Representations, Warranties and Agreements of the Selling Shareholders. Except with respect to Section 2(n) which does not apply to Bali Investments S.àr.l, Seletar Investments Pte Ltd, Geyser Investment Pte. Ltd. and Capstone Equity Investors LLC, each Selling Shareholder, severally and not jointly, represents, warrants and agrees that: (a) Neither such Selling Shareholder nor any person acting on behalf of such 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) Such Selling Shareholder has, or immediately prior to any Delivery Date on which such Selling Shareholder is selling Shares, such Selling Shareholder will have, good and valid title to, or a valid “security entitlement” within the meaning of Section 8-501 of the New York Uniform Commercial Code (the “UCC”) in respect of, the Shares to be sold by such Selling Shareholder hereunder on such Delivery Date, free and clear of all liens, encumbrances, equities or claims, except for any liens, encumbrances, equities or claims arising under the Custody Agreement or otherwise in favor of the Underwriters. (c) The Shares to be sold by such Selling Shareholder hereunder, which are represented by the certificates held in custody for such Selling Shareholder, are subject to the interests of the Underwriters and the other Selling Shareholders thereunder, the arrangements made by such Selling Shareholder for such custody are to that extent irrevocable, and the obligations of such Selling Shareholder hereunder shall not be terminated by any act of such Selling Shareholder, by operation of law, death or incapacity of such individual Selling Shareholder or, in the case of a trust, by the death or incapacity of any executor or trustee or the termination of such trust, or the occurrence of any other event. (d) Upon payment of the purchase price for the Shares to be sold by each Selling Shareholder pursuant to this Agreement, delivery of such Shares, as directed by the Underwriters, to Cede & Co. (“Cede”) or such other nominee as may be designated by The Depository Trust Company (“DTC”), registration of such Shares in the name of Cede or such other nominee, and the crediting of such Shares on the books of DTC to securities accounts (within the meaning of Section 8-501(a) of the UCC) of the Underwriters maintained at DTC (assuming that neither DTC nor any such Underwriter has notice of any “adverse claim,” within the meaning of Section 8-105 of the UCC, to such Shares), (i) DTC shall be a “protected purchaser” of such Shares within the meaning of Section 8-303 of the UCC, (ii) under Section 8-501 of the UCC, the Underwriters will acquire a valid “security entitlement” in respect of such Shares and (iii) no action (whether framed in conversion, replevin, constructive trust, equitable lien, or other theory) based on any “adverse claim,” within the meaning of Section 8-102 of the UCC, to such Shares may be asserted against the Underwriters with respect to such security entitlement. For purposes of this representation, such 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 Memorandum and Articles of Association and applicable law, (B) DTC will be registered as a “clearing corporation,” within the meaning of Section 8-102 of the UCC, (C) appropriate entries to the accounts of the several Underwriters on the records of DTC will have been made pursuant to the UCC, (D) to the extent DTC, or any other securities intermediary which acts as “clearing corporation” with respect to the Shares, maintains any “financial asset” (as defined in Section 8-102(a)(9) of the UCC in a clearing corporation pursuant to Section 8-111 of the UCC, the rules of such clearing corporation may affect the rights of DTC or such securities intermediaries and the ownership interest of the Underwriters), (E) claims of creditors of DTC or any other securities intermediary or clearing corporation may be given priority to the extent set forth in Section 8-511(b) and 8-511(c) of the UCC and (F) if at any time the DTC or other securities intermediary does not have sufficient Shares to satisfy claims of all of its entitlement holders with respect thereto then all holders will share pro rata in the Shares then held by DTC or such securities intermediary. (e) Such Selling Shareholder has placed in custody under a custody agreement (the “Custody Agreement” and, together with all other similar agreements executed by the other Selling Shareholders, the “Custody Agreements”) with Computershare Inc., 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 Shares Exchange Medallion Program) representing the Shares to be sold by such Selling Shareholder hereunder. (f) Such Selling Shareholder has duly and irrevocably executed and delivered a power of attorney (the “Power of Attorney” and, together with all other similar agreements executed by the other Selling Shareholders, the “Powers of Attorney”) appointing Xx. Xxxxxxx X. Bettinger, Xx. Xxxxxxxx X. McCall and Xx. Xxxx Xxxx, and each of them, as attorneys-in-fact, with full power of substitution, and with full authority (exercisable by any one or more of them) to execute and deliver this Agreement on behalf of such Selling Shareholders and to take such other action as may be necessary or desirable to carry out the provisions hereof on behalf of such Selling Shareholder. (g) No stamp, issue, registration, documentary, transfer or other similar taxes and duties, including interest and penalties, are payable in the Republic of Singapore on or in connection with the sale of the Ordinary Shares by such Selling Shareholder or the execution and delivery of this Agreement, other than as described in the most recent Preliminary Prospectus and the Prospectus. (h) Such Selling Shareholder has full right, power and authority, corporate or otherwise, to enter into this Agreement, the Custody Agreement and the Power of Attorney. (i) This Agreement has been duly and validly authorized, executed and delivered by or on behalf of such Selling Shareholder. (j) The Power of Attorney and the Custody Agreement have been duly and validly authorized, executed and delivered by or on behalf of such Selling Shareholder and constitute valid and legally binding obligations of such Selling Shareholder enforceable against such Selling Shareholder in accordance with their terms, subject to (i) the effects of bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium and other similar laws relating to or affecting creditors’ rights generally, (ii) general equitable principles (whether considered in a proceeding in equity or at law) and (iii) an implied covenant of good faith and fair dealing. (k) The execution, delivery and performance of this Agreement, the Custody Agreement and the Power of Attorney by such Selling Shareholder and the consummation by such 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 such Selling Shareholder is a party or by which such Selling Shareholder is bound or to which any of the property or assets of such Selling Shareholder is subject, (ii) result in any violation of the provisions of the charter or by-laws (or similar organizational documents) of such 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 such Selling Shareholder or the property or assets of such Selling Shareholder. (l) No consent, approval, authorization or order of, or filing or registration with, any court or governmental agency or body having jurisdiction over such Selling Shareholder or the property or assets of such Selling Shareholder is required for the execution, delivery and performance of this Agreement, the Custody Agreement or the Power of Attorney by such Selling Shareholder and the consummation by such Selling Shareholder of the transactions contemplated hereby and thereby, except for the registration of the Shares under the Securities Act and such consents, approvals, authorizations, registrations or qualifications as may be required under the Exchange Act and applicable state or foreign securities laws in connection with the purchase and sale of the Shares by the Underwriters. (i) 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; (ii) the Prospectus will not, as of its date and on the applicable Delivery Date, contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading; (iii) the Pricing Disclosure Package did not, as of the Applicable Time, contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading; and (iv) each Issuer Free Writing Prospectus (including without limitation, any road show that is a free writing prospectus under Rule 433), if any, when considered together with the Pricing Disclosure Package as of the Applicable Time, did not contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, In the light of the circumstances under which they were made, not misleading; provided that the representations and warranties in the foregoing clauses (i) through (iv) are made only as to statements or omissions made in reliance upon and in conformity with written information furnished to the Company by or on behalf of such Selling Shareholder specifically for use in the preparation of the Registration Statement or such other documents. (n) Such Selling Shareholder is not prompted to sell shares of Ordinary Shares by any information concerning the Company that is not set forth in the Registration Statement, the Pricing Disclosure Package and the Prospectus. (o) Such 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. Any certificate signed by any officer of any Selling Shareholder and delivered to the Representatives or counsel for the Underwriters in connection with the offering of the Shares shall be deemed a representation and warranty by such Selling Shareholder, as to matters covered thereby, to each Underwriter.
Appears in 2 contracts
Samples: Underwriting Agreement (Avago Technologies LTD), Underwriting Agreement (Avago Technologies LTD)
Representations, Warranties and Agreements of the Selling Shareholders. Except with respect to Section 2(n) which does not apply to Bali Investments S.àr.l, Seletar Investments Pte Ltd, Geyser Investment Pte. Ltd. and Capstone Equity Investors LLC, each Each Selling Shareholder, Shareholder severally and not jointly, represents, warrants and agrees that:not
(ai) Neither such Selling Shareholder nor any person acting on behalf of such 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) Such Selling Shareholder Now has, or immediately prior to any Delivery and on each Closing Date on which such Selling Shareholder is selling Shares, such Selling Shareholder will have, good valid and valid marketable title to, or a valid “security entitlement” within to the meaning of Section 8-501 of the New York Uniform Commercial Code (the “UCC”) in respect of, the Shares Stock to be sold by such Selling Shareholder hereunder on such Delivery DateShareholder, free and clear of all liensany lien, encumbrancesclaim, equities security interest or claimsother encumbrance, except for including, without limitation, any liensrestriction on transfer, encumbrancesand has full right, equities or claims arising under power and authority to enter into this Agreement, the Power of Attorney and the Custody Agreement (each as hereinafter defined), and, to the extent such Selling Shareholder is a corporation or otherwise a partnership, has been duly organized and is validly existing and in favor good standing as a corporation or partnership, as applicable, under the laws of the Underwritersits jurisdiction of organization.
(cii) The Shares Now has, and on each Closing Date will have, upon delivery of and payment for each share of Stock hereunder, full right, power, authority and any approval required by law to be sell, transfer, assign and deliver the Stock being sold by such Selling Shareholder hereunder, which are represented and each of the several Underwriters will acquire valid and marketable title to all of the Stock being sold to the Underwriters by the certificates held in custody for such Selling Shareholder, are subject free and clear of any liens, encumbrances, equities claims, restrictions on transfer or other defects whatsoever.
(iii) For a period of 180 days after the date of this Agreement, without the consent of Cowex, xxch Selling Shareholder will not offer to the interests sell, sell, contract to sell or otherwise dispose of the Underwriters and the other Selling Shareholders thereunderany capital stock or securities convertible into or exchangeable for capital stock, the arrangements made including, without limitation, capital stock which may be deemed to be beneficially owned by such Selling Shareholder in accordance with the Rules and Regulations, except for such custody are to that extent irrevocable, and the obligations of such Selling Shareholder Stock being sold hereunder shall not be terminated by any act of such Selling Shareholder, by operation of law, death or incapacity of such individual Selling Shareholder or, as set forth in the case of a trust, by the death or incapacity of any executor or trustee or the termination of such trust, or the occurrence of any other eventagreement under Section 8(l) herein.
(div) Upon payment of the purchase price for the Shares to be sold by each Selling Shareholder pursuant to this Agreement, delivery of such Shares, as directed by the Underwriters, to Cede & Co. (“Cede”) or such other nominee as may be designated by The Depository Trust Company (“DTC”), registration of such Shares in the name of Cede or such other nominee, and the crediting of such Shares on the books of DTC to securities accounts (within the meaning of Section 8-501(a) of the UCC) of the Underwriters maintained at DTC (assuming that neither DTC nor any such Underwriter has notice of any “adverse claim,” within the meaning of Section 8-105 of the UCC, to such Shares), (i) DTC shall be a “protected purchaser” of such Shares within the meaning of Section 8-303 of the UCC, (ii) under Section 8-501 of the UCC, the Underwriters will acquire a valid “security entitlement” in respect of such Shares and (iii) no action (whether framed in conversion, replevin, constructive trust, equitable lien, or other theory) based on any “adverse claim,” within the meaning of Section 8-102 of the UCC, to such Shares may be asserted against the Underwriters with respect to such security entitlement. For purposes of this representation, such 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 Memorandum and Articles of Association and applicable law, (B) DTC will be registered as a “clearing corporation,” within the meaning of Section 8-102 of the UCC, (C) appropriate entries to the accounts of the several Underwriters on the records of DTC will have been made pursuant to the UCC, (D) to the extent DTC, or any other securities intermediary which acts as “clearing corporation” with respect to the Shares, maintains any “financial asset” (as defined in Section 8-102(a)(9) of the UCC in a clearing corporation pursuant to Section 8-111 of the UCC, the rules of such clearing corporation may affect the rights of DTC or such securities intermediaries and the ownership interest of the Underwriters), (E) claims of creditors of DTC or any other securities intermediary or clearing corporation may be given priority to the extent set forth in Section 8-511(b) and 8-511(c) of the UCC and (F) if at any time the DTC or other securities intermediary does not have sufficient Shares to satisfy claims of all of its entitlement holders with respect thereto then all holders will share pro rata in the Shares then held by DTC or such securities intermediary.
(e) Such Selling Shareholder has placed in custody under a custody agreement (the “Custody Agreement” and, together with all other similar agreements executed by the other Selling Shareholders, the “Custody Agreements”) with Computershare Inc., 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 Shares Exchange Medallion Program) representing the Shares to be sold by such Selling Shareholder hereunder.
(f) Such Selling Shareholder has Has duly and irrevocably executed and delivered a power of attorney attorney, in substantially the form heretofore delivered to the Representatives (the “"Power of Attorney” and"), together with all other similar agreements executed by appointing Davix X. Xxxxx, xx his duly appointed substitute as attorney-in-fact (the other Selling Shareholders, the “Powers of Attorney”) appointing Xx. Xxxxxxx X. Bettinger, Xx. Xxxxxxxx X. McCall and Xx. Xxxx Xxxx, and each of them, as attorneys"Attorneys-in-fact, ") with full power of substitution, and with full authority (exercisable by any one or more of them) to execute and deliver this Agreement on behalf of such Selling Shareholders Shareholder, to authorize the delivery of the shares of Stock to be sold by such Selling Shareholder hereunder and otherwise to take such other action as may be necessary or desirable to carry out the provisions hereof act on behalf of such Selling Shareholder.
(g) No stamp, issue, registration, documentary, transfer or other similar taxes and duties, including interest and penalties, are payable in the Republic of Singapore on or Shareholder in connection with the sale transactions contemplated by this Agreement.
(v) Has duly executed and delivered a custody agreement, in substantially the form heretofore delivered to the Representatives (the "Custody Agreement"), with Buchxxxx Xxxexxxxx xx custodian (the "Custodian"), pursuant to which certificates in negotiable form for the shares of the Ordinary Shares Stock to be sold by such Selling Shareholder or the hereunder have been placed in custody for delivery under this Agreement.
(vi) Has, by execution and delivery of this Agreement, other than as described in the most recent Preliminary Prospectus and the Prospectus.
(h) Such Selling Shareholder has full right, power and authority, corporate or otherwise, to enter into each of this Agreement, the Custody Agreement and the Power of Attorney.
(i) This Agreement has been duly and validly authorized, executed and delivered by or on behalf of such Selling Shareholder.
(j) The Power of Attorney and the Custody Agreement have been duly and validly authorizedAgreement, executed and delivered by or on behalf of such Selling Shareholder and constitute created valid and legally binding obligations of such Selling Shareholder Shareholder, enforceable against such Selling Shareholder in accordance with their its terms, subject except to (i) the effects of bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium and other similar extent that rights to indemnity hereunder may be limited by federal or state securities 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 dealingthe public policy underlying such laws.
(kvii) The execution, delivery and performance of this Agreement, the Custody Agreement and the Power of Attorney by such Selling Shareholder Attorney, and the consummation by such Selling Shareholder of the transactions contemplated hereby and thereby do not and will not (i) conflict with or result in a breach or violation by such Selling Shareholder of any of the terms or provisions of, or constitute a default by such Selling Shareholder under, any indenture, mortgage, deed of trust, trust (constructive or other), loan agreement, lease, franchise, license or other agreement or instrument to which such Selling Shareholder is a party or by which such Selling Shareholder is bound or to which any of the property its properties is bound, or assets any judgment of such Selling Shareholder is subject, (ii) result in any violation of the provisions of the charter court or by-laws (governmental agency or similar organizational documents) of body applicable to such Selling Shareholder or (iii) result in any violation of its properties, or to such Selling Shareholder's knowledge, any statute or any statute, decree, order, rule or regulation of any court or governmental agency or body having jurisdiction over applicable to such Selling Shareholder or the property or assets any of such Selling Shareholderits properties.
(lviii) No consent, approval, authorization or order of, or filing or registration with, any court or governmental agency or body having jurisdiction over Neither such Selling Shareholder or the property or assets of such Selling Shareholder is required for the execution, delivery and performance of this Agreement, the Custody Agreement or the Power of Attorney by such Selling Shareholder and the consummation by such Selling Shareholder of the transactions contemplated hereby and thereby, except for the registration of the Shares under the Securities Act and such consents, approvals, authorizations, registrations or qualifications as may be required under the Exchange Act and applicable state or foreign securities laws in connection with the purchase and sale of the Shares by the Underwriters.
(i) 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; (ii) the Prospectus will not, as nor any of its date and on the applicable Delivery Date, contain an untrue statement of a material fact affiliates has taken 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; (iii) the Pricing Disclosure Package did not, as of the Applicable Time, contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading; and (iv) each Issuer Free Writing Prospectus (including without limitation, any road show that is a free writing prospectus under Rule 433), if any, when considered together with the Pricing Disclosure Package as of the Applicable Time, did not contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, In the light of the circumstances under which they were made, not misleading; provided that the representations and warranties in the foregoing clauses (i) through (iv) are made only as to statements or omissions made in reliance upon and in conformity with written information furnished to the Company by or on behalf of such Selling Shareholder specifically for use in the preparation of the Registration Statement or such other documents.
(n) Such Selling Shareholder is not prompted to sell shares of Ordinary Shares by any information concerning the Company that is not set forth in the Registration Statement, the Pricing Disclosure Package and the Prospectus.
(o) Such Selling Shareholder has not taken and will not take, directly or indirectly, any action that is designed or intended to stabilize or that has constituted manipulate the price of any security of the Company, or that could which caused or resulted in, or which might in the future reasonably be expected to cause or result in the in, stabilization or manipulation of the price of any security of the Company.
(ix) Has no reason to believe that the representations and warranties of the Company to facilitate contained in this Section 2 are not true and correct, is familiar with the Registration Statement and has no knowledge of any material fact, condition or information not disclosed in the Registration Statement which has adversely affected or may adversely affect the business of the Company or any of its subsidiaries; and the sale or resale Each Selling Shareholder agrees that the shares of Stock represented by the certificates held in custody under the Custody Agreement are for the benefit of and coupled with and subject to the interests of the Shares. Any certificate signed by any officer Underwriters, the other Selling Shareholders and the Company hereunder, and that the arrangement for such custody and the appointment of any the Attorneys-in-fact are irrevocable; that the obligations of such Selling Shareholder and delivered to hereunder shall not be terminated by operation of law, whether by the Representatives death or counsel for the Underwriters in connection with the offering incapacity, liquidation or distribution of the Shares shall be deemed a representation and warranty by such Selling Shareholder, or any other event, that if such Selling Shareholder should die or become incapacitated or is liquidated or dissolved or any other event occurs, before the delivery of the Stock hereunder, certificates for the Stock to be sold by such Selling Shareholder shall be delivered on behalf of such Selling Shareholder in accordance with the terms and conditions of this Agreement and the Custody Agreement, and action taken by the Attorneys-in-fact or any of them under the Power of Attorney shall be as to matters covered therebyvalid as if such death, to each Underwriterincapacity, liquidation or dissolution or other event had not occurred, whether or not the Custodian, the Attorneys-in-fact or any of them shall have notice of such death, incapacity, liquidation or dissolution or other event.
Appears in 2 contracts
Samples: Underwriting Agreement (Intelligroup Inc), Underwriting Agreement (Intelligroup Inc)
Representations, Warranties and Agreements of the Selling Shareholders. Except with respect Each Selling Shareholder represents and warrants to Section 2(n) which does not apply to Bali Investments S.àr.l, Seletar Investments Pte Ltd, Geyser Investment Pte. Ltd. and Capstone Equity Investors LLC, each Selling Shareholder, severally and not jointly, represents, warrants and agrees with the Underwriter that:
(a) Neither such Selling Shareholder nor any person acting This Agreement has been duly authorized, executed and delivered by or on behalf of such Selling Shareholder.
(b) The execution and delivery by such Selling Shareholder of, and the performance by such Selling Shareholder of its obligations under, this Agreement will not contravene any provision of law applicable to such Selling Shareholder, or the certificate of incorporation or bylaws of such Selling Shareholder (other than, if applicable, the Company and the Underwriters) has used or referred to any “free writing prospectus” (as defined in Rule 405such Selling Shareholder is a corporation), relating or any agreement or other instrument binding upon such Selling Shareholder or any judgment, order or decree of any governmental body, agency or court having jurisdiction over such Selling Shareholder, except for any contraventions of an agreement, instrument, judgment, order or decree which would not, individually or in the aggregate, adversely affect such Selling Shareholder’s ability to fulfill its obligations under and consummate the transactions contemplated by this Agreement, and no consent, approval, authorization or order of, or qualification with, any governmental body or agency is required for the performance by such Selling Shareholder of its obligations under this Agreement, except such as may be required under the Securities Act, pursuant to the rules of the National Association of Securities Dealers, Inc. or by the securities or Blue Sky laws of the various states in connection with the offer and sale of the Shares.
(bc) Such Selling Shareholder has, or immediately prior with respect to any Delivery Selling Shareholders established in the Netherlands Antilles or the Netherlands, as applicable, one or more of their general partners or, as applicable, all general partners have, and on the Closing Date on which such Selling Shareholder is selling Shares, such Selling Shareholder will have, good and valid title to, or a valid “security entitlement” within the meaning of Section 8-501 of the New York Uniform Commercial Code (the “UCC”) in respect of, the Shares to be sold by such Selling Shareholder hereunder on such Delivery Date, free and clear of all security interests, claims, liens, encumbrances, equities or claimsother encumbrances and the legal right and power, except for any liensand all authorization and approval required by law, encumbrancesto sell, equities or claims arising under transfer and deliver the Custody Agreement or otherwise in favor of the Underwriters.
(c) The Shares to be sold by such Selling Shareholder hereunder, which are represented by the certificates held or a security entitlement in custody for such Selling Shareholder, are subject to the interests of the Underwriters and the other Selling Shareholders thereunder, the arrangements made by such Selling Shareholder for such custody are to that extent irrevocable, and the obligations respect of such Selling Shareholder hereunder shall not be terminated by any act of such Selling Shareholder, by operation of law, death or incapacity of such individual Selling Shareholder or, in the case of a trust, by the death or incapacity of any executor or trustee or the termination of such trust, or the occurrence of any other eventShares.
(d) Upon payment of the purchase price for the Shares to be sold by each such Selling Shareholder pursuant to this Agreement, delivery of such Shares, as directed by the UnderwritersUnderwriter, to Cede & Co. (“Cede”) or such other nominee as may be designated by The Depository Trust Company (“DTC”), registration of such Shares in the name of Cede or such other nominee, nominee and the crediting of such Shares on the books of DTC to the securities accounts (within the meaning of Section 8-501(a) account of the UCC) of the Underwriters maintained at DTC Underwriter (assuming that neither DTC nor any such the Underwriter has notice of any “adverse claim,” claim (within the meaning of Section 8-105 of the New York Uniform Commercial Code (the “UCC, ”)) to such Shares), (iA) DTC shall be a “protected purchaser” of such Shares within the meaning of Section 8-303 of the UCC, (iiB) under Section 8-501 of the UCC, the Underwriters Underwriter will acquire a valid “security entitlement” entitlement in respect of such Shares and (iiiC) no action (whether framed in conversion, replevin, constructive trust, equitable lien, or other theory) based on any “adverse claim,” ”, within the meaning of Section 8-102 of the UCC, to such Shares may be successfully asserted against the Underwriters Underwriter with respect to such security entitlement. For ; for purposes of this representation, 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 Memorandum and Articles certificate of Association incorporation, bylaws and applicable law, (By) DTC will be registered as a “clearing corporation,” within the meaning of Section 8-102 of the UCC, UCC and (Cz) appropriate entries to the accounts account of the several Underwriters Underwriter on the records of DTC will have been made pursuant to the UCC, (D) to the extent DTC, or any other securities intermediary which acts as “clearing corporation” with respect to the Shares, maintains any “financial asset” (as defined in Section 8-102(a)(9) of the UCC in a clearing corporation pursuant to Section 8-111 of the UCC, the rules of such clearing corporation may affect the rights of DTC or such securities intermediaries and the ownership interest of the Underwriters), (E) claims of creditors of DTC or any other securities intermediary or clearing corporation may be given priority to the extent set forth in Section 8-511(b) and 8-511(c) of the UCC and (F) if at any time the DTC or other securities intermediary does not have sufficient Shares to satisfy claims of all of its entitlement holders with respect thereto then all holders will share pro rata in the Shares then held by DTC or such securities intermediary.
(e) Such Selling Shareholder has placed in custody under a custody agreement (the “Custody Agreement” The Registration Statement, when it became effective, did not contain and, together with all other similar agreements executed by the other Selling Shareholdersas amended or supplemented, the “Custody Agreements”) with Computershare Inc.if applicable, 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 Shares Exchange Medallion Program) representing the Shares to be sold by such Selling Shareholder hereunder.
(f) Such Selling Shareholder has duly and irrevocably executed and delivered a power of attorney (the “Power of Attorney” and, together with all other similar agreements executed by the other Selling Shareholders, the “Powers of Attorney”) appointing Xx. Xxxxxxx X. Bettinger, Xx. Xxxxxxxx X. McCall and Xx. Xxxx Xxxx, and each of them, as attorneys-in-fact, with full power of substitution, and with full authority (exercisable by any one or more of them) to execute and deliver this Agreement on behalf of such Selling Shareholders and to take such other action as may be necessary or desirable to carry out the provisions hereof on behalf of such Selling Shareholder.
(g) No stamp, issue, registration, documentary, transfer or other similar taxes and duties, including interest and penalties, are payable in the Republic of Singapore on or in connection with the sale of the Ordinary Shares by such Selling Shareholder or the execution and delivery of this Agreement, other than as described in the most recent Preliminary Prospectus and the Prospectus.
(h) Such Selling Shareholder has full right, power and authority, corporate or otherwise, to enter into this Agreement, the Custody Agreement and the Power of Attorney.
(i) This Agreement has been duly and validly authorized, executed and delivered by or on behalf of such Selling Shareholder.
(j) The Power of Attorney and the Custody Agreement have been duly and validly authorized, executed and delivered by or on behalf of such Selling Shareholder and constitute valid and legally binding obligations of such Selling Shareholder enforceable against such Selling Shareholder in accordance with their terms, subject to (i) the effects of bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium and other similar laws relating to or affecting creditors’ rights generally, (ii) general equitable principles (whether considered in a proceeding in equity or at law) and (iii) an implied covenant of good faith and fair dealing.
(k) The execution, delivery and performance of this Agreement, the Custody Agreement and the Power of Attorney by such Selling Shareholder and the consummation by such 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 contain any of the terms or provisions of, or constitute a default under, any indenture, mortgage, deed of trust, loan agreement, license or other agreement or instrument to which such Selling Shareholder is a party or by which such Selling Shareholder is bound or to which any of the property or assets of such Selling Shareholder is subject, (ii) result in any violation of the provisions of the charter or by-laws (or similar organizational documents) of such 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 such Selling Shareholder or the property or assets of such Selling Shareholder.
(l) No consent, approval, authorization or order of, or filing or registration with, any court or governmental agency or body having jurisdiction over such Selling Shareholder or the property or assets of such Selling Shareholder is required for the execution, delivery and performance of this Agreement, the Custody Agreement or the Power of Attorney by such Selling Shareholder and the consummation by such Selling Shareholder of the transactions contemplated hereby and thereby, except for the registration of the Shares under the Securities Act and such consents, approvals, authorizations, registrations or qualifications as may be required under the Exchange Act and applicable state or foreign securities laws in connection with the purchase and sale of the Shares by the Underwriters.
(i) 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; (ii) , and the Prospectus will notdoes not contain and, as of its date and on the applicable Delivery Dateamended or supplemented, if applicable, will not contain an any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading; (iii) the Pricing Disclosure Package did not, as of the Applicable Time, contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading; and (iv) each Issuer Free Writing Prospectus (including without limitation, any road show that is a free writing prospectus under Rule 433), if any, when considered together with the Pricing Disclosure Package as of the Applicable Time, did not contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, In the light of the circumstances under which they were made, not misleading; provided that the representations and warranties set forth in the foregoing clauses (i) through (ivthis paragraph 2(e) are made only as limited to statements or omissions made in reliance upon and in conformity with written information relating to such Selling Shareholder furnished to the Company in writing by or on behalf of such Selling Shareholder specifically expressly for use in the preparation of the Registration Statement or such other documents.
(n) Such Selling Shareholder is not prompted to sell shares of Ordinary Shares by any information concerning the Company that is not set forth in the Registration Statement, the Pricing Disclosure Package Prospectus or any amendments or supplements thereto, it being understood and agreed that the only such information furnished by any such Selling Shareholder consists of the information about such Selling Shareholder under the caption “Selling Shareholders” in the Prospectus.
(of) Such Each Selling Shareholder has not taken shall pay all of its costs and will not takeexpenses, directly or indirectly, including fees and disbursements of its counsel and 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 stock transfer taxes payable on the sale or resale of the Shares. Any certificate signed by any officer of any Selling Shareholder and delivered its shares to the Representatives or counsel for the Underwriters in connection with the offering of the Shares shall be deemed a representation and warranty by such Selling Shareholder, as to matters covered thereby, to each Underwriter.
Appears in 2 contracts
Samples: Underwriting Agreement (Montpelier Re Holdings LTD), Underwriting Agreement (Montpelier Re Holdings LTD)
Representations, Warranties and Agreements of the Selling Shareholders. Except with respect to Section 2(n) which does not apply to Bali Investments S.àr.l, Seletar Investments Pte Ltd, Geyser Investment Pte. Ltd. and Capstone Equity Investors LLC, each Each Selling Shareholder, Shareholder severally and not jointly, represents, warrants and agrees that:
(a) Neither such Selling Shareholder nor any person acting on behalf of such 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) Such Selling Shareholder has, or and immediately prior to any the First Delivery Date on which such Selling Shareholder is selling Shares, such Selling Shareholder (as defined in Section 5 hereof) will have, good and valid title to, or a valid “security entitlement” within to the meaning shares of Section 8-501 of the New York Uniform Commercial Code (the “UCC”) in respect of, the Shares Stock to be sold by such Selling Shareholder hereunder on such Delivery Datedate, 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, except for any liens, encumbrances, equities or claims arising under will pass to the Custody Agreement or otherwise in favor of the several Underwriters.
(c) The Shares to be sold by such Selling Shareholder hereunder, which are represented by the certificates held in custody for such Selling Shareholder, are subject to the interests of the Underwriters and the other Selling Shareholders thereunder, the arrangements made by such Selling Shareholder for such custody are to that extent irrevocable, and the obligations of such Selling Shareholder hereunder shall not be terminated by any act of such Selling Shareholder, by operation of law, death or incapacity of such individual Selling Shareholder or, in the case of a trust, by the death or incapacity of any executor or trustee or the termination of such trust, or the occurrence of any other event.
(d) Upon payment of the purchase price for the Shares to be sold by each Selling Shareholder pursuant to this Agreement, delivery of such Shares, as directed by the Underwriters, to Cede & Co. (“Cede”) or such other nominee as may be designated by The Depository Trust Company (“DTC”), registration of such Shares in the name of Cede or such other nominee, and the crediting of such Shares on the books of DTC to securities accounts (within the meaning of Section 8-501(a) of the UCC) of the Underwriters maintained at DTC (assuming that neither DTC nor any such Underwriter has notice of any “adverse claim,” within the meaning of Section 8-105 of the UCC, to such Shares), (i) DTC shall be a “protected purchaser” of such Shares within the meaning of Section 8-303 of the UCC, (ii) under Section 8-501 of the UCC, the Underwriters will acquire a valid “security entitlement” in respect of such Shares and (iii) no action (whether framed in conversion, replevin, constructive trust, equitable lien, or other theory) based on any “adverse claim,” within the meaning of Section 8-102 of the UCC, to such Shares may be asserted against the Underwriters with respect to such security entitlement. For purposes of this representation, such 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 Memorandum and Articles of Association and applicable law, (B) DTC will be registered as a “clearing corporation,” within the meaning of Section 8-102 of the UCC, (C) appropriate entries to the accounts of the several Underwriters on the records of DTC will have been made pursuant to the UCC, (D) to the extent DTC, or any other securities intermediary which acts as “clearing corporation” with respect to the Shares, maintains any “financial asset” (as defined in Section 8-102(a)(9) of the UCC in a clearing corporation pursuant to Section 8-111 of the UCC, the rules of such clearing corporation may affect the rights of DTC or such securities intermediaries and the ownership interest of the Underwriters), (E) claims of creditors of DTC or any other securities intermediary or clearing corporation may be given priority to the extent set forth in Section 8-511(b) and 8-511(c) of the UCC and (F) if at any time the DTC or other securities intermediary does not have sufficient Shares to satisfy claims of all of its entitlement holders with respect thereto then all holders will share pro rata in the Shares then held by DTC or such securities intermediary.
(e) Such Selling Shareholder has placed in custody under a custody agreement (the “Custody Agreement” and, together with all other similar agreements executed by the other Selling Shareholders, the “Custody Agreements”) with Computershare Inc., 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 Shares Exchange Medallion Program) representing the Shares to be sold by such Selling Shareholder hereunder.
(f) Such Selling Shareholder has duly and irrevocably executed and delivered a power of attorney (the “Power of Attorney” and, together with all other similar agreements executed by the other Selling Shareholders, the “Powers of Attorney”) appointing Xx. Xxxxxxx X. Bettinger, Xx. Xxxxxxxx X. McCall and Xx. Xxxx Xxxx, and each of them, as attorneys-in-fact, with full power of substitution, and with full authority (exercisable by any one or more of them) to execute and deliver this Agreement on behalf of such Selling Shareholders and to take such other action as may be necessary or desirable to carry out the provisions hereof on behalf of such Selling Shareholder.
(g) No stamp, issue, registration, documentary, transfer or other similar taxes and duties, including interest and penalties, are payable in the Republic of Singapore on or in connection with the sale of the Ordinary Shares by such Selling Shareholder or the execution and delivery of this Agreement, other than as described in the most recent Preliminary Prospectus and the Prospectus.
(hb) Such Selling Shareholder has full right, power and authority, corporate or otherwise, authority to enter into this Agreement, ; the Custody Agreement and the Power of Attorney.
(i) This Agreement has been duly and validly authorized, executed and delivered by or on behalf of such Selling Shareholder.
(j) The Power of Attorney and the Custody Agreement have been duly and validly authorized, executed and delivered by or on behalf of such Selling Shareholder and constitute valid and legally binding obligations of such Selling Shareholder enforceable against such Selling Shareholder in accordance with their terms, subject to (i) the effects of bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium and other similar laws relating to or affecting creditors’ rights generally, (ii) general equitable principles (whether considered in a proceeding in equity or at law) and (iii) an implied covenant of good faith and fair dealing.
(k) The execution, delivery and performance of this Agreement, the Custody Agreement and the Power of Attorney by such Selling Shareholder and the consummation by such 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 agreement or other agreement or instrument to which such Selling Shareholder is a party or by which such Selling Shareholder is bound or to which any of the property or assets of such Selling Shareholder is subject, (ii) result in any violation of the provisions of the charter or by-laws (or similar organizational documents) of nor will such Selling Shareholder or (iii) actions result in any violation of any statute or any order, rule or regulation of any court or governmental agency or body having jurisdiction over such Selling Shareholder or the property or assets of such Selling Shareholder.
(l) No consent, approval, authorization or order of, or filing or registration with, any court or governmental agency or body having jurisdiction over such Selling Shareholder or the property or assets of such Selling Shareholder is required for the execution, delivery and performance of this Agreement, the Custody Agreement or the Power of Attorney by such Selling Shareholder and the consummation by such Selling Shareholder of the transactions contemplated hereby and thereby; 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 or foreign securities laws in connection with the purchase and sale distribution of the Shares Stock by the Underwriters, no consent, approval, authorization or order of, or filing or registration with, any such court or governmental agency or body is required for the execution, delivery and performance of this Agreement by such Selling Shareholder and the consummation by such Selling Shareholder of the transactions contemplated hereby.
(ic) The Registration Statement did and the Prospectus and any further amendments or supplements to the Registration Statement or the Prospectus when they become effective or are filed with the Commission, as the case may be, do not and will not, as of the Effective Date, 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 or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading; (ii) provided that no representation or warranty is made as to information contained in or omitted from the Registration Statement or the Prospectus will not, as of its date and on the applicable Delivery Date, contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading; (iii) the Pricing Disclosure Package did not, as of the Applicable Time, contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading; and (iv) each Issuer Free Writing Prospectus (including without limitation, any road show that is a free writing prospectus under Rule 433), if any, when considered together with the Pricing Disclosure Package as of the Applicable Time, did not contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, In the light of the circumstances under which they were made, not misleading; provided that the representations and warranties in the foregoing clauses (i) through (iv) are made only as to statements or omissions made in reliance upon and in conformity with written information furnished to the Company through the Representatives by or on behalf of such Selling Shareholder any Underwriter specifically for use in the preparation of the Registration Statement or such other documentsinclusion therein.
(nd) Such 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, is familiar with the Registration Statement and the Prospectus (as amended or supplemented) and has no knowledge of any material fact, condition or information not disclosed in the Registration Statement, as of the effective date, or the Prospectus (or any amendment or supplement thereto), as of the applicable filing date, which has adversely affected or may adversely affect the business of the Company and is not prompted to sell shares of Ordinary Shares Common Stock by any information concerning the Company that which is not set forth in the Registration Statement, the Pricing Disclosure Package Statement and the Prospectus.
(oe) Such 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. Any certificate signed by any officer of any Selling Shareholder and delivered to the Representatives or counsel for the Underwriters in connection with the offering shares of the Shares shall be deemed a representation and warranty by such Selling Shareholder, as to matters covered thereby, to each UnderwriterStock.
Appears in 2 contracts
Samples: Underwriting Agreement (Kendle International Inc), Underwriting Agreement (Kendle International Inc)
Representations, Warranties and Agreements of the Selling Shareholders. Except with respect to Section 2(n) which does not apply to Bali Investments S.àr.l, Seletar Investments Pte Ltd, Geyser Investment Pte. Ltd. and Capstone Equity Investors LLC, each Each Selling Shareholder, Shareholder severally and not jointly, represents, warrants and agrees with each of the Underwriters solely with respect to itself that:
(a) Neither such Selling Shareholder nor any person acting on behalf of such 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) Such Selling Shareholder has, or and immediately prior to any Delivery the Additional Closing Date on which such Selling Shareholder is selling Shares, such Selling Shareholder will have, good and valid title to, or a valid “security entitlement” within to the meaning of Section 8-501 of the New York Uniform Commercial Code (the “UCC”) in respect of, the Option Shares to be sold by such Selling Shareholder hereunder on such Delivery Datedate, free and clear of all liensLiens (other than any Liens placed thereon by the Underwriters); and upon delivery of such Option Shares and payment therefor pursuant hereto, encumbrancesgood and valid title to such Option Shares, equities or claimsfree and clear of all Liens (other than any Liens placed thereon by the Underwriters), except for any liens, encumbrances, equities or claims arising under will pass to the Custody Agreement or otherwise in favor of the several Underwriters.
(c) The Shares to be sold by such Selling Shareholder hereunder, which are represented by the certificates held in custody for such Selling Shareholder, are subject to the interests of the Underwriters and the other Selling Shareholders thereunder, the arrangements made by such Selling Shareholder for such custody are to that extent irrevocable, and the obligations of such Selling Shareholder hereunder shall not be terminated by any act of such Selling Shareholder, by operation of law, death or incapacity of such individual Selling Shareholder or, in the case of a trust, by the death or incapacity of any executor or trustee or the termination of such trust, or the occurrence of any other event.
(d) Upon payment of the purchase price for the Shares to be sold by each Selling Shareholder pursuant to this Agreement, delivery of such Shares, as directed by the Underwriters, to Cede & Co. (“Cede”) or such other nominee as may be designated by The Depository Trust Company (“DTC”), registration of such Shares in the name of Cede or such other nominee, and the crediting of such Shares on the books of DTC to securities accounts (within the meaning of Section 8-501(a) of the UCC) of the Underwriters maintained at DTC (assuming that neither DTC nor any such Underwriter has notice of any “adverse claim,” within the meaning of Section 8-105 of the UCC, to such Shares), (i) DTC shall be a “protected purchaser” of such Shares within the meaning of Section 8-303 of the UCC, (ii) under Section 8-501 of the UCC, the Underwriters will acquire a valid “security entitlement” in respect of such Shares and (iii) no action (whether framed in conversion, replevin, constructive trust, equitable lien, or other theory) based on any “adverse claim,” within the meaning of Section 8-102 of the UCC, to such Shares may be asserted against the Underwriters with respect to such security entitlement. For purposes of this representation, such 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 Memorandum and Articles of Association and applicable law, (B) DTC will be registered as a “clearing corporation,” within the meaning of Section 8-102 of the UCC, (C) appropriate entries to the accounts of the several Underwriters on the records of DTC will have been made pursuant to the UCC, (D) to the extent DTC, or any other securities intermediary which acts as “clearing corporation” with respect to the Shares, maintains any “financial asset” (as defined in Section 8-102(a)(9) of the UCC in a clearing corporation pursuant to Section 8-111 of the UCC, the rules of such clearing corporation may affect the rights of DTC or such securities intermediaries and the ownership interest of the Underwriters), (E) claims of creditors of DTC or any other securities intermediary or clearing corporation may be given priority to the extent set forth in Section 8-511(b) and 8-511(c) of the UCC and (F) if at any time the DTC or other securities intermediary does not have sufficient Shares to satisfy claims of all of its entitlement holders with respect thereto then all holders will share pro rata in the Shares then held by DTC or such securities intermediary.
(eb) Such Selling Shareholder has placed in custody under the full right, power and authority to enter into this Agreement and a custody agreement Power of Attorney and Custody Agreement (the “Custody "Selling Shareholder Agreement” " and, together with all other similar agreements executed by the other Selling Shareholders, the “Custody "Selling Shareholder Agreements”") with Computershare Inc.and to sell, 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 Shares Exchange Medallion Program) representing transfer and deliver the Shares to be sold by such Selling Shareholder hereunder.
(f) Such Selling Shareholder has duly and irrevocably executed and delivered a power of attorney (; the “Power of Attorney” and, together with all other similar agreements executed by the other Selling Shareholders, the “Powers of Attorney”) appointing Xx. Xxxxxxx X. Bettinger, Xx. Xxxxxxxx X. McCall and Xx. Xxxx Xxxx, and each of them, as attorneys-in-fact, with full power of substitution, and with full authority (exercisable by any one or more of them) to execute and deliver this Agreement on behalf of such Selling Shareholders and to take such other action as may be necessary or desirable to carry out the provisions hereof on behalf of such Selling Shareholder.
(g) No stamp, issue, registration, documentary, transfer or other similar taxes and duties, including interest and penalties, are payable in the Republic of Singapore on or in connection with the sale of the Ordinary Shares by such Selling Shareholder or the execution and delivery of this Agreement, other than as described in the most recent Preliminary Prospectus and the Prospectus.
(h) Such Selling Shareholder has full right, power and authority, corporate or otherwise, to enter into this Agreement, the Custody Agreement and the Power of Attorney.
(i) This Agreement has been duly and validly authorized, executed and delivered by or on behalf of such Selling Shareholder.
(j) The Power of Attorney and the Custody Agreement have been duly and validly authorized, executed and delivered by or on behalf of such Selling Shareholder and constitute valid and legally binding obligations of such Selling Shareholder enforceable against such Selling Shareholder in accordance with their terms, subject to (i) the effects of bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium and other similar laws relating to or affecting creditors’ rights generally, (ii) general equitable principles (whether considered in a proceeding in equity or at law) and (iii) an implied covenant of good faith and fair dealing.
(k) The execution, delivery and performance of this Agreement, the Custody Agreement and the Power of Attorney Selling Shareholder Agreement by such Selling Shareholder and the consummation by such 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 agreement or other agreement or instrument to which such Selling Shareholder is a party or by which such Selling Shareholder is bound or to which any of the property or assets of such Selling Shareholder is subject, (ii) result in any violation of the provisions of the charter or by-laws (or similar organizational documents) of nor will such Selling Shareholder or (iii) actions result in any violation of any statute or any law, statute, order, rule or regulation of any court or governmental agency or body having jurisdiction over such Selling Shareholder or the property or assets of such Selling Shareholder.
(l) No consent, approval, authorization or order of, or filing or registration with, any court or governmental agency or body having jurisdiction over such Selling Shareholder or the property or assets of such Selling Shareholder is required for the execution, delivery and performance of this Agreement, the Custody Agreement or the Power of Attorney by such Selling Shareholder and the consummation by such Selling Shareholder of the transactions contemplated hereby and thereby; and, except for the registration of the Option Shares under the Securities Act and such consents, approvals, authorizations, registrations or qualifications as may be required under the Exchange Act and or applicable state securities or foreign securities "Blue Sky" laws in connection with the purchase and sale distribution of the Shares by the Underwriters, no consent, approval, authorization or order of, or filing or registration with, any such court or governmental agency or body is required for the execution, delivery and performance of this Agreement and the Selling Shareholder Agreement by such Selling Shareholder and the consummation by such Selling Shareholder of the transactions contemplated hereby and thereby.
(ic) The information with respect to such Selling Shareholder in the Registration Statement did notand the Prospectus, as of the Effective Dateincluding any amendments or supplements thereto, 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; (ii) the Prospectus will not, as of its date and on the applicable Delivery Date, contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, misleading in the light of the circumstances under which they were made, not misleading; .
(iiid) the Pricing Disclosure Package did not, as of the Applicable Time, contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading; and (iv) each Issuer Free Writing Prospectus (including without limitation, any road show that is a free writing prospectus under Rule 433), if any, when considered together with the Pricing Disclosure Package as of the Applicable Time, did not contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, In the light of the circumstances under which they were made, not misleading; provided Such Selling Shareholder has no actual knowledge that the representations and warranties in the foregoing clauses (i) through (iv) are made only as to statements or omissions made in reliance upon and in conformity with written information furnished to of the Company by or on behalf of such Selling Shareholder specifically for use contained in the preparation of Section 1 hereof are not true and correct in all material respects, is familiar with the Registration Statement and the Prospectus (as amended or such other documents.
supplemented) and has no actual knowledge of any material fact, condition or information not disclosed in the Registration Statement, as of the date thereof, or the Prospectus (n) Such Selling Shareholder or any amendment or supplement thereto), as of the applicable filing date, which has had or would have a Material Adverse Effect and is not prompted to sell shares of Ordinary Option Shares by any materially adverse information concerning the Company that or any Subsidiary which is not set forth in the Registration Statement, the Pricing Disclosure Package Statement and the Prospectus.
(oe) Such 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. Any certificate signed by any officer of any .
(f) Such Selling Shareholder has duly executed and delivered delivered, in the form heretofore furnished to the Representatives Representatives, the Selling Shareholder Agreement irrevocably appointing _________ and __________, or counsel for any of them, as attorneys-in-fact (the "Attorneys-in-Fact"), and [Mellon Investor Services LLC], as custodian (the "Custodian"); the Custodian is authorized to deliver the Shares to be sold by such Selling Shareholder hereunder and to accept payment therefor; and each Attorney-in-Fact is authorized to execute and deliver this Agreement and the certificate referred to in Section 10(g), to sell, assign and transfer to the Underwriters in connection with the offering of the Shares shall to be deemed a representation and warranty sold by such Selling Shareholder hereunder, to determine the purchase price to be paid by the Underwriters to such Selling Shareholder, as to matters covered therebyprovided in Section 3 hereof, to authorize the delivery of the Shares to be sold by such Selling Shareholder hereunder, to accept payment therefor and otherwise to act on behalf of such Selling Shareholder in connection with this Agreement.
(g) Such Selling Shareholder has irrevocably placed in custody with the Custodian certificates, in suitable form for transfer by delivery or accompanied by duly executed instruments of transfer or assignment in blank with signatures guaranteed, for all of the Shares to be sold by such Selling Shareholder pursuant to this Agreement or, pursuant to the Custody Agreement, has irrevocably committed to do so prior to the Closing Date, in each Underwritercase with irrevocable instructions to deliver such Shares to the Underwriter pursuant to this Agreement.
(h) Neither such Selling Shareholder nor any of its affiliates directly, or indirectly through one or more intermediaries, controls, or is controlled by, or is under common control with, or has any other association with (within the meaning of Article I, Section (ee) of the By-laws of the National Association of Securities Dealers, Inc. (the "NASD")), any member firm of the NASD.
Appears in 1 contract
Samples: Underwriting Agreement (General Maritime Ship Holdings LTD)
Representations, Warranties and Agreements of the Selling Shareholders. Except with respect to Section 2(n) which does not apply to Bali Investments S.àr.l, Seletar Investments Pte Ltd, Geyser Investment Pte. Ltd. and Capstone Equity Investors LLC, each Each Selling Shareholder, severally and not jointly, represents, warrants and agrees that:
(a) Neither such the Selling Shareholder nor any person acting on behalf of such 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) Such The Selling Shareholder has, or and immediately prior to any Delivery Date on which such the Selling Shareholder is selling Shares, such the Selling Shareholder will have, good and valid title to, or a valid “"security entitlement” " within the meaning of Section 8-501 of the New York Uniform Commercial Code (the “"UCC”") in respect of, the Shares to be sold by such the Selling Shareholder hereunder on such Delivery Date, free and clear of all liens, encumbrances, equities or claims, except for other than pursuant to this Agreement; and upon delivery of such Shares and payment of the purchase price therefor as herein contemplated, assuming each Underwriters has no notice of any adverse claim, each Underwriter will receive good and marketable title to such Shares free and clear of all liens, encumbrances, equities or claims arising under the Custody Agreement or otherwise in favor of the Underwritersclaims.
(c) The Shares to be sold by such the Selling Shareholder hereunder, which are represented by the certificates held in custody for such Selling Shareholder, are hereunder is subject to the interests interest of the Underwriters and the other Selling Shareholders thereunder, the arrangements made by such Selling Shareholder for such custody are to that extent irrevocableUnderwriters, and the obligations of such the Selling Shareholder hereunder shall not be terminated by any act of such the Selling Shareholder, by operation of law, death or incapacity of such individual Selling Shareholder or, in the case of a trust, by the death or incapacity of any executor or trustee or the termination of such trust, law or the occurrence of any other event.
(d) Upon payment of the purchase price for the Shares to be sold by each Selling Shareholder pursuant to this Agreement, delivery of such Shares, as directed by the Underwriters, to Cede & Co. (“Cede”) or such other nominee as may be designated by The Depository Trust Company (“DTC”), registration of such Shares in the name of Cede or such other nominee, and the crediting of such Shares on the books of DTC to securities accounts (within the meaning of Section 8-501(a) of the UCC) of the Underwriters maintained at DTC (assuming that neither DTC nor any such Underwriter has notice of any “adverse claim,” within the meaning of Section 8-105 of the UCC, to such Shares), (i) DTC shall be a “protected purchaser” of such Shares within the meaning of Section 8-303 of the UCC, (ii) under Section 8-501 of the UCC, the Underwriters will acquire a valid “security entitlement” in respect of such Shares and (iii) no action (whether framed in conversion, replevin, constructive trust, equitable lien, or other theory) based on any “adverse claim,” within the meaning of Section 8-102 of the UCC, to such Shares may be asserted against the Underwriters with respect to such security entitlement. For purposes of this representation, such 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 Memorandum and Articles of Association and applicable law, (B) DTC will be registered as a “clearing corporation,” within the meaning of Section 8-102 of the UCC, (C) appropriate entries to the accounts of the several Underwriters on the records of DTC will have been made pursuant to the UCC, (D) to the extent DTC, or any other securities intermediary which acts as “clearing corporation” with respect to the Shares, maintains any “financial asset” (as defined in Section 8-102(a)(9) of the UCC in a clearing corporation pursuant to Section 8-111 of the UCC, the rules of such clearing corporation may affect the rights of DTC or such securities intermediaries and the ownership interest of the Underwriters), (E) claims of creditors of DTC or any other securities intermediary or clearing corporation may be given priority to the extent set forth in Section 8-511(b) and 8-511(c) of the UCC and (F) if at any time the DTC or other securities intermediary does not have sufficient Shares to satisfy claims of all of its entitlement holders with respect thereto then all holders will share pro rata in the Shares then held by DTC or such securities intermediary.
(e) Such Selling Shareholder has placed in custody under a custody agreement (the “Custody Agreement” and, together with all other similar agreements executed by the other Selling Shareholders, the “Custody Agreements”) with Computershare Inc., 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 Shares Exchange Medallion Program) representing the Shares to be sold by such Selling Shareholder hereunder.
(f) Such Selling Shareholder has duly and irrevocably executed and delivered a power of attorney (the “Power of Attorney” and, together with all other similar agreements executed by the other Selling Shareholders, the “Powers of Attorney”) appointing Xx. Xxxxxxx X. Bettinger, Xx. Xxxxxxxx X. McCall and Xx. Xxxx Xxxx, and each of them, as attorneys-in-fact, with full power of substitution, and with full authority (exercisable by any one or more of them) to execute and deliver this Agreement on behalf of such Selling Shareholders and to take such other action as may be necessary or desirable to carry out the provisions hereof on behalf of such Selling Shareholder.
(g) No stamp, issue, registration, documentary, transfer or other similar taxes and duties, including interest and penalties, are payable in the Republic of Singapore on or in connection with the sale of the Ordinary Shares by such Selling Shareholder or the execution and delivery of this Agreement, other than as described in the most recent Preliminary Prospectus and the Prospectus.
(h) Such Selling Shareholder has full right, power and authority, corporate or otherwise, to enter into this Agreement, the Custody Agreement and the Power of Attorney.
(ie) This Agreement has been duly and validly authorized, executed and delivered by or on behalf of such the Selling Shareholder.
(j) The Power of Attorney and the Custody Agreement have been duly and validly authorized, executed and delivered by or on behalf of such Selling Shareholder and constitute valid and legally binding obligations of such Selling Shareholder enforceable against such Selling Shareholder in accordance with their terms, subject to (i) the effects of bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium and other similar laws relating to or affecting creditors’ rights generally, (ii) general equitable principles (whether considered in a proceeding in equity or at law) and (iii) an implied covenant of good faith and fair dealing.
(kf) The execution, delivery and performance of this Agreement, Agreement by the Custody Agreement and the Power of Attorney by such Selling Shareholder and the consummation by such 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 such the Selling Shareholder is a party or by which such the Selling Shareholder is bound or to which any of the property or assets of such the Selling Shareholder is subject, (ii) result in any violation of the provisions of the charter or charter, by-laws or deed of trust (or similar organizational documents) of such 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 such the Selling Shareholder or the property or assets of such the Selling Shareholder.
(lg) No consent, approval, authorization or order of, or filing or registration with, any court or governmental agency or body having jurisdiction over such the Selling Shareholder or the property or assets of such the Selling Shareholder is required for the execution, delivery and performance of this Agreement, the Custody Agreement or the Power of Attorney by such Selling Shareholder and the consummation by such Selling Shareholder of the transactions contemplated hereby and thereby, except for the registration of the Shares under the Securities Act and such consents, approvals, authorizations, registrations or qualifications as may be required under the Exchange Act and applicable state or foreign securities laws in connection with the purchase and sale of the Shares by the UnderwritersSelling Shareholder.
(ih) 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; (ii) the Prospectus will not, as of its date and on the applicable Delivery Date, contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading; (iii) the Pricing Disclosure Package did not, as of the Applicable Time, contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading; and (iv) each Issuer Free Writing Prospectus (including without limitation, any road show that is a free writing prospectus under Rule 433), if any, when considered together with the Pricing Disclosure Package as of the Applicable Time, did not contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, In the light of the circumstances under which they were made, not misleading; provided that the representations and warranties in the foregoing clauses (i) through (iv) are made only as to statements or omissions made in reliance upon and in conformity with written information furnished to the Company by or on behalf of such Selling Shareholder specifically for use in the preparation of the Registration Statement or such other documents.
(n) Such Selling Shareholder is not prompted to sell shares of Ordinary Shares by any information concerning the Company that is not set forth in the Registration Statement, the Pricing Disclosure Package and the Prospectus.
(o) Such 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 of the Shares.
(i) Such Selling Shareholder has not distributed and will not distribute, prior to the later of the last Delivery Date and the completion of the Underwriters' distribution of the Shares, any offering material in connection with the offering and sale of the Shares, including any free writing prospectus.
(j) Other than as disclosed in the most recent Preliminary Prospectus, such Selling Shareholder does not have any registration or other similar rights to have any equity or debt securities registered for sale by the Company under the Registration Statement or included in this offering.
(k) Such Selling Shareholder does not have, or has waived prior to the date hereof, any preemptive right, co-sale right or right of first refusal or other similar right to purchase any of the Shares that are to be sold by the Company to the Underwriters pursuant to this Agreement; and such Selling Shareholder does not own any warrants, options or similar rights to acquire, and does not have any right or arrangement to acquire, any capital shares, right, warrants, options or other securities from the Company, other than those described in the most recent Preliminary Prospectus.
(l) Except as disclosed in the most recent Preliminary Prospectus, there are no contracts, agreements or understandings between such Selling Shareholder and any person that would give rise to a valid claim against the Company or any Underwriter for a brokerage commission, finder's fee or other like payment in connection with this offering.
(m) The Shares delivered at each Delivery Date by such Selling Shareholder will be freely transferable by such Selling Shareholder to or for the respective accounts of the several Underwriters and (to the extent described in the most recent Preliminary Prospectus) to the initial purchasers thereof.
(n) No 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 government of the PRC or Canada, or any political subdivision or taxing authority thereof or therein, in connection with the sale and delivery by such Selling Shareholder of the Shares to or for the respective accounts of the Underwriters or the sale and delivery by the Underwriters of the Shares to the initial purchasers thereof.
(o) Such Selling Shareholder has reviewed the Registration Statement and the Prospectus and neither the Prospectus nor any amendments or supplements thereto (including any prospectus wrapper) under the heading "Principal and Selling Shareholders" includes any untrue statement of a material fact relating to such Selling Shareholder or omits to state a material fact necessary in order to make the statements therein relating to such Selling Shareholder, in the light of the circumstances under which they were made, not misleading. Such Selling Shareholder is not prompted to sell the Shares by any information concerning the Company that is not set forth in the Registration Statement, the Pricing Disclosure Package and the Prospectus. Any certificate signed by any officer of any Selling Shareholder and delivered to the Representatives or counsel for the Underwriters in connection with the offering of the Shares this Agreement shall be deemed a representation and warranty by such Selling Shareholder, as to matters covered thereby, to each Underwriter.
Appears in 1 contract
Representations, Warranties and Agreements of the Selling Shareholders. Except with respect to Section 2(n) which does not apply to Bali Investments S.àr.l, Seletar Investments Pte Ltd, Geyser Investment Pte. Ltd. and Capstone Equity Investors LLC, each Each Selling Shareholder, severally and not jointly, Shareholder represents, warrants and agrees that:
(a) Neither such Selling Shareholder nor any person acting on behalf of such 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) Such Selling Shareholder has, or and immediately prior to any the applicable Delivery Date on which such Selling Shareholder is selling Shares, such Selling Shareholder will have, good and valid title to, or a valid “security entitlement” within the meaning of Section 8-501 of the New York Uniform Commercial Code (the “UCC”) in respect of, the Shares shares of Stock to be sold by such Selling Shareholder hereunder on such Delivery Datehereunder, free and clear of all liens, encumbrances, equities or claims, except for any liens, encumbrances, equities or claims arising under the Custody Agreement or otherwise in favor of the Underwriters.;
(cb) The Shares Upon payment for the Stock to be sold by such Selling Shareholder hereunder, which are represented by the certificates held in custody for such Selling Shareholder, are subject to the interests of the Underwriters and the other Selling Shareholders thereunder, the arrangements made by such Selling Shareholder for such custody are to that extent irrevocable, and the obligations of such Selling Shareholder hereunder shall not be terminated by any act of such Selling Shareholder, by operation of law, death or incapacity of such individual Selling Shareholder or, in the case of a trust, by the death or incapacity of any executor or trustee or the termination of such trust, or the occurrence of any other event.
(d) Upon payment of the purchase price for the Shares to be sold by each Selling Shareholder pursuant to this Agreement, delivery of such SharesStock, as directed by the Underwriters, to Cede & Co. (“Cede”) or such other nominee as may be designated by The Depository Trust Company (“DTC”), registration of such Shares Stock in the name of Cede or such other nominee, nominee and the crediting of such Shares on the books of DTC to securities accounts (within the meaning of Section 8-501(a) of the UCC) of the Underwriters maintained at DTC (assuming that neither DTC nor any such Underwriter has notice of any “adverse claim,” claim (within the meaning of Section 8-105 of the UCC, UCC to such SharesStock), (i) DTC shall be a “protected purchaser” of such Shares Stock within the meaning of Section 8-303 of the UCC, (ii) under Section 8-501 of the UCC, the Underwriters will acquire a valid “security entitlement” entitlement in respect of such Shares Stock and (iii) no action (whether framed in conversion, replevin, constructive trust, equitable lien, or other theory) based on any “adverse claim,” ”, within the meaning of Section 8-102 of the UCC, to such Shares Stock may be asserted against the Underwriters with respect to such security entitlement. For purposes of this representation, such 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 Memorandum and Articles certificate of Association incorporation, bylaws and applicable law, (B) DTC will be registered as a “clearing corporation,” within the meaning of Section 8-102 of the UCC, UCC and (C) appropriate entries to the accounts of the several Underwriters on the records of DTC will have been made pursuant to the UCC, (D) to the extent DTC, or any other securities intermediary which acts as “clearing corporation” with respect to the Shares, maintains any “financial asset” (as defined in Section 8-102(a)(9) of the UCC in a clearing corporation pursuant to Section 8-111 of the UCC, the rules of such clearing corporation may affect the rights of DTC or such securities intermediaries and the ownership interest of the Underwriters), (E) claims of creditors of DTC or any other securities intermediary or clearing corporation may be given priority to the extent set forth in Section 8-511(b) and 8-511(c) of the UCC and (F) if at any time the DTC or other securities intermediary does not have sufficient Shares to satisfy claims of all of its entitlement holders with respect thereto then all holders will share pro rata in the Shares then held by DTC or such securities intermediary.
(e) Such Selling Shareholder has placed in custody under a custody agreement (the “Custody Agreement” and, together with all other similar agreements executed by the other Selling Shareholders, the “Custody Agreements”) with Computershare Inc., 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 Shares Exchange Medallion Program) representing the Shares to be sold by such Selling Shareholder hereunder.
(f) Such Selling Shareholder has duly and irrevocably executed and delivered a power of attorney (the “Power of Attorney” and, together with all other similar agreements executed by the other Selling Shareholders, the “Powers of Attorney”) appointing Xx. Xxxxxxx X. Bettinger, Xx. Xxxxxxxx X. McCall and Xx. Xxxx Xxxx, and each of them, as attorneys-in-fact, with full power of substitution, and with full authority (exercisable by any one or more of them) to execute and deliver this Agreement on behalf of such Selling Shareholders and to take such other action as may be necessary or desirable to carry out the provisions hereof on behalf of such Selling Shareholder.
(g) No stamp, issue, registration, documentary, transfer or other similar taxes and duties, including interest and penalties, are payable in the Republic of Singapore on or in connection with the sale of the Ordinary Shares by such Selling Shareholder or the execution and delivery of this Agreement, other than as described in the most recent Preliminary Prospectus and the Prospectus.
(hc) Such Selling Shareholder has full right, power and authority, corporate or otherwise, to enter into this Agreement, the Custody Agreement and the Power of Attorney.
(i) This Agreement has been duly and validly authorized, executed and delivered by or on behalf of such Selling Shareholder.
(j) The Power of Attorney and the Custody Agreement have been duly and validly authorized, executed and delivered by or on behalf of such Selling Shareholder and constitute valid and legally binding obligations of such Selling Shareholder enforceable against such Selling Shareholder in accordance with their terms, subject to (i) the effects of bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium and other similar laws relating to or affecting creditors’ rights generally, (ii) general equitable principles (whether considered in a proceeding in equity or at law) and (iii) an implied covenant of good faith and fair dealing.
(k) . The execution, delivery and performance of this Agreement, the Custody Agreement and the Power of Attorney by such Selling Shareholder and the consummation by such 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 such Selling Shareholder is a party or by which such Selling Shareholder is bound or to which any of the property or assets of such Selling Shareholder is subject, except for such conflicts, breaches, violations, impositions or defaults as could not, individually or in the aggregate, reasonably be expected to (A) have a Material Adverse Effect or (B) materially affect the ability of such Selling Shareholder to fulfill its obligations under this Agreement and consummate the transactions contemplated hereby, (ii) result in any violation of the provisions of the charter or by-laws (or similar organizational documents) of such 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 such Selling Shareholder or the property or assets of such Selling Shareholder.
(ld) No Except for the registration of the 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 and the rules and regulations of the National Association of Securities Dealers in connection with the purchase and sale of the Stock by the Underwriters, no consent, approval, authorization or order of, or filing or registration with, any court or governmental agency or body having jurisdiction over such Selling Shareholder or the property or assets of such Selling Shareholder is required for the execution, delivery and performance of this Agreement, the Custody Agreement or the Power of Attorney by such Selling Shareholder and the consummation by such Selling Shareholder of the transactions contemplated hereby and thereby, except for the registration of the Shares under the Securities Act and such consents, approvals, authorizations, registrations or qualifications as may be required under the Exchange Act and applicable state or foreign securities laws in connection with the purchase and sale of the Shares by the Underwritershereby.
(ie) The Registration Statement did notThis Agreement has been duly and validly authorized, 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; (ii) the Prospectus will not, as of its date executed and on the applicable Delivery Date, contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading; (iii) the Pricing Disclosure Package did not, as of the Applicable Time, contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading; and (iv) each Issuer Free Writing Prospectus (including without limitation, any road show that is a free writing prospectus under Rule 433), if any, when considered together with the Pricing Disclosure Package as of the Applicable Time, did not contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, In the light of the circumstances under which they were made, not misleading; provided that the representations and warranties in the foregoing clauses (i) through (iv) are made only as to statements or omissions made in reliance upon and in conformity with written information furnished to the Company delivered by or on behalf of such Selling Shareholder specifically for use in the preparation of the Registration Statement or such other documentsShareholder.
(n) Such Selling Shareholder is not prompted to sell shares of Ordinary Shares by any information concerning the Company that is not set forth in the Registration Statement, the Pricing Disclosure Package and the Prospectus.
(of) Such Selling Shareholder has not taken and will not take, directly or indirectly, any action that is designed to or that which has constituted or that which could reasonably be expected to cause or result in the stabilization or manipulation of the price of any security of the Company to facilitate the sale or resale of the Sharesshares of the Stock. Any certificate signed by any officer or on behalf of any Selling Shareholder and delivered to the Representatives or counsel for the Underwriters in connection with the offering of the Shares Stock shall be deemed a representation and warranty by such Selling Shareholder, as to matters covered thereby, to each Underwriter.
Appears in 1 contract
Samples: Underwriting Agreement (Universal American Financial Corp)
Representations, Warranties and Agreements of the Selling Shareholders. Except with respect to Section 2(n) which does not apply to Bali Investments S.àr.l, Seletar Investments Pte Ltd, Geyser Investment Pte. Ltd. and Capstone Equity Investors LLC, each Each Selling Shareholder, severally and not jointly, represents, warrants and agrees that:
(a) Neither such Selling Shareholder nor any person acting on behalf of such 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), relating to the Shares.
(b) Such Selling Shareholder has, or and immediately prior to any the Delivery Date on which such Selling Shareholder is selling SharesDate, such Selling Shareholder will have, good and valid title to, or a valid “security entitlement” within the meaning of Section 8-501 of the New York Uniform Commercial Code (the “UCC”) in respect of, the Shares to be sold by such Selling Shareholder hereunder on such Delivery Date, free and clear of all liens, encumbrances, equities or claims, except for any liens, encumbrances, equities or claims arising under the Custody Agreement or otherwise in favor of the UnderwritersUnderwriter.
(c) The Shares to be sold by such Selling Shareholder hereunder, which are represented by the certificates held in custody for such Selling Shareholderescrow through a book entry account, are subject to the interests interest of the Underwriters Underwriter and the other Selling Shareholders thereunder, the arrangements made by such Selling Shareholder for such custody are to that extent irrevocable, and the obligations of such Selling Shareholder hereunder shall not be terminated by any act of such Selling Shareholder, by operation of law, by the death or incapacity of such any individual Selling Shareholder or, in the case of a trust, by the death or incapacity of any executor or trustee or the termination of such trust, or the occurrence of any other event.
(d) Upon payment of the purchase price for the Shares to be sold by each such Selling Shareholder pursuant to this Agreement, delivery and the crediting of a financial asset representing such Shares, as directed by Shares on the Underwriters, to Cede & Co. (“Cede”) or such other nominee as may be designated by books of The Depository Trust Company (“DTC”), registration of such Shares in the name of Cede or such other nominee, and the crediting of such Shares on the books of DTC ) to a securities accounts (within the meaning of Section 8-501(a) account of the UCC) of the Underwriters maintained at DTC Representative (assuming that neither DTC nor any such the Underwriter has notice of any “adverse claim,” claim (within the meaning of Section 8-105 of the UCC, ) to such Shares), (i) DTC shall be a “protected purchaser” of such Shares within the meaning of Section 8-303 of the UCC, (ii) under Section 8-501 of the UCC, the Underwriters each Representative will acquire a valid “security entitlement” entitlement in respect of such Shares and (iii) no action (whether framed in conversion, replevin, constructive trust, equitable lien, or other theory) based on any “adverse claim,” within the meaning of Section 8-102 of the UCC, to such Shares may be asserted against the Underwriters any Representative with respect to such security entitlement. For purposes of this representation, such Selling Shareholder may assume that when such payment, delivery and crediting occur, (A) such Shares will have been registered in the name of Cede & Co. or another nominee designated by DTC, in each case on the Company’s share registry in accordance with its Memorandum and Articles of Association and applicable law, (B) DTC will be registered as a “clearing corporation,” within the meaning of Section 8-102 of the UCC, (C) appropriate entries entry to the accounts account of the several Underwriters each Representative on the records of DTC will have been made pursuant to the UCC, (D) to the extent DTC, or any other securities intermediary which acts as “clearing corporation” with respect to the Shares, maintains any “financial asset” (as defined in Section 8-102(a)(9) of the UCC UCC) in a clearing corporation pursuant to Section 8-111 of the UCC, the rules of such clearing corporation may affect the rights of DTC or such securities intermediaries and the ownership interest of the Underwriters)Underwriter, (E) claims of creditors of DTC or any other securities intermediary or clearing corporation may be given priority to the extent set forth in Section 8-511(b) and 8-511(c) of the UCC and (F) if at any time the DTC or any other securities intermediary does not have sufficient Shares to satisfy claims of all of its entitlement holders with respect thereto then all holders will share pro rata in the Shares then held by DTC or such securities intermediary.
(e) Such Selling Shareholder Shareholder, if applicable, has placed in custody under a custody agreement (the “Custody Agreement” and, together with all other similar agreements executed by the other Selling Shareholders, the “Custody Agreements”) with the Computershare Inc., 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 Shares Exchange Medallion Program) book entry account representing the Shares to be sold by such Selling Shareholder hereunder.
(f) Such Selling Shareholder has duly and irrevocably executed and delivered a power of attorney (the “Power of Attorney” and, together with all other similar agreements executed by the other Selling Shareholders, the “Powers of Attorney”) appointing Xx. Xxxxxxx X. Bettinger, Xx. Xxxxxxxx X. McCall and Xx. Xxxx Xxxx, and each of them, as attorneys-in-fact, with full power of substitution, and with full authority (exercisable by any one or more of them) to execute and deliver this Agreement on behalf of such Selling Shareholders and to take such other action as may be necessary or desirable to carry out the provisions hereof on behalf of such Selling Shareholder.
(g) No stamp, issue, registration, documentary, transfer or other similar taxes and duties, including interest and penalties, are payable in the Republic of Singapore on or in connection with the sale of the Ordinary Shares by such Selling Shareholder or the execution and delivery of this Agreement, other than as described in the most recent Preliminary Prospectus and the Prospectus.
(h) Such Selling Shareholder has full right, power and authority, corporate or otherwise, to enter into this Agreement, the Custody Agreement and the Power of AttorneyCustody Agreement.
(ig) This Agreement has been duly and validly authorized, executed and delivered by or on behalf of such Selling Shareholder.
(jh) The Power of Attorney and the Custody Agreement have has been duly and validly authorized, executed and delivered by or on behalf of such Selling Shareholder and constitute constitutes a valid and legally binding obligations obligation of such Selling Shareholder enforceable against such Selling Shareholder in accordance with their 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.
(ki) The execution, delivery and performance of this Agreement, Agreement and the Custody Agreement and the Power of Attorney by such Selling Shareholder and the consummation by such 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 such Selling Shareholder is a party or by which such Selling Shareholder is bound or to which any of the property or assets of such Selling Shareholder is subject, (ii) result in any violation of the provisions of the charter or by-laws (or similar organizational documents) of such Selling Shareholder, if such Selling Shareholder is a corporation, or result in any violation of the provisions of the deed of trust (or similar organizational documents) of such Selling Shareholder, if such Selling Shareholder is a trust or (iii) result in any violation of any statute or any order, rule or regulation of any court or governmental agency or body having jurisdiction over such Selling Shareholder or the property or assets of such Selling Shareholder, except in the case of clauses (i) and (iii), to the extent any such conflict, breach, violation or default would not, in the aggregate, reasonably be expected to have a material adverse effect on the performance of this Agreement or the Custody Agreement by such Selling Shareholder or the consummation by such Selling Shareholder of the transactions contemplated hereby and thereby.
(lj) No consent, approval, authorization or order of, or filing or registration with, any court or governmental agency or body having jurisdiction over such Selling Shareholder or the property or assets of such Selling Shareholder is required for the execution, delivery and performance of this Agreement, Agreement or the Custody Agreement or the Power of Attorney by such Selling Shareholder and the consummation by such Selling Shareholder of the transactions contemplated hereby and thereby, except for the registration of the Shares under the Securities Act and such consents, approvals, authorizations, registrations or qualifications as may be required under the Exchange Act and applicable state or foreign securities laws in connection with the purchase and sale of the Shares by the UnderwritersUnderwriter.
(i) The Registration Statement did not, as of the Effective Dateapplicable 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; (ii) the Prospectus will not, as of its date and on the applicable Delivery Date, contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading; (iii) the Pricing Disclosure Package did not, as of the Applicable Time, contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading; (iv) the documents incorporated by reference in the Registration Statement, the Pricing Disclosure Package or the Prospectus did not, and any further documents filed and incorporated by reference therein will not, when filed with the Commission, 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; and (ivv) each Issuer Free Writing Prospectus (including without limitation, any road show that is a free writing prospectus under Rule 433), if any, when considered together with the Pricing Disclosure Package as of the Applicable Time, did 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 in the light of the circumstances under which they were made, not misleading; provided that the representations and warranties in the foregoing clauses (i) through (ivv) are made only as to statements or omissions made in reliance upon and in conformity with written information relating to such Selling Shareholder furnished to the Company by or on behalf of such Selling Shareholder (x) specifically for use in the preparation of the Registration Statement or such other documents.
Statement, (ny) Such Selling Shareholder is not prompted to sell shares of Ordinary Shares by any information concerning the Company that is not set forth specifically for inclusion in the Registration Statement, the Pricing Disclosure Package and or the ProspectusProspectus or (z) specifically for inclusion in such other documents.
(ol) Such 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. Any certificate signed by any officer of any Selling Shareholder and delivered to the Representatives Representative or counsel for the Underwriters Underwriter in connection with the offering of the Shares shall be deemed a representation and warranty by such Selling Shareholder, as to matters covered thereby, to each the Underwriter. Any of the foregoing representations and warranties of the Selling Shareholders relating to the Custody Agreement shall, insofar as such representation or warranty relates to the Custody Agreement, not be applicable to a Selling Shareholder who does not execute a Custody Agreement.
Appears in 1 contract
Representations, Warranties and Agreements of the Selling Shareholders. Except with respect to Section 2(n) which does not apply to Bali Investments S.àr.l, Seletar Investments Pte Ltd, Geyser Investment Pte. Ltd. and Capstone Equity Investors LLC, each Each Selling Shareholder, Shareholder severally and not jointly, represents, warrants and agrees solely with respect to itself that:
(a) Neither Such Selling Shareholder (together with such Selling Shareholder nor any person acting on behalf of Shareholder's spouse, if applicable) has, and immediately prior to the Second Delivery Date (as defined in Section 5 hereof), such Selling Shareholder (other thantogether with such Selling Shareholder's spouse, 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) Such Selling Shareholder has, or immediately prior to any Delivery Date on which such Selling Shareholder is selling Shares, such Selling Shareholder will have, good and valid title to, or a valid “security entitlement” within to the meaning of Section 8-501 of the New York Uniform Commercial Code (the “UCC”) in respect of, the Option Shares to be sold by such Selling Shareholder hereunder on such Delivery Datedate, free and clear of all liens, encumbrances, equities or claims; and upon delivery of such Option Shares and payment therefor pursuant hereto, good and valid title to such Option Shares, free and clear of all liens, encumbrances, equities or claims, except for any liens, encumbrances, equities or claims arising under will pass to the Custody Agreement or otherwise in favor of the several Underwriters.
(c) The Shares to be sold by such Selling Shareholder hereunder, which are represented by the certificates held in custody for such Selling Shareholder, are subject to the interests of the Underwriters and the other Selling Shareholders thereunder, the arrangements made by such Selling Shareholder for such custody are to that extent irrevocable, and the obligations of such Selling Shareholder hereunder shall not be terminated by any act of such Selling Shareholder, by operation of law, death or incapacity of such individual Selling Shareholder or, in the case of a trust, by the death or incapacity of any executor or trustee or the termination of such trust, or the occurrence of any other event.
(d) Upon payment of the purchase price for the Shares to be sold by each Selling Shareholder pursuant to this Agreement, delivery of such Shares, as directed by the Underwriters, to Cede & Co. (“Cede”) or such other nominee as may be designated by The Depository Trust Company (“DTC”), registration of such Shares in the name of Cede or such other nominee, and the crediting of such Shares on the books of DTC to securities accounts (within the meaning of Section 8-501(a) of the UCC) of the Underwriters maintained at DTC (assuming that neither DTC nor any such Underwriter has notice of any “adverse claim,” within the meaning of Section 8-105 of the UCC, to such Shares), (i) DTC shall be a “protected purchaser” of such Shares within the meaning of Section 8-303 of the UCC, (ii) under Section 8-501 of the UCC, the Underwriters will acquire a valid “security entitlement” in respect of such Shares and (iii) no action (whether framed in conversion, replevin, constructive trust, equitable lien, or other theory) based on any “adverse claim,” within the meaning of Section 8-102 of the UCC, to such Shares may be asserted against the Underwriters with respect to such security entitlement. For purposes of this representation, such 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 Memorandum and Articles of Association and applicable law, (B) DTC will be registered as a “clearing corporation,” within the meaning of Section 8-102 of the UCC, (C) appropriate entries to the accounts of the several Underwriters on the records of DTC will have been made pursuant to the UCC, (D) to the extent DTC, or any other securities intermediary which acts as “clearing corporation” with respect to the Shares, maintains any “financial asset” (as defined in Section 8-102(a)(9) of the UCC in a clearing corporation pursuant to Section 8-111 of the UCC, the rules of such clearing corporation may affect the rights of DTC or such securities intermediaries and the ownership interest of the Underwriters), (E) claims of creditors of DTC or any other securities intermediary or clearing corporation may be given priority to the extent set forth in Section 8-511(b) and 8-511(c) of the UCC and (F) if at any time the DTC or other securities intermediary does not have sufficient Shares to satisfy claims of all of its entitlement holders with respect thereto then all holders will share pro rata in the Shares then held by DTC or such securities intermediary.
(eb) Such Selling Shareholder has placed in custody under the full right, power and authority to enter into this Agreement and a custody agreement Power of Attorney and Custody Agreement (the “Custody "Selling Shareholder Agreement” " and, together with all other similar agreements executed by the other Selling Shareholders, the “Custody "Selling Shareholder Agreements”") with Computershare Inc.and to sell, 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 Shares Exchange Medallion Program) representing transfer and deliver the Shares to be sold by such Selling Shareholder hereunder.
(f) Such Selling Shareholder has duly and irrevocably executed and delivered a power of attorney (; the “Power of Attorney” and, together with all other similar agreements executed by the other Selling Shareholders, the “Powers of Attorney”) appointing Xx. Xxxxxxx X. Bettinger, Xx. Xxxxxxxx X. McCall and Xx. Xxxx Xxxx, and each of them, as attorneys-in-fact, with full power of substitution, and with full authority (exercisable by any one or more of them) to execute and deliver this Agreement on behalf of such Selling Shareholders and to take such other action as may be necessary or desirable to carry out the provisions hereof on behalf of such Selling Shareholder.
(g) No stamp, issue, registration, documentary, transfer or other similar taxes and duties, including interest and penalties, are payable in the Republic of Singapore on or in connection with the sale of the Ordinary Shares by such Selling Shareholder or the execution and delivery of this Agreement, other than as described in the most recent Preliminary Prospectus and the Prospectus.
(h) Such Selling Shareholder has full right, power and authority, corporate or otherwise, to enter into this Agreement, the Custody Agreement and the Power of Attorney.
(i) This Agreement has been duly and validly authorized, executed and delivered by or on behalf of such Selling Shareholder.
(j) The Power of Attorney and the Custody Agreement have been duly and validly authorized, executed and delivered by or on behalf of such Selling Shareholder and constitute valid and legally binding obligations of such Selling Shareholder enforceable against such Selling Shareholder in accordance with their terms, subject to (i) the effects of bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium and other similar laws relating to or affecting creditors’ rights generally, (ii) general equitable principles (whether considered in a proceeding in equity or at law) and (iii) an implied covenant of good faith and fair dealing.
(k) The execution, delivery and performance of this Agreement, the Custody Agreement and the Power of Attorney Selling Shareholder Agreement by such Selling Shareholder and the consummation by such 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 agreement or other agreement or instrument to which such Selling Shareholder is a party or by which such Selling Shareholder is bound or to which any of the property or assets of such Selling Shareholder is subject, (ii) result in any violation of the provisions of the charter or by-laws (or similar organizational documents) of nor will such Selling Shareholder or (iii) actions result in any violation of any statute or any law, statute, order, rule or regulation of any court or governmental agency or body having jurisdiction over such Selling Shareholder or the property or assets of such Selling Shareholder.
(l) No consent, approval, authorization or order of, or filing or registration with, any court or governmental agency or body having jurisdiction over such Selling Shareholder or the property or assets of such Selling Shareholder is required for the execution, delivery and performance of this Agreement, the Custody Agreement or the Power of Attorney by such Selling Shareholder and the consummation by such Selling Shareholder of the transactions contemplated hereby and thereby; and, except for the registration of the Option Shares under the Securities Act and such consents, approvals, authorizations, registrations or qualifications as may be required under the Exchange Act and or applicable state securities or foreign securities "Blue Sky" laws in connection with the purchase and sale distribution of the Shares by the Underwriters, no consent, approval, authorization or order of, or filing or registration with, any such court or governmental agency or body is required for the execution, delivery and performance of this Agreement and the Selling Shareholder Agreement by such Selling Shareholder and the consummation by such Selling Shareholder of the transactions contemplated hereby and thereby.
(ic) The information with respect to such Selling Shareholder in the Registration Statement did notand the Prospectus, as of the Effective Dateincluding any amendments or supplements thereto, 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; .
(iid) the Prospectus will not, as of its date and on the applicable Delivery Date, contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading; (iii) the Pricing Disclosure Package did not, as of the Applicable Time, contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading; and (iv) each Issuer Free Writing Prospectus (including without limitation, any road show that is a free writing prospectus under Rule 433), if any, when considered together with the Pricing Disclosure Package as of the Applicable Time, did not contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, In the light of the circumstances under which they were made, not misleading; provided Such Selling Shareholder has no actual knowledge that the representations and warranties in the foregoing clauses (i) through (iv) are made only as to statements or omissions made in reliance upon and in conformity with written information furnished to of the Company by or on behalf of such Selling Shareholder specifically for use contained in the preparation of Section 1 hereof are not true and correct in all material respects, is familiar with the Registration Statement and the Prospectus (as amended or such other documents.
supplemented) and has no actual knowledge of any material fact, condition or information not disclosed in the Registration Statement, as of the date thereof, or the Prospectus (n) Such Selling Shareholder or any amendment or supplement thereto), as of the applicable filing date, which has had or would have a Material Adverse Effect and is not prompted to sell shares of Ordinary Option Shares by any materially adverse information concerning the Company that or any Subsidiary which is not set forth in the Registration Statement, the Pricing Disclosure Package Statement and the Prospectus.
(oe) Such 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. Any certificate signed by any officer of any .
(f) Such Selling Shareholder has duly executed and delivered delivered, in the form heretofore furnished to the Representatives Representatives, the Selling Shareholder Agreement irrevocably appointing _________ and __________, or counsel for any of them, as attorneys-in-fact (the "Attorneys-in-Fact"), and [the Company's transfer agent], as custodian (the "Custodian"); the Custodian is authorized to deliver the Shares to be sold by such Selling Shareholder hereunder and to accept payment therefor; and each Attorney-in-Fact is authorized to execute and deliver this Agreement and the certificate referred to in Section 9(j), to sell, assign and transfer to the Underwriters in connection with the offering of the Shares shall to be deemed a representation and warranty sold by such Selling Shareholder hereunder, to determine the purchase price to be paid by the Underwriters to such Selling Shareholder, as to matters covered therebyprovided in Section 3 hereof, to authorize the delivery of the Shares to be sold by such Selling Shareholder hereunder, to accept payment therefor and otherwise to act on behalf of such Selling Shareholder in connection with this Agreement.
(g) Such Selling Shareholder has irrevocably placed in custody with the Custodian certificates, in suitable form for transfer by delivery or accompanied by duly executed instruments of transfer or assignment in blank with signatures guaranteed, for all of the Shares to be sold by such Selling Shareholder pursuant to this Agreement or, pursuant to the Custody Agreement, has irrevocably committed to do so prior to the First Delivery Date (as defined in Section 5), in each Underwritercase with irrevocable conditional instructions to deliver such Shares to the Underwriter pursuant to this Agreement.
(h) Neither such Selling Shareholder nor any of its affiliates directly, or indirectly through one or more intermediaries, controls, or is controlled by, or is under common control with, or has any other association with (within the meaning of Article I, Section (ee) of the By-laws of the National Association of Securities Dealers, Inc. (the "NASD")), any member firm of the NASD.
Appears in 1 contract
Representations, Warranties and Agreements of the Selling Shareholders. Except with respect to Section 2(n) which does not apply to Bali Investments S.àr.l, Seletar Investments Pte Ltd, Geyser Investment Pte. Ltd. and Capstone Equity Investors LLC, each Each Selling Shareholder, severally and not jointly, represents, warrants and agrees that:
(a) The Selling Shareholder, if a legal entity, has been duly formed and is validly existing as a corporation, limited liability company, public agency, a limited partnership or other legal entity, as the case may be, in good standing in its jurisdiction of formation.
(b) Neither such the Selling Shareholder nor any person acting on behalf of such 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), 405 under the Securities Act) relating to the Shares.
(bc) Such The Selling Shareholder has, or and immediately prior to any Delivery Date on which such the Selling Shareholder is selling Shares, such the Selling Shareholder will have, good and valid marketable title to, or a valid to the Shares to be sold by such Selling Shareholder hereunder on such Delivery Date and any “security entitlement” within the meaning of Section 8-501 of the New York Uniform Commercial Code (the “UCC”) in respect of, the Shares to be sold by such Selling Shareholder hereunder on such Delivery Datethereof, free and clear of all liens, encumbrances, equities equities, community property rights, restrictions on transfer or claims, except for any liens, encumbrances, equities or claims arising under the Custody Agreement or otherwise in favor of the Underwriters(as defined below).
(cd) The Shares to be sold by such the Selling Shareholder hereunder, which are represented by the certificates held in custody for such Selling Shareholder, hereunder are subject to the interests interest of the Underwriters and the other Selling Shareholders thereunderUnderwriters, the arrangements made by such the Selling Shareholder for such the custody of the Shares for the benefit of the Underwriters, including pursuant to the Custody Agreement (as defined below), are to that extent irrevocable, and the obligations of such the Selling Shareholder hereunder shall not be terminated by any act of such the Selling Shareholder, by operation of law, the death or incapacity of such any individual Selling Shareholder or, in the case of a trust, by the death or incapacity of any executor or trustee or the termination of such trust, or the occurrence of any other event.
(de) Upon payment of the purchase price for the Shares to be sold by each such Selling Shareholder pursuant to this AgreementShareholder, delivery of such Shares, as directed by the Underwriters, to Cede & Co. (“Cede”) or such other nominee as may be designated by The Depository Trust Company (“DTC”), registration of such Shares in the name of Cede or such other nominee, nominee and the crediting of such Shares on the books of DTC to securities accounts (within the meaning of Section 8-501(a) of the UCC) of the Underwriters maintained at (i) DTC (assuming that neither DTC nor any such Underwriter has notice will acquire good and marketable title to the Shares free and clear of any “adverse claim,” within the meaning of Section 8-105 of the UCCall liens, to such Shares)encumbrances, equities, community property rights, restrictions on transfer or claims, (iii) DTC shall be a “protected purchaser” of such Shares within the meaning of Section 8-303 of the UCC, (iiiii) under Section 8-501 of the UCC, the Underwriters will acquire a valid “security entitlement” entitlement in respect of such Shares Shares, and (iiiiv) no an action (based on an adverse claim to such securities entitlement, whether framed in conversion, replevin, constructive trust, equitable lien, lien or other theory) based on any “adverse claim,” within the meaning of Section 8-102 of the UCC, to such Shares theory may not be successfully asserted against the Underwriters with respect to such security entitlement. For purposes of this representation, 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 Memorandum and Articles certificate of Association incorporation, bylaws and applicable law, (By) DTC will be registered as a “clearing corporation,” within the meaning of Section 8-102 of the UCC, and (Cz) appropriate entries to the accounts of the several Underwriters on the records of DTC will have been made pursuant to the UCC, (D) to the extent DTC, or any other securities intermediary which acts as “clearing corporation” with respect to the Shares, maintains any “financial asset” (as defined in Section 8-102(a)(9) of the UCC in a clearing corporation pursuant to Section 8-111 of the UCC, the rules of such clearing corporation may affect the rights of DTC or such securities intermediaries and the ownership interest of the Underwriters), (E) claims of creditors of DTC or any other securities intermediary or clearing corporation may be given priority to the extent set forth in Section 8-511(b) and 8-511(c) of the UCC and (F) if at any time the DTC or other securities intermediary does not have sufficient Shares to satisfy claims of all of its entitlement holders with respect thereto then all holders will share pro rata in the Shares then held by DTC or such securities intermediary.
(ef) Such The Selling Shareholder has placed in custody under a custody agreement (the “Custody Agreement” and, together with all other similar agreements executed by the other Selling Shareholders, the “Custody Agreements”) with Computershare Broadridge Corporate Issuer Solutions, Inc., 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 Shares Exchange Medallion Program) book-entry securities representing the Shares to be sold by such the Selling Shareholder hereunder.
(fg) Such The Selling Shareholder has duly and irrevocably executed and delivered a power of attorney (the “Power of Attorney” and, together with all other similar agreements executed by the other Selling Shareholders, the “Powers of Attorney”) appointing Xx. Xxxxxxx X. Bettinger, Xx. Xxxxxxxx X. McCall and Xx. Xxxx Xxxx, Xxxxx Xxxxx, and each of them, Xxxxx Xxxxxxxx as attorneys-in-fact, each of them with full power of substitution, and with full authority (exercisable by any one or more of them) to execute and deliver this Agreement on behalf of such Selling Shareholders and to take such other action as may be necessary or desirable to carry out the provisions hereof on behalf of such the Selling Shareholder.
(g) No stamp, issue, registration, documentary, transfer or other similar taxes and duties, including interest and penalties, are payable in the Republic of Singapore on or in connection with the sale of the Ordinary Shares by such Selling Shareholder or the execution and delivery of this Agreement, other than as described in the most recent Preliminary Prospectus and the Prospectus.
(h) Such The Selling Shareholder has full right, power and authority, corporate or otherwise, to enter into this Agreement, the Custody Agreement and the Power of AttorneyAttorney and, to the Selling Shareholder’s knowledge, each of the attorneys-in-fact acting on the Selling Shareholder’s behalf has full right, power and authority, corporate or otherwise, to enter into this Agreement and the Custody Agreement.
(i) This Agreement has been duly and validly authorized, authorized by each Selling Shareholder that is an entity and has been duly executed and delivered by or on behalf of such the Selling Shareholder.
(j) The Power of Attorney and the Custody Agreement have been duly and validly authorized, authorized by each Selling Shareholder that is an entity and have been duly executed and delivered by or on behalf of such the Selling Shareholder and constitute valid and legally binding obligations of such the Selling Shareholder enforceable against such the Selling Shareholder in accordance with their terms, subject to (i) the effects of bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium and other similar laws relating to or affecting creditors’ rights generally, (ii) general equitable principles (whether considered in a proceeding in equity or at law) ), and (iii) an implied covenant of good faith and fair dealing.
(k) The sale of the Shares by the Selling Shareholder, the execution, delivery and performance of this Agreement, the Custody Agreement and the Power of Attorney by such the Selling Shareholder and the consummation by such 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 license, lease or other agreement or instrument to which such the Selling Shareholder is a party or by which such the Selling Shareholder is bound or to which any of the property or assets of such the Selling Shareholder is subject, (ii) result in any violation of the provisions of the charter or by-laws bylaws (or similar organizational documents) of such the Selling Shareholder Shareholder, (iii) result in any violation of the provisions of the deed of trust (or similar organizational documents) of the Selling Shareholder, or (iiiiv) result in any violation of any statute or any judgment, order, decree, rule or regulation of any court or governmental agency or body having jurisdiction over such the Selling Shareholder or the property or assets of such the Selling Shareholder, other than in the case of clauses (i) and (iv) hereof such conflicts or violations which would not materially impair the Selling Shareholder’s ability to consummate the transactions contemplated by and comply with its obligations under this Agreement.
(l) No consent, approval, authorization or order of, or filing or registration with, any court or governmental agency or body having jurisdiction over such the Selling Shareholder or the property or assets of such the Selling Shareholder is required for the sale of the Shares by the Selling Shareholder, the execution, delivery and performance of this Agreement, the Custody Agreement or the Power of Attorney by such the Selling Shareholder and the consummation by such the Selling Shareholder of the transactions contemplated hereby and thereby, except for 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 and such other approvals as have been or will have been obtained prior to the Initial Delivery Date in connection with the purchase and sale of the Shares by the Underwriters.
(im) The All information furnished to the Company or the Underwriters by or on behalf of such Selling Shareholder in writing expressly for use in the Registration Statement Statement, the Pricing Disclosure Package or the Prospectus is, and on the Delivery Date will be, true, correct and complete in all material respects, and did not, as of the Effective DateApplicable Time, and on the Delivery Date will not, contain an any untrue statement of a material fact or omit to state a any material fact required to be stated therein or necessary to make the statements therein such information not misleading; , it being understood and agreed that the only such information furnished consists of the name of such Selling Shareholder, the number of offered shares and the address and other information with respect to such Selling Shareholder (iiexcluding percentages) the Prospectus will not, as of its date and on the applicable Delivery Date, contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, which appears in the light of Registration Statement, the circumstances under which they were madeProspectus, not misleading; (iii) and the Pricing Disclosure Package did not, as of the Applicable Time, contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in the light of table (and corresponding footnotes) under the circumstances under which they were madecaption “Principal and Selling Shareholders” (collectively, not misleading; and (iv) each Issuer Free Writing Prospectus (including without limitation, any road show that is a free writing prospectus under Rule 433), if any, when considered together with the Pricing Disclosure Package as of the Applicable Time, did not contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, In the light of the circumstances under which they were made, not misleading; provided that the representations and warranties in the foregoing clauses (i) through (iv) are made only as to statements or omissions made in reliance upon and in conformity with written information furnished to the Company by or on behalf of such “Selling Shareholder specifically for use in the preparation of the Registration Statement or such other documentsInformation”).
(n) Such The Selling Shareholder is not prompted to sell shares of Ordinary Shares by any material non-public information concerning the Company that is not set forth in the Registration Statement, the Pricing Disclosure Package and the Prospectus.
(o) Such 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 would reasonably be expected to cause or result in the stabilization or manipulation of the price of any security of the Company to facilitate in connection with the sale or resale offering of the Shares.
(p) The sale of the Shares by the Selling Shareholder does not violate any of the Company’s internal policies regarding handling of information, xxxxxxx xxxxxxx or otherwise disclosed in the Registration Statement that are applicable to the Selling Shareholder regarding the sale of securities by its affiliates.
(q) In connection with the Company or any of its subsidiaries, none of the Selling Shareholder or, if applicable, any of its subsidiaries, or any director, officer, or, to the Selling Shareholder’s (and, if applicable, its subsidiaries’) knowledge, employees or controlled affiliates thereof, has used or will use any corporate or personal funds to take any action in furtherance of an offer, payment, promise to pay, or authorization or approval of the payment, giving or receipt of money, property, gifts or anything else of value, directly or indirectly, to any Government Official in order to improperly influence official action, or to any person in violation of any applicable anti-corruption laws.
(r) In connection with the Company or any of its subsidiaries, the operations of the Selling Shareholder and, if applicable, each of its subsidiaries and other entities controlled by it are and have been conducted at all times in material compliance with all applicable financial recordkeeping and reporting requirements, including those of the Bank Secrecy Act, as amended by Title III of the USA PATRIOT Act, and the Anti-Money Laundering Laws.
(i) None of the Selling Shareholder or, if applicable, any of its subsidiaries, or any director, officer, or, to the Selling Shareholder’s (and, if applicable, its subsidiaries’) knowledge, employees or controlled affiliates thereof, is a Person that is, or is owned or controlled by one or more Persons that are: (A) the subject of any Sanctions, or (B) located, organized or resident in a country or territory that is the subject of Sanctions (including, without limitation, so-called Donetsk People’s Republic, or so-called Luhansk People’s Republic or any other Covered Region of Ukraine identified pursuant to Executive Order 14065, the Crimea region, Cuba, Iran, North Korea and Syria); (ii) 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: (A) to fund or facilitate any activities or business of or with any Person or in any country or territory that, at the time of such funding or facilitation, is the subject of Sanctions, (B) to fund or facilitate any money laundering or terrorist financing activities or (C) in any other manner that will result in a violation of any anti-corruption laws, Anti-Money Laundering Laws or Sanctions by any Person (including any Person participating in the offering, whether as underwriter, advisor, investor or otherwise); and (iii) for the past five years, the Selling Shareholder and, if applicable, its subsidiaries and, to the Selling Shareholder’s knowledge, entities controlled by it, have not engaged in, are not now knowingly engaging in, and will not knowingly engage in, any dealings or transactions with any Person, or in any country or territory, that at the time of the dealing or transaction is or was the subject of Sanctions in violation of Sanctions. The Selling Shareholder and, if applicable, its subsidiaries have conducted and will conduct their businesses in compliance with anti-corruption laws, Anti-Money Laundering Laws and Sanctions, and no investigation, inquiry, action, suit or proceeding by or before any court or governmental agency, authority or body or any arbitrator involving the Selling Shareholder or, if applicable, any of its subsidiaries with respect to anti-corruption laws, Anti-Money Laundering Laws or Sanctions is pending or, to the knowledge of the Selling Shareholder, threatened. The Selling Shareholder and its subsidiaries and, to the Selling Shareholder’s (and, if applicable, its subsidiaries’) knowledge, its controlled affiliates have instituted and maintained and will continue to maintain policies and procedures reasonably designed to promote and achieve compliance with anti-corruption laws, Anti-Money Laundering Laws, Sanctions, and with the representations and warranties contained in this Section 2(s) and Sections 2(p) and 2(q) above.
(t) To such Selling Shareholder’s knowledge, there are no affiliations or associations between any member of FINRA “participating in the offering” and such Selling Shareholder. None of the proceeds received by such Selling Shareholder from the sale of the Shares to be sold by such Selling Shareholder hereunder will be paid to a member of FINRA “participating in the offering” or any affiliate of (or person “associated with,” as such terms are used in the rules of FINRA) such member.
(u) There are no legal or governmental proceedings pending to which such Selling Shareholder or, if applicable, any of its subsidiaries is a party or of which any property or assets of such Selling Shareholder or, if applicable, any of its subsidiaries is the subject that would, in the aggregate, reasonably be expected to have a material adverse effect on the performance by such Selling Shareholder of its obligations under this Agreement or the consummation of the transactions contemplated hereby; and to such Selling Shareholder’s knowledge, no such proceedings are threatened or contemplated by governmental authorities or others. Any certificate signed by any Selling Shareholder, or, if applicable, any officer of any the Selling Shareholder Shareholder, and delivered to the Representatives or counsel for the Underwriters in connection with the offering of the Shares shall be deemed to be a representation and warranty by such Selling Shareholder, as to matters covered thereby, to each Underwriter.
Appears in 1 contract
Samples: Underwriting Agreement (Hamilton Insurance Group, Ltd.)
Representations, Warranties and Agreements of the Selling Shareholders. Except with respect to Section 2(n) which does not apply to Bali Investments S.àr.l, Seletar Investments Pte Ltd, Geyser Investment Pte. Ltd. and Capstone Equity Investors LLC, each Each Selling Shareholder, Shareholder severally and not jointly, jointly represents, warrants and agrees thatwith, each Underwriter:
(a) Neither Each such Selling Shareholder nor that is an executive officer or director of the Company as set forth in the Registration Statement has no reason to believe that the representations and warranties of the Company contained in Section 1 hereof are not materially true and correct, is familiar with the Registration Statement and the Prospectus as amended or supplemented and has no knowledge of any person acting on behalf material fact, condition or information not disclosed in the Registration Statement or the Prospectus or any amendment or supplement thereto, as of such Selling Shareholder (other thanthe applicable filing date, if applicable, which has adversely affected or may adversely affect the business of the Company and the Underwriters) has used or referred is not prompted to any “free writing prospectus” (as defined in Rule 405), relating to the Shares.
(b) Such Selling Shareholder has, or immediately prior to any Delivery Date on which such Selling Shareholder is selling Shares, such Selling Shareholder will have, good and valid title to, or a valid “security entitlement” within the meaning sell shares of Section 8-501 of the New York Uniform Commercial Code (the “UCC”) in respect of, the Shares to be sold by such Selling Shareholder hereunder on such Delivery Date, free and clear of all liens, encumbrances, equities or claims, except for any liens, encumbrances, equities or claims arising under the Custody Agreement or otherwise in favor of the Underwriters.
(c) The Shares to be sold by such Selling Shareholder hereunder, which are represented by the certificates held in custody for such Selling Shareholder, are subject to the interests of the Underwriters and the other Selling Shareholders thereunder, the arrangements made by such Selling Shareholder for such custody are to that extent irrevocable, and the obligations of such Selling Shareholder hereunder shall not be terminated Common Stock by any act of such Selling Shareholder, by operation of law, death or incapacity of such individual Selling Shareholder or, in information concerning the case of a trust, by the death or incapacity of any executor or trustee or the termination of such trust, or the occurrence of any other event.
(d) Upon payment of the purchase price for the Shares to be sold by each Selling Shareholder pursuant to this Agreement, delivery of such Shares, as directed by the Underwriters, to Cede & Co. (“Cede”) or such other nominee as may be designated by The Depository Trust Company (“DTC”), registration of such Shares in the name of Cede or such other nominee, and the crediting of such Shares on the books of DTC to securities accounts (within the meaning of Section 8-501(a) of the UCC) of the Underwriters maintained at DTC (assuming that neither DTC nor any such Underwriter has notice of any “adverse claim,” within the meaning of Section 8-105 of the UCC, to such Shares), (i) DTC shall be a “protected purchaser” of such Shares within the meaning of Section 8-303 of the UCC, (ii) under Section 8-501 of the UCC, the Underwriters will acquire a valid “security entitlement” in respect of such Shares and (iii) no action (whether framed in conversion, replevin, constructive trust, equitable lien, or other theory) based on any “adverse claim,” within the meaning of Section 8-102 of the UCC, to such Shares may be asserted against the Underwriters with respect to such security entitlement. For purposes of this representation, such 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 Memorandum and Articles of Association and applicable law, (B) DTC will be registered as a “clearing corporation,” within the meaning of Section 8-102 of the UCC, (C) appropriate entries to the accounts of the several Underwriters on the records of DTC will have been made pursuant to the UCC, (D) to the extent DTC, or any other securities intermediary which acts as “clearing corporation” with respect to the Shares, maintains any “financial asset” (as defined in Section 8-102(a)(9) of the UCC in a clearing corporation pursuant to Section 8-111 of the UCC, the rules of such clearing corporation may affect the rights of DTC or such securities intermediaries and the ownership interest of the Underwriters), (E) claims of creditors of DTC or any other securities intermediary or clearing corporation may be given priority to the extent is not set forth in Section 8-511(b) and 8-511(c) of the UCC and (F) if at any time the DTC or other securities intermediary does not have sufficient Shares to satisfy claims of all of its entitlement holders with respect thereto then all holders will share pro rata in the Shares then held by DTC or such securities intermediary.
(e) Such Selling Shareholder has placed in custody under a custody agreement (the “Custody Agreement” and, together with all other similar agreements executed by the other Selling Shareholders, the “Custody Agreements”) with Computershare Inc., 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 Shares Exchange Medallion Program) representing the Shares to be sold by such Selling Shareholder hereunder.
(f) Such Selling Shareholder has duly and irrevocably executed and delivered a power of attorney (the “Power of Attorney” and, together with all other similar agreements executed by the other Selling Shareholders, the “Powers of Attorney”) appointing Xx. Xxxxxxx X. Bettinger, Xx. Xxxxxxxx X. McCall and Xx. Xxxx Xxxx, and each of them, as attorneys-in-fact, with full power of substitution, and with full authority (exercisable by any one or more of them) to execute and deliver this Agreement on behalf of such Selling Shareholders and to take such other action as may be necessary or desirable to carry out the provisions hereof on behalf of such Selling Shareholder.
(g) No stamp, issue, registration, documentary, transfer or other similar taxes and duties, including interest and penalties, are payable in the Republic of Singapore on or in connection with the sale of the Ordinary Shares by such Selling Shareholder or the execution and delivery of this Agreement, other than as described in the most recent Preliminary Prospectus Registration Statement and the Prospectus.
(hb) Such Selling Shareholder has full right, power and authority, corporate or otherwise, authority to enter into execute and deliver this Agreement, the Custody Agreement and the Power of Attorney.
(i) This Agreement has been duly Attorney referred to below and validly authorized, executed and delivered by or on behalf of to perform such Selling Shareholder.
(j) The Power of Attorney and 's obligations under such agreements; the Custody Agreement have been duly and validly authorized, executed and delivered by or on behalf of such Selling Shareholder and constitute valid and legally binding obligations of such Selling Shareholder enforceable against such Selling Shareholder in accordance with their terms, subject to (i) the effects of bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium and other similar laws relating to or affecting creditors’ rights generally, (ii) general equitable principles (whether considered in a proceeding in equity or at law) and (iii) an implied covenant of good faith and fair dealing.
(k) The execution, delivery and performance of this Agreement, the Custody Agreement and the Power of Attorney by such Selling Shareholder and the consummation by such 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 note agreement or other agreement or instrument to which such Selling Shareholder is a party or by which such Selling Shareholder is bound or to which any of the property or assets of such 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 such any Selling Shareholder or (iii) result in any violation statute, law, rule, regulation, ordinance, judgment, order or decree of any statute government, governmental instrumentality or any order, rule or regulation of any court or governmental agency or body having jurisdiction over such Selling Shareholder or the property or assets of such Selling Shareholder.
(l) No ; and no consent, approval, authorization or order of, of or declaration or filing with any government, governmental instrumentality or registration with, any court or governmental agency or body having jurisdiction over such Selling Shareholder or the property or assets of such Selling Shareholder is required for the execution, delivery and performance of this Agreement, the Custody Agreement or and the Power of Attorney by such Selling Shareholder and the consummation by such Selling Shareholder of the transactions contemplated hereby and thereby.
(c) Such Selling Shareholder has, except for the registration of and immediately prior to a Delivery Date (as defined in Section 5 hereof) such Selling Shareholder will have, good and valid title to the Shares under the Securities Act to be sold by such Selling Shareholder hereunder on such date, free and clear of all claims, liens, encumbrances, equities, or security interests, and, upon delivery of such consentsShares and payment therefore pursuant hereto, approvalsgood and valid title to such Shares free and clear of all claims, authorizationsliens, registrations encumbrances, equities, security interests 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 restrictions on transfer will pass to the Underwriters.
(i) 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; (ii) the Prospectus will not, as of its date and on the applicable Delivery Date, contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading; (iii) the Pricing Disclosure Package did not, as of the Applicable Time, contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading; and (iv) each Issuer Free Writing Prospectus (including without limitation, any road show that is a free writing prospectus under Rule 433), if any, when considered together with the Pricing Disclosure Package as of the Applicable Time, did not contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, In the light of the circumstances under which they were made, not misleading; provided that the representations and warranties in the foregoing clauses (i) through (iv) are made only as to statements or omissions made in reliance upon and in conformity with written information furnished to the Company by or on behalf of such Selling Shareholder specifically for use in the preparation of the Registration Statement or such other documents.
(n) Such Selling Shareholder is not prompted to sell shares of Ordinary Shares by any information concerning the Company that is not set forth in the Registration Statement, the Pricing Disclosure Package and the Prospectus.
(od) Such Selling Shareholder has not taken and will not take, directly or indirectly, any action that is designed to or that which has constituted or that could which might reasonably be expected to cause or result result, under the Exchange Act or otherwise, in the stabilization or manipulation of the price of any security of the Company to facilitate the sale or resale of the Shares. Any certificate signed by any officer of any .
(e) Such Selling Shareholder has placed in custody under a custody agreement (the "Custody Agreement" and delivered to together with all other similar agreements executed by the Representatives other Selling Shareholders, the "Custody Agreements") with Union Planters National Bank, Memphis, Tennessee as custodian (the "Custodian") for delivery under this Agreement, certificates in negotiable form (with signature guaranteed by a commercial bank or counsel for trust company having an office or correspondent in the Underwriters in connection with the offering United States or a member firm of the New York or American Stock Exchanges) representing the Shares shall to be deemed a representation and warranty sold by such Selling Shareholder hereunder.
(f) Such Selling Shareholder has duly and irrevocably executed and delivered a power of attorney (the "Power of Attorney" and together with all other similar agreements executed by the other Selling Shareholders, the "Powers of Attorney"), appointing one or more persons, as attorneys-in-fact with full power of substitution, and with full authority (exercisable by any one or more of them) to execute and deliver this Agreement and to take such action as may be necessary or desirable to carry out the provisions hereof on behalf of such Selling Shareholder.
(g) Each such Selling Shareholder that is an executive officer or director of the Company as set forth in the Registration Statement severally represents, warrants and agrees that the Registration Statement and the Prospectus and any further amendments or supplements to the Registration Statement or the Prospectus, when they become effective or are filed with the Commission, as the case may be, do not and will not, as of the applicable effective date (as to the Registration Statement and any amendment thereto) and as of the applicable filing date (as to the Prospectus and any amendment or supplement thereto) contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein not misleading; provided that no representation or warranty is made as to information contained in or omitted from the Registration Statement or the Prospectus in reliance upon and in conformity with written information furnished to the Company through the Representatives by or on behalf of any Underwriter specifically for inclusion therein; and further, each Selling Shareholder severally represents, warrants and agrees that the Registration Statement and the Prospectus and any further amendments or supplements to the Registration Statement or the Prospectus, when they become effective or are filed with the Commission, as the case may be, do not and will not, as of the applicable effective date (as to the Registration Statement and any amendment thereto) and as of the applicable filing date (as to the Prospectus and any amendment or supplement thereto), with respect to any information about the Selling Shareholder, contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein not misleading; provided that no representation or warranty is made as to matters covered thereby, information contained in or omitted from the Registration Statement or the Prospectus in reliance upon and in conformity with written information furnished to each Underwriterthe Company through the Representatives by or on behalf of any Underwriter specifically for inclusion therein.
Appears in 1 contract
