Representations, Warranties and Agreements of the Selling Shareholder. The Selling Shareholder represents, warrants and agrees that: (a) Neither the Selling Shareholder nor any person acting on behalf of the Selling Shareholder (other than, if applicable, the Company and the Underwriters) has used or referred to any “free writing prospectus” (as defined in Rule 405), relating to the Shares; (b) The Selling Shareholder has, and immediately prior to the Delivery Date on which the Selling Shareholder is selling the Shares the Selling Shareholder will have, good and valid title to, or a valid “security entitlement” within the meaning of Sections 8-102 and 8-501 of the New York Uniform Commercial Code (the “UCC”) in respect of, the Shares to be sold by the Selling Shareholder hereunder on the Delivery Date, free and clear of all liens, encumbrances, equities or claims. (c) Upon payment for the Shares to be sold by the Selling Shareholder, delivery of such Shares, as directed by the Underwriter, to Cede & Co. (“Cede”) or such other nominee as may be designated by The Depository Trust Company (“DTC”), registration of such Shares in the name of Cede or such other nominee and the crediting of such Shares on the books of DTC to the securities account of the Underwriter (assuming that neither DTC nor the Underwriter has notice of any adverse claim (within the meaning of Sections 8-102 and 8-105 of the UCC) to such Shares), (i) the Underwriter shall be a “protected purchaser” of such Shares within the meaning of Section 8-303 of the UCC, and (ii) under Section 8-501 of the UCC, the Underwriter will acquire a valid security entitlement in respect of such Shares free of any “adverse claim,” within the meaning of Section 8-102 of the UCC. For purposes of this representation, the Selling Shareholder may assume that when such payment, delivery and crediting occur, (A) such Shares will have been registered in the name of Cede or another nominee designated by DTC, in each case on the Company’s share registry in accordance with its certificate of incorporation, bylaws and applicable law, (B) DTC will be registered as a “clearing corporation” within the meaning of Section 8-102 of the UCC and (C) appropriate entries to the Underwriter’s account on the records of DTC will have been made pursuant to the UCC. (d) The Selling Shareholder has full right, power and authority, corporate or otherwise, to enter into this Agreement. (e) This Agreement has been duly and validly authorized, executed and delivered by or on behalf of the Selling Shareholder. (f) The execution, delivery and performance of this Agreement by the Selling Shareholder and the consummation by the Selling Shareholder of the transactions contemplated hereby do not and will not (i) conflict with or result in a breach or violation of any of the terms or provisions of, or constitute a default under, any indenture, mortgage, deed of trust, loan agreement, license or other agreement or instrument to which the Selling Shareholder is a party or by which the Selling Shareholder is bound or to which any of the property or assets of the Selling Shareholder is subject, (ii) result in any violation of the provisions of the charter or by-laws (or similar organizational documents) of the Selling Shareholder or (iii) result in any violation of any statute or any order, rule or regulation of any court or governmental agency or body having jurisdiction over the Selling Shareholder or the property or assets of the Selling Shareholder. (g) No consent, approval, authorization or order of, or filing or registration with, any court or governmental agency or body having jurisdiction over the Selling Shareholder or the property or assets of the Selling Shareholder is required for the execution, delivery and performance of this Agreement by the Selling Shareholder and the consummation by the Selling Shareholder of the transactions contemplated hereby, except for the registration of the Shares under the Securities Act and such consents, approvals, authorizations, registrations or qualifications as may be required under the Exchange Act and applicable state securities laws in connection with the purchase and sale of the Shares by the Underwriter. (h) Neither the Selling Shareholder nor any of its officers or directors has ever served as an officer or director of, or otherwise held any position with, the Company or any of its subsidiaries. The Selling Shareholder (i) has never exercised control over the Company or any of its subsidiaries, (ii) has never sought to influence the Company by virtue of the Selling Shareholder’s ownership of Common Stock and (iii) does not have, and does not have access to, material non-public information regarding the current or prospective condition (financial or otherwise), operations, results of operations, properties or business of the Company or any of its subsidiaries. (i) The Selling Shareholder has not taken and will not take, directly or indirectly, any action that is designed to or that has constituted or that could reasonably be expected to cause or result in the stabilization or manipulation of the price of any security of the Company to facilitate the sale or resale of the Shares. (j) The Selling Shareholder is not directly or indirectly an affiliate of or associated with any member of the National Association of Securities Dealers, Inc., except that a director of the Selling Shareholder, Fxxxxxxxx X. Xxxxxxxxxx, is an advisory director of Mxxxxx Sxxxxxx. Any certificate signed by any officer of the Selling Shareholder and delivered to the Underwriter or counsel for the Underwriter in connection with the offering of the Shares shall be deemed a representation and warranty by the Selling Shareholder, as to matters covered thereby, to the Underwriter.
Appears in 1 contract
Representations, Warranties and Agreements of the Selling Shareholder. The Selling Shareholder represents, warrants and agrees that:
(a) Neither the Selling Shareholder nor any person acting on behalf of the Selling Shareholder (other than, if applicable, the Company and the Underwriters) has used or referred made any offer relating to any the Shares which would constitute a “free writing prospectus” (as defined in Rule 405405 under the Securities Act), relating to the Shares;.
(b) The Selling Shareholder has, and immediately prior to the Delivery Date on which the Selling Shareholder is selling the Shares the Selling Shareholder will have, has good and valid title to, or a valid to the Shares to be sold by the Selling Shareholder hereunder on the Delivery Date and any “security entitlement” within the meaning of Sections 8-102 and Section 8-501 of the New York Uniform Commercial Code (the “UCC”) in respect of, the Shares to be sold by the Selling Shareholder hereunder on the Delivery Datethereof, free and clear of all liens, encumbrances, equities equities, community property rights, restrictions on transfer or claims.
(c) The obligations of the Selling Shareholder hereunder shall not be terminated by any act of the Selling Shareholder, by operation of law or the occurrence of any other event, except as otherwise provided hereunder.
(d) Upon payment for the Shares to be sold by the Selling Shareholder, delivery of such Shares, as directed by the UnderwriterUnderwriters, to Cede & Co. (“Cede”) or such other nominee as may be designated by The Depository Trust Company (“DTC”), registration of such Shares in the name of Cede or such other nominee and the crediting of such Shares on the books of DTC to the securities account accounts of the Underwriter (assuming that neither DTC nor the Underwriter has notice of any adverse claim (within the meaning of Sections 8-102 and 8-105 of the UCC) to such Shares), Underwriters (i) the Underwriter DTC will acquire good and valid title to such Shares free and clear of all liens, encumbrances, equities, community property rights, restrictions on transfer or claims, (ii) DTC shall be a “protected purchaser” of such Shares within the meaning of Section 8-303 of the UCC, and (iiiii) under Section 8-501 of the UCC, the Underwriter Underwriters will acquire a valid security entitlement in respect of such Shares free of any “Shares, and (iv) an action based on an adverse claim,” within claim to such securities entitlement, whether framed in conversion, replevin, constructive trust, equitable lien or other theory may not be asserted against the meaning of Section 8-102 of the UCCUnderwriters with respect to such security entitlement. For purposes of this representation, the Selling Shareholder may assume that when such payment, delivery and crediting occur, (Ax) such Shares will have been registered in the name of Cede or another nominee designated by DTC, in each case on the Company’s share registry in accordance with its certificate of incorporation, bylaws and applicable law, (By) DTC will be registered as a “clearing corporation” within the meaning of Section 8-102 of the UCC UCC, and (Cz) appropriate entries to the Underwriter’s account accounts of the Underwriters on the records of DTC will have been made pursuant to the UCC.
(de) [Reserved]
(f) The Selling Shareholder has full right, power and authority, corporate or otherwise, to enter into this Agreement.
(eg) This Agreement has been duly and validly authorized, executed and delivered by or on behalf of the Selling Shareholder.
(fh) [Reserved]
(i) The sale of the Shares to be sold by the Selling Shareholder, the execution, delivery and performance of this Agreement by the Selling Shareholder and the consummation by the Selling Shareholder of the transactions contemplated hereby do not and will not (i) conflict with or result in a breach or violation of any of the terms or provisions of, or constitute a default under, any indenture, mortgage, deed of trust, loan agreement, license license, lease or other agreement or instrument to which the Selling Shareholder is a party or by which the Selling Shareholder is bound or to which any of the property or assets of the Selling Shareholder is subject, or (ii) result in any violation of the provisions of the charter or by-laws (or similar organizational documents) of the Selling Shareholder or (iii) result in any violation of any statute or any judgment, order, decree, rule or regulation of any court or governmental agency or body having jurisdiction over the Selling Shareholder or the property or assets of the Selling Shareholder.
(gj) No consent, approval, authorization or order of, or filing or registration with, any court or governmental agency or body having jurisdiction over the Selling Shareholder or the property or assets of the Selling Shareholder is required for the sale of the Shares by the Selling Shareholder, the execution, delivery and performance of this Agreement by the Selling Shareholder and the consummation by the Selling Shareholder of the transactions contemplated hereby, except for (i) the registration of the Shares under the Securities Act and such consents, approvals, authorizations, orders, filings, registrations or qualifications as may be required under the Exchange Act and applicable state or foreign securities laws in connection with the purchase and sale of the Shares by the UnderwriterUnderwriters (including but not limited to, the approval by and rules of the FINRA and the rules of the NASDAQ Stock Market LLC) and (ii) such consents, approvals, authorizations and orders that have been already obtained.
(hk) Neither To the Selling Shareholder nor any of its officers or directors has ever served as an officer or director of, or otherwise held any position with, the Company or any of its subsidiaries. The Selling Shareholder (i) has never exercised control over the Company or any of its subsidiaries, (ii) has never sought to influence the Company by virtue knowledge of the Selling Shareholder’s ownership , the Registration Statement did not, as of Common Stock the Effective Date, contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading; provided that the representations and warranties set forth in this subsection (iiik) does apply only to statements or omissions made in reliance upon and in conformity with information relating to the Selling Shareholder furnished in writing by or on behalf of the Selling Shareholder expressly for use in the Prospectus, it being understood that the only such information furnished by the Selling Shareholder consists of the statements contained with respect to the Selling Shareholder under the caption “Selling shareholder”.
(l) To the knowledge of the Selling Shareholder, the Prospectus will not, as of its date or as of the Delivery Date, contain an untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not havemisleading; provided that the representations and warranties set forth in this subsection (l) apply only to statements or omissions made in reliance upon and in conformity with information relating to the Selling Shareholder furnished in writing by or on behalf of the Selling Shareholder expressly for use in the Prospectus, it being understood that the only such information furnished by the Selling Shareholder consists of the statements contained with respect to the Selling Shareholder under the caption “Selling shareholder”.
(m) To the knowledge of the Selling Shareholder, the Pricing Disclosure Package did not, as of the Applicable Time, contain an untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading; provided that the representations and does warranties set forth in this subsection (m) apply only to statements or omissions made in reliance upon and in conformity with information relating to the Selling Shareholder furnished in writing by or on behalf of the Selling Shareholder expressly for use in the Pricing Disclosure Package, it being understood that the only such information furnished by the Selling Shareholder consists of the statements contained with respect to the Selling Shareholder under the caption “Selling shareholder”.
(n) To the knowledge of the Selling Shareholder, the Pricing Disclosure Package, when taken together with each Issuer Free Writing Prospectus listed in Schedule V hereto, did not, as of the Applicable Time, contain an untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not have access tomisleading; provided that the representations and warranties set forth in this subsection (n) apply only to statements or omissions made in reliance upon and in conformity with information relating to the Selling Shareholder furnished in writing by or on behalf of the Selling Shareholder expressly for use in the Pricing Disclosure Package (or any Issuer Free Writing Package), it being understood that the only such information furnished by the Selling Shareholder consists of the statements contained with respect to the Selling Shareholder under the caption “Selling shareholder”.
(o) The Selling Shareholder is not prompted to sell Shares by any material non-public information regarding the current or prospective condition (financial or otherwise), operations, results of operations, properties or business of concerning the Company that is not set forth in the Registration Statement, the Pricing Disclosure Package or any of its subsidiariesthe Prospectus.
(ip) Assuming that the Underwriters are not otherwise subject to taxation in the State of Israel, other than any withholding taxes which may be necessary pursuant to Israeli law on account of gains of the Selling Shareholder arising under clauses (1) and (2) below, no stamp or other issuance of transfer taxes or duties and no capital gains, income or other taxes are payable by or on behalf of the Underwriters, or otherwise imposed on any payments made to the Underwriters, to the State of Israel or to any political subdivision or taxing authority thereof in connection with (1) the execution, delivery or performance of this Agreement by the Selling Shareholder, or (2) the sale or delivery of the Shares to be sold by the Selling Shareholder to or for the respective accounts of the Underwriters as disclosed in the Registration Statement, the Pricing Disclosure Package and the Prospectus, and pursuant to the terms of this Agreement.
(q) The Selling Shareholder has not taken and will not taketaken, directly or indirectly, any action that is designed to or that has constituted or that could reasonably be expected to cause or result in the stabilization or manipulation of the price of any security of the Company to facilitate in connection with the sale or resale offering of the Shares. In addition, the Selling Shareholder has not engaged in any form of solicitation, advertising or any other action constituting an offer to the public under the Israeli Securities Law in connection with the transactions contemplated hereby which would require the publication of a prospectus in the State of Israel under the laws of the State of Israel.
(jr) The Selling Shareholder is not directly (1) an employee benefit plan subject to Title I of ERISA, (2) a plan or indirectly an affiliate of or associated with any member account subject to Section 4975 of the National Association Code or (3) an entity deemed to hold “plan assets” of Securities Dealersany such plan or account under Section 3(42) of ERISA, Inc.29 C.F.R. 2510.3-101, except that a director of the Selling Shareholder, Fxxxxxxxx X. Xxxxxxxxxx, is an advisory director of Mxxxxx Sxxxxxxor otherwise. Any certificate signed by any officer of the Selling Shareholder and delivered to the Underwriter Underwriters or counsel for the Underwriter Underwriters in connection with the offering of the Shares shall be deemed a representation and warranty by the Selling Shareholder, as to matters covered thereby, to the each Underwriter.
Appears in 1 contract
Representations, Warranties and Agreements of the Selling Shareholder. The Selling Shareholder represents, warrants and agrees that:
(a) Neither the Selling Shareholder nor any person acting on behalf of the Selling Shareholder (other than, if applicable, the Company and the UnderwritersUnderwriter) has used or referred to any “free writing prospectus” (as defined in Rule 405), 405 under the Securities Act) relating to the Shares;.
(b) The Selling Shareholder has, and immediately prior to the Delivery Date on which the Selling Shareholder is selling the Shares Shares, the Selling Shareholder will have, good and valid marketable title to, or a valid “security entitlement” within the meaning of Sections 8-102 and 8-501 of the New York Uniform Commercial Code (the “UCC”) in respect of, to the Shares to be sold by the Selling Shareholder hereunder on the Delivery DateDate and any “security entitlement” within the meaning of Section 8-501 of the Uniform Commercial Code as in effect on the date hereof in the State of New York (the “UCC”) in respect thereof, free and clear of all liens, encumbrances, equities equities, community property rights, restrictions on transfer or claims.
(c) Upon payment for the Shares to be sold by the Selling Shareholder, delivery of such Shares, as directed by the Underwriter, to Cede & Co. (“Cede”) or such other nominee as may be designated by The Depository Trust Company (“DTC”), registration of such Shares in the name of Cede or such other nominee and the crediting of such Shares on the books of DTC to the securities account of the Underwriter (assuming that neither DTC nor the Underwriter has notice of any adverse claim (within the meaning of Sections 8-102 and Section 8-105 of the UCC) to such Shares), ): (i) the Underwriter shall be a “protected purchaser” of such Shares within the meaning of Section 8-303 of the UCC, and (ii) under Section 8-501 of the UCC, the Underwriter will acquire a valid security entitlement in respect of such Shares free of any “Shares, and (ii) an action based on an adverse claim,” claim (within the meaning of Section 8-102 of the UCC) to the financial assets consisting of such Shares, whether framed in conversion, replevin, constructive trust, equitable lien or other theory may not be asserted against the Underwriter. For purposes of this representation, the such Selling Shareholder may assume that when such payment, delivery and crediting occur, (Ax) such Shares will have been registered in the name of Cede or another nominee designated by DTC, in each case on the Company’s share registry in accordance with its certificate of incorporation, bylaws incorporation and applicable law, (By) DTC will be registered as a “clearing corporation” within the meaning of Section 8-102 of the UCC UCC, and (Cz) appropriate entries to the Underwriter’s account accounts of the Underwriter on the records of DTC will have been made pursuant to the UCC.
(d) The Selling Shareholder has full right, power and authority, corporate or otherwise, to enter into this Agreement.
(e) This Agreement has been duly and validly authorized, executed and delivered by or on behalf of the Selling Shareholder.
(f) The sale of the Shares by the Selling Shareholder and the execution, delivery and performance of this Agreement by the Selling Shareholder and the consummation by the Selling Shareholder of the transactions contemplated hereby do not and will not (i) conflict with or result in a breach or violation of any of the terms or provisions of, or constitute a default under, any indenture, mortgage, deed of trust, loan agreement, license license, lease or other agreement or instrument to which the Selling Shareholder is a party or by which the Selling Shareholder is bound or to which any of the property or assets of the Selling Shareholder is subject, (ii) result in any violation of the provisions of the charter or by-laws (or similar organizational documents) of the Selling Shareholder or (iii) result in any violation of any statute or any judgment, order, decree, rule or regulation of any court or governmental agency or body having jurisdiction over the Selling Shareholder or the property or assets of the Selling Shareholder, except in the case of clauses (i) and (iii) above, for such conflicts, breaches, violations or defaults as would not, in the aggregate, reasonably be expected to materially and adversely affect the sale of the Shares by the Selling Shareholder hereunder.
(g) No consent, approval, authorization or order of, or filing or registration with, any court or governmental agency or body having jurisdiction over the Selling Shareholder or the property or assets of the Selling Shareholder is required for the sale of the Shares by the Selling Shareholder, the execution, delivery and performance of this Agreement by the Selling Shareholder and the consummation by the Selling Shareholder of the transactions contemplated hereby, except (i) for the registration of the Shares under the Securities Act and Act, (ii) such consents, approvals, authorizations, registrations or qualifications as may be required under the Exchange Act and applicable state or foreign securities laws in connection with laws, (iii) such as have been or will be obtained, made or waived or on prior to the purchase and sale of the Shares Delivery Date or (iv) those required by the UnderwriterFINRA.
(h) Neither The information contained or incorporated by reference in (i) the Registration Statement and any amendment thereto, as of the Effective Date, 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 not misleading and (ii) (x) the Prospectus, as of its date and on the Delivery Date, and (y) the Pricing Disclosure Package, as of the Applicable 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, but in the case of both clauses (i) and (ii) hereof, only to the extent that the untrue statement or alleged untrue statement or omission or alleged omission was made in reliance upon and in conformity with written information concerning the Selling Shareholder nor any of its officers or directors has ever served as an officer or director of, or otherwise held any position with, the Company or any of its subsidiaries. The Selling Shareholder (i) has never exercised control over the Company or any of its subsidiaries, (ii) has never sought furnished to influence the Company by virtue of the Selling Shareholder’s ownership of Common Stock and (iii) does not haveShareholder specifically for inclusion therein, and does not have access to, material non-public which information regarding is limited to the current or prospective condition (financial or otherwiseinformation set forth in Section 10(f), operations, results of operations, properties or business of the Company or any of its subsidiaries.
(i) The Selling Shareholder is not prompted to sell Shares by any information concerning the Company that is not set forth in the Registration Statement, the Pricing Disclosure Package and the Prospectus.
(j) The Selling Shareholder has not taken and will not take, directly or indirectly, any action that is designed to or that has constituted or that could reasonably be expected to cause or result in the stabilization or manipulation of the price of any security of the Company to facilitate the sale or resale of the Shares.
(jk) The Neither the Selling Shareholder is not directly or indirectly an affiliate of or associated with any member of Shareholder, nor, to the National Association of Securities Dealers, Inc., except that a director knowledge of the Selling Shareholder, Fxxxxxxxx X. Xxxxxxxxxxany director, officer, agent, employee or other person acting on behalf of the Selling Shareholder, has in the course of its actions for, or on behalf of, the Selling Shareholder: (i) used any corporate funds for any unlawful contribution, gift, entertainment or other unlawful expense relating to political activity; (ii) made any direct or indirect unlawful payment to any foreign or domestic government official, “foreign official” (as defined in the FCPA) or employee from corporate funds; (iii) violated or is in violation of any provision of the FCPA, U.K. Xxxxxxx Xxx 0000, as amended, or any other applicable anti-bribery statute or regulation; or (iv) made any bribe, rebate, payoff, influence payment, kickback or other unlawful payment.
(l) The operations of the Selling Shareholder are and have been conducted at all times in compliance with applicable Money Laundering Laws and no action, suit or proceeding by or before any court or governmental agency, authority or body or any arbitrator involving the Selling Shareholder with respect to the Money Laundering Laws is pending or, to the knowledge of the Selling Shareholder, threatened.
(m) Neither the Selling Shareholder, nor, to the knowledge of the Selling Shareholder, any director, officer, agent or employee of the Selling Shareholder is (i) currently subject to or the target of any Sanctions; or (ii) located, organized or resident in a country that is the subject of Sanctions (including, without limitation, Crimea, Cuba, Iran, North Korea, Sudan, and Syria); and the Selling Shareholder will not directly or indirectly use the proceeds of the offering, or lend, contribute or otherwise make available such proceeds to any subsidiary, joint venture partner or other person or entity, for the purpose of financing the activities of any person, or in any country or territory, that currently is the subject of Sanctions or in any other manner that will result in a violation by any person (including any person participating in the transaction whether as an advisory director underwriter, advisor, investor or otherwise) of Mxxxxx SxxxxxxSanctions. Any certificate signed by any officer of the Selling Shareholder and delivered to the Underwriter or counsel for the Underwriter in connection with the offering of the Shares shall be deemed a representation and warranty by the Selling Shareholder, as to matters covered thereby, to the Underwriter.
Appears in 1 contract
Samples: Underwriting Agreement (Macquarie Infrastructure Corp)
Representations, Warranties and Agreements of the Selling Shareholder. The Selling Shareholder represents, represents and warrants to and agrees with the Underwriters that:
(a) Neither the Selling Shareholder nor any person acting on behalf of the Selling Shareholder (other than, if applicable, the Company and the Underwriters) has used or referred to any “free writing prospectus” (as defined in Rule 405), relating to the Shares;
(b) The Selling Shareholder has, and immediately prior to the First Delivery Date on which the Selling Shareholder is selling the Shares (as defined in Section 5 hereof), the Selling Shareholder will have, good and valid title to, or a valid “security entitlement” within the meaning of Sections 8-102 and 8-501 of the New York Uniform Commercial Code (the “UCC”) in respect of, to the Shares represented by the ADSs to be sold by the Selling Shareholder hereunder on the Delivery Datesuch date, free and clear of all liens, encumbrances, equities or claims; and upon deposit of the Shares as contemplated herein and in the Deposit Agreement and upon delivery of the ADSs representing such Shares and payment therefor pursuant hereto and thereto, good and valid title to such ADSs, free and clear of all liens, encumbrances, equities or claims, will pass to the several Underwriters.
(cb) Upon payment for The Selling Shareholder has placed in custody under a custody agreement (the "Custody Agreement") with Xxxxxx Brothers Inc., as custodian (the "Custodian"), Shares to be deposited with the Depositary in respect of the ADSs to be sold by the Selling Shareholder, delivery Shareholder hereunder.
(c) The Selling Shareholder has duly executed and delivered an irrevocable power of such Sharesattorney (the "Power of Attorney") appointing the Company and one or more other persons, as directed attorneys, with full power of substitution, and with full authority (exercisable by the Underwriter, any one or more of them) to Cede & Co. (“Cede”) or execute and deliver this Agreement and to take such other nominee action as may be designated by The Depository Trust Company (“DTC”), registration necessary or desirable to carry out the provisions hereof on behalf of such Shares in the name of Cede or such other nominee and the crediting of such Shares on the books of DTC to the securities account of the Underwriter (assuming that neither DTC nor the Underwriter has notice of any adverse claim (within the meaning of Sections 8-102 and 8-105 of the UCC) to such Shares), (i) the Underwriter shall be a “protected purchaser” of such Shares within the meaning of Section 8-303 of the UCC, and (ii) under Section 8-501 of the UCC, the Underwriter will acquire a valid security entitlement in respect of such Shares free of any “adverse claim,” within the meaning of Section 8-102 of the UCC. For purposes of this representation, the Selling Shareholder may assume that when such payment, delivery and crediting occur, (A) such Shares will have been registered in the name of Cede or another nominee designated by DTC, in each case on the Company’s share registry in accordance with its certificate of incorporation, bylaws and applicable law, (B) DTC will be registered as a “clearing corporation” within the meaning of Section 8-102 of the UCC and (C) appropriate entries to the Underwriter’s account on the records of DTC will have been made pursuant to the UCCShareholder.
(d) The Selling Shareholder has full right, power and authority, corporate or otherwise, authority to enter into this Agreement.
(e) This Agreement has been duly , the Power of Attorney and validly authorized, executed and delivered by or on behalf of the Selling Shareholder.
(f) The Custody Agreement; the execution, delivery and performance of this Agreement, the Power of Attorney and the Custody Agreement by the Selling Shareholder and the consummation by the Selling Shareholder of the transactions contemplated hereby do not and thereby will not (i) conflict with or result in a breach or violation of any of the terms or provisions of, or constitute a default under, any material indenture, mortgage, deed of trust, loan agreement, license agreement or other material agreement or instrument to which the Selling Shareholder is a party or by which the Selling Shareholder is bound or to which any of the property or assets of the Selling Shareholder is subject, (ii) result in any violation of or, to the provisions of the charter or by-laws (or similar organizational documents) knowledge of the Selling Shareholder or (iii) result in any violation of Shareholder, any statute or any order, rule or regulation of any court or governmental agency or body having jurisdiction over the Selling Shareholder or the property or assets of the Selling Shareholder.
(g) No consent, approval, authorization or order of, or filing or registration with, any court or governmental agency or body having jurisdiction over the Selling Shareholder or the property or assets of the Selling Shareholder is required for the execution, delivery and performance of this Agreement by the Selling Shareholder and the consummation by the Selling Shareholder of the transactions contemplated hereby; and, except for the registration of the Shares and the ADSs under the Securities Act and such consents, approvals, authorizations, registrations or qualifications as may be required under the Exchange Act and applicable state or foreign securities laws in connection with the purchase and sale distribution of the Shares ADSs by the UnderwriterUnderwriters, no consent, approval, authorization or order of, or filing or registration with, any such court or governmental agency or body is required for the execution, delivery and performance of this Agreement, the Power of Attorney or the Custody Agreement by the Selling Shareholder and the consummation by the Selling Shareholder of the transactions contemplated hereby and thereby.
(h) Neither the Selling Shareholder nor any of its officers or directors has ever served as an officer or director of, or otherwise held any position with, the Company or any of its subsidiaries. The Selling Shareholder (i) has never exercised control over the Company or any of its subsidiaries, (ii) has never sought to influence the Company by virtue of the Selling Shareholder’s ownership of Common Stock and (iii) does not have, and does not have access to, material non-public information regarding the current or prospective condition (financial or otherwise), operations, results of operations, properties or business of the Company or any of its subsidiaries.
(ie) The Selling Shareholder has not taken and will not take, directly or indirectly, any action that which is designed to or that which has constituted or that could which might reasonably be expected to cause or result in the stabilization or manipulation of the price of any security of the Company to facilitate the sale or resale of the SharesADSs.
(jf) The Selling Shareholder is not directly or indirectly an affiliate of or associated with any member of Except as may be disclosed in the National Association of Securities DealersProspectus, Inc.including, except that a director of without limitation, Irish stamp duty payable upon the Selling Shareholder, Fxxxxxxxx X. Xxxxxxxxxx, is an advisory director of Mxxxxx Sxxxxxx. Any certificate signed deposit by any officer of the Selling Shareholder and delivered to the Underwriter or counsel for the Underwriter in connection with the offering of the Shares shall with the Depositary (which is to be deemed a representation and warranty discharged by the Selling Shareholder), as to matters covered therebyno stamp or other issuance or transfer taxes or duties and no capital gains, income, withholding or other taxes are payable by or on behalf of the Underwriters to the Underwritergovernment of the United States or Ireland or any political subdivision or taxing authority thereof or therein in connection with (i) the deposit of Shares by the Selling Shareholder with the Custodian for the Depositary against issuance of ADRs evidencing ADSs to be sold to the Underwriters, (ii) the sale of such ADSs by the Selling Shareholder to the Underwriters in the manner contemplated herein or (iii) the resale and delivery of such ADSs (evidenced by ADRs) by the Underwriters to the initial purchasers thereof as contemplated by the Prospectus.
(g) The information pertaining to the Selling Shareholder under the caption "Principal and Selling Shareholders" in the Prospectus is complete and accurate in all material respects.
Appears in 1 contract
Representations, Warranties and Agreements of the Selling Shareholder. The Selling Shareholder represents, warrants and agrees that:
(a) Neither the Selling Shareholder nor any person acting on behalf of the Selling Shareholder (other than, if applicable, the Company and the Underwriters) has used or referred made any offer relating to any the Shares which would constitute a “free writing prospectus” (as defined in Rule 405405 under the Securities Act), relating to the Shares;.
(b) The Selling Shareholder hashas in the case of Shares that are not Future Shares, and immediately prior to the any Delivery Date on which the Selling Shareholder is selling the Shares hereunder, the Selling Shareholder will have, good and valid title to, or a valid to the Shares to be sold by the Selling Shareholder hereunder on such Delivery Date and any “security entitlement” within the meaning of Sections 8-102 and Section 8-501 of the New York Uniform Commercial Code (the “UCC”) in respect of, the Shares to be sold by the Selling Shareholder hereunder on the Delivery Datethereof, free and clear of all liens, encumbrances, equities equities, community property rights, restrictions on transfer or claims. “Future Shares” shall be those Shares to be sold by the Selling Shareholder following the exercise of options to purchase such Shares from the Company immediately prior to the applicable Delivery Date.
(c) The obligations of the Selling Shareholder hereunder shall not be terminated by any act of the Selling Shareholder, by operation of law or the occurrence of any other event, except as otherwise provided hereunder.
(d) Upon payment for the Shares to be sold by the Selling Shareholder, delivery of such Shares, as directed by the UnderwriterUnderwriters, to Cede & Co. (“Cede”) or such other nominee as may be designated by The Depository Trust Company (“DTC”), registration of such Shares in the name of Cede or such other nominee and the crediting of such Shares on the books of DTC to the securities account accounts of the Underwriter (assuming that neither DTC nor the Underwriter has notice of any adverse claim (within the meaning of Sections 8-102 and 8-105 of the UCC) to such Shares), Underwriters (i) the Underwriter DTC will acquire good and valid title to such Shares free and clear of all liens, encumbrances, equities, community property rights, restrictions on transfer or claims, (ii) DTC shall be a “protected purchaser” of such Shares within the meaning of Section 8-303 of the UCC, and (iiiii) under Section 8-501 of the UCC, the Underwriter Underwriters will acquire a valid security entitlement in respect of such Shares free of any “Shares, and (iv) an action based on an adverse claim,” within claim to such securities entitlement, whether framed in conversion, replevin, constructive trust, equitable lien or other theory may not be asserted against the meaning of Section 8-102 of the UCCUnderwriters with respect to such security entitlement. For purposes of this representation, the Selling Shareholder may assume that when such payment, delivery and crediting occur, (Ax) such Shares will have been registered in the name of Cede or another nominee designated by DTC, in each case on the Company’s share registry in accordance with its certificate of incorporation, bylaws and applicable law, (By) DTC will be registered as a “clearing corporation” within the meaning of Section 8-102 of the UCC UCC, and (Cz) appropriate entries to the Underwriter’s account accounts of the Underwriters on the records of DTC will have been made pursuant to the UCC.
(de) [Reserved]
(f) The Selling Shareholder has full right, power and authority, corporate or otherwise, to enter into this Agreement.
(eg) This Agreement has been duly and validly authorized, executed and delivered by or on behalf of the Selling Shareholder.
(fh) [Reserved]
(i) The sale of the Shares to be sold by the Selling Shareholder, the execution, delivery and performance of this Agreement by the Selling Shareholder and the consummation by the Selling Shareholder of the transactions contemplated hereby do not and will not (i) conflict with or result in a breach or violation of any of the terms or provisions of, or constitute a default under, any indenture, mortgage, deed of trust, loan agreement, license license, lease or other agreement or instrument to which the Selling Shareholder is a party or by which the Selling Shareholder is bound or to which any of the property or assets of the Selling Shareholder is subject, or (ii) result in any violation of the provisions of the charter or by-laws (or similar organizational documents) of the Selling Shareholder or (iii) result in any violation of any statute or any judgment, order, decree, rule or regulation of any court or governmental agency or body having jurisdiction over the Selling Shareholder or the property or assets of the Selling Shareholder.
(gj) No consent, approval, authorization or order of, or filing or registration with, any court or governmental agency or body having jurisdiction over the Selling Shareholder or the property or assets of the Selling Shareholder is required for the sale of the Shares by the Selling Shareholder, the execution, delivery and performance of this Agreement by the Selling Shareholder and the consummation by the Selling Shareholder of the transactions contemplated hereby, except for (i) the registration of the Shares under the Securities Act and such consents, approvals, authorizations, orders, filings, registrations or qualifications as may be required under the Exchange Act and applicable state or foreign securities laws in connection with the purchase and sale of the Shares by the UnderwriterUnderwriters (including but not limited to, the approval by and rules of the FINRA and the rules of the NASDAQ Stock Market LLC) and (ii) such consents, approvals, authorizations and orders that have been already obtained.
(hk) Neither To the Selling Shareholder nor any of its officers or directors has ever served as an officer or director of, or otherwise held any position with, the Company or any of its subsidiaries. The Selling Shareholder (i) has never exercised control over the Company or any of its subsidiaries, (ii) has never sought to influence the Company by virtue knowledge of the Selling Shareholder’s ownership , the Registration Statement did not, as of Common Stock the Effective Date, contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading; provided that the representations and warranties set forth in this subsection (iiik) does apply only to statements or omissions made in reliance upon and in conformity with information relating to the Selling Shareholder furnished in writing by or on behalf of the Selling Shareholder expressly for use in the Prospectus, it being understood that the only such information furnished by the Selling Shareholder consists of the statements contained with respect to the Selling Shareholder under the caption “Selling shareholder”.
(l) To the knowledge of the Selling Shareholder, the Prospectus will not, as of its date or as of the applicable Delivery Date, contain an untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not havemisleading; provided that the representations and warranties set forth in this subsection (l) apply only to statements or omissions made in reliance upon and in conformity with information relating to the Selling Shareholder furnished in writing by or on behalf of the Selling Shareholder expressly for use in the Prospectus, it being understood that the only such information furnished by the Selling Shareholder consists of the statements contained with respect to the Selling Shareholder under the caption “Selling shareholder”.
(m) To the knowledge of the Selling Shareholder, the Pricing Disclosure Package did not, as of the Applicable Time, contain an untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading; provided that the representations and does warranties set forth in this subsection (m) apply only to statements or omissions made in reliance upon and in conformity with information relating to the Selling Shareholder furnished in writing by or on behalf of the Selling Shareholder expressly for use in the Pricing Disclosure Package, it being understood that the only such information furnished by the Selling Shareholder consists of the statements contained with respect to the Selling Shareholder under the caption “Selling shareholder”.
(n) To the knowledge of the Selling Shareholder, the Pricing Disclosure Package, when taken together with each Issuer Free Writing Prospectus listed in Schedule V hereto, did not, as of the Applicable Time, contain an untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not have access tomisleading; provided that the representations and warranties set forth in this subsection (n) apply only to statements or omissions made in reliance upon and in conformity with information relating to the Selling Shareholder furnished in writing by or on behalf of the Selling Shareholder expressly for use in the Pricing Disclosure Package (or any Issuer Free Writing Package), it being understood that the only such information furnished by the Selling Shareholder consists of the statements contained with respect to the Selling Shareholder under the caption “Selling shareholder”.
(o) The Selling Shareholder is not prompted to sell Shares by any material non-public information regarding the current or prospective condition (financial or otherwise), operations, results of operations, properties or business of concerning the Company that is not set forth in the Registration Statement, the Pricing Disclosure Package or any of its subsidiariesthe Prospectus.
(ip) Assuming that the Underwriters are not otherwise subject to taxation in the State of Israel, other than any withholding taxes which may be necessary pursuant to Israeli law on account of gains of the Selling Shareholder arising under clauses (1) and (2) below, no stamp or other issuance of transfer taxes or duties and no capital gains, income or other taxes are payable by or on behalf of the Underwriters, or otherwise imposed on any payments made to the Underwriters, to the State of Israel or to any political subdivision or taxing authority thereof in connection with (1) the execution, delivery or performance of this Agreement by the Selling Shareholder, or (2) the sale or delivery of the Shares to be sold by the Selling Shareholder to or for the respective accounts of the Underwriters as disclosed in the Registration Statement, the Pricing Disclosure Package and the Prospectus, and pursuant to the terms of this Agreement.
(q) The Selling Shareholder has not taken and will not taketaken, directly or indirectly, any action that is designed to or that has constituted or that could reasonably be expected to cause or result in the stabilization or manipulation of the price of any security of the Company to facilitate in connection with the sale or resale offering of the Shares.
(j) The . In addition, the Selling Shareholder is has not directly engaged in any form of solicitation, advertising or indirectly any other action constituting an affiliate offer to the public under the Israeli Securities Law in connection with the transactions contemplated hereby which would require the publication of or associated with any member a prospectus in the State of Israel under the laws of the National Association State of Securities Dealers, Inc., except that a director of the Selling Shareholder, Fxxxxxxxx X. Xxxxxxxxxx, is an advisory director of Mxxxxx SxxxxxxIsrael. Any certificate signed by any officer of the Selling Shareholder and delivered to the Underwriter Underwriters or counsel for the Underwriter Underwriters in connection with the offering of the Shares shall be deemed a representation and warranty by the Selling Shareholder, as to matters covered thereby, to the each Underwriter.
Appears in 1 contract
Representations, Warranties and Agreements of the Selling Shareholder. The Selling Shareholder represents, warrants and agrees that:
(a) Neither the Selling Shareholder nor any person acting on behalf of the Selling Shareholder (other than, if applicable, the Company and the Underwriters) has used or referred to any “free writing prospectus” (as defined in Rule 405), relating to the Shares;
(b) The Selling Shareholder has, and immediately prior to the Delivery Date on which the Selling Shareholder is selling the Shares (as defined in Section 5 hereof) the Selling Shareholder will have, have good and valid title to, or a valid “security entitlement” within to the meaning shares of Sections 8-102 and 8-501 of the New York Uniform Commercial Code (the “UCC”) in respect of, the Shares Stock to be sold by the Selling Shareholder hereunder on the Delivery Datesuch date, free and clear of all liens, encumbrances, equities or claims; and upon delivery of such shares and payment therefor pursuant hereto, good and valid title to such shares, free and clear of all liens, encumbrances, equities or claims, will pass to the several Underwriters.
(cb) Upon payment The Selling Shareholder has placed in custody under a custody agreement (the "Custody Agreement") with ______________ , as custodian (the "Custodian"), for delivery under this Agreement, certificates in negotiable form (with signature guaranteed by a commercial bank or trust company having an office or correspondent in the Shares United States or a member firm of the New York or American Stock Exchanges) representing the shares of Stock to be sold by the Selling Shareholder, delivery of such Shares, as directed by the Underwriter, to Cede & Co. (“Cede”) or such other nominee as may be designated by The Depository Trust Company (“DTC”), registration of such Shares in the name of Cede or such other nominee and the crediting of such Shares on the books of DTC to the securities account of the Underwriter (assuming that neither DTC nor the Underwriter has notice of any adverse claim (within the meaning of Sections 8-102 and 8-105 of the UCC) to such Shares), (i) the Underwriter shall be a “protected purchaser” of such Shares within the meaning of Section 8-303 of the UCC, and (ii) under Section 8-501 of the UCC, the Underwriter will acquire a valid security entitlement in respect of such Shares free of any “adverse claim,” within the meaning of Section 8-102 of the UCC. For purposes of this representation, the Selling Shareholder may assume that when such payment, delivery and crediting occur, (A) such Shares will have been registered in the name of Cede or another nominee designated by DTC, in each case on the Company’s share registry in accordance with its certificate of incorporation, bylaws and applicable law, (B) DTC will be registered as a “clearing corporation” within the meaning of Section 8-102 of the UCC and (C) appropriate entries to the Underwriter’s account on the records of DTC will have been made pursuant to the UCChereunder.
(dc) The Selling Shareholder has full right, power and authority, corporate or otherwise, authority to enter into this Agreement and the Custody Agreement.
(e) This Agreement has been duly and validly authorized, executed and delivered by or on behalf of ; the Selling Shareholder.
(f) The execution, delivery and performance of this Agreement and the Custody Agreement by the Selling Shareholder and the consummation by the Selling Shareholder of the transactions contemplated hereby do not and thereby will not (i) conflict with or result in a material breach or violation of any of the terms or provisions of, or constitute a default under, any material indenture, mortgage, deed of trust, loan agreement, license agreement or other agreement or instrument to which the Selling Shareholder is a party or by which the Selling Shareholder is bound or to which any of the property or assets of the Selling Shareholder is subject, (ii) nor will such actions result in any violation of the provisions of the charter or by-laws (or similar organizational documents) of the Selling Shareholder or (iii) result in any violation of any statute or any order, rule or regulation of any court or governmental agency or body having jurisdiction over the Selling Shareholder or the property or assets of the Selling Shareholder.
(g) No consent, approval, authorization or order of, or filing or registration with, any court or governmental agency or body having jurisdiction over the Selling Shareholder or the property or assets of the Selling Shareholder is required for the execution, delivery and performance of this Agreement by the Selling Shareholder and the consummation by the Selling Shareholder of the transactions contemplated hereby; and, except for the registration of the Shares Stock under the Securities Act and such consents, approvals, authorizations, registrations or qualifications as may be required under the Exchange Act and applicable state securities laws in connection with the purchase and sale distribution of the Shares Stock by the UnderwriterUnderwriters, and NASD approval of the terms of the underwriting, no consent, approval, authorization or order of, or filing or registration with, any such court or governmental agency or body is required for the execution, delivery and performance of this Agreement or the Custody Agreement by the Selling Shareholder and the consummation by the Selling Shareholder of the transactions contemplated hereby and thereby.
(hd) Neither the All information furnished by or on behalf of such Selling Shareholder nor in writing expressly for use in the Registration Statement and Prospectus is, and on the Delivery Date will be, true, correct, and complete in any of its officers or directors has ever served as an officer or director of, or otherwise held any position with, the Company or any of its subsidiaries. The Selling Shareholder (i) has never exercised control over the Company or any of its subsidiaries, (ii) has never sought to influence the Company by virtue of the Selling Shareholder’s ownership of Common Stock and (iii) does not havematerial respects, and does not, and on the Delivery Date will not have access to, contain any untrue statement of a material non-public fact or omit to state any material fact necessary to make such information regarding the current or prospective condition (financial or otherwise), operations, results of operations, properties or business of the Company or any of its subsidiariesnot misleading.
(ie) The Selling Shareholder has not taken and will not take, directly or indirectly, any action that which is designed to or that which has constituted or that could which might reasonably be expected to cause or result in the stabilization or manipulation of the price of any security of the Company to facilitate the sale or resale of the Shares.
(j) The Selling Shareholder is not directly or indirectly an affiliate of or associated with any member shares of the National Association of Securities Dealers, Inc., except that a director of the Selling Shareholder, Fxxxxxxxx X. Xxxxxxxxxx, is an advisory director of Mxxxxx Sxxxxxx. Any certificate signed by any officer of the Selling Shareholder and delivered to the Underwriter or counsel for the Underwriter in connection with the offering of the Shares shall be deemed a representation and warranty by the Selling Shareholder, as to matters covered thereby, to the UnderwriterStock.
Appears in 1 contract
Samples: Underwriting Agreement (Altera Corp)
Representations, Warranties and Agreements of the Selling Shareholder. The Selling Shareholder representsrepresents and warrants to, warrants and agrees thatwith, the Underwriters as follows:
(a) Neither On the Effective Date, and at all times subsequent thereto up to and on each Option Closing Date (i) all information with respect to Selling Shareholder nor any person acting contained in the Registration Statement does not and will not contain an untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein not misleading, and (ii) all information with respect to Selling Shareholder contained in the Prospectus, as amended or supplemented, does 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, however, that the representations and warranties contained in this subsection 4A (a) only apply to statements or omissions made in reliance upon and in conformity with information furnished to the Company or the Underwriters, by or on behalf of Selling Shareholder, specifically for inclusion in Registration Statement or the Selling Shareholder (other than, if applicable, the Company and the Underwriters) has used or referred to any “free writing prospectus” (as defined in Rule 405), relating to the Shares;Prospectus.
(b) The Selling Shareholder hashas duly authorized, executed and delivered on ___________, 1998 the Irrevocable Power of Attorney and Custody Agreement (the "Custody Agreement") with the Company, as custodian (the "Custodian"), and immediately prior Ruskin, Moscou, Xxxxx & Faltischek, as attorneys-in-fact (the "Attorneys-in-Fact"), and, such Custody Agreement constitutes the valid, legal and binding agreement of Selling Shareholder, enforceable in accordance with its terms; Selling Shareholder has pursuant to the Delivery Date Custody Agreement, duly authorized each and all of the Attorneys-in-Fact to execute and deliver this Agreement on which behalf of Selling Shareholder, and otherwise to act, and to execute documents and instruments, on behalf of Selling Shareholder in connection with the transactions contemplated by this Agreement, and the Attorneys-in-Fact and the Custodian are each duly authorized by Selling Shareholder under the Custody Agreement to deliver the Selling Shareholder is selling the Shares the Selling Shareholder will have, good and valid title to, or a valid “security entitlement” within the meaning of Sections 8-102 and 8-501 of the New York Uniform Commercial Code (the “UCC”) in respect of, the Shares to be sold by the Selling Shareholder hereunder on the Delivery Date, free and clear of all liens, encumbrances, equities or claims.
(c) Upon payment for the Shares to be sold by the Selling Shareholder, delivery of such Shares, as directed by the Underwriter, to Cede & Co. (“Cede”) or such other nominee as may be designated by The Depository Trust Company (“DTC”), registration of such Shares in the name of Cede or such other nominee and the crediting of such Shares on the books of DTC pursuant to the securities account Agreement, and to accept payment therefor. When executed and delivered by one or more of the Underwriter (assuming that neither DTC nor the Underwriter has notice Attorneys-in-Fact on behalf of any adverse claim (within the meaning of Sections 8-102 and 8-105 of the UCC) to such Shares), (i) the Underwriter shall be a “protected purchaser” of such Shares within the meaning of Section 8-303 of the UCC, and (ii) under Section 8-501 of the UCC, the Underwriter will acquire a valid security entitlement in respect of such Shares free of any “adverse claim,” within the meaning of Section 8-102 of the UCC. For purposes of this representation, the Selling Shareholder may assume that when such payment, delivery in accordance with the Custody Agreement and crediting occur, (A) such Shares this Agreement will have been registered in the name of Cede or another nominee designated by DTC, in each case on the Company’s share registry in accordance with its certificate of incorporation, bylaws and applicable law, (B) DTC will be registered as a “clearing corporation” within the meaning of Section 8-102 of the UCC and (C) appropriate entries to the Underwriter’s account on the records of DTC will have been made pursuant to the UCC.
(d) The Selling Shareholder has full right, power and authority, corporate or otherwise, to enter into this Agreement.
(e) This Agreement has been duly and validly authorized, executed and delivered by or on behalf of the Selling Shareholder.
(f) The execution, delivery and performance of this Agreement by the Selling Shareholder and the consummation by the Selling Shareholder of the transactions contemplated hereby do not and will not (i) conflict with or result in a breach or violation of any of the terms or provisions of, or constitute a default under, any indenture, mortgage, deed of trust, loan agreement, license or other agreement or instrument to which the Selling Shareholder is a party or by which the Selling Shareholder is bound or to which any of the property or assets of the Selling Shareholder is subject, (ii) result in any violation of the provisions of the charter or by-laws (or similar organizational documents) of the Selling Shareholder or (iii) result in any violation of any statute or any order, rule or regulation of any court or governmental agency or body having jurisdiction over the Selling Shareholder or the property or assets of the Selling Shareholder.
(gc) No consent, approval, authorization or order ofof any court, or filing or registration withgovernment, any court or governmental agency or body having jurisdiction over or financial institution, domestic or foreign (other than under the Selling Shareholder Securities Act and state securities or the property or assets of the Selling Shareholder blue sky laws), is required for the execution, delivery and performance of this Agreement by the Selling Shareholder and the consummation by the Selling Shareholder of the transactions contemplated herebyin this Agreement or the Custody Agreement, except including, without limitation, the sale of the Shares to the Underwriters, as contemplated herein or therein (other than those that have been obtained and are in full force and effect).
(d) The execution and delivery of this Agreement and the Custody Agreement, and the consummation of the transactions contemplated herein and therein, including, without limitation, the sale of the Selling Shareholder Shares by the Underwriters, as contemplated herein or therein, will not (i) result in a breach by Selling Shareholder of, or constitute a default by Selling Shareholder under, any agreement or instrument or any decree, judgment or order to which Selling Shareholder is a party or by which Selling Shareholder is bound or the properties of Selling Shareholder are subject or (ii) violate any provision of the certificate of organization, operating agreement, or comparable governing documents of Selling Shareholder or any law, rule or regulation, domestic or foreign, applicable to Selling Shareholder or to which its properties are subject.
(e) Selling Shareholder has, and will on each Option Closing Date have, good and marketable title to the Selling Shareholder Shares to be sold by Selling Shareholder pursuant to this Agreement, free and clear of any pledge, lien, security interest, charge, claim, equity or encumbrance of any kind, or restriction on voting or other rights as a shareholder of any nature, other than pursuant to this Agreement and the Custody Agreement; Selling Shareholder has full right, power and authority to sell, transfer and deliver the Selling Shareholder Shares, pursuant to this Agreement; upon delivery of such Selling Shareholder Shares and payment of the purchase price therefor as contemplated in this Agreement each Underwriter will receive good and marketable title to the Selling Shareholder Shares purchased by it from Selling Shareholder, free and clear of any pledge, lien, security interest, charge, claim, equity or encumbrance of any kind or of any restriction on transfer or voting or other rights as a shareholder of any nature.
(f) Certificates for the registration Shares to be sold by Selling Shareholder pursuant to this Agreement in suitable form for transfer by delivery or accompanied by duly executed instruments of transfer or assignment, executed in blank, have been placed in custody with the Custodian pursuant to the Custody Agreement for purpose of effecting delivery, in accordance with the Custody Agreement and this Agreement.
(g) Selling Shareholder hereby agrees that for the period of specified below from the Effective Date (the "Lock-Up-Period"), Selling Shareholder will not, without prior written consent of the Representative directly or indirectly, offer, sell or grant any option to purchase, transfer or otherwise dispose of or contract to dispose of (or announce any offer, sale, grant of any option to purchase, or other disposition of), for value or otherwise, any shares of Common Stock, options or warrants to purchase Common Stock, or any securities convertible into or exchangeable for Common Stock, owned directly by such person or with respect to which such person has the power of disposition, other than the sale of the Shares under this Agreement. As to 25% of such Securities, the Securities Act Lock-Up Period shall be 12 months with respect to an additional 25% of such securities, the Lock-Up Period should be 18 months and with respect to 50% of such consents, approvals, authorizations, registrations or qualifications as may securities this Lock-Up Period should be required under the Exchange Act and applicable state securities laws in connection with the purchase and sale of the Shares by the Underwriter24 months.
(h) Neither the Selling Shareholder nor any of its officers or directors has ever served as an officer or director of, or otherwise held any position with, the Company or any of its subsidiaries. The Selling Shareholder (i) has never exercised control over the Company or any of its subsidiaries, (ii) has never sought to influence the Company by virtue of the Selling Shareholder’s ownership of Common Stock and (iii) does not have, and does not have access to, material non-public information regarding the current or prospective condition (financial or otherwise), operations, results of operations, properties or business of the Company or any of its subsidiaries.
(i) The Selling Shareholder has not taken and will not take, directly or indirectly, any action that is designed to to, or that has constituted might be reasonably expected to, violate Regulation M under the 1934 Act, or that could reasonably be expected to cause or result in the stabilization or manipulation of the price of the Common Stock; and Selling Shareholder has not distributed and will not distribute any security of prospectus or other offering material in connection with the Company to facilitate the offering and sale or resale of the Shares.
(ji) The Selling Shareholder is not directly or indirectly an affiliate duly organized, validly existing and in good standing under the laws of or associated its jurisdiction of organization, with any member all necessary power and authority to execute, deliver and perform the Custody Agreement and this Agreement, each of which have been duly and validly authorized by all action required to be taken by the National Association members and/or managers of Securities Dealers, Inc., except that a director of the Selling Shareholder, Fxxxxxxxx X. Xxxxxxxxxx, is an advisory director of Mxxxxx Sxxxxxx. Any certificate signed by any officer of and to sell and deliver the Selling Shareholder Shares to the Underwriters in accordance with this Agreement, and upon execution and delivery thereof by one or more of the Attorneys-in-Fact, such agreements will be duly executed and delivered to the Underwriter or counsel for the Underwriter and enforceable against Selling Shareholder in connection accordance with the offering of the Shares shall be deemed a representation and warranty by the Selling Shareholder, as to matters covered thereby, to the Underwritertheir respective terms.
Appears in 1 contract
Representations, Warranties and Agreements of the Selling Shareholder. The Selling Shareholder represents, warrants and agrees that:
(a) Neither the Selling Shareholder nor any person acting on behalf of the Selling Shareholder (other than, if applicable, the Company and the UnderwritersUnderwriter) has used or referred to any “free writing prospectus” (as defined in Rule 405), 405 under the Securities Act) relating to the Shares;.
(b) The Selling Shareholder has, and immediately prior to the Delivery Date on which the Selling Shareholder is selling the Shares Shares, the Selling Shareholder will have, good and valid marketable title to, or a valid “security entitlement” within the meaning of Sections 8-102 and 8-501 of the New York Uniform Commercial Code (the “UCC”) in respect of, to the Shares to be sold by the Selling Shareholder hereunder on the Delivery DateDate and any “security entitlement” within the meaning of Section 8-501 of the Uniform Commercial Code as in effect on the date hereof in the State of New York (the “UCC”) in respect thereof, free and clear of all liens, encumbrances, equities equities, community property rights, restrictions on transfer or claims.
(c) Upon payment for the Shares to be sold by the Selling Shareholder, delivery of such Shares, as directed by the Underwriter, to Cede & Co. (“Cede”) or such other nominee as may be designated by The Depository Trust Company (“DTC”), registration of such Shares in the name of Cede or such other nominee and the crediting of such Shares on the books of DTC to the securities account of the Underwriter (assuming that neither DTC nor the Underwriter has notice of any adverse claim (within the meaning of Sections 8-102 and Section 8-105 of the UCC) to such Shares), ): (i) the Underwriter shall be a “protected purchaser” of such Shares within the meaning of Section 8-303 of the UCC, and (ii) under Section 8-501 of the UCC, the Underwriter will acquire a valid security entitlement in respect of such Shares free of any “Shares, and (ii) an action based on an adverse claim,” claim (within the meaning of Section 8-102 of the UCC) to the financial assets consisting of such Shares, whether framed in conversion, replevin, constructive trust, equitable lien or other theory may not be asserted against the Underwriter. For purposes of this representation, the such Selling Shareholder may assume that when such payment, delivery and crediting occur, (Ax) such Shares will have been registered in the name of Cede or another nominee designated by DTC, in each case on the Company’s share registry in accordance with its certificate of incorporation, bylaws incorporation and applicable law, (By) DTC will be registered as a “clearing corporation” within the meaning of Section 8-102 of the UCC UCC, and (Cz) appropriate entries to the Underwriter’s account accounts of the Underwriter on the records of DTC will have been made pursuant to the UCC.
(d) The Selling Shareholder has full right, power and authority, corporate or otherwise, to enter into this Agreement.
(e) This Agreement has been duly and validly authorized, executed and delivered by or on behalf of the Selling Shareholder.
(f) The sale of the Shares by the Selling Shareholder and the execution, delivery and performance of this Agreement by the Selling Shareholder and the consummation by the Selling Shareholder of the transactions contemplated hereby do not and will not (i) conflict with or result in a breach or violation of any of the terms or provisions of, or constitute a default under, any indenture, mortgage, deed of trust, loan agreement, license license, lease or other agreement or instrument to which the Selling Shareholder is a party or by which the Selling Shareholder is bound or to which any of the property or assets of the Selling Shareholder is subject, (ii) result in any violation of the provisions of the charter or by-laws (or similar organizational documents) of the Selling Shareholder or (iii) result in any violation of any statute or any judgment, order, decree, rule or regulation of any court or governmental agency or body having jurisdiction over the Selling Shareholder or the property or assets of the Selling Shareholder, except in the case of clauses (i) and (iii) above, for such conflicts, breaches, violations or defaults as would not, in the aggregate, reasonably be expected to materially and adversely affect the sale of the Shares by the Selling Shareholder hereunder.
(g) No consent, approval, authorization or order of, or filing or registration with, any court or governmental agency or body having jurisdiction over the Selling Shareholder or the property or assets of the Selling Shareholder is required for the sale of the Shares by the Selling Shareholder, the execution, delivery and performance of this Agreement by the Selling Shareholder and the consummation by the Selling Shareholder of the transactions contemplated hereby, except (i) for the registration of the Shares under the Securities Act and Act, (ii) such consents, approvals, authorizations, registrations or qualifications as may be required under the Exchange Act and applicable state or foreign securities laws in connection with laws, (iii) such as have been or will be obtained, made or waived or on prior to the purchase and sale of the Shares Delivery Date or (iv) those required by the UnderwriterFINRA.
(h) Neither The information contained or incorporated by reference in (i) the Registration Statement and any amendment thereto, as of the Effective Date, 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 not misleading and (ii) (x) the Prospectus, as of its date and on the applicable Delivery Date, and (y) the Pricing Disclosure Package, as of the Applicable 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, but in the case of both clauses (i) and (ii) hereof, only to the extent that the untrue statement or alleged untrue statement or omission or alleged omission was made in reliance upon and in conformity with written information concerning the Selling Shareholder nor any of its officers or directors has ever served as an officer or director of, or otherwise held any position with, the Company or any of its subsidiaries. The Selling Shareholder (i) has never exercised control over the Company or any of its subsidiaries, (ii) has never sought furnished to influence the Company by virtue of the Selling Shareholder’s ownership of Common Stock and (iii) does not haveShareholder specifically for inclusion therein, and does not have access to, material non-public which information regarding is limited to the current or prospective condition (financial or otherwiseinformation set forth in Section 10(f), operations, results of operations, properties or business of the Company or any of its subsidiaries.
(i) The Selling Shareholder is not prompted to sell Shares by any information concerning the Company that is not set forth in the Registration Statement, the Pricing Disclosure Package and the Prospectus.
(j) The Selling Shareholder has not taken and will not take, directly or indirectly, any action that is designed to or that has constituted or that could reasonably be expected to cause or result in the stabilization or manipulation of the price of any security of the Company to facilitate the sale or resale of the Shares.
(jk) The Neither the Selling Shareholder is not directly or indirectly an affiliate of or associated with any member of Shareholder, nor, to the National Association of Securities Dealers, Inc., except that a director knowledge of the Selling Shareholder, Fxxxxxxxx X. Xxxxxxxxxxany director, officer, agent, employee or other person acting on behalf of the Selling Shareholder, has in the course of its actions for, or on behalf of, the Selling Shareholder: (i) used any corporate funds for any unlawful contribution, gift, entertainment or other unlawful expense relating to political activity; (ii) made any direct or indirect unlawful payment to any foreign or domestic government official, “foreign official” (as defined in the FCPA) or employee from corporate funds; (iii) violated or is in violation of any provision of the FCPA, U.K. Xxxxxxx Xxx 0000, as amended, or any other applicable anti-bribery statute or regulation; or (iv) made any bribe, rebate, payoff, influence payment, kickback or other unlawful payment.
(l) The operations of the Selling Shareholder are and have been conducted at all times in compliance with applicable Money Laundering Laws and no action, suit or proceeding by or before any court or governmental agency, authority or body or any arbitrator involving the Selling Shareholder with respect to the Money Laundering Laws is pending or, to the knowledge of the Selling Shareholder, threatened.
(m) Neither the Selling Shareholder, nor, to the knowledge of the Selling Shareholder, any director, officer, agent or employee of the Selling Shareholder is (i) currently subject to or the target of any Sanctions; or (ii) located, organized or resident in a country that is the subject of Sanctions (including, without limitation, Crimea, Cuba, Iran, North Korea, Sudan, and Syria); and the Selling Shareholder will not directly or indirectly use the proceeds of the offering, or lend, contribute or otherwise make available such proceeds to any subsidiary, joint venture partner or other person or entity, for the purpose of financing the activities of any person, or in any country or territory, that currently is the subject of Sanctions or in any other manner that will result in a violation by any person (including any person participating in the transaction whether as an advisory director underwriter, advisor, investor or otherwise) of Mxxxxx SxxxxxxSanctions. Any certificate signed by any officer of the Selling Shareholder and delivered to the Underwriter or counsel for the Underwriter in connection with the offering of the Shares shall be deemed a representation and warranty by the Selling Shareholder, as to matters covered thereby, to the Underwriter.
Appears in 1 contract
Samples: Underwriting Agreement (Macquarie Infrastructure Corp)
Representations, Warranties and Agreements of the Selling Shareholder. The Selling Shareholder represents, warrants and agrees that:
(a) Neither the Selling Shareholder nor any person acting on behalf of the Selling Shareholder (other than, if applicable, the Company and the Underwriters) has used or referred made any offer relating to any the Shares which would constitute a “free writing prospectus” (as defined in Rule 405405 under the Securities Act), relating to the Shares;.
(b) The Selling Shareholder has, and immediately prior to the Delivery Date on which 2,162,463 warrants held by the Selling Shareholder is selling (“Warrants”) have been exercised, resulting in 1,689,942 Shares to be issued to the Underwriters upon the settlement of this offering, subject to terms of the related Warrant exercise notice.
(c) Upon the issuance of the Shares in accordance with the terms of the Warrants, the Selling Shareholder will have, have good and valid title to, to the Shares to be sold by the Selling Shareholder hereunder on the Delivery Date or a valid “security entitlement” within the meaning of Sections 8-102 and Section 8-501 of the New York Uniform Commercial Code (the “UCC”) in respect of, the Shares to be sold by the Selling Shareholder hereunder on the Delivery Datethereof, free and clear of all liens, encumbrances, equities equities, community property rights, restrictions on transfer or claims.
(cd) The obligations of the Selling Shareholder hereunder shall not be terminated by any act of the Selling Shareholder, by operation of law or the occurrence of any other event, except as otherwise provided hereunder.
(e) Upon payment for the Shares to be sold by the Selling Shareholder, delivery of such Shares, as directed by the UnderwriterUnderwriters, to Cede & Co. (“Cede”) or such other nominee as may be designated by The Depository Trust Company (“DTC”), registration of such Shares in the name of Cede or such other nominee and the crediting of such Shares on the books of DTC to the securities account accounts of the Underwriter Underwriters (assuming that neither DTC nor the any such Underwriter has notice of any adverse claim (within the meaning of Sections 8-102 and Section 8-105 of the UCC) to such Shares), (i) the Underwriter DTC will acquire good and valid title to such Shares free and clear of all liens, encumbrances, equities, community property rights, restrictions on transfer or claims, (ii) DTC shall be a “protected purchaser” of such Shares within the meaning of Section 8-303 of the UCC, and (iiiii) under Section 8-501 of the UCC, the Underwriter Underwriters will acquire a valid security entitlement in respect of such Shares free of any Shares, and (iv) an action based on an “adverse claim,” (within the meaning of Section 8-102 of the UCC) to such securities entitlement, whether framed in conversion, replevin, constructive trust, equitable lien or other theory may not be asserted against the Underwriters with respect to such security entitlement. For purposes of this representation, the Selling Shareholder may assume that when such payment, delivery and crediting occur, (Ax) such Shares will have been registered in the name of Cede or another nominee designated by DTC, in each case on the Company’s share registry in accordance with its certificate of incorporation, bylaws articles of association and applicable law, (By) DTC will be registered as a “clearing corporation” within the meaning of Section 8-102 of the UCC UCC, and (Cz) appropriate entries to the Underwriter’s account accounts of the Underwriters on the records of DTC will have been made pursuant to the UCC.
(df) The Selling Shareholder has been duly organized and is validly existing as a limited liability company in good standing under the laws of the State of Nevada, with the limited liability company power and authority to own its properties and conduct its business in all material respects as currently conducted.
(g) The Selling Shareholder has full right, power and authority, corporate or otherwise, to enter into this Agreement.
(eh) This Agreement has been duly and validly authorized, executed and delivered by or on behalf of the Selling Shareholder.
(fi) [Reserved]
(j) The sale of the Shares to be sold by the Selling Shareholder, the execution, delivery and performance of this Agreement by the Selling Shareholder and the consummation by the Selling Shareholder of the transactions contemplated hereby do not and will not (i) conflict with or result in a breach or violation of any of the terms or provisions of, or constitute a default under, any indenture, mortgage, deed of trust, loan agreement, license license, lease or other agreement or instrument to which the Selling Shareholder is a party or by which the Selling Shareholder is bound or to which any of the property or assets of the Selling Shareholder is subject, or (ii) result in any violation of the provisions of the charter or by-laws (or similar organizational documents) of the Selling Shareholder or (iii) result in any violation of any statute or any judgment, order, decree, rule or regulation of any court or governmental agency or body having jurisdiction over the Selling Shareholder or the property or assets of the Selling Shareholder, except in each case, any non-material breaches, conflicts or violations that would not materially impact the ability of the Underwriters to consummate the transactions contemplated by this Agreement.
(gk) No consent, approval, authorization or order of, or filing or registration with, any court or governmental agency or body having jurisdiction over the Selling Shareholder or the property or assets of the Selling Shareholder is required for the sale of the Shares by the Selling Shareholder, the execution, delivery and performance of this Agreement by the Selling Shareholder and the consummation by the Selling Shareholder of the transactions contemplated hereby, except for (i) the registration of the Shares under the Securities Act and such consents, approvals, authorizations, orders, filings, registrations or qualifications as may be required under the Exchange Act and applicable state securities laws in connection with the purchase and sale rules of the Shares by the UnderwriterNasdaq Stock Market LLC) and (ii) such consents, approvals, authorizations and orders that have been already obtained.
(hl) Neither To the Selling Shareholder nor any of its officers or directors has ever served as an officer or director of, or otherwise held any position with, the Company or any of its subsidiaries. The Selling Shareholder (i) has never exercised control over the Company or any of its subsidiaries, (ii) has never sought to influence the Company by virtue knowledge of the Selling Shareholder’s ownership of Common Stock and (iii) does not have, and does not have access tothe Registration Statement did not, material non-public information regarding the current or prospective condition (financial or otherwise), operations, results of operations, properties or business as of the Company Effective Date, contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading; provided that the representations and warranties set forth in this subsection (l) apply only to statements or omissions made in reliance upon and in conformity with information relating to the Selling Shareholder furnished in writing by or on behalf of the Selling Shareholder expressly for use in the Prospectus, it being understood that the only such information furnished by the Selling Shareholder consists of the statements contained with respect to the Selling Shareholder under the caption “Selling shareholder” (without regard to any of its subsidiariesinformation incorporated by reference in the Registration Statement).
(im) To the knowledge of the Selling Shareholder, the Prospectus will not, as of its date or as of the Delivery Date, contain an untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading; provided that the representations and warranties set forth in this subsection (m) apply only to statements or omissions made in reliance upon and in conformity with information relating to the Selling Shareholder furnished in writing by or on behalf of the Selling Shareholder expressly for use in the Prospectus, it being understood that the only such information furnished by the Selling Shareholder consists of the statements contained with respect to the Selling Shareholder under the caption “Selling shareholder” (without regard to any information incorporated by reference in the Prospectus).
(n) To the knowledge of the Selling Shareholder, the Pricing Disclosure Package did not, as of the Applicable Time, contain an untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading; provided that the representations and warranties set forth in this subsection (n) apply only to statements or omissions made in reliance upon and in conformity with information relating to the Selling Shareholder furnished in writing by or on behalf of the Selling Shareholder expressly for use in the Pricing Disclosure Package, it being understood that the only such information furnished by the Selling Shareholder consists of the statements contained with respect to the Selling Shareholder under the caption “Selling shareholder” (without regard to any information incorporated by reference in the Pricing Disclosure Package).
(o) To the knowledge of the Selling Shareholder, the Pricing Disclosure Package, when taken together with each Issuer Free Writing Prospectus listed in Schedule V hereto, did not, as of the Applicable Time, contain an untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading; provided that the representations and warranties set forth in this subsection (o) apply only to statements or omissions made in reliance upon and in conformity with information relating to the Selling Shareholder furnished in writing by or on behalf of the Selling Shareholder expressly for use in the Pricing Disclosure Package (or any Issuer Free Writing Package), it being understood that the only such information furnished by the Selling Shareholder consists of the statements contained with respect to the Selling Shareholder under the caption “Selling shareholder” (without regard to any information incorporated by reference in the Pricing Disclosure Package).
(p) [Reserved]
(q) Assuming that the Underwriters are not otherwise subject to taxation in the State of Israel, other than any withholding taxes which may be required pursuant to Israeli law arising under clauses (1) and (2) below, no stamp or other issuance of transfer taxes or duties and no capital gains, income or other taxes are payable by or on behalf of the Underwriters, or otherwise imposed on any payments made to the Underwriters, to the State of Israel or to any political subdivision or taxing authority thereof in connection with (1) the execution, delivery or performance of this Agreement by the Selling Shareholder, or (2) the sale or delivery of the Shares to be sold by the Selling Shareholder to or for the respective accounts of the Underwriters as disclosed in the Registration Statement, the Pricing Disclosure Package and the Prospectus, and pursuant to the terms of this Agreement.
(r) The Selling Shareholder has not taken and will not taketaken, directly or indirectly, any action that is designed to or that has constituted or that could reasonably be expected to cause or result in the stabilization or manipulation of the price of any security of the Company to facilitate in connection with the sale or resale offering of the Shares. In addition, the Selling Shareholder has not engaged in any form of solicitation, advertising or any other action constituting an offer to the public under the Israeli Securities Law in connection with the transactions contemplated hereby which would require the publication of a prospectus in the State of Israel under the laws of the State of Israel.
(js) The Selling Shareholder is not directly (1) an employee benefit plan subject to Title I of ERISA, (2) a plan or indirectly an affiliate of or associated with any member account subject to Section 4975 of the National Association Code or (3) an entity deemed to hold “plan assets” of Securities Dealersany such plan or account under Section 3(42) of ERISA, Inc.29 C.F.R. 2510.3-101, except that a director or otherwise.
(t) Neither the Selling Shareholder nor any of its subsidiaries nor, to the knowledge of the Selling Shareholder, Fxxxxxxxx X. Xxxxxxxxxxany director, is an advisory director officer, agent employee or affiliate of Mxxxxx Sxxxxxxthe Selling Shareholder or any of its subsidiaries will, directly or indirectly, use the proceeds of this offering, or lend, contribute or otherwise make available such proceeds to any subsidiary, joint venture partner or other individual or entity in any manner that would result in a violation of any Sanctions by, or could result in the imposition of Sanctions against, any individual or entity (including any individual or entity participating in the offering, whether as underwriter, advisor, investor or otherwise). Any certificate signed by any officer of the Selling Shareholder and delivered to the Underwriter Underwriters or counsel for the Underwriter Underwriters in connection with the offering of the Shares shall be deemed a representation and warranty by the Selling Shareholder, as to matters covered thereby, to the each Underwriter.
Appears in 1 contract
Representations, Warranties and Agreements of the Selling Shareholder. The Selling Shareholder represents, warrants and agrees that:
(a) Neither the Selling Shareholder nor any person acting on behalf of the Selling Shareholder (other than, if applicable, the Company and the UnderwritersUnderwriters or any person acting on behalf of either of them) has used or referred to any “free writing prospectus” (as defined in Rule 405405 under the Securities Act), relating to the Shares;
(b) The Selling Shareholder has, and immediately prior to the any Delivery Date on which the Selling Shareholder is selling the Shares Shares, the Selling Shareholder will have, good and valid marketable title to, to or a valid “security entitlement” within the meaning of Sections 8-102 and Section 8-501 of the New York Uniform Commercial Code (the “UCC”) in respect of, the Shares to be sold by the Selling Shareholder hereunder on the such Delivery Date, free and clear of all liens, encumbrances, equities equities, community property rights, restrictions on transfer or claims.
(c) Upon payment for the Shares to be sold by the Selling Shareholder, delivery of such Shares, as directed by the UnderwriterUnderwriters, to Cede & Co. (“Cede”) or such other nominee as may be designated by The Depository Trust Company (“DTC”), registration of such Shares in the name of Cede or such other nominee and the crediting of such Shares on the books of DTC to the securities account accounts of the Underwriter Underwriters (assuming that neither DTC nor the any Underwriter has notice of any adverse claim (within the meaning of Sections 8-102 and Section 8-105 of the UCC) to such Shares), (i) the Underwriter shall be a “protected purchaser” of such Shares within the meaning of Section 8-303 of the UCC, and (ii) under Section 8-501 of the UCC, the Underwriter Underwriters will acquire a valid security entitlement in respect of such Shares free of and (ii) no action based on any “adverse claim,” within the meaning of Section 8-102 of the UCC, to such Shares may be asserted against the Underwriters with respect to such security entitlement. For purposes of this representation, the Selling Shareholder may assume that when such payment, delivery and crediting occur, (A) such Shares will have been registered in the name of Cede or another nominee designated by DTC, in each case on the Company’s share registry in accordance with its certificate of incorporationformation, bylaws operating agreement and applicable law, (B) DTC will be registered as a “clearing corporation” within the meaning of Section 8-102 of the UCC and (C) appropriate entries to the Underwriter’s account accounts of the several Underwriters on the records of DTC will have been made pursuant to the UCC.
(d) The Selling Shareholder has full right, power and authority, corporate or otherwise, to enter into this Agreement.
(e) This Agreement has been duly and validly authorized, executed and delivered by or on behalf of the Selling Shareholder.
(f) The execution, delivery and performance of this Agreement by the Selling Shareholder and the consummation by the Selling Shareholder of the transactions contemplated hereby do not and will not (i) conflict with or result in a breach or violation of any of the terms or provisions of, or constitute a default under, any indenture, mortgage, deed of trust, loan agreement, license or other agreement or instrument to which the Selling Shareholder is a party or by which the Selling Shareholder is bound or to which any of the property or assets of the Selling Shareholder is subject, (ii) result in any violation of the provisions of the charter or by-laws (or similar organizational documents) of the Selling Shareholder or (iii) result in any violation of any statute or any order, rule or regulation of any court or governmental agency or body having jurisdiction over the Selling Shareholder or the property or assets of the Selling Shareholder, except in the case of clauses (i) and (iii) above, for such conflicts, breaches, violations or defaults as would not, in the aggregate, reasonably be expected to materially and adversely affect the sale of the Shares by the Selling Shareholder hereunder.
(g) No consent, approval, authorization or order of, or filing or registration with, any court or governmental agency or body having jurisdiction over the Selling Shareholder or the property or assets of the Selling Shareholder is required for the execution, delivery and performance of this Agreement by the Selling Shareholder and the consummation by the Selling Shareholder of the transactions contemplated hereby, except (i) for the registration of the Shares under the Securities Act and Act, (ii) such consents, approvals, authorizations, registrations or qualifications as may be required under the Exchange Act and applicable state or foreign securities laws in connection with laws, (iii) such as have been or will be obtained, made or waived or on prior to the purchase and sale of the Shares Delivery Date or (iv) those required by the UnderwriterFINRA.
(h) Neither the Selling Shareholder nor any of its officers or directors has ever served as an officer or director of, or otherwise held any position with, the Company or any of its subsidiaries. The Selling Shareholder information contained in (i) has never exercised control over the Company or Registration Statement and any amendment thereto, as of its subsidiariesthe Effective Date, (ii) has never sought to influence the Company by virtue Prospectus, as of its date and on the Selling Shareholder’s ownership of Common Stock applicable Delivery Date, and (iii) the Pricing Disclosure Package, as of the Applicable Time, does not havecontain 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, and does not have access to, material non-public information regarding in the current or prospective condition (financial or otherwise), operations, results of operations, properties or business light of the circumstances under which they were made, not misleading, but in each case only to the extent that the untrue statement or alleged untrue statement or omission or alleged omission was made in reliance upon and in conformity with written information concerning the Selling Shareholder furnished to the Company or any of its subsidiariesby the Selling Shareholder specifically for inclusion therein, which information is limited to the information set forth in Section 10(f).
(i) The Selling Shareholder is not prompted to sell Shares by any information concerning the Company that is not set forth in the Registration Statement, the Pricing Disclosure Package and the Prospectus.
(j) The Selling Shareholder has not taken and will not take, directly or indirectly, any action that is designed to or that has constituted or that could reasonably be expected to cause or result in the stabilization or manipulation of the price of any security of the Company to facilitate the sale or resale of the Shares.
(j) The Selling Shareholder is not directly or indirectly an affiliate of or associated with any member of the National Association of Securities Dealers, Inc., except that a director of the Selling Shareholder, Fxxxxxxxx X. Xxxxxxxxxx, is an advisory director of Mxxxxx Sxxxxxx. Any certificate signed by any officer of the Selling Shareholder and delivered to the Underwriter Representatives or counsel for the Underwriter Underwriters in connection with the offering of the Shares Stock shall be deemed a representation and warranty by the Selling Shareholder, as to matters covered thereby, to the each Underwriter.
Appears in 1 contract
Samples: Underwriting Agreement (Macquarie Infrastructure CO LLC)
Representations, Warranties and Agreements of the Selling Shareholder. The Selling Shareholder represents, warrants and agrees thatas follows:
(a) Neither the Selling Shareholder nor any person acting on behalf of the Selling Shareholder (other than, if applicable, the Company and the Underwriters) has used or referred to any “free writing prospectus” (as defined in Rule 405), relating to the Shares;Stock.
(b) The Selling Shareholder has, and immediately prior to the any Delivery Date on which the Selling Shareholder is selling the Shares shares of Stock, the Selling Shareholder will have, good and valid title to, or a valid “security entitlement” within to the meaning shares of Sections 8-102 and 8-501 of the New York Uniform Commercial Code (the “UCC”) in respect of, the Shares Stock to be sold by the Selling Shareholder hereunder on the such Delivery Date, free and clear of all liens, encumbrances, equities or claimsclaims except for any liens, encumbrances, equities or claims arising under the Custody Agreement.
(c) Upon payment for the Shares The Stock to be sold by the Selling Shareholder hereunder, which is represented by the certificates held in custody for the Selling Shareholder, is subject to the interest of the Underwriters, the arrangements made by the Selling Shareholder for such custody are to that extent irrevocable, and the obligations of the Selling Shareholder hereunder shall not be terminated by any act of the Selling Shareholder, by operation of law or the occurrence of any other event.
(d) Upon delivery of such Shares, as directed the Stock to be sold by the Underwriter, to Cede & Co. (“Cede”) or such other nominee as may be designated by The Depository Trust Company (“DTC”), registration of such Shares in the name of Cede or such other nominee Selling Shareholder and the crediting of such Shares on the books of DTC to the securities account of the Underwriter payment therefor pursuant hereto (assuming that neither DTC nor the Underwriter no underwriter has notice of any “adverse claim claim” (within the meaning of Sections 8-102 and Section 8-105 of the UCC) to such Shares), Stock) (i) the Underwriter Underwriters shall be a “protected purchaserpurchasers” of such Shares Stock within the meaning of Section 8-303 of the UCC, and (ii) under Section 8-501 of the UCC, the Underwriter Underwriters will acquire a valid security entitlement in respect of such Shares free of Stock, and (iii) no action based on any “adverse claim,” within the meaning of Section 8-102 of the UCC. For purposes UCC to such Stock may be asserted against the Underwriters with respect to such security entitlement.
(e) The Selling Shareholder has placed in custody under a custody agreement (the “Custody Agreement”) with SBA Communications Corporation, as custodian (the “Custodian”), for delivery under this Agreement, certificates in negotiable form (with signature guaranteed by a participant in the Securities Transfer Agents Medallion Program, the New York Stock Exchange Medallion Signature Program or the Stock Exchange Medallion Program) representing the shares of this representation, Stock to be sold by the Selling Shareholder may assume that when such payment, delivery and crediting occur, (A) such Shares will have been registered in the name of Cede or another nominee designated by DTC, in each case on the Company’s share registry in accordance with its certificate of incorporation, bylaws and applicable law, (B) DTC will be registered as a “clearing corporation” within the meaning of Section 8-102 of the UCC and (C) appropriate entries to the Underwriter’s account on the records of DTC will have been made pursuant to the UCChereunder.
(df) The Selling Shareholder has full right, power and authority, corporate limited liability company or otherwise, to enter into this Agreement and the Custody Agreement.
(eg) This Agreement has been duly and validly authorized, executed and delivered by or on behalf of the Selling Shareholder.
(fh) The Custody Agreement has been duly and validly authorized, executed and delivered by or on behalf of the Selling Shareholder and constitutes the valid and legally binding obligation of the Selling Shareholder enforceable against the Selling Shareholder in accordance with its terms, subject to (i) the effects of bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium and other similar laws relating to or affecting creditors’ rights generally, (ii) general equitable principles (whether considered in a proceeding in equity or at law) and (iii) an implied covenant of good faith and fair dealing.
(i) The execution, delivery and performance of this Agreement and the Custody Agreement by the Selling Shareholder and the consummation by the Selling Shareholder of the transactions contemplated hereby and thereby do not and will not (i) conflict with or result in a breach or violation of any of the terms or provisions of, or constitute a default under, any indenture, mortgage, deed of trust, loan agreement, license or other agreement or instrument to which the Selling Shareholder is a party or by which the Selling Shareholder is bound or to which any of the property or assets of the Selling Shareholder is subject, (ii) result in any violation of the provisions of the charter or by-laws (or similar organizational documents) of the Selling Shareholder or (iii) result in any violation of any applicable statute or any order, rule or regulation of any court or governmental agency or body having jurisdiction over the Selling Shareholder or the property or assets of the Selling Shareholder.
(gj) No consent, approval, authorization or order of, or filing or registration with, any court or governmental agency or body having jurisdiction over the Selling Shareholder or the property or assets of the Selling Shareholder is required for the execution, delivery and performance of this Agreement or the Custody Agreement by the Selling Shareholder and the consummation by the Selling Shareholder of the transactions contemplated herebyhereby and thereby, except for the registration of the Shares Stock under the Securities Act and such consents, approvals, authorizations, registrations or qualifications as may be required under the Exchange Act and applicable state or foreign securities laws in connection with the purchase and sale of the Shares Stock by the UnderwriterUnderwriters.
(hk) Neither The Registration Statement did not, as of the Effective Date, contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading; provided that the representations or warranties set forth in this Section 2(k) are limited to statements or omissions made in reliance upon and in conformity with the Selling Shareholder nor any Information.
(l) The Prospectus will not, as of its officers date and on the applicable Delivery Date, contain an untrue statement of a material fact or directors has ever served omit to state a material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading; provided that the representations or warranties set forth in this Section 2(l) are limited to statements or omissions made in reliance upon and in conformity with the Selling Shareholder Information.
(m) The Pricing Disclosure Package did not, as of the Applicable Time, contain an officer untrue statement of a material fact or director ofomit 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, except that the price of the Stock and disclosures directly relating thereto will be included on the cover page of the Prospectus; provided that the representations or otherwise held warranties set forth in this Section 2(m) are limited to statements or omissions made in reliance upon and in conformity with the Selling Shareholder Information.
(n) Each Issuer Free Writing Prospectus (including, without limitation, any position withroad show that is a free writing prospectus under Rule 433), when considered together with the Company Pricing Disclosure Package as of the Applicable Time, did not contain an untrue statement of a material fact or any omit to state a material fact required to be stated therein or necessary to make the statements therein, in the light of its subsidiaries. the circumstances under which they were made, not misleading, provided that the representations or warranties set forth in this Section 2(n) are limited to statements or omissions made in reliance upon and in conformity with the Selling Shareholder Information.
(o) The Selling Shareholder (i) has never exercised control over the Company or any of its subsidiaries, (ii) has never sought is not prompted to influence the Company by virtue of the Selling Shareholder’s ownership sell shares of Common Stock and (iii) does not have, and does not have access to, by any material non-public information regarding the current or prospective condition (financial or otherwise), operations, results of operations, properties or business of concerning the Company or any of its subsidiariesthat is not set forth in the Registration Statement, the Pricing Disclosure Package and the Prospectus.
(ip) The Selling Shareholder has not taken and will not take, directly or indirectly, any action that is designed to or that has constituted or that could reasonably be expected to cause or result in the stabilization or manipulation of the price of any security of the Company to facilitate the sale or resale of the Shares.
(j) The Selling Shareholder is not directly or indirectly an affiliate of or associated with any member shares of the National Association of Securities Dealers, Inc., except that a director of the Selling Shareholder, Fxxxxxxxx X. Xxxxxxxxxx, is an advisory director of Mxxxxx SxxxxxxStock. Any certificate signed by any officer of the Selling Shareholder and delivered to the Underwriter or counsel for the Underwriter Underwriters in connection with the offering of the Shares Stock shall be deemed a representation and warranty by the Selling Shareholder, as to matters covered thereby, to the each Underwriter.
Appears in 1 contract
Representations, Warranties and Agreements of the Selling Shareholder. The Selling Shareholder represents, warrants and agrees that:
(a) Neither the Selling Shareholder nor any person acting on behalf of the Selling Shareholder (other than, if applicable, the Company and the Underwriters) has used or referred to any “free writing prospectus” (as defined in Rule 405), relating to the Shares;
(b) The Selling Shareholder has, and immediately prior to the First Delivery Date on which the Selling Shareholder is selling the Shares (as defined in Section 5 hereof) the Selling Shareholder will have, good and valid title to, or a valid “security entitlement” within to the meaning shares of Sections 8-102 and 8-501 of the New York Uniform Commercial Code (the “UCC”) in respect of, the Shares Stock to be sold by the Selling Shareholder hereunder on the Delivery Datesuch date, free and clear of all liens, encumbrances, equities or claims; and upon delivery of such shares and payment therefor pursuant hereto and thereto, good and valid title to such shares, free and clear of all liens, encumbrances, equities or claims, will pass to the several Underwriters.
(cb) Upon payment The Selling Shareholder has placed in custody with Danixx X. Xxxxx, xx custodian (the "Custodian"), for delivery under this Agreement, certificates in negotiable form (with signature guaranteed by a commercial bank or trust company having an office or correspondent in the Shares United States or a member firm of the New York or American Stock Exchanges) representing the shares of Stock to be sold by the Selling ShareholderShareholder hereunder.
(c) The Selling Shareholder has duly and irrevocably executed and delivered a power of attorney (the "Power of Attorney") appointing the Custodian as attorney-in-fact, delivery with full power of such Sharessubstitution, as directed by the Underwriter, and with full authority to Cede & Co. (“Cede”) or execute and deliver this Agreement and to take such other nominee action as may be designated by The Depository Trust Company (“DTC”), registration of such Shares in necessary or desirable to carry out the name of Cede or such other nominee and the crediting of such Shares provisions hereof on the books of DTC to the securities account behalf of the Underwriter (assuming that neither DTC nor the Underwriter has notice of any adverse claim (within the meaning of Sections 8-102 and 8-105 of the UCC) to such Shares), (i) the Underwriter shall be a “protected purchaser” of such Shares within the meaning of Section 8-303 of the UCC, and (ii) under Section 8-501 of the UCC, the Underwriter will acquire a valid security entitlement in respect of such Shares free of any “adverse claim,” within the meaning of Section 8-102 of the UCC. For purposes of this representation, the Selling Shareholder may assume that when such payment, delivery and crediting occur, (A) such Shares will have been registered in the name of Cede or another nominee designated by DTC, in each case on the Company’s share registry in accordance with its certificate of incorporation, bylaws and applicable law, (B) DTC will be registered as a “clearing corporation” within the meaning of Section 8-102 of the UCC and (C) appropriate entries to the Underwriter’s account on the records of DTC will have been made pursuant to the UCCShareholder.
(d) The Selling Shareholder has full right, power and authority, corporate or otherwise, authority to enter into this Agreement.Agreement and the Power of Attorney; the execution, delivery
(e) This Agreement has been duly The Registration Statement and validly authorizedthe Prospectus and any further amendments or supplements to the Registration Statement or the Prospectus will, executed when they become effective or are filed with the Commission, as the case may be, do not and delivered by or on behalf will not, as of the applicable effective date (as to the Registration Statement and any amendment thereto) and as of the applicable filing date (as to the Prospectus and any amendment or supplement thereto) contain an untrue statement of a material fact with respect to the Selling ShareholderShareholder or omit to state a material fact required to be stated therein or necessary to make the statements therein concerning the Selling Shareholder not misleading.
(f) The execution, delivery and performance of this Agreement by the Selling Shareholder has no reason to believe that the representations and warranties of the Company contained in Section 1 hereof are not materially true and correct and is not prompted to sell shares of Common Stock by any information concerning the Company which is not set forth in the Registration Statement and the consummation by the Selling Shareholder of the transactions contemplated hereby do not and will not (i) conflict with or result in a breach or violation of any of the terms or provisions of, or constitute a default under, any indenture, mortgage, deed of trust, loan agreement, license or other agreement or instrument to which the Selling Shareholder is a party or by which the Selling Shareholder is bound or to which any of the property or assets of the Selling Shareholder is subject, (ii) result in any violation of the provisions of the charter or by-laws (or similar organizational documents) of the Selling Shareholder or (iii) result in any violation of any statute or any order, rule or regulation of any court or governmental agency or body having jurisdiction over the Selling Shareholder or the property or assets of the Selling ShareholderProspectus.
(g) No consent, approval, authorization or order of, or filing or registration with, any court or governmental agency or body having jurisdiction over the Selling Shareholder or the property or assets of the Selling Shareholder is required for the execution, delivery and performance of this Agreement by the Selling Shareholder and the consummation by the Selling Shareholder of the transactions contemplated hereby, except for the registration of the Shares under the Securities Act and such consents, approvals, authorizations, registrations or qualifications as may be required under the Exchange Act and applicable state securities laws in connection with the purchase and sale of the Shares by the Underwriter.
(h) Neither the Selling Shareholder nor any of its officers or directors has ever served as an officer or director of, or otherwise held any position with, the Company or any of its subsidiaries. The Selling Shareholder (i) has never exercised control over the Company or any of its subsidiaries, (ii) has never sought to influence the Company by virtue of the Selling Shareholder’s ownership of Common Stock and (iii) does not have, and does not have access to, material non-public information regarding the current or prospective condition (financial or otherwise), operations, results of operations, properties or business of the Company or any of its subsidiaries.
(i) The Selling Shareholder has not taken and will not take, directly or indirectly, any action that which is designed to or that which has constituted or that could which might reasonably be expected to cause or result in the stabilization or manipulation of the price of any security of the Company to facilitate the sale or resale of the Shares.
(j) The Selling Shareholder is not directly or indirectly an affiliate of or associated with any member shares of the National Association of Securities Dealers, Inc., except that a director of the Selling Shareholder, Fxxxxxxxx X. Xxxxxxxxxx, is an advisory director of Mxxxxx Sxxxxxx. Any certificate signed by any officer of the Selling Shareholder and delivered to the Underwriter or counsel for the Underwriter in connection with the offering of the Shares shall be deemed a representation and warranty by the Selling Shareholder, as to matters covered thereby, to the UnderwriterStock.
Appears in 1 contract
Representations, Warranties and Agreements of the Selling Shareholder. The Selling Shareholder represents, warrants and agrees that:
(a) Neither the Selling Shareholder nor any person acting on behalf of the Selling Shareholder (other than, if applicable, the Company and the Underwriters) has used or referred made any offer relating to any the Shares which would constitute a “free writing prospectus” (as defined in Rule 405405 under the Securities Act), relating to the Shares;.
(b) The Selling Shareholder has, and immediately prior to the Delivery Date on which 769,713 warrants held by the Selling Shareholder is selling (“Warrants”) have been exercised, resulting in 705,953 Shares to be issued to the Underwriters upon the settlement of this offering, subject to terms of the related Warrant exercise notice.
(c) Upon the issuance of the Shares in accordance with the terms of the Warrants, the Selling Shareholder will have, have good and valid title to, to the Shares to be sold by the Selling Shareholder hereunder on the Delivery Date or a valid “security entitlement” within the meaning of Sections 8-102 and Section 8-501 of the New York Uniform Commercial Code (the “UCC”) in respect of, the Shares to be sold by the Selling Shareholder hereunder on the Delivery Datethereof, free and clear of all liens, encumbrances, equities equities, community property rights, restrictions on transfer or claims.
(cd) The obligations of the Selling Shareholder hereunder shall not be terminated by any act of the Selling Shareholder, by operation of law or the occurrence of any other event, except as otherwise provided hereunder.
(e) Upon payment for the Shares to be sold by the Selling Shareholder, delivery of such Shares, as directed by the UnderwriterUnderwriters, to Cede & Co. (“Cede”) or such other nominee as may be designated by The Depository Trust Company (“DTC”), registration of such Shares in the name of Cede or such other nominee and the crediting of such Shares on the books of DTC to the securities account accounts of the Underwriter Underwriters (assuming that neither DTC nor the any such Underwriter has notice of any adverse claim (within the meaning of Sections 8-102 and Section 8-105 of the UCC) to such Shares), (i) the Underwriter DTC will acquire good and valid title to such Shares free and clear of all liens, encumbrances, equities, community property rights, restrictions on transfer or claims, (ii) DTC shall be a “protected purchaser” of such Shares within the meaning of Section 8-303 of the UCC, and (iiiii) under Section 8-501 of the UCC, the Underwriter Underwriters will acquire a valid security entitlement in respect of such Shares free of any Shares, and (iv) an action based on an “adverse claim,” (within the meaning of Section 8-102 of the UCC) to such securities entitlement, whether framed in conversion, replevin, constructive trust, equitable lien or other theory may not be asserted against the Underwriters with respect to such security entitlement. For purposes of this representation, the Selling Shareholder may assume that when such payment, delivery and crediting occur, (Ax) such Shares will have been registered in the name of Cede or another nominee designated by DTC, in each case on the Company’s share registry in accordance with its certificate of incorporation, bylaws articles of association and applicable law, (By) DTC will be registered as a “clearing corporation” within the meaning of Section 8-102 of the UCC UCC, and (Cz) appropriate entries to the Underwriter’s account accounts of the Underwriters on the records of DTC will have been made pursuant to the UCC.
(df) The Selling Shareholder has been duly organized and is validly existing as a limited liability company in good standing under the laws of the State of Nevada, with the limited liability company power and authority to own its properties and conduct its business in all material respects as currently conducted.
(g) The Selling Shareholder has full right, power and authority, corporate or otherwise, to enter into this Agreement.
(eh) This Agreement has been duly and validly authorized, executed and delivered by or on behalf of the Selling Shareholder.
(fi) [Reserved]
(j) The sale of the Shares to be sold by the Selling Shareholder, the execution, delivery and performance of this Agreement by the Selling Shareholder and the consummation by the Selling Shareholder of the transactions contemplated hereby do not and will not (i) conflict with or result in a breach or violation of any of the terms or provisions of, or constitute a default under, any indenture, mortgage, deed of trust, loan agreement, license license, lease or other agreement or instrument to which the Selling Shareholder is a party or by which the Selling Shareholder is bound or to which any of the property or assets of the Selling Shareholder is subject, or (ii) result in any violation of the provisions of the charter or by-laws (or similar organizational documents) of the Selling Shareholder or (iii) result in any violation of any statute or any judgment, order, decree, rule or regulation of any court or governmental agency or body having jurisdiction over the Selling Shareholder or the property or assets of the Selling Shareholder, except in each case, any non-material breaches, conflicts or violations that would not materially impact the ability of the Underwriters to consummate the transactions contemplated by this Agreement.
(gk) No consent, approval, authorization or order of, or filing or registration with, any court or governmental agency or body having jurisdiction over the Selling Shareholder or the property or assets of the Selling Shareholder is required for the sale of the Shares by the Selling Shareholder, the execution, delivery and performance of this Agreement by the Selling Shareholder and the consummation by the Selling Shareholder of the transactions contemplated hereby, except for (i) the registration of the Shares under the Securities Act and such consents, approvals, authorizations, orders, filings, registrations or qualifications as may be required under the Exchange Act and applicable state securities laws in connection with the purchase and sale rules of the Shares by the UnderwriterNasdaq Stock Market LLC) and (ii) such consents, approvals, authorizations and orders that have been already obtained.
(hl) Neither To the Selling Shareholder nor any of its officers or directors has ever served as an officer or director of, or otherwise held any position with, the Company or any of its subsidiaries. The Selling Shareholder (i) has never exercised control over the Company or any of its subsidiaries, (ii) has never sought to influence the Company by virtue knowledge of the Selling Shareholder’s ownership of Common Stock and (iii) does not have, and does not have access tothe Registration Statement did not, material non-public information regarding the current or prospective condition (financial or otherwise), operations, results of operations, properties or business as of the Company Effective Date, contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading; provided that the representations and warranties set forth in this subsection (l) apply only to statements or omissions made in reliance upon and in conformity with information relating to the Selling Shareholder furnished in writing by or on behalf of the Selling Shareholder expressly for use in the Prospectus, it being understood that the only such information furnished by the Selling Shareholder consists of the statements contained with respect to the Selling Shareholder under the caption “Selling shareholder” (without regard to any of its subsidiariesinformation incorporated by reference in the Registration Statement).
(im) To the knowledge of the Selling Shareholder, the Prospectus will not, as of its date or as of the Delivery Date, contain an untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading; provided that the representations and warranties set forth in this subsection (m) apply only to statements or omissions made in reliance upon and in conformity with information relating to the Selling Shareholder furnished in writing by or on behalf of the Selling Shareholder expressly for use in the Prospectus, it being understood that the only such information furnished by the Selling Shareholder consists of the statements contained with respect to the Selling Shareholder under the caption “Selling shareholder” (without regard to any information incorporated by reference in the Prospectus).
(n) To the knowledge of the Selling Shareholder, the Pricing Disclosure Package did not, as of the Applicable Time, contain an untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading; provided that the representations and warranties set forth in this subsection (n) apply only to statements or omissions made in reliance upon and in conformity with information relating to the Selling Shareholder furnished in writing by or on behalf of the Selling Shareholder expressly for use in the Pricing Disclosure Package, it being understood that the only such information furnished by the Selling Shareholder consists of the statements contained with respect to the Selling Shareholder under the caption “Selling shareholder” (without regard to any information incorporated by reference in the Pricing Disclosure Package).
(o) To the knowledge of the Selling Shareholder, the Pricing Disclosure Package, when taken together with each Issuer Free Writing Prospectus listed in Schedule V hereto, did not, as of the Applicable Time, contain an untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading; provided that the representations and warranties set forth in this subsection (o) apply only to statements or omissions made in reliance upon and in conformity with information relating to the Selling Shareholder furnished in writing by or on behalf of the Selling Shareholder expressly for use in the Pricing Disclosure Package (or any Issuer Free Writing Package), it being understood that the only such information furnished by the Selling Shareholder consists of the statements contained with respect to the Selling Shareholder under the caption “Selling shareholder” (without regard to any information incorporated by reference in the Pricing Disclosure Package).
(p) [Reserved]
(q) Assuming that the Underwriters are not otherwise subject to taxation in the State of Israel, other than any withholding taxes which may be required pursuant to Israeli law arising under clauses (1) and (2) below, no stamp or other issuance of transfer taxes or duties and no capital gains, income or other taxes are payable by or on behalf of the Underwriters, or otherwise imposed on any payments made to the Underwriters, to the State of Israel or to any political subdivision or taxing authority thereof in connection with (1) the execution, delivery or performance of this Agreement by the Selling Shareholder, or (2) the sale or delivery of the Shares to be sold by the Selling Shareholder to or for the respective accounts of the Underwriters as disclosed in the Registration Statement, the Pricing Disclosure Package and the Prospectus, and pursuant to the terms of this Agreement.
(r) The Selling Shareholder has not taken and will not taketaken, directly or indirectly, any action that is designed to or that has constituted or that could reasonably be expected to cause or result in the stabilization or manipulation of the price of any security of the Company to facilitate in connection with the sale or resale offering of the Shares. In addition, the Selling Shareholder has not engaged in any form of solicitation, advertising or any other action constituting an offer to the public under the Israeli Securities Law in connection with the transactions contemplated hereby which would require the publication of a prospectus in the State of Israel under the laws of the State of Israel.
(js) The Selling Shareholder is not directly (1) an employee benefit plan subject to Title I of ERISA, (2) a plan or indirectly an affiliate of or associated with any member account subject to Section 4975 of the National Association Code or (3) an entity deemed to hold “plan assets” of Securities Dealersany such plan or account under Section 3(42) of ERISA, Inc.29 C.F.R. 2510.3-101, except that a director or otherwise.
(t) Neither the Selling Shareholder nor any of its subsidiaries nor, to the knowledge of the Selling Shareholder, Fxxxxxxxx X. Xxxxxxxxxxany director, is an advisory director officer, agent employee or affiliate of Mxxxxx Sxxxxxxthe Selling Shareholder or any of its subsidiaries will, directly or indirectly, use the proceeds of this offering, or lend, contribute or otherwise make available such proceeds to any subsidiary, joint venture partner or other individual or entity in any manner that would result in a violation of any Money Laundering Laws, Anti-Corruption Laws, or Sanctions by, or could result in the imposition of Sanctions against, any individual or entity (including any individual or entity participating in the offering, whether as underwriter, advisor, investor or otherwise). Any certificate signed by any officer of the Selling Shareholder and delivered to the Underwriter Underwriters or counsel for the Underwriter Underwriters in connection with the offering of the Shares shall be deemed a representation and warranty by the Selling Shareholder, as to matters covered thereby, to the each Underwriter.
Appears in 1 contract