Representations, Warranties and Agreements of the Selling Stockholder. The Selling Stockholder represents, warrants and agrees that: (a) Neither the Selling Stockholder nor any person acting on behalf of the Selling Stockholder (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) The Selling Stockholder has, or immediately prior to the Initial Delivery Date on which the Selling Stockholder is selling shares, the Selling Stockholder 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 the Selling Stockholder hereunder on such Delivery Date, free and clear of all liens, encumbrances, equities or claims, except for any liens, encumbrances, equities or claims or otherwise in favor of the Underwriter. (c) The Selling Stockholder has, in accordance with the terms of the Release Letter dated the date hereof, irrevocably instructed the Collateral Agent to deliver the Firm Shares to be sold by the Selling Stockholder hereunder to the Underwriter on the Initial Delivery date, and the obligations of the Selling Stockholder hereunder or thereunder shall not be terminated by any act of the Selling Stockholder, by operation of law or the occurrence of any other event. (d) Upon payment of the purchase price for the Shares to be sold by the Selling Stockholder 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 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 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, the Selling Stockholder 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(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) The Selling Stockholder has full corporate power and authority to enter into and perform its obligations under this Agreement and the Release Letter. (f) This Agreement has been duly and validly authorized, executed and delivered by or on behalf of the Selling Stockholder. (g) Each of this Agreement and the Release Letter has been duly and validly authorized, executed and delivered by, and is a valid and legally binding obligation of, the Selling Stockholder enforceable against the Selling Stockholder in accordance with its terms, subject to (i) the effects of bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium and other similar laws relating to or affecting creditors’ rights generally, (ii) general equitable principles (whether considered in a proceeding in equity or at law) and (iii) an implied covenant of good faith and fair dealing. (h) The execution, delivery and performance of this Agreement and the Release Letter by the Selling Stockholder and the consummation by the Selling Stockholder of the transactions contemplated hereby and thereby do not and will not (i) conflict with or result in a breach or violation of any of the terms or provisions of, or constitute a default under, any indenture, mortgage, deed of trust, loan agreement, license or other agreement or instrument to which the Selling Stockholder is a party or by which the Selling Stockholder is bound or to which any of the property or assets of the Selling Stockholder is subject, (ii) result in any violation of the provisions of the charter or by-laws (or similar organizational documents) of the Selling Stockholder or (iii) result in any violation of any statute or any order, rule or regulation of any court or governmental agency or body having jurisdiction over the Selling Stockholder or the property or assets of the Selling Stockholder. (i) No consent, approval, authorization or order of, or filing or registration with, any court or governmental agency or body having jurisdiction over the Selling Stockholder or the property or assets of the Selling Stockholder is required for the execution, delivery and performance of this Agreement or the Release Letter by the Selling Stockholder and the consummation by the Selling Stockholder of the transactions contemplated hereby, except for the registration of the Shares under the Securities Act and such consents, approvals, authorizations, registrations or qualifications as may be required under the Exchange Act and applicable state 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 the Selling Stockholder (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. (k) The Selling Stockholder’s sale of the Shares pursuant to this Agreement is not prompted by any material non-public information concerning the Company or any of its subsidiaries that is not set forth in the Registration Statement, the Pricing Disclosure Package and the Prospectus. (l) The Selling Stockholder 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 Stockholder and delivered to the Underwriter or counsel for the Underwriter in connection with the offering of the Shares shall be deemed a representation and warranty by the Selling Stockholder, as to matters covered thereby, to the Underwriter.
Appears in 2 contracts
Samples: Underwriting Agreement (TRT Holdings Inc), Underwriting Agreement (Gaylord Entertainment Co /De)
Representations, Warranties and Agreements of the Selling Stockholder. The Selling Stockholder represents, warrants and agrees that:
(a) Neither the Selling Stockholder nor any person acting on behalf of the Selling Stockholder (other than, if applicable, the Company and the UnderwriterUnderwriters) has used or referred to any “free writing prospectus” (as defined in Rule 405), 405 under the Securities Act) relating to the SharesStock.
(b) The Selling Stockholder has, or and immediately prior to the Initial any Delivery Date on which the Selling Stockholder is selling sharesshares of Stock, the Selling Stockholder will have, good and valid marketable title to, or a valid to the shares of Stock to be sold by the Selling Stockholder hereunder on such Delivery Date and any “security entitlement” within the meaning of Section 8-501 of the New York Uniform Commercial Code (the “UCC”) in respect of, the Shares to be sold by the Selling Stockholder hereunder on such Delivery Datethereof, free and clear of all liens, encumbrances, equities equities, community property rights, restrictions on transfer or claims, except for any liens, encumbrances, equities or claims or otherwise in favor of the Underwriter.
(c) The Selling Stockholder has, in accordance with Upon payment for the terms of the Release Letter dated the date hereof, irrevocably instructed the Collateral Agent to deliver the Firm Shares Stock to be sold by the Selling Stockholder hereunder to the Underwriter on the Initial Delivery date, and the obligations of the Selling Stockholder hereunder or thereunder shall not be terminated by any act of the Selling Stockholder, by operation of law or the occurrence of any other event.
(d) Upon payment of the purchase price for the Shares to be sold by the Selling Stockholder pursuant to this Agreement, delivery of such SharesStock, 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 Stock in the name of Cede or such other nominee, nominee and the crediting of such Shares Stock on the books of DTC to securities account(s) (within the meaning of Section 8-501(a) accounts of the UCCUnderwriters (i) DTC will acquire good and marketable title to the Stock free and clear of the Underwriter maintained at DTC (assuming that neither DTC nor any such Underwriter has notice of any “adverse claim,” within the meaning of Section 8-105 of the 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 Stock 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, the Selling Stockholder 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(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) The Selling Stockholder has full corporate power and authority to enter into and perform its obligations under this Agreement and the Release Letter.
(f) This Agreement has been duly and validly authorized, executed and delivered by or on behalf of the Selling Stockholder.
(g) Each of this Agreement and the Release Letter has been duly and validly authorized, executed and delivered by, and is a valid and legally binding obligation of, the Selling Stockholder enforceable against the Selling Stockholder in accordance with its terms, subject to (i) the effects of bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium and other similar laws relating to or affecting creditors’ rights generally, (ii) general equitable principles (whether considered in a proceeding in equity or at law) and (iii) an implied covenant of good faith and fair dealing.
(h) The execution, delivery and performance of this Agreement and the Release Letter by the Selling Stockholder and the consummation by the Selling Stockholder of the transactions contemplated hereby and thereby do not and will not (i) conflict with or result in a breach or violation of any of the terms or provisions of, or constitute a default under, any indenture, mortgage, deed of trust, loan agreement, license or other agreement or instrument to which the Selling Stockholder is a party or by which the Selling Stockholder is bound or to which any of the property or assets of the Selling Stockholder is subject, (ii) result in any violation of the provisions of the charter or by-laws (or similar organizational documents) of the Selling Stockholder or (iii) result in any violation of any statute or any order, rule or regulation of any court or governmental agency or body having jurisdiction over the Selling Stockholder or the property or assets of the Selling Stockholder.
(i) No consent, approval, authorization or order of, or filing or registration with, any court or governmental agency or body having jurisdiction over the Selling Stockholder or the property or assets of the Selling Stockholder is required for the execution, delivery and performance of this Agreement or the Release Letter by the Selling Stockholder and the consummation by the Selling Stockholder of the transactions contemplated hereby, except for the registration of the Shares under the Securities Act and such consents, approvals, authorizations, registrations or qualifications as may be required under the Exchange Act and applicable state 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 the Selling Stockholder (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.
(k) The Selling Stockholder’s sale of the Shares pursuant to this Agreement is not prompted by any material non-public information concerning the Company or any of its subsidiaries that is not set forth in the Registration Statement, the Pricing Disclosure Package and the Prospectus.
(l) The Selling Stockholder 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 Stockholder and delivered to the Underwriter or counsel for the Underwriter in connection with the offering of the Shares shall be deemed a representation and warranty by the Selling Stockholder, as to matters covered thereby, to the Underwriter.
Appears in 2 contracts
Samples: Underwriting Agreement, Underwriting Agreement (Advanced Drainage Systems, Inc.)
Representations, Warranties and Agreements of the Selling Stockholder. The Selling Stockholder represents, warrants to and agrees with, the Underwriters that:
(a) Neither All consents, approvals, authorizations and orders necessary for the execution and delivery by the Selling Stockholder nor any person acting on behalf of this Agreement, and for the sale and delivery of the Shares to be sold by the Selling Stockholder (other thanhereunder, if applicable, the Company have been obtained; and the Underwriter) Selling Stockholder has used full right, power and authority to enter into this Agreement and to sell, assign, transfer and deliver the Shares to be sold by the Selling Stockholder hereunder, except in each such case, with such exceptions as will not, individually or referred in the aggregate, have a material adverse effect on the Selling Stockholder's ability to any “free writing prospectus” (as defined in Rule 405), relating to consummate the Sharestransactions contemplated herein.
(b) The Selling Stockholder has, or immediately prior to the Initial Delivery Date on which the Selling Stockholder is selling shares, the Selling Stockholder will have, good and valid title to, or a valid “security entitlement” within the meaning sale of Section 8-501 of the New York Uniform Commercial Code (the “UCC”) in respect of, the Shares to be sold by the Selling Stockholder hereunder on such Delivery Date, free and clear of all liens, encumbrances, equities or claims, except for any liens, encumbrances, equities or claims or otherwise in favor of the Underwriter.
(c) The Selling Stockholder has, in accordance with the terms of the Release Letter dated the date hereof, irrevocably instructed the Collateral Agent to deliver the Firm Shares to be sold compliance by the Selling Stockholder hereunder to the Underwriter on the Initial Delivery date, and the obligations with all of the Selling Stockholder hereunder or thereunder shall not be terminated by any act of the Selling Stockholder, by operation of law or the occurrence of any other event.
(d) Upon payment of the purchase price for the Shares to be sold by the Selling Stockholder 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 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 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, the Selling Stockholder 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(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) The Selling Stockholder has full corporate power and authority to enter into and perform its obligations under this Agreement and the Release Letter.
(f) This Agreement has been duly and validly authorized, executed and delivered by or on behalf of the Selling Stockholder.
(g) Each provisions of this Agreement and the Release Letter has been duly and validly authorized, executed and delivered by, and is a valid and legally binding obligation of, the Selling Stockholder enforceable against the Selling Stockholder in accordance with its terms, subject to (i) the effects of bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium and other similar laws relating to or affecting creditors’ rights generally, (ii) general equitable principles (whether considered in a proceeding in equity or at law) and (iii) an implied covenant of good faith and fair dealing.
(h) The execution, delivery and performance of this Agreement and the Release Letter by the Selling Stockholder and the consummation by the Selling Stockholder of the transactions herein and therein 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 statute, indenture, mortgage, deed of trust, loan agreement, license agreement or other agreement or instrument to which the Selling Stockholder is a party or by which the Selling Stockholder is bound or to which any of the property or assets of the Selling Stockholder is subject, nor (ii) result in any violation of the provisions of the charter Certificate of Incorporation or byBy-laws (or similar organizational documents) of the Selling Stockholder or Stockholder, nor (iii) result in any the breach or violation of any statute or any order, rule or regulation of any court or governmental agency or body having jurisdiction over the Selling Stockholder or the property or assets of the Selling Stockholder, except, in the case of (i) and (iii), with such exceptions as will not, individually or in the aggregate, have a material adverse effect on the Selling Stockholder's ability to consummate the transactions contemplated herein.
(ic) No consentImmediately prior to each Time of Delivery (as defined in Section 3(e) hereof), approval, authorization or order of, or filing or registration with, any court or governmental agency or body having jurisdiction over the Selling Stockholder will have good and valid title to a security interest in the Shares to be sold hereunder, free and clear of all liens, encumbrances, equities or claims, and upon payment therefor and delivery to the property Depository Trust Company ("DTC") or assets its agent of the Shares registered in the name of Cede & Co. ("CEDE") or such other nominee as may be designated by DTC, both as provided for herein, and the crediting of the Shares to the Underwriters' accounts with DTC, Cede & Co. or such other nominee designated by DTC will be a "protected purchaser" of the Shares (as defined in Section 8-303 of the Uniform Commercial Code as adopted in the State of New York (the "UCC")), the Underwriters will acquire a valid "security entitlement" (within the meaning of Section 8-501 of the UCC) to the Shares, and no action based on an "adverse claim" (as defined in Section 8-102 of the UCC) may be asserted against the Underwriters with respect to such security entitlement (assuming that the Underwriters are without notice of any such adverse claim).
(d) During the period beginning from the date hereof and continuing to and including the date forty-five (45) days after the date of the Prospectus (the "LOCK UP PERIOD"), not to offer, sell contract to sell or otherwise dispose of, except as provided hereunder, any securities of the Company that are substantially similar to the Shares, including but not limited to any securities that are convertible into or exchangeable for, or that represent the right to receive, Stock or any such substantially similar securities (other than pursuant to employee stock option plans existing on, upon the conversion or exchange of convertible or exchangeable securities outstanding as of, the date of this Agreement), without the prior written consent of Xxxxxxx Xxxxx & Co.; provided that the Selling Stockholder may transfer shares of common stock of the Company to American International Group, Inc. ("AIG"), or to any subsidiary of AIG if the transferee agrees to be bound by the restrictions set forth in this Section 2(d). For the avoidance of doubt, it is understood that the restrictions in this Section 2(d) apply only to the shares of Company common stock directly held by the Selling Stockholder, and do not apply to any shares held by affiliates of the Selling Stockholder is required for the execution, delivery and performance of this Agreement or the Release Letter by the Selling Stockholder and the consummation by the Selling Stockholder of the transactions contemplated hereby, except for the registration of the Shares under the Securities Act and such consents, approvals, authorizations, registrations or qualifications as may be required under the Exchange Act and applicable state or foreign securities laws in connection with the purchase and sale of the Shares by the Underwriterany asset management or investment management business or otherwise in a fiduciary capacity.
(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 the Selling Stockholder (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.
(k) The Selling Stockholder’s sale of the Shares pursuant to this Agreement is not prompted by any material non-public information concerning the Company or any of its subsidiaries that is not set forth in the Registration Statement, the Pricing Disclosure Package and the Prospectus.
(le) The Selling Stockholder 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.
(f) To the extent that any statements or omissions made in the Registration Statement, the Base Prospectus, any Preliminary Prospectus, the Pricing Prospectus, the Prospectus or any amendment or supplement thereto, or any Issuer Free Writing Prospectus are made in reliance upon and in conformity with written information furnished to the Company by the Selling Stockholder expressly for use therein, which information consists solely of the information set forth in Schedule IV hereto, such Base Prospectus, Preliminary Prospectus, Pricing Prospectus, Prospectus and Issuer Free Writing Prospectus and the Registration Statement did, and the Prospectus and any further amendments or supplements to the Registration Statement and the Prospectus, when they become effective or are filed with the Commission, as the case may be, will conform in all material respects to the requirements of the Securities Act and the rules and regulations of the Commission thereunder and will not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein not misleading.
(g) In order to document the Underwriters' compliance with the reporting and withholding provisions of the Tax Equity and Fiscal Responsibility Act of 1982 with respect to the transactions herein contemplated, the Selling Stockholder will deliver to you prior to or at the First Time of Delivery (as hereinafter defined) a properly completed and executed United States Treasury Department Form W-9 (or other applicable form or statement specified by Treasury Department regulations in lieu thereof). Any certificate signed by any an officer of any the Selling Stockholder and delivered to the Underwriter Underwriters or to counsel for the Underwriter in connection with the offering of the Shares Underwriters shall be deemed to be a representation and warranty by the Selling Stockholder, Stockholder to each Underwriter as to the matters covered thereby, to the Underwriterset forth therein.
Appears in 1 contract
Samples: Underwriting Agreement (American International Group Inc)
Representations, Warranties and Agreements of the Selling Stockholder. The Each Selling Stockholder Stockholder, severally and not jointly, represents, warrants and agrees that:
(a) Neither the Selling Stockholder nor any person acting on behalf of the Selling Stockholder (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.Stock;
(b) The Selling Stockholder has, or and immediately prior to the Initial any Delivery Date on which the Selling Stockholder is selling sharesshares of Stock, the Selling Stockholder 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 the Selling Stockholder hereunder on such Delivery Date, free and clear of all liens, encumbrances, equities or claims, except for any liens, encumbrances, equities or claims or otherwise in favor of the Underwriter.
(c) The Selling Stockholder has, in accordance with Upon payment for the terms of the Release Letter dated the date hereof, irrevocably instructed the Collateral Agent to deliver the Firm Shares Stock to be sold by the Selling Stockholder hereunder to the Underwriter on the Initial Delivery date, and the obligations of the Selling Stockholder hereunder or thereunder shall not be terminated by any act of the such Selling Stockholder, by operation of law or the occurrence of any other event.
(d) Upon payment of the purchase price for the Shares to be sold by the Selling Stockholder pursuant to this Agreement, delivery 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 securities account(s) (within the meaning of Section 8-501(a) of the UCC) accounts of the Underwriter maintained at DTC (assuming that neither DTC nor any such Underwriter has notice of any “adverse claim,” claim (within the meaning of Section 8-105 8‑105 of the UCC, ) to such SharesStock), (i) DTC shall be a “protected purchaser” of such Shares Stock within the meaning of Section 8-303 8‑303 of the UCC, (ii) under Section 8-501 8‑501 of the UCC, the Underwriter will acquire a valid “security entitlement” entitlement in respect of such Shares Stock and (iii) no action (whether framed in conversion, replevin, constructive trust, equitable lien, or other theory) based on any “adverse claim,” within the meaning of Section 8-102 8‑102 of the UCC, to such Shares Stock may be asserted against the Underwriter with respect to such security entitlement. For purposes of this representation, the such Selling Stockholder may assume that when such payment, delivery and crediting occur, (A) 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, (B) DTC will be registered as a “clearing corporation,” within the meaning of Section 8-102 8‑102 of the UCC, UCC and (C) appropriate entries to the account(s) accounts 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.
(ed) The Selling Stockholder has full corporate right, power and authority authority, corporate or otherwise, to enter into and perform its obligations under this Agreement and the Release LetterAgreement.
(fe) This Agreement has been duly and validly authorized, executed and delivered by or on behalf of the Selling Stockholder.
(g) Each of this Agreement and the Release Letter has been duly and validly authorized, executed and delivered by, and is a valid and legally binding obligation of, the Selling Stockholder enforceable against the Selling Stockholder in accordance with its terms, subject to (i) the effects of bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium and other similar laws relating to or affecting creditors’ rights generally, (ii) general equitable principles (whether considered in a proceeding in equity or at law) and (iii) an implied covenant of good faith and fair dealing.
(hf) The execution, delivery and performance of this Agreement and the Release Letter by the Selling Stockholder and the consummation by the Selling Stockholder of the transactions contemplated hereby and thereby do not and will not (i) conflict with or result in a breach or violation of any of the terms or provisions of, or constitute a default under, any indenture, mortgage, deed of trust, loan agreement, license or other agreement or instrument to which the Selling Stockholder is a party or by which the Selling Stockholder is bound or to which any of the property or assets of the Selling Stockholder is subject, (ii) result in any violation of the provisions of the charter or by-laws (or similar organizational documents) of the Selling Stockholder Stockholder, or (iii) result in any violation of any statute or any order, rule or regulation of any court or governmental agency or body having jurisdiction over the Selling Stockholder or the property or assets of the Selling StockholderStockholder (except, in either clause (i) or (iii), where such conflict, breach, violation, lien, charge, encumbrance or default, as applicable, would not adversely affect the ability of the Selling Stockholder to consummate the transactions contemplated by this Agreement).
(ig) No consent, approval, authorization or order of, or filing or registration with, any court or governmental agency or body having jurisdiction over the Selling Stockholder or the property or assets of the Selling Stockholder is required for the execution, delivery and performance of this Agreement or the Release Letter by the Selling Stockholder and the consummation by the Selling Stockholder of the transactions contemplated herebyhereby and thereby, except for the registration of the Shares Stock under the Securities Act and such consents, approvals, authorizations, registrations or qualifications as may be required under the Exchange Act and applicable state or foreign securities laws in connection with the purchase and sale of the Shares Stock by the Underwriter.
(ih) The To the extent that any statements or omissions made in the Registration Statement, Pricing Disclosure Package or the Prospectus, or any amendment or supplement thereto, or any Issuer Free Writing Prospectus are made in reliance upon and in conformity with written information furnished to the Company by such Selling Stockholder expressly for use therein, such Registration Statement, Pricing Disclosure Package, Prospectus and Issuer Free Writing Prospectus, if any, did, and any further amendments or supplements to the Registration Statement did notand the Prospectus, when they became effective or are filed with the Commission, as the case may be, will conform in all material respects to the requirements of the Effective Date, Securities Act and the rules and regulations of the Commission thereunder and do not contain an any untrue statement of a material fact or omit to state a any material fact required to be stated therein or necessary to make the statements therein not misleading; (ii) misleading it being understood and agreed that such Selling Stockholder information shall include only the information about such Selling Stockholder set forth under the heading “Selling Stockholders” in 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 the “Selling Stockholder (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 documentsInformation”).
(k) The Selling Stockholder’s sale of the Shares pursuant to this Agreement is not prompted by any material non-public information concerning the Company or any of its subsidiaries that is not set forth in the Registration Statement, the Pricing Disclosure Package and the Prospectus.
(li) The Selling Stockholder 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.
(j) The Selling Stockholder is not prompted to sell shares of Common Stock by any material non-public information about or specifically relating to the Company that is not set forth in the Registration Statement, the Pricing Disclosure Package and the Prospectus.
(k) The Selling Stockholder has not distributed and will not distribute, prior to the completion of the Underwriter’s distribution of the Stock, any offering material in connection with the offering and sale of the Stock, if any, by the Selling Stockholder other than the Pricing Disclosure Package or the Prospectus. Any certificate signed by any officer of any Selling Stockholder and delivered to the Underwriter or counsel for the Underwriter in connection with the offering of the Shares Stock shall be deemed a representation and warranty by the such Selling Stockholder, as to matters covered thereby, to the Underwriter.
Appears in 1 contract
Representations, Warranties and Agreements of the Selling Stockholder. The Selling Stockholder represents, warrants and agrees that:
(a) Neither the Selling Stockholder nor any person acting on behalf of the Selling Stockholder (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) The Selling Stockholder has, or and immediately prior to the Initial First Delivery Date on which (as defined in Section 5 hereof) with respect to the Selling Stockholder is selling sharesShares and, immediately prior to the Second Delivery Date with respect to the Option Shares, the Selling Stockholder 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, to the Shares to be sold by the Selling Stockholder hereunder and to the International Managers under the International Underwriting Agreement on such Delivery Datedates, free and clear of all liens, encumbrances, equities or claims; and upon the deposit of the Shares underlying the ADSs with the Depositary pursuant to the Deposit Agreement against issuance of the ADRs evidencing the ADSs, except for any all right, title and interest in such Shares, subject to the Deposit Agreement, will be transferred to the Depositary or its nominee, as the case may be, free and clear of all liens, security interests, pledges, charges, encumbrances, equities shareholders' agreements, voting trusts, restrictions on transfer or claims or otherwise in favor of the Underwriteradverse claims.
(cb) The Selling Stockholder hashas placed in custody under a custody agreement (the "Custody Agreement") with [the Company] as custodian (the "Custodian"), in accordance for delivery under this Agreement, duly executed stock transfer forms together with the terms relevant share certificates in negotiable form (with signature guaranteed by a commercial bank or trust company having an office or correspondent in the United States or a member firm of the Release Letter dated the date hereof, irrevocably instructed the Collateral Agent to deliver the Firm Shares to be sold by the Selling Stockholder hereunder to the Underwriter on the Initial Delivery date, and the obligations of the Selling Stockholder hereunder New York or thereunder shall not be terminated by any act of the Selling Stockholder, by operation of law or the occurrence of any other event.
(dAmerican Stock Exchanges) Upon payment of the purchase price for representing the Shares to be sold by the Selling Stockholder 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 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 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, the Selling Stockholder 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(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 intermediaryhereunder.
(ec) The Selling Stockholder has duly and irrevocably executed and delivered a power of attorney (the "Power of Attorney") appointing [the Custodian and one or more other persons] as attorneys-in-fact, with full corporate power of substitution, and with full authority (exercisable by any one or more of them) to enter into execute and perform its obligations under deliver this Agreement and to take such other action as may be necessary or desirable to carry out the Release Letter.
(f) This Agreement has been duly and validly authorized, executed and delivered by or provisions hereof on behalf of the Selling Stockholder.
(gd) Each of The Selling Stockholder has full right, power and authority to enter into this Agreement and the Release Letter has been duly and validly authorized, executed and delivered by, and is a valid and legally binding obligation ofInternational Underwriting Agreement, the Selling Stockholder enforceable against Power of Attorney and the Selling Stockholder in accordance with its terms, subject to (i) Custody Agreement; 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.
(h) The execution, delivery and performance of this Agreement and the Release Letter International Underwriting Agreement, the Power of Attorney and the Custody Agreement by the Selling Stockholder and the consummation by the Selling Stockholder 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, (i) any indenture, mortgage, deed of trust, loan agreement, license agreement or other agreement or instrument to which the Selling Stockholder is a party or by which the Selling Stockholder is bound or to which any of the property or assets of the Selling Stockholder is subject, or (ii) result in any violation of the provisions of the charter or by-laws (or similar organizational documents) of the Selling Stockholder or (iii) result in any violation of any statute or any order, rule or regulation of any court or governmental agency or body having jurisdiction over the Selling Stockholder or the property or assets of the Selling Stockholder.
(i) No consent, approvalother than such breaches or violations which, authorization individually or order ofin the aggregate, would not have or filing result in a material adverse effect on the general affairs, management, financial position, stockholders' equity, results of operations, business or registration with, any court or governmental agency or body having jurisdiction over the Selling Stockholder or the property or assets prospects of the Selling Stockholder is required for the execution, delivery and performance of this Agreement or the Release Letter by the Selling Stockholder and the consummation by the Selling Stockholder of the transactions contemplated herebyCompany; and, except for the registration of the Shares and the ADSs under the Securities Act and such consents, approvals, authorizations, registrations or qualifications as may be required under the Exchange Act and applicable state or foreign securities laws in connection with the purchase and sale distribution of the Shares ADSs by the UnderwriterU.S. Underwriters and the International Managers, no consent, approval, authorization or order of, or filing or registration with, any such court or governmental agency or body is required for the execution, delivery and performance of this Agreement or the International Underwriting Agreement, the Power of Attorney or the Custody Agreement by the Selling Stockholder and the consummation by the Selling Stockholder of the transactions contemplated hereby and thereby.
(ie) The Registration Statement did Statements and the Prospectus and any further amendments or supplements to the Registration Statements or the Prospectus will, when they become effective or are filed with the Commission, as the case may be, do not and will not, as of the Effective Date, applicable effective date (as to the Registration Statements and any amendment thereto) and as of the applicable filing date (as to the Prospectus and any amendment or supplement thereto) contain an untrue statement of a material fact or omit to state a material fact relating to the Selling Stockholder and 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 the Selling Stockholder (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.
(k) The Selling Stockholder’s sale of the Shares pursuant to this Agreement is not prompted by any material non-public information concerning the Company or any of its subsidiaries that is not set forth in the Registration Statement, the Pricing Disclosure Package and the Prospectus.
(lf) The Selling Stockholder 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 ADSs.
(g) Except as will be paid pursuant to Section 8 hereof or as disclosed in the Prospectus, no stamp or other issuance or transfer taxes or duties and no capital gains income, withholding or other taxes are payable by any officer or on behalf of any Selling Stockholder and delivered the U.S. Underwriters to the Underwriter United States or counsel for the Underwriter Greek government or any political subdivision or taxing authority thereof or therein in connection with (i) the offering deposit of Shares with the Shares shall Depositary against issuance of ADRs evidencing ADSs to be deemed a representation and warranty sold to the U.S. Underwriters by the Selling Stockholder, as to matters covered thereby, or (ii) the sale of the Shares and the ADSs to the UnderwriterU.S. Underwriters by the Selling Stockholder in the manner contemplated hereby.
(h) Neither the Selling Stockholder nor any of his properties or assets has any immunity from jurisdiction of any court or from any legal process (whether through service of notice, attachment prior to judgment, attachment in aid of execution, execution or otherwise).
Appears in 1 contract
Representations, Warranties and Agreements of the Selling Stockholder. The Selling Stockholder represents, warrants and agrees that:
(a) Neither the The Selling Stockholder nor any person acting on behalf has been duly organized and is validly existing as a corporation, limited liability company, public agency, or a limited partnership, as the case may be, in good standing in its jurisdiction of the Selling Stockholder (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 Sharesformation.
(b) The Selling Stockholder is a United States person (as the term is defined in Section 7701(a)(30) of the Internal Revenue Code of 1986, as amended) for U.S. federal income tax purposes.
(c) The Selling Stockholder has, or and immediately prior to the Initial any Delivery Date on which the Selling Stockholder is selling sharesDate, the Selling Stockholder will have, good and valid title to, or a valid to the shares of Stock to be sold by the Selling Stockholder hereunder on such Delivery Date and any “security entitlement” within the meaning of Section 8-501 of the New York Uniform Commercial Code (the “UCC”) in respect of, the Shares to be sold by the Selling Stockholder hereunder on such Delivery Datethereof, free and clear of all liens, encumbrances, equities or adverse claims, except for any liens, encumbrances, equities or claims or otherwise in favor of the Underwriter.
(cd) The Selling Stockholder has, in accordance with [Reserved]
(e) [Reserved]
(f) Upon payment for the terms of the Release Letter dated the date hereof, irrevocably instructed the Collateral Agent to deliver the Firm Shares Stock to be sold by the Selling Stockholder hereunder to the Underwriter on the Initial Delivery date, and the obligations of the Selling Stockholder hereunder or thereunder shall not be terminated by any act of the Selling Stockholder, by operation of law or the occurrence of any other event.
(d) Upon payment of the purchase price for the Shares to be sold by the Selling Stockholder pursuant to this Agreement, delivery of such SharesStock, 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 Stock in the name of Cede or such other nominee, nominee and the crediting of such Shares Stock on the books of DTC 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 any such Underwriter has notice of any “adverse claim,” claim (within the meaning of Section 8-105 of the UCC, ) to such Shares), Stock) (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 Underwriters will acquire a valid “security entitlement” entitlement in respect of such Shares Stock, and (iii) no an action (whether framed in conversion, replevin, constructive trust, equitable lien, or other theory) based on any “an adverse claim,” , within the meaning of Section 8-102 of the UCC, to such Shares may not be asserted against the Underwriter Underwriters with respect to such security entitlement. For purposes of this representation, the Selling Stockholder 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, and (Cz) appropriate entries to the account(s) 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.
(eg) The Selling Stockholder has full corporate right, power and authority authority, corporate or otherwise, to enter into and perform its obligations under this Agreement and the Release LetterAgreement.
(fh) This Agreement has been duly and validly authorized, executed and delivered by or on behalf of the Selling Stockholder.
(gi) Each The sale of this Agreement and the Release Letter has been duly and validly authorized, executed and delivered by, and is a valid and legally binding obligation ofStock by the Selling Stockholder, the Selling Stockholder enforceable against the Selling Stockholder in accordance with its terms, subject to (i) the effects of bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium and other similar laws relating to or affecting creditors’ rights generally, (ii) general equitable principles (whether considered in a proceeding in equity or at law) and (iii) an implied covenant of good faith and fair dealing.
(h) The execution, delivery and performance of this Agreement and the Release Letter by the Selling Stockholder and the consummation by the Selling Stockholder 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 the Selling Stockholder is a party or by which the Selling Stockholder is bound or to which any of the property or assets of the Selling Stockholder is subject, (ii) result in any violation of the provisions of the charter or by-laws (or similar organizational documents) of the Selling Stockholder Stockholder, 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 Stockholder or the property or assets of the Selling Stockholder, except, with respect to clauses (i) and (iii), conflicts, defaults, breaches or violations that would not, individually or in the aggregate, reasonably be expected to have a material adverse effect on the Selling Stockholder’s ability to perform its obligations under this Agreement.
(ij) No consent, approval, authorization or order of, or filing or registration with, any court or governmental agency or body having jurisdiction over the Selling Stockholder or the property or assets of the Selling Stockholder is required for the sale of the Stock by the Selling Stockholder, the execution, delivery and performance of this Agreement or the Release Letter by the Selling Stockholder and the consummation by the Selling Stockholder of the transactions contemplated hereby, except for the registration of the Shares Stock under the Securities Act and such consents, approvals, authorizations, orders, filings, registrations or qualifications as may be required under the Exchange Act and applicable state or foreign securities laws in connection with the purchase and sale of the Shares Stock by the UnderwriterUnderwriters.
(ik) The Registration Statement Pricing Disclosure Package, at the Applicable Time did not, and as of the Effective Initial Delivery Date and as of each Option Stock Delivery Date, as the case may be, will not, contain an any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein 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 in order to make the statements therein, in the light of the circumstances under which they were made, not misleading; (iii) . The preceding sentence applies only to written information furnished to the Pricing Disclosure Package did notCompany by the Selling Stockholder expressly for use therein, as it being understood and agreed that the only such information furnished by the Selling Stockholder consists of the Applicable TimeSelling Stockholder’s Selling Stockholder Information. Each Underwriter, contain an untrue statement of the Company and the Selling Stockholder agree that the “Selling Stockholder Information” with respect to 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 Selling Stockholder consists solely of the circumstances under which they were made, not misleading; (iv) information furnished by the documents incorporated by reference Selling Stockholder for use in connection with the offering in the Registration Statement, the Pricing Disclosure Package or and the Prospectus did notProspectus, and any further documents filed and incorporated by reference therein will not, when filed with the Commission, contain an untrue statement which consists solely 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 the name, address and number of shares of Common Stock owned by the Selling Stockholder, before and after the offering, and (vii) are made only as the other information with respect to statements or omissions made in reliance upon and in conformity with written information furnished to the Company by or on behalf of the Selling Stockholder (x) specifically for use that appears in the preparation of table (and corresponding footnotes) under the Registration Statementcaption “Selling Stockholder,” in each case, (y) specifically for inclusion in the Registration Statement, the Pricing Disclosure Package or Package, the Prospectus or (z) specifically for inclusion in such other documentsany Issuer Free Writing Prospectus.
(kl) [Reserved]
(m) [Reserved]
(n) [Reserved]
(o) The Selling Stockholder’s sale of the Shares pursuant to this Agreement Stockholder is not prompted to sell shares of Common Stock by any material non-public information concerning the Company or Company, including any of its subsidiaries subsidiaries, that is not set forth in the Registration Statement, the Pricing Disclosure Package and the Prospectus.
(lp) The Selling Stockholder 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 the sale or resale of the Shares. Any certificate signed by any officer of any Selling Stockholder and delivered to the Underwriter or counsel for the Underwriter in connection with the offering of the Shares shares of the Stock.
(q) [Reserved]
(r) Neither the Selling Stockholder nor any of its subsidiaries (to the extent applicable), nor any director or officer of the Selling Stockholder or any of its subsidiaries (to the extent applicable) nor, to the knowledge of the Selling Stockholder, any employee of the Selling Stockholder or any of its subsidiaries (to the extent applicable) or any agent, affiliate or other person associated with or acting on behalf of the Selling Stockholder has: (i) used any corporate funds for any unlawful contribution, gift, entertainment or other unlawful expense relating to political activity; (ii) made any direct or indirect unlawful payment to any foreign or domestic government official, “foreign official” (as defined in the FCPA) or employee from corporate funds; (iii) violated or is in violation of any provision of the FCPA, Bribery Act 2010, as amended, or any other applicable anti-bribery statute or regulation; or (iv) made any bribe, rebate, payoff, influence payment, kickback or other unlawful payment to any domestic government official, foreign official or employee; and the Selling Stockholder has conducted its business in compliance with the FCPA, Bribery Act 2010, and all other applicable anti-bribery statutes and regulations, and has instituted and maintain policies and procedures reasonably designed to ensure, and which are reasonably expected to continue to ensure, continued compliance therewith. Neither the Selling Stockholder nor any of its subsidiaries (to the extent applicable) will use, directly or indirectly, the proceeds of the offering in furtherance of an offer, payment, promise to pay, or authorization of the payment of giving of money, or anything else of value, to any person in violation of any applicable anti-corruption laws.
(s) The operations of the Selling Stockholder and its subsidiaries (to the extent applicable) is and has been conducted at all times in compliance with applicable financial recordkeeping and reporting requirements of the Money Laundering Laws and no action, suit or proceeding by or before any court or governmental agency, authority or body or any arbitrator involving the Selling Stockholder or any of its subsidiaries (to the extent applicable) with respect to the Money Laundering Laws is pending or, to the knowledge of the Selling Stockholder, threatened.
(t) Neither the Selling Stockholder nor any of its subsidiaries (to the extent applicable), directors or officers, nor, to the knowledge of the Selling Stockholder, any of the Selling Stockholder or any agent, controlled affiliate or other person associated with or acting on behalf of the Selling Stockholder or any of its subsidiaries (to the extent applicable) is (i) currently subject to or the target of any Sanctions; or (ii) located, organized or resident in a country that is the subject of Sanctions (including, without limitation, the so-called Donetsk People’s Republic, the so-called Luhansk People’s Republic or any other covered region of Ukraine identified pursuant to Executive Order 14065, the Crimea Region of Ukraine, Cuba, Iran, North Korea and Syria); and the Selling Stockholder will not directly or indirectly use the proceeds of the offering, or lend, contribute or otherwise make available such proceeds to any subsidiary, joint venture partner or other person or entity, for the purpose of financing the activities of any person, or in any country or territory, that currently is the subject or target of Sanctions or in any other manner that will result in a violation by any person (including any person participating in the transaction whether as an underwriter, advisor, investor or otherwise) of Sanctions. The Selling Stockholder has not knowingly engaged in for the past five years, are not now knowingly engaged in, and will not engage in, any dealings or transactions with any individual or entity, or in any country or territory, that at the time of the dealing or transaction is or was the subject or target of Sanctions. Any certificate signed by or on behalf of the Selling Stockholder and delivered to the Representatives or counsel for the Underwriters in connection with the offering of the Stock shall be deemed to be a representation and warranty by the Selling Stockholder, as to matters covered thereby, to the each Underwriter.
Appears in 1 contract
Samples: Underwriting Agreement (Sun Country Airlines Holdings, Inc.)
Representations, Warranties and Agreements of the Selling Stockholder. The Selling Stockholder represents, warrants and agrees that:
(a) Neither The Selling Stockholder has good and valid title to (i) the shares of Common Stock delivered to First Union National Bank of North Carolina, the Company's transfer agent (the "Transfer Agent"), and (ii) the shares of Series A Preferred Stock (together with the Common Stock, the "Securities") delivered to Xxxxxxxx Xxxxxx Xxxxxxxxxx & Xxxxxxxx, LLP, as custodian (the "Custodian") pursuant to the terms of the Custody Agreement (as defined below), which Securities are convertible into at least 400,000 Shares of Class A Stock to be sold by the Selling Stockholder nor any person acting on behalf of the Selling Stockholder (other than, if applicable, the Company hereunder and the Underwriter) has used or referred immediately prior to any “free writing prospectus” each Delivery Date (as defined in Rule 405Section 5 hereof), relating to the Shares.
(b) The Selling Stockholder has, or immediately prior to the Initial Delivery Date on which the Selling Stockholder is selling shares, the Selling Stockholder 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, to the Shares of Class A Stock (issuable upon conversion of such Securities) to be sold by the Selling Stockholder hereunder on such Delivery Datedate, with respect to both such Securities and such Shares, free and clear of all liens, encumbrances, equities or claims; and upon delivery of such Shares and payment therefor pursuant hereto, good and valid title to such Shares, free and clear of all liens, encumbrances, equities or claims, except for any liens, encumbrances, equities or claims or otherwise in favor of will pass to the Underwriter.
(cb) The Selling Stockholder hashas delivered the certificates in negotiable form representing the shares of Common Stock to the Transfer Agent and has placed in custody, under a custody agreement (the "Custody Agreement") with the Custodian, the certificates in negotiable form representing the shares of Series A Preferred Stock, in accordance with both cases, representing the terms Securities which are convertible into the Shares of the Release Letter dated the date hereof, irrevocably instructed the Collateral Agent to deliver the Firm Shares Class A Stock to be sold by the Selling Stockholder hereunder to the Underwriter on the Initial Delivery date, and the obligations of the Selling Stockholder hereunder or thereunder shall not be terminated by any act of the Selling Stockholder, by operation of law or the occurrence of any other eventhereunder.
(d) Upon payment of the purchase price for the Shares to be sold by the Selling Stockholder 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 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 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, the Selling Stockholder 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(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) The Selling Stockholder has full corporate power and authority to enter into and perform its obligations under this Agreement and the Release Letter.
(f) This Agreement has been duly and validly authorized, executed and delivered by or on behalf of the Selling Stockholder.
(gc) Each of this Agreement and the Release Letter Custody Agreement has been duly and validly authorized, executed and delivered by, and is a valid and legally binding obligation of, by the Selling Stockholder and constitutes the legal, valid and binding obligation of the Selling Stockholder, enforceable against the Selling Stockholder in accordance with its terms, subject to (i) the effects of except as enforceability may be limited by applicable bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium and other or similar laws relating to or affecting the enforcement of creditors’ ' rights generally, (ii) generally and by general equitable principles (whether considered in a proceeding enforcement is sought by proceedings in equity or at law) ), and (iii) an implied covenant except insofar as the indemnification and contribution provisions hereof may be limited by considerations of good faith and fair dealingpublic policy.
(hd) The Selling Stockholder has full right, power and authority to enter into this Agreement and the Custody Agreement and to perform its obligations hereunder and thereunder; the execution, delivery and performance of this Agreement and the Release Letter Custody Agreement by the Selling Stockholder and the consummation by the Selling Stockholder 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 the Selling Stockholder is a party or by which the Selling Stockholder is bound or to which any of the property or assets of the Selling Stockholder is subject, (ii) nor will such actions result in any violation of the provisions of the charter or by-laws (or similar applicable organizational documents) documents of the Selling Stockholder or (iii) result in any violation of any statute or any order, rule or regulation of any court or governmental agency or body having jurisdiction over the Selling Stockholder or the property or assets of the Selling Stockholder.
(i) No consent, approval, authorization or order of, or filing or registration with, any court or governmental agency or body having jurisdiction over the Selling Stockholder or the property or assets of the Selling Stockholder is required for the execution, delivery and performance of this Agreement or the Release Letter by the Selling Stockholder and the consummation by the Selling Stockholder of the transactions contemplated hereby; and, 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 and foreign securities laws and by the NASD in connection with the purchase and sale distribution of the Shares by the Underwriter, no consent, approval, authorization or order of, or filing or registration with, any such court or governmental agency or body is required for the execution, delivery and performance of this Agreement or the Custody Agreement by the Selling Stockholder and the consummation by the Selling Stockholder of the transactions contemplated hereby and thereby.
(ie) The Registration Statement did and the Prospectus and any further amendments or supplements to the Registration Statement or the Prospectus, when they become effective or are filed with the Commission, as the case may be, do not and will not, as of the Effective Date, applicable effective date (as to the Registration Statement and any amendment thereto) and as of the applicable filing date (as to the Prospectus and any amendment or supplement thereto) contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading; (ii) the Prospectus will not, provided that no representation or warranty is made as of its date and on the Delivery Date, contain an untrue statement of a material fact to information contained in 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 omitted from the Registration Statement, the Pricing Disclosure Package Statement 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 the Selling Stockholder (x) specifically for use in the preparation of the Registration Statement, (y) Underwriter specifically for inclusion therein.
(f) The Selling Stockholder has no reason to believe that the representations and warranties of the Company contained in Section 1 hereof are not materially true and correct, is familiar with the Registration Statement and the Prospectus (as amended or supplemented) and has no knowledge of any material fact, condition or information not disclosed in the Registration Statement, as of the Pricing Disclosure Package Effective Date, or the Prospectus (or (z) specifically for inclusion in such other documents.
(k) The Selling Stockholder’s sale any amendment or supplement thereto), as of the Shares pursuant to this Agreement applicable filing date, which has had or may have a Material Adverse Effect and is not prompted to sell the Shares by any material non-public information concerning the Company or any of its subsidiaries that which is not set forth in the Registration Statement, the Pricing Disclosure Package Statement and the Prospectus.
(lg) The Selling Stockholder 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 Stockholder and delivered to the Underwriter or counsel for the Underwriter in connection with the offering of the Shares shall be deemed a representation and warranty by the Selling Stockholder, as to matters covered thereby, to the Underwriter.
Appears in 1 contract
Representations, Warranties and Agreements of the Selling Stockholder. The Selling Stockholder represents, warrants and agrees that:
(a) Neither the Selling Stockholder nor any person acting on behalf of the Selling Stockholder (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) The Selling Stockholder has, or and immediately prior to the Initial First Delivery Date on which the Selling Stockholder is selling shares, (as defined in Section 5 hereof) the Selling Stockholder will have, 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 the Selling Stockholder hereunder on such Delivery Datedate, free and clear of all liens, encumbrances, equities or claims; and upon delivery of such shares and payment therefor pursuant hereto, good and valid title to such shares, free and clear of all liens, encumbrances, equities or claims, except will pass to the several Underwriters.
(b) The Selling Stockholder has placed in custody under a custody agreement (the "Custody Agreement") with American Securities Transfer and Trust, Inc., as custodian (the "Custodian"), for any liensdelivery under this Agreement, encumbrances, equities certificates in negotiable form (with signature guaranteed by a commercial bank or claims trust company having an office or otherwise correspondent in favor the United States or a member firm of the UnderwriterNew York or American Stock Exchanges) representing the shares of Stock to be sold by the Selling Stockholder hereunder.
(c) The Selling Stockholder hashas duly and irrevocably executed and delivered a power of attorney (the "Power of Attorney") appointing D. Keitx Xxxxxxxx xxx Cherxx X. Xxxx, in accordance xx attorneys-in-fact, with the terms full power of the Release Letter dated the date hereof, irrevocably instructed the Collateral Agent to deliver the Firm Shares to be sold by the Selling Stockholder hereunder to the Underwriter on the Initial Delivery datesubstitution, and the obligations of the Selling Stockholder hereunder or thereunder shall not be terminated with full authority (exercisable by any act one or more of the Selling Stockholder, by operation of law or the occurrence of any other event.
(dthem) Upon payment of the purchase price for the Shares to be sold by the Selling Stockholder pursuant execute and deliver this Agreement and to this Agreement, delivery of such Shares, as directed by the Underwriter, to Cede & Co. (“Cede”) or take such other nominee action as may be designated by The Depository Trust Company (“DTC”), registration of such Shares in necessary or desirable to carry out the name of Cede or such other nominee, and the crediting of such Shares 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 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 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, the Selling Stockholder 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(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) The Selling Stockholder has full corporate power and authority to enter into and perform its obligations under this Agreement and the Release Letter.
(f) This Agreement has been duly and validly authorized, executed and delivered by or provisions hereof on behalf of the Selling Stockholder.
(gd) Each The Selling Stockholder has full right, power and authority to enter into this Agreement, the Power of this Agreement Attorney and the Release Letter has been duly and validly authorized, executed and delivered by, and is a valid and legally binding obligation of, Custody Agreement; the Selling Stockholder enforceable against the Selling Stockholder in accordance with its terms, subject to (i) the effects of bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium and other similar laws relating to or affecting creditors’ rights generally, (ii) general equitable principles (whether considered in a proceeding in equity or at law) and (iii) an implied covenant of good faith and fair dealing.
(h) The execution, delivery and performance of this Agreement Agreement, the Power of Attorney and the Release Letter Custody Agreement by the Selling Stockholder and the consummation by the Selling Stockholder 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 the Selling Stockholder is a party or by which the Selling Stockholder is bound or to which any of the property or assets of the Selling Stockholder is subject, (ii) nor will such actions result in any violation of the provisions of the charter or by-laws (or similar organizational documents) governing document of the Selling Stockholder or (iii) result in any violation of any statute or any order, rule or regulation of any court or governmental agency or body having jurisdiction over the Selling Stockholder or the property or assets of the Selling Stockholder.
(i) No consent, approval, authorization or order of, or filing or registration with, any court or governmental agency or body having jurisdiction over the Selling Stockholder or the property or assets of the Selling Stockholder is required for the execution, delivery and performance of this Agreement or the Release Letter by the Selling Stockholder and the consummation by the Selling Stockholder of the transactions contemplated hereby; and, except for the registration of the Shares Stock under the Securities Act and such consents, approvals, authorizations, registrations or qualifications as may be required under the Exchange Act and applicable state or foreign securities laws in connection with the purchase and sale distribution of the Shares Stock by the UnderwriterUnderwriters, no consent, approval, authorization or order of, or filing or registration with, any such court or governmental agency or body is required for the execution, delivery and performance of this Agreement, the Power of Attorney or the Custody Agreement by the Selling Stockholder and the consummation by the Selling Stockholder of the transactions contemplated hereby and thereby.
(ie) The All information relating to the Selling Stockholder in the Registration Statement did and the Prospectus and any further amendments or supplements to the Registration 9 Statement or the Prospectus will, when they become effective or are filed with the Commission, as the case may be, does not and will not, as of the Effective Date, applicable effective date (as to the Registration Statement and any amendment thereto) and as of the applicable filing date (as to the Prospectus and any amendment or supplement thereto) contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading; (ii) the Prospectus will not, provided that no representation or warranty is made as of its date and on the Delivery Date, contain an untrue statement of a material fact to information contained in 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 omitted from the Registration Statement, the Pricing Disclosure Package Statement 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 through the Representative by or on behalf of the Selling Stockholder (x) specifically for use in the preparation of the Registration Statement, (y) any Underwriter specifically for inclusion in the Registration Statement, the Pricing Disclosure Package or the Prospectus or (z) specifically for inclusion in such other documentstherein.
(k) The Selling Stockholder’s sale of the Shares pursuant to this Agreement is not prompted by any material non-public information concerning the Company or any of its subsidiaries that is not set forth in the Registration Statement, the Pricing Disclosure Package and the Prospectus.
(lf) The Selling Stockholder 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 shares of the Stock.
(g) The Selling Stockholder is not prompted to sell shares of Stock by any officer of any Selling Stockholder information concerning the Company that is not set forth in the Registration Statement and delivered to the Underwriter or counsel for the Underwriter in connection with the offering of the Shares shall be deemed a representation and warranty by the Selling Stockholder, as to matters covered thereby, to the UnderwriterProspectus.
Appears in 1 contract
Samples: Underwriting Agreement (Thoratec Laboratories Corp)
Representations, Warranties and Agreements of the Selling Stockholder. The Selling Stockholder severally represents, warrants and agrees that:
(a) Neither the Selling Stockholder nor any person acting on behalf of the Selling Stockholder (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) The Selling Stockholder has, or and immediately prior to the Initial First Delivery Date on which the Selling Stockholder is selling shares, (as defined in Section 5 hereof) the Selling Stockholder will have, 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 the Selling Stockholder hereunder on such Delivery Datedate, free and clear of all liens, encumbrances, equities or claims; and upon delivery of such shares and payment therefor pursuant hereto, good and valid title to such shares, free and clear of all liens, encumbrances, equities or claims, except will pass to the several Underwriters.
(b) The Selling Stockholder has placed in custody under a custody agreement (the "Custody Agreement") with the Company, as custodian (the "Custodian"), for any liensdelivery under this Agreement, encumbrances, equities certificates in negotiable form (with signature guaranteed by a commercial bank or claims a trust company having an office or otherwise correspondent in favor the United States or a member firm of the UnderwriterNew York or American Stock Exchanges) representing the shares of Stock to be sold by the Selling Stockholder hereunder.
(c) The Selling Stockholder hashas duly and irrevocably executed and delivered a power of attorney (the "Power of Attorney") appointing the Custodian and one or more other persons, in accordance as attorneys-in-fact, with the terms full power of the Release Letter dated the date hereof, irrevocably instructed the Collateral Agent to deliver the Firm Shares to be sold by the Selling Stockholder hereunder to the Underwriter on the Initial Delivery datesubstitution, and the obligations of the Selling Stockholder hereunder or thereunder shall not be terminated with full authority (exercisable by any act one or more of the Selling Stockholder, by operation of law or the occurrence of any other event.
(dthem) Upon payment of the purchase price for the Shares to be sold by the Selling Stockholder pursuant execute and deliver this Agreement and to this Agreement, delivery of such Shares, as directed by the Underwriter, to Cede & Co. (“Cede”) or take such other nominee action as may be designated by The Depository Trust Company (“DTC”), registration of such Shares in necessary or desirable to carry out the name of Cede or such other nominee, and the crediting of such Shares 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 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 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, the Selling Stockholder 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(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) The Selling Stockholder has full corporate power and authority to enter into and perform its obligations under this Agreement and the Release Letter.
(f) This Agreement has been duly and validly authorized, executed and delivered by or provisions hereof on behalf of the Selling Stockholder.
(gd) Each The Selling Stockholder has full right, power and authority to enter into this Agreement, the Power of this Agreement Attorney and the Release Letter has been duly and validly authorized, executed and delivered by, and is a valid and legally binding obligation of, Custody Agreement; the Selling Stockholder enforceable against the Selling Stockholder in accordance with its terms, subject to (i) the effects of bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium and other similar laws relating to or affecting creditors’ rights generally, (ii) general equitable principles (whether considered in a proceeding in equity or at law) and (iii) an implied covenant of good faith and fair dealing.
(h) The execution, delivery and performance of this Agreement Agreement, the Power of Attorney and the Release Letter Custody Agreement by the Selling Stockholder and the consummation by the Selling Stockholder 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 the Selling Stockholder is a party or by which the Selling Stockholder is bound or to which any of the property or assets of the Selling Stockholder is subject, (ii) nor will such actions result in any violation of the provisions of the charter or by-laws (or similar organizational documents) of the Selling Stockholder Stockholder, or (iii) result in any violation of any statute or any order, rule or regulation of any court or governmental agency or body having jurisdiction over the Selling Stockholder or the property or assets of the Selling Stockholder.
(i) No consent, approval, authorization or order of, or filing or registration with, any court or governmental agency or body having jurisdiction over the Selling Stockholder or the property or assets of the Selling Stockholder is required for the execution, delivery and performance of this Agreement or the Release Letter by the Selling Stockholder and the consummation by the Selling Stockholder of the transactions contemplated hereby; and, except for the registration of the Shares Stock under the Securities Act and such consents, approvals, authorizations, registrations or qualifications as may be required under the Exchange Act and applicable state or foreign securities laws in connection with the purchase and sale distribution of the Shares Stock by the UnderwriterUnderwriters, no consent, approval, authorization or order of, or filing or registration with, any such court or governmental agency or body is required for the execution, delivery and performance of this Agreement, the Power of Attorney or the Custody Agreement by the Selling Stockholder and the consummation by the Selling Stockholder of the transactions contemplated hereby and thereby.
(ie) The To the Selling Stockholder's knowledge, without independent inquiry, the Registration Statement did and the Prospectus and any further amendments or supplements to the Registration Statement or the Prospectus will, when they become effective or are filed with the Commission, as the case may be, do not and will not, as of the Effective Date, applicable effective date (as to the Registration Statement and any amendment thereto) and as of the applicable filing date (as to the Prospectus and any amendment or supplement thereto) contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading; (ii) the Prospectus will not, provided that no representation or warranty is made as of its date and on the Delivery Date, contain an untrue statement of a material fact to information contained in 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 omitted from the Registration Statement, the Pricing Disclosure Package Statement 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 through the Representatives by or on behalf of the Selling Stockholder (x) specifically for use in the preparation of the Registration Statement, (y) any Underwriter specifically for inclusion therein.
(f) To the Selling Stockholder's knowledge, without independent inquiry, there is no material fact, condition or information not disclosed in the Registration Statement, as of the Pricing Disclosure Package effective date, or the Prospectus (or (z) specifically for inclusion in such other documents.
(k) The Selling Stockholder’s sale any amendment or supplement thereto), as of the Shares pursuant to this Agreement applicable filing date, which has adversely affected or may adversely affect the business of the Company and the Selling Stockholder is not prompted to sell shares of Common Stock by any material non-public information concerning the Company or any of its subsidiaries that which is not set forth in the Registration Statement, the Pricing Disclosure Package Statement and the Prospectus.
(lg) The Selling Stockholder 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 Stockholder and delivered to the Underwriter or counsel for the Underwriter in connection with the offering shares of the Shares shall be deemed a representation and warranty by the Selling Stockholder, as to matters covered thereby, to the UnderwriterStock.
Appears in 1 contract
Samples: Underwriting Agreement (Faxsav Inc)
Representations, Warranties and Agreements of the Selling Stockholder. The Selling Stockholder represents, warrants to and agrees with, the Underwriters that:
(a) Neither All consents, approvals, authorizations and orders necessary for the execution and delivery by the Selling Stockholder nor any person acting on behalf of this Agreement, and for the sale and delivery of the Shares to be sold by the Selling Stockholder (other thanhereunder, if applicable, the Company have been obtained; and the Underwriter) Selling Stockholder has used full right, power and authority to enter into this Agreement and to sell, assign, transfer and deliver the Shares to be sold by the Selling Stockholder hereunder, except in each such case, with such exceptions as will not, individually or referred in the aggregate, have a material adverse effect on the Selling Stockholder’s ability to any “free writing prospectus” (as defined in Rule 405), relating to consummate the Sharestransactions contemplated herein.
(b) The Selling Stockholder has, or immediately prior to the Initial Delivery Date on which the Selling Stockholder is selling shares, the Selling Stockholder will have, good and valid title to, or a valid “security entitlement” within the meaning sale of Section 8-501 of the New York Uniform Commercial Code (the “UCC”) in respect of, the Shares to be sold by the Selling Stockholder hereunder on such Delivery Date, free and clear of all liens, encumbrances, equities or claims, except for any liens, encumbrances, equities or claims or otherwise in favor of the Underwriter.
(c) The Selling Stockholder has, in accordance with the terms of the Release Letter dated the date hereof, irrevocably instructed the Collateral Agent to deliver the Firm Shares to be sold compliance by the Selling Stockholder hereunder to the Underwriter on the Initial Delivery date, and the obligations with all of the Selling Stockholder hereunder or thereunder shall not be terminated by any act of the Selling Stockholder, by operation of law or the occurrence of any other event.
(d) Upon payment of the purchase price for the Shares to be sold by the Selling Stockholder 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 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 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, the Selling Stockholder 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(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) The Selling Stockholder has full corporate power and authority to enter into and perform its obligations under this Agreement and the Release Letter.
(f) This Agreement has been duly and validly authorized, executed and delivered by or on behalf of the Selling Stockholder.
(g) Each provisions of this Agreement and the Release Letter has been duly and validly authorized, executed and delivered by, and is a valid and legally binding obligation of, the Selling Stockholder enforceable against the Selling Stockholder in accordance with its terms, subject to (i) the effects of bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium and other similar laws relating to or affecting creditors’ rights generally, (ii) general equitable principles (whether considered in a proceeding in equity or at law) and (iii) an implied covenant of good faith and fair dealing.
(h) The execution, delivery and performance of this Agreement and the Release Letter by the Selling Stockholder and the consummation by the Selling Stockholder of the transactions herein and therein 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 statute, indenture, mortgage, deed of trust, loan agreement, license agreement or other agreement or instrument to which the Selling Stockholder is a party or by which the Selling Stockholder is bound or to which any of the property or assets of the Selling Stockholder is subject, nor (ii) result in any violation of the provisions of the charter Certificate of Incorporation or byBy-laws (or similar organizational documents) of the Selling Stockholder or Stockholder, nor (iii) result in any the breach or violation of any statute or any order, rule or regulation of any court or governmental agency or body having jurisdiction over the Selling Stockholder or the property or assets of the Selling Stockholder, except, in the case of (i) and (iii), with such exceptions as will not, individually or in the aggregate, have a material adverse effect on the Selling Stockholder’s ability to consummate the transactions contemplated herein.
(ic) No consentImmediately prior to each Time of Delivery (as defined in Section 3(e) hereof), approval, authorization or order of, or filing or registration with, any court or governmental agency or body having jurisdiction over the Selling Stockholder will have good and valid title to a security interest in the Shares to be sold hereunder, free and clear of all liens, encumbrances, equities or claims, and upon payment therefor and delivery to the property Depository Trust Company (“DTC”) or assets its agent of the Shares registered in the name of Cede & Co. (“Cede”) or such other nominee as may be designated by DTC, both as provided for herein, and the crediting of the Shares to the Underwriters’ accounts with DTC, Cede & Co. or such other nominee designated by DTC will be a “protected purchaser” of the Shares (as defined in Section 8-303 of the Uniform Commercial Code as adopted in the State of New York (the “UCC”)), the Underwriters will acquire a valid “security entitlement” (within the meaning of Section 8-501 of the UCC) to the Shares, and no action based on an “adverse claim” (as defined in Section 8-102 of the UCC) may be asserted against the Underwriters with respect to such security entitlement (assuming that the Underwriters are without notice of any such adverse claim).
(d) During the period beginning from the date hereof and continuing to and including the date forty-five (45) days after the date of the Prospectus (the “Lock Up Period”), not to offer, sell contract to sell or otherwise dispose of, except as provided hereunder, any securities of the Company that are substantially similar to the Shares, including but not limited to any securities that are convertible into or exchangeable for, or that represent the right to receive, Stock or any such substantially similar securities (other than pursuant to employee stock option plans existing on, upon the conversion or exchange of convertible or exchangeable securities outstanding as of, the date of this Agreement), without the prior written consent of Xxxxxxx Xxxxx & Co.; provided that the Selling Stockholder may transfer shares of common stock of the Company to American International Group, Inc. (“AIG”), or to any subsidiary of AIG if the transferee agrees to be bound by the restrictions set forth in this Section 2(d). For the avoidance of doubt, it is understood that the restrictions in this Section 2(d) apply only to the shares of Company common stock directly held by the Selling Stockholder, and do not apply to any shares held by affiliates of the Selling Stockholder is required for the execution, delivery and performance of this Agreement or the Release Letter by the Selling Stockholder and the consummation by the Selling Stockholder of the transactions contemplated hereby, except for the registration of the Shares under the Securities Act and such consents, approvals, authorizations, registrations or qualifications as may be required under the Exchange Act and applicable state or foreign securities laws in connection with the purchase and sale of the Shares by the Underwriterany asset management or investment management business or otherwise in a fiduciary capacity.
(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 the Selling Stockholder (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.
(k) The Selling Stockholder’s sale of the Shares pursuant to this Agreement is not prompted by any material non-public information concerning the Company or any of its subsidiaries that is not set forth in the Registration Statement, the Pricing Disclosure Package and the Prospectus.
(le) The Selling Stockholder 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.
(f) To the extent that any statements or omissions made in the Registration Statement, the Base Prospectus, any Preliminary Prospectus, the Pricing Prospectus, the Prospectus or any amendment or supplement thereto, or any Issuer Free Writing Prospectus are made in reliance upon and in conformity with written information furnished to the Company by the Selling Stockholder expressly for use therein, which information consists solely of the information set forth in Schedule IV hereto, such Base Prospectus, Preliminary Prospectus, Pricing Prospectus, Prospectus and Issuer Free Writing Prospectus and the Registration Statement did, and the Prospectus and any further amendments or supplements to the Registration Statement and the Prospectus, when they become effective or are filed with the Commission, as the case may be, will conform in all material respects to the requirements of the Securities Act and the rules and regulations of the Commission thereunder and will not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein not misleading.
(g) In order to document the Underwriters’ compliance with the reporting and withholding provisions of the Tax Equity and Fiscal Responsibility Act of 1982 with respect to the transactions herein contemplated, the Selling Stockholder will deliver to you prior to or at the First Time of Delivery (as hereinafter defined) a properly completed and executed United States Treasury Department Form W-9 (or other applicable form or statement specified by Treasury Department regulations in lieu thereof). Any certificate signed by any an officer of any the Selling Stockholder and delivered to the Underwriter Underwriters or to counsel for the Underwriter in connection with the offering of the Shares Underwriters shall be deemed to be a representation and warranty by the Selling Stockholder, Stockholder to each Underwriter as to the matters covered thereby, to the Underwriterset forth therein.
Appears in 1 contract
Samples: Underwriting Agreement (Transatlantic Holdings Inc)
Representations, Warranties and Agreements of the Selling Stockholder. The Selling Stockholder represents, warrants and agrees that:
(a) Neither the Selling Stockholder nor any person acting on behalf of the Selling Stockholder (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) The Selling Stockholder has, or and immediately prior to the Initial First Delivery Date on which the Selling Stockholder is selling shares, (as defined in Section 5 hereof) the Selling Stockholder 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 the Selling Stockholder hereunder on such Delivery Datedate, free and clear of all liens, encumbrances, equities or claims; and upon delivery of such shares and payment therefor pursuant hereto, good and valid title to such shares, free and clear of all liens, encumbrances, equities or claims, except for any lienswill pass to the several Underwriters.
(b) The Selling Stockholder has authorized the placement in custody of certificates, encumbrancesin negotiable form, equities or claims or otherwise in favor representing the shares of Stock to be sold by the UnderwriterSelling Stockholder hereunder pursuant to a custody agreement (the "Custody Agreement") with the Company, as custodian (the "Custodian"), and has authorized the subsequent delivery of such shares by the Custodian under this Agreement.
(c) The Selling Stockholder hashas duly and irrevocably executed and delivered a power of attorney (the "Power of Attorney") appointing the Custodian and one or more other persons, in accordance as attorneys-in-fact, with the terms full power of the Release Letter dated the date hereof, irrevocably instructed the Collateral Agent to deliver the Firm Shares to be sold by the Selling Stockholder hereunder to the Underwriter on the Initial Delivery datesubstitution, and the obligations of the Selling Stockholder hereunder or thereunder shall not be terminated with full authority (exercisable by any act one or more of the Selling Stockholder, by operation of law or the occurrence of any other event.
(dthem) Upon payment of the purchase price for the Shares to be sold by the Selling Stockholder pursuant execute and deliver this Agreement and to this Agreement, delivery of such Shares, as directed by the Underwriter, to Cede & Co. (“Cede”) or take such other nominee action as may be designated by The Depository Trust Company (“DTC”), registration of such Shares in necessary or desirable to carry out the name of Cede or such other nominee, and the crediting of such Shares 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 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 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, the Selling Stockholder 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(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) The Selling Stockholder has full corporate power and authority to enter into and perform its obligations under this Agreement and the Release Letter.
(f) This Agreement has been duly and validly authorized, executed and delivered by or provisions hereof on behalf of the Selling Stockholder.
(gd) Each The Selling Stockholder has full right, power and authority to enter into this Agreement, the Power of this Agreement Attorney and the Release Letter has been duly and validly authorized, executed and delivered by, and is a valid and legally binding obligation of, Custody Agreement; the Selling Stockholder enforceable against the Selling Stockholder in accordance with its terms, subject to (i) the effects of bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium and other similar laws relating to or affecting creditors’ rights generally, (ii) general equitable principles (whether considered in a proceeding in equity or at law) and (iii) an implied covenant of good faith and fair dealing.
(h) The execution, delivery and performance of this Agreement Agreement, the Power of Attorney and the Release Letter Custody Agreement by the Selling Stockholder and the consummation by the Selling Stockholder 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 the Selling Stockholder is a party or by which the Selling Stockholder is bound or to which any of the property or assets of the Selling Stockholder is subject, (ii) result nor will such actions result, in the case of a Selling Stockholder that is a partnership, in any violation of the provisions of the charter or by-laws (or similar organizational documents) partnership agreement of the Selling Stockholder or (iii) result in any violation of any statute or any order, rule or regulation of any court or governmental agency or body having jurisdiction over the Selling Stockholder or the property or assets of the Selling Stockholder.
(i) No consent, approval, authorization or order of, or filing or registration with, any court or governmental agency or body having jurisdiction over the Selling Stockholder or the property or assets of the Selling Stockholder is required for the execution, delivery and performance of this Agreement or the Release Letter by the Selling Stockholder and the consummation by the Selling Stockholder of the transactions contemplated hereby; and, except for the registration of the Shares Stock under the Securities Act and such consents, approvals, authorizations, registrations or qualifications as may be required under the Exchange Act and applicable state or foreign securities laws in connection with the purchase and sale distribution of the Shares Stock by the UnderwriterUnderwriters, no consent, approval, authorization or order of, or filing or registration with, any such court or governmental agency or body is required for the execution, delivery and performance of this Agreement, the Power of Attorney or the Custody Agreement by the Selling Stockholder and the consummation by the Selling Stockholder of the transactions contemplated hereby and thereby.
(ie) The Registration Statement did and the Prospectus and any further amendments or supplements to the Registration Statement or the Prospectus, when they become effective or are filed with the Commission, as the case may be, do not and will not, as of the Effective Date, applicable effective date (as to the Registration Statement and any amendment thereto) and as of the applicable filing date (as to the Prospectus and any amendment or supplement thereto) contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading; (ii) the Prospectus will not, as of its date and on the Delivery Date, contain an untrue statement of a material fact PROVIDED that representation 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 warranty 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 information contained in or omissions made omitted from the Registration Statement or the Prospectus in reliance upon and in conformity with written information furnished to the Company by or on behalf of such Selling Stockholder specifically for inclusion therein.
(f) Without any independent investigation whatsoever, the Selling Stockholder (x) specifically for use in has no reason to believe that the preparation representations and warranties of the Registration Statement, (y) specifically for inclusion Company contained in the Registration Statement, the Pricing Disclosure Package or the Prospectus or (z) specifically for inclusion in such other documents.
(k) The Selling Stockholder’s sale of the Shares pursuant to this Agreement Section 1 hereof are not materially true and correct and is not prompted to sell shares of Common Stock by any material non-public information concerning the Company or any of its subsidiaries that which is not set forth in the Registration Statement, the Pricing Disclosure Package Statement and the Prospectus.
(lg) The Selling Stockholder 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 Stockholder and delivered to the Underwriter or counsel for the Underwriter in connection with the offering shares of the Shares shall be deemed a representation and warranty by the Selling Stockholder, as to matters covered thereby, to the UnderwriterStock.
Appears in 1 contract
Representations, Warranties and Agreements of the Selling Stockholder. The Selling Stockholder represents, warrants and agrees that:
(a) Neither the Selling Stockholder nor any person acting on behalf of the Selling Stockholder (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) The Selling Stockholder has, or and immediately prior to the Initial First Delivery Date on which the Selling Stockholder is selling shares, (as defined in Section 5 hereof) the Selling Stockholder will have, 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 the Selling Stockholder hereunder and under the International Underwriting Agreement on such Delivery Datedate, free and clear of all liens, encumbrances, equities or claims; and upon delivery of such shares and payment therefor pursuant hereto and thereto, good and valid title to such shares, free and clear of all liens, encumbrances, equities or claims, except will pass to the several Underwriters and the International Managers.
(b) The Selling Stockholder has placed in custody under a custody agreement (the "Custody Agreement" and, together with all other similar agreements executed by the other Selling Stockholders, the "Custody Agreements") with [insert name of custodian], as custodian (the "Custodian"), for any liensdelivery under this Agreement, encumbrances, equities certificates in negotiable form (with signature guaranteed by a commercial bank or claims trust company having an office or otherwise correspondent in favor the United States or a member firm of the UnderwriterNew York or American Stock Exchanges) representing the shares of Stock to be sold by the Selling Stockholder hereunder.
(c) The Selling Stockholder hashas duly and irrevocably executed and delivered a power of attorney (the "Power of Attorney" appointing the Custodian and one or more other persons, in accordance as attorneys-in-fact, with the terms full power of the Release Letter dated the date hereof, irrevocably instructed the Collateral Agent to deliver the Firm Shares to be sold by the Selling Stockholder hereunder to the Underwriter on the Initial Delivery datesubstitution, and the obligations of the Selling Stockholder hereunder or thereunder shall not be terminated with full authority (exercisable by any act one or more of the Selling Stockholder, by operation of law or the occurrence of any other event.
(dthem) Upon payment of the purchase price for the Shares to be sold by the Selling Stockholder pursuant execute and deliver this Agreement and to this Agreement, delivery of such Shares, as directed by the Underwriter, to Cede & Co. (“Cede”) or take such other nominee action as may be designated by The Depository Trust Company (“DTC”), registration of such Shares in necessary or desirable to carry out the name of Cede or such other nominee, and the crediting of such Shares 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 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 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, the Selling Stockholder 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(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) The Selling Stockholder has full corporate power and authority to enter into and perform its obligations under this Agreement and the Release Letter.
(f) This Agreement has been duly and validly authorized, executed and delivered by or provisions hereof on behalf of the Selling Stockholder.]
(gd) Each of The Selling Stockholder has full right, power and authority to enter into this Agreement and the Release Letter has been duly International Underwriting Agreement, [the Power of Attorney and validly authorized, executed and delivered by, and is a valid and legally binding obligation of, the Selling Stockholder enforceable against Custody Agreement]; the Selling Stockholder in accordance with its terms, subject to (i) the effects of bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium and other similar laws relating to or affecting creditors’ rights generally, (ii) general equitable principles (whether considered in a proceeding in equity or at law) and (iii) an implied covenant of good faith and fair dealing.
(h) The execution, delivery and performance of this Agreement and the Release Letter International Underwriting Agreement[, the Power of Attorney and the Custody Agreement] by the Selling Stockholder and the consummation by the Selling Stockholder 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 the Selling Stockholder is a party or by which the Selling Stockholder is bound or to which any of the property or assets of the Selling Stockholder is subject, (ii) result in any violation of the provisions of the charter or by-laws (or similar organizational documents) of the Selling Stockholder or (iii) 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 the Selling Stockholder or the property or assets of the Selling Stockholder.
(i) No consent, approval, authorization or order of, or filing or registration with, any court or governmental agency or body having jurisdiction over the Selling Stockholder or the property or assets of the Selling Stockholder is required for the execution, delivery and performance of this Agreement or the Release Letter by the Selling Stockholder and the consummation by the Selling Stockholder of the transactions contemplated hereby; and, except for the registration of the Shares Stock under the Securities Act and such consents, approvals, authorizations, registrations or qualifications as may be required under the Exchange Act and applicable state or foreign securities laws in connection with the purchase and sale distribution of the Shares Stock by the UnderwriterUnderwriters and the International Managers, no consent, approval, authorization or order of, or filing or registration with, any such court or governmental agency or body is required for the execution, delivery and performance of this Agreement or the International Underwriting Agreement[, the Power of Attorney or the Custody Agreement] by the Selling Stockholder and the consummation by the Selling Stockholder of the transactions contemplated hereby and thereby.
(ie) The Registration Statement did notand the Prospectus and any further amendments or supplements thereto will, when they become effective or are filed with the Commission, as of the Effective Datecase may be, not contain an any untrue statement of a material fact or omit to state a any material fact required to be stated therein or necessary to make the statements therein not misleading; (ii) the Prospectus will not, provided that no representation or warranty is made as of its date and on the Delivery Date, contain an untrue statement of a material fact to information contained in 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 omitted from the Registration Statement, the Pricing Disclosure Package Statement 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 through the Representatives by or on behalf of the Selling Stockholder (x) specifically for use in the preparation of the Registration Statement, (y) any Underwriter specifically for inclusion in the Registration Statement, the Pricing Disclosure Package or the Prospectus or (z) specifically for inclusion in such other documentstherein.
(k) The Selling Stockholder’s sale of the Shares pursuant to this Agreement is not prompted by any material non-public information concerning the Company or any of its subsidiaries that is not set forth in the Registration Statement, the Pricing Disclosure Package and the Prospectus.
(lf) The Selling Stockholder 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 Stockholder and delivered to the Underwriter or counsel for the Underwriter in connection with the offering shares of the Shares shall be deemed a representation and warranty by the Selling Stockholder, as to matters covered thereby, to the UnderwriterStock.
Appears in 1 contract
Representations, Warranties and Agreements of the Selling Stockholder. The Selling Stockholder represents, warrants and agrees that:
(a) Neither the Selling Stockholder nor any person acting on behalf of the Selling Stockholder (other than, if applicable, the Company and than the Underwriter) has used or referred to any “free writing prospectus” (as defined in Rule 405)distributed and, relating prior to the Shareslater to occur of any Delivery Date and completion of the distribution of the Stock, will distribute any offering material in connection with the offering and sale of the Stock other than any Preliminary Prospectus, the Prospectus or any Issuer Free Writing Prospectus to which the Underwriter has consented in accordance with Section 1(i) or 6(a)(vi).
(b) The Selling Stockholder has, or and immediately prior to the Initial any Delivery Date on which the Selling Stockholder is selling shares, the Selling Stockholder will have, good and valid title to, 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 the Selling Stockholder hereunder on such Delivery Date, free and clear of all liens, encumbrances, equities or claims, except . Upon payment for any liens, encumbrances, equities or claims or otherwise in favor of the Underwriter.
(c) The Selling Stockholder has, in accordance with the terms of the Release Letter dated the date hereof, irrevocably instructed the Collateral Agent to deliver the Firm Shares Stock to be sold by the Selling Stockholder hereunder to the Underwriter on the Initial Delivery date, and the obligations of the Selling Stockholder hereunder or thereunder shall not be terminated by any act of the Selling Stockholder, by operation of law or the occurrence of any other event.
(d) Upon payment of the purchase price for the Shares to be sold by the Selling Stockholder pursuant to this Agreement, delivery 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 securities account(s) (within the meaning of Section 8-501(a) of the UCC) accounts of the Underwriter maintained at DTC (assuming that neither DTC nor any such the Underwriter has notice of any “adverse claim,” claim (within the meaning of Section 8-105 of the UCC, ) to such SharesStock), (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” entitlement in respect of such Shares Stock and (iiiii) no action (whether framed in conversion, replevin, constructive trust, equitable lien, or other theory) based on any valid “adverse claim,” within the meaning of Section 8-102 of the UCC, to such Shares Stock may be asserted against the Underwriter with respect to such security entitlement. For purposes of this representation, the Selling Stockholder 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, and (C) appropriate entries to the account(s) 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.
(ec) The Selling Stockholder has full corporate right, power and authority authority, corporate or otherwise, to enter into and perform its obligations under this Agreement and the Release LetterAgreement.
(fd) This Agreement has been duly and validly authorized, executed and delivered by or on behalf of the Selling Stockholder.
(g) Each of this Agreement and the Release Letter has been duly and validly authorized, executed and delivered by, and is a valid and legally binding obligation of, the Selling Stockholder enforceable against the Selling Stockholder in accordance with its terms, subject to (i) the effects of bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium and other similar laws relating to or affecting creditors’ rights generally, (ii) general equitable principles (whether considered in a proceeding in equity or at law) and (iii) an implied covenant of good faith and fair dealing.
(he) The execution, delivery and performance of this Agreement and the Release Letter by the Selling Stockholder and the consummation by the Selling Stockholder 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 lease, pledge or other agreement or instrument to which the Selling Stockholder is a party or by which the Selling Stockholder is bound or to which any of the property or assets of the Selling Stockholder is subjectsubject which conflict, breach, violation or default would impair the ability of the Selling Stockholder to perform its obligations under this Agreement, (ii) result in any violation of the provisions of the charter any partnership or by-laws (limited liability company agreement, certificate of incorporation, bylaws, operating agreement, deed of trust or other similar agreement or organizational documents) document of the Selling Stockholder Stockholder, or (iii) result in any material violation of any statute or any order, rule or regulation of any court or governmental agency or body having jurisdiction over the Selling Stockholder (whether domestic or the property or assets of the Selling Stockholder.
(iforeign) No consent, approval, authorization or order of, or filing or registration with, any court or governmental agency or body having jurisdiction over the Selling Stockholder or the property or assets of the Selling Stockholder is required for which violation would impair the execution, delivery and performance ability of this Agreement or the Release Letter by the Selling Stockholder and the consummation by the Selling Stockholder of the transactions contemplated herebyto perform its obligations under this Agreement; and, except for the registration of the Shares Stock under the Securities Act Act, approval by FINRA and under such consents, approvals, authorizations, registrations or qualifications as may be required under the Exchange Act and applicable state or foreign securities laws in connection with the purchase and sale distribution of the Shares Stock by the Underwriter, no material consent, approval, authorization or order of, or filing or registration with, any such court or governmental agency or body is required for the execution, delivery and performance of this Agreement by the Selling Stockholder and the consummation by the Selling Stockholder of the transactions contemplated hereby.
(if) The Registration Statement did not, 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, 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 notnot as of the Applicable Time, and each Issuer Free Writing Prospectus (including, without limitation, any road show that is a free writing prospectus under Rule 433 of the Rules and Regulations), when considered together with 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) provided that the documents incorporated by reference foregoing representation and warranty shall apply only to the extent that any statements in or omissions from the Registration Statement, the Prospectus, 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 limitationProspectus, any road show that is a free writing prospectus under Rule 433)as applicable, 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 the Selling Stockholder (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 documentsInformation.
(kg) The Selling Stockholder’s sale of the Shares pursuant to this Agreement Stockholder is not prompted to sell shares of Common Stock by any material non-public negative information concerning the Company or any of its subsidiaries that is not set forth in the Registration Statement, the Pricing Disclosure Package and the Prospectus.
(lh) The Selling Stockholder has not taken and will not take, directly or indirectly, any action that is designed to or that which 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 of any the Selling Stockholder and delivered to the Underwriter or counsel for the Underwriter in connection with the offering of the Shares Stock shall be deemed a representation and warranty by the Selling Stockholder, as to matters covered thereby, to the Underwriter.
Appears in 1 contract
Representations, Warranties and Agreements of the Selling Stockholder. The Selling Stockholder represents, warrants and agrees that:
(a) Neither the Selling Stockholder nor any person acting on behalf of the Selling Stockholder (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) The Selling Stockholder hashas good and valid title to the shares of the Stock to be sold by the Selling Stockholder hereunder and, or immediately prior to the Initial Delivery Date on which the Selling Stockholder is selling sharesClosing Date, the Selling Stockholder will have, good and valid title toto such shares, free and clear of all liens, encumbrances, equities or a claims; and upon delivery of such shares and payment therefor pursuant hereto, good and valid “security entitlement” within the meaning of Section 8-501 of the New York Uniform Commercial Code (the “UCC”) in respect of, the Shares title to be sold by the Selling Stockholder hereunder on such Delivery Dateshares, free and clear of all liens, encumbrances, equities or claims, except for any liens, encumbrances, equities or claims or otherwise in favor of will pass to the Underwriter.
(c) The Selling Stockholder hashas full right, in accordance with the terms of the Release Letter dated the date hereofpower and authority, irrevocably instructed the Collateral Agent corporate or otherwise, to deliver the Firm Shares to be sold by the Selling Stockholder hereunder to the Underwriter on the Initial Delivery date, and the obligations of the Selling Stockholder hereunder or thereunder shall not be terminated by any act of the Selling Stockholder, by operation of law or the occurrence of any other evententer into this Agreement.
(d) Upon payment of the purchase price for the Shares to be sold by the Selling Stockholder 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 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 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, the Selling Stockholder 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(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) The Selling Stockholder has full corporate power and authority to enter into and perform its obligations under this Agreement and the Release Letter.
(f) This Agreement has been duly and validly authorized, executed and delivered by or on behalf of the Selling Stockholder.
(g) Each of this Agreement and the Release Letter has been duly and validly authorized, executed and delivered by, and is a valid and legally binding obligation of, the Selling Stockholder enforceable against the Selling Stockholder in accordance with its terms, subject to (i) the effects of bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium and other similar laws relating to or affecting creditors’ rights generally, (ii) general equitable principles (whether considered in a proceeding in equity or at law) and (iii) an implied covenant of good faith and fair dealing.
(he) The execution, delivery and performance of this Agreement and the Release Letter by the Selling Stockholder and the consummation by the Selling Stockholder 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 the Selling Stockholder is a party or by which the Selling Stockholder it is bound or to which any of the its property or assets of the Selling Stockholder is subject, (ii) result in any violation of the provisions of the charter Certificate of Limited Partnership or by-laws (or similar organizational documents) the Amended and Restated Limited Partnership Agreement of the Selling Stockholder or (iii) result in any violation of any statute or any order, rule or regulation of any court or governmental agency or body having jurisdiction over the Selling Stockholder or the its property or assets assets, except in the cases of clauses (i) and (iii) to the extent any such conflict, breach, violation or default would not reasonably be expected to have a material adverse effect on the general affairs, financial position, partners’ equity, results of operations, properties or business of the Selling Stockholder.
Stockholder and its subsidiaries taken as a whole; and, except for (iA) No the registration of the Stock under the Securities Act, (B) the authorization by the FERC of a disposition of jurisdictional facilities in connection with the sale of the shares of Stock contemplated in this Agreement pursuant to Section 203 of the Federal Power Act and (C) such consents, approvals, authorizations, registrations or qualifications as may be required under (I) the Exchange Act and (II) applicable state or foreign securities laws, no consent, approval, authorization or order of, or filing or registration with, any such court or governmental agency or body having jurisdiction over the Selling Stockholder or the property or assets of the Selling Stockholder is required for the execution, delivery and performance of this Agreement or the Release Letter by the Selling Stockholder and the consummation by the Selling Stockholder of the transactions contemplated hereby, except for the registration of the Shares under the Securities Act and such consents, approvals, authorizations, registrations or qualifications as may be required under the Exchange Act and applicable state or foreign securities laws in connection with the purchase and sale of the Shares by the Underwriter.
(if) The Registration Statement did and the Preliminary Prospectus or Prospectus and any further amendments or supplements to the Registration Statement or the Preliminary Prospectus or Prospectus do not and will not, as of the Effective Date, applicable effective date (as to the Registration Statement and any amendment thereto) and as of its date and as of the Closing Date (as to the Preliminary Prospectus or Prospectus and any amendment or supplement thereto) contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading; (ii) in the case of the Preliminary 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 thereinProspectus, 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 this paragraph (g) shall apply to the representations and warranties in Selling Stockholder only to the foregoing clauses (i) through (v) are made only as to extent that the statements or omissions from the Registration Statement or the Preliminary Prospectus or Prospectus were made in reliance upon and in conformity with written information furnished relating to the Selling Stockholder provided by the Selling Stockholder to the Company by or on behalf of specifically for inclusion therein.
(g) Neither the Selling Stockholder (x) specifically for use in nor, to 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.
(k) The Selling Stockholder’s sale of knowledge, any person acting on its behalf (other than the Shares pursuant to this Agreement is not prompted by any material non-public information concerning the Company or any of its subsidiaries that is not set forth in the Registration Statement, the Pricing Disclosure Package Underwriter) has taken and the Prospectus.
(l) The Selling Stockholder has not taken and will not take, directly or indirectly, any action that is designed to or that has constituted or that could would reasonably be have been expected to cause or result in the stabilization or manipulation of the price of any security of the Company to facilitate or its subsidiaries in connection with the sale or resale of the Shares. Any certificate signed by any officer of any Selling Stockholder and delivered to the Underwriter or counsel for the Underwriter in connection with the offering of the Shares shall be deemed a representation and warranty by the Selling Stockholder, as to matters covered thereby, to the UnderwriterStock.
Appears in 1 contract
Representations, Warranties and Agreements of the Selling Stockholder. The Selling Stockholder represents, warrants and agrees that:
(a) The Selling Stockholder now is and at the time of delivery of the shares of Stock will be, the record and beneficial owner of the shares of Stock to be sold at the Delivery Date by the Selling Stockholder pursuant to this Agreement, free and clear of all liens, encumbrances, equities or adverse claims. Upon payment for the shares of Stock to be sold by the Selling Stockholder pursuant to this Agreement, delivery of the shares of Stock, 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 of Stock in the name of Cede or such other nominee and the crediting of such shares of Stock on the books of DTC to securities accounts of the Underwriter, (A) DTC will be a “protected purchaser” of such shares of Stock within the meaning of Section 8-303 of the Uniform Commercial Code as in effect in the State of New York (the “UCC”), (B) under Section 8-501 of the UCC, the Underwriter will acquire a valid security entitlement with respect to such shares of Stock and (C) no action based on an “adverse claim,” within the meaning of Section 8-102 of the UCC, to such shares of Stock may be asserted against the Underwriter with respect to such security entitlement. For purposes of this Section 2(a), the Selling Stockholder may assume that when such payment, delivery, registration and crediting occur, (x) such shares of 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 certificate of incorporation and applicable law, (y) DTC is a “clearing corporation” within the meaning of Section 8-102 of the UCC and (z) DTC indicates by book entries on its books that security entitlements with respect to the Shares have been credited to the accounts of the Underwriter.
(b) The Selling Stockholder has and at the time of delivery of the Shares of Stock will have, full legal right, power and capacity, and any approval required by law (other than those imposed by the Securities Act and the securities or blue sky laws of certain jurisdictions), to sell, assign, transfer and deliver the shares of Stock in the manner provided in this Agreement.
(c) This Agreement has been duly authorized, executed and delivered by or on behalf of the Selling Stockholder.
(d) The execution, delivery and performance of this Agreement by the Selling Stockholder, the sale of the shares of Stock to be sold by the Selling Stockholder hereunder and the compliance by the Selling Stockholder with all of the provisions of this Agreement, and the consummation by the Selling Stockholder of the transactions contemplated hereby and thereby (i) will not conflict with, or result in any breach of or constitute a default under (nor constitute any event which, with notice, lapse of time, or both, would result in any breach of, or constitute a default under), (x) its charter, by-laws or other organizational documents, (y) any indenture, mortgage, deed of trust, bank loan or credit agreement or other evidence of indebtedness, or any license, lease, contract or other agreement or instrument to which the Selling Stockholder is a party or by which the Selling Stockholder or the Selling Stockholder’s properties may be bound or affected and which is material to the Selling Stockholder or which is material to the transactions contemplated by this Agreement or (z) under any federal, state, local or foreign law, regulation or rule in any decree, judgment or order applicable to the Selling Stockholder, and (ii) such sale cannot be matched with a corresponding purchase prior to the time of purchase, for purposes of, and as determined pursuant to, Section 16(b) of the Exchange Act.
(e) The obligations of the Selling Stockholders hereunder shall not be terminated by operation of law, whether by the dissolution of liquidation of the Selling Stockholder or by the occurrence of any other event. If the Selling Stockholder should be dissolved or liquidated, or if any other such event should occur, before the delivery of the shares of Stock hereunder, certificates representing the shares of Stock to be sold by the Selling Stockholder shall be delivered by or on behalf of the Selling Stockholder in accordance with the terms and conditions of this Agreement.
(f) The Registration Statement did not, as of the Effective Date, contain an untrue statement of a material fact concerning the Selling Stockholder Information or omit to state a material fact concerning the Selling Stockholder Information required to be stated therein or necessary to make the statements therein not misleading. The Prospectus will not, as of its date and on the Delivery Date, contain an untrue statement of a material fact concerning the Selling Stockholder Information or omit to state a material fact concerning the Selling Stockholder Information required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading. The Incorporated Documents did not and will not, when filed with the Commission, contain an untrue statement of a material fact concerning the Selling Stockholder Information or omit to state a material fact concerning the Selling Stockholder Information required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading. The Pricing Disclosure Package did not, as of the Applicable Time, contain an untrue statement of a material fact concerning the Selling Stockholder Information or omit to state a material fact concerning the Selling Stockholder Information 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.
(g) The Selling Stockholder has not taken, directly or indirectly, any action designed, or which has constituted or could reasonably be expected to cause or result in, under the Exchange Act or otherwise, the stabilization or manipulation of the price of any security of the Company to facilitate the resale of the shares of Stock.
(h) The sale of the shares of Stock pursuant to this Agreement is not prompted by any material negative facts concerning the Company’s operations and business which are not set forth in the Registration Statement, the Pricing Disclosure Package and the Prospectus.
(i) No approval, authorization, consent or order of or filing with any federal, state, local or foreign governmental or regulatory commission, board, body, authority or agency, in each case having jurisdiction over the Selling Stockholder or the property or assets of the Selling Stockholder, is required for the performance of such Selling Stockholder of its obligations under this Agreement, except such as may have been previously made and obtained or as may be required (i) under the Securities Act and the regulations promulgated thereunder, (ii) under the Exchange Act and applicable state securities laws in connection with the purchase and sale of the Stock by the Underwriter, (iii) pursuant to the rules and regulations of FINRA and (iv) the securities or blue sky laws of the various state or foreign jurisdictions in which the shares of Stock are being offered by the Underwriter.
(j) Neither the Selling Stockholder nor any person acting on behalf of the Selling Stockholder (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) The Selling Stockholder has, or immediately prior to the Initial Delivery Date on which the Selling Stockholder is selling shares, the Selling Stockholder 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 the Selling Stockholder hereunder on such Delivery Date, free and clear of all liens, encumbrances, equities or claims, except for any liens, encumbrances, equities or claims or otherwise in favor of the Underwriter.
(c) The Selling Stockholder has, in accordance with the terms of the Release Letter dated the date hereof, irrevocably instructed the Collateral Agent to deliver the Firm Shares to be sold by the Selling Stockholder hereunder to the Underwriter on the Initial Delivery date, and the obligations of the Selling Stockholder hereunder or thereunder shall not be terminated by any act of the Selling Stockholder, by operation of law or the occurrence of any other event.
(d) Upon payment of the purchase price for the Shares to be sold by the Selling Stockholder 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 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 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, the Selling Stockholder 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(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) The Selling Stockholder has full corporate power and authority to enter into and perform its obligations under this Agreement and the Release Letter.
(f) This Agreement has been duly and validly authorized, executed and delivered by or on behalf of the Selling Stockholder.
(g) Each of this Agreement and the Release Letter has been duly and validly authorized, executed and delivered by, and is a valid and legally binding obligation of, the Selling Stockholder enforceable against the Selling Stockholder in accordance with its terms, subject to (i) the effects of bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium and other similar laws relating to or affecting creditors’ rights generally, (ii) general equitable principles (whether considered in a proceeding in equity or at law) and (iii) an implied covenant of good faith and fair dealing.
(h) The execution, delivery and performance of this Agreement and the Release Letter by the Selling Stockholder and the consummation by the Selling Stockholder of the transactions contemplated hereby and thereby do not and will not (i) conflict with or result in a breach or violation of any of the terms or provisions of, or constitute a default under, any indenture, mortgage, deed of trust, loan agreement, license or other agreement or instrument to which the Selling Stockholder is a party or by which the Selling Stockholder is bound or to which any of the property or assets of the Selling Stockholder is subject, (ii) result in any violation of the provisions of the charter or by-laws (or similar organizational documents) of the Selling Stockholder or (iii) result in any violation of any statute or any order, rule or regulation of any court or governmental agency or body having jurisdiction over the Selling Stockholder or the property or assets of the Selling Stockholder.
(i) No consent, approval, authorization or order of, or filing or registration with, any court or governmental agency or body having jurisdiction over the Selling Stockholder or the property or assets of the Selling Stockholder is required for the execution, delivery and performance of this Agreement or the Release Letter by the Selling Stockholder and the consummation by the Selling Stockholder of the transactions contemplated hereby, except for the registration of the Shares under the Securities Act and such consents, approvals, authorizations, registrations or qualifications as may be required under the Exchange Act and applicable state 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 the Selling Stockholder (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.
(k) The Selling Stockholder’s sale of the Shares pursuant to this Agreement is not prompted by any material non-public information concerning the Company or any of its subsidiaries that is not set forth in the Registration Statement, the Pricing Disclosure Package and the Prospectus.
(l) The Selling Stockholder 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 SharesStock. Any certificate signed by any officer of any the Selling Stockholder and delivered to the Underwriter or counsel for the Underwriter in connection with the offering of the Shares Stock shall be deemed a representation and warranty by the Selling Stockholder, as to matters covered thereby, to the Underwriter.
Appears in 1 contract
Representations, Warranties and Agreements of the Selling Stockholder. The Selling Stockholder represents, warrants and agrees that:
(a) Neither the Selling Stockholder nor any person acting on behalf of the Selling Stockholder (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) The Selling Stockholder has, or and immediately prior to the Initial First Delivery Date on which (as defined in Section 5 hereof) with respect to the Selling Stockholder is selling sharesShares and, immediately prior to the Second Delivery Date with respect to the Option Shares, the Selling Stockholder 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, to the Shares to be sold by the Selling Stockholder hereunder and to the U.S. Underwriters under the U.S. Underwriting Agreement on such Delivery Datedates, free and clear of all liens, encumbrances, equities or claims; and upon the deposit of the Shares underlying the ADSs with the Depositary pursuant to the Deposit Agreement against issuance of the ADRs evidencing the ADSs, except for any all right, title and interest in such Shares, subject to the Deposit Agreement, will be transferred to the Depositary or its nominee, as the case may be, free and clear of all liens, security interests, pledges, charges, encumbrances, equities shareholders' agreements, voting trusts, restrictions on transfer or claims or otherwise in favor of the Underwriteradverse claims.
(cb) The Selling Stockholder hashas placed in custody under a custody agreement (the "Custody Agreement") with [the Company] as custodian (the "Custodian"), in accordance for delivery under this Agreement, duly executed stock transfer forms together with the terms relevant share certificates in negotiable form (with signature guaranteed by a commercial bank or trust company having an office or correspondent in the United States or a member firm of the Release Letter dated the date hereof, irrevocably instructed the Collateral Agent to deliver the Firm Shares to be sold by the Selling Stockholder hereunder to the Underwriter on the Initial Delivery date, and the obligations of the Selling Stockholder hereunder New York or thereunder shall not be terminated by any act of the Selling Stockholder, by operation of law or the occurrence of any other event.
(dAmerican Stock Exchanges) Upon payment of the purchase price for representing the Shares to be sold by the Selling Stockholder 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 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 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, the Selling Stockholder 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(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 intermediaryhereunder.
(ec) The Selling Stockholder has duly and irrevocably executed and delivered a power of attorney (the "Power of Attorney") appointing [the Custodian and one or more other persons] as attorneys-in-fact, with full corporate power of substitution, and with full authority (exercisable by any one or more of them) to enter into execute and perform its obligations under deliver this Agreement and to take such other action as may be necessary or desirable to carry out the Release Letter.
(f) This Agreement has been duly and validly authorized, executed and delivered by or provisions hereof on behalf of the Selling Stockholder.
(gd) Each of The Selling Stockholder has full right, power and authority to enter into this Agreement and the Release Letter has been duly and validly authorized, executed and delivered by, and is a valid and legally binding obligation ofU.S. Underwriting Agreement, the Selling Stockholder enforceable against Power of Attorney and the Selling Stockholder in accordance with its terms, subject to (i) Custody Agreement; 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.
(h) The execution, delivery and performance of this Agreement and the Release Letter U.S. Underwriting Agreement, the Power of Attorney and the Custody Agreement by the Selling Stockholder and the consummation by the Selling Stockholder 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, (i) any indenture, mortgage, deed of trust, loan agreement, license agreement or other agreement or instrument to which the Selling Stockholder is a party or by which the Selling Stockholder is bound or to which any of the property or assets of the Selling Stockholder is subject, or (ii) result in any violation of the provisions of the charter or by-laws (or similar organizational documents) of the Selling Stockholder or (iii) result in any violation of any statute or any order, rule or regulation of any court or governmental agency or body having jurisdiction over the Selling Stockholder or the property or assets of the Selling Stockholder.
(i) No consent, approvalother than such breaches or violations which, authorization individually or order ofin the aggregate, would not have or filing result in a material adverse effect on the general affairs, management, financial position, stockholders' equity, results of operations, business or registration with, any court or governmental agency or body having jurisdiction over the Selling Stockholder or the property or assets prospects of the Selling Stockholder is required for the execution, delivery and performance of this Agreement or the Release Letter by the Selling Stockholder and the consummation by the Selling Stockholder of the transactions contemplated herebyCompany; and, except for the registration of the Shares and the ADSs under the Securities Act and such consents, approvals, authorizations, registrations or qualifications as may be required under the Exchange Act and applicable state or foreign securities laws in connection with the purchase and sale distribution of the Shares ADSs by the UnderwriterU.S. Underwriters and the International Managers, no consent, approval, authorization or order of, or filing or registration with, any such court or governmental agency or body is required for the execution, delivery and performance of this Agreement or the U.S. Underwriting Agreement, the Power of Attorney or the Custody Agreement by the Selling Stockholder and the consummation by the Selling Stockholder of the transactions contemplated hereby and thereby.
(ie) The Registration Statement did Statements and the Prospectus and any further amendments or supplements to the Registration Statements or the Prospectus will, when they become effective or are filed with the Commission, as the case may be, do not and will not, as of the Effective Date, applicable effective date (as to the Registration Statements and any amendment thereto) and as of the applicable filing date (as to the Prospectus and any amendment or supplement thereto) contain an untrue statement of a material fact or omit to state a material fact relating to the Selling Stockholder and 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 the Selling Stockholder (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.
(k) The Selling Stockholder’s sale of the Shares pursuant to this Agreement is not prompted by any material non-public information concerning the Company or any of its subsidiaries that is not set forth in the Registration Statement, the Pricing Disclosure Package and the Prospectus.
(lf) The Selling Stockholder 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 ADSs.
(g) Except as will be paid pursuant to Section 8 hereof or as disclosed in the Prospectus, no stamp or other issuance or transfer taxes or duties and no capital gains income, withholding or other taxes are payable by any officer or on behalf of any Selling Stockholder and delivered the International Managers to the Underwriter United States or counsel for the Underwriter Greek government or any political subdivision or taxing authority thereof or therein in connection with (i) the offering deposit of Shares with the Shares shall Depositary against issuance of ADRs evidencing ADSs to be deemed a representation and warranty sold to the International Managers by the Selling Stockholder, as to matters covered thereby, or (ii) the sale of the Shares and the ADSs to the UnderwriterInternational Managers by the Selling Stockholder in the manner contemplated hereby.
(h) Neither the Selling Stockholder nor any of his properties or assets has any immunity from jurisdiction of any court or from any legal process (whether through service of notice, attachment prior to judgment, attachment in aid of execution, execution or otherwise).
Appears in 1 contract
Samples: International Underwriting Agreement (Antenna Tv Sa)
Representations, Warranties and Agreements of the Selling Stockholder. The Selling Stockholder represents, warrants and agrees that:
(a) Neither the Selling Stockholder nor any person acting on behalf of the Selling Stockholder (other than, if applicable, the Company and the UnderwriterUnderwriters) has used or referred to any “free writing prospectus” (as defined in Rule 405), 405 under the Securities Act) relating to the SharesStock.
(b) The Selling Stockholder has, or and immediately prior to the Initial any Delivery Date on which the Selling Stockholder is selling sharesshares of Stock, the Selling Stockholder will have, good and valid marketable title to, or a valid to the shares of Stock to be sold by the Selling Stockholder hereunder on such Delivery Date and any “security entitlement” within the meaning of Section 8-501 of the New York Uniform Commercial Code (the “UCC”) in respect of, the Shares to be sold by the Selling Stockholder hereunder on such Delivery Datethereof, free and clear of all liens, encumbrances, equities equities, community property rights, restrictions on transfer or claims, except for any liens, encumbrances, equities or claims or otherwise in favor of the Underwriter.
(c) The Selling Stockholder has, in accordance with Upon payment for the terms of the Release Letter dated the date hereof, irrevocably instructed the Collateral Agent to deliver the Firm Shares Stock to be sold by the Selling Stockholder hereunder to the Underwriter on the Initial Delivery date, and the obligations of the Selling Stockholder hereunder or thereunder shall not be terminated by any act of the Selling Stockholder, by operation of law or the occurrence of any other event.
(d) Upon payment of the purchase price for the Shares to be sold by the Selling Stockholder pursuant to this Agreement, delivery of such SharesStock, 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 Stock in the name of Cede or such other nominee, nominee and the crediting of such Shares Stock on the books of DTC to securities account(s) (within the meaning of Section 8-501(a) accounts of the UCCUnderwriters (i) DTC will acquire good and marketable title to the Stock free and clear of the Underwriter maintained at DTC (assuming that neither DTC nor any such Underwriter has notice of any “adverse claim,” within the meaning of Section 8-105 of the 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 Stock within the meaning of Section 8-303 of the UCCXxxxxxx 0 000 xx xxx XXX, (iixxx) under Section 8-8 501 of the UCC, the Underwriter Underwriters will acquire a valid “security entitlement” entitlement in respect of such Shares Stock, and (iiiiv) no an action (based on an adverse claim to such securities entitlement, whether framed in conversion, replevin, constructive trust, equitable lien, lien or other theory) based on any “adverse claim,” within the meaning of Section 8-102 of the UCC, to such Shares theory may not be successfully asserted against the Underwriter Underwriters with respect to such security entitlement. For purposes of this representation, the Selling Stockholder 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 8-8 102 of the UCC, and (Cz) appropriate entries to the account(s) 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) The Selling Stockholder has full corporate right, power and authority authority, corporate or otherwise, to enter into and perform its obligations under this Agreement and the Release LetterAgreement.
(fe) This Agreement has been duly and validly authorized, executed and delivered by or on behalf of the Selling Stockholder.
(gf) Each The sale of this Agreement and the Release Letter has been duly and validly authorized, executed and delivered by, and is a valid and legally binding obligation ofStock by the Selling Stockholder, the Selling Stockholder enforceable against the Selling Stockholder in accordance with its terms, subject to (i) the effects of bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium and other similar laws relating to or affecting creditors’ rights generally, (ii) general equitable principles (whether considered in a proceeding in equity or at law) and (iii) an implied covenant of good faith and fair dealing.
(h) The execution, delivery and performance of this Agreement and the Release Letter by the Selling Stockholder and the consummation by the Selling Stockholder 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 the Selling Stockholder is a party or by which the Selling Stockholder is bound or to which any of the property or assets of the Selling Stockholder is subject, (ii) result in any violation of the provisions of the charter or by-laws (or similar organizational documents) of the Selling Stockholder Stockholder, 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 Stockholder or the property or assets of the Selling Stockholder except, in the case of the foregoing clauses (i) and (iii), as would not reasonably be expected to have a material adverse effect on the Selling Stockholder’s ability to perform its obligations under this Agreement.
(ig) No consent, approval, authorization or order of, or filing or registration with, any court or governmental agency or body having jurisdiction over the Selling Stockholder or the property or assets of the Selling Stockholder is required for the sale of the Stock by the Selling Stockholder, the execution, delivery and performance of this Agreement or the Release Letter by the Selling Stockholder and the consummation by the Selling Stockholder of the transactions contemplated hereby, except for the registration of the Shares Stock under the Securities Act and such consents, approvals, authorizations, orders, filings, registrations or qualifications as may be required under the Exchange Act Act, the rules and regulations of FINRA and applicable state or foreign securities laws and such other approvals as have been or will have been made prior to the Initial Delivery Date in connection with the purchase and sale of the Shares Stock by the UnderwriterUnderwriters.
(ih) The To the knowledge of the Selling Stockholder, 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 (i) no representation or warranty is made as to information contained in or omitted from the Registration Statement in reliance upon and in conformity with written information furnished to the Company through the Representatives by or on behalf of any Underwriter specifically for inclusion therein, which information is specified in Section 10(f), and (ii) the representations and warranties set forth in this Section 2(h) are limited to statements or omissions made in reliance upon and in conformity with written information relating to the Selling Stockholder furnished to the Company by the Selling Stockholder expressly for use in the Registration Statement, it being understood and agreed that, as to the Selling Stockholder, the only such information furnished to the Company by the Selling Stockholder consists of the name of the Selling Stockholder, the number of securities offered by the Selling Stockholder, and the address and other information with respect to the Selling Stockholder (excluding percentages) that appear in the table and corresponding footnotes under the caption “Selling Stockholder” (such information, the “Selling Stockholder Information”) in the Registration Statement.
(i) To the knowledge of the Selling Stockholder, the Prospectus will not, as of its date and on or as of 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; provided that (iiii) no representation or warranty is made as to information contained in or omitted from the Prospectus in reliance upon and in conformity with written information furnished to the Company through the Representatives by or on behalf of any Underwriter specifically for inclusion therein, which information is specified in Section 10(f), and (ii) the representations and warranties set forth in this Section 2(i) are limited to statements or omissions made in reliance upon and in conformity with written information relating to the Selling Stockholder furnished to the Company by the Selling Stockholder expressly for use in the Prospectus, it being understood and agreed that, as to the Selling Stockholder, the only such information contained in the Prospectus consists of the Selling Stockholder Information.
(j) To the knowledge of the Selling Stockholder, 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 (i) no representation or warranty is made as to information contained in or omitted from the Pricing Disclosure Package in reliance upon and in conformity with written information furnished to the Company through the Representatives by or on behalf of any Underwriter specifically for inclusion therein, which information is specified in Section 10(f), and (ii) the representations and warranties set forth in the foregoing clauses (i) through (vthis Section 2(j) are made only as limited to statements or omissions made in reliance upon and in conformity with written information relating to the Selling Stockholder furnished to the Company by the Selling Stockholder expressly for use in the Pricing Disclosure Package, it being understood and agreed that, as to the Selling Stockholder, the only such information contained in the Pricing Disclosure Package consists of the Selling Stockholder Information.
(k) To the knowledge of the Selling Stockholder, the Pricing Disclosure Package, when taken together with each Issuer Free Writing Prospectus listed in Schedule IV hereto, did not, as of the Applicable Time, contain an untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading; provided that (i) no representation or warranty is made as to information contained in or omitted from the Pricing Disclosure Package (or any Issuer Free Writing Prospectus listed in Schedule IV hereto) in reliance upon and in conformity with written information furnished to the Company through the Representatives by or on behalf of any Underwriter specifically for inclusion therein, which information is specified in Section 10(f), and (ii) the representations and warranties set forth in this Section 2(k) are limited to statements or omissions made in reliance upon and in conformity with written information relating to the Selling Stockholder (x) specifically furnished to the Company by the Selling Stockholder expressly for use in the preparation of the Registration Statement, (y) specifically for inclusion in the Registration Statement, the Pricing Disclosure Package or in any Issuer Free Writing Prospectus listed in Schedule IV hereto, it being understood and agreed that, as to the Prospectus or (z) specifically for inclusion in such other documents.
(k) The Selling Stockholder’s sale of , the Shares pursuant to this Agreement is not prompted by any material non-public only such information concerning the Company or any of its subsidiaries that is not set forth contained in the Registration Statement, the Pricing Disclosure Package and or in any Issuer Free Writing Prospectus listed in Schedule IV hereto consists of the ProspectusSelling Stockholder Information.
(l) The Selling Stockholder has is not taken and will not take(1) an employee benefit plan subject to Title I of ERISA, directly (2) a plan or indirectly, any action that is designed account subject to or that has constituted or that could reasonably be expected to cause or result in the stabilization or manipulation Section 4975 of the price Internal Revenue Code of 1986, as amended or (3) an entity deemed to hold “plan assets” of any security such plan or account under Section 3(42) of the Company to facilitate the sale ERISA, 29 C.F.R. 2510.3-101, or resale of the Sharesotherwise. Any certificate signed by any officer of any Selling Stockholder and delivered to the Underwriter Representatives or counsel for the Underwriter Underwriters in connection with the offering of the Shares Stock shall be deemed a representation and warranty by the Selling Stockholder, as to matters covered thereby, to the each Underwriter.
Appears in 1 contract
Samples: Underwriting Agreement (Allegro Microsystems, Inc.)
Representations, Warranties and Agreements of the Selling Stockholder. The Selling Stockholder represents, warrants and agrees that:
(a) Neither the Selling Stockholder nor any person acting on behalf of the Selling Stockholder (other thanthan the Underwriters) has distributed and, if applicableprior to the later to occur of the Delivery Date and completion of the distribution of the Stock, will distribute any offering material in connection with the offering and sale of the Stock other than any Preliminary Prospectus, the Company and Prospectus or any Issuer Free Writing Prospectus to which the UnderwriterUnderwriters have consented in accordance with Section 1(i) has used or referred to any “free writing prospectus” (as defined in Rule 4056(a)(vi), relating to the Shares.
(b) The Selling Stockholder has, or and immediately prior to the Initial Delivery Date on which the Selling Stockholder is selling shares, the Selling Stockholder will have, good and valid title to, 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 the Selling Stockholder hereunder on such the Delivery Date, free and clear of all liens, encumbrances, equities or claims, except . Upon payment for any liens, encumbrances, equities or claims or otherwise in favor of the Underwriter.
(c) The Selling Stockholder has, in accordance with the terms of the Release Letter dated the date hereof, irrevocably instructed the Collateral Agent to deliver the Firm Shares Stock to be sold by the Selling Stockholder hereunder to the Underwriter on the Initial Delivery date, and the obligations of the Selling Stockholder hereunder or thereunder shall not be terminated by any act of the Selling Stockholder, by operation of law or the occurrence of any other event.
(d) Upon payment of the purchase price for the Shares to be sold by the Selling Stockholder pursuant to this Agreement, delivery of such SharesStock, 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 Stock in the name of Cede or such other nominee, nominee and the crediting of such Shares Stock on the books of DTC 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 any such Underwriter has notice of any “adverse claim,” claim (within the meaning of Section 8-105 of the UCC, ) to such SharesStock), (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” entitlement in respect of such Shares Stock and (iiiii) no action (whether framed in conversion, replevin, constructive trust, equitable lien, or other theory) based on any valid “adverse claim,” within the meaning of Section 8-102 of the UCC, to such Shares Stock may be asserted against the Underwriter Underwriters with respect to such security entitlement. For purposes of this representation, the Selling Stockholder 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, and (C) appropriate entries to the account(s) accounts of the Underwriter 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.
(ec) The Selling Stockholder has full corporate right, power and authority authority, corporate or otherwise, to enter into and perform its obligations under this Agreement and the Release LetterAgreement.
(fd) This Agreement has been duly and validly authorized, executed and delivered by or on behalf of the Selling StockholderStockholder to the extent applicable.
(g) Each of this Agreement and the Release Letter has been duly and validly authorized, executed and delivered by, and is a valid and legally binding obligation of, the Selling Stockholder enforceable against the Selling Stockholder in accordance with its terms, subject to (i) the effects of bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium and other similar laws relating to or affecting creditors’ rights generally, (ii) general equitable principles (whether considered in a proceeding in equity or at law) and (iii) an implied covenant of good faith and fair dealing.
(he) The execution, delivery and performance of this Agreement and the Release Letter by the Selling Stockholder and the consummation by the Selling Stockholder 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 lease, pledge or other agreement or instrument to which the Selling Stockholder is a party or by which the Selling Stockholder is bound or to which any of the property or assets of the Selling Stockholder is subjectsubject which conflict, breach, violation or default would impair the ability of the Selling Stockholder to perform its obligations under this Agreement, (ii) result in any violation of the provisions of the charter any partnership or by-laws (limited liability company agreement, certificate of incorporation, bylaws, operating agreement, deed of trust or other similar agreement or organizational documents) document of the Selling Stockholder to the extent applicable, or (iii) result in any material violation of any statute or any order, rule or regulation of any court or governmental agency or body having jurisdiction over the Selling Stockholder (whether domestic or the property or assets of the Selling Stockholder.
(iforeign) No consent, approval, authorization or order of, or filing or registration with, any court or governmental agency or body having jurisdiction over the Selling Stockholder or the property or assets of the Selling Stockholder is required for which violation would impair the execution, delivery and performance ability of this Agreement or the Release Letter by the Selling Stockholder and the consummation by the Selling Stockholder of the transactions contemplated herebyto perform its obligations under this Agreement; and, except for the registration of the Shares Stock under the Securities Act Act, approval by FINRA and under such consents, approvals, authorizations, registrations or qualifications as may be required under the Exchange Act and applicable state or foreign securities laws in connection with the purchase and sale distribution of the Shares Stock by the UnderwriterUnderwriters, no material consent, approval, authorization or order of, or filing or registration with, any such court or governmental agency or body is required for the execution, delivery and performance of this Agreement by the Selling Stockholder and the consummation by the Selling Stockholder of the transactions contemplated hereby.
(if) The Registration Statement did not, 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, 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 notnot as of the Applicable Time, and each Issuer Free Writing Prospectus (including, without limitation, any road show that is a free writing prospectus under Rule 433 of the Rules and Regulations), when considered together with 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) provided that the documents incorporated by reference foregoing representation and warranty shall apply only to the extent that any statements in or omissions from the Registration Statement, the Prospectus, 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 limitationProspectus, any road show that is a free writing prospectus under Rule 433)as applicable, 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 the Selling Stockholder (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 documentsInformation.
(kg) The Selling Stockholder’s sale of the Shares pursuant to this Agreement Stockholder is not prompted to sell shares of Common Stock by any material non-public negative information concerning the Company or any of its subsidiaries that is not set forth in the Registration Statement, the Pricing Disclosure Package and the Prospectus.
(lh) The Selling Stockholder has not taken and will not take, directly or indirectly, any action that is designed to or that which 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 of any the Selling Stockholder and delivered to the Underwriter or counsel for the Underwriter Underwriters in connection with the offering of the Shares Stock shall be deemed a representation and warranty by the Selling Stockholder, as to matters covered thereby, to the each Underwriter.
Appears in 1 contract
Representations, Warranties and Agreements of the Selling Stockholder. The Selling Stockholder represents, warrants and agrees that:
(a) The Selling Stockholder has been duly organized and is validly existing as a limited liability company in good standing in its jurisdiction of formation.
(b) Neither the Selling Stockholder nor any person acting on behalf of the Selling Stockholder (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 SharesStock.
(bc) The Selling Stockholder has, or and immediately prior to the Initial any Delivery Date on which the Selling Stockholder is selling sharesshares of Stock (and after completion of the Redemption Transaction), the Selling Stockholder will have, good and valid marketable title to, or a valid to the shares of Stock to be sold by the Selling Stockholder hereunder on such Delivery Date and any “security entitlement” within the meaning of Section 8-501 of the New York Uniform Commercial Code (the “UCC”) in respect of, the Shares to be sold by the Selling Stockholder hereunder on such Delivery Datethereof, free and clear of all liens, encumbrances, equities equities, community property rights, restrictions on transfer or claims, except for any liens, encumbrances, equities or claims or otherwise in favor of the Underwriter.
(c) The Selling Stockholder has, in accordance with the terms of the Release Letter dated the date hereof, irrevocably instructed the Collateral Agent to deliver the Firm Shares to be sold by the Selling Stockholder hereunder to the Underwriter on the Initial Delivery date, and the obligations of the Selling Stockholder hereunder or thereunder shall not be terminated by any act of the Selling Stockholder, by operation of law or the occurrence of any other event.
(d) Upon payment of the purchase price for the Shares Stock to be sold by the Selling Stockholder pursuant to this AgreementStockholder, delivery of such SharesStock, 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 Stock in the name of Cede or such other nominee, nominee and the crediting of such Shares Stock on the books of DTC to securities account(s) (within the meaning of Section 8-501(a) accounts of the UCC) of the Underwriter maintained at DTC (assuming that neither DTC nor any such Underwriter has notice of any “adverse claim,” within the meaning of Section 8-105 of the UCC, to such Shares), Underwriters (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 Underwriters will acquire a valid “security entitlement” entitlement in respect of such Shares Stock, and (iii) no an action (based on an adverse claim to such securities entitlement, whether framed in conversion, replevin, constructive trust, equitable lien, lien or other theory) based on any “adverse claim,” within the meaning of Section 8-102 of the UCC, to such Shares theory may not be successfully asserted against the Underwriter Underwriters with respect to such security entitlement. For purposes of this representation, the such Selling Stockholder 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, and (Cz) appropriate entries to the account(s) 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.
(e) The Selling Stockholder has full corporate right, power and authority authority, corporate or otherwise, to enter into and perform its obligations under this Agreement and the Release LetterAgreement.
(f) This Agreement has been duly and validly authorized, executed and delivered by or on behalf of the Selling Stockholder.
(g) Each The sale of this Agreement and the Release Letter has been duly and validly authorized, executed and delivered by, and is a valid and legally binding obligation ofStock by the Selling Stockholder, the Selling Stockholder enforceable against the Selling Stockholder in accordance with its terms, subject to (i) the effects of bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium and other similar laws relating to or affecting creditors’ rights generally, (ii) general equitable principles (whether considered in a proceeding in equity or at law) and (iii) an implied covenant of good faith and fair dealing.
(h) The execution, delivery and performance of this Agreement and the Release Letter by the Selling Stockholder and the consummation by the Selling Stockholder 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 the Selling Stockholder is a party or by which the Selling Stockholder is bound or to which any of the property or assets of the Selling Stockholder is subject, (ii) result in any violation of the provisions of the charter or by-laws (or similar organizational documents) of the Selling Stockholder 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 Stockholder or the property or assets of the Selling Stockholder, except in the case of clauses (i) and (iii) above, for any such conflict, breach, violation or default that would not, individually or in the aggregate, reasonably be expected to have a material adverse effect on the ability of the Selling Stockholder to consummate the transactions contemplated herein.
(ih) No consent, approval, authorization or order of, or filing or registration with, any court or governmental agency or body having jurisdiction over the Selling Stockholder or the property or assets of the Selling Stockholder is required for the sale of the Stock by the Selling Stockholder, the execution, delivery and performance of this Agreement or the Release Letter by the Selling Stockholder and the consummation by the Selling Stockholder of the transactions contemplated hereby, except for the registration of the Shares Stock under the Securities Act and such consents, approvals, authorizations, orders, filings, registrations or qualifications as may be required under the Exchange Act Act, the rules and regulations of FINRA and applicable state or foreign securities laws in connection with the purchase and sale of the Shares Stock by the UnderwriterUnderwriters or as would not, individually or in the aggregate reasonably be expected to have a material adverse effect on the ability of the Selling Stockholder to perform its obligations hereunder.
(i) The Registration Statement did not(as of its Effective Date), the Prospectus (as of its date or as of the Effective applicable Delivery Date, ) and 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 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 no representation or warranty is made only as to statements information contained in or omissions made omitted from the Prospectus in reliance upon and in conformity with written information furnished to the Company through the Representatives by or on behalf of any Underwriter specifically for inclusion therein, which information is specified in Section 10(f) and (ii) such representations and warranties set forth in subsection (i) apply only to statements or omissions made in reliance upon and in conformity with information relating to the Selling Stockholder (x) specifically furnished in writing to the Company by the Selling Stockholder expressly for use in the preparation of the Registration Statement, (y) specifically for inclusion in the Registration Statement, the Prospectus and the Pricing Disclosure Package; it being understood and agreed that the only information furnished by the Selling Stockholder consists of the name of the Selling Stockholder, the number of offered shares and the address and other information with respect to the Selling Stockholder (excluding percentages) which appears in the Registration Statement, the Prospectus and the Pricing Disclosure Package or in the Prospectus or table (zand corresponding footnotes) specifically for inclusion in such other documentsunder the caption “Selling Stockholders” (collectively, the “Selling Stockholder Information”).
(kj) The Selling Stockholder’s sale Stockholder is not prompted to sell the shares of the Shares Common Stock to be sold by it pursuant to this Agreement is not prompted by any material non-public information concerning the Company or any of its subsidiaries that is not set forth in the Registration Statement, the Pricing Disclosure Package and the Prospectus.
(lk) The Selling Stockholder 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. shares of the Stock.
(l) The Selling Stockholder is not (i) currently subject to or the target of any Sanctions; or (ii) located, organized or resident in a country that is the subject of Sanctions (including, without limitation, the Crimea Region of Ukraine, the so-called Donetsk People’s Republic, the so-called Luhansk People’s Republic, Cuba, Iran, North Korea, Russia, and Syria); and the Selling Stockholder will not directly or indirectly use the proceeds of the offering, or lend, contribute or otherwise make available such proceeds to any subsidiary, joint venture partner or other person or entity, for the purpose of financing the activities of any person, or in any country or territory, that currently is the subject or target of Sanctions or in any other manner that will result in a violation by any person (including any person participating in the transaction whether as an underwriter, advisor, investor or otherwise) of Sanctions.
(m) Any certificate signed by any officer of any Selling Stockholder and delivered to the Underwriter Representatives or counsel for the Underwriter Underwriters in connection with the offering of the Shares Stock shall be deemed to be a representation and warranty by the such Selling Stockholder, as to matters covered thereby, to the each Underwriter.
Appears in 1 contract
Representations, Warranties and Agreements of the Selling Stockholder. The Selling Stockholder represents, warrants and agrees that:
(a) Neither the The Selling Stockholder nor any person acting on behalf has good and valid title to the 294,737 shares of the Selling Stockholder (other than, if applicableCommon Stock and 105,263 shares of Class A Stock delivered to First Union National Bank of North Carolina, the Company and Company's transfer agent (the Underwriter) has used or referred "Transfer Agent"). The 294,737 shares of Common Stock are convertible into 294,737 shares of Class A Stock. Immediately prior to any “free writing prospectus” the Delivery Date (as defined in Rule 405Section 5 hereof), relating to the Shares.
(b) The Selling Stockholder has, or immediately prior to the Initial Delivery Date on which the Selling Stockholder is selling shares, the Selling Stockholder will have, have good and valid title to, or a valid “security entitlement” within to the meaning shares of Section 8-501 Class A Stock (including shares of Class A Stock issuable upon conversion of the New York Uniform Commercial Code (the “UCC”Common Stock) in respect of, the Shares to be sold by the Selling Stockholder hereunder on such Delivery Datedate free and clear of all liens, encumbrances, equities or claims; and upon delivery of such Shares and payment therefor pursuant hereto, good and valid title to such Shares, free and clear of all liens, encumbrances, equities or claims, except for any liens, encumbrances, equities or claims or otherwise in favor of will pass to the Underwriter.
(c) The Selling Stockholder has, in accordance with the terms of the Release Letter dated the date hereof, irrevocably instructed the Collateral Agent to deliver the Firm Shares to be sold by the Selling Stockholder hereunder to the Underwriter on the Initial Delivery date, and the obligations of the Selling Stockholder hereunder or thereunder shall not be terminated by any act of the Selling Stockholder, by operation of law or the occurrence of any other event.
(d) Upon payment of the purchase price for the Shares to be sold by the Selling Stockholder 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 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 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, the Selling Stockholder 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(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.
(eb) The Selling Stockholder has full corporate power delivered the certificates in negotiable form representing the shares of Common Stock and authority Class A Stock to enter into and perform its obligations under this Agreement and the Release LetterTransfer Agent.
(f) This Agreement has been duly and validly authorized, executed and delivered by or on behalf of the Selling Stockholder.
(gc) Each of this Agreement and the Release Letter custody agreement dated the date hereof between the Selling Stockholder and Xxxxxxxx Xxxxxx Xxxxxxxxxx & Xxxxxxxxx, LLP (the "Custody Agreement") has been duly and validly authorized, executed and delivered by, and is a valid and legally binding obligation of, by the Selling Stockholder and constitutes the legal, valid and binding obligation of the Selling Stockholder, enforceable against the Selling Stockholder in accordance with its terms, subject to (i) the effects of except as enforceability may be limited by applicable bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium and other or similar laws relating to or affecting the enforcement of creditors’ ' rights generally, (ii) generally and by general equitable principles (whether considered in a proceeding enforcement is sought by proceedings in equity or at law) ), and (iii) an implied covenant except insofar as the indemnification and contribution provisions hereof may be limited by considerations of good faith and fair dealingpublic policy.
(hd) The Selling Stockholder has full right, power and authority to enter into this Agreement and the Custody Agreement and to perform its obligations hereunder and thereunder; the execution, delivery and performance of this Agreement and the Release Letter Custody Agreement by the Selling Stockholder and the consummation by the Selling Stockholder 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 the Selling Stockholder is a party or by which the Selling Stockholder is bound or to which any of the property or assets of the Selling Stockholder is subject, (ii) nor will such actions result in any violation of the provisions of the charter or by-laws (or similar applicable organizational documents) documents of the Selling Stockholder or (iii) result in any violation of any statute or any order, rule or regulation of any court or governmental agency or body having jurisdiction over the Selling Stockholder or the property or assets of the Selling Stockholder.
(i) No consent, approval, authorization or order of, or filing or registration with, any court or governmental agency or body having jurisdiction over the Selling Stockholder or the property or assets of the Selling Stockholder is required for the execution, delivery and performance of this Agreement or the Release Letter by the Selling Stockholder and the consummation by the Selling Stockholder of the transactions contemplated hereby; and, 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 and foreign securities laws and by the NASD in connection with the purchase and sale distribution of the Shares by the Underwriter, no consent, approval, authorization or order of, or filing or registration with, any such court or governmental agency or body is required for the execution, delivery and performance of this Agreement or the Custody Agreement by the Selling Stockholder and the consummation by the Selling Stockholder of the transactions contemplated hereby and thereby.
(ie) The Registration Statement did and the Prospectus and any further amendments or supplements to the Registration Statement or the Prospectus, when they become effective or are filed with the Commission, as the case may be, do not and will not, as of the Effective Date, applicable effective date (as to the Registration Statement and any amendment thereto) and as of the applicable filing date (as to the Prospectus and any amendment or supplement thereto) contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading; (ii) the Prospectus will not, provided that no representation or warranty is made as of its date and on the Delivery Date, contain an untrue statement of a material fact to information contained in 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 omitted from the Registration Statement, the Pricing Disclosure Package Statement 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 the Selling Stockholder (x) specifically for use in the preparation of the Registration Statement, (y) Underwriter specifically for inclusion therein.
(f) The Selling Stockholder has no reason to believe that the representations and warranties of the Company contained in Section 1 hereof are not materially true and correct, is familiar with the Registration Statement and the Prospectus (as amended or supplemented) and has no knowledge of any material fact, condition or information not disclosed in the Registration Statement, as of the Pricing Disclosure Package Effective Date, or the Prospectus (or (z) specifically for inclusion in such other documents.
(k) The Selling Stockholder’s sale any amendment or supplement thereto), as of the Shares pursuant to this Agreement applicable filing date, which has had or may have a Material Adverse Effect and is not prompted to sell the Shares by any material non-public information concerning the Company or any of its subsidiaries that which is not set forth in the Registration Statement, the Pricing Disclosure Package Statement and the Prospectus.
(lg) The Selling Stockholder 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 Stockholder and delivered to the Underwriter or counsel for the Underwriter in connection with the offering of the Shares shall be deemed a representation and warranty by the Selling Stockholder, as to matters covered thereby, to the Underwriter.
Appears in 1 contract
Representations, Warranties and Agreements of the Selling Stockholder. The Selling Stockholder represents, warrants and agrees that:
(a) Neither the Selling Stockholder nor any person acting on behalf of the Selling Stockholder (other than, if applicable, the Company and the Underwriter) has have used or will use or referred or will refer to any “free writing prospectus” (as defined in Rule 405), relating to the Shares.;
(b) The Selling Stockholder has, or and immediately prior to the Initial any Delivery Date on which the Selling Stockholder is selling sharesShares, the Selling Stockholder 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 the Selling Stockholder hereunder on such Delivery Date, free and clear of all liens, encumbrances, equities or claims, except for any liens, encumbrances, equities or claims or otherwise in favor of the Underwriter.
(c) The Selling Stockholder has, in accordance with the terms of the Release Letter dated the date hereof, irrevocably instructed the Collateral Agent to deliver the Firm Shares to be sold by the Selling Stockholder hereunder are subject to the interest of the Underwriter on the Initial Delivery date, and the obligations of the Selling Stockholder hereunder or thereunder shall not be terminated by any act of the Selling Stockholder, by operation of law law, by the death or incapacity of the Selling Stockholder 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) The Selling Stockholder further acknowledges and agrees that, although the Underwriter may provide the Selling Stockholder with certain Regulation Best Interest and Form CRS disclosures or other related documentation in connection with the offering, the Underwriter is not making a recommendation to the Selling Stockholder to participate in the offering or sell any Stock at the Purchase Price, and nothing set forth in such disclosures or documentation is intended to suggest that any Underwriter is making such a recommendation.
(e) Upon payment of the purchase price for the Shares to be sold by the Selling Stockholder pursuant to this AgreementStockholder, 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, 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) accounts of the Underwriter maintained at DTC (assuming that neither DTC nor any such Underwriter has notice of any “adverse claim,” claim (within the meaning of Section 8-105 of the UCC, ) 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” 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, the Selling Stockholder may assume that when such payment, delivery and crediting occur, (A) such Shares will have been registered in the name of Cede or another nominee designated by DTC, in each case on the Company’s share registry in accordance with its Memorandum and Articles certificate of Association incorporation, bylaws and applicable law, (B) DTC will be registered as a “clearing corporation,” within the meaning of Section 8-102 of the UCC, UCC and (C) appropriate entries to the 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.
(ef) The Selling Stockholder has full corporate power and authority to enter into and perform its obligations placed in custody under a custody agreement (the “Custody Agreement”) with Continental Stock Transfer & Trust Company, as custodian (the “Custodian”), for delivery under this Agreement and Agreement, certificates in negotiable form (with signature guaranteed by a participant in the Release Letter.
(f) This Agreement has been duly and validly authorized, executed and delivered by or on behalf of the Selling Stockholder.
(g) Each of this Agreement and the Release Letter has been duly and validly authorized, executed and delivered by, and is a valid and legally binding obligation ofSecurities Transfer Agents Medallion Program, the Selling Stockholder enforceable against New York Stock Exchange Medallion Signature Program or the Selling Stockholder in accordance with its terms, subject Stock Exchange Medallion Program) representing the Shares 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.
(h) The execution, delivery and performance of this Agreement and the Release Letter be sold by the Selling Stockholder and the consummation by the Selling Stockholder of the transactions contemplated hereby and thereby do not and will not (i) conflict with or result in a breach or violation of any of the terms or provisions of, or constitute a default under, any indenture, mortgage, deed of trust, loan agreement, license or other agreement or instrument to which the Selling Stockholder is a party or by which the Selling Stockholder is bound or to which any of the property or assets of the Selling Stockholder is subject, (ii) result in any violation of the provisions of the charter or by-laws (or similar organizational documents) of the Selling Stockholder or (iii) result in any violation of any statute or any order, rule or regulation of any court or governmental agency or body having jurisdiction over the Selling Stockholder or the property or assets of the Selling Stockholderhereunder.
(i) No consent, approval, authorization or order of, or filing or registration with, any court or governmental agency or body having jurisdiction over the Selling Stockholder or the property or assets of the Selling Stockholder is required for the execution, delivery and performance of this Agreement or the Release Letter by the Selling Stockholder and the consummation by the Selling Stockholder of the transactions contemplated hereby, except for the registration of the Shares under the Securities Act and such consents, approvals, authorizations, registrations or qualifications as may be required under the Exchange Act and applicable state 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 the Selling Stockholder (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.
(k) The Selling Stockholder’s sale of the Shares pursuant to this Agreement is not prompted by any material non-public information concerning the Company or any of its subsidiaries that is not set forth in the Registration Statement, the Pricing Disclosure Package and the Prospectus.
(l) The Selling Stockholder 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 Stockholder and delivered to the Underwriter or counsel for the Underwriter in connection with the offering of the Shares shall be deemed a representation and warranty by the Selling Stockholder, as to matters covered thereby, to the Underwriter.
Appears in 1 contract
Samples: Underwriting Agreement (Biote Corp.)
Representations, Warranties and Agreements of the Selling Stockholder. The Selling Stockholder represents, warrants and agrees that:
(a) Neither the Selling Stockholder nor any person acting on behalf of the Selling Stockholder (other than, if applicable, the Company and the UnderwriterUnderwriters) has used or referred to any “free writing prospectus” (as defined in Rule 405), 405 under the Securities Act) relating to the SharesStock.
(b) The Selling Stockholder has, or and immediately prior to the Initial any Delivery Date on which the Selling Stockholder is selling sharesshares of Stock, the Selling Stockholder will have, good and valid marketable title to, or a valid to the shares of Stock to be sold by the Selling Stockholder hereunder on such Delivery Date and any “security entitlement” within the meaning of Section 8-501 of the New York Uniform Commercial Code (the “UCC”) in respect of, the Shares to be sold by the Selling Stockholder hereunder on such Delivery Datethereof, free and clear of all liens, encumbrances, equities equities, community property rights, restrictions on transfer or claims, except for any liens, encumbrances, equities or claims or otherwise in favor of the Underwriter.
(c) The Selling Stockholder has, in accordance with Upon payment by the terms of Underwriters for the Release Letter dated the date hereof, irrevocably instructed the Collateral Agent to deliver the Firm Shares Stock to be sold by the Selling Stockholder hereunder to the Underwriter on the Initial Delivery date, and the obligations of the Selling Stockholder hereunder or thereunder shall not be terminated by any act of the Selling Stockholder, by operation of law or the occurrence of any other event.
(d) Upon payment of the purchase price for the Shares to be sold by the Selling Stockholder pursuant to this Agreement, delivery of such SharesStock, 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 Stock in the name of Cede or such other nominee, nominee and the crediting of such Shares Stock on the books of DTC to securities account(s) (within the meaning of Section 8-501(a) accounts of the UCCUnderwriters (i) DTC will acquire good and marketable title to the Stock free and clear of the Underwriter maintained at DTC (assuming that neither DTC nor any such Underwriter has notice of any “adverse claim,” within the meaning of Section 8-105 of the 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 Stock within the meaning of Section 8-303 8‑303 of the UCC, (iiiii) under Section 8-501 8‑501 of the UCC, the Underwriter Underwriters will acquire a valid “security entitlement” entitlement in respect of such Shares Stock, 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 Underwriters with respect to such security entitlement. For purposes of this representation, the such Selling Stockholder 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 8‑102 of the UCC, and (Cz) appropriate entries to the account(s) 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) The Selling Stockholder has full corporate right, power and authority authority, corporate or otherwise, to enter into and perform its obligations under this Agreement and the Release LetterAgreement.
(fe) This Agreement has been duly and validly authorized, executed and delivered by or on behalf of the Selling Stockholder.
(gf) Each The issue and sale of this Agreement and the Release Letter has been duly and validly authorized, executed and delivered by, and is a valid and legally binding obligation ofStock by the Selling Stockholder, the Selling Stockholder enforceable against the Selling Stockholder in accordance with its terms, subject to (i) the effects of bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium and other similar laws relating to or affecting creditors’ rights generally, (ii) general equitable principles (whether considered in a proceeding in equity or at law) and (iii) an implied covenant of good faith and fair dealing.
(h) The execution, delivery and performance of this Agreement and the Release Letter by the Selling Stockholder and the consummation by the Selling Stockholder 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 the Selling Stockholder is a party or by which the Selling Stockholder is bound or to which any of the property or assets of the Selling Stockholder is subject, (ii) result in any violation of the provisions of the charter or by-laws deed of trust (or similar organizational documents) of the Selling Stockholder Stockholder, or (iiiii) 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 Stockholder or the property or assets of the Selling Stockholder.
(ig) No consent, approval, authorization or order of, or filing or registration with, any court or governmental agency or body having jurisdiction over the Selling Stockholder or the property or assets of the Selling Stockholder is required for the issue and sale of the Stock by the Selling Stockholder, the execution, delivery and performance of this Agreement or the Release Letter by the Selling Stockholder and the consummation by the Selling Stockholder of the transactions contemplated hereby, except for the registration of the Shares Stock 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 or blue sky laws in connection with the purchase and sale of the Shares Stock by the UnderwriterUnderwriters.
(ih) The To the knowledge of the Selling Stockholder, 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 and warranties set forth in this paragraph are limited to only those statements or omissions made in reliance upon information relating to such Selling Stockholder furnished to the Company in writing by such Selling Stockholder expressly for use in the Registration Statement, the Pricing Disclosure Package or the Prospectus, it being understood and agreed that the only such information furnished by the Selling Stockholder consists of: (i) the legal name and address of such Selling Stockholder, (ii) the number of shares of Common Stock owned, (iii) the number of shares of Common Stock proposed to be sold and any other information with respect to such Selling Stockholder that appears in the table (and corresponding footnotes but excluding percentage of beneficial ownership of the Company) under the caption “Selling Stockholder” (such information described in clauses (i) through (iii) with respect to the Selling Stockholder, the “Selling Stockholder Information”); provided further, that no representation or warranty is made as to information contained in or omitted from the Registration Statement in reliance upon and in conformity with written information furnished to the Company through the Representatives by or on behalf of any Underwriter specifically for inclusion therein, which information is specified in Section 10(f).
(i) To the knowledge of the Selling Stockholder, the Prospectus will not, as of its date and on or as of 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; provided, that the representations and warranties set forth in this paragraph are limited to only those statements or omissions made in reliance upon the Selling Stockholder Information; provided further, that no representation or warranty is made as to information contained in or omitted from the Prospectus in reliance upon and in conformity with written information furnished to the Company through the Representatives by or on behalf of any Underwriter specifically for inclusion therein, which information is specified in Section 10(f).
(iiij) To the knowledge of the Selling Stockholder, 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; provided, that the representations and warranties set forth in this paragraph are limited to only those statements or omissions made in reliance upon the Selling Stockholder Information; provided further that no representation or warranty is made as to information contained in or omitted from the Pricing Disclosure Package in reliance upon and in conformity with written information furnished to the Company through the Representatives by or on behalf of any Underwriter specifically for inclusion therein, which information is specified in Section 10(f).
(ivk) To the documents incorporated by reference in knowledge of the Registration StatementSelling Stockholder, the Pricing Disclosure Package or the Package, when taken together with each Issuer Free Writing Prospectus listed in Schedule V hereto, did not, and any further documents filed and incorporated by reference therein will not, when filed with as of the CommissionApplicable Time, contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading; and (v) each Issuer Free Writing Prospectus (including without limitationprovided, any road show that is a free writing prospectus under Rule 433), if any, when considered together with the Pricing Disclosure Package as of the Applicable Time, did not contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading; provided that the representations and warranties set forth in the foregoing clauses (i) through (v) this paragraph are made limited to only as to those statements or omissions made in reliance upon the Selling Stockholder Information; provided further, that no representation or warranty is made as to information contained in or omitted from the Pricing Disclosure Package (or any Issuer Free Writing Prospectus listed in Schedule V hereto) in reliance upon and in conformity with written information furnished to the Company through the Representatives by or on behalf of the Selling Stockholder (x) specifically for use in the preparation of the Registration Statement, (y) any Underwriter specifically for inclusion therein, which information is specified in the Registration Statement, the Pricing Disclosure Package or the Prospectus or (z) specifically for inclusion in such other documentsSection 10(f).
(kl) The Selling Stockholder’s sale of the Shares pursuant to this Agreement Stockholder is not prompted to sell shares of Common Stock by any material non-public information concerning the Company or any of its subsidiaries that is not set forth in the Registration Statement, the Pricing Disclosure Package and the Prospectus.
(lm) The Selling Stockholder 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 the sale or resale of the Shares. Any certificate signed by any officer of any Selling Stockholder and delivered to the Underwriter or counsel for the Underwriter in connection with the offering of the Shares shall be deemed a representation shares of the Stock.
(n) The sale of the Common Stock by the Selling Stockholder does not violate any of the Company’s internal policies regarding the sale of stock by its affiliates.
(u) The Selling Stockholder has not: (i) used any corporate funds for any unlawful contribution, gift, entertainment or other unlawful expense relating to political activity; (ii) made any direct or indirect unlawful payment to any foreign or domestic government official, “foreign official” (as defined in the FCPA) or employee from corporate funds; (iii) violated or is in violation of any provision of the XXXX, Xxxxxxx Xxx 0000, as amended, or any other applicable anti-bribery statute or regulation; or (iv) made any bribe, rebate, payoff, influence payment, kickback or other unlawful payment to any domestic government official, foreign official or employee; and warranty the Selling Stockholder has conducted its business in compliance with the XXXX, Xxxxxxx Xxx 0000, and all other applicable anti-bribery statutes and regulations, and has instituted and maintain policies and procedures designed to ensure, and which are reasonably expected to continue to ensure, continued compliance therewith.
(v) The operations of the Selling Stockholder is and has been conducted at all times in compliance with applicable financial recordkeeping and reporting requirements of the Money Laundering Laws and no action, suit or proceeding by or before any court or governmental agency, authority or body or any arbitrator involving the Selling Stockholder or any of its subsidiaries with respect to the Money Laundering Laws is pending or, to the knowledge of the Selling Stockholder, threatened.
(w) The Selling Stockholder is not (i) currently subject to or the target of any Sanctions; or (ii) located, organized or resident in a country that is the subject of Sanctions (including, without limitation, Cuba, Iran, North Korea, Sudan, and Syria); and the Selling Stockholder will not directly or indirectly use the proceeds of the offering, or lend, contribute or otherwise make available such proceeds to any subsidiary, joint venture partner or other person or entity, for the purpose of financing the activities of any person, or in any country or territory, that currently is the subject or target of Sanctions or in any other manner that will result in a violation by any person (including any person participating in the transaction whether as to matters covered therebyan underwriter, to advisor, investor or otherwise) of Sanctions. The Selling Stockholder has not knowingly engaged in for the Underwriterpast five years, are not now knowingly engaged in, and will not engage in, any dealings or transactions with any individual or entity, or in any country or territory, that at the time of the dealing or transaction is or was the subject or target of Sanctions.
Appears in 1 contract
Representations, Warranties and Agreements of the Selling Stockholder. The Selling Stockholder represents, warrants and agrees with the Underwriter and the Company that:
(a) Neither the Selling Stockholder nor any person acting on behalf of the Selling Stockholder (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) The Selling Stockholder has, or immediately prior to the Initial Delivery Date on which the Selling Stockholder is selling shares, the Selling Stockholder will have, good and valid title to, or has a valid “security entitlement” entitlement (within the meaning of Section 8-501 102(a)(17) of the New York Uniform Commercial Code (the “UCC”)) in respect of, the Shares to be sold by the Selling Stockholder hereunder on such Delivery Date, free and clear of all liens, encumbrances, equities or claims, except for any liens, encumbrances, equities or claims or otherwise in favor of the Underwriter.
(c) The Selling Stockholder has, in accordance with the terms of the Release Letter dated the date hereof, irrevocably instructed the Collateral Agent to deliver the Firm Shares to be sold by the Selling Stockholder hereunder to the Underwriter Stock maintained in a securities account on the Initial Delivery date, and the obligations books of the Selling Stockholder hereunder or thereunder shall not be terminated by any act of the Selling Stockholder, by operation of law or the occurrence of any other event.
(d) Upon payment of the purchase price for the Shares to be sold by the Selling Stockholder 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”)) free and clear of any action that may be asserted based on an adverse claim with respect to such security entitlement, registration of such Shares and assuming that the Underwriter acquires its interest in the name Stock without notice of Cede or such other nominee, and the crediting of such Shares on the books of DTC to securities account(s) any adverse claim (within the meaning of Section 8-501(a) of the UCC) of the Underwriter maintained at DTC (assuming that neither DTC nor any such Underwriter has notice of any “adverse claim,” within the meaning of Section 8-105 of the UCC, to such Shares), (i) DTC shall be a “protected purchaser” of such Shares within upon the meaning of Section 8-303 crediting of the UCC, (ii) under Section 8-501 Stock to the securities account of the UCCUnderwriter maintained with DTC and payment therefore by the Underwriter, as provided herein, the Underwriter will acquire have acquired a valid “security entitlement” in respect of such Shares entitlement to the 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 claim may be asserted against the Underwriter with respect to such security entitlement. For purposes of this representation, the Selling Stockholder 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(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.
(eb) The Selling Stockholder has full corporate power and authority to enter into and perform its obligations under this Agreement and Agreement; the Release Letter.
(f) This Agreement has been duly and validly authorized, executed and delivered by or on behalf of the Selling Stockholder.
(g) Each of this Agreement and the Release Letter has been duly and validly authorized, executed and delivered by, and is a valid and legally binding obligation of, the Selling Stockholder enforceable against the Selling Stockholder in accordance with its terms, subject to (i) the effects of bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium and other similar laws relating to or affecting creditors’ rights generally, (ii) general equitable principles (whether considered in a proceeding in equity or at law) and (iii) an implied covenant of good faith and fair dealing.
(h) The execution, delivery and performance of this Agreement and the Release Letter by the Selling Stockholder and the consummation by the Selling Stockholder 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 the Selling Stockholder is a party or by which the Selling Stockholder is bound or to which any of the property or assets of the Selling Stockholder is subject, (ii) in each case, that is material to the Selling Stockholder and its subsidiaries, taken as a whole, nor will such actions result in any violation of the provisions of the charter or by-laws (or similar organizational documents) of the Selling Stockholder or (iii) result in any violation of any statute or any order, rule or regulation of any court or governmental agency or body having jurisdiction over the Selling Stockholder or the property or assets of the Selling Stockholder.
; and, except (i) No consent, approval, authorization or order of, or filing or registration with, any court or governmental agency or body having jurisdiction over the Selling Stockholder or the property or assets of the Selling Stockholder is required for the execution, delivery and performance of this Agreement or the Release Letter by the Selling Stockholder and the consummation by the Selling Stockholder of the transactions contemplated hereby, except for the registration of the Shares Stock under the Securities Act and such consents, approvals, authorizations, registrations or qualifications as may be required under the Exchange Act and applicable state or foreign securities laws in connection with the purchase and sale distribution of the Shares Stock by the UnderwriterUnderwriter and (ii) to the extent that the failure to so obtain would not individually or in the aggregate have a material adverse effect on the consolidated financial position, stockholders’ equity, results of operations, business or prospects of the Selling Stockholder and its subsidiaries, taken as a whole, no consent, approval, authorization or order of, or filing or registration with, any such court or governmental agency or body is required for the execution, delivery and performance of this Agreement by the Selling Stockholder and the consummation by the Selling Stockholder of the transactions contemplated hereby.
(ic) The All written information furnished by or on behalf of the Selling Stockholder specifically for inclusion in the Registration Statement did or the Prospectus is, and on the Delivery Date will be, true, correct, and complete in all material respects, and does not, as of and on the Effective DateDelivery Date will not, contain an any untrue statement of a material fact or omit to state a any material fact required to be stated therein or necessary to make such information (in the statements therein not misleading; (ii) the Prospectus will not, as case 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 thereinany Prospectus, in the light of the circumstances under which they were made, ) not misleading; . The Selling Stockholder confirms as accurate the number of shares of Common Stock set forth opposite the Selling Stockholder’s name in the Prospectus under the caption “Selling Stockholder” (iii) both prior to and after giving effect to the Pricing Disclosure Package did not, as sale of the Applicable TimeStock) and that it has had no position, contain an untrue statement of a office, or other material fact relationship within the past three years with the Company or omit to state a material fact required to be stated therein or necessary to make the statements therein, in the light any of the circumstances under which they were madeCompany’s predecessors or affiliates.
(d) The Selling Stockholder has reviewed the Registration Statement and the Prospectus and has no knowledge of any material fact, condition or information not misleading; (iv) the documents incorporated by reference disclosed 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 TimeEffective Date, 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 thereinProspectus, in the light as of the circumstances under applicable filing date, which they were madehas adversely affected or may adversely affect the business of the Company, not misleading; provided it being understood 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 the Selling Stockholder (x) specifically for use in the preparation of the Registration Statementshall not be obligated to undertake any inquiry as to whether any such material fact, (y) specifically for inclusion in the Registration Statement, the Pricing Disclosure Package condition or the Prospectus or (z) specifically for inclusion in such other documents.
(k) information exists. The Selling Stockholder’s sale of the Shares pursuant to this Agreement Stockholder is not prompted to sell the Stock by any material material, non-public information concerning the Company or any of its subsidiaries that is not set forth in the Registration Statement, the Pricing Disclosure Package and the ProspectusCompany.
(le) The Selling Stockholder 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 a violation of Regulation M under 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 Stockholder Exchange Act.
(f) This Agreement has been duly authorized, executed and delivered to the Underwriter or counsel for the Underwriter in connection with the offering of the Shares shall be deemed a representation and warranty by the Selling Stockholder, as to matters covered thereby, to the Underwriter.
Appears in 1 contract
Representations, Warranties and Agreements of the Selling Stockholder. The Selling Stockholder represents, warrants and agrees that:
(a) Neither the Selling Stockholder nor any person acting on behalf of the Selling Stockholder (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 SharesStock other than any road show that is a free writing prospectus.
(b) The Selling Stockholder has, or immediately prior to the Initial Delivery Date on which the Selling Stockholder is selling shares, the Selling Stockholder 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 the Selling Stockholder hereunder on such Delivery Date, free and clear of all liens, encumbrances, equities or claims, except for any liens, encumbrances, equities or claims or otherwise in favor of the Underwriter[Reserved.]
(c) The Selling Stockholder has, in accordance with the terms of the Release Letter dated the date hereof, irrevocably instructed the Collateral Agent to deliver the Firm Shares to be sold by the Selling Stockholder hereunder to the Underwriter on the Initial Delivery date, and the obligations of the Selling Stockholder hereunder or thereunder shall not be terminated by any act of the Selling Stockholder, by operation of law or the occurrence of any other event[Reserved.]
(d) Upon payment delivery of security entitlements in respect of the purchase price for the Shares Stock to be sold by (excluding the Selling Stockholder Repurchased Shares) and payment therefor 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 any such Underwriter has notice of any “adverse claim,” within the meaning of Section 8-105 of the UCC, to such Shares), hereto (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 Uniform Commercial Code of New York (the “New York UCC”), the Underwriter Underwriters will acquire good and valid title and a valid “security entitlement” entitlement in respect of such Shares Stock and (iiiii) no action (whether framed in conversion, replevin, constructive trust, equitable lien, or other theory) based on any “adverse claim,” within the meaning of Section 8-102 102(a)(2) of the UCC, to such Shares Stock may be asserted against the Underwriter Underwriters with respect to such security entitlement. For purposes of this representation, the Selling Stockholder 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(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) [Reserved.]
(f) The Selling Stockholder has full corporate right, power and authority authority, corporate or otherwise, to enter into and perform its obligations under this Agreement and the Release LetterAgreement.
(fg) This Agreement has been duly and validly authorized, executed and delivered by or on behalf of the Selling Stockholder.
(gh) Each of this Agreement and the Release Letter has been duly and validly authorized, executed and delivered by, and is a valid and legally binding obligation of, the Selling Stockholder enforceable against the Selling Stockholder in accordance with its 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.
(h) The execution, delivery and performance of this Agreement and the Release Letter by the Selling Stockholder and the consummation by the Selling Stockholder of the transactions contemplated hereby and thereby do not and will not (i) conflict with or result in a breach or violation of any of the terms or provisions of, or constitute a default under, any indenture, mortgage, deed of trust, loan agreement, license or other agreement or instrument to which the Selling Stockholder is a party or by which the Selling Stockholder is bound or to which any of the property or assets of the Selling Stockholder is subject, subject or (ii) result in any violation of the provisions of the charter or by-laws (or similar organizational documents) of the Selling Stockholder or (iii) result in any violation of any statute or any order, rule or regulation of any court or governmental agency or body having jurisdiction over the Selling Stockholder or the property or assets of the Selling Stockholder.
(ij) No consent, approval, authorization or order of, or filing or registration with, any court or governmental agency or body having jurisdiction over the Selling Stockholder or the property or assets of the Selling Stockholder is required for the execution, delivery and performance of this Agreement or the Release Letter by the Selling Stockholder and the consummation by the Selling Stockholder of the transactions contemplated herebyhereby and thereby, except for the registration of the Shares offering of the Stock under the Securities Act and such consents, approvals, authorizations, registrations or qualifications as may be required under the Exchange Act and applicable state or foreign securities laws in connection with the purchase and sale of the Shares Stock 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 the Selling Stockholder (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 documentsUnderwriters.
(k) The Selling Stockholder’s sale of the Shares pursuant to this Agreement is not prompted by any material non-public information concerning the Company or any of its subsidiaries that is not set forth in the Registration Statement, the Pricing Disclosure Package and the Prospectus[Reserved.]
(l) The Selling Stockholder 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 unlawful stabilization or manipulation of the price of any security of the Company to facilitate the sale or resale of the Sharesshares of the Stock.
(m) The Pricing Disclosure Package, at the Applicable Time did not, and as of the Closing Date, will not, contain any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading; provided that such representations and warranties set forth in this Section 2(m) apply only to statements or omissions made in reliance upon and in conformity with information relating to the Selling Stockholder furnished in writing by or on behalf of the Selling Stockholder expressly for use in the Pricing Disclosure Package, it being understood and agreed that for purposes of this Agreement, the only information so furnished by the Selling Stockholder before the offering (excluding percentages and the number of shares of Stock that will be beneficially owned by the Selling Stockholder after the offering) consists of the legal name, address and number of shares of Stock, as applicable, owned by the Selling Stockholder which appear in the table (and corresponding footnotes) under the caption “Selling Stockholder” in the Registration Statement, the Preliminary Prospectus, the Prospectus or any Issuer Free Writing Prospectus (such information with respect to each Selling Stockholder, the “Selling Stockholder Information”).
(n) As of the date hereof and as of the Closing Date the sale of the Stock by the Selling Stockholder is not and will not be prompted by any material information concerning the Company which is not set forth in the Registration Statement, the Pricing Disclosure Package or the Prospectus; provided, however, except with respect to the Selling Stockholder Information, that no representation or warranty is being made hereby as to whether the Registration Statement, the Pricing Disclosure Package or the Prospectus contains any untrue statement of a material fact or omits to state any material fact required to be stated therein or necessary in order to make the statements therein, in the light of the circumstances in which they are made, not misleading. Any certificate signed by any officer or on behalf of any the Selling Stockholder and delivered to the Underwriter Underwriters or counsel for the Underwriter Underwriters in connection with the offering of the Shares Stock shall be deemed a representation and warranty by the Selling Stockholder, as to matters covered thereby, to the each Underwriter.
Appears in 1 contract
Representations, Warranties and Agreements of the Selling Stockholder. The Selling Stockholder represents, warrants and agrees that:
(a) The Selling Stockholder has been duly organized and is validly existing as a corporation, limited liability company, public agency, or a limited partnership, as the case may be, in good standing in its jurisdiction of formation.
(b) Neither the Selling Stockholder nor any person acting on behalf of the Selling Stockholder (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 SharesStock.
(bc) The Selling Stockholder has, or and immediately prior to the Initial Delivery Date on which the Selling Stockholder is selling sharesshares of Stock, the Selling Stockholder will have, good and valid marketable title to, or a valid to the shares of Stock to be sold by the Selling Stockholder 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 the Selling Stockholder hereunder on such Delivery Datethereof, free and clear of all liens, encumbrances, equities equities, community property rights, restrictions on transfer or claims, except for any liens, encumbrances, equities or claims or otherwise in favor of the Underwriter.
(cd) The Selling Stockholder has, in accordance with the terms of the Release Letter dated the date hereof, irrevocably instructed the Collateral Agent to deliver the Firm Shares Stock to be sold by the Selling Stockholder hereunder is subject to the interest of the Underwriter on the Initial Delivery date, and the obligations of the Selling Stockholder hereunder or thereunder shall not be terminated by any act of the Selling Stockholder, by operation of law or the occurrence of any other event.
(de) Upon payment of the purchase price for the Shares Stock to be sold by the Selling Stockholder pursuant to this AgreementStockholder, delivery 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 securities account(s) (within the meaning of Section 8-501(a) of the UCC) account of the Underwriter maintained at (i) DTC (assuming that neither DTC nor any such Underwriter has notice will acquire good and marketable title to the Stock 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 Stock 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 Stock, 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, the Selling Stockholder 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, and (Cz) appropriate entries to the account(s) 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.
(ef) The Selling Stockholder has full corporate right, power and authority authority, corporate or otherwise, to enter into and perform its obligations under this Agreement and the Release LetterAgreement.
(fg) This Agreement has been duly and validly authorized, executed and delivered by or on behalf of the Selling Stockholder.
(g) Each of this Agreement and the Release Letter has been duly and validly authorized, executed and delivered by, and is a valid and legally binding obligation of, the Selling Stockholder enforceable against the Selling Stockholder in accordance with its terms, subject to (i) the effects of bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium and other similar laws relating to or affecting creditors’ rights generally, (ii) general equitable principles (whether considered in a proceeding in equity or at law) and (iii) an implied covenant of good faith and fair dealing.
(h) The sale of the Stock by the Selling Stockholder, the execution, delivery and performance of this Agreement and the Release Letter by the Selling Stockholder and the consummation by the Selling Stockholder 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 the Selling Stockholder is a party or by which the Selling Stockholder is bound or to which any of the property or assets of the Selling Stockholder is subject, (ii) result in any violation of the provisions of the charter or by-laws (or similar organizational documents) of the Selling Stockholder 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 Stockholder or the property or assets of the Selling Stockholder.
(i) No consent, approval, authorization or order of, or filing or registration with, any court or governmental agency or body having jurisdiction over the Selling Stockholder or the property or assets of the Selling Stockholder is required for the sale of the Stock by the Selling Stockholder, the execution, delivery and performance of this Agreement or the Release Letter by the Selling Stockholder and the consummation by the Selling Stockholder of the transactions contemplated hereby, except for the registration of the Shares Stock under the Securities Act and such consents, approvals, authorizations, orders, filings, registrations or qualifications as may be required under the Exchange Act and applicable state or foreign securities laws in connection with the purchase and sale of the Shares Stock by the Underwriter.
(ij) The To the knowledge of the Selling Stockholder, 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 no representation or warranty is made as to information contained in or omitted from the Registration Statement in reliance upon and in conformity with written information furnished to the Company by the Underwriter specifically for inclusion therein, which information is specified in Section 8(f). The preceding sentence applies only to written information furnished to the Company by the Selling Stockholder expressly for use therein, it being understood and agreed that the only such information furnished by the Selling Stockholder consists of the Selling Stockholder’s Selling Stockholder Information.
(iik) To the knowledge of the Selling Stockholder, the Prospectus will not, as of its date and on or as of 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 no representation or warranty is made as to information contained in or omitted from the Prospectus in reliance upon and in conformity with written information furnished to the Company by the Underwriter specifically for inclusion therein, which information is specified in Section 8(f). The preceding sentence applies only to written information furnished to the Company by the Selling Stockholder expressly for use therein, it being understood and agreed that the only such information furnished by the Selling Stockholder consists of the Selling Stockholder’s Selling Stockholder Information.
(iiil) To the knowledge of the Selling Stockholder, 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 no representation or warranty is made only as to statements information contained in or omissions made omitted from the Pricing Disclosure Package in reliance upon and in conformity with written information furnished to the Company by or on behalf the Underwriter specifically for inclusion therein, which information is specified in Section 8(f). The preceding sentence applies only to written information furnished to the Company by the Selling Stockholder expressly for use therein, it being understood and agreed that the only such information furnished by the Selling Stockholder consists of the Selling Stockholder’s Selling Stockholder Information.
(xm) specifically for use in To the preparation knowledge of the Registration Statement, (y) specifically for inclusion in the Registration StatementSelling Stockholder, the Pricing Disclosure Package, when taken together with each Issuer Free Writing Prospectus listed in Schedule IV hereto, did not, as of the Applicable Time, contain an untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading; provided that no representation or warranty is made as to information contained in or omitted from the Pricing Disclosure Package (or any Issuer Free Writing Prospectus listed in Schedule IV hereto) in reliance upon and in conformity with written information furnished to the Prospectus or (z) Company by the Underwriter specifically for inclusion therein, which information is specified in Section 8(f). The preceding sentence applies only to written information furnished to the Company by the Selling Stockholder expressly for use therein, it being understood and agreed that the only such other documentsinformation furnished by the Selling Stockholder consists of the Selling Stockholder’s Selling Stockholder Information.
(kn) The Selling Stockholder’s sale of the Shares pursuant to this Agreement Stockholder is not prompted to sell shares of Common Stock by any material non-public information concerning the Company or any of its subsidiaries that is not set forth in the Registration Statement, the Pricing Disclosure Package and or the Prospectus.
(lo) The Selling Stockholder 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 in connection with the offering of the shares of the Stock.
(p) The Selling Stockholder has not: (i) used any corporate funds for any unlawful contribution, gift, entertainment or other unlawful expense relating to facilitate political activity; (ii) made any direct or indirect unlawful payment to any foreign or domestic government official, “foreign official” (as defined in the FCPA) or employee from corporate funds; (iii) violated or is in violation of any provision of the FCPA, Bribery Act 2010, as amended, or any other applicable anti-bribery statute or regulation; or (iv) made any bribe, rebate, payoff, influence payment, kickback or other unlawful payment to any domestic government official, foreign official or employee; and the Selling Stockholder has conducted its business in compliance with the FCPA, Bribery Act 2010, and all other applicable anti-bribery statutes and regulations, and has instituted and maintain policies and procedures designed to ensure, and which are reasonably expected to continue to ensure, continued compliance therewith.
(q) The operations of the Selling Stockholder is and has been conducted at all times in compliance with applicable financial recordkeeping and reporting requirements of the Money Laundering Laws and no action, suit or proceeding by or before any court or governmental agency, authority or body or any arbitrator involving the Selling Stockholder or any of its subsidiaries with respect to the Money Laundering Laws is pending or, to the knowledge of the Selling Stockholder, threatened.
(r) The Selling Stockholder is not (i) currently subject to or the target of any Sanctions; or (ii) located, organized or resident in a country that is the subject of Sanctions; and the Selling Stockholder will not directly or indirectly use the proceeds of the offering, or lend, contribute or otherwise make available such proceeds to any subsidiary, joint venture partner or other person or entity, for the purpose of financing the activities of any person, or in any country or territory, that currently is the subject or target of Sanctions or in any other manner that will result in a violation by any person (including any person participating in the transaction whether as an underwriter, advisor, investor or otherwise) of Sanctions. The Selling Stockholder has not knowingly engaged in for the past five years, are not now knowingly engaged in, and will not engage in, any dealings or transactions with any individual or entity, or in any country or territory, that at the time of the dealing or transaction is or was the subject or target of Sanctions.
(s) There are no affiliations or associations between any member of FINRA “participating in the offering” and the Selling Stockholder, and none of the proceeds received by the Selling Stockholder from the sale or resale of the SharesStock to be sold by the Selling Stockholder hereunder will be paid to a member of FINRA “participating in the offering” or any affiliate of (or person “associated with,” as such terms are used in the rules of FINRA) such member. Any certificate signed by any officer of any the Selling Stockholder or officer thereof and delivered to the Underwriter or counsel for the Underwriter in connection with the offering of the Shares Stock shall be deemed to be a representation and warranty by the Selling Stockholder, as to matters covered thereby, to the Underwriter.
Appears in 1 contract
Representations, Warranties and Agreements of the Selling Stockholder. The Selling Stockholder represents, warrants and agrees that:
(a) Neither the Selling Stockholder nor any person acting on behalf of the Selling Stockholder (other than, if applicable, the Company and the UnderwriterUnderwriters) has used or referred to any “free writing prospectus” (as defined in Rule 405405 of the Rules and Regulations), relating to the Shares.Stock;
(b) The Selling Stockholder has, or immediately prior to Upon the Initial Delivery Date on which exercise of the Selling Stockholder is selling shares, Series I Warrant the Selling Stockholder will have, good and on the applicable Delivery Date will have, 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 Firm Stock to be sold by the Selling Stockholder hereunder on such Delivery Date, free and clear of all security interests, claims, liens, or other encumbrances, equities or claims, except for any liens, encumbrances, equities or claims or otherwise in favor of the Underwriter.
(c) The On the applicable Delivery Date the Selling Stockholder haswill have valid title to, in accordance with or a valid “security entitlement” within the terms meaning of Security 8-501 of the Release Letter dated UCC in respect of, the date hereofWarrant Stock or Option Stock, irrevocably instructed the Collateral Agent to deliver the Firm Shares as applicable, to be sold by the Selling Stockholder hereunder to the Underwriter on the Initial Delivery datefree and clear of all security interests, and the obligations of the Selling Stockholder hereunder claims, liens, or thereunder shall not be terminated by any act of the Selling Stockholder, by operation of law or the occurrence of any other eventencumbrances.
(d) Upon payment of the purchase price for the Shares to be sold by the Selling Stockholder 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 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 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, the Selling Stockholder 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(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) The Selling Stockholder has full corporate right, power and authority authority, corporate or otherwise, to enter into and perform its obligations under this Agreement and the Release LetterAgreement.
(fe) This Agreement has been duly and validly authorized, executed and delivered by or on behalf of the Selling Stockholder.
(g) Each of this Agreement and the Release Letter has been duly and validly authorized, executed and delivered by, and is a valid and legally binding obligation of, the Selling Stockholder enforceable against the Selling Stockholder in accordance with its terms, subject to (i) the effects of bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium and other similar laws relating to or affecting creditors’ rights generally, (ii) general equitable principles (whether considered in a proceeding in equity or at law) and (iii) an implied covenant of good faith and fair dealing.
(hf) The execution, delivery and performance of this Agreement and the Release Letter by the Selling Stockholder and the consummation by the Selling Stockholder of the transactions contemplated hereby and thereby do not and will not (i) conflict with or result in a breach or violation of any of the terms or provisions of, or constitute a default under, any indenture, mortgage, deed of trust, loan agreement, license or other agreement or instrument to which the Selling Stockholder is a party or by which the Selling Stockholder is bound or to which any of the property or assets of the Selling Stockholder is subject, subject (ii) result in any violation of the provisions of the charter or by-laws (or similar organizational documents) of the Selling Stockholder or (iii) result in any violation of any statute or any order, rule or regulation of any court or governmental agency or body having jurisdiction over the Selling Stockholder or the property or assets of the Selling Stockholder, except in the case of (i) and (iii) where such contravention would not, singly or in the aggregate, have a material adverse effect the power and ability of the Selling Stockholder to perform its obligations under this Agreement (a “Seller Material Adverse Effect”).
(ig) No consent, approval, authorization or order of, or filing or registration with, any court or governmental agency or body having jurisdiction over the Selling Stockholder or the property or assets of the Selling Stockholder is required for the execution, delivery and performance of this Agreement or the Release Letter by the Selling Stockholder and the consummation by the Selling Stockholder of the transactions contemplated hereby, except for the registration of the Shares Stock under the Securities Act and such consents, approvals, authorizations, registrations or qualifications as may be required under the Exchange Act and applicable state or foreign securities laws in connection with the purchase and sale of the Shares Stock by the UnderwriterUnderwriters, except the filing of an amended Schedule 13G and Forms 3 and 4 such as may be required by the securities or Blue Sky laws of the various states in connection with the exercise of the Series I Warrant and the offer and sale of the Shares, and except for any consents, approvals, authorizations, orders or qualifications, or filings or registrations, the absence of which would not, singly or in the aggregate, have a Seller Material Adverse Effect.
(ih) The Neither the Preliminary Prospectus, the Registration Statement did notStatement, the Prospectus, any Issuer Free Writing Prospectus nor any amendments or supplements thereto or in any Permitted Issuer Information, any Blue Sky Application or any “free writing prospectus” (as defined in Rule 405 of the Effective Date, contain an Rules and Regulations) includes any untrue statement of a material fact or omit omits 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 in order 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 such representations and warranties set forth in the foregoing clauses this subsection (ib)(i) through (v) are made apply only as to statements or omissions made in reliance upon and in conformity with written information furnished relating to the Company Selling Stockholder furnished in writing by or on behalf of the Selling Stockholder (x) specifically for use in the preparation of the Registration Statement, (y) specifically expressly for inclusion therein (the “Selling Stockholder Information”), which shall be understood to be limited to the information in the Registration Statement, the Pricing Disclosure Package or the Prospectus or (zSection 10(g) specifically for inclusion in such other documentshereof.
(ki) The Selling Stockholder’s sale of the Shares pursuant to this Agreement Stockholder is not prompted to sell shares of Common Stock by any material non-public information concerning the Company or any of its subsidiaries that is not set forth in the Registration Statement, the Pricing Disclosure Package and the Prospectus.
(lj) The Selling Stockholder 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 of any the Selling Stockholder and delivered to the Underwriter Representative or counsel for the Underwriter Underwriters in connection with the offering of the Shares Stock shall be deemed a representation and warranty by the Selling Stockholder, as to matters covered thereby, to the each Underwriter.
Appears in 1 contract
Samples: Underwriting Agreement (Libbey Inc)
Representations, Warranties and Agreements of the Selling Stockholder. The Selling Stockholder represents, warrants and agrees that:
(a) Neither the Selling Stockholder nor any person acting on behalf of the such Selling Stockholder (other than, if applicable, the Company and the UnderwriterUnderwriters) has used or referred to any “free writing prospectus” (as defined in Rule 405), 405 under the Securities Act) relating to the SharesStock.
(b) The Selling Stockholder has, or and immediately prior to the Initial any Delivery Date on which the Selling Stockholder is selling sharesshares of Stock, the Selling Stockholder will have, good and valid marketable title to, or a valid to the shares of Stock to be sold by the Selling Stockholder hereunder on such Delivery Date and any “security entitlement” within the meaning of Section 8-501 of the New York Uniform Commercial Code (the “UCC”) in respect of, the Shares to be sold by the Selling Stockholder hereunder on such Delivery Datethereof, free and clear of all liens, encumbrances, equities equities, community property rights, restrictions on transfer or claims, except for any liens, encumbrances, equities or claims or otherwise in favor of the Underwriter.
(c) The Selling Stockholder has, in accordance with the terms of the Release Letter dated the date hereof, irrevocably instructed the Collateral Agent to deliver the Firm Shares Stock to be sold by the Selling Stockholder hereunder is subject to the Underwriter on interest of the Initial Delivery date, Underwriters and the obligations of the Selling Stockholder hereunder or thereunder shall not be terminated by any act of the Selling Stockholder, by operation of law or the occurrence of any other event.
(d) Upon payment of the purchase price for the Shares Stock to be sold by the Selling Stockholder pursuant to this AgreementStockholder, delivery of such SharesStock, 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 Stock in the name of Cede or such other nominee, nominee and the crediting of such Shares Stock on the books of DTC 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 any such Underwriter has notice of any “adverse claim,” claim within the meaning of Section 8-105 of the UCC, UCC to such Shares)Stock) (i) DTC will acquire good and marketable title to such Stock free and clear of all liens, encumbrances, equities, community property rights, restrictions on transfer or claims, (iii) DTC shall be a “protected purchaser” of such Shares Stock within the meaning of Section 8-303 of the UCC, (iiiii) under Section 8-501 of the UCC, the Underwriter Underwriters will acquire a valid “security entitlement” entitlement in respect of such Shares Stock, and (iiiiv) no an action (based on an adverse claim to such securities entitlement, whether framed in conversion, replevin, constructive trust, equitable lien, lien or other theory) based on any “adverse claim,” within the meaning of Section 8-102 of the UCC, to such Shares theory may not be successfully asserted against the Underwriter Underwriters with respect to such security entitlement. For purposes of this representation, the Selling Stockholder may assume assumes 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, and (Cz) appropriate entries to the account(s) 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.
(e) The Selling Stockholder has full corporate right, power and authority authority, corporate or otherwise, to enter into and perform its obligations under this Agreement and the Release LetterAgreement.
(f) This Agreement has been duly and validly authorized, executed and delivered by or on behalf of the Selling Stockholder.
(g) Each The issue and sale of this Agreement and the Release Letter has been duly and validly authorized, executed and delivered by, and is a valid and legally binding obligation ofStock by the Selling Stockholder, the Selling Stockholder enforceable against the Selling Stockholder in accordance with its terms, subject to (i) the effects of bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium and other similar laws relating to or affecting creditors’ rights generally, (ii) general equitable principles (whether considered in a proceeding in equity or at law) and (iii) an implied covenant of good faith and fair dealing.
(h) The execution, delivery and performance of this Agreement and the Release Letter by the Selling Stockholder and the consummation by the Selling Stockholder 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 the Selling Stockholder is a party or by which the Selling Stockholder is bound or to which any of the property or assets of the Selling Stockholder is subject, (ii) result in any violation of the provisions of the charter or by-laws (or similar organizational documents) of the Selling Stockholder Stockholder, 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 Stockholder or the property or assets of the Selling Stockholder.
(ih) No consent, approval, authorization or order of, or filing or registration with, any court or governmental agency or body having jurisdiction over the Selling Stockholder or the property or assets of the Selling Stockholder is required for the issue and sale of the Stock by the Selling Stockholder, the execution, delivery and performance of this Agreement or the Release Letter by the Selling Stockholder and the consummation by the Selling Stockholder of the transactions contemplated hereby, except for the registration of the Shares Stock under the Securities Act and such consents, approvals, authorizations, orders, filings, registrations or qualifications as may be required under the Exchange Act and applicable state or foreign securities laws in connection with the purchase and sale of the Shares Stock 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; provided that no representation or warranty is made as to information contained in or omitted from the Registration Statement in reliance upon and in conformity with written information furnished to the Company through the Representative by or on behalf of any Underwriter specifically for inclusion therein, which information is specified in Section 10(f); provided further that such representations and warranties set forth in this Section 2(i) shall apply only to statements or omissions made in reliance upon and in conformity with information relating to the Selling Stockholder furnished in writing by or on behalf of the Selling Stockholder, which information with respect to the Selling Stockholder is limited to the name of the Selling Stockholder, the number of shares of Stock and the address and other information with respect the Selling Stockholder described under the caption “Selling Stockholder” in the Registration Statement, the Prospectus and the Pricing Disclosure Package expressly for use therein (iisuch information with respect to the Selling Stockholder, the “Selling Stockholder Information”).
(j) the The Prospectus will not, as of its date and on or as of 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; provided that no representation or warranty is made as to information contained in or omitted from the Prospectus in reliance upon and in conformity with written information furnished to the Company through the Representative by or on behalf of any Underwriter specifically for inclusion therein, which information is specified in Section 10(f); provided further that such representations and warranties set forth in this Section 2(j) shall apply only to statements or omissions made in reliance upon and in conformity with the Selling Stockholder Information.
(iiik) 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; (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 no representation or warranty is made only as to statements information contained in or omissions made omitted from the Pricing Disclosure Package in reliance upon and in conformity with written information furnished to the Company through the Representative by or on behalf of any Underwriter specifically for inclusion therein, which information is specified in Section 10(f); provided further that such representations and warranties set forth in this Section 2(k) shall apply only to statements or omissions made in reliance upon and in conformity with the Selling Stockholder Information.
(xl) specifically for use The Pricing Disclosure Package, when taken together with each Issuer Free Writing Prospectus listed in Schedule IV hereto, did not, as of the Applicable Time, contain an untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in the preparation light of the Registration Statementcircumstances under which they were made, (y) specifically for inclusion not misleading; provided that no representation or warranty is made as to information contained in the Registration Statement, or omitted from the Pricing Disclosure Package (or any Issuer Free Writing Prospectus listed in Schedule V hereto) in reliance upon and in conformity with written information furnished to the Prospectus Company through the Representative by or (z) on behalf of any Underwriter specifically for inclusion therein, which information is specified in Section 10(f); provided further that such other documentsrepresentations and warranties set forth in this Section 2(l) shall apply only to statements or omissions made in reliance upon and in conformity with the Selling Stockholder Information.
(km) The Selling Stockholder’s sale of the Shares pursuant to this Agreement Stockholder is not prompted to sell shares of Common Stock by any material non-public information concerning the Company or any of its subsidiaries that is not set forth in the Registration Statement, the Pricing Disclosure Package and the Prospectus.
(ln) The Selling Stockholder 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 Sharesshares of the Stock.
(o) The Selling Stockholder has not: (i) used any corporate funds for any unlawful contribution, gift, entertainment or other unlawful expense relating to political activity; (ii) made any direct or indirect unlawful payment to any foreign or domestic government official, “foreign official” (as defined in the FCPA) or employee from corporate funds; (iii) violated or is in violation of any provision of the FXXX, Xxxxxxx Xxx 0000, as amended, or any other applicable anti-bribery statute or regulation; or (iv) made any bribe, rebate, payoff, influence payment, kickback or other unlawful payment to any domestic government official, foreign official or employee; and the Selling Stockholder has conducted its business in compliance with the FXXX, Xxxxxxx Xxx 0000, and all other applicable anti-bribery statutes and regulations, and has instituted and maintain policies and procedures designed to ensure, and which are reasonably expected to continue to ensure, continued compliance therewith.
(p) The operations of the Selling Stockholder are and have been conducted at all times in compliance with applicable financial recordkeeping and reporting requirements of the Money Laundering Laws and no action, suit or proceeding by or before any court or governmental agency, authority or body or any arbitrator involving the Selling Stockholder or any of its subsidiaries with respect to the Money Laundering Laws is pending or, to the knowledge of the Selling Stockholder, threatened.
(q) The Selling Stockholder is not (i) currently subject to or the target of any Sanctions; or (ii) located, organized or resident in a country that is the subject of Sanctions (including, without limitation, Cuba, Iran, North Korea, and Syria); and the Selling Stockholder will not directly or indirectly use the proceeds of the offering, or lend, contribute or otherwise make available such proceeds to any subsidiary, joint venture partner or other person or entity, for the purpose of financing the activities of any person, or in any country or territory, that currently is the subject or target of Sanctions or in any other manner that will result in a violation by any person (including any person participating in the transaction whether as an underwriter, advisor, investor or otherwise) of Sanctions. The Selling Stockholder has not knowingly engaged in for the past five years, are not now knowingly engaged in, and will not engage in, any dealings or transactions with any individual or entity, or in any country or territory, that at the time of the dealing or transaction is or was the subject or target of Sanctions.
(r) The Selling Stockholder is not (1) an employee benefit plan subject to Title I of ERISA, (2) a plan or account subject to Section 4975 of the Internal Revenue Code of 1986, as amended or (3) an entity deemed to hold “plan assets” of any such plan or account under Section 3(42) of ERISA, 29 C.F.R. 2510.3-101, or otherwise. Any certificate signed by any officer of any the Selling Stockholder and delivered to the Underwriter Representative or counsel for the Underwriter Underwriters in connection with the offering of the Shares Stock shall be deemed a representation and warranty by the Selling Stockholder, as to matters covered thereby, to the each Underwriter.
Appears in 1 contract
Samples: Underwriting Agreement (BioXcel Therapeutics, Inc.)
Representations, Warranties and Agreements of the Selling Stockholder. The Selling Stockholder represents, warrants and agrees that:
(a) Neither the Selling Stockholder nor any person acting on behalf of the Selling Stockholder (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.Stock;
(b) The Selling Stockholder has, or and immediately prior to the Initial any Delivery Date on which the Selling Stockholder is selling sharesshares of Stock, the Selling Stockholder 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 the Selling Stockholder hereunder on such the Delivery Date, free and clear of all liens, encumbrances, equities or claims, except for any liens, encumbrances, equities or claims or otherwise in favor of the Underwriter.
(c) The Selling Stockholder has, in accordance with the terms of the Release Letter dated the date hereof, irrevocably instructed the Collateral Agent to deliver the Firm Shares Stock to be sold by the Selling Stockholder hereunder is subject to the interest of the Underwriter on the Initial Delivery date, and the obligations of the Selling Stockholder hereunder or thereunder shall not be terminated by any act of the Selling Stockholder, by operation of law law, by the death or incapacity of any individual Selling Stockholder, or the occurrence of any other event.
(d) Upon payment of the purchase price for the Shares Stock to be sold by the such Selling Stockholder pursuant to this AgreementStockholder, delivery 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 securities account(s) accounts of the Underwriter (assuming that neither DTC nor the Underwriter has notice of any adverse claim (within the meaning of Section 8-501(a) 8‑105 of the UCC) of the Underwriter maintained at DTC (assuming that neither DTC nor any such Underwriter has notice of any “adverse claim,” within the meaning of Section 8-105 of the UCC, to such SharesStock), (i) DTC shall be a “protected purchaser” of such Shares Stock within the meaning of Section 8-303 8‑303 of the UCC, (ii) under Section 8-501 8‑501 of the UCC, the Underwriter will acquire a valid “security entitlement” entitlement in respect of such Shares Stock and (iii) no action (whether framed in conversion, replevin, constructive trust, equitable lien, or other theory) based on any “adverse claim,” within the meaning of Section 8-102 8‑102 of the UCC, to such Shares Stock may be asserted against the Underwriter with respect to such security entitlement. For purposes of this representation, the such Selling Stockholder may assume that when such payment, delivery and crediting occur, (A) such Shares will have been registered in the name of Cede or another nominee designated by DTC, in each case on the Company’s share registry in accordance with its Memorandum and Articles certificate of Association incorporation, bylaws and applicable law, (B) DTC will be registered as a “clearing corporation,” within the meaning of Section 8-102 8‑102 of the UCC, UCC and (C) appropriate entries to the account(s) 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) The Selling Stockholder has full corporate right, power and authority authority, corporate or otherwise, to enter into and perform its obligations under this Agreement and the Release LetterAgreement.
(f) This Agreement has been duly and validly authorized, executed and delivered by or on behalf of the Selling Stockholder.
(g) Each of this Agreement and the Release Letter has been duly and validly authorized, executed and delivered by, and is a valid and legally binding obligation of, the Selling Stockholder enforceable against the Selling Stockholder in accordance with its terms, subject to (i) the effects of bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium and other similar laws relating to or affecting creditors’ rights generally, (ii) general equitable principles (whether considered in a proceeding in equity or at law) and (iii) an implied covenant of good faith and fair dealing.
(h) The execution, delivery and performance of this Agreement and the Release Letter by the Selling Stockholder and the consummation by the Selling Stockholder of the transactions contemplated hereby and thereby do not and will not (i) conflict with or result in a breach or violation of any of the terms or provisions of, or constitute a default under, any indenture, mortgage, deed of trust, loan agreement, license or other agreement or instrument to which the Selling Stockholder is a party or by which the Selling Stockholder is bound or to which any of the property or assets of the Selling Stockholder is subject, subject or (ii) result in any violation of the provisions of the charter or by-laws (or similar organizational documents) of the Selling Stockholder or (iii) result in any violation of any statute or any order, rule or regulation of any court or governmental agency or body having jurisdiction over the Selling Stockholder or the property or assets of the Selling Stockholder.
(ih) No consent, approval, authorization or order of, or filing or registration with, any court or governmental agency or body having jurisdiction over the Selling Stockholder or the property or assets of the Selling Stockholder is required for the execution, delivery and performance of this Agreement or the Release Letter by the Selling Stockholder and the consummation by the Selling Stockholder of the transactions contemplated hereby, 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.
(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; . Notwithstanding anything to the contrary, with respect to the Selling Stockholder, the preceding sentence applies only to statements in or omissions in the Registration Statement that are based upon information furnished to the Company by the Selling Stockholder specifically for use therein, it being understood and agreed that the only information furnished by the Selling Stockholder consists solely of the information relating to the Selling Stockholder under the captions “Selling Stockholder” and “Selling Stockholders” in the Registration Statement (iithe “Selling Stockholder Information”).
(j) the 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; . Notwithstanding anything to the contrary, with respect to the Selling Stockholder, the preceding sentence applies only to statements in or omissions in the Prospectus that are based upon information furnished to the Company by the Selling Stockholder specifically for use therein, it being understood and agreed that the only information furnished by the Selling Stockholder consists solely of the Selling Stockholder Information relating to such Selling Stockholder.
(iiik) 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; (iv) . Notwithstanding anything to the documents incorporated by reference contrary, with respect to the Selling Stockholder, the preceding sentence applies only to statements in the Registration Statement, or omissions in 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 based upon and in conformity with written information furnished to the Company by or on behalf the Selling Stockholder specifically for use therein, it being understood and agreed that the only information furnished by the Selling Stockholder consists solely of the Selling Stockholder (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 Information relating to such other documentsSelling Stockholder.
(kl) The Selling Stockholder’s sale of the Shares pursuant to this Agreement Stockholder is not prompted to sell shares of Common Stock by any material non-public information concerning the Company or any of its subsidiaries that is not set forth in the Registration Statement, the Pricing Disclosure Package and the Prospectus.
(lm) The Selling Stockholder 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.
(n) The sale of the Common Stock by the Selling Stockholder does not violate any of the Company’s internal policies regarding the sale of stock by its affiliates. Any certificate signed by any officer of any the Selling Stockholder and delivered to the Underwriter or counsel for the Underwriter in connection with the offering of the Shares Stock shall be deemed a representation and warranty by the such Selling Stockholder, as to matters covered thereby, to the Underwriter.
Appears in 1 contract
Representations, Warranties and Agreements of the Selling Stockholder. The Selling Stockholder represents, warrants and agrees that:
(a) Neither the The Selling Stockholder nor any person acting on behalf has been duly organized and is validly existing as a corporation, limited liability company, public agency, or a limited partnership, as the case may be, in good standing in its jurisdiction of the Selling Stockholder (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 Sharesformation.
(b) The Selling Stockholder is a United States person (as the term is defined in Section 7701(a)(30) of the Internal Revenue Code of 1986, as amended) for U.S. federal income tax purposes.
(c) The Selling Stockholder has, or and immediately prior to the Initial any Delivery Date on which the Selling Stockholder is selling sharesDate, the Selling Stockholder will have, good and valid title to, or a valid to the shares of Stock to be sold by the Selling Stockholder hereunder on such Delivery Date and any “security entitlement” within the meaning of Section 8-501 of the New York Uniform Commercial Code (the “UCC”) in respect of, the Shares to be sold by the Selling Stockholder hereunder on such Delivery Datethereof, free and clear of all liens, encumbrances, equities or adverse claims, except for any liens, encumbrances, equities or claims or otherwise in favor of the Underwriter.
(cd) The Selling Stockholder has, in accordance with [Reserved]
(e) [Reserved]
(f) Upon payment for the terms of the Release Letter dated the date hereof, irrevocably instructed the Collateral Agent to deliver the Firm Shares Stock to be sold by the Selling Stockholder hereunder to the Underwriter on the Initial Delivery date, and the obligations of the Selling Stockholder hereunder or thereunder shall not be terminated by any act of the Selling Stockholder, by operation of law or the occurrence of any other event.
(d) Upon payment of the purchase price for the Shares to be sold by the Selling Stockholder pursuant to this Agreement, delivery of such SharesStock, 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 Stock in the name of Cede or such other nominee, nominee and the crediting of such Shares Stock on the books of DTC 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 any such Underwriter has notice of any “adverse claim,” claim (within the meaning of Section 8-105 of the UCC, ) to such Shares), Stock) (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 Underwriters will acquire a valid “security entitlement” entitlement in respect of such Shares Stock, and (iii) no an action (whether framed in conversion, replevin, constructive trust, equitable lien, or other theory) based on any “an adverse claim,” , within the meaning of Section 8-102 of the UCC, to such Shares may not be asserted against the Underwriter Underwriters with respect to such security entitlement. For purposes of this representation, the Selling Stockholder 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, and (Cz) appropriate entries to the account(s) 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.
(eg) The Selling Stockholder has full corporate right, power and authority authority, corporate or otherwise, to enter into and perform its obligations under this Agreement and the Release LetterAgreement.
(fh) This Agreement has been duly and validly authorized, executed and delivered by or on behalf of the Selling Stockholder.
(gi) Each The sale of this Agreement and the Release Letter has been duly and validly authorized, executed and delivered by, and is a valid and legally binding obligation ofStock by the Selling Stockholder, the Selling Stockholder enforceable against the Selling Stockholder in accordance with its terms, subject to (i) the effects of bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium and other similar laws relating to or affecting creditors’ rights generally, (ii) general equitable principles (whether considered in a proceeding in equity or at law) and (iii) an implied covenant of good faith and fair dealing.
(h) The execution, delivery and performance of this Agreement and the Release Letter by the Selling Stockholder and the consummation by the Selling Stockholder 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 the Selling Stockholder is a party or by which the Selling Stockholder is bound or to which any of the property or assets of the Selling Stockholder is subject, (ii) result in any violation of the provisions of the charter or by-laws (or similar organizational documents) of the Selling Stockholder Stockholder, 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 Stockholder or the property or assets of the Selling Stockholder, except, with respect to clauses (i) and (iii), conflicts, defaults, breaches or violations that would not, individually or in the aggregate, reasonably be expected to have a material adverse effect on the Selling Stockholder’s ability to perform its obligations under this Agreement.
(ij) No consent, approval, authorization or order of, or filing or registration with, any court or governmental agency or body having jurisdiction over the Selling Stockholder or the property or assets of the Selling Stockholder is required for the sale of the Stock by the Selling Stockholder, the execution, delivery and performance of this Agreement or the Release Letter by the Selling Stockholder and the consummation by the Selling Stockholder of the transactions contemplated hereby, except for the registration of the Shares Stock under the Securities Act and such consents, approvals, authorizations, orders, filings, registrations or qualifications as may be required under the Exchange Act and applicable state or foreign securities laws in connection with the purchase and sale of the Shares Stock by the UnderwriterUnderwriters.
(ik) The Registration Statement Pricing Disclosure Package, at the Applicable Time did not, and as of the Effective Initial Delivery Date and as of each Option Stock Delivery Date, as the case may be, will not, contain an any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein 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 in order to make the statements therein, in the light of the circumstances under which they were made, not misleading; (iii) . The preceding sentence applies only to written information furnished to the Pricing Disclosure Package did notCompany by the Selling Stockholder expressly for use therein, as it being understood and agreed that the only such information furnished by the Selling Stockholder consists of the Applicable TimeSelling Stockholder’s Selling Stockholder Information. Each Underwriter, contain an untrue statement of the Company and the Selling Stockholder agree that the “Selling Stockholder Information” with respect to 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 Selling Stockholder consists solely of the circumstances under which they were made, not misleading; (iv) information furnished by the documents incorporated by reference Selling Stockholder for use in connection with the offering in the Registration Statement, the Pricing Disclosure Package or and the Prospectus did notProspectus, and any further documents filed and incorporated by reference therein will not, when filed with the Commission, contain an untrue statement which consists solely 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 the name, address and number of shares of Common Stock owned by the Selling Stockholder, before and after the offering, and (vii) are made only as the other information with respect to statements or omissions made in reliance upon and in conformity with written information furnished to the Company by or on behalf of the Selling Stockholder (x) specifically for use that appears in the preparation of table (and corresponding footnotes) under the Registration Statementcaption “Selling Stockholder,” in each case, (y) specifically for inclusion in the Registration Statement, the Pricing Disclosure Package or Package, the Prospectus or (z) specifically for inclusion in such other documentsany Issuer Free Writing Prospectus.
(kl) [Reserved]
(m) [Reserved]
(n) [Reserved]
(o) The Selling Stockholder’s sale of the Shares pursuant to this Agreement Stockholder is not prompted to sell shares of Common Stock by any material non-public information concerning the Company or Company, including any of its subsidiaries subsidiaries, that is not set forth in the Registration Statement, the Pricing Disclosure Package and the Prospectus.
(lp) The Selling Stockholder 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 the sale or resale of the Shares. Any certificate signed by any officer of any Selling Stockholder and delivered to the Underwriter or counsel for the Underwriter in connection with the offering of the Shares shares of the Stock.
(q) [Reserved]
(r) Neither the Selling Stockholder nor any of its subsidiaries (to the extent applicable), nor any director or officer of the Selling Stockholder or any of its subsidiaries (to the extent applicable) nor, to the knowledge of the Selling Stockholder, any employee of the Selling Stockholder or any of its subsidiaries (to the extent applicable) or any agent, affiliate or other person associated with or acting on behalf of the Selling Stockholder has: (i) used any corporate funds for any unlawful contribution, gift, entertainment or other unlawful expense relating to political activity; (ii) made any direct or indirect unlawful payment to any foreign or domestic government official, “foreign official” (as defined in the FCPA) or employee from corporate funds; (iii) violated or is in violation of any provision of the FCPA, Bribery Act 2010, as amended, or any other applicable anti-bribery statute or regulation; or (iv) made any bribe, rebate, payoff, influence payment, kickback or other unlawful payment to any domestic government official, foreign official or employee; and the Selling Stockholder has conducted its business in compliance with the FCPA, Bribery Act 2010, and all other applicable anti-bribery statutes and regulations, and has instituted and maintain policies and procedures reasonably designed to ensure, and which are reasonably expected to continue to ensure, continued compliance therewith. Neither the Selling Stockholder nor any of its subsidiaries (to the extent applicable) will use, directly or indirectly, the proceeds of the offering in furtherance of an offer, payment, promise to pay, or authorization of the payment of giving of money, or anything else of value, to any person in violation of any applicable anti-corruption laws.
(s) The operations of the Selling Stockholder and its subsidiaries (to the extent applicable) is and has been conducted at all times in compliance with applicable financial recordkeeping and reporting requirements of the Money Laundering Laws and no action, suit or proceeding by or before any court or governmental agency, authority or body or any arbitrator involving the Selling Stockholder or any of its subsidiaries (to the extent applicable) with respect to the Money Laundering Laws is pending or, to the knowledge of the Selling Stockholder, threatened.
(t) Neither the Selling Stockholder nor any of its subsidiaries (to the extent applicable), directors or officers, nor, to the knowledge of the Selling Stockholder, any of the Selling Stockholder or any agent, controlled affiliate or other person associated with or acting on behalf of the Selling Stockholder or any of its subsidiaries (to the extent applicable) is (i) currently subject to or the target of any Sanctions; or (ii) located, organized or resident in a country that is the subject of Sanctions (including, without limitation, the so-called Donetsk People’s Republic, the so-called Luhansk People’s Republic or any other covered region of Ukraine identified pursuant to Executive Order 14065, the Crimea Region of Ukraine, Cuba, Iran, North Korea and Syria); and the Selling Stockholder will not directly or indirectly use the proceeds of the offering, or lend, contribute or otherwise make available such proceeds to any subsidiary, joint venture partner or other person or entity, for the purpose of financing the activities of any person, or in any country or territory, that currently is the subject or target of Sanctions or in any other manner that will result in a violation by any person (including any person participating in the transaction whether as an underwriter, advisor, investor or otherwise) of Sanctions. The Selling Stockholder has not knowingly engaged in for the past five years, are not now knowingly engaged in, and will not engage in, any dealings or transactions with any individual or entity, or in any country or territory, that at the time of the dealing or transaction is or was the subject or target of Sanctions. Any certificate signed by or on behalf of the Selling Stockholder and delivered to the Representative or counsel for the Underwriters in connection with the offering of the Stock shall be deemed to be a representation and warranty by the Selling Stockholder, as to matters covered thereby, to the each Underwriter.
Appears in 1 contract
Samples: Underwriting Agreement (Sun Country Airlines Holdings, Inc.)
Representations, Warranties and Agreements of the Selling Stockholder. The Selling Stockholder represents, warrants and agrees that:
(a) Neither the Selling Stockholder nor any person acting on behalf of the Selling Stockholder (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) The Selling Stockholder has, or and immediately prior to the Initial First Delivery Date on which the Selling Stockholder is selling shares, (as defined in Section 5 hereof) the Selling Stockholder will have, 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 the Selling Stockholder hereunder and under the U.S. Underwriting Agreement on such Delivery Datedate, free and clear of all liens, encumbrances, equities or claims; and upon delivery of such shares and payment therefor pursuant hereto and thereto, good and valid title to such shares, free and clear of all liens, encumbrances, equities or claims, except will pass to the several International Managers and the Underwriters.
(b) The Selling Stockholder has placed in custody under a custody agreement (the "Custody Agreement" and, together with all other similar agreements executed by the other Selling Stockholders, the "Custody Agreements") with [insert name of custodian], as custodian (the "Custodian"), for any liensdelivery under this Agreement, encumbrances, equities certificates in negotiable form (with signature guaranteed by a commercial bank or claims trust company having an office or otherwise correspondent in favor the United States or a member firm of the UnderwriterNew York or American Stock Exchanges) representing the shares of Stock to be sold by the Selling Stockholder hereunder.
(c) The Selling Stockholder hashas duly and irrevocably executed and delivered a power of attorney (the "Power of Attorney" appointing the Custodian and one or more other persons, in accordance as attorneys-in-fact, with the terms full power of the Release Letter dated the date hereof, irrevocably instructed the Collateral Agent to deliver the Firm Shares to be sold by the Selling Stockholder hereunder to the Underwriter on the Initial Delivery datesubstitution, and the obligations of the Selling Stockholder hereunder or thereunder shall not be terminated with full authority (exercisable by any act one or more of the Selling Stockholder, by operation of law or the occurrence of any other event.
(dthem) Upon payment of the purchase price for the Shares to be sold by the Selling Stockholder pursuant execute and deliver this Agreement and to this Agreement, delivery of such Shares, as directed by the Underwriter, to Cede & Co. (“Cede”) or take such other nominee action as may be designated by The Depository Trust Company (“DTC”), registration of such Shares in necessary or desirable to carry out the name of Cede or such other nominee, and the crediting of such Shares 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 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 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, the Selling Stockholder 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(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) The Selling Stockholder has full corporate power and authority to enter into and perform its obligations under this Agreement and the Release Letter.
(f) This Agreement has been duly and validly authorized, executed and delivered by or provisions hereof on behalf of the Selling Stockholder.]
(gd) Each of The Selling Stockholder has full right, power and authority to enter into this Agreement and the Release Letter has been duly U.S. Underwriting Agreement, [the Power of Attorney and validly authorized, executed and delivered by, and is a valid and legally binding obligation of, the Selling Stockholder enforceable against Custody Agreement]; the Selling Stockholder in accordance with its terms, subject to (i) the effects of bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium and other similar laws relating to or affecting creditors’ rights generally, (ii) general equitable principles (whether considered in a proceeding in equity or at law) and (iii) an implied covenant of good faith and fair dealing.
(h) The execution, delivery and performance of this Agreement and the Release Letter U.S. Underwriting Agreement[, the Power of Attorney and the Custody Agreement] by the Selling Stockholder and the consummation by the Selling Stockholder 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 the Selling Stockholder is a party or by which the Selling Stockholder is bound or to which any of the property or assets of the Selling Stockholder is subject, (ii) result in any violation of the provisions of the charter or by-laws (or similar organizational documents) of the Selling Stockholder or (iii) 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 the Selling Stockholder or the property or assets of the Selling Stockholder.
(i) No consent, approval, authorization or order of, or filing or registration with, any court or governmental agency or body having jurisdiction over the Selling Stockholder or the property or assets of the Selling Stockholder is required for the execution, delivery and performance of this Agreement or the Release Letter by the Selling Stockholder and the consummation by the Selling Stockholder of the transactions contemplated hereby; and, except for the registration of the Shares Stock under the Securities Act and such consents, approvals, authorizations, registrations or qualifications as may be required under the Exchange Act and applicable state or foreign securities laws in connection with the purchase and sale distribution of the Shares Stock by the UnderwriterInternational Managers and the Underwriters, no consent, approval, authorization or order of, or filing or registration with, any such court or governmental agency or body is required for the execution, delivery and performance of this Agreement or the U.S. Underwriting Agreement[, the Power of Attorney or the Custody Agreement] by the Selling Stockholder and the consummation by the Selling Stockholder of the transactions contemplated hereby and thereby.
(ie) The Registration Statement did notand the Prospectus and any further amendments or supplements thereto will, when they become effective or are filed with the Commission, as of the Effective Datecase may be, not contain an any untrue statement of a material fact or omit to state a any material fact required to be stated therein or necessary to make the statements therein not misleading; (ii) the Prospectus will not, provided that no representation or warranty is made as of its date and on the Delivery Date, contain an untrue statement of a material fact to information contained in 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 omitted from the Registration Statement, the Pricing Disclosure Package Statement 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 through the Lead Managers by or on behalf of the Selling Stockholder (x) specifically for use in the preparation of the Registration Statement, (y) any International Manager specifically for inclusion in the Registration Statement, the Pricing Disclosure Package or the Prospectus or (z) specifically for inclusion in such other documentstherein.
(k) The Selling Stockholder’s sale of the Shares pursuant to this Agreement is not prompted by any material non-public information concerning the Company or any of its subsidiaries that is not set forth in the Registration Statement, the Pricing Disclosure Package and the Prospectus.
(lf) The Selling Stockholder 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 Stockholder and delivered to the Underwriter or counsel for the Underwriter in connection with the offering shares of the Shares shall be deemed a representation and warranty by the Selling Stockholder, as to matters covered thereby, to the UnderwriterStock.
Appears in 1 contract
Samples: International Underwriting Agreement (Cumulus Media Inc)
Representations, Warranties and Agreements of the Selling Stockholder. The Selling Stockholder represents, warrants and agrees that:
(a) The Selling Stockholder has been duly organized and is validly existing as a corporation in good standing in its jurisdiction of formation.
(b) Neither the Selling Stockholder nor any person acting on behalf of the Selling Stockholder (other than, if applicable, the Company and the UnderwriterUnderwriters) has used or referred to any “free writing prospectus” (as defined in Rule 405), 405 under the Securities Act) relating to the SharesStock.
(bc) The Selling Stockholder has, or and immediately prior to the Initial each Delivery Date on which the Selling Stockholder is selling sharesshares of Stock, the Selling Stockholder will have, good and valid marketable title to, or a valid to the shares of Stock to be sold by the Selling Stockholder hereunder on each 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 the Selling Stockholder hereunder on such Delivery Datethereof, free and clear of all liens, encumbrances, equities equities, community property rights, restrictions on transfer or claims, except for any liens, encumbrances, equities or claims or otherwise in favor of the Underwriter.
(cd) The Selling Stockholder has, in accordance with the terms of the Release Letter dated the date hereof, irrevocably instructed the Collateral Agent to deliver the Firm Shares Stock to be sold by the Selling Stockholder hereunder is subject to the Underwriter on interest of the Initial Delivery date, Underwriters and the obligations of the Selling Stockholder hereunder or thereunder shall not be terminated by any act of the Selling Stockholder, by operation of law or the occurrence of any other event.
(de) Upon payment of the purchase price for the Shares Stock to be sold by the Selling Stockholder pursuant to this AgreementStockholder, delivery 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 securities account(s) (within the meaning of Section 8-501(a) account of the UCCUnderwriters (i) DTC will acquire good and marketable title to the Stock free and clear of the Underwriter maintained at DTC (assuming that neither DTC nor any such Underwriter has notice of any “adverse claim,” within the meaning of Section 8-105 of the 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 Stock within the meaning of Section 8-303 of the UCC, (iiiii) under Section 8-501 of the UCC, the Underwriter Underwriters will acquire a valid “security entitlement” entitlement in respect of such Shares Stock, 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 Underwriters with respect to such security entitlement. For purposes of this representation, the Selling Stockholder 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, and (Cz) appropriate entries to the account(s) account of the Underwriter 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.
(ef) The Selling Stockholder has full corporate right, power and authority authority, corporate or otherwise, to enter into and perform its obligations under this Agreement and the Release LetterAgreement.
(fg) This Agreement has been duly and validly authorized, executed and delivered by or on behalf of the Selling Stockholder.
(g) Each of this Agreement and the Release Letter has been duly and validly authorized, executed and delivered by, and is a valid and legally binding obligation of, the Selling Stockholder enforceable against the Selling Stockholder in accordance with its terms, subject to (i) the effects of bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium and other similar laws relating to or affecting creditors’ rights generally, (ii) general equitable principles (whether considered in a proceeding in equity or at law) and (iii) an implied covenant of good faith and fair dealing.
(h) The sale of the Stock by the Selling Stockholder, the execution, delivery and performance of this Agreement and the Release Letter by the Selling Stockholder and the consummation by the Selling Stockholder 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 the Selling Stockholder is a party or by which the Selling Stockholder is bound or to which any of the property or assets of the Selling Stockholder is subject, (ii) result in any violation of the provisions of the charter or by-laws (or similar organizational documents) of the Selling Stockholder 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 Stockholder or the property or assets of the Selling Stockholder.
(i) No consent, approval, authorization or order of, or filing or registration with, any court or governmental agency or body having jurisdiction over the Selling Stockholder or the property or assets of the Selling Stockholder is required for the sale of the Stock by the Selling Stockholder, the execution, delivery and performance of this Agreement or the Release Letter by the Selling Stockholder and the consummation by the Selling Stockholder of the transactions contemplated hereby, except for the registration of the Shares Stock under the Securities Act and such consents, approvals, authorizations, orders, filings, registrations or qualifications as may be required under the Exchange Act and applicable state or foreign securities laws in connection with the purchase and sale of the Shares Stock by the UnderwriterUnderwriters.
(ij) 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 no representation or warranty is made as to information contained in or omitted from the Registration Statement in reliance upon and in conformity with written information furnished to the Company by the Underwriters specifically for inclusion therein, which information is specified in Section 8(f). The preceding sentence applies only to written information furnished to the Company by the Selling Stockholder expressly for use therein, it being understood and agreed that the only such information furnished by the Selling Stockholder consists of the Selling Stockholder’s Selling Stockholder Information.
(iik) the The Prospectus will not, as of its date and on or as of 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 no representation or warranty is made as to information contained in or omitted from the Prospectus in reliance upon and in conformity with written information furnished to the Company by the Underwriters specifically for inclusion therein, which information is specified in Section 8(f). The preceding sentence applies only to written information furnished to the Company by the Selling Stockholder expressly for use therein, it being understood and agreed that the only such information furnished by the Selling Stockholder consists of the Selling Stockholder’s Selling Stockholder Information.
(iiil) 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; (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 no representation or warranty is made only as to statements information contained in or omissions made omitted from the Pricing Disclosure Package in reliance upon and in conformity with written information furnished to the Company by or on behalf the Underwriters specifically for inclusion therein, which information is specified in Section 8(f). The preceding sentence applies only to written information furnished to the Company by the Selling Stockholder expressly for use therein, it being understood and agreed that the only such information furnished by the Selling Stockholder consists of the Selling Stockholder’s Selling Stockholder Information.
(xm) specifically for use The Pricing Disclosure Package, when taken together with each Issuer Free Writing Prospectus listed in Schedule IV hereto, did not, as of the Applicable Time, contain an untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in the preparation light of the Registration Statementcircumstances under which they were made, not misleading; provided that no representation or warranty is made as to information contained in or omitted from the Pricing Disclosure Package (yor any Issuer Free Writing Prospectus listed in Schedule IV hereto) in reliance upon and in conformity with written information furnished to the Company by the Underwriters specifically for inclusion therein, which information is specified in Section 8(f). The preceding sentence applies only to written information furnished to the Company by the Selling Stockholder expressly for use therein, it being understood and agreed that the only such information furnished by the Selling Stockholder consists of the Selling Stockholder’s Selling Stockholder Information.
(n) Other than the Registration Statement, the Pricing Disclosure Package Preliminary Prospectus and the Prospectus, the Selling Stockholder (including its agents and representatives, other than the Underwriters in their capacity as such) has not prepared, made, used, authorized, approved or the referred to and will not prepare, make, use, authorize, approve or refer to any Issuer Free Writing Prospectus or Written Testing-the-Waters Communication, other than (zi) specifically for inclusion any document not constituting a prospectus pursuant to Section 2(a)(10)(a) of the Securities Act or Rule 134 under the Securities Act or (ii) the documents listed on Schedule VI or Exhibit B hereto, each electronic road show and any other written communications approved in such other documentswriting in advance by the Company and the Representative.
(ko) The Selling Stockholder’s sale of the Shares pursuant to this Agreement Stockholder is not prompted to sell shares of Common Stock by any material non-public information concerning the Company or any of its subsidiaries that is not set forth in the Registration Statement, the Pricing Disclosure Package and or the Prospectus.
(lp) The Selling Stockholder 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 the sale or resale of the Shares. Any certificate signed by any officer of any Selling Stockholder and delivered to the Underwriter or counsel for the Underwriter in connection with the offering of the Shares shares of the Stock.
(q) The Selling Stockholder has not: (i) used any corporate funds for any unlawful contribution, gift, entertainment or other unlawful expense relating to political activity; (ii) made any direct or indirect unlawful payment to any foreign or domestic government official, “foreign official” (as defined in the FCPA) or employee from corporate funds; (iii) violated or is in violation of any provision of the FCPA, Bribery Act 2010, as amended, or any other applicable anti-bribery statute or regulation; or (iv) made any bribe, rebate, payoff, influence payment, kickback or other unlawful payment to any domestic government official, foreign official or employee; and the Selling Stockholder has conducted its business in compliance with the FCPA, Bribery Act 2010, and all other applicable anti-bribery statutes and regulations, and has instituted and maintain policies and procedures designed to ensure, and which are reasonably expected to continue to ensure, continued compliance therewith.
(r) The operations of the Selling Stockholder is and has been conducted at all times in compliance with applicable financial recordkeeping and reporting requirements of the Money Laundering Laws and no action, suit or proceeding by or before any court or governmental agency, authority or body or any arbitrator involving the Selling Stockholder or any of its subsidiaries with respect to the Money Laundering Laws is pending or, to the knowledge of the Selling Stockholder, threatened.
(s) The Selling Stockholder is not (i) currently subject to or the target of any Sanctions; or (ii) located, organized or resident in a country that is the subject of Sanctions; and the Selling Stockholder will not directly or indirectly use the proceeds of the offering, or lend, contribute or otherwise make available such proceeds to any subsidiary, joint venture partner or other person or entity, for the purpose of financing the activities of any person, or in any country or territory, that currently is the subject or target of Sanctions or in any other manner that will result in a violation by any person (including any person participating in the transaction whether as an underwriter, advisor, investor or otherwise) of Sanctions. The Selling Stockholder has not knowingly engaged in for the past five years, are not now knowingly engaged in, and will not engage in, any dealings or transactions with any individual or entity, or in any country or territory, that at the time of the dealing or transaction is or was the subject or target of Sanctions.
(t) There are no affiliations or associations between any member of FINRA “participating in the offering” and the Selling Stockholder, and none of the proceeds received by the Selling Stockholder from the sale of the Stock to be sold by the Selling Stockholder hereunder will be paid to a member of FINRA “participating in the offering” or any affiliate of (or person “associated with,” as such terms are used in the rules of FINRA) such member. Any certificate signed by the Selling Stockholder or officer thereof and delivered to the Representative or counsel for the Underwriters in connection with the offering of the Stock shall be deemed to be a representation and warranty by the Selling Stockholder, as to matters covered thereby, to the each Underwriter.
Appears in 1 contract
Representations, Warranties and Agreements of the Selling Stockholder. The Selling Stockholder representsrepresents and warrants to, warrants and agrees with, the Underwriters that:
(a) Neither Immediately prior to the Selling Stockholder nor any person acting on behalf of the Selling Stockholder (other than, if applicable, the Company and the Underwriter) has used or referred to any “free writing prospectus” First Delivery Date (as defined in Rule 405Section 5 hereof), relating to the Shares.
(b) The Selling Stockholder has, or immediately prior to the Initial Delivery Date on which the Selling Stockholder is selling shares, the Selling Stockholder will have, 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 the Selling Stockholder hereunder on such Delivery Datedate, free and clear of all liens, encumbrances, equities or claims (except for those liens, encumbrances, equities or claims that will be eliminated immediately upon the closing of the transactions contemplated by this Agreement); and upon delivery of such shares and payment therefor pursuant hereto, good and valid title to such shares, free and clear of all liens, encumbrances, equities or claims, except for any liens, encumbrances, equities or claims or otherwise in favor of will pass to the UnderwriterUnderwriters.
(c) The Selling Stockholder has, in accordance with the terms of the Release Letter dated the date hereof, irrevocably instructed the Collateral Agent to deliver the Firm Shares to be sold by the Selling Stockholder hereunder to the Underwriter on the Initial Delivery date, and the obligations of the Selling Stockholder hereunder or thereunder shall not be terminated by any act of the Selling Stockholder, by operation of law or the occurrence of any other event.
(d) Upon payment of the purchase price for the Shares to be sold by the Selling Stockholder 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 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 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, the Selling Stockholder 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(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.
(eb) The Selling Stockholder has full corporate right, power and authority to enter into and perform its obligations under this Agreement and Agreement; the Release Letter.
(f) This Agreement has been duly and validly authorized, executed and delivered by or on behalf of the Selling Stockholder.
(g) Each of this Agreement and the Release Letter has been duly and validly authorized, executed and delivered by, and is a valid and legally binding obligation of, the Selling Stockholder enforceable against the Selling Stockholder in accordance with its terms, subject to (i) the effects of bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium and other similar laws relating to or affecting creditors’ rights generally, (ii) general equitable principles (whether considered in a proceeding in equity or at law) and (iii) an implied covenant of good faith and fair dealing.
(h) The execution, delivery and performance of this Agreement and the Release Letter Agreement, by the Selling Stockholder and the consummation by the Selling Stockholder 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 the Selling Stockholder is a party or by which the Selling Stockholder is bound or to which any of the property or assets of the Selling Stockholder is subject, (ii) nor will such actions result in any violation of the provisions of the charter or by-laws (or similar organizational documents) of the Selling Stockholder or (iii) result in any violation of any statute or any order, rule or regulation of any court or governmental agency or body having jurisdiction over the Selling Stockholder or the property or assets of the Selling Stockholder.
(i) No consent, approval, authorization or order of, or filing or registration with, any court or governmental agency or body having jurisdiction over the Selling Stockholder or the property or assets of the Selling Stockholder is required for the execution, delivery and performance of this Agreement or the Release Letter by the Selling Stockholder and the consummation by the Selling Stockholder of the transactions contemplated hereby; and, except for the registration of the Shares Stock under the Securities Act and such consents, approvals, authorizations, registrations or qualifications as may be required under the Exchange Act and applicable state or foreign securities laws in connection with the purchase and sale distribution of the Shares Stock by the UnderwriterUnderwriters, no consent, approval, authorization or order of, or filing or registration with, any such court or governmental agency or body is required for the execution, delivery and performance of this Agreement by the Selling Stockholder and the consummation by the Selling Stockholder of the transactions contemplated hereby.
(ic) The Registration Statement did and the Prospectus and any further amendments or supplements to the Registration Statement or the Prospectus will, when they become effective or are filed with the Commission, as the case may be, do not and will not, as of the Effective Date, applicable effective date (as to the Registration Statement and any amendment thereto) and as of the applicable filing date (as to the Prospectus and any amendment or supplement thereto) contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading; (ii) misleading but in each case only to the Prospectus will not, as of its date and on extent that 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 alleged untrue statement of a material fact or omit to state a material fact required to be stated therein omission 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 alleged omission was made in reliance upon and in conformity with written information furnished to the Company by or on behalf of the Selling Stockholder (x) specifically for use in the preparation of the Registration Statement, (y) specifically for inclusion therein; provided that no representation or warranty is made as to information contained in or omitted from the Registration Statement, the Pricing Disclosure Package Statement or the Prospectus or (z) in reliance upon and in conformity with written information furnished to the Company by the Underwriters specifically for inclusion in such other documentstherein.
(k) The Selling Stockholder’s sale of the Shares pursuant to this Agreement is not prompted by any material non-public information concerning the Company or any of its subsidiaries that is not set forth in the Registration Statement, the Pricing Disclosure Package and the Prospectus.
(ld) The Selling Stockholder has not taken and will not take, directly or indirectly, any action that which is designed to to, or that which has constituted or that could which might reasonably be expected to 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 shares of the Stock.
(e) The financial information relating to SEG filed as part of the Registration Statement or included or incorporated by any officer reference in the Prospectus presents fairly the financial condition and results of any Selling Stockholder operations of SEG, at the dates and delivered to the Underwriter or counsel for the Underwriter periods indicated, and has been prepared in connection conformity with generally accepted accounting principles applied on a consistent basis throughout the offering of the Shares shall be deemed a representation and warranty by the Selling Stockholderperiods involved, except as to matters covered thereby, to the Underwriterotherwise stated therein.
Appears in 1 contract
