Representations and Warranties of the Selling Stockholders. Each Selling Stockholder severally represents and warrants to, and agrees with, each Underwriter, the Company and Arconic that: (a) Such Selling Stockholder has, and immediately prior to the Closing Date, such Selling Stockholder will have, valid title to, or a valid “security entitlement” pursuant to Section 8-102(a)(17) of the New York Uniform Commercial Code (the “NYUCC”) in respect of, the Shares free and clear of all security interests, claims, liens, equities or other encumbrances and the legal right and power, and all authorization and approval required by law, to enter into this Agreement, and to sell, transfer and deliver the Shares or a security entitlement in respect of the Shares. Each Underwriter that has purchased the Shares delivered at the Closing Date to The Depository Trust Company (“DTC”) by making payment therefore as provided herein, and that has the Shares credited by book entry to the “securities account” or “securities accounts” (within the meaning of Section 8-501(a) of the NYUCC) will acquire a security entitlement to the Shares purchased by such Underwriter, and no action based on an “adverse claim” (within the meaning of Section 8-102(a)(1) of the NYUCC) may be asserted against such Underwriter with respect to the Shares. For purposes of this representation, each Selling Stockholder may assume that when such payment, delivery (if necessary) and crediting occur, (i) the Shares will have been registered in the name of Cede & Co. or another nominee designated by DTC, in each case on the Company’s share registry in accordance with its certificate of incorporation, bylaws and applicable law, (ii) DTC is a “securities intermediary” within the meaning of Section 8-102(a)(14) of the NYUCC, (iii) appropriate entries to the accounts of the several Underwriters on the records of DTC will have been made pursuant to the NYUCC, and (iv) the several Underwriters have no notice (within the meaning of Section 8-105 of the NYUCC) of any adverse claim.
Appears in 3 contracts
Samples: Debt Transaction Agreement (Arconic Inc.), Underwriting Agreement (Arconic Inc.), Underwriting Agreement (Alcoa Corp)
Representations and Warranties of the Selling Stockholders. Each of the Selling Stockholder Stockholders severally represents and not jointly represents, warrants to, and agrees with, covenants to each Underwriter, Underwriter and the Company and Arconic thatas follows:
(a) Such Selling Stockholder hasThe Offering Statement, at the time it became qualified, as of the date hereof, and immediately prior to the as of each Closing Date, did not and will not, contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading; provided (i) that such Selling Stockholder’s representations under this Section 4(a) shall only apply to any untrue statement of a material fact or omission to state a material fact made in reliance upon and in conformity with information furnished by such Selling Stockholder, in writing to the Company, relating to such Selling Stockholder expressly for use in the Offering Statement, it being understood and agreed that for the purposes of this Agreement, the only information so furnished by such Selling Stockholder expressly for use in the Offering Statement consists of the legal name, address, and number of shares of Common Stock owned by such Selling Stockholder before and after the Offering and the other information with respect to such Selling Stockholder (excluding percentages) which appear in the table (and corresponding footnotes) under the caption “Security Ownership of Management and Certain Security Holders” (with respect to each Selling Stockholder, the “Selling Stockholder Information”).
(b) The Preliminary Offering Circular did not, as of its date, contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading; provided, however, that (i) such Selling Stockholder’s representations under this Section 4(b) shall only apply to such Selling Stockholder’s Selling Stockholder Information, and (ii) such Selling Stockholder makes no representation or warranty with respect to the statements contained in the Preliminary Offering Circular as provided by the Underwriter in Section 10(c).
(c) The Final Offering Circular will not, as of its date and on each Closing Date, contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading; provided, however, that (i) such Selling Stockholder’s representations under this Section 4(c) shall only apply to such Selling Stockholder’s Selling Stockholder Information, and (ii) such Selling Stockholder makes no representation or warranty with respect to the statements contained in the Final Offering Circular as provided by the Underwriter in Section 10(c).
(d) The Pricing Disclosure Materials and each Testing-the-Waters Communication, when considered together, did not, as of the Applicable Time, contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading, provided, however, that (i) such Selling Stockholder’s representations under this Section 4(d) shall only apply to such Selling Stockholder’s Selling Stockholder Information, and (ii) such Selling Stockholder makes no representation or warranty with respect to the statements contained in the Preliminary Offering Circular as provided by the Underwriter in Section 10(c).
(e) Each Selling Stockholder has full legal right, power and authority to enter into this Agreement and the Escrow Agreement and perform the transactions contemplated hereby and thereby. This Agreement and the Escrow Agreement have each been authorized and validly executed and delivered by each Selling Stockholder and are each a legal, valid and binding agreement of each Selling Stockholder enforceable against each Selling Stockholder in accordance with its terms, subject to the effect of applicable bankruptcy, insolvency or similar laws affecting creditors’ rights generally and equitable principles of general applicability.
(f) Each Selling Stockholder has valid title, free and clear of all liens, encumbrances, equities or adverse claims, and such Selling Stockholder will have, immediately prior to the Closing Date or the Additional Closing Date, as the case may be, valid title toof Shares to be sold at the Closing Date or the Additional Closing date, or a valid “security entitlement” pursuant to Section 8-102(a)(17) of as the New York Uniform Commercial Code (the “NYUCC”) in respect ofcase may be, the Shares by such Selling Stockholder, free and clear of all security interestsliens, claims, liensencumbrances, equities or adverse claims; and, when delivered and paid for in accordance with this Agreement, such Shares will be fully paid and nonassessable and will not be subject to preemptive or similar rights. The holders of the Shares will not be subject to personal liability by reason of being such holders. The Shares, when sold, will conform to the description thereof set forth in the Final Offering Circular in all material respects.
(g) Each of the Selling Stockholders has not engaged in Testing-the-Waters Communications. Each Selling Stockholder has not distributed any Testing-the-Waters Communications other encumbrances than those listed on Schedule C hereto.
(h) Each Selling Stockholder has obtained all authorization, approval, consent, license, order, registration, exemption, qualification or decree of, any court or governmental authority or agency or any sub-division thereof that is required for the performance by each Selling Stockholder of its obligations hereunder and the legal right Irrevocable Power of Attorney and powerCustody Agreement (the “Custody Agreement”) hereinafter referred to, in connection with the sale of the Shares to be sold by such Selling Stockholder hereunder as may be required under federal, state, local and all authorization foreign laws, the Securities Act or the rules and approval required by lawregulations of the Commission thereunder, state securities or Blue Sky laws, the rules and regulations of FINRA or the NASDAQ; such Selling Stockholder has full right, power and authority to enter into this Agreement, Agreement and the Custody Agreement and to sell, assign, transfer and deliver the Shares to be sold by such Selling Stockholder hereunder and the Custody Agreement have each been duly authorized, executed and delivered by such Selling Stockholder.
(i) Other than as previously disclosed to the Underwriter in writing, each Selling Stockholder, or a security entitlement any person acting on behalf of such Selling Stockholder, has not and, except in respect consultation with the Underwriter, will not publish, advertise or otherwise make any announcements concerning the distribution of the Shares. Each Underwriter that , and has purchased not and will not conduct road shows, seminars or similar activities relating to the distribution of the Shares delivered at nor has such Selling Stockholder taken or will it take any other action for the purpose of, or that could reasonably be expected to have the effect of, preparing the market, or creating demand, for the Shares.
(j) Each Selling Stockholder has not distributed and, prior to the later to occur of the last Closing Date and completion of the distribution of the Shares, will not distribute any offering material in connection with the offering and sale of the Shares to The Depository Trust Company be sold by such Selling Stockholder other than each Preliminary Offering Circular, the Pricing Disclosure Materials and the Final Offering Circular, or such other materials as to which the Underwriter shall have consented in writing.
(k) 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 the Underwriter, duly executed and delivered by such Selling Stockholder to [●], as custodian (the “DTCCustodian”), and that such Selling Stockholder has duly executed and delivered such Custody Agreement, in the form heretofore furnished to the Underwriter, appointing the person or persons indicated in Schedule [ ] hereto, and each of them, as such Selling Stockholders’ Attorneys-in-fact (the “Attorneys-in-Fact” or any one 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 making payment therefore the Underwriter 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 of the Selling Stockholders specifically agrees that the Shares represented by the certificates held in custody for such Selling Stockholder under the Custody Agreement, are subject to the interests of the Underwriter hereunder, and that has the arrangements made by such Selling Stockholder for such custody, and the appointment by such Selling Stockholder of the Attorneys-in-Fact by the Custody Agreement, are to that extent irrevocable. Each of the Selling Stockholders specifically agrees that the obligations of such Selling Stockholder hereunder shall not be terminated by operation of law, whether by the death or incapacity of any individual Selling Stockholder, or, in the case of an estate or trust, by the death or incapacity of any executor or trustee or the termination of such estate or trust, or in the case of a partnership, corporation or similar organization, by the dissolution of such partnership, corporation or organization, or by the occurrence of any other event. If any individual Selling Stockholder or any such executor or trustee should die or become incapacitated, or if any such estate or trust should be terminated, or if any such partnership, corporation or similar organization should be dissolved, or if any other such event should occur, before the delivery of the Shares credited hereunder, certificates representing such Shares shall be delivered by book entry to the “securities account” or “securities accounts” (within the meaning on behalf of Section 8-501(a) of the NYUCC) will acquire a security entitlement to the Shares purchased by such Underwriter, and no action based on an “adverse claim” (within the meaning of Section 8-102(a)(1) of the NYUCC) may be asserted against such Underwriter with respect to the Shares. For purposes of this representation, each Selling Stockholder may assume that when such payment, delivery (if necessary) and crediting occur, (i) the Shares will have been registered in the name of Cede & Co. or another nominee designated by DTC, in each case on the Company’s share registry in accordance with its certificate the terms and conditions of incorporationthis Agreement and the Custody Agreement, bylaws and applicable law, (ii) DTC is a “securities intermediary” within actions taken by the meaning of Section 8Attorneys-102(a)(14) of the NYUCC, (iii) appropriate entries to the accounts of the several Underwriters on the records of DTC will have been made in-Fact pursuant to the NYUCCCustody Agreement shall be as valid as if such death, and (iv) incapacity, termination, dissolution or other event had not occurred, regardless of whether or not the several Underwriters Custodian, the Attorneys-in-Fact, or any of them, shall have no received notice (within the meaning of Section 8-105 of the NYUCC) of any adverse claimsuch death, incapacity, termination, dissolution or other event.
Appears in 3 contracts
Samples: Underwriting Agreement, Underwriting Agreement (Adomani, Inc.), Underwriting Agreement (Adomani, Inc.)
Representations and Warranties of the Selling Stockholders. Each Selling Stockholder Stockholder, severally and not jointly with the other Selling Stockholders, represents and warrants to, to Holdings and agrees with, each Underwriter, the Company and Arconic Underwriter that:
(a) Such to the extent that any statements or omissions made in the Registration Statement, the Disclosure Package, the Prospectus or any amendment or supplement thereto are made in reliance upon and in conformity with any information furnished to Holdings by such Selling Stockholder expressly for use therein (such information, the “Selling Stockholder Information”), such Registration Statement did not, as of the Effective Time, contain any untrue statements of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading; the Disclosure Package did not, as of the Applicable Time, contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading; as of the date the Prospectus is filed with the Commission and as of the time of purchase, the Prospectus, as then amended or supplemented, will not contain any untrue statements of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading, it being understood that the only statements provided by a Selling Stockholder are those expressly provided for use in the preparation of Item 7 of Form S-3 with respect to 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) neither the execution, delivery and performance of this Agreement by such Selling Stockholder 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 will conflict with, result in any breach or violation of or constitute a default under (i) the charter, memorandum of association 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 bound or by which any of its properties may be subject, (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 clauses (ii), (iii), (iv) and (v) above, for such as would not materially impair the ability of such Selling Stockholder to perform its obligations hereunder and consummate the transactions contemplated hereby;
(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 or the Bermuda Monetary Authority), with respect to such Selling Stockholder, 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 other than (i) registration of the Shares under the Act, which has been effected , (ii) any necessary qualification under the securities or blue sky laws of the various jurisdictions in which the Shares are being offered by the Underwriter, (iii) under the Conduct Rules of FINRA, (iv) announcements to be made as required by applicable law or rules of any applicable stock exchange, including the Rules Governing the Listing of Securities on The Stock Exchange of Hong Kong Limited (the “Listing Rules”) and the Inside Information Provisions (as defined under the Listing Rules) under Part XIVA of the Securities and Futures Ordinance (Chapter 571, Laws of Hong Kong) or (v) as shall have been obtained or made prior to the time of purchase;
(e) such Selling Stockholder has not 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 Holdings to facilitate the sale or resale of the Shares;
(f) such Selling Stockholder has, and immediately prior to at the Closing Date, such Selling Stockholder time of purchase will have, valid title to, or a valid “security entitlement” pursuant to within the meaning of Section 8-102(a)(17) 501 of the New York Uniform Commercial Code (the “NYUCCUCC”) in respect of, the Shares to be sold by such Selling Stockholder, and as of the time of purchase such Shares will be free and clear of all security interests, claims, liens, equities or other encumbrances and the legal right and power, and all authorization authorizations and approval approvals required by law, law to enter into this Agreement, Agreement and to sell, transfer and deliver the Shares to be sold by such Selling Stockholder or a valid security entitlement in respect of such Shares;
(g) upon payment of the Shares. Each Underwriter that has purchased purchase price for the Shares delivered at to be sold by such Selling Stockholder pursuant to this Agreement, delivery of such Shares, as directed by the Closing Date Underwriter, to The Depository Trust Company Cede & Co. (“DTCCede”) or such other nominee as may be designated by making payment therefore as provided hereinDTC, registration of such Shares in the name of Cede or such other nominee and that has the crediting of such Shares credited by book entry on the books of DTC to the “securities account” or “securities accounts” accounts (within the meaning of Section 8-501(a) of the NYUCCUCC) will acquire a security entitlement to of the Shares purchased by such Underwriter, and no action based on an “Underwriter (assuming that neither DTC nor the Underwriter has notice of any adverse claim” claim (within the meaning of Section 8-102(a)(1) 105 of the NYUCCUCC) to such Shares), (A) under Section 8-501 of the UCC, the Underwriter will acquire a valid security entitlement in respect of such Shares and (B) no action (whether framed in conversion, replevin, constructive trust, equitable lien or other theory) based on any adverse claim (within the meaning of Section 8-102 of the UCC), to such Shares may be asserted against such the Underwriter with respect to the Shares. For such security entitlement; for purposes of this representation, each such Selling Stockholder may assume that when such payment, delivery (if necessary) and crediting occur, (iI) the such Shares will have been registered in the name of Cede & Co. or another nominee designated by DTC, in each case on the Company’s share registry register of members in accordance with its certificate memorandum of incorporationassociation, bylaws bye-laws and applicable law, (iiII) DTC is will be registered as a “securities intermediaryclearing corporation,” within the meaning of Section 8-102(a)(14) 102 of the NYUCCUCC, (iiiIII) appropriate entries to the accounts of the several Underwriters Underwriter on the records of DTC will have been made pursuant to the NYUCCUCC, and (ivIV) to the several Underwriters have no notice extent DTC, or any other securities intermediary which acts as “clearing corporation” with respect to the Shares, maintains any “financial asset” (within the meaning of as defined in Section 8-105 102(a)(9) of the NYUCCUCC) in a clearing corporation pursuant to Section 8-111 of the UCC, the rules of such clearing corporation may affect the rights of DTC or such securities intermediaries and the ownership interest of the Underwriter, (V) claims of creditors of DTC or any other securities intermediary or clearing corporation may be given priority to the extent set forth in Section 8-511(b) and 8-511(c) of the UCC and (VI) if at any adverse claimtime DTC or other securities intermediary does not have sufficient Shares to satisfy claims of all of its entitlement holders with respect thereto then all holders will share pro rata in the Shares then held by DTC or such securities intermediary;
(h) such Selling Stockholder has and, at the time of delivery of the Shares to be sold by such Selling Stockholder pursuant to this Agreement, will have full legal right, power and capacity, to (i) enter into this 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;
(i) this Agreement has been duly executed and delivered by such Selling Stockholder, and is a legal, valid and binding agreement of such Selling Stockholder; and
(j) at the 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 Underwriter hereunder will be fully paid or provided for by such Selling Stockholder, and all laws imposing such taxes will be fully complied with. In addition, any certificate signed by any Selling Stockholder (or any officer of such Selling Stockholder or of any of such Selling Stockholder’s subsidiaries) and delivered to the Underwriter or counsel for the Underwriter 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 the Underwriter.
Appears in 3 contracts
Samples: Underwriting Agreement (NCL CORP Ltd.), Underwriting Agreement (Norwegian Cruise Line Holdings Ltd.), Underwriting Agreement (Norwegian Cruise Line Holdings Ltd.)
Representations and Warranties of the Selling Stockholders. Each Selling Stockholder Stockholder, severally and not jointly with the other Selling Stockholders, represents and warrants to, to Holdings and agrees with, each Underwriter, the Company and Arconic Underwriter that:
(a) Such to the extent that any statements or omissions made in the Registration Statement, the Disclosure Package, the Prospectus or any amendment or supplement thereto are made in reliance upon and in conformity with any information furnished to Holdings by such Selling Stockholder expressly for use therein (such information, the “Selling Stockholder Information”), such Registration Statement did not, as of the Effective Time, contain any untrue statements of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading; the Disclosure Package did not, as of the Applicable Time, contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading; as of the date the Prospectus is filed with the Commission and as of the time of purchase, the Prospectus, as then amended or supplemented, will not contain any untrue statements of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading, it being understood that the only statements provided by a Selling Stockholder are those expressly provided for use in the preparation of Item 7 of Form S-3 with respect to 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) neither the execution, delivery and performance of this Agreement by such Selling Stockholder 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 will conflict with, result in any breach or violation of or constitute a default under (i) the charter, memorandum of association 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 bound or by which any of its properties may be subject, (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 clauses (ii), (iii), (iv) and (v) above, for such as would not materially impair the ability of such Selling Stockholder to perform its obligations hereunder and consummate the transactions contemplated hereby;
(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 or the Bermuda Monetary Authority), with respect to such Selling Stockholder, 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 other than (i) registration of the Shares under the Act, which has been effected , (ii) any necessary qualification under the securities or blue sky laws of the various jurisdictions in which the Shares are being offered by the Underwriter, (iii) under the Conduct Rules of FINRA, (iv) announcements to be made as required by applicable law or rules of any applicable stock exchange, including the Rules Governing the Listing of Securities on The Stock Exchange of Hong Kong Limited (the “Listing Rules”) and the Inside Information Provisions (as defined under the Listing Rules) under Part XIVA of the Securities and Futures Ordinance (Chapter 571, Laws of Hong Kong) or (v) as shall have been obtained or made prior to the time of purchase;
(e) such Selling Stockholder has not 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 Holdings to facilitate the sale or resale of the Shares;
(f) such Selling Stockholder has, and immediately prior to at the Closing Date, such Selling Stockholder time of purchase will have, valid title to, or a valid “security entitlement” pursuant to within the meaning of Section 8-102(a)(17) 501 of the New York Uniform Commercial Code (the “NYUCCUCC”) in respect of, the Shares to be sold by such Selling Stockholder, and as of the time of purchase such Shares will be free and clear of all security interests, claims, liens, equities or other encumbrances and the legal right and power, and all authorization authorizations and approval approvals required by law, law to enter into this Agreement, Agreement and to sell, transfer and deliver the Shares to be sold by such Selling Stockholder or a valid security entitlement in respect of such Shares;
(g) upon payment of the Shares. Each Underwriter that has purchased purchase price for the Shares delivered at to be sold by such Selling Stockholder pursuant to this Agreement, delivery of such Shares, as directed by the Closing Date Underwriter, to The Depository Trust Company Cede & Co. (“DTCCede”) or such other nominee as may be designated by making payment therefore as provided hereinDTC, registration of such Shares in the name of Cede or such other nominee and that has the crediting of such Shares credited by book entry on the books of DTC to the “securities account” or “securities accounts” accounts (within the meaning of Section 8-501(a) of the NYUCCUCC) will acquire a security entitlement to of the Shares purchased by such Underwriter, and no action based on an “Underwriter (assuming that neither DTC nor the Underwriter has notice of any adverse claim” claim (within the meaning of Section 8-102(a)(1) 105 of the NYUCCUCC) to such Shares), (A) under Section 8-501 of the UCC, the Underwriter will acquire a valid security entitlement in respect of such Shares and (B) no action (whether framed in conversion, replevin, constructive trust, equitable lien or other theory) based on any adverse claim (within the meaning of Section 8-102 of the UCC), to such Shares may be asserted against such the Underwriter with respect to the Shares. For such security entitlement; for purposes of this representation, each such Selling Stockholder may assume that when such payment, delivery (if necessary) and crediting occur, (iI) the such Shares will have been registered in the name of Cede & Co. or another nominee designated by DTC, in each case on the Company’s share registry Holdings’ register of members in accordance with its certificate memorandum of incorporationassociation, bylaws bye-laws and applicable law, (iiII) DTC is will be registered as a “securities intermediaryclearing corporation,” within the meaning of Section 8-102(a)(14) 102 of the NYUCCUCC, (iiiIII) appropriate entries to the accounts of the several Underwriters Underwriter on the records of DTC will have been made pursuant to the NYUCCUCC, and (ivIV) to the several Underwriters have no notice extent DTC, or any other securities intermediary which acts as “clearing corporation” with respect to the Shares, maintains any “financial asset” (within the meaning of as defined in Section 8-105 102(a)(9) of the NYUCCUCC) in a clearing corporation pursuant to Section 8-111 of the UCC, the rules of such clearing corporation may affect the rights of DTC or such securities intermediaries and the ownership interest of the Underwriter, (V) claims of creditors of DTC or any other securities intermediary or clearing corporation may be given priority to the extent set forth in Section 8-511(b) and 8-511(c) of the UCC and (VI) if at any adverse claimtime DTC or other securities intermediary does not have sufficient Shares to satisfy claims of all of its entitlement holders with respect thereto then all holders will share pro rata in the Shares then held by DTC or such securities intermediary;
(h) such Selling Stockholder has and, at the time of delivery of the Shares to be sold by such Selling Stockholder pursuant to this Agreement, will have full legal right, power and capacity, to (i) enter into this 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;
(i) this Agreement has been duly executed and delivered by such Selling Stockholder, and is a legal, valid and binding agreement of such Selling Stockholder;
(j) at the 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 Underwriter hereunder will be fully paid or provided for by such Selling Stockholder, and all laws imposing such taxes will be fully complied with; and
(k) such Selling Stockholder represents and warrants that it is not (1) an employee benefit plan subject to Title I of ERISA, (2) a plan or account subject to Section 4975 of the Internal Revenue Code or (3) an entity deemed to hold “plan assets” of any such plan or account under Section 3(42) of ERISA, 29 C.F.R. 2510.3-101, or otherwise. In addition, any certificate signed by any Selling Stockholder (or any officer of such Selling Stockholder or of any of such Selling Stockholder’s subsidiaries) and delivered to the Underwriter or counsel for the Underwriter 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 the Underwriter.
Appears in 2 contracts
Samples: Underwriting Agreement (Norwegian Cruise Line Holdings Ltd.), Underwriting Agreement (NCL CORP Ltd.)
Representations and Warranties of the Selling Stockholders. Each of the Selling Stockholder severally represents Stockholders, individually on its own respective behalf and warrants tonot jointly, or jointly and agrees withseverally, each Underwriter, represent and warrant to the Company and Arconic Underwriters that:
(a) Such Each Selling Stockholder has full power and authority to enter into this Agreement and the Custody Agreement to which it is a party. All authorizations and consents necessary for the execution and delivery by the Selling Stockholders of the Custody Agreement, and for the execution of this Agreement on behalf of the Selling Stockholders, have been given. Each Selling Stockholder has full power and authority to sell, assign, transfer and deliver the Shares to be sold by such Selling Stockholder. Each of this Agreement and the Custody Agreement has been duly executed and delivered by or on behalf of each of the Selling Stockholders and constitutes a valid and binding agreement of each of the Selling Stockholders and is enforceable against each of the Selling Stockholders in accordance with the terms thereof and hereof, except as may be limited by bankruptcy, insolvency, reorganization, moratorium or similar laws affecting creditors’ rights generally, and by general equitable principles, and except to the extent that the indemnification and contribution provisions of Section 11 hereof may be limited by federal or state securities laws and public policy considerations in respect thereof;
(b) Each Selling Stockholder now has, and immediately prior to at the Closing Date, such Time each Initial Selling Stockholder will have, valid and at the applicable Option Closing Time each Option Selling Stockholder will have, (i) good and marketable title to, or a valid “security entitlement” pursuant to Section 8-102(a)(17) of the New York Uniform Commercial Code (the “NYUCC”) in respect of, the Shares to be sold by such Selling Stockholder hereunder, free and clear of all security interests, claims, liens, equities or other encumbrances and claims whatsoever (other than as may exist pursuant to the Custody Agreement), and (ii) full legal right and power, and all authorization authorizations and approval approvals required by law, to enter into this Agreement, and to sell, transfer and deliver 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, each Selling Stockholder will deliver good and marketable title thereto, free and clear of any pledge, lien, encumbrance, security interest or other claim;
(c) At the Closing Time or the 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 the Shares or a security entitlement in respect of the Shares. Each Underwriter that has purchased the Shares delivered at the Closing Date to The Depository Trust Company (“DTC”) be sold by making payment therefore as provided herein, and that has the Shares credited by book entry each Selling Stockholders to the “securities account” Underwriters hereunder will have been fully paid or “securities accounts” (within the meaning of Section 8-501(a) of the NYUCC) will acquire a security entitlement to the Shares purchased provided for by such Underwriter, and no action based on an “adverse claim” (within the meaning of Section 8-102(a)(1) of the NYUCC) may be asserted against such Underwriter each Selling Stockholder with respect to the Shares. For purposes Shares to sold by such Selling Stockholder and all laws imposing such taxes will have been fully complied with;
(d) The performance of this representationAgreement and the consummation of the transactions contemplated herein will not conflict with, each Selling Stockholder may assume that when such paymentor result in any breach of, delivery or constitute a default under (if necessary) and crediting occurnor 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 by-laws of the Selling Stockholders, or (ii) 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 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 such 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, except for such conflicts, breaches or defaults which, individually or in the aggregate, would not have a material adverse effect on the ability of such Selling Stockholder to sell and deliver the Shares to the Underwriters pursuant to this Agreement, or result in the creation or imposition of any lien, charge, claim or encumbrance upon any property or asset of such Selling Stockholder;
(e) No approval, authorization, consent or order of or filing with any Governmental Authority is required in connection with the Selling Stockholders’ 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 registered in obtained at the name of Cede & Co. Closing Time or another nominee designated by DTCthe relevant Option Closing Time, in each as the case on may be, under the Company’s share registry in accordance with its certificate of incorporation, bylaws Securities Act and applicable lawthe Exchange Act, (ii) DTC is a “securities intermediary” within such approvals as have been obtained in connection with the meaning of Section 8-102(a)(14) approval of the NYUCC, quotation of the Shares on The Nasdaq Global Market and (iii) appropriate entries 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) In respect of any information regarding the Selling Stockholders contained 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) and included therein in reliance upon and in conformity with information furnished to the accounts Company by a Selling Stockholder specifically for use in connection with the preparation thereof with respect to the Selling Stockholders, specifically in their respective capacities as Selling Stockholders, complied and will comply in all material respects with all applicable provisions of the several Securities Act and the Securities Act Regulations, contains and will contain all statements of material fact required to be stated therein in accordance with the Securities Act and the Securities Act Regulations, and does not and will not contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary in order to make the statements therein not misleading;
(g) the Selling Stockholders have 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 Representative has consented in advance; and the Selling Stockholders have 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 Stockholders have 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 Stockholders do 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 Stockholders do not have, or have 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 on the records of DTC will have been made pursuant to this Agreement; and the NYUCCSelling Stockholders do 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
(ivk) except as otherwise disclosed to the several Underwriters have no notice (within the meaning of Section 8-105 in writing, none of the NYUCC) Selling Stockholders is a member of or an affiliate of or associated with any adverse claimmember of FINRA.
Appears in 2 contracts
Samples: Underwriting Agreement (ExOne Co), Underwriting Agreement (ExOne Co)
Representations and Warranties of the Selling Stockholders. Each Selling Stockholder Stockholder, severally and not jointly with the other Selling Stockholders, represents and warrants to, to Holdings and agrees with, each Underwriter, the Company and Arconic Underwriter that:
(a) Such to the extent that any statements or omissions made in the Registration Statement, the Disclosure Package, the Prospectus or any amendment or supplement thereto are made in reliance upon and in conformity with any information furnished to Holdings by such Selling Stockholder expressly for use therein (such information, the “Selling Stockholder Information”), such Registration Statement did not, as of the Effective Time, contain any untrue statements of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading; the Disclosure Package did not, as of the Applicable Time, contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading; as of the date the Prospectus is filed with the Commission and as of the time of purchase, the Prospectus, as then amended or supplemented, will not contain any untrue statements of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading, it being understood that the only statements provided by a Selling Stockholder are those expressly provided for use in the preparation of Item 7 of Form S-3 with respect to 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) neither the execution, delivery and performance of this Agreement by such Selling Stockholder 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 will conflict with, result in any breach or violation of or constitute a default under (i) the charter, memorandum of association 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 bound or by which any of its properties may be subject, (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 NYSE), or (v) any decree, judgment or order applicable to such Selling Stockholder or any of its properties, except, in the case of clauses (ii), (iii), (iv) and (v) above, for such as would not materially impair the ability of such Selling Stockholder to perform its obligations hereunder and consummate the transactions contemplated hereby;
(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 NYSE or the Bermuda Monetary Authority), with respect to such Selling Stockholder, 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 other than (i) registration of the Shares under the Act, which has been effected , (ii) any necessary qualification under the securities or blue sky laws of the various jurisdictions in which the Shares are being offered by the Underwriter, (iii) under the Conduct Rules of FINRA, (iv) announcements to be made as required by applicable law or rules of any applicable stock exchange, including the Rules Governing the Listing of Securities on The Stock Exchange of Hong Kong Limited (the “Listing Rules”) and the Inside Information Provisions (as defined under the Listing Rules) under Part XIVA of the Securities and Futures Ordinance (Chapter 571, Laws of Hong Kong) or (v) as shall have been obtained or made prior to the time of purchase;
(e) such Selling Stockholder has not 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 Holdings to facilitate the sale or resale of the Shares;
(f) such Selling Stockholder has, and immediately prior to at the Closing Date, such Selling Stockholder time of purchase will have, valid title to, or a valid “security entitlement” pursuant to within the meaning of Section 8-102(a)(17) 501 of the New York Uniform Commercial Code (the “NYUCCUCC”) in respect of, the Shares to be sold by such Selling Stockholder, and as of the time of purchase such Shares will be free and clear of all security interests, claims, liens, equities or other encumbrances and the legal right and power, and all authorization authorizations and approval approvals required by law, law to enter into this Agreement, Agreement and to sell, transfer and deliver the Shares to be sold by such Selling Stockholder or a valid security entitlement in respect of such Shares;
(g) upon payment of the Shares. Each Underwriter that has purchased purchase price for the Shares delivered at to be sold by such Selling Stockholder pursuant to this Agreement, delivery of such Shares, as directed by the Closing Date Underwriter, to The Depository Trust Company Cede & Co. (“DTCCede”) or such other nominee as may be designated by making payment therefore as provided hereinDTC, registration of such Shares in the name of Cede or such other nominee and that has the crediting of such Shares credited by book entry on the books of DTC to the “securities account” or “securities accounts” accounts (within the meaning of Section 8-501(a) of the NYUCCUCC) will acquire a security entitlement to of the Shares purchased by such Underwriter, and no action based on an “Underwriter (assuming that neither DTC nor the Underwriter has notice of any adverse claim” claim (within the meaning of Section 8-102(a)(1) 105 of the NYUCCUCC) to such Shares), (A) under Section 8-501 of the UCC, the Underwriter will acquire a valid security entitlement in respect of such Shares and (B) no action (whether framed in conversion, replevin, constructive trust, equitable lien or other theory) based on any adverse claim (within the meaning of Section 8-102 of the UCC), to such Shares may be asserted against such the Underwriter with respect to the Shares. For such security entitlement; for purposes of this representation, each such Selling Stockholder may assume that when such payment, delivery (if necessary) and crediting occur, (iI) the such Shares will have been registered in the name of Cede & Co. or another nominee designated by DTC, in each case on the Company’s share registry Holdings’ register of members in accordance with its certificate memorandum of incorporationassociation, bylaws bye-laws and applicable law, (iiII) DTC is will be registered as a “securities intermediaryclearing corporation,” within the meaning of Section 8-102(a)(14) 102 of the NYUCCUCC, (iiiIII) appropriate entries to the accounts of the several Underwriters Underwriter on the records of DTC will have been made pursuant to the NYUCCUCC, and (ivIV) to the several Underwriters have no notice extent DTC, or any other securities intermediary which acts as “clearing corporation” with respect to the Shares, maintains any “financial asset” (within the meaning of as defined in Section 8-105 102(a)(9) of the NYUCCUCC) in a clearing corporation pursuant to Section 8-111 of the UCC, the rules of such clearing corporation may affect the rights of DTC or such securities intermediaries and the ownership interest of the Underwriter, (V) claims of creditors of DTC or any other securities intermediary or clearing corporation may be given priority to the extent set forth in Section 8-511(b) and 8-511(c) of the UCC and (VI) if at any adverse claimtime DTC or other securities intermediary does not have sufficient Shares to satisfy claims of all of its entitlement holders with respect thereto then all holders will share pro rata in the Shares then held by DTC or such securities intermediary;
(h) such Selling Stockholder has and, at the time of delivery of the Shares to be sold by such Selling Stockholder pursuant to this Agreement, will have full legal right, power and capacity, to (i) enter into this 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;
(i) this Agreement has been duly executed and delivered by such Selling Stockholder, and is a legal, valid and binding agreement of such Selling Stockholder;
(j) at the 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 Underwriter hereunder will be fully paid or provided for by such Selling Stockholder, and all laws imposing such taxes will be fully complied with; and
(k) such Selling Stockholder represents and warrants that it is not (1) an employee benefit plan subject to Title I of ERISA, (2) a plan or account subject to Section 4975 of the Internal Revenue Code or (3) an entity deemed to hold “plan assets” of any such plan or account under Section 3(42) of ERISA, 29 C.F.R. 2510.3-101, or otherwise. In addition, any certificate signed by any Selling Stockholder (or any officer of such Selling Stockholder or of any of such Selling Stockholder’s subsidiaries) and delivered to the Underwriter or counsel for the Underwriter 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 the Underwriter.
Appears in 2 contracts
Samples: Underwriting Agreement (NCL CORP Ltd.), Underwriting Agreement (Norwegian Cruise Line Holdings Ltd.)
Representations and Warranties of the Selling Stockholders. Each Selling Stockholder Stockholder, severally and not jointly, represents and warrants to, to the Underwriter and agrees with, each Underwriter, the Company and Arconic that:
(a) Such Selling Stockholder has, and immediately prior is the record owner of the Shares to the Closing Date, be sold by such Selling Stockholder will have, valid title to, or a valid “security entitlement” pursuant to Section 8-102(a)(17) of the New York Uniform Commercial Code (the “NYUCC”) in respect of, the Shares hereunder free and clear of all security interests, claims, liens, encumbrances, equities or other encumbrances and the legal right claims and powerhas duly endorsed such Shares in blank, and all authorization and approval required by law, to enter into this Agreement, and to sell, transfer and deliver assuming that the Underwriter acquires its interest in the Shares or a security entitlement in respect of the Shares. Each Underwriter that it has purchased the Shares delivered at the Closing Date to The Depository Trust Company (“DTC”) by making payment therefore as provided herein, and that has the Shares credited by book entry to the “securities account” or “securities accounts” (within the meaning of Section 8-501(a) of the NYUCC) will acquire a security entitlement to the Shares purchased by from such Underwriter, and no action based on an “adverse claim” (within the meaning of Section 8-102(a)(1) of the NYUCC) may be asserted against such Underwriter with respect to the Shares. For purposes of this representation, each Selling Stockholder may assume that when such payment, delivery (if necessary) and crediting occur, (i) the Shares will have been registered in the name without notice of Cede & Co. or another nominee designated by DTC, in each case on the Company’s share registry in accordance with its certificate of incorporation, bylaws and applicable law, (ii) DTC is a “securities intermediary” within the meaning of Section 8-102(a)(14) of the NYUCC, (iii) appropriate entries to the accounts of the several Underwriters on the records of DTC will have been made pursuant to the NYUCC, and (iv) the several Underwriters have no notice any adverse claim (within the meaning of Section 8-105 of the NYUCCNew York Uniform Commercial Code (the “UCC”)), the Underwriter that has purchased such Shares delivered on the Closing Date to DTC or other securities intermediary by making payment therefor as provided herein and that has had such Shares credited to the securities account or accounts of the Underwriter maintained with DTC or such other securities intermediary will have acquired a security entitlement (within the meaning of Section 8-102(a)(17) of the UCC) to such Shares purchased by the Underwriter, and no action based on an adverse claim (within the meaning of Section 8-102 of the UCC) may be successfully asserted against the Underwriter under the UCC as in effect in the State of New York with respect to such Shares.
(b) Such Selling Stockholder has not taken, directly or indirectly, any adverse claimaction designed to or that would constitute or that might reasonably be expected to cause or result in, under the Exchange Act or otherwise, stabilization or manipulation of the price of any security of the Company to facilitate the sale or resale of the Shares during the distribution of the Shares by the Underwriter.
(c) Certificates in negotiable form representing all of the Shares to be sold by such Selling Stockholder have been deposited with Computershare Trust Company, N.A. (the “Transfer Agent”). Such Selling Stockholder specifically agrees that the Shares represented by the certificates so deposited are subject to the interests of the Underwriter hereunder, and that the arrangements made by such Selling Stockholder for such deposit will not be revoked prior to the sales of such Shares hereunder. Such Selling Stockholder specifically agrees that the obligations of such Selling Stockholder hereunder shall not be terminated by operation of law by the dissolution of such partnership, corporation or organization, or by the occurrence of any other event. If any such partnership, corporation or similar organization should be dissolved, or if any other such event should occur, before the delivery of the Shares hereunder, certificates representing such Shares shall be delivered by or on behalf of such Selling Stockholder in accordance with the terms and conditions of this Agreement.
(d) No consent, approval, authorization or order of any court or governmental agency or body is required for the consummation by such Selling Stockholder of the transactions contemplated herein, except for (i) the registration of the Shares under the Securities Act, (ii) such consents, approvals, authorization or orders as may be required by FINRA and under the blue sky laws of any jurisdiction in connection with the purchase and distribution of the Shares by the Underwriter or (iii) those as to which the failure to obtain will affect in any material respect such Selling Stockholder’s ability to perform its obligations hereunder.
(e) Neither the sale of the Shares being sold by such Selling Stockholder nor the consummation of any other of the transactions herein contemplated by such Selling Stockholder will conflict with, result in a breach or violation of, or constitute a default under, (i) any law applicable to such Selling Stockholder, (ii) certificate of formation or the limited partnership or limited liability company agreement, as applicable, of such Selling Stockholder, (iii) the terms of any indenture or other agreement or instrument to which such Selling Stockholder is a party or bound or (iv) any judgment, 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, except in the case of clauses (i), (iii) and (iv), for any such conflict, breach, violation or default that would not impair in any material respect the ability of such Selling Stockholder to consummate the transactions contemplated by this Agreement.
(f) In respect of any statements in or omissions from the Registration Statement, the Pricing Disclosure Package and the Prospectus, any Preliminary Prospectus and any Issuer Free Writing Prospectuses made in reliance upon and in conformity with any information related to such Selling Stockholder furnished in writing to the Company by such Selling Stockholder expressly for use therein in connection with the disclosure required by Form S-3 (such information, the “Selling Stockholder Information”), such information does not contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading. It is understood and agreed that the only Selling Stockholder Information furnished by any Selling Stockholder consists solely of the name and address of such Selling Stockholder and the number of Shares owned by such Selling Stockholder under the caption “Selling Stockholders” in the Pricing Disclosure Package and Prospectus.
(g) The sale of the Shares by such Selling Stockholder pursuant hereto is not prompted by any information concerning the Company or any of its subsidiaries which is not set forth in the Registration Statement, the Pricing Disclosure Package and the Prospectus or any amendment or supplement thereto.
(h) Other than the Registration Statement, the Preliminary Prospectus and the Prospectus, such Selling Stockholder (including its agents and representatives, other than the Underwriter in its 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 Item (a) of Annex A hereto, each electronic road show or other written communications approved in writing in advance by the Company and the Underwriter.
(i) With respect to each Selling Stockholder named on Schedule 3 hereto, it has delivered a “lock-up” agreement, substantially in the form of Exhibit A hereto, relating to sales and certain other dispositions of shares of Stock or certain other securities, on or prior to the date hereof, and such agreement is in full force and effect.
Appears in 2 contracts
Samples: Underwriting Agreement (Generac Holdings Inc.), Underwriting Agreement (Generac Holdings Inc.)
Representations and Warranties of the Selling Stockholders. Each Selling Stockholder Stockholder, severally and not jointly with the other Selling Stockholders, represents and warrants to, to Holdings and agrees with, each Underwriter, of the Company and Arconic Underwriters that:
(a) Such to the extent that any statements or omissions made in the Registration Statement, the Disclosure Package, the Prospectus or any amendment or supplement thereto are made in reliance upon and in conformity with any information furnished to Holdings by such Selling Stockholder expressly for use therein (such information, the “Selling Stockholder Information”), such Registration Statement did not, as of the Effective Time, contain any untrue statements of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading; the Disclosure Package did not, as of the Applicable Time, contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading; 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, will not contain any untrue statements of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading, it being understood that the only statements provided by a Selling Stockholder are those expressly provided for use in the preparation of Items 7 and 11(m) of Form S-1 with respect to 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) neither the execution, delivery and performance of this Agreement by such Selling Stockholder 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 will conflict with, result in any breach or violation of or constitute a default under (i) 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 bound or by which any of its properties may be subject, (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 clauses (ii), (iii), (iv) and (v) above, for such as would not materially impair the ability of such Selling Stockholder to perform its obligations hereunder and consummate the transactions contemplated hereby;
(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 or the Bermuda Monetary Authority), with respect to such Selling Stockholder, 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 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 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, (iii) under the Conduct Rules of FINRA, (iv) announcements to be made as required by applicable law or rules of any applicable stock exchange, including the Rules Governing the Listing of Securities on The Stock Exchange of Hong Kong Limited (the “Listing Rules”) and the Inside Information Provisions (as defined under the Listing Rules) under Part XIVA of the Securities and Futures Ordinance (Chapter 571, Laws of Hong Kong) or (v) as shall have been obtained or made prior to the time of purchase;
(e) such Selling Stockholder has not 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 Holdings to facilitate the sale or resale of the Shares;
(f) such Selling Stockholder has, and immediately prior to at the Closing Date, such Selling Stockholder time of purchase and each additional time of purchase will have, valid title to, or a valid “security entitlement” pursuant to within the meaning of Section 8-102(a)(17) 501 of the New York Uniform Commercial Code (the “NYUCCUCC”) in respect of, the Shares to be sold by such Selling Stockholder, and as of the time of purchase and each additional time of purchase, such Shares will be free and clear of all security interests, claims, liens, equities or other encumbrances and the legal right and power, and all authorization authorizations and approval approvals required by law, law to enter into this Agreement, Agreement and to sell, transfer and deliver the Shares to be sold by such Selling Stockholder or a valid security entitlement in respect of such Shares;
(g) upon payment of the Shares. Each Underwriter that has purchased purchase price for the Shares delivered at to be sold by such Selling Stockholder pursuant to this Agreement, delivery of such Shares, as directed by the Closing Date Underwriters, to The Depository Trust Company Cede & Co. (“DTCCede”) or such other nominee as may be designated by making payment therefore as provided hereinDTC, registration of such Shares in the name of Cede or such other nominee and that has the crediting of such Shares credited by book entry on the books of DTC to the “securities account” or “securities accounts” accounts (within the meaning of Section 8-501(a) of the NYUCCUCC) will acquire a security entitlement to of the Shares purchased by Underwriters (assuming that neither DTC nor any such Underwriter, and no action based on an “Underwriter has notice of any adverse claim” claim (within the meaning of Section 8-102(a)(1) 105 of the NYUCCUCC) to such Shares), (A) under Section 8-501 of the UCC, the Underwriters will acquire a valid security entitlement in respect of such Shares and (B) no action (whether framed in conversion, replevin, constructive trust, equitable lien or other theory) based on any adverse claim (within the meaning of Section 8-102 of the UCC), to such Shares may be asserted against such Underwriter the Underwriters with respect to the Shares. For such security entitlement; for purposes of this representation, each such Selling Stockholder may assume that when such payment, delivery (if necessary) and crediting occur, (iI) the such Shares will have been registered in the name of Cede & Co. or another nominee designated by DTC, in each case on the Company’s share registry register of members in accordance with its certificate memorandum of incorporationassociation, bylaws bye-laws and applicable law, (iiII) DTC is will be registered as a “securities intermediaryclearing corporation,” within the meaning of Section 8-102(a)(14) 102 of the NYUCCUCC, (iiiIII) appropriate entries to the accounts of the several Underwriters on the records of DTC will have been made pursuant to the NYUCCUCC, (IV) to the extent DTC, or any other securities intermediary which acts as “clearing corporation” with respect to the Shares, maintains any “financial asset” (as defined in Section 8-102(a)(9) of the UCC) in a clearing corporation pursuant to Section 8-111 of the UCC, the rules of such clearing corporation may affect the rights of DTC or such securities intermediaries and the ownership interest of the Underwriters, (V) claims of creditors of DTC or any other securities intermediary or clearing corporation may be given priority to the extent set forth in Section 8-511(b) and 8-511(c) of the UCC and (VI) if at any time DTC or other securities intermediary does not have sufficient Shares to satisfy claims of all of its entitlement holders with respect thereto then all holders will share pro rata in the Shares then held by DTC or such securities intermediary;
(h) 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, to (i) enter into this 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;
(i) this Agreement has been duly executed and delivered by such Selling Stockholder, and is a legal, valid and binding agreement of such Selling Stockholder; and
(ivj) 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 have no notice hereunder will be fully paid or provided for by such Selling Stockholder, and all laws imposing such taxes will be fully complied with. In addition, any certificate signed by any Selling Stockholder (within or any officer of such Selling Stockholder or of any of such Selling Stockholder’s subsidiaries) and delivered to the meaning of Section 8-105 Underwriters or counsel for the Underwriters in connection with the offering of the NYUCC) of any adverse claimShares shall be deemed to be a representation and warranty by such Selling Stockholder, as to matters covered thereby, to each Underwriter.
Appears in 2 contracts
Samples: Underwriting Agreement (Norwegian Cruise Line Holdings Ltd.), Underwriting Agreement (Norwegian Cruise Line Holdings Ltd.)
Representations and Warranties of the Selling Stockholders. Each Selling Stockholder Stockholder, severally and not jointly with the other Selling Stockholders, represents and warrants to, and agrees with, each Underwriter, to the Company and Arconic Underwriter that:
(a) Such all information with respect to such Selling Stockholder hasincluded in the Registration Statement, any Preliminary Prospectus or the Prospectus complied and will comply with all applicable provisions of the Act; the Registration Statement, as it relates to the 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 such Preliminary Prospectus relates 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, and immediately 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 they relate to 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, 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 the Prospectus relates 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 date of such Permitted Free Writing Prospectus and ends at the time of purchase did or will any Permitted Free Writing Prospectus, as such Permitted Free Writing Prospectus relates 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. For the purposes of this Section 4 (a), the only information in the Registration Statement, the Preliminary Prospectus or the Prospectus that relates to such Selling Stockholders is the "Selling Stockholders" section therein;
(b) such Selling Stockholder has not, prior to the Closing Dateexecution 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) such Selling Stockholder has been duly incorporated, organized or formed, as the case may be, and is validly existing in good standing under the laws of its jurisdiction of incorporation, organization or formation, as the case may be, with full corporate or other power and authority to execute and deliver this Agreement;
(d) such Selling Stockholder is duly qualified to do business as a foreign corporation, limited liability company or limited partnership, as the case may be, and is in good standing in each jurisdiction where the ownership or leasing of its properties or the conduct of its business requires such qualification, except where the failure to be so qualified and in good standing would not, individually or in the aggregate, have a Material Adverse Effect;
(e) neither the execution, delivery and performance of this Agreement 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 NYSE), or (v) any decree, judgment or order applicable to such Selling Stockholder or any of its properties;
(f) 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 NYSE), 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 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 effected in accordance herewith), or (ii) any necessary registration or qualification under the securities or blue sky laws of the various jurisdictions in which the Shares are being offered by the Underwriter;
(g) 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;
(h) 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;
(i) at the time of delivery of such Shares, such Selling Stockholder will have, valid title to, or a valid “security entitlement” be the lawful owner of the number of Shares to be sold by such Selling Stockholder pursuant to Section 8-102(a)(17) this Agreement and at the time of the New York Uniform Commercial Code (the “NYUCC”) in respect ofdelivery of such Shares, will have valid and marketable title to such Shares, and upon delivery of and payment for such Shares, the Underwriter will acquire valid and marketable title to such Shares free and clear of all any claim, lien, encumbrance, security interestsinterest, claimscommunity property right, liens, equities restriction on transfer or other encumbrances defect in title;
(j) such Selling Stockholder has and, at the time of delivery of the Shares to be sold by such Selling Stockholder pursuant to this Agreement, will have full legal right, power and the legal right and powercapacity, and all authorization authorizations and approval approvals required by lawlaw (other than those imposed by the Act and state securities or blue sky laws), to to: (i) enter into this Agreement, and to (ii) sell, assign, transfer and deliver the Shares or a security entitlement to be sold by such Selling Stockholder pursuant to this Agreement in respect of the Shares. Each Underwriter that has purchased the Shares delivered at the Closing Date to The Depository Trust Company (“DTC”) by making payment therefore as manner provided hereinin this Agreement, and that has (iii) make the Shares credited by book entry to the “securities account” or “securities accounts” (within the meaning of Section 8-501(a) of the NYUCC) will acquire a security entitlement to the Shares purchased representations, warranties and agreements made by such UnderwriterSelling Stockholder herein;
(k) this Agreement has been duly executed and delivered by (or on behalf of) such Selling Stockholder, and no action based on an “adverse claim” (within the meaning is a legal, valid and binding agreement of Section 8-102(a)(1) of the NYUCC) may be asserted against such Underwriter with respect to the Shares. For purposes of this representation, each Selling Stockholder may assume that when such payment, delivery (if necessary) and crediting occur, (i) the Shares will have been registered in the name of Cede & Co. or another nominee designated by DTC, in each case on the Company’s share registry enforceable in accordance with its certificate terms;
(l) such Selling Stockholder has duly and irrevocably authorized each of incorporationthe Representatives of the Selling Stockholders (whether acting alone or together), bylaws on behalf of such Selling Stockholder, to execute and applicable lawdeliver this Agreement and any other 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;
(m) the sale of the Shares to be sold by such Selling 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;
(iin) DTC at the time of purchase, all stock transfer or other 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 Underwriter hereunder will be fully paid or provided for by such Selling Stockholder, and all laws imposing such taxes will be fully complied with;
(o) such Selling Stockholder is a “securities intermediary” within United States person (as defined in the meaning Code); and
(p) such Selling Stockholder does not own any shares of Section 8-102(a)(14Common Stock or operating partnership units ("OP Units") of Home Properties, L.P., a New York limited partnership (the NYUCC"Operating Partnership"), securities convertible into or exchangeable or exercisable for Common Stock or OP Units or options, warrants or other rights to purchase Common Stock or OP Units, other than the Shares. In addition, any certificate signed by any Selling Stockholder (iiior, 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) appropriate entries or by any Representative of the Selling Stockholders and delivered to the accounts Underwriter or counsel for the Underwriter in connection with the offering of the several Underwriters on the records of DTC will have been made pursuant Shares shall be deemed to be a representation and warranty by such Selling Stockholder, as to matters covered thereby, to the NYUCC, and (iv) the several Underwriters have no notice (within the meaning of Section 8-105 of the NYUCC) of any adverse claimUnderwriter.
Appears in 1 contract
Representations and Warranties of the Selling Stockholders. Each Selling Stockholder severally represents and warrants towarrants, severally and agrees withnot jointly, to each Underwriter, of the Company and Arconic thatUnderwriters as follows:
(a) Such Selling Stockholder hasThe Registration Statement, and immediately prior to at the time it became effective, at the Closing Date, and at any applicable Option Closing Date, as the case may be, did not and, as amended or supplemented, as applicable, 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; the Prospectus, and any amendment or supplement thereto, as of its date, the Closing Date, and at any applicable Option Closing Date, as the case may be, and the Sale Preliminary Prospectus, and any amendment or supplement thereto, as of the Initial Sale Time, do not and, as then amended or supplemented by the Company, if applicable, 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; the Disclosure Package, as of the Initial Sale Time, does not contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading; provided, that no representation or warranty is made as to information contained in or omitted from the Registration Statement, the Prospectus or the Sale Preliminary Prospectus in reliance upon and in conformity with written information furnished to the Company by any Underwriter specifically for inclusion therein as identified in Section 12 hereof; provided further, that in each case the representations and warranties set forth in this Section 3(a) apply only to statements in or omissions from the Registration Statement, the Prospectus, the Sale Preliminary Prospectus and the Disclosure Package, in each case at the time and as amended or supplemented as described above in this Section 2(a), made in reliance upon and in conformity with information relating to the Selling Stockholder furnished in writing by or on behalf of such Selling Stockholder expressly for use therein. For purposes of this Agreement, the only information so furnished shall be the name of the Selling Stockholder, the number of offered shares and the address and other information with respect to the Selling Stockholder (excluding percentages) that appear in the table (and corresponding footnotes) under the heading “Principal and Selling Stockholders” (collectively, the “Selling Stockholder Information”). The Selling Stockholder is not prompted to sell such Selling Stockholder’s Selling Stockholder Shares hereunder by any information concerning the Company or any Subsidiary which is not set forth in the Disclosure Package or the Prospectus.
(b) This Agreement has been duly authorized, executed and delivered by the Selling Stockholder.
(c) The Selling Stockholder is validly existing and in good standing under the laws of the jurisdiction of its incorporation or formation, as applicable.
(d) There are no material agreements or arrangements relating to the Company and its Subsidiaries to which the Selling Stockholder (or, to such Selling Stockholder’s knowledge, any affiliate of such Selling Stockholder) is a party, which are required to be described in the Registration Statement, the Disclosure Package or the Prospectus or to be filed as exhibits thereto that are not so described or filed.
(e) The execution and delivery of this Agreement and the sale and delivery of the Selling Stockholder Shares and the consummation of the transactions contemplated herein, and compliance by the Selling Stockholder with its obligations hereunder, do not and will havenot, valid title towhether with or without the giving of notice or passage of time or both, conflict with or constitute a breach of, or default under, or result in the creation or imposition of any tax, lien, charge or encumbrance upon the Selling Stockholder Shares to be sold by the Selling Stockholder or any property or assets of the Selling Stockholder pursuant to any contract, indenture, mortgage, deed of trust, loan or credit agreement, note, license, lease or other agreement or instrument to which the Selling Stockholder is a party or by which the Selling Stockholder may be bound, or to which any of the property or assets of the Selling Stockholder is subject (except for such conflicts, breaches, defaults, taxes, liens, charges or encumbrances that would not, individually or in the aggregate, have a material adverse effect on the Selling Stockholder’s ability to consummate the transactions contemplated by this Agreement), nor will such action result in any violation of the provisions of (A) the articles or certificate of incorporation, formation or organization, charter, bylaws, operating agreement, partnership agreement or other governing documents of the Selling Stockholder, or (B) 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 the Selling Stockholder or any of its properties (except, in the case of clause (B) only, for such violations that would not, individually or in the aggregate, have a material adverse effect on the Selling Stockholder’s ability to consummate the transactions contemplated by this Agreement).
(f) The Selling Stockholder is, and on the Closing Date will be, the record and beneficial owner of the Selling Stockholder Shares, or have a valid “security entitlement” pursuant to within the meaning of Section 8-102(a)(17) 501 of the New York Uniform Commercial Code (the “NYUCCUCC”) in respect of, the Selling Stockholder Shares to be sold by the Selling Stockholder free and clear of all security interests, claims, liens, equities or other encumbrances and has the legal right and power, and all authorization and approval required by law, to enter into this Agreement, Agreement and to sell, transfer and deliver the Selling Stockholder Shares to be sold by the Selling Stockholder or a security entitlement in respect of such Selling Stockholder Shares.
(g) Upon payment by the Underwriters for the Selling Stockholder Shares. Each Underwriter that has purchased , delivery of such Selling Stockholder Shares, as directed by the Shares delivered at Underwriters, to Cede & Co. (“Cede”) or such other nominee as may be designated by the Closing Date to The Depository Trust Company (“DTC”) by making payment therefore as provided herein), registration of such Selling Stockholder Shares in the name of Cede or such other nominee and the crediting of such Selling Stockholder Shares on the books of DTC to securities accounts of the Underwriters (assuming that neither DTC nor any such Underwriter has the Shares credited by book entry to the “securities account” or “securities accounts” notice of any adverse claim (within the meaning of Section 8-501(a) 105 of the NYUCCUCC) to such Securities), under Section 8-501 of the UCC, the Underwriters will acquire a valid security entitlement to the in respect of such Selling Stockholder Shares purchased by such Underwriter, and no action based on an any “adverse claim” (”, within the meaning of Section 8-102(a)(1) 102 of the NYUCC) UCC, to such Selling Stockholder Shares may be validly asserted against such Underwriter the Underwriters with respect to the Shares. For purposes of this representation, each Selling Stockholder may assume such security entitlement; assuming that when such payment, delivery (if necessary) and crediting occur, (ix) the such Selling Stockholder Shares will have been registered in the name of Cede & Co. or another nominee designated by DTC, in each case on the Company’s share registry in accordance with its certificate of incorporation, bylaws and applicable law, (iiy) DTC is a “securities intermediaryclearing corporation” within the meaning of Section 8-102(a)(14) 102 of the NYUCC, UCC and (iiiz) appropriate entries crediting the Selling Stockholder Shares to the accounts of the several Underwriters on the records of DTC will have been made pursuant to the NYUCCUCC.
(h) The Selling Stockholder has not taken, and will not take, directly or indirectly, any action which is designed to or which has constituted or would 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 Selling Stockholder Shares.
(ivi) No filing with, or consent, approval, authorization, order, registration, qualification or decree of any arbitrator, court, governmental body, regulatory body, administrative agency or other authority, body or agency, domestic or foreign (each, a “Governmental Entity”), is necessary or required for the several Underwriters performance by the Selling Stockholder of its obligations hereunder, or in connection with the sale and delivery of the Selling Stockholder Shares hereunder or the consummation of the transactions contemplated by this Agreement, except such as may have no notice previously been made or already been obtained or as may be required under the Act, the Rules and Regulations, the rules of the NASDAQ Stock Market LLC, state securities laws or the rules of FINRA.
(j) 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, other than those rights that have been disclosed in the Registration Statement, the Disclosure Package and the Prospectus and have been waived.
(k) The Selling Stockholder has not prepared or had prepared on its behalf or used or referred to, any Free Writing Prospectus, and has not distributed any prospectus or other written materials in connection with the offer or sale of the Selling Stockholder Shares.
(l) Neither the Selling Stockholder nor any of its affiliates directly, or indirectly through one or more intermediaries, controls, or is controlled by, or is under common control with any member firm of FINRA or is a person associated with a member (within the meaning of Section 8the FINRA By-105 Laws) of FINRA
(m) Except for this Agreement, there are no contracts, agreements or understandings between the Selling Stockholder and any person that would give rise to a valid claim against the Selling Stockholder or any Underwriter for a brokerage commission, finder’s fee or other like payment in connection with this offering.
(n) There are no transfer taxes or other similar fees or charges under United States federal law or the laws of any state, or any political subdivision thereof, required to be paid in connection with the execution and delivery of this Agreement or the sale by the Selling Stockholder of the NYUCCSelling Stockholder Shares.
(o) Prior to the later of (A) the expiration or termination of the option granted to the several Underwriters in Section 3(c) hereof, (B) the completion of the Underwriters’ distribution of the Shares and (C) the expiration of 25 days after the date of the Prospectus, the Selling Stockholder has not distributed and will not distribute any offering material in connection with the offering and sale of the Shares other than the Registration Statement, the Disclosure Package or the Prospectus.
(p) The Selling Stockholder is not currently subject to any U.S. sanctions administered by OFAC and will not directly or indirectly use the proceeds of this offering, or lend, contribute or otherwise make available such proceeds to any subsidiary, or any joint venture partner or other person or entity, for the purpose of financing the activities of any person currently subject to any United States sanctions administered by OFAC 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 any adverse claimUnited States sanctions administered by OFAC.
Appears in 1 contract
Representations and Warranties of the Selling Stockholders. Each Selling Stockholder Stockholder, severally and not jointly, represents and warrants to, and agrees with, to each Underwriter, the Company and Arconic Underwriter that:
(a) Such Selling Stockholder has, and immediately prior to the Closing Date, such Selling Stockholder now is and at the time of delivery of such Shares will havebe, valid title to, or a valid “security entitlement” the lawful owner of the number of Shares to be sold by such Selling Stockholder pursuant to Section 8-102(a)(17) this Agreement and has and, at the time of the New York Uniform Commercial Code (the “NYUCC”) in respect ofdelivery thereof, 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 all any claim, lien, encumbrance, security interestsinterest, claimscommunity property right, liens, equities restriction on transfer or other encumbrances defect in title;
(b) such Selling Stockholder has and at the time of delivery of such Shares will have, full legal right right, power and powercapacity, and all authorization and any approval required by lawlaw (other than those imposed by the Act and the securities or blue sky laws of certain jurisdictions), to enter into this Agreementsell, and to sellassign, transfer and deliver such Shares in the Shares or manner provided in this Agreement;
(c) this Agreement, the Power of Attorney, and the Custody Agreement among EquiServe Trust Company, as custodian, and the Selling Stockholders (other than the Retiree Plan) (each, a security entitlement "Custody Agreement") have been duly executed and delivered by such Selling Stockholder and each is a legal, valid and binding agreement of such Selling Stockholder enforceable in respect of accordance with its terms;
(d) the Shares. Each Underwriter that has purchased the Shares delivered Registration Statement and Prospectus did not at the Closing Date to The Depository Trust Company (“DTC”) by making payment therefore as provided herein, time of effectiveness and that has do not and will not at the Shares credited by book entry to the “securities account” time of purchase and any supplements or “securities accounts” (within the meaning of Section 8-501(a) of the NYUCC) will acquire a security entitlement to the Shares purchased by such Underwriter, and no action based on an “adverse claim” (within the meaning of Section 8-102(a)(1) of the NYUCC) may be asserted against such Underwriter with respect to the Shares. For purposes of this representation, each Selling Stockholder may assume that when such payment, delivery (if necessary) and crediting occur, (i) the Shares will have been registered in the name of Cede & Co. or another nominee designated by DTCamendments thereto, in each case on as relate to such Selling Stockholder in his or its capacity as such, 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 Company’s share registry statements therein, in accordance with its certificate of incorporation, bylaws and applicable law, (ii) DTC is a “securities intermediary” within the meaning of Section 8-102(a)(14) light of the NYUCCcircumstances under which they were made, (iii) appropriate entries not misleading; provided, however, that such Selling Stockholder makes no warranty or representation with respect to any statement contained in 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 accounts Company expressly for use in the Registration Statement or the Prospectus;
(e) such Selling Stockholder has duly and irrevocably authorized the Representatives of such Selling Stockholder, on behalf of such Selling Stockholder, to execute and deliver this Agreement and any other document necessary or desirable in connection with the several Underwriters on transactions contemplated thereby and to deliver the records Shares to be sold by such Selling Stockholder and receive payment therefor pursuant hereto; and
(f) the sale of DTC will have been made such Selling Stockholder's Shares pursuant to this Agreement is not prompted by any information concerning the NYUCC, and (iv) Company which is not set forth in the several Underwriters have no notice (within the meaning of Section 8-105 of the NYUCC) of any adverse claimProspectus.
Appears in 1 contract
Samples: Underwriting Agreement (Wheeling Pittsburgh Corp /De/)
Representations and Warranties of the Selling Stockholders. Each Selling Stockholder Stockholder, jointly and severally with the other Selling Stockholders, represents and warrants to, and agrees with, to each Underwriter, of the Company and Arconic Underwriters that:
(a) Such all information with respect to such Selling Stockholder hasincluded in the Registration Statement, the Preliminary Prospectus or the Prospectus complied and will comply with all applicable provisions of the Act; the Registration Statement, as it relates 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 such Preliminary Prospectus relates 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, and immediately at no time during such period did or will the 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 they relate to 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, as the Prospectus relates 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 date of such Permitted Free Writing Prospectus and ends at the time of purchase did or will any Permitted Free Writing Prospectus, as such Permitted Free Writing Prospectus relates 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;
(b) such Selling Stockholder has not, prior to the Closing Dateexecution 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) 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 haveconflict with, valid title 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 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 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 a valid “which has constituted or might reasonably be expected to cause or result in the stabilization or manipulation of the price of any security entitlement” 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), the 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 Section 8-102(a)(17) this Agreement will be paid to a member of the New York Uniform Commercial Code NASD or any affiliate of (or person “associated with,” as such terms are used in the “NYUCC”Rules of the NASD) in respect ofsuch member;
(g) such Selling Stockholder now is and, at the time of delivery of such Shares (whether the time of purchase or any 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 of such Shares, 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 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 all any claim, lien, encumbrance, security interestsinterest, claimscommunity property right, liens, equities restriction on transfer or other encumbrances defect in title;
(h) 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 the legal right and powercapacity, and all authorization authorizations and approval approvals required by lawlaw (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 to (ii) sell, assign, transfer and deliver the Shares or a security entitlement in respect of the Shares. Each Underwriter that has purchased the Shares delivered at the Closing Date to The Depository Trust Company (“DTC”) by making payment therefore as provided herein, and that has the Shares credited by book entry to the “securities account” or “securities accounts” (within the meaning of Section 8-501(a) of the NYUCC) will acquire a security entitlement to the Shares purchased be sold by such Underwriter, and no action based on an “adverse claim” (within the meaning of Section 8-102(a)(1) of the NYUCC) may be asserted against such Underwriter with respect to the Shares. For purposes of this representation, each Selling Stockholder may assume that when pursuant to this Agreement in the manner provided in this Agreement and (iii) make the representations, warranties and agreements made by such payment, delivery (if necessary) and crediting occur, Selling Stockholder herein;
(i) this Agreement and the Shares will have Power of Attorney and Custody Agreement (the “Custody Agreement”), dated , 2006 between American Stock Transfer & Trust Company, as custodian (the “Custodian”), and such Selling Stockholder has been registered duly executed and delivered by (or, in the name case of Cede & Co. or another nominee designated by DTCthis Agreement, in each case on the Company’s share registry behalf of) such Selling Stockholder, and is a legal, valid and binding agreement of such Selling Stockholder enforceable in accordance with its certificate terms, except as the same may be subject to or limited by bankruptcy, insolvency, reorganization, arrangement, moratorium or other similar laws relating to or affecting the rights of incorporationcreditors or by general principles of equity, bylaws including, without limitation, concepts of materiality, reasonableness, good faith and applicable fair dealing, and the possible unavailability of specific performance or injunctive relief, regardless of whether considered in a proceeding in equity or at law;
(j) such Selling Stockholder has duly and irrevocably authorized each of the Representatives of the Selling Stockholders (whether acting alone or together), on behalf of such Selling Stockholder, to execute and deliver this Agreement and any other 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;
(k) the sale of the Shares to be sold by such Selling 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), the Preliminary Prospectus and the Prospectus; and, except as set forth in the Registration Statement (excluding the exhibits thereto), the Preliminary Prospectus and the Prospectus, neither such Selling Stockholder (or, if such Selling Stockholder is a trust, estate, partnership or corporation, any beneficiary, partner or other equity owner thereof) nor any immediate family member of such Selling Stockholder (or beneficiary, partner or other equity owner) is a director, officer or employee of or consultant to the Company or any of its Subsidiaries;
(l) at the time of purchase and each additional time of purchase, all stock transfer or other 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
(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 Representatives of the Selling Stockholders, the Underwriters and the Company, (ii) DTC is a “securities intermediary” within the meaning of Section 8-102(a)(14) arrangements made by such Selling Stockholder for custody and for the appointment of the NYUCCCustodian and the Representatives of the Selling Stockholders by such Selling Stockholder are irrevocable, and (iii) appropriate entries 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 bankruptcy, 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 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 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 accounts Underwriters or counsel for the Underwriters in connection with the offering of the several Underwriters on the records of DTC will have been made pursuant Shares shall be deemed to the NYUCCbe a representation and warranty by such Selling Stockholder, and (iv) the several Underwriters have no notice (within the meaning of Section 8-105 of the NYUCC) of any adverse claimas to matters covered thereby, to each Underwriter.
Appears in 1 contract
Representations and Warranties of the Selling Stockholders. Each Selling Stockholder Stockholder, severally and not jointly with the other Selling Stockholders, represents and warrants to, to each of the Underwriters and agrees with, each Underwriter, the Company and Arconic Independent Underwriter that:
(a) Such all information with respect to such Selling Stockholder hasincluded in the Registration Statement, the Disclosure Package and immediately the Prospectus (such information, the “Selling Stockholder Information”) complied and will comply in all material respects with all applicable provisions of the Act; the Registration Statement, as it relates to the Selling Stockholder Information, 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 Information, 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 its date, 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; it being understood and agreed that the Selling Stockholder Information consists only of the information set forth in Section 15 hereof;
(b) such Selling Stockholder has not, prior to the Closing Dateexecution 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 Power of Attorney 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 haveconflict with, valid title 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 NYSE), 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;
(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 NYSE), 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 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 a valid “which has constituted or might reasonably be expected to cause or result in the stabilization or manipulation of the price of any security entitlement” 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; none of the proceeds received by such Selling Stockholder from the sale of the Shares to be sold by such Selling Stockholder pursuant to Section 8-102(a)(17this 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;
(g) such Selling Stockholder now is and, at the time of delivery of such Shares (whether the Time of Purchase or any additional time of purchase, as the case may be), will be the lawful owner of the New York Uniform Commercial Code number of Shares to be sold by such Selling Stockholder pursuant to this Agreement and has and, at the time of delivery of such Shares, will have valid and marketable title to such Shares, and upon delivery of and payment for such Shares (whether at the “NYUCC”) in respect ofTime of Purchase or 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 all any claim, lien, encumbrance, security interestsinterest, claimscommunity property right, liens, equities restriction on transfer or other encumbrances defect in title;
(h) 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 the legal right and powercapacity, and all authorization authorizations and approval approvals required by lawlaw (other than those imposed by the Act and state securities or blue sky laws), to (i) enter into this Agreement, Agreement and a Custody Agreement (as defined below) and to execute a Power of Attorney, (ii) sell, assign, transfer and deliver the Shares or a security entitlement in respect of the Shares. Each Underwriter that has purchased the Shares delivered at the Closing Date to The Depository Trust Company (“DTC”) by making payment therefore as provided herein, and that has the Shares credited by book entry to the “securities account” or “securities accounts” (within the meaning of Section 8-501(a) of the NYUCC) will acquire a security entitlement to the Shares purchased be sold by such Underwriter, and no action based on an “adverse claim” (within the meaning of Section 8-102(a)(1) of the NYUCC) may be asserted against such Underwriter with respect to the Shares. For purposes of this representation, each Selling Stockholder may assume that when pursuant to this Agreement in the manner provided in this Agreement and (iii) make the representations, warranties and agreements made by such payment, delivery (if necessary) and crediting occur, Selling Stockholder herein;
(i) this Agreement and the Shares will custody agreement (the “Custody Agreement”), dated as of October , 2015 between American Stock Transfer & Trust Company, 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 registered duly executed and delivered by (or, in the name case of Cede & Co. or another nominee designated by DTCthis Agreement, in on behalf of) such Selling Stockholder, and each case on the Company’s share registry is a legal, valid and binding agreement of such Selling Stockholder enforceable in accordance with its certificate terms;
(j) such Selling Stockholder has duly and irrevocably authorized each of incorporationthe Representatives of the Selling Stockholders (whether acting alone or together), bylaws on behalf of such Selling Stockholder, to execute and applicable lawdeliver this Agreement and any other 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;
(k) the sale of the Shares to be sold by such Selling 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;
(l) at the Time of Purchase and each additional time of purchase, all stock transfer or other 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;
(m) pursuant to the Custody Agreement to which such Selling Stockholder is a party, 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 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) DTC is a “securities intermediary” within the meaning of Section 8-102(a)(14) arrangements made by such Selling Stockholder for custody and for the appointment of the NYUCCCustodian and the Representatives of the Selling Stockholders by such Selling Stockholder are irrevocable, and (iii) appropriate entries 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 other event (each, an “Event”); if an Event occurs before the delivery of the Shares hereunder, 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 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; and
(n) the Selling Shareholders acknowledge that, in accordance with the requirements of the USA Patriot Act, the Underwriters are required to obtain, verify and record information that identifies their respective clients, including the Company, which information may include the name and address of their respective clients, as well as other information that will allow the Underwriters to properly identify their respective clients. 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 accounts Underwriters or counsel for the Underwriters in connection with the offering of the several Underwriters on the records of DTC will have been made pursuant Shares shall be deemed to the NYUCCbe a representation and warranty by such Selling Stockholder, and (iv) the several Underwriters have no notice (within the meaning of Section 8-105 of the NYUCC) of any adverse claimas to matters covered thereby, to each Underwriter.
Appears in 1 contract
Representations and Warranties of the Selling Stockholders. Each Selling Stockholder severally represents and warrants towarrants, severally and agrees withnot jointly, to each Underwriter, the Company and Arconic Manager that:
(a) Such Selling Stockholder hasnow has valid and marketable title to the Class B Common Stock to be converted in the reclassification into the Shares to be sold by such Selling Stockholder, and immediately prior on the Closing Date and any Option Closing Date will have valid and marketable title to the Closing Date, Shares to be sold by such Selling Stockholder will haveStockholder, valid title to, or a valid “security entitlement” pursuant to Section 8-102(a)(17) of the New York Uniform Commercial Code (the “NYUCC”) in respect of, the Shares free and clear of all any lien, claim, security interests, claims, liens, equities interest or other encumbrances and encumbrance, including, without limitation, any restriction on transfer, except as otherwise described in the legal right and powerProspectuses.
(b) Such Selling Stockholder now has, and all authorization on the Closing Date and any Option Closing Date will have, full legal right, power and authorization, and any approval required by law, to enter into this Agreementsell, and to sellassign, transfer and deliver such Shares in the manner provided in this Agreement and the U.S. Underwriting Agreement, and upon delivery of and payment for such Shares hereunder, the several Managers will acquire valid and marketable title to such Shares free and clear of any lien, claim, security interest, or a security entitlement other encumbrance, assuming the Managers purchase such Shares for value therefor pursuant hereto without notice of any adverse claim, as defined in respect the Uniform Commercial Code as adopted in the State of New York (the "UCC") and are otherwise bona fide purchasers for the purposes of the Shares. Each Underwriter that has purchased the Shares delivered at the Closing Date to The Depository Trust Company (“DTC”) by making payment therefore as provided herein, UCC and that has the Shares credited such Managers' rights are not limited by book entry to the “securities account” or “securities accounts” subsection (within the meaning 4) of Section 8-501(a) 302 of the NYUCCUCC..
(c) will acquire a security entitlement This Agreement and the U.S. Underwriting Agreement have been duly authorized, executed and delivered by or on behalf of such Selling Stockholder and are the valid and binding agreements of such Selling Stockholder enforceable against such Selling Stockholder in accordance with their terms, except as the enforcement hereof and thereof may be limited by bankruptcy, insolvency or other similar laws affecting the enforcement of creditors' right generally and subject to the Shares purchased by such Underwriterapplicability of general principles of equity, and no action based on an “adverse claim” except as rights to indemnity and contribution hereunder and thereunder may be limited by Federal or state securities laws or principles of public policy.
(within d) Neither the meaning of Section 8-102(a)(1) sale of the NYUCCShares, the execution, delivery or performance of this Agreement or the U.S. Underwriting Agreement by or on behalf of such Selling Stockholder nor the consummation by or on behalf of such Selling Stockholder of the transactions contemplated hereby and thereby (i) requires any consent, approval, authorization or other order of, or registration or filing with, any court, regulatory body, administrative agency or other governmental body, agency or official (except such as may be asserted against required for the registration of the Shares under the Act or compliance with the securities laws of various jurisdictions), or (ii) conflicts or will conflict with or constitutes or will constitute a breach of, or a default under, in any material respect, any material agreement, indenture, lease or other instrument to which such Underwriter with Selling Stockholder is a party or by which such Selling Stockholder is or may be bound, or violates or will violate in any material respect any statute, law, regulation or filing or judgment, injunction, order or decree applicable to such Selling Stockholder, or will result in the creation or imposition of any material lien, charge or encumbrance upon any property or assets of such Selling Stockholder pursuant to the Shares. For purposes terms of this representation, each any agreement or instrument to which such Selling Stockholder is a party or by which such Selling Stockholder may assume be bound or to which any of the property or assets of such Selling Stockholder is subject.
(e) Such Selling Stockholder has not taken, directly or indirectly, any action designed to or that when such paymentmight reasonably be expected to cause or result in stabilization or manipulation of the price of the Common Stock to facilitate the sale or resale of the Shares, delivery (if necessary) and crediting occur, (i) except for the Shares will have been registered lock-up arrangements referred to in the name Prospectuses.
(f) To the extent, but only to the extent, that any statements or omissions made in the Registration Statement, any Preliminary Prospectus, the Prospectuses or any amendment or supplement thereto are made in reliance upon and in conformity with written information furnished to the Company by such Selling Stockholder expressly for use therein, such Preliminary Prospectus and the Registration Statement did, and the Prospectuses and any further amendments or supplements to the Registration Statement and the Prospectuses, when they become effective or are filed with the Commission, as the case may be, will conform in all material respects to the requirements of Cede & Co. the Act and the rules and regulations of the Commission thereunder and the Registration Statement will not contain any untrue statement of a material fact or another nominee designated by DTComit to state any material fact required to be stated therein or necessary to make the statements therein not misleading and the Preliminary Prospectuses and Prospectuses will not include any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in each case on the Company’s share registry in accordance with its certificate of incorporation, bylaws and applicable law, (ii) DTC is a “securities intermediary” within the meaning of Section 8-102(a)(14) light of the NYUCCcircumstances under which they were made, (iii) appropriate entries to the accounts of the several Underwriters on the records of DTC will have been made pursuant to the NYUCC, and (iv) the several Underwriters have no notice (within the meaning of Section 8-105 of the NYUCC) of any adverse claimnot misleading.
Appears in 1 contract
Samples: International Underwriting Agreement (National Equipment Services Inc)
Representations and Warranties of the Selling Stockholders. Each of the Selling Stockholder Stockholders, severally and not jointly, represents and warrants to, to each Underwriter and agrees with, each Underwriter, the Company and Arconic that:
(a) Such Selling Stockholder hasIt is the record and beneficial owner of the Securities to be sold by it hereunder free and clear of all liens, encumbrances, equities and claims, and immediately prior has full power and authority to sell its interest in the Closing DateSecurities, and, assuming that the Underwriters and the Depository Trust Company or other securities intermediary acquires its interest in the Securities it has purchased from such Selling Stockholder will have, valid title to, or a valid “security entitlement” pursuant to without notice of any adverse claim (within the meaning of Section 8-102(a)(17) 105 of the New York Uniform Commercial Code (the “NYUCCUCC”) in respect of)), the Shares free and clear of all security interests, claims, liens, equities or other encumbrances and the legal right and power, and all authorization and approval required by law, to enter into this Agreement, and to sell, transfer and deliver the Shares or a security entitlement in respect of the Shares. Each Underwriter Underwriters that has have purchased the Shares such Securities delivered at on the Closing Date and any Date of Delivery to The Depository Trust Company (“DTC”) or other securities intermediary by making payment therefore therefor as provided herein, and that has the Shares had such Securities credited by book entry to the “respective securities account” or “securities accounts” accounts (within the meaning of Section 8-501(a501 of the UCC) of the NYUCC) Underwriters maintained with The Depository Trust Company or such other securities intermediary, will acquire have acquired a security entitlement (within the meaning of Section 8-102(a)(17) of the UCC) to the Shares such Securities purchased by such Underwriterthe Underwriters, and no action based on an “adverse claim” claim (within the meaning of Section 8-102(a)(1) of the NYUCCUCC) may be asserted against such Underwriter the Underwriters with respect to the Shares. For such Securities; for purposes of this representation, each such Selling Stockholder may assume that when such payment, delivery (if necessarywithin the meaning of Section 8-301 of the UCC) and crediting occur, (ix) the Shares such Securities will have been registered in the name of Cede & Co. or another nominee designated by DTCThe Depository Trust Company, in each case on the Company’s share registry in accordance with its certificate of incorporationcharter, bylaws by-laws and applicable law, (iiy) DTC is The Depository Trust Company will be registered as a “securities intermediaryclearing corporation” within the meaning of Section 8-102(a)(14) 102 of the NYUCC, UCC and (iiiz) appropriate entries to the respective securities accounts of the several Underwriters on the records of DTC will have been made pursuant to the NYUCC, and (iv) the several Underwriters have no notice (within the meaning of Section 8-105 501 of the NYUCCUCC) of the Underwriters on the records of the Depository Trust Company will have been made pursuant to the UCC.
(b) It has not taken, directly or indirectly, any adverse claimaction designed to or that would constitute or that might reasonably be expected to cause or result in, under the Exchange Act or otherwise, unlawful stabilization or manipulation of the price of any security of the Company to facilitate the sale or resale of the Securities.
(c) No consent, approval, authorization, filing with or order of any court or governmental agency or body is required for the consummation by such Selling Stockholder of the transactions contemplated herein, except such as have been obtained or made by such Selling Stockholder on or prior to the Closing Date or any Date of Delivery under the Securities Act, under the Exchange Act, such as may be required by the Nasdaq Stock Market and such as may be required under the Blue Sky laws of any jurisdiction in connection with the purchase and distribution of the Securities by the Underwriters in the manner contemplated herein and in the Time of Sale Information and the Prospectus and except where the failure to obtain any consents, approvals, authorizations, filings or orders would not impair, in any material respect, the ability of such Selling Stockholder to consummate the transactions contemplated by this Agreement.
(d) Neither the sale of the Securities being sold by such Selling Stockholder nor the consummation of any other of the transactions herein contemplated by such Selling Stockholder nor the fulfillment of the terms hereof by such Selling Stockholder will conflict with, result in a breach or violation of, or constitute a default under (i) the charter, by-laws or other organizational documents of such Selling Stockholder, (ii) the terms of any indenture or other agreement or instrument to which such Selling Stockholder is a party or bound, or (iii) any statute, law, rule, regulation, judgment, order or decree applicable to such Selling Stockholder of any court, regulatory body, administrative agency, governmental body, arbitrator or other authority having jurisdiction over such Selling Stockholder, except in the case of (ii) and (iii), for such conflict, breach, violation or imposition that would not impair, in any material respect, the ability of such Selling Stockholder to consummate the transactions contemplated by this Agreement.
(e) Solely in respect of any statements in or omissions from the Registration Statement, the Prospectus (together with any supplement thereto), the Time of Sale Information and any Issuer Free Writing Prospectus made in reliance upon and in conformity with the Selling Stockholder Information, (i) on the effective date of the Registration Statement, the Registration Statement did not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary in order to make the statements therein not misleading; (ii) on the date of any filing pursuant to Rule 424(b) and on the Closing Date and any Date of Delivery, the Prospectus (together with any supplement thereto) will not include any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading; (iii) the Time of Sale Information does not, and at the Closing Date and any Date of Delivery will not, contain any untrue statement of a material fact or omit to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading; and (iv) each Issuer Free Writing Prospectus does not include any information that conflicts with the information contained in the Registration Statement, including any document incorporated by reference therein that has not been superseded or modified; provided, however, that such Selling Stockholder makes no representation or warranty as to any information contained in or omitted from the Registration Statement, the Prospectus (or any supplement thereto), the Time of Sale Information or any Issuer Free Writing Prospectus other than (i) its name, (ii) the number of shares of Common Stock of the Company owned by it prior to the completion of the offering, (iii) the information set forth in the applicable footnote relating to such Selling Stockholder under the beneficial ownership table and (iv) the number of shares of Common Stock to be offered by such Selling Stockholder, in each case as set forth under the caption “Selling Stockholders” in each of the Registration Statement and the Prospectus (such information, the “Selling Stockholder Information”).
(f) It has not prepared or had prepared on its behalf or used or referred to, and agrees that it will not prepare or have prepared on its behalf or use or refer to, any Issuer Free Writing Prospectus, and has not distributed and will not distribute any written materials in connection with the offer or sale of the Securities other than (i) the Basic Prospectus, (ii) the Prospectus, (iii) the documents listed on Annex B-1 hereto as constituting part of the Time of Sale Information and (iv) any electronic road show or other written communications, in each case approved in writing in advance by the Underwriters specified in Annex B-2 hereto. Any certificate signed by any officer of such Selling Stockholder and delivered pursuant to Section 7 hereto to the Underwriters or counsel for the Underwriters in connection with the offering of the Securities shall be deemed a representation and warranty by such Selling Stockholder, as to matters covered thereby, to the Underwriters.
Appears in 1 contract
Samples: Underwriting Agreement (Walgreens Boots Alliance, Inc.)
Representations and Warranties of the Selling Stockholders. Each Selling Stockholder Stockholder, severally and not jointly with the other Selling Stockholders, represents and warrants toto each of the Underwriters as of the date hereof, the Applicable time, the time of purchase and each additional time of purchase, if any, and agrees with, with each Underwriter, of the Company and Arconic Underwriters that:
(a) Such the Registration Statement, as it relates to the 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; the Disclosure Package did not and will not, as of the Applicable Time, the time of purchase and each additional time of purchase, if any, 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; neither the Prospectus nor any amendment or supplement thereto included, includes or will include an untrue statement of a material fact or omitted, omits or will omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading; provided, however, that the representations and warranties set forth in this Section 4(a) are limited to statements or omissions of material fact made in reliance upon, and in conformity with, information relating to such Selling Stockholder hasfurnished to the Company in writing by such Selling Stockholder expressly for use in the Registration Statement, the Disclosure Package or the Prospectus;
(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, the stock custody agreement (the “Custody Agreement”), dated [ ], among the Company, Broadridge Corporate Issuer Solutions, Inc., as custodian (“Custodian”), and such Selling Stockholder, the Power of Attorney to which such Selling Stockholder is a party, the Lock-Up Agreement signed by such Selling Stockholder, 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 or result in (i) if such Selling Stockholder is not an individual, any violation of the charter or bylaws or other organizational instruments of such Selling Stockholder, (ii) 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) 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 is bound, other than (i) the Second Amended and Restated Voting and Drag-Along Agreement and the Second Amended and Restated Right of First Refusal and Co-Sale Agreement, each dated January 31, 2012, among the Company and the stockholders party thereto (which agreements shall terminate at or immediately prior to the Closing Datetime of purchase), (ii) restrictions under any Restricted Stock Agreement or Stock Option Agreement to which such Selling Stockholder is a party, (iii) the violation of any federal, state, local or foreign law, regulation or rule applicable to such Selling Stockholder, (iv) the violation of any rule or regulation of any self-regulatory organization or other non-governmental regulatory authority (including, without limitation, the rules and regulations of NASDAQ) applicable to such Selling Stockholder, or (v) the violation of any decree, judgment or order applicable to such Selling Stockholder or any of its properties, except with respect to (ii), (iii), (iv) and (v), for such conflicts, breaches, violations or defaults that would not, individually or in the aggregate, reasonably be expected to impair in any material respect such Selling Stockholder’s ability to consummate the transactions contemplated by this Agreement, the Custody Agreement or the 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, or of or with any self-regulatory organization or other non-governmental regulatory authority (including, without limitation, 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 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, (iii) under the Conduct Rules of FINRA or (iv) those which already 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 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; 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;
(g) (i) such Selling Stockholder (except Xxxx X. Xxxxx, Xxxxxxx X. Xxxxxxx, Xxxxx Xxxx and Xxxxxxx X. Xxxxxx) now is and, such Selling Stockholder at the time of delivery of such Shares (whether the time of purchase or any additional time of purchase, as the case may be), will have, valid title to, or a valid “security entitlement” be the lawful owner of the number of Shares to be sold by such Selling Stockholder pursuant to Section 8-102(a)(17this Agreement and (ii) such Selling Stockholder (except Xxxx X. Xxxxx, Xxxxxxx X. Xxxxxxx, Xxxxx Xxxx and Xxxxxxx X. Xxxxxx) has and, such Selling Stockholder at the time of delivery of such Shares, will have valid and marketable title to such Shares, and upon delivery of and payment for such Shares (whether at the New York Uniform Commercial Code (time of purchase or any additional time of purchase, as the “NYUCC”) in respect ofcase may be), the Underwriters will acquire valid and marketable title to such Shares free and clear of all any claim, lien, encumbrance, security interestsinterest, claimscommunity property right, liens, equities restriction on transfer or other encumbrances defect in title;
(h) the Shares to be sold by the Selling Stockholders pursuant hereto are free of contractual preemptive rights, resale rights, rights of first refusal and similar rights;
(i) such Selling Stockholder (except Xxxx X. Xxxxx, Xxxxxxx X. Xxxxxxx, Xxxxx Xxxx and Xxxxxxx X. Xxxxxx) has and, such Selling Stockholder 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 right, power and powercapacity, and all authorization authorizations and approval approvals required by lawlaw (other than those imposed by the Act and state securities or blue sky laws), to (i) enter into this Agreement and a Custody Agreement and to execute a Power of Attorney and the Lock-Up Agreement, and to (ii) sell, assign, transfer and deliver the Shares or to be sold by such Selling Stockholder pursuant to this Agreement in the manner provided in this Agreement and (iii) make the representations, warranties and agreements made by such Selling Stockholder herein;
(j) this Agreement and the Custody Agreement and the Power of Attorney to which such Selling Stockholder is a security entitlement party have each been duly executed and delivered by (or, in respect the case of this Agreement, on behalf of) such Selling Stockholder; each of the Shares. Each Underwriter that Custody Agreement and the Power of Attorney is a legal, valid and binding agreement of such Selling Stockholder enforceable in accordance with its terms, subject to bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and similar laws of general applicability relating to or affecting creditors’ rights and to general equity principles;
(k) such Selling Stockholder has purchased duly and irrevocably authorized each of the Representatives of the Selling Stockholders (whether acting alone or together) appointed by such Selling Stockholder, on behalf of such Selling Stockholder, to execute and deliver this Agreement and any other documents necessary or desirable in connection with the transactions contemplated hereby or thereby and to deliver the Shares delivered to be sold by such Selling Stockholder pursuant to this Agreement and receive payment therefor pursuant hereto;
(l) the sale of the Shares to be sold by such Selling 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), the Disclosure Package and the Prospectus;
(m) at the Closing Date time of purchase and each additional time of purchase, all stock transfer or other taxes (other than income taxes), if any, that are required to The Depository Trust Company (“DTC”) be paid in connection with the sale and transfer of the Shares to be sold by making payment therefore as such Selling Stockholder to the several Underwriters hereunder will be fully paid or provided hereinfor by such Selling Stockholder, and that has the Shares credited by book entry all laws imposing such taxes will be fully complied with; and
(n) pursuant to the “securities account” or “securities accounts” Custody Agreement to which such Selling Stockholder is a party, certificates in negotiable form (within the meaning of Section 8-501(a) of the NYUCC) will acquire a security entitlement to the Shares purchased by such Underwriter, and no action based on an “adverse claim” (within the meaning of Section 8-102(a)(1) of the NYUCC) may be asserted against such Underwriter except with respect to the Shares. For purposes certificates of this representationXxxx X. Xxxxx and Xxxxxxx X. Xxxxxxx, each of whom holds restricted shares that will not be negotiable until the closing of the initial public offering) or an exercise notice (for each Selling Stockholder may assume holding stock options) 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 when such payment, delivery (if necessary) and crediting occur, (i) such Shares represented by such certificates are for the Shares will have been registered in benefit of, and coupled with and subject to the name interest of, the Custodian, the Representatives of Cede & Co. or another nominee designated the Selling Stockholders appointed by DTCsuch Selling Stockholder, in each case on the Underwriters and the Company’s share registry in accordance with its certificate of incorporation, bylaws and applicable law, (ii) DTC is a “securities intermediary” within the meaning of Section 8-102(a)(14) arrangements made by such Selling Stockholder for custody and for the appointment of the NYUCCCustodian and the Representatives of the Selling Stockholders by such Selling Stockholder are irrevocable, and (iii) appropriate entries 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 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 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 appointed by such Selling Stockholder and delivered to the accounts Underwriters or counsel for the Underwriters in connection with the offering of the several Underwriters on the records of DTC will have been made pursuant Shares shall be deemed to the NYUCCbe a representation and warranty by such Selling Stockholder, and (iv) the several Underwriters have no notice (within the meaning of Section 8-105 of the NYUCC) of any adverse claimas to matters covered thereby, to each Underwriter.
Appears in 1 contract
Samples: Underwriting Agreement (Smith Electric Vehicles Corp.)
Representations and Warranties of the Selling Stockholders. Each Selling Stockholder severally represents and warrants to, and agrees with, to each Underwriter, of the Company and Arconic Underwriters that:
(a) Such the Registration Statement complied when it became effective, complies as of the date hereof and, as amended or supplemented, at the time of purchase, each additional time of purchase, if any, and at all times 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, will comply, in all material respects, with the requirements of the Act; 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; each Preliminary Prospectus complied, at the time it was filed with the Commission, and complies as of the date hereof, in all material respects with the requirements of the Act; 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, 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, 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 Prospectus will comply, as of its date, the date that it is filed with the Commission, the time of purchase, each additional time of purchase, if any, and at all times 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, in all material respects, with the requirements of the Act (including, without limitation, Section 10(a) of the Act); 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, 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 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; provided, however, that such Selling Stockholder hasmakes no representation or warranty in this paragraph 4(a) with respect to any statement contained in the Registration Statement, any Preliminary Prospectus, the Prospectus or any Permitted Free Writing Prospectus in reliance upon and immediately 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 Registration Statement, such Preliminary Prospectus, the Prospectus or such Permitted Free Writing Prospectus; and provided, further, that as to the Selling Stockholder identified on Schedule C annexed hereto as the Non-Management Stockholder, the representation and warranty contained in this paragraph 4(a) shall be limited to information, statements or omissions relating to such Non-Management Stockholder.
(b) such Selling Stockholder has not, prior to the Closing Dateexecution 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 Additional Shares to be sold by such Selling Stockholder pursuant to this Agreement nor the consummation of the transactions contemplated hereby or thereby will haveconflict with, valid title 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) 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, (ii) any federal, state, local or foreign law, regulation or rule, (iii) 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 (iv) 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 and AIM), is required in connection with the sale of the Additional 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 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, (iii) under the Conduct Rules of the NASD or (iv) admission of the Shares to trading on AIM, which admission need not occur prior to or simultaneously with the issuance and sale of the Shares;
(e) neither such Selling Stockholder nor any of its affiliates has taken, directly or indirectly, any action designed to, or a valid “which has constituted or might reasonably be expected to cause or result in the stabilization or manipulation of the price of any security entitlement” 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 Additional Shares to be sold by such Selling Stockholder pursuant to Section 8-102(a)(17) this Agreement will be paid to a member of the New York Uniform Commercial Code NASD or any affiliate of (or person "associated with," as such terms are used in the “NYUCC”Rules of the NASD) in respect ofsuch member;
(g) such Selling Stockholder now is and, at the time of delivery of such Additional Shares (at each additional time of purchase), 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, at the time of delivery of such Additional Shares, will have valid and marketable title to such Additional Shares, and upon delivery of and payment for such Additional Shares (at each additional time of purchase), the Underwriters will acquire valid and marketable title to such Additional Shares free and clear of all any claim, lien, encumbrance, security interestsinterest, claimscommunity property right, liens, equities restriction on transfer or other encumbrances defect in title;
(h) such Selling Stockholder has and, at the time of delivery of the Additional Shares to be sold by such Selling Stockholder pursuant to this Agreement (at each additional time of purchase), will have full legal right, power and the legal right and powercapacity, and all authorization authorizations and approval approvals required by lawlaw (other than those imposed by the Act and state securities or blue sky laws), to (i) enter into this Agreement, Agreement and a Custody Agreement and to execute a Power of Attorney, (ii) sell, assign, transfer and deliver the Additional Shares or a security entitlement in respect of the Shares. Each Underwriter that has purchased the Shares delivered at the Closing Date to The Depository Trust Company (“DTC”) by making payment therefore as provided herein, and that has the Shares credited by book entry to the “securities account” or “securities accounts” (within the meaning of Section 8-501(a) of the NYUCC) will acquire a security entitlement to the Shares purchased be sold by such Underwriter, and no action based on an “adverse claim” (within the meaning of Section 8-102(a)(1) of the NYUCC) may be asserted against such Underwriter with respect to the Shares. For purposes of this representation, each Selling Stockholder may assume that when pursuant to this Agreement in the manner provided in this Agreement and (iii) make the representations, warranties and agreements made by such payment, delivery (if necessary) and crediting occur, Selling Stockholder herein;
(i) this Agreement, the Shares will Custody Agreement and the Power of Attorney to which such Selling Stockholder is a party have each been registered duly executed and delivered by (or, in the name case of Cede & Co. or another nominee designated by DTCthis Agreement, in on behalf of) such Selling Stockholder, and each case on the Company’s share registry is a legal, valid and binding agreement of such Selling Stockholder enforceable in accordance with its certificate terms;
(j) such Selling Stockholder has duly and irrevocably authorized each of incorporationthe Representatives of the Selling Stockholders (whether acting alone or together), bylaws on behalf of such Selling Stockholder, to execute and applicable lawdeliver this Agreement and any other documents necessary or desirable in connection with the transactions contemplated hereby or thereby and to deliver the Additional Shares to be sold by such Selling Stockholder pursuant to this Agreement and receive payment therefor pursuant hereto;
(k) the sale of the Additional Shares to be sold by such Selling 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;
(l) at each additional time of purchase, all stock transfer or other taxes (other than income taxes), if any, that are required to be paid in connection with the sale and transfer of the Additional 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;
(m) pursuant to the Custody Agreement to which such Selling Stockholder is a party, certificates in negotiable form for the Additional 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 Additional Shares in accordance with this Agreement; such Selling Stockholder agrees that (i) such Additional 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) DTC is a “securities intermediary” within the meaning of Section 8-102(a)(14) arrangements made by such Selling Stockholder for custody and for the appointment of the NYUCCCustodian and the Representatives of the Selling Stockholders by such Selling Stockholder are irrevocable, and (iii) appropriate entries 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 other event (each, an "Event"); if an Event occurs before the delivery of the Additional Shares hereunder, certificates for the Additional 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 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;
(n) such Selling Stockholder does not have any registration or other similar rights to have any equity or debt securities of the Company registered for sale by the Company under the Registration Statement or included in the offering of the Shares, except for such rights as have been waived or which are described in the Registration Statement, each Preliminary Prospectus and the Prospectus (and which have been complied with); and
(o) such Selling Stockholder does not have, or has waived prior to the accounts date hereof, any preemptive right, co-sale right or right of first refusal or other similar right to purchase any of the several Shares that are to be sold by the Company or any other Selling Stockholder to the Underwriters on the records of DTC will have been made pursuant to the NYUCCthis Agreement; and such Selling Stockholder does not own any warrants, options or similar rights to acquire, and (iv) does not have any right or arrangement to acquire, any capital stock, right, warrants, options or other securities from the several Underwriters have no notice (within Company, other than those described in the meaning of Section 8-105 Registration Statement, each Preliminary Prospectus and the Prospectus. In addition, any certificate signed by any Selling Stockholder or by any Representative of the NYUCC) Selling Stockholders and delivered to the Underwriters or counsel for the Underwriters in connection with the offering of any adverse claimthe 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
Samples: Underwriting Agreement (Ocean Power Technologies, Inc.)
Representations and Warranties of the Selling Stockholders. Each Selling Stockholder Stockholder, severally and not jointly, represents and warrants to, and agrees with, to each Underwriter, the Company and Arconic Underwriter that:
(a) Such Selling Stockholder has, and immediately prior to the Closing Date, such Selling Stockholder now is and, at the time of delivery of such Shares (whether the time of purchase or additional time of purchase, as the case may be) will havebe, valid title to, or a valid “security entitlement” the lawful owner of the number of Shares to be sold by such Selling Stockholder pursuant to Section 8-102(a)(17) 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 New York Uniform Commercial Code (time of purchase or the “NYUCC”) in respect ofadditional time of purchase, as the case may be), the Underwriters will acquire valid and marketable title to such Shares free and clear of all any claim, lien, encumbrance, security interestsinterest, claimscommunity property right, liens, equities restriction on transfer or other encumbrances defect in title;
(b) such Selling Stockholder has and at the time of delivery of such Shares (whether the time of purchase or additional time of purchase, as the case may be) will have, full legal right right, power and powercapacity, and all authorization and any approval required by lawlaw (other than those imposed by the Act and the securities or blue sky laws of certain jurisdictions), to enter into this Agreementsell, and to sellassign, transfer and deliver such Shares in the manner provided in this Agreement;
(c) this Agreement and the Custody Agreement among American Stock Transfer & Trust Company, as custodian, and the Selling Stockholders (the “Custody Agreement”) have been duly executed and delivered by such Selling Stockholder and each is a legal, valid and binding agreement of such Selling Stockholder enforceable in accordance with its terms;
(d) 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 or a security entitlement to be sold by such Selling Stockholder and receive payment therefor pursuant hereto;
(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 respect of the Shares. Each Underwriter that has purchased 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 at the Closing Date to The Depository Trust Company (“DTC”) by making against payment therefore therefor as provided herein, will be fully paid, non-assessable and that has free of statutory and contractual preemptive rights, resale rights, rights of first refusal and similar rights; and
(h) 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 credited to be sold by book entry such Selling Stockholder to the “securities account” or “securities accounts” (within the meaning of Section 8-501(a) of the NYUCC) will acquire a security entitlement to the Shares purchased by such Underwriter, and no action based on an “adverse claim” (within the meaning of Section 8-102(a)(1) of the NYUCC) may be asserted against such Underwriter with respect to the Shares. For purposes of this representation, each Selling Stockholder may assume that when such payment, delivery (if necessary) and crediting occur, (i) the Shares several Underwriters hereunder will have been registered in the name of Cede & Co. fully paid or another nominee designated provided for by DTC, in each case on the Company’s share registry in accordance with its certificate of incorporation, bylaws such Selling Stockholder and applicable law, (ii) DTC is a “securities intermediary” within the meaning of Section 8-102(a)(14) of the NYUCC, (iii) appropriate entries to the accounts of the several Underwriters on the records of DTC all laws imposing such taxes will have been made pursuant to the NYUCC, and (iv) the several Underwriters have no notice (within the meaning of Section 8-105 of the NYUCC) of any adverse claimfully complied with.
Appears in 1 contract
Samples: Underwriting Agreement (Bruker Corp)
Representations and Warranties of the Selling Stockholders. Each Selling Stockholder Stockholder, severally and not jointly, represents and warrants to, to the Underwriter and agrees with, each Underwriter, the Company and Arconic that:
(a) Such Selling Stockholder has, and immediately prior is the record owner of the Shares to the Closing Date, be sold by such Selling Stockholder will have, valid title to, or a valid “security entitlement” pursuant to Section 8-102(a)(17) of the New York Uniform Commercial Code (the “NYUCC”) in respect of, the Shares hereunder free and clear of all security interests, claims, liens, encumbrances, equities or other encumbrances and the legal right claims and powerhas duly endorsed such Shares in blank, and all authorization and approval required by law, to enter into this Agreement, and to sell, transfer and deliver assuming that the Underwriter acquires its interest in the Shares or a security entitlement in respect of the Shares. Each Underwriter that it has purchased the Shares delivered at the Closing Date to The Depository Trust Company (“DTC”) by making payment therefore as provided herein, and that has the Shares credited by book entry to the “securities account” or “securities accounts” (within the meaning of Section 8-501(a) of the NYUCC) will acquire a security entitlement to the Shares purchased by from such Underwriter, and no action based on an “adverse claim” (within the meaning of Section 8-102(a)(1) of the NYUCC) may be asserted against such Underwriter with respect to the Shares. For purposes of this representation, each Selling Stockholder may assume that when such payment, delivery (if necessary) and crediting occur, (i) the Shares will have been registered in the name without notice of Cede & Co. or another nominee designated by DTC, in each case on the Company’s share registry in accordance with its certificate of incorporation, bylaws and applicable law, (ii) DTC is a “securities intermediary” within the meaning of Section 8-102(a)(14) of the NYUCC, (iii) appropriate entries to the accounts of the several Underwriters on the records of DTC will have been made pursuant to the NYUCC, and (iv) the several Underwriters have no notice any adverse claim (within the meaning of Section 8-105 of the NYUCCNew York Uniform Commercial Code (the “UCC”)), the Underwriter that has purchased such Shares delivered on the Closing Date to DTC or other securities intermediary by making payment therefor as provided herein and that has had such Shares credited to the securities account or accounts of the Underwriter maintained with DTC or such other securities intermediary will have acquired a security entitlement (within the meaning of Section 8-102(a)(17) of the UCC) to such Shares purchased by the Underwriter, and no action based on an adverse claim (within the meaning of Section 8-102 of the UCC) may be successfully asserted against the Underwriter under the UCC as in effect in the State of New York with respect to such Shares.
(b) Such Selling Stockholder has not taken, directly or indirectly, any adverse claimaction designed to or that would constitute or that might reasonably be expected to cause or result in, under the Exchange Act or otherwise, stabilization or manipulation of the price of any security of the Company to facilitate the sale or resale of the Shares during the distribution of the Shares by the Underwriter.
(c) Certificates in negotiable form representing all of the Shares to be sold by such Selling Stockholder have been deposited with Computershare Trust Company, N.A. (the “Transfer Agent”). Such Selling Stockholder specifically agrees that the Shares represented by the certificates so deposited are subject to the interests of the Underwriter hereunder, and that the arrangements made by such Selling Stockholder for such deposit will not be revoked prior to the sales of such Shares hereunder. Such Selling Stockholder specifically agrees that the obligations of such Selling Stockholder hereunder shall not be terminated by operation of law by the dissolution of such partnership, corporation or organization, or by the occurrence of any other event. If any such partnership, corporation or similar organization should be dissolved, or if any other such event should occur, before the delivery of the Shares hereunder, certificates representing such Shares shall be delivered by or on behalf of such Selling Stockholder in accordance with the terms and conditions of this Agreement.
(d) No consent, approval, authorization or order of any court or governmental agency or body is required for the consummation by such Selling Stockholder of the transactions contemplated herein, except for (i) the registration of the Shares under the Securities Act, (ii) such consents, approvals, authorization or orders as may be required by FINRA and under the blue sky laws of any jurisdiction in connection with the purchase and distribution of the Shares by the Underwriter or (iii) those as to which the failure to obtain will affect in any material respect such Selling Stockholder’s ability to perform its obligations hereunder.
(e) Neither the sale of the Shares being sold by such Selling Stockholder nor the consummation of any other of the transactions herein contemplated by such Selling Stockholder will conflict with, result in a breach or violation of, or constitute a default under, (i) any law applicable to such Selling Stockholder, (ii) certificate of formation or the limited partnership or limited liability company agreement, as applicable, of such Selling Stockholder, (iii) the terms of any indenture or other agreement or instrument to which such Selling Stockholder is a party or bound or (iv) any judgment, 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, except in the case of clauses (i), (iii) and (iv), for any such conflict, breach, violation or default that would not impair in any material respect the ability of such Selling Stockholder to consummate the transactions contemplated by this Agreement.
(f) In respect of any statements in or omissions from the Registration Statement, the Pricing Disclosure Package and the Prospectus, any Preliminary Prospectus and any Issuer Free Writing Prospectuses made in reliance upon and in conformity with any information related to such Selling Stockholder furnished in writing to the Company by such Selling Stockholder expressly for use therein in connection with the disclosure required by Form S-3 (such information, the “Selling Stockholder Information”), such information does not contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading. It is understood and agreed that the only Selling Stockholder Information furnished by any Selling Stockholder consists solely of the name and address of such Selling Stockholder and the number of Shares owned by such Selling Stockholder under the caption “Selling Stockholders” in the Pricing Disclosure Package and Prospectus.
(g) The sale of the Shares by such Selling Stockholder pursuant hereto is not prompted by any information concerning the Company or any of its subsidiaries which is not set forth in the Registration Statement, the Pricing Disclosure Package and the Prospectus or any amendment or supplement thereto.
(h) Other than the Registration Statement, the Preliminary Prospectus and the Prospectus, such Selling Stockholder (including its agents and representatives, other than the Underwriter in its 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 Item (a) of Annex A hereto, each electronic road show or other written communications approved in writing in advance by the Company and the Underwriter.
Appears in 1 contract
Representations and Warranties of the Selling Stockholders. Each Selling Stockholder Stockholder, severally and not jointly with the other Selling Stockholders, represents and warrants to, and agrees with, to each Underwriter, of the Company and Arconic Underwriters that:
(a) Such all information with respect to such Selling Stockholder hasincluded in the “Principal and Selling Stockholders” section of each of the Registration Statement, any Preliminary Prospectus and the Prospectus complied and will comply with all applicable provisions of the Act; the Registration Statement, as it relates to the information with respect to such Selling Stockholder in such “Principal and Selling Stockholders” section, 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 such Preliminary Prospectus relates to the information with respect to such Selling Stockholder included in the “Principal and Selling Stockholders” section, 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 immediately at no time during such period did or will any Preliminary Prospectus, as then amended or supplemented, in each case as they relate to the information with respect to such Selling Stockholder included in the “Principal and Selling Stockholders” section, 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 the Prospectus relates to the information with respect to such Selling Stockholder included in the “Principal and Selling Stockholders” section, 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;
(b) such Selling Stockholder has not, prior to the Closing Dateexecution 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 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 haveconflict with, valid title 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, 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, 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 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 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 a 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) such Selling Stockholder has and, at the time of delivery of such Shares (whether the time of purchase or any additional time of purchase, as the case may be), will have good and valid “security entitlement” title to the Shares to be sold by such Selling Stockholder pursuant to Section 8-102(a)(17) this Agreement and has and, at the time of delivery of such Shares, will have good and valid title to such Shares, and upon delivery of and payment for such Shares (whether at the New York Uniform Commercial Code (time of purchase or any additional time of purchase, as the “NYUCC”) in respect ofcase may be), the Underwriters will acquire good and valid title to such Shares free and clear of all any claim, lien, encumbrance, security interestsinterest, claimscommunity property right, liens, equities restriction on transfer or other encumbrances defect in title;
(g) 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 the legal right and powercapacity, and all authorization authorizations and approval approvals required by lawlaw (other than those imposed by the Act and state securities or blue sky laws), to (i) enter into this AgreementAgreement and a Custody Agreement (as defined below) and (ii) sell, and to sellassign, transfer and deliver the Shares or to be sold by such Selling Stockholder pursuant to this Agreement in the manner provided in this Agreement;
(h) this Agreement and the custody agreement (the “Custody Agreement”), dated [a security entitlement in respect of recent date before the Shares. Each Underwriter that has purchased pricing date], between [ ], as custodian (the Shares delivered at the Closing Date to The Depository Trust Company (“DTCCustodian”) by making payment therefore as provided herein), and that has the Shares credited by book entry to the “securities account” or “securities accounts” (within the meaning of Section 8-501(a) of the NYUCC) will acquire a security entitlement to the Shares purchased such Selling Stockholder have each been duly executed and delivered by such Underwriter, and no action based on an “adverse claim” (within the meaning of Section 8-102(a)(1) of the NYUCC) may be asserted against such Underwriter with respect to the Shares. For purposes of this representation, each Selling Stockholder may assume that when such payment, delivery (if necessary) and crediting occur, Stockholder;
(i) at the time of purchase and each additional time of purchase, all stock transfer or other 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
(j) pursuant to the Custody Agreement to which such Selling Stockholder is a party, if any, the Shares to be sold by such Selling Stockholder pursuant to this Agreement have been registered placed in custody for the name purpose of Cede & Co. or another nominee designated by DTC, in each case on the Company’s share registry making delivery of such Shares in accordance with its certificate of incorporationthis Agreement; such Selling Stockholder agrees that (i) such Shares represented by such certificates are for the benefit of, bylaws and applicable lawcoupled with and subject to the interest of, the Custodian, the Underwriters and the Company, (ii) DTC is a “securities intermediary” within the meaning of Section 8-102(a)(14) arrangements made by such Selling Stockholder for custody and for the appointment of the NYUCCCustodian by such Selling Stockholder are irrevocable, and (iii) appropriate entries 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 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 Custody Agreement to which such Selling Stockholder is a party and this Agreement, and actions taken by the Custodian pursuant to such Custody Agreement shall be as valid as if such Event had not occurred, regardless of whether or not the Custodian 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) and delivered to the accounts Underwriters or counsel for the Underwriters in connection with the offering of the several Underwriters on the records of DTC will have been made pursuant Shares shall be deemed to the NYUCCbe a representation and warranty by such Selling Stockholder, and (iv) the several Underwriters have no notice (within the meaning of Section 8-105 of the NYUCC) of any adverse claimas to matters covered thereby, to each Underwriter.
Appears in 1 contract
Representations and Warranties of the Selling Stockholders. Each Selling Stockholder Stockholder, severally and not jointly with the other Selling Stockholders, represents and warrants to, and agrees with, to each Underwriter, of the Company and Arconic Underwriters that:
(a) Such all information with respect to such Selling Stockholder hasincluded or incorporated by reference in the Registration Statement, any Pre-Pricing Prospectus or the Prospectus, to the extent made in reliance upon and in conformity with written information furnished to the Company by such Selling Stockholder, complied and will comply in all material respects with all applicable provisions of the Act as of the Effective Time or when they are filed with the Commission, as the case may be; (ii) 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, provided that the representations and warranties set forth in this subsection (ii) are limited to statements or omissions made in reliance upon and in conformity with information furnished in writing to the Company by such Selling Stockholder specifically for use in connection with the preparation thereof; (iii) on the date of the Pre-Pricing Prospectus, the Applicable Time, at the time of purchase and each additional time of purchase, if any, each Pre-Pricing Prospectus, as then amended or supplemented, did not and 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 immediately at such times each Pre-Pricing Prospectus, as then amended or supplemented, together with any combination of one or more of the then issued Permitted Free Writing Prospectuses, if any, did not and 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 provided that, in each case, the representations and warranties set forth in this subsection (iii) are limited to statements or omissions made in reliance upon and in conformity with information furnished in writing to the Company by such Selling Stockholder specifically for use in connection with the preparation thereof; or (iv) on the date of the Prospectus, the Applicable Time, at the time of purchase and each additional time of purchase, if any, the Prospectus, as then amended or supplemented, did not and 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 provided that the representations or warranties set forth in this subsection (iv) are limited to statements or omissions made in reliance upon and in conformity with information furnished in writing to the Company by such Selling Stockholder specifically for use in connection with the preparation thereof;
(b) such Selling Stockholder has not, prior to the Closing Dateexecution 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 Pre-Pricing 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 haveconflict with, valid title 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 applicable to such Selling Stockholder, (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) having jurisdiction over such Selling Stockholder or any of its properties or (v) any decree, judgment or order applicable to such Selling Stockholder or any of its properties; except with respect to clauses (ii), (iii), (iv) and (v) for such violations as would not constitute, individually or in the aggregate, 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 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, (iii) under the Conduct Rules of FINRA, or (iv) such other approvals as have been obtained;
(e) neither such Selling Stockholder nor any of its affiliates has taken, directly or indirectly, any action designed to, or a valid “which has constituted or might reasonably be expected to cause or result in the stabilization or manipulation of the price of any security entitlement” of the Company to facilitate the sale or resale of the Shares in violation of applicable securities laws;
(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), each Pre-Pricing Prospectus and the Prospectus or that are not required to be disclosed pursuant to Section 8-102(a)(17) the Securities Act or the Exchange Act; none of the New York Uniform Commercial Code 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 “NYUCC”Bylaws of FINRA) in respect ofsuch member;
(g) such Selling Stockholder now is and, at the time of delivery of such Shares (whether the time of purchase or any 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 of such Shares, 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 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 all any claim, lien, encumbrance, security interestsinterest, claimscommunity property right, liens, equities restriction on transfer or other encumbrances defect in title;
(h) 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 the legal right and powercapacity, and all authorization authorizations and approval approvals required by lawlaw (other than those imposed by the Act and state securities or blue sky laws), to (i) enter into this Agreement, Agreement and a Custody Agreement (as defined below) and to execute a Power of Attorney, (ii) sell, assign, transfer and deliver the Shares or a security entitlement in respect of the Shares. Each Underwriter that has purchased the Shares delivered at the Closing Date to The Depository Trust Company (“DTC”) by making payment therefore as provided herein, and that has the Shares credited by book entry to the “securities account” or “securities accounts” (within the meaning of Section 8-501(a) of the NYUCC) will acquire a security entitlement to the Shares purchased be sold by such Underwriter, and no action based on an “adverse claim” (within the meaning of Section 8-102(a)(1) of the NYUCC) may be asserted against such Underwriter with respect to the Shares. For purposes of this representation, each Selling Stockholder may assume that when pursuant to this Agreement in the manner provided in this Agreement and (iii) make the representations, warranties and agreements made by such payment, delivery (if necessary) and crediting occur, Selling Stockholder herein;
(i) (a) this Agreement has been duly executed and delivered by or on behalf of such Selling Stockholder, (b) at the Shares time of purchase or any additional time of purchase, as the case may be, a custody agreement (each, a “Custody Agreement”) between Xxxxx Fargo Bank, National Association, as custodian (the “Custodian”), and such Selling Stockholder and the Power of Attorney to which such Selling Stockholder is a party will have been registered in duly executed and delivered by or on behalf of such Selling Stockholder, and (c) the name Custody Agreement is a legal, valid and binding agreement of Cede & Co. or another nominee designated by DTC, in each case on the Company’s share registry such Selling Stockholder enforceable in accordance with its certificate terms; provided that, the enforceability thereof may be limited by bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and similar laws relating to or affecting creditors’ rights generally and by general principles of incorporationequity (regardless of whether such enforceability is considered in a proceeding in equity or at law); and provided, bylaws further, that the indemnity, contribution and exoneration provisions contained in any of such agreements may be limited by applicable lawlaws and public policy.
(j) such Selling Stockholder has duly and irrevocably authorized such Representative acting on such Selling Stockholder’s behalf to execute and deliver this Agreement and any other 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 therefore pursuant hereto;
(k) the sale of the Shares to be sold by such Selling Stockholder pursuant to this Agreement is not prompted by any material information concerning the Company or any Subsidiary which is not set forth as of the Applicable Time, time of purchase and each additional time of purchase, if any, in the Registration Statement (excluding the exhibits thereto), each Pre-Pricing Prospectus and the Prospectus;
(l) at the time of purchase and each additional time of purchase, if any, all stock transfer or other 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
(m) at the time of purchase or any additional time of purchase, as the case may be, 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 will 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 will be for the benefit of, and coupled with and subject to the interest of, the applicable Custodian, the Representatives of such Selling Stockholders, the Underwriters and the Company, (ii) DTC is a “securities intermediary” within the meaning of Section 8-102(a)(14) arrangements made by such Selling Stockholder for custody and for the appointment of the NYUCCapplicable Custodian and the Representatives of such Selling Stockholders by such Selling Stockholder will be irrevocable, and (iii) appropriate entries 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 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 applicable 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 Custodians and the Representatives of such 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 Custodians or the Representatives of such 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 accounts Underwriters or counsel for the Underwriters in connection with the offering of the several Underwriters on the records of DTC will have been made pursuant Shares shall be deemed to the NYUCCbe a representation and warranty by such Selling Stockholder, and (iv) the several Underwriters have no notice (within the meaning of Section 8-105 of the NYUCC) of any adverse claimas to matters covered thereby, to each Underwriter.
Appears in 1 contract
Representations and Warranties of the Selling Stockholders. Each Selling Stockholder Stockholder, jointly and severally with the other Selling Stockholders, represents and warrants to, and agrees with, to each Underwriter, of the Company and Arconic Underwriters that:
(a) Such all information with respect to such Selling Stockholder hasincluded in the Registration Statement, the Preliminary Prospectus or the Prospectus complied and will comply with all applicable provisions of the Act; the Registration Statement, as it relates 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 such Preliminary Prospectus relates 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, and immediately at no time during such period did or will the 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 they relate to 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, as the Prospectus relates 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 date of such Permitted Free Writing Prospectus and ends at the time of purchase did or will any Permitted Free Writing Prospectus, as such Permitted Free Writing Prospectus relates 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;
(b) such Selling Stockholder has not, prior to the Closing Date, such Selling Stockholder will have, valid title to, or a valid “security entitlement” pursuant to Section 8-102(a)(17) execution of the New York Uniform Commercial Code (the “NYUCC”) in respect of, the Shares free and clear of all security interests, claims, liens, equities or other encumbrances and the legal right and power, and all authorization and approval required by law, to enter into this Agreement, and to sell, transfer and deliver the offered or sold any Shares or a security entitlement in respect by means of the Shares. Each Underwriter that has purchased the Shares delivered at the Closing Date to The Depository Trust Company (any “DTC”) by making payment therefore as provided herein, and that has the Shares credited by book entry to the “securities account” or “securities accountsprospectus” (within the meaning of Section 8-501(a) of the NYUCC) will acquire a security entitlement to the Shares purchased by such UnderwriterAct), and no action based on an or used any “adverse claimprospectus” (within the meaning of Section 8-102(a)(1the Act) in connection with the offer or sale of the NYUCC) may be asserted against such Underwriter with respect to the Shares. For purposes of this representation, each Selling Stockholder may assume that when such payment, delivery (if necessary) and crediting occur, (i) the Shares will have been registered in the name of Cede & Co. or another nominee designated by DTC, 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) to which such Selling Stockholder is a party nor the sale by such Selling Stockholder of the Firm 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 Firm 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 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 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), the 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 Firm Shares, will be the lawful owner of the number of Firm Shares to be sold by such Selling Stockholder pursuant to this Agreement and has and, at the time of delivery of such Firm Shares, will have valid and marketable title to such Firm Shares, and upon delivery of and payment for such Firm Shares, the Underwriters will acquire valid and marketable title to such Firm Shares free and clear of any claim, lien, encumbrance, security interest, community property right, restriction on transfer or other defect in title;
(h) such Selling Stockholder has and, at the time of delivery of the Firm Shares to be sold by such Selling Stockholder pursuant to this Agreement, 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, (ii) sell, assign, transfer and deliver the Firm Shares to be sold by such Selling Stockholder pursuant to this Agreement in the manner provided in this Agreement and (iii) make the representations, warranties and agreements made by such Selling Stockholder herein;
(i) this Agreement and the Power of Attorney and Custody Agreement (the “Custody Agreement”), dated , 2006 between American Stock Transfer & Trust Company’s share registry , as custodian (the “Custodian”), and such Selling Stockholder has been duly executed and delivered by (or, in the case of this Agreement, on behalf of) such Selling Stockholder, and is a legal, valid and binding agreement of such Selling Stockholder enforceable in accordance with its certificate terms, except as the same may be subject to or limited by bankruptcy, insolvency, reorganization, arrangement, moratorium or other similar laws relating to or affecting the rights of incorporationcreditors or by general principles of equity, bylaws including, without limitation, concepts of materiality, reasonableness, good faith and applicable fair dealing, and the possible unavailability of specific performance or injunctive relief, regardless of whether considered in a proceeding in equity or at law;
(j) such Selling Stockholder has duly and irrevocably authorized each of the Representatives of the Selling Stockholders (whether acting alone or together), on behalf of such Selling Stockholder, to execute and deliver this Agreement and any other documents necessary or desirable in connection with the transactions contemplated hereby or thereby and to deliver the Firm Shares to be sold by such Selling Stockholder pursuant to this Agreement and receive payment therefor pursuant hereto;
(k) the sale of the Firm Shares to be sold by such Selling 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), the Preliminary Prospectus and the Prospectus; and, except as set forth in the Registration Statement (excluding the exhibits thereto), the Preliminary Prospectus and the Prospectus, neither such Selling Stockholder (or, if such Selling Stockholder is a trust, estate, partnership or corporation, any beneficiary, partner or other equity owner thereof) nor any immediate family member of such Selling Stockholder (or beneficiary, partner or other equity owner) is a director, officer or employee of or consultant to the Company or any of its Subsidiaries;
(l) at the time of purchase and each additional time of purchase, all stock transfer or other taxes (other than income taxes), if any, that are required to be paid in connection with the sale and transfer of the Firm Shares to be sold by such Selling Stockholder to the several Underwriters hereunder will be fully paid or provided for by such Selling Stockholder, and all laws imposing such taxes will be fully complied with; and
(m) pursuant to the Custody Agreement to which such Selling Stockholder is a party, certificates in negotiable form for the Firm 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 Firm Shares in accordance with this Agreement; such Selling Stockholder agrees that (i) such Firm 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) DTC is a “securities intermediary” within the meaning of Section 8-102(a)(14) arrangements made by such Selling Stockholder for custody and for the appointment of the NYUCCCustodian and the Representatives of the Selling Stockholders by such Selling Stockholder are irrevocable, and (iii) appropriate entries 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 bankruptcy, 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 Firm Shares hereunder, certificates for the Firm Shares shall be delivered by the Custodian in accordance with the terms and conditions of 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 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 accounts Underwriters or counsel for the Underwriters in connection with the offering of the several Underwriters on the records of DTC will have been made pursuant Shares shall be deemed to the NYUCCbe a representation and warranty by such Selling Stockholder, and (iv) the several Underwriters have no notice (within the meaning of Section 8-105 of the NYUCC) of any adverse claimas to matters covered thereby, to each Underwriter.
Appears in 1 contract
Representations and Warranties of the Selling Stockholders. Each Selling Stockholder Stockholder, severally and not jointly with the other Selling Stockholders, represents and warrants to, and agrees with, to each Underwriter, of the Company and Arconic Underwriters that:
(a) Such all information with respect to such Selling Stockholder hasincluded in the Registration Statement, any Preliminary Prospectus or the Prospectus complied and will comply with all applicable provisions of the Act; the Registration Statement, as it relates to the 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 such Preliminary Prospectus relates 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, and immediately 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 they relate to 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, as the Prospectus relates 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 date of such Permitted Free Writing Prospectus and ends at the time of purchase did or will any Permitted Free Writing Prospectus, as such Permitted Free Writing Prospectus relates 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;
(b) such Selling Stockholder has not, prior to the Closing Dateexecution 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 haveconflict with, valid title 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 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 a valid “which has constituted or might reasonably be expected to cause or result in the stabilization or manipulation of the price of any security entitlement” 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 Section 8-102(a)(17) this Agreement will be paid to a member of the New York Uniform Commercial Code NASD or any affiliate of (or person “associated with,” as such terms are used in the “NYUCC”Rules of the NASD) in respect ofsuch member;
(g) such Selling Stockholder now is and, at the time of delivery of such Shares (whether the time of purchase or any 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 of such Shares, 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 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 all any claim, lien, encumbrance, security interestsinterest, claimscommunity property right, liens, equities restriction on transfer or other encumbrances defect in title;
(h) 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 the legal right and powercapacity, and all authorization authorizations and approval approvals required by lawlaw (other than those imposed by the Act and state securities or blue sky laws), to (i) enter into this Agreement, Agreement and a Custody Agreement (as defined below) and to execute a Power of Attorney, (ii) sell, assign, transfer and deliver the Shares or a security entitlement in respect of the Shares. Each Underwriter that has purchased the Shares delivered at the Closing Date to The Depository Trust Company (“DTC”) by making payment therefore as provided herein, and that has the Shares credited by book entry to the “securities account” or “securities accounts” (within the meaning of Section 8-501(a) of the NYUCC) will acquire a security entitlement to the Shares purchased be sold by such Underwriter, and no action based on an “adverse claim” (within the meaning of Section 8-102(a)(1) of the NYUCC) may be asserted against such Underwriter with respect to the Shares. For purposes of this representation, each Selling Stockholder may assume that when pursuant to this Agreement in the manner provided in this Agreement and (iii) make the representations, warranties and agreements made by such payment, delivery (if necessary) and crediting occur, Selling Stockholder herein;
(i) this Agreement and the Shares will custody agreement (the “Custody Agreement”), dated [·], between American Stock Transfer & Trust Company, as custodian (the “Custodian”), and such Selling Stockholder and the Power of Attorney to which such Selling Stockholder is a party have each been registered duly executed and delivered by (or, in the name case of Cede & Co. or another nominee designated by DTCthis Agreement, in on behalf of) such Selling Stockholder, and each case on the Company’s share registry is a legal, valid and binding agreement of such Selling Stockholder enforceable in accordance with its certificate terms, except as may be limited by bankruptcy, insolvency, moratorium or other laws designed for the protection of incorporationcreditors;
(j) such Selling Stockholder has duly and irrevocably authorized each of the Representatives of the Selling Stockholders (whether acting alone or together), bylaws on behalf of such Selling Stockholder, to execute and applicable lawdeliver this Agreement and any other 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;
(k) the sale of the Shares to be sold by such Selling 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;
(iil) DTC at the time of purchase and each additional time of purchase, all stock transfer or other 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;
(m) such Selling Stockholder is not, and has not been at any time, a “securities intermediaryUnited States Real Property Holding Corporation” within the meaning of Section 8-102(a)(14897(c)(2) of the NYUCCInternal Revenue Code of 1986, as amended;
(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) appropriate entries 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 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 Representatives of the Selling Stockholders pursuant to such Power of Attorney or the 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 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 accounts Underwriters or counsel for the Underwriters in connection with the offering of the several Underwriters on the records of DTC will have been made pursuant Shares shall be deemed to the NYUCCbe a representation and warranty by such Selling Stockholder, and (iv) the several Underwriters have no notice (within the meaning of Section 8-105 of the NYUCC) of any adverse claimas to matters covered thereby, to each Underwriter.
Appears in 1 contract
Representations and Warranties of the Selling Stockholders. Each Selling Stockholder severally represents and warrants to, and agrees with, to each Underwriter, severally and not jointly and only to the Company and Arconic extent applicable to such Selling Stockholder, that:
(a) Such Selling Stockholder hashas and at the time of delivery of the Shares (whether the time of purchase or additional time of purchase, and immediately prior to as the Closing Date, such Selling Stockholder case may be) will have, have valid title to, or a valid “security entitlement” pursuant to Section 8-102(a)(17) of the New York Uniform Commercial Code (the “NYUCC”) in respect of, the Shares to be sold by such Selling Stockholder at the time of delivery of the Shares (whether the time of purchase or additional time of purchase, as the case may be) free and clear of all security interests, claims, liens, equities or other encumbrances and the legal right full right, power and power, and all authorization and approval required by law, authority to enter into this Agreement, Agreement and to sell, assign, transfer and deliver the Shares or a security entitlement in respect to be delivered by such Selling Stockholder at the time of delivery of the Shares. Each Underwriter that Shares (whether the time of purchase or additional time of purchase, as the case may be).
(b) Such Selling Stockholder has purchased the Shares delivered and at the Closing Date to The Depository Trust Company time of delivery of such Shares (“DTC”whether the time of purchase or additional time of purchase, as the case may be) by making payment therefore as provided hereinwill 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.
(c) The Registration Statement did not, as of the Effective Time, include 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 Pre-Pricing Prospectus, as of its date, did 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 at no time during the period that has begins on the earlier of the date of such Pre-Pricing Prospectus and the date such Pre-Pricing Prospectus was filed with the Commission and ends at the time of purchase did or will any Pre-Pricing Prospectus, as then amended or supplemented, together with any combination of one or more of the then issued Permitted Free Writing Prospectuses, if any, 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 credited by book entry did or will the Prospectus, as then amended or supplemented, include an untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading; at no time during the period that begins on the date of such Permitted Free Writing Prospectus and ends at the time of purchase did or will any Permitted Free Writing Prospectus, include an untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading. This subsection (c) applies only to the “securities account” extent that any statements in or “securities accounts” (within omissions from the meaning of Section 8Registration Statement, the Pre-501(a) Pricing Prospectus, the Prospectus or any Permitted Free Writing Prospectus are based on written information furnished to the Company by such Selling Stockholder specifically for use therein, it being understood and agreed that the only such information furnished to the Company by such Selling Stockholder consists of the NYUCC) will acquire a security entitlement name of such Selling Stockholder, the information related to such Selling Stockholder set forth under the Shares purchased by such Underwriter, caption entitled “Selling Stockholders” in the Pre-Pricing Prospectus and no action based on an “adverse claim” (within the meaning of Section 8-102(a)(1) of Prospectus and the NYUCC) may be asserted against such Underwriter address and other information with respect to the Shares. For purposes of this representation, each such Selling Stockholder may assume (including share amounts but excluding any percentages) (the “Selling Stockholder Information”).
(d) Except as disclosed in the Pre-Pricing Prospectus and the Prospectus, there are no contracts, agreements or understandings between such Selling Stockholder and any person that when would give rise to a valid claim against the Company or any Underwriter for a brokerage commission, finder’s fee or other like payment in connection with the Shares by any Selling Stockholder.
(e) This Agreement, the Custody Agreement among Computershare Limited, as custodian, and such payment, delivery Selling Stockholder (if necessarythe “Custody Agreement” of such Selling Stockholder) and crediting occurthe Power of Attorney with respect to such Selling Stockholder have each been duly authorized, (i) the Shares will have been registered in the name executed and delivered by such Selling Stockholder and each is a legal, valid and binding agreement of Cede & Co. or another nominee designated by DTC, in each case on the Company’s share registry such Selling Stockholder enforceable against such Selling Stockholder in accordance with its certificate of incorporation, bylaws and applicable law, terms (ii) DTC is a “securities intermediary” within the meaning of Section 8-102(a)(14) of the NYUCC, (iii) appropriate entries it being understood that references to the accounts Custody Agreement and the Power of the several Underwriters on the records of DTC will have been made pursuant Attorney in this clause (e) shall not apply to the NYUCC, and (iv) the several Underwriters have no notice (within the meaning of Section 8-105 of the NYUCC) of any adverse claimXxxx Selling Stockholders).
Appears in 1 contract
Samples: Underwriting Agreement (Perini Corp)
Representations and Warranties of the Selling Stockholders. Each Selling Stockholder Stockholder, severally and not jointly with the other Selling Stockholders, represents and warrants to, and agrees with, to each Underwriter, of the Company and Arconic Underwriters that:
(a) Such all information with respect to such Selling Stockholder hasincluded or incorporated by reference in the Registration Statement, any Pre-Pricing Prospectus or the Prospectus complied and will comply with all applicable provisions of the Act; the Registration Statement, as it relates to the 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 Pre-Pricing Prospectus and the date such Pre-Pricing Prospectus was filed with the Commission and ends at the time of purchase did or will any Pre-Pricing Prospectus, as then amended or supplemented, as such Pre-Pricing Prospectus relates 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, and immediately at no time during such period did or will any Pre-Pricing 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 they relate to 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, 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 by the Selling Stockholders did or will the Prospectus, as then amended or supplemented, as the Prospectus relates 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 date of such Permitted Free Writing Prospectus and ends at the time of purchase did or will any Permitted Free Writing Prospectus, as such Permitted Free Writing Prospectus relates 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;
(b) such Selling Stockholder has not, prior to the Closing Dateexecution 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 Pre-Pricing Prospectus;
(c) neither the execution, delivery and performance of this Agreement or the Custody Agreement 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 haveresult in any breach or violation of or constitute a default under (or constitute any event which with notice, valid title lapse of time or both would result in any breach or violation of or constitute a default under) (i) 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, (ii) any federal, state, local or foreign law, regulation or rule applicable to the Selling Stockholders, (iv) 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) applicable to the Selling Stockholders, 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) applicable to the Selling Stockholders, 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 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 effected in accordance herewith), (ii) any necessary qualification or notification 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 a valid “which has constituted or might reasonably be expected to cause or result in the stabilization or manipulation of the price of any security entitlement” 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 Pre-Pricing 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 Section 8-102(a)(17) this Agreement will be paid to a member of the New York Uniform Commercial Code NASD or any affiliate of (or person “associated with,” as such terms are used in the “NYUCC”Rules of the NASD) in respect ofsuch member;
(g) such Selling Stockholder, at the time of delivery of such Shares, will be the lawful owner of the number of Shares to be sold by such Selling Stockholder pursuant to this Agreement and, at the time of delivery of such Shares, 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 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 all any statutory or contractual preemptive rights, resale rights, rights of first refusal and similar rights, or any claim, lien, encumbrance, security interestsinterest, claimscommunity property right, liens, equities restriction on transfer or other encumbrances defect in title;
(h) such Selling Stockholder has and, at the time of delivery of the Shares to be sold by such Selling Stockholder pursuant to this Agreement, will have full legal right, power and the legal right and powercapacity, and all authorization authorizations and approval approvals required by lawlaw (other than those imposed by the Act and state securities or blue sky laws), to (i) enter into this AgreementAgreement and the Custody Agreement (as defined below), and to (ii) sell, assign, transfer and deliver the Shares or to be sold by such Selling Stockholder pursuant to this Agreement in the manner provided in this Agreement and (iii) make the representations, warranties and agreements made by such Selling Stockholder herein;
(i) this Agreement and the custody agreement and power of attorney (the “Custody Agreement”), dated a security entitlement recent date before the trade date, by such Selling Stockholder have each been duly executed and delivered by (or, in respect the case of this Agreement, on behalf of) such Selling Stockholder, and each is a legal, valid and binding agreement of such Selling Stockholder enforceable in accordance with its terms;
(j) such Selling Stockholder has duly and irrevocably authorized each of the Shares. Each Underwriter that has purchased Representatives of the Selling Stockholders (whether acting alone or together), on behalf of such Selling Stockholder, to execute and deliver this Agreement and any other documents necessary or desirable in connection with the transactions contemplated hereby or thereby and to deliver the Shares delivered to be sold by such Selling Stockholder pursuant to this Agreement and receive payment therefor pursuant hereto;
(k) the sale of the Shares to be sold by such Selling 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 Pre-Pricing Prospectus and the Prospectus;
(l) at the Closing Date time of purchase, all stock transfer or other taxes (other than income taxes), if any, that are required to The Depository Trust Company (“DTC”) be paid in connection with the sale and transfer of the Shares to be sold by making payment therefore as such Selling Stockholder to the several Underwriters hereunder will be fully paid or provided hereinfor by such Selling Stockholder, and that has the Shares credited by book entry all laws imposing such taxes will be fully complied with; and
(m) pursuant to the “securities account” or “securities accounts” (within the meaning of Section 8-501(a) of the NYUCC) will acquire a security entitlement Custody Agreement to the Shares purchased by which such Underwriter, and no action based on an “adverse claim” (within the meaning of Section 8-102(a)(1) of the NYUCC) may be asserted against such Underwriter with respect to the Shares. For purposes of this representation, each Selling Stockholder may assume is a party, such Selling Stockholder agrees that when such payment, delivery (if necessary) and crediting occur, (i) the Representatives of the Selling Stockholders will cause the Shares will have been registered in to be sold by such Selling Stockholder to be delivered to the name of Cede & Co. or another nominee designated by DTC, in each case on the Company’s share registry Underwriters in accordance with its certificate of incorporation, bylaws and applicable lawthis Agreement, (ii) DTC is a “securities intermediary” within the meaning of Section 8-102(a)(14) arrangements made by such Selling Stockholder for the appointment of the NYUCCRepresentatives of the Selling Stockholders by such Selling Stockholder are irrevocable, and (iii) appropriate entries 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 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 in accordance with the terms and conditions of the Custody Agreement to which such Selling Stockholder is a party and this Agreement, and actions taken by the Representatives of the Selling Stockholders pursuant to such Custody Agreement shall be as valid as if such Event had not occurred, regardless of whether or not the Representatives of the Selling Stockholders shall have received notice thereof. In addition, any certificate signed by any Selling Stockholder or by any Representative of the Selling Stockholders and delivered to the accounts Underwriters or counsel for the Underwriters in connection with the offering of the several Underwriters on the records of DTC will have been made pursuant Shares shall be deemed to the NYUCCbe a representation and warranty by such Selling Stockholder, and (iv) the several Underwriters have no notice (within the meaning of Section 8-105 of the NYUCC) of any adverse claimas to matters covered thereby, to each Underwriter.
Appears in 1 contract
Samples: Underwriting Agreement (Energy Conversion Devices Inc)
Representations and Warranties of the Selling Stockholders. Each Selling Stockholder Stockholder, severally and not jointly with the other Selling Stockholders, represents and warrants to, and agrees with, to each Underwriter, of the Company and Arconic Underwriters that:
(a) Such all information with respect to such Selling Stockholder hasincluded or incorporated by reference in the Registration Statement, any Pre-Pricing Prospectus or the Prospectus, to the extent made in reliance upon and in conformity with written information furnished to the Company by such Selling Stockholder, complied and will comply in all material respects with all applicable provisions of the Act as of the Effective Time or when they are filed with the Commission, as the case may be; (ii) 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, provided that the representations and warranties set forth in this subsection (ii) are limited to statements or omissions made in reliance upon and in conformity with information furnished in writing to the Company by such Selling Stockholder specifically for use in connection with the preparation thereof; (iii) on the date of the Pre-Pricing Prospectus, the Applicable Time, at the time of purchase and each additional time of purchase, if any, each Pre-Pricing Prospectus, as then amended or supplemented, did not and 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 immediately at such times each Pre-Pricing Prospectus, as then amended or supplemented, together with any combination of one or more of the then issued Permitted Free Writing Prospectuses, if any, did not and 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 provided that, in each case, the representations and warranties set forth in this subsection (iii) are limited to statements or omissions made in reliance upon and in conformity with information furnished in writing to the Company by such Selling Stockholder specifically for use in connection with the preparation thereof; or (iv) on the date of the Prospectus, the Applicable Time, at the time of purchase and each additional time of purchase, if any, the Prospectus, as then amended or supplemented, did not and 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 provided that the representations or warranties set forth in this subsection (iv) are limited to statements or omissions made in reliance upon and in conformity with information furnished in writing to the Company by such Selling Stockholder specifically for use in connection with the preparation thereof;
(b) such Selling Stockholder has not, prior to the Closing Dateexecution 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 Pre-Pricing 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 haveconflict with, valid title 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 applicable to such Selling Stockholder, (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) having jurisdiction over such Selling Stockholder or any of its properties or (v) any decree, judgment or order applicable to such Selling Stockholder or any of its properties; except with respect to clauses (ii), (iii), (iv) and (v) for such violations as would not constitute, individually or in the aggregate, 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 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, (iii) under the Conduct Rules of FINRA, or (iv) such other approvals as have been obtained;
(e) neither such Selling Stockholder nor any of its affiliates has taken, directly or indirectly, any action designed to, or a valid “which has constituted or might reasonably be expected to cause or result in the stabilization or manipulation of the price of any security entitlement” of the Company to facilitate the sale or resale of the Shares in violation of applicable securities laws;
(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), each Pre-Pricing 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 Section 8-102(a)(17this 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;
(g) such Selling Stockholder now is and, at the time of delivery of such Shares (whether the time of purchase or any additional time of purchase, as the case may be), will be the lawful owner of the New York Uniform Commercial Code number of Shares to be sold by such Selling Stockholder pursuant to this Agreement and has and, at the time of delivery of such Shares, will have valid and marketable title to such Shares, and upon delivery of and payment for such Shares (whether at the “NYUCC”) in respect oftime of purchase or 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 all any claim, lien, encumbrance, security interestsinterest, claimscommunity property right, liens, equities restriction on transfer or other encumbrances defect in title;
(h) 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 the legal right and powercapacity, and all authorization authorizations and approval approvals required by lawlaw (other than those imposed by the Act and state securities or blue sky laws), to (i) enter into this Agreement, Agreement and a Custody Agreement (as defined below) and to execute a Power of Attorney, (ii) sell, assign, transfer and deliver the Shares or a security entitlement in respect of the Shares. Each Underwriter that has purchased the Shares delivered at the Closing Date to The Depository Trust Company (“DTC”) by making payment therefore as provided herein, and that has the Shares credited by book entry to the “securities account” or “securities accounts” (within the meaning of Section 8-501(a) of the NYUCC) will acquire a security entitlement to the Shares purchased be sold by such Underwriter, and no action based on an “adverse claim” (within the meaning of Section 8-102(a)(1) of the NYUCC) may be asserted against such Underwriter with respect to the Shares. For purposes of this representation, each Selling Stockholder may assume that when pursuant to this Agreement in the manner provided in this Agreement and
(iii) make the representations, warranties and agreements made by such payment, delivery (if necessary) and crediting occur, Selling Stockholder herein;
(i) (a) this Agreement has been duly executed and delivered by or on behalf of such Selling Stockholder, (b) at the Shares time of purchase or any additional time of purchase, as the case may be, a custody agreement (each, a “Custody Agreement”) between Xxxxx Fargo Bank, National Association, as custodian (the “Custodian”), and such Selling Stockholder and the Power of Attorney to which such Selling Stockholder is a party will have been registered in duly executed and delivered by or on behalf of such Selling Stockholder, and (c) the name Custody Agreement is a legal, valid and binding agreement of Cede & Co. or another nominee designated by DTC, in each case on the Company’s share registry such Selling Stockholder enforceable in accordance with its certificate terms; provided that, the enforceability thereof may be limited by bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and similar laws relating to or affecting creditors’ rights generally and by general principles of incorporationequity (regardless of whether such enforceability is considered in a proceeding in equity or at law); and provided, bylaws further, that the indemnity, contribution and exoneration provisions contained in any of such agreements may be limited by applicable lawlaws and public policy.
(j) such Selling Stockholder has duly and irrevocably authorized such Representative acting on such Selling Stockholder’s behalf to execute and deliver this Agreement and any other 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 therefore pursuant hereto;
(k) the sale of the Shares to be sold by such Selling Stockholder pursuant to this Agreement is not prompted by any material information concerning the Company or any Subsidiary which is not set forth as of the Applicable Time, time of purchase and each additional time of purchase, if any, in the Registration Statement (excluding the exhibits thereto), each Pre-Pricing Prospectus and the Prospectus;
(l) at the time of purchase and each additional time of purchase, if any, all stock transfer or other 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
(m) at the time of purchase or any additional time of purchase, as the case may be, 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 will 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 will be for the benefit of, and coupled with and subject to the interest of, the applicable Custodian, the Representatives of such Selling Stockholders, the Underwriters and the Company, (ii) DTC is a “securities intermediary” within the meaning of Section 8-102(a)(14) arrangements made by such Selling Stockholder for custody and for the appointment of the NYUCCapplicable Custodian and the Representatives of such Selling Stockholders by such Selling Stockholder will be irrevocable, and (iii) appropriate entries 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 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 applicable 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 Custodians and the Representatives of such 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 Custodians or the Representatives of such 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 accounts Underwriters or counsel for the Underwriters in connection with the offering of the several Underwriters on the records of DTC will have been made pursuant Shares shall be deemed to the NYUCCbe a representation and warranty by such Selling Stockholder, and (iv) the several Underwriters have no notice (within the meaning of Section 8-105 of the NYUCC) of any adverse claimas to matters covered thereby, to each Underwriter.
Appears in 1 contract
Representations and Warranties of the Selling Stockholders. Each Selling Stockholder Stockholder, severally and not jointly with the other Selling Stockholders, represents and warrants to, to each of the Underwriters and agrees with, each Underwriter, the Company and Arconic Independent Underwriter that:
(a) Such all information with respect to such Selling Stockholder hasincluded in the Registration Statement, the Disclosure Package and immediately the Prospectus (such information, the “Selling Stockholder Information”) complied and will comply in all material respects with all applicable provisions of the Act; the Registration Statement, as it relates to the Selling Stockholder Information, 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 Information, 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 its date, 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; it being understood and agreed that the Selling Stockholder Information consists only of the information set forth in Section 14 hereof;
(b) such Selling Stockholder has not, prior to the Closing Dateexecution 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 (as defined below) or Power of Attorney 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 haveconflict with, valid title 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 NYSE), 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;
(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 NYSE), 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 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 a valid “which has constituted or might reasonably be expected to cause or result in the stabilization or manipulation of the price of any security entitlement” 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; none of the proceeds received by such Selling Stockholder from the sale of the Shares to be sold by such Selling Stockholder pursuant to Section 8-102(a)(17this 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;
(g) such Selling Stockholder now is and, at the time of delivery of such Shares (whether the Time of Purchase or any additional time of purchase, as the case may be), will be the lawful owner of the New York Uniform Commercial Code number of Shares to be sold by such Selling Stockholder pursuant to this Agreement and has and, at the time of delivery of such Shares, will have valid and marketable title to such Shares, and upon delivery of and payment for such Shares (whether at the “NYUCC”) in respect ofTime of Purchase or 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 all any claim, lien, encumbrance, security interestsinterest, claimscommunity property right, liens, equities restriction on transfer or other encumbrances defect in title;
(h) 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 the legal right and powercapacity, and all authorization authorizations and approval approvals required by lawlaw (other than those imposed by the Act and state securities or blue sky laws), to (i) enter into this Agreement, Agreement and a Custody Agreement (as defined below) and to execute a Power of Attorney, (ii) sell, assign, transfer and deliver the Shares or a security entitlement in respect of the Shares. Each Underwriter that has purchased the Shares delivered at the Closing Date to The Depository Trust Company (“DTC”) by making payment therefore as provided herein, and that has the Shares credited by book entry to the “securities account” or “securities accounts” (within the meaning of Section 8-501(a) of the NYUCC) will acquire a security entitlement to the Shares purchased be sold by such Underwriter, and no action based on an “adverse claim” (within the meaning of Section 8-102(a)(1) of the NYUCC) may be asserted against such Underwriter with respect to the Shares. For purposes of this representation, each Selling Stockholder may assume that when pursuant to this Agreement in the manner provided in this Agreement and (iii) make the representations, warranties and agreements made by such payment, delivery (if necessary) and crediting occur, Selling Stockholder herein;
(i) this Agreement and the Shares will custody agreement (the “Custody Agreement”), dated [—], 2015 between American Stock Transfer & Trust Company, 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 registered duly executed and delivered by (or, in the name case of Cede & Co. or another nominee designated by DTCthis Agreement, in on behalf of) such Selling Stockholder, and each case on the Company’s share registry is a legal, valid and binding agreement of such Selling Stockholder enforceable in accordance with its certificate terms;
(j) such Selling Stockholder has duly and irrevocably authorized each of incorporationthe Representatives of the Selling Stockholders (whether acting alone or together), bylaws on behalf of such Selling Stockholder, to execute and applicable lawdeliver this Agreement and any other 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;
(k) the sale of the Shares to be sold by such Selling 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;
(l) at the Time of Purchase and each additional time of purchase, all stock transfer or other 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;
(m) pursuant to the Custody Agreement to which such Selling Stockholder is a party, 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 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) DTC is a “securities intermediary” within the meaning of Section 8-102(a)(14) arrangements made by such Selling Stockholder for custody and for the appointment of the NYUCCCustodian and the Representatives of the Selling Stockholders by such Selling Stockholder are irrevocable, and (iii) appropriate entries 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 other event (each, an “Event”); if an Event occurs before the delivery of the Shares hereunder, 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 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; and
(n) the Selling Shareholders acknowledge that, in accordance with the requirements of the USA Patriot Act, the Underwriters are required to obtain, verify and record information that identifies their respective clients, including the Company, which information may include the name and address of their respective clients, as well as other information that will allow the Underwriters to properly identify their respective clients. 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 accounts Underwriters or counsel for the Underwriters in connection with the offering of the several Underwriters on the records of DTC will have been made pursuant Shares shall be deemed to the NYUCCbe a representation and warranty by such Selling Stockholder, and (iv) the several Underwriters have no notice (within the meaning of Section 8-105 of the NYUCC) of any adverse claimas to matters covered thereby, to each Underwriter.
Appears in 1 contract
Representations and Warranties of the Selling Stockholders. Each Selling Stockholder Stockholder, severally and not jointly, represents and warrants to, and agrees with, to each Underwriter, of the Company and Arconic Underwriters that:
(ai) At the respective times the Registration Statement, any Rule 462(b) Registration Statement and any post-effective amendment thereto became or becomes effective, and on the Closing Date (and, if any Additional Shares are purchased, on the applicable Option Closing Date), the Registration Statement, the Rule 462(b) Registration Statement, and any amendments and supplements thereto did not and will not contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading; (ii) as of the Applicable Time, and as of the time of each sale of the Shares in connection with the offering when the Prospectus is not yet filed with the Commission, the Disclosure Package did not and will not include any untrue statement of a material fact or omit to state any material fact necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading; and (iii) neither the Prospectus nor any amendment or supplement thereto, at the time the Prospectus or any such amendment or supplement was issued and on the Closing Date (and, if any Additional Shares are purchased, on the applicable Option Closing Date), in each case giving effect to any amendment or supplement, included or will include any untrue statement of a material fact or omitted or will omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading; provided, however, that the representations and warranties in this paragraph apply only to (A) information with respect to such Selling Stockholder set forth in the Registration Statement, the Disclosure Package, the Prospectus or any amendment or supplement thereto in reliance upon and in conformity with information furnished or confirmed in writing to the Company by or on behalf of such Selling Stockholder expressly for use therein and (B) information with respect to any position, office or other relationship that such Selling Stockholder or an immediate family member of such Selling Stockholder or, if such Selling Stockholder is a trust, the trustees or beneficiaries of such Selling Stockholder or an immediate family member of any such trustee or beneficiary, has had with, and that is material to, the Company or its affiliates within three years prior to the date of the Time of Sale Prospectus.
(b) The sale of Additional Shares by such Selling Stockholder pursuant hereto is not prompted by such Selling Stockholder's knowledge of any material information concerning the Company or any of the Subsidiaries which is not set forth in the Registration Statement and the Prospectus. All information relating to such Selling Stockholder furnished or confirmed in writing by or on behalf of such Selling Stockholder for use in the Registration Statement, the Disclosure Package or the Prospectus (or any amendment or supplement thereto) is and will be complete and accurate in all material respects as of the Applicable Time and on the Closing Date (and, if any Additional Shares are purchased, on the applicable Option Closing Date).
(c) Such Selling Stockholder hashas full right, power and authority to execute and deliver this Agreement, an Irrevocable Power of Attorney (the "Power of Attorney") appointing each of Xxxxxxxxxxx X. Xxxxxxxxxxx and Xxxxxxx X. Xxxxxxx as such Selling Stockholder's attorney-in-fact (collectively, the "Attorneys-in-Fact"), a Stockholder Irrevocable Election to Sell (the "Election to Sell"), and immediately prior a Stock Custody Agreement (the "Custody Agreement") with Registrar and Transfer Company, as custodian (the "Custodian"), and to perform such Selling Stockholder's obligations under such agreements. Each of this Agreement, the Power of Attorney, the Election to Sell and the Custody Agreement have been duly authorized, executed and delivered by or on behalf of such Selling Stockholder and are valid and binding agreements of such Selling Stockholder, enforceable in accordance with its terms, except (i) as enforcement thereof may be limited by bankruptcy, insolvency or other similar laws relating to creditors' rights generally or by laws relating to the availability of specific performance, injunctive relief or other general equitable principles; or (ii) as rights to indemnification and contribution are limited by applicable law. Each of the Attorneys-in-Fact, acting alone, is authorized to execute and deliver this Agreement and the certificates referred to in Section 6(m) hereof on behalf of such Selling Stockholder, to determine the purchase price to be paid by the Underwriters to such Selling Stockholder for the Additional Shares to be sold by such Selling Stockholder under this Agreement, to authorize the delivery to the Underwriters of the Additional Shares to be sold by such Selling Stockholder under this Agreement and to accept payment therefor, to duly endorse (in blank or otherwise) the certificate or certificates representing such Additional Shares or a stock power or powers with respect thereto and otherwise to act on behalf of such Selling Stockholder in connection with this Agreement and the transactions contemplated hereby.
(d) The execution, delivery and performance of this Agreement, the Power of Attorney, the Election to Sell and the Custody Agreement by or on behalf of such Selling Stockholder and the consummation of the transactions contemplated by such agreements (including the sale and delivery of the Additional Shares to be sold by such Selling Stockholder pursuant to this Agreement), and compliance by such Selling Stockholder with its obligations under such agreements, do not and will not, whether with or without the giving of notice or passage of time or both, conflict with or constitute a breach of, or default under, or result in the creation or imposition of any lien, charge or encumbrance upon any of the Additional Shares to be sold by such Selling Stockholder under this Agreement or any other property or assets of such Selling Stockholder pursuant to, any contract, indenture, mortgage, deed of trust, loan or credit agreement, bond, note, debenture, evidence of indebtedness, lease or other agreement or instrument to which such Selling Stockholder is a party or by which such Selling Stockholder is bound or to which any of the property or assets of such Selling Stockholder is subject, nor will such action result in any violation of the provisions of the organizational documents of such Selling Stockholder (if such Selling Stockholder is not a natural person)or any applicable 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 assets, properties or operations.
(e) Such Selling Stockholder is the sole legal, record and beneficial owner of the Additional Shares to be sold by such Selling Stockholder under this Agreement and will remain the sole legal, record and beneficial owner of such Additional Shares until the delivery of such Additional Shares to the Underwriters on the applicable Option Closing Date; provided, however, that if such Selling Stockholder is a trust, the trustees and beneficiaries of such Selling Stockholder may be deemed to beneficially own the Additional Shares to be sold by such Selling Stockholder under this Agreement. The Additional Shares to be sold by such Selling Stockholder under this Agreement are and, until delivery thereof to the Underwriters on the applicable Option Closing Date, such Selling Stockholder will have, valid title to, or a valid “security entitlement” pursuant to Section 8-102(a)(17) of the New York Uniform Commercial Code (the “NYUCC”) in respect of, the Shares be free and clear of all security interests, claims, liens, equities charges or encumbrances other encumbrances than pursuant to this Agreement. Upon payment of the consideration for the Additional Shares to be sold by such Selling Stockholder as provided in this Agreement and the legal right and power, and all authorization and approval required by law, crediting of such Additional Shares to enter into this Agreement, and to sell, transfer and deliver the Shares security account or a security entitlement in respect accounts of the Shares. Each Underwriter that has purchased the Shares delivered at the Closing Date to Underwriters maintained with The Depository Trust Company (“"DTC”) by making payment therefore as provided herein"), and that has the Shares credited by book entry to the “securities account” or “securities accounts” (within the meaning of Section 8-501(a) each of the NYUCC) Underwriters will acquire a security entitlement to become the legal owner of the Additional Shares purchased by it from such UnderwriterSelling Stockholder, free and no action based on clear of all liens, charges or encumbrances and, assuming that none of the Underwriters has "notice of an “adverse claim” (within the meaning of Section 8-102(a)(1) of the NYUCC) may be asserted against such Underwriter with respect to the Shares. For purposes of this representation, each Selling Stockholder may assume that when such payment, delivery (if necessary) and crediting occur, (i) the Shares will have been registered in the name of Cede & Co. or another nominee designated by DTC, in each case on the Company’s share registry in accordance with its certificate of incorporation, bylaws and applicable law, (ii) DTC is a “securities intermediary” within the meaning of Section 8-102(a)(14) of the NYUCC, (iii) appropriate entries to the accounts of the several Underwriters on the records of DTC will have been made pursuant to the NYUCC, and (iv) the several Underwriters have no notice " (within the meaning of Section 8-105 of the NYUCCUniform Commercial Code of the State of New York (the "UCC")) with respect to such Additional Shares, each of the Underwriters will acquire a "security entitlement" (within the meaning of UCC Section 8-102(a)(17)) to the Additional Shares purchased by such Underwriter from such Selling Stockholder, and no action based on any "adverse claim" (within the meaning of UCC Section 8-102(a)(1)) may be asserted successfully against such Underwriter with respect to such Additional Shares. For purposes of this representation, such Selling Stockholder may assume that DTC is a securities intermediary as defined in Section 8-102(14) of the UCC.
(f) The Additional Shares to be sold by such Selling Stockholder under this Agreement are not subject to any adverse claimoption, warrant, put, call, right of first refusal or other right to purchase or otherwise acquire any such Additional Shares, other than a right of the Company that has been duly waived by the Company or pursuant to this Agreement.
(g) Such Selling Stockholder has not taken and will not take, directly or indirectly, any action designed to or that would constitute or that 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 Additional Shares; provided that the foregoing shall not prohibit transactions effected in compliance with Regulation M under the Securities Act Regulations.
(i) No filing with, or authorization, approval, consent, license, order, registration, qualification or decree of, any court or governmental authority or agency, domestic or foreign, (ii) no authorization, approval, vote or other consent of any stockholder (or other equity owner), if any, or creditor of such Selling Stockholder, and (iii) no authorization, approval, vote or other consent of any other person or entity, is necessary or required for the execution or delivery by such Selling Stockholder of, or the performance by such Selling Stockholder of its obligations under, this Agreement, its Custody Agreement, its Election to Sell or its Power of Attorney, for the sale and delivery by such Selling Stockholder of the Additional Shares to be sold by it under this Agreement, or for the consummation by such Selling Stockholder of the other transactions contemplated by this Agreement, its Custody Agreement, its Election to Sell or its Power of Attorney, except such as (A) have already been obtained, made or filed, (B) may be required under the Securities Act, the Securities Act Regulations, the Exchange Act or the rules and regulations of the Commission under the Exchange Act (the "Exchange Act Regulations") or state securities or Blue Sky laws, (C) may be required by FINRA or (D) may be required under the laws of any foreign jurisdiction in which the Additional Shares may be offered or sold.
(i) Except as has been disclosed in writing by such Selling Stockholder to the Representatives, neither such Selling Stockholder nor any affiliate of such Seller Stockholder, directly or indirectly through one or more intermediaries, controls, is controlled by, is under common control with or has any other association with a member of the NASD(within the meaning of Article I(rr) of the NASD By-Laws).
(j) Certificates for all of the Additional Shares to be sold by such Selling Stockholder pursuant to this Agreement, in form suitable for transfer by delivery and accompanied by duly executed stock powers endorsed in blank by or on behalf of such Selling Stockholder with signatures guaranteed, have been placed in custody with the Custodian for the purpose of effecting delivery hereunder and thereunder.
(k) Such Selling Stockholder does not have any preemptive rights, rights of first refusal or other similar rights to purchase or otherwise acquire any of the Shares that are to be sold by the Company or any of the other Selling Stockholders pursuant to this Agreement.
(l) Such Selling Stockholder agrees that the certificate required by Section 6(m) of this Agreement and signed by or on behalf of such Selling Stockholder and delivered to the Representatives or counsel for the Underwriters shall be deemed a representation and warranty by such Selling Stockholder to each Underwriter and shall be deemed to be part of this Section 2 and incorporated herein by reference.
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, and agrees with, each Underwriter, to the Company and Arconic Underwriter that:
(ai) This Agreement has been duly authorized (in the case of a trust), executed and delivered by or on behalf of such Selling Stockholder;
(ii) The Shares are subject to the interests of the Underwriter hereunder; the obligations of such Selling Stockholder hereunder shall not be terminated by operation of law, whether by the death or incapacity of any individual Selling Stockholder or, in the case of a trust, by the death or incapacity of any trustee or the termination of such trust or by the occurrence of any other event;
(iii) Such Selling Stockholder has, and immediately prior to has a security entitlement (within the Closing Date, such Selling Stockholder will have, valid title to, or a valid “security entitlement” pursuant to meaning of Section 8-102(a)(17) of the New York Uniform Commercial Code (the “NYUCCUCC”)) in respect to, and has good and valid beneficial ownership of, the Shares to be sold by such Selling Stockholder maintained in a securities account on the books of the Company free and clear of all security interests, claims, liens, equities or other encumbrances and the legal right and power, and all authorization and approval required by law, to enter into this Agreement, and to sell, transfer and deliver the Shares or a security entitlement in respect of the Shares. Each Underwriter any action that has purchased the Shares delivered at the Closing Date to The Depository Trust Company (“DTC”) by making payment therefore as provided herein, and that has the Shares credited by book entry to the “securities account” or “securities accounts” (within the meaning of Section 8-501(a) of the NYUCC) will acquire a security entitlement to the Shares purchased by such Underwriter, and no action may be asserted based on an “adverse claim” (within the meaning of Section 8-102(a)(1) of the NYUCC) may be asserted against such Underwriter claim with respect to the Shares. For purposes of this representation, each Selling Stockholder may assume that when such payment, delivery (if necessary) and crediting occur, (i) the Shares will have been registered in the name of Cede & Co. or another nominee designated by DTC, in each case on the Company’s share registry in accordance with its certificate of incorporation, bylaws and applicable law, (ii) DTC is a “securities intermediary” within the meaning of Section 8-102(a)(14) of the NYUCC, (iii) appropriate entries to the accounts of the several Underwriters on the records of DTC will have been made pursuant to the NYUCCsecurity entitlement, and (iv) assuming that the several Underwriters Underwriter acquires its interest in such Shares they have no purchased without notice of any adverse claim (within the meaning of Section 8-105 of the NYUCCUCC), upon the crediting of such Shares to the securities account of the Underwriter maintained with The Depository trust Company (“DTC”) and payment therefor by the Underwriter, as provided herein, the Underwriter will have acquired a security entitlement to such Shares, and no action based on any adverse claim may be asserted against the Underwriter with respect to such security entitlement;
(iv) Such Selling Stockholder has the legal right and power, and all authorizations and approvals required by law under its organizational documents to enter into this Agreement, to sell, transfer and deliver all of the Shares pursuant to this Agreement and to comply with its other obligations hereunder and thereunder;
(v) The execution and delivery by such Selling Stockholder of, and the performance by such Selling Stockholder of its obligations under, this Agreement (i) will not result in any default (or, with the giving of notice or lapse of time, would be in default) (“Default”) under, or require the consent of any other party to, the organizational documents of such Selling Stockholder, (ii) will not conflict with or constitute a breach of, or Default under, any other agreement or instrument to which such Selling Stockholder is a party or by which it is bound or under which it is entitled to any right or benefit and (iii) will not result in any violation of any statute, law, regulation, order or decree applicable to such Selling Stockholder of any court, regulatory body, administrative agency, governmental body, arbitrator or other authority having jurisdiction over such Selling Stockholder or its properties, except in the case of clauses (ii) and (iii), for any such Default that would not, individually or in the aggregate, have a material adverse claimeffect on such Selling Stockholder or its ability to consummate the transactions contemplated hereby. No consent, approval, authorization or other order of, or registration or filing with, any court or other governmental authority or agency, is required to be obtained or made by such Selling Stockholder for the consummation of the transactions contemplated in this Agreement, except such as have been obtained or made and are in full force and effect under the Act, applicable state securities or blue sky laws and from the NASD;
(vi) No consent, approval or waiver is required under any instrument or agreement to which such Selling Stockholder is a party or by which it is bound or under which it is entitled to any right or benefit, in connection with the offering, sale or purchase by the Underwriter of any of the Shares which may be sold by such Selling Stockholder under this Agreement or the consummation by such Selling Stockholder of any of the other transactions contemplated hereby;
(vii) As of the effective date of the Registration Statement and any amendment thereto, the Registration Statement did not and will not contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary in order to make the statements therein not misleading, in each case solely with respect to statements in or omissions from the Registration Statement that relate to such Selling Stockholder;
(viii) As of the Applicable Time, the Pricing Disclosure Package did not contain any untrue statement of a material fact or omit to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading, in each case solely with respect to statements in or omissions from the Pricing Disclosure Package that relate to such Selling Stockholder;
(ix) The Prospectus, as of its date, at the date hereof, at the time of any filing pursuant to Rule 424(b) and at the Time of Delivery did not and will not contain any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading, in each case solely with respect to statements in or omissions from the Pricing Disclosure Package that relate to such Selling Stockholder;
(x) Such Selling Stockholder has not taken and will not take, directly or indirectly, any action designed to or that might be reasonably expected to cause or result in stabilization or manipulation of the price of any security of the Company to facilitate the sale or resale of the Shares;
(xi) Such Selling Stockholder is not prompted to sell the Shares by any information concerning the Company which is not set forth in the Registration Statement and the Pricing Disclosure Package;
(xii) Such Selling Stockholder has not prepared or had prepared on its behalf or used or referred to, any written materials in connection with the offer or sale of the Shares to be sold by it; and
(xiii) The Shares to be sold by such Selling Stockholder represent all of the shares of Common Stock of the Company beneficially owned (as that term is used for purposes of Section 13(d) under the Exchange Act) by such Selling Stockholder. Any certificate signed by a Selling Stockholder or trustee of a Selling Stockholder and delivered to the Underwriter or to counsel for the Underwriter shall be deemed to be a representation and warranty by such Selling Stockholder to the Underwriter as to the matters set forth thereby.
Appears in 1 contract
Representations and Warranties of the Selling Stockholders. Each Selling Stockholder Stockholder, severally and not jointly with the other Selling Stockholders, represents and warrants to, and agrees with, to each Underwriter, of the Company and Arconic Underwriters that:
(a) Such all information with respect to such Selling Stockholder hasincluded or incorporated by reference in the Registration Statement, any Preliminary Prospectus or the Prospectus complied and will comply with all applicable provisions of the Act; the Registration Statement, as it relates 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 such Preliminary Prospectus relates 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, and immediately 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 they relate 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 the Prospectus relates 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 date of such Permitted Free Writing Prospectus and ends at the time of purchase did or will any Permitted Free Writing Prospectus, as such Permitted Free Writing Prospectus relates 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. For all purposes of this Agreement: (i) the only information in the Registration Statement, the Preliminary Prospectus or the Prospectus, and in any amendment or supplement thereto, with respect to the Selling Stockholders other than JER, is the information set forth under the captions “Management — Directors and Executive Officers” and “Principal and Selling Stockholders” relating to such Selling Stockholders that shall have been approved by such Selling Stockholders; and (ii) the only information in the Registration Statement, the Preliminary Prospectus or the Prospectus, and in any amendment or supplement thereto, with respect to JER is the information set forth under the caption “Principal and Selling Stockholders” relating to JER that shall have been approved by the JER Representative in writing;
(b) such Selling Stockholder has not, prior to the Closing Dateexecution 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 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 NYSE), 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 NYSE), 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 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), 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 FINRA or any affiliate of (or person “associated with,” as such terms are used in the Bylaws of FINRA) such member;
(g) assuming the due issuance and delivery by the Company to such Selling Stockholder of the Shares to be sold by it hereunder, immediately following the Recapitalization Transactions and prior to the consummation of the transactions contemplated by this Agreement, such Selling Stockholder will havebe and, valid title toat the time of delivery of such Shares (whether the time of purchase or any additional time of purchase, or a valid “security entitlement” as the case may be), will be the lawful owner of the number of Shares to be sold by such Selling Stockholder pursuant to Section 8-102(a)(17) this Agreement and has or, immediately following the Recapitalization Transactions and prior to the consummation of the New York Uniform Commercial Code transactions contemplated by this Agreement, will have and, at the time of delivery of such Shares, will have valid and marketable title to such Shares, and upon delivery of and payment for such Shares (whether at the “NYUCC”) in respect oftime of purchase or 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 all any claim, lien, encumbrance, security interestsinterest, claimscommunity property right, liens, equities restriction on transfer or other encumbrances defect in title;
(h) assuming the due issuance and delivery by the Company to such Selling Stockholder of the Shares to be sold by it hereunder, such Selling Stockholder has or, immediately following the Recapitalization Transactions and prior to the consummation of the transactions contemplated by this Agreement, will have 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 right, power and powercapacity, and all authorization authorizations and approval approvals required by lawlaw (other than those imposed by the Act and state securities or blue sky laws), to (i) enter into this Agreement, Agreement and the Custody Agreement (as defined below) and to execute the Power of Attorney, (ii) sell, assign, transfer and deliver the Shares or a security entitlement in respect of the Shares. Each Underwriter that has purchased the Shares delivered at the Closing Date to The Depository Trust Company (“DTC”) by making payment therefore as provided herein, and that has the Shares credited by book entry to the “securities account” or “securities accounts” (within the meaning of Section 8-501(a) of the NYUCC) will acquire a security entitlement to the Shares purchased be sold by such Underwriter, and no action based on an “adverse claim” (within the meaning of Section 8-102(a)(1) of the NYUCC) may be asserted against such Underwriter with respect to the Shares. For purposes of this representation, each Selling Stockholder may assume that when pursuant to this Agreement in the manner provided in this Agreement and (iii) make the representations, warranties and agreements made by such payment, delivery (if necessary) and crediting occur, Selling Stockholder herein;
(i) this Agreement and the Shares will custody agreement (the “Custody Agreement”), dated a recent date before the pricing date, between BNY Mellon Shareholder Services, as custodian (the “Custodian”), and such Selling Stockholder and the Power of Attorney have each been registered duly executed and delivered by (or, in the name case of Cede & Co. or another nominee designated by DTCthis Agreement, in on behalf of) such Selling Stockholder, and each case on the Company’s share registry is a legal, valid and binding agreement of such Selling Stockholder enforceable in accordance with its certificate terms;
(j) such Selling Stockholder has duly and irrevocably authorized the JER Representative or the Other Representative, as applicable, on behalf of incorporationsuch Selling Stockholder, bylaws to execute and deliver this Agreement and any other 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;
(k) the sale of the Shares to be sold by such Selling 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;
(l) at the time of purchase and each additional time of purchase, all stock transfer or other 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
(m) pursuant to the Custody Agreement, the necessary certificates or book-entry credits for units of Aviv Healthcare (the “Aviv Healthcare Units”), which pursuant to the Recapitalization Transactions will be converted into units of the Operating Partnership on the applicable lawsplit-run basis, the equivalent of which, immediately prior to the consummation of the transactions contemplated by this Agreement will be exchanged 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 Aviv Healthcare Units 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 JER Representative or the Other Representative, as applicable, the Underwriters and the Company, (ii) DTC is a “securities intermediary” within the meaning of Section 8-102(a)(14) arrangements made by such Selling Stockholder for custody and for the appointment of the NYUCCCustodian and the JER Representative or the Other Representative, as the case may be, by such Selling Stockholder are irrevocable, and (iii) appropriate entries 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 other event (each, an “Event”); if an Event occurs before the delivery of the Shares hereunder, 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 JER Representative or the Other Representative, as applicable, 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 JER Representative or the Other Representative, as applicable, 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 the JER Representative or the Other Representative, as applicable, and delivered to the accounts Underwriters or counsel for the Underwriters in connection with the offering of the several Underwriters on the records of DTC will have been made pursuant Shares shall be deemed to the NYUCCbe a representation and warranty by such Selling Stockholder, and (iv) the several Underwriters have no notice (within the meaning of Section 8-105 of the NYUCC) of any adverse claimas to matters covered thereby, to each Underwriter.
Appears in 1 contract
Representations and Warranties of the Selling Stockholders. Each Selling Stockholder Stockholder, severally and not jointly, represents and warrants to, and agrees with, to each Underwriter, the Company and Arconic Underwriter that:
(a) Such Selling Stockholder has, and immediately prior is the record owner of the Shares to the Closing Date, be sold by such Selling Stockholder will havehereunder free and clear of all liens, valid title toencumbrances, or a valid “security entitlement” pursuant to equities and claims and has duly endorsed such Shares in blank, and assuming that each Underwriter acquires its interest in the Shares it has purchased from such Selling Stockholder without notice of any adverse claim (within the meaning of Section 8-102(a)(17) 105 of the New York Uniform Commercial Code (the “NYUCCUCC”) in respect of)), the Shares free and clear of all security interests, claims, liens, equities or other encumbrances and the legal right and power, and all authorization and approval required by law, to enter into this Agreement, and to sell, transfer and deliver the Shares or a security entitlement in respect of the Shares. Each each Underwriter that has purchased the such Shares delivered at on the Closing Date or the Additional Closing Date, as applicable, to The Depository Trust Company (“DTC”) DTC or other securities intermediary by making payment therefore therefor as provided herein, herein and that has the had such Shares credited by book entry to the “securities account” account or “accounts of such Underwriter maintained with DTC or such other securities accounts” intermediary will have acquired a security entitlement (within the meaning of Section 8-501(a102(a)(17) of the NYUCCUCC) will acquire a security entitlement to the such Shares purchased by such Underwriter, and no action based on an “adverse claim” claim (within the meaning of Section 8-102(a)(1) 102 of the NYUCCUCC) may be successfully asserted against such Underwriter under the UCC as in effect in the State of New York with respect to such Shares.
(b) Such Selling Stockholder has not taken, directly or indirectly, any action designed to or that would constitute or that might reasonably be expected to cause or result in, under the Exchange Act or otherwise, stabilization or manipulation of the price of any security of the Company to facilitate the sale or resale of the Shares during the distribution of the Shares by the Underwriters.
(c) Certificates in negotiable form representing all of the Shares to be sold by such Selling Stockholder have been deposited with American Stock Transfer & Trust Company, LLC, the transfer agent for the Company’s Common Stock (the “Transfer Agent”). Such Selling Stockholder specifically agrees that the Shares represented by the certificates so deposited are subject to the interests of the Underwriters hereunder, and that the arrangements made by such Selling Stockholder for such deposit will not be revoked prior to the earlier of the sales of such Shares hereunder or the expiration of the Underwriters’ option to purchase the Option Shares. For purposes Such Selling Stockholder specifically agrees that the obligations of such Selling Stockholder hereunder shall not be terminated by operation of law by the dissolution of such partnership, corporation or organization, or by the occurrence of any other event. If any such partnership, corporation or similar organization should be dissolved, or if any other such event should occur, before the delivery of the Shares hereunder, certificates representing such Shares shall be delivered by or on behalf of such Selling Stockholder in accordance with the terms and conditions of this representationAgreement.
(d) No consent, each approval, authorization or order of any court or governmental agency or body is required for the consummation by such Selling Stockholder of the transactions contemplated herein, except such as may assume that when have been obtained under the Act and such paymentas may be required under the blue sky laws of any jurisdiction in connection with the purchase and distribution of the Shares by the Underwriters and such other approvals as have been obtained.
(e) Neither the sale of the Shares being sold by such Selling Stockholder nor the consummation of any other of the transactions herein contemplated by such Selling Stockholder will conflict with, delivery (if necessary) and crediting occurresult in a breach or violation of, or constitute a default under, (i) the Shares will have been registered in the name of Cede & Co. or another nominee designated by DTC, in each case on the Company’s share registry in accordance with its certificate of incorporation, bylaws and any law applicable lawto such Selling Stockholder, (ii) DTC is a “securities intermediary” within the meaning limited partnership agreement or limited liability company agreement, as applicable, of Section 8-102(a)(14) of the NYUCCsuch Selling Stockholder, (iii) appropriate entries the terms of any indenture or other agreement or instrument to which such Selling Stockholder is a party or bound, or (iv) any judgment, 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, except in the accounts case of the several Underwriters on the records of DTC will have been made pursuant to the NYUCCclauses (i), (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.
(f) In respect of any statements in or omissions from the Registration Statement, the Pricing Disclosure Package and the Prospectus, any Preliminary Prospectus and any Issuer Free Writing Prospectuses made in reliance upon and in conformity with any information related to such Selling Stockholder furnished in writing to the Company by such Selling Stockholder expressly for use therein in connection with the disclosure required by Form S-1 (such information, the “Selling Stockholder Information”), such information does not contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading.
(g) Issuer Free Writing Prospectus. 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 several Underwriters have no notice documents listed on item (within the meaning of Section 8-105 of the NYUCCa) of Annex B hereto, each electronic road show and any adverse claimother written communications approved in writing in advance by the Company and each of X.X. Xxxxxx Securities LLC, Barclays Capital Inc. and Xxxxxx Xxxxxxx & Co. LLC.
Appears in 1 contract
Samples: Underwriting Agreement (Dunkin' Brands Group, Inc.)
Representations and Warranties of the Selling Stockholders. Each Selling Stockholder severally and not jointly represents and warrants to, to each Underwriter and agrees with, each Underwriter, the Company and Arconic that:
(a) Such Selling Stockholder hasis the record and beneficial owner of the Shares to be sold by it hereunder free and clear of all liens, encumbrances, equities and claims, and immediately prior has full power and authority to sell its interest in the Closing DateShares, and, assuming that each Underwriter acquires its interest in the Shares it has purchased from such Selling Stockholder will have, valid title to, or a valid “security entitlement” pursuant to without notice of any adverse claim (within the meaning of Section 8-102(a)(17) 105 of the New York Uniform Commercial Code (the “NYUCCUCC”) in respect of)), the Shares free and clear of all security interests, claims, liens, equities or other encumbrances and the legal right and power, and all authorization and approval required by law, to enter into this Agreement, and to sell, transfer and deliver the Shares or a security entitlement in respect of the Shares. Each each Underwriter that has purchased the such Shares delivered at on the Closing Date to The Depository Trust Company (“DTC”) or the Additional Closing Date, as the case may be, by making payment therefore therefor as provided herein, and that has the had such Shares credited by book entry to the “securities account” account or “accounts of such Underwriter maintained with The Depository Trust Company or other securities accounts” intermediary will have acquired a security entitlement (within the meaning of Section 8-501(a102(a)(17) of the NYUCCUCC) will acquire a security entitlement to the such Shares purchased by such Underwriter, and no action based on an “adverse claim” (within the meaning of Section 8-102(a)(1) of the NYUCC) may be asserted against such Underwriter with respect to the Shares. For purposes of this representation, each Selling Stockholder may assume that when such payment, delivery (if necessary) and crediting occur, (i) the Shares will have been registered in the name of Cede & Co. or another nominee designated by DTC, in each case on the Company’s share registry in accordance with its certificate of incorporation, bylaws and applicable law, (ii) DTC is a “securities intermediary” within the meaning of Section 8-102(a)(14) of the NYUCC, (iii) appropriate entries to the accounts of the several Underwriters on the records of DTC will have been made pursuant to the NYUCC, and (iv) the several Underwriters have no notice claim (within the meaning of Section 8-105 of the NYUCCUCC) may be asserted against such Underwriter with respect to such Shares.
(b) Such Selling Stockholder has not taken, directly or indirectly, any action designed to or that could reasonably be expected to cause or result in any stabilization or manipulation of the price of the Stock.
(c) No consent, approval, authorization or order of any court or governmental agency or body is required for the consummation by such Selling Stockholder of the transactions contemplated herein, except for (i) the registration of the Shares under the Securities Act, (ii) such consents, approvals, authorization or orders as may be required by FINRA and under the blue sky laws of any jurisdiction in connection with the purchase and distribution of the Shares by the Underwriters or (iii) those as to which the failure to obtain will affect in any material respect such Selling Stockholder’s ability to perform its obligations hereunder.
(d) Neither the sale of the Shares being sold by such Selling Stockholder nor the consummation of any other of the transactions herein contemplated by such Selling Stockholder will conflict with, result in a breach or violation of, or constitute a default under, (i) any law applicable to such Selling Stockholder, (ii) certificate of formation or the limited partnership or limited liability company agreement, as applicable, of such Selling Stockholder, (iii) the terms of any indenture or other agreement or instrument to which such Selling Stockholder is a party or bound or (iv) any judgment, 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, except in the case of clauses (i), (iii) and (iv), for any such conflict, breach, violation or default that would not impair in any material respect the ability of such Selling Stockholder to consummate the transactions contemplated by this Agreement.
(e) In respect of any statements in or omissions from the Registration Statement, the Pricing Disclosure Package and the Prospectus, any Preliminary Prospectus and any Issuer Free Writing Prospectuses made in reliance upon and in conformity with any information related to such Selling Stockholder furnished in writing to the Company by such Selling Stockholder expressly for use therein in connection with the disclosure required by Form S-3 (such information, the “Selling Stockholder Information”), such information does not contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading. It is understood and agreed that the only Selling Stockholder Information furnished by any Selling Stockholder consists solely of the name and address of such Selling Stockholder and the number of Shares owned by such Selling Stockholder under the caption “Selling Stockholders” in the Pricing Disclosure Package and Prospectus.
(f) 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 any adverse claimthe Securities Act or Rule 134 under the Securities Act or (ii) the documents listed on Item (a) of Schedule C hereto, each electronic road show or other written communications approved in writing in advance by the Company and the Underwriter.
(g) With respect to each Selling Stockholder named in Exhibit E-2 hereto, it has delivered a “lock-up” agreement, substantially in the form of Exhibit E-1 hereto, relating to sales and certain other dispositions of shares of Stock or certain other securities, on or prior to the date hereof, and such agreement is in full force and effect.
Appears in 1 contract
Representations and Warranties of the Selling Stockholders. Each Selling Stockholder Stockholder, severally and not jointly with the other Selling Stockholders, represents and warrants to, and agrees with, to each Underwriter, of the Company and Arconic Underwriters that:
(a) Such all information with respect to such Selling Stockholder hasincluded or incorporated by reference in the Registration Statement, any Pre-Pricing Prospectus or the Prospectus complied and will comply with all applicable provisions of the Act; the Registration Statement, as it relates to the 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 Pre-Pricing Prospectus and the date such Pre-Pricing Prospectus was filed with the Commission and ends at the time of purchase did or will any Pre-Pricing Prospectus, as then amended or supplemented, as such Pre-Pricing Prospectus relates 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, and immediately at no time during such period did or will any Pre-Pricing 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 they relate to 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, as the Prospectus relates 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 date of such Permitted Free Writing Prospectus and ends at the time of purchase did or will any Permitted Free Writing Prospectus, as such Permitted Free Writing Prospectus relates 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;
(b) such Selling Stockholder has not, prior to the Closing Dateexecution 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 Pre-Pricing 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 haveconflict with, valid title 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 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 a valid “which has constituted or might reasonably be expected to cause or result in the stabilization or manipulation of the price of any security entitlement” 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), each Pre-Pricing 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 Section 8-102(a)(17this 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;
(g) such Selling Stockholder now is and, at the time of delivery of such Shares (whether the time of purchase or any additional time of purchase, as the case may be), will be the lawful owner of the New York Uniform Commercial Code number of Shares to be sold by such Selling Stockholder pursuant to this Agreement and has and, at the time of delivery of such Shares, will have valid and marketable title to such Shares, and upon delivery of and payment for such Shares (whether at the “NYUCC”) in respect oftime of purchase or 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 all any claim, lien, encumbrance, security interestsinterest, claimscommunity property right, liens, equities restriction on transfer or other encumbrances defect in title;
(h) 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 the legal right and powercapacity, and all authorization authorizations and approval approvals required by lawlaw (other than those imposed by the Act and state securities or blue sky laws), to (i) enter into this Agreement, Agreement and a Custody Agreement (as defined below) and to execute a Power of Attorney, (ii) sell, assign, transfer and deliver the Shares or a security entitlement in respect of the Shares. Each Underwriter that has purchased the Shares delivered at the Closing Date to The Depository Trust Company (“DTC”) by making payment therefore as provided herein, and that has the Shares credited by book entry to the “securities account” or “securities accounts” (within the meaning of Section 8-501(a) of the NYUCC) will acquire a security entitlement to the Shares purchased be sold by such Underwriter, and no action based on an “adverse claim” (within the meaning of Section 8-102(a)(1) of the NYUCC) may be asserted against such Underwriter with respect to the Shares. For purposes of this representation, each Selling Stockholder may assume that when pursuant to this Agreement in the manner provided in this Agreement and (iii) make the representations, warranties and agreements made by such payment, delivery (if necessary) and crediting occur, Selling Stockholder herein;
(i) this Agreement and the Shares will custody agreement (the “Custody Agreement”), dated June 15, 2010, between American Stock Transfer & Trust Company, as custodian (the “Custodian”), and such Selling Stockholder and the Power of Attorney to which such Selling Stockholder is a party have each been registered duly executed and delivered by (or, in the name case of Cede & Co. or another nominee designated by DTCthis Agreement, in on behalf of) such Selling Stockholder, and each case on the Company’s share registry is a legal, valid and binding agreement of such Selling Stockholder enforceable in accordance with its certificate terms, except as may be limited by bankruptcy, insolvency, moratorium or other laws designed for the protection of incorporationcreditors;
(j) such Selling Stockholder has duly and irrevocably authorized each of the Representatives of the Selling Stockholders (whether acting alone or together), bylaws on behalf of such Selling Stockholder, to execute and applicable lawdeliver this Agreement and any other 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;
(k) the sale of the Shares to be sold by such Selling 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 Pre-Pricing Prospectus and the Prospectus;
(iil) DTC at the time of purchase and each additional time of purchase, all stock transfer or other 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;
(m) Such Selling Stockholder is not, and has not been at any time, a “securities intermediaryUnited States Real Property Holding Corporation” within the meaning of Section 8-102(a)(14897(c)(2) of the NYUCCInternal Revenue Code of 1986, as amended; and
(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) appropriate entries 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 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 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 accounts Underwriters or counsel for the Underwriters in connection with the offering of the several Underwriters on the records of DTC will have been made pursuant Shares shall be deemed to the NYUCCbe a representation and warranty by such Selling Stockholder, and (iv) the several Underwriters have no notice (within the meaning of Section 8-105 of the NYUCC) of any adverse claimas to matters covered thereby, to each Underwriter.
Appears in 1 contract
Representations and Warranties of the Selling Stockholders. Each Selling Stockholder Stockholder, severally and not jointly, represents and warrants to, and agrees with, to each Underwriter, the Company and Arconic Underwriter that:
(a) Such Selling Stockholder has, and immediately prior to the Closing Date, such Selling Stockholder now is and at the time of delivery of such Shares will havebe, valid title to, or a valid “security entitlement” the lawful owner of the number of Shares to be sold by such Selling Stockholder pursuant to Section 8-102(a)(17) this Agreement and has and, at the time of the New York Uniform Commercial Code (the “NYUCC”) in respect ofdelivery thereof, 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 all any claim, lien, encumbrance, security interestsinterest, claimscommunity property right, liens, equities restriction on transfer or other encumbrances defect in title;
(b) such Selling Stockholder has and at the time of delivery of such Shares will have, full legal right right, power and powercapacity, and all authorization and any approval required by lawlaw (other than those imposed by the Act and the securities or blue sky laws of certain jurisdictions), to enter into this Agreementsell, and to sellassign, transfer and deliver such Shares in the Shares or a security entitlement manner provided in respect of this Agreement;
(c) this Agreement and the Shares. Each Underwriter that has purchased Custody Agreement among Equiserve Trust Company, N.A., as custodian (the Shares delivered at “Custodian”), and the Closing Date to The Depository Trust Company Selling Stockholders (the “DTCCustody Agreement”) by making payment therefore as provided herein, have been duly executed and that has the Shares credited by book entry to the “securities account” or “securities accounts” (within the meaning of Section 8-501(a) of the NYUCC) will acquire a security entitlement to the Shares purchased delivered by such UnderwriterSelling Stockholder and, assuming due authorization, execution and no action based on an “adverse claim” (within delivery by the meaning of Section 8-102(a)(1) of the NYUCC) may be asserted against such Underwriter with respect to the Shares. For purposes of this representationCustodian, each is a legal, valid and binding agreement of such Selling Stockholder may assume that when such payment, delivery (if necessary) and crediting occur, (i) the Shares will have been registered in the name of Cede & Co. or another nominee designated by DTC, in each case on the Company’s share registry enforceable in accordance with its certificate of incorporation, bylaws terms;
(d) when the Registration Statement becomes effective and applicable law, (ii) DTC is a “securities intermediary” within at all times subsequent thereto through the meaning of Section 8-102(a)(14) latest of the NYUCC, (iii) appropriate entries to time of purchase or the accounts termination of the several Underwriters 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;
(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 records transactions contemplated thereby and to deliver the Shares to be sold by such Selling Stockholder and receive payment therefor pursuant hereto;
(f) the sale of DTC will have been made such Selling Stockholder’s Shares pursuant to this Agreement is not prompted by any information concerning the NYUCCCompany which is not set forth in the Prospectus; and
(g) 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 stabilization or manipulation of the price of any security of the Company to facilitate the sale or resale of the Shares, and (iv) such Selling Stockholder has not distributed and will not distribute any offering material in connection with the several Underwriters have no notice (within the meaning of Section 8-105 offering and sale of the NYUCC) of Shares other than any adverse claimpreliminary Prospectus filed with the Commission or the Prospectus.
Appears in 1 contract
Representations and Warranties of the Selling Stockholders. Each ---------------------------------------------------------- Selling Stockholder Stockholder, severally and not jointly, represents and warrants to, and agrees with, to each Underwriter, the Company and Arconic Underwriter that:
(a) Such Selling Stockholder hasnow is and at the time of delivery of such Shares (whether the time of purchase or additional time of purchase, and immediately prior as the case may be) will be, the lawful owner of the number of Shares to the Closing Date, be sold by such Selling Stockholder will have, valid title to, or a valid “security entitlement” pursuant to Section 8-102(a)(17) 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 New York Uniform Commercial Code (time of purchase or the “NYUCC”) in respect ofadditional time of purchase, as the case may be), the Underwriters will acquire valid and marketable title to such Shares free and clear of all any claim, lien, encumbrance, security interestsinterest, claimscommunity property right, liens, equities restriction on transfer or other encumbrances defect in title;
(b) Such Selling Stockholder has and at the time of delivery of such Shares (whether the time of purchase or additional time of purchase, as the case may be) will have, full legal right right, power and powercapacity, and all authorization and any approval required by lawlaw (other than those imposed by the Act and the securities or blue sky laws of certain jurisdictions), to enter into this Agreementsell, and to sellassign, transfer and deliver such Shares in the Shares or a security entitlement manner provided in respect of this Agreement;
(c) This Agreement and the Shares. Each Underwriter that has purchased the Shares delivered at the Closing Date to The Depository Trust Company (“DTC”) by making payment therefore Custody Agreement among ___________________________, as provided hereincustodian, and that has the Shares credited by book entry to Selling Stockholders (the “securities account” or “securities accounts” (within the meaning of Section 8-501(a"Custody Agreement") of the NYUCC) will acquire a security entitlement to the Shares purchased have been duly executed and delivered by such Underwriter, and no action based on an “adverse claim” (within the meaning of Section 8-102(a)(1) of the NYUCC) may be asserted against such Underwriter with respect to the Shares. For purposes of this representation, each Selling Stockholder may assume that when and each is a legal, valid and binding agreement of such payment, delivery (if necessary) and crediting occur, (i) the Shares will have been registered in the name of Cede & Co. or another nominee designated by DTC, in each case on the Company’s share registry Selling Stockholder enforceable in accordance with its certificate terms;
(i) When each part of incorporation, bylaws a Registration Statement became or will become effective and applicable law, (ii) DTC is a “securities intermediary” within at all times subsequent thereto through the meaning of Section 8-102(a)(14) latest of the NYUCCtime of purchase, (iii) appropriate entries to additional time of purchase or the accounts termination of the several Underwriters offering of the Shares, the Registration Statements and Prospectus, and any supplements or amendments thereto 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;
(d) 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 records transactions contemplated thereby and to deliver the Shares to be sold by such Selling Stockholder and receive payment therefor pursuant hereto; and
(e) The sale of DTC will have been made such Selling Stockholder's Shares pursuant to this Agreement is not prompted by any information concerning the NYUCC, and (iv) Company which is not set forth in the several Underwriters have no notice (within the meaning of Section 8-105 of the NYUCC) of any adverse claimProspectus.
Appears in 1 contract
Representations and Warranties of the Selling Stockholders. Each Selling Stockholder severally represents and warrants to, and agrees with, to each Underwriter, of the Company and Arconic Underwriters that:
(a) Such all information concerning the Selling Stockholder hasfurnished to the Company by the Selling Stockholder expressly for use in (which shall be deemed to be the information set forth under the caption “Selling Stockholder” in the Prospectus Supplement included in the Preliminary Prospectus and the Prospectus), the Registration Statement, the Disclosure Package, any Permitted Free Writing Prospectus or the Prospectus (collectively, the “Selling Stockholder Information”) complied and will comply with all applicable provisions of the Act; the Registration Statement, as it relates to the Selling Stockholder Information, 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 any 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 such Preliminary Prospectus relates to the Selling Stockholder Information, 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 immediately 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 they relate to the Selling Stockholder Information, 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 Supplement and the date the Prospectus Supplement is filed with the Commission and ends at the later of the Time of Purchase 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 Supplement, as then amended or supplemented, as the Prospectus Supplement relates to the Selling Stockholder Information, 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 such Permitted Free Writing Prospectus relates to the Selling Stockholder Information, 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;
(b) the Selling Stockholder has not, prior to the Closing Date, such Selling Stockholder will have, valid title to, or a valid “security entitlement” pursuant to Section 8-102(a)(17) execution of the New York Uniform Commercial Code (the “NYUCC”) in respect of, the Shares free and clear of all security interests, claims, liens, equities or other encumbrances and the legal right and power, and all authorization and approval required by law, to enter into this Agreement, and to sell, transfer and deliver the offered or sold any Shares or a security entitlement in respect by means of the Shares. Each Underwriter that has purchased the Shares delivered at the Closing Date to The Depository Trust Company (any “DTC”) by making payment therefore as provided herein, and that has the Shares credited by book entry to the “securities account” or “securities accountsprospectus” (within the meaning of Section 8-501(a) of the NYUCC) will acquire a security entitlement to the Shares purchased by such UnderwriterAct), and no action based on an or used any “adverse claimprospectus” (within the meaning of Section 8-102(a)(1the Act) in connection with the offer or sale of the NYUCC) may be asserted against such Underwriter with respect to the Shares. For purposes of this representation, each Selling Stockholder may assume that when such payment, delivery (if necessary) and crediting occur, (i) the Shares will have been registered in the name of Cede & Co. or another nominee designated by DTC, in each case on other than the Company’s share registry Disclosure Package;
(c) neither the execution, delivery and performance by the Selling Stockholder of this Agreement nor the sale by the Selling Stockholder of the Shares to be sold by the Selling Stockholder pursuant to this Agreement nor the consummation of the transactions contemplated hereby will conflict with, result in accordance 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) 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 the Selling Stockholder is a party or by which the Selling Stockholder or any of its certificate of incorporation, bylaws and applicable lawproperties may be bound or affected, (ii) DTC is a “securities intermediary” within any federal, state, local or foreign law, regulation or rule applicable to the meaning of Section 8-102(a)(14) of the NYUCCSelling Stockholder, (iii) appropriate entries or any rule or regulation of any self-regulatory organization or other non-governmental regulatory authority (including, without limitation, the NASDAQ Rules) applicable to the accounts of the several Underwriters on the records of DTC will have been made pursuant to the NYUCCSelling Stockholder, and or (iv) any decree, judgment or order applicable to the several Selling Stockholder or any of his 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 to be made by the Selling Stockholder in connection with the sale of the Shares to be sold by the Selling Stockholder pursuant to this Agreement or the consummation by the Selling Stockholder of the transactions contemplated hereby other than (i) registration of the Shares under the Act, which has been effected, (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 rules and regulations of FINRA;
(e) neither the Selling Stockholder nor any of his 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 the Selling Stockholder, except as disclosed in the Registration Statement (excluding the exhibits thereto), the Disclosure Package and the Prospectus; none of the proceeds received by the Selling Stockholder from the sale of the Shares to be sold by the 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;
(g) the Selling Stockholder now is and, at the time of delivery of such Shares, will be the lawful owner of the number of Shares to be sold by the Selling Stockholder pursuant to this Agreement and has and, at the time of delivery of the Shares, will have no valid and marketable title to the Shares, and, assuming that the Underwriters acquire the Shares without notice of any adverse claim (within the meaning of Section 8-105 of the NYUCCUniform Commercial Code as in effect in the State of New York), upon crediting of the Shares to the securities accounts of the Underwriters maintained with DTC and payment therefor by the Underwriters, as provided herein, the Underwriters will have acquired a security entitlement to the Shares, and no action based on any adverse claim may be asserted against the Underwriters with respect to such security entitlement;
(h) the Selling Stockholder has and, at the time of delivery of the Shares, 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, (ii) sell, assign, transfer and deliver the Shares in the manner provided in this Agreement and (iii) make the representations, warranties and agreements made by the Selling Stockholder herein;
(i) this Agreement has each been duly executed and delivered by (or, in the case of this Agreement, on behalf of) the Selling Stockholder, and each is a legal, valid and binding agreement of the Selling Stockholder enforceable in accordance with its terms, except as may be limited by bankruptcy, insolvency, moratorium or other laws designed for the protection of creditors;
(j) the sale of the Shares to be sold by the Selling Stockholder pursuant to this Agreement is not prompted by any material non-public information concerning the Company or any Subsidiary which is not set forth in the Registration Statement (excluding the exhibits thereto), the Disclosure Package and the Prospectus;
(k) at the Time of Purchase, all stock transfer or other 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 the Selling Stockholder to the several Underwriters hereunder will be fully paid or provided for by the Selling Stockholder, and all laws imposing such taxes will be fully complied with;
(l) the Selling Stockholder is not, and has not been at any 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;
(m) on or prior to the date of the Prospectus, the Selling Stockholder has duly executed and delivered to the Company, for further delivery to the Underwriters, a lock-up agreement in the form satisfactory to the Underwriters; and
(n) on or prior to the date of the Prospectus, no Shares, or any adverse claimsecurities convertible into or exchangeable for, or any options or rights to purchase or acquire, Common Stock, are subject to a 10b5-1 trading plan, except as otherwise disclosed to the Representatives. In addition, any certificate signed by the 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 the Selling Stockholder, as to matters covered thereby, to each Underwriter.
Appears in 1 contract
Samples: Underwriting Agreement (Health Insurance Innovations, Inc.)
Representations and Warranties of the Selling Stockholders. Each Selling Stockholder severally represents and warrants to, and agrees with, each Underwriter, the Company and Arconic that:
(a) Such Selling Stockholder has, and immediately prior to the Closing Date, such Selling Stockholder now is and at the time of delivery of such Shares (whether the time of purchase or additional time of purchase, as the case may be) will havebe, valid title to, or a valid “security entitlement” the lawful owner of the number of Shares to be sold by such Selling Stockholder pursuant to Section 8-102(a)(17) 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 New York Uniform Commercial Code (time of purchase or the “NYUCC”) in respect ofadditional time of purchase, as the case may be), the Underwriters will acquire valid and marketable title to such Shares free and clear of all any claim, lien, encumbrance, security interestsinterest, claimscommunity property right, liens, equities restriction on transfer or other encumbrances defect in title;
(b) such Selling Stockholder has and at the time of delivery of such Shares (whether the time of purchase or additional time of purchase, as the case may be) will have, full legal right right, power and powercapacity, and all authorization and any approval required by lawlaw (other than those imposed by the Act and the securities or blue sky laws of certain jurisdictions), to enter into this Agreementsell, and to sellassign, transfer and deliver such Shares in the Shares or a security entitlement manner provided in respect of this Agreement;
(c) this Agreement and the Shares. Each Underwriter that has purchased the Shares delivered at the Closing Date to The Depository Trust Company (“DTC”) by making payment therefore Custody Agreement among , as provided hereincustodian, and that has the Shares credited by book entry to Selling Stockholders (the “securities account” or “securities accounts” (within the meaning of Section 8-501(aCustody Agreement) of the NYUCC) will acquire a security entitlement to the Shares purchased have been duly executed and delivered by such Underwriter, and no action based on an “adverse claim” (within the meaning of Section 8-102(a)(1) of the NYUCC) may be asserted against such Underwriter with respect to the Shares. For purposes of this representation, each Selling Stockholder may assume that when and each is a legal, valid and binding agreement of such payment, delivery (if necessary) and crediting occur, (i) the Shares will have been registered in the name of Cede & Co. or another nominee designated by DTC, in each case on the Company’s share registry Selling Stockholder enforceable in accordance with its certificate of incorporation, bylaws terms;
(d) when the Registration Statement becomes effective and applicable law, (ii) DTC is a “securities intermediary” within at all times subsequent thereto through the meaning of Section 8-102(a)(14) latest of the NYUCCtime of purchase, (iii) appropriate entries to additional time of purchase or the accounts termination of the several Underwriters 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;
(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 records transactions contemplated thereby and to deliver the Shares to be sold by such Selling Stockholder and receive payment therefor pursuant hereto; and
(f) the sale of DTC will have been made such Selling Stockholder's Shares pursuant to this Agreement is not prompted by any information concerning the NYUCC, and (iv) Company which is not set forth in the several Underwriters have no notice (within the meaning of Section 8-105 of the NYUCC) of any adverse claimProspectus.
Appears in 1 contract
Samples: Underwriting Agreement (Corixa Corp)
Representations and Warranties of the Selling Stockholders. Each Selling Stockholder Stockholder, severally and not jointly with the other Selling Stockholders, represents and warrants to, and agrees with, to each Underwriter, of the Company and Arconic Underwriters that:
(a) Such all information with respect to such Selling Stockholder hasincluded in the Registration Statement, any Preliminary Prospectus or the Prospectus complied and will comply with all applicable provisions of the Act; the Registration Statement, as it relates to the 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 such Preliminary Prospectus relates 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, and immediately 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 they relate to 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, as the Prospectus relates 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 date of such Permitted Free Writing Prospectus and ends at the time of purchase did or will any Permitted Free Writing Prospectus, as such Permitted Free Writing Prospectus relates 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;
(b) such Selling Stockholder has not, prior to the Closing Dateexecution 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 haveconflict with, valid title 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 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 FINRA;
(e) neither such Selling Stockholder nor any of its affiliates has taken, directly or indirectly, any action designed to, or a valid “which has constituted or might reasonably be expected to cause or result in the stabilization or manipulation of the price of any security entitlement” of the Company to facilitate the sale or resale of the Shares;
(f) there are no affiliations or associations between any member of the FINRA 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 Section 8-102(a)(17) this Agreement will be paid to a member of the New York Uniform Commercial Code FINRA or any affiliate of (or person “associated with,” as such terms are used in the “NYUCC”Rules of the FINRA) in respect ofsuch member;
(g) such Selling Stockholder now is and, at the time of delivery of such Shares (whether the time of purchase or any 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 of such Shares, 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 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 all any claim, lien, encumbrance, security interestsinterest, claimscommunity property right, liens, equities restriction on transfer or other encumbrances defect in title;
(h) 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 the legal right and powercapacity, and all authorization authorizations and approval approvals required by lawlaw (other than those imposed by the Act and state securities or blue sky laws), to (i) enter into this Agreement, Agreement and a Custody Agreement (as defined below) and to execute a Power of Attorney, (ii) sell, assign, transfer and deliver the Shares or a security entitlement in respect of the Shares. Each Underwriter that has purchased the Shares delivered at the Closing Date to The Depository Trust Company (“DTC”) by making payment therefore as provided herein, and that has the Shares credited by book entry to the “securities account” or “securities accounts” (within the meaning of Section 8-501(a) of the NYUCC) will acquire a security entitlement to the Shares purchased be sold by such Underwriter, and no action based on an “adverse claim” (within the meaning of Section 8-102(a)(1) of the NYUCC) may be asserted against such Underwriter with respect to the Shares. For purposes of this representation, each Selling Stockholder may assume that when pursuant to this Agreement in the manner provided in this Agreement and (iii) make the representations, warranties and agreements made by such payment, delivery (if necessary) and crediting occur, Selling Stockholder herein;
(i) this Agreement and the Shares will custody agreement (the “Custody Agreement”), dated [a recent date before the pricing date], between American Stock Transfer & Trust Company, as custodian (the “Custodian”), and such Selling Stockholder and the Power of Attorney to which such Selling Stockholder is a party have each been registered duly executed and delivered by (or, in the name case of Cede & Co. or another nominee designated by DTCthis Agreement, in on behalf of) such Selling Stockholder, and each case on the Company’s share registry is a legal, valid and binding agreement of such Selling Stockholder enforceable in accordance with its certificate terms, except as may be limited by bankruptcy, insolvency, moratorium or other laws designed for the protection of incorporationcreditors;
(j) such Selling Stockholder has duly and irrevocably authorized each of the Representatives of the Selling Stockholders (whether acting alone or together), bylaws on behalf of such Selling Stockholder, to execute and applicable lawdeliver this Agreement and any other 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;
(k) the sale of the Shares to be sold by such Selling 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;
(iil) DTC at the time of purchase and each additional time of purchase, all stock transfer or other 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;
(m) such Selling Stockholder is not, and has not been at any time, a “securities intermediaryUnited States Real Property Holding Corporation” within the meaning of Section 8-102(a)(14897(c)(2) of the NYUCCInternal Revenue Code of 1986, as amended; and
(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) appropriate entries 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 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 Representatives of the Selling Stockholders pursuant to such Power of Attorney or such Custody Agreement shall be as valid as if such Event had not occurred, regardless of whether or not the Custodian or the 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 accounts Underwriters or counsel for the Underwriters in connection with the offering of the several Underwriters on the records of DTC will have been made pursuant Shares shall be deemed to the NYUCCbe a representation and warranty by such Selling Stockholder, and (iv) the several Underwriters have no notice (within the meaning of Section 8-105 of the NYUCC) of any adverse claimas to matters covered thereby, to each Underwriter.
Appears in 1 contract
Representations and Warranties of the Selling Stockholders. Each ----------------------------------------------------------- Selling Stockholder Stockholder, severally and not jointly, represents and warrants to, and agrees with, to each Underwriter, the Company and Arconic Underwriter that:
(a) Such Selling Stockholder has, and immediately prior to the Closing Date, such Selling Stockholder now is and at the time of delivery of such Shares (whether the time of purchase or additional time of purchase, as the case may be) will havebe, valid title to, or a valid “security entitlement” the lawful owner of the number of Shares to be sold by such Selling Stockholder pursuant to Section 8-102(a)(17) 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 New York Uniform Commercial Code (time of purchase or the “NYUCC”) in respect ofadditional time of purchase, as the case may be), the Underwriters will acquire valid and marketable title to such Shares free and clear of all any claim, lien, encumbrance, security interestsinterest, claimscommunity property right, liens, equities restriction on transfer or other encumbrances defect in title;
(b) such Selling Stockholder has and at the time of delivery of such Shares (whether the time of purchase or additional time of purchase, as the case may be) will have, full legal right right, power and powercapacity, and all authorization and any approval required by lawlaw (other than those imposed by the Act and the securities or blue sky laws of certain jurisdictions), to enter into this Agreementsell, and to sellassign, transfer and deliver such Shares in the Shares or a security entitlement manner provided in respect of this Agreement;
(c) this Agreement and the Shares. Each Underwriter that has purchased the Shares delivered at the Closing Date to The Depository Trust Company (“DTC”) by making payment therefore Custody Agreement among [ ], as provided hereincustodian, and that has the Shares credited by book entry to Selling Stockholders (the “securities account” or “securities accounts” (within the meaning of Section 8-501(a"Custody Agreement") of the NYUCC) will acquire a security entitlement to the Shares purchased have been duly executed and delivered by such Underwriter, and no action based on an “adverse claim” (within the meaning of Section 8-102(a)(1) of the NYUCC) may be asserted against such Underwriter with respect to the Shares. For purposes of this representation, each Selling Stockholder may assume that when and each is a legal, valid and binding agreement of such payment, delivery (if necessary) and crediting occur, (i) the Shares will have been registered in the name of Cede & Co. or another nominee designated by DTC, in each case on the Company’s share registry Selling Stockholder enforceable in accordance with its certificate of incorporation, bylaws terms;
(d) when the Registration Statement becomes effective and applicable law, (ii) DTC is a “securities intermediary” within at all times subsequent thereto through the meaning of Section 8-102(a)(14) latest of the NYUCCtime of purchase, additional time of purchase or the termination of the offering of the Shares, the information in the Registration Statement and Prospectus, and any supplements or amendments thereto, pertaining to such Selling Stockholder in the Prospectus is complete and accurate in all material respects;
(iiie) appropriate entries 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;
(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 Prospectus; and
(g) the Significant Selling Stockholder identified in Schedule D (the "Significant Selling Stockholder") represents and warrants to each Underwriter that, to the accounts knowledge of the several Underwriters on Significant Selling Stockholder (without having conducted any investigation or inquiry) that the records of DTC will have been made pursuant to the NYUCC, representations and (iv) the several Underwriters have no notice (within the meaning of Section 8-105 warranties of the NYUCC) of any adverse claimCompany contained in Section 3 hereof are true and accurate in all material respects.
Appears in 1 contract
Samples: Underwriting Agreement (Netopia Inc)
Representations and Warranties of the Selling Stockholders. Each Selling Stockholder Stockholder, severally and not jointly with the other Selling Stockholders, represents and warrants to, and agrees with, to each Underwriter, of the Company and Arconic Underwriters that:
(a) Such all information with respect to such Selling Stockholder hasincluded in the Registration Statement, any Preliminary Prospectus or the Prospectus complied and will comply with all applicable provisions of the Act; the Registration Statement, as it relates to the 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 such Preliminary Prospectus relates 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, and immediately 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 they relate 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 the Prospectus relates 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 date of such Permitted Free Writing Prospectus and ends at the time of purchase did or will any Permitted Free Writing Prospectus, as such Permitted Free Writing Prospectus relates 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;
(b) such Selling Stockholder has not, prior to the Closing Dateexecution 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, each of the agreements relating to the Recapitalization listed on Schedule D annexed hereto (the “Recapitalization Agreements”), to the extent a party thereto, the Custody Agreement (as defined below) to which such Selling Stockholder is a party or the 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 haveconflict with, valid title toresult 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 valid “security entitlement” 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) any rule or regulation of any self-regulatory organization or other non-governmental regulatory authority (including, without limitation, the rules and regulations of 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, NASDAQ), is required in connection with the sale of the Shares to be sold by such Selling Stockholder pursuant to Section 8-102(a)(17) this Agreement or the consummation by such Selling Stockholder of the New York Uniform Commercial Code transactions contemplated hereby, by the Recapitalization or by the Custody Agreement or Power of Attorney to which such Selling Stockholder is a party other than (i) registration of the “NYUCC”) in respect of, sale of the Shares free and clear 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 effected in accordance herewith), (ii) any necessary qualification under the securities or blue sky laws of all security interests, claims, liens, equities the various jurisdictions in which the Shares are being offered by the Underwriters or other encumbrances (iii) under the Conduct Rules of FINRA;
(e) upon payment of the purchase price for the Shares to be sold by such Selling Stockholder pursuant to this Agreement and the legal right and power, and all authorization and approval required by law, to enter into this Agreement, and to sell, transfer and deliver crediting of such Shares on the Shares or a security entitlement in respect books of the Shares. Each Underwriter that has purchased the Shares delivered at the Closing Date to The Depository Trust Company (“DTC”) by making payment therefore as provided herein, and to securities accounts of the Underwriters (assuming that neither DTC nor any such Underwriter has the Shares credited by book entry to the notice of any “securities accountadverse claim,” or “securities accounts” (within the meaning of Section 8-501(a) 105 of the NYUCCUCC, to such Shares), (i) will acquire DTC shall be a security entitlement to the Shares purchased by such Underwriter, and no action based on an “adverse claimprotected purchaser,” (within the meaning of Section 8-102(a)(1) 303 of the NYUCCUCC, of such Shares and will acquire its interest in the Shares (including, without limitation, all rights that such Selling Stockholder had or has the power to transfer in such Shares) free and clear of any adverse claim within the meaning of Section 8-102 of the UCC, (ii) under Section 8-501 of the UCC, the Underwriters will acquire valid security entitlements in respect of such Shares and (iii) no action (whether framed in conversion, replevin, constructive trust, equitable lien, or other theory) based on any “adverse claim,” within the meaning of Section 8-102 of the UCC, to such Shares may be asserted against such Underwriter the Underwriters with respect to the Shares. For such security entitlement; for purposes of this representation, each such Selling Stockholder may assume that when such payment, delivery (if necessary) payment and crediting occur, (ix) the such Shares will have been registered in the name of Cede & Co. or another nominee designated by DTC, in each case on the Company’s share registry in accordance with its certificate of incorporation, bylaws and applicable law, (iiy) DTC is will be registered as a “securities intermediaryclearing corporation,” within the meaning of Section 8-102(a)(14) 102 of the NYUCCUCC, and (iiiz) appropriate entries to the accounts of the several Underwriters on the records of DTC will have been made pursuant to the NYUCCUCC.
(f) 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;
(g) 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), 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 FINRA or any affiliate of (or person “associated with,” as such terms are used in the Bylaws of FINRA) such member;
(h) such Selling Stockholder now is the lawful owner of the number of shares of Class A Common Stock to be converted into Common Stock or Series A Preferred Stock to ultimately be converted into Common Stock and sold by such Selling Stockholder pursuant to this Agreement and at the time of purchase such Selling Stockholder will have valid and marketable title to these Shares to be sold by such Selling Stockholder pursuant to this Agreement, and, at the time of delivery of such Shares (whether the time of purchase or any 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 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 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; and, after they are delivered against payment therefor as provided herein, such Shares will be fully paid, non-assessable and free of statutory and contractual preemptive rights (except for such contractual preemptive rights disclosed in the Registration Statement (excluding the exhibits thereto), each Preliminary Prospectus and the Prospectus), resale rights, rights of first refusal and similar rights
(i) 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, the Recapitalization Agreements, to the extent a party thereto, and a Custody Agreement (as defined below) and to execute a Power of Attorney, (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 and (iii) make the representations, warranties and agreements made by such Selling Stockholder herein;
(j) this Agreement, the Recapitalization Agreements, to the extent a party thereto, and the custody agreement (the “Custody Agreement”), between —, 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 each is a legal, valid and binding agreement of such Selling Stockholder enforceable in accordance with its terms;
(k) such Selling Stockholder has duly and irrevocably authorized each of the Representatives of the Selling Stockholders (whether acting alone or together), on behalf of such Selling Stockholder, to execute and deliver this Agreement and any other 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;
(l) the sale of the Shares to be sold by such Selling 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;
(m) at the time of purchase and each additional time of purchase, all stock transfer or other 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
(n) pursuant to the Custody Agreement to which such Selling Stockholder is a party, certificates or book-entry entitlements in negotiable and proper deliverable 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 (iviii) the several Underwriters have no notice 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 (within or, if such Selling Stockholder is not an individual, the meaning liquidation, dissolution, merger or consolidation of Section 8-105 such Selling Stockholder) or the occurrence of any other event (each, an “Event”); if an Event occurs before the delivery of the NYUCC) 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 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 adverse claimof 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 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
Samples: Underwriting Agreement (Renewable Energy Group, Inc.)
