Common use of Representations, Warranties and Agreements of the Selling Shareholders Clause in Contracts

Representations, Warranties and Agreements of the Selling Shareholders. Each Selling Shareholder, severally and not jointly, represents, warrants and agrees that (except that the representation in Section 2(n) is not made by Silver Lake Partners II Cayman, L.P., Silver Lake Technology Investors II Cayman, L.P., Capstone Equity Investors, Avago Investment Partners, KKR Millennium Fund (Overseas), Limited Partnership, KKR European Fund, Limited Partnership, KKR European Fund II, Limited Partnership and KKR Partners (International), Limited Partnership): (a) Neither such Selling Shareholder nor any person acting on behalf of such Selling Shareholder (other than, if applicable, the Company and the Underwriter) has used or referred to any “free writing prospectus” (as defined in Rule 405), relating to the Shares. (b) Such Selling Shareholder has (except with respect to Shares that are to be issued upon exercise of outstanding options), and (with respect to all Shares to be sold by such Selling Shareholder) immediately prior to the 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 the 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 Underwriter. (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 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, 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 Underwriter, to Cede & Co. (“Cede”) or such other nominee as may be designated by The Depository Trust Company (“DTC”), registration of such Shares in the name of Cede or such other nominee, and the crediting of such Shares on the books of DTC to securities account(s) (within the meaning of Section 8-501(a) of the UCC) of the Underwriter maintained at DTC (assuming that neither DTC nor the Underwriter has notice of any “adverse claim,” within the meaning of Section 8-105 of the UCC, to such Shares), (i) DTC shall be a “protected purchaser” of such Shares within the meaning of Section 8-303 of the UCC, (ii) under Section 8-501 of the UCC, the Underwriter will acquire a valid “security entitlement” in respect of such Shares and (iii) no action (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 Underwriter 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 account of the 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 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 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 Messrs. Xxxx Xxxxxxx and Xxxxxxx X. Xxx, 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 Registration Statement, the Pricing Disclosure Package 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 Underwriter. (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 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 (v) 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 (v) 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 (x) specifically for use in the preparation of the Registration Statement, (y) specifically for inclusion in the Registration Statement, the Pricing Disclosure Package or the Prospectus or (z) specifically for inclusion in such other documents. (n) Such Selling Shareholder is not prompted to sell Shares by any information concerning the Company that is not set forth in the Registration Statement, the Pricing Disclosure Package and the Prospectus. (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 Representative or counsel for the 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 the Underwriter.

Appears in 1 contract

Samples: Underwriting Agreement (Avago Technologies LTD)

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Representations, Warranties and Agreements of the Selling Shareholders. Each Selling Shareholder, severally and not jointly, represents, warrants and agrees that (except that the representation in Section 2(n) is not made by Silver Lake Partners II Cayman, L.P., Silver Lake Technology Investors II Cayman, L.P., Capstone Equity Investors, Avago Investment Partners, KKR Millennium Fund (Overseas), Limited Partnership, KKR European Fund, Limited Partnership, KKR European Fund II, Limited Partnership and KKR Partners (International), Limited Partnership):that: (a) Neither such Selling Shareholder nor any person acting on behalf of such Selling Shareholder (other than, if applicable, the Company and the Underwriter) has used or referred to any “free writing prospectus” (as defined in Rule 405), relating to the Shares. (b) Such Selling Shareholder has (except with respect to Shares that are to be issued upon exercise of outstanding options)has, and (with respect to all Shares to be sold by such Selling Shareholder) or immediately prior to the 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 the 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 Underwriter. (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 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, 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 Underwriter, to Cede & Co. (“Cede”) or such other nominee as may be designated by The Depository Trust Company (“DTC”), registration of such Shares in the name of Cede or such other nominee, and the crediting of such Shares on the books of DTC to securities account(s) (within the meaning of Section 8-501(a) of the UCC) of the Underwriter maintained at DTC (assuming that neither DTC nor the Underwriter has notice of any “adverse claim,” within the meaning of Section 8-105 of the UCC, to such Shares), (i) DTC shall be a “protected purchaser” of such Shares within the meaning of Section 8-303 of the UCC, (ii) under Section 8-501 of the UCC, the Underwriter will acquire a valid “security entitlement” in respect of such Shares and (iii) no action (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 Underwriter 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 account account(s) of the 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 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 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 Messrs. Xxxx Xxxxxxx and Xx. Xxxxxxx X. XxxBettinger and Xx. Xxxxxxxx X. McCall, 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 Registration Statement, the Pricing Disclosure Package 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 Underwriter. (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; (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 (v) 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 (v) 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 (x) specifically for use in the preparation of the Registration Statement, (y) specifically for inclusion in the Registration Statement, the Pricing Disclosure Package or the Prospectus or (z) specifically for inclusion in such other documents. (n) Such Selling Shareholder is not prompted to sell Shares by any information concerning the Company that is not set forth in the Registration Statement, the Pricing Disclosure Package and the Prospectus. (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 Representative Underwriter or counsel for the 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 the Underwriter.

Appears in 1 contract

Samples: Underwriting Agreement (Avago Technologies LTD)

Representations, Warranties and Agreements of the Selling Shareholders. Each Selling Shareholder, severally severally, and not jointly, represents, warrants and agrees that (except that the representation in Section 2(n) is not made by Silver Lake Partners II Cayman, L.P., Silver Lake Technology Investors II Cayman, L.P., Capstone Equity Investors, Avago Investment Partners, KKR Millennium Fund (Overseas), Limited Partnership, KKR European Fund, Limited Partnership, KKR European Fund II, Limited Partnership and KKR Partners (International), Limited Partnership):that: (a) Neither such The Selling Shareholder nor any person acting on behalf of such Selling Shareholder (other than, if applicable, the Company and the Underwriter) has used or referred to any “free writing prospectus” (as defined in Rule 405), relating to the Shares. (b) Such Selling Shareholder has (except with respect to Shares that are to be issued upon exercise of outstanding options)has, and (with respect to all Shares to be sold by such Selling Shareholder) immediately prior to the each Delivery Date on which such 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 shares of Stock to be sold by such the Selling Shareholder hereunder on the Delivery Datesuch date, free and clear of all liens, encumbrances, equities or claims, except . Upon payment for any liens, encumbrances, equities or claims arising under the Custody Agreement or otherwise in favor shares of the Underwriter. (c) The Shares 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 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, 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 UnderwriterRepresentatives, 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 indication by book entry on the books of DTC that such Stock has been credited to securities account(s) (within the meaning of Section 8-501(a) accounts of the UCC) of the Underwriter maintained at DTC Underwriters (assuming that neither DTC nor the any such Underwriter has notice of any adverse claim,” claim (within the meaning of Section 8-105 of the UCC, ) to such SharesStock), (iA) DTC shall be a “protected purchaser” of such Shares Stock within the meaning of Section 8-303 of the UCC, (iiB) under Section 8-501 of the UCC, the Underwriter Underwriters will acquire a valid security entitlement” entitlement in respect of such Shares Stock 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 Stock maybe asserted against the Underwriter Underwriters with respect to such security entitlement. For ; for purposes of this representation, such the Selling Shareholder may assume that when such payment, delivery and crediting occur, (Ax) such Shares Stock will have been registered in the name of Cede or another nominee designated by DTC, in each case on the Company’s share registry in accordance with its 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 account accounts of the Underwriter 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 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 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 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 Messrs. Xxxx Xxxxxxx and Xxxxxxx X. Xxx, 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 Registration Statement, the Pricing Disclosure Package and the Prospectus. (h) Such The Selling Shareholder has full right, power and authority, corporate or otherwise, authority to enter into this Agreement, the Custody Agreement and to sell the Power shares of Attorney. (i) This Stock be sold by the Selling Shareholder hereunder; 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. (k) 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 agreement 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) except for such breaches, violations or defaults which, individually or in the aggregate, would not result in any violation a material adverse affect on the condition (financial or other), business, properties, stockholders’ equity or results of operations of the provisions of the charter or by-laws (or similar organizational documents) of Selling Shareholder and such Selling Shareholder’s ability to fulfill its obligations under, and consummate the transactions contemplated by, this Agreement (a “Selling Shareholder or (iii) Material Adverse Effect”), nor will such 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 the Selling Shareholder or the property or assets of such the Selling Shareholder. (l) No , except for such violations which, individually or in the aggregate, would not result in a Selling Shareholder Material Adverse Effect, nor will such actions result in any violation of the provisions of the constituent documents of the Selling Shareholder; and, except for such consents, approvals, authorizations, registrations or qualifications as have been obtained or may be required under applicable state securities laws in connection with the purchase and distribution of the Stock by the Underwriters, no consent, approval, authorization or order of, or filing or registration with, any such 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 by the Custody Agreement or the Power of Attorney by such 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, 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 Underwriterhereby. (ic) The Registration Statement did and the Prospectus, and any further amendments or supplements to the Registration Statement or the Prospectus, when they became or will become effective or are filed with the Commission, as the case may be, do not and will not, as of the applicable Effective DateTime (as to the Registration Statement and any amendment thereto) and as of the applicable filing date (as to the Prospectus, the Prospectus Supplement 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) as to the Prospectus will notProspectus, as of its date and on the Delivery Date, contain an untrue statement of a material fact any amendment or omit to state a material fact required to be stated therein or necessary to make the statements thereinsupplement thereto, in the light of the circumstances under in 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 (v) 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 this representation and warranties in the foregoing clauses (i) through (v) are warranty is made only as to statements information contained in or omissions made in reliance upon omitted from the Registration Statement and in conformity with written information the Prospectus (and any such amendments or supplements referred to above) under the caption “Selling Shareholders” relating to such Selling Shareholder and furnished to the Company in writing by or on behalf of such Selling Shareholder (x) specifically for use in the preparation of the Registration Statement, (y) specifically for inclusion in therein (the Registration Statement, the Pricing Disclosure Package or the Prospectus or (z) specifically for inclusion in such other documents“Selling Shareholder Information”). (nd) Such The Selling Shareholder is not prompted to sell Shares shares of Common Stock by any information concerning the Company that is not set forth in the Registration Statement, the Pricing Disclosure Package Statement and the Prospectus. (oe) Such The Selling Shareholder has not taken and will not take, directly or indirectly, any action that which is designed to or that which has constituted or that could which might reasonably be expected to cause or result in the stabilization or manipulation of the price of any security of the Company to facilitate the sale or resale of the Shares. Any certificate signed by any officer of any Selling Shareholder and delivered to the Representative or counsel for the Underwriter 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 the UnderwriterStock.

Appears in 1 contract

Samples: Underwriting Agreement (Blount International Inc)

Representations, Warranties and Agreements of the Selling Shareholders. Each 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 (except that the representation in Section 2(n) is not made by Silver Lake Partners II Cayman, L.P., Silver Lake Technology Investors II Cayman, L.P., Capstone Equity Investors, Avago Investment Partners, KKR Millennium Fund (Overseas), Limited Partnership, KKR European Fund, Limited Partnership, KKR European Fund II, Limited Partnership and KKR Partners (International), Limited Partnership):that: (a) Neither such Selling Shareholder nor any person acting on behalf of such Selling Shareholder (other than, if applicable, the Company and the UnderwriterUnderwriters) has used or referred to any “free writing prospectus” (as defined in Rule 405), relating to the Shares. (b) Such Selling Shareholder has (except with respect to Shares that are to be issued upon exercise of outstanding options)has, and (with respect to all Shares to be sold by such Selling Shareholder) or immediately prior to the 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 the 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 UnderwriterUnderwriters. (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 Underwriter 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 UnderwriterUnderwriters, to Cede & Co. (“Cede”) or such other nominee as may be designated by The Depository Trust Company (“DTC”), registration of such Shares in the name of Cede or such other nominee, and the crediting of such Shares on the books of DTC to securities account(s) accounts (within the meaning of Section 8-501(a) of the UCC) of the Underwriter Underwriters maintained at DTC (assuming that neither DTC nor the any such Underwriter has notice of any “adverse claim,” within the meaning of Section 8-105 of the UCC, to such Shares), (i) DTC shall be a “protected purchaser” of such Shares within the meaning of Section 8-303 of the UCC, (ii) under Section 8-501 of the UCC, the Underwriter 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 Underwriter 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 account accounts of the Underwriter 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 UnderwriterUnderwriters), (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 Messrs. Xxxx Xxxxxxx and Xx. Xxxxxxx X. XxxBettinger, 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 Registration Statement, the Pricing Disclosure Package 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 UnderwriterUnderwriters. (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; (iv) the documents incorporated by reference in the Registration Statement, the Pricing Disclosure Package any Preliminary Prospectus 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 (v) 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 (v) 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 (x) specifically for use in the preparation of the Registration Statement, (y) specifically for inclusion in the Registration Statement, the Pricing Disclosure Package Preliminary Prospectus or the Prospectus or (z) specifically for inclusion in 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 Representative Representatives or counsel for the Underwriter 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 the each Underwriter.

Appears in 1 contract

Samples: Underwriting Agreement (Avago Technologies LTD)

Representations, Warranties and Agreements of the Selling Shareholders. Each Selling Shareholder, severally and not jointly, represents, warrants and agrees that (except that the representation in Section 2(n) is not made by Silver Lake Partners II Cayman, L.P., Silver Lake Technology Investors II Cayman, L.P., Capstone Equity Investors, Avago Investment Partners, KKR Millennium Fund (Overseas), Limited Partnership, KKR European Fund, Limited Partnership, KKR European Fund II, Limited Partnership and KKR Partners (International), Limited Partnership):as follows: (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 Underwriter) has used or referred to any “free writing prospectus” (as defined in Rule 405), relating to the SharesStock. (b) Such The Selling Shareholder has (except with respect to Shares that are to be issued upon exercise of outstanding options)has, and (with respect to all Shares to be sold by such Selling Shareholder) immediately prior to the Delivery Date on which such the Selling Shareholder is selling Sharesshares of Stock, such the Selling Shareholder 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 the Selling Shareholder hereunder on the 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 Underwriter. (c) The Shares Stock 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 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 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 by the purchase price Underwriter for the Shares Stock to be sold by each the Selling Shareholder pursuant to this Agreementhereto, delivery (within the meaning of the UCC (as hereinafter defined)) of such SharesStock, as directed by the Underwriter, to Cede & Co. (“Cede”) or such other nominee as may be designated by The Depository Trust Company (“DTC”), registration of such Shares Stock in the name of Cede or such other nominee, nominee and the crediting of such Shares Stock on the books of DTC to a securities account(s) account (within the meaning of Section 8-501(a) of the UCC) of the Underwriter maintained at DTC (assuming that neither DTC nor the Underwriter has notice of any adverse claim,” claim (within the meaning of Section 8-105 of the Uniform Commercial Code as in effect on the date hereof in the State of New York (“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 Underwriter will acquire have acquired 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 may be asserted against the Underwriter with respect to such security entitlement. For purposes of this representation, such the Selling Shareholder may assume that when such payment, delivery and crediting occur, (A) such Shares 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 account of the 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 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 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[Reserved.] (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 Messrs. Xxxx Xxxxxxx and Xxxxxxx X. Xxx, 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 Registration Statement, the Pricing Disclosure Package and the Prospectus. (h) Such The Selling Shareholder has full right, power and authority, corporate limited partnership or otherwise, to enter into this Agreement, the Custody Agreement and the Power of Attorney. (ig) This Agreement has been duly and validly authorized, executed and delivered by or on behalf of such the Selling Shareholder. (jh) 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 [Reserved.] (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, 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 Selling Shareholder is subject, (ii) result in any violation of the provisions of the charter or by-laws (or similar organizational documents) of such the Selling Shareholder or (iii) result in any violation of any applicable statute or any order, rule or regulation of any court or governmental agency or body having jurisdiction over such the Selling Shareholder or the property or assets of such the Selling Shareholder. (lj) 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, Agreement by the Custody Agreement or the Power of Attorney by such Selling Shareholder and the consummation by such the Selling Shareholder of the transactions contemplated hereby and therebyhereby, except for the registration of the Shares Stock under the Securities Act and such consents, approvals, authorizations, registrations or qualifications as may be required under the Exchange Act and applicable state or foreign securities laws in connection with the purchase and sale of the Shares Stock by the Underwriter. (ik) The Registration Statement did not, as of the Effective Date, contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading; provided that the representations or warranties set forth in this Section 2(k) are limited to statements or omissions made in reliance upon and in conformity with the Selling Shareholders Information. (iil) the The Prospectus will not, as of its date and on the 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; provided that the representations or warranties set forth in this Section 2(l) are limited to statements or omissions made in reliance upon and in conformity with the Selling Shareholders Information. (iiim) the 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, except that the price of the Stock and disclosures directly relating thereto will be included on the cover page of the Prospectus; (ivprovided that the representations or warranties set forth in this Section 2(m) the documents incorporated by reference are limited to statements or omissions made in the Registration Statement, the Pricing Disclosure Package or the Prospectus did not, reliance upon and any further documents filed and incorporated by reference therein will not, when filed in conformity 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 Selling Shareholders Information. (vn) each Each Issuer Free Writing Prospectus (including 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 or warranties set forth in the foregoing clauses (i) through (vthis Section 2(n) are made only as limited 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 (x) specifically for use in the preparation of the Registration Statement, (y) specifically for inclusion in the Registration Statement, the Pricing Disclosure Package or the Prospectus or (z) specifically for inclusion in such other documentsShareholders Information. (no) Such The Selling Shareholder is not prompted to sell Shares shares of Common Stock by any material information concerning the Company that is not set forth in the Registration Statement, the Pricing Disclosure Package and the Prospectus. (op) Such The Selling Shareholder has not taken and will not take, directly or indirectly, any action that is designed to or that has constituted or that could reasonably be expected to cause or result in the stabilization or manipulation of the price of any security of the Company to facilitate the sale or resale of the Sharesshares of the Stock. Any certificate signed by any officer or general partner of any Selling Shareholder and delivered to the Representative or counsel for the Underwriter 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 the Underwriter.

Appears in 1 contract

Samples: Underwriting Agreement (Sba Communications Corp)

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Representations, Warranties and Agreements of the Selling Shareholders. Each Selling Shareholder, severally and not jointly, represents, warrants and agrees that (except that the representation in Section 2(n) is not made by Silver Lake Partners II Cayman, L.P., Silver Lake Technology Investors II Cayman, L.P., Capstone Equity Investors, Avago Investment Partners, KKR Millennium Fund (Overseas), Limited Partnership, KKR European Fund, Limited Partnership, KKR European Fund II, Limited Partnership and KKR Partners (International), Limited Partnership):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 Underwriter) has used or referred to any “free writing prospectus” (as defined in Rule 405), 405 under the Securities Act) relating to the Shares. (b) Such The Selling Shareholder has (except with respect to Shares that are to be issued upon exercise of outstanding options)has, and (with respect to all Shares to be sold by such Selling Shareholder) immediately prior to the 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 the Selling Shareholder hereunder on the 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 the 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 Underwriter. (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 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, 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 the Selling Shareholder pursuant to this AgreementShareholder, delivery of such Shares, as directed by the UnderwriterUnderwriters, to Cede & Co. (“Cede”) or such other nominee as may be designated by The Depository Trust Company (“DTC”), registration of such Shares in the name of Cede or such other nominee, nominee and the crediting of such Shares on the books of DTC to securities account(s) (within the meaning of Section 8-501(a) of the UCC) of the Underwriter maintained at (i) DTC (assuming that neither DTC nor will acquire good and marketable title to the Underwriter has notice 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 Underwriter 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 asserted against the Underwriter with respect to such security entitlement. For purposes of this representation, such the Selling Shareholder may assume that when such payment, delivery and crediting occur, (Ax) such Shares will have been registered in the name of Cede or another nominee designated by DTC, in each case on the Company’s share registry in accordance with its 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 account accounts of the Underwriter 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 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 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. (ed) 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 Messrs. Xxxx Xxxxxxx and Xxxxxxx X. Xxx, 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 Registration Statement, the Pricing Disclosure Package 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 Attorney. (ie) This Agreement has been duly and validly authorized, executed and delivered by or on behalf of such the Selling Shareholder. (jf) The Power sale of Attorney and the Custody Agreement have been duly and validly authorizedShares by the Selling Shareholder, 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, 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 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 and which is material to which any of the property or assets of such Selling Shareholder is subjectShareholder, (ii) result in any violation of the provisions of the charter or by-laws (or similar organizational documents) of such the Selling Shareholder Shareholder, or (iii) result in any violation of any statute or any judgment, order, decree, rule or regulation of any court or governmental agency or body having jurisdiction over the Selling Shareholder, except that in the case of clauses (i) and (iii) above, where such conflict or violation would not, individually or in the aggregate, reasonably be likely to have a material adverse effect (1) on the Selling Shareholder, or (2) on the power or ability of the Selling Shareholder to perform its obligations under each of this Agreement or to consummate the property or assets of such Selling Shareholdertransactions contemplated hereby. (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 are required for the sale of the Shares by the Selling Shareholder, the execution, delivery and performance of this Agreement, Agreement by the Custody Agreement or the Power of Attorney by such Selling Shareholder and the consummation by such the Selling Shareholder of the transactions contemplated hereby and therebyhereby, except (i) 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 in connection with the offer, purchase and sale of the Shares by the UnderwriterUnderwriters, (iii) such as has previously been obtained or (iii) where the failure to obtain or perform any such consent, approval, authorization, order, filing or registration would not, individually or in the aggregated, reasonably be expected to have a material adverse effect on the ability of the Selling Shareholder to consummate the transactions contemplated in this Agreement. (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 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 (v) 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 (v) 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 (x) specifically for use in the preparation of the Registration Statement, it being understood and agreed that such information is limited to the name of the Selling Shareholder, the number of offered Shares, the number of Shares of Ordinary Shares owned by such Selling Shareholder before and after the offering and the address and other information with respect to the Selling Shareholder that appear in the table and footnotes under the captain “Principal and Selling Shareholders” (y) specifically for inclusion in the Registration Statement, the Pricing Disclosure Package or the Prospectus or (z) specifically for inclusion in such other documents. (ni) Such Selling Shareholder is not prompted to sell Shares by any information concerning the Company that is not set forth in the Registration Statement, the Pricing Disclosure Package and the Prospectus. (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 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 of the Shares. (j) 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: (i) to finance any activities or business of or with any person or in any country or territory that, at the time of such financing, is the subject of any sanctions administered or enforced by OFAC; or (ii) in furtherance of an offer, payment, promise to pay, or authorization of the payment or giving of money, or anything else of value, to any person in violation of any applicable anti-corruption laws; provided that the foregoing shall not apply with respect to the distribution of the proceeds of the offering to any of the Selling Shareholder’s direct or indirect limited partners once such proceeds are no longer under the control of the Selling Shareholder if prior to such distribution the Selling Shareholder has no knowledge that such proceeds will be used for any of the foregoing purposes. (k) The Selling Shareholder is not (i) an employee benefit plan subject to Part 4, Subtitle B of Title I of ERISA, (ii) a plan subject to the prohibited transaction provisions of Section 4975 of the Code or (iii) an entity deemed to hold “plan assets” of any such plan under Section 3(42) of ERISA. Any certificate signed by any officer of any Selling Shareholder and delivered to the Representative Underwriter or counsel for the 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 the Underwriter.

Appears in 1 contract

Samples: Underwriting Agreement (SMART Global Holdings, Inc.)

Representations, Warranties and Agreements of the Selling Shareholders. Each 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 (except that the representation in Section 2(n) is not made by Silver Lake Partners II Cayman, L.P., Silver Lake Technology Investors II Cayman, L.P., Capstone Equity Investors, Avago Investment Partners, KKR Millennium Fund (Overseas), Limited Partnership, KKR European Fund, Limited Partnership, KKR European Fund II, Limited Partnership and KKR Partners (International), Limited Partnership):that: (a) Neither such Selling Shareholder nor any person acting on behalf of such Selling Shareholder (other than, if applicable, the Company and the UnderwriterUnderwriters) has used or referred to any “free writing prospectus” (as defined in Rule 405), relating to the Shares. (b) Such Selling Shareholder has (except with respect to Shares that are to be issued upon exercise of outstanding options)has, and (with respect to all Shares to be sold by such Selling Shareholder) or immediately prior to the 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 the 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 UnderwriterUnderwriters. (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 Underwriter 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 UnderwriterUnderwriters, to Cede & Co. (“Cede”) or such other nominee as may be designated by The Depository Trust Company (“DTC”), registration of such Shares in the name of Cede or such other nominee, and the crediting of such Shares on the books of DTC to securities account(s) accounts (within the meaning of Section 8-501(a) of the UCC) of the Underwriter Underwriters maintained at DTC (assuming that neither DTC nor the any such Underwriter has notice of any “adverse claim,” within the meaning of Section 8-105 of the UCC, to such Shares), (i) DTC shall be a “protected purchaser” of such Shares within the meaning of Section 8-303 of the UCC, (ii) under Section 8-501 of the UCC, the Underwriter 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 Underwriter 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 account accounts of the Underwriter 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 UnderwriterUnderwriters), (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 Messrs. Xxxx Xxxxxxx and Xx. Xxxxxxx X. XxxBettinger and Xx. Xxxxxxxx X. McCall, 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 Registration Statement, the Pricing Disclosure Package 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 UnderwriterUnderwriters. (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; (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 (v) 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 (v) 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 (x) specifically for use in the preparation of the Registration Statement, (y) specifically for inclusion in the Registration Statement, the Pricing Disclosure Package or the Prospectus or (z) specifically for inclusion in 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 Representative Representatives or counsel for the Underwriter 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 the each Underwriter.

Appears in 1 contract

Samples: Underwriting Agreement (Avago Technologies LTD)

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