such Selling Stockholder’s , or, as to all such Selling Stockholders, any contract or other agreement to which such Selling Stockholder is a party or by which such Selling Stockholder or any of its property is bound or affected, or under any ruling, decree, judgment, order, statute, rule or regulation of any court or other governmental agency or body having jurisdiction over such Selling Stockholder or the property of such Selling Stockholder, except where such breach, violation or default would not have a material adverse effect on the properties, assets, operations, business or financial condition of each such Selling Stockholder.
(d) No consent, approval, authorization or order of, or any filing or declaration with, any court or governmental agency or body is required for the consummation by such Selling Stockholder of the transactions on its part contemplated herein and in the Agreement and Power of Attorney, except such as have been obtained under the Act or the Rules and Regulations and such as may be required under state securities or Blue Sky laws or the bylaws and rules of the NASD in connection with the purchase and distribution by the Underwriters of the Shares pursuant to this Agreement is not prompted be sold by such Selling Stockholder.
(e) Such Selling Stockholder has no actual knowledge of any information concerning the Company which is material fact or condition not set forth in the Prospectus; and
(h) the Prospectus and any amendment or supplement thereto, on the date of filing thereof with the Commission pursuant to Rule 424(b) and at the time of purchase and, if applicable, at the additional time of purchase, did not or will not include an untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading; 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; provided, however, that no Selling Stockholder makes any warranty or representation with respect to any statement contained in the Preliminary Prospectus Supplement, the Registration Statement or the Prospectus in reliance upon and in conformity with information concerning an Underwriter and furnished in writing by which has adversely affected, or on behalf of such Underwriter through you to the Company expressly for use in the Preliminary Prospectus Supplementmay adversely affect, the Registration Statement business, properties, business prospects, condition (financial or otherwise) or results of operations of the ProspectusCompany, and provided, further, that no Non-Management the sale of the Shares proposed to be sold by such Selling Stockholder is not prompted by any such knowledge.
(as defined hereinf) makes any warranty or representation All information with respect to any statement contained in the Prospectus or the Registration Statement other than the Selling Stockholder Information (as defined below) relating to such Selling Stockholder furnished by such Non-Management Selling Stockholder. 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, contained in the Registration Statement and Prospectusthe Prospectus (as amended or supplemented, if the Company shall have filed with the Commission any amendment or supplement thereto) does not and any supplements or amendments thereto as relate to such Selling Stockholder 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; provided.
(g) Other than as permitted by the Act and the Rules and Regulations, howeversuch Selling Stockholder has not distributed and will not distribute any preliminary prospectus, the Prospectus or any other offering material in connection with the offering and sale of the Shares. Such Selling Stockholder has not taken, directly or indirectly, any action intended, or which might reasonably be expected, to cause or result in, under the Act or otherwise, or which has caused or resulted in, stabilization or manipulation of the price of any security of the Company to facilitate the sale or resale of the Shares.
(h) Certificates in negotiable form for the Firm Shares to be sold hereunder by such Selling Stockholder have been placed in custody, for the purpose of making delivery of such Firm Shares under this Agreement, under the Agreement and Power of Attorney which appoints American Stock Transfer & Trust Company as custodian (the "Custodian") for each Selling Stockholder. Such Selling Stockholder agrees that the Shares represented by the certificates held in custody for him or it under the Agreement and Power of Attorney are for the benefit of and coupled with and subject to the interest hereunder of the Custodian, the Committee, the Underwriters, each other Selling Stockholder and the Company, that the foregoing representation arrangements made by such Selling Stockholder for such custody and warrantythe appointment of the Custodian and the Committee by such Selling Stockholder are irrevocable, as it relates to and that the obligations of such Non-Management Selling StockholderStockholder hereunder shall not be terminated by operation of law, is limited 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, certificates for the Shares shall be delivered by the Custodian in accordance with the terms and conditions of this Agreement and actions taken by the Committee and the Custodian pursuant to the Selling Stockholder Information (Agreement and Power of Attorney shall be as defined herein) concerning valid as if such Non-Management Selling Stockholder included in death, liquidation, incapacity or other event had not occurred, regardless of whether or not the Registration Statement and ProspectusCustodian or the Committee, and any supplements or amendments thereto. Each Non-Management Selling Stockholder severally confirms and the Underwriters acknowledge that the nameeither of them, address and number of shares of Common Stock beneficially owned by suchshall have received notice thereof.
Appears in 1 contract
Representations and Warranties of the Selling Stockholders. Each Selling Stockholder, severally and not jointly, represents represents, warrants and warrants covenants to each Underwriter that:
(a) to the extent that such Such Selling Stockholder will be delivering certificate(s) representing and/or notice(s) has full power and authority to exercise options enter into this Agreement and the Agreement and Power of Attorney. All authorizations and consents necessary for Common Stock to Continental Stock Transfer & Trust Company (the “Custodian”), such Selling Stockholder now is and, at the time of execution and delivery of such Shares and/or notice(s) to exercise (whether at the time of purchase or the additional time of purchase, as the case may be) will be, the lawful owner of the Shares issuable upon exercise of such options to be sold by such Selling Stockholder pursuant to this Agreementof the Agreement and Power of Attorney, and will have valid and marketable title to for the Shares issuable upon exercise execution of this Agreement on behalf of such optionsSelling Stockholder, 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 claim, lien, encumbrance, security interest, community property right, restriction on transfer or other defect in title;
(b) to the extent that such Selling Stockholder will be delivering Common Stock to the Custodian, such Selling Stockholder now is and at the time of delivery of such Shares (whether at the time of purchase or the additional time of purchase, as the case may be) will be, the lawful owner have been given. Each of the number Agreement and Power of Shares to be sold by such Selling Stockholder pursuant to Attorney and this Agreement and has and, at the time of delivery thereof, will have valid and marketable title to such Shares, and upon delivery of and payment for such Shares (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 claim, lien, encumbrance, security interest, community property right, restriction on transfer or other defect in title;
(c) 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 at 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 pursuant to this Agreement;
(d) such Selling Stockholder has and at the time of delivery of such Shares (whether at 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 Shares in the manner provided in this Agreement;
(e) this Agreement and each Custody Agreement between the Custodian and the Selling Stockholders (each, a “Custody Agreement”) have been duly authorized, executed and delivered by or on behalf of such Selling Stockholder and, with respect to the Custody Agreement only, assuming due authorization, execution and delivery by the Custodian, each is constitutes a legal, valid and binding agreement of such Selling Stockholder and is enforceable against such Selling Stockholder in accordance with its terms;the terms thereof and hereof.
(fb) such Such Selling Stockholder has duly now has, and irrevocably authorized at the Representatives time of the Selling Stockholdersdelivery thereof hereunder will have, on behalf of such Selling Stockholder, (i) good and marketable title to execute and deliver this Agreement and any other document necessary or desirable in connection with the transactions contemplated thereby and to deliver the Shares to be sold by such Selling Stockholder hereunder, free and receive payment therefor pursuant hereto;
clear of all liens, encumbrances and claims whatsoever (g) the sale of such Selling Stockholder’s Shares other than pursuant to this the Agreement is not prompted and Power of Attorney), and (ii) full legal right and power, and all authorizations and approvals required by any information concerning law, to sell, transfer and deliver such Shares to the Company which is not set forth in the Prospectus; and
(h) the Prospectus Underwriters hereunder and any amendment or supplement thereto, on the date of filing thereof with the Commission pursuant to Rule 424(b) and at the time of purchase and, if applicable, at the additional time of purchase, did not or will not include an untrue statement of a material fact or omit to state a material fact necessary in order to make the statements thereinrepresentations, in the light of the circumstances under which they were made, not misleading; the Registration Statement did not when it became effective, does not warranties 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; provided, however, that no Selling Stockholder makes any warranty or representation with respect to any statement contained in the Preliminary Prospectus Supplement, the Registration Statement or the Prospectus in reliance upon and in conformity with information concerning an Underwriter and furnished in writing agreements made by or on behalf of such Underwriter through you to the Company expressly for use in the Preliminary Prospectus Supplement, the Registration Statement or the Prospectus, and provided, further, that no Non-Management Selling Stockholder (as defined herein) makes any warranty or representation with respect to any statement contained in the Prospectus or the Registration Statement other than the Selling Stockholder Information (as defined below) relating to such Selling Stockholder furnished by herein. Upon the delivery of and payment for such Non-Management Selling Stockholder. When the Registration Statement becomes effective and at all times subsequent thereto through the latest of the time of purchaseShares hereunder, additional time of purchase or the termination of the offering of the Shares, the Registration Statement and Prospectus, and any supplements or amendments thereto as relate to such Selling Stockholder will not contain an untrue statement deliver good and marketable title thereto, free and clear of a material fact all liens, encumbrances and claims whatsoever.
(c) On the Closing Date or omit to state a material fact the Option Closing Date, as the case may be, all stock transfer or other taxes (other than income taxes) which are required to be stated therein or necessary paid in connection with the sale and transfer of the Shares to make the statements therein not misleading; provided, however, that the foregoing representation and warranty, as it relates to be sold by such Non-Management Selling Stockholder, is limited Stockholder to the several Underwriters hereunder will have been fully paid or provided for by such Selling Stockholder Information (as defined herein) concerning and all laws imposing such Non-Management Selling Stockholder included in the Registration Statement and Prospectus, and any supplements or amendments thereto. Each Non-Management Selling Stockholder severally confirms and the Underwriters acknowledge that the name, address and number of shares of Common Stock beneficially owned by suchtaxes will have been fully complied with.
Appears in 1 contract
Samples: Underwriting Agreement (Credentials Services International Inc)
Representations and Warranties of the Selling Stockholders. Each Selling Stockholder, severally and not jointly, represents and warrants to each Underwriter the Underwriters that as of the date hereof, the Initial Sale Time and as of the Closing Time, that:
(a) such Selling Stockholder 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 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 may be limited by bankruptcy, insolvency, reorganization, moratorium or similar laws affecting creditors’ rights generally, and by general equitable principles, and except to the extent that such Selling Stockholder will the indemnification and contribution provisions of Section 11 hereof may be delivering certificate(slimited by federal or state securities laws and public policy considerations in respect thereof;
(b) representing and/or notice(s) to exercise options for Common Stock to Continental Stock Transfer & Trust Company (the “Custodian”), such Selling Stockholder now is andhas, at and immediately prior to the time Closing Time will have, (i) a valid “security entitlement” (within the meaning of delivery Section 8-501 of the New York Uniform Commercial Code (the “New York UCC”)) in respect of the Shares to be sold by such Selling Stockholder hereunder, in each case free and clear of all liens, encumbrances and claims whatsoever (other than pursuant to the Custody Agreement and Power of Attorney), and (ii) full legal power and authority to enter into this Agreement and to sell, transfer and deliver a security entitlement in respect of such Shares and/or notice(sto the Underwriters hereunder, and to make the representations, warranties and agreements made by such Selling Stockholder herein. Upon (I) to exercise (whether at the time of purchase or the additional time of purchase, as the case may be) will be, the lawful owner of payment for the Shares issuable upon exercise of such options to be sold by such Selling Stockholder pursuant to this Agreement, and will (II) delivery of such Shares, as directed by the Underwriters, to Cede & Co. or such other nominee as may be designated by DTC, (III) registration of such Shares in the name of DTC, Cede & Co. or such other nominee, (IV) DTC indicating by book entries on its books that security entitlements with respect to such Shares have valid and marketable title been credited to the Shares issuable upon exercise of such options, 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)Underwriters’ securities accounts, the Underwriters will acquire a valid and marketable title “security entitlement” (within the meaning of Section 8-501 of the New York UCC) with respect to such Shares free and clear no action based on an “adverse claim” (as defined in Section 8-102 of any claimthe New York UCC) may be asserted against the Underwriters with respect to such security entitlement, lien, encumbrance, security interest, community property right, restriction on transfer or other defect in title;
and (bIV) to the extent that such Selling Stockholder will DTC shall be delivering Common Stock to the Custodian, such Selling Stockholder now is and at the time of delivery a “protected purchaser” of such Shares (whether at within the time meaning of purchase or the additional time of purchase, as the case may be) will be, the lawful owner Section 8-303 of the number New York UCC (assuming that (A) none of Shares to be sold by DTC, Cede & Co., any such Selling Stockholder pursuant to this Agreement and has and, at the time of delivery thereof, other nominee or any Underwriter will have valid and marketable title “notice of any adverse claim” to any of such SharesShares within the meaning of Section 8-105 of the New York UCC, (B) DTC will be registered as a “clearing corporation” within the meaning of Section 8-102 of the UCC, and upon delivery (C) the jurisdiction of and payment for such Shares (whether at the time of purchase or the additional time of purchase, as the case may beDTC is New York), the Underwriters will acquire valid and marketable title to such Shares free and clear of any claim, lien, encumbrance, security interest, community property right, restriction on transfer or other defect in title;;
(c) to the extent that performance of this Agreement by such Selling Stockholder will be delivering certificates representing and/or notice(s) to exercise options exercisable for Common Stock to and the Custodian, consummation by such Selling Stockholder has and at of the time transactions contemplated herein will not conflict with, or result in any breach of, or constitute a default under (nor constitute any event which with notice, lapse of delivery 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 certificates and/or notice(sSelling Stockholder, (ii) any provision of any license, indenture, mortgage, deed of trust, loan or credit agreement or other agreement or instrument to exercise which such Selling Stockholder is a party or by which it or its properties may be bound or affected, or (whether at iii) any federal, state, local or foreign law, regulation or rule or any decree, judgment or order applicable to such Selling Stockholder; or result in the time creation or imposition of purchase any lien, charge, claim or encumbrance upon any property or asset of the additional time of purchase, as the case may be) will have, full legal right, power and capacity, and any approval required by law Selling Stockholder (other than those imposed by pursuant to the Custody Agreement and Power of Attorney);
(d) no approval, authorization, consent or order of or filing with any federal, state, local or foreign governmental or regulatory commission, board, body, authority or agency having jurisdiction over such Selling Stockholder or any of its properties is required in connection with such Selling Stockholder’s execution, delivery and performance of this Agreement, its consummation of the transactions contemplated herein, and its sale and delivery of the Shares, other than (i) such as have been obtained, or will have been obtained at the Closing Time under the Securities Act and the Exchange Act, (ii) such approvals as have been obtained in connection with the approval of the listing of the Shares on the NYSE and (iii) any necessary qualification under the securities or blue sky laws of certain jurisdictions), to sell, assign, transfer and deliver such options exercisable for the number of various jurisdictions in which the Shares to be sold by such Selling Stockholder pursuant to this Agreement;
(d) such Selling Stockholder has and at the time of delivery of such Shares (whether at 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 are being offered 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 AgreementUnderwriters;
(e) this Agreement and each Custody Agreement between the Custodian and the Selling Stockholders (each, a “Custody Agreement”) have been duly executed and delivered by such Selling Stockholder and, with respect to the Custody Agreement only, assuming due authorization, execution and delivery by the Custodian, each (i) is a legal, valid and binding agreement of such Selling Stockholder enforceable in accordance with its terms;
(f) such Selling Stockholder has duly and irrevocably authorized the Representatives of the Selling Stockholders, on behalf of such Selling Stockholder, to execute and deliver this Agreement and any other document necessary or desirable in connection familiar with the transactions contemplated thereby Registration Statement, the Prospectus and to deliver the Shares to be sold by such Selling Stockholder Disclosure Package and receive payment therefor pursuant hereto;
has no knowledge of any material fact, condition or information not disclosed in the Registration Statement, the Prospectus or the Disclosure Package which has had or may have a Material Adverse Effect and (gii) the sale of such Selling Stockholder’s Shares pursuant to this Agreement is not prompted to sell Shares by any information concerning the Company which is not set forth in the Prospectus; andRegistration Statement, the Prospectus or the Disclosure Package;
(hf) each of the Registration Statement, the Prospectus and the Disclosure Package (as amended or supplemented, if the Company shall have filed with the Commission any amendment or supplement thereto, on ) (i) as of its effective date and as of the date hereof, with respect to the Registration Statement, (ii) on its date, at the time of filing thereof with the Commission Prospectus pursuant to Rule 424(b) and at the time of purchase andClosing Time, if applicable, at the additional time of purchase, did not or will not include an untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading; 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; provided, however, that no Selling Stockholder makes any warranty or representation with respect to any statement contained in the Preliminary Prospectus Supplement, the Registration Statement or the Prospectus in reliance upon and in conformity with information concerning an Underwriter and furnished in writing by or on behalf of such Underwriter through you to the Company expressly for use in the Preliminary Prospectus Supplement, the Registration Statement or the Prospectus, and provided(iii) as of the Initial Sale Time, further, that no Non-Management Selling Stockholder (as defined herein) makes any warranty or representation with respect to any statement contained in the Prospectus or the Registration Statement other than the Selling Stockholder Information (as defined below) relating to such Selling Stockholder furnished by such Non-Management Selling Stockholder. When the Registration Statement becomes effective Disclosure Package, did not 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, the Registration Statement and Prospectus, and any supplements or amendments thereto as relate to such Selling Stockholder 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 the case of the Prospectus or the Disclosure Package, in light of the circumstances under which they were made) not misleading; provided, however, that the foregoing this representation and warrantywarranty shall only apply to any statements or omissions in the Registration Statement, the Prospectus and the Disclosure Package made in reliance upon and in conformity with written information furnished by or on behalf of such Selling Stockholder specifically for use in the Registration Statement, the 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 relates 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 Non-Management Selling Stockholder in the Registration Statement, the Prospectus and the Disclosure Package under the heading “Selling Stockholders” and the footnote thereunder, excluding any percentages set forth therein (the “Selling Stockholder Information”);
(g) such Selling Stockholder has not distributed and will not distribute 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 intended, or which would reasonably be expected, to cause or result in, under the Securities Act, the Securities Act Regulations or otherwise, or which has constituted, stabilization or manipulation of the price of any security of the Company to facilitate the sale or resale of the Shares;
(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, is limited ; 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 hereunder of the Custodian, the Attorneys, the Underwriters, each other Selling Stockholder Information (as defined herein) concerning and the Company; that the arrangements made by such Non-Management Selling Stockholder for such custody and the appointment of the Custodian and the Attorneys by such Selling Stockholder are 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 similar event; if any Selling Stockholder should die, become disabled or incapacitated or be liquidated or if any other such similar 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 similar 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) 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 Prospectus and the Disclosure Package under “Shares Eligible for Future Sale;”
(k) 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 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;
(l) 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;
(m) 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 foregoing, or any 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 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 its subsidiaries have instituted, maintain and enforce, and any supplements or amendments thereto. Each Nonwill continue to maintain and enforce policies and procedures designed to promote and ensure compliance with all applicable anti-Management bribery and anti-corruption laws;
(n) the operations of such Selling Stockholder severally confirms and its subsidiaries are and have been conducted at all times in compliance with applicable financial recordkeeping and reporting requirements, including those of the Underwriters acknowledge 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 Anti-Money Laundering Laws is pending or, to the knowledge of such Selling Stockholder, threatened.
(o) Neither such Selling Stockholder nor any of its subsidiaries, directors, officers or employees, 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 is currently the subject or the 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”), the UNSC, the HMT or other relevant Sanctions authority, nor is such Selling Stockholder, any of its subsidiaries located, organized or resident in a country or territory that is the namesubject or target of Sanctions, address including, without limitation, any Sanctioned Country; and number such Selling Stockholder will not directly or indirectly use the proceeds of shares the offering of Common Stock beneficially owned the Shares hereunder, or lend, contribute or otherwise make available such proceeds to any subsidiary, joint venture partner or other person or entity (i) to fund or facilitate any activities of or business with any person that, at the time of such funding or facilitation, is the subject or target of Sanctions, (ii) to fund or facilitate any activities of or business in any Sanctioned Country or (iii) in any other manner that will result in a violation by suchany person (including any person participating in the transaction, whether as underwriter, advisor, investor or otherwise) of Sanctions. For the past five years, such Selling Stockholder and its subsidiaries have not knowingly engaged in, are not now knowingly engaged in and will not engage in any dealings or transactions with any person that at the time of the dealing or transaction is or was the subject or the target of Sanctions or with any Sanctioned Country; and
(p) such Selling Stockholder has not taken and will not take, directly or indirectly, any action designed to or that could reasonably be expected to cause or result in any stabilization or manipulation of the price of the Shares.
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) to the extent that such Selling Stockholder will be delivering certificate(s) representing and/or notice(s) to exercise options for Common Stock to Continental Stock Transfer & Trust Company (the “Custodian”), such Selling Stockholder now is andis, at the time of delivery of such Shares and/or notice(s) to exercise (whether at the time of purchase or the additional time of purchase, as the case may be) will be, the lawful owner of the Shares issuable upon exercise of such options to be sold by such Selling Stockholder pursuant to this Agreement, and will have valid and marketable title to the Shares issuable upon exercise of such options, 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 claim, lien, encumbrance, security interest, community property right, restriction on transfer or other defect in title;
(b) to the extent that such Selling Stockholder will be delivering Common Stock to the Custodian, such Selling Stockholder now is and at the time of delivery of such its Shares (whether at the time of purchase or the 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 and has and, at the time of delivery thereof, will have valid and marketable title to such Shares, and upon delivery of and payment for such Shares thereof (whether at the time of purchase or the additional time of purchase, as the case may be), will have valid and marketable title to such Shares, and upon delivery of and payment for such Shares, the Underwriters will acquire valid and marketable title to such Shares free and clear of any claim, lien, encumbrance, security interest, community property right, restriction on transfer or other defect in title;
(cb) 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 the Shares to be sold by such certificates and/or notice(s) to exercise Selling Stockholders (whether at the time of purchase or the additional time of purchase, as the case may be) will have, 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 pursuant to this Agreement;
(d) such Selling Stockholder has and at the time of delivery of such Shares (whether at 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 jurisdictionslaws), to sell, assign, transfer and deliver such Shares in the manner provided in this Agreement;
(ec) this Agreement and each Agreement, the Custody Agreement between Agreement, dated as of the Custodian date hereof, among the Company, as custodian, and the Selling Stockholders (eachthe "CUSTODY AGREEMENT"), a “Custody Agreement”) and the Lock-Up Agreement executed by such Selling Stockholder have been duly executed and delivered by such Selling Stockholder and, with respect to the Custody Agreement only, assuming due authorization, execution and delivery by the Custodian, each is a legal, valid and binding agreement of such Selling Stockholder enforceable in accordance with its termsStockholder;
(fd) such Selling Stockholder has duly and irrevocably authorized the Representatives of the Selling Stockholders, 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 thereby and to deliver the Shares to be sold by such Selling Stockholder and receive payment therefor pursuant hereto;
(g) 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; and
(h) the Prospectus and any amendment or supplement thereto, on the date of filing thereof with the Commission pursuant to Rule 424(b) and at the time of purchase and, if applicable, at the additional time of purchase, did not or will not include an untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading; 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; provided, however, that no Selling Stockholder makes any warranty or representation with respect to any statement contained in the Preliminary Prospectus Supplement, the Registration Statement or the Prospectus in reliance upon and in conformity with information concerning an Underwriter and furnished in writing by or on behalf of such Underwriter through you to the Company expressly for use in the Preliminary Prospectus Supplement, the Registration Statement or the Prospectus, and provided, further, that no Non-Management Selling Stockholder (as defined herein) makes any warranty or representation with respect to any statement contained in the Prospectus or the Registration Statement other than the Selling Stockholder Information (as defined below) relating to such Selling Stockholder furnished by such Non-Management Selling Stockholder. 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 and the termination of the offering of the Shares, the Registration Statement and Prospectusany amendments thereto, and any supplements or amendments thereto solely as relate it relates to such Selling Stockholder Stockholder, will not contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading; provided, howeverand the Prospectus, that the foregoing representation and warrantyany supplements thereto, solely as it relates to such Non-Management Selling Stockholder, 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 the light of the circumstances under which they were made, not misleading;
(e) the Power-of-Attorney has been duly executed and delivered by such Selling Stockholder and is limited to a legal, valid and binding agreement of such Selling Stockholder enforceable in accordance with its terms; such Selling Stockholder has duly and irrevocably authorized the Representatives of the Selling Stockholder Information (as defined herein) concerning Stockholder, on behalf of such Non-Management 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 included and receive payment therefor pursuant hereto; and
(f) 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 Registration Statement and Prospectus, and any supplements or amendments thereto. Each Non-Management .
(g) neither such Selling Stockholder severally confirms and the Underwriters acknowledge that the namenor any of its affiliates has taken, address and number directly or indirectly, any action in violation of shares of Common Stock beneficially owned by suchRegulation M.
Appears in 1 contract
Representations and Warranties of the Selling Stockholders. Each Selling Stockholder, severally and not jointly, represents and warrants (as to each Underwriter itself only) to the Underwriters that:
(a) such Selling Stockholder has full power and authority to enter into this Agreement, and the Custody Agreement and Power of Attorney. 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 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 may be limited by bankruptcy, insolvency, reorganization, moratorium or similar laws affecting creditors' rights generally, and by general equitable principles, and except to the extent that the indemnity and contribution provisions of Section 12 hereof may be limited by federal or state securities laws and public policy considerations in respect thereof;
(b) such Selling Stockholder now has, and at the time of purchase will have, (A) valid title to the Shares to be sold by such Selling Stockholder hereunder, free and clear of all liens, encumbrances and claims whatsoever (other than pursuant to the Custody Agreement and Power of Attorney), and (B) full legal right and power, and all authorizations and approvals required by law, to sell, transfer and deliver such Shares to the Underwriters hereunder and to make the representations, warranties and agreements made by such Selling Stockholder herein. Upon the delivery of and payment for such Shares hereunder, such Selling Stockholder will be delivering certificate(sdeliver to the Underwriters (assuming no such Underwriter has notice of any "adverse claim," within the meaning of Section 8-105 of the New York Uniform Commercial Code, to such Shares) representing and/or notice(sgood and marketable title thereto, free and clear of any adverse claim within the meaning of Section 8-102 of the New York Uniform Commercial Code;
(c) to exercise options for Common Stock to Continental Stock Transfer & Trust Company (the “Custodian”), such Selling Stockholder now is and, 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 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;
(d) the performance of this Agreement and the Custody Agreement and Power of Attorney and the consummation of the transactions contemplated herein and therein will not (A) 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), any provision of any license, indenture, mortgage, deed of trust, loan or credit agreement or other agreement or instrument to which such Selling Stockholder is a party or by which such Selling Stockholder's properties may be bound or affected, or under any federal, state, local or foreign law, regulation or rule or any decree, judgment or order applicable to the Selling Stockholder; or result in the creation or imposition of any lien, charge, claim or encumbrance upon any property or asset of such Selling Stockholder; or (B) result in any violation of the provisions of the charter or bylaws or other organizational instrument of such Selling Stockholder, if applicable, or any applicable treaty, law, statute, rule, regulation, judgment, order, writ or decree of any government, government instrumentality or court, domestic or foreign, having jurisdiction over such Selling Stockholder or any of its properties;
(e) no approval, authorization, consent or order of or filing with any federal, state or local governmental or regulatory commission, board, body, authority or agency is required in connection with the Selling Stockholder's execution, delivery and performance of this Agreement and the Custody Agreement and Power of Attorney, its consummation of the transactions contemplated herein and therein, and its sale and delivery of the Shares to be sold by such Shares and/or notice(sSelling Stockholder, other than (A) to exercise (whether such as have been obtained, or will have been obtained at the time of purchase or the additional time of purchase, as the case may be, under the Securities Act and the Exchange Act, (B) will be, such approvals as have been obtained in connection with the lawful owner approval of the quotation of the Shares issuable upon exercise of such options to be sold by such Selling Stockholder pursuant to this Agreementon the NYSE, and will have valid and marketable title to the Shares issuable upon exercise of such options, 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 C) any claim, lien, encumbrance, security interest, community property right, restriction on transfer or other defect in title;
(b) to the extent that such Selling Stockholder will be delivering Common Stock to the Custodian, such Selling Stockholder now is and at the time of delivery of such Shares (whether at the time of purchase or the 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 and has and, at the time of delivery thereof, will have valid and marketable title to such Shares, and upon delivery of and payment for such Shares (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 claim, lien, encumbrance, security interest, community property right, restriction on transfer or other defect in title;
(c) 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 at 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 necessary qualification under the securities or blue sky laws of certain jurisdictions), to sell, assign, transfer and deliver such options exercisable for the number of various jurisdictions in which the Shares to be sold by such Selling Stockholder pursuant to this Agreement;
(d) such Selling Stockholder has and at the time of delivery of such Shares (whether at 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 are being offered by the Act Underwriters and (D) the securities or blue sky laws approval of certain jurisdictions), to sell, assign, transfer the NASD of the fairness and deliver such reasonableness of the proposed terms and conditions of the underwriting and sale of the Shares in the manner provided in this Agreement;
(e) this Agreement and each Custody Agreement between the Custodian and the Selling Stockholders (each, a “Custody Agreement”) have been duly executed and delivered by such Selling Stockholder and, with respect to the Custody Agreement only, assuming due authorization, execution and delivery by the Custodian, each is a legal, valid and binding agreement of such Selling Stockholder enforceable in accordance with its termsUnderwriters;
(f) such Selling Stockholder has duly and irrevocably authorized the Representatives of the Selling Stockholders, 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 thereby and to deliver the Shares to be sold by such Selling Stockholder and receive payment therefor pursuant hereto;
(g) the sale of such Selling Stockholder’s Shares pursuant to this Agreement is not prompted to sell Shares by any information concerning the Company or any Subsidiary which is not set forth in the Registration Statement or the Prospectus; and;
(hg) all information with respect to such Selling Stockholder contained in the Registration Statement and the Prospectus and (as amended or supplemented, if the Company shall have filed with the Commission any amendment or supplement thereto, on the date of filing thereof ) complied and will comply in all material respects with the Commission pursuant to Rule 424(b) and at the time of purchase and, if applicable, at the additional time of purchase, did not or will not include an untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in the light all applicable provisions of the circumstances under which they were madeSecurities Act and the Securities Act Regulations, not misleading; the Registration Statement did not when it became effective, does not contains and will not, at the time contain all statements 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 in accordance with the statements therein not misleading; provided, however, that no Selling Stockholder makes any warranty or representation with respect to any statement contained in Securities Act and the Preliminary Prospectus Supplement, the Registration Statement or the Prospectus in reliance upon and in conformity with information concerning an Underwriter and furnished in writing by or on behalf of such Underwriter through you to the Company expressly for use in the Preliminary Prospectus Supplement, the Registration Statement or the ProspectusSecurities Act Regulations, and provided, further, that no Non-Management Selling Stockholder (as defined herein) makes any warranty or representation with respect to any statement contained in the Prospectus or the Registration Statement other than the Selling Stockholder Information (as defined below) relating to such Selling Stockholder furnished by such Non-Management Selling Stockholder. When the Registration Statement becomes effective does not 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, the Registration Statement and Prospectus, and any supplements or amendments thereto as relate to such Selling Stockholder 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; provided, however, that the foregoing Selling Stockholder makes no warranty or representation with respect to any statement contained in the Registration Statement or the Prospectus in reliance upon and warranty, as it relates to such Non-Management Selling Stockholder, is limited in conformity with the information concerning the Underwriters and furnished in writing by or on behalf of the Underwriters through you to the Selling Stockholder Information (as defined herein) concerning such Non-Management Selling Stockholder included Company expressly for use in the Preliminary Prospectus, the Registration Statement or the Prospectus or pursuant to any employee benefit plan described in the Registration Statement and the Prospectus;
(h) other than as permitted by the Securities Act and the Securities Act Regulations, such Selling Stockholder has not distributed and will not distribute any Preliminary Prospectus, the Prospectus or any other offering material in connection with the offering and sale of the Shares. Neither such Selling Stockholder, nor to such Selling Stockholder's knowledge, any of such Selling Stockholder's directors, officers, affiliates or controlling persons has taken, directly or indirectly, any action designed, or which has constituted, or which 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;
(i) certificates in negotiable form for 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, as custodian (the "Custodian"), for such Selling Stockholder; such Selling Stockholder agrees that the Shares represented by the certificates 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 hereunder of the Custodian, the Attorneys-in-Fact, 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-in-Fact by such Selling Stockholder are 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, certificates for the Shares shall be delivered by the Custodian in accordance with the terms and conditions of this Agreement and actions taken by the Attorneys-in-Fact 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-in-Fact, or either of them, shall have received notice thereof;
(j) 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;
(k) 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;
(l) 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 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;
(m) there are no contracts, agreements or understandings between such Selling Stockholder and any supplements or amendments thereto. Each Non-Management person that would give rise to a valid claim against such Selling Stockholder severally confirms or any Underwriter for a brokerage commission, finder's fee or other like payment in connection with this offering; and
(n) other than the Dawntreader Funds, Xxxxxxx X. Xxxxxxx, Xxxx Xxxxxxxxxx, Xxxxx X. Xxxxxx, Wit VC Fund I LP and ING Capital LLC, such Selling Stockholder is not a member of or an affiliate of or associated with any member of the NASD. In addition, any certificate signed by any officer of a Selling Stockholder and delivered to the Underwriters acknowledge that or counsel for the nameUnderwriters in connection with the offering of the Shares shall be deemed to be a representation and warranty by such Selling Stockholder, address and number of shares of Common Stock beneficially owned by suchas to matters covered thereby, to each Underwriter.
Appears in 1 contract
Representations and Warranties of the Selling Stockholders. Each of the Selling Stockholder, Stockholders severally and not jointly, jointly hereby represents and warrants to each Underwriter thatas of the date hereof, as of the Firm Shares Closing Date and, if the Selling Stockholders are selling Option Shares, as of each such Option Shares Closing Date (if any), as follows:
(a) Such Selling Stockholder has caused certificates covering the number of Shares to the extent that be sold by such Selling Stockholder will hereunder to be delivering certificate(s) representing and/or notice(s) delivered to exercise options for Common Stock to Continental 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 between the Custodian and such Selling Stockholder now is and, at substantially in the time of delivery of such Shares and/or notice(s) to exercise form attached hereto as Exhibit B (whether at the time of purchase or the additional time of purchase, as the case may be) will be, the lawful owner of the Shares issuable upon exercise of such options to be sold by such Selling Stockholder pursuant to this “Custody Agreement, and will have valid and marketable title to the Shares issuable upon exercise of such options, 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 claim, lien, encumbrance, security interest, community property right, restriction on transfer or other defect in title;.
(b) to the extent that such Each Selling Stockholder will be delivering Common Stock to has granted an irrevocable power of attorney substantially in the Custodian, such Selling Stockholder now is and at form attached hereto as Exhibit C (the time “Power of delivery of such Shares (whether at the time of purchase or the 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 and has and, at the time of delivery thereof, will have valid and marketable title to such Shares, and upon delivery of and payment for such Shares (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 claim, lien, encumbrance, security interest, community property right, restriction on transfer or other defect in title;
(cAttorney”) 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 at 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 pursuant to this Agreement;
(d) such Selling Stockholder has and at the time of delivery of such Shares (whether at 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 Shares in the manner provided in this Agreement;
(e) this Agreement and each Custody Agreement between the Custodian and the Selling Stockholders (each, a “Custody Agreement”) have been duly executed and delivered by such Selling Stockholder and, with respect to the Custody Agreement only, assuming due authorization, execution and delivery by the Custodian, each is a legal, valid and binding agreement of such Selling Stockholder enforceable in accordance with its terms;
(f) such Selling Stockholder has duly and irrevocably authorized the Representatives of the Selling Stockholdersperson named therein, on behalf of each such Selling Stockholder, to execute and deliver this Agreement and any other document necessary or desirable in connection with the transactions contemplated thereby hereby and to deliver the shares to be sold by each such Selling Stockholder pursuant hereto.
(c) This Agreement, the Custody Agreement, the Power of Attorney and the Lock-Up Agreement have each been duly authorized, executed and delivered by or on behalf of each Selling 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, except as the enforceability thereof may be limited by bankruptcy, insolvency, reorganization, moratorium and other similar laws affecting the enforceability of creditors’ rights generally, general equitable principles, and, with respect to this Agreement, the unenforceability under certain circumstances under law or court decisions of provisions for the indemnification of or contribution to a party.
(d) The execution and delivery by each Selling Stockholder of this Agreement, the Custody Agreement, the Power of Attorney and the Lock-Up Agreement and the performance by each Selling Stockholder of its obligations thereunder, including the sale and delivery of the Shares to be sold by each such Selling Stockholder and the consummation of the transactions contemplated herein and compliance by each Selling Stockholder with its obligations hereunder, do not and will not, whether with or without the giving of notice or the passage of time or both, (i) violate or contravene any provision of the charter or bylaws or other organizational instrument of any Selling 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 constitute a breach of, or default under, or result in the creation or imposition of any tax, lien, charge or encumbrance upon the shares to be sold by any Selling Stockholder or any property or assets of any Selling Stockholder pursuant to the terms of any agreement or instrument to which any Selling Stockholder is a party or by which any Selling Stockholder may be bound or to which any of the property or assets of any Selling Stockholder is subject, or (iii) require any consent, approval, authorization or order of or registration or filing with any court or governmental agency or body having jurisdiction over it, except for such consents, approvals, authorizations or orders of or registrations or filings which have already been obtained and are in full force and effect, and 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 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 Stockholder and receive payment therefor pursuant hereto;in the manner provided by this Agreement.
(g) Assuming that each of the sale Underwriters does not have “notice” of any “adverse claim” (within the meaning of Section 8-105 of the New York Uniform Commercial Code (the “New York UCC”)) to the Shares, upon indication by book entry that the Shares have been credited to securities accounts maintained by the Representatives at the DTC and payment therefor in accordance with this Agreement, the several Underwriters will acquire a securities entitlement with respect to such Selling Stockholder’s Shares pursuant and, under the New York UCC, an action based on an adverse claim to this Agreement is such securities entitlement, whether framed in conversion, replevin, constructive trust, equitable lien or other theory may not prompted by any information concerning be asserted against the Company which is not set forth in the Prospectus; andseveral Underwriters.
(h) 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, and on each Closing Date will not, contain any amendment or supplement thereto, on the date of filing thereof with the Commission pursuant to Rule 424(b) and at the time of purchase and, if applicable, at the additional time of purchase, did not or will not include an untrue statement of a material fact or omit to state any material fact necessary to make such information not misleading it being understood and agreed that the only such information furnished in writing by such Selling Stockholder consists of the name of such Selling Stockholder, the number of shares of Common Stock beneficially owned by, and the number of Firm Shares to be offered by, such Selling Stockholder, and the address and other information with respect to such Selling Stockholder (excluding any percentage) which appears under the caption “Principal and Selling Stockholders” in the Registration Statement and the Prospectus.
(i) Each of JH Partners, LLC, Xxxxx Xxxxxxx, L.P., Siberia Investment Company, LLC, Xxxxxx Xxxxxx, Jr., Xxxxx Xxxxxxxxx and Xxxxx Xxxxxxx, as a Selling Stockholder, has reviewed the Registration Statement and 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 in order to make the statements made therein not misleading and (ii) on the Effective Date the Prospectus contained and, on each Closing Date contains, no untrue statement of a material fact or omitted or omits to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading; the Registration Statement did not when it became effective, does not and will not, at the time .
(j) The sale 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; provided, however, that no Shares by each Selling Stockholder makes pursuant to this Agreement is not prompted by such Selling Stockholder’s knowledge of any warranty or representation with respect to any statement contained material information concerning the Company which is not set forth in the Preliminary Prospectus SupplementProspectus.
(k) No Selling Stockholder has taken or will take, directly or indirectly, any action designed to or that might reasonably be expected to cause or result in stabilization or manipulation of the Registration Statement or the Prospectus in reliance upon and in conformity with information concerning an Underwriter and furnished in writing by or on behalf price of such Underwriter through you to any security of the Company expressly for use in to facilitate the Preliminary Prospectus Supplement, the Registration Statement sale or the Prospectus, and provided, further, that no Non-Management Selling Stockholder (as defined herein) makes any warranty or representation with respect to any statement contained in the Prospectus or the Registration Statement other than the Selling Stockholder Information (as defined below) relating to such Selling Stockholder furnished by such Non-Management Selling Stockholder. 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 resale of the Shares.
(l) None of JH Partners, the Registration Statement and ProspectusLLC, and any supplements or amendments thereto Xxxxx Xxxxxxx, L.P., Siberia Investment Company, LLC, Xxxxxx Xxxxxx Jr., Xxxxx Xxxxxxxxx nor Xxxxx Xxxxxxx as relate to such Selling Stockholder will not contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading; provided, however, that the foregoing representation and warranty, as it relates to such Non-Management Selling Stockholder, has actual knowledge that any representation or warranty of the Company set forth in Section 2 above is limited to the untrue or inaccurate in any material respect.
(m) The representations and warranties of each Selling Stockholder Information (as defined herein) concerning such Non-Management Selling Stockholder included in the Registration Statement Custody Agreement are and Prospectuson each Closing Date will be, true and any supplements or amendments thereto. Each Non-Management Selling Stockholder severally confirms and the Underwriters acknowledge that the name, address and number of shares of Common Stock beneficially owned by suchcorrect.
Appears in 1 contract
Representations and Warranties of the Selling Stockholders. Each of the Selling StockholderStockholders, severally and not jointly, represents hereby represent and warrants to warrant to, and agree with, each Underwriter of the Underwriters that:
(a) to the extent that such Such Selling Stockholder will be delivering certificate(s) representing and/or notice(s) to exercise options for Common Stock to Continental Stock Transfer & Trust Company (the “Custodian”), such Selling Stockholder now is and, at the time of delivery of such Shares and/or notice(s) to exercise (whether at the time of purchase or the additional time of purchase, as the case may be) will be, the lawful owner of the Shares issuable upon exercise of such options to be sold by such Selling Stockholder pursuant to this Agreement, and will have valid and marketable title to the Shares issuable upon exercise of such options, 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 claim, lien, encumbrance, security interest, community property right, restriction on transfer or other defect in title;
(b) to the extent that such Selling Stockholder will be delivering Common Stock to the Custodian, such Selling Stockholder now is and at the time of delivery of such Shares (whether at the time of purchase or the 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 the Underwriting Agreement and has andupon sale and delivery of, at and payment for, such Common Shares, as provided in the time of delivery thereofUnderwriting Agreement, such Selling Stockholder will have valid convey good and marketable title to such Common 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 claimall liens, lienencumbrances, encumbrance, security interest, community property right, restriction on transfer or other defect in title;equities and claims whatsoever.
(cb) The information in the Registration Statement under the caption "Principal and Selling Stockholders" which relates to the extent that such Selling Stockholder will does not contain any untrue statement of a material fact or omit to state any material fact required to be delivering certificates representing and/or notice(s) stated therein or necessary to exercise options exercisable for Common Stock to make the Custodianstatements therein, in light of the circumstances under which they were made, not misleading; and such Selling Stockholder is familiar with the Registration Statement and has no reason to believe that (i) the representations and at warranties of the time Company contained in the Underwriting Agreement are not true and correct or (ii) there is a material fact or condition not disclosed in the Prospectus or any supplement thereto which has materially and adversely affected or may materially and adversely affect the condition (financial or otherwise) or earnings, operations, business or business prospects of delivery of such certificates and/or notice(s) to exercise (whether at the time of purchase or the additional time of purchase, as the case may be) will have, full legal right, power and capacityCompany, and any approval required by law (other than those imposed by the Act and the securities or blue sky laws sale of certain jurisdictions), to sell, assign, transfer and deliver such options exercisable for the number of Common Shares to be sold by such Selling Stockholder pursuant to this Agreement;
(d) such Selling Stockholder has and at the time of delivery of such Shares (whether at 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 Shares in the manner provided in this Agreement;
(e) this Agreement and each Custody Agreement between the Custodian and the Selling Stockholders (each, a “Custody Agreement”) have been duly executed and delivered by such Selling Stockholder and, with respect to the Custody Agreement only, assuming due authorization, execution and delivery by the Custodian, each is a legal, valid and binding agreement of such Selling Stockholder enforceable in accordance with its terms;
(f) such Selling Stockholder has duly and irrevocably authorized the Representatives of the Selling Stockholders, 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 thereby and to deliver the Shares to be sold by such Selling Stockholder and receive payment therefor pursuant hereto;
(g) the sale of such Selling Stockholder’s Shares pursuant to this Agreement hereto is not prompted by any information concerning the Company which is not set forth in the Prospectus; andProspectus or any supplement thereto.
(hc) Such Selling Stockholder has not taken and will not take, directly or indirectly, any action designed to or which has constituted or which might reasonably be expected to cause or result, under the Prospectus Securities Exchange Act of 1934, as amended (the "Exchange Act"), or otherwise, in stabilization or manipulation of the price of any security of the Company to facilitate the sale or resale of the Common Shares.
(d) Certificates in negotiable form for such Selling Stockholder's Common Shares have been placed in custody for delivery pursuant to the terms of the Underwriting Agreement, under a Custody Agreement and Power of Attorney duly authorized, executed and delivered by such Selling Stockholder in the form heretofore furnished to you (the "Custody Agreement") with American Stock Transfer & Trust Company, as Custodian (the "Custodian"); the Common Shares represented by the certificates so held in custody for such Selling Stockholder are subject to the interests of the Underwriters, the Company and the other Selling Stockholders set forth in the Underwriting Agreement; the arrangements for custody and delivery of such certificates made by such Selling Stockholder under the Underwriting Agreement and the Custody Agreement are not subject to termination by any amendment acts of such Selling Stockholder, or supplement 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 Common Shares under the Underwriting Agreement, certificates for the Common Shares will be delivered by the Custodian in accordance with the terms and conditions of the Underwriting 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.
(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 in the Underwriting Agreement, except such as may have been obtained under the Act and such as may be required under the blue sky laws of any jurisdiction in connection with the purchase and distribution of the Common Shares by the Underwriters and such other approvals as have been obtained.
(f) Neither the sale of the Common Shares being sold by such Selling Stockholder nor the consummation of any other of the transactions contemplated in the Underwriting Agreement by such Selling Stockholder or the fulfillment of the terms of the Underwriting Agreement by such Selling Stockholder will conflict with, result in a breach or violation of, or constitute a default under any law or the terms of any indenture, credit agreement, security agreement or other agreement or instrument to which such Selling Stockholder is a party or bound, or any judgement, order or decree applicable to such Selling Stockholder of any court, regulatory body, administrative agency, governmental body or arbitrator having jurisdiction over such Selling Stockholder.
(g) The Underwriting Agreement and the Custody Agreement have been duly executed and delivered by such Selling Stockholder and, assuming the due execution and delivery by the respective other parties thereto, on each is a legal, valid and binding agreement of such Selling Stockholder, enforceable against such Selling Stockholder in accordance with its terms, except, (i) as such enforceability may be limited by bankruptcy, insolvency, reorganization, moratorium or other similar laws now or hereafter in effect relating to or limiting enforcement of creditors' rights generally, (ii) under federal securities laws or state securities laws respecting the date enforceability of filing thereof with indemnification agreements or (iii) that the Commission pursuant remedy of specific performance and injunctive and other forms of equitable relief may be subject to Rule 424(b) equitable defenses and at to the time of purchase and, if applicable, at the additional time of purchase, did not or will not include an untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in the light discretion of the circumstances under court before which they were made, not misleading; 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 proceedings therefor may be stated therein or necessary to make the statements therein not misleading; provided, however, that no Selling Stockholder makes any warranty or representation with respect to any statement contained in the Preliminary Prospectus Supplement, the Registration Statement or the Prospectus in reliance upon and in conformity with information concerning an Underwriter and furnished in writing brought. Any certificate signed by or on behalf of such Underwriter through you to the Company expressly for use in the Preliminary Prospectus Supplement, the Registration Statement or the Prospectus, and provided, further, that no Non-Management any Selling Stockholder (as defined herein) makes any and delivered to you and your counsel should be deemed a representation and warranty or representation with respect to any statement contained in the Prospectus or the Registration Statement other than the Selling Stockholder Information (as defined below) relating to by such Selling Stockholder furnished by such Non-Management Selling Stockholder. 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, the Registration Statement and Prospectus, and any supplements or amendments thereto to you as relate to such Selling Stockholder will not contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading; provided, however, that the foregoing representation and warranty, as it relates to such Non-Management Selling Stockholder, is limited to the Selling Stockholder Information (as defined herein) concerning such Non-Management Selling Stockholder included in the Registration Statement and Prospectus, and any supplements or amendments thereto. Each Non-Management Selling Stockholder severally confirms and the Underwriters acknowledge that the name, address and number of shares of Common Stock beneficially owned by suchmatters covered thereby.
Appears in 1 contract
Representations and Warranties of the Selling Stockholders. Each Selling Stockholder, severally and not jointly, represents and warrants to each Underwriter Underwriter, solely in such Selling Stockholder's capacity as a Selling Stockholder, that:
(a) to the extent that such Such Selling Stockholder will be delivering certificate(s(i) representing and/or notice(s) to exercise options for Common Stock to Continental Stock Transfer & Trust Company (is, and on the “Custodian”), such Selling Stockholder now is and, at the time of delivery of such Shares and/or notice(s) to exercise (whether at the time of purchase or the additional time of purchase, as the case may be) Closing Date will be, the lawful owner of the Shares issuable upon exercise (other than that number of Shares, if any, listed opposite the name of such options Selling Stockholder under the heading "Option Shares" in Schedule II hereto (with respect to each Selling Stockholder, such number of Shares is hereinafter referred to as the "Option Shares")) to be sold by such Selling Stockholder pursuant to this AgreementAgreement and (ii) owns, and on the Closing Date will have valid and marketable title to the Shares issuable upon exercise of such options, and upon delivery of and payment for own such Shares (whether at other than the time of purchase or the additional time of purchase, as the case may beOption Shares), free of all restrictions on transfer, liens, encumbrances, security interests, equities and claims whatsoever, other than pursuant to the Underwriters Custody Agreement (as defined below), if any, the Power of Attorney (as defined below), this Agreement and the restrictions on transfer set forth in the Management Voting Trust Agreement and the Stockholders' Agreement, with which such Selling Stockholder is, and on the Closing Date will acquire valid be, in compliance, and marketable title to other than any such Shares free and clear of any claimrestriction on transfer, lien, encumbrance, security interest, community property right, restriction on transfer equity or other defect in title;
(b) to claim created by an Underwriter or resulting from any actions taken by an Underwriter. If any Shares are listed opposite the extent that such name of a Selling Stockholder will be delivering Common Stock to under the Custodianheading "Option Shares" in Schedule II hereto, such Selling Stockholder now (i) is and at the time holder of delivery of an Award Granted to such Shares (whether at Selling Stockholder under the time of purchase or the additional time of purchaseYoung & Rubicam Holdings Inc. Management Stock Option Plan, as amended (the case may be"PLAN") (as such terms are defined therein), with respect to the Option Shares and (ii) pursuant to the Plan and such Selling Stockholder's Stock Option Agreement (as defined in the Plan), on the Closing Date such Selling Stockholder (A) will be, be the lawful owner of the number of Option Shares to be sold by such Selling Stockholder pursuant to this Agreement and has and, at the time of delivery thereof, (B) will have valid and marketable title to own such Option Shares, and upon delivery in each case subject to the terms of and payment for such Shares (whether at the time of purchase or the additional time of purchase, as the case may be)this Agreement, the Underwriters Custody Agreement and the Power of Attorney, free of all restrictions on transfer, liens, encumbrances, security interests, equities and claims whatsoever, other than the restrictions on transfer set forth in the Management Voting Trust Agreement and the Stockholders' Agreement, with which such Selling Stockholder is, and on the Closing Date will acquire valid be, in compliance, and marketable title to other than any such Shares free and clear of any claimrestriction on transfer, lien, encumbrance, security interest, community property right, restriction on transfer equity or other defect in title;claim created by an Underwriter or resulting from any actions taken by an Underwriter.
(cb) to the extent that such Such Selling Stockholder will be delivering certificates representing and/or notice(s) to exercise options exercisable for Common Stock to has, and on the Custodian, such Selling Stockholder has and at the time of delivery of such certificates and/or notice(s) to exercise (whether at the time of purchase or the additional time of purchase, as the case may be) Closing Date will have, full legal right, power and capacityauthority, and any all authorization and approval required by law law, (i) to enter into this Agreement, the Letter of Transmittal and Custody Agreement, if any, signed by or on behalf of such Selling Stockholder and The Bank of New York, as Custodian (the "CUSTODY AGREEMENT"), relating to the deposit of the Shares (other than those imposed the Option Shares) to be sold by such Selling Stockholder and the Power of Attorney of such Selling Stockholder (the "POWER OF ATTORNEY") appointing certain individuals as such Selling Stockholder's attorneys-in-fact (with respect to the Y&R Selling Stockholders, the "Y&R ATTORNEYS," with respect to the H&F Selling Stockholders, the "H&F ATTORNEYS," with respect to BearTel, the "BEARTEL ATTORNEYS" and collectively the "ATTORNEYS") to the extent set forth therein, relating to the transactions contemplated hereby and by the Act Registration Statement and the securities or blue sky laws of certain jurisdictions)Custody Agreement, if any, and (ii) to sell, assign, transfer and deliver such options exercisable for on the number of Closing Date the Shares to be sold by such Selling Stockholder pursuant to this Agreement;in the manner provided herein and therein.
(c) This Agreement has been duly authorized, executed, and delivered by or on behalf of such Selling Stockholder.
(d) The Custody Agreement, if any, of such Selling Stockholder has been duly authorized, executed and at the time of delivery delivered by or on behalf of such Shares (whether at the time Selling Stockholder and is a valid and binding agreement of purchase or the additional time of purchasesuch Selling Stockholder, 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 enforceable in the manner provided in this Agreement;accordance with its terms.
(e) this Agreement and each Custody Agreement between the Custodian and the The Power of Attorney of such Selling Stockholders (each, a “Custody Agreement”) have Stockholder has been duly authorized, executed and delivered by such Selling Stockholder and, with respect to the Custody Agreement only, assuming due authorization, execution and delivery by the Custodian, each is a legal, valid and binding agreement instrument of such Selling Stockholder Stockholder, enforceable in accordance with its terms;
(f) , and pursuant to the applicable Power of Attorney, such Selling Stockholder has duly and irrevocably has, among other things, authorized the Representatives Attorneys, or any one of the Selling Stockholders, on behalf of such Selling Stockholderthem, to execute and deliver on such Selling Stockholder's behalf this Agreement, on the Y&R Selling Stockholder's behalf the Custody 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 sale and receive delivery of and payment therefor for the Shares to be sold by such Selling Stockholder pursuant hereto;to this Agreement, the Underwriters will own such Shares, free and clear of all restrictions on transfer, liens, encumbrances, security interests, equities and claims whatsoever, other than any such restriction on transfer, lien, encumbrance, security interest, equity or claim created by an Underwriter or resulting from any actions taken by an Underwriter.
(g) Assuming that the sale representations and warranties of the Company in Section 6 hereof are true and accurate in all material respects, the execution and delivery of this Agreement and the Custody Agreement, if any, and Power of Attorney of such Selling Stockholder by or on behalf of such Selling Stockholder’s Shares pursuant to this Agreement , the compliance by such Selling Stockholder with all the provisions hereof and thereof and the performance by such Selling Stockholder of its obligations hereunder and thereunder will not (i) require any consent, approval, authorization or other order of, or qualification with, any court or governmental agency or body (except such as have been obtained or may be required under the Act or the securities or Blue Sky laws of the various states), (ii) conflict with or constitute a breach of any of the terms or provisions of, or a default under, the organizational documents of such Selling Stockholder, if such Selling Stockholder is not prompted an individual, or any indenture, loan agreement, mortgage, lease or other agreement or instrument to which such Selling Stockholder or any spouse of such Selling Stockholder is a party or by which such Selling Stockholder or any information concerning the Company which spouse or property of such Selling Stockholder is not set forth in the Prospectus; andbound or (iii) violate or conflict with any applicable law or any rule, regulation, judgment, order or decree of any court or any governmental body or agency having jurisdiction over such Selling Stockholder or any spouse or property of such Selling Stockholder.
(h) The information in the Prospectus under the caption "Selling Stockholders" which specifically relates to such Selling Stockholder (consisting of such Selling Stockholder's name and any amendment or supplement thereto, number of shares of Common Stock beneficially owned by such Selling Stockholder both before and after the offering contemplated hereby) will not on the date of filing thereof with the Commission pursuant to Rule 424(b) and at execution of this Agreement or on the time of purchase andClosing Date, if applicable, at the additional time of purchase, did not or will not include an contain any untrue statement of a material fact or omit to state a any material fact required to be stated therein or necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading; .
(i) At any time during the Registration Statement did not when it became effective, does not period commencing on the first business day after the date of this Agreement and will not, at from time to time thereafter for such period as in the time reasonable opinion of purchase and any additional time of purchase, contain an untrue statement of counsel for the Underwriters a material fact or omit to state a material fact prospectus is required by law to be stated therein delivered in connection with sales by an Underwriter or necessary dealer, if there is any change in the information referred to make the statements therein not misleading; providedin Section 7(h) above, however, that no such Selling Stockholder makes any warranty or representation with respect to any statement contained in will promptly notify you and the Preliminary Prospectus Supplement, the Registration Statement or the Prospectus in reliance upon and in conformity with information concerning an Underwriter and furnished in writing Company of such change.
(j) Each certificate signed by or on behalf of such Underwriter through you Selling Stockholder and delivered to the Company expressly Underwriters or counsel for use in the Preliminary Prospectus Supplement, the Registration Statement or the Prospectus, Underwriters pursuant to Section 9(e) shall be deemed to be a representation and provided, further, that no Non-Management Selling Stockholder (as defined herein) makes any warranty or representation with respect to any statement contained in the Prospectus or the Registration Statement other than the Selling Stockholder Information (as defined below) relating to such Selling Stockholder furnished by such Non-Management Selling Stockholder. 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, the Registration Statement and Prospectus, and any supplements or amendments thereto as relate to such Selling Stockholder will not contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading; provided, however, that the foregoing representation and warranty, as it relates to such Non-Management Selling Stockholder, is limited in its capacity as such, to the Selling Stockholder Information (Underwriters as defined herein) concerning such Non-Management Selling Stockholder included in to the Registration Statement and Prospectus, and any supplements or amendments thereto. Each Non-Management Selling Stockholder severally confirms and the Underwriters acknowledge that the name, address and number of shares of Common Stock beneficially owned by suchmatters covered thereby.
Appears in 1 contract
Representations and Warranties of the Selling Stockholders. Each Selling Stockholder, severally and not jointly, represents and warrants to each Underwriter of the Underwriters that:
(a) to the extent that This Agreement has been duly authorized, executed and delivered by or on behalf of such Selling Stockholder will be delivering certificate(sStockholder.
(b) representing and/or notice(s) to exercise options for Common Stock to Continental Stock Transfer & Trust Company (the “Custodian”), such Selling Stockholder now is and, at the time of delivery of such Shares and/or notice(s) to exercise (whether at the time of purchase or the additional time of purchase, as the case may be) will be, the lawful owner of the Shares issuable upon exercise of such options to be sold The Custody Agreement signed by such Selling Stockholder pursuant to this Agreementand Sulxxxxx & Worcester LLP, and will have valid and marketable title as custodian (the "Custodian"), relating to the Shares issuable upon exercise of such options, 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 claim, lien, encumbrance, security interest, community property right, restriction on transfer or other defect in title;
(b) to the extent that such Selling Stockholder will be delivering Common Stock to the Custodian, such Selling Stockholder now is and at the time of delivery of such Shares (whether at the time of purchase or the additional time of purchase, as the case may be) will be, the lawful owner deposit of the number of Additional Shares to be sold by such Selling Stockholder pursuant (the "Custody Agreement"), and the Lock-Up Agreement of such Selling Stockholder, has each 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 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. Such Selling Stockholder has duly executed and delivered a Power of Attorney, in the form heretofore furnished to you (a "Power of Attorney"), appointing the persons indicated in Schedule C annexed hereto, and each of them, as each of the Selling Stockholder's attorneys-in-fact (the "Attorneys-in-Fact") with authority to execute and deliver this Agreement on behalf of the Selling Stockholders, to determine the purchase price to be paid by the Underwriters to the Selling Stockholders as provided in Section 1 hereof, to authorize the delivery of the Additional Shares to be sold by the Selling Stockholders hereunder and otherwise to act on behalf of the Selling Stockholders in connection with the transactions contemplated by this Agreement and has and, at the time of delivery thereof, will have valid and marketable title to such Shares, and upon delivery of and payment for such Shares (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 claim, lien, encumbrance, security interest, community property right, restriction on transfer or other defect in title;Custody Agreement.
(c) to the extent that such Such Selling Stockholder will be delivering certificates representing and/or notice(s) to exercise options exercisable for Common Stock to agrees that the Custodian, such Selling Stockholder has and at the time of delivery of such certificates and/or notice(s) to exercise (whether at 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 Additional Shares to be sold by such Selling Stockholder pursuant to this Agreement;
(d) such Selling Stockholder has and at the time of delivery of such Shares (whether at the time of purchase or the additional time of purchaseStockholder, 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;
(e) this Agreement and each Custody Agreement between the Custodian and the Selling Stockholders (each, a “Custody Agreement”) which have been duly executed and delivered by such Selling Stockholder and, placed in custody with respect to the Custody Agreement only, assuming due authorization, execution and delivery by the Custodian, each is a legal, valid and binding agreement of such Selling Stockholder enforceable in accordance with its terms;
(f) such Selling Stockholder has duly and irrevocably authorized are subject to the Representatives interests of the Selling StockholdersUnderwriters, on behalf that the arrangements made for such custody are to that extent irrevocable, and that the obligations of such Selling Stockholder, to execute and deliver this Agreement and any other document necessary or desirable in connection with the transactions contemplated thereby and to deliver the Shares to be sold by such Selling Stockholder and receive payment therefor pursuant hereto;
(g) 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; and
(h) the Prospectus and any amendment or supplement thereto, on the date of filing thereof with the Commission pursuant to Rule 424(b) and at the time of purchase and, if applicable, at the additional time of purchase, did not or will not include an untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading; 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; provided, however, that no Selling Stockholder makes any warranty or representation with respect to any statement contained in the Preliminary Prospectus Supplement, the Registration Statement or the Prospectus in reliance upon and in conformity with information concerning an Underwriter and furnished in writing by or on behalf of such Underwriter through you to the Company expressly for use in the Preliminary Prospectus Supplement, the Registration Statement or the Prospectus, and provided, further, that no Non-Management Selling Stockholder (as defined herein) makes any warranty or representation with respect to any statement contained in the Prospectus or the Registration Statement other than the Selling Stockholder Information (as defined below) relating to such Selling Stockholder furnished by such Non-Management Selling Stockholder. 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, the Registration Statement and Prospectus, and any supplements or amendments thereto as relate to such Selling Stockholder will not contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading; provided, however, that the foregoing representation and warranty, as it relates to such Non-Management Selling Stockholder, is limited to the Selling Stockholder Information (as defined herein) concerning such Non-Management Selling Stockholder included in the Registration Statement and Prospectus, and any supplements or amendments thereto. Each Non-Management Selling Stockholder severally confirms and the Underwriters acknowledge that the name, address and number of shares of Common Stock beneficially owned by such
Appears in 1 contract
Samples: Underwriting Agreement (Universal Hospital Services Inc)
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 and as of the Closing Time, and agrees with each Underwriter Underwriter, that:
(a) such Selling Stockholder 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 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 may be limited by bankruptcy, insolvency, reorganization, moratorium or similar laws affecting creditors’ rights generally, and by general equitable principles, and except to the extent that such Selling Stockholder will the indemnification and contribution provisions of Section 11 hereof may be delivering certificate(slimited by federal or state securities laws and public policy considerations in respect thereof;
(b) representing and/or notice(s) to exercise options for Common Stock to Continental Stock Transfer & Trust Company (the “Custodian”), such Selling Stockholder now is andhas, at and immediately prior to the time Closing Time will have, (i) a valid “security entitlement” (within the meaning of delivery Section 8-501 of the New York Uniform Commercial Code (the “New York UCC”)) in respect of the Shares to be sold by such Selling Stockholder hereunder, in each case free and clear of all liens, encumbrances and claims whatsoever (other than pursuant to the Custody Agreement and Power of Attorney, as applicable), and (ii) full legal power and authority to enter into this Agreement and to sell, transfer and deliver a security entitlement in respect of such Shares and/or notice(sto the Underwriters hereunder, and to make the representations, warranties and agreements made by such Selling Stockholder herein. Upon (1) to exercise (whether at the time of purchase or the additional time of purchase, as the case may be) will be, the lawful owner of payment for the Shares issuable upon exercise of such options to be sold by such Selling Stockholder pursuant to this Agreement, (2) delivery of such Shares, as directed by the Underwriters, to Cede & Co., or such other nominee as may be designated by DTC, (3) registration of such Shares in the name of DTC, Cede & Co., or such other nominee and will (4) DTC indicating by book entries on its books that security entitlements with respect to such Shares have valid and marketable title been credited to the Shares issuable upon exercise of such optionsUnderwriters’ securities accounts, 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), x) the Underwriters will acquire a valid and marketable title “security entitlement” (within the meaning of Section 8-501 of the New York UCC) with respect to such Shares free and clear no action based on an “adverse claim” (as defined in Section 8-102 of any claimthe New York UCC) may be asserted against the Underwriters with respect to such security entitlement, lien, encumbrance, security interest, community property right, restriction on transfer or other defect in title;
and (by) to the extent that such Selling Stockholder will DTC shall be delivering Common Stock to the Custodian, such Selling Stockholder now is and at the time of delivery a “protected purchaser” of such Shares (whether at within the time meaning of purchase or the additional time of purchase, as the case may be) will be, the lawful owner Section 8-303 of the number New York UCC (assuming, in each case, that (A) none of Shares to be sold by DTC, Cede & Co., any such Selling Stockholder pursuant to this Agreement and has and, at the time of delivery thereof, other nominee or any Underwriter will have valid and marketable title “notice of any adverse claim” to any of such SharesShares within the meaning of Section 8-105 of the New York UCC, (B) DTC will be registered as a “clearing corporation” within the meaning of Section 8-102 of the New York UCC, and upon delivery (C) the jurisdiction of and payment for such Shares (whether at the time of purchase or the additional time of purchase, as the case may beDTC is New York), the Underwriters will acquire valid and marketable title to such Shares free and clear of any claim, lien, encumbrance, security interest, community property right, restriction on transfer or other defect in title;
(c) to the extent that performance of this Agreement, the Custody Agreement and the Power of Attorney by such Selling Stockholder will be delivering certificates representing and/or notice(s) to exercise options exercisable for Common Stock to and the Custodian, consummation by such Selling Stockholder has of the transactions contemplated herein and at therein will not conflict with, or result in any breach of, or constitute a default under (nor constitute any event which with notice, lapse of time, or both would constitute a breach of, or default under), (i) any provision of the time certificate or articles of delivery incorporation, other charter or similar constitutive documents, or the bylaws of such certificates and/or notice(sSelling Stockholder, (ii) any provision of any license, indenture, mortgage, deed of trust, loan or credit agreement or other agreement or instrument to exercise which such Selling Stockholder is a party or by which it or its properties may be bound or affected or (whether at 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 the time creation or imposition of purchase any lien, charge, claim or the additional time encumbrance upon any property or asset of purchase, as the case may be) will have, full legal right, power and capacity, and any approval required by law such Selling Stockholder (other than those imposed by pursuant to the Custody Agreement and Power of Attorney, as applicable);
(d) no approval, authorization, consent or order of or filing with any federal, state, local or foreign governmental or regulatory commission, board, body, authority or agency having jurisdiction over such Selling Stockholder or any of its properties is required in connection with such Selling Stockholder’s execution, delivery and performance of this Agreement, its consummation of the transactions contemplated herein, and its sale and delivery of the Shares, other than (i) such as have been obtained or made, or will have been obtained or made at the Closing Time, (ii) such approvals as may be required under the Securities Act and the Exchange Act, the NYSE or the rules and regulations of FINRA and (iii) any necessary qualification under the securities or blue sky laws of certain jurisdictions), to sell, assign, transfer and deliver such options exercisable for the number of various jurisdictions in which the Shares to be sold by such Selling Stockholder pursuant to this Agreement;
(d) such Selling Stockholder has and at the time of delivery of such Shares (whether at 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 are being offered 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 AgreementUnderwriters;
(e) this Agreement and each Custody Agreement between the Custodian and the Selling Stockholders (each, a “Custody Agreement”) have been duly executed and delivered by such Selling Stockholder and, with respect to the Custody Agreement only, assuming due authorization, execution and delivery by the Custodian, each is a legal, valid and binding agreement of such Selling Stockholder enforceable in accordance with its terms;
(f) such Selling Stockholder has duly and irrevocably authorized the Representatives of the Selling Stockholders, 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 thereby and to deliver the Shares to be sold by such Selling Stockholder and receive payment therefor pursuant hereto;
(g) the sale of such Selling Stockholder’s Shares pursuant to this Agreement 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; and;
(hf) the Prospectus and any amendment or supplement thereto, on the date of filing thereof with the Commission pursuant to Rule 424(b) and at the time of purchase and, if applicable, at the additional time of purchase, did not or will not include an untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading; 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; provided, however, that no Selling Stockholder makes any warranty or representation all information with respect to any statement contained in the Preliminary Prospectus Supplement, the Registration Statement or the Prospectus in reliance upon and in conformity with information concerning an Underwriter and furnished in writing by or on behalf of such Underwriter through you to the Company expressly for use in the Preliminary Prospectus Supplement, the Registration Statement or the Prospectus, and provided, further, that no Non-Management Selling Stockholder (as defined herein) makes any warranty or representation with respect to any statement contained in the Prospectus or the Registration Statement other than the Selling Stockholder Information (as defined below) relating to such Selling Stockholder furnished by such Non-Management Selling Stockholder. When contained in the Registration Statement becomes as of its effective date and at all times subsequent thereto through the latest as of the time of purchasedate hereof, additional time of purchase or the termination of the offering of the Shares, the Registration Statement did not and Prospectus, and any supplements or amendments thereto as relate to such Selling Stockholder 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 not misleading; each of the Prospectus, and any amendment or supplement thereto, as of the applicable filing date, and the Disclosure Package, as of the Initial Sale Time, did not and will not contain an untrue statement of a material fact or omit to state a material fact necessary to make the statements therein in the light of the circumstances under which they were made, not misleading; provided, however, that the foregoing this representation and warrantywarranty shall only apply to any statements or omissions in the Registration Statement, the Disclosure Package and the Prospectus and any amendment or supplement thereto, made in reliance upon and in conformity with written information furnished by or on behalf of such Selling Stockholder specifically for use in the Registration Statement, the Disclosure Package or the Prospectus, together with any amendment or supplement thereto used by the Company or any Underwriter, as the case may be, it relates 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 Non-Management Selling Stockholder in the Registration Statement, the Disclosure Package and the Prospectus under the heading “Selling Stockholders” and the footnotes thereunder, excluding any percentages set forth therein (the “Selling Stockholder Information”);
(g) such Selling Stockholder has not distributed and will not distribute 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 intended, or which would reasonably be expected, to cause or result in, under the Securities Act, the Exchange Act or otherwise, in, 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, among other things, 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 Representatives or legal counsel for the Underwriters for any legal, tax or accounting advice in connection with the offering and sale of the Shares;
(j) 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 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, to the knowledge of such Selling Stockholder, is limited any officer, director, agent or employee of the such Selling Stockholder purporting to act on behalf of such Selling Stockholder or any of its Subsidiaries has, since January 1, 2013, and, to the knowledge of the such Selling Stockholder’s current chief executive officer or chief financial officer (or, if such Selling Stockholder Information (as defined herein) concerning does not have officers the chief executive officer and chief financial officer of its general partner, managing member, manager or other person having a similar managerial role), if such Non-Management Selling Stockholder included is an entity, or such Selling Stockholder, if such Selling Stockholder is a natural person, neither such Selling Stockholder nor and of its subsidiaries , nor any officer, director, agent or employee of such Selling Stockholder purporting to act on behalf of such Selling Stockholder or any of its subsidiaries has, prior to January 1, 2013 (i) made any payment to any state, federal or foreign governmental officer or official, or other person charged with similar public or quasi-public duties, in each case in violation of the FCPA or (ii) violated any other applicable provision of the FCPA;
(l) neither such Selling Stockholder nor any of its subsidiaries, nor, to the knowledge of such Selling Stockholder, any employee or agent of such Selling Stockholder or any of its subsidiaries purporting to act on behalf of such Selling Stockholder or any of its subsidiaries, has made any payment of funds of such Selling Stockholder or any of its subsidiaries or received or retained any funds in violation of any Anti-Money Laundering Laws, and no action, suit or proceeding by or before any court or governmental agency, authority or body or any arbitrator involving such Selling Stockholder or any of its subsidiaries with respect to the Anti-Money Laundering Laws is pending or, to the knowledge of such Selling Stockholder, threatened;
(m) neither such Selling Stockholder nor any of its subsidiaries, nor to the knowledge of such Selling Stockholder, any officer, director, agent, employee or affiliate of Selling Stockholder or any of its subsidiaries, is currently the target of or reasonably likely to become the target of any U.S. sanctions administered by OFAC; and such 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 of its subsidiaries, joint venture partner or other person or entity, for the purpose of financing the activities of any person currently the target of or reasonably likely to become the target of any U.S. sanctions administered by OFAC;
(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 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 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, and any supplements or amendments thereto. Each Non-Management such Selling Stockholder severally confirms and the Underwriters acknowledge that the name, address and number is not a member of shares or an affiliate of Common Stock beneficially owned by suchor associated with any member of FINRA.
Appears in 1 contract
Representations and Warranties of the Selling Stockholders. Each Selling Stockholder, severally and not jointly, represents represents, warrants, and warrants covenants to each Underwriter that:
(a) to the extent that such Such Selling Stockholder will be delivering certificate(s) representing and/or notice(s) has full power and authority to exercise options for Common Stock to Continental Stock Transfer & Trust Company (the “Custodian”), such Selling Stockholder now is and, at the time of delivery of such Shares and/or notice(s) to exercise (whether at the time of purchase or the additional time of purchase, as the case may be) will beenter into this Agreement, the lawful owner Custody Agreement and the Power of Attorney. All authorizations and consents necessary for the Shares issuable upon exercise of such options to be sold execution and delivery by such Selling Stockholder pursuant to this Agreementof the Custody Agreement and Power of Attorney, and will have valid and marketable title to for the Shares issuable upon exercise execution of this Agreement on behalf of such optionsSelling Stockholder, 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 claim, lien, encumbrance, security interest, community property right, restriction on transfer or other defect in title;
(b) to the extent that such Selling Stockholder will be delivering Common Stock to the Custodian, such Selling Stockholder now is and at the time of delivery of such Shares (whether at the time of purchase or the additional time of purchase, as the case may be) will be, the lawful owner have been given. Each of the number Custody Agreement and Power of Shares to be sold by such Selling Stockholder pursuant to Attorney and this Agreement and has and, at the time of delivery thereof, will have valid and marketable title to such Shares, and upon delivery of and payment for such Shares (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 claim, lien, encumbrance, security interest, community property right, restriction on transfer or other defect in title;
(c) 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 at 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 pursuant to this Agreement;
(d) such Selling Stockholder has and at the time of delivery of such Shares (whether at 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 Shares in the manner provided in this Agreement;
(e) this Agreement and each Custody Agreement between the Custodian and the Selling Stockholders (each, a “Custody Agreement”) have been duly authorized, executed and delivered by or on behalf of such Selling Stockholder and, with respect to the Custody Agreement only, assuming due authorization, execution and delivery by the Custodian, each is constitutes a legal, valid and binding agreement of such Selling Stockholder and is enforceable against such Selling Stockholder in accordance with its terms;the terms thereof and hereof.
(fb) such Such Selling Stockholder has duly now has, and irrevocably authorized at the Representatives time of the Selling Stockholdersdelivery thereof hereunder will have, on behalf of such Selling Stockholder, (i) good and marketable title to execute and deliver this Agreement and any other document necessary or desirable in connection with the transactions contemplated thereby and to deliver the Shares to be sold by such Selling Stockholder hereunder, free and receive clear of all liens, encumbrances and claims whatsoever (other than pursuant to the Custody Agreement and the Power of Attorney), and (ii) full legal right and power, and all authorizations and approvals required by law, to sell, transfer and deliver such Shares to the Underwriters hereunder and to make the representations, warranties and agreements made by such Selling Stockholder herein. Upon the delivery of and payment therefor pursuant hereto;for such Shares hereunder, such Selling Stockholder will deliver good and marketable title thereto, free and clear of all liens, encumbrances and claims whatsoever.
(gc) On the Option 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 Shares to be sold by such Selling Stockholder to the several 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.
(d) The performance of this Agreement and the consummation of the transactions contemplated hereby will not 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 obligation under, if such Selling Stockholder is a corporation or partnership, the organizational documents of such Selling Stockholder’s , or, as to all such Selling Stockholders, any indenture, mortgage, deed of trust, voting trust agreement, loan agreement, bond, debenture, note agreement or other evidence of indebtedness, lease, contract or other agreement or instrument to which such Selling Stockholder is a party or by which such Selling Stockholder or any of its property is bound or affected, or under any ruling, decree, judgment, order, statute, rule or regulation of any court or other governmental agency or body having jurisdiction over such Selling Stockholder or the property of such Selling Stockholder.
(e) No consent, approval, authorization or order of, or any filing or declaration with, any court or governmental agency or body is required for the consummation by such Selling Stockholder of the transactions on its part contemplated herein and in the Custody Agreement and Power of Attorney, except such as have been obtained under the Act or the Rules and Regulations and such as may be required under state securities or Blue Sky laws or the by-laws and rules of the NASD in connection with the purchase and distribution by the Underwriters of the Shares pursuant to this Agreement is not prompted be sold by such Selling Stockholder.
(f) Such Selling Stockholder has no knowledge of any information concerning the Company which is material fact or condition not set forth in the Prospectus; and
(h) the Prospectus and any amendment or supplement thereto, on the date of filing thereof with the Commission pursuant to Rule 424(b) and at the time of purchase and, if applicable, at the additional time of purchase, did not or will not include an untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading; 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; provided, however, that no Selling Stockholder makes any warranty or representation with respect to any statement contained in the Preliminary Prospectus Supplement, the Registration Statement or the Prospectus in reliance upon and in conformity with information concerning an Underwriter and furnished in writing by which has adversely affected, or on behalf may adversely affect, the business, properties, business prospects, condition (financial or otherwise) or results of such Underwriter through you to operations of the Company expressly for use in the Preliminary Prospectus Supplement, the Registration Statement or the Prospectusand its subsidiaries, and provided, further, that no Non-Management the sale of the Shares proposed to be sold by such Selling Stockholder is not prompted by any such knowledge.
(as defined hereing) makes any warranty or representation All information with respect to any statement contained in the Prospectus or the Registration Statement other than the Selling Stockholder Information (as defined below) relating to such Selling Stockholder furnished by such Non-Management Selling Stockholder. 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, contained in the Registration Statement and Prospectusthe Prospectus (as amended or supplemented, if the Company shall have filed with the Commission any amendment or supplement thereto) complied and will comply with all applicable provisions of the Act and the Rules and Regulations, contains and will contain all statements required to be stated therein in accordance with the Act and the Rules and Regulations, and any supplements or amendments thereto as relate to such Selling Stockholder 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; provided.
(h) To the knowledge of such Selling Stockholder, howeverwithout conducting an independent inquiry, the representations and warranties of the Company contained in Section 3 are true and correct.
(i) Other than as permitted by the Act and the Rules and Regulations, such Selling Stockholder has not distributed and will not distribute any preliminary prospectus, the Prospectus or any other offering material in connection with the offering and sale of the Shares. Such Selling Stockholder has not taken, directly or indirectly, any action designed, or which might reasonably be expected, to cause or result in, under the Act or otherwise, or which has caused or resulted in, stabilization or manipulation of the price of any security of the Company to facilitate the sale or resale of the Shares.
(j) Certificates in negotiable form for the Option Shares to be sold hereunder by such Selling Stockholders have been placed in custody, for the purpose of making delivery of such Option Shares under this Agreement, under the Custody Agreement which appoints the Company as Custodian for each Selling Stockholder. Such Selling Stockholder agrees that the Shares represented by the certificates held in custody for him under the Agreement and Power of Attorney are for the benefit of and coupled with and subject to the interest hereunder of the Custodian, the Attorneys, the Underwriters, each other Selling Stockholder and the Company, that the foregoing representation arrangements made by such Selling Stockholder for such custody and warrantythe appointment of the Custodian and the Attorneys by such Selling Stockholder are irrevocable, as it relates to and that the obligations of such Non-Management Selling StockholderStockholder 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 is limited liquidated or if any other such event should occur before the delivery of the Shares hereunder, certificates for the Shares shall be delivered by the Custodian in accordance with the terms and conditions of this Agreement and actions taken by the Attorneys and the Custodian pursuant to the Selling Stockholder Information (as defined herein) concerning such Non-Management Selling Stockholder included in the Registration Statement and Prospectus, and any supplements or amendments thereto. Each Non-Management Selling Stockholder severally confirms Custody Agreement and the Underwriters acknowledge that 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 nameCustodian or the Attorneys, address and number or either of shares of Common Stock beneficially owned by suchthem, shall have received notice thereof.
Appears in 1 contract
Samples: Underwriting Agreement (Hologic Inc)
Representations and Warranties of the Selling Stockholders. Each of the Selling StockholderStockholders, severally and not jointly, represents and warrants to each Underwriter thatas follows:
(a) to the extent that such Each Selling Stockholder will be delivering certificate(s) representing and/or notice(s) to exercise options for Common Stock to Continental Stock Transfer & Trust Company (the “Custodian”), such Selling Stockholder now is and, at the time of delivery of such Shares and/or notice(s) to exercise (whether at the time of purchase or the additional time of purchase, as the case may be) will be, the lawful owner of the Shares issuable upon exercise of such options to be sold by such Selling Stockholder pursuant to this Agreement, and will have valid and marketable title to the Shares issuable upon exercise of such options, 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 claim, lien, encumbrance, security interest, community property right, restriction on transfer or other defect in title;
(b) to the extent that such Selling Stockholder will be delivering Common Stock to the Custodian, such Selling Stockholder now is and at the time of delivery of such Shares (whether at the time of purchase or the additional time of purchase, as the case may be) will be, the lawful owner of the number of Shares to be sold by such thereby, and on the Closing Date (as defined herein) each Selling Stockholder pursuant to this Agreement and has and, at the time of delivery thereof, will have valid good and marketable clear title to such Shares, free of all restrictions on transfer, liens, encumbrances, security interests and claims, and full right, power and authority to effect the sale and delivery of such Shares; and upon the delivery of and payment for such Shares (whether at the time of purchase or the additional time of purchasepursuant to this Agreement, as the case may be), the Underwriters will acquire valid good and marketable clear title to such these Shares will pass to the Underwriters, free and clear of any claimall restrictions on transfer, lienliens, encumbranceencumbrances, security interest, community property right, restriction on transfer or other defect in title;interests and claims.
(cb) to the extent that such Each Selling Stockholder will be delivering certificates representing and/or notice(s) to exercise options exercisable for Common Stock to has, and on the Custodian, such Selling Stockholder has and at the time of delivery of such certificates and/or notice(s) to exercise (whether at the time of purchase or the additional time of purchase, as the case may be) Closing Date will have, full legal right, power and capacityauthority to enter into this Agreement, 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 pursuant to this Agreement;
(d) such Selling Stockholder has and at the time of delivery of such Shares (whether at 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 Shares in the manner provided in this Agreement;
(e) this herein. This Agreement and each Custody Agreement between the Custodian and the Selling Stockholders (each, a “Custody Agreement”) have has been duly authorized, executed and delivered by such one or more of the Attorneys-in-Fact on behalf of each Selling Stockholder andStockholder, with respect to the Custody and this Agreement only, assuming due authorization, execution and delivery by the Custodian, each is a legal, valid and binding agreement of such each Selling Stockholder enforceable against each Selling Stockholder in accordance with its terms;, except as rights to indemnity and contribution hereunder may be limited by applicable law.
(fc) such Each Selling Stockholder has duly executed and irrevocably authorized delivered the Representatives Custody Agreement and Power of Attorney in the forms previously delivered to the Underwriters, appointing ______________ and ______________, and each of them as each Selling StockholdersStockholder's attorney-in-fact (the "Attorney-in-Fact"), on behalf and the respective Custody Agreement and Power of Attorney are valid and binding agreements of such Selling Stockholder. The Attorney-in-Fact is authorized to execute, to execute deliver and deliver perform this Agreement and any other document necessary or desirable in connection with on behalf of the transactions contemplated thereby Selling Stockholder, and to deliver the Shares to be sold by such Selling Stockholder and receive hereunder, to accept payment therefor and otherwise to act on behalf of such Selling Stockholder in connection with this Agreement. Certificates, in suitable form for transfer by delivery or accompanied by duly executed instruments of transfer or assignment in blank, representing the Shares to be sold by such Selling Stockholder hereunder have been deposited with the Custodian pursuant hereto;to the Custody Agreement for the purpose of delivery pursuant to this Agreement. Such Selling Stockholder agrees that the shares of Common Stock represented by the certificates on deposit with the Custodian are subject to the interest of the Underwriters hereunder, that the arrangements made for such custody and the appointment of the Attorney-in-Fact are to that extent irrevocable, and that the obligations of such Selling Stockholder hereunder shall not be terminated except as provided in this Agreement and the Custody Agreement. If such Selling Stockholder should die or become incapacitated or if any other event should occur, before the delivery of the Shares of such Selling Stockholder hereunder, the certificates for such Shares deposited with the Custodian shall be delivered by the Custodian in accordance with the terms and conditions of this Agreement as if such death, incapacity or other event had not occurred, regardless of whether or not the Custodian or the Attorney-in-Fact shall have received notice thereof.
(gd) All authorizations and consents necessary for the execution and delivery of this Agreement, the Custody Agreement, and Power of Attorney on behalf of such Selling Stockholder and for the sale and delivery of the Shares to be sold by such Selling Stockholder hereunder had been given or obtained, except as may be required by the Securities Act or state securities laws; and the performance of this Agreement, the Custody Agreement, and Power of Attorney and the consummation of the transactions contemplated hereby and thereby by each Selling Stockholder will not result in a breach or violation of, or conflict with, any of the terms or provisions of, or constitute a default by a Selling Stockholder under, any indenture, mortgage, deed of trust, trust (constructive or other), loan agreement, lease, franchise, license or other agreement or instrument to which the Selling Stockholder or any of his or its properties is bound, any statute, or any judgment, decree, order, rule or regulation of any court or governmental agency or body applicable to such Selling Stockholder or any of his properties.
(e) Such Selling Stockholder has not taken, and will not take, directly or indirectly, any action designed to, or which might reasonably be expected to, cause or result in stabilization or manipulation of the price of any security of the Company to facilitate the sale or resale of the Shares pursuant to the distribution contemplated by this Agreement, and other than as permitted by the Securities Act, such Selling Stockholder has not distributed and will not distribute any prospectus or other offering material in connection with the offering and sale of the Shares.
(f) To the knowledge of such Selling Stockholder’s Shares pursuant to , the representations and warranties of the Company contained in Section 1 of this Agreement are true and correct; such Selling Stockholder has reviewed and is not prompted by any information concerning familiar with the Company which is not set forth in the Prospectus; and
(h) the Prospectus and any amendment or supplement thereto, on the date of filing thereof Registration Statement as originally filed with the Commission pursuant to Rule 424(b) and at the time of purchase and, if applicable, at Preliminary Prospectus contained therein; the additional time of purchase, did not or will Preliminary Prospectus does not include an any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading; and such Selling Stockholder is not prompted to sell 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 Shares to be stated therein or necessary to make the statements therein not misleading; provided, however, that no sold by such Selling Stockholder makes by any warranty or representation with respect to any statement contained information concerning the Company that is not set forth in the Preliminary Prospectus Supplement, the Registration Statement or the Prospectus in reliance upon and in conformity with information concerning an Underwriter and furnished in writing by or on behalf of such Underwriter through you to Effective Prospectus.
(g) At the Company expressly for use in the Preliminary Prospectus Supplement, the Registration Statement or the Prospectus, and provided, further, that no Non-Management Selling Stockholder (as defined herein) makes any warranty or representation with respect to any statement contained in the Prospectus or the Registration Statement other than the Selling Stockholder Information (as defined below) relating to such Selling Stockholder furnished by such Non-Management Selling Stockholder. When time the Registration Statement becomes effective and at all times subsequent thereto through the latest (i) such parts of the time of purchase, additional time of purchase or the termination of the offering of the Shares, the Registration Statement and Prospectus, any amendments and any supplements or amendments thereto as relate specifically refer to such Selling Stockholder will not contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading; provided, however, that misleading and (ii) such parts of the foregoing representation Preliminary Prospectus and warranty, Effective Prospectus as it relates specifically refer to such Non-Management Selling Stockholder will not include an untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading.
(h) No approval, consent, order, authorization, designation, declaration or filing by or with any regulatory body, administrative or other governmental body is necessary in connection with the execution and delivery of this Agreement by such Selling Stockholder, is limited to and the consummation by such Selling Stockholder Information of the transactions herein contemplated (other than as defined hereinrequired by the Securities Act or by state securities laws).
(i) concerning For a period of 120 days from the effective date of the Registration Statement, such Non-Management Selling Stockholder included in will not, directly or indirectly, sell, offer to sell, grant any option for the Registration Statement and Prospectussale of, and or otherwise dispose of any supplements or amendments thereto. Each Non-Management Selling Stockholder severally confirms and the Underwriters acknowledge that the name, address and number of shares of Common Stock beneficially owned Stock, other than to the Underwriters pursuant to this Agreement, without the prior written consent of Equitable, on behalf of the Underwriters.
(j) In order to document the Underwriters' compliance with the reporting and withholding provisions of the Internal Revenue Code of 1986, as amended, with respect to the transactions herein contemplated, such Selling Stockholder agrees to deliver to you prior to or at the First Closing Date (as hereinafter defined), a properly completed and executed United States Treasury Department Form W-9 (or other applicable form or statement specified by suchTreasury Department regulations in lieu thereof).
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Representations and Warranties of the Selling Stockholders. Each Selling Stockholder, severally and not jointly, represents and warrants to each Underwriter that:
(a) to the extent that such Selling Stockholder will be delivering certificate(s) representing and/or notice(s) to exercise options for Common Stock to Continental Stock Transfer & Trust Company (the “Custodian”), such Selling Stockholder now is and, at the time of delivery of such Shares and/or notice(s) to exercise (whether at the time of purchase or the additional time of purchase, as the case may be) will be, the lawful owner of the Shares issuable upon exercise of such options to be sold by such Selling Stockholder pursuant to this Agreement, and will have valid and marketable title to the Shares issuable upon exercise of such options, 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 claim, lien, encumbrance, security interest, community property right, restriction on transfer or other defect in title;
(b) to the extent that such Selling Stockholder will be delivering Common Stock to the Custodian, such Selling Stockholder now is and at the time of delivery of such Shares (whether at the time of purchase or the 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 and has and, at the time of delivery thereof, will have valid and marketable title to such Shares, and upon delivery of and payment for such Shares (whether at the time of purchase or the additional time of purchase, as the case may be)Shares, the Underwriters will acquire valid and marketable title to such Shares free and clear of any claim, lien, encumbrance, security interest, community property right, restriction on transfer or other defect in title;
(cb) 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 Custodianhas, such Selling Stockholder has and at the time of delivery of such certificates and/or notice(s) to exercise (whether at the time of purchase or the additional time of purchase, as the case may be) Shares 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 various jurisdictions in which the number of Shares to be sold by such Selling Stockholder pursuant to this Agreement;
(d) such Selling Stockholder has and at the time of delivery of such Shares (whether at 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 are being offered by the Act and the securities or blue sky laws of certain jurisdictionsUnderwriters), to sell, assign, transfer and deliver such Shares in the manner provided in this Agreement;
(ec) this Agreement Agreement, the Powers of Attorney and each the Custody Agreement between among the Custodian Company, as custodian, and the Selling Stockholders (each, a “the "Custody Agreement”") have been duly executed and delivered by such Selling Stockholder and, with respect to the Custody Agreement only, assuming due authorization, execution and delivery by the Custodian, each is a legal, valid and binding agreement of such Selling Stockholder enforceable in accordance with its termsrespective terms in the case of this Agreement, as rights to indemnity and contribution hereunder may be limited by securities laws and except as the enforceability hereof may be limited by bankruptcy, insolvency, reorganization, moratorium or similar laws affecting creditors' rights generally and general principles of equity;
(fd) such Selling Stockholder has duly and irrevocably authorized the Representatives of the Selling Stockholders, 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 thereby and to deliver the Shares to be sold by such Selling Stockholder and receive payment therefor pursuant hereto;
(g) 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; and
(h) the Prospectus and any amendment or supplement thereto, on the date of filing thereof with the Commission pursuant to Rule 424(b) and at the time of purchase and, if applicable, at the additional time of purchase, did not or will not include an untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading; 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; provided, however, that no Selling Stockholder makes any warranty or representation with respect to any statement contained in the Preliminary Prospectus Supplement, the Registration Statement or the Prospectus in reliance upon and in conformity with information concerning an Underwriter and furnished in writing by or on behalf of such Underwriter through you to the Company expressly for use in the Preliminary Prospectus Supplement, the Registration Statement or the Prospectus, and provided, further, that no Non-Management Selling Stockholder (as defined herein) makes any warranty or representation with respect to any statement contained in the Prospectus or the Registration Statement other than the Selling Stockholder Information (as defined below) relating to such Selling Stockholder furnished by such Non-Management Selling Stockholder. 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, the Registration Statement and Prospectus, and any supplements or amendments thereto as they relate to such Selling Stockholder 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 therein, in light of the circumstances under which they were made, not misleading; provided;
(e) such Selling Stockholder has duly and irrevocably authorized the Representatives of the Selling Stockholders, however, that the foregoing representation and warranty, as it relates to on behalf of such Non-Management Selling Stockholder, is limited 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 Information and receive payment therefor pursuant hereto; and
(as defined hereinf) the sale of such Selling Stockholder's Shares pursuant to this Agreement is not prompted by any information concerning such Non-Management Selling Stockholder included the Company which is not set forth in the Registration Statement and Prospectus, and any supplements or amendments thereto. Each Non-Management Selling Stockholder severally confirms and the Underwriters acknowledge that the name, address and number of shares of Common Stock beneficially owned by such.
Appears in 1 contract
