Representations, Warranties and Agreements of the Selling Stockholders. Each 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 Underwriters) has used or referred to any “free writing prospectus” (as defined in Rule 405), relating to the Stock; (b) The Selling Stockholder has, and immediately prior to any Delivery Date on which the Selling Stockholder is selling shares 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”) the 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; and upon delivery of such shares and payment therefor pursuant hereto, good and valid title to such shares, free and clear of all liens, encumbrances, equities or claims, will pass to the several Underwriters. (c) 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 the Company, as custodian (the “Custodian”), for delivery under this Agreement, certificates in negotiable form (with signature guaranteed by a commercial bank or trust company having an office or correspondent in the United States or a member firm of the New York or American Stock Exchanges) representing the shares of Stock to be sold by the Selling Stockholder hereunder. (d) The Selling Stockholder has duly and irrevocably executed and delivered a power of attorney (the “Power of Attorney” and, together with all other similar agreements executed by the other Selling Stockholders, the “Powers of Attorney”) appointing Sxxxxxx X. Xxxxxxx and one or more other persons, as attorneys-in-fact, with full power of substitution, and with full authority (exercisable by any one or more of them) to execute and deliver this Agreement and to take such other action as may be necessary or desirable to carry out the provisions hereof on behalf of the Selling Stockholder. (e) The Selling Stockholder has power and authority under its limited partnership or similar organization agreement to enter into this Agreement, the Power of Attorney and the Custody Agreement; this Agreement has been duly and validly authorized, executed and delivered by or on behalf of the Selling Stockholder; the execution, delivery and performance of this 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 will not conflict with or result in a material breach or violation of any of the terms or provisions of, or constitute a material default under, any indenture, mortgage, deed of trust, loan 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 will such actions result in any violation of any of its organizational documents (in the case of non-individual Selling Stockholders) or 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 or the property or assets of the Selling Stockholder; and, except for the registration of the Stock under the Securities Act and such consents, approvals, authorizations, registrations or qualifications as may be required under the Exchange Act, by the National Association of Securities Dealers, Inc. and under applicable state securities laws in connection with the purchase and distribution of the Stock by the Underwriters, no consent, approval, authorization or order of, or filing or registration with, any such court or governmental agency or body 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. (f) The Stock to be sold by the Selling Stockholder hereunder, which is represented by the certificates held in custody for the Selling Stockholder, is subject to the interest of the Underwriters, the arrangements made by the Selling Stockholder for such custody are to that extent irrevocable, and the obligations of the Selling Stockholder hereunder shall not be terminated by any act of the Selling Stockholder, by operation of law, by the death or incapacity of any individual 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. (g) The Selling Stockholder is not prompted to sell shares of Common Stock by any information concerning the Company that is not set forth in the Pricing Disclosure Package. (h) The Selling Stockholder has not taken and will not take, directly or indirectly, any action which is designed to or which has constituted or 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 of the Stock.
Appears in 3 contracts
Samples: Underwriting Agreement (Eagle Test Systems, Inc.), Underwriting Agreement (Eagle Test Systems, Inc.), Underwriting Agreement (Eagle Test Systems, Inc.)
Representations, Warranties and Agreements of the Selling Stockholders. Each Selling Stockholder severally and not jointly represents, warrants and agrees that:
(a) Neither The Selling Stockholder has good and valid title to the shares of the Stock to be sold by the Selling Stockholder nor any person acting on behalf hereunder or good and valid title to the options pursuant to which the shares of Stock to be sold by the Selling Stockholder (other than, if applicable, the Company and the Underwriters) has used or referred to any “free writing prospectus” (as defined in Rule 405), relating to the Stock;
(b) The Selling Stockholder hashereunder will be issued, and immediately prior to any the applicable Delivery Date on which the Selling Stockholder is selling shares of Stock, the Selling Stockholder will have 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”) to the shares of 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 any liens, encumbrances, equities or claims arising under the Custody Agreement (as hereinafter defined); and upon delivery of such shares and payment therefor pursuant hereto, good and valid title to such shares, free and clear of all liens, encumbrances, equities or claims, will pass to the several Underwriters.
(cb) 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 the Companyother Selling Stockholders and EquiServe LLC, as custodian (the “Custodian”) and Messrs. Xxxxxxxx, Xxxxxxxx and Xxxxxxx, as Attorneys-in-Fact (the “Attorneys-in-Fact”), for delivery under this Agreement, (i) 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 New York or American Stock ExchangesExchange) representing the shares of Stock to be sold by the Selling Stockholder hereunder, and (ii) if such Selling Stockholder is selling shares of Stock issuable upon exercise of stock options, an option exercise form and a check for the option exercise price.
(dc) The Pursuant to the Custody Agreement, the Selling Stockholder has duly and irrevocably executed and delivered a power of attorney (appointing the “Power of Attorney” and, together with all other similar agreements executed by the other Selling Stockholders, the “Powers of Attorney”) appointing Sxxxxxx X. Xxxxxxx and one or more other persons, as attorneysAttorneys-in-fact, Fact with full power of substitution, and with full authority (exercisable by any one or more of them) to execute and deliver this Agreement and to take such other action as may be necessary or desirable to carry out the provisions hereof on behalf of the Selling Stockholder.
(ed) The Selling Stockholder has full right, power and authority under its limited partnership or similar organization agreement to enter into this Agreement, the Power of Attorney Agreement and the Custody Agreement; this Agreement has been duly and validly authorized, executed and delivered by or on behalf of the Selling Stockholder; the execution, delivery and performance of this Agreement, the Power of Attorney Agreement and the Custody Agreement by the Selling Stockholder and the consummation by the Selling Stockholder of the transactions contemplated hereby and thereby will not conflict with or result in a material breach or violation of any of the terms or provisions of, or constitute a material default under, any indenture, mortgage, deed of trust, loan 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 will such actions result in any violation of the provisions of the constituent documents of the Selling Stockholder (with respect to any of its organizational documents (in the case of non-individual Selling StockholdersStockholder that is not a natural person) or 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 or the property or assets of the Selling Stockholder; and, except for the registration of the Stock under the Securities Act and such consents, approvals, authorizations, registrations or qualifications as will have been obtained prior to the date hereof as may be required under the Exchange Act, by the National Association of Securities Dealers, Inc. Act and under applicable state or foreign securities laws in connection with the purchase and distribution of the Stock by the Underwriters, no consent, approval, authorization or order of, or filing or registration with, any such court or governmental agency or body is required for the execution, delivery and performance of this Agreement, the Power of Attorney Agreement or the Custody Agreement by the Selling Stockholder and the consummation by the Selling Stockholder of the transactions contemplated hereby hereby.
(e) The Registration Statement and therebythe Prospectus and any further amendments or supplements to the Registration Statement or the Prospectus, when they become effective or are filed with the Commission, as the case may be, do not and will not, as of the applicable effective date (as to the Registration Statement and any amendment thereto) and as of the applicable filing date (as to the Prospectus and any amendment or supplement thereto) contain 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 or the Prospectus in reliance upon and in conformity with written information furnished to the Company through the Representatives by or on behalf of any Underwriter specifically for inclusion therein, and provided further that this paragraph (e) shall apply to each Selling Stockholder only to the extent that the statements or omissions from the Registration Statement or the Prospectus were made in reliance upon and in conformity with written information relating to such Selling Stockholder provided by such Selling Stockholder specifically for inclusion therein, it being understood and agreed that for purposes of this Section 2 and the indemnification obligations in Section 10, the only information provided by such Selling Stockholder consists of information relating to such Selling Stockholder under the caption “Principal and Selling Stockholders” in the Prospectus.
(f) The Stock to be sold by Except as provided in this Agreement and in the Selling Stockholder hereunder, which is represented by the certificates held in custody for the Selling Stockholder, is subject to the interest of the UnderwritersLock-Up Agreement (as hereinafter defined), the arrangements made by the Selling Stockholder for such custody are to that extent irrevocable, and the obligations of the Selling Stockholder hereunder shall not be terminated by any act of the Selling Stockholder, by operation of law, by the death or incapacity of any individual 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.
(g) The Selling Stockholder is not prompted to sell shares of Common Stock by any information concerning the Company that is not set forth in the Pricing Disclosure Package.
(h) The Selling Stockholder has not taken and will not take, directly or indirectly, any action which is designed to or which has constituted or 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 of the Stock.
Appears in 2 contracts
Samples: Underwriting Agreement (Tempur Pedic International Inc), Underwriting Agreement (Tempur Pedic International Inc)
Representations, Warranties and Agreements of the Selling Stockholders. Each 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 Underwriters) has used or referred to any “free writing prospectus” (as defined in Rule 405), relating to the Stock;
(b) The Selling Stockholder has, and immediately prior to any the First Delivery Date on which the Selling Stockholder is selling shares of Stock, (as defined in Section 5 hereof) 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”) to the shares of Stock to be sold by the Selling Stockholder hereunder on such Delivery Datedate, free and clear of all liens, encumbrances, equities or claimsclaims (except for such rights and encumbrances created by the Amended and Restated Articles of Incorporation of the Company, the Amended and Restated Shareholders' Agreement dated ___________, 19___ and the Amended and Restated Investors' Rights Agreement dated ____________, 19__, all of which rights and encumbrances shall terminate immediately prior to the First Delivery Date); and upon delivery of such shares and payment therefor pursuant hereto, good and valid title to such shares, free and clear of all liens, encumbrances, equities or claims, will pass to the several Underwriters.
(cb) 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 the CompanyChaseMellon Shareholder Services, LLC, as custodian (the “"Custodian”"), for delivery under this Agreement, certificates in negotiable form (with signature guaranteed by a commercial bank or trust company having an office or correspondent in the United States or a member firm of the New York or American Stock Exchanges) representing the shares of Stock to be sold by the Selling Stockholder hereunder.
(dc) The Selling Stockholder has duly and irrevocably executed and delivered a power of attorney (the “"Power of Attorney” " and, together with all other similar agreements executed by the other Selling Stockholders, the “"Powers of Attorney”") appointing Sxxxxxx X. Xxxxxxx the Custodian and one or more other persons, as attorneys-in-fact, with full power of substitution, and with full authority (exercisable by any one or more of them) to execute and deliver this Agreement and to take such other action as may be necessary or desirable to carry out the provisions hereof on behalf of the Selling Stockholder.
(ed) The Selling Stockholder has full right, power and authority under its limited partnership or similar organization agreement to enter into this Agreement, the Power of Attorney and the Custody Agreement; this Agreement has been duly and validly authorized, executed and delivered by or on behalf of the Selling Stockholder; the execution, delivery and performance of this 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 will not conflict with or result in a material breach or violation of any of the terms or provisions of, or constitute a material default under, any indenture, mortgage, deed of trust, loan 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 will such actions result in any violation of any the provisions of its organizational documents (in i) if the case Selling Stockholder is a corporation, the charter or by-laws of non-individual the Selling StockholdersStockholder; (ii) if the Selling Stockholder is a partnership, the partnership agreement of the Selling Stockholder; and (iii) if the Selling Stockholder is a trust, the deed of trust of the Selling Stockholder, or 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 or the property or assets of the Selling Stockholder; and, except for the registration of the Stock under the Securities Act and such consents, approvals, authorizations, registrations or qualifications as may be required under the Exchange Act, by the National Association of Securities Dealers, Inc. Act and under applicable state securities laws in connection with the purchase and distribution of the Stock by the Underwriters, no consent, approval, authorization or order of, or filing or registration with, any such court or governmental agency or body 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.
(fe) The Stock Registration Statement 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 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 sold by stated therein or necessary to make the Selling Stockholder hereunder, which statements therein not misleading; provided that no representation or warranty is represented by made as to information contained in or omitted from the certificates held Registration Statement or the Prospectus in custody for the Selling Stockholder, is subject reliance upon and in conformity with written information furnished to the interest of Company through the Underwriters, the arrangements made Representatives by the Selling Stockholder for such custody are to that extent irrevocable, and the obligations of the Selling Stockholder hereunder shall not be terminated by any act of the Selling Stockholder, by operation of law, by the death or incapacity on behalf of any individual 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 eventUnderwriter specifically for inclusion therein.
(gf) 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 effective date, or the Prospectus (or any amendment or supplement thereto), as of the applicable filing date, which has adversely affected or may adversely affect the business of the Company and is not prompted to sell shares of Common Stock by any information concerning the Company that which is not set forth in the Pricing Disclosure PackageRegistration Statement and the Prospectus.
(hg) The Selling Stockholder has not taken and will not take, directly or indirectly, any action which is designed to or which has constituted or 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 of the Stock.
Appears in 2 contracts
Samples: Underwriting Agreement (U S Interactive Inc/Pa), Underwriting Agreement (U S Interactive Inc/Pa)
Representations, Warranties and Agreements of the Selling Stockholders. Each Selling Stockholder Stockholder, severally representsand not jointly, represents and warrants to and agrees with each Underwriter, the Company and the Principal Subsidiary that:
(a) Neither the Selling Stockholder nor any person acting on behalf of the Selling Stockholder (other than, if applicable, the Company and the Underwriters) has used or referred to any “free writing prospectus” (as defined in Rule 405), relating to the Stock;
(b) The Selling Stockholder has, and immediately prior to any Option Delivery Date on which the Selling Stockholder is selling shares of Stock, (as defined in Section 5 hereof) 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”) to the shares of Selling Stockholder Option 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, will pass to the several Underwriters.
(cb) 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 the Company, as custodian (the “Custodian”), for delivery under this Agreement, certificates in negotiable form (with signature guaranteed by a commercial bank or trust company having an office or correspondent in the United States or a member firm of the New York or American Stock Exchanges) representing the shares of Stock to be sold by the Selling Stockholder hereunder.
(dc) The Selling Stockholder has duly and irrevocably executed and delivered a power of attorney (the “Power of Attorney” and, together with all other similar agreements executed by the other Selling Stockholders, the “Powers of Attorney”) appointing Sxxxxxx X. Xxxxxxx the Custodian and one or more other persons, as attorneys-in-fact, with full power of substitution, and with full authority (exercisable by any one or more of them) to execute and deliver this Agreement and to take such other action as may be necessary or desirable to carry out the provisions hereof on behalf of the Selling Stockholder.
(ed) The Selling Stockholder has full right, power and authority under its limited partnership or similar organization agreement to enter into this Agreement, the Custody Agreement and the Power of Attorney and the Custody Agreement; this Agreement has been duly and validly authorized, executed and delivered by or on behalf of the Selling StockholderAttorney; the execution, delivery and performance of this Agreement, the Custody Agreement and 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 will not conflict with or result in a material breach or violation of any of the terms or provisions of, or constitute a material default under, any indenture, mortgage, deed of trust, loan 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 will such actions result in any violation of any the provisions of its organizational documents (in the case charter or by-laws, articles of non-individual partnership or deed of trust of the Selling Stockholders) Stockholder, if any, or 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 or the property or assets of the Selling Stockholder; and, except for the registration of the Selling Stockholder Option Stock under the Securities Act and such consents, approvals, authorizations, registrations or qualifications as may be required under the Exchange Act, by the National Association of Securities Dealers, Inc. Act and under applicable state securities laws in connection with the purchase and distribution of the Selling Stockholder Option Stock by the Underwriters, no consent, approval, authorization or order of, or filing or registration with, any such court or governmental agency or body is required for the execution, delivery and performance of this Agreement, the Custody Agreement and 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.
(fe) The Stock to be sold by To the Selling Stockholder hereunder, which is represented by the certificates held in custody for the Selling Stockholder, is subject to the interest of the Underwriters, the arrangements made by the Selling Stockholder for such custody are to that extent irrevocable, and the obligations of the Selling Stockholder hereunder shall not be terminated by any act knowledge of the Selling Stockholder, the Registration Statement 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 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; provided that no representation or warranty is made as to information contained in or omitted from the Registration Statement or the Prospectus in reliance upon and in conformity with written information furnished to the Company through the Representatives by operation of law, by the death or incapacity on behalf of any individual 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 eventUnderwriter specifically for inclusion therein.
(gf) The Selling Stockholder has no reason to believe that the representations and warranties of the Company and the Principal Subsidiary contained in Section 1 hereof are not materially true and correct and is not prompted to sell shares of Common Stock by any information concerning the Company that or any of its subsidiaries which is not set forth in the Pricing Disclosure PackageRegistration Statement and the Prospectus.
(hg) The Selling Stockholder has not taken and will not take, directly or indirectly, any action which is designed to or which has constituted or 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 of the Stock.
(h) This Agreement has been duly authorized (if applicable), executed and delivered by the Selling Stockholder.
Appears in 2 contracts
Samples: Underwriting Agreement (Syniverse Holdings Inc), Underwriting Agreement (Syniverse Technologies Inc)
Representations, Warranties and Agreements of the Selling Stockholders. Each Selling Stockholder Stockholder, severally and not jointly, represents, warrants and agrees that:
(a) Neither the such Selling Stockholder nor any person acting on behalf of the such Selling Stockholder (other than, if applicable, the Company and the Underwriters) has used or referred to any “free writing prospectus” (as defined in Rule 405), relating to the StockStock other than any road show that is a free writing prospectus;
(b) The Such Selling Stockholder hasStockholder, and immediately prior to any Delivery Date on the time at which the such Selling Stockholder is selling shares of StockStock hereunder, the Selling Stockholder will have 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”) to the shares of Stock to be sold by the Selling Stockholder hereunder on such Delivery Datehereunder, free and clear of all liens, encumbrances, equities or claims; and upon delivery of such shares and payment therefor pursuant hereto, good and valid title to such shares, free and clear of all liens, encumbrances, equities or claims, will pass to the several Underwriters.
(c) 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 the Company, as custodian (the “Custodian”), for delivery under this Agreement, certificates in negotiable form (with signature guaranteed by a commercial bank or trust company having an office or correspondent in the United States or a member firm of the New York or American Stock Exchanges) representing the shares of Stock to be sold by such Selling Stockholder is subject to the interest of the Underwriters and the other Selling Stockholders hereunder, the arrangements made by such Selling Stockholder for the sale of such Stock hereunder are to that extent irrevocable, and the obligations of such Selling Stockholder hereunder shall not be terminated by any act of such Selling Stockholder, by operation of law, by the death or incapacity of any individual 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; if any individual Selling Stockholder or any such executor or trustee should die or become incapacitated, or if any such estate or trust should be terminated, or if any such partnership or corporation should be dissolved, or if any other such event should occur, before the delivery of the Shares hereunder, the Shares shall be delivered by or on behalf of the Selling Stockholder hereunderStockholders in accordance with the terms and conditions of this Agreement; and actions taken by the attorneys-in-fact pursuant to the Powers of Attorney shall be as valid as if such death, incapacity, termination, dissolution or other event had not occurred, regardless of whether or not the attorneys-in-fact, or any of them, shall have received notice of such death, incapacity, termination, dissolution or other event.
(d) The Upon delivery of security entitlements in respect of the Stock to be sold by such Selling Stockholder and payment therefor pursuant hereto (i) under Section 8-501 of the Uniform Commercial Code of New York (the “New York UCC”), the Underwriters will acquire good and valid title and a valid security entitlement in respect of such Stock and (ii) no action based on any “adverse claim,” within the meaning of Section 8-102(a)(2) of the UCC, to such Stock may be asserted against the Underwriters with respect to such security entitlement.
(e) Such Selling Stockholder has duly and irrevocably executed and delivered a power of attorney (the “Power of Attorney” and, together with all other similar agreements powers of attorney executed by the other Selling Stockholders, the “Powers of Attorney”) appointing Sxxxxxx Messrs. Xxxx X. Xxxxxxx and one or more other persons, Xxxxxx X. Xxxxx as attorneys-in-fact, with full power of substitution, and with full authority (exercisable by any one or more of them) to execute and deliver this Agreement and to take such other action as may be necessary or desirable to carry out the provisions hereof on behalf of the such Selling Stockholder.
(ef) The Such Selling Stockholder has full right, power and authority under its limited partnership authority, corporate or similar organization agreement otherwise, to enter into this Agreement, Agreement and to execute and deliver the Power of Attorney and the Custody Agreement; this Attorney.
(g) This Agreement has been duly and validly authorized, executed and delivered by or on behalf of the such Selling Stockholder; .
(h) The Power of Attorney has been duly authorized executed and delivered by or on behalf of such Selling Stockholder and constitute valid and legally binding obligations of such Selling Stockholder enforceable against such Selling Stockholder in accordance with their terms, subject to (i) the effects of bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium and other similar laws relating to or affecting creditors’ rights generally, (ii) general equitable principles (whether considered in a proceeding in equity or at law) and (iii) an implied covenant of good faith and fair dealing.
(i) The execution, delivery and performance of this Agreement, Agreement and the Power of Attorney and the Custody Agreement by the such Selling Stockholder and the consummation by the such Selling Stockholder of the transactions contemplated hereby and thereby do not and will not (i) conflict with or result in a material breach or violation of any of the terms or provisions of, or constitute a material default under, any indenture, mortgage, deed of trust, loan agreement agreement, license or other agreement or instrument to which the such Selling Stockholder is a party or by which the such Selling Stockholder is bound or to which any of the property or assets of the such Selling Stockholder is subject, nor will such actions subject or (ii) result in any violation of any of its organizational documents (in the case of non-individual Selling Stockholders) or any material violation of any statute or any order, rule or regulation of any court or governmental agency or body having jurisdiction over the such Selling Stockholder or the property or assets of the such Selling Stockholder; and.
(j) No consent, approval, authorization or order of, or filing or registration with, any court or governmental agency or body having jurisdiction over such Selling Stockholder or the property or assets of such Selling Stockholder is required for the execution, delivery and performance of this Agreement or the Power of Attorney by such Selling Stockholder and the consummation by such Selling Stockholder of the transactions contemplated hereby and thereby, except for the registration of the offering of the Stock under the Securities Act and such consents, approvals, authorizations, registrations or qualifications as may be required under the Exchange Act, by the National Association of Securities Dealers, Inc. Act and under applicable state or foreign securities laws in connection with the purchase and distribution sale of the Stock by the Underwriters, no consent, approval, authorization or order of, or filing or registration with, any such court or governmental agency or body 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.
(fk) The Stock to be sold by the Selling Stockholder hereunder, which is represented by the certificates held in custody for the Selling Stockholder, is subject to the interest of the Underwriters, the arrangements made by the Selling Stockholder for such custody are to that extent irrevocable, and the obligations of the Selling Stockholder hereunder shall not be terminated by any act of the Selling Stockholder, by operation of law, by the death or incapacity of any individual 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.
(g) The Such Selling Stockholder is not prompted to sell shares of Common Stock by any information concerning the Company that is not set forth in the Registration Statement, the Pricing Disclosure PackagePackage and the Prospectus.
(hl) The Such Selling Stockholder has not taken and will not take, directly or indirectly, any action which that is designed to or which that has constituted or which might 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 shares of the Stock.
(m) To the extent that any statements or omissions made in the Registration Statement, the Pricing Disclosure Package, 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 Pricing Disclosure Package 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. Any certificate signed by or on behalf of any Selling Stockholder and delivered to the Representatives or counsel for the Underwriters in connection with the offering of the Stock shall be deemed a representation and warranty by such Selling Stockholder, as to matters covered thereby, to each Underwriter.
Appears in 2 contracts
Samples: Underwriting Agreement (Evercore Partners Inc.), Underwriting Agreement (Evercore Partners Inc.)
Representations, Warranties and Agreements of the Selling Stockholders. 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 UnderwritersUnderwriter) has used or referred to any “free writing prospectus” (as defined in Rule 405405 of the Rules and Regulations), relating to the Stock;
(b) The Selling Stockholder has, and immediately prior to any Delivery Date on which the Selling Stockholder is selling shares of Stock, the Selling Stockholder will have 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”) to the 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; and upon delivery of such shares and payment therefor pursuant hereto, good and valid title to such shares, free and clear of all liens, encumbrances, equities or claims, will pass to the several Underwriters.
(c) 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 the Company, as custodian (the “Custodian”), for delivery under this Agreement, certificates in negotiable form (with signature guaranteed by a commercial bank or trust company having an office or correspondent in the United States or a member firm of the New York or American Stock Exchanges) representing the shares of Stock to be sold by the Selling Stockholder hereunder.
(d) The Selling Stockholder has duly and irrevocably executed and delivered a power of attorney (the “Power of Attorney” and, together with all other similar agreements executed by the other Selling Stockholders, the “Powers of Attorney”) appointing Sxxxxxx X. Xxxxxxx and one or more other persons, as attorneys-in-fact, with full power of substitution, and with full authority (exercisable by any one or more of them) to execute and deliver this Agreement and to take such other action as may be necessary or desirable to carry out the provisions hereof on behalf of the Selling Stockholder.
(e) The Selling Stockholder has power and authority under its limited partnership or similar organization agreement to enter into this Agreement, the Power of Attorney and the Custody Agreement; this Agreement has been duly and validly authorized, executed and delivered by or on behalf of the Selling Stockholder; the execution, delivery and performance of this 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 will not conflict with or result in a material breach or violation of any of the terms or provisions of, or constitute a material default under, any indenture, mortgage, deed of trust, loan 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 will such actions result in any violation of any of its organizational documents (in the case of non-individual Selling Stockholders) or 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 or the property or assets of the Selling Stockholder; and, except for the registration of the Stock under the Securities Act and such consents, approvals, authorizations, registrations or qualifications as may be required under the Exchange Act, by the National Association of Securities Dealers, Inc. and under applicable state securities laws in connection with the purchase and distribution of the Stock by the Underwriters, no consent, approval, authorization or order of, or filing or registration with, any such court or governmental agency or body 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.
(f) The Stock to be sold by the Selling Stockholder hereunder, which is represented by the certificates held in custody for the Selling Stockholder, hereunder is subject to the interest of the UnderwritersUnderwriter and the other Selling Stockholders thereunder, and the arrangements made by the Selling Stockholder for such custody are to that extent irrevocable, and the obligations of the Selling Stockholder hereunder shall not be terminated by any act of the Selling Stockholder, by operation of law, by the death or incapacity of any individual 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) Upon payment for the Stock to be sold by such Selling Stockholder, delivery of such 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 Stock in the name of Cede or such other nominee and the crediting of such Stock on the books of DTC to securities accounts of the Underwriter (assuming that neither DTC nor such Underwriter has notice of any adverse claim (within the meaning of Section 8-105 of the Delaware UCC (the “UCC”)) to such Stock), (i) DTC shall be a “protected purchaser” of such 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 Stock and (iii) no action based on any “adverse claim,” within the meaning of Section 8-102 of the UCC, to such Stock may be successfully asserted against the Underwriter with respect to such security entitlement. For purposes of this representation, such Selling Stockholder may assume that when such payment, delivery and crediting occur, (A) such 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, 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 accounts of the Underwriter on the records of DTC will have been made pursuant to the UCC.
(e) The Selling Stockholder has duly and irrevocably executed and delivered a power of attorney (the “Power of Attorney” and, together with all other similar agreements executed by the other Selling Stockholders, the “Powers of Attorney”) appointing Messrs. Xxxxxxxxx, Xxxxxxxx and Xxxxx as attorneys-in-fact, with full power of substitution, and with full authority (exercisable by any one or more of them) to execute and deliver this Agreement and to take such other action as may be necessary or desirable to carry out the provisions hereof on behalf of the Selling Stockholder.
(f) The Selling Stockholder has full right, power and authority, corporate or otherwise, to enter into this Agreement and the Power of Attorney.
(g) This Agreement has been duly and validly authorized, executed and delivered by or on behalf of the Selling Stockholder.
(h) The Power of Attorney has been duly and validly authorized, executed and delivered by or on behalf of the Selling Stockholder and constitutes valid and legally binding obligations 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
(i) The execution, delivery and performance of this Agreement and the Power of Attorney 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, by-laws, deed of trust (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 clauses (i) or (iii) for such conflicts, breaches, violations or defaults as would not, individually or in the aggregate, reasonably be expected to have a material adverse effect on the ability of such Selling Stockholder to consummate the transactions contemplated by this Agreement.
(j) 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 Power of Attorney by the Selling Stockholder and the consummation by the Selling Stockholder of the transactions contemplated hereby and thereby, except for the registration of the Stock under the Securities Act and such consents, approvals, authorizations, registrations or qualifications as may be required under the Exchange Act and applicable state or foreign securities laws in connection with the purchase and sale of the Stock by the Underwriter.
(k) The Selling Stockholder is familiar with the Registration Statement, the Prospectus and the Pricing Disclosure Package (as amended or supplemented) and has no knowledge of any material fact, condition or information not disclosed (i) in the Registration Statement, as of the Effective Date, (ii) in the Prospectus, as of its date and on the applicable Delivery Date, or (iii) in the Pricing Disclosure Package, as of the Applicable Time, that, in each case, could reasonably be expected to have a Material Adverse Effect. The Selling Stockholder is not prompted to sell shares of Common Stock by any information concerning the Company that is not set forth in the Registration Statement, the Pricing Disclosure PackagePackage and the Prospectus.
(hl) The Selling Stockholder has not taken and will not take, directly or indirectly, any action which that is designed to or which that has constituted or which might that could reasonably be expected to cause or result in the stabilization or manipulation of the price of any security of the Company to facilitate the sale or resale of the shares of the Stock.
(m) To the knowledge of the Selling Stockholder, the sale of the 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 or on behalf of any Selling Stockholder and delivered to counsel for the Underwriter in connection with the offering of the Stock shall be deemed a representation and warranty by such Selling Stockholder, as to matters covered thereby, to the Underwriter.
Appears in 2 contracts
Samples: Underwriting Agreement (Cogent Communications Group Inc), Underwriting Agreement (Cogent Communications Group Inc)
Representations, Warranties and Agreements of the Selling Stockholders. Each Selling Stockholder Stockholder, severally and not jointly, represents, warrants and agrees that:
(a) Neither the such Selling Stockholder nor any person acting on behalf of the such Selling Stockholder (other thanthan the Underwriter) 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 UnderwritersUnderwriter has 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 Stock;.
(b) The Such Selling Stockholder has, and immediately prior to any the Delivery Date on which the Selling Stockholder is selling shares of Stock, the such Selling Stockholder will have 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 of Stock to be sold by the such Selling Stockholder hereunder on such the Delivery Date, free and clear of all liens, encumbrances, equities or claims; and upon . Upon payment for the Stock to be sold by such Selling Stockholder, delivery of such shares 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 Stock in the name of Cede or such other nominee and payment therefor pursuant hereto, good and valid title the crediting of such Stock on the books of DTC to securities accounts of the Underwriter (assuming that neither DTC nor the Underwriter has notice of any adverse claim (within the meaning of Section 8-105 of the UCC) to such sharesStock), free (i) under Section 8-501 of the UCC, the Underwriter will acquire a valid security entitlement in respect of such Stock and clear (ii) no action based on any valid “adverse claim,” within the meaning of all liensSection 8-102 of the UCC, encumbrancesto such Stock may be asserted against the Underwriter with respect to such security entitlement. For purposes of this representation, equities 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 claimsanother nominee designated by DTC, in each case on the Company’s share registry in accordance with its certificate of incorporation, bylaws and applicable law, (B) DTC will pass be registered as a “clearing corporation” within the meaning of Section 8-102 of the UCC and (C) appropriate entries to the several Underwritersaccount of the Underwriter on the records of DTC will have been made pursuant to the UCC.
(c) The Such Selling Stockholder has placed in custody under a custody agreement (the “Custody Agreement” andfull right, together with all other similar agreements executed by the other Selling Stockholderspower and authority, the “Custody Agreements”) with the Companycorporate or otherwise, as custodian (the “Custodian”), for delivery under to enter into this Agreement, 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 New York or American Stock Exchanges) representing the shares of Stock to be sold by the Selling Stockholder hereunder.
(d) The Selling Stockholder has duly and irrevocably executed and delivered a power of attorney (the “Power of Attorney” and, together with all other similar agreements executed by the other Selling Stockholders, the “Powers of Attorney”) appointing Sxxxxxx X. Xxxxxxx and one or more other persons, as attorneys-in-fact, with full power of substitution, and with full authority (exercisable by any one or more of them) to execute and deliver this Agreement and to take such other action as may be necessary or desirable to carry out the provisions hereof on behalf of the Selling Stockholder.
(e) The Selling Stockholder has power and authority under its limited partnership or similar organization agreement to enter into this Agreement, the Power of Attorney and the Custody Agreement; this This Agreement has been duly and validly authorized, executed and delivered by or on behalf of the such Selling Stockholder; the .
(e) The execution, delivery and performance of this Agreement, the Power of Attorney and the Custody Agreement by the such Selling Stockholder and the consummation by the such Selling Stockholder of the transactions contemplated hereby do not and thereby will not (i) conflict with or result in a material breach or violation of any of the terms or provisions of, or constitute a material default under, any indenture, mortgage, deed of trust, loan agreement agreement, lease, pledge or other agreement or instrument to which the such Selling Stockholder is a party or by which the such Selling Stockholder is bound or to which any of the property or assets of the such Selling Stockholder is subjectsubject which conflict, nor will breach, violation or default would impair the ability of such actions Selling Stockholder to perform its obligations under this Agreement, (ii) result in any violation of the provisions of any partnership or limited liability company agreement, certificate of its incorporation, bylaws, operating agreement, deed of trust or other similar agreement or organizational documents document of such Selling Stockholder or (iii) result in the case of non-individual Selling Stockholders) or any material violation of any statute or any order, rule or regulation of any court or governmental agency or body (whether domestic or foreign) having jurisdiction over the such Selling Stockholder or the property or assets of such Selling Stockholder which violation would impair the ability of such Selling StockholderStockholder to perform its obligations under this Agreement; and, except for the registration of the 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, by the National Association of Securities Dealers, Inc. Act and under applicable state or foreign securities laws in connection with the purchase and distribution of the Stock by the UnderwritersUnderwriter, 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, the Power of Attorney or the Custody Agreement by the such Selling Stockholder and the consummation by the such Selling Stockholder of the transactions contemplated hereby and therebyhereby.
(f) The Stock Registration Statement did not as of the Effective Date, the Prospectus will not as of its date and on the Delivery Date, the Pricing Disclosure Package did not 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 sold by stated therein or necessary to make the Selling Stockholder hereunder, which is represented by the certificates held in custody for the Selling Stockholder, is subject to the interest of the Underwriters, the arrangements made by the Selling Stockholder for such custody are to that extent irrevocable, and the obligations of the Selling Stockholder hereunder shall not be terminated by any act of the Selling Stockholder, by operation of law, by the death or incapacity of any individual Selling Stockholder orstatements therein, in the case light of a trustthe circumstances under which they were made, by not misleading; provided that the death foregoing representation and warranty shall apply only to the extent that any statements in or incapacity of omissions from the Registration Statement, the Prospectus, the Pricing Disclosure Package or any executor or trustee or Issuer Free Writing Prospectus, as applicable, are made in reliance upon and in conformity with the termination of such trust, or the occurrence of any other eventSelling Stockholders Information.
(g) The Such Selling Stockholder is not prompted to sell shares of Common Stock by any material negative information concerning the Company that is not set forth in the Registration Statement, the Pricing Disclosure PackagePackage and the Prospectus.
(h) The Such Selling Stockholder has not taken and will not take, directly or indirectly, any action which that is designed to or which has constituted or which might that could reasonably be expected to cause or result in the stabilization or manipulation of the price of any security of the Company to facilitate the sale or resale of the shares of the Stock. Any certificate signed by any officer of any Selling Stockholder and delivered to counsel for the Underwriter in connection with the offering of the Stock shall be deemed a representation and warranty by such Selling Stockholder, as to matters covered thereby, to the Underwriter.
Appears in 2 contracts
Samples: Underwriting Agreement (Cinemark Holdings, Inc.), Underwriting Agreement (Cinemark Holdings, Inc.)
Representations, Warranties and Agreements of the Selling Stockholders. Each Selling Stockholder severally and not jointly represents, warrants and agrees that:
(a) Neither the Such 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 Underwriters) has used or referred to any “free writing prospectus” (as defined in Rule 405), relating to the Stock;formation.
(b) The Selling Stockholder has, and immediately prior to any Delivery Date on which the Such Selling Stockholder is selling shares a United States person (as the term is defined in Section 7701(a)(30) of Stockthe Internal Revenue Code of 1986, the as amended) for U.S. federal income tax purposes.
(c) Such Selling Stockholder will have has good and valid title to, or a valid to the shares of Stock to be sold by such 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”) the shares of Stock to be sold by the Selling Stockholder hereunder on such Delivery Datein respect thereof, free and clear of all liens, encumbrances, equities or adverse claims; , except for any liens, encumbrances, equities or adverse claims arising under (1) the Margin Loan Agreement dated as of March 3, 2022 among AP IX Tiger Holdings, L.P., AP IX Tiger Holdings GP, LLC, the lenders party thereto and Barclays Bank plc (and any refinancing or other modification of such margin loan financing) or (2) the Margin Loan Agreement dated as of March 3, 2022 among AP IX Tiger Co-Invest (ML), L.P., AP IX Tiger Co-Invest (ML) GP, LLC, the lenders party thereto and Barclays Bank plc (and any refinancing or other modification of such margin loan financing). On each Delivery Date as provided in Section 4, such Selling Stockholder will, upon delivery of the shares of Stock to be sold by such shares and payment therefor pursuant heretoSelling Stockholder hereunder on such Delivery Date, have good and valid title to such sharesshares of Stock and any “security entitlement” within the meaning of Section 8-501 of the UCC in respect thereof, free and clear of all liens, encumbrances, equities or adverse claims, will pass to the several Underwriters.
(cd) The Selling Stockholder has placed in custody under a custody agreement [Reserved]
(e) [Reserved]
(f) Upon payment for the “Custody Agreement” and, together with all other similar agreements executed by the other Selling Stockholders, the “Custody Agreements”) with the Company, as custodian (the “Custodian”), for delivery under this Agreement, certificates in negotiable form (with signature guaranteed by a commercial bank or trust company having an office or correspondent in the United States or a member firm of the New York or American Stock Exchanges) representing the shares of Stock to be sold by such Selling Stockholder, delivery of such Stock, as directed by the Underwriters, to Cede & Co. (“Cede”) or such other nominee as may be designated by The Depository Trust Company (“DTC”), registration of such Stock in the name of Cede or such other nominee and the crediting of such Stock on the books of DTC to securities accounts of the Underwriters (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 Stock) (i) DTC shall be a “protected purchaser” of such Stock within the meaning of Section 8-303 of the UCC, (ii) under Section 8-501 of the UCC, the Underwriters will acquire a valid security entitlement in respect of such Stock, and (iii) an action based on an adverse claim, within the meaning of Section 8-102 of the UCC, may not be asserted against the Underwriters with respect to such security entitlement. For purposes of this representation, such Selling Stockholder hereundermay assume that when such payment, delivery and crediting occur, (x) such 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, bylaws and applicable law, (y) DTC will be registered as a “clearing corporation” within the meaning of Section 8-102 of the UCC, and (z) appropriate entries to the accounts of the several Underwriters on the records of DTC will have been made pursuant to the UCC.
(dg) The Such Selling Stockholder has duly and irrevocably executed and delivered a power of attorney (the “Power of Attorney” andfull right, together with all other similar agreements executed by the other Selling Stockholders, the “Powers of Attorney”) appointing Sxxxxxx X. Xxxxxxx and one or more other persons, as attorneys-in-fact, with full power of substitution, and with full authority (exercisable by any one or more of them) to execute and deliver this Agreement and to take such other action as may be necessary or desirable to carry out the provisions hereof on behalf of the Selling Stockholder.
(e) The Selling Stockholder has power and authority under its limited partnership authority, corporate or similar organization agreement otherwise, to enter into this Agreement, the Power of Attorney and the Custody Agreement; this .
(h) This Agreement has been duly and validly authorized, executed and delivered by or on behalf of the such Selling Stockholder; .
(i) The sale of the Stock by such Selling Stockholder, the execution, delivery and performance of this Agreement, the Power of Attorney and the Custody Agreement by the such Selling Stockholder and the consummation by the such Selling Stockholder of the transactions contemplated hereby do not and thereby will not (i) conflict with or result in a material breach or violation of any of the terms or provisions of, or constitute a material default under, any indenture, mortgage, deed of trust, loan agreement agreement, license, lease or other agreement or instrument to which the such Selling Stockholder is a party or by which the such Selling Stockholder is bound or to which any of the property or assets of the such Selling Stockholder is subject, nor will (ii) result in any violation of the provisions of the charter or by-laws (or similar organizational documents) of such actions Selling Stockholder, or (iii) result in any violation of any of its organizational documents (in the case of non-individual Selling Stockholders) or any material violation of any statute or any judgment, order, decree, rule or regulation of any court or governmental agency or body having jurisdiction over the such Selling Stockholder or the property or assets of the such Selling Stockholder; and, 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 such Selling Stockholder’s ability to perform its obligations under this Agreement.
(j) No consent, approval, authorization or order of, or filing or registration with, any court or governmental agency or body having jurisdiction over such Selling Stockholder or the property or assets of such Selling Stockholder is required for the sale of the Stock by such Selling Stockholder, the execution, delivery and performance of this Agreement by such Selling Stockholder and the consummation by such Selling Stockholder of the transactions contemplated hereby, except for the registration of the Stock under the Securities Act and such consents, approvals, authorizations, orders, filings, registrations or qualifications as may be required under the Exchange Act, by the National Association of Securities Dealers, Inc. Act and under applicable state securities laws in connection with the purchase and distribution sale of the Stock by the Underwriters, no consent, approval, authorization or order of, or filing or registration with, any such court or governmental agency or body 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.
(fk) The Pricing Disclosure Package, at the Applicable Time did not, and as of the Initial Delivery Date and as of each Option Stock Delivery Date, as the case may be, will not, contain any untrue statement of a material fact or omit to be sold state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading. The preceding sentence applies only to written information furnished to the Company by the such Selling Stockholder hereunderexpressly for use therein, it being understood and agreed that the only such information furnished by such Selling Stockholder consists of such Selling Stockholder’s Selling Stockholder Information. Each Underwriter, the Company and such Selling Stockholder agree that the “Selling Stockholder Information” with respect to a Selling Stockholder consists solely of the information furnished by such Selling Stockholder for use in connection with the offering in the Registration Statement, the Pricing Disclosure Package and the Prospectus, which is represented consists solely of (i) the name, address and number of shares of Common Stock owned by the certificates held in custody for the such Selling Stockholder, is subject before and after the offering, and (ii) the other information with respect to the interest of the Underwriters, the arrangements made by the such Selling Stockholder for such custody are to that extent irrevocable, appears in the table (and corresponding footnotes) under the obligations of the caption “Selling Stockholder hereunder shall not be terminated by any act of the Selling Stockholder, by operation of law, by the death or incapacity of any individual Selling Stockholder orStockholders,” in each case, in the case of a trustRegistration Statement, by the death Pricing Disclosure Package, the Prospectus or incapacity of in any executor or trustee or the termination of such trust, or the occurrence of any other eventIssuer Free Writing Prospectus.
(gl) The [Reserved]
(m) [Reserved]
(n) [Reserved]
(o) Such Selling Stockholder is not prompted to sell shares of Common Stock by any information concerning the Company Company, including any of its subsidiaries, that is not set forth in the Registration Statement, the Pricing Disclosure PackagePackage and the Prospectus.
(hp) The Such Selling Stockholder has not taken and will not taketaken, directly or indirectly, any action which that is designed to or which that has constituted or which might that could reasonably be expected to cause or result in the stabilization or manipulation of the price of any security of the Company to facilitate in connection with the sale or resale offering of the shares of the Stock.
(q) [Reserved]
(r) Neither such Selling Stockholder nor any of its subsidiaries (to the extent applicable), nor any director or officer of such Selling Stockholder or any of its subsidiaries (to the extent applicable) nor, to the knowledge of such Selling Stockholder, any employee of such 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 such 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 such 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 such 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 such 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 such 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 such Selling Stockholder, threatened.
(t) Neither such Selling Stockholder nor any of its subsidiaries (to the extent applicable), directors or officers, nor, to the knowledge of such Selling Stockholder, any of such Selling Stockholder or any agent, controlled affiliate or other person associated with or acting on behalf of such 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, Cuba, Iran, North Korea, Syria, the Crimea region of Ukraine, the so-called Donetsk People’s Republic and the so-called Luhansk People’s Republic); and such 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. Such 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 any 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 such Selling Stockholder, as to matters covered thereby, to each Underwriter.
Appears in 2 contracts
Samples: Underwriting Agreement (Td Synnex Corp), Underwriting Agreement (Td Synnex Corp)
Representations, Warranties and Agreements of the Selling Stockholders. Each Selling Stockholder severally represents, and not jointly warrants and agrees that:
(a) Neither the The Selling Stockholder nor any person acting on behalf of has and immediately prior to the Selling Stockholder (other than, if applicable, the Company and the Underwriters) has used or referred to any “free writing prospectus” applicable Delivery Date (as defined in Rule 405), relating to the Stock;
(bSection 5) The Selling Stockholder has, and immediately prior to any Delivery Date on which the Selling Stockholder is selling shares of Stock, the Selling Stockholder will have good and valid title to, or a valid “security entitlement” within to the meaning of Section 8-501 of the New York Uniform Commercial Code (the “UCC”) the shares of Stock to be sold by the Selling Stockholder hereunder on such Delivery Datedate, free and clear of all liens, encumbrances, equities or claimsclaims (except for such claims as may arise under this Agreement or the Irrevocable Power of Attorney and Custody Agreement entered into in connection herewith); and upon delivery of such shares and payment therefor pursuant hereto, good and valid title to such shares, free and clear of all liens, encumbrances, equities or claims, will pass to the several Underwriters.
(cb) The Selling Stockholder has placed in custody under a custody agreement an Irrevocable Power of Attorney and Custody Agreement (the “Custody Agreement” and, together with all other similar agreements executed by the other Selling Stockholders, the “Custody Agreements”) with the Computershare Trust Company, Inc., as custodian (the “Custodian”), for delivery under this Agreement, certificates in negotiable form (with signature guaranteed by a commercial bank or trust company having an office or correspondent in the United States or a member firm of the New York or American Stock Exchanges) representing the Stock, or certificates representing shares of Stock preferred stock convertible into such Stock, or Warrants exercisable for such Stock, to be sold by the Selling Stockholder hereunder.
(dc) The Selling Stockholder has duly and irrevocably executed and delivered a power of attorney (the “Power of Attorney” and, together with all other similar agreements instruments executed by the other Selling Stockholders, the “Powers of Attorney”) ), contained within the Custody Agreement, appointing Sxxxxxx X. Xxxxxxx and one or more other persons, the persons named therein as attorneys-in-fact, with full power of substitution, and with full authority (exercisable by any one or more of them) to execute and deliver this Agreement on such Selling Stockholder’s behalf and to take such other action as may be necessary or desirable to carry out the provisions hereof on behalf of the Selling Stockholder.
(ed) The Selling Stockholder has full right, power and authority under its limited partnership or similar organization agreement to enter into this Agreement, the Power of Attorney Agreement and the Custody Agreement; this Agreement has been duly and validly authorized, executed and delivered by or on behalf of the Selling Stockholder; the execution, delivery and performance of this Agreement, the Power of Attorney Agreement and the Custody Agreement by the Selling Stockholder and the consummation by the Selling Stockholder of the transactions contemplated hereby and thereby will not conflict with or result in a material breach or violation of any of the terms or provisions of, or constitute a material default under, any indenture, mortgage, deed of trust, loan 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 nor, for each Selling Stockholder that is not a natural person, will such actions result in any violation of the provisions of any partnership or limited liability company agreement, certificate of its incorporation, by-laws, operating agreement, deed of trust or other similar agreement or organizational documents (in document of the case of non-individual Selling Stockholders) Stockholder or 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 or the property or assets of the Selling Stockholder; and, and except for the registration of the Stock under the Securities Act and such consents, approvals, authorizations, registrations or qualifications as may be required under the Exchange Act, by the National Association of Securities Dealers, Inc. Act and under applicable state securities laws in connection with the purchase and distribution of the Stock by the Underwriters, no consent, approval, authorization or order of, or filing or registration with, any such court or governmental agency or body is required for the execution, delivery and performance of this Agreement, the Power of Attorney Agreement or the Custody Agreement by the Selling Stockholder and the consummation by the Selling Stockholder of the transactions contemplated hereby and thereby.
(fe) The Stock Registration Statement and any amendment thereto does not and will not, as of the applicable effective date, contain an untrue statement of a material fact or omit to state a material fact required to be sold by stated therein or necessary to make the Selling Stockholder hereunder, which is represented by the certificates held in custody for the Selling Stockholder, is subject to the interest of the Underwriters, the arrangements made by the Selling Stockholder for such custody are to that extent irrevocablestatements therein not misleading, and the obligations Prospectus and any amendment or supplement thereto will not, as of the Selling Stockholder hereunder shall not applicable filing date and each Delivery Date, contain an untrue statement of a material fact or omit to state a material fact required to be terminated by any act of stated therein or necessary to make the Selling Stockholder, by operation of law, by the death or incapacity of any individual Selling Stockholder orstatements therein, in the case light of a trustthe circumstances under which they were made, not misleading; provided the foregoing representation or warranty is made only to the extent that the untrue statement or alleged untrue statement or omission or alleged omission was made in reliance upon and in conformity with written information concerning such Selling Stockholder furnished to the Company by or on behalf of such Selling Stockholder specifically for inclusion in the death or incapacity of any executor or trustee Registration Statement or the termination Prospectus, which written information shall consist only of the name of such trust, or Selling Stockholder and the occurrence of any other eventbeneficial ownership information relating to such Selling Stockholder as set forth under the Section “Principal and Selling Stockholders” in the Registration Statement and the Prospectus.
(g) The Selling Stockholder is not prompted to sell shares of Common Stock by any information concerning the Company that is not set forth in the Pricing Disclosure Package.
(hf) The Selling Stockholder has not taken and will not take, directly or indirectly, any action which is (i) designed to or which has constituted or 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 Stock or (ii) prohibited by Regulation M under the Securities Act.
(g) The Selling Stockholder has carefully reviewed the Registration Statement and the Prospectus and is not prompted to sell shares of Common Stock by any material information concerning the StockCompany that is not set forth in the Registration Statement and the Prospectus.
(h) This Agreement has been duly authorized, executed and delivered by or on behalf of the Selling Stockholder. Each certificate signed by or on behalf of a Selling Stockholder and delivered to the Underwriters or counsel to the Underwriters shall be deemed to be a representation and warranty by such Selling Stockholder to the Underwriters as to the matters covered thereby.
Appears in 2 contracts
Samples: Underwriting Agreement (Tessera Technologies Inc), Underwriting Agreement (Tessera Technologies Inc)
Representations, Warranties and Agreements of the Selling Stockholders. Each Selling Stockholder severally and not jointly represents, warrants and agrees that:
(a) Neither the The Selling Stockholder nor any person acting on behalf of has and immediately prior to the Selling Stockholder (other than, if applicable, the Company and the Underwriters) has used or referred to any “free writing prospectus” applicable Delivery Date (as defined in Rule 405), relating to the Stock;
(bSection 5 hereof) The Selling Stockholder has, and immediately prior to any Delivery Date on which the Selling Stockholder is selling shares of Stock, the Selling Stockholder will have good and valid title to, or a valid “security entitlement” within to the meaning of Section 8-501 of the New York Uniform Commercial Code (the “UCC”) the shares of 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, will pass to the several Underwriters.
(cb) The Selling Stockholder has placed in custody under a custody agreement Custody Agreement (the “Custody Agreement” and, together with all other similar agreements executed by the other Selling Stockholders, the “Custody Agreements”) with the American Stock Transfer & Trust Company, as custodian (the “Custodian”), for delivery under this Agreement, certificates in negotiable form (with signature guaranteed by a commercial bank or trust company having an office or correspondent in the United States or a member firm of the New York or American Stock Exchanges) representing the shares of Stock to be sold by the Selling Stockholder hereunder.
(dc) The Selling Stockholder has duly and irrevocably executed and delivered a power of attorney (the “Power of Attorney” and, together with all other similar agreements instruments executed by the other Selling Stockholders, the “Powers of Attorney”) appointing Sxxxxxx X. Xxxxxxx and one or more other persons, the persons named therein as attorneys-in-fact, with full power of substitution, and with full authority (exercisable by any one or more of them) to execute and deliver this Agreement on such Selling Stockholder’s behalf and to take such other action as may be necessary or desirable to carry out the provisions hereof on behalf of the Selling Stockholder.
(ed) The Selling Stockholder has full right, power and authority under its limited partnership or similar organization agreement to enter into this Agreement, the Power of Attorney and the Custody Agreement; this Agreement has been duly and validly authorized, executed and delivered by or on behalf of the Selling Stockholder; the execution, delivery and performance of this Agreement, the Power of Attorney and the Custody Agreement by the Selling Stockholder, the compliance by the Selling Stockholder with all of the applicable provisions of this Agreement, the Power of Attorney and the Custody Agreement, and the consummation by the Selling Stockholder of the Transactions and the other transactions contemplated hereby and thereby will not (i) conflict with or result in a material breach or violation of any of the terms or provisions of, or constitute a material default under, any indenture, mortgage, deed of trust, loan 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 will unless such actions conflict, breach, violation or default would not adversely affect such Selling Stockholder’s ability to perform any of its obligations under this Agreement, the Power of Attorney and the Custody Agreement or any of the transactions contemplated hereby and thereby, (ii) result in any violation of the provisions of any partnership or limited liability company agreement, certificate of its incorporation, by-laws, operating agreement, deed of trust or other similar agreement or organizational documents document of each Selling Stockholder that is not a natural person or (iii) result in the case of non-individual Selling Stockholders) or 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 or the property or assets of the Selling Stockholder; and, and except for the registration of the Stock under the Securities Act and such consents, approvals, authorizations, registrations or qualifications as may be required under the Exchange Act, by the National Association of Securities Dealers, Inc. Act and under applicable state securities laws in connection with the purchase and distribution of the Stock by the Underwriters, no consent, approval, authorization or order of, or filing or registration with, any such court or governmental agency or body is required for the execution, delivery and performance of this Agreement, the Power of Attorney or the Custody Agreement by the Selling Stockholder and Stockholder, the consummation compliance by the Selling Stockholder will all of the applicable provisions of this Agreement, the Power of Attorney and the Custody Agreement, and the consummation of the Transactions and the other transactions contemplated hereby and thereby.
(e) If listed on Schedule 4 hereto, to the knowledge of such Selling Stockholder, the Registration Statement, the Prospectus and the Sale Preliminary Prospectus and any further amendments or supplements to the Registration Statement, the Prospectus or the Sale Preliminary 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 applicable effective date (as to the Registration Statement and any amendment thereto), as of the applicable filing date (as to the Prospectus and any amendment or supplement thereto) and as of the time of sale (including, without limitation, a contract of sale) of the Stock (as to the Sale Preliminary 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; provided that no representation or warranty is made as to information contained in or omitted from the Registration Statement, the Prospectus or the Sale Preliminary Prospectus in reliance upon and in conformity with written information furnished to the Company through the Representatives by or on behalf of any Underwriter specifically for inclusion therein.
(f) The Stock information with respect to such Selling Stockholder contained in the Registration Statement, the Prospectus or the Sale Preliminary Prospectus (as amended or supplemented), as of the applicable date set forth in each of the Prospectus and the Sale Preliminary Prospectus, that is based upon information furnished to the Company by such Selling Stockholder in writing does not contain any untrue statement of a material fact or omit to state a material fact required to be sold by stated therein or necessary to make the Selling Stockholder hereunder, which is represented by the certificates held in custody for the Selling Stockholder, is subject to the interest of the Underwriters, the arrangements made by the Selling Stockholder for such custody are to that extent irrevocable, and the obligations of the Selling Stockholder hereunder shall not be terminated by any act of the Selling Stockholder, by operation of law, by the death or incapacity of any individual Selling Stockholder orstatements therein, in the case light of a trustthe circumstances under which they were made, by the death or incapacity of any executor or trustee or the termination of such trust, or the occurrence of any other eventnot misleading.
(g) The If listed on Schedule 4 hereto, such Selling Stockholder is not prompted has no reason to sell shares believe that the representations and warranties of Common Stock by any information concerning the Company that is contained in Section 1 hereof are not set forth in the Pricing Disclosure Packagematerially true and correct.
(h) The Selling Stockholder has not taken and will not take, directly or indirectly, any action which is designed prohibited by Regulation M under the Securities Act with respect to or which has constituted or 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 of the Stock.
(i) The Selling Stockholder is not prompted to sell shares of Common Stock by any material information concerning the Company which is not set forth in the Registration Statement, the Prospectus and the Sale Preliminary Prospectus.
(j) This Agreement has been duly authorized, executed and delivered by or on behalf of the Selling Stockholder.
Appears in 2 contracts
Samples: Underwriting Agreement, Underwriting Agreement (Rackable Systems, Inc.)
Representations, Warranties and Agreements of the Selling Stockholders. 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 Underwriters) has used or referred to any “free writing prospectus” (as defined in Rule 405), 405 under the Securities Act) relating to the Stock;.
(b) The Selling Stockholder has, and immediately prior to any Delivery Date on which the Selling Stockholder is selling shares of Stock, the Selling Stockholder will have good and valid title totitle, or a valid “security entitlement” within the meaning of Section 8-501 of the New York Uniform Commercial Code (the “UCC”) in respect thereof, to the shares of Stock to be sold by the Selling Stockholder hereunder on such Delivery Date, Date free and clear of all liens, encumbrances, equities or claims; and upon delivery of such shares and payment therefor pursuant hereto, good and valid title to such shares, free and clear of all liens, other encumbrances, equities or claims, will pass to the several Underwriters.
(c) . 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 the Company, as custodian (the “Custodian”), for delivery under this Agreement, certificates in negotiable form (with signature guaranteed by a commercial bank or trust company having an office or correspondent in the United States or a member firm of the New York or American Stock Exchanges) representing the shares of Stock to be sold by the Selling Stockholders pursuant to this Agreement will be sold in compliance with federal and state securities laws.
(c) Upon payment for the Stock to be sold by such Selling Stockholder, delivery of such Stock, as directed by the Underwriters, to Cede & Co. (“Cede”) or such other nominee as may be designated by The Depository Trust Company (“DTC”), registration of such Stock in the name of Cede or such other nominee and the crediting of such Stock on the records of DTC to securities accounts of the Underwriters (i) DTC shall be a “protected purchaser” of such Stock within the meaning of Section 8-303 of the UCC, (ii) under Section 8-501 of the UCC, the Underwriters will acquire a valid security entitlement in respect of such Stock and (iii) no action based on an “adverse claim”, within the meaning of Section 8-102 of the UCC, to such Stock may be successfully asserted against the Underwriters with respect to such security entitlement. For purposes of this representation, such Selling Stockholder hereundermay assume that when such payment, delivery and crediting occur, (x) such 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, bylaws and applicable law, (y) DTC will be registered as a “clearing corporation” within the meaning of Section 8-102 of the UCC, and (z) appropriate entries to the accounts of the several Underwriters on the records of DTC will have been made pursuant to the UCC.
(d) The Selling Stockholder has duly full right, power and irrevocably executed and delivered a power of attorney (the “Power of Attorney” andauthority, together with all other similar agreements executed by the other Selling Stockholderscorporate or otherwise, the “Powers of Attorney”) appointing Sxxxxxx X. Xxxxxxx and one or more other persons, as attorneys-in-fact, with full power of substitution, and with full authority (exercisable by any one or more of them) to execute and deliver enter into this Agreement and to take such other action as may be necessary or desirable to carry out the provisions hereof on behalf of the Selling StockholderAgreement.
(e) The Selling Stockholder has power and authority under its limited partnership or similar organization agreement to enter into this Agreement, the Power of Attorney and the Custody Agreement; this This Agreement has been duly and validly authorized, executed and delivered by or on behalf of the Selling Stockholder; .
(f) The issue and sale of the Stock by the Selling Stockholder, the execution, delivery and performance of this 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 material breach or violation of any of the terms or provisions of, or constitute a material default under, any indenture, mortgage, deed of trust, loan agreement agreement, 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, nor will such actions (ii) result in any violation of the provisions of the charter or bylaws (or similar organizational documents) of the Selling Stockholder, or (iii) result in any violation of any of its organizational documents (in the case of non-individual Selling Stockholders) or any material 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), for any such contraventions that would not, individually or in the aggregate, materially interfere with the consummation of the transactions contemplated by this Agreement.
(g) No consent, approval, authorization or order of, or filing or registration with, any court or governmental agency or body having jurisdiction over the Selling Stockholder or the property or assets of the Selling Stockholder is required for the issue and sale of the Stock by the Selling Stockholder; and, the execution, delivery and performance of this Agreement and the consummation by the Selling Stockholder of the transactions contemplated hereby and thereby, except for the registration of the Stock under the Securities Act and such consents, approvals, authorizations, orders, filings, registrations or qualifications as may be required under the Exchange Act, by the National Association of Securities Dealers, Inc. Act and under applicable state securities laws in connection with the purchase and distribution sale of the Stock by the Underwriters, no consent, approval, authorization or order of, or filing or registration with, any such court or governmental agency or body 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.
(fh) The Stock to be sold by To the Selling Stockholder hereunder, which is represented by the certificates held in custody for the Selling Stockholder, is subject to the interest of the Underwriters, the arrangements made by the Selling Stockholder for such custody are to that extent irrevocable, and the obligations of the Selling Stockholder hereunder shall not be terminated by any act knowledge of the Selling Stockholder, by operation the Registration Statement did not, as of lawthe Effective Date, by 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 death statements therein not misleading; provided that the representations and warranties set forth in this paragraph 2(h) are limited in all respects to statements or incapacity of any individual omissions made in reliance upon and in conformity with information (the “Selling Stockholder orInformation”) relating to such Selling Stockholder furnished to the Company in writing by such Selling Stockholder expressly for use in the Registration Statement, it being understood and agreed that the only information furnished by such Selling Stockholder consists of the name of such Selling Stockholder, the number of offered shares and the address and other information with respect to such Selling Stockholder (excluding percentages) which appear in the Registration Statement in the table (and corresponding footnotes) under the caption “Principal and Selling Stockholders.”
(i) To the knowledge of the Selling Stockholder, the Prospectus will not, as of its date or as of the applicable Delivery Date, contain an untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in the case light of a trustthe circumstances under which they were made, by not misleading; provided that the death representations and warranties set forth in this paragraph 2(i) are limited in all respects to statements or incapacity of any executor or trustee or omissions made in reliance upon and in conformity with the termination of such trust, or the occurrence of any other eventSelling Stockholder Information.
(gj) 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 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 2(j) are limited in all respects to statements or omissions made in reliance upon and in conformity with the Selling Stockholder Information.
(k) The Selling Stockholder is not prompted to sell shares of Common Stock by any information concerning the Company that is not set forth in the Registration Statement, the Pricing Disclosure PackagePackage and the Prospectus.
(hl) The Selling Stockholder has not taken and will not taketaken, directly or indirectly, any action which that is designed to or which that has constituted or which might that could reasonably be expected to cause or result in the stabilization or manipulation of the price of any security of the Company to facilitate in connection with the sale or resale offering of the shares of the Stock.
(m) The Selling Stockholder has executed a “lock-up” agreement, substantially in the form of Exhibit A hereto, relating to sales and certain other dispositions of shares of Common Stock or certain other securities, that is in full force and effect as of the date hereof and shall be in full force and effect as of the Closing Date.
Appears in 2 contracts
Samples: Underwriting Agreement (Paycom Software, Inc.), Underwriting Agreement (Paycom Software, Inc.)
Representations, Warranties and Agreements of the Selling Stockholders. (a) Each Selling Stockholder Stockholder, severally and not jointly, represents, warrants and agrees that:
(ai) Neither the Selling Stockholder nor any person acting on behalf of the Selling Stockholder (other than, if applicable, the Company and the Underwriters) has used or referred to any “free writing prospectus” (as defined in Rule 405), relating to the Stock;
(bii) The Selling Stockholder has, and/or upon exercise of any option to purchase Common Stock in connection with the shares of Stock to be sold by the Selling Stockholder hereunder will have, and immediately prior to any Delivery Date on which the Selling Stockholder is selling shares of Stock, the Selling Stockholder will have 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”) to the 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; and upon delivery of such shares and payment therefor pursuant hereto, good and valid title to such shares, free and clear of all except for any liens, encumbrances, equities or claims, will pass to claims arising under the several UnderwritersCustody Agreement.
(c) 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 the Company, as custodian (the “Custodian”), for delivery under this Agreement, certificates in negotiable form (with signature guaranteed by a commercial bank or trust company having an office or correspondent in the United States or a member firm of the New York or American Stock Exchanges) representing the shares of Stock to be sold by the Selling Stockholder hereunder.
(d) The Selling Stockholder has duly and irrevocably executed and delivered a power of attorney (the “Power of Attorney” and, together with all other similar agreements executed by the other Selling Stockholders, the “Powers of Attorney”) appointing Sxxxxxx X. Xxxxxxx and one or more other persons, as attorneys-in-fact, with full power of substitution, and with full authority (exercisable by any one or more of them) to execute and deliver this Agreement and to take such other action as may be necessary or desirable to carry out the provisions hereof on behalf of the Selling Stockholder.
(e) The Selling Stockholder has power and authority under its limited partnership or similar organization agreement to enter into this Agreement, the Power of Attorney and the Custody Agreement; this Agreement has been duly and validly authorized, executed and delivered by or on behalf of the Selling Stockholder; the execution, delivery and performance of this 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 will not conflict with or result in a material breach or violation of any of the terms or provisions of, or constitute a material default under, any indenture, mortgage, deed of trust, loan 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 will such actions result in any violation of any of its organizational documents (in the case of non-individual Selling Stockholders) or 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 or the property or assets of the Selling Stockholder; and, except for the registration of the Stock under the Securities Act and such consents, approvals, authorizations, registrations or qualifications as may be required under the Exchange Act, by the National Association of Securities Dealers, Inc. and under applicable state securities laws in connection with the purchase and distribution of the Stock by the Underwriters, no consent, approval, authorization or order of, or filing or registration with, any such court or governmental agency or body 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.
(fiii) The Stock to be sold by the Selling Stockholder hereunder, which is represented by the certificates and/or Option Agreements held in custody for the Selling Stockholder, is subject to the interest of the UnderwritersUnderwriters thereunder, the arrangements made by the Selling Stockholder for such custody are to that extent irrevocableirrevocable except pursuant to a termination of this Agreement or as otherwise set forth in the Custody Agreement, and the obligations of the Selling Stockholder hereunder shall not be terminated by any act of the Selling Stockholder, by operation of law, by the death or incapacity of any individual 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.
(giv) Upon delivery of the Stock to be sold by the Selling Stockholder, payment therefor pursuant hereto and assuming no Underwriter has notice of any “adverse claim” (within the meaning of Section 8-102 of the Uniform Commercial Code (the “UCC”)) (i) the Underwriters shall be “protected purchasers” of such Stock within the meaning of Section 8-303 of the UCC, (ii) under Section 8-501 of the UCC, the Underwriters will acquire good and valid title and a valid security entitlement in respect of such Stock and (iii) no action based on any “adverse claim,” within the meaning of Section 8-102 of the UCC, to such Stock may be asserted against the Underwriters with respect to such security entitlement.
(v) The Selling Stockholder is not prompted to sell 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 the Company, as custodian (the “Custodian”), for delivery under this Agreement, certificates in negotiable form and/or Option Agreements with duly executed notices of exercise representing the shares of Common Stock to be sold by the Selling Stockholder hereunder.
(vi) The Selling Stockholder has duly and irrevocably executed and delivered a power of attorney (the “Power of Attorney” and, together with all other similar agreements executed by the other Selling Stockholders, the “Powers of Attorney”) appointing Xxxxxxx X. Xxxxx, Xxxxx X. Xxxxxxxx, Xxxxxxx X. Xxxxxxx as attorneys-in-fact, with full power of substitution, and with full authority (exercisable by any one or more of them) to execute and deliver this Agreement and to take such other action as may be necessary or desirable to carry out the provisions hereof on behalf of the Selling Stockholder in accordance with the provisions of the Power of Attorney.
(vii) The Selling Stockholder has full right, power and authority, corporate or otherwise, to enter into this Agreement, the Custody Agreement and the Power of Attorney.
(viii) This Agreement has been duly and validly authorized, executed and delivered by or on behalf of the Selling Stockholder.
(ix) The Power of Attorney and the Custody Agreement have been duly and validly authorized, executed and delivered by or on behalf of the Selling Stockholder and constitute valid and legally binding obligations of the Selling Stockholder enforceable against the Selling Stockholder in accordance with their terms, subject to (i) the effects of bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium and other similar laws relating to or affecting creditors’ rights generally, (ii) general equitable principles (whether considered in a proceeding in equity or at law) and (iii) an implied covenant of good faith and fair dealing.
(x) The execution, delivery and performance of this Agreement, the Custody Agreement and the Power of Attorney 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, (iii) result in any violation of the provisions of the deed of trust (or similar organizational documents) of the Selling Stockholder or (iv) 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.
(xi) 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, the Custody Agreement or the Power of Attorney by the Selling Stockholder and the consummation by the Selling Stockholder of the transactions contemplated hereby and thereby, except for the registration of the Stock under the Securities Act and such consents, approvals, authorizations, registrations or qualifications as may be required under the Exchange Act and applicable state or foreign securities laws in connection with the purchase and sale of the Stock by any the Underwriters.
(xii) 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 representation in this paragraph is limited to statements or omissions made in reliance upon and in conformity with information concerning relating to such Selling Stockholder furnished to the Company in writing by such Selling Stockholder expressly for use in the Registration Statement.
(xiii) 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; provided that the representation in this paragraph is limited to statements or omissions made in reliance upon and in conformity with information relating to such Selling Stockholder furnished to the Company in writing by such Selling Stockholder expressly for use in the Prospectus.
(xiv) 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 set forth misleading; provided that the representation in this paragraph is limited to statements or omissions made in reliance upon and in conformity with information relating to such Selling Stockholder furnished to the Company in writing by such Selling Stockholder expressly for use in the Pricing Disclosure Package.
(hxv) Each Issuer Free Writing Prospectus (including, without limitation, any road show that is a free writing prospectus under Rule 433), 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 representation in this paragraph is limited to statements or omissions made in reliance upon and in conformity with information relating to such Selling Stockholder furnished to the Company in writing by such Selling Stockholder expressly for use in the such Issuer Free Writing Prospectus.
(xvi) The Selling Stockholder has not taken and will not take, directly or indirectly, any action which that is designed to or which that has constituted or which might that could reasonably be expected to cause or result in the stabilization or manipulation of the price of any security of the Company to facilitate the sale or resale of the shares of the Stock.
(b) In addition to the representations, warranties and agreements in Section 2(a) above, the stockholder of the Company named in Schedule 5 hereto (the “Executive Selling Stockholder”) represents, warrants and agrees that:
(i) The Executive Selling Stockholder has reviewed this Agreement, the Registration Statement and the Pricing Disclosure Package and has no reason to believe (i) the Registration Statement, as of its effective date, contained an untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary to make the statements therein not misleading, or (ii) the Pricing Disclosure Package, as of the Applicable Time, contained an untrue statement of a material fact or omitted 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 no representation or warranty is made as to information contained in or omitted from the Registration Statement or 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). Any certificate signed by any Selling Stockholder and delivered to the Representatives or counsel for the Underwriters in connection with the offering of the Stock shall be deemed a representation and warranty by such Selling Stockholder, as to matters covered thereby, to each Underwriter.
Appears in 2 contracts
Samples: Underwriting Agreement (LogMeIn, Inc.), Underwriting Agreement (LogMeIn, Inc.)
Representations, Warranties and Agreements of the Selling Stockholders. Each Selling Stockholder Stockholder, severally and not jointly, represents, warrants and agrees that:
(a) Neither the such Selling Stockholder nor any person acting on behalf of the such Selling Stockholder (other than, if applicable, the Company and the Underwriters) has used or referred to any “free writing prospectus” (as defined in Rule 405), 405 under the Securities Act) relating to the Stock;.
(b) The Such Selling Stockholder has, and immediately prior to any Delivery Date on which the such Selling Stockholder is selling shares of Stock, the such Selling Stockholder will have have, good and valid marketable title to, to the shares of Stock to be sold by such Selling Stockholder hereunder on such Delivery Date or a valid “security entitlement” within the meaning of Section 8-501 of the New York Uniform Commercial Code (the “UCC”) the shares of Stock to be sold by the Selling Stockholder hereunder on such Delivery Datein respect thereof, free and clear of all liens, encumbrances, equities equities, community property rights, restrictions on transfer or claims; and upon delivery of such shares and payment therefor pursuant hereto, good and valid title to such shares, free and clear of all liens, encumbrances, equities or claims, will pass to the several Underwriters.
(c) 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 the Company, as custodian (the “Custodian”), for delivery under this Agreement, certificates in negotiable form (with signature guaranteed by a commercial bank or trust company having an office or correspondent in the United States or a member firm of the New York or American Stock Exchanges) representing the shares of Stock to be sold by the such Selling Stockholder hereunderhereunder is subject to the interest of the Underwriters and the obligations of such Selling Stockholder hereunder shall not be terminated by any act of such Selling Stockholder, or the occurrence of any other event.
(d) The Upon payment for the Stock to be sold by such Selling Stockholder has duly and irrevocably executed and delivered a power Stockholder, delivery of attorney (the “Power of Attorney” andsuch Stock, together with all other similar agreements executed as directed by the other Selling StockholdersUnderwriters, the to Cede & Co. (“Powers of AttorneyCede”) appointing Sxxxxxx X. Xxxxxxx and one or more other persons, as attorneys-in-fact, with full power of substitution, and with full authority (exercisable by any one or more of them) to execute and deliver this Agreement and to take such other action nominee as may be necessary designated by The Depository Trust Company (“DTC”), registration of such Stock in the name of Cede or desirable such other nominee and the crediting of such Stock on the books of DTC to carry out the provisions hereof on behalf securities accounts of the Underwriters (i) under Section 8-501 of the UCC, the Underwriters will acquire a valid security entitlement in respect of such Stock, and (ii) an action based on an “adverse claim,” within the meaning of Section 8-102 of the UCC, to Stock, whether framed in conversion, replevin, constructive trust, equitable lien or other theory may not be asserted against an Underwriter, with respect to such security entitlement, assuming that such Underwriter has no notice of any adverse claim (within the meaning of Section 8-105 of the UCC) with respect to such Stock. For purposes of this representation, such Selling StockholderStockholder may assume that when such payment, delivery and crediting occur, (x) such 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, bylaws and applicable law, (y) DTC will be registered as a “clearing corporation” within the meaning of Section 8-102 of the UCC, and (z) appropriate entries to the accounts of the several Underwriters on the records of DTC will have been made pursuant to the UCC.
(e) The Such Selling Stockholder has full right, power and authority under its limited partnership authority, corporate or similar organization agreement otherwise, to enter into this Agreement, the Power of Attorney and the Custody Agreement; this .
(f) This Agreement has been duly and validly authorized, executed and delivered by or on behalf of the such Selling Stockholder; .
(g) The sale of the Stock by such Selling Stockholder, the execution, delivery and performance of this Agreement, the Power of Attorney and the Custody Agreement by the such Selling Stockholder and the consummation by the such Selling Stockholder of the transactions contemplated hereby do not and thereby will not (i) conflict with or result in a material breach or violation of any of the terms or provisions of, or constitute a material default under, any indenture, mortgage, deed of trust, loan agreement agreement, license, lease or other agreement or instrument to which the such Selling Stockholder is a party or by which the such Selling Stockholder is bound or to which any of the property or assets of the such Selling Stockholder is subject, nor will (ii) result in any violation of the provisions of the charter or by-laws (or similar organizational documents) of such actions Selling Stockholder (if such Selling Stockholder is a corporation, limited liability company, partnership or other similar entity), or (iii) result in any violation of any of its organizational documents (in the case of non-individual Selling Stockholders) or any material violation of any statute or any judgment, order, decree, rule or regulation of any court or governmental agency or body having jurisdiction over the such Selling Stockholder or the property or assets of the such Selling Stockholder; and, except in the case of clauses (i) and (iii), as would not have an adverse effect on such Selling Stockholder’s ability to consummate the transactions contemplated by this Agreement.
(h) No consent, approval, authorization or order of, or filing or registration with, any court or governmental agency or body having jurisdiction over such Selling Stockholder or the property or assets of such Selling Stockholder is required for the sale of the Stock by such Selling Stockholder, the execution, delivery and performance of this Agreement by such Selling Stockholder and the consummation by such Selling Stockholder of the transactions contemplated hereby, except for the registration of the Stock under the Securities Act and such consents, approvals, authorizations, orders, filings, registrations or qualifications as may be required under the Exchange Act, by the National Association of Securities Dealers, Inc. and under applicable state securities laws in connection with the purchase and distribution sale of the Stock by the Underwriters, no consent, approval, authorization or order of, or filing or registration with, any such court or governmental agency or body 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.
(fi) (w) The Stock Registration Statement did not, as of the Effective Date, (x) the Prospectus will not, as of its date or as of the applicable Delivery Date, (y) the Pricing Disclosure Package did not, as of the Applicable Time and (z) the Pricing Disclosure Package, when taken together with each Issuer Free Writing Prospectus listed in Schedule [V] hereto, did not, as of the Applicable Time, in each case of the foregoing clauses (w) through (z), contain an untrue statement of a material fact or omit to state a material fact required to be sold by stated therein or necessary to make the Selling Stockholder hereunder, which is represented by the certificates held in custody for the Selling Stockholder, is subject to the interest of the Underwriters, the arrangements made by the Selling Stockholder for such custody are to that extent irrevocable, and the obligations of the Selling Stockholder hereunder shall not be terminated by any act of the Selling Stockholder, by operation of law, by the death or incapacity of any individual Selling Stockholder or, statements therein (except in the case of a trustthe Registration Statement, in the light of the circumstances under which they were made) not misleading; it being understood and agreed that the foregoing applies only to such information furnished by such Selling Stockholder to the death or incapacity Company, which consists of any executor or trustee or (A) the termination legal name, address and the number of shares of Common Stock owned by such trustSelling Stockholder (before and after giving effect to the offering of the Stock), or and (B) the occurrence of any other eventinformation with respect to such Selling Stockholder (excluding percentages) which appears in the table (and corresponding footnotes) under the caption “Principal and Selling Stockholders” (with respect to each Selling Stockholder, the “Selling Stockholder Information”).
(gj) The Such Selling Stockholder is not prompted to sell shares of Common Stock by any information concerning the Company that is not set forth in the Registration Statement, the Pricing Disclosure PackagePackage and the Prospectus.
(hk) The Such Selling Stockholder has not taken and will not taketaken, directly or indirectly, any action which that is designed to or which that has constituted or which might that could reasonably be expected to cause or result in the stabilization or manipulation of the price of any security of the Company to facilitate in connection with the sale or resale offering of the shares of the Stock. Any certificate signed by any Selling Stockholder or an officer thereof, if applicable, and delivered to the Representatives or counsel for the Underwriters in connection with the offering of the Stock shall be deemed a representation and warranty by such Selling Stockholder, as to matters covered thereby, to each Underwriter.
Appears in 2 contracts
Samples: Underwriting Agreement (AdvancePierre Foods Holdings, Inc.), Underwriting Agreement (AdvancePierre Foods Holdings, Inc.)
Representations, Warranties and Agreements of the Selling Stockholders. Each of the Selling Stockholder Stockholders 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 Underwriters) has used or referred to any “free writing prospectus” (as defined in Rule 405), relating to the Stock;
(b) The Such Selling Stockholder has, and immediately prior to any the First Delivery Date on which the Selling Stockholder is selling shares of Stock, the such Selling Stockholder will have have, good and valid marketable title to, or a valid “security entitlement” within the meaning of Section 8-501 of the New York Uniform Commercial Code (the “UCC”) to the shares of Stock to be sold by the such Selling Stockholder hereunder and under the U.S. Underwriting Agreement on such Delivery Datedate, free and clear of all liens, encumbrances, equities or claimsclaims except those that may be created by the International Managers; and upon delivery of such shares and payment therefor pursuant heretohereto and thereto, good and valid title to such shares, free and clear of all liens, encumbrances, equities or claims, will pass to the several International Managers and the U.S. Underwriters.
(cb) The Such 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 the Company, as custodian (the “"Custodian”"), for delivery under this Agreement, certificates in negotiable form (with signature guaranteed by a commercial bank or trust company having an office or correspondent in the United States or a member firm of the New York or American Stock Exchanges) representing the shares of Stock to be sold by the such Selling Stockholder hereunder.
(dc) The Such Selling Stockholder has duly and irrevocably executed and delivered a power of attorney (the “"Power of Attorney” and, together with all other similar agreements executed by the other Selling Stockholders, the “Powers of Attorney”") appointing Sxxxxxx X. Xxxxxxx the Custodian and one or more other persons, as attorneys-in-fact, with full power of substitution, and with full authority (exercisable by any one or more of them) to execute and deliver this Agreement and to take such other action as may be necessary or desirable to carry out the provisions hereof on behalf of the such Selling Stockholder.
(ed) The Such Selling Stockholder has full right, power and authority under its limited partnership or similar organization agreement to enter into this Agreement, the U.S. Underwriting Agreement, the Power of Attorney and the Custody Agreement; this Agreement has been duly and validly authorized, executed and delivered by or on behalf of the Selling Stockholder; the execution, delivery and performance of this Agreement, the U.S. Underwriting Agreement, the Power of Attorney and the Custody Agreement by the such Selling Stockholder and the consummation by the such Selling Stockholder of the transactions contemplated hereby and thereby will not conflict with or result in constitute a material breach or violation of any of the terms or provisions of, or constitute a material default under, any indenture, mortgage, deed of trust, loan agreement or other agreement or instrument to which the such Selling Stockholder is a party or by which the such Selling Stockholder is bound or to which any of the property or assets of the such Selling Stockholder is subject, nor will such actions result in any violation of any the provisions of its organizational documents (in the case charter or bylaws or the articles of non-individual partnership, as applicable, of the Selling Stockholders) Stockholder or any material violation of any statute or any order, rule or regulation of any court or governmental agency or body having jurisdiction over the such Selling Stockholder or the property or assets of the such Selling Stockholder; and, except for the registration of the Stock under the Securities Act and such consents, approvals, authorizations, registrations or qualifications as may be required under the Exchange Act, by the National Association of Securities Dealers, Inc. Act and under applicable state or foreign securities laws in connection with the purchase and distribution of the Stock by the International Managers and the U.S. 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, the U.S. Underwriting Agreement, the Power of Attorney or the Custody Agreement by the such Selling Stockholder and the consummation by the such Selling Stockholder of the transactions contemplated hereby and thereby.
(fe) The Stock Registration Statement and the Prospectus and any further amendments or supplements to the Registration Statement or the Prospectus, when they become effective or are filed with the Commission, as the case may be, do not and will not, as of the applicable effective date (as to the Registration Statement and any amendment thereto) and as of the applicable filing date (as to the Prospectus and any amendment or supplement thereto) contain an untrue statement of a material fact or omit to state a material fact required to be sold by stated therein or necessary to make the statements therein not misleading; provided that this representation and warranty is made as to information contained in or omitted from the Registration Statement or the Prospectus under the caption "Selling Stockholder hereunder, which is represented by the certificates held in custody for the Stockholders" relating to such Selling Stockholder, is subject to the interest of the Underwriters, the arrangements made by the Selling Stockholder for such custody are to that extent irrevocable, and the obligations of the Selling Stockholder hereunder shall not be terminated by any act of the Selling Stockholder, by operation of law, by the death or incapacity of any individual 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.
(gf) The Selling Stockholder is not prompted to sell shares of Common Stock by any information concerning the Company that is not set forth in the Pricing Disclosure Package.
(h) The Such Selling Stockholder has not taken and will not take, directly or indirectly, any action which is designed to or which has constituted or 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 of the Stock.
Appears in 1 contract
Samples: International Underwriting Agreement (L 3 Communications Holdings Inc)
Representations, Warranties and Agreements of the Selling Stockholders. Each Selling Stockholder severally 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 Underwriters) has used or referred to any “free writing prospectus” (as defined in Rule 405), relating to the Stock;
(b) The Selling Stockholder has, and immediately prior to any the applicable Delivery Date on which the Selling Stockholder is selling shares of Stock, (as hereinafter defined) the Selling Stockholder will have 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”) to the shares of 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, will pass to the several Underwriters.
(cb) The Selling Stockholder has duly and irrevocably executed and delivered a power of attorney (the "Power of Attorney" and, together with all other similar instruments executed by the other Selling Stockholders, the "Powers of Attorney") appointing the persons named therein as attorneys-in-fact, with full power of substitution, and with full authority (exercisable by any one or more of them) to execute and deliver this Agreement and the custody agreement among the Attorneys-in-Fact named therein acting on behalf of the Selling Stockholders and SunTrust Banks, Inc., as Custodian (the "Custody Agreement") and to take such other action as may be necessary or desirable to carry out the provisions hereof on behalf of the Selling Stockholder. 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 the Company, as custodian (the “Custodian”), for delivery under this Agreement, certificates in negotiable form (with signature guaranteed by a commercial bank or trust company having an office or correspondent in the United States or a member firm of the New York or American Stock Exchanges) representing the shares of Stock to be sold by the Selling Stockholder hereunder.
(dc) The Selling Stockholder has duly and irrevocably executed and delivered a power of attorney (the “Power of Attorney” andfull right, together with all other similar agreements executed by the other Selling Stockholders, the “Powers of Attorney”) appointing Sxxxxxx X. Xxxxxxx and one or more other persons, as attorneys-in-fact, with full power of substitution, and with full authority (exercisable by any one or more of them) to execute and deliver this Agreement and to take such other action as may be necessary or desirable to carry out the provisions hereof on behalf of the Selling Stockholder.
(e) The Selling Stockholder has power and authority under its limited partnership or similar organization agreement to enter into this Agreement, the Power of Attorney and the Custody Agreement; this Agreement has been duly and validly authorized, executed and delivered by or on behalf of the Selling Stockholder; the execution, delivery and performance of this 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 will not conflict with or result in a material breach or violation of any of the terms or provisions of, or constitute a material default under, any material indenture, mortgage, deed of trust, loan agreement agreement, 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 subject, nor will such actions result in any violation of the provisions of any partnership or limited liability company agreement, certificate of its incorporation, bylaws, operating agreement, deed of trust or other similar agreement or organizational documents (in document of the case of non-individual Selling Stockholders) Stockholder or any material violation of any statute or any order, rule or regulation of any court or governmental agency or body (whether domestic or foreign) having jurisdiction over the Selling Stockholder or the property or assets of the Selling Stockholder; and, except for the registration of the Stock under the Securities Act and such consents, approvals, authorizations, registrations or qualifications as may be required under the Exchange Act, by the National Association of Securities Dealers, Inc. Act and under applicable state or foreign securities laws in connection with the purchase and distribution of the Stock by the Underwriters, no consent, approval, authorization or order of, or filing or registration with, any such court or governmental agency or body 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 therebyhereby.
(fd) The Stock Registration Statement and the Prospectus, as they may be amended or supplemented, do not, as of the applicable effective date (as to the Registration Statement and any amendment thereto) and as of the applicable filing date (as to the Prospectus and any amendment or supplement thereto) contain an untrue statement of a material fact or omit to state a material fact required to be sold by the Selling Stockholder hereunder, which is represented by the certificates held in custody for the Selling Stockholder, is subject to the interest of the Underwriters, the arrangements made by the Selling Stockholder for such custody are to that extent irrevocable, and the obligations of the Selling Stockholder hereunder shall not be terminated by any act of the Selling Stockholder, by operation of law, by the death stated therein or incapacity of any individual Selling Stockholder or, necessary (in the case of a trustthe Prospectus, in the light of the circumstances under which made) to make the statements therein not misleading; provided that no representation or warranty is made as to information contained in or omitted from the Registration Statement or the Prospectus in reliance upon and in conformity with written information furnished to the Company by the death or incapacity on behalf of any executor Underwriter specifically for inclusion therein and provided further that (i) if the Selling Stockholder is, or trustee has a representative serving as, a director of the Company, this paragraph (d) shall apply to the best of such Selling Stockholder's knowledge and (ii) if the Selling Stockholder is not, and does not have a representative serving as, a director of the Company, this paragraph (d) shall apply to such Selling Stockholder only to the extent that the statements or omissions from the Registration Statement or the termination of Prospectus were based on written information provided by such trust, or the occurrence of any other eventSelling Stockholder specifically for inclusion therein.
(g) The Selling Stockholder is not prompted to sell shares of Common Stock by any information concerning the Company that is not set forth in the Pricing Disclosure Package.
(he) The Selling Stockholder has not taken and will not take, directly or indirectly, any action which is designed to or which has constituted or 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 of the Stock.
(f) The Selling Stockholder's decision to sell shares of Common Stock is not based on any information concerning the Company that is not set forth in the Registration Statement and the Prospectus.
Appears in 1 contract
Samples: Underwriting Agreement (Texas Capital Bancshares Inc/Tx)
Representations, Warranties and Agreements of the Selling Stockholders. Each 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 Underwriters) has used or referred to any “free writing prospectus” (as defined in Rule 405), relating to the Stock;
(b) The Selling Stockholder has, and immediately prior to any the First Delivery Date on which the Selling Stockholder is selling shares of Stock, (as defined in Section 5 hereof) 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”) to the shares of 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, will pass to the several Underwriters.
(cb) The Selling Stockholder has placed in custody under a custody agreement (the “Custody Agreement” "CUSTODY AGREEMENT" and, together with all other similar agreements executed by the other Selling Stockholders, the “Custody Agreements”"CUSTODY AGREEMENTS") with the Company, as custodian (the “Custodian”"CUSTODIAN"), for delivery under this Agreement, certificates in negotiable form (with signature guaranteed by a commercial bank or trust company having an office or correspondent in the United States or a member firm of the New York or American Stock Exchanges) representing the shares of Stock to be sold by the Selling Stockholder hereunder.
(dc) The Selling Stockholder has duly and irrevocably executed and delivered a power of attorney (the “Power of Attorney” "POWER OF ATTORNEY" and, together with all other similar agreements executed by the other Selling Stockholders, the “Powers of Attorney”"POWERS OF ATTORNEY") appointing Sxxxxxx X. Xxxxxxx the Custodian and one or more other persons, as attorneys-in-fact, with full power of substitution, and with full authority (exercisable by any one or more of them) to execute and deliver this Agreement and to take such other action as may be necessary or desirable to carry out the provisions hereof on behalf of the Selling Stockholder.
(ed) The Selling Stockholder has full right, power and authority under its limited partnership or similar organization agreement to enter into this Agreement, the Power of Attorney and the Custody Agreement; this Agreement has been duly and validly authorized, executed and delivered by or on behalf of the Selling Stockholder; the execution, delivery and performance of this 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 will not conflict with or result in a material breach or violation of any of the terms or provisions of, or constitute a material default under, any indenture, mortgage, deed of trust, loan 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 will such actions result in any violation of any of its organizational documents (in the case of non-individual Selling Stockholders) or 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 or the property or assets of the Selling Stockholder; and, except for the registration of the Stock under the Securities Act and such consents, approvals, authorizations, registrations or qualifications as may be required under the Exchange Act, by the National Association of Securities Dealers, Inc. Act and under applicable state securities laws in connection with the purchase and distribution of the Stock by the Underwriters, no consent, approval, authorization or order of, or filing or registration with, any such court or governmental agency or body 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.
(fe) The Stock Registration Statement 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 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 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 sold by stated therein or necessary to make the Selling Stockholder hereunder, which statements therein not misleading; PROVIDED that no representation or warranty is represented by made as to information contained in or omitted from the certificates held Registration Statement or the Prospectus in custody for the Selling Stockholder, is subject reliance upon and in conformity with written information furnished to the interest of Company through the Underwriters, the arrangements made Representatives by the Selling Stockholder for such custody are to that extent irrevocable, and the obligations of the Selling Stockholder hereunder shall not be terminated by any act of the Selling Stockholder, by operation of law, by the death or incapacity on behalf of any individual 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 eventUnderwriter specifically for inclusion therein.
(gf) The Selling Stockholder has no reason to believe that the representations and warranties of the Company contained in Section 1 hereto are not materially true and correct, is familiar with the Registration Statement and the Prospectus (as amended or supplemented) and has no knowledge of any material fact, condition or information not disclosed in the Registration Statement, as of the effective date, or the Prospectus (or any amendment or supplement thereto), as of the applicable filing date, which has adversely affected or may adversely affect the business of the Company and is not prompted to sell shares of Common Stock by any information concerning the Company that which is not set forth in the Pricing Disclosure PackageRegistration Statement and the Prospectus.
(hg) The Selling Stockholder has not taken and will not take, directly or indirectly, any action which is designed to or which has constituted or 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 of the Stock.
(h) The Selling Stockholder has not distributed and, prior to the later of (i) the First Delivery Closing Date and (ii) the completion of the distribution of the Stock, will not distribute any offering material in connection with the offering and sale of the Stock other than the Registration Statement or any amendment thereto, any Preliminary Prospectus or the Prospectus or any amendment or supplement thereto, or other materials, if any permitted by the Act.
Appears in 1 contract
Samples: Underwriting Agreement (CVC Inc)
Representations, Warranties and Agreements of the Selling Stockholders. 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 Underwriters) has used or referred to any “free writing prospectus” (as defined in Rule 405), 405 under the Securities Act) relating to the Stock;.
(b) The Selling Stockholder has, and immediately prior to any Delivery Date on which the Selling Stockholder is selling shares of Stock, the Selling Stockholder will have 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”) the shares of Stock to be sold by the Selling Stockholder hereunder on such Delivery Datein respect thereof, free and clear of all liens, encumbrances, equities equities, community property rights, restrictions on transfer or claims; and upon .
(c) Upon payment for the Stock to be sold by such Selling Stockholder, delivery of such shares Stock, as directed by the Underwriters, to Cede & Co. (“Cede”) or such other nominee as may be designated by The Depository Trust Company (“DTC”), registration of such Stock in the name of Cede or such other nominee and payment therefor pursuant hereto, the crediting of such Stock on the books of DTC to securities accounts of the Underwriters (i) DTC will acquire good and valid marketable title to such shares, the Stock free and clear of all liens, encumbrances, equities equities, community property rights, restrictions on transfer or claims, (ii) DTC shall be a “protected purchaser” of such Stock within the meaning of Xxxxxxx 0 000 xx xxx XXX, (xxx) under Section 8 501 of the UCC, the Underwriters will pass acquire a valid security entitlement in respect of such Stock, and (iv) an action based on an adverse claim to such securities entitlement, whether framed in conversion, replevin, constructive trust, equitable lien or other theory may not be successfully asserted against the Underwriters with respect to such security entitlement. For purposes of this representation, such Selling Stockholder may assume that when such payment, delivery and crediting occur, (x) such 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, bylaws and applicable law, (y) DTC will be registered as a “clearing corporation” within the meaning of Section 8 102 of the UCC, and (z) appropriate entries to the several Underwriters.
(c) 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 the Company, as custodian (the “Custodian”), for delivery under this Agreement, certificates in negotiable form (with signature guaranteed by a commercial bank or trust company having an office or correspondent in the United States or a member firm accounts of the New York or American Stock Exchanges) representing several Underwriters on the shares records of Stock DTC will have been made pursuant to be sold by the Selling Stockholder hereunderUCC.
(d) The Selling Stockholder has duly full right, power and irrevocably executed and delivered a power of attorney (the “Power of Attorney” andauthority, together with all other similar agreements executed by the other Selling Stockholderscorporate or otherwise, the “Powers of Attorney”) appointing Sxxxxxx X. Xxxxxxx and one or more other persons, as attorneys-in-fact, with full power of substitution, and with full authority (exercisable by any one or more of them) to execute and deliver enter into this Agreement and to take such other action as may be necessary or desirable to carry out the provisions hereof on behalf of the Selling StockholderAgreement.
(e) The Selling Stockholder has power and authority under its limited partnership or similar organization agreement to enter into this Agreement, the Power of Attorney and the Custody Agreement; this This Agreement has been duly and validly authorized, executed and delivered by or on behalf of the Selling Stockholder; .
(f) The sale of the Stock by the Selling Stockholder, the execution, delivery and performance of this 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 do not and thereby will not (i) conflict with or result in a material breach or violation of any of the terms or provisions of, or constitute a material default under, any indenture, mortgage, deed of trust, loan agreement agreement, 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, nor will such actions (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 of its organizational documents (in the case of non-individual Selling Stockholders) or any material 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 such Selling Stockholder; and’s ability to perform its obligations under this Agreement.
(g) No consent, approval, authorization or order of, or filing or registration with, any court or governmental agency or body having jurisdiction over the Selling 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 by the Selling Stockholder and the consummation by the Selling Stockholder of the transactions contemplated hereby, except for the registration of the Stock under the Securities Act and such consents, approvals, authorizations, orders, filings, registrations or qualifications as may be required under the Exchange Act, by the National Association rules and regulations of Securities Dealers, Inc. FINRA and under 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 distribution sale of the Stock by the Underwriters, no consent, approval, authorization or order of, or filing or registration with, any such court or governmental agency or body 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.
(fh) The Stock to be sold by To the Selling Stockholder hereunder, which is represented by the certificates held in custody for the Selling Stockholder, is subject to the interest of the Underwriters, the arrangements made by the Selling Stockholder for such custody are to that extent irrevocable, and the obligations of the Selling Stockholder hereunder shall not be terminated by any act 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 operation of law, by the death or incapacity on behalf of any individual 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 such Selling Stockholder orfurnished to the Company by such Selling Stockholder expressly for use in the Registration Statement, it being understood and agreed that, as to each Selling Stockholder, the only such information furnished to the Company by such Selling Stockholder consists of the name of such Selling Stockholder, the number of securities offered by such Selling Stockholder, and the address and other information with respect to such Selling Stockholder (excluding percentages) that appear in the table and corresponding footnotes under the caption “Principal and Selling Stockholders” (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 or as of the applicable Delivery Date, contain an untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in the case light of a trustthe 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 Prospectus in reliance upon and in conformity with written information furnished to the Company through the Representatives by the death or incapacity on behalf of any executor 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 trustee or omissions made in reliance upon and in conformity with written information relating to such Selling Stockholder furnished to the termination Company by such Selling Stockholder expressly for use in the Prospectus, it being understood and agreed that, as to each Selling Stockholder, the only such information contained in the Prospectus consists of such trust, or the occurrence of any other eventSelling Stockholder Information.
(gj) 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 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 this Section 2(j) are limited to statements or omissions made in reliance upon and in conformity with written information relating to such Selling Stockholder furnished to the Company by such Selling Stockholder expressly for use in the Pricing Disclosure Package, it being understood and agreed that, as to each 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 such Selling Stockholder furnished to the Company by such Selling Stockholder expressly for use in the Pricing Disclosure Package or in any Issuer Free Writing Prospectus listed in Schedule IV hereto, it being understood and agreed that, as to each Selling Stockholder, the only such information contained in the Pricing Disclosure Package or in any Issuer Free Writing Prospectus listed in Schedule IV hereto consists of the Selling Stockholder Information.
(l) The Selling Stockholder is not prompted (1) an employee benefit plan subject to sell shares Title I of Common Stock 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 information concerning the Company that is not set forth in the Pricing Disclosure Package.
(h) The officer of any Selling Stockholder has not taken and will not take, directly delivered to the Representatives or indirectly, any action which is designed to or which has constituted or which might reasonably be expected to cause or result counsel for the Underwriters in connection with the stabilization or manipulation offering of the price of any security of the Company Stock shall be deemed a representation and warranty by such Selling Stockholder, as to facilitate the sale or resale of the shares of the Stockmatters covered thereby, to each Underwriter.
Appears in 1 contract
Samples: Underwriting Agreement (Allegro Microsystems, Inc.)
Representations, Warranties and Agreements of the Selling Stockholders. Each 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 Underwriters) has used or referred to any “free writing prospectus” (as defined in Rule 405), relating to the Stock;
(b) The Selling Stockholder has, and immediately prior to any the First Delivery Date on which the Selling Stockholder is selling shares of Stock, (as defined in Section 5 hereof) the Selling Stockholder will have 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”) to the shares of 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, will pass to the several Underwriters.
(cb) 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 the CompanyNorwest Bank Minnesota N.A., as custodian (the “"Custodian”"), for delivery under this Agreement, certificates in negotiable form (with signature guaranteed by a commercial bank or trust company having an office or correspondent in the United States or a member firm of the New York or American Stock Exchanges) representing the shares of Stock to be sold by the Selling Stockholder hereunder.
(dc) The Selling Stockholder has duly and irrevocably executed and delivered a power of attorney (the “"Power of Attorney” " and, together with all other similar agreements executed by the other Selling Stockholders, the “"Powers of Attorney”") appointing Sxxxxxx X. Xxxxxxx the Custodian and one or more other persons, as attorneys-in-fact, with full power of substitution, and with full authority (exercisable by any one or more of them) to execute and deliver this Agreement and to take such other action as may be necessary or desirable to carry out the provisions hereof on behalf of the Selling Stockholder.
(ed) The Selling Stockholder has full right, power and authority under its limited partnership or similar organization agreement to enter into this Agreement, the Power of Attorney and the Custody Agreement; this Agreement has been duly and validly authorized, executed and delivered by or on behalf of the Selling Stockholder; the execution, delivery and performance of this 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 will not conflict with or result in a material breach or violation of any of the terms or provisions of, or constitute a material default under, any indenture, mortgage, deed of trust, loan 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 will such actions result in any violation of any the provisions of its organizational documents (in the case charter or by-laws of non-individual the Selling Stockholders) Stockholder, the articles of partnership of the Selling Stockholder or any material violation the deed of trust of the Selling Stockholder, as applicable, or 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 for the registration of the Stock under the Securities Act and such consents, approvals, authorizations, registrations or qualifications as may be required under the Exchange Act, by the National Association of Securities Dealers, Inc. Act and under applicable state securities laws in connection with the purchase and distribution of the Stock by the Underwriters, no consent, approval, authorization or order of, or filing or registration with, any such court or governmental agency or body 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.
(fe) The Stock to be sold All information furnished by or on behalf of the Selling Stockholder hereunderin writing expressly for use in the Registration Statement and Prospectus, which is represented including, without limitation, information concerning the shares of Common Stock of the Company held by the certificates held in custody for the Selling Stockholder, is subject to the interest of the Underwriters, the arrangements made by the Selling Stockholder for such custody are to that extent irrevocable, and the obligations of the Selling Stockholder hereunder shall not be terminated by any act of the Selling Stockholder, by operation of law, by the death or incapacity of any individual 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.
(g) The Selling Stockholder is not prompted to sell shares of Common Stock by any information concerning the Company that is not as set forth in the Pricing Disclosure PackageProspectus under the caption "Principal and Selling Stockholders," is true and correct in all material respects and does not contain any untrue statement of material fact or omit to state any material fact necessary to make such information not misleading. The Selling Stockholder has no reason to believe that the Registration Statement 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 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; provided that no representation or warranty is made as to information contained in or omitted from the Registration Statement or the Prospectus in reliance upon and in conformity with written information furnished to the Company through the Representatives by or on behalf of any Underwriter specifically for inclusion therein.
(hf) The Selling Stockholder has not taken and will not take, directly or indirectly, any action which is designed to or which has constituted or 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 of the Stock.
Appears in 1 contract
Samples: Underwriting Agreement (Tularik Inc)
Representations, Warranties and Agreements of the Selling Stockholders. 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 Underwriters) has used or referred to any “free writing prospectus” (as defined in Rule 405405 of the Rules and Regulations), relating to the Stock;.
(b) The Selling Stockholder has, and immediately prior to any Delivery Date on which the Selling Stockholder is selling shares of Stock, the Selling Stockholder will have 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 of Stock to be sold by the Selling Stockholder hereunder on such Delivery Date, free and clear of all liens, encumbrances, equities or claims; and upon delivery of such shares and payment therefor pursuant hereto, good and valid title to such shares, free and clear of all liens, encumbrances, equities or claims, will pass to the several Underwriters.
(c) 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 the Company, as custodian (the “Custodian”), for delivery under this Agreement, certificates in negotiable form (with signature guaranteed by a commercial bank or trust company having an office or correspondent in the United States or a member firm of the New York or American Stock Exchanges) representing the shares of Stock to be sold by the Selling Stockholder hereunder.
(d) The Selling Stockholder has duly and irrevocably executed and delivered a power of attorney (the “Power of Attorney” and, together with all other similar agreements executed by the other Selling Stockholders, the “Powers of Attorney”) appointing Sxxxxxx X. Xxxxxxx and one or more other persons, as attorneys-in-fact, with full power of substitution, and with full authority (exercisable by any one or more of them) to execute and deliver this Agreement and to take such other action as may be necessary or desirable to carry out the provisions hereof on behalf of the Selling Stockholder.
(e) The Selling Stockholder has power and authority under its limited partnership or similar organization agreement to enter into this Agreement, the Power of Attorney and the Custody Agreement; this Agreement has been duly and validly authorized, executed and delivered by or on behalf of the Selling Stockholder; the execution, delivery and performance of this 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 will not conflict with or result in a material breach or violation of any of the terms or provisions of, or constitute a material default under, any indenture, mortgage, deed of trust, loan 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 will such actions result in any violation of any of its organizational documents (in the case of non-individual Selling Stockholders) or 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 or the property or assets of the Selling Stockholder; and, except for the registration of the Stock under the Securities Act and such consents, approvals, authorizations, registrations or qualifications as may be required under the Exchange Act, by the National Association of Securities Dealers, Inc. and under applicable state securities laws in connection with the purchase and distribution of the Stock by the Underwriters, no consent, approval, authorization or order of, or filing or registration with, any such court or governmental agency or body 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.
(f) The Stock to be sold by the Selling Stockholder hereunder, which is represented by the certificates held in custody for the Selling Stockholder, hereunder is subject to the interest of the Underwriters, the arrangements made by the Selling Stockholder for such custody are to that extent irrevocable, Underwriters and the obligations of the Selling Stockholder hereunder shall not be terminated by any act of the Selling Stockholder, by operation of law, by the death or incapacity of any individual 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.
(gd) Upon payment for the Stock to be sold by such Selling Stockholder, delivery of such Stock, as directed by the Underwriters, to Cede & Co. (“Cede”) or such other nominee as may be designated by The Depository Trust Company (“DTC”), registration of such Stock in the name of Cede or such other nominee and the crediting of such Stock on the books of DTC to securities accounts of the Underwriters (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 Stock), (i) DTC shall be a “protected purchaser” of such Stock within the meaning of Section 8-303 of the UCC, (ii) under Section 8-501 of the UCC, the Underwriters will acquire a valid security entitlement in respect of such Stock and (iii) no action based on any “adverse claim,” within the meaning of Section 8-102 of the UCC, to such Stock may be asserted against the Underwriters with respect to such security entitlement. For purposes of this representation, 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 certificate of incorporation, bylaws and applicable law, (B) DTC will be registered as a “clearing corporation” within the meaning of Section 8-102 of the UCC and (C) appropriate entries to the accounts of the several Underwriters on the records of DTC will have been made pursuant to the UCC.
(e) The Selling Stockholder has full right, power and authority, corporate or otherwise, to enter into this Agreement.
(f) This Agreement has been duly and validly authorized, executed and delivered by or on behalf of the Selling Stockholder.
(g) The execution, delivery and performance of this Agreement by the Selling Stockholder and the consummation by the Selling Stockholder of the transactions contemplated hereby do not and will not (i) conflict with or result in a breach or violation of any of the terms or provisions of, or constitute a default under, any indenture, mortgage, deed of trust, loan agreement, license or other agreement or instrument to which the Selling Stockholder is not prompted a party or by which the Selling Stockholder is bound or to sell shares which any of Common the property or assets of the Selling Stockholder is subject, (ii) result in any violation of the provisions of the charter or by-laws, partnership agreement, deed of trust 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 clauses (i) or (iii), for such conflicts, breaches, violations or defaults as could not, individually or in the aggregate, reasonably be expected to have a material adverse effect on the ability of such Selling Stockholder to consummate the transactions contemplated by this Agreement.
(h) 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 by the Selling Stockholder and the consummation by the Selling Stockholder of the transactions contemplated hereby, except for the registration of the Stock under the Securities Act and such consents, approvals, authorizations, registrations or qualifications as may be required under the Exchange Act and applicable state or foreign securities laws in connection with the purchase and sale of the Stock by any information concerning the Company that is not set forth Underwriters.
(i) To the knowledge of the Selling Stockholder, none of (i) the Registration Statement, as of the Effective Date, (ii) in the Prospectus, as of its date and on the applicable Delivery Date, (iii) in the Pricing Disclosure Package, as of the Applicable Time or (iv) the documents incorporated by reference in any Preliminary Prospectus or the Prospectus, as of the date they were 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 not misleading, but in each case only to the extent that the untrue statement or omission has been made or incorporated therein by reference in reliance upon and in conformity with written information furnished to the Company by such Selling Stockholder specifically stating that it is for use in preparation thereof.
(hj) The Selling Stockholder has not taken and will not take, directly or indirectly, any action which that is designed to or which that has constituted or which might that could reasonably be expected to cause or result in the stabilization or manipulation of the price of any security of the Company to facilitate the sale or resale of the shares of the Stock.
(k) The Selling Stockholder is not prompted to sell shares of Common Stock by any information concerning the Company that is not set forth in the Registration Statement, the Pricing Disclosure Package and the Prospectus. Any certificate signed by any officer of any Selling Stockholder and delivered to the Representative or counsel for the Underwriters in connection with the offering of the Stock shall be deemed a representation and warranty by such Selling Stockholder, as to matters covered thereby, to each Underwriter.
Appears in 1 contract
Representations, Warranties and Agreements of the Selling Stockholders. Each 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 Underwriters) has used or referred to any “free writing prospectus” (as defined in Rule 405), relating to the Stock;
(b) The Selling Stockholder has, and immediately prior to any the First Delivery Date on which the Selling Stockholder is selling shares of Stock, (as defined in Section 5 hereof) 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”) to the shares of 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, will pass to the several Underwriters.
(cb) 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 the American Stock Transfer & Trust Company, as custodian (the “"Custodian”"), for delivery under this Agreement, certificates in negotiable form (with signature guaranteed by a commercial bank or trust company having an office or correspondent in the United States or a member firm of the New York or American Stock Exchanges) representing the shares of Stock to be sold by the Selling Stockholder hereunder.
(dc) The Selling Stockholder has duly and irrevocably executed and delivered a power of attorney (the “"Power of Attorney” " and, together with all other similar agreements executed by the other Selling Stockholders, the “"Powers of Attorney”") appointing Sxxxxxx X. Xxxxxxx the custodian and one or more other persons, as attorneys-in-fact, with full power of substitution, and with full authority (exercisable by any one or more of them) to execute and deliver this Agreement and to take such other action as may be necessary or desirable to carry out the provisions hereof on behalf of the Selling Stockholder.
(ed) The Selling Stockholder has full right, power and authority under its limited partnership or similar organization agreement to enter into this Agreement, the Power of Attorney and the Custody Agreement; this Agreement has been duly and validly authorized, executed and delivered by or on behalf of the Selling Stockholder; the execution, delivery and performance of this 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 will not conflict with or result in a material breach or violation of any of the terms or provisions of, or constitute a material default under, any indenture, mortgage, deed of trust, loan 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 will such actions result in any violation of any of its organizational documents (in the case of non-individual Selling Stockholders) or 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 or the property or assets of the Selling Stockholder; and, except for the registration of the Stock under the Securities Act and such consents, approvals, authorizations, registrations or qualifications as may be required under the Exchange Act, by the National Association of Securities Dealers, Inc. Act and under applicable state securities laws in connection with the purchase and distribution of the Stock by the Underwriters, no consent, approval, authorization or order of, or filing or registration with, any such court or governmental agency or body 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.
(fe) The Stock Registration Statement and the Prospectus and any further amendments or supplements to the Registration Statement or the Prospectus, when they become effective or are filed with the Commission, as the case may be, do not and will not, as of the applicable effective date (as to the Registration Statement and any amendment thereto) and as of the applicable filing date (as to the Prospectus and any amendment or supplement thereto in light of the circumstances in which they were made) contain an untrue statement of a material fact or omit to state a material fact required to be sold by stated therein or necessary to make the Selling Stockholder hereunderstatements therein not misleading; provided, which that no representation or warranty is represented by made as to information contained in or omitted from the certificates held Registration Statement or the Prospectus in custody for the Selling Stockholder, is subject reliance upon and in conformity with written information furnished to the interest Company by or on behalf of the Underwritersany Underwriter specifically for inclusion therein; and, the arrangements made by the Selling Stockholder for such custody are provided further that this paragraph (e) shall apply to that extent irrevocable, and the obligations each of the Selling Stockholders only to the extent that the statements or omissions from the Registration Statement or Prospectus were based on written information provided by such Selling Stockholders specifically for inclusion therein.
(f) Each Selling Stockholder hereunder shall listed on Schedule A hereto 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 be terminated by any act disclosed in the Registration Statement, as of the Selling Stockholder, by operation of law, by the death or incapacity of any individual Selling Stockholder or, in the case of a trust, by the death or incapacity of any executor or trustee or the termination of such trusteffective date, or the occurrence Prospectus (or any amendment or supplement thereto), as of any other eventthe applicable filing date, which has caused a Material Adverse Effect or would reasonably be expected to cause a Material Adverse Effect.
(g) The Selling Stockholder is not prompted to sell shares of Common Stock by any material non-public information concerning the Company that is not set forth in the Pricing Disclosure PackageCompany.
(h) The Selling Stockholder has not taken and will not take, directly or indirectly, any action which is designed to or which has constituted or 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 of the Stock.
Appears in 1 contract
Representations, Warranties and Agreements of the Selling Stockholders. (a) Each Selling Stockholder Stockholder, severally representsand not jointly, represents and warrants to, and agrees with the Underwriters that:
(a) Neither the Selling Stockholder nor any person acting on behalf of the Selling Stockholder (other than, if applicable, the Company and the Underwriters) has used or referred to any “free writing prospectus” (as defined in Rule 405), relating to the Stock;
(b) The Selling Stockholder has, and immediately prior to any the applicable Delivery Date on which the Selling Stockholder is selling shares of Stock, (as defined in Section 5 below) the Selling Stockholder will have have, good and valid title to, or a valid “security entitlement” within to the meaning of Section 8-501 of the New York Uniform Commercial Code (the “UCC”) the shares of Stock Securities to be sold by the Selling Stockholder hereunder on such Delivery Datedate, free and clear of all liens, encumbrances, equities or claimsLiens; 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 claimsLiens, will pass to the several Underwriters.
(cb) 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 the American Stock Transfer & Trust Company, as custodian (the “"Custodian”"), for delivery delivery, in accordance with the Custody Agreement, under this Agreement, 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 New York or American Stock Exchanges) representing the shares of Stock Securities to be sold by the Selling Stockholder hereunder.
(dc) The Selling Stockholder has duly and irrevocably executed and delivered a power of attorney (the “"Power of Attorney” " and, together with all other similar agreements instruments executed by the other Selling Stockholders, the “"Powers of Attorney”") appointing Sxxxxxx X. Xxxxxxx and one or more other persons, the persons named therein as attorneys-in-fact, with full power of substitution, and with full authority (exercisable by any one or more of them) to execute and deliver this Agreement on such Selling Stockholder's behalf and to take such other action as may be necessary or desirable to carry out the provisions hereof on behalf of the Selling Stockholder, in accordance with the Custody Agreement and the applicable Power of Attorney.
(ed) The Selling Stockholder has all necessary right, power and authority under its limited partnership or similar organization agreement to enter into this Agreement, the Power of Attorney and the Custody Agreement; this Agreement has been duly and validly authorized, executed and delivered by or on behalf of the Selling Stockholder; the execution, delivery and performance of this Agreement, the Power of Attorney and the Custody Agreement by by, or on behalf of, the Selling Stockholder and the consummation by the Selling Stockholder of the transactions contemplated hereby and thereby will not (A) conflict with or result in a material breach or violation of any of the terms or provisions of, or constitute a material default under, any indenture, mortgage, deed of trust, loan agreement agreement, 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 that could reasonably be expected to impair the Selling Stockholder's ability to perform its obligations hereunder, nor will such actions or (B) result in any violation of any of its organizational documents (in the case of non-individual Selling Stockholders) or 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 or the property or assets of the Selling Stockholder; and, except for .
(e) Except (i) with respect to the registration of the Stock Securities under the Securities Act Act, (ii) as required by applicable state securities or "blue sky" laws and (iii) for such consents, approvals, authorizations, orders, filings or registrations which have been obtained or qualifications as may be required under the Exchange Act, by the National Association of Securities Dealers, Inc. and under applicable state securities laws in connection with the purchase and distribution of the Stock by the Underwritersmade, 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 any of its properties or assets 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.
(f) The Stock Registration Statement, as of the Effective Date, did not contain an untrue statement of a material fact or omit to state a material fact required to be sold by stated therein or necessary to make the statements therein not misleading, and the Prospectus and any amendment or supplement thereto, as of their respective dates and as of the applicable Delivery Date (as defined in Section 5 below) did not and do not contain an untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in light of the circumstances under which they were made, not misleading; provided that the Selling Stockholder hereunder, which is represented by makes no representation or warranty as to information contained in or omitted from the certificates held Registration Statement or the Prospectus in custody for the Selling Stockholder, is subject reliance upon and in conformity with written information furnished to the interest Company by or on behalf of the Underwriters, the arrangements made by the any Underwriter specifically for inclusion therein (which information is described in Section 10(f)); and provided further that this paragraph (d) shall apply to such Selling Stockholder for only to the extent that the statements or omissions from the Registration Statement or the Prospectus were based on written information provided by such custody are to that extent irrevocable, and the obligations of the Selling Stockholder hereunder shall not be terminated by any act of the Selling Stockholder, by operation of law, by the death or incapacity of any individual Selling Stockholder or, specifically for inclusion therein (which information is described 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 eventSection 10(g)).
(g) The Selling Stockholder is not prompted to sell shares of Common Stock by any information concerning the Company that is not set forth in the Pricing Disclosure Package.
(h) The Selling Stockholder has not taken and will not take, directly or indirectly, any action which is (A) designed to or which has constituted or 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 Securities or (B) prohibited by Regulation M under the Securities Act.
(h) Each Selling Stockholder is not prompted to sell shares of Common Stock by any material, non-public information concerning the StockCompany that is not set forth or incorporated by reference in the Registration Statement and the Prospectus. Each certificate signed by or on behalf of a Selling Stockholder and delivered to the Underwriters or counsel to the Underwriters shall be deemed to be a representation and warranty by such Selling Stockholder to the Underwriters as to the matters covered thereby.
Appears in 1 contract
Representations, Warranties and Agreements of the Selling Stockholders. Each Selling Stockholder Stockholder, severally and not jointly, represents, warrants and agrees that:
(a) Neither the The Selling Stockholder nor any person acting on behalf of has placed in custody under a custody agreement (the "CUSTODY AGREEMENT" and, together with all other similar agreements executed by the other Selling Stockholder (other than, if applicableStockholders, the Company and "CUSTODY AGREEMENTS") with The Bank of New York, as custodian (the Underwriters) has used or referred to any “free writing prospectus” (as defined in Rule 405"CUSTODIAN"), relating to for delivery under this Agreement, certificates of Series B convertible preferred stock in negotiable form (with signature notarized or guaranteed by a participant in the Stock;Securities Transfer Agents Medallion Program, the New York Stock Exchange Medallion Signature Program or the Stock Exchange
(b) The Selling Stockholder has, and immediately prior to any the applicable Delivery Date on which the Selling Stockholder is selling shares of Stock, the Selling Stockholder will have 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 of Series B convertible preferred stock to be converted into Stock to be sold by the Selling Stockholder hereunder on such Delivery Date, free and clear of all liens, encumbrances, equities or claims; and upon delivery of such shares and payment therefor pursuant hereto, good and valid title to such shareshereunder, free and clear of all liens, encumbrances, equities or claims, will pass to except for any liens, encumbrances, equities or claims arising hereunder or under the several Underwriters.Custody Agreement;
(c) The Selling Stockholder has placed in custody under a custody agreement (Upon payment for the “Custody Agreement” and, together with all other similar agreements executed by the other Selling Stockholders, the “Custody Agreements”) with the Company, as custodian (the “Custodian”), for delivery under this Agreement, certificates in negotiable form (with signature guaranteed by a commercial bank or trust company having an office or correspondent in the United States or a member firm of the New York or American Stock Exchanges) representing the shares of Stock to be sold by such Selling Stockholder, delivery of such Stock, as directed by the Underwriters, to Cede & Co. ("CEDE") or such other nominee as may be designated by The Depository Trust Company ("DTC"), registration of such Stock in the name of Cede or such other nominee and the crediting of such Stock on the books of DTC to securities accounts of the Underwriters (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 Stock), (i) DTC shall be a "protected purchaser" of such Stock within the meaning of Section 8-303 of the UCC, (ii) under Section 8-501 of the UCC, the Underwriters will acquire a valid security entitlement in respect of such Stock and (iii) no action based on any "adverse claim", within the meaning of Section 8-102 of the UCC, to such Stock may be asserted against the Underwriters with respect to such security entitlement. For purposes of this representation, such Selling Stockholder hereundermay assume that when such payment, delivery and crediting occur, (A) such 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, 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 accounts of the several Underwriters on the records of DTC will have been made pursuant to the UCC.
(d) The Selling Stockholder has duly and irrevocably executed and delivered a power of attorney (the “Power of Attorney” "POWER OF ATTORNEY" and, together with all other similar agreements executed by the other Selling Stockholders, the “Powers of Attorney”"POWERS OF ATTORNEY") appointing Sxxxxxx X. Xxxxxxx the Custodian and one or more other personsMessrs. Gregory M. Case, as attorneysJohn F. Megxxx xxx Xxristopher K. Xxxxxx xx xxxorneyx-inxx-factxxxx, with xxxx full power of substitution, and with full authority (exercisable by any one or more of them) to execute and deliver this Agreement and to take such other action as may be necessary or desirable to carry out the provisions hereof on behalf of the Selling Stockholder.
(e) The Selling Stockholder has full right, power and authority under its limited partnership authority, corporate or similar organization agreement otherwise, to enter into this Agreement, the Power of Attorney and the Custody Agreement; this Agreement has been duly and validly authorized, executed and delivered by or on behalf of the Selling Stockholder; the . The execution, delivery and performance of this 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 material breach or violation of any of the terms or provisions of, or constitute a material default under, any indenture, mortgage, deed of trust, loan agreement 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, nor will such actions (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 of its organizational documents (in the case of non-individual Selling Stockholders) or 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 or the property or assets of the Selling Stockholder; and, except in the case of clauses (i) and (iii) for such conflicts, breaches, violations or defaults as would not, individually or in the registration aggregate, reasonably be expected to have a material adverse effect on the ability of such Selling Stockholder to consummate the Stock under the Securities Act and transactions contemplated by this Agreement.
(f) Except for such consents, approvals, authorizations, orders, filings, registrations or qualifications as may be required under the Exchange Securities Act, by the National Association rules and regulations of Securities Dealers, Inc. and under the New York Stock Exchange or applicable state securities laws in connection with the purchase and distribution sale of the Stock by the Underwriters, no consent, approval, authorization or order of, or filing or registration with, any such court or governmental agency or body having jurisdiction over the Selling Stockholder or the property or assets of the Selling Stockholder 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.
(fg) This Agreement has been duly and validly authorized, executed and delivered by or on behalf of the Selling Stockholder.
(h) The Stock to be sold Power of Attorney and the Custody Agreement have been duly and validly authorized, executed and delivered by or on behalf of the Selling Stockholder hereunder, which is represented by the certificates held in custody for the Selling Stockholder, is subject to the interest of the Underwriters, the arrangements made by the Selling Stockholder for such custody are to that extent irrevocable, and the constitute valid and legally binding obligations of the Selling Stockholder hereunder shall not be terminated by any act of enforceable against the Selling StockholderStockholder in accordance with their terms, by operation 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, by the death or incapacity ) and (iii) an implied covenant of any individual 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 eventgood faith and fair dealing.
(g) The Selling Stockholder is not prompted to sell shares of Common Stock by any information concerning the Company that is not set forth in the Pricing Disclosure Package.
(hi) The Selling Stockholder has not taken and will not take, directly or indirectly, any action which that is designed to or which has constituted or which might could reasonably be expected to cause or result in the stabilization or manipulation of the price of any security of the Company to facilitate the sale or resale of the shares of the Stock.
(j) Except as disclosed in the Prospectus, there are no contracts, agreements or understandings between the Selling Stockholder and any person that would give rise to a valid claim against the Selling Stockholder or any Underwriter for a brokerage commission, finder's fee or other like payment in connection with the issuance and sale of the Stock contemplated by this Agreement.
(k) The Selling Stockholder has not distributed and, prior to the later to occur of any Delivery Date and completion of the distribution of the Stock, will not distribute any offering material in connection with the offering and sale of the Stock other than the Preliminary Prospectus and the Prospectus.
(l) The Selling Stockholder is not aware of any material information concerning the Company that is not set forth in the Registration Statement and the Prospectus and which has prompted such Selling Stockholder to sell shares of the Stock.
(m) The Registration Statement, at the Effective Time and on the applicable Delivery Date, and the Prospectus, as of its date and on the applicable Delivery Date, do not and will not contain an untrue statement of a material fact with respect to such Selling Stockholder or omit to state a material fact with respect to such Selling Stockholder required to be stated therein or necessary to make the statements therein (in the case of the Prospectus, in the light of the circumstances under which they were made) not misleading, which untrue statement or omission was made in reliance upon and in conformity with written information furnished to the Company by or on behalf of the Selling Stockholder specifically for inclusion therein. Any certificate signed by any officer of any Selling Stockholder and delivered to the Representatives or counsel for the Underwriters in connection with the offering of the Stock shall be deemed a representation and warranty by such Selling Stockholder, as to matters covered thereby, to each Underwriter.
Appears in 1 contract
Samples: Underwriting Agreement (Phillips Van Heusen Corp /De/)
Representations, Warranties and Agreements of the Selling Stockholders. Each Selling Stockholder Stockholder, severally representsand not jointly, represents and warrants to and agrees with each Underwriter and the Company that:
(a) Neither the Such Selling Stockholder nor any person acting on behalf of the Selling Stockholder (other than, if applicable, the Company and the Underwriters) has used or referred to any “free writing prospectus” (as defined in Rule 405), relating to the Stock;
(b) The Selling Stockholder now has, and immediately prior on the Closing Date will have, valid marketable title to any Delivery Date on which the Selling Stockholder is selling shares Shares, and in the case of StockWarburg, to the Selling Stockholder will have good and valid title toStock Purchase Warrant, or a valid “security entitlement” within the meaning of Section 8-501 of the New York Uniform Commercial Code (the “UCC”) the shares of Stock to be sold by the such Selling Stockholder hereunder on such Delivery DateStockholder, free and clear of all liensany pledge, encumbranceslien, equities security interest, encumbrance, claim or claimsequitable interest other than pursuant to this Agreement; and upon delivery of such shares Shares, and in the case of Warburg, the Stock Purchase Warrant, hereunder and payment therefor pursuant heretoof the purchase price as herein contemplated, good and each of the Underwriters will obtain valid marketable title to the securities purchased by it from such sharesSelling Stockholder, free and clear of all liensany pledge, encumbranceslien, equities security interest pertaining to such Selling Stockholder or claimssuch Selling Stockholder's property, will pass encumbrance, claim or equitable interest, including any liability for estate or inheritance taxes, or any liability to the several Underwritersor claims of any creditor, devisee, legatee or beneficiary of such Selling Stockholder.
(cb) The Such Selling Stockholder has placed duly authorized (if applicable), executed and delivered, in custody under the form heretofore furnished to the Representatives, a custody agreement Selling Stockholde's Irrevocable Power of Attorney (the “"Power of Attorney") appointing Xxxxxxxxx Xxxxxx and Xxx Xxxxxx as attorneys-in-fact (collectively, the "Attorneys" and individually, an "Attorney") and a Letter of Transmittal and Custody Agreement (the "Custody Agreement” and, together with all other similar agreements executed by the other Selling Stockholders, the “Custody Agreements”") with the CompanyThe Bank of New York, as custodian (the “"Custodian”"), for delivery under this Agreement, certificates in negotiable form (with signature guaranteed by a commercial bank or trust company having an office or correspondent in the United States or a member firm ; each of the New York or American Stock Exchanges) representing the shares of Stock to be sold by the Selling Stockholder hereunder.
(d) The Selling Stockholder has duly and irrevocably executed and delivered a power of attorney (the “Power of Attorney” andAttorney and the Custody Agreement constitutes a valid and binding agreement on the part of such Selling Stockholder, together enforceable in accordance with all its terms, except as the enforcement thereof may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or other similar agreements executed laws relating to or affecting creditors' rights generally or by the other general equitable principles; and each of such Selling StockholdersStockholder's Attorneys, the “Powers of Attorney”) appointing Sxxxxxx X. Xxxxxxx and one or more other personsacting alone, as attorneys-in-fact, with full power of substitution, and with full authority (exercisable by any one or more of them) is authorized to execute and deliver this Agreement and the certificate referred to take such other action as may be necessary or desirable to carry out the provisions in Section 7(h) hereof on behalf of such Selling Stockholder, to determine the purchase price to be paid by the several Underwriters to such Selling Stockholder as provided in Section 3 hereof, to authorize the delivery of the Selling StockholderStockholder Shares, and in the case of Warburg, the Stock Purchase Warrant, under this Agreement and to duly endorse (in blank or otherwise) the certificate or certificates representing such Shares, and in the case of Warburg, the Stock Purchase Warrant, or a stock or warrant power or powers, as applicable, with respect thereto, to accept payment therefor, and otherwise to act on behalf of such Selling Stockholder in connection with this Agreement.
(ec) The All consents, approvals, authorizations and orders required for the execution and delivery by such Selling Stockholder has power and authority under its limited partnership or similar organization agreement to enter into this Agreement, of the Power of Attorney and the Custody Agreement, the execution and delivery by or on behalf of such Selling Stockholder of this Agreement and the sale and delivery of the Selling Stockholder Shares, and in the case of Warburg, the Stock Purchase Warrant, under this Agreement (other than, at the time of the execution hereof (if the Registration Statement has not yet been declared effective by the Commission), the issuance of the order of the Commission declaring the Registration Statement effective and such consents, approvals, authorizations or orders as may be necessary under state or other securities or Blue Sky laws) have been obtained and are in full force and effect; such Selling Stockholder, if other than a natural person, has been duly organized and is validly existing in good standing under the laws of the jurisdiction of its organization as the type of entity that it purports to be; and such Selling Stockholder has full legal right, power and authority to enter into and perform its obligations under this Agreement and such Power of Attorney and Custody Agreement, and to sell, assign, transfer and deliver the Shares, and in the case of Warburg, the Stock Purchase Warrant, to be sold by such Selling Stockholder under this Agreement.
(d) Except for the Selling Stockholder Shares and the Stock Purchase Warrant, such Selling Stockholder will not, during the Lock-up Period, effect the Disposition of any Securities now owned or hereafter acquired directly by such Selling Stockholder or with respect to which such Selling Stockholder has or hereafter acquires the power of disposition, otherwise than (i) as a bona fide gift or gifts, provided the donee or donees thereof agree in writing to be bound by this restriction, (ii) as a distribution to partners or shareholders of such Selling Stockholder, provided that the distributees thereof agree in writing to be bound by the terms of this restriction, or (iii) with the prior written consent of BancAmerica Xxxxxxxxx Xxxxxxxx. The foregoing restriction is expressly agreed to preclude the holder of the Securities from engaging in any hedging or other transaction which is designed to or reasonably expected to lead to or result in a Disposition of Securities during the Lock-up Period, even if such Securities would be disposed of by someone other than the Selling Stockholder. Such prohibited hedging or other transactions would including, without limitation, any short sale (whether or not against the box) or any purchase, sale or grant of any right (including, without limitation, any put or call option) with respect to any Securities or with respect to any security (other than a broad-based market basket or index) that includes, relates to or derives any significant part of its value from Securities. Such Selling Stockholder also agrees and consents to the entry of stop transfer instructions with the Company's transfer agent against the transfer of the securities held by such Selling Stockholder except in compliance with this restriction.
(e) Certificates in negotiable form for all Shares (or certificates in negotiable form for all securities which are convertible or exercisable into Shares) to be sold by such Selling Stockholder under this Agreement, together with a stock or warrant power or powers duly endorsed in blank by such Selling Stockholder, have been placed in custody with the Custodian for the purpose of effecting delivery hereunder.
(f) This Agreement has been duly authorized by each Selling Stockholder that is not a natural person and validly authorized, has been duly executed and delivered by or on behalf of the such Selling Stockholder and is a valid and binding agreement of such Selling Stockholder, enforceable in accordance with its terms, except as rights to indemnification hereunder may be limited by applicable law and except as the enforcement hereof may be limited by bankruptcy, insolvency, reorganization, moratorium or other similar laws relating to or affecting creditors' rights generally or by general equitable principles; and the execution, delivery and performance of this Agreement, the Power of Attorney and the Custody Agreement by the Selling Stockholder and the consummation by the Selling Stockholder of the transactions herein contemplated hereby and thereby will not conflict with or result in a material breach or violation of any of the terms or and provisions of, of or constitute a material default underunder any bond, debenture, note or other evidence of indebtedness, or under any lease, contract, indenture, mortgage, deed of trust, loan agreement agreement, joint venture or other agreement or instrument to which the such Selling Stockholder is a party or by which the such Selling Stockholder, or any Selling Stockholder is Shares or the Stock Purchase Warrant, may be bound or or, to which any the best of the property or assets of the such Selling Stockholder is subjectStockholders' knowledge, nor will such actions result in any violation of any of its organizational documents (in the case of non-individual Selling Stockholders) law, order, rule, regulation, writ, injunction, judgment or any material violation decree of any statute or any ordercourt, rule or regulation of any court government or governmental agency or body body, domestic or foreign, having jurisdiction over the such Selling Stockholder or over the property or assets properties of the Selling Stockholder; and, except for the registration of the Stock under the Securities Act and such consents, approvals, authorizations, registrations or qualifications as may be required under the Exchange Act, by the National Association of Securities Dealers, Inc. and under applicable state securities laws in connection with the purchase and distribution of the Stock by the Underwriters, no consent, approval, authorization or order of, or filing or registration with, any such court or governmental agency or body 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.
(f) The Stock to be sold by the Selling Stockholder hereunder, which is represented by the certificates held in custody for the Selling Stockholder, or, if such Selling Stockholder is subject to the interest other than a natural person, result in any violation of any provisions of the Underwriterscharter, the arrangements made by the Selling Stockholder for bylaws or other organizational documents of such custody are to that extent irrevocable, and the obligations of the Selling Stockholder hereunder shall not be terminated by any act of the Selling Stockholder, by operation of law, by the death or incapacity of any individual 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.
(g) The Selling Stockholder is not prompted to sell shares of Common Stock by any information concerning the Company that is not set forth in the Pricing Disclosure Package.
(h) The Such Selling Stockholder has not taken and will not take, directly or indirectly, any action which is designed to or which has constituted or which that might reasonably be expected to cause or result in the stabilization or manipulation of the price of any security of the Company Common Stock to facilitate the sale or resale of the shares Shares.
(h) Such Selling Stockholder has not distributed and will not distribute any prospectus or other offering material in connection with the offering and sale of the StockShares.
(i) All information furnished by or on behalf of such Selling Stockholder relating to such Selling Stockholder, the Selling Stockholder Shares and the Stock Purchase Warrant that is contained in the representations and warranties of such Selling Stockholder in such Selling Stockholder's Power of Attorney or set forth in the Registration Statement or the Prospectus is, and at the time the Registration Statement became or becomes, as the case may be, effective and at all times subsequent thereto up to and on the Closing Date was or will be, true, correct and complete, and does not, and at the time the Registration Statement became or becomes, as the case may be, effective and at all times subsequent thereto up to and on the Closing Date (hereinafter defined) will not, contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make such information not misleading.
(j) Such Selling Stockholder will review the Prospectus and will comply with all agreements and satisfy all conditions on its part to be complied with or satisfied pursuant to this Agreement on or prior to the Closing Date, and will advise one of its Attorneys and BancAmerica Xxxxxxxxx Xxxxxxxx prior to the Closing Date if any statement to be made on behalf of such Selling Stockholder in the certificate contemplated by Section 6(h) would be inaccurate if made as of the Closing Date.
(k) Such Selling Stockholder does not have, or has waived prior to the date hereof, any preemptive right, co-sale right or right of first refusal or other similar right to purchase any of the Shares that are to be sold by the Company or any of the Shares or the Stock Purchase Warrant to be sold by the other Selling Stockholders to the Underwriters pursuant to this Agreement; such Selling Stockholder does not have, or has waived prior to the date hereof, any registration right or other similar right to participate in the offering made by the Prospectus, other than such rights of participation as have been satisfied by the participation of such Selling Stockholder in the transactions to which this Agreement relates in accordance with the terms of this Agreement; and such Selling Stockholder does not own any warrants, options or similar rights to acquire, and does not have any right or arrangement to acquire, any capital stock, rights, warrants, options or other securities from the Company, other than those described in the Registration Statement and the Prospectus.
(l) Such Selling Stockholder is not aware (without having conducted any investigation or inquiry) that any of the representations and warranties of the Company set forth in Section 2 above is untrue or inaccurate in any material respect.
Appears in 1 contract
Samples: Underwriting Agreement (Tsi International Software LTD)
Representations, Warranties and Agreements of the Selling Stockholders. 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 Underwriters) has used or referred to any “free writing prospectus” (as defined in Rule 405), 405 of the Rules and Regulations) relating to the Stock;
(b) The Selling Stockholder has, and immediately prior to any Delivery Date on which the Selling Stockholder is selling shares of Stock, the Selling Stockholder will have 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 of Stock to be sold by the Selling Stockholder hereunder on such Delivery Date, free and clear of all liens, encumbrances, equities or claims; and upon delivery of such shares and payment therefor pursuant hereto, good and valid title to such shares, free and clear of all except for any liens, encumbrances, equities or claims, will pass to claims arising under the several UnderwritersCustody Agreement (as hereinafter defined).
(c) 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 the Company, as custodian (the “Custodian”), for delivery under this Agreement, certificates in negotiable form (with signature guaranteed by a commercial bank or trust company having an office or correspondent in the United States or a member firm of the New York or American Stock Exchanges) representing the shares of Stock to be sold by the Selling Stockholder hereunder.
(d) The Selling Stockholder has duly and irrevocably executed and delivered a power of attorney (the “Power of Attorney” and, together with all other similar agreements executed by the other Selling Stockholders, the “Powers of Attorney”) appointing Sxxxxxx X. Xxxxxxx and one or more other persons, as attorneys-in-fact, with full power of substitution, and with full authority (exercisable by any one or more of them) to execute and deliver this Agreement and to take such other action as may be necessary or desirable to carry out the provisions hereof on behalf of the Selling Stockholder.
(e) The Selling Stockholder has power and authority under its limited partnership or similar organization agreement to enter into this Agreement, the Power of Attorney and the Custody Agreement; this Agreement has been duly and validly authorized, executed and delivered by or on behalf of the Selling Stockholder; the execution, delivery and performance of this 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 will not conflict with or result in a material breach or violation of any of the terms or provisions of, or constitute a material default under, any indenture, mortgage, deed of trust, loan 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 will such actions result in any violation of any of its organizational documents (in the case of non-individual Selling Stockholders) or 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 or the property or assets of the Selling Stockholder; and, except for the registration of the Stock under the Securities Act and such consents, approvals, authorizations, registrations or qualifications as may be required under the Exchange Act, by the National Association of Securities Dealers, Inc. and under applicable state securities laws in connection with the purchase and distribution of the Stock by the Underwriters, no consent, approval, authorization or order of, or filing or registration with, any such court or governmental agency or body 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.
(f) The Stock to be sold by the Selling Stockholder hereunder, which is represented by the certificates held in custody for the Selling Stockholder, is subject to the interest of the UnderwritersUnderwriters and the other Selling Stockholders hereunder, the arrangements made by the Selling Stockholder for such custody of the Stock pursuant to the Custody Agreement are to that extent irrevocable, and the obligations of the Selling Stockholder hereunder shall not be terminated by any act of the Selling Stockholder, by operation of law, by the death or incapacity of any individual 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.
(gd) Upon payment for the Stock to be sold by such Selling Stockholder, delivery of such Stock, as directed by the Underwriters, to Cede & Co. (“Cede”) or such other nominee as may be designated by The Depository Trust Company (“DTC”), registration of such Stock in the name of Cede or such other nominee and the crediting of such Stock on the books of DTC to securities accounts of the Underwriters (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 Stock), (i) DTC shall be a “protected purchaser” of such Stock within the meaning of Section 8‑303 of the UCC, (ii) under Section 8‑501 of the UCC, the Underwriters will acquire a valid security entitlement in respect of such Stock and (iii) no action based on any “adverse claim,” within the meaning of Section 8‑102 of the UCC, to such Stock may be asserted against the Underwriters with respect to such security entitlement. For purposes of this representation, such Selling Stockholder is not prompted to sell shares of Common Stock by any information concerning the Company may assume that is not set forth when such payment, delivery and crediting occur, (A) such Shares will have been registered in the Pricing Disclosure Package.
name of Cede or another nominee designated by DTC, in each case on the Company’s share registry in accordance with its certificate of incorporation, bylaws and applicable law, (hB) The Selling Stockholder has not taken and DTC will not take, directly or indirectly, any action which is designed to or which has constituted or which might reasonably be expected to cause or result in registered as a “clearing corporation” within the stabilization or manipulation meaning of Section 8‑102 of the price of any security of the Company to facilitate the sale or resale of the shares of the Stock.UCC and
Appears in 1 contract
Samples: Underwriting Agreement (Thermon Group Holdings, Inc.)
Representations, Warranties and Agreements of the Selling Stockholders. Each Selling Stockholder Stockholder, severally representsand not jointly, represents and warrants to, and agrees thatwith, the Underwriter as follows:
(a) Neither Without the prior written consent of the Underwriter, the Selling Stockholder nor has not made any person acting on behalf of offer relating to the Selling Stockholder (other than, if applicable, the Company and the Underwriters) has used or referred to any Stock that would constitute a “free writing prospectus” (as defined in Rule 405), relating any portion of which would be required to be filed with the Stock;Commission; any such free writing prospectus the use of which has been consented to by the Company is listed on Schedule II hereto.
(b) The Selling Stockholder hasis, and immediately prior to any the Delivery Date on which the Selling Stockholder is selling shares of Stock, Stock the Selling Stockholder will have good and valid title tobe, or a valid “security entitlement” within the meaning owner of Section 8-501 of the New York Uniform Commercial Code (the “UCC”) the shares of Stock to be sold by the such Selling Stockholder hereunder on such Delivery Datehereunder, free and clear of all liens, encumbrances, equities or claims; and upon delivery of such shares and payment therefor pursuant hereto, good and valid title to such shares, free and clear of all liens, encumbrances, equities or claims, will pass to the several Underwriters.
(c) The Selling Stockholder has placed in custody under a custody agreement (the “Custody Agreement” and, together with all other similar agreements executed Upon payment by the other Selling Stockholders, Underwriter for the “Custody Agreements”) with the Company, as custodian (the “Custodian”), for delivery under this Agreement, certificates in negotiable form (with signature guaranteed by a commercial bank or trust company having an office or correspondent in the United States or a member firm of the New York or American Stock Exchanges) representing the shares of Stock to be sold by such Selling Stockholder pursuant hereto, delivery (within the meaning of the UCC (as hereinafter defined)) of such 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 Stock in the name of Cede or such other nominee and the crediting of such Stock on the books of DTC to a securities account (within the meaning of the UCC) of the Underwriter maintained at DTC (assuming that neither DTC nor the Underwriter has notice of any adverse claim (within the meaning of Section 8-105 of the Uniform Commercial Code as in effect on the date hereof in the State of New York (“UCC”)) to such Stock), (i) DTC shall be a “protected purchaser” of such Stock within the meaning of Section 8-303 of the UCC, (ii) under Section 8-501 of the UCC, the Underwriter will have acquired a security entitlement in respect of such Stock and (iii) no action based on any “adverse claim,” within the meaning of Section 8-102 of the UCC, may be asserted against the Underwriter with respect to such security entitlement. For purposes of this representation, the Selling Stockholder hereundermay assume that when such payment, delivery and crediting occur, (A) such shares will have been registered in the name of Cede or another nominee designated by DTC, in each case on the Company’s share registry in accordance with its certificate of incorporation, bylaws and applicable law, (B) DTC will be registered as a “clearing corporation” within the meaning of Section 8-102 of the UCC and (C) appropriate entries to the account of the Underwriter on the records of DTC will have been made pursuant to the UCC.
(d) The Selling Stockholder has duly and irrevocably executed and delivered a power of attorney (the “Power of Attorney” and, together with all other similar agreements executed by the other Selling Stockholders, the “Powers of Attorney”) appointing Sxxxxxx X. Xxxxxxx and one full limited partnership or more other personslimited liability company, as attorneys-in-factapplicable, with full right, power of substitution, and with full authority (exercisable by any one or more of them) to execute and deliver enter into this Agreement and to take such other action as may be necessary or desirable to carry out sell the provisions hereof on behalf of the Selling StockholderStock.
(e) The Selling Stockholder has power and authority under its limited partnership or similar organization agreement to enter into this Agreement, the Power of Attorney and the Custody Agreement; this This Agreement has been duly and validly authorized, executed and delivered by or on behalf of the Selling Stockholder; the .
(f) The execution, delivery and performance of this 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 do not and thereby will not (i) conflict with or result in a material breach or violation of any of the terms or provisions of, or constitute a material default under, any indenture, mortgage, deed of trust, loan agreement 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 such Selling Stockholder is subject, nor will such actions (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 of its organizational documents (in the case of non-individual Selling Stockholders) or any material violation of any applicable 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 in each case for any conflicts, violations or defaults which could not, individually or in the aggregate, reasonably be expected to materially and adversely affect such Selling Stockholder’s ability to fulfill its obligations under and consummate the transactions contemplated by this Agreement or result in the creation or imposition of any security interest, lien or other encumbrance on any of the Stock being sold by such Selling Stockholder under this Agreement.
(g) No consent, approval, authorization or order of, or filing or registration with, any court or governmental agency or body having jurisdiction over the Selling Stockholder or the property or assets of the Selling Stockholder 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, except for the any required registration of the Stock under the Securities Act and such consents, approvals, authorizations, orders, filings, registrations or qualifications as have been obtained or made or may be required under the Exchange Act, by the National Association of Securities Dealers, Inc. Act and under applicable state or foreign securities laws (including Blue Sky laws) in connection with the purchase offer and distribution sale of the Stock by the Underwriters, no consent, approval, authorization or order of, or filing or registration with, any such court or governmental agency or body is required for the execution, delivery and performance of this AgreementCompany, the Power of Attorney or the Custody Agreement by the Selling Stockholder Stockholders and the consummation by the Selling Stockholder of the transactions contemplated hereby and therebyUnderwriter.
(fh) The Stock 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 sold by stated therein or necessary to make the statements therein not misleading; provided that the representations or warranties set forth in this Section 2(h) are limited to statements or omissions made in reliance upon and in conformity with the Selling Stockholder hereunder, which is represented Stockholders Information provided by the certificates held in custody for the such Selling Stockholder.
(i) The Prospectus will not, is subject 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 interest of the Underwriters, the arrangements made by the Selling Stockholder for such custody are to that extent irrevocable, and the obligations of the Selling Stockholder hereunder shall not be terminated by any act of the Selling Stockholder, by operation of law, by the death or incapacity of any individual Selling Stockholder orstatements therein, in the case light of a trustthe circumstances under which they were made, not misleading; provided that the representations or warranties set forth in this Section 2(i) are limited to statements or omissions made in reliance upon and in conformity with the Selling Stockholders Information provided by the death or incapacity of any executor or trustee or the termination of such trust, or the occurrence of any other eventSelling Stockholder.
(gj) The Pricing Disclosure Package did not, as of the Applicable Time, contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading, except that the price of the Stock and disclosures directly relating thereto will be included on the cover page of the Prospectus; provided that the representations or warranties set forth in this Section 2(j) are limited to statements or omissions made in reliance upon and in conformity with the Selling Stockholders Information provided by such Selling Stockholder.
(k) The Selling Stockholder is not prompted to sell shares of Common Stock by any material information concerning the Company that is not set forth in the Registration Statement, the Pricing Disclosure PackagePackage and the Prospectus.
(hl) The Selling Stockholder has not taken and will not take, directly or indirectly, any action which that is designed to or which that has constituted or which might that would reasonably be expected to cause or result in the stabilization or manipulation of the price of any security of the Company to facilitate the sale or resale of the shares of the Stock. Any certificate signed by any officer or general partner of any Selling Stockholder and delivered to counsel for the Underwriter in connection with the offering of the Stock shall be deemed a representation and warranty by such Selling Stockholder, as to matters covered thereby, to the Underwriter.
Appears in 1 contract
Samples: Underwriting Agreement (Centennial Communications Corp /De)
Representations, Warranties and Agreements of the Selling Stockholders. 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 Underwriters) has used or will use or referred to or will refer to any “free writing prospectus” (as defined in Rule 405), relating to the StockShares;
(b) The Selling Stockholder has, and immediately prior to any Delivery Date on which the Selling Stockholder is selling shares of StockShares, the Selling Stockholder will have 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 of Stock Shares to be sold by the Selling Stockholder hereunder on such Delivery Date, free and clear of all liens, encumbrances, equities or claims; and upon delivery of such shares and payment therefor pursuant hereto, good and valid title to such shares, free and clear of all liens, encumbrances, equities or claims, will pass to the several Underwriters.
(c) 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 the Company, as custodian (the “Custodian”), for delivery under this Agreement, certificates in negotiable form (with signature guaranteed by a commercial bank or trust company having an office or correspondent in the United States or a member firm of the New York or American Stock Exchanges) representing the shares of Stock Shares to be sold by the Selling Stockholder hereunder.
(d) The Selling Stockholder has duly and irrevocably executed and delivered a power of attorney (the “Power of Attorney” and, together with all other similar agreements executed by the other Selling Stockholders, the “Powers of Attorney”) appointing Sxxxxxx X. Xxxxxxx and one or more other persons, as attorneys-in-fact, with full power of substitution, and with full authority (exercisable by any one or more of them) to execute and deliver this Agreement and to take such other action as may be necessary or desirable to carry out the provisions hereof on behalf of the Selling Stockholder.
(e) The Selling Stockholder has power and authority under its limited partnership or similar organization agreement to enter into this Agreement, the Power of Attorney and the Custody Agreement; this Agreement has been duly and validly authorized, executed and delivered by or on behalf of the Selling Stockholder; the execution, delivery and performance of this 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 will not conflict with or result in a material breach or violation of any of the terms or provisions of, or constitute a material default under, any indenture, mortgage, deed of trust, loan 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 will such actions result in any violation of any of its organizational documents (in the case of non-individual Selling Stockholders) or 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 or the property or assets of the Selling Stockholder; and, except for the registration of the Stock under the Securities Act and such consents, approvals, authorizations, registrations or qualifications as may be required under the Exchange Act, by the National Association of Securities Dealers, Inc. and under applicable state securities laws in connection with the purchase and distribution of the Stock by the Underwriters, no consent, approval, authorization or order of, or filing or registration with, any such court or governmental agency or body 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.
(f) The Stock to be sold by the Selling Stockholder hereunder, which is represented by the certificates held in custody for the Selling Stockholder, is hereunder are subject to the interest of the Underwriters, the arrangements made by the Selling Stockholder for such custody are to that extent irrevocable, and the obligations of the Selling Stockholder hereunder shall not be terminated by any act of the Selling Stockholder, by operation of law, by the death or incapacity of any individual 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) Upon payment for the Shares to be sold by such Selling Stockholder, delivery of such Shares, as directed by the Underwriters, to Cede & Co. (“Cede”) or such other nominee as may be designated by The Depository Trust Company (“DTC”), registration of such Shares in the name of Cede or such other nominee and the crediting of such Shares on the books of DTC to securities accounts of the Underwriters (assuming that neither DTC nor any such Underwriter has notice of any adverse claim (within the meaning of Section 8-105 of the UCC) to such Shares), (i) DTC shall be a “protected purchaser” of such Shares within the meaning of Section 8-303 of the UCC, (ii) under Section 8-501 of the UCC, the Underwriters will acquire a valid security entitlement in respect of such Shares and (iii) no action based on any “adverse claim,” within the meaning of Section 8-102 of the UCC, to such Shares may be asserted against the Underwriters with respect to such security entitlement. For purposes of this representation, such Selling 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 certificate of incorporation, bylaws and applicable law, (B) DTC will be registered as a “clearing corporation” within the meaning of Section 8-102 of the UCC and (C) appropriate entries to the accounts of the several Underwriters on the records of DTC will have been made pursuant to the UCC.
(e) The Selling Stockholder has duly and irrevocably executed and delivered a power of attorney (the “Power of Attorney” and, together with all other similar agreements executed by the other Selling Stockholders, the “Powers of Attorney”) appointing Xxxxxx Xxxxx and Xxxxxxx Xxxxx as attorneys-in-fact (each, a “Custodian”), with full power of substitution, and with full authority (exercisable by any one or more of them) to execute and deliver this Agreement and to take such other action as may be necessary or desirable to carry out the provisions hereof on behalf of the Selling Stockholder.
(f) The Selling Stockholder has full right, power and authority, corporate or otherwise, to enter into this Agreement and the Power of Attorney and to sell, assign, transfer and deliver the Shares to be delivered by such Selling Stockholder.
(g) This Agreement has been duly and validly authorized, executed and delivered by or on behalf of the Selling Stockholder.
(h) The Power of Attorney has been duly and validly authorized, executed and delivered by or on behalf of the Selling Stockholder and constitutes 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.
(i) The execution, delivery and performance of this Agreement and the Power of Attorney 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 any charter or by-laws (or similar organizational documents) of the Selling Stockholder, (iii) result in any violation of the provisions of any deed of trust (or similar organizational documents) of the Selling Stockholder or (iv) 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 clauses (i), (iii) and (iv), to the extent that any such conflict, breach, violation or default would not, individually or in the aggregate, reasonably be expected to have a material adverse effect on the ability of the parties hereto to consummate the transactions contemplated hereby.
(j) 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 Power of Attorney by the Selling Stockholder and the consummation by the Selling Stockholder of the transactions contemplated hereby and thereby, except for the registration of the Shares under the Securities Act and such consents, approvals, authorizations, registrations or qualifications as may be required under the Exchange Act and applicable state or foreign securities laws in connection with the purchase and sale of the Shares by the Underwriters, except (i) such consents that have been, or prior to the Initial Delivery Date will be, obtained, or if not obtained, would not reasonably be expected to have a material adverse effect on the ability of the parties hereto to consummate the transactions contemplated hereby and (ii) as disclosed in the most recent Preliminary Prospectus and the Prospectus.
(k) 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 through the Representatives by or on behalf of any Underwriter specifically for inclusion therein, which information is specified in Section 10(f) hereof.
(l) To the knowledge of the Selling Stockholder, 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; 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 Representatives by or on behalf of any Underwriter specifically for inclusion therein, which information is specified in Section 10(f) hereof.
(m) 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 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) hereof.
(n) To the knowledge of the Selling Stockholder, each Issuer Free Writing Prospectus (including, without limitation, any road show that is a free writing prospectus under Rule 433), 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.
(o) The Selling Stockholder is not and has not been prompted to sell shares of Common Stock by any information concerning the Company that is not set forth in the Registration Statement, the Pricing Disclosure PackagePackage and the Prospectus.
(hp) The Selling Stockholder has not taken and will not take, directly or indirectly, any action which that is designed to or which that has constituted or which might 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 Shares.
(q) Except as disclosed in the Pricing Disclosure Package, there are no contracts, agreements or understandings between such Selling Stockholder and any person that would give rise to a valid claim against such Selling Stockholder or any Underwriter for a brokerage commission, finder’s fee or other like payment in connection with this offering.
(r) To the extent such Selling Stockholder is an entity, such Selling Stockholder is validly existing and, to the extent such concept exists in the relevant jurisdiction, in good standing under the laws of the Stockjurisdiction of its organization.
(s) There are no material agreements or arrangements relating to the Company or its subsidiaries to which such Selling Stockholder (or, to such Selling Stockholder’s knowledge, any direct or indirect stockholder of such Selling Stockholder) is a party, which are required to be described in the Registration Statement or the Prospectus or to be filed as exhibits thereto that are not so described or filed.
(t) If, at any time when a prospectus relating to the offered Shares is (or but for the exemption in Rule 172 would be) required to be delivered under the Securities Act and the Rules and Regulations by any Underwriter or dealer, any event occurs as a result of which the Pricing Disclosure Package or the Prospectus as then amended or supplemented would include an untrue statement of a material fact or omit to state any material fact necessary to make the statements therein not misleading with respect to such Selling Stockholder, in the light of the circumstances under which they were made, such Selling Stockholder will immediately notify the Company and the Representatives of such change.
(u) 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. In addition to the representations and warranties of the Selling Stockholders above, each of Xxxxxx Xxxxx, Zephyr Xxxxx, Xxxxxxx Xxxxx and Xxxxxxxxx Xxxxx (each, a “Management Selling Stockholder”), severally and not jointly, represents and warrants to the Underwriters that such Management Selling Stockholder has carefully reviewed the representations and warranties contained in this Agreement and has no reason to believe that such representations and warranties are untrue or incorrect. Any certificate signed by any Selling Stockholder or any officer of any Selling Stockholder and delivered to the Representatives or counsel for the Underwriters in connection with the offering of the Shares shall be deemed a representation and warranty by such Selling Stockholder as to matters covered thereby, to each Underwriter.
Appears in 1 contract
Samples: Underwriting Agreement (Natural Grocers by Vitamin Cottage, Inc.)
Representations, Warranties and Agreements of the Selling Stockholders. Each Selling Stockholder Stockholder, severally and not jointly, represents, warrants and agrees with the several Underwriters that:
(a) Neither the Selling Stockholder nor any person acting on behalf of the Selling Stockholder (other than, if applicable, the Company and the Underwriters) has used or referred to any “free writing prospectus” (as defined in Rule 405), relating to the StockStock except as set forth on Schedule 4 hereto;
(b) The Selling Stockholder has, and immediately prior to any Delivery Date on which the Selling Stockholder is selling shares of Stock, the Selling Stockholder will have 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 of Stock to be sold by the Selling Stockholder hereunder on such Delivery Date, free and clear of all liens, encumbrances, equities or claims; and upon delivery of such shares and payment therefor pursuant hereto, good and valid title to such shares, free and clear of all except for any liens, encumbrances, equities or claimsclaims arising under the Custody Agreement (as defined below), will pass to the several UnderwritersPowers of Attorney (as defined below) and this Agreement.
(c) Upon payment for the Stock to be sold by such Selling Stockholder, delivery of such Stock, as directed by the Underwriters, to Cede & Co. (“Cede”) or such other nominee as may be designated by The Depository Trust Company (“DTC”), registration of such Stock in the name of Cede or such other nominee and the crediting of such Stock on the books of DTC to securities accounts of the Underwriters (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 Stock), (i) under Section 8-501 of the UCC, the Underwriters will acquire a valid security entitlement in respect of such Stock and (ii) no action based on any “adverse claim”, within the meaning of Section 8-102 of the UCC, to such Stock may be successfully asserted against Credit Suisse Securities (USA) LLC as representative of the Underwriters with respect to such security entitlement. For purposes of this representation, 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 certificate of incorporation, bylaws and applicable law, (B) DTC will be registered as a “clearing corporation” within the meaning of Section 8-102 of the UCC and (C) appropriate entries to the accounts of the several Underwriters on the records of DTC will have been made pursuant to the UCC.
(d) 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 the CompanyLaSalle Bank National Association, as custodian (the “Custodian”), for delivery under this Agreement, certificates in negotiable form (with signature guaranteed by a commercial bank or trust company having an office or correspondent participant in the United States or a member firm of Securities Transfer Agents Medallion Program, the New York Stock Exchange Medallion Signature Program or American the Stock ExchangesExchange Medallion Program) representing the shares of Stock to be sold by the Selling Stockholder hereunder.
(de) The Selling Stockholder has duly and irrevocably executed and delivered a power of attorney (the “Power of Attorney” and, together with all other similar agreements executed by the other Selling Stockholders, the “Powers of Attorney”) appointing Sxxxxxx Messrs. Xxxxx X. Xxxxxx, Xxxxxxx X. Xxxxxxxxxx, Xxxxxxx Xxxxxx and one or more other persons, Xxx X. Xxxxxxxx as attorneys-in-factfact (the “Attorneys-in-Fact”), with full power of substitution, and with full authority (exercisable by any one or more of them) to execute and deliver this Agreement on such Selling Stockholder’s behalf and to take such other action as may be necessary or desirable to carry out the provisions hereof on behalf of the Selling Stockholder.
(ef) The Selling Stockholder has full right, power and authority under its limited partnership authority, corporate or similar organization agreement otherwise, to enter into this Agreement, the Custody Agreement and the Power of Attorney and the Custody Agreement; this Attorney.
(g) This Agreement has been duly and validly authorized, executed and delivered by or on behalf of the Selling Stockholder; .
(h) The Power of Attorney and the Custody Agreement have been duly and validly authorized, executed and delivered by or on behalf of the Selling Stockholder and constitute valid and legally binding obligations of the Selling Stockholder enforceable against the Selling Stockholder in accordance with their terms, subject to (i) the effects of bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium and other similar laws relating to or affecting creditors’ rights generally, (ii) general equitable principles (whether considered in a proceeding in equity or at law) and (iii) an implied covenant of good faith and fair dealing.
(i) The execution, delivery and performance of this Agreement, the Custody Agreement and 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 material breach or violation of any of the terms or provisions of, or constitute a material default under, any indenture, mortgage, deed of trust, loan agreement 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, nor will such actions (ii) for each Selling Stockholder that is not a natural person, result in any violation of the provisions of the charter or by-laws (or similar organizational documents) of such Selling Stockholder or (iii) result in any of its organizational documents (in the case of non-individual Selling Stockholders) or 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 or the property or assets of the Selling Stockholder; and, except in the case of clauses (i) and (iii) for such conflicts, breaches, violations or defaults as would not reasonably be expected to materially adversely affect such Selling Stockholder’s ability to perform its obligations hereunder and under the Custody Agreement and the Power of Attorney.
(j) 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, the Custody Agreement or the Power of Attorney by the Selling Stockholder and the consummation by the Selling Stockholder of the transactions contemplated hereby and thereby, except for the registration of the Stock under the Securities Act and such consents, approvals, authorizations, registrations or qualifications as have been obtained or as may be required under the Exchange Act, by the National Association of Securities Dealers, Inc. NASD and under applicable state securities laws in connection with the purchase and distribution sale of the Stock by the Underwriters, no consent, approval, authorization or order of, or filing or registration with, any such court or governmental agency or body 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.
(fk) The Stock to be sold by To the Selling Stockholder hereunder, which is represented by the certificates held in custody for the Selling Stockholder, is subject to the interest of the Underwriters, the arrangements made by the Selling Stockholder for such custody are to that extent irrevocable, and the obligations of the Selling Stockholder hereunder shall not be terminated by any act 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 in this Section 2(k) only apply to statements or omissions in the Registration Statement based on and in conformity with information relating to such Selling Stockholder furnished to the Company in writing by operation of lawsuch Selling Stockholder expressly for use therein; 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 the death or incapacity on behalf of any individual Underwriter specifically for inclusion therein, which information is specified in Section 10(f).
(l) To the knowledge of the Selling Stockholder orStockholder, the Prospectus does not, as of its date, and will not 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 case light of a trustthe circumstances under which they were made, not misleading; provided that the representations and warranties in this Section 2(l) only apply to statements or omissions in the Prospectus based on and in conformity with information relating to such Selling Stockholder furnished to the Company in writing by such Selling Stockholder expressly for use therein; provided, further that no representation or warranty is made as to information contained in or omitted from the death Prospectus in reliance upon and in conformity with written information furnished to the Company through the Representatives by or incapacity on behalf of any executor or trustee or the termination of such trustUnderwriter specifically for inclusion therein, or the occurrence of any other eventwhich information is specified in Section 10(f).
(gm) The To the knowledge of the Selling Stockholder is 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 prompted misleading; provided that the representations and warranties in this Section 2(m) only apply to sell shares of Common Stock by any information concerning the Company that is not set forth statements or omissions in the Pricing Disclosure PackagePackage based on and in conformity with information relating to such Selling Stockholder furnished to the Company in writing by such Selling Stockholder expressly for use therein; 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 or the Selling Stockholders through the Representatives by or on behalf of any Underwriter specifically for inclusion therein, which information is specified in Section 10(f).
(hn) The Selling Stockholder has not taken and will not take, directly or indirectly, any action which that is designed to or which that has constituted or which might that would reasonably be expected to cause or result in the stabilization or manipulation of the price of any security of the Company to facilitate the sale or resale of the shares of the Stock.
(o) The sale of the Common Stock by any Selling Stockholder that is an affiliate of the Company does not, to the knowledge of such Selling Stockholder, violate any of the Company’s internal policies regarding the sale of stock by its affiliates. Any certificate signed by any Selling Stockholder and delivered to the Representatives in connection with the offering of the Stock shall be deemed a representation and warranty by such Selling Stockholder, as to matters covered thereby, to each Underwriter.
Appears in 1 contract
Representations, Warranties and Agreements of the Selling Stockholders. Each Selling Stockholder severally 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 Underwriters) has used or referred to any “free writing prospectus” (as defined in Rule 405), relating to the Stock;
(b) The Selling Stockholder has, and immediately prior to any the First Delivery Date on which (as defined in Section 5 hereof) the Selling Stockholder is selling will have (or, in the case of Selling Stockholders who may sell shares only on the Second Delivery Date and who will exercise options to acquire shares of Common Stock to sell as Option Stock, the Selling Stockholder has good title to currently exercisable options, and immediately prior to the Second Delivery Date will have 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”) to the shares of Stock to be sold by the Selling Stockholder hereunder on such Delivery Datedate, free and clear of all liens, encumbrancesencumbrances (other than obligations under a Voting and Shareholders Agreement dated February 8, 2000, as amended, between the Company, Prize Natural Resources, Inc., and certain stockholders, named therein, including certain Selling Stockholders, as of the date hereof, which obligations will terminate and/or be of no effect with respect to the Stock delivered to the Underwriters), equities or claims; and upon delivery of such shares and payment therefor pursuant heretohereto and thereto, good and valid title to such shares, free and clear of all liens, encumbrances, equities or claims, will pass to the several Underwriters.
(cb) The Selling Stockholder has placed in custody under a custody agreement full right, power (the “Custody Agreement” and, together corporate or partnership power with all other similar agreements executed by the other respect to corporations or partnerships that are Selling Stockholders, the “Custody Agreements”) with the Company, as custodian (the “Custodian”), for delivery under this Agreement, certificates in negotiable form (with signature guaranteed by a commercial bank or trust company having an office or correspondent in the United States or a member firm of the New York or American Stock Exchanges) representing the shares of Stock to be sold by the Selling Stockholder hereunder.
(d) The Selling Stockholder has duly and irrevocably executed and delivered a power of attorney (the “Power of Attorney” and, together with all other similar agreements executed by the other Selling Stockholders, the “Powers of Attorney”) appointing Sxxxxxx X. Xxxxxxx and one or more other persons, as attorneys-in-fact, with full power of substitution, and with full authority (exercisable by any one or more of them) to execute and deliver this Agreement and to take such other action as may be necessary or desirable to carry out the provisions hereof on behalf of the Selling Stockholder.
(e) The Selling Stockholder has power and authority under its limited partnership or similar organization agreement to enter into this Agreement, the Power of Attorney and the Custody Agreement; this Agreement has been duly and validly authorized, executed and delivered by or on behalf of the Selling Stockholder; the execution, delivery and performance of this 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 will not conflict with or result in a material breach or violation of any of the terms or provisions of, or constitute a material default under, any indenture, mortgage, deed of trust, loan 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 will such actions result in any violation of any the provisions of its organizational documents (in the case charter or by-laws of non-individual the Selling Stockholders) Stockholder, or any material violation the certificate of limited partnership and the partnership agreement of the Selling Stockholder, as applicable, or 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 for the registration of the Stock under the Securities Act and such consents, approvals, authorizations, registrations registrations, filings or qualifications as may be required under the Exchange Act, by the National Association of Securities Dealers, Inc. Act and under applicable state securities laws in connection with the purchase and distribution of the Stock by the Underwriters, no consent, approval, authorization or order of, or filing or registration with, any such court or governmental agency or body 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.
(fc) The Stock Registration Statement and the Prospectus and any further amendments or supplements to the Registration Statement or the Prospectus, when they become effective or are filed with the Commission, as the case may be, do not and will not, as of the applicable Effective Date (as to the Registration Statement and any amendment thereto) and as of the applicable filing date (as to the Prospectus and any amendment or supplement thereto) contain an untrue statement of a material fact or omit to state a material fact required to be sold by stated therein or necessary to make the statements therein not misleading; provided, however, with respect to Pioneer and the NGP Entities (as defined below), only, the foregoing representations and warranties shall only apply to statements or omissions in the Registration Statement or the Prospectus made in reliance upon and in conformity with information relating to such Selling Stockholder hereunderfurnished to the Company in writing by such Selling Stockholder expressly for use therein and provided, which further, that no representation or warranty is represented made as to information contained in or omitted from the Registration Statement or the Prospectus in reliance upon and in conformity with written information furnished to the Company through the Representatives by or on behalf of any Underwriter specifically for inclusion therein.
(d) Each of Messrs. Philxx X. Xxxxx, Xxn X. Xxxx xxx D. Richxxx Xxxxxxxxxx, xxo are executive officers of the certificates held in custody for the Company (each, an "Executive Selling Stockholder"), is subject to agrees, severally and not jointly, that (1) the interest representations and warranties of the UnderwritersCompany contained in Section 1 hereof are true and correct, (2) is familiar with the arrangements made by the Selling Stockholder for such custody are to that extent irrevocable, Registration Statement and the obligations 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 Selling Stockholder hereunder shall not be terminated by any act of the Selling Stockholder, by operation of law, by the death or incapacity of any individual Selling Stockholder or, in the case of a trust, by the death or incapacity of any executor or trustee or the termination of such trustEffective Date, or the occurrence Prospectus (or any amendment or supplement thereto), as of any other event.
the applicable filing date, which has adversely affected or may adversely affect the business of the Company, and (g4) The Selling Stockholder is not prompted to sell shares of Common Stock by any information concerning the Company that which is not set forth in the Pricing Disclosure PackageRegistration Statement and the Prospectus.
(he) Pioneer Natural Resources USA, Inc. ("Pioneer") agrees that (1) Pioneer is familiar with the Registration Statement and the Prospectus (as amended or supplemented), (2) the executive officers of Pioneer without further investigation have no current actual knowledge of any material fact, condition or information not disclosed in the Registration Statement, as of the Effective Date, or the Prospectus (or any amendment or supplement thereto), as of the applicable filing date, which has adversely affected or may adversely affect the business of the Company, and (3) is not prompted to sell shares of Common Stock by any information concerning the Company which is not set forth in the Registration Statement and the Prospectus.
(f) Natural Gas Partners II, L.P. and Natural Gas Partners III, L.P. (collectively, the "NGP Entities") each agree that (1) it is familiar with the Registration Statement and the Prospectus (as amended or supplemented), (2) to the actual knowledge of the general partners, ultimate general partners of the NGP Entities and their managing members, it has no knowledge of any material fact, condition or information not disclosed in the Registration Statement, as of the Effective Date, or the Prospectus (or any amendment or supplement thereto), as of the applicable filing date, which has adversely affected or may adversely affect the business of the Company, and (3) is not prompted to sell shares of Common Stock by any information concerning the Company which is not set forth in the Registration Statement and the Prospectus.
(g) The Selling Stockholder has not taken and will not take, directly or indirectly, any action which is designed to or which has constituted or 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 of the Stock.
Appears in 1 contract
Representations, Warranties and Agreements of the Selling Stockholders. Each Selling Stockholder severally 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 Underwriters) has used or referred to any “free writing prospectus” (as defined in Rule 405), relating to the Stock;
(b) The Selling Stockholder has, and immediately prior to any the Second Delivery Date on which the Selling Stockholder is selling shares of Stock, (as defined in Section 5 hereof) 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”) to the shares of Option 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, and assuming each Underwriter has no notice of any adverse claim (as used in Section 8-105 of the Uniform Commercial Code) good and valid title to such shares, free and clear of all liens, encumbrances, equities or claims, will pass to the several Underwriters.
(cb) The Selling Stockholder has placed in custody under a custody agreement an Irrevocable Power of Attorney and Custody Agreement (the “"Irrevocable Power of Attorney and Custody Agreement” " and, together with all other similar agreements executed by the other Selling Stockholders, the “"Irrevocable Power of Attorney and Custody Agreements”") with the CompanyUMB Bank, n.a., as custodian (the “"Custodian”"), for delivery under this Agreement, certificates in negotiable form (with signature guaranteed by a commercial bank or trust company having an office or correspondent in the United States or a member firm of the New York or American Stock Exchanges) representing the shares of the Company's common stock that will be converted into shares of Class B Common Stock, par value $0.001 per share, of the Company pursuant to the Recapitalization Agreement (the "Class B Common Stock") and upon transfer and delivery to the Underwriters hereunder will automatically convert to shares of Class A Common Stock to be sold by the Selling Stockholder hereunderhereunder as Option Stock.
(dc) The Selling Stockholder has duly and irrevocably executed and delivered a power of attorney (contained in the “Irrevocable Power of Attorney” and, together with all other similar agreements executed by Attorney and Custody Agreement appointing the other Selling Stockholders, the “Powers of Attorney”) appointing Sxxxxxx X. Xxxxxxx Custodian and one or more other persons, as attorneys-in-fact, with full power of substitution, and with full authority (exercisable by any one or more of them) to execute and deliver this Agreement and to take such other action as may be necessary or desirable to carry out the provisions hereof on behalf of the Selling Stockholder.
(ed) The Selling Stockholder has power This Agreement and authority under its limited partnership or similar organization agreement to enter into this Agreement, the Irrevocable Power of Attorney and the Custody Agreement; this Agreement has have been duly authorized by the Selling Stockholder if the Selling Stockholder is a corporation, partnership, trust or other business entity, and validly authorized, have each been duly executed and delivered by or on behalf of the such Selling Stockholder and constitute valid and binding agreements of such Selling Stockholder, enforceable against such Selling Stockholder in accordance with their respective terms.
(e) The Selling Stockholder has full right, power and authority to enter into this Agreement and the Irrevocable Power of Attorney and Custody Agreement; the execution, delivery and performance of this Agreement, Agreement and the Irrevocable 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 (i) will not conflict with or result in a material breach or violation of any of the terms or provisions of, or constitute a material default under, any indenture, mortgage, deed of trust, loan 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, except for such conflicts, breaches or violations that, individually or in the aggregate, would not have a material adverse effect on the power or ability of the Selling Stockholder to perform its obligations under this Agreement or the consummation of any of the transactions contemplated hereby or in the Prospectus; (ii) nor will such actions result in any violation of the provisions of (x) the charter or by-laws of the Selling Stockholder if the Selling Stockholder is a corporation, (y) the partnership agreement and articles of partnership of the Selling Stockholder if the Selling Stockholder is a partnership or (z) the deed of trust of the Selling Stockholder if the Selling Stockholder is a trust; (iii) nor will such actions result in any of its organizational documents (in the case of non-individual Selling Stockholders) or 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 or the property or assets of the Selling Stockholder, except for such violations as will not have a material adverse effect on the power or ability of the Selling Stockholder to perform its obligations under this Agreement or the consummation of any of the transactions contemplated hereby or in the Prospectus; and, and (iv) except for the registration of the Option Stock under the Securities Act and such consents, approvals, authorizations, registrations or qualifications as may be required (a) under the Exchange Act, (b) by the National Association of Securities Dealers, Inc. and under applicable state or foreign securities laws in connection with the purchase and distribution of the Option Stock by the UnderwritersUnderwriters and (b) by the NASD, 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, Agreement or the Irrevocable Power of Attorney or the and Custody Agreement by the Selling Stockholder and the consummation by the Selling Stockholder of the transactions contemplated hereby and thereby.
(f) The Stock information furnished in writing by or on behalf of such Selling Stockholder expressly for use in the Registration Statement and the Prospectus and any further amendments or supplements to the Registration Statement or the Prospectus (it being understood that the only information so furnished is specified in the Prospectus under the captions "Principal and Selling Shareholders" and "Certain Transactions") do not and will not, as of the applicable effective date (as to the Registration Statement and any amendment thereto) and as of the applicable filing date, the date hereof and the Second Delivery Date (as to the Prospectus and any amendment or supplement thereto) contain an untrue statement of a material fact with respect to such Selling Stockholder or omit to state a material fact with respect to such Selling Stockholder required to be sold by stated therein or necessary to make the statements therein regarding the Selling Stockholder hereunder, which is represented by the certificates held in custody for the Selling Stockholder, is subject to the interest of the Underwriters, the arrangements made by the Selling Stockholder for such custody are to that extent irrevocable, and the obligations of the Selling Stockholder hereunder shall not be terminated by any act of the Selling Stockholder, by operation of law, by the death or incapacity of any individual Selling Stockholder or, (in the case of a trustthe Prospectus, by in light of the death or incapacity of any executor or trustee or the termination of such trust, or the occurrence of any other eventcircumstances under with they were made) not misleading.
(g) The Selling Stockholder is not prompted to sell shares of Common Stock by any information concerning the Company that is not set forth in the Pricing Disclosure Package.
(h) The Selling Stockholder has not taken and will not take, directly or indirectly, any action which is designed to or which has constituted or 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 of the Stock.
(h) Other than as disclosed in the Prospectus, within the past five years the Selling Stockholder has held no position or office or had any other relationship with the Company required to be disclosed pursuant to the Securities Act and the Rules and Regulations. The Selling Stockholder acknowledges and consents to the inclusion of its name and address and the information under the heading "Principal and Selling Shareholders--Selling Shareholders" in the Prospectus.
Appears in 1 contract
Samples: Underwriting Agreement (Dobson Communications Corp)
Representations, Warranties and Agreements of the Selling Stockholders. Each Selling Stockholder severally and not jointly represents, warrants and agrees that:
(a) Neither the Such 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 Underwriters) has used or referred to any “free writing prospectus” (as defined in Rule 405), relating to the Stock;formation.
(b) The Selling Stockholder has, and immediately prior to any Delivery Date on which the Such Selling Stockholder is selling shares a United States person (as the term is defined in Section 7701(a)(30) of Stockthe Internal Revenue Code of 1986, the as amended) for U.S. federal income tax purposes.
(c) Such Selling Stockholder will have has good and valid title to, or a valid to the shares of Stock to be sold by such 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”) the shares of Stock to be sold by the Selling Stockholder hereunder on such Delivery Datein respect thereof, free and clear of all liens, encumbrances, equities or adverse claims; , except for any liens, encumbrances, equities or adverse claims arising under (1) the Margin Loan Agreement dated as of March 3, 2022 among AP IX Tiger Holdings, L.P., AP IX Tiger Holdings GP, LLC, the lenders party thereto and Barclays Bank plc (and any refinancing or other modification of such margin loan financing) or (2) the Margin Loan Agreement dated as of March 3, 2022 among AP IX Tiger Co-Invest (ML), L.P., AP IX Tiger Co-Invest (ML) GP, LLC, the lenders party thereto and Barclays Bank plc (and any refinancing or other modification of such margin loan financing). On each Delivery Date as provided in Section 4, such Selling Stockholder will, upon delivery of the shares of Stock to be sold by such shares and payment therefor pursuant heretoSelling Stockholder hereunder on such Delivery Date, have good and valid title to such sharesshares of Stock and any “security entitlement” within the meaning of Section 8-501 of the UCC in respect thereof, free and clear of all liens, encumbrances, equities or adverse claims, will pass to the several Underwriters.
(cd) The Selling Stockholder has placed in custody under a custody agreement [Reserved]
(e) [Reserved]
(f) Upon payment for the “Custody Agreement” and, together with all other similar agreements executed by the other Selling Stockholders, the “Custody Agreements”) with the Company, as custodian (the “Custodian”), for delivery under this Agreement, certificates in negotiable form (with signature guaranteed by a commercial bank or trust company having an office or correspondent in the United States or a member firm of the New York or American Stock Exchanges) representing the shares of Stock to be sold by such Selling Stockholder, delivery of such Stock, as directed by the Underwriters, to Cede & Co. (“Cede”) or such other nominee as may be designated by The Depository Trust Company (“DTC”), registration of such Stock in the name of Cede or such other nominee and the crediting of such Stock on the books of DTC to securities accounts of the Underwriters (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 Stock) (i) DTC shall be a “protected purchaser” of such Stock within the meaning of Section 8-303 of the UCC, (ii) under Section 8-501 of the UCC, the Underwriters will acquire a valid security entitlement in respect of such Stock, and (iii) an action based on an adverse claim, within the meaning of Section 8-102 of the UCC, may not be asserted against the Underwriters with respect to such security entitlement. For purposes of this representation, such Selling Stockholder hereundermay assume that when such payment, delivery and crediting occur, (x) such 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, bylaws and applicable law, (y) DTC will be registered as a “clearing corporation” within the meaning of Section 8-102 of the UCC, and (z) appropriate entries to the accounts of the several Underwriters on the records of DTC will have been made pursuant to the UCC.
(dg) The Such Selling Stockholder has duly and irrevocably executed and delivered a power of attorney (the “Power of Attorney” andfull right, together with all other similar agreements executed by the other Selling Stockholders, the “Powers of Attorney”) appointing Sxxxxxx X. Xxxxxxx and one or more other persons, as attorneys-in-fact, with full power of substitution, and with full authority (exercisable by any one or more of them) to execute and deliver this Agreement and to take such other action as may be necessary or desirable to carry out the provisions hereof on behalf of the Selling Stockholder.
(e) The Selling Stockholder has power and authority under its limited partnership authority, corporate or similar organization agreement otherwise, to enter into this Agreement, the Power of Attorney and the Custody Agreement; this .
(h) This Agreement has been duly and validly authorized, executed and delivered by or on behalf of the such Selling Stockholder; .
(i) The sale of the Stock by such Selling Stockholder, the execution, delivery and performance of this Agreement, the Power of Attorney and the Custody Agreement by the such Selling Stockholder and the consummation by the such Selling Stockholder of the transactions contemplated hereby do not and thereby will not (i) conflict with or result in a material breach or violation of any of the terms or provisions of, or constitute a material default under, any indenture, mortgage, deed of trust, loan agreement agreement, license, lease or other agreement or instrument to which the such Selling Stockholder is a party or by which the such Selling Stockholder is bound or to which any of the property or assets of the such Selling Stockholder is subject, nor will (ii) result in any violation of the provisions of the charter or by-laws (or similar organizational documents) of such actions Selling Stockholder, or (iii) result in any violation of any of its organizational documents (in the case of non-individual Selling Stockholders) or any material violation of any statute or any judgment, order, decree, rule or regulation of any court or governmental agency or body having jurisdiction over the such Selling Stockholder or the property or assets of the such Selling Stockholder; and, 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 such Selling Stockholder’s ability to perform its obligations under this Agreement.
(j) No consent, approval, authorization or order of, or filing or registration with, any court or governmental agency or body having jurisdiction over such Selling Stockholder or the property or assets of such Selling Stockholder is required for the sale of the Stock by such Selling Stockholder, the execution, delivery and performance of this Agreement by such Selling Stockholder and the consummation by such Selling Stockholder of the transactions contemplated hereby, except for the registration of the Stock under the Securities Act and such consents, approvals, authorizations, orders, filings, registrations or qualifications as may be required under the Exchange Act, by the National Association of Securities Dealers, Inc. Act and under applicable state securities laws in connection with the purchase and distribution sale of the Stock by the Underwriters, no consent, approval, authorization or order of, or filing or registration with, any such court or governmental agency or body 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.
(fk) The Pricing Disclosure Package, at the Applicable Time did not, and as of the Initial Delivery Date and as of each Option Stock Delivery Date, as the case may be, will not, contain any untrue statement of a material fact or omit to be sold state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading. The preceding sentence applies only to written information furnished to the Company by the such Selling Stockholder hereunderexpressly for use therein, it being understood and agreed that the only such information furnished by such Selling Stockholder consists of such Selling Stockholder’s Selling Stockholder Information. Each Underwriter, the Company and such Selling Stockholder agree that the “Selling Stockholder Information” with respect to a Selling Stockholder consists solely of the information furnished by such Selling Stockholder for use in connection with the offering in the Registration Statement, the Pricing Disclosure Package and the Prospectus, which is represented consists solely of (i) the name, address and number of shares of Common Stock owned by the certificates held in custody for the such Selling Stockholder, is subject before and after the offering, and (ii) the other information with respect to the interest of the Underwriters, the arrangements made by the such Selling Stockholder for such custody are to that extent irrevocable, appears in the table (and corresponding footnotes) under the obligations of the caption “Selling Stockholder hereunder shall not be terminated by any act of the Selling Stockholder, by operation of law, by the death or incapacity of any individual Selling Stockholder orStockholders,” in each case, in the case of a trustRegistration Statement, by the death Pricing Disclosure Package, the Prospectus or incapacity of in any executor or trustee or the termination of such trust, or the occurrence of any other eventIssuer Free Writing Prospectus.
(gl) The [Reserved]
(m) [Reserved]
(n) [Reserved]
(o) Such Selling Stockholder is not prompted to sell shares of Common Stock by any information concerning the Company Company, including any of its subsidiaries, that is not set forth in the Registration Statement, the Pricing Disclosure PackagePackage and the Prospectus.
(hp) The Such Selling Stockholder has not taken and will not taketaken, directly or indirectly, any action which that is designed to or which that has constituted or which might that could reasonably be expected to cause or result in the stabilization or manipulation of the price of any security of the Company to facilitate in connection with the sale or resale offering of the shares of the Stock.
(q) [Reserved]
(r) Neither such Selling Stockholder nor any of its subsidiaries (to the extent applicable), nor any director or officer of such Selling Stockholder or any of its subsidiaries (to the extent applicable) nor, to the knowledge of such Selling Stockholder, any employee of such 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 such 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 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 such 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 reasonably designed to ensure, and which are reasonably expected to continue to ensure, continued compliance therewith. Neither such 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 such 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 such 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 such Selling Stockholder, threatened.
(t) Neither such Selling Stockholder nor any of its subsidiaries (to the extent applicable), directors or officers, nor, to the knowledge of such Selling Stockholder, any of such Selling Stockholder or any agent, controlled affiliate or other person associated with or acting on behalf of such 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, Cuba, Iran, North Korea, Syria, the Crimea region of Ukraine, the so-called Donetsk People’s Republic and the so-called Luhansk People’s Republic); and such 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. Such 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 any 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 such Selling Stockholder, as to matters covered thereby, to each Underwriter.
Appears in 1 contract
Representations, Warranties and Agreements of the Selling Stockholders. Each Selling Stockholder severally and not jointly represents, warrants and agrees that:
(a) Neither the The Selling Stockholder nor any person acting on behalf of has and immediately prior to the Selling Stockholder (other than, if applicable, the Company and the Underwriters) has used or referred to any “free writing prospectus” applicable Delivery Date (as defined in Rule 405), relating to the Stock;
(bSection 5 hereof) The Selling Stockholder has, and immediately prior to any Delivery Date on which the Selling Stockholder is selling shares of Stock, the Selling Stockholder will have good and valid title to, or a valid “security entitlement” within to the meaning of Section 8-501 of the New York Uniform Commercial Code (the “UCC”) the shares of 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, will pass to the several Underwriters.
(cb) The Selling Stockholder has placed in custody under a custody agreement Custody Agreement (the “Custody Agreement” and, together with all other similar agreements executed by the other Selling Stockholders, the “Custody Agreements”) with the American Stock Transfer & Trust Company, as custodian (the “Custodian”), for delivery under this Agreement, certificates in negotiable form (with signature guaranteed by a commercial bank or trust company having an office or correspondent in the United States or a member firm of the New York or American Stock Exchanges) representing the shares of Stock to be sold by the Selling Stockholder hereunder.
(dc) The Selling Stockholder has duly and irrevocably executed and delivered a power of attorney (the “Power of Attorney” and, together with all other similar agreements instruments executed by the other Selling Stockholders, the “Powers of Attorney”) appointing Sxxxxxx X. Xxxxxxx and one or more other persons, the persons named therein as attorneys-in-fact, with full power of substitution, and with full authority (exercisable by any one or more of them) to execute and deliver this Agreement on such Selling Stockholder’s behalf and to take such other action as may be necessary or desirable to carry out the provisions hereof on behalf of the Selling Stockholder.
(ed) The Selling Stockholder has full right, power and authority under its limited partnership or similar organization agreement to enter into this Agreement, the Power of Attorney and the Custody Agreement; this Agreement has been duly and validly authorized, executed and delivered by or on behalf of the Selling Stockholder; the execution, delivery and performance of this Agreement, the Power of Attorney and the Custody Agreement by the Selling Stockholder, the compliance by the Selling Stockholder with all of the applicable provisions of this Agreement, the Power of Attorney and the Custody Agreement, and the consummation by the Selling Stockholder of the Transactions and the other transactions contemplated hereby and thereby will not (i) conflict with or result in a material breach or violation of any of the terms or provisions of, or constitute a material default under, any indenture, mortgage, deed of trust, loan 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 will unless such actions conflict, breach, violation or default would not adversely affect such Selling Stockholder’s ability to perform any of its obligations under this Agreement, the Power of Attorney and the Custody Agreement or any of the transactions contemplated hereby and thereby, (ii) result in any violation of the provisions of any partnership or limited liability company agreement, certificate of its incorporation, by-laws, operating agreement, deed of trust or other similar agreement or organizational documents document of each Selling Stockholder that is not a natural person or (iii) result in the case of non-individual Selling Stockholders) or 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 or the property or assets of the Selling Stockholder; and, and except for the registration of the Stock under the Securities Act and such consents, approvals, authorizations, registrations or qualifications as may be required under the Exchange Act, by the National Association of Securities Dealers, Inc. Act and under applicable state securities laws in connection with the purchase and distribution of the Stock by the Underwriters, no consent, approval, authorization or order of, or filing or registration with, any such court or governmental agency or body is required for the execution, delivery and performance of this Agreement, the Power of Attorney or the Custody Agreement by the Selling Stockholder and Stockholder, the consummation compliance by the Selling Stockholder will all of the applicable provisions of this Agreement, the Power of Attorney and the Custody Agreement, and the consummation of the Transactions and the other transactions contemplated hereby and thereby.
(e) If listed on Schedule 4 hereto, to the knowledge of such Selling Stockholder, the Registration Statement, the Prospectus and the Sale Preliminary Prospectus, and any further amendments or supplements to the Registration Statement, the Prospectus or the Sale Preliminary 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 applicable effective date (as to the Registration Statement and any amendment thereto), as of the applicable filing date (as to the Prospectus and any amendment or supplement thereto) and as of the time of sale (including, without limitation, a contract of sale) of the Stock (as to the Sale Preliminary 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; provided that no representation or warranty is made as to information contained in or omitted from the Registration Statement, the Prospectus or the Sale Preliminary Prospectus in reliance upon and in conformity with written information furnished to the Company through the Representatives by or on behalf of any Underwriter specifically for inclusion therein.
(f) The Stock information with respect to such Selling Stockholder contained in the Registration Statement, the Prospectus or the Sale Preliminary Prospectus (as amended or supplemented), as of the applicable date set forth in each of the Prospectus and the Sale Preliminary Prospectus, that is based upon information furnished to the Company by such Selling Stockholder in writing does not contain any untrue statement of a material fact or omit to state a material fact required to be sold by stated therein or necessary to make the Selling Stockholder hereunder, which is represented by the certificates held in custody for the Selling Stockholder, is subject to the interest of the Underwriters, the arrangements made by the Selling Stockholder for such custody are to that extent irrevocable, and the obligations of the Selling Stockholder hereunder shall not be terminated by any act of the Selling Stockholder, by operation of law, by the death or incapacity of any individual Selling Stockholder orstatements therein, in the case light of a trustthe circumstances under which they were made, by the death or incapacity of any executor or trustee or the termination of such trust, or the occurrence of any other eventnot misleading.
(g) The If listed on Schedule 4 hereto, such Selling Stockholder is not prompted has no reason to sell shares believe that the representations and warranties of Common Stock by any information concerning the Company that is contained in Section 1 hereof are not set forth in the Pricing Disclosure Packagematerially true and correct.
(h) The Selling Stockholder has not taken and will not take, directly or indirectly, any action which is designed prohibited by Regulation M under the Securities Act with respect to or which has constituted or 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 of the Stock.
(i) The Selling Stockholder is not prompted to sell shares of Common Stock by any material information concerning the Company which is not set forth in the Registration Statement, the Prospectus and the Sale Preliminary Prospectus.
(j) This Agreement has been duly authorized, executed and delivered by or on behalf of the Selling Stockholder.
Appears in 1 contract
Representations, Warranties and Agreements of the Selling Stockholders. Each Selling Stockholder Stockholder, severally and not jointly, represents, warrants and agrees that:
(a) The Selling Stockholder, if an entity, 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 Underwriters) has used or referred to any “free writing prospectus” (as defined in Rule 405), 405 under the Securities Act) relating to the Stock;.
(bc) The Selling Stockholder has, and immediately prior to any Delivery Date on which the Selling Stockholder is selling shares of Stock, the Selling Stockholder will have 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”) the shares of Stock to be sold by the Selling Stockholder hereunder on such Delivery Datein respect thereof, free and clear of all liens, encumbrances, equities equities, community property rights, restrictions on transfer 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 except for any liens, encumbrances, equities or claims, will pass to claims arising under the several Underwriters.
(c) 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 the Company, as custodian (the “Custodian”), for delivery under this Agreement, certificates in negotiable form (with signature guaranteed by a commercial bank or trust company having an office or correspondent in the United States or a member firm of the New York or American Stock Exchanges) representing the shares of Stock to be sold by the Selling Stockholder hereunder.
(d) The Selling Stockholder has duly and irrevocably executed and delivered a power of attorney (the “Power of Attorney” and, together with all other similar agreements executed by the other Selling Stockholders, the “Powers of Attorney”) appointing Sxxxxxx X. Xxxxxxx and one or more other persons, as attorneys-in-fact, with full power of substitution, and with full authority (exercisable by any one or more of them) to execute and deliver this Agreement and to take such other action as may be necessary or desirable to carry out the provisions hereof on behalf of the Selling Stockholder.
(e) The Selling Stockholder has power and authority under its limited partnership or similar organization agreement to enter into this Agreement, the Power of Attorney and the Custody Agreement; this Agreement has been duly and validly authorized, executed and delivered by or on behalf of the Selling Stockholder; the execution, delivery and performance of this 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 will not conflict with or result in a material breach or violation of any of the terms or provisions of, or constitute a material default under, any indenture, mortgage, deed of trust, loan 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 will such actions result in any violation of any of its organizational documents (in the case of non-individual Selling Stockholders) or 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 or the property or assets of the Selling Stockholder; and, except for the registration of the Stock under the Securities Act and such consents, approvals, authorizations, registrations or qualifications as may be required under the Exchange Act, by the National Association of Securities Dealers, Inc. and under applicable state securities laws in connection with the purchase and distribution of the Stock by the Underwriters, no consent, approval, authorization or order of, or filing or registration with, any such court or governmental agency or body 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.
(f) The Stock to be sold by the Selling Stockholder hereunder, which is represented by the certificates held in custody for the Selling Stockholder, is subject to the interest of the UnderwritersUnderwriters and the other Selling Stockholders thereunder, the arrangements made by the Selling Stockholder for such custody are to that extent irrevocable, and the obligations of the Selling Stockholder hereunder shall not be terminated by any act of the Selling Stockholder, by operation of law, by the death or incapacity of any individual 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.
(e) The Stock to be sold by the Selling Stockholder hereunder is subject to the interest of the Underwriters, and the obligations of the Selling Stockholder hereunder shall not be terminated by any act of the Selling Stockholder, by operation of law or the occurrence of any other event.
(f) Upon delivery of the Stock to be sold by the Selling Stockholder and payment therefor pursuant hereto (i) the Underwriters will acquire good and marketable title to the Stock free and clear of all liens, encumbrances, equities, community property rights, restrictions on transfer or claims, (ii) the Underwriters shall be “protected purchasers” of such Stock within the meaning of Section 8-303 of the UCC, and (iii) no action based on any “adverse claim”, within the meaning of Section 8-102 of the UCC, to such Stock may be asserted against the Underwriters with respect to such security entitlement.
(g) 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 Worldwide Stock Transfer, LLC, as custodian (the “Custodian”), for delivery under this Agreement, certificates in negotiable form (with signature guaranteed by a participant in the Securities Transfer Agents Medallion Program, the New York Stock Exchange Medallion Signature Program or the Stock Exchange Medallion Program) representing the shares of Stock to be sold by the Selling Stockholder hereunder.
(h) The Selling Stockholder has duly and irrevocably executed and delivered a power of attorney (the “Power of Attorney” and, together with all other similar agreements executed by the other Selling Stockholders, the “Powers of Attorney”) appointing the Custodian and Messrs. Mxxxxxx X. Xxxxxx and Aviv Hillo as attorneys-in-fact, with full power of substitution, and with full authority (exercisable by any one or more of them) to execute and deliver this Agreement and to take such other action as may be necessary or desirable to carry out the provisions hereof on behalf of the Selling Stockholder.
(i) The Selling Stockholder has full right, power and authority, corporate or otherwise, to enter into this Agreement, the Custody Agreements and the Powers of Attorney.
(j) This Agreement has been duly and validly authorized, executed and delivered by or on behalf of the Selling Stockholder.
(k) The Powers of Attorney and the Custody Agreements have been duly and validly authorized, executed and delivered by or on behalf of the Selling Stockholder and constitute valid and legally binding obligations of the Selling Stockholder enforceable against the Selling Stockholder in accordance with their terms, subject to (i) the effects of bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium and other similar laws relating to or affecting creditors’ rights generally, (ii) general equitable principles (whether considered in a proceeding in equity or at law), and (iii) an implied covenant of good faith and fair dealing.
(l) The issue and sale of the Stock by the Selling Stockholder, the execution, delivery and performance of this Agreement, the Custody Agreements and the Powers of Attorney 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 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 (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.
(m) 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, the Custody Agreements or the Powers of Attorney by the Selling Stockholder and the consummation by the Selling Stockholder of the transactions contemplated hereby and thereby, except for the registration of the 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 Stock by the Underwriters.
(n) 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 through the Representative by or on behalf of any Underwriter specifically for inclusion therein, which information is specified in Section 10(f).
(o) To the knowledge of the Selling Stockholder, the Prospectus will not, as of its date or as of the applicable Delivery Date, contain an untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not 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).
(p) To the knowledge of the Selling Stockholder, the documents incorporated by reference in any Preliminary Prospectus or the Prospectus did not, and any further documents filed and incorporated by reference therein will not, when filed with the Commission, contain an untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading.
(q) 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 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 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).
(r) To the knowledge of the Selling Stockholder, the Pricing Disclosure Package, when taken together with each Issuer Free Writing Prospectus listed in Schedule V hereto, did not, as of the Applicable Time, contain an untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading; provided that 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 Representative by or on behalf of any Underwriter specifically for inclusion therein, which information is specified in Section 10(f).
(s) The Selling Stockholder is not prompted to sell shares of Common Stock by any information concerning the Company that is not set forth in the Registration Statement, the Pricing Disclosure PackagePackage and the Prospectus.
(ht) The Selling Stockholder has not taken and will not taketaken, directly or indirectly, any action which that is designed to or which that has constituted or which might that could reasonably be expected to cause or result in the stabilization or manipulation of the price of any security of the Company to facilitate in connection with the sale or resale offering of the shares of the Stock.
(u) 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.
Appears in 1 contract
Representations, Warranties and Agreements of the Selling Stockholders. Each Selling Stockholder severally represents, and not jointly warrants and agrees with the several Underwriters that:
(a) Neither the Selling Stockholder nor any person acting on behalf of the Selling Stockholder (other than, if applicable, the Company and the Underwriters) has used or referred to any “free writing prospectus” (as defined in Rule 405), relating to the Stock;
(b) The Selling Stockholder has, and immediately prior to any the applicable Delivery Date on which the Selling Stockholder is selling shares of Stock, (as defined in Section 5) the Selling Stockholder will have good and have, valid title to, or a valid “security entitlement” within to the meaning of Section 8-501 of the New York Uniform Commercial Code (the “UCC”) the shares of Stock to be sold by the Selling Stockholder hereunder on such Delivery Datedate, free and clear of all liens, encumbrances, equities or claimsclaims (except for such claims as may arise under this Agreement or the Irrevocable Power of Attorney and Custody Agreement entered into in connection herewith); and upon delivery of such shares and payment therefor pursuant hereto, good and the several Underwriters will acquire valid title to such shares, free and clear of all liens, encumbrances, equities or claims, will pass to the several Underwriters.
(cb) The Selling Stockholder has placed in custody under a custody agreement an Irrevocable Power of Attorney and Custody Agreement (the “"Custody Agreement” " and, together with all other similar agreements executed by the other Selling Stockholders, the “"Custody Agreements”") with the CompanyLaSalle Bank National Association, as custodian (the “"Custodian”"), for delivery under this Agreement, certificates in negotiable form (with signature guaranteed by a commercial bank or trust company having an office or correspondent in the United States or a member firm of the New York or American Stock Exchanges) representing the shares of Stock to be sold by the Selling Stockholder hereunder.
(dc) The Selling Stockholder has duly and irrevocably executed and delivered a power of attorney (the “"Power of Attorney” " and, together with all other similar agreements instruments executed by the other Selling Stockholders, the “"Powers of Attorney”) "), contained within the Custody Agreement, appointing Sxxxxxx X. Xxxxxxx and one or more other persons, the persons named therein as attorneys-in-fact, with full power of substitution, and with full authority (exercisable by any one or more of them) to execute and deliver this Agreement on such Selling Stockholder's behalf and to take such other action as may be necessary or desirable to carry out the provisions hereof on behalf of the Selling Stockholder.
(ed) The Selling Stockholder has full right, power and authority under its limited partnership or similar organization agreement to enter into this Agreement, the Power of Attorney Agreement and the Custody Agreement; this Agreement has been duly and validly authorized, executed and delivered by or on behalf of the Selling Stockholder; the execution, delivery and performance of this Agreement, the Power of Attorney Agreement and the Custody Agreement by the Selling Stockholder and the consummation by the Selling Stockholder of the transactions contemplated hereby and thereby will not (i) conflict with or result in a material breach or violation of any of the terms or provisions of, or constitute a material default under, any indenture, mortgage, deed of trust, loan 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 nor, for each Selling Stockholder that is not a natural person, (ii) will such actions result in any violation of the provisions of (A) any partnership or limited liability company agreement, certificate of its incorporation, by-laws, operating agreement, deed of trust or other similar agreement or organizational documents document of the Selling Stockholder or (in the case of non-individual Selling StockholdersB) or 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 or the property or assets of the Selling Stockholder, except in the case of clauses (i) and (ii)(B) for such conflicts, breaches, violations and defaults as would not reasonably be expected to adversely affect such Selling Stockholder's ability to perform its obligations hereunder and under the Custody Agreement; and, and except for the registration of the Stock under the Securities Act and such consents, approvals, authorizations, registrations or qualifications as have been obtained or as may be required under the Exchange Act, by Act the National Association of Securities Dealers, Inc. and under NASD or applicable state securities laws in connection with the purchase and distribution of the Stock by the Underwriters, no consent, approval, authorization or order of, or filing or registration with, any such court or governmental agency or body is required for the execution, delivery and performance of this Agreement, the Power of Attorney Agreement or the Custody Agreement by the Selling Stockholder and the consummation by the Selling Stockholder of the transactions contemplated hereby and thereby.
(fe) The Stock to be sold by To the Selling Stockholder hereunder, which is represented by the certificates held in custody for the Selling Stockholder, is subject to the interest of the Underwriters, the arrangements made by the Selling Stockholder for such custody are to that extent irrevocable, and the obligations of the Selling Stockholder hereunder shall not be terminated by any act knowledge of the Selling Stockholder, by operation as of lawthe Effective Time the Registration Statement did not and any further amendment thereto will not, by as of the death applicable effective date, contain an untrue statement of a material fact or incapacity omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading, and the Prospectus and any amendment or supplement thereto will not, as of any individual Selling Stockholder orthe applicable filing date and each 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 case light of a trustthe circumstances under which they were made, not misleading; provided, that, the representations and warranties in this Section 2(e) only apply to statements or omissions in the Registration Statement and the Prospectus based on and in conformity with information relating to such Selling Stockholder furnished to the Company in writing by such Selling Stockholder expressly for use therein and shall not apply to statements in or omissions from the death or incapacity of any executor or trustee Registration Statement or the termination of such trustProspectus made in reliance upon and in conformity with information furnished to the Company in writing by any Underwriter through Xxxxxx Brothers expressly for use in the Prospectus, or which information is limited to the occurrence of any other eventinformation set forth in Section 10(f).
(g) The Selling Stockholder is not prompted to sell shares of Common Stock by any information concerning the Company that is not set forth in the Pricing Disclosure Package.
(hf) The Selling Stockholder has not taken and will not take, directly or indirectly, any action which is designed to or which has constituted or which might would 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 Stock in violation of Regulation M under the Securities Act.
(g) This Agreement has been duly authorized, executed and delivered by or on behalf of the StockSelling Stockholder.
Appears in 1 contract
Representations, Warranties and Agreements of the Selling Stockholders. Each 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 Underwriters) has used or referred to any “free writing prospectus” (as defined in Rule 405), relating to the Stock;
(b) The Selling Stockholder has, and immediately prior to any Delivery the Closing Date on which or the Selling Stockholder is selling shares of StockOption Closing Date, as the case may be (each as defined in Section 3 hereof) the Selling Stockholder will have 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”) to the shares of Common Stock to be sold by the Selling Stockholder hereunder on such Delivery Closing Date or the Option Closing Date, as the case may be, free and clear of all liens, encumbrances, equities equities, claims, security interests or claimsother restrictions whatsoever (including any restrictions on transfer); and upon delivery of such shares and payment therefor pursuant hereto, good and valid title to such shares, free and clear of all liens, encumbrances, equities or claims, will pass to the several UnderwritersUnderwriters who have purchased such shares in good faith and without notice of any such lien, encumbrance, equity or claim or any other adverse claim within the meaning of the Uniform Commercial Code. Except for this Agreement, there are no outstanding options, warrants, rights, or other agreements or arrangements requiring the Selling Stockholder at any time to transfer any Shares to be sold hereunder by the Selling Stockholder.
(cb) 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 the CompanyFirst Union National Bank of North Carolina, as custodian (the “"Custodian”"), for delivery under this Agreement, certificates in negotiable form (with signature guaranteed by a commercial bank or trust company having an office or correspondent in the United States or a member firm of the New York or American Stock Exchanges) representing the shares of Stock Shares to be sold by the Selling Stockholder hereunder.
(dc) The Selling Stockholder has duly and irrevocably executed and delivered a power of attorney (the “"Power of Attorney” " and, together with all other similar agreements executed by the other Selling Stockholders, the “"Powers of Attorney”") appointing Sxxxxxx X. Xxxxxxx and one or more other persons, persons as attorneys-in-fact, with full power of substitution, and with full authority (exercisable by any one or more of them) to execute and deliver this Agreement on behalf of such Selling Stockholder and to take such other action as may be necessary or desirable to carry out the provisions hereof on behalf of the Selling Stockholder.
(ed) The Selling Stockholder has has, and at all times through the Closing Date or the Option Closing Date, as the case may be will have, full legal right and power and authority under its limited partnership or similar organization agreement all authorizations and approvals required by law to enter into execute, deliver and perform this Agreement, the Power of Attorney and the Custody Agreement; this . This Agreement, the Power of Attorney and the Custody Agreement has have been duly and validly authorizedauthorized (if applicable), executed and delivered by or on behalf of such Selling Stockholder and are and at all times through the Closing Date will be the legal, valid and binding agreements of such Selling Stockholder; , enforceable against such Selling Stockholder in accordance with their terms (except as such enforceability may be limited by applicable bankruptcy, insolvency, reorganization, or other similar laws relating to creditors' rights generally, and general equitable principles relating to the availability of remedies, and as rights to indemnity or contribution may be limited by state or federal securities laws and the public policy underlying such laws).
(e) The execution, delivery and performance of this 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 will not conflict with or result in a material breach or violation of any of the terms or provisions of, or constitute a material default (or result in acceleration of any obligation, termination of any right or creation of any lien or encumbrance) under, any material indenture, mortgage, deed of trust, loan 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 will such actions result in any violation of any the provisions of its the organizational documents of the Selling Stockholder (in the case of non-individual Selling Stockholdersif applicable) or 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 or the property or assets of the Selling Stockholder; and, except for the registration of the Stock Shares under the Securities Act and such consents, approvals, authorizations, registrations or qualifications as may be required by the NASD or under the Exchange Act, by the National Association of Securities Dealers, Inc. Act and under applicable state securities laws in connection with the purchase and distribution of the Stock Shares by the Underwriters, no consent, approval, authorization or order of, or filing or registration with, any such court or governmental agency or body is required for the execution, delivery and performance of this Agreement, 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.
(f) The Stock Registration Statement, each Preliminary Prospectus, the Prospectus, any amendment or supplement thereto, or any document incorporated by reference therein do not, and the Prospectus and any amendments or supplements to be sold or documents incorporated by reference in the Registration Statement or the Prospectus, when they become effective or are filed with the Commission or were first used to confirm sales of the Firm Shares, as the case may be, will not, contain any untrue statement of a material fact regarding the Selling Stockholder hereunder, which is represented by the certificates held in custody for the Selling Stockholder, is subject or omit to the interest of the Underwriters, the arrangements made by state any material fact regarding the Selling Stockholder for such custody are required to be stated therein or necessary to make the statements therein not misleading; provided, however, that extent irrevocable, no representation or warranty is made as to information contained in or omitted from the Registration Statement or the Prospectus in reliance upon and in conformity with written information furnished to the obligations of Company through the Selling Stockholder hereunder shall not be terminated Representatives by any act of the Selling Stockholder, by operation of law, by the death or incapacity on behalf of any individual 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 eventUnderwriter specifically for inclusion therein.
(g) The representations and warranties of such Selling Stockholder is not prompted to sell shares of Common Stock by any information concerning the Company that is not set forth in the Pricing Disclosure PackageCustody Agreement and the Power of Attorney, are, and on the Closing Date of Option Closing Date, as the case may be, will be, true and correct.
(h) There is not pending or, to the knowledge of such Selling Stockholder, threatened against the Selling Stockholder any action, suit or proceeding which (i) questions the validity of this Agreement or of any action taken or to be taken by the Selling Stockholder pursuant to or in connection with this Agreement or (ii) is required to be disclosed in or incorporated by reference in the Registration Statement which is not so disclosed or incorporated.
(i) The Selling Stockholder has not taken and will not take, directly or indirectly, any action which is designed to stabilize or which has constituted manipulate the price of any security of the Company, or which might in the future reasonably be expected to cause or result in the stabilization or manipulation of the price of any security of the Company Company, to facilitate the sale or resale of the shares of Shares pursuant to the Stockdistribution contemplated by this Agreement.
Appears in 1 contract
Representations, Warranties and Agreements of the Selling Stockholders. 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 Underwriters) has used or referred to any “"free writing prospectus” " (as defined in Rule 405), relating to the Stock;.
(b) The Selling Stockholder has, and immediately prior to any Delivery Date on which the Selling Stockholder is selling shares of Stock, the Selling Stockholder will have 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 of Stock to be sold by the Selling Stockholder hereunder on such Delivery Date, free and clear of all liens, encumbrances, equities or claims; and upon delivery of such shares and payment therefor pursuant hereto, good and valid title to such shares, free and clear of all liens, encumbrances, equities or claims, will pass to the several Underwriters.
(c) 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 the Company, as custodian (the “Custodian”), for delivery under this Agreement, certificates in negotiable form (with signature guaranteed by a commercial bank or trust company having an office or correspondent in the United States or a member firm of the New York or American Stock Exchanges) representing the shares of Stock to be sold by the Selling Stockholder hereunder.
(d) The Selling Stockholder has duly and irrevocably executed and delivered a power of attorney (the “Power of Attorney” and, together with all other similar agreements executed by the other Selling Stockholders, the “Powers of Attorney”) appointing Sxxxxxx X. Xxxxxxx and one or more other persons, as attorneys-in-fact, with full power of substitution, and with full authority (exercisable by any one or more of them) to execute and deliver this Agreement and to take such other action as may be necessary or desirable to carry out the provisions hereof on behalf of the Selling Stockholder.
(e) The Selling Stockholder has power and authority under its limited partnership or similar organization agreement to enter into this Agreement, the Power of Attorney and the Custody Agreement; this Agreement has been duly and validly authorized, executed and delivered by or on behalf of the Selling Stockholder; the execution, delivery and performance of this 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 will not conflict with or result in a material breach or violation of any of the terms or provisions of, or constitute a material default under, any indenture, mortgage, deed of trust, loan 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 will such actions result in any violation of any of its organizational documents (in the case of non-individual Selling Stockholders) or 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 or the property or assets of the Selling Stockholder; and, except for the registration of the Stock under the Securities Act and such consents, approvals, authorizations, registrations or qualifications as may be required under the Exchange Act, by the National Association of Securities Dealers, Inc. and under applicable state securities laws in connection with the purchase and distribution of the Stock by the Underwriters, no consent, approval, authorization or order of, or filing or registration with, any such court or governmental agency or body 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.
(f) The Stock to be sold by the Selling Stockholder hereunder, hereunder which is represented by the certificates held in custody for the Selling Stockholder, is subject to the interest of the UnderwritersUnderwriters and the other Selling Stockholders thereunder, the arrangements made by the Selling Stockholder for such custody are to that extent irrevocable, and the obligations of the Selling Stockholder hereunder shall not (except as expressly permitted by this Agreement) be terminated by any act of the Selling Stockholder, by operation of law, by the death or incapacity of any individual 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) Upon payment for the Stock to be sold by such Selling Stockholder, delivery of such Stock, as directed by the Underwriters, to Cede & Co. ("Cede") or such other nominee as may be designated by The Depository Trust Company ("DTC"), registration of such Stock in the name of Cede or such other nominee and the crediting of such Stock on the books of DTC to securities accounts of the Underwriters (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 Stock), (i) DTC shall be a "protected purchaser" of such Stock within the meaning of Section 8-303 of the UCC, (ii) under Section 8-501 of the UCC, the Underwriters will acquire a valid security entitlement in respect of such Stock and (iii) no action based on any "adverse claim," within the meaning of Section 8-102 of the UCC, to such Stock may be asserted against the Underwriters with respect to such security entitlement. For purposes of this representation, 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 certificate of incorporation, bylaws and applicable law, (B) DTC will be registered as a "clearing corporation" within the meaning of Section 8-102 of the UCC and (C) appropriate entries to the accounts of the several Underwriters on the records of DTC will have been made pursuant to the UCC.
(e) 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 the Company, as custodian (the "Custodian"), for delivery under this Agreement, certificates in negotiable form (with signature guaranteed by a participant in the Securities Transfer Agents Medallion Program, the New York Stock Exchange Medallion Signature Program or the Stock Exchange Medallion Program, unless otherwise agreed by the Representative) representing the shares of Stock to be sold by the Selling Stockholder hereunder.
(f) The Selling Stockholder has duly and irrevocably executed and delivered a power of attorney (the "Power of Attorney" and, together with all other similar agreements executed by the other Selling Stockholders, the "Powers of Attorney") appointing the Custodian and Dr. Xxxx Xxxx Xxxxxxx, and Messrs. Xxxxxx X. Xxxxxxxxxx and Xxxxxxx X. Xxxxxxxx as attorneys-in-fact, with full power of substitution, and with full authority (exercisable by any one or more of them) to execute and deliver this Agreement and to take such other action as may be necessary or desirable to carry out the provisions hereof on behalf of the Selling Stockholder.
(g) The Selling Stockholder has full right, power and authority, corporate or otherwise, to enter into this Agreement, the Custody Agreement and the Power of Attorney.
(h) This Agreement has been duly and validly authorized, executed and delivered by or on behalf of the Selling Stockholder.
(i) The Power of Attorney and the Custody Agreement have been duly and validly authorized, executed and delivered by or on behalf of the Selling Stockholder and constitute valid and legally binding obligations of the Selling Stockholder enforceable against the Selling Stockholder in accordance with their terms, subject to (i) the effects of bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium and other similar laws relating to or affecting creditors' rights generally, (ii) general equitable principles (whether considered in a proceeding in equity or at law) and (iii) an implied covenant of good faith and fair dealing.
(j) The execution, delivery and performance of this Agreement, the Custody Agreement and the Power of Attorney 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, bylaws, partnership agreement, certificate of limited partnership, limited liability company agreement, operating agreement or certificate of formation (or similar organizational documents) of the Selling Stockholder or of the deed or declaration of trust (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 clauses (i) and (iii) above, any such conflict, breach, violation or default that would not, individually or in the aggregate, adversely affect the ability of the Selling Stockholder to perform its obligations hereunder and under the Custody Agreement and the Power of Attorney.
(k) 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, the Custody Agreement or the Power of Attorney by the Selling Stockholder and the consummation by the Selling Stockholder of the transactions contemplated hereby and thereby, except for the registration of the Stock under the Securities Act and such consents, approvals, authorizations, registrations or qualifications as may be required under the Exchange Act and applicable state or foreign securities laws in connection with the purchase and sale of the Stock by the Underwriters.
(l) The Selling Stockholder has no actual knowledge that the representations and warranties of the Company contained in Section 1 hereof are not materially true and correct.
(m) 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 (in the case of the Prospectus, in the light of the circumstances under which they were made) not misleading; provided that this paragraph (m) shall apply to the Selling Stockholder only to the extent that the statements or omissions from the Registration Statement or the Prospectus were made in reliance upon and in conformity with written information relating to the Selling Stockholder provided by the Selling Stockholder to the Company expressly and specifically for inclusion therein, it being understood and agreed that the only such information furnished by such Selling Stockholder to the Company (the "Selling Stockholder Information") consists of the information that appears in the table (and the corresponding footnotes thereto) under the caption "Principal and Selling Stockholders" in the Prospectus.
(n) 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; provided that this paragraph (n) shall apply to the Selling Stockholder only to the extent that the statements or omissions from the Registration Statement or the Prospectus were made in reliance upon and in conformity with the Selling Stockholder Information.
(o) The Pricing Disclosure Package (together with the information included on Schedule 3 hereto) 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 this paragraph (o) shall apply to the Selling Stockholder only to the extent that the statements or omissions from the Registration Statement or the Prospectus were made in reliance upon and in conformity with the Selling Stockholder Information.
(p) Each Issuer Free Writing Prospectus (including, without limitation, any road show that is a free writing prospectus under Rule 433), when considered together with the Pricing Disclosure Package (together with the information included on Schedule 3 hereto) 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, except that the price of the Stock and disclosures directly relating thereto will be included on the cover page of the Prospectus; provided that this paragraph (p) shall apply to the Selling Stockholder only to the extent that the statements or omissions from each Issuer Free Writing Prospectus were made in reliance upon and in conformity with the Selling Stockholder Information.
(q) The Selling Stockholder is not prompted to sell shares of Common Stock by any information concerning the Company that is not set forth in the Registration Statement, the Pricing Disclosure PackagePackage and the Prospectus.
(hr) The Selling Stockholder has not taken and will not take, directly or indirectly, any action which that is designed to or which that has constituted or which might that could reasonably be expected to cause or result in the stabilization or manipulation of the price of any security of the Company to facilitate the sale or resale of the shares of the Stock.
(s) The sale of the 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 Selling Stockholder (or an officer or representative thereof, as such) and delivered to the Representative or counsel for the Underwriters in connection with the offering of the Stock shall be deemed a representation and warranty by such Selling Stockholder, as to matters covered thereby, to each Underwriter.
Appears in 1 contract
Representations, Warranties and Agreements of the Selling Stockholders. Each 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 Underwriters) has used or referred to any “free writing prospectus” (as defined in Rule 405), relating to the Stock;
(b) The Selling Stockholder has, and immediately prior to any the First Delivery Date on which the Selling Stockholder is selling shares of Stock, (as defined in Section 5 hereof) 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”) to the shares of 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, will pass to the several Underwriters.
(cb) 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 the CompanyFirst Security Bank of Utah, N.A., as custodian (the “"Custodian”"), for delivery under this Agreement, certificates in negotiable form (with signature guaranteed by a commercial bank or trust company having an office or correspondent in the United States or a member firm of the New York or American Stock Exchanges) representing the shares of Stock to be sold by the Selling Stockholder hereunder.
(dc) The Selling Stockholder has duly and irrevocably executed and delivered a power of attorney (the “"Power of Attorney” " and, together with all other similar agreements executed by the other Selling Stockholders, the “"Powers of Attorney”") appointing Sxxxxxx Richxxx X. Xxxxxxx and one or more other personsXxxxxxxx xx Gary X. Xxxxx, xx either of them, as attorneys-in-fact, with full power of substitution, and with full authority (exercisable by any one or more of them) to execute and deliver this Agreement and to take such other action as may be necessary or desirable to carry out the provisions hereof on behalf of the Selling Stockholder.
(ed) The Selling Stockholder has full right, power and authority under its limited partnership or similar organization agreement to enter into this Agreement, the Power of Attorney and the Custody Agreement; this Agreement has been duly and validly authorized, executed and delivered by or on behalf of the Selling Stockholder; the execution, delivery and performance of this Agreement, the Power of Attorney and the Custody 8 Agreement by the Selling Stockholder and the consummation by the Selling Stockholder of the transactions contemplated hereby and thereby will not conflict with or result in a material breach or violation of any of the terms or provisions of, or constitute a material default under, any indenture, mortgage, deed of trust, loan 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 will such actions result in any violation of any the provisions of its organizational documents (in the case charter or by-laws of non-individual the Selling Stockholders) Stockholder or 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 or the property or assets of the Selling Stockholder; and, except for the registration of the Stock under the Securities Act and such consents, approvals, authorizations, registrations or qualifications as may be required under the Exchange Act, by the National Association of Securities Dealers, Inc. Act and under applicable state securities laws in connection with the purchase and distribution of the Stock by the Underwriters, no consent, approval, authorization or order of, or filing or registration with, any such court or governmental agency or body 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.
(fe) The Stock Registration Statement 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 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 sold by stated therein or necessary to make the Selling Stockholder hereunder, which statements therein not misleading; provided that no representation or warranty is represented by made as to information contained in or omitted from the certificates held Registration Statement or the Prospectus in custody for the Selling Stockholder, is subject reliance upon and in conformity with written information furnished to the interest of Company through the Underwriters, the arrangements made Representatives by the Selling Stockholder for such custody are to that extent irrevocable, and the obligations of the Selling Stockholder hereunder shall not be terminated by any act of the Selling Stockholder, by operation of law, by the death or incapacity on behalf of any individual 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 eventUnderwriter specifically for inclusion therein.
(gf) 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 effective date, or the Prospectus (or any amendment or supplement thereto), as of the applicable filing date, which has adversely affected or may adversely affect the business of the Company and is not prompted to sell shares of Common Stock by any information concerning the Company that which is not set forth in the Pricing Disclosure PackageRegistration Statement and the Prospectus.
(hg) The Selling Stockholder has not taken and will not take, directly or indirectly, any action which is designed to or which has constituted or which might 9 reasonably be expected to cause or result in the stabilization or manipulation of the price of any security of the Company to facilitate the sale or resale of the shares of the Stock.
Appears in 1 contract
Representations, Warranties and Agreements of the Selling Stockholders. Each 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 Underwriters) has used or referred to any “free writing prospectus” (as defined in Rule 405), relating to the Stock;
(b) The Selling Stockholder has, and immediately prior to any each applicable Delivery Date on which the Selling Stockholder is selling shares of Stock, (as defined in Section 5 hereof) 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”) to the shares of 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, will pass to the several Underwriters.
(cb) 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 the Company[insert name of custodian], as custodian (the “"Custodian”"), for delivery under this Agreement, certificates in negotiable form (with signature guaranteed by a commercial bank or trust company having an office or correspondent in the United States or a member firm of the New York or American Stock Exchanges) representing the shares of Stock to be sold by the Selling Stockholder hereunder.
(dc) The Selling Stockholder has duly and irrevocably executed and delivered a power of attorney (the “"Power of Attorney” " and, together with all other similar agreements executed by the other Selling Stockholders, the “"Powers of Attorney”") appointing Sxxxxxx X. Xxxxxxx the Custodian and one or more other persons, as attorneys-in-fact, with full power of substitution, and with full authority (exercisable by any one or more of them) to execute and deliver this Agreement and to take such other action as may be necessary or desirable to carry out the provisions hereof on behalf of the Selling Stockholder.
(ed) The Selling Stockholder has full right, power and authority under its limited partnership or similar organization agreement to enter into this Agreement, the Power of Attorney and the Custody Agreement; this Agreement has been duly and validly authorized, executed and delivered by or on behalf of the Selling Stockholder; the execution, delivery and performance of this 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 will not conflict with or result in a material breach or violation of any of the terms or provisions of, or constitute a material default under, any indenture, mortgage, deed of trust, loan 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 will such actions result in any violation of any the provisions of its organizational documents the charter or by-laws of the Selling Stockholder (in if applicable), the case articles of non-individual partnership of the Selling StockholdersStockholder (if applicable), the deed of trust of the Selling Stockholder (if applicable) or 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 or the property or assets of the Selling Stockholder; and, except for the registration of the Stock under the Securities Act and such consents, approvals, authorizations, registrations or qualifications as may be required under the Exchange Act, by the National Association of Securities Dealers, Inc. Act and under applicable state securities laws in connection with the purchase and distribution of the Stock by the Underwriters, no consent, approval, authorization or order of, or filing or registration with, any such court or governmental agency or body 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.
(fe) The Stock Registration Statement 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 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 sold by stated therein or necessary to make the Selling Stockholder hereunder, which statements therein not misleading; provided that no representation or warranty is represented by made as to information contained in or omitted from the certificates held Registration Statement or the Prospectus in custody for the Selling Stockholder, is subject reliance upon and in conformity with written information furnished to the interest of Company through the Underwriters, the arrangements made Representatives by the Selling Stockholder for such custody are to that extent irrevocable, and the obligations of the Selling Stockholder hereunder shall not be terminated by any act of the Selling Stockholder, by operation of law, by the death or incapacity on behalf of any individual 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 eventUnderwriter specifically for inclusion therein.
(gf) 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 effective date, or the Prospectus (or any amendment or supplement thereto), as of the applicable filing date, which has adversely affected or may adversely affect the business of the Company and is not prompted to sell shares of Common Stock by any information concerning the Company that which is not set forth in the Pricing Disclosure PackageRegistration Statement and the Prospectus.
(hg) The Selling Stockholder has not taken and will not take, directly or indirectly, any action which is designed to or which has constituted or 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 of the Stock.
Appears in 1 contract
Representations, Warranties and Agreements of the Selling Stockholders. Each Selling Stockholder (other than Virginia Retirement System with respect to Section 2(e) and (f) below) 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 Underwriters) has used or referred to any “free writing prospectus” (as defined in Rule 405), relating to the Stock;
(b) The Selling Stockholder has, and immediately prior to any the Delivery Date on which the Selling Stockholder is selling shares 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”) to the shares of 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, will pass to the several Underwriters.
(cb) 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 the American Stock Transfer & Trust Company, as custodian (the “"Custodian”"), for delivery under this Agreement, certificates in negotiable form (with signature guaranteed by a commercial bank or trust company having an office or correspondent in the United States or a member firm of the New York or American Stock Exchanges) representing the shares of Stock to be sold by the Selling Stockholder hereunder.
(dc) The Selling Stockholder has duly and irrevocably executed and delivered a power of attorney (the “"Power of Attorney” " and, together with all other similar agreements executed by the other Selling Stockholders, the “"Powers of Attorney”") appointing Sxxxxxx X. Xxxxxxx the Custodian and one or more other persons, as attorneys-in-fact, with full power of substitution, and with full authority (exercisable by any one or more of them) to execute and deliver this Agreement and to take such other action as may be necessary or desirable to carry out the provisions hereof on behalf of the Selling Stockholder.
(ed) The Selling Stockholder has full right, power and authority under its limited partnership or similar organization agreement to enter into this Agreement, the Power of Attorney and the Custody Agreement; this Agreement has been duly and validly authorized, executed and delivered by or on behalf of the Selling Stockholder; the execution, delivery and performance of this 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 will not conflict with or result in a material breach or violation of any of the terms or provisions of, or constitute a material default under, any indenture, mortgage, deed of trust, loan 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 will such actions result in any violation of any the provisions of its organizational documents (in the case charter or by-laws of non-individual the Selling Stockholders) Stockholders if other than a natural person or 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 or the property or assets of the Selling Stockholder; and, except for the registration of the Stock under the Securities Act and such consents, approvals, authorizations, registrations or qualifications will have been obtained prior to the date hereof as may be required under the Exchange Act, by the National Association of Securities Dealers, Inc. Act and under applicable state or securities laws in connection with the purchase and distribution of the Stock by the Underwriters, no consent, approval, authorization or order of, or filing or registration with, any such court or governmental agency or body 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 hereby.
(e) The Registration Statement conforms, and therebythe Prospectus and any further amendments or supplements to the Registration Statement or the Prospectus will, when they it becomes effective or is filed with the Commission, as the case may be, conform in all respects to the requirements of the Securities Act and the Rules and Regulations and do not and will not, as of the applicable effective date (as to the Registration Statement and any amendment thereto) and as of the applicable filing date (as to the Prospectus and any amendment or supplement thereto) contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary (in the case of the Prospectus, in the light of the circumstances under which made) to make the statements therein not misleading; provided that no representation or warranty is made as to information contained in or omitted from the Registration Statement or the Prospectus in reliance upon and in conformity with written information furnished to the Company by or on behalf of any Underwriter specifically for inclusion therein, and provided further that this paragraph (e) should apply to the Selling Stockholders only to the extent that the statements or omissions from the Registration Statement or the Prospectus were based on written information provided by the Selling Stockholders specifically for inclusion therein, which information, with respect the Selling Stockholders, shall consist only of the names of all of the Selling Stockholders and the beneficial ownership information pertaining to all of the Selling Stockholders as set forth under the caption "Selling Security Holders" in the Prospectus.
(f) The Stock to be sold by the Selling Stockholder hereunder, which is represented by has no reason to believe that the certificates held representations and warranties of the Company contained in custody for the Selling StockholderSection 1 hereof are not materially true and correct, is subject to familiar with the interest 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 Underwriters, the arrangements made by the Selling Stockholder for such custody are to that extent irrevocable, and the obligations of the Selling Stockholder hereunder shall not be terminated by any act of the Selling Stockholder, by operation of law, by the death or incapacity of any individual Selling Stockholder or, in the case of a trust, by the death or incapacity of any executor or trustee or the termination of such trusteffective date, or the occurrence Prospectus (or any amendment or supplement thereto), as of any other event.
(g) The Selling Stockholder the applicable filing date, which has adversely affected or may adversely affect the business of the Company and is not prompted to sell shares of Common Stock by any information concerning the Company that which is not set forth in the Pricing Disclosure PackageRegistration Statement and the Prospectus.
(hg) The Selling Stockholder has not taken and will not take, directly or indirectly, any action which is designed to or which has constituted or 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 of the Stock.
Appears in 1 contract
Representations, Warranties and Agreements of the Selling Stockholders. Each Selling Stockholder Stockholder, severally and not jointly, represents, warrants and agrees that:
(a) Neither the such Selling Stockholder nor any person acting on behalf of the such Selling Stockholder (other than, if applicable, the Company and the Underwriters) has used or referred to any “free writing prospectus” (as defined in Rule 405), relating to the Stock;
(b) The Such Selling Stockholder has, and immediately prior to any Delivery Date on which the such Selling Stockholder is selling shares of Stock, the such Selling Stockholder will have 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 of Stock to be sold by the such Selling Stockholder hereunder on such Delivery Date, free and clear of all liens, encumbrances, equities or claims; and upon delivery of such shares and payment therefor pursuant hereto, good and valid title to such shares, free and clear of all liens, encumbrances, equities or claims, will pass to the several Underwriters.
(c) 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 the Company, as custodian (the “Custodian”), for delivery under this Agreement, certificates in negotiable form (with signature guaranteed by a commercial bank or trust company having an office or correspondent in the United States or a member firm of the New York or American Stock Exchanges) representing the shares of Stock to be sold by the such Selling Stockholder hereunderhereunder is subject to the interest of the Underwriters and the obligations of such Selling Stockholder hereunder shall not be terminated by any act of such Selling Stockholder, by operation of law, by the death or incapacity of any individual 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 other than as provided in this Agreement.
(d) Upon payment for the Stock to be sold by such Selling Stockholder, delivery of such Stock, as directed by the Underwriters, to Cede & Co. (“Cede”) or such other nominee as may be designated by The Depository Trust Company (“DTC”), registration of such Stock in the name of Cede or such other nominee and the crediting of such Stock on the books of DTC to securities accounts of the Underwriters (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 Stock), (i) DTC shall be a “protected purchaser” of such Stock within the meaning of Section 8-303 of the UCC, (ii) under Section 8-501 of the UCC, the Underwriters will acquire a valid security entitlement in respect of such Stock and (iii) no action based on any “adverse claim,” within the meaning of Section 8-102 of the UCC, to such Stock may be asserted against the Underwriters with respect to such security entitlement. For purposes of this representation, 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 certificate of incorporation, bylaws and applicable law, (B) DTC will be registered as a “clearing corporation” within the meaning of Section 8-102 of the UCC and (C) appropriate entries to the accounts of the several Underwriters on the records of DTC will have been made pursuant to the UCC.
(e) Such Selling Stockholder, except in the case of Xxxxxxx X. Xxxx, has duly and irrevocably executed and delivered a power of attorney (the “Power of Attorney” and, together with all other similar agreements executed by the other Selling Stockholders, the “Powers of Attorney”) appointing Sxxxxxx Xxxxx X. Xxxxx and Xxxxxxx and one or more other persons, X. Xxxx as attorneys-in-fact, with full power of substitution, and with full authority (exercisable by any one or more of them) to execute and deliver this Agreement and to take such other action as may be necessary or desirable to carry out the provisions hereof on behalf of the Selling Stockholder.
(ef) The Such Selling Stockholder has full right, power and authority under its limited partnership authority, corporate or similar organization agreement otherwise, to enter into this Agreement, Agreement and the Power of Attorney (if applicable).
(g) This Agreement has been duly and the Custody Agreement; this Agreement validly authorized, executed and delivered by or on behalf of such Selling Stockholders.
(h) The Power of Attorney (if applicable) has been duly and validly authorized, executed and delivered by or on behalf of the Selling Stockholder; Stockholder and constitutes 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.
(i) The execution, delivery and performance of this Agreement, Agreement and the Power of Attorney and the Custody Agreement (if applicable) by the such Selling Stockholder and the consummation by the such Selling Stockholder of the transactions contemplated hereby thereby do not and thereby will not (i) conflict with or result in a material breach or violation of any of the terms or provisions of, or constitute a material default under, any indenture, mortgage, deed of trust, loan agreement agreement, license or other agreement or instrument to which the such Selling Stockholder is a party or by which the such Selling Stockholder is bound or to which any of the property or assets of the such Selling Stockholder is subject, nor will such actions (ii) result in any violation of the provisions of the charter or by-laws (or similar organizational documents) of such Selling Stockholder or (iii) result in any of its organizational documents (in the case of non-individual Selling Stockholders) or any material violation of any statute or any order, rule or regulation of any court or governmental agency or body having jurisdiction over the such Selling Stockholder or the property or assets of the such Selling Stockholder; and.
(j) No consent, approval, authorization or order of, or filing or registration with, any court or governmental agency or body having jurisdiction over such Selling Stockholder or the property or assets of such Selling Stockholder is required for the execution, delivery and performance of this Agreement or the Power of Attorney (if applicable) by such Selling Stockholder and the consummation by such Selling Stockholder of the transactions contemplated thereby, except for the registration of the Stock under the Securities Act and such consents, approvals, authorizations, registrations or qualifications as may be required under the Exchange Act, by the National Association of Securities Dealers, Inc. Act and under applicable state or foreign securities laws in connection with the purchase and distribution sale of the Stock by the Underwriters, no consent, approval, authorization or order of, or filing or registration with, any such court or governmental agency or body 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.
(fk) The shares of Stock to be sold by the Selling Stockholder hereunder, which is represented by will be sold in compliance with federal and state securities laws.
(l) Such Selling Stockholder has no reason to believe that the certificates held in custody for the Selling Stockholder, is subject to the interest representations and warranties of the Underwriters, the arrangements made by the Selling Stockholder for such custody Company contained in Section 1 hereof are to that extent irrevocablenot materially true and correct, and the obligations of the information regarding such Selling Stockholder hereunder shall in the table and the related footnotes set forth in the Preliminary Prospectus and the Prospectus under the caption “Selling Stockholders” does not be terminated by any act contain an untrue statement of a material fact or omit to state a material fact necessary to make the Selling Stockholder, by operation of law, by the death or incapacity of any individual Selling Stockholder orstatements therein, in the case light of a trustthe circumstances under which they were made, by the death or incapacity of any executor or trustee or the termination of such trust, or the occurrence of any other eventnot misleading.
(gm) The Such Selling Stockholder is not prompted to sell shares of Common Stock by any information concerning the Company that is not set forth in the Registration Statement, the Pricing Disclosure PackagePackage and the Prospectus.
(hn) The Such Selling Stockholder has not taken and will not take, directly or indirectly, any action which that is designed to or which that has constituted or which might that could reasonably be expected to cause or result in the stabilization or manipulation of the price of any security of the Company to facilitate the sale or resale of the shares of the Stock.
(o) The sale of the Common Stock by such Selling Stockholder does not violate any of the Company’s internal policies regarding the sale of stock by its affiliates. Furthermore, Xxxxxxx X. Xxxx represents, warrants and agrees that he 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, the Prospectus and the Pricing Disclosure Package (as amended or supplemented) and has no knowledge of any material fact, condition or information not disclosed (i) in the Registration Statement, as of the Effective Date, (ii) in the Prospectus, as of its date and on the applicable Delivery Date, (iii) in the Pricing Disclosure Package, as of the Applicable Time, or (iv) the documents incorporated by reference in any Preliminary Prospectus or the Prospectus that, in each case, could reasonably be expected to have a Material Adverse Effect. Any certificate signed by any officer of any Selling Stockholder and delivered to the Representative or counsel for the Underwriters in connection with the offering of the Stock shall be deemed a representation and warranty by such Selling Stockholder, as to matters covered thereby, to each Underwriter.
Appears in 1 contract
Representations, Warranties and Agreements of the Selling Stockholders. Each Selling 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 Underwriters) has used or referred to any “free writing prospectus” (as defined in Rule 405), relating to the Stock;
(b) The Selling Stockholder has, and immediately prior to any the First Delivery Date on which the Selling Stockholder is selling shares of Stock(as defined in Section 6 hereof) will have, 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”) to the shares of Stock to be sold by the Selling Stockholder hereunder on such Delivery Datedate, free and clear of all liens, encumbrances, equities or claimsclaims other than those created pursuant to this Agreement or the Custody 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, will pass to the several Underwriters.
(cb) 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 the American Stock Transfer & Trust Company, as custodian (the “"Custodian”"), for delivery under this Agreement, certificates in negotiable form (with signature guaranteed by a commercial bank or trust company having an office or correspondent in the United States or a member firm of the New York or American Stock Exchanges) representing the shares of Stock to be sold by the Selling Stockholder hereunder.
(di) The Selling Stockholder LDIG has duly and irrevocably executed and delivered a power of attorney (the “"Power of Attorney” " and, together with all other similar agreements executed by the other Selling Stockholders, the “"Powers of Attorney”") appointing Sxxxxxx [ ] and one or more other persons, as attorneys-in-fact, with full power of substitution, and with full authority (exercisable by any one or more of them) to execute and deliver this Agreement and to take such other action as may be necessary or desirable to carry out the provisions hereof on behalf of the Selling Stockholder; and (ii) the Officer Selling Stockholders have duly and irrevocably executed and delivered the Powers of Attorney appointing Xxxxxxx X. Xxxxxxx and Xxxxxx X. Xxxxxxx and one or more other persons, as attorneys-in-fact, with full power of substitution, and with full authority (exercisable by any one or more of them) to execute and deliver this Agreement and to take such other action as may be necessary or desirable to carry out the provisions hereof on behalf of the Officer Selling StockholderStockholders; provided, that each Selling Stockholder makes the representation contained in the paragraph only with respect to its or his own actions.
(ed) The Selling Stockholder has full right, power and authority under its limited partnership authority, corporate or similar organization agreement otherwise, to enter into this Agreement, the Power of Attorney and the Custody Agreement; this Agreement has been duly and validly authorized, executed and delivered by or on behalf of the Selling Stockholder; the execution, delivery and performance of this 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 will not conflict with or result in a material breach or violation of any of the terms or provisions of, or constitute a material default under, any indenture, mortgage, deed of trust, loan 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 will such actions result in any violation of any the provisions of its organizational the constituent documents (in of the case of non-individual Selling Stockholders) Stockholder if other than a natural person or 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 or the property or assets of the Selling Stockholder except for such conflicts, breaches or violations that would not have a material adverse effect on the business, prospects, financial conditions, net worth or results of operations of the Selling Stockholder; and, except for the registration of the Stock under the Securities Act and such consents, approvals, authorizations, registrations or qualifications as may be required under the Exchange Act, by the National Association of Securities Dealers, Inc. Act and under applicable state or foreign securities laws in connection with the purchase and distribution of the Stock by the Underwriters, no consent, approval, authorization or order of, or filing or registration with, any such court or governmental agency or body 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 hereby.
(e) The Registration Statement and therebythe Prospectus and any further amendments or supplements to the Registration Statement or the Prospectus, when they become effective or are filed with the Commission, as the case may be, do not and will not, as of the applicable effective date (as to the Registration Statement and any amendment thereto) and as of the applicable filing date (as to the Prospectus and any amendment or supplement thereto) contain 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 or the Prospectus in reliance upon and in conformity with written information furnished to the Company by or on behalf of any Underwriter specifically for inclusion therein and provided further that this paragraph (e) shall apply to LDIG only to the extent that the statements or omissions from the Registration Statement or the Prospectus, or any amendments or supplements to the Registration Statement or the Prospectus, were based solely on written information provided by LDIG specifically for inclusion therein.
(f) The Stock to be sold by the Selling Stockholder hereunder, which is represented by has no reason to believe that the certificates held representations and warranties of the Company contained in custody for the Selling StockholderSection 1 hereof are not materially true and correct, is subject to familiar with the interest Registration Statement and the Prospectus (as supplemented) and has no knowledge of any material fact, condition or information not disclosed in the Registration Statement, as of the Underwriters, the arrangements made by the Selling Stockholder for such custody are to that extent irrevocable, and the obligations of the Selling Stockholder hereunder shall not be terminated by any act of the Selling Stockholder, by operation of law, by the death or incapacity of any individual Selling Stockholder or, in the case of a trust, by the death or incapacity of any executor or trustee or the termination of such trusteffective date, or the occurrence Prospectus (or supplement thereto), as of any other event.
(g) The the applicable filing date, which could reasonably be expected to have a Material Adverse Effect and the Selling Stockholder is not prompted to sell shares of Common Stock by any information concerning the Company that which is not set forth in the Pricing Disclosure PackageRegistration Statement and the Prospectus.
(hg) The Selling Stockholder has not taken and will not take, directly or indirectly, any action which is designed to or which has constituted or 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 of the Stock.
Appears in 1 contract
Samples: Underwriting Agreement (Alloy Inc)
Representations, Warranties and Agreements of the Selling Stockholders. 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 Underwriters) has used or referred to any “free writing prospectus” (as defined in Rule 405), relating to the Stock;
(b) The Selling Stockholder has, and immediately prior to any Delivery Date on which the Selling Stockholder is selling shares 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”) the 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; and upon delivery of such shares and payment therefor pursuant hereto, good and valid title to such shares, free and clear of all liens, encumbrances, equities or claims, will pass to the several Underwriters.
(c) 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 the CompanyThe Bank of New York, as custodian (the “Custodian”), for delivery under this Agreement, certificates of Series B convertible preferred stock in negotiable form (with signature notarized or guaranteed by a commercial bank or trust company having an office or correspondent participant in the United States Securities Transfer Agents Medallion Program, the New York Stock Exchange Medallion Signature Program or the Stock Exchange Medallion Program) representing the shares of Series B convertible preferred stock to be converted into Stock to be sold by, or on behalf of, the Selling Stockholder hereunder.
(b) The Selling Stockholder, or its nominee, has good and valid title to, or a member firm valid “security entitlement” within the meaning of Section 8-501 of the New York Uniform Commercial Code (the “UCC”) in respect of, the shares of Series B convertible preferred stock to be converted into Stock to be sold by, or American Stock Exchanges) representing on behalf of, the Selling Stockholder hereunder and, immediately prior to the applicable Delivery Date, the Selling Stockholder, or its nominee, will have good and valid title to, or a valid “security entitlement” within the meaning of Section 8-501 of the UCC in respect of, the shares of Stock to be sold by by, or on behalf of, the Selling Stockholder hereunder, in each case free and clear of all liens, encumbrances, equities or claims, except for any liens, encumbrances, equities or claims arising hereunder or under the Custody Agreement;
(c) Upon payment for the Stock to be sold by, or on behalf of, such Selling Stockholder, delivery of such Stock, as directed by the Underwriters, to Cede & Co. (“Cede”) or such other nominee as may be designated by The Depository Trust Company (“DTC”), registration of such Stock in the name of Cede or such other nominee and the crediting of such Stock on the books of DTC to securities accounts of the Underwriters (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 Stock), (i) DTC shall be a “protected purchaser” of such Stock within the meaning of Section 8-303 of the UCC, (ii) under Section 8-501 of the UCC, the Underwriters will acquire a valid security entitlement in respect of such Stock and (iii) no action based on any “adverse claim”, within the meaning of Section 8-102 of the UCC, to such Stock may be asserted against the Underwriters with respect to such security entitlement. For purposes of this representation, such Selling Stockholder may assume that when such payment, delivery and crediting occur, (A) such 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, 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 accounts of the several Underwriters on the records of DTC will have been made pursuant to the UCC.
(d) The Selling Stockholder has duly and irrevocably executed and delivered a power of attorney (the “Power of Attorney” and, together with all other similar agreements executed by the other Selling Stockholders, the “Powers of Attorney”) appointing Sxxxxxx the Custodian and Messrs. Xxxxxxx X. Xxxxxxx Case, Xxxx X. Xxxxxx and one or more other persons, Xxxxxxxxxxx X. Xxxxxx as attorneys-in-fact, with full power of substitution, and with full authority (exercisable by any one or more of them) to execute and deliver this Agreement and to take such other action as may be necessary or desirable to carry out the provisions hereof on behalf of the Selling Stockholder.
(e) The Selling Stockholder has full right, power and authority under its limited partnership authority, corporate or similar organization agreement otherwise, to enter into this Agreement, the Power of Attorney and the Custody Agreement; this Agreement has been duly and validly authorized, executed and delivered by or on behalf of the Selling Stockholder; the . The execution, delivery and performance of this 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 material breach or violation of any of the terms or provisions of, or constitute a material default under, any indenture, mortgage, deed of trust, loan agreement 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, nor will such actions (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 of its organizational documents (in the case of non-individual Selling Stockholders) or 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 or the property or assets of the Selling Stockholder; and, except in the case of clauses (i) and (iii) for such conflicts, breaches, violations or defaults as would not, individually or in the registration aggregate, reasonably be expected to have a material adverse effect on the ability of such Selling Stockholder to consummate the Stock under the Securities Act and transactions contemplated by this Agreement.
(f) Except for such consents, approvals, authorizations, orders, filings, registrations or qualifications as may be required under the Exchange Securities Act, by the National Association rules and regulations of Securities Dealers, Inc. and under the New York Stock Exchange or applicable state securities laws in connection with the purchase and distribution sale of the Stock by the Underwriters, no consent, approval, authorization or order of, or filing or registration with, any such court or governmental agency or body having jurisdiction over the Selling Stockholder or the property or assets of the Selling Stockholder 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.
(fg) This Agreement has been duly and validly authorized, executed and delivered by or on behalf of the Selling Stockholder.
(h) The Stock to be sold Power of Attorney and the Custody Agreement have been duly and validly authorized, executed and delivered by or on behalf of the Selling Stockholder hereunder, which is represented by the certificates held in custody for the Selling Stockholder, is subject to the interest of the Underwriters, the arrangements made by the Selling Stockholder for such custody are to that extent irrevocable, and the constitute valid and legally binding obligations of the Selling Stockholder hereunder shall not be terminated by any act of enforceable against the Selling StockholderStockholder in accordance with their terms, by operation 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, by the death or incapacity ) and (iii) an implied covenant of any individual 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 eventgood faith and fair dealing.
(g) The Selling Stockholder is not prompted to sell shares of Common Stock by any information concerning the Company that is not set forth in the Pricing Disclosure Package.
(hi) The Selling Stockholder has not taken and will not take, directly or indirectly, any action which that is designed to or which has constituted or which might could reasonably be expected to cause or result in the stabilization or manipulation of the price of any security of the Company to facilitate the sale or resale of the shares of the Stock.
(j) Except as disclosed in the most recent Preliminary Prospectus, there are no contracts, agreements or understandings between the Selling Stockholder and any person that would give rise to a valid claim against the Selling Stockholder or any Underwriter for a brokerage commission, finder’s fee or other like payment in connection with the issuance and sale of the Stock contemplated by this Agreement.
(k) Neither the Selling Stockholder nor any person acting on behalf of the Selling Stockholder (other than, if applicable, the Company and the Underwriters) has used or referred to any “free writing prospectus” (as defined in Rule 405), relating to the Stock.
(l) The Selling Stockholder is not aware of any material information concerning the Company that is not set forth in the Registration Statement, the Pricing Disclosure Package and the Prospectus and which has prompted such Selling Stockholder to sell shares of the Stock.
(m) The (i) Registration Statement did not, as of the Effective Date, (ii) Prospectus will not, as of its date and on the applicable Delivery Date, (iii) documents incorporated by reference in any Preliminary Prospectus or the Prospectus, did not, and any further documents filed and incorporated by reference therein, will not, when filed with the Commission, (iv) Pricing Disclosure Package did not, as of the Applicable Time and (v) each Issuer Free Writing Prospectus (including, without limitation, any road show that is a free writing prospectus under Rule 433) when considered together with the Pricing Disclosure Package as of the Applicable Time, did not, in each case, contain an untrue statement of a material fact with respect to such Selling Stockholder or omit to state a material fact with respect to such Selling Stockholder required to be stated therein or necessary to make the statements therein (except with respect to the Registration Statement, in the light of the circumstances under which they were made) not misleading, which untrue statement or omission was made in reliance upon and in conformity with written information furnished to the Company by or on behalf of the Selling Stockholder specifically for inclusion therein as specified in Section 10(g). Any certificate signed by any officer of any Selling Stockholder and delivered to the Representative or counsel for the Underwriters in connection with the offering of the Stock shall be deemed a representation and warranty by such Selling Stockholder, as to matters covered thereby, to each Underwriter.
Appears in 1 contract
Samples: Underwriting Agreement (Phillips Van Heusen Corp /De/)
Representations, Warranties and Agreements of the Selling Stockholders. Each Selling Stockholder severally represents(except with respect to Sections 2(f) and (g), warrants which are applicable only to Lehman Brothers Merchant Banking Partners II L.P. and agrees thatcertain of its axxxxxxtes who are selling Stock in the Offering (the "LEHMAN SELLING STOCKHOLDERS"), Co-Investment Partners, L.P., Paul H. Vxxxxx, the Indenture of Trust of Richard M. Whiting and the Rxxxx X. Xxxxxxt, Jr. Revocable Trust U/T/A ) xxxxxxxxx xxxxxsents, waxxxxxx xxx xxxxxx xxxt:
(a) Neither the Selling Stockholder nor any person acting on behalf of the Selling Stockholder (other than, if applicable, the Company and the Underwriters) has used or referred to any “free writing prospectus” (as defined in Rule 405), relating to the Stock;
(b) The Selling Stockholder has, and immediately prior to any the First Delivery Date on which the Selling Stockholder is selling shares of Stock, (as defined in Section 5 hereof) the Selling Stockholder will have good full right, power and valid title toauthority to sell, or a valid “security entitlement” within the meaning of Section 8-501 of the New York Uniform Commercial Code (the “UCC”) assign, transfer and deliver the shares of Stock to be sold by the Selling Stockholder hereunder on such Delivery Date, free and clear of all liens, encumbrances, equities or claimsdate; and upon delivery of such shares and payment therefor pursuant hereto, good hereto the several Underwriters will acquire a security entitlement with respect to such shares on the Closing Date and valid title no action based on an adverse claim may be asserted against the Underwriters with respect to such shares, free and clear of all liens, encumbrances, equities or claims, will pass to the several Underwriters.
(cb) The Selling Stockholder has placed in custody under a custody agreement (the “Custody Agreement” "CUSTODY AGREEMENT" and, together with all other similar agreements executed by the other Selling Stockholders, the “"Custody Agreements”") with the EquiServe Trust Company, N.A., as custodian (the “Custodian”"CUSTODIAN"), for delivery under this Agreement, certificates in negotiable form (with signature guaranteed by a commercial bank or trust company having an office or correspondent in the United States or a member firm of the New York or American Stock Exchanges) representing the shares of Stock to be sold by the Selling Stockholder hereunder.
(dc) The Selling Stockholder has duly and irrevocably executed and delivered a power of attorney (the “Power of Attorney” "POWER OF ATTORNEY" and, together with all other similar agreements executed by the other Selling Stockholders, the “"Powers of Attorney”") appointing Sxxxxxx X. Xxxxxxx and one or more other persons, as attorneys-in-fact, with full power of substitution, and with full authority (exercisable by any one or more of them) to execute and deliver this Agreement and to take such other action as may be necessary or desirable to carry out the provisions hereof on behalf of the Selling Stockholder.
(ed) The Selling Stockholder has full right, power and authority under its limited partnership or similar organization agreement to enter into this Agreement, the Power of Attorney and the Custody Agreement; this Agreement has been duly and validly authorized, executed and delivered by or on behalf of the Selling Stockholder; the execution, delivery and performance of this 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 will not conflict with or result in a material breach or violation of any of the terms or provisions of, or constitute a material default under, any indenture, mortgage, deed of trust, loan 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 will such actions result in any violation of the provisions of any partnership agreement, certificate of its organizational documents (in incorporation or deed of trust of the case of non-individual Selling Stockholders) Stockholder or 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 or the property or assets of the Selling Stockholder; and, except for the registration of the Stock under the Securities Act and such consents, approvals, authorizations, registrations or qualifications as may be required under the Exchange Act, by the National Association of Securities Dealers, Inc. Act and under applicable state securities laws in connection with the purchase and distribution of the Stock by the Underwriters, no consent, approval, authorization or order of, or filing or registration with, any such court or governmental agency or body 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.
(fe) The Stock Registration Statement and the Prospectus and any further amendments or supplements to the Registration Statement or the Prospectus, when they become effective or are filed with the Commission, as the case may be, do not and will not, as of the applicable effective date (as to the Registration Statement and any amendment thereto) and as of the applicable filing date (as to the Prospectus and any amendment or supplement thereto in light of the circumstances in which they were made) contain an untrue statement of a material fact or omit to state a material fact required to be sold by stated therein or necessary to make the statements therein not misleading; provided that this representation and warranty is made only as to information contained in or omitted from the Registration Statement or the Prospectus under the caption "Selling Stockholder hereunder, which is represented by the certificates held in custody for the Stockholders" relating to such Selling Stockholder, is subject to the interest of the Underwriters, the arrangements made by the Selling Stockholder for such custody are to that extent irrevocable, and the obligations of the Selling Stockholder hereunder shall not be terminated by any act of the Selling Stockholder, by operation of law, by the death or incapacity of any individual 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.
(gf) 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 effective date, or the Prospectus (or any amendment or supplement thereto) in light of the circumstances in which they were made, as of the applicable filing date, which has adversely affected or may adversely affect the business of the Company and is not prompted to sell shares of Common Stock by any information concerning the Company that is not set forth in the Pricing Disclosure PackageRegistration Statement and the Prospectus.
(g) The Selling Stockholder has reviewed the Registration Statement and the Prospectus, and, although the Selling Stockholder has not independently verified and is not passing upon and assumes no responsibility for the accuracy, completeness or fairness of the statements contained in the Registration Statement and Prospectus, the Selling Stockholder has no reason to believe that the Registration Statement, as of the effective date thereof, contains an untrue statement of a material fact or omits to state a material fact required to be stated therein or necessary to make the statements contained therein not misleading or that the Prospectus, on the date thereof or on the date hereof, contains an untrue statement of a material fact or omits to state a material fact or necessary to make the statements contained therein, in light of the circumstances under which they were made, not misleading.
(h) The Selling Stockholder has not taken and will not take, directly or indirectly, any action which is designed to or which has constituted or 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 of the Stock.
Appears in 1 contract
Representations, Warranties and Agreements of the Selling Stockholders. Each Selling Stockholder severally and not jointly represents, warrants and agrees that:
(a) Neither the The Selling Stockholder nor any person acting on behalf of has and immediately prior to the Selling Stockholder (other than, if applicable, the Company and the Underwriters) has used or referred to any “free writing prospectus” applicable Delivery Date (as defined in Rule 405), relating to the Stock;
(bSection 5 hereof) The Selling Stockholder has, and immediately prior to any Delivery Date on which the Selling Stockholder is selling shares of Stock, the Selling Stockholder will have good and valid title to, or a valid “security entitlement” within to the meaning of Section 8-501 of the New York Uniform Commercial Code (the “UCC”) the shares of 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, will pass to the several Underwriters.
(cb) The Selling Stockholder has placed in custody under a custody agreement Custody Agreement (the “Custody Agreement” and, together with all other similar agreements executed by the other Selling Stockholders, the “Custody Agreements”) with the American Stock Transfer & Trust Company, as custodian (the “Custodian”), for delivery under this Agreement, certificates in negotiable form (with signature guaranteed by a commercial bank or trust company having an office or correspondent in the United States or a member firm of the New York or American Stock Exchanges) representing the shares of Stock to be sold by the Selling Stockholder hereunder.
(dc) The Selling Stockholder has duly and irrevocably executed and delivered a power of attorney (the “Power of Attorney” and, together with all other similar agreements instruments executed by the other Selling Stockholders, the “Powers of Attorney”) appointing Sxxxxxx X. Xxxxxxx and one or more other persons, the persons named therein as attorneys-in-fact, with full power of substitution, and with full authority (exercisable by any one or more of them) to execute and deliver this Agreement on such Selling Stockholder’s behalf and to take such other action as may be necessary or desirable to carry out the provisions hereof on behalf of the Selling Stockholder.
(ed) The Selling Stockholder has full right, power and authority under its limited partnership or similar organization agreement to enter into this Agreement, the Power of Attorney and the Custody Agreement; this Agreement has been duly and validly authorized, executed and delivered by or on behalf of the Selling Stockholder; the execution, delivery and performance of this Agreement, the Power of Attorney and the Custody Agreement by the Selling Stockholder, the compliance by the Selling Stockholder with all of the applicable provisions of this Agreement, the Power of Attorney and the Custody Agreement, and the consummation by the Selling Stockholder of the Transactions and the other transactions contemplated hereby and thereby will not (i) conflict with or result in a material breach or violation of any of the terms or provisions of, or constitute a material default under, any indenture, mortgage, deed of trust, loan 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 will unless such actions conflict, breach, violation or default would not adversely affect such Selling Stockholder’s ability to perform any of its obligations under this Agreement, the Power of Attorney and the Custody Agreement or any of the transactions contemplated hereby and thereby, (ii) result in any violation of the provisions of any partnership or limited liability company agreement, certificate of its incorporation, by-laws, operating agreement, deed of trust or other similar agreement or organizational documents document of each Selling Stockholder that is not a natural person or (iii) result in the case of non-individual Selling Stockholders) or 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 or the property or assets of the Selling Stockholder; and, and except for the registration of the Stock under the Securities Act and such consents, approvals, authorizations, registrations or qualifications as may be required under the Exchange Act, by the National Association of Securities Dealers, Inc. Act and under applicable state securities laws in connection with the purchase and distribution of the Stock by the Underwriters, no consent, approval, authorization or order of, or filing or registration with, any such court or governmental agency or body is required for the execution, delivery and performance of this Agreement, the Power of Attorney or the Custody Agreement by the Selling Stockholder and Stockholder, the consummation compliance by the Selling Stockholder will all of the applicable provisions of this Agreement, the Power of Attorney and the Custody Agreement, and the consummation of the Transactions and the other transactions contemplated hereby and thereby.
(e) To the knowledge of each Selling Stockholder listed on Schedule 3 hereto, the Registration Statement 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 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; provided that no representation or warranty is made as to information contained in or omitted from the Registration Statement or the Prospectus in reliance upon and in conformity with written information furnished to the Company through the Representatives by or on behalf of any Underwriter specifically for inclusion therein.
(f) The Stock information with respect to such Selling Stockholder contained in the Registration Statement and the Prospectus (as amended or supplemented), as of the applicable date set forth in the Prospectus, that is based upon information furnished to the Company by such Selling Stockholder in writing does not contain any untrue statement of a material fact or omit to state a material fact required to be sold by stated therein or necessary to make the Selling Stockholder hereunder, which is represented by the certificates held in custody for the Selling Stockholder, is subject to the interest of the Underwriters, the arrangements made by the Selling Stockholder for such custody are to that extent irrevocable, and the obligations of the Selling Stockholder hereunder shall not be terminated by any act of the Selling Stockholder, by operation of law, by the death or incapacity of any individual Selling Stockholder orstatements therein, in the case light of a trustthe circumstances under which they were made, by the death or incapacity of any executor or trustee or the termination of such trust, or the occurrence of any other eventnot misleading.
(g) The If listed on Schedule 3 hereto, such Selling Stockholder is not prompted has no reason to sell shares believe that the representations and warranties of Common Stock by any information concerning the Company that is contained in Section 1 hereof are not set forth in the Pricing Disclosure Packagematerially true and correct.
(h) The Selling Stockholder has not taken and will not take, directly or indirectly, any action which is designed prohibited by Regulation M under the Securities Act with respect to or which has constituted or 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 of the Stock.
(i) The Selling Stockholder is not prompted to sell shares of Common Stock by any material information concerning the Company which is not set forth in the Registration Statement and the Prospectus.
(j) This Agreement has been duly authorized, executed and delivered by or on behalf of the Selling Stockholder.
Appears in 1 contract
Representations, Warranties and Agreements of the Selling Stockholders. Each Selling Stockholder Stockholder, severally and not jointly, represents, warrants and agrees that:
(a) Neither the such Selling Stockholder nor any person acting on behalf of the such Selling Stockholder (other than, if applicable, the Company and the Underwriters) has used or referred to any “free writing prospectus” (as defined in Rule 405), 405 under the Securities Act) relating to the Stock;.
(b) The Such Selling Stockholder has, and immediately prior to any Delivery Date on which the such Selling Stockholder is selling shares of Stock, the such Selling Stockholder will have have, good and valid marketable title to, to the shares of Stock to be sold by such Selling Stockholder hereunder on such Delivery Date or a valid “security entitlement” within the meaning of Section 8-501 of the New York Uniform Commercial Code (the “UCC”) the shares of Stock to be sold by the Selling Stockholder hereunder on such Delivery Datein respect thereof, free and clear of all liens, encumbrances, equities equities, community property rights, restrictions on transfer or claims; and upon delivery of , except if such shares and payment therefor pursuant hereto, good and valid title to such shares, free and clear of all Selling Stockholder is a Management Selling Stockholder for any liens, encumbrances, equities or claims, will pass to claims arising under the several UnderwritersCustody Agreement (as defined below).
(c) The If such Selling Stockholder is a Non-Management Selling Stockholder, the Stock to be sold by such Selling Stockholder hereunder is subject to the interest of the Underwriters and the obligations of such Selling Stockholder hereunder shall not be terminated by any act of such Selling Stockholder, or the occurrence of any other event. If such Selling Stockholder is a Management Selling Stockholder, (i) the Stock to be sold by such Selling Stockholder hereunder, which is held in custody for the Selling Stockholder, is subject to the interest of the Underwriters, the Attorney-in-Fact and the Custodian (each as defined below), (ii) the arrangements made by such Selling Stockholder for such custody are to that extent irrevocable, and (iii) the obligations of such Selling Stockholder hereunder shall not be terminated by any act of such Selling Stockholder, any operation of law or the occurrence of any other event.
(d) Upon payment for the Stock to be sold by such Selling Stockholder, delivery of such Stock, as directed by the Underwriters, to Cede & Co. (“Cede”) or such other nominee as may be designated by The Depository Trust Company (“DTC”), registration of such Stock in the name of Cede or such other nominee and the crediting of such Stock on the books of DTC to securities accounts of the Underwriters (i) under Section 8-501 of the UCC, the Underwriters will acquire a valid security entitlement in respect of such Stock, and (ii) an action based on an “adverse claim,” within the meaning of Section 8-102 of the UCC, to such Stock, whether framed in conversion, replevin, constructive trust, equitable lien or other theory, may not be asserted against an Underwriter, with respect to such security entitlement, assuming that such Underwriter has no notice of any adverse claim (within the meaning of Section 8-105 of the UCC) with respect to such Stock. For purposes of this representation, such Selling Stockholder may assume that when such payment, delivery and crediting occur, (x) such 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, bylaws and applicable law, (y) DTC will be registered as a “clearing corporation” within the meaning of Section 8-102 of the UCC, and (z) appropriate entries to the accounts of the several Underwriters on the records of DTC will have been made pursuant to the UCC.
(e) Such Selling Stockholder has full right, power and authority, corporate or otherwise, to enter into this Agreement and, if such Selling Stockholder is a Management Selling Stockholder, the Custody Agreement and the applicable Power of Attorney (as defined below).
(f) This Agreement has been duly and validly authorized, executed and delivered by or on behalf of such Selling Stockholder.
(g) The sale of the Stock by such Selling Stockholder, the execution, delivery and performance of this Agreement and, if such Selling Stockholder is a Management Selling Stockholder, the Custody Agreement and the applicable Power of Attorney, by such Selling Stockholder and the consummation by such 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 or other agreement or instrument to which such Selling Stockholder is a party or by which such Selling Stockholder is bound or to which any of the property or assets of such Selling Stockholder is subject, (ii) result in any violation of the provisions of (x) the charter or by-laws (or similar organizational documents) of such Selling Stockholder (if such Selling Stockholder is a corporation, limited liability company, partnership or other similar entity) or (y) the deed of trust (or similar organizational documents) of such Selling Stockholder (if such Selling Stockholder is a trust), 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 such Selling Stockholder or the property or assets of such Selling Stockholder, except in the case of clauses (i) and (iii), as would not have an adverse effect on such Selling Stockholder’s ability to consummate the transactions contemplated by this Agreement.
(h) No consent, approval, authorization or order of, or filing or registration with, any court or governmental agency or body having jurisdiction over such Selling Stockholder or the property or assets of such Selling Stockholder is required for the sale of the Stock by such Selling Stockholder, the execution, delivery and performance of this Agreement and, if such Selling Stockholder is a Management Selling Stockholder, the Custody Agreement and the applicable Power of Attorney by such Selling Stockholder and the consummation by such Selling Stockholder of the transactions contemplated hereby and thereby, except for the registration of the 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 securities laws in connection with the purchase and sale of the Stock by the Underwriters.
(i) (w) The Registration Statement did not, as of the Effective Date, (x) the Prospectus will not, as of its date or as of the applicable Delivery Date, (y) the Pricing Disclosure Package did not, as of the Applicable Time and (z) the Pricing Disclosure Package, when taken together with each Issuer Free Writing Prospectus listed in Schedule V hereto, did not, as of the Applicable Time, in each case of the foregoing clauses (w) through (z), 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 (except in the case of the Registration Statement, in the light of the circumstances under which they were made) not misleading; it being understood and agreed that the foregoing applies only to such information furnished by such Selling Stockholder to the Company, which consists of (A) the legal name, address and the number of shares of Common Stock owned by such Selling Stockholder (before and after giving effect to the offering of the Stock), and (B) the other information with respect to such Selling Stockholder (excluding percentages) which appears in the table (and corresponding footnotes) under the caption “Principal and Selling Stockholders” (with respect to each Selling Stockholder, the “Selling Stockholder Information”).
(j) Such Selling Stockholder is not prompted to sell shares of Common Stock by any information concerning the Company that is not set forth in the Registration Statement, the Pricing Disclosure Package and the Prospectus.
(k) Such Selling Stockholder has not taken, 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.
(l) Such Selling Stockholder, if such Selling Stockholder is a Management Selling Stockholder, has placed in custody under a the custody agreement (the “Custody Agreement” and, together with all other similar agreements executed by the other Selling Stockholders, the “Custody Agreements”) with the American Stock Transfer & Trust Company, LLC, as custodian (the “Custodian”), for delivery under this Agreement, certificates shares of Common Stock, held in negotiable book-entry 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 New York or American Stock Exchanges) Company’s transfer agent, representing the shares of Stock to be sold by the such Selling Stockholder hereunder.
(dm) The Such Selling Stockholder, if such Selling Stockholder is a Management Selling Stockholder, has duly and irrevocably executed and delivered a power of attorney (the each, a “Power of Attorney” and”, and together with all other similar agreements executed by the any other Selling Stockholders, the “Powers of Attorney”) appointing Sxxxxxx Xxxxxxxxxxx X. Xxxxx and Xxxxxxx and one or more other persons, X. Xxxx as attorneys-in-factfact (the “Attorneys-in-Fact”), with full power of substitution, and with full authority (exercisable by any one or more of them) to execute and deliver this Agreement on such Selling Stockholder’s behalf and to take such other action as may be necessary or desirable to carry out the provisions hereof on behalf of the such Selling Stockholder.
(en) The If such Selling Stockholder has power and authority under its limited partnership or similar organization agreement to enter into this Agreementis a Management Selling Stockholder, the Custody Agreement and the applicable Power of Attorney and the Custody Agreement; this Agreement has have been duly and validly authorized, executed and delivered by or on behalf of the Selling Stockholder; the execution, delivery and performance of this Agreement, the Power of Attorney and the Custody Agreement by the such Selling Stockholder and the consummation by the Selling Stockholder of the transactions contemplated hereby constitutes a valid and thereby will not conflict with or result in a material breach or violation of any of the terms or provisions of, or constitute a material default under, any indenture, mortgage, deed of trust, loan 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 legally binding obligation of the Selling Stockholder is subject, nor will such actions result in any violation of any of its organizational documents (in the case of non-individual Selling Stockholders) or any material violation of any statute or any order, rule or regulation of any court or governmental agency or body having jurisdiction over 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.
(o) Except as described in the property most recent Preliminary Prospectus, there are no contracts, agreements or assets of understandings between such Selling Stockholder and any person that would give rise to a valid claim against such Selling Stockholder or any Underwriter for a brokerage commission, finder’s fee or other like payment in connection with this offering. Any certificate signed by any Selling Stockholder or an officer thereof, if applicable, and delivered to the Selling Stockholder; and, except Representatives or counsel for the registration of the Stock under the Securities Act and such consents, approvals, authorizations, registrations or qualifications as may be required under the Exchange Act, by the National Association of Securities Dealers, Inc. and under applicable state securities laws Underwriters in connection with the purchase and distribution offering of the Stock shall be deemed a representation and warranty by the Underwriters, no consent, approval, authorization or order of, or filing or registration with, any such court or governmental agency or body is required for the execution, delivery and performance of this Agreement, 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.
(f) The Stock to be sold by the Selling Stockholder hereunder, which is represented by the certificates held in custody for the Selling Stockholder, is subject as to the interest of the Underwritersmatters covered thereby, the arrangements made by the Selling Stockholder for such custody are to that extent irrevocable, and the obligations of the Selling Stockholder hereunder shall not be terminated by any act of the Selling Stockholder, by operation of law, by the death or incapacity of any individual 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 eventeach Underwriter.
(g) The Selling Stockholder is not prompted to sell shares of Common Stock by any information concerning the Company that is not set forth in the Pricing Disclosure Package.
(h) The Selling Stockholder has not taken and will not take, directly or indirectly, any action which is designed to or which has constituted or 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 of the Stock.
Appears in 1 contract
Samples: Underwriting Agreement (AdvancePierre Foods Holdings, Inc.)
Representations, Warranties and Agreements of the Selling Stockholders. Each Selling Stockholder Stockholder, severally and not jointly, represents, warrants and agrees that:
(a) Neither the such Selling Stockholder nor any person acting on behalf of the such Selling Stockholder (other than, if applicable, the Company and the Underwriters) has used or referred to any “free writing prospectus” (as defined in Rule 405), 405 under the Securities Act) relating to the Stock;.
(b) The Such Selling Stockholder has, and immediately prior to any Delivery Date on which the such Selling Stockholder is selling shares of Stock, the such Selling Stockholder will have have, good and valid marketable title to, to the shares of Stock to be sold by such Selling Stockholder hereunder on such Delivery Date or a valid “security entitlement” within the meaning of Section 8-501 of the New York Uniform Commercial Code (the “UCC”) the shares of Stock to be sold by the Selling Stockholder hereunder on such Delivery Datein respect thereof, free and clear of all liens, encumbrances, equities equities, community property rights, restrictions on transfer or claims; and upon delivery of , except if such shares and payment therefor pursuant hereto, good and valid title to such shares, free and clear of all Selling Stockholder is a Management Selling Stockholder for any liens, encumbrances, equities or claims, will pass to claims arising under the several UnderwritersCustody Agreement (as defined below).
(c) If such Selling Stockholder is a Non-Management Selling Stockholder, the Stock to be sold by such Selling Stockholder hereunder is subject to the interest of the Underwriters and the obligations of such Selling Stockholder hereunder shall not be terminated by any act of such Selling Stockholder, or the occurrence of any other event. If such Selling Stockholder is a Management Selling Stockholder, (i) the Stock to be sold by such Selling Stockholder hereunder, which will be held in custody for the Selling Stockholder under the Custody Agreement prior to the Initial Delivery Date, is subject to the interest of the Underwriters, the Attorney-in-Fact and, upon execution and delivery of the Custody Agreement, the Custodian (each as defined below), (ii) the arrangements made by such Selling Stockholder for such custody will be upon entering into the Custody Agreement to that extent irrevocable, and (iii) the obligations of such Selling Stockholder hereunder shall not be terminated by any act of such Selling Stockholder, any operation of law or the occurrence of any other event.
(d) Upon payment for the Stock to be sold by such Selling Stockholder, delivery of such Stock, as directed by the Underwriters, to Cede & Co. (“Cede”) or such other nominee as may be designated by The Depository Trust Company (“DTC”), registration of such Stock in the name of Cede or such other nominee and the crediting of such Stock on the books of DTC to securities accounts of the Underwriters (i) under Section 8-501 of the UCC, the Underwriters will acquire a valid security entitlement in respect of such Stock, and (ii) an action based on an “adverse claim,” within the meaning of Section 8-102 of the UCC, to such Stock, whether framed in conversion, replevin, constructive trust, equitable lien or other theory, may not be asserted against an Underwriter, with respect to such security entitlement, assuming that such Underwriter has no notice of any adverse claim (within the meaning of Section 8-105 of the UCC) with respect to such Stock. For purposes of this representation, such Selling Stockholder may assume that when such payment, delivery and crediting occur, (x) such 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, bylaws and applicable law, (y) DTC will be registered as a “clearing corporation” within the meaning of Section 8-102 of the UCC, and (z) appropriate entries to the accounts of the several Underwriters on the records of DTC will have been made pursuant to the UCC.
(e) Such Selling Stockholder has placed full right, power and authority, corporate or otherwise, to enter into this Agreement and, if such Selling Stockholder is a Management Selling Stockholder, the Custody Agreement and the applicable Power of Attorney (as defined below).
(f) This Agreement has been duly and validly authorized, executed and delivered by or on behalf of such Selling Stockholder.
(g) The sale of the Stock by such Selling Stockholder, the execution, delivery and performance of this Agreement and, if such Selling Stockholder is a Management Selling Stockholder, the Custody Agreement and the applicable Power of Attorney, by such Selling Stockholder and the consummation by such 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 or other agreement or instrument to which such Selling Stockholder is a party or by which such Selling Stockholder is bound or to which any of the property or assets of such Selling Stockholder is subject, (ii) result in any violation of the provisions of (x) the charter or by-laws (or similar organizational documents) of such Selling Stockholder (if such Selling Stockholder is a corporation, limited liability company, partnership or other similar entity) or (y) the deed of trust (or similar organizational documents) of such Selling Stockholder (if such Selling Stockholder is a trust), 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 such Selling Stockholder or the property or assets of such Selling Stockholder, except in the case of clauses (i) and (iii), as would not have an adverse effect on such Selling Stockholder’s ability to consummate the transactions contemplated by this Agreement.
(h) No consent, approval, authorization or order of, or filing or registration with, any court or governmental agency or body having jurisdiction over such Selling Stockholder or the property or assets of such Selling Stockholder is required for the sale of the Stock by such Selling Stockholder, the execution, delivery and performance of this Agreement and, if such Selling Stockholder is a Management Selling Stockholder, the Custody Agreement and the applicable Power of Attorney by such Selling Stockholder and the consummation by such Selling Stockholder of the transactions contemplated hereby and thereby, except for the registration of the 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 securities laws in connection with the purchase and sale of the Stock by the Underwriters.
(i) (w) The Registration Statement did not, as of the Effective Date, (x) the Prospectus will not, as of its date or as of the applicable Delivery Date, (y) the Pricing Disclosure Package did not, as of the Applicable Time and (z) the Pricing Disclosure Package, when taken together with each Issuer Free Writing Prospectus listed in Schedule V hereto, did not, as of the Applicable Time, in each case of the foregoing clauses (w) through (z), 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 (except in the case of the Registration Statement, in the light of the circumstances under which they were made) not misleading; it being understood and agreed that the foregoing applies only to such information furnished by such Selling Stockholder to the Company, which consists of (A) the legal name, address and the number of shares of Common Stock owned by such Selling Stockholder (before and after giving effect to the offering of the Stock), and (B) the other information with respect to such Selling Stockholder (excluding percentages) which appears in the table (and corresponding footnotes) under the caption “Principal and Selling Stockholders” (with respect to each Selling Stockholder, the “Selling Stockholder Information”).
(j) Such Selling Stockholder is not prompted to sell shares of Common Stock by any information concerning the Company that is not set forth in the Registration Statement, the Pricing Disclosure Package and the Prospectus.
(k) Such Selling Stockholder has not taken, 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.
(l) Such Selling Stockholder, if such Selling Stockholder is a Management Selling Stockholder, will, prior to the Initial Delivery Date, (x) place 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 the American Stock Transfer & Trust Company, LLC, as custodian (the “Custodian”), for delivery under this Agreement, certificates shares of Common Stock, held in negotiable book-entry 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 New York or American Stock Exchanges) Company’s transfer agent, representing the shares of Stock to be sold by the such Selling Stockholder hereunder, and (y) execute and deliver the Custody Agreement and the Representatives shall have received a copy thereof, duly executed by each Management Selling Stockholder and the Custodian.
(dm) The Such Selling Stockholder, if such Selling Stockholder is a Management Selling Stockholder, has duly and irrevocably executed and delivered a power of attorney (the each, a “Power of Attorney” and”, and together with all other similar agreements executed by the any other Selling Stockholders, the “Powers of Attorney”) appointing Sxxxxxx Xxxxxxxxxxx X. Xxxxx and Xxxxxxx and one or more other persons, X. Xxxx as attorneys-in-factfact (the “Attorneys-in-Fact”), with full power of substitution, and with full authority (exercisable by any one or more of them) to execute and deliver this Agreement on such Selling Stockholder’s behalf and to take such other action as may be necessary or desirable to carry out the provisions hereof on behalf of the such Selling Stockholder.
(en) The If such Selling Stockholder has power and authority under its limited partnership or similar organization agreement to enter into this Agreementis a Management Selling Stockholder, the applicable Power of Attorney and the Custody Agreement; this Agreement has been duly and validly authorized, executed and delivered by or on behalf of the such Selling Stockholder; the execution, delivery and performance of this Agreement. If such Selling Stockholder is a Management Selling Stockholder, the Custody Agreement has been duly and validly authorized and, prior to the Initial Delivery Date, will be duly and validly executed and delivered by or on behalf of such Selling Stockholder.
(o) If such Selling Stockholder is a Management Selling Stockholder, the applicable Power of Attorney constitutes and the Custody Agreement by will, prior to the Selling Stockholder and the consummation by the Selling Stockholder of the transactions contemplated hereby and thereby will not conflict with or result in a material breach or violation of any of the terms or provisions ofInitial Delivery Date, or constitute a material default under, any indenture, mortgage, deed of trust, loan 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 valid and legally binding obligation of the Selling Stockholder is subject, nor will such actions result in any violation of any of its organizational documents (in the case of non-individual Selling Stockholders) or any material violation of any statute or any order, rule or regulation of any court or governmental agency or body having jurisdiction over 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.
(p) Except as described in the property most recent Preliminary Prospectus, there are no contracts, agreements or assets of understandings between such Selling Stockholder and any person that would give rise to a valid claim against such Selling Stockholder or any Underwriter for a brokerage commission, finder’s fee or other like payment in connection with this offering. Any certificate signed by any Selling Stockholder or an officer thereof, if applicable, and delivered to the Selling Stockholder; and, except Representatives or counsel for the registration of the Stock under the Securities Act and such consents, approvals, authorizations, registrations or qualifications as may be required under the Exchange Act, by the National Association of Securities Dealers, Inc. and under applicable state securities laws Underwriters in connection with the purchase and distribution offering of the Stock shall be deemed a representation and warranty by the Underwriters, no consent, approval, authorization or order of, or filing or registration with, any such court or governmental agency or body is required for the execution, delivery and performance of this Agreement, 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.
(f) The Stock to be sold by the Selling Stockholder hereunder, which is represented by the certificates held in custody for the Selling Stockholder, is subject as to the interest of the Underwritersmatters covered thereby, the arrangements made by the Selling Stockholder for such custody are to that extent irrevocable, and the obligations of the Selling Stockholder hereunder shall not be terminated by any act of the Selling Stockholder, by operation of law, by the death or incapacity of any individual 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 eventeach Underwriter.
(g) The Selling Stockholder is not prompted to sell shares of Common Stock by any information concerning the Company that is not set forth in the Pricing Disclosure Package.
(h) The Selling Stockholder has not taken and will not take, directly or indirectly, any action which is designed to or which has constituted or 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 of the Stock.
Appears in 1 contract
Samples: Underwriting Agreement (AdvancePierre Foods Holdings, Inc.)
Representations, Warranties and Agreements of the Selling Stockholders. Each Selling Stockholder severally and not jointly represents, warrants and agrees (to and with you 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 Underwriters) has used or referred to any “free writing prospectus” (as defined in Rule 405), relating to the Stock;
(b) The Selling Stockholder hasis, and immediately prior to any the First Delivery Date on which the Selling Stockholder is selling shares of Stock, (as defined in Section 5 hereof) the Selling Stockholder will have good and valid title to, or a valid “security entitlement” within be the meaning sole owner of Section 8-501 of the New York Uniform Commercial Code (the “UCC”) the shares of Stock to be sold by the Selling Stockholder hereunder on such Delivery Datedate, free and clear of all liens, encumbrances, equities or claimsclaims (whether at law or equity) arising through such Selling Stockholder; and upon delivery of such shares and payment therefor pursuant hereto, good and valid title to such shares, free and clear of all liens, encumbrances, equities or claims, will pass to the several Underwritersterms hereof, the Underwriters will acquire all of such Selling Stockholder's rights in such shares free of any adverse claims (within the meaning of Section 8-102(a)(1) of the Uniform Commercial Code as in effect in the State of New York.
(cb) 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 the CompanyChaseMellon Shareholder Services, LLC, as custodian (the “"Custodian”"), for delivery under this Agreement, certificates in negotiable form (with signature guaranteed by a commercial bank or trust company having an office or correspondent in the United States or a member firm of the New York or American Stock Exchanges) representing the shares of Firm Stock to be sold by the Selling Stockholder hereunder.
(dc) The Selling Stockholder has duly and irrevocably executed and delivered a power of attorney (the “"Power of Attorney” " and, together with all other similar agreements executed by the other Selling Stockholders, the “"Powers of Attorney”") appointing Sxxxxxx X. Xxxxxxx and one or more other persons, as attorneys-in-fact, with full power of substitution, and with full authority (exercisable by any one or more of them) to execute and deliver this Agreement and to take such other action as may be necessary or desirable to carry out the provisions hereof on behalf of the Selling Stockholder.
(ed) The Selling Stockholder has full right, power and authority under its limited partnership or similar organization agreement to enter into this Agreement, the Power of Attorney and the Custody Agreement; this Agreement has been duly and validly authorized, executed and delivered by or on behalf of the Selling Stockholder; the execution, delivery and performance of this 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 will not conflict with or result in a material breach or violation of any of the terms or provisions of, or constitute a material default under, any indenture, mortgage, deed of trust, loan 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, other than such breaches, violations or defaults which have been waived or which would not be materially adverse to such Selling Stockholder's ability to perform its obligations hereunder, nor will such actions result in any violation of any the provisions of its organizational documents (in i) if the case Selling Stockholder is a corporation, the charter or by-laws of non-individual the Selling StockholdersStockholder; (ii) if the Selling Stockholder is a partnership, the partnership agreement of the Selling Stockholder; and (iii) if the Selling Stockholder is a trust, the deed of trust of the Selling Stockholder, or 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 or the property or assets of the Selling Stockholder; and, except for the registration of the Stock under the Securities Act and such consents, approvals, authorizations, registrations or qualifications as may be required under the Exchange Act, by the National Association of Securities Dealers, Inc. Act and under applicable state securities laws in connection with the purchase and distribution of the Stock by the Underwriters, no consent, approval, authorization or order of, or filing or registration with, any such court or governmental agency or body is required to be obtained by the Selling Stockholder 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.
(fe) The Stock Registration Statement 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 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 relating to such Selling Stockholder (based upon written information furnished to the Company by or on behalf of such Selling Stockholder specifically for inclusion therein) or omit to state a material fact relating to such Selling Stockholder (based upon written information furnished to the Company by or on behalf of such Selling Stockholder specifically for inclusion therein) required to be sold by stated therein or necessary to make the Selling Stockholder hereunder, which is represented by the certificates held in custody for the Selling Stockholder, is subject to the interest of the Underwriters, the arrangements made by the Selling Stockholder for such custody are to that extent irrevocable, and the obligations of the Selling Stockholder hereunder shall statements therein not be terminated by any act of the Selling Stockholder, by operation of law, by the death or incapacity of any individual 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 eventmisleading.
(g) The Selling Stockholder is not prompted to sell shares of Common Stock by any information concerning the Company that is not set forth in the Pricing Disclosure Package.
(hf) The Selling Stockholder has not taken and will not take, directly or indirectly, any action which is designed to or which has constituted or 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 of the Stock.
Appears in 1 contract
Representations, Warranties and Agreements of the Selling Stockholders. Each Selling Stockholder Stockholder, severally and not jointly, represents, warrants and agrees that:
(a) Neither the such Selling Stockholder nor any person acting on behalf of the such Selling Stockholder (other than, if applicable, the Company and than the Underwriters) has used or referred to any “free writing prospectus” (as defined in Rule 405)distributed and, relating prior 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 Prospectus or any Issuer Free Writing Prospectus to which the Underwriters have consented in accordance with Section 1(i) or 6(a)(vi).
(b) The Such Selling Stockholder has, and immediately prior to any the Delivery Date on which the Selling Stockholder is selling shares of Stock, the such Selling Stockholder will have 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 of Stock to be sold by the such Selling Stockholder hereunder on such the Delivery Date, free and clear of all liens, encumbrances, equities or claims; and upon . Upon payment for the Stock to be sold by such Selling Stockholder, delivery of such shares Stock, as directed by the Underwriters, to Cede & Co. (“Cede”) or such other nominee as may be designated by The Depository Trust Company (“DTC”), registration of such Stock in the name of Cede or such other nominee and payment therefor pursuant hereto, good and valid title the crediting of such Stock on the books of DTC to securities accounts of the Underwriters (assuming that neither DTC nor any such Underwriters has notice of any adverse claim (within the meaning of Section 8-105 of the UCC) to such sharesStock), free (i) under Section 8-501 of the UCC, the Underwriters will acquire a valid security entitlement in respect of such Stock and clear (ii) no action based on any valid “adverse claim,” within the meaning of all liensSection 8-102 of the UCC, encumbrancesto such Stock may be asserted against the Underwriters with respect to such security entitlement. For purposes of this representation, equities 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 claimsanother nominee designated by DTC, in each case on the Company’s share registry in accordance with its certificate of incorporation, bylaws and applicable law, (B) DTC will pass be registered as a “clearing corporation” within the meaning of Section 8-102 of the UCC and (C) appropriate entries to the several Underwritersaccounts of the Underwriters on the records of DTC will have been made pursuant to the UCC.
(c) The Such Selling Stockholder has placed in custody under a custody agreement (the “Custody Agreement” andfull right, together with all other similar agreements executed by the other Selling Stockholderspower and authority, the “Custody Agreements”) with the Companycorporate or otherwise, as custodian (the “Custodian”), for delivery under to enter into this Agreement, 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 New York or American Stock Exchanges) representing the shares of Stock to be sold by the Selling Stockholder hereunder.
(d) The Selling Stockholder has duly and irrevocably executed and delivered a power of attorney (the “Power of Attorney” and, together with all other similar agreements executed by the other Selling Stockholders, the “Powers of Attorney”) appointing Sxxxxxx X. Xxxxxxx and one or more other persons, as attorneys-in-fact, with full power of substitution, and with full authority (exercisable by any one or more of them) to execute and deliver this Agreement and to take such other action as may be necessary or desirable to carry out the provisions hereof on behalf of the Selling Stockholder.
(e) The Selling Stockholder has power and authority under its limited partnership or similar organization agreement to enter into this Agreement, the Power of Attorney and the Custody Agreement; this This Agreement has been duly and validly authorized, executed and delivered by or on behalf of the such Selling Stockholder; the .
(e) The execution, delivery and performance of this Agreement, the Power of Attorney and the Custody Agreement by the such Selling Stockholder and the consummation by the such Selling Stockholder of the transactions contemplated hereby do not and thereby will not (i) conflict with or result in a material breach or violation of any of the terms or provisions of, or constitute a material default under, any indenture, mortgage, deed of trust, loan agreement agreement, lease, pledge or other agreement or instrument to which the such Selling Stockholder is a party or by which the such Selling Stockholder is bound or to which any of the property or assets of the such Selling Stockholder is subjectsubject which conflict, nor will breach, violation or default would impair the ability of such actions Selling Stockholder to perform its obligations under this Agreement, (ii) result in any violation of the provisions of any partnership or limited liability company agreement, certificate of its incorporation, bylaws, operating agreement, deed of trust or other similar agreement or organizational documents document of such Selling Stockholder or (iii) result in the case of non-individual Selling Stockholders) or any material violation of any statute or any order, rule or regulation of any court or governmental agency or body (whether domestic or foreign) having jurisdiction over the such Selling Stockholder or the property or assets of such Selling Stockholder which violation would impair the ability of such Selling StockholderStockholder to perform its obligations under this Agreement; and, except for the registration of the 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, by the National Association of Securities Dealers, Inc. Act and under applicable state or foreign securities laws in connection with the purchase and distribution of the Stock by the Underwriters, 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, the Power of Attorney or the Custody Agreement by the such Selling Stockholder and the consummation by the such Selling Stockholder of the transactions contemplated hereby and therebyhereby.
(f) The Stock Registration Statement did not as of the Effective Date, the Prospectus will not as of its date and on the Delivery Date, the Pricing Disclosure Package did not 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 sold by stated therein or necessary to make the Selling Stockholder hereunder, which is represented by the certificates held in custody for the Selling Stockholder, is subject to the interest of the Underwriters, the arrangements made by the Selling Stockholder for such custody are to that extent irrevocable, and the obligations of the Selling Stockholder hereunder shall not be terminated by any act of the Selling Stockholder, by operation of law, by the death or incapacity of any individual Selling Stockholder orstatements therein, in the case light of a trustthe circumstances under which they were made, by not misleading; provided that the death foregoing representation and warranty shall apply only to the extent that any statements in or incapacity of omissions from the Registration Statement, the Prospectus, the Pricing Disclosure Package or any executor or trustee or Issuer Free Writing Prospectus, as applicable, are made in reliance upon and in conformity with the termination of such trust, or the occurrence of any other eventSelling Stockholders Information.
(g) The Such Selling Stockholder is not prompted to sell shares of Common Stock by any material negative information concerning the Company that is not set forth in the Registration Statement, the Pricing Disclosure PackagePackage and the Prospectus.
(h) The Such Selling Stockholder has not taken and will not take, directly or indirectly, any action which that is designed to or which has constituted or which might that could reasonably be expected to cause or result in the stabilization or manipulation of the price of any security of the Company to facilitate the sale or resale of the shares of the Stock. Any certificate signed by any officer of any Selling Stockholder and delivered to counsel for the Underwriters in connection with the offering of the Stock shall be deemed a representation and warranty by such Selling Stockholder, as to matters covered thereby, to each Underwriter.
Appears in 1 contract
Representations, Warranties and Agreements of the Selling Stockholders. 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 Underwriters) has used or referred to any “free writing prospectus” (as defined in Rule 405), 405 under the Securities Act) relating to the Stock;.
(b) The Selling Stockholder has, and immediately prior to any Delivery Date on which the Selling Stockholder is selling shares of Stock, the Selling Stockholder will have 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”) the shares of Stock to be sold by the Selling Stockholder hereunder on such Delivery Datein respect thereof, free and clear of all liens, encumbrances, equities, community property rights, restrictions on transfer or claims, except for any liens, encumbrances, equities or claims; claims arising under the Custody Agreement (as defined below).
(c) If such Selling Stockholder is a Management Selling Stockholder, the Stock to be sold by such Selling Stockholder hereunder, which is held in custody for such Selling Stockholder, is subject to the interest of the Underwriters and upon the Attorney-in-Fact and Custodian (each as defined below), and the obligations of the Selling Stockholder hereunder 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 for the Stock to be sold by such Selling Stockholder, delivery of such shares Stock, as directed by the Underwriters, to Cede & Co. (“Cede”) or such other nominee as may be designated by The Depository Trust Company (“DTC”), registration of such Stock in the name of Cede or such other nominee and payment therefor pursuant hereto, the crediting of such Stock on the books of DTC to securities accounts of the Underwriters (i) DTC will acquire good and valid marketable title to such shares, the Stock free and clear of all liens, encumbrances, equities equities, community property rights, restrictions on transfer or claims, (ii) DTC shall be a “protected purchaser” of such Stock within the meaning of Section 8-303 of the UCC, (iii) under Section 8-501 of the UCC, the Underwriters will pass acquire a valid security entitlement in respect of such Stock, and (iv) an action based on an adverse claim to such securities entitlement, whether framed in conversion, replevin, constructive trust, equitable lien or other theory may not be asserted against the Underwriters with respect to such security entitlement. For purposes of this representation, such Selling Stockholder may assume that when such payment, delivery and crediting occur, (x) such 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, bylaws and applicable law, (y) DTC will be registered as a “clearing corporation” within the meaning of Section 8-102 of the UCC, and (z) appropriate entries to the accounts of the several UnderwritersUnderwriters on the records of DTC will have been made pursuant to the UCC.
(ce) The If such Selling Stockholder is a Management Selling Stockholder, such Selling Stockholder has placed in custody under a custody agreement (the “Custody Agreement” and, together with all other similar agreements executed by the other Management Selling Stockholders, the “Custody Agreements”) with the CompanyComputershare Inc., as custodian (the “Custodian”), for delivery under this Agreement, certificates in negotiable form (with signature guaranteed by a commercial bank or trust company having an office or correspondent participant in the United States or a member firm of Securities Transfer Agents Medallion Program, the New York Stock Exchange Medallion Signature Program or American the Stock ExchangesExchange Medallion Program) representing the shares of Stock to be sold by the Selling Stockholder hereunder.
(df) The If such Selling Stockholder is a Management Selling Stockholder, such Selling Stockholder has duly and irrevocably executed and delivered a power of attorney (the “Power of Attorney” and, together with all other similar agreements executed by the other Management Selling Stockholders, the “Powers of Attorney”) appointing Sxxxxxx X. Xxxxxxx the Custodian and one or more other persons, Messrs. Xxx Xxxxxxxxx and Xxxxxxxxxxx Xxxxxx as attorneys-in-fact, with full power of substitution, and with full authority (exercisable by any one or more of them) to execute and deliver this Agreement and to take such other action as may be necessary or desirable to carry out the provisions hereof on behalf of the Selling Stockholder.
(eg) The Selling Stockholder has full right, power and authority under its limited partnership authority, corporate or similar organization agreement otherwise, to enter into this Agreement, and, if such Selling Stockholder is a Management Selling Stockholder, the Custody Agreement and the Power of Attorney and the Custody Agreement; this Attorney.
(h) This Agreement has been duly and validly authorized, executed and delivered by or on behalf of the Selling Stockholder; .
(i) If such Selling Stockholder is a Management Selling Stockholder, the Power of Attorney and the Custody Agreement have been duly and validly authorized, executed and delivered by or on behalf of such Selling Stockholder and constitute valid and legally binding obligations of such Selling Stockholder enforceable against such Selling Stockholder in accordance with their terms, subject to (i) the effects of bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium and other similar laws relating to or affecting creditors’ rights generally, (ii) general equitable principles (whether considered in a proceeding in equity or at law), and (iii) an implied covenant of good faith and fair dealing.
(j) The sale of the Stock by the Selling Stockholder, the execution, delivery and performance of this Agreement, and if the Selling Stockholder is a Management Selling Stockholder, the Custody Agreement and the Power of Attorney and the Custody Agreement Attorney, 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 material breach or violation of any of the terms or provisions of, or constitute a material default under, any indenture, mortgage, deed of trust, loan agreement agreement, 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, nor will such actions (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 of its organizational documents (in the case of non-individual Selling Stockholders) or any material 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; and, except for that in the registration case of clauses (i) and (iii) above, where such conflict, breach or violation would not, individually or in the Stock aggregate, reasonably be expected to have a material adverse effect on such Selling Stockholder’s ability to perform its obligations under the Securities Act and such consents, approvals, authorizations, registrations or qualifications as may be required under the Exchange Act, by the National Association of Securities Dealers, Inc. and under applicable state securities laws in connection with the purchase and distribution of the Stock by the Underwriters, no this Agreement.
(k) 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 sale of the Stock by the Selling Stockholder, the execution, delivery and performance of this Agreement, and if the Selling Stockholder is a Management Selling Stockholder, the Custody Agreement or the Power of Attorney or the Custody Agreement Attorney, by the Selling Stockholder and the consummation by the Selling Stockholder of the transactions contemplated hereby and thereby, except for (i) the registration of the 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 securities laws in connection with the purchase and sale of the Stock by the Underwriters, (ii) for those already obtained or (iii) for those as to which the failure to obtain would not, individually or in the aggregate, reasonably be expected to have a material adverse effect on such Selling Stockholder’s ability to perform its obligations under this Agreement.
(fl) The Stock to be sold by To the Selling Stockholder hereunder, which is represented by the certificates held in custody for the Selling Stockholder, is subject to the interest of the Underwriters, the arrangements made by the Selling Stockholder for such custody are to that extent irrevocable, and the obligations of the Selling Stockholder hereunder shall not be terminated by any act 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 operation of law, by the death or incapacity on behalf of any individual 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(l) are limited to statements or omissions made in reliance upon and in conformity with information relating to such Selling Stockholder or, furnished to the Company in writing by such Selling Stockholder expressly for use in the case of a trustRegistration Statement, by or any amendments or supplements thereto, it being understood and agreed that such information is limited to the death or incapacity of any executor or trustee or the termination legal name of such trustSelling Stockholder, or the occurrence number of any other event.
(g) The Selling Stockholder is not prompted to sell shares of Common Stock offered, the number of shares of Common Stock owned by such Selling Stockholder before and after the offering and the address and other information with respect to such Selling Stockholder (excluding percentages) that appear in the table and footnotes under the caption “Principal and Selling Stockholders” (with respect to each Selling Stockholder, the “Selling Stockholder Information”) in the Registration Statement and any amendment or supplement thereto.
(m) To the knowledge of the Selling Stockholder, the Prospectus will not, as of its date or as of the applicable Delivery Date, contain an untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading; provided that (i) no representation or warranty is made as to information concerning contained in or omitted from the Prospectus in reliance upon and in conformity with written information furnished to the Company that through the Representatives by or on behalf of any Underwriter specifically for inclusion therein, which information is not specified in Section 10(f) and (ii) the representations and warranties set forth in this Section 2(m) are limited to statements or omissions made in reliance upon and in conformity with information relating to such Selling Stockholder furnished to the Company in writing by such Selling Stockholder expressly for use in the Prospectus or any amendments or supplements thereto, it being understood and agreed that such information is limited to the Selling Stockholder Information in the Prospectus and any amendment or supplement thereto.
(n) 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 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 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(n) are limited to statements or omissions made in reliance upon and in conformity with information relating to such Selling Stockholder furnished to the Company in writing by such Selling Stockholder expressly for use in the Pricing Disclosure PackagePackage or any amendments or supplements thereto, it being understood and agreed that such information is limited to the Selling Stockholder Information in the Pricing Disclosure Package and any amendment or supplement thereto.
(ho) To the knowledge of the Selling Stockholder, the Pricing Disclosure Package, when taken together with each Issuer Free Writing Prospectus listed in Schedule V hereto, did not, as of the Applicable Time, contain an untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading; provided that (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 V 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 paragraph 2(o) are limited to statements or omissions made in reliance upon and in conformity with information relating to such Selling Stockholder furnished to the Company in writing by such Selling Stockholder expressly for use in the Pricing Disclosure Package (or in any Issuer Free Writing Prospectus listed in Schedule V hereto) or any amendments or supplements thereto, it being understood and agreed that such information is limited to the Selling Stockholder Information in the Pricing Disclosure Package (or in any Issuer Free Writing Prospectus listed in Schedule V hereto) and any amendment or supplement thereto.
(p) The Selling Stockholder has not taken and will not taketaken, directly or indirectly, any action which that is designed to or which that has constituted or which might that could reasonably be expected to cause or result in the stabilization or manipulation of the price of any security of the Company to facilitate in connection with the sale or resale offering of the shares of the Stock.
(q) 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; provided that the foregoing shall not apply with respect to the distribution of the proceeds of the offering to any of such Selling Stockholder’s direct or indirect limited partners once such proceeds are no longer under the control of such Selling Stockholder if prior to such distribution such Selling Stockholder has no knowledge that such proceeds will be used for any of the foregoing purposes.
(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.
(s) Any certificate signed by any officer of any Selling Stockholder and delivered to the Representatives or counsel for the Underwriters in connection with the offering of the Stock shall be deemed a representation and warranty by such Selling Stockholder, as to matters covered thereby, to each Underwriter.
Appears in 1 contract
Representations, Warranties and Agreements of the Selling Stockholders. Each Selling Stockholder Stockholder, severally and not jointly, represents, warrants and agrees with the several Underwriters that:
(a) Neither the Selling Stockholder nor any person acting on behalf of the Selling Stockholder (other than, if applicable, the Company and the Underwriters) has used or referred to any “"free writing prospectus” " (as defined in Rule 405), relating to the Stock;
(b) The Selling Stockholder has, and immediately prior to any Delivery Date on which the Selling Stockholder is selling shares of Stock, the Selling Stockholder will have 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 of Stock to be sold by the Selling Stockholder hereunder on such Delivery Date, free and clear of all liens, encumbrances, equities or claims; and upon delivery of such shares and payment therefor pursuant hereto, good and valid title to such shares, free and clear of all except for any liens, encumbrances, equities or claimsclaims arising under the Custody Agreement (as defined below), will pass to the several UnderwritersPowers of Attorney (as defined below) and this Agreement.
(c) Upon payment for the Stock to be sold by such Selling Stockholder, delivery of such Stock, as directed by the Underwriters, to Cede & Co. ("Cede") or such other nominee as may be designated by The Depository Trust Company ("DTC"), registration of such Stock in the name of Cede or such other nominee and the crediting of such Stock on the books of DTC to securities accounts of the Underwriters (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 Stock), (i) under Section 8-501 of the UCC, the Underwriters will acquire a valid security entitlement in respect of such Stock and (ii) no action based on any "adverse claim", within the meaning of Section 8-102 of the UCC, to such Stock may be successfully asserted against Xxxxxx Brothers Inc. as representative of the Underwriters with respect to such security entitlement. For purposes of this representation, 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 certificate of incorporation, bylaws and applicable law, (B) DTC will be registered as a "clearing corporation" within the meaning of Section 8-102 of the UCC and (C) appropriate entries to the accounts of the several Underwriters on the records of DTC will have been made pursuant to the UCC.
(d) 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 the CompanyLaSalle Bank National Association, as custodian (the “"Custodian”"), for delivery under this Agreement, certificates in negotiable form (with signature guaranteed by a commercial bank or trust company having an office or correspondent participant in the United States or a member firm of Securities Transfer Agents Medallion Program, the New York Stock Exchange Medallion Signature Program or American the Stock ExchangesExchange Medallion Program) representing the shares of Stock to be sold by the Selling Stockholder hereunder.
(de) The Selling Stockholder has duly and irrevocably executed and delivered a power of attorney (the “"Power of Attorney” " and, together with all other similar agreements executed by the other Selling Stockholders, the “"Powers of Attorney”") appointing Sxxxxxx Messrs. Xxxxx X. Xxxxxx, Xxxxxxx X. Xxxxxxxxxx, Xxxxxxx Xxxxxx and one or more other persons, Xxx X. Xxxxxxxx as attorneys-in-factfact (the "Attorneys-in-Fact"), with full power of substitution, and with full authority (exercisable by any one or more of them) to execute and deliver this Agreement on such Selling Stockholder's behalf and to take such other action as may be necessary or desirable to carry out the provisions hereof on behalf of the Selling Stockholder.
(ef) The Selling Stockholder has full right, power and authority under its limited partnership authority, corporate or similar organization agreement otherwise, to enter into this Agreement, the Custody Agreement and the Power of Attorney and the Custody Agreement; this Attorney.
(g) This Agreement has been duly and validly authorized, executed and delivered by or on behalf of the Selling Stockholder; .
(h) The Power of Attorney and the Custody Agreement have been duly and validly authorized, executed and delivered by or on behalf of the Selling Stockholder and constitute valid and legally binding obligations of the Selling Stockholder enforceable against the Selling Stockholder in accordance with their terms, subject to (i) the effects of bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium and other similar laws relating to or affecting creditors' rights generally, (ii) general equitable principles (whether considered in a proceeding in equity or at law) and (iii) an implied covenant of good faith and fair dealing.
(i) The execution, delivery and performance of this Agreement, the Custody Agreement and 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 material breach or violation of any of the terms or provisions of, or constitute a material default under, any indenture, mortgage, deed of trust, loan agreement 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, nor will such actions (ii) for each Selling Stockholder that is not a natural person, result in any violation of the provisions of the charter or by-laws (or similar organizational documents) of such Selling Stockholder or (iii) result in any of its organizational documents (in the case of non-individual Selling Stockholders) or 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 or the property or assets of the Selling Stockholder; and, except in the case of clauses (i) and (iii) for such conflicts, breaches, violations or defaults as would not reasonably be expected to materially adversely affect such Selling Stockholder's ability to perform its obligations hereunder and under the Custody Agreement and the Power of Attorney.
(j) 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, the Custody Agreement or the Power of Attorney by the Selling Stockholder and the consummation by the Selling Stockholder of the transactions contemplated hereby and thereby, except for the registration of the Stock under the Securities Act and such consents, approvals, authorizations, registrations or qualifications as have been obtained or as may be required under the Exchange Act, by the National Association of Securities Dealers, Inc. NASD and under applicable state securities laws in connection with the purchase and distribution sale of the Stock by the Underwriters, no consent, approval, authorization or order of, or filing or registration with, any such court or governmental agency or body 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.
(fk) The Stock to be sold by To the Selling Stockholder hereunder, which is represented by the certificates held in custody for the Selling Stockholder, is subject to the interest of the Underwriters, the arrangements made by the Selling Stockholder for such custody are to that extent irrevocable, and the obligations of the Selling Stockholder hereunder shall not be terminated by any act 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 in this Section 2(k) only apply to statements or omissions in the Registration Statement based on and in conformity with information relating to such Selling Stockholder furnished to the Company in writing by operation of lawsuch Selling Stockholder expressly for use therein; 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 the death or incapacity on behalf of any individual Underwriter specifically for inclusion therein, which information is specified in Section 10(f).
(l) To the knowledge of the Selling Stockholder orStockholder, the Prospectus does not, as of its date, and will not 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 case light of a trustthe circumstances under which they were made, not misleading; provided that the representations and warranties in this Section 2(l) only apply to statements or omissions in the Prospectus based on and in conformity with information relating to such Selling Stockholder furnished to the Company in writing by such Selling Stockholder expressly for use therein; provided, further that no representation or warranty is made as to information contained in or omitted from the death Prospectus in reliance upon and in conformity with written information furnished to the Company through the Representatives by or incapacity on behalf of any executor or trustee or the termination of such trustUnderwriter specifically for inclusion therein, or the occurrence of any other eventwhich information is specified in Section 10(f).
(gm) The To the knowledge of the Selling Stockholder is 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 prompted misleading; provided that the representations and warranties in this Section 2(m) only apply to sell shares of Common Stock by any information concerning the Company that is not set forth statements or omissions in the Pricing Disclosure PackagePackage based on and in conformity with information relating to such Selling Stockholder furnished to the Company in writing by such Selling Stockholder expressly for use therein; 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 or the Selling Stockholders through the Representatives by or on behalf of any Underwriter specifically for inclusion therein, which information is specified in Section 10(f).
(hn) The Selling Stockholder has not taken and will not take, directly or indirectly, any action which that is designed to or which that has constituted or which might that would reasonably be expected to cause or result in the stabilization or manipulation of the price of any security of the Company to facilitate the sale or resale of the shares of the Stock.
(o) The sale of the Common Stock by any Selling Stockholder that is an affiliate of the Company does not, to the knowledge of such Selling Stockholder, violate any of the Company's internal policies regarding the sale of stock by its affiliates. Any certificate signed by any Selling Stockholder and delivered to the Representatives in connection with the offering of the Stock shall be deemed a representation and warranty by such Selling Stockholder, as to matters covered thereby, to each Underwriter.
Appears in 1 contract
Representations, Warranties and Agreements of the Selling Stockholders. Each 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 Underwriters) has used or referred to any “free writing prospectus” (as defined in Rule 405), relating to the Stock;
(b) The Selling Stockholder has, and immediately prior to any the Delivery Date on which the Selling Stockholder is selling shares of Stock, (as defined in Section 5 hereof) 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”) to the shares of 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, will pass to the several Underwriters.
(cb) The Selling Stockholder has placed in custody under a custody agreement and a power of attorney (the “"Custody Agreement” " and "Power of Attorney" and, together with all other similar agreements executed by the other Selling Stockholders, the “"Custody Agreements”Agreements and Powers of Attorney") with the Company[Xxxxxxxx Xxxxxxxxx Professional Corporation], as custodian (the “"Custodian”"), for delivery under this Agreement, certificates in negotiable form (with signature guaranteed by a commercial bank or trust company having an office or correspondent in the United States or a member firm of the New York or American Stock Exchanges) representing the shares of Stock to be sold by the Selling Stockholder hereunder.
(d) The , and the Selling Stockholder has duly and irrevocably executed and delivered a power of attorney (the “Power of Attorney” and, together with all other similar agreements executed by Attorney appointing the other Selling Stockholders, the “Powers of Attorney”) appointing Sxxxxxx X. Xxxxxxx Custodian and one or more other persons, as attorneys-in-fact, with full power of substitution, and with full authority (exercisable by any one or more of them) to execute and deliver this Agreement and to take such other action as may be necessary or desirable to carry out the provisions hereof on behalf of the Selling Stockholder.
(ec) The Selling Stockholder has full right, power and authority under its limited partnership or similar organization agreement to enter into this Agreement, the Power of Attorney Agreement and the Custody Agreement; this Agreement has been duly and validly authorized, executed and delivered by or on behalf Power of the Selling StockholderAttorney; the execution, delivery and performance of this Agreement, the Power of Attorney Agreement and the Custody Agreement and Power of Attorney by the Selling Stockholder and the consummation by the Selling Stockholder of the transactions contemplated hereby and thereby will not conflict with or result in a material breach or violation of any of the terms or provisions of, or constitute a material default under, any indenture, mortgage, deed of trust, loan agreement or other agreement or instrument to which the Selling Stockholder Stockholder, if applicable, 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 will such actions result in any violation of any [the provisions of its organizational documents (in the case charter or by- laws of non-individual the Selling Stockholders) Stockholder][the articles of partnership of the Selling Stockholder] or 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 or the property or assets of the Selling Stockholder; and, except for the registration of the Stock under the Securities Act and such consents, approvals, authorizations, registrations or qualifications as may be required under the Exchange Act, by the National Association of Securities Dealers, Inc. Act and under applicable state securities laws in connection with the purchase and distribution of the Stock by the Underwriters, no consent, approval, authorization or order of, or filing or registration with, any such court or governmental agency or body is required for the execution, delivery and performance of this Agreement, the Power of Attorney Agreement or the Custody Agreement and Power of Attorney by the Selling Stockholder and the consummation by the Selling Stockholder of the transactions contemplated hereby and thereby.
(fd) The Stock to be sold by To the Selling Stockholder hereunder, which is represented by the certificates held in custody for the knowledge of such Selling Stockholder, is subject the Registration Statement and the Prospectus and any further amendments or supplements to the interest 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 Underwriters, applicable effective date (as to the arrangements made by the Selling Stockholder for such custody are to that extent irrevocable, Registration Statement and the obligations any amendment thereto) and as of the Selling Stockholder hereunder shall 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 be terminated misleading; provided that no representation or warranty is made as to information contained in or omitted from the Registration Statement or the Prospectus in reliance upon and in conformity with written information furnished to the Company through the Representatives by any act of the Selling Stockholder, by operation of law, by the death or incapacity on behalf of any individual 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 eventUnderwriter specifically for inclusion therein.
(ge) 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 effective date, or the Prospectus (or any amendment or supplement thereto), as of the applicable filing date, which has adversely affected or may adversely affect the business of the Company and is not prompted to sell shares of Common Stock by any information concerning the Company that which is not set forth in the Pricing Disclosure PackageRegistration Statement and the Prospectus.
(hf) The Selling Stockholder has not taken and will not take, directly or indirectly, any action which is designed to or which has constituted or 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 of the Stock.
Appears in 1 contract
Representations, Warranties and Agreements of the Selling Stockholders. 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 Underwriters) has used or referred to any “free writing prospectus” (as defined in Rule 405405 of the Rules and Regulations), relating to the Stock;.
(b) The Except with respect to Future Securities (as defined below), the Selling Stockholder has, and immediately prior to any Delivery Date on which the Selling Stockholder is selling shares of Stock, the Selling Stockholder will have 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 of Stock to be sold by the Selling Stockholder hereunder on such Delivery Date, free and clear of all liens, encumbrances, equities or claims; and upon delivery , except for any liens, encumbrances, equities or claims arising under the Custody Agreement (as hereinafter defined). Notwithstanding the foregoing, with respect to the Stock that are to be delivered on any Delivery Date pursuant to the exercise of options or warrants (the “Future Securities”), as of each such shares and payment therefor pursuant hereto, date the Selling Stockholder will have good and valid title to, or a valid “security entitlement” within the meaning of Section 8-501 of the UCC in respect of, the Future Securities to be sold by the Selling Stockholder hereunder on such sharesDelivery Date, free and clear of all liens, encumbrances, equities or claims, will pass to except for any liens, encumbrances, equities or claims arising under the several UnderwritersCustody Agreement (as hereinafter defined).
(c) 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 the Company, as custodian (the “Custodian”), for delivery under this Agreement, certificates in negotiable form (with signature guaranteed by a commercial bank or trust company having an office or correspondent in the United States or a member firm of the New York or American Stock Exchanges) representing the shares of Stock to be sold by the Selling Stockholder hereunder.
(d) The Selling Stockholder has duly and irrevocably executed and delivered a power of attorney (the “Power of Attorney” and, together with all other similar agreements executed by the other Selling Stockholders, the “Powers of Attorney”) appointing Sxxxxxx X. Xxxxxxx and one or more other persons, as attorneys-in-fact, with full power of substitution, and with full authority (exercisable by any one or more of them) to execute and deliver this Agreement and to take such other action as may be necessary or desirable to carry out the provisions hereof on behalf of the Selling Stockholder.
(e) The Selling Stockholder has power and authority under its limited partnership or similar organization agreement to enter into this Agreement, the Power of Attorney and the Custody Agreement; this Agreement has been duly and validly authorized, executed and delivered by or on behalf of the Selling Stockholder; the execution, delivery and performance of this 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 will not conflict with or result in a material breach or violation of any of the terms or provisions of, or constitute a material default under, any indenture, mortgage, deed of trust, loan 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 will such actions result in any violation of any of its organizational documents (in the case of non-individual Selling Stockholders) or 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 or the property or assets of the Selling Stockholder; and, except for the registration of the Stock under the Securities Act and such consents, approvals, authorizations, registrations or qualifications as may be required under the Exchange Act, by the National Association of Securities Dealers, Inc. and under applicable state securities laws in connection with the purchase and distribution of the Stock by the Underwriters, no consent, approval, authorization or order of, or filing or registration with, any such court or governmental agency or body 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.
(f) The Stock to be sold by the Selling Stockholder hereunderhereunder (except Future Securities), which is represented by the certificates held in custody for the Selling Stockholder, is subject to the interest of the UnderwritersUnderwriters and the other Selling Stockholders hereunder, the arrangements made by the Selling Stockholder for such custody of the Stock pursuant to the Custody Agreement are to that extent irrevocable, and the obligations of the Selling Stockholder hereunder shall not be terminated by any act of the Selling Stockholder, by operation of law, by the death or incapacity of any individual 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. Notwithstanding the foregoing, the Future Securities to be sold by the Selling Stockholder hereunder, which is represented by the certificates held in custody for the Selling Stockholder, will be subject to the interest of the Underwriters and the other Selling Stockholders hereunder, the arrangements made by the Selling Stockholder for custody of the Stock pursuant to the Custody Agreement are to that extent irrevocable, and the obligations of the Selling Stockholder hereunder shall not be terminated by any act of the Selling Stockholder, by operation of law, by death or incapacity of any individual 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) Upon payment for the Stock to be sold by such Selling Stockholder, delivery of such Stock, as directed by the Underwriters, to Cede & Co. (“Cede”) or such other nominee as may be designated by The Depository Trust Company (“DTC”), registration of such Stock in the name of Cede or such other nominee and the crediting of such Stock on the books of DTC to securities accounts of the Underwriters (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 Stock), (i) DTC shall be a “protected purchaser” of such Stock within the meaning of Section 8-303 of the UCC, (ii) under Section 8-501 of the UCC, the Underwriters will acquire a valid security entitlement in respect of such Stock and (iii) no action based on any “adverse claim,” within the meaning of Section 8-102 of the UCC, to such Stock may be asserted against the Underwriters with respect to such security entitlement. For purposes of this representation, 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 certificate of incorporation, bylaws and applicable law, (B) DTC will be registered as a “clearing corporation” within the meaning of Section 8-102 of the UCC and (C) appropriate entries to the accounts of the several Underwriters on the records of DTC will have been made pursuant to the UCC.
(e) 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 American Stock Transfer & Trust Company, LLC, as custodian (the “Custodian”), for delivery under this Agreement, certificates in negotiable form (with signature guaranteed by a participant in the Securities Transfer Agents Medallion Program, the New York Stock Exchange Medallion Signature Program or the Stock Exchange Medallion Program) representing the shares of Stock (except Future Securities) to be sold by the Selling Stockholder hereunder. Notwithstanding the foregoing, any certificates representing the Future Securities to be sold by such Selling Stockholder pursuant to this Agreement will be placed in custody of the Custodian in negotiable form in the same manner as set forth in the foregoing sentence.
(f) The Selling Stockholder has duly and irrevocably executed and delivered a power of attorney (the “Power of Attorney” and, together with all other similar agreements executed by the other Selling Stockholders, the “Powers of Attorney”) appointing the Custodian and Messrs. Xxxx X. Xxxxxx and Xxxxxxx X. Xxxxx as attorneys-in-fact, with full power of substitution, and with full authority (exercisable by any one or more of them) to execute and deliver this Agreement and to take such other action as may be necessary or desirable to carry out the provisions hereof on behalf of the Selling Stockholder.
(g) The Selling Stockholder has full right, power and authority (with respect to a Selling Stockholder that is not a natural person), corporate or otherwise, to enter into this Agreement, the Custody Agreement and the Power of Attorney.
(h) This Agreement has been duly and validly authorized (with respect to a Selling Stockholder that is not a natural person), executed and delivered by or on behalf of the Selling Stockholder.
(i) The Power of Attorney and the Custody Agreement have been duly and validly authorized (with respect to a Selling Stockholder that is not a natural person), executed and delivered by or on behalf of the Selling Stockholder and constitute valid and legally binding obligations of the Selling Stockholder enforceable against the Selling Stockholder in accordance with their terms, subject to (i) the effects of bankruptcy, insolvency, fraudulent conveyance, reorganization, receivership, moratorium, fraudulent transfer or other similar laws now or hereafter in effect relating to creditors’ rights generally, (ii) general principles of equity (whether considered in a proceeding in equity or at law) and (iii) an implied covenant of good faith and fair dealing.
(j) The execution, delivery and performance of this Agreement, the Custody Agreement and the Power of Attorney 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 in the case of a Selling Stockholder that is not a natural person, 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 clauses (i) and (iii), for such conflicts, breaches, violations or defaults that would not, individually or in the aggregate, adversely affect the ability of the Selling Stockholder to perform its obligations hereunder and under the Custody Agreement and the Power of Attorney.
(k) 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, the Custody Agreement or the Power of Attorney by the Selling Stockholder and the consummation by the Selling Stockholder of the transactions contemplated hereby and thereby, except for the registration of the Stock under the Securities Act and such consents, approvals, authorizations, registrations or qualifications as may be required under the Exchange Act and applicable state or foreign securities laws in connection with the purchase and sale of the Stock by the Underwriters.
(l) 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 such representation and warranty applies only to information contained in or omitted from the Registration Statement in reliance upon and in conformity with written information relating to such Selling Stockholder and furnished to the Company by or on behalf of such Selling Stockholder specifically for inclusion therein; it being understood and agreed that the only written information so furnished consists only of the information concerning such Selling Stockholder appearing under the captions “Prospectus Summary—Our Principal Stockholder” and “Principal and Selling Stockholders” in any Preliminary Prospectus, the Registration Statement and the Prospectus (the “Selling Stockholder Information”).
(m) 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; provided that such representation and warranty applies only to the Selling Stockholder Information contained in or omitted from the Prospectus.
(n) 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 such representation and warranty applies only to the Selling Stockholder Information contained in or omitted from the Pricing Disclosure Package.
(o) 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 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 such representation and warranty applies only to the Selling Stockholder Information contained in or omitted from each Issuer Free Writing Prospectus.
(p) The Selling Stockholder is not prompted to sell shares of Common Stock by any information concerning the Company that is not set forth in the Registration Statement, the Pricing Disclosure PackagePackage and the Prospectus.
(hq) The Selling Stockholder has not taken and will not take, directly or indirectly, any action which that is designed to or which that has constituted or which might would reasonably be expected to cause or result in the stabilization or manipulation of the price of any security of the Company to facilitate the sale or resale of the shares of the Stock. Any certificate signed by any officer of any Selling Stockholder and delivered to the Representatives or counsel for the Underwriters in connection with the offering of the Stock shall be deemed a representation and warranty by such Selling Stockholder, as to matters covered thereby, to each Underwriter.
Appears in 1 contract
Representations, Warranties and Agreements of the Selling Stockholders. Each 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 Underwriters) has used or referred to any “free writing prospectus” (as defined in Rule 405), relating to the Stock;
(b) The Such Selling Stockholder has, and immediately prior to any the First Delivery Date on which the Selling Stockholder is selling shares of Stock, the (as defined in Section 5 hereof) such Selling Stockholder will have 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”) to the shares of Stock to be sold by the such 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 claimsclaims attributable to such Selling Stockholder, will pass to the several Underwriters.
(cb) The Such 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 the Company, as custodian (the “"Custodian”"), for delivery under this Agreement, certificates in negotiable form (with signature guaranteed by a commercial bank or trust company having an office or correspondent in the United States or a member firm of the New York or American Stock Exchanges) representing the shares of Stock to be sold by the Selling Stockholder hereunder.
(dc) The Such Selling Stockholder has duly and irrevocably executed and delivered a power of attorney (the “"Power of Attorney” and, together with all other similar agreements executed by the other Selling Stockholders, the “Powers of Attorney”") appointing Sxxxxxx X. Xxxxxxx and one or more other certain persons, as attorneys-in-fact, with full power of substitution, and with full authority (exercisable by any one or more of them) to execute and deliver this Agreement and to take such other action as may be necessary or desirable to carry out the provisions hereof on behalf of the such Selling Stockholder.
(ed) The Such Selling Stockholder has full right, power and authority under its limited partnership or similar organization agreement to enter into this Agreement, the Power of Attorney and the Custody Agreement; this Agreement has been duly and validly authorized, executed and delivered by or on behalf of the Selling Stockholder; the execution, delivery and performance of this Agreement, the Power of Attorney and the Custody Agreement by the such Selling Stockholder and the consummation by the such Selling Stockholder of the transactions contemplated hereby and thereby will not conflict with or result in a material breach or violation of any of the terms or provisions of, or constitute a material default under, any indenture, mortgage, deed of trust, loan agreement or other agreement or instrument to which the such Selling Stockholder is a party or by which the such Selling Stockholder is bound or to which any of the property or assets of the such Selling Stockholder is are subject, nor will such actions result in any violation of any of its organizational documents (in the case of non-individual Selling Stockholders) or any material violation of any statute or any order, rule or regulation of any court or governmental agency or body having jurisdiction over the such Selling Stockholder or the property or assets of the such Selling Stockholder; and, except for the registration of the Stock under the Securities Act and such consents, approvals, authorizations, registrations or qualifications as may be required under the Exchange Act, by the National Association of Securities Dealers, Inc. Act and under applicable state securities laws in connection with the purchase and distribution of the Stock by the Underwriters, no consent, approval, authorization or order of, or filing or registration with, any such court or governmental agency or body is required for the execution, delivery and performance of this Agreement, the Power of Attorney or the Custody Agreement by the such Selling Stockholder and the consummation by the such Selling Stockholder of the transactions contemplated hereby and thereby.
(fe) The Stock To the extent that any statements or omissions made in the Registration Statement, the Prospectus or any amendment or supplement thereto are made in reliance upon and in conformity with written information furnished to the Company by such Selling Stockholder specifically for inclusion therein, the Registration Statement did not, the Prospectus and any amendments or supplements to the Registration Statement or the Prospectus will not, when they become effective or are filed with the Commission, as the case may be, 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. It is understood and agreed that the statements with respect to the number of shares of the Stock being sold by the such Selling Stockholder hereunderappearing on the cover page and page 25 of the Prospectus, which is represented by the certificates held in custody for the and any statements with respect to such Selling Stockholder's relationship with the Company appearing on page 25 of the Prospectus, is subject constitute the only information furnished in writing to the interest Company by or on behalf of such Selling Stockholder specifically for inclusion in the UnderwritersRegistration Statement, the arrangements made by the Selling Stockholder for such custody are to that extent irrevocable, Prospectus and the obligations of the Selling Stockholder hereunder shall not be terminated by any act of the Selling Stockholder, by operation of law, by the death amendment or incapacity of any individual 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 eventsupplement thereto.
(gf) The Selling Stockholder is not prompted to sell shares of Common Stock by any information concerning the Company that is not set forth in the Pricing Disclosure Package.
(h) The Such Selling Stockholder has not taken and will not take, directly or indirectly, any action which is designed to or which has constituted or 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 of the Stock.
Appears in 1 contract
Representations, Warranties and Agreements of the Selling Stockholders. Each Selling Stockholder Stockholder, severally and not jointly, represents, warrants and agrees that:
(a) Such Selling Stockholder, if an entity, has been duly incorporated or formed, as applicable, 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 such Selling Stockholder nor any person acting on behalf of the such Selling Stockholder (other than, if applicable, the Company and the Underwriters) has used or referred to any “free writing prospectus” (as defined in Rule 405), 405 under the Securities Act) relating to the Stock;.
(bc) The Such Selling Stockholder hasafter giving effect to the liquidation and dissolution of Fastball Holdco, L.P. and the distribution of its assets to its partners, and immediately prior to any Delivery Date on which the such Selling Stockholder is selling shares of Stock, the such Selling Stockholder will have have, good and valid marketable title to, or a valid to the shares of Stock to be sold by such 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”) the shares of Stock to be sold by the Selling Stockholder hereunder on such Delivery Datein respect thereof, free and clear of all liens, encumbrances, equities equities, community property rights, restrictions on transfer or claims; and upon .
(d) Upon payment for the Stock to be sold by such Selling Stockholder, delivery of such shares Stock, as directed by the Underwriters, to Cede & Co. (“Cede”) or such other nominee as may be designated by The Depository Trust Company (“DTC”), registration of such Stock in the name of Cede or such other nominee and payment therefor pursuant heretothe crediting of such Stock on the books of DTC to securities accounts of the Underwriters (i) DTC shall be a “protected purchaser” of such Stock within the meaning of Section 8-303 of the UCC, good (ii) under Section 8-501 of the UCC, the Underwriters will acquire a valid security entitlement in respect of such Stock, and valid title (iii) an action based on an adverse claim to such sharessecurities entitlement, free whether framed in conversion, replevin, constructive trust, equitable lien or other theory may not be successfully asserted against the Underwriters with respect to such security entitlement. For purposes of this representation, such Selling Stockholder may assume that when such payment, delivery and clear crediting occur, (x) such Stock will have been registered in the name of all liensCede or another nominee designated by DTC, encumbrancesin each case on the Company’s share registry in accordance with its certificate of incorporation, equities or claimsbylaws and applicable law, (y) DTC will pass be registered as a “clearing corporation” within the meaning of Section 8-102 of the UCC, and (z) appropriate entries to the accounts of the several UnderwritersUnderwriters on the records of DTC will have been made pursuant to the UCC.
(ce) The Such Selling Stockholder (other than SLP Fastball Aggregator, L.P.) has placed in custody under a custody agreement (the “Custody Agreement” and, together with all other similar agreements executed by or on behalf of the other Selling Stockholders, the “Custody Agreements”) with the American Stock Transfer & Trust Company, LLC, as custodian (the “Custodian”), for delivery under this Agreement, certificates in negotiable form (with signature guaranteed by a commercial bank or trust company having an office or correspondent participant in the United States or a member firm of Securities Transfer Agents Medallion Program, the New York Stock Exchange Medallion Signature Program or American the Stock ExchangesExchange Medallion Program) representing the shares of Stock to be sold by the Selling Stockholder hereunder.
(df) The Such Selling Stockholder (other than SLP Fastball Aggregator, L.P.) has duly and irrevocably executed and delivered a power of attorney (the “Power of Attorney” and, together with all other similar agreements executed by the other Selling Stockholders, the “Powers of Attorney”) appointing Sxxxxxx X. the Messrs. Xxxxx Xxxxxxx, Xxxxx Xxxxxx, and Xxxx Xxxxxxx and one or more other persons, as attorneys-in-fact, with full power of substitution, and with full authority (exercisable by any one or more of them) to execute and deliver this Agreement and to take such other action as may be necessary or desirable to carry out the provisions hereof on behalf of the Selling Stockholder.
(eg) The Such Selling Stockholder has full right, power and authority under its limited partnership authority, corporate or similar organization agreement otherwise, to enter into this Agreement, the Power of Attorney and the Custody Agreement; this .
(h) This Agreement has been duly and validly authorized, executed and delivered by or on behalf of the such Selling Stockholder; .
(i) The Power of Attorney and the Custody Agreement have been duly and validly authorized, executed and delivered by or on behalf of such Selling Stockholder (other than SLP Fastball Aggregator, L.P.) and constitute valid and legally binding obligations of such Selling Stockholder enforceable against such Selling Stockholder in accordance with their terms, subject to (i) the effects of bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium and other similar laws relating to or affecting creditors’ rights generally, (ii) general equitable principles (whether considered in a proceeding in equity or at law), and (iii) an implied covenant of good faith and fair dealing.
(j) All information furnished to the Company or the Underwriters by or on behalf of such Selling Stockholder in writing expressly for use in the Registration Statement, the Pricing Disclosure Package or the Prospectus is, and on the Closing Date will be, true, correct and complete in all material respects, and did not, as of the Applicable Time, and on the Closing Date will not, contain any untrue statement of a material fact or omit to state any material fact necessary to make such information not misleading, it being understood and agreed that the only such information furnished consists of the name of such Selling Stockholder, the number of offered shares and the address and other information with respect to such Selling Stockholder (excluding percentages) which appears in the Registration Statement, the Prospectus, and the Pricing Disclosure Package in the table (and corresponding footnotes) under the caption “Selling Stockholders” (collectively, the “Selling Stockholder Information”).
(k) The sale of the Stock by such Selling Stockholder, the execution, delivery and performance of this Agreement, the Custody Agreement and the Power of Attorney and the Custody Agreement by the such Selling Stockholder (to the extent a party thereto) and the consummation by the such Selling Stockholder of the transactions contemplated hereby do not and thereby will not (i) conflict with or result in a material breach or violation of any of the terms or provisions of, or constitute a material default under, any indenture, mortgage, deed of trust, loan agreement agreement, license, lease or other agreement or instrument to which the such Selling Stockholder is a party or by which the such Selling Stockholder is bound or to which any of the property or assets of the such Selling Stockholder is subject, nor will (ii) result in any violation of the provisions of the charter or by-laws (or similar organizational documents) of such actions Selling Stockholder (if an entity), or (iii) result in any violation of any of its organizational documents (in the case of non-individual Selling Stockholders) or any material violation of any statute or any judgment, order, decree, rule or regulation of any court or governmental agency or body having jurisdiction over the such Selling Stockholder or the property or assets of the such Selling Stockholder; and, except for except, in the registration case of clauses (i) and (iii), where such conflict, breach, violation or default, in the Stock under aggregate, would not reasonably be expected to have a material adverse effect on the Securities Act and ability of such consents, approvals, authorizations, registrations or qualifications as may be required under the Exchange Act, by the National Association of Securities Dealers, Inc. and under applicable state securities laws in connection with the purchase and distribution of the Stock by the Underwriters, no Selling Stockholder to perform its obligations hereunder.
(l) No consent, approval, authorization or order of, or filing or registration with, any such court or governmental agency or body having jurisdiction over such Selling Stockholder or the property or assets of such Selling Stockholder is required for the issue and sale of the Stock by such Selling Stockholder, the execution, delivery and performance of this Agreement, the Custody Agreement or the Power of Attorney or the Custody Agreement by the such Selling Stockholder (to the extent a party thereto) and the consummation by the such Selling Stockholder of the transactions contemplated hereby hereby, except (i) such consents, approvals, authorizations, orders, filings, registrations or qualifications as have already been obtained, (ii) the registration of the Stock under the Securities Act, (iii) such consents, approvals, authorizations, orders, filings, registrations or qualifications as may be required under the rules and therebyregulations of FINRA, the Exchange Act and applicable state securities laws in connection with the purchase and sale of the Stock by the Underwriters and (iv) as would not, individually or in the aggregate, reasonably be expected to have a material adverse effect on the ability of such Selling Stockholder to perform its obligations hereunder.
(fm) The Stock to be sold by the Such Selling Stockholder hereunder, which is represented by the certificates held in custody for the Selling Stockholder, is subject to the interest of the Underwriters, the arrangements made by the Selling Stockholder for such custody are to that extent irrevocable, and the obligations of the Selling Stockholder hereunder shall not be terminated by any act of the Selling Stockholder, by operation of law, by the death or incapacity of any individual 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.
(g) The Selling Stockholder is not prompted to sell shares of Common Stock by any information concerning the Company that is not set forth in the Pricing Disclosure Package.
(h) The Selling Stockholder Shareholder has not taken and will not taketaken, directly or indirectly, any action which that is designed to or which that has constituted or which might that would reasonably be expected to cause or result in the stabilization or manipulation of the price of any security of the Company to facilitate in connection with the sale or resale offering of the shares of the Stock.
(n) 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 participating in the transaction whether as an underwriter, advisor, investor or otherwise of Sanctions. Any certificate signed by any officer of any 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 such Selling Stockholder, as to matters covered thereby, to each Underwriter.
Appears in 1 contract
Representations, Warranties and Agreements of the Selling Stockholders. Each Selling Stockholder severally and not jointly represents, warrants and agrees with the Underwriters that:
(a) Neither the Selling Stockholder nor any person acting on behalf of the Selling Stockholder (other than, if applicable, the Company and the Underwriters) has used or referred to any “free writing prospectus” (as defined in Rule 405), relating to the Stock;
(b) The Selling Stockholder has, and immediately prior to any the applicable Delivery Date on which the Selling Stockholder is selling shares of Stock, (as defined in Section 5) the Selling Stockholder will have have, good and valid title to, or a valid “security entitlement” within to the meaning of Section 8-501 of the New York Uniform Commercial Code (the “UCC”) the shares of 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, will pass to the several Underwriters.
(cb) The Selling Stockholder has placed in custody under a custody agreement Pursuant to an Irrevocable Power of Attorney (the “Power of Attorney”) and Custody Agreement (the “Custody Agreement” and, together with all other similar agreements executed by the other Selling StockholdersPower of Attorney, the “Custody Agreements”), such Selling Stockholder has (i) placed in custody with the CompanyUMB Bank, N.A., as custodian (the “Custodian”), for delivery under this Agreement, certificates in negotiable form (with signature guaranteed by a commercial bank or trust company having an office or correspondent in the United States or a member firm of the New York or American Stock Exchanges) representing the shares of Stock to be sold by the such Selling Stockholder hereunder.
; and (dii) The Selling Stockholder has duly and irrevocably executed and delivered a power of attorney (the “Power of Attorney” andappointed A. Exxxx Xxxxxxxxxx, together with all other similar agreements executed by the other Selling Stockholders, the “Powers of Attorney”) appointing Sxxxxxx X. Xxxxxxx and one or more other persons, Xx. as attorneysattorney-in-fact, with full power of substitution, and with full authority (exercisable by any one or more of them) to execute and deliver this Agreement and to take such other action actions as set forth in the Custody Agreements and as may be necessary or desirable to carry out the provisions hereof of this Agreement on behalf of the Selling Stockholder.
(ec) The Selling Stockholder has full right, power and authority under its limited partnership or similar organization agreement to enter into this Agreement, the Power of Attorney and the Custody Agreement; this Agreement has been duly and validly authorized, executed and delivered by or on behalf of the Selling StockholderAgreements; the execution, delivery and performance of this Agreement, the Power of Attorney Agreement and the Custody Agreement Agreements and the lock-up agreement substantially in the form of Annex A hereto to which it is a party by the Selling Stockholder and the consummation by the Selling Stockholder of the transactions contemplated hereby and thereby will not (i) conflict with or result in a material breach or violation of any of the terms or provisions of, or constitute a material default under, any indenture, mortgage, deed of trust, loan agreement agreement, 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 breach, nor will violation or default would impair the ability of the Selling Stockholder to perform its obligations under the Agreement, the Custody Agreements or such actions lock-up agreement, (ii) result in any violation of the provisions of any partnership or limited liability company agreement, certificate of its incorporation, bylaws, operating agreement, deed of trust or other similar agreement or organizational documents document of the Selling Stockholder or (iii) result in the case of non-individual Selling Stockholders) or any material violation of any statute or any order, rule or regulation of any court or governmental agency or body (whether domestic or foreign) having jurisdiction over the Selling Stockholder or the property or assets of the Selling StockholderStockholder which violation (in the case of this clause (iii)) would impair the ability of the Selling Stockholder to perform its obligations under this Agreement, the Custody Agreements or such lock-up agreement; and, except for the registration of the Stock under the Securities Act and such consents, approvals, authorizations, registrations or qualifications as may be required under the Exchange Act, by the National Association of Securities Dealers, Inc. Act and under applicable state or foreign securities laws in connection with the purchase and distribution of the Stock by the Underwriters, no consent, approval, authorization or order of, or filing or registration with, any such court or governmental agency or body is required for the execution, delivery and performance of this Agreement, the Power of Attorney or Agreement and the Custody Agreement Agreements and such lock-up agreement by the Selling Stockholder and the consummation by the Selling Stockholder of the transactions contemplated hereby and thereby.
(f) The Stock to be sold by the Selling Stockholder hereunder, which is represented by the certificates held in custody for the Selling Stockholder, is subject to the interest of the Underwriters, the arrangements made by the Selling Stockholder for such custody are to that extent irrevocable, and the obligations of the Selling Stockholder hereunder shall not be terminated by any act of the Selling Stockholder, by operation of law, by the death or incapacity of any individual 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.
(g) The Selling Stockholder is not prompted to sell shares of Common Stock by any information concerning the Company that is not set forth in the Pricing Disclosure Package.
(hd) The Selling Stockholder has not taken and will not take, directly or indirectly, any action which is designed to or which has constituted or 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 of the Stock.
(e) The Selling Stockholder (i) has no reason to believe that the representations and warranties of the Company contained in Section 1 hereof are not true and correct and (ii) is not prompted to sell Stock by any information concerning the Company that is not set forth in the Registration Statement and the Prospectus.
(f) To the knowledge of the Selling Stockholder, after reasonable investigation (as such term is used in Section 11 of the Securities Act), the Registration Statement and the Prospectus and any further amendments or supplements to the Registration Statement or the Prospectus, when they become effective or are filed with the Commission, as the case may be, do not and will not, as of the applicable effective date (as to the Registration Statement and any amendment thereto) and as of the applicable filing date (as to the Prospectus and any amendment or supplement thereto) contain an untrue statement of 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 Selling Stockholder makes no representation or warranty as to information contained in or omitted from the Registration Statement or the Prospectus in reliance upon and in conformity with written information furnished to the Company by or on behalf of any Underwriter specifically for inclusion therein.
(g) There are no contracts, agreements or understandings between the Selling Stockholders and any person that would give rise to a valid claim against the Selling Stockholder or any Underwriter for a brokerage commission, finder’s fee or other like payment in connection with this offering. Each certificate signed by or on behalf of the Selling Stockholder and delivered to the Underwriters or counsel to the Underwriters shall be deemed to be a representation and warranty by the Selling Stockholder in its capacity as a Selling Stockholder to the Underwriters as to the matters covered thereby.
Appears in 1 contract
Samples: Underwriting Agreement (Startek Inc)
Representations, Warranties and Agreements of the Selling Stockholders. Each 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 Underwriters) has used or referred to any “free writing prospectus” (as defined in Rule 405), relating to the Stock;
(b) The Selling Stockholder has, and immediately prior to any Delivery Date on which the Selling Stockholder is selling shares of Stock, (as defined in Section 5 hereof) the Selling Stockholder will have 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”) to the shares of 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, will pass to the several Underwriters.
(cb) The Selling Stockholder has placed in custody under a letter of transmittal and custody agreement (the “"Custody Agreement” " and, together with all other similar agreements executed by the other Selling Stockholders, the “"Custody Agreements”") with the Computershare Trust Company, Inc., as custodian (the “"Custodian”"), for delivery under this Agreement, certificates in negotiable form (with signature guaranteed by a commercial bank or trust company having an office or correspondent in the United States or a member firm of the New York or American Stock Exchanges) representing the shares of Stock to be sold by the Selling Stockholder hereunder.
(dc) The Selling Stockholder has duly and irrevocably executed and delivered a an irrevocable power of attorney (the “"Power of Attorney” " and, together with all other similar agreements executed by the other Selling Stockholders, the “"Powers of Attorney”") appointing Sxxxxxx X. Xxxxxxx and one or more other persons, as attorneys-in-fact, with full power of substitution, and with full authority (exercisable by any one or more of them) to execute and deliver this Agreement and to take such other action as may be necessary or desirable to carry out the provisions hereof on behalf of the Selling Stockholder.
(ed) The Selling Stockholder has full right, power and authority under its limited partnership or similar organization agreement to enter into this Agreement, the Power of Attorney and the Custody Agreement; this Agreement has been duly and validly authorized, executed and delivered by or on behalf of the Selling Stockholder; the execution, delivery and performance of this 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 will not conflict with or result in a material breach or violation of any of the terms or provisions of, or constitute a material default under, any indenture, mortgage, deed of trust, loan 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 will such actions result in any violation of any the provisions of its organizational documents (in the case articles of non-individual organization or operating agreement of the Selling Stockholders) Stockholder, as applicable, or 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 or the property or assets of the Selling Stockholder; and, except for the registration of the Stock under the Securities Act and such consents, approvals, authorizations, registrations or qualifications as may be required under the Exchange Act, by the National Association of Securities Dealers, Inc. Act and under applicable state securities laws in connection with the purchase and distribution of the Stock by the Underwriters, no consent, approval, authorization or order of, or filing or registration with, any such court or governmental agency or body 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.
(e) The Registration Statement 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 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; provided that no representation or warranty is made as to information contained in or omitted from the Registration Statement or the Prospectus in reliance upon and in conformity with written information furnished to the Company through the Representatives by or on behalf of any Underwriter specifically for inclusion therein.
(f) The Stock to be sold by To the Selling Stockholder's knowledge the representations and warranties of the Company contained in Section 1 hereof are materially true and correct, and the Selling Stockholder hereunderis familiar with the Registration Statement and the Prospectus (as amended or supplemented) and has no knowledge of any material fact, which is represented by condition or information not disclosed in the certificates held in custody for the Selling StockholderRegistration Statement, is subject to the interest as of the Underwriters, the arrangements made by the Selling Stockholder for such custody are to that extent irrevocable, and the obligations of the Selling Stockholder hereunder shall not be terminated by any act of the Selling Stockholder, by operation of law, by the death or incapacity of any individual Selling Stockholder or, in the case of a trust, by the death or incapacity of any executor or trustee or the termination of such trusteffective date, or the occurrence Prospectus (or any amendment or supplement thereto), as of any other event.
(g) The Selling Stockholder the applicable filing date, which has materially adversely affected or could be reasonably expected to materially adversely affect the business of the Company and is not prompted to sell shares of Common Stock by any information concerning the Company that which is not set forth in the Pricing Disclosure PackageRegistration Statement and the Prospectus.
(hg) The Selling Stockholder has not taken and will not take, directly or indirectly, any action which is designed to or which has constituted or 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 of the Stock.
Appears in 1 contract
Representations, Warranties and Agreements of the Selling Stockholders. 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 UnderwritersUnderwriter) has used or referred to any “free writing prospectus” (as defined in Rule 405405 under the Securities Act), relating to the Stock;Stock without the prior written consent of the Underwriter.
(b) The Selling Stockholder has, and immediately prior to any Delivery Date on which the Selling Stockholder is selling shares of Stock, the Selling Stockholder will have 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”) the 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; and upon delivery of such shares and payment therefor pursuant hereto, good and valid title to such sharesin respect thereof, free and clear of all liens, encumbrances, equities or claims, will pass to except for any liens, encumbrances, equities or claims arising under the several UnderwritersCustody Agreement and the Power of Attorney (each as defined below).
(c) 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 the Company, as custodian (the “Custodian”), for delivery under this Agreement, certificates in negotiable form (with signature guaranteed by a commercial bank or trust company having an office or correspondent in the United States or a member firm of the New York or American Stock Exchanges) representing the shares of Stock to be sold by the Selling Stockholder hereunder.
(d) The Selling Stockholder has duly and irrevocably executed and delivered a power of attorney (the “Power of Attorney” and, together with all other similar agreements executed by the other Selling Stockholders, the “Powers of Attorney”) appointing Sxxxxxx X. Xxxxxxx and one or more other persons, as attorneys-in-fact, with full power of substitution, and with full authority (exercisable by any one or more of them) to execute and deliver this Agreement and to take such other action as may be necessary or desirable to carry out the provisions hereof on behalf of the Selling Stockholder.
(e) The Selling Stockholder has power and authority under its limited partnership or similar organization agreement to enter into this Agreement, the Power of Attorney and the Custody Agreement; this Agreement has been duly and validly authorized, executed and delivered by or on behalf of the Selling Stockholder; the execution, delivery and performance of this 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 will not conflict with or result in a material breach or violation of any of the terms or provisions of, or constitute a material default under, any indenture, mortgage, deed of trust, loan 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 will such actions result in any violation of any of its organizational documents (in the case of non-individual Selling Stockholders) or 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 or the property or assets of the Selling Stockholder; and, except for the registration of the Stock under the Securities Act and such consents, approvals, authorizations, registrations or qualifications as may be required under the Exchange Act, by the National Association of Securities Dealers, Inc. and under applicable state securities laws in connection with the purchase and distribution of the Stock by the Underwriters, no consent, approval, authorization or order of, or filing or registration with, any such court or governmental agency or body 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.
(f) The Stock to be sold by the Selling Stockholder hereunder, which is represented by the certificates certificate held in custody for the Selling StockholderStockholder under the Custody Agreement or represented by a book-entry account established for such purpose held in custody for the Selling Stockholder under the Custody Agreement, as applicable, is subject to the interest of the UnderwritersUnderwriter hereunder, the arrangements made by the Selling Stockholder for such custody custody, are to that extent irrevocable, and the obligations of the Selling Stockholder hereunder shall not be terminated by any act of the Selling Stockholder, by operation of law, by the death or incapacity of any individual 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.
(gd) The Upon payment for the Stock to be sold by such Selling Stockholder is not prompted pursuant to sell shares this Agreement, delivery of Common such 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 Stock by any information concerning the Company that is not set forth in the Pricing Disclosure Packagename of Cede or such other nominee and the crediting of such Stock on the books of DTC to securities accounts of the Underwriter (assuming that neither DTC nor the Underwriter has notice of any adverse claim (within the meaning of Section 8-105 of the UCC) to such Stock), (i) DTC shall be a “protected purchaser” of such 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 Stock and (iii) an action based on any “adverse claim” (within the meaning of Section 8-102 of the UCC) to such Stock may not be successfully asserted against the Underwriter with respect to such security entitlement. For purposes of this representation, such Selling Stockholder may assume that when such payment, delivery and crediting occur, (A) such 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, 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 accounts of the several Underwriter on the records of DTC will have been made pursuant to the UCC.
(he) The book entry credits or certificates in negotiable form, as applicable, representing the shares of Stock to be sold by the Selling Stockholder have been 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 signature guaranteed by a participant in the Securities Transfer Agents Medallion Program, the New York Stock Exchange Medallion Signature Program or the Stock Exchange Medallion Program) with Computershare, Inc., as custodian (the “Custodian”), for delivery under this Agreement, in a book-entry account established for such purpose, as applicable.
(f) Each Selling Stockholder has not taken duly and will not takeirrevocably executed and delivered a power of attorney (the “Power of Attorney” and, directly or indirectlytogether with all other similar agreements executed by the other Selling Stockholders, any action which is designed to or which has constituted or which might reasonably be expected to cause or result in the stabilization or manipulation “Powers of the price of any security of the Company to facilitate the sale or resale of the shares of the Stock.Attorney”)
Appears in 1 contract
Samples: Underwriting Agreement (Mattress Firm Holding Corp.)
Representations, Warranties and Agreements of the Selling Stockholders. 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 Underwriters) has used or referred to any “free writing prospectus” (as defined in Rule 405), relating to the Stock;
(b) The Selling Stockholder has, and immediately prior to any Delivery Date on which the Selling Stockholder is selling shares of Stock, the Selling Stockholder will have 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 of Stock to be sold by the Selling Stockholder hereunder on such Delivery Date, free and clear of all liens, encumbrances, equities or claims; and upon delivery of such shares and payment therefor pursuant hereto, good and valid title to such shares, free and clear of all liens, encumbrances, equities or claims, will pass to the several Underwriters.
(c) The Selling Stockholder has placed in custody under a custody agreement (Upon payment for the “Custody Agreement” and, together with all other similar agreements executed by the other Selling Stockholders, the “Custody Agreements”) with the Company, as custodian (the “Custodian”), for delivery under this Agreement, certificates in negotiable form (with signature guaranteed by a commercial bank or trust company having an office or correspondent in the United States or a member firm of the New York or American Stock Exchanges) representing the shares of Stock to be sold by such Selling Stockholder, delivery of such Stock, as directed by the Underwriters, to Cede & Co. (“Cede”) or such other nominee as may be designated by The Depository Trust Company (“DTC”), registration of such Stock in the name of Cede or such other nominee and the crediting of such Stock on the books of DTC to securities accounts of the Underwriters (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 Stock), (i) DTC shall be a “protected purchaser” of such Stock within the meaning of Section 8-303 of the UCC, (ii) under Section 8-501 of the UCC, the Underwriters will acquire a valid security entitlement in respect of such Stock and (iii) no action based on any “adverse claim,” within the meaning of Section 8-102 of the UCC, to such Stock may be asserted against the Underwriters with respect to such security entitlement. For purposes of this representation, such Selling Stockholder hereundermay assume that when such payment, delivery and crediting occur, (A) such Shares will have been registered in the name of Cede or another nominee designated by DTC, in each case on the Company’s share registry in accordance with its certificate of incorporation, bylaws and applicable law, (B) DTC will be registered as a “clearing corporation” within the meaning of Section 8-102 of the UCC and (C) appropriate entries to the accounts of the several Underwriters on the records of DTC will have been made pursuant to the UCC.
(d) The Selling Stockholder has duly full right, power and irrevocably executed and delivered a power of attorney (the “Power of Attorney” andauthority, together with all other similar agreements executed by the other Selling Stockholderscorporate or otherwise, the “Powers of Attorney”) appointing Sxxxxxx X. Xxxxxxx and one or more other persons, as attorneys-in-fact, with full power of substitution, and with full authority (exercisable by any one or more of them) to execute and deliver enter into this Agreement and to take such other action as may be necessary or desirable to carry out the provisions hereof on behalf of the Selling StockholderAgreement.
(e) The Selling Stockholder has power and authority under its limited partnership or similar organization agreement to enter into this Agreement, the Power of Attorney and the Custody Agreement; this This Agreement has been duly and validly authorized, executed and delivered by or on behalf of the Selling Stockholder; the .
(f) The execution, delivery and performance of this 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 material breach or violation of any of the terms or provisions of, or constitute a material default under, any indenture, mortgage, deed of trust, loan agreement 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, nor will such actions (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 of its organizational documents (in the case of non-individual Selling Stockholders) or 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 or the property or assets of the Selling Stockholder; and.
(g) No consent, approval, authorization or order of, or filing or registration with, any court or governmental agency or body having jurisdiction over the Selling Stockholder or the property or assets of the Selling Stockholder 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 and thereby, except for the registration of the Stock under the Securities Act and such consents, approvals, authorizations, registrations or qualifications as may be required under the Exchange Act, by the National Association of Securities Dealers, Inc. Act and under applicable state or foreign securities laws in connection with the purchase and distribution sale of the Stock by the Underwriters, no consent, approval, authorization or order of, or filing or registration with, any such court or governmental agency or body 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.
(f) The Stock to be sold by the Selling Stockholder hereunder, which is represented by the certificates held in custody for the Selling Stockholder, is subject to the interest of the Underwriters, the arrangements made by the Selling Stockholder for such custody are to that extent irrevocable, and the obligations of the Selling Stockholder hereunder shall not be terminated by any act of the Selling Stockholder, by operation of law, by the death or incapacity of any individual 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.
(g) The Selling Stockholder is not prompted to sell shares of Common Stock by any information concerning the Company that is not set forth in the Pricing Disclosure Package.
(h) To the extent that any statements or omissions made in the Registration Statement, any Preliminary Prospectus, the 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, Preliminary Prospectus, Pricing Disclosure Package, Prospectus and Issuer Free Writing Prospectus, if any, did, and any further amendments or supplements to the Registration Statement and 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 Act and the rules and regulations of the Commission thereunder and do 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.
(i) The Selling Stockholder has not taken and will not take, directly or indirectly, any action which that is designed to or which that has constituted or which might that could reasonably be expected to cause or result in the stabilization or manipulation of the price of any security of the Company to facilitate the sale or resale of the shares of the 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 later of the Option Stock Delivery Date, if any, and the completion of the Underwriters’ distribution of the Stock, any offering material in connection with the offering and sale of the Stock, if any, by the Selling Stockholders other than the Pricing Disclosure Package or the Prospectus. Any certificate signed by any officer of any Selling Stockholder and delivered to the Representatives or counsel for the Underwriters in connection with the offering of the Stock shall be deemed a representation and warranty by such Selling Stockholder, as to matters covered thereby, to each Underwriter.
Appears in 1 contract
Representations, Warranties and Agreements of the Selling Stockholders. Each Selling Stockholder Stockholder, severally and not jointly, represents, warrants and agrees that:
(a) Neither the The Selling Stockholder nor any person acting on behalf of has placed in custody under a custody agreement (the "CUSTODY AGREEMENT" and, together with all other similar agreements executed by the other Selling Stockholder (other than, if applicableStockholders, the Company and "CUSTODY AGREEMENTS") with The Bank of New York, as custodian (the Underwriters) has used or referred to any “free writing prospectus” (as defined in Rule 405"CUSTODIAN"), relating to for delivery under this Agreement, certificates of Series B convertible preferred stock in negotiable form (with signature notarized or guaranteed by a participant in the Stock;Securities Transfer Agents Medallion Program, the New York Stock Exchange Medallion Signature Program or the Stock Exchange
(b) The Selling Stockholder has, and immediately prior to any the applicable Delivery Date on which the Selling Stockholder is selling shares of Stock, the Selling Stockholder will have 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 of Series B convertible preferred stock to be converted into Stock to be sold by the Selling Stockholder hereunder on such Delivery Date, free and clear of all liens, encumbrances, equities or claims; and upon delivery of such shares and payment therefor pursuant hereto, good and valid title to such shareshereunder, free and clear of all liens, encumbrances, equities or claims, will pass to except for any liens, encumbrances, equities or claims arising hereunder or under the several Underwriters.Custody Agreement;
(c) The Selling Stockholder has placed in custody under a custody agreement (Upon payment for the “Custody Agreement” and, together with all other similar agreements executed by the other Selling Stockholders, the “Custody Agreements”) with the Company, as custodian (the “Custodian”), for delivery under this Agreement, certificates in negotiable form (with signature guaranteed by a commercial bank or trust company having an office or correspondent in the United States or a member firm of the New York or American Stock Exchanges) representing the shares of Stock to be sold by such Selling Stockholder, delivery of such Stock, as directed by the Underwriters, to Cede & Co. ("CEDE") or such other nominee as may be designated by The Depository Trust Company ("DTC"), registration of such Stock in the name of Cede or such other nominee and the crediting of such Stock on the books of DTC to securities accounts of the Underwriters (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 Stock), (i) DTC shall be a "protected purchaser" of such Stock within the meaning of Section 8-303 of the UCC, (ii) under Section 8-501 of the UCC, the Underwriters will acquire a valid security entitlement in respect of such Stock and (iii) no action based on any "adverse claim", within the meaning of Section 8-102 of the UCC, to such Stock may be asserted against the Underwriters with respect to such security entitlement. For purposes of this representation, such Selling Stockholder hereundermay assume that when such payment, delivery and crediting occur, (A) such 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, 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 accounts of the several Underwriters on the records of DTC will have been made pursuant to the UCC.
(d) The Selling Stockholder has duly and irrevocably executed and delivered a power of attorney (the “Power of Attorney” "POWER OF ATTORNEY" and, together with all other similar agreements executed by the other Selling Stockholders, the “Powers of Attorney”"POWERS OF ATTORNEY") appointing Sxxxxxx the Custodian and Messrs. Xxxxxxx X. Xxxxxxx Case, Xxxx X. Xxxxxx and one or more other persons, Xxxxxxxxxxx X. Xxxxxx as attorneys-in-fact, with full power of substitution, and with full authority (exercisable by any one or more of them) to execute and deliver this Agreement and to take such other action as may be necessary or desirable to carry out the provisions hereof on behalf of the Selling Stockholder.
(e) The Selling Stockholder has full right, power and authority under its limited partnership authority, corporate or similar organization agreement otherwise, to enter into this Agreement, the Power of Attorney and the Custody Agreement; this Agreement has been duly and validly authorized, executed and delivered by or on behalf of the Selling Stockholder; the . The execution, delivery and performance of this 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 material breach or violation of any of the terms or provisions of, or constitute a material default under, any indenture, mortgage, deed of trust, loan agreement 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, nor will such actions (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 of its organizational documents (in the case of non-individual Selling Stockholders) or 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 or the property or assets of the Selling Stockholder; and, except in the case of clauses (i) and (iii) for such conflicts, breaches, violations or defaults as would not, individually or in the registration aggregate, reasonably be expected to have a material adverse effect on the ability of such Selling Stockholder to consummate the Stock under the Securities Act and transactions contemplated by this Agreement.
(f) Except for such consents, approvals, authorizations, orders, filings, registrations or qualifications as may be required under the Exchange Securities Act, by the National Association rules and regulations of Securities Dealers, Inc. and under the New York Stock Exchange or applicable state securities laws in connection with the purchase and distribution sale of the Stock by the Underwriters, no consent, approval, authorization or order of, or filing or registration with, any such court or governmental agency or body having jurisdiction over the Selling Stockholder or the property or assets of the Selling Stockholder 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.
(fg) This Agreement has been duly and validly authorized, executed and delivered by or on behalf of the Selling Stockholder.
(h) The Stock to be sold Power of Attorney and the Custody Agreement have been duly and validly authorized, executed and delivered by or on behalf of the Selling Stockholder hereunder, which is represented by the certificates held in custody for the Selling Stockholder, is subject to the interest of the Underwriters, the arrangements made by the Selling Stockholder for such custody are to that extent irrevocable, and the constitute valid and legally binding obligations of the Selling Stockholder hereunder shall not be terminated by any act of enforceable against the Selling StockholderStockholder in accordance with their terms, by operation 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, by the death or incapacity ) and (iii) an implied covenant of any individual 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 eventgood faith and fair dealing.
(g) The Selling Stockholder is not prompted to sell shares of Common Stock by any information concerning the Company that is not set forth in the Pricing Disclosure Package.
(hi) The Selling Stockholder has not taken and will not take, directly or indirectly, any action which that is designed to or which has constituted or which might could reasonably be expected to cause or result in the stabilization or manipulation of the price of any security of the Company to facilitate the sale or resale of the shares of the Stock.
(j) Except as disclosed in the Prospectus, there are no contracts, agreements or understandings between the Selling Stockholder and any person that would give rise to a valid claim against the Selling Stockholder or any Underwriter for a brokerage commission, finder's fee or other like payment in connection with the issuance and sale of the Stock contemplated by this Agreement.
(k) The Selling Stockholder has not distributed and, prior to the later to occur of any Delivery Date and completion of the distribution of the Stock, will not distribute any offering material in connection with the offering and sale of the Stock other than the Preliminary Prospectus and the Prospectus.
(l) The Selling Stockholder is not aware of any material information concerning the Company that is not set forth in the Registration Statement and the Prospectus and which has prompted such Selling Stockholder to sell shares of the Stock.
(m) The Registration Statement, at the Effective Time and on the applicable Delivery Date, and the Prospectus, as of its date and on the applicable Delivery Date, do not and will not contain an untrue statement of a material fact with respect to such Selling Stockholder or omit to state a material fact with respect to such Selling Stockholder required to be stated therein or necessary to make the statements therein (in the case of the Prospectus, in the light of the circumstances under which they were made) not misleading, which untrue statement or omission was made in reliance upon and in conformity with written information furnished to the Company by or on behalf of the Selling Stockholder specifically for inclusion therein. Any certificate signed by any officer of any Selling Stockholder and delivered to the Representatives or counsel for the Underwriters in connection with the offering of the Stock shall be deemed a representation and warranty by such Selling Stockholder, as to matters covered thereby, to each Underwriter.
Appears in 1 contract
Samples: Underwriting Agreement (Phillips Van Heusen Corp /De/)
Representations, Warranties and Agreements of the Selling Stockholders. Each Selling Stockholder severally and not jointly represents, warrants and agrees that:
(a) Neither The Selling Stockholder has good and valid title to the shares of the Stock to be sold by the Selling Stockholder nor any person acting on behalf hereunder or good and valid title to the warrants or options pursuant to which the shares of Stock to be sold by the Selling Stockholder (other than, if applicable, the Company and the Underwriters) has used or referred to any “free writing prospectus” (as defined in Rule 405), relating to the Stock;
(b) The Selling Stockholder hashereunder will be issued, and immediately prior to any the applicable Delivery Date on which the Selling Stockholder is selling shares of Stock, the Selling Stockholder will have 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”) to the shares of 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 any liens, encumbrances, equities or claims arising under the Custody Agreement (as hereinafter defined); and upon delivery of such shares and payment therefor pursuant hereto, good and valid title to such shares, free and clear of all liens, encumbrances, equities or claims, will pass to the several Underwriters.
(cb) 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 the CompanyStockholders and EquiServe LLC, as custodian (the “"Custodian”") and Messrs. Xxxxxxxx, Xxxxxxxx and Xxxxxxx, as Attorneys-in-Fact (the "Attorneys-in-Fact"), for delivery under this Agreement, (i) 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 New York or American Stock ExchangesExchange) representing the shares of Stock to be sold by the Selling Stockholder hereunder, (ii) if such Selling Stockholder is selling shares of Stock issuable upon exercise or conversion of warrants, a warrant exercise or conversion form and, in connection with warrants being exercised, the original warrant and a check for the payment of the exercise price, and (iii) if such Selling Stockholder is selling shares of Stock issuable upon exercise of stock options, an option exercise form and a check for the option exercise price.
(dc) The Pursuant to the Custody Agreement, the Selling Stockholder has duly and irrevocably executed and delivered a power of attorney (appointing the “Power of Attorney” and, together with all other similar agreements executed by the other Selling Stockholders, the “Powers of Attorney”) appointing Sxxxxxx X. Xxxxxxx and one or more other persons, as attorneysAttorneys-in-fact, Fact with full power of substitution, and with full authority (exercisable by any one or more of them) to execute and deliver this Agreement and to take such other action as may be necessary or desirable to carry out the provisions hereof on behalf of the Selling Stockholder.
(ed) The Selling Stockholder has full right, power and authority under its limited partnership or similar organization agreement to enter into this Agreement, the Power of Attorney Agreement and the Custody Agreement; this Agreement has been duly and validly authorized, executed and delivered by or on behalf of the Selling Stockholder; the execution, delivery and performance of this Agreement, the Power of Attorney Agreement and the Custody Agreement by the Selling Stockholder and the consummation by the Selling Stockholder of the transactions contemplated hereby and thereby will not conflict with or result in a material breach or violation of any of the terms or provisions of, or constitute a material default under, any indenture, mortgage, deed of trust, loan 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 will such actions result in any violation of the provisions of the constituent documents of the Selling Stockholder (with respect to any of its organizational documents (in the case of non-individual Selling StockholdersStockholder that is not a natural person) or 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 or the property or assets of the Selling Stockholder; and, except for the registration of the Stock under the Securities Act and such consents, approvals, authorizations, registrations or qualifications as will have been obtained prior to the date hereof as may be required under the Exchange Act, by the National Association of Securities Dealers, Inc. Act and under applicable state or foreign securities laws in connection with the purchase and distribution of the Stock by the Underwriters, no consent, approval, authorization or order of, or filing or registration with, any such court or governmental agency or body is required for the execution, delivery and performance of this Agreement, the Power of Attorney Agreement or the Custody Agreement by the Selling Stockholder and the consummation by the Selling Stockholder of the transactions contemplated hereby hereby.
(e) The Registration Statement and therebythe Prospectus and any further amendments or supplements to the Registration Statement or the Prospectus, when they become effective or are filed with the Commission, as the case may be, do not and will not, as of the applicable effective date (as to the Registration Statement and any amendment thereto) and as of the applicable filing date (as to the Prospectus and any amendment or supplement thereto) contain 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 or the Prospectus in reliance upon and in conformity with written information furnished to the Company through the Representatives by or on behalf of any Underwriter specifically for inclusion therein, and provided further that this paragraph (e) shall apply to each Selling Stockholder only to the extent that the statements or omissions from the Registration Statement or the Prospectus were made in reliance upon and in conformity with written information relating to such Selling Stockholder provided by such Selling Stockholder specifically for inclusion therein, it being understood and agreed that for purposes of this Section 2 and the indemnification obligations in Section 11, the only information provided by such Selling Stockholder consists of information relating to such Selling Stockholder under the caption "Principal and Selling Stockholders" in the Prospectus.
(f) The Stock to be sold by Except as provided in this Agreement and in the Selling Stockholder hereunder, which is represented by the certificates held in custody for the Selling Stockholder, is subject to the interest of the UnderwritersLock Up Agreement (as hereinafter defined), the arrangements made by the Selling Stockholder for such custody are to that extent irrevocable, and the obligations of the Selling Stockholder hereunder shall not be terminated by any act of the Selling Stockholder, by operation of law, by the death or incapacity of any individual 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.
(g) The Selling Stockholder is not prompted to sell shares of Common Stock by any information concerning the Company that is not set forth in the Pricing Disclosure Package.
(h) The Selling Stockholder has not taken and will not take, directly or indirectly, any action which is designed to or which has constituted or 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 of the Stock.
Appears in 1 contract
Representations, Warranties and Agreements of the Selling Stockholders. Each Selling Stockholder Stockholder, severally representsand not jointly, represents and warrants to, and agrees with, the Underwriters that:
(a) Neither the Selling Stockholder nor any person acting on behalf of the Selling Stockholder (other than, if applicable, the Company and the Underwriters) has used or referred to any “free writing prospectus” (as defined in Rule 405), relating to the Stock;
(b) The Selling Stockholder has, and immediately prior to any the applicable Delivery Date on which the Selling Stockholder is selling shares of Stock, (as defined in Section 5 below) the Selling Stockholder will have have, good and valid title to, or a valid “security entitlement” within to the meaning of Section 8-501 of the New York Uniform Commercial Code (the “UCC”) the shares of Stock Securities to be sold by the Selling Stockholder hereunder on such Delivery Datedate, free and clear of all liens, encumbrances, equities or claimsLiens; 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 claimsLiens, will pass to the several Underwriters.
(cb) 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 the American Stock Transfer & Trust Company, as custodian (the “"Custodian”"), for delivery delivery, in accordance with the Custody Agreement, under this Agreement, 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 New York or American Stock Exchanges) representing the shares of Stock Securities to be sold by the Selling Stockholder hereunder.
(dc) The Selling Stockholder has duly and irrevocably executed and delivered a power of attorney (the “"Power of Attorney” " and, together with all other similar agreements instruments executed by the other Selling Stockholders, the “"Powers of Attorney”") appointing Sxxxxxx X. Xxxxxxx and one or more other persons, the persons named therein as attorneys-in-fact, with full power of substitution, and with full authority (exercisable by any one or more of them) to execute and deliver this Agreement on such Selling Stockholder's behalf and to take such other action as may be necessary or desirable to carry out the provisions hereof on behalf of the Selling Stockholder, in accordance with the Custody Agreement and the applicable Power of Attorney.
(ed) The Selling Stockholder has all necessary right, power and authority under its limited partnership or similar organization agreement to enter into this Agreement, the Power of Attorney and the Custody Agreement; this Agreement has been duly and validly authorized, executed and delivered by or on behalf of the Selling Stockholder; the execution, delivery and performance of this Agreement, the Power of Attorney and the Custody Agreement by by, or on behalf of, the Selling Stockholder and the consummation by the Selling Stockholder of the transactions contemplated hereby and thereby will not (A) conflict with or result in a material breach or violation of any of the terms or provisions of, or constitute a material default under, any indenture, mortgage, deed of trust, loan agreement agreement, 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 that could reasonably be expected to impair the Selling Stockholder's ability to perform its obligations hereunder, nor will such actions or (B) result in any violation of any of its organizational documents (in the case of non-individual Selling Stockholders) or 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 or the property or assets of the Selling Stockholder; and, except for .
(e) Except (i) with respect to the registration of the Stock Securities under the Securities Act Act, (ii) as required by applicable state securities or "blue sky" laws and (iii) for such consents, approvals, authorizations, orders, filings or registrations which have been obtained or qualifications as may be required under the Exchange Act, by the National Association of Securities Dealers, Inc. and under applicable state securities laws in connection with the purchase and distribution of the Stock by the Underwritersmade, 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 any of its properties or assets 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.
(f) The Stock Registration Statement, as of the Effective Date, did not contain an untrue statement of a material fact or omit to state a material fact required to be sold by stated therein or necessary to make the statements therein not misleading, and the Prospectus and any amendment or supplement thereto, as of their respective dates and as of the applicable Delivery Date (as defined in Section 5 below) did not and do not contain an untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in light of the circumstances under which they were made, not misleading; provided that the Selling Stockholder hereunder, which is represented by makes no representation or warranty as to information contained in or omitted from the certificates held Registration Statement or the Prospectus in custody for the Selling Stockholder, is subject reliance upon and in conformity with written information furnished to the interest Company by or on behalf of the Underwriters, the arrangements made by the any Underwriter specifically for inclusion therein (which information is described in Section 10(f)); and provided further that this paragraph (d) shall apply to such Selling Stockholder for only to the extent that the statements or omissions from the Registration Statement or the Prospectus were based on written information provided by such custody are to that extent irrevocable, and the obligations of the Selling Stockholder hereunder shall not be terminated by any act of the Selling Stockholder, by operation of law, by the death or incapacity of any individual Selling Stockholder or, specifically for inclusion therein (which information is described 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 eventSection 10(g)).
(g) The Selling Stockholder is not prompted to sell shares of Common Stock by any information concerning the Company that is not set forth in the Pricing Disclosure Package.
(h) The Selling Stockholder has not taken and will not take, directly or indirectly, any action which is (A) designed to or which has constituted or 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 Securities or (B) prohibited by Regulation M under the Securities Act.
(h) Each Selling Stockholder is not prompted to sell shares of Common Stock by any material, non-public information concerning the StockCompany that is not set forth or incorporated by reference in the Registration Statement and the Prospectus.
Appears in 1 contract
Representations, Warranties and Agreements of the Selling Stockholders. Each Selling Stockholder Stockholder, severally representsand not jointly, represents and warrants to the Underwriter as of the date hereof, the Applicable Time and the Delivery Date (as defined below), and agrees thatwith the Underwriter, as follows:
(a) Neither the Selling Stockholder nor any person acting on behalf of the Selling Stockholder (other than, if applicable, the Company and the UnderwritersUnderwriter) has used or referred to any “free writing prospectus” (as defined in Rule 405), relating to the Stock;
(b) The Selling Stockholder has, and immediately prior to any the Delivery Date on which the Selling Stockholder is selling shares of Stock, the Selling Stockholder will have 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 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; and upon delivery of such shares and payment therefor pursuant hereto, good and valid title to such shares, free and clear of all liens, encumbrances, equities or claims, will pass to the several Underwriters.
(c) The Selling Stockholder has placed in custody under a custody agreement (Upon payment for the “Custody Agreement” and, together with all other similar agreements executed by the other Selling Stockholders, the “Custody Agreements”) with the Company, as custodian (the “Custodian”), for delivery under this Agreement, certificates in negotiable form (with signature guaranteed by a commercial bank or trust company having an office or correspondent in the United States or a member firm of the New York or American Stock Exchanges) representing the shares of Stock to be sold by such Selling Stockholder, delivery of such 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 Stock in the name of Cede or such other nominee and the crediting of such Stock on the books of DTC to securities accounts of the Underwriter (assuming that neither DTC nor the Underwriter has notice of any adverse claim (within the meaning of Section 8-105 of the UCC) to such Stock), (i) DTC shall be a “protected purchaser” of such 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 Stock and (iii) no action based on any “adverse claim,” within the meaning of Section 8-102 of the UCC, to such Stock may be asserted against the Underwriter with respect to such security entitlement. For purposes of this representation, such Selling Stockholder hereundermay assume that when such payment, delivery and crediting occur, (A) such Shares will have been registered in the name of Cede or another nominee designated by DTC, in each case on the Company’s share registry in accordance with its certificate of incorporation, bylaws and applicable law, (B) DTC will be registered as a “clearing corporation” within the meaning of Section 8-102 of the UCC and (C) appropriate entries to the accounts of the Underwriter on the records of DTC will have been made pursuant to the UCC.
(d) The Selling Stockholder has duly full right, power and irrevocably executed and delivered a power of attorney (the “Power of Attorney” andauthority, together with all other similar agreements executed by the other Selling Stockholderscorporate or otherwise, the “Powers of Attorney”) appointing Sxxxxxx X. Xxxxxxx and one or more other persons, as attorneys-in-fact, with full power of substitution, and with full authority (exercisable by any one or more of them) to execute and deliver enter into this Agreement and to take such other action as may be necessary or desirable to carry out the provisions hereof on behalf of the Selling StockholderAgreement.
(e) The Selling Stockholder has power and authority under its limited partnership or similar organization agreement to enter into this Agreement, the Power of Attorney and the Custody Agreement; this This Agreement has been duly and validly authorized, executed and delivered by or on behalf of the Selling Stockholder; the .
(f) The execution, delivery and performance of this 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 material breach or violation of any of the terms or provisions of, or constitute a material default under, any indenture, mortgage, deed of trust, loan agreement 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, nor will such actions (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 of its organizational documents (in the case of non-individual Selling Stockholders) or 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 or the property or assets of the Selling Stockholder; andStockholder (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).
(g) No consent, approval, authorization or order of, or filing or registration with, any court or governmental agency or body having jurisdiction over the Selling Stockholder or the property or assets of the Selling Stockholder 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 and thereby, except for the registration of the Stock under the Securities Act and such consents, approvals, authorizations, registrations or qualifications as may be required under the Exchange Act, by the National Association of Securities Dealers, Inc. Act and under applicable state or foreign securities laws in connection with the purchase and distribution sale of the Stock by the Underwriters, no consent, approval, authorization or order of, or filing or registration with, any such court or governmental agency or body 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.
(f) The Stock to be sold by the Selling Stockholder hereunder, which is represented by the certificates held in custody for the Selling Stockholder, is subject to the interest of the Underwriters, the arrangements made by the Selling Stockholder for such custody are to that extent irrevocable, and the obligations of the Selling Stockholder hereunder shall not be terminated by any act of the Selling Stockholder, by operation of law, by the death or incapacity of any individual 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.
(g) The Selling Stockholder is not prompted to sell shares of Common Stock by any information concerning the Company that is not set forth in the Pricing Disclosure PackageUnderwriter.
(h) 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 and 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 Securities Act and the rules and regulations of the Commission thereunder and do 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, 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 (the “Selling Stockholder Information”).
(i) The Selling Stockholder has not taken and will not take, directly or indirectly, any action which that is designed to or which that has constituted or which might that could reasonably be expected to cause or result in the stabilization or manipulation of the price of any security of the Company to facilitate the sale or resale of the shares of the 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 Stockholders 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 Stock shall be deemed a representation and warranty by such Selling Stockholder, as to matters covered thereby, to the Underwriter.
Appears in 1 contract
Representations, Warranties and Agreements of the Selling Stockholders. Each Selling Stockholder Stockholder, severally representsand not jointly, represents and warrants to, and agrees thatwith, the Underwriter as follows:
(a) Neither the Selling Stockholder nor any person acting on behalf of the Selling Stockholder (other than, if applicable, the Company and the UnderwritersUnderwriter) has used or referred to any “free writing prospectus” (as defined in Rule 405), ) relating to the Stock;.
(b) The Selling Stockholder has, and immediately prior to any the Delivery Date on which the Selling Stockholder is selling shares of Stock, Stock the Selling Stockholder will have have, good and valid marketable title toto the shares of Stock to be sold by such Selling Stockholder hereunder on the Delivery Date.
(c) [Reserved.]
(d) Upon payment by the Underwriter for the Stock to be sold by such Selling Stockholder pursuant hereto, delivery (within the meaning of the UCC (as hereinafter defined)) of such 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 Stock in the name of Cede or such other nominee and the crediting of such Stock on the books of DTC to a valid securities account (within the meaning of the UCC) of the Underwriter maintained at DTC (assuming that neither DTC nor the Underwriter has notice of any adverse claim (within the meaning of Section 8-105 of the Uniform Commercial Code as in effect on the date hereof in the State of New York (“UCC”)) to such Stock), (i) DTC shall be a “protected purchaser” of such Stock within the meaning of Section 8-303 of the UCC, (ii) under Section 8-501 of the UCC, the Underwriter will have acquired a security entitlemententitlement in respect of such Stock and (iii) no action based on any “adverse claim,” within the meaning of Section 8-501 102 of the New York Uniform Commercial Code (UCC, may be asserted against the “UCC”) the shares Underwriter with respect to such security entitlement. For purposes of Stock to be sold by this representation, the Selling Stockholder hereunder on may assume that when such Delivery Datepayment, free delivery and clear of all lienscrediting occur, encumbrances, equities or claims; and upon delivery of (A) such shares will have been registered in the name of Cede or another nominee designated by DTC, in each case on the Company’s share registry in accordance with its certificate of incorporation, bylaws and payment therefor pursuant heretoapplicable law, good (B) DTC will be registered as a “clearing corporation” within the meaning of Section 8-102 of the UCC and valid title to such shares, free and clear of all liens, encumbrances, equities or claims, will pass (C) appropriate entries to the several Underwritersaccount of the Underwriter on the records of DTC will have been made pursuant to the UCC.
(ce) [Reserved.]
(f) 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 the Companyfull limited partnership or limited liability company, as custodian (the “Custodian”)applicable, for delivery under this Agreementright, 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 New York or American Stock Exchanges) representing the shares of Stock to be sold by the Selling Stockholder hereunder.
(d) The Selling Stockholder has duly and irrevocably executed and delivered a power of attorney (the “Power of Attorney” and, together with all other similar agreements executed by the other Selling Stockholders, the “Powers of Attorney”) appointing Sxxxxxx X. Xxxxxxx and one or more other persons, as attorneys-in-fact, with full power of substitution, and with full authority (exercisable by any one or more of them) to execute and deliver this Agreement and to take such other action as may be necessary or desirable to carry out the provisions hereof on behalf of the Selling Stockholder.
(e) The Selling Stockholder has power and authority under its limited partnership or similar organization agreement to enter into this Agreement, the Power of Attorney and the Custody Agreement; this .
(g) This Agreement has been duly and validly authorized, executed and delivered by or on behalf of the Selling Stockholder; the execution, delivery and performance of this 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 will not conflict with or result in a material breach or violation of any of the terms or provisions of, or constitute a material default under, any indenture, mortgage, deed of trust, loan 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 will such actions result in any violation of any of its organizational documents (in the case of non-individual Selling Stockholders) or 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 or the property or assets of the Selling Stockholder; and, except for the registration of the Stock under the Securities Act and such consents, approvals, authorizations, registrations or qualifications as may be required under the Exchange Act, by the National Association of Securities Dealers, Inc. and under applicable state securities laws in connection with the purchase and distribution of the Stock by the Underwriters, no consent, approval, authorization or order of, or filing or registration with, any such court or governmental agency or body 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.
(f) The Stock to be sold by the Selling Stockholder hereunder, which is represented by the certificates held in custody for the Selling Stockholder, is subject to the interest of the Underwriters, the arrangements made by the Selling Stockholder for such custody are to that extent irrevocable, and the obligations of the Selling Stockholder hereunder shall not be terminated by any act of the Selling Stockholder, by operation of law, by the death or incapacity of any individual 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.
(g) The Selling Stockholder is not prompted to sell shares of Common Stock by any information concerning the Company that is not set forth in the Pricing Disclosure Package.
(h) The Selling Stockholder has not taken and will not take, directly or indirectly, any action which is designed to or which has constituted or 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 of the Stock.
Appears in 1 contract
Representations, Warranties and Agreements of the Selling Stockholders. Each of the Selling Stockholder severally Stockholders 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 Underwriters) has used or referred to any “free writing prospectus” (as defined in Rule 405), relating to the Stock;
(b) The Selling Stockholder has, and immediately prior to any each Delivery Date on which the Selling Stockholder is selling shares of Stock, (as defined in Section 5 hereof) 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”) to the shares of 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 heretohereto and thereto, good and valid title to such shares, free and clear of all liens, encumbrances, equities or claims, will pass to the several UnderwritersU.S. Underwriters and the International Managers.
(cb) 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 the CompanyXxxxxx Trust and Savings Bank, as custodian (the “"Custodian”"), for delivery under this Agreement and the International Underwriting Agreement, 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 New York or American Stock Exchanges) representing the shares of Stock to be sold by the Selling Stockholder hereunderhereunder and thereunder.
(dc) The Selling Stockholder has duly and irrevocably executed and delivered a power Power of attorney Attorney and Custody Agreement (the “"Power of Attorney” Attorney and Custody Agreement" and, together with all other similar agreements executed by the other Selling Stockholders, the “Powers "Power of Attorney”Attorney and Custody Agreements") regarding custody arrangements referred to in the immediately preceeding paragraph and appointing Sxxxxxx X. Xxxxxxx and the Custodian or one or more other persons, as attorneys-in-fact, with full power of substitution, and with full authority (exercisable by any one or more of them) to execute and deliver this Agreement and the International Underwriting Agreement and to take such other action as may be necessary or desirable to carry out the provisions hereof or thereof on behalf of the Selling Stockholder.
(ed) The Selling Stockholder has been duly organized and is validly existing in good standing under the laws of its jurisdiction of organization and has full right, power and authority under its limited partnership or similar organization agreement to enter into this Agreement, the International Underwriting Agreement and the Power of Attorney and the Custody Agreement; this Agreement has been duly and validly authorized, executed and delivered by or on behalf of the Selling Stockholder; the execution, delivery and performance of this Agreement, the International Underwriting Agreement and 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 will not conflict with or result in a material breach or violation in any material respect of any of the terms or provisions of, or constitute a material default under, any indenture, mortgage, deed of trust, loan 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 will such actions result in any violation of any of its organizational documents (in the case of non-individual Selling Stockholders) or any material violation respect of the provisions of the charter, by-laws, trust instrument or other organizing instrument (as applicable) of the Selling Stockholder or 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 for the registration of the Stock under the Securities Act and such consents, approvals, authorizations, filings, registrations or qualifications as may be required under the Exchange Act (including filings pursuant to Sections 13 and 16 of the Exchange Act, by the National Association of Securities Dealers, Inc. ) and under applicable state or foreign securities laws in connection with the purchase and distribution of the Stock by the UnderwritersU.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.
(f) The Stock to be sold by the Selling Stockholder hereunder, which is represented by the certificates held in custody for the Selling Stockholder, is subject to the interest of the Underwriters, the arrangements made by the Selling Stockholder for such custody are to that extent irrevocable, and the obligations of the Selling Stockholder hereunder shall not be terminated by any act of the Selling Stockholder, by operation of law, by the death or incapacity of any individual 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.
(g) The Selling Stockholder is not prompted to sell shares of Common Stock by any information concerning the Company that is not set forth in the Pricing Disclosure Package.
(he) The Selling Stockholder has not taken and will not take, directly or indirectly, any action which is designed to or which has constituted or 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 of the Stock.
(f) The information specifically relating to the Selling Stockholder contained in the Prospectus does not and will not contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading.
(g) All authorizations, approvals and consents necessary for the execution and delivery by such Selling Stockholder of this Agreement, the International Underwriting Agreement, the Power of Attorney and Custody Agreement and the sale and delivery of the Stock to be sold by it hereunder and under the International Underwriting Agreement (other than such authorizations, approvals or consents as may be necessary under state or foreign securities laws) have been obtained and are in full force and effect.
(h) This Agreement, the International Underwriting Agreement and the Power of Attorney and Custody Agreement have been duly executed and delivered by such Selling Stockholder.
Appears in 1 contract
Samples: u.s. Underwriting Agreement (Walter Industries Inc /New/)
Representations, Warranties and Agreements of the Selling Stockholders. Each Selling Stockholder Stockholder, severally and not jointly, represents, warrants and agrees agrees, with respect to itself only, that:
(a) Neither the Selling Stockholder nor any person acting on behalf of the Selling Stockholder (other than, if applicable, the Company and the Underwriters) has used or referred to any “free writing prospectus” (as defined in Rule 405), 405 under the Securities Act) relating to the Stock;.
(b) The Selling Stockholder has, and immediately prior to any Delivery Date on which the Selling Stockholder is selling shares of Stock, the Selling Stockholder will have 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”) the shares of Stock to be sold by the Selling Stockholder hereunder on such Delivery Datein respect thereof, free and clear of all liens, encumbrances, equities equities, community property rights, restrictions on transfer 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 except for any liens, encumbrances, equities or claims, will pass to claims arising under the several UnderwritersCustody Agreement (as defined herein).
(c) 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 the Company, as custodian (the “Custodian”), for delivery under this Agreement, certificates in negotiable form (with signature guaranteed by a commercial bank or trust company having an office or correspondent in the United States or a member firm of the New York or American Stock Exchanges) representing the shares of Stock to be sold by the Selling Stockholder hereunder.
(d) The Selling Stockholder has duly and irrevocably executed and delivered a power of attorney (the “Power of Attorney” and, together with all other similar agreements executed by the other Selling Stockholders, the “Powers of Attorney”) appointing Sxxxxxx X. Xxxxxxx and one or more other persons, as attorneys-in-fact, with full power of substitution, and with full authority (exercisable by any one or more of them) to execute and deliver this Agreement and to take such other action as may be necessary or desirable to carry out the provisions hereof on behalf of the Selling Stockholder.
(e) The Selling Stockholder has power and authority under its limited partnership or similar organization agreement to enter into this Agreement, the Power of Attorney and the Custody Agreement; this Agreement has been duly and validly authorized, executed and delivered by or on behalf of the Selling Stockholder; the execution, delivery and performance of this 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 will not conflict with or result in a material breach or violation of any of the terms or provisions of, or constitute a material default under, any indenture, mortgage, deed of trust, loan 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 will such actions result in any violation of any of its organizational documents (in the case of non-individual Selling Stockholders) or 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 or the property or assets of the Selling Stockholder; and, except for the registration of the Stock under the Securities Act and such consents, approvals, authorizations, registrations or qualifications as may be required under the Exchange Act, by the National Association of Securities Dealers, Inc. and under applicable state securities laws in connection with the purchase and distribution of the Stock by the Underwriters, no consent, approval, authorization or order of, or filing or registration with, any such court or governmental agency or body 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.
(f) The Stock to be sold by the Selling Stockholder hereunder, which is represented by the certificates or book entry credits held in custody for the Selling Stockholder, is subject to the interest of the UnderwritersUnderwriters and the other Selling Stockholders thereunder, the arrangements made by the Selling Stockholder for such custody are to that extent irrevocable, and the obligations of the Selling Stockholder hereunder shall not be terminated by any act of the Selling Stockholder, by operation of law, by the death or incapacity of any individual 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) Upon payment for the Stock to be sold by such Selling Stockholder, delivery of such Stock, as directed by the Underwriters, to Cede & Co. (“Cede”) or such other nominee as may be designated by The Depository Trust Company (“DTC”), registration of such Stock in the name of Cede or such other nominee and the crediting of such Stock on the books of DTC to securities accounts of the Underwriters (i) DTC will acquire good and marketable title to the Stock free and clear of all liens, encumbrances, equities, community property rights, restrictions on transfer or claims, (ii) DTC shall be a “protected purchaser” of such Stock within the meaning of Section 8-303 of the UCC, (iii) under Section 8-501 of the UCC, the Underwriters will acquire a valid security entitlement in respect of such Stock, and (iv) an action based on an adverse claim to such securities entitlement, whether framed in conversion, replevin, constructive trust, equitable lien or other theory may not be asserted against the Underwriters with respect to such security entitlement. For purposes of this representation, such Selling Stockholder may assume that when such payment, delivery and crediting occur, (x) such 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, bylaws and applicable law, (y) DTC will be registered as a “clearing corporation” within the meaning of Section 8-102 of the UCC, and (z) appropriate entries to the accounts of the several Underwriters on the records of DTC will have been made pursuant to the UCC.
(e) 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 American Stock Transfer & Trust Company, LLC, as custodian (the “Custodian”), for delivery under this Agreement, certificates or book-entry credits (with signature guaranteed by a participant in the Securities Transfer Agents Medallion Program, the New York Stock Exchange Medallion Signature Program or the Stock Exchange Medallion Program) representing the shares of Stock to be sold by the Selling Stockholder hereunder.
(f) The Selling Stockholder has duly and irrevocably executed and delivered a power of attorney (the “Power of Attorney” and, together with all other similar agreements executed by the other Selling Stockholders, the “Powers of Attorney”) appointing the Custodian and Messrs. Xxxx X. Xxxx and Xxxx X. Xxxxxx as attorneys-in-fact, with full power of substitution, and with full authority (exercisable by any one or more of them) to execute and deliver this Agreement and to take such other action as may be necessary or desirable to carry out the provisions hereof on behalf of the Selling Stockholder.
(g) The Selling Stockholder has full right, power and authority, corporate or otherwise, to enter into this Agreement, the Custody Agreement and the Power of Attorney.
(h) This Agreement has been duly and validly authorized, executed and delivered by or on behalf of the Selling Stockholder.
(i) The Power of Attorney and the Custody Agreement have been duly and validly authorized, executed and delivered by or on behalf of the Selling Stockholder and constitute valid and legally binding obligations of the Selling Stockholder enforceable against the Selling Stockholder in accordance with their terms, subject to (i) the effects of bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium and other similar laws relating to or affecting creditors’ rights generally, (ii) general equitable principles (whether considered in a proceeding in equity or at law), and (iii) an implied covenant of good faith and fair dealing.
(j) The issue and sale of the Stock by the Selling Stockholder, the execution, delivery and performance of this Agreement, the Custody Agreement and the Power of Attorney 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 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, that in the case of clauses (i) and (iii), where such conflict, breach, violation or default would not reasonably be expected to have a material adverse effect on the ability of such Selling Stockholder to consummate the transactions contemplated herein.
(k) 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, the Custody Agreement or the Power of Attorney by the Selling Stockholder and the consummation by the Selling Stockholder of the transactions contemplated hereby and thereby, except for the registration of the Stock under the Securities Act and such consents, approvals, authorizations, orders, filings, registrations or qualifications as may be required under the applicable state securities or Blue Sky laws in connection with the purchase and sale of the Stock by the Underwriters.
(l) Such Selling Stockholder is familiar with the Registration Statement, the Pricing Disclosure Package (each, as of the time of the execution and delivery of this Agreement) and the Prospectus (as of the applicable Delivery Date, as defined herein) and has no knowledge of any material fact, condition or information not disclosed in the Registration Statement and the Pricing Disclosure Package (each, as of the time of the execution and delivery of this Agreement) and the Prospectus (as of the applicable Delivery Date) that has resulted in or may result in a material change relating to its Selling Shareholder Information (as defined herein).
(m) The Selling Stockholder is not prompted to sell shares of Common Stock by any information concerning the Company that is not set forth in the Registration Statement, the Pricing Disclosure Package and the Prospectus.
(A) At the respective times the Registration Statement and any post-effective amendments thereto became effective and at the applicable Delivery Date, the Registration Statement and any amendments and supplements (including any prospectus wrapper) thereto did not and will not contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading, and (B) at the time the Pricing Disclosure Package, the Prospectus or any amendments or supplements thereto were issued and at the applicable Delivery Date, none of the Pricing Disclosure Package, the Prospectus nor any amendment or supplement thereto included or will include an untrue statement of a material fact or omitted or will omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading; provided, that the representations and warranties in clauses (A) and (B) above shall (x) only apply to statements or omissions made in reliance upon and in conformity with information relating to such Selling Stockholder furnished by or on behalf of such Selling Stockholder expressly for use in the Registration Statement, the Pricing Disclosure Package or the Prospectus or any amendment or supplement thereto, it being understood and agreed that such information consists only of the name of such Selling Stockholder, the number of Shares to be sold by such Selling Stockholder and the address and other information with respect to such Selling Stockholder (excluding percentages) which appear in the Pricing Disclosure Package in the table (and corresponding footnotes) under the caption “Principal and Selling Stockholders” (with respect to each Selling Stockholder, the “Selling Stockholder Information”), and (y) not apply to statements in or omissions from the Registration Statement or the Prospectus made in reliance upon and in strict conformity with information furnished to the Company in writing by any Underwriter through the Representatives expressly for use in the Registration Statement or the Prospectus, it being understood and agreed that the only such information provided by any Underwriter is that identified as such in Section 10(f) hereof.
(ho) The Selling Stockholder has not taken and will not taketaken, directly or indirectly, any action which that is designed to or which that has constituted or which might that would reasonably be expected expected, individually or in the aggregate, to cause or result in the stabilization or manipulation of the price of any security of the Company to facilitate in connection with the sale or resale offering of the shares of the Stock.
(p) 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 Selling Stockholder and delivered to the Representatives or counsel for the Underwriters in connection with the offering of the Stock shall be deemed a representation and warranty by such Selling Stockholder, as to matters covered thereby, to each Underwriter.
Appears in 1 contract
Representations, Warranties and Agreements of the Selling Stockholders. Each Selling Stockholder Stockholder, severally and not jointly, represents, warrants and agrees that:
(a) Neither the such Selling Stockholder nor any person acting on behalf of the such Selling Stockholder (other than, if applicable, the Company and the Underwriters) has used or referred to any “free writing prospectus” (as defined in Rule 405), relating to the Stock;
(b) The Such Selling Stockholder has, and immediately prior to any Delivery Date on which the such Selling Stockholder is selling shares of Stock, the such Selling Stockholder will have 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 of Stock to be sold by the such Selling Stockholder hereunder on such Delivery Date, free and clear of all liens, encumbrances, equities or claims; and upon delivery of such shares and payment therefor pursuant hereto, good and valid title to such shares, free and clear of all liens, encumbrances, equities or claims, will pass to the several Underwriters.
(c) The Stock to be sold by such Selling Stockholder hereunder is subject to the interest of the Underwriters and the obligations of such Selling Stockholder hereunder shall not be terminated by any act of such Selling Stockholder, by operation of law, by the death or incapacity of any individual 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 other than as provided in this Agreement.
(d) Upon payment for the Stock to be sold by such Selling Stockholder, delivery of such Stock, as directed by the Underwriters, to Cede & Co. (“Cede”) or such other nominee as may be designated by The Depository Trust Company (“DTC”), registration of such Stock in the name of Cede or such other nominee and the crediting of such Stock on the books of DTC to securities accounts of the Underwriters (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 Stock), (i) DTC shall be a “protected purchaser” of such Stock within the meaning of Section 8-303 of the UCC, (ii) under Section 8-501 of the UCC, the Underwriters will acquire a valid security entitlement in respect of such Stock and (iii) no action based on any “adverse claim,” within the meaning of Section 8-102 of the UCC, to such Stock may be asserted against the Underwriters with respect to such security entitlement. For purposes of this representation, 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 certificate of incorporation, bylaws and applicable law, (B) DTC will be registered as a “clearing corporation” within the meaning of Section 8-102 of the UCC and (C) appropriate entries to the accounts of the several Underwriters on the records of DTC will have been made pursuant to the UCC.
(e) Certificates in negotiable or book-entry form representing all of the Stock to be sold by such Selling Stockholder hereunder have been placed in custody under a custody agreement Custody Agreement, in the form heretofore furnished to you (the “Custody Agreement” and”), together with all other similar agreements duly executed and delivered by the other such Selling StockholdersStockholder to Computershare Shareholder Services, the “Custody Agreements”) with the CompanyInc., as custodian (the “Custodian”), for delivery under this Agreement, certificates in negotiable form (with signature guaranteed by a commercial bank or trust company having an office or correspondent in the United States or a member firm of the New York or American Stock Exchanges) representing the shares of Stock to be sold by the and such Selling Stockholder hereunder.
(d) The Selling Stockholder has Stockholders duly and irrevocably executed and delivered a power of attorney (the “Power of Attorney” and, together with all other similar agreements executed by the other Selling Stockholders, the “Powers of Attorney”) appointing Sxxxxxx Xxxxxx X. Xxxxxxx and one or more other persons, Xxxxx X. Xxxxxxxx as attorneys-in-fact, with full power of substitution, and with full authority (exercisable by any one or more of them) to execute and deliver this Agreement and to take such other action as may be necessary or desirable to carry out the provisions hereof and of the Custody Agreement on behalf of the Selling Stockholder.
(ef) The Such Selling Stockholder has full right, power and authority under its limited partnership authority, corporate or similar organization agreement otherwise, to enter into this Agreement, the Power of Attorney (if applicable) and the Custody Agreement; this .
(g) This Agreement has been duly and validly authorized, executed and delivered by or on behalf of such Selling Stockholders.
(h) Each of the Power of Attorney (if applicable) and the Custody Agreement has been duly and validly authorized, executed and delivered by or on behalf of such Selling Stockholder; Stockholder and constitutes a valid and legally binding obligation of such Selling Stockholder enforceable against such 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.
(i) The execution, delivery and performance of this Agreement, the Power of Attorney (if applicable) and the Custody Agreement by the such Selling Stockholder and the consummation by the such Selling Stockholder of the transactions contemplated hereby and thereby do not and will not (i) conflict with or result in a material breach or violation of any of the terms or provisions of, or constitute a material default under, any indenture, mortgage, deed of trust, loan agreement agreement, license or other agreement or instrument to which the such Selling Stockholder is a party or by which the such Selling Stockholder is bound or to which any of the property or assets of the such Selling Stockholder is subject, nor will such actions (ii) result in any violation of the provisions of the charter or by-laws (or similar organizational documents) of such Selling Stockholder or (iii) result in any of its organizational documents (in the case of non-individual Selling Stockholders) or any material violation of any statute or any order, rule or regulation of any court or governmental agency or body having jurisdiction over the such Selling Stockholder or the property or assets of the such Selling Stockholder; and.
(j) No consent, approval, authorization or order of, or filing or registration with, any court or governmental agency or body having jurisdiction over such Selling Stockholder or the property or assets of such Selling Stockholder is required for the execution, delivery and performance of this Agreement, the Power of Attorney (if applicable) or the Custody Agreement by such Selling Stockholder and the consummation by such Selling Stockholder of the transactions contemplated hereby and thereby, except for the registration of the Stock under the Securities Act and such consents, approvals, authorizations, registrations or qualifications as may be required under the Exchange Act, by the National Association of Securities Dealers, Inc. Act and under applicable state or foreign securities laws in connection with the purchase and distribution sale of the Stock by the Underwriters, no consent, approval, authorization or order of, or filing or registration with, any such court or governmental agency or body 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.
(fk) The shares of Stock to be sold by the Selling Stockholder hereunder, which is represented by will be sold in compliance with federal and state securities laws.
(l) Such Selling Stockholder has no reason to believe that the certificates held in custody for the Selling Stockholder, is subject to the interest representations and warranties of the Underwriters, the arrangements made by the Selling Stockholder for such custody Company contained in Section 1 hereof are to that extent irrevocablenot materially true and correct, and the obligations of the information regarding such Selling Stockholder hereunder shall in the table and the related footnotes set forth in the Preliminary Prospectus and the Prospectus under the caption “Selling Stockholders” does not be terminated by any act contain an untrue statement of a material fact or omit to state a material fact necessary to make the Selling Stockholder, by operation of law, by the death or incapacity of any individual Selling Stockholder orstatements therein, in the case light of a trustthe circumstances under which they were made, by the death or incapacity of any executor or trustee or the termination of such trust, or the occurrence of any other eventnot misleading.
(gm) The Such Selling Stockholder is not prompted to sell shares of Common Stock by any information concerning the Company that is not set forth in the Registration Statement, the Pricing Disclosure PackagePackage and the Prospectus.
(hn) The Such Selling Stockholder has not taken and will not take, directly or indirectly, any action which that is designed to or which that has constituted or which might that could reasonably be expected to cause or result in the stabilization or manipulation of the price of any security of the Company to facilitate the sale or resale of the shares of the Stock.
(o) The sale of the Common Stock by such Selling Stockholder does not violate any of the Company’s internal policies regarding the sale of stock by its affiliates. Furthermore, each of Xxxxx X. Xxxxxxxx, Xxx X. Xxxxx, G. Xxxxxx Xxxxxxxxxx, XX and Xxxxxxx X. Reichtental represents that he is familiar with the Registration Statement, the Prospectus and the Pricing Disclosure Package (as amended or supplemented) and has no knowledge of any material fact, condition or information not disclosed (i) in the Registration Statement, as of the Effective Date, (ii) in the Prospectus, as of its date and on the applicable Delivery Date, (iii) in the Pricing Disclosure Package, as of the Applicable Time, or (iv) the documents incorporated by reference in any Preliminary Prospectus or the Prospectus that, in each case, could reasonably be expected to have a Material Adverse Effect. Any certificate signed by any officer of any Selling Stockholder and delivered to the Representative or counsel for the Underwriters in connection with the offering of the Stock shall be deemed a representation and warranty by such Selling Stockholder, as to matters covered thereby, to each Underwriter.
Appears in 1 contract
Representations, Warranties and Agreements of the Selling Stockholders. Each Selling Stockholder Stockholder, severally and not jointly, represents, warrants and agrees that:
(a) Neither the such Selling Stockholder nor any person acting on behalf of the such Selling Stockholder (other than, if applicable, the Company and the Underwriters) has used or referred to any “free writing prospectus” (as defined in Rule 405), relating to the StockStock other than the Issuer Free Writing Prospectus filed with the Commission on May 15, 2006 and any road show that is a free writing prospectus;
(b) The Such Selling Stockholder hasStockholder, and immediately prior to any Delivery Date on the time at which the such Selling Stockholder is selling shares of StockStock hereunder, the Selling Stockholder will have 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”) to the shares of Stock to be sold by the Selling Stockholder hereunder on such Delivery Datehereunder, free and clear of all liens, encumbrances, equities or claims; and upon delivery of such shares and payment therefor pursuant hereto, good and valid title to such shares, free and clear of all liens, encumbrances, equities or claims, will pass to the several Underwriters.
(c) 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 the Company, as custodian (the “Custodian”), for delivery under this Agreement, certificates in negotiable form (with signature guaranteed by a commercial bank or trust company having an office or correspondent in the United States or a member firm of the New York or American Stock Exchanges) representing the shares of Stock to be sold by such Selling Stockholder is subject to the interest of the Underwriters and the other Selling Stockholders hereunder, the arrangements made by such Selling Stockholder for the sale of such Stock hereunder are to that extent irrevocable, and the obligations of such Selling Stockholder hereunder shall not be terminated by any act of such Selling Stockholder, by operation of law, by the death or incapacity of any individual 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; if any individual Selling Stockholder or any such executor or trustee should die or become incapacitated, or if any such estate or trust should be terminated, or if any such partnership or corporation should be dissolved, or if any other such event should occur, before the delivery of the Shares hereunder, the Shares shall be delivered by or on behalf of the Selling Stockholder hereunderStockholders in accordance with the terms and conditions of this Agreement; and actions taken by the attorneys-in-fact pursuant to the Powers of Attorney shall be as valid as if such death, incapacity, termination, dissolution or other event had not occurred, regardless of whether or not the attorneys-in-fact, or any of them, shall have received notice of such death, incapacity, termination, dissolution or other event.
(d) The Upon delivery of security entitlements in respect of the Stock to be sold by such Selling Stockholder and payment therefor pursuant hereto (i) under Section 8-501 of the Uniform Commercial Code of New York (the “New York UCC”), the Underwriters will acquire good and valid title and a valid security entitlement in respect of such Stock and (ii) no action based on any “adverse claim,” within the meaning of Section 8-102(a)(2) of the UCC, to such Stock may be asserted against the Underwriters with respect to such security entitlement.
(e) Such Selling Stockholder has duly and irrevocably executed and delivered a power of attorney (the “Power of Attorney” and, together with all other similar agreements powers of attorney executed by the other Selling Stockholders, the “Powers of Attorney”) appointing Sxxxxxx Messrs. Xxxxx X. Xxxxxx, Xxxxxx X. Xxxxxxx, Xxxxx X. Xxxxxxxx and Xxxx X. Xxxxxxx and one or more other persons, as attorneys-in-fact, with full power of substitution, and with full authority (exercisable by any one or more of them) to execute and deliver this Agreement and to take such other action as may be necessary or desirable to carry out the provisions hereof on behalf of the such Selling Stockholder.
(ef) The Such Selling Stockholder has full right, power and authority under its limited partnership authority, corporate or similar organization agreement otherwise, to enter into this Agreement, Agreement and to execute and deliver the Power of Attorney and the Custody Agreement; this Attorney.
(g) This Agreement has been duly and validly authorized, executed and delivered by or on behalf of the such Selling Stockholder; .
(h) The Power of Attorney has been duly authorized executed and delivered by or on behalf of such Selling Stockholder and constitute valid and legally binding obligations of such Selling Stockholder enforceable against such Selling Stockholder in accordance with their terms, subject to (i) the effects of bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium and other similar laws relating to or affecting creditors’ rights generally, (ii) general equitable principles (whether considered in a proceeding in equity or at law) and (iii) an implied covenant of good faith and fair dealing.
(i) The execution, delivery and performance of this Agreement, Agreement and the Power of Attorney and the Custody Agreement by the such Selling Stockholder and the consummation by the such Selling Stockholder of the transactions contemplated hereby and thereby do not and will not (i) conflict with or result in a material breach or violation of any of the terms or provisions of, or constitute a material default under, any indenture, mortgage, deed of trust, loan agreement agreement, license or other agreement or instrument to which the such Selling Stockholder is a party or by which the such Selling Stockholder is bound or to which any of the property or assets of the such Selling Stockholder is subject, nor will such actions subject or (ii) result in any violation of any of its organizational documents (in the case of non-individual Selling Stockholders) or any material violation of any statute or any order, rule or regulation of any court or governmental agency or body having jurisdiction over the such Selling Stockholder or the property or assets of the such Selling Stockholder; and.
(j) No consent, approval, authorization or order of, or filing or registration with, any court or governmental agency or body having jurisdiction over such Selling Stockholder or the property or assets of such Selling Stockholder is required for the execution, delivery and performance of this Agreement or the Power of Attorney by such Selling Stockholder and the consummation by such Selling Stockholder of the transactions contemplated hereby and thereby, except for the registration of the offering of the Stock under the Securities Act and such consents, approvals, authorizations, registrations or qualifications as may be required under the Exchange Act, by the National Association of Securities Dealers, Inc. Act and under applicable state or foreign securities laws in connection with the purchase and distribution sale of the Stock by the Underwriters, no consent, approval, authorization or order of, or filing or registration with, any such court or governmental agency or body 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.
(fk) The Stock to be sold by the Selling Stockholder hereunder, which is represented by the certificates held in custody for the Selling Stockholder, is subject to the interest of the Underwriters, the arrangements made by the Selling Stockholder for such custody are to that extent irrevocable, and the obligations of the Selling Stockholder hereunder shall not be terminated by any act of the Selling Stockholder, by operation of law, by the death or incapacity of any individual 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.
(g) The Such Selling Stockholder is not prompted to sell shares of Common Stock by any information concerning the Company that is not set forth in the Registration Statement, the Pricing Disclosure PackagePackage and the Prospectus.
(hl) The Such Selling Stockholder has not taken and will not take, directly or indirectly, any action which that is designed to or which that has constituted or which might 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 shares of the Stock.
(m) To the extent that any statements or omissions made in the Registration Statement, any Preliminary 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 such Selling Stockholder expressly for use therein, such Preliminary 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. Any certificate signed by or on behalf of any Selling Stockholder and delivered to the Representatives or counsel for the Underwriters in connection with the offering of the Stock shall be deemed a representation and warranty by such Selling Stockholder, as to matters covered thereby, to each Underwriter.
Appears in 1 contract
Representations, Warranties and Agreements of the Selling Stockholders. Each Selling Stockholder severally represents, warrants and agrees that, as to himself or itself only:
(a) Neither the Selling Stockholder nor any person acting on behalf of the Selling Stockholder (other than, if applicable, the Company and the Underwriters) has used or referred to any “free writing prospectus” (as defined in Rule 405), relating to the Stock;
(b) The Selling Stockholder has, and immediately prior to any the First Delivery Date on which (as defined in Section 5 hereof) in the case of the Firm Selling Stockholder is selling shares Stockholder, and the Second Delivery Date (as defined in Section 5 hereof) in the case of Stockthe Option Selling Stockholders, the Selling Stockholder will have 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”) to the shares of 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, will pass to the several Underwriters.
(cb) 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 the Company_________________, as custodian (the “"Custodian”"), for delivery under this Agreement, certificates in negotiable form (with signature guaranteed by a commercial bank or trust company having an office or correspondent in the United States or a member firm of the New York or American Stock Exchanges) representing the shares of Stock to be sold by the Selling Stockholder hereunder.
(dc) The Selling Stockholder has duly and irrevocably executed and delivered a power of attorney (the “"Power of Attorney” " and, together with all other similar agreements executed by the other Selling Stockholders, the “"Powers of Attorney”") appointing Sxxxxxx X. Xxxxxxx _____________ and one or more other persons, as attorneys-in-fact, with full power of substitution, and with full authority (exercisable by any one or more of them) to execute and deliver this Agreement and to take such other action as may be necessary or desirable to carry out the provisions hereof on behalf of the Selling Stockholder.
(ed) The Selling Stockholder has full right, power and authority under its limited partnership or similar organization agreement to enter into this Agreement, the Power of Attorney and the Custody Agreement; this Agreement has been duly and validly authorized, executed and delivered by or on behalf of the Selling Stockholder; the execution, delivery and performance of this 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 will not conflict with or result in a material breach or violation of any of the terms or provisions of, or constitute a material default under, any indenture, mortgage, deed of trust, loan 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 will such actions result in any violation of any of its organizational documents (in the case of non-individual Selling Stockholders) or 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 or the property or assets of the Selling Stockholder; and, except for the registration of the Stock under the Securities Act and such consents, approvals, authorizations, registrations or qualifications as may be required under the Exchange Act, by the National Association of Securities Dealers, Inc. Act and under applicable state securities laws in connection with the purchase and distribution of the Stock by the Underwriters, no consent, approval, authorization or order of, or filing or registration with, any such court or governmental agency or body 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.
(f) The Stock to be sold by the Selling Stockholder hereunder, which is represented by the certificates held in custody for the Selling Stockholder, is subject to the interest of the Underwriters, the arrangements made by the Selling Stockholder for such custody are to that extent irrevocable, and the obligations of the Selling Stockholder hereunder shall not be terminated by any act of the Selling Stockholder, by operation of law, by the death or incapacity of any individual 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.
(ge) 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 effective date, or the Prospectus (or any amendment or supplement thereto), as of the applicable filing date, which has adversely affected or may adversely affect the business of the Company and is not prompted to sell shares of Common Stock by any information concerning the Company that which is not set forth in the Pricing Disclosure PackageRegistration Statement and the Prospectus.
(hf) The Selling Stockholder has not taken and will not take, directly or indirectly, any action which is designed to or which has constituted or 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 of the Stock.
Appears in 1 contract
Representations, Warranties and Agreements of the Selling Stockholders. (a) Each Selling Stockholder Stockholder, severally and not jointly, represents, warrants and agrees that:
(ai) Neither the Selling Stockholder nor any person acting on behalf of the Selling Stockholder (other than, if applicable, the Company and the Underwriters) has used or referred to any “free writing prospectus” (as defined in Rule 405), relating to the Stock;
(bii) The Selling Stockholder has, and immediately prior to any Delivery Date on which the Selling Stockholder is selling shares of Stock, the Selling Stockholder will have 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”) to the 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; and upon delivery of such shares and payment therefor pursuant hereto, good and valid title to such shares, free and clear of all except for any liens, encumbrances, equities or claims, will pass to claims arising under the several UnderwritersCustody Agreement.
(c) 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 the Company, as custodian (the “Custodian”), for delivery under this Agreement, certificates in negotiable form (with signature guaranteed by a commercial bank or trust company having an office or correspondent in the United States or a member firm of the New York or American Stock Exchanges) representing the shares of Stock to be sold by the Selling Stockholder hereunder.
(d) The Selling Stockholder has duly and irrevocably executed and delivered a power of attorney (the “Power of Attorney” and, together with all other similar agreements executed by the other Selling Stockholders, the “Powers of Attorney”) appointing Sxxxxxx X. Xxxxxxx and one or more other persons, as attorneys-in-fact, with full power of substitution, and with full authority (exercisable by any one or more of them) to execute and deliver this Agreement and to take such other action as may be necessary or desirable to carry out the provisions hereof on behalf of the Selling Stockholder.
(e) The Selling Stockholder has power and authority under its limited partnership or similar organization agreement to enter into this Agreement, the Power of Attorney and the Custody Agreement; this Agreement has been duly and validly authorized, executed and delivered by or on behalf of the Selling Stockholder; the execution, delivery and performance of this 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 will not conflict with or result in a material breach or violation of any of the terms or provisions of, or constitute a material default under, any indenture, mortgage, deed of trust, loan 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 will such actions result in any violation of any of its organizational documents (in the case of non-individual Selling Stockholders) or 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 or the property or assets of the Selling Stockholder; and, except for the registration of the Stock under the Securities Act and such consents, approvals, authorizations, registrations or qualifications as may be required under the Exchange Act, by the National Association of Securities Dealers, Inc. and under applicable state securities laws in connection with the purchase and distribution of the Stock by the Underwriters, no consent, approval, authorization or order of, or filing or registration with, any such court or governmental agency or body 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.
(fiii) The Stock to be sold by the Selling Stockholder hereunder, which is represented by the certificates held in custody for the Selling Stockholder, is subject to the interest of the UnderwritersUnderwriters thereunder, the arrangements made by the Selling Stockholder for such custody are to that extent irrevocableirrevocable except pursuant to a termination of this Agreement or as otherwise set forth in the Custody Agreement, and the obligations of the Selling Stockholder hereunder shall not be terminated by any act of the Selling Stockholder, by operation of law, by the death or incapacity of any individual 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.
(giv) Upon delivery of the Stock to be sold by the Selling Stockholder, payment therefor pursuant hereto and assuming no Underwriter has notice of any “adverse claim” (within the meaning of Section 8-102 of the Uniform Commercial Code (the “UCC”)) (i) the Underwriters shall be “protected purchasers” of such Stock within the meaning of Section 8-303 of the UCC, (ii) under Section 8-501 of the UCC, the Underwriters will acquire good and valid title and a valid security entitlement in respect of such Stock and (iii) no action based on any “adverse claim,” within the meaning of Section 8-102 of the UCC, to such Stock may be asserted against the Underwriters with respect to such security entitlement.
(v) The Selling Stockholder is not prompted to sell 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 the Company, as custodian (the “Custodian”), for delivery under this Agreement, certificates in negotiable form (with signature guaranteed by a participant in the Securities Transfer Agents Medallion Program, the New York Stock Exchange Medallion Signature Program or the Stock Exchange Medallion Program) representing the shares of Common Stock to be sold by the Selling Stockholder hereunder.
(vi) The Selling Stockholder has duly and irrevocably executed and delivered a power of attorney (the “Power of Attorney” and, together with all other similar agreements executed by the other Selling Stockholders, the “Powers of Attorney”) appointing Xxxxxxx X. Xxxxx, Xxxxx X. Xxxxxxxx, Xxxxxxx X. Xxxxxxx as attorneys-in-fact, with full power of substitution, and with full authority (exercisable by any one or more of them) to execute and deliver this Agreement and to take such other action as may be necessary or desirable to carry out the provisions hereof on behalf of the Selling Stockholder in accordance with the provisions of the Power of Attorney.
(vii) The Selling Stockholder has full right, power and authority, corporate or otherwise, to enter into this Agreement, the Custody Agreement and the Power of Attorney.
(viii) This Agreement has been duly and validly authorized, executed and delivered by or on behalf of the Selling Stockholder.
(ix) The Power of Attorney and the Custody Agreement have been duly and validly authorized, executed and delivered by or on behalf of the Selling Stockholder and constitute valid and legally binding obligations of the Selling Stockholder enforceable against the Selling Stockholder in accordance with their terms, subject to (i) the effects of bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium and other similar laws relating to or affecting creditors’ rights generally, (ii) general equitable principles (whether considered in a proceeding in equity or at law) and (iii) an implied covenant of good faith and fair dealing.
(x) The execution, delivery and performance of this Agreement, the Custody Agreement and the Power of Attorney 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, (iii) result in any violation of the provisions of the deed of trust (or similar organizational documents) of the Selling Stockholder or (iv) 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.
(xi) 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, the Custody Agreement or the Power of Attorney by the Selling Stockholder and the consummation by the Selling Stockholder of the transactions contemplated hereby and thereby, except for the registration of the Stock under the Securities Act and such consents, approvals, authorizations, registrations or qualifications as may be required under the Exchange Act and applicable state or foreign securities laws in connection with the purchase and sale of the Stock by any the Underwriters.
(xii) 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 representation in this paragraph is limited to statements or omissions made in reliance upon and in conformity with information concerning relating to such Selling Stockholder furnished to the Company in writing by such Selling Stockholder expressly for use in the Registration Statement.
(xiii) 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; provided that the representation in this paragraph is limited to statements or omissions made in reliance upon and in conformity with information relating to such Selling Stockholder furnished to the Company in writing by such Selling Stockholder expressly for use in the Prospectus.
(xiv) 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 set forth misleading; provided that the representation in this paragraph is limited to statements or omissions made in reliance upon and in conformity with information relating to such Selling Stockholder furnished to the Company in writing by such Selling Stockholder expressly for use in the Pricing Disclosure Package.
(hxv) Each Issuer Free Writing Prospectus (including, without limitation, any road show that is a free writing prospectus under Rule 433), 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 representation in this paragraph is limited to statements or omissions made in reliance upon and in conformity with information relating to such Selling Stockholder furnished to the Company in writing by such Selling Stockholder expressly for use in the such Issuer Free Writing Prospectus.
(xvi) The Selling Stockholder has not taken and will not take, directly or indirectly, any action which that is designed to or which that has constituted or which might that could reasonably be expected to cause or result in the stabilization or manipulation of the price of any security of the Company to facilitate the sale or resale of the shares of the Stock.
(b) In addition to the representations, warranties and agreements in Section 2(a) above, the stockholder of the Company named in Schedule 5 hereto (the “Executive Selling Stockholder”) represents, warrants and agrees that:
(i) The Executive Selling Stockholder has reviewed this Agreement, the Registration Statement and the Pricing Disclosure Package and has no reason to believe (i) the Registration Statement, as of its effective date, contained an untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary to make the statements therein not misleading, or (ii) the Pricing Disclosure Package, as of the Applicable Time, contained an untrue statement of a material fact or omitted 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 no representation or warranty is made as to information contained in or omitted from the Registration Statement or 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). Any certificate signed by any Selling Stockholder and delivered to the Representatives or counsel for the Underwriters in connection with the offering of the Stock shall be deemed a representation and warranty by such Selling Stockholder, as to matters covered thereby, to each Underwriter.
Appears in 1 contract
Representations, Warranties and Agreements of the Selling Stockholders. Each 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 Underwriters) has used or referred to any “free writing prospectus” (as defined in Rule 405), relating to the Stock;
(b) The Selling Stockholder has, and immediately prior to any the First Delivery Date on which the Selling Stockholder is selling shares of Stock, (as defined in Section 5 hereof) the Selling Stockholder will have 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”) to the shares of 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 heretohereto and thereto, good and valid title to such shares, free and clear of all liens, encumbrances, equities or claims, will pass to the several International Managers and U.S. Underwriters.;
(cb) 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 the Company[insert name of custodian], as custodian (the “"Custodian”"), for delivery under this Agreement and under the U.S. Underwriting Agreement, 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 New York or American Stock Exchanges) representing the shares of Stock to be sold by the Selling Stockholder hereunder.;
(dc) The Selling Stockholder has duly and irrevocably executed and delivered a power of attorney (the “"Power of Attorney” " and, together with all other similar agreements executed by the other Selling Stockholders, the “"Powers of Attorney”") appointing Sxxxxxx X. Xxxxxxx the Custodian and one or more other persons, as attorneys-in-fact, with full power of substitution, and with full authority (exercisable by any one or more of them) to execute and deliver this Agreement and to take such other action as may be necessary or desirable to carry out the provisions hereof on behalf of the Selling Stockholder.;
(ed) The Selling Stockholder has full right, power and authority under its limited partnership or similar organization agreement to enter into this Agreement and the U.S. Underwriting Agreement, the Power of Attorney and the Custody Agreement; this Agreement has been duly and validly authorized, executed and delivered by or on behalf of the Selling Stockholder; the execution, delivery and performance of this Agreement, the 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 will not conflict with or result in a material breach or violation of any of the terms or provisions of, or constitute a material default under, any indenture, mortgage, deed of trust, loan 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 will such actions result in any violation of any the provisions of its organizational documents the charter or by-laws of the Selling Stockholder (in the case of non-individual with respect to a Selling StockholdersStockholder that is a corporation) or 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 or the property or assets of the Selling Stockholder; and, except for the registration of the Stock under the Securities Act and such consents, approvals, authorizations, registrations or qualifications as may be required under the Exchange Act, by the National Association of Securities Dealers, Inc. Act and under applicable state or foreign securities laws in connection with the purchase and distribution of the Stock by the International Managers and U.S. 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.;
(e) The Registration Statement 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 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; provided that no representation or warranty is made as to information contained in or omitted from the Registration Statement or the Prospectus in reliance upon and in conformity with written information furnished to the Company through the Lead Managers by or on behalf of any International Manager specifically for inclusion therein;
(f) The Stock Selling Stockholder has no reason to be sold by believe that the representations and warranties of the Company and the Selling Stockholder hereunder, which is represented by the certificates held Stockholders contained in custody for the Selling StockholderSection 1 hereof are not materially true and correct, is subject to familiar with the interest 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 Underwriters, the arrangements made by the Selling Stockholder for such custody are to that extent irrevocable, and the obligations of the Selling Stockholder hereunder shall not be terminated by any act of the Selling Stockholder, by operation of law, by the death or incapacity of any individual Selling Stockholder or, in the case of a trust, by the death or incapacity of any executor or trustee or the termination of such trustEffective Date, or the occurrence Prospectus (or any amendment or supplement thereto), as of any other event.
(g) The Selling Stockholder the applicable filing date, which has adversely affected or may adversely affect the business of the Company and is not prompted to sell shares of Common Stock by any information concerning the Company that which is not set forth in the Pricing Disclosure Package.Registration Statement and the Prospectus; and
(hg) The Selling Stockholder has not taken and will not take, directly or indirectly, any action which is designed to or which has constituted or 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 of the Stock.
Appears in 1 contract
Samples: International Underwriting Agreement (Hk Systems Inc)
Representations, Warranties and Agreements of the Selling Stockholders. Each Selling Stockholder Stockholder, severally and not jointly, represents, warrants and agrees that:
(a) Neither the The Selling Stockholder nor any person acting on behalf of has and immediately prior to the Selling Stockholder (other than, if applicable, the Company and the Underwriters) has used or referred to any “free writing prospectus” applicable Delivery Date (as defined in Rule 405), relating to the Stock;
(bSection 5) The Selling Stockholder has, and immediately prior to any Delivery Date on which the Selling Stockholder is selling shares of Stock, the Selling Stockholder will have good and valid title to, or a valid “security entitlement” within to the meaning of Section 8-501 of the New York Uniform Commercial Code (the “UCC”) the shares of Stock to be sold by the Selling Stockholder hereunder on such Delivery Datedate, free and clear of all liens, encumbrances, equities or claimsclaims (except for such claims as may arise under this Agreement or the Irrevocable Power of Attorney and Custody Agreement entered into in connection herewith); and upon delivery of such shares and payment therefor pursuant hereto, good and valid title to such shares, free and clear of all liens, encumbrances, equities or claims, will pass to the several Underwriters.
(cb) The Selling Stockholder has placed in custody under a custody agreement an Irrevocable Power of Attorney and Custody Agreement (the “Custody Agreement” "CUSTODY AGREEMENT" and, together with all other similar agreements executed by the other Selling Stockholders, the “Custody Agreements”"CUSTODY AGREEMENTS") with the Computershare Trust Company, Inc., as custodian (the “Custodian”"CUSTODIAN"), for delivery under this Agreement, certificates in negotiable form (with signature guaranteed by a commercial bank or trust company having an office or correspondent in the United States or a member firm of the New York or American Stock Exchanges) representing the shares of Stock Stock, to be sold by the Selling Stockholder hereunder.
(dc) The Selling Stockholder has duly and irrevocably executed and delivered a power of attorney (the “Power of Attorney” "POWER OF ATTORNEY" and, together with all other similar agreements instruments executed by the other Selling Stockholders, the “Powers of Attorney”) "POWERS OF ATTORNEY"), contained within the Custody Agreement, appointing Sxxxxxx X. Xxxxxxx and one or more other persons, the persons named therein as attorneys-in-fact, with full power of substitution, and with full authority (exercisable by any one or more of them) to execute and deliver this Agreement on such Selling Stockholder's behalf and to take such other action as may be necessary or desirable to carry out the provisions hereof on behalf of the Selling Stockholder.
(ed) The Selling Stockholder has full right, power and authority under its limited partnership or similar organization agreement to enter into this Agreement, the Power of Attorney Agreement and the Custody Agreement; this Agreement has been duly and validly authorized, executed and delivered by or on behalf of the Selling Stockholder; the execution, delivery and performance of this Agreement, the Power of Attorney Agreement and the Custody Agreement by the Selling Stockholder and the consummation by the Selling Stockholder of the transactions contemplated hereby and thereby will not conflict with or result in a material breach or violation of any of the terms or provisions of, or constitute a material default under, any indenture, mortgage, deed of trust, loan 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 nor, for each Selling Stockholder that is not a natural person, will such actions result in any violation of the provisions of any partnership or limited liability company agreement, certificate of its incorporation, by-laws, operating agreement, deed of trust or other similar agreement or organizational documents (in document of the case of non-individual Selling Stockholders) Stockholder or 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 or the property or assets of the Selling Stockholder; and, and except for the registration of the Stock under the Securities Act and such consents, approvals, authorizations, registrations or qualifications as may be required under the Exchange Act, by the National Association of Securities Dealers, Inc. Act and under applicable state securities laws in connection with the purchase and distribution of the Stock by the Underwriters, no consent, approval, authorization or order of, or filing or registration with, any such court or governmental agency or body is required for the execution, delivery and performance of this Agreement, the Power of Attorney Agreement or the Custody Agreement by the Selling Stockholder and the consummation by the Selling Stockholder of the transactions contemplated hereby and thereby.
(fe) The Stock On the Effective Date and at the time and date of execution and delivery of this Agreement, the Registration Statement did not or will not contain any untrue statement of a material fact or omit to state any material fact required to be sold by stated therein or necessary in order to make the Selling Stockholder hereunderstatements therein not misleading, which is represented by and on the certificates held in custody for the Selling Stockholder, is subject to the interest of the UnderwritersEffective Time, the arrangements made by Prospectus, if not filed pursuant to Rule 424(b), will not and on the Selling Stockholder for such custody are date any filing pursuant to that extent irrevocableRule 424(b) and on any Delivery Date (as defined in Section 5 hereof) and any settlement date, and the obligations Prospectus (together with any supplement or amendment thereto) will not, include any untrue statement of a material fact or omit to state a material fact necessary in order to make the Selling Stockholder hereunder shall not be terminated by any act of the Selling Stockholder, by operation of law, by the death or incapacity of any individual Selling Stockholder orstatements therein, in the case light of a trustthe circumstances under which they were made, by the death or incapacity of any executor or trustee or the termination of such trust, or the occurrence of any other eventnot misleading.
(g) The Selling Stockholder is not prompted to sell shares of Common Stock by any information concerning the Company that is not set forth in the Pricing Disclosure Package.
(hf) The Selling Stockholder has not taken and will not take, directly or indirectly, any action which is (i) designed to or which has constituted or 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 Stock or (ii) prohibited by Regulation M under the Securities Act.
(g) The Selling Stockholder has carefully reviewed the Registration Statement and the Prospectus and is not prompted to sell shares of Common Stock by any material information concerning the StockCompany or any of its subsidiaries that is not set forth in the Registration Statement and the Prospectus or any supplement thereto.
(h) This Agreement has been duly authorized, executed and delivered by or on behalf of the Selling Stockholder.
(i) The Selling Stockholder has no actual knowledge (without independent inquiry or investigation) that the representations and warranties of the Company contained in this Section 2 are not true and correct and if the Selling Stockholder is an executive officer or director of the Company, is familiar with the Registration Statement and (without independent inquiry or investigation) has no knowledge of any material fact, condition or information not disclosed in the Prospectus or any supplement thereto which has adversely affected or may adversely affect the business of the Company or any of its subsidiaries.
(j) The Selling Stockholder does not have any registration or other similar rights to have any equity or debt securities registered for sale by the Company under the Registration Statement or included in the offering contemplated by this Agreement, except for such rights as have been satisfied or waived. Any certificate signed by any officer or Attorney-in-fact of any Selling Stockholder and delivered to the Representatives or counsel for the Underwriters in connection with the offering of the Stock shall be deemed a representation and warranty by such Selling Stockholder, as to matters covered thereby, to each Underwriter. Such Selling Stockholder acknowledges that the Underwriters and, for purposes of the opinion to be delivered pursuant to Section 9 hereof, counsel to the Company and counsel to the Underwriters, will rely upon the accuracy and truthfulness of the foregoing representations and hereby consents to such reliance.
Appears in 1 contract
Samples: Underwriting Agreement (Netgear Inc)
Representations, Warranties and Agreements of the Selling Stockholders. 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 Underwriters) has used or referred to any “free writing prospectus” (as defined in Rule 405), 405 under the Securities Act) relating to the Stock;.
(b) The Selling Stockholder has, and immediately prior to any Delivery Date on which the Selling Stockholder is selling shares of Stock, the Selling Stockholder will have 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”) the shares of Stock to be sold by the Selling Stockholder hereunder on such Delivery Datein respect thereof, free and clear of all liens, encumbrances, equities, community property rights, restrictions on transfer or claims, except for any liens, encumbrances, equities or claims; claims arising under the Custody Agreement (as defined below).
(c) If such Selling Stockholder is a Management Selling Stockholder, the Stock to be sold by such Selling Stockholder hereunder, which is held in custody for such Selling Stockholder, is subject to the interest of the Underwriters and upon the Attorney-in-Fact and Custodian (each as defined below), and the obligations of the Selling Stockholder hereunder 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 for the Stock to be sold by such Selling Stockholder, delivery of such shares Stock, as directed by the Underwriters, to Cede & Co. (“Cede”) or such other nominee as may be designated by The Depository Trust Company (“DTC”), registration of such Stock in the name of Cede or such other nominee and payment therefor pursuant hereto, the crediting of such Stock on the books of DTC to securities accounts of the Underwriters (i) DTC will acquire good and valid marketable title to such shares, the Stock free and clear of all liens, encumbrances, equities equities, community property rights, restrictions on transfer or claims, (ii) DTC shall be a “protected purchaser” of such Stock within the meaning of Section 8-303 of the UCC, (iii) under Section 8-501 of the UCC, the Underwriters will pass acquire a valid security entitlement in respect of such Stock, and (iv) an action based on an adverse claim to such securities entitlement, whether framed in conversion, replevin, constructive trust, equitable lien or other theory may not be asserted against the Underwriters with respect to such security entitlement. For purposes of this representation, such Selling Stockholder may assume that when such payment, delivery and crediting occur, (x) such 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, bylaws and applicable law, (y) DTC will be registered as a “clearing corporation” within the meaning of Section 8-102 of the UCC, and (z) appropriate entries to the accounts of the several UnderwritersUnderwriters on the records of DTC will have been made pursuant to the UCC.
(ce) The If such Selling Stockholder is a Management Selling Stockholder, such Selling Stockholder has placed in custody under a custody agreement (the “Custody Agreement” and, together with all other similar agreements executed by the other Management Selling Stockholders, the “Custody Agreements”) with the CompanyComputershare Inc., as custodian (the “Custodian”), for delivery under this Agreement, certificates in negotiable form (with signature guaranteed by a commercial bank or trust company having an office or correspondent participant in the United States or a member firm of Securities Transfer Agents Medallion Program, the New York Stock Exchange Medallion Signature Program or American the Stock ExchangesExchange Medallion Program) representing the shares of Stock to be sold by the Selling Stockholder hereunder.
(df) The If such Selling Stockholder is a Management Selling Stockholder, such Selling Stockholder has duly and irrevocably executed and delivered a power of attorney (the “Power of Attorney” and, together with all other similar agreements executed by the other Management Selling Stockholders, the “Powers of Attorney”) appointing Sxxxxxx X. Xxxxxxx the Custodian and one or more other persons, Messrs. Xxx Xxxxxxxxx and Xxxxxxxxxxx Xxxxxx as attorneys-in-fact, with full power of substitution, and with full authority (exercisable by any one or more of them) to execute and deliver this Agreement and to take such other action as may be necessary or desirable to carry out the provisions hereof on behalf of the Selling Stockholder.
(eg) The Selling Stockholder has full right, power and authority under its limited partnership authority, corporate or similar organization agreement otherwise, to enter into this Agreement, and, if such Selling Stockholder is a Management Selling Stockholder, the Custody Agreement and the Power of Attorney and the Custody Agreement; this Attorney.
(h) This Agreement has been duly and validly authorized, executed and delivered by or on behalf of the Selling Stockholder; .
(i) If such Selling Stockholder is a Management Selling Stockholder, the Power of Attorney and the Custody Agreement have been duly and validly authorized, executed and delivered by or on behalf of such Selling Stockholder and constitute valid and legally binding obligations of such Selling Stockholder enforceable against such Selling Stockholder in accordance with their terms, subject to (i) the effects of bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium and other similar laws relating to or affecting creditors’ rights generally, (ii) general equitable principles (whether considered in a proceeding in equity or at law), and (iii) an implied covenant of good faith and fair dealing.
(j) The sale of the Stock by the Selling Stockholder, the execution, delivery and performance of this Agreement, and if the Selling Stockholder is a Management Selling Stockholder, the Custody Agreement and the Power of Attorney and the Custody Agreement Attorney, 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 material breach or violation of any of the terms or provisions of, or constitute a material default under, any indenture, mortgage, deed of trust, loan agreement agreement, 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, nor will such actions (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 of its organizational documents (in the case of non-individual Selling Stockholders) or any material 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; and, except for that in the registration case of clauses (i) and (iii) above, where such conflict, breach or violation would not, individually or in the Stock aggregate, reasonably be expected to have a material adverse effect on such Selling Stockholder’s ability to perform its obligations under the Securities Act and such consents, approvals, authorizations, registrations or qualifications as may be required under the Exchange Act, by the National Association of Securities Dealers, Inc. and under applicable state securities laws in connection with the purchase and distribution of the Stock by the Underwriters, no this Agreement.
(k) 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 sale of the Stock by the Selling Stockholder, the execution, delivery and performance of this Agreement, and if the Selling Stockholder is a Management Selling Stockholder, the Custody Agreement or the Power of Attorney or the Custody Agreement Attorney, by the Selling Stockholder and the consummation by the Selling Stockholder of the transactions contemplated hereby and thereby, except for (i) the registration of the 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 securities laws in connection with the purchase and sale of the Stock by the Underwriters, (ii) for those already obtained or (iii) for those as to which the failure to obtain would not, individually or in the aggregate, reasonably be expected to have a material adverse effect on such Selling Stockholder’s ability to perform its obligations under this Agreement.
(fl) The Stock to be sold by To the Selling Stockholder hereunder, which is represented by the certificates held in custody for the Selling Stockholder, is subject to the interest of the Underwriters, the arrangements made by the Selling Stockholder for such custody are to that extent irrevocable, and the obligations of the Selling Stockholder hereunder shall not be terminated by any act 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 operation of law, by the death or incapacity on behalf of any individual 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(l) are limited to statements or omissions made in reliance upon and in conformity with information relating to such Selling Stockholder or, furnished to the Company in writing by such Selling Stockholder expressly for use in the case of a trustRegistration Statement, by or any amendments or supplements thereto, it being understood and agreed that such information is limited to the death or incapacity of any executor or trustee or the termination legal name of such trustSelling Stockholder, or the occurrence number of any other event.
(g) The Selling Stockholder is not prompted to sell shares of Common Stock offered, the number of shares of Common Stock owned by such Selling Stockholder before and after the offering and the address and other information with respect to such Selling Stockholder (excluding percentages) that appear in the table and footnotes under the caption “Principal and Selling Stockholders” (with respect to each Selling Stockholder, the “Selling Stockholder Information”) in the Registration Statement and any amendment or supplement thereto.
(m) To the knowledge of the Selling Stockholder, the Prospectus will not, as of its date or as of the applicable Delivery Date, contain an untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading; provided that (i) no representation or warranty is made as to information concerning contained in or omitted from the Prospectus in reliance upon and in conformity with written information furnished to the Company that through the Representatives by or on behalf of any Underwriter specifically for inclusion therein, which information is not specified in Section 10(f) and (ii) the representations and warranties set forth in this Section 2(m) are limited to statements or omissions made in reliance upon and in conformity with information relating to such Selling Stockholder furnished to the Company in writing by such Selling Stockholder expressly for use in the Prospectus or any amendments or supplements thereto, it being understood and agreed that such information is limited to the Selling Stockholder Information in the Prospectus and any amendment or supplement thereto.
(n) 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 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 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(n) are limited to statements or omissions made in reliance upon and in conformity with information relating to such Selling Stockholder furnished to the Company in writing by such Selling Stockholder expressly for use in the Pricing Disclosure PackagePackage or any amendments or supplements thereto, it being understood and agreed that such information is limited to the Selling Stockholder Information in the Pricing Disclosure Package and any amendment or supplement thereto.
(ho) To the knowledge of the Selling Stockholder, the Pricing Disclosure Package, when taken together with each Issuer Free Writing Prospectus listed in Schedule V hereto, did not, as of the Applicable Time, contain an untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading; provided that (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 V 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 paragraph 2(o) are limited to statements or omissions made in reliance upon and in conformity with information relating to such Selling Stockholder furnished to the Company in writing by such Selling Stockholder expressly for use in the Pricing Disclosure Package (or in any Issuer Free Writing Prospectus listed in Schedule V hereto) or any amendments or supplements thereto, it being understood and agreed that such information is limited to the Selling Stockholder Information in the Pricing Disclosure Package (or in any Issuer Free Writing Prospectus listed in Schedule V hereto) and any amendment or supplement thereto.
(p) The Selling Stockholder has not taken and will not taketaken, directly or indirectly, any action which that is designed to or which that has constituted or which might that could reasonably be expected to cause or result in the stabilization or manipulation of the price of any security of the Company to facilitate in connection with the sale or resale offering of the shares of the Stock.
(q) 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; provided that the foregoing shall not apply with respect to the distribution of the proceeds of the offering to any of such Selling Stockholder’s direct or indirect limited partners once such proceeds are no longer under the control of such Selling Stockholder if prior to such distribution such Selling Stockholder has no knowledge that such proceeds will be used for any of the foregoing purposes.
(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 Selling Stockholder and delivered to the Representatives or counsel for the Underwriters in connection with the offering of the Stock shall be deemed a representation and warranty by such Selling Stockholder, as to matters covered thereby, to each Underwriter.
Appears in 1 contract
Representations, Warranties and Agreements of the Selling Stockholders. Each 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 Underwriters) has used or referred to any “free writing prospectus” (as defined in Rule 405), relating to the Stock;
(b) The Selling Stockholder has, and immediately prior to any Delivery the Closing Date on which the Selling Stockholder is selling shares of Stock, (as defined in Section 3 hereof) the Selling Stockholder will have 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”) to the shares of Common Stock to be sold by the Selling Stockholder hereunder on such Delivery Closing Date, free and clear of all liens, encumbrances, equities equities, claims, security interests or claimsother restrictions whatsoever (including any restrictions on transfer); and upon delivery of such shares and payment therefor pursuant hereto, good and valid title to such shares, free and clear of all liens, encumbrances, equities or claims, will pass to the several UnderwritersUnderwriters who have purchased such shares in good faith and without notice of any such lien, encumbrance, equity or claim or any other adverse claim within the meaning of the Uniform Commercial Code. Except for this Agreement, there are no outstanding options, warrants, rights, or other agreements or arrangements requiring the Selling Stockholder at any time to transfer any Shares to be sold hereunder by the Selling Stockholder.
(cb) 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 the CompanyFirst Union National Bank of North Carolina, as custodian (the “"Custodian”"), for delivery under this Agreement, certificates in negotiable form (with signature guaranteed by a commercial bank or trust company having an office or correspondent in the United States or a member firm of the New York or American Stock Exchanges) representing the shares of Stock Shares to be sold by the Selling Stockholder hereunder.
(dc) The Selling Stockholder has duly and irrevocably executed and delivered a power of attorney (the “"Power of Attorney” " and, together with all other similar agreements executed by the other Selling Stockholders, the “"Powers of Attorney”") appointing Sxxxxxx X. Xxxxxxx and one or more other persons, persons as attorneys-in-fact, with full power of substitution, and with full authority (exercisable by any one or more of them) to execute and deliver this Agreement on behalf of such Selling Stockholder and to take such other action as may be necessary or desirable to carry out the provisions hereof on behalf of the Selling Stockholder.
(ed) The Selling Stockholder has has, and at all times through the Closing Date will have, full legal right and power and authority under its limited partnership or similar organization agreement all authorizations and approvals required by law to enter into execute, deliver and perform this Agreement, the Power of Attorney and the Custody Agreement; this . This Agreement, the Power of Attorney and the Custody Agreement has have been duly and validly authorizedauthorized (if applicable), executed and delivered by or on behalf of such Selling Stockholder and are and at all times through the Closing Date will be the legal, valid and binding agreements of such Selling Stockholder; , enforceable against such Selling Stockholder in accordance with their terms (except as such enforceability may be limited by applicable bankruptcy, insolvency, reorganization, or other similar laws relating to creditors' rights generally, and general equitable principles relating to the availability of remedies, and as rights to indemnity or contribution may be limited by state or federal securities laws and the public policy underlying such laws).
(e) The execution, delivery and performance of this 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 will not conflict with or result in a material breach or violation of any of the terms or provisions of, or constitute a material default (or result in acceleration of any obligation, termination of any right or creation of any lien or encumbrance) under, any material indenture, mortgage, deed of trust, loan 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 will such actions result in any violation of any the provisions of its the organizational documents of the Selling Stockholder (in the case of non-individual Selling Stockholdersif applicable) or 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 or the property or assets of the Selling Stockholder; and, except for the registration of the Stock Shares under the Securities Act and such consents, approvals, authorizations, registrations or qualifications as may be required by the NASD or under the Exchange Act, by the National Association of Securities Dealers, Inc. Act and under applicable state securities laws in connection with the purchase and distribution of the Stock Shares by the Underwriters, no consent, approval, authorization or order of, or filing or registration with, any such court or governmental agency or body is required for the execution, delivery and performance of this Agreement, 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.
(f) The Stock Registration Statement, each Preliminary Prospectus, the Prospectus, any amendment or supplement thereto, or any document incorporated by reference therein do not, and the Prospectus and any amendments or supplements to be sold or documents incorporated by reference in the Registration Statement or the Prospectus, when they become effective or are filed with the Commission or were first used to confirm sales of the Firm Shares, as the case may be, will not, contain any untrue statement of a material fact regarding the Selling Stockholder hereunder, which is represented by the certificates held in custody for the Selling Stockholder, is subject or omit to the interest of the Underwriters, the arrangements made by state any material fact regarding the Selling Stockholder for such custody are required to be stated therein or necessary to make the statements therein not misleading; provided, however, that extent irrevocable, no representation or warranty is made as to information contained in or omitted from the Registration Statement or the Prospectus in reliance upon and in conformity with written information furnished to the obligations of Company through the Selling Stockholder hereunder shall not be terminated Representatives by any act of the Selling Stockholder, by operation of law, by the death or incapacity on behalf of any individual 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 eventUnderwriter specifically for inclusion therein.
(g) The representations and warranties of such Selling Stockholder is not prompted to sell shares of Common Stock by any information concerning the Company that is not set forth in the Pricing Disclosure PackageCustody Agreement and the Power of Attorney, are, and on the Closing Date will be, true and correct.
(h) There is not pending or, to the knowledge of such Selling Stockholder, threatened against the Selling Stockholder any action, suit or proceeding which (i) questions the validity of this Agreement or of any action taken or to be taken by the Selling Stockholder pursuant to or in connection with this Agreement or (ii) is required to be disclosed in or incorporated by reference in the Registration Statement which is not so disclosed or incorporated.
(i) The Selling Stockholder has not taken and will not take, directly or indirectly, any action which is designed to stabilize or which has constituted manipulate the price of any security of the Company, or which might in the future reasonably be expected to cause or result in the stabilization or manipulation of the price of any security of the Company Company, to facilitate the sale or resale of the shares of Shares pursuant to the Stockdistribution contemplated by this Agreement.
Appears in 1 contract
Representations, Warranties and Agreements of the Selling Stockholders. Each Selling Stockholder severally representsStockholder, except for entities affiliated with Insight Venture Associates III, LLC, severally, but not jointly, represents and warrants to, and agrees with, the Underwriters that:
(a) Neither the Such Selling Stockholder nor any person acting on behalf has placed in custody under a custody agreement and power of attorney (the "CUSTODY AGREEMENT AND POWER OF ATTORNEY" and, together with all other similar agreements executed by the other Selling Stockholders, the "CUSTODY AGREEMENTS AND POWERS OF ATTORNEY") with [name of custodian], as custodian (the "CUSTODIAN"), for delivery under this Agreement, certificates in negotiable form (with signature guaranteed by a commercial bank or trust company having an office or correspondent in the United States or a member firm of the New York or American Stock Exchanges) representing the shares of Stock to be sold by such Selling Stockholder (other than, if applicable, the Company and the Underwriters) has used or referred to any “free writing prospectus” (as defined in Rule 405), relating to the Stock;hereunder.
(b) Such Selling Stockholder has duly and irrevocably executed and delivered a Custody Agreement and Power of Attorney appointing one or more persons, as attorneys-in-fact, with full power of substitution, and with full authority (exercisable by any one or more of them) to execute and deliver this Agreement and to take such other action as may be necessary or desirable to carry out the provisions hereof on behalf of such Selling Stockholder. Each Selling Shareholder severally, but not jointly, represents and warrants to, and agrees with, the Underwriters that:
(c) The Selling Stockholder has, has good and immediately prior valid title to any Delivery Date on which the Selling Stockholder is selling shares 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”) the securities convertible or exercisable into such shares of Stock Stock, to be sold by the Selling Stockholder hereunder on such date, and immediately prior to the First Delivery DateDate (as defined in Section 5 hereof) the Selling Stockholder will have good and valid title to the shares of Stock, in each case, free and clear of all liens, encumbrances, equities or claims; and upon delivery of such shares and payment therefor pursuant hereto, good and valid title to such shares, free and clear of all liens, encumbrances, equities or claims, will pass to the several Underwriters.
(c) 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 the Company, as custodian (the “Custodian”), for delivery under this Agreement, certificates in negotiable form (with signature guaranteed by a commercial bank or trust company having an office or correspondent in the United States or a member firm of the New York or American Stock Exchanges) representing the shares of Stock to be sold by the Selling Stockholder hereunder.
(d) The Selling Stockholder has duly and irrevocably executed and delivered a power of attorney (the “Power of Attorney” andfull right, together with all other similar agreements executed by the other Selling Stockholders, the “Powers of Attorney”) appointing Sxxxxxx X. Xxxxxxx and one or more other persons, as attorneys-in-fact, with full power of substitution, and with full authority (exercisable by any one or more of them) to execute and deliver this Agreement and to take such other action as may be necessary or desirable to carry out the provisions hereof on behalf of the Selling Stockholder.
(e) The Selling Stockholder has power and authority under its limited partnership or similar organization agreement to enter into this Agreement, the Power of Attorney and the Custody Agreement; this Agreement has been duly and validly authorizedPower of Attorney, executed and delivered by or on behalf of the Selling Stockholderwhere applicable; the execution, delivery and performance of this Agreement, the Power of Attorney and the Custody Agreement and the Power of Attorney, where applicable, by the Selling Stockholder and the consummation by the Selling Stockholder of the transactions contemplated hereby and thereby will not (i) conflict with or result in a material breach or violation of any of the terms or provisions of, or constitute a material default under, any indenture, mortgage, deed of trust, loan 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 will such actions (ii) result in any violation of the provisions of the charter, by-laws, the articles of partnership or any other organizational document of its organizational documents the Selling Stockholder (in the case of non-individual if such Selling StockholdersStockholder is not a natural person) or (iii) result in any material violation of the provisions 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 clause (i) and (iii) above where such conflicts, breaches, violations and defaults could not reasonably be expected to materially adversely affect such Selling Stockholder's ability to perform its obligations hereunder and under the Custody Agreement and Power of Attorney, as applicable; and, and except for the registration of the Stock under the Securities Act and such consents, approvals, authorizations, registrations or qualifications as may be required under the Exchange Act, by the National Association of Securities Dealers, Inc. Act and under applicable state securities laws in connection with the purchase and distribution of the Stock by the Underwriters, no consent, approval, authorization or order of, or filing or registration with, any such court or governmental agency or body is required for the execution, delivery and performance of this Agreement, the Custody Agreement and 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.
(fe) The Stock information with respect to such Selling Stockholder contained in the Registration Statement and the Prospectus and any further amendments or supplements to the Registration Statement or the Prospectus that is based upon information furnished in writing to the Company by such Selling Stockholder expressly for use therein does not contain any untrue statement of a material fact or omit to state any material fact required to be sold by stated therein or necessary to make the Selling Stockholder hereunder, which is represented by statements therein not misleading in the certificates held in custody for the Selling Stockholder, is subject to the interest case of the UnderwritersRegistration Statement, the arrangements made by the Selling Stockholder for such custody are to that extent irrevocable, and the obligations of the Selling Stockholder hereunder shall not be terminated by any act of the Selling Stockholder, by operation of law, by the death or incapacity of any individual Selling Stockholder orand, in the case of a trustthe Prospectus only, by not misleading in light of the death or incapacity of any executor or trustee or the termination of such trust, or the occurrence of any other eventcircumstances under which they were made.
(g) The Selling Stockholder is not prompted to sell shares of Common Stock by any information concerning the Company that is not set forth in the Pricing Disclosure Package.
(hf) The Selling Stockholder has not taken and will not take, directly or indirectly, any action which is designed to or which has constituted or 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 of the Stock.
Appears in 1 contract
Representations, Warranties and Agreements of the Selling Stockholders. Each 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 Underwriters) has used or referred to any “free writing prospectus” (as defined in Rule 405), relating to the Stock;
(b) The Selling Stockholder has, and immediately prior to any the First Delivery Date on which the Selling Stockholder is selling shares of Stock, (as defined in Section 5 hereof) the Selling Stockholder will have 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”) to the shares of 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 heretohereto and thereto, good and valid title to such shares, free and clear of all liens, encumbrances, equities or claims, will pass to the several Underwriters.U.S. Underwriters and International Managers;
(cb) 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 the Company[insert name of custodian], as custodian (the “"Custodian”"), for delivery under this Agreement and under the International Underwriting Agreement, 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 New York or American Stock Exchanges) representing the shares of Stock to be sold by the Selling Stockholder hereunder.;
(dc) The Selling Stockholder has duly and irrevocably executed and delivered a power of attorney (the “"Power of Attorney” " and, together with all other similar agreements executed by the other Selling Stockholders, the “"Powers of Attorney”") appointing Sxxxxxx X. Xxxxxxx the Custodian and one or more other persons, as attorneys-in-fact, with full power of substitution, and with full authority (exercisable by any one or more of them) to execute and deliver this Agreement and to take such other action as may be necessary or desirable to carry out the provisions hereof on behalf of the Selling Stockholder.;
(ed) The Selling Stockholder has full right, power and authority under its limited partnership or similar organization agreement to enter into this Agreement and the International Underwriting Agreement, the Power of Attorney and the Custody Agreement; this Agreement has been duly and validly authorized, executed and delivered by or on behalf of the Selling Stockholder; the execution, delivery and performance of this Agreement, the 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 will not conflict with or result in a material breach or violation of any of the terms or provisions of, or constitute a material default under, any indenture, mortgage, deed of trust, loan 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 will such actions result in any violation of any the provisions of its organizational documents the charter or by-laws of the Selling Stockholder (in the case of non-individual with respect to a Selling StockholdersStockholder that is a corporation) or 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 or the property or assets of the Selling Stockholder; and, except for the registration of the Stock under the Securities Act and such consents, approvals, authorizations, registrations or qualifications as may be required under the Exchange Act, by the National Association of Securities Dealers, Inc. Act and under applicable state or foreign securities laws in connection with the purchase and distribution of the Stock by the UnderwritersU.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.;
(e) The Registration Statement 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 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; provided that no representation or warranty is made as to information contained in or omitted from the Registration Statement or the Prospectus in reliance upon and in conformity with written information furnished to the Company through the Representatives by or on behalf of any U.S. Underwriter specifically for inclusion therein;
(f) The Stock Selling Stockholder has no reason to be sold by believe that the representations and warranties of the Company and the Selling Stockholder hereunder, which is represented by the certificates held Stockholders contained in custody for the Selling StockholderSection 1 hereof are not materially true and correct, is subject to familiar with the interest 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 Underwriters, the arrangements made by the Selling Stockholder for such custody are to that extent irrevocable, and the obligations of the Selling Stockholder hereunder shall not be terminated by any act of the Selling Stockholder, by operation of law, by the death or incapacity of any individual Selling Stockholder or, in the case of a trust, by the death or incapacity of any executor or trustee or the termination of such trustEffective Date, or the occurrence Prospectus (or any amendment or supplement thereto), as of any other event.
(g) The Selling Stockholder the applicable filing date, which has adversely affected or may adversely affect the business of the Company and is not prompted to sell shares of Common Stock by any information concerning the Company that which is not set forth in the Pricing Disclosure Package.Registration Statement and the Prospectus; and
(hg) The Selling Stockholder has not taken and will not take, directly or indirectly, any action which is designed to or which has constituted or 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 of the Stock.
Appears in 1 contract
Representations, Warranties and Agreements of the Selling Stockholders. Each 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 Underwriters) has used or referred to any “free writing prospectus” (as defined in Rule 405), relating to the Stock;
(b) The Selling Stockholder has, and immediately prior to any the First Delivery Date on which the Selling Stockholder is selling shares of Stock, the Selling Stockholder will have have, good and valid title to, or a valid “security entitlement” within to the meaning of Section 8-501 of the New York Uniform Commercial Code (the “UCC”) the shares of Stock Shares to be sold by the Selling Stockholder hereunder on such Delivery Datedate, free and clear of all liens, encumbrances, equities or claimsclaims (except such as may arise under this Agreement, the Custody Agreement and the Power of Attorney, each as defined below); and upon delivery of such shares Shares and payment therefor pursuant hereto, good and valid title to such sharesShares, free and clear of all liens, encumbrances, equities or claims, will pass to the several Underwriters.
(cb) The Selling Stockholder has placed in custody under a custody agreement (the “Custody Agreement” "CUSTODY AGREEMENT" and, together with all other similar agreements executed by the other Selling Stockholders, the “Custody Agreements”"CUSTODY AGREEMENTS") with [the Company], as custodian (the “Custodian”"CUSTODIAN"), for delivery under this Agreement, certificates in negotiable form (with signature guaranteed by a commercial bank or trust company having an office or correspondent in the United States or a member firm of the New York or American Stock Exchanges) representing the shares of Stock Shares to be sold by the Selling Stockholder hereunder.
(dc) The Selling Stockholder has duly and irrevocably executed and delivered a power of attorney (the “Power of Attorney” "POWER OF ATTORNEY" and, together with all other similar agreements executed by the other Selling Stockholders, the “Powers of Attorney”"POWERS OF ATTORNEY") appointing Sxxxxxx Xxxxxxx X. Xxxx and Xxxxxxx and one X. Xxxxxx, or more other personseither of them, as attorneys-in-fact, with full power of substitution, and with full authority (exercisable by any one or more of them) to execute and deliver this Agreement and to take such other action as may be necessary or desirable to carry out the provisions hereof on behalf of the Selling Stockholder.
(ed) The Selling Stockholder has full right, power and authority under its limited partnership or similar organization agreement to enter into this Agreement, the Power of Attorney and the Custody Agreement; this Agreement has been duly and validly authorized, executed and delivered by or on behalf of the Selling Stockholder; the execution, delivery and performance of this Agreement, the Power of Attorney and the Custody Agreement by the Selling Stockholder, the compliance by the Selling Stockholder with all of the applicable provisions of this Agreement, the Power of Attorney and the Custody Agreement, and the consummation by the each Selling Stockholder of the transactions contemplated hereby and thereby will not conflict with or (i) result in a material breach or violation of any of the terms or provisions of, or constitute a material default under, any indenture, mortgage, deed of trust, loan 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 will except where such actions breach, violation or default would not adversely affect the Selling Stockholder's ability to perform its obligations under this Agreement, the Power of Attorney and the Custody Agreement, (ii) if the Selling Stockholder is not a natural person, result in any violation of any the provisions of its organizational the charter or bylaws, articles of partnership, deed of trust or other organization documents of the Selling Stockholder or (iii) result in the case of non-individual Selling Stockholders) or 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 or the property any of its properties or assets of the Selling Stockholderassets; and, except for the registration of the Stock Shares under the Securities Act and such consents, approvals, authorizations, registrations or qualifications as may be required under the Exchange Act, by the National Association of Securities Dealers, Inc. and under applicable state or foreign securities laws in connection with the purchase and distribution of the Stock Shares by the Underwriters, the rules of the Nasdaq Stock Market, Inc. or the rules of the NASD, 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, the compliance by the Selling Stockholder with all of the applicable provisions of this Agreement, the Power of Attorney and the Custody Agreement, and the consummation by the Selling Stockholder of the transactions contemplated hereby and thereby, except for such consents, approvals, authorizations, orders, filings or registrations as have been obtained or made.
(e) To the extent that any statements or omissions made in the Registration Statement, any Preliminary Prospectus, the Prospectus or any amendment or supplement thereto are made in reliance upon and in conformity with written information furnished to the Company by such Selling Stockholder expressly for use therein, such Preliminary Prospectus and the Registration Statement did not, 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 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.
(f) The Stock to be sold by the Selling Stockholder hereunder, which is represented by the certificates held in custody for the Selling Stockholder, is subject to the interest of the Underwriters, the arrangements made by the Selling Stockholder for such custody are to that extent irrevocable, and the obligations of the Selling Stockholder hereunder shall not be terminated by any act of the Selling Stockholder, by operation of law, by the death or incapacity of any individual 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.
(g) The Selling Stockholder is not prompted to sell shares of Common Stock the Shares by any information concerning the Company that is not set forth in the Pricing Disclosure PackageRegistration Statement and the Prospectus.
(hg) The Selling Stockholder has not taken and will not take, directly or indirectly, any action which is designed to or which has constituted or 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 Shares.
(h) This Agreement has been duly authorized (if applicable), executed and delivered by or on behalf of the StockSelling Stockholder.
Appears in 1 contract
Representations, Warranties and Agreements of the Selling Stockholders. Each of the Xxxxxx Selling Stockholder Stockholders and Xx. Xxxxx, to the extent that Xx. Xxxxx sells shares pursuant to the Underwriters' options to purchase the Option Stock, 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 Underwriters) has used or referred to any “free writing prospectus” (as defined in Rule 405), relating to the Stock;
(b) The Such Selling Stockholder has, and immediately prior to any the First Delivery Date on which the Selling Stockholder is selling shares of Stock, the such Selling Stockholder will have have, good and valid marketable title to, or a valid “security entitlement” within the meaning of Section 8-501 of the New York Uniform Commercial Code (the “UCC”) to the shares of Stock to be sold by the such 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 heretohereto and thereto, good and valid marketable title to such shares, free and clear of all liens, encumbrances, equities or claimsclaims except those that may be created by the Underwriters, will pass to the several Underwriters.
(cb) The Such Selling Stockholder has placed in custody under duly executed and delivered a custody agreement (the “"Custody Agreement” and, together with all other similar agreements executed by the other Selling Stockholders, the “Custody Agreements”") with the Company, as custodian (the “"Custodian”)") and such Selling Stockholder has placed in custody under the Custody Agreement with the Custodian, for delivery under this Agreement, certificates in negotiable form (with signature guaranteed by a commercial bank or trust company having an office or correspondent in the United States or a member firm of the New York or American Stock Exchanges) representing the shares of Stock to be sold by the such Selling Stockholder hereunder.
(dc) The Such Selling Stockholder has duly and irrevocably executed and delivered a power of attorney (the “"Power of Attorney” and, together with all other similar agreements executed by the other Selling Stockholders, the “Powers of Attorney”") appointing Sxxxxxx X. Xxxxxxx the Custodian and one or more other persons, as attorneys-in-fact, with full power of substitution, and with full authority (exercisable by any one or more of them) to execute and deliver this Agreement and to take such other action as may be necessary or desirable to carry out the provisions hereof on behalf of the such Selling Stockholder.
(ed) The Such Selling Stockholder has full right, power and authority under its limited partnership or similar organization agreement to enter into this Agreement, the Power of Attorney and the Custody Agreement; this Agreement has been duly and validly authorized, executed and delivered by or on behalf of the Selling Stockholder; the execution, delivery and performance of this Agreement, the Power of Attorney and the Custody Agreement by the such Selling Stockholder and the consummation by the such Selling Stockholder of the transactions contemplated hereby and thereby will not conflict with or result in constitute a material breach or violation of any of the terms or provisions of, or constitute a material default under, any indenture, mortgage, deed of trust, loan agreement or other agreement or instrument to which the such Selling Stockholder is a party or by which the such Selling Stockholder is bound or to which any of the property or assets of the such Selling Stockholder is subject, nor will such actions result in any violation of any the provisions of its organizational documents (in the case charter or bylaws or certificate of non-individual formation or partnership agreement or the articles of partnership, as applicable, of the Selling Stockholders) Stockholder or any material violation of any statute or any order, rule or regulation of any court or governmental agency or body having jurisdiction over the such Selling Stockholder or the property or assets of the such Selling Stockholder; and, except for the registration of the Stock under the Securities Act and such consents, approvals, authorizations, registrations or qualifications as may be required under the Exchange Act, by the National Association of Securities Dealers, Inc. Act and under applicable state [or foreign] securities laws in connection with the purchase and distribution of the Stock by the Underwriters, no consent, approval, authorization or order of, or filing or registration with, any such court or governmental agency or body is required for the execution, delivery and performance of this Agreement, the Power of Attorney or the Custody Agreement by the such Selling Stockholder and the consummation by the such Selling Stockholder of the transactions contemplated hereby and thereby.
(fe) The Stock Registration Statement and the Prospectus and any further amendments or supplements to the Registration Statement or the Prospectus, when they become effective or are filed with the Commission, as the case may be, do not and will not, as of the applicable Effective Date (as to the Registration Statement and any amendment thereto) and as of the applicable filing date (as to the Prospectus and any amendment or supplement thereto) contain an untrue statement of a material fact or omit to state a material fact required to be sold by stated therein or necessary to make the statements therein not misleading; provided that this representation and warranty is made only as to information contained in or omitted from the Registration Statement or the Prospectus under the caption "Selling Stockholder hereunder, which is represented by the certificates held in custody for the Stockholders" relating to such Selling Stockholder, is subject to the interest of the Underwriters, the arrangements made by the Selling Stockholder for such custody are to that extent irrevocable, and the obligations of the Selling Stockholder hereunder shall not be terminated by any act of the Selling Stockholder, by operation of law, by the death or incapacity of any individual 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.
(gf) The Selling Stockholder is not prompted to sell shares of Common Stock by any information concerning the Company that is not set forth in the Pricing Disclosure Package.
(h) The Such Selling Stockholder has not taken and will not take, directly or indirectly, any action which is designed to or which has constituted or 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 of the Stock.
Appears in 1 contract
Samples: Underwriting Agreement (L 3 Communications Holdings Inc)
Representations, Warranties and Agreements of the Selling Stockholders. Each 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 Underwriters) has used or referred to any “free writing prospectus” (as defined in Rule 405), relating to the Stock;
(b) The Selling Stockholder has, and immediately prior to any the First Delivery Date on which the Selling Stockholder is selling shares of Stock, (as defined in Section 5 hereof) 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”) to the shares of 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, will pass to the several Underwriters.
(cb) 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 the Company[name of custodian], as custodian (the “Custodian”), for delivery under this Agreement, certificates in negotiable form (with signature guaranteed by a commercial bank or trust company having an office or correspondent in the United States or a member firm of the New York or American Stock Exchanges) representing the shares of Stock to be sold by the Selling Stockholder hereunder.
(dc) The Selling Stockholder has duly and irrevocably executed and delivered a power of attorney (the “Power of Attorney” and, together with all other similar agreements executed by the other Selling Stockholders, the “Powers of Attorney”) appointing Sxxxxxx X. Xxxxxxx the Custodian and one or more other persons, as attorneys-in-fact, with full power of substitution, and with full authority (exercisable by any one or more of them) to execute and deliver this Agreement and to take such other action as may be necessary or desirable to carry out the provisions hereof on behalf of the Selling Stockholder.
(ed) The Selling Stockholder has full right, power and authority under its limited partnership or similar organization agreement to enter into this Agreement, the Power of Attorney and the Custody Agreement; this Agreement has been duly and validly authorized, executed and delivered by or on behalf of the Selling Stockholder; the execution, delivery and performance of this 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 will not conflict with or result in a material breach or violation of any of the terms or provisions of, or constitute a material default under, any indenture, mortgage, deed of trust, loan 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 will such actions result in any violation of the provisions of the charter, by-laws, the articles of partnership or any other organizational document of its organizational documents the Selling Stockholder (in the case of non-individual if such Selling StockholdersStockholder is not a natural person) or 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 or the property or assets of the Selling Stockholder; and, except for the registration of the Stock under the Securities Act and such consents, approvals, authorizations, registrations or qualifications as may be required under the Exchange Act, by the National Association of Securities Dealers, Inc. Act and under applicable state securities laws in connection with the purchase and distribution of the Stock by the Underwriters, no consent, approval, authorization or order of, or filing or registration with, any such court or governmental agency or body 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.
(fe) The Stock Registration Statement and the Prospectus and any further amendments or supplements to the Registration Statement or the Prospectus do not and will not, as of the applicable effective date (as to the Registration Statement and any amendment thereto) and as of the applicable filing date (as to the Prospectus and any amendment or supplement thereto), contain an untrue statement of a material fact or omit to state a material fact required to be sold by stated therein or necessary to make the Selling Stockholder hereunder, which statements therein not misleading; provided that no representation or warranty is represented by made as to information contained in or omitted from the certificates held Registration Statement or the Prospectus in custody for the Selling Stockholder, is subject reliance upon and in conformity with written information furnished to the interest of Company through the Underwriters, the arrangements made Representatives by the Selling Stockholder for such custody are to that extent irrevocable, and the obligations of the Selling Stockholder hereunder shall not be terminated by any act of the Selling Stockholder, by operation of law, by the death or incapacity on behalf of any individual 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 eventUnderwriter specifically for inclusion therein.
(gf) 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 effective date, or the Prospectus (or any amendment or supplement thereto), as of the applicable filing date, which has adversely affected or may adversely affect the business of the Company and is not prompted to sell shares of Common Stock by any information concerning the Company that which is not set forth in the Pricing Disclosure PackageRegistration Statement and the Prospectus.
(hg) The Selling Stockholder has not taken and will not take, directly or indirectly, any action which is designed to or which has constituted or 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 of the Stock.
Appears in 1 contract
Representations, Warranties and Agreements of the Selling Stockholders. Each Selling Stockholder Stockholder, severally representsand not jointly, represents and warrants to, and agrees thatwith, each Underwriter:
(a) Neither the such Selling Stockholder nor any person acting on behalf of the such Selling Stockholder (other than, if applicable, the Company and the Underwriters) has used or referred to any “free writing prospectus” (as defined in Rule 405), ) relating to the Stock in connection with the offering of the Stock;.
(b) The Such Selling Stockholder hasis, and immediately prior to any Delivery Date on which the such Selling Stockholder is selling shares of Stock, the such Selling Stockholder will have good be, the sole and valid title tolawful owner of (i) in the case of a Selling Stockholder other than BHC Interim Funding III, L.P. (“BHC”), (X) a certificate or a valid “security entitlement” within the meaning of Section 8-501 of the New York Uniform Commercial Code (the “UCC”) certificates registered in its name or book entry notation evidencing the shares of Stock to be sold by the such Selling Stockholder hereunder on such Delivery Date, (Y) an option or options registered in its name that are exercisable for the shares of Stock to be sold by such Selling Stockholder hereunder on such Delivery Date or (Z) a combination of such certificates, book entry shares and options, and (ii) in the case of BHC, a warrant or warrants registered in its name that are exercisable for the shares of Stock to be sold by BHC, in each case free and clear of all liens, encumbrances, equities equities, community property rights, restrictions on transfer 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 except for any liens, encumbrances, equities or claimsclaims arising under the Custody Agreement and, will pass to in the several Underwriterscase of the Company’s employee stock ownership plan (the “ESOP”), those in favor of ESOP participants.
(c) The Stock to be sold by such Selling Stockholder hereunder, which is represented by the certificates or book entry shares or exercisable options (or, in the case of BHC, which is issuable upon exercise of warrants) held in custody for such Selling Stockholder, is subject to the interest of the Underwriters and the other Selling Stockholders thereunder, the arrangements made by such Selling Stockholder for such custody are to that extent irrevocable, and the obligations of such Selling Stockholder hereunder shall not be terminated by any act of such Selling Stockholder, by operation of law, by the death or incapacity of such Selling Stockholder (if such Selling Stockholder is an individual) or, if such Selling Stockholder is 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 (except, in the case of the ESOP, as may otherwise be required by applicable law).
(d) Upon payment for the Stock to be sold by such Selling Stockholder as provided in this Agreement, delivery of such Stock, as directed by the Underwriters, to Cede & Co. (“Cede”) or such other nominee as may be designated by The Depository Trust Company (“DTC”), registration of such Stock in the name of Cede or such other nominee and the crediting of such Stock on the books of DTC to “securities accounts” (as defined in Section 8-501(a) of the New York Uniform Commercial Code) (the “UCC”)) of the Underwriters maintained with DTC (assuming that neither DTC nor any such Underwriter has “notice of an adverse claim”) (within the meaning of Section 8-105 of the UCC) to such Stock), (i) DTC shall be a “protected purchaser” of such Stock within the meaning of Section 8-303 of the UCC, (ii) under Section 8-501 of the UCC, the Underwriters will acquire a “security entitlement” (within the meaning of UCC Section 8-102(a)(17)) in respect of such Stock and (iii) no action based on any “adverse claim” (within the meaning of Section 8-102(a)(1) of the UCC), to such Stock may be successfully asserted against the Underwriters with respect to such security entitlement. For purposes of this representation, such Selling Stockholder may assume that when such payment, delivery and crediting occur, (A) such 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, bylaws and applicable law, (B) DTC will be registered as a “clearing corporation” (within the meaning of Section 8-102(a)(5)) of the UCC and (C) appropriate entries to the accounts of the several Underwriters on the records of DTC will have been made pursuant to the UCC.
(e) Such Selling Stockholder (other than BHC) has placed in custody under a custody agreement and irrevocable power of attorney (the “Custody Agreement” and, together with all other similar agreements executed by the other Selling Stockholders, the “Custody Agreements”) with the American Stock Transfer & Trust Company, as custodian (the “Custodian”), for delivery under this Agreement, certificates (i) shares in negotiable form certificate form, each accompanied by a duly executed stock power or stock powers in blank bearing the signature of such Selling Stockholder (with signature guaranteed by a commercial bank or trust company having an office or correspondent participant in the United States or a member firm of Securities Transfer Agents Medallion Program, the New York Stock Exchange Medallion Signature Program or American the Stock ExchangesExchange Medallion Program or otherwise verified in a manner reasonably satisfactory to counsel to the Underwriters); (ii) shares in book-entry form, each accompanied by a duly executed stock power or stock powers in blank bearing the signature of such Selling Stockholder so guaranteed; (iii) a notice or notices of option exercise duly executed and completed by such Selling Stockholder in accordance with the terms of the options, together with a duly executed stock power or stock powers in blank, bearing the signature of such Selling Stockholder so guaranteed, with respect to the shares underlying such options or (iv) a combination of clauses (i), (ii) and (iii) above representing, in the aggregate, the shares of Stock. BHC has placed in custody under a Custody Agreement with the Custodian a number of warrants sufficient to effect a cashless exercise thereof for the shares of Stock to be sold by it hereunder, together with a notice of cashless warrant exercise duly executed and completed by it in accordance with the terms of the warrants and representing the shares of Stock to be sold by BHC hereunder and a duly executed stock power or stock powers in blank bearing the Selling Stockholder hereundersignature of BHC (with signature guaranteed by a participant in the Securities Transfer Agents Medallion Program, the New York Stock Exchange Medallion Signature Program or the Stock Exchange Medallion Program or otherwise verified in a manner reasonably satisfactory to counsel to the Underwriters).
(df) The Pursuant to the Custody Agreement, such Selling Stockholder has duly appointed Xxxxxx X. Xxxx and irrevocably executed and delivered a power of attorney (the “Power of Attorney” and, together with all other similar agreements executed by the other Selling Stockholders, the “Powers of Attorney”) appointing Sxxxxxx Xxxxxxxx X. Xxxxxxx and one or more other persons, as such Selling Stockholder’s attorneys-in-factfact (each, an “Attorney-in-Fact”), with full power of substitution, and with full authority (exercisable by any one or more of them) to approve the form and terms of, execute and deliver this Agreement on behalf of such Selling Stockholder and to take such other action as may be necessary or desirable to carry out the provisions hereof on behalf of the such Selling Stockholder.
(eg) The If such Selling Stockholder is a corporation or other entity, such Selling Stockholder has full right, power and authority under its limited partnership authority, as such corporation or similar organization agreement other entity, as the case may be, to enter into this Agreement, the Power of Attorney Agreement and the Custody Agreement; this .
(h) This Agreement has been duly and validly authorizedauthorized (if such Selling Stockholder is a corporation or other entity), executed and delivered by or on behalf of the Selling Stockholder; .
(i) The Custody Agreement has been duly and validly authorized (if such Selling Stockholder is a corporation or other entity), executed and delivered by or on behalf of such Selling Stockholder and constitutes a valid and legally binding obligation of such Selling Stockholder, enforceable against such Selling Stockholder in accordance with their terms, subject to (i) the executioneffects 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, and except as rights to indemnity thereunder may be limited by applicable law.
(j) The execution and delivery and performance of this Agreement, the Power of Attorney Agreement and the Custody Agreement by such Selling Stockholder and the sale of the Stock to be sold by such 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 material breach or violation of any of the terms or provisions of, or constitute a material default under, any material indenture, mortgage, deed of trust, loan agreement agreement, license or other agreement or instrument to which the such Selling Stockholder is a party or by which the such Selling Stockholder is bound or to which any of the property or assets of the such Selling Stockholder is subject, nor will such actions (ii) result in any violation of the provisions of the charter or by-laws (or similar organizational documents) of such Selling Stockholder, if such Selling Stockholder is an entity other than a trust, (iii) result in any violation of its the provisions of the certificate of trust or trust agreement (or similar organizational documents documents) of such Selling Stockholder, if such Selling Stockholder is a trust, or (iv) result in the case of non-individual Selling Stockholders) or any material violation of any statute or any order, rule or regulation of any court or governmental agency or body having jurisdiction over the such Selling Stockholder or the property or assets of the such Selling Stockholder, except for any such conflict, breach, violation or default as would not reasonably be expected to adversely affect the sale of the Stock to be sold by such Selling Stockholder hereunder; andprovided that (A) such Selling Stockholder hereby waives for the benefit of the Company and the Underwriters any breach or violation referred to in clauses (i) through (iv); (B) no representation, warranty or agreement is made with respect to securities laws; and (C) rights to indemnity and contribution may be limited by applicable law.
(k) No consent, approval, authorization or order of, or filing or registration with, any court or governmental agency or body having jurisdiction over such Selling Stockholder or the property or assets of such Selling Stockholder is required to be obtained or made by such Selling Stockholder for the execution, delivery and performance of this Agreement or the Custody Agreement by such Selling Stockholder and the consummation by such Selling Stockholder of the transactions contemplated hereby and thereby, except for the registration of the Stock under the Securities Act and such consents, approvals, authorizations, orders, filings, registrations or qualifications as may be required under the Exchange Act, by the National Association of Securities Dealers, Inc. and under applicable state or foreign securities laws in connection with the purchase and distribution sale of the Stock by the Underwriters, no consent, approval, authorization Underwriters or order of, or filing or registration with, any such court or governmental agency or body is required for under 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 therebyExchange Act.
(fl) The Stock to be sold by To the Selling Stockholder hereunder, which is represented by the certificates held in custody for the knowledge of such 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, warranty or agreement is subject made except as to information contained in or omitted from the Registration Statement in reliance upon and in conformity with written information furnished to the interest Company by or on behalf of the Underwriters, the arrangements made by the such Selling Stockholder specifically for inclusion therein, which information is specified in Section 10(g).
(m) To the knowledge of such custody are to that extent irrevocable, and the obligations of the Selling Stockholder hereunder shall not be terminated by any act of the Selling Stockholder, by operation the Prospectus will not, as of lawits date or as of the applicable Delivery Date, by contain an untrue statement of a material fact or omit to state a material fact necessary to make the death or incapacity of any individual Selling Stockholder orstatements therein, in the case light of a trustthe circumstances under which they were made, not misleading; provided that no representation, warranty or agreement is made except 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 death or incapacity of any executor or trustee or the termination on behalf of such trustSelling Stockholder specifically for inclusion therein, or the occurrence of any other eventwhich information is specified in Section 10(g).
(gn) To the knowledge of such 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 necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading; provided that no representation, warranty or agreement is made except 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 by or on behalf of such Selling Stockholder specifically for inclusion therein, which information is specified in Section 10(g).
(o) To the knowledge of such Selling Stockholder, the Pricing Disclosure Package, when taken together with each Issuer Free Writing Prospectus listed in Schedule 5 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, warranty or agreement is made except as to information contained in or omitted from the Pricing Disclosure Package (or any Issuer Free Writing Prospectus listed in Schedule 5 hereto) 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, which information is specified in Section 10(g).
(p) The Selling Stockholder is not prompted to sell shares of Common Stock by any material information concerning the Company that is not set forth in the Pricing Disclosure PackageRegistration Statement.
(hq) The Selling Stockholder has not taken and will not taketaken, directly or indirectly, any action which that is designed to or which that has constituted or which might that would reasonably be expected to cause or result in the stabilization or manipulation of the price of any security of the Company to facilitate in connection with the sale or resale offering of the shares of the Stock. Any certificate signed by any Selling Stockholder and delivered to the Representatives or counsel for the Underwriters pursuant to this Agreement shall be deemed a representation and warranty by such Selling Stockholder, severally and not jointly, to the Underwriters, as to matters covered thereby, to each Underwriter.
Appears in 1 contract
Representations, Warranties and Agreements of the Selling Stockholders. 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 UnderwritersUnderwriter) has used or referred to any “free writing prospectus” (as defined in Rule 405), relating to the Stock;
(b) The Selling Stockholder has, has duly and immediately prior to any Delivery Date on which the Selling Stockholder is selling shares irrevocably executed and delivered or will duly and irrevocably execute and deliver a power of Stock, the Selling Stockholder will have good attorney 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”) the 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; and upon delivery of such shares and payment therefor pursuant hereto, good and valid title to such shares, free and clear of all liens, encumbrances, equities or claims, will pass to the several Underwriters.
(c) The Selling Stockholder has placed in custody under a custody agreement (the “Power of Attorney and Custody Agreement” and, together with all other similar agreements executed by the other Selling Stockholders, the “Custody Agreements”) with the appointing American Stock Transfer & Trust Company, as custodian (the “Custodian”), for delivery under this Agreement, certificates in negotiable form (with signature guaranteed by a commercial bank or trust company having an office or correspondent in the United States or a member firm of the New York or American Stock Exchanges) representing the shares of Stock to be sold by the Selling Stockholder hereunder.
(d) The Selling Stockholder has duly and irrevocably executed and delivered a power of attorney (the “Power of Attorney” and, together with all other similar agreements executed by the other Selling Stockholders, the “Powers of Attorney”) appointing Sxxxxxx X. Xxxxxxx and one or more other persons, persons as attorneys-in-fact, with full power of substitution, and with full authority (exercisable by any one or more of them) to execute and deliver this Agreement and to take such other action actions as may be necessary or desirable to carry out the provisions hereof on behalf of the Selling Stockholder.
(ec) The Selling Stockholder has power has, and authority under its limited partnership or similar organization agreement immediately prior to enter into this Agreement, the Power of Attorney and the Custody Agreement; this Agreement has been duly and validly authorized, executed and delivered by or any Delivery Date on behalf of the Selling Stockholder; the execution, delivery and performance of this 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 will not conflict with or result in a material breach or violation of any of the terms or provisions of, or constitute a material default under, any indenture, mortgage, deed of trust, loan agreement or other agreement or instrument to which the Selling Stockholder is a party or by which selling shares of Stock, the Selling Stockholder is bound will have, good and valid title to, or to which any a valid “security entitlement” within the meaning of Section 8-501 of the property or assets of New York Uniform Commercial Code (the Selling Stockholder is subject, nor will such actions result “UCC”) in any violation of any of its organizational documents (in the case of non-individual Selling Stockholders) or 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 or the property or assets of the Selling Stockholder; and, except for the registration of the Stock under the Securities Act and such consents, approvals, authorizations, registrations or qualifications as may be required under the Exchange Act, by the National Association of Securities Dealers, Inc. and under applicable state securities laws in connection with the purchase and distribution of the Stock by the Underwriters, no consent, approval, authorization or order respect of, or filing or registration with, any such court or governmental agency or body is required for the execution, delivery and performance shares of this Agreement, the Power of Attorney or the Custody Agreement Stock to be sold by the Selling Stockholder hereunder on such Delivery Date, free and the consummation by the Selling Stockholder clear of the transactions contemplated hereby and therebyall liens, encumbrances, equities or claims.
(fd) The Stock to be sold by the Selling Stockholder hereunder, which is or will be represented by the certificates held in custody for the Selling Stockholder, is subject to the interest of the UnderwritersUnderwriter, the arrangements made by the Selling Stockholder for such custody are to that extent irrevocable, and the obligations of the Selling Stockholder hereunder shall not be terminated by any act of the Selling Stockholder, by operation of law, by the death or incapacity of any individual 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, law or the occurrence of any other event.
(e) Upon payment for the Stock to be sold by such Selling Stockholder, delivery of such 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 Stock in the name of Cede or such other nominee and the crediting of such Stock on the books of DTC to securities accounts of the Underwriter (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 Stock), (i) DTC shall be a “protected purchaser” of such 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 Stock and (iii) no action based on any “adverse claim,” within the meaning of Section 8-102 of the UCC, to such Stock may be asserted against the Underwriter with respect to such security entitlement. For purposes of this representation, 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 certificate of incorporation, bylaws and applicable law, (B) DTC will be registered as a “clearing corporation” within the meaning of Section 8-102 of the UCC and (C) appropriate entries to the accounts of the Underwriter on the records of DTC will have been made pursuant to the UCC.
(f) This Agreement has been duly and validly authorized, executed and delivered by or on behalf of the Selling Stockholder.
(g) The Selling Stockholder has full right, power and authority, corporate or otherwise, to enter into this Agreement and the Power of Attorney and Custody Agreement; the execution, delivery and performance of this Agreement and the Power of Attorney and Custody Agreement by the Selling Stockholder and the consummation by the Selling Stockholder of the transactions contemplated hereby do not and will not (i) conflict with or result in a breach or violation of any of the terms or provisions of, or constitute a default under, any indenture, mortgage, deed of trust, loan agreement, license or other agreement or instrument to which the Selling 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.
(h) 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 and the Power of Attorney and Custody Agreement by the Selling Stockholder and the consummation by the Selling Stockholder of the transactions contemplated hereby, except for the registration of the Stock under the Securities Act and such consents, approvals, authorizations, registrations or qualifications as may be required under the Exchange Act and applicable state securities laws in connection with the purchase and sale of the Stock by the Underwriter.
(i) To the knowledge of the Selling Stockholder, the Registration Statement, the Prospectus and the Pricing Disclosure Package and any further amendments or supplements to the Registration Statement, the Prospectus and the Pricing Disclosure Package do not and will not, as of the applicable effective date (as to the Registration Statement and any amendment thereto), as of its date and the applicable delivery date (as to the Prospectus and any amendment or supplement thereto) and as of the Applicable Time (as to the Pricing Disclosure Package), 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 or the Prospectus or 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.
(j) The Selling Stockholder has no actual knowledge of facts or other information to that would lead it to believe that the representations and warranties of the Company contained in Section 1 hereof are not materially true and correct.
(k) The Selling Stockholder is not prompted to sell shares of Common Stock by any information concerning the Company that is not set forth in the Pricing Disclosure PackagePackage or any documents incorporated by reference therein.
(hl) To the actual knowledge of the Selling Stockholder, 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.
(m) The Selling Stockholder has not taken and will not take, directly or indirectly, any action which that is designed to or which that has constituted or which might that could reasonably be expected to cause or result in the stabilization or manipulation of the price of any security of the Company to facilitate the sale or resale of the shares of the Stock. Any certificate signed by any Selling Stockholder and delivered to the Underwriter or counsel for the Underwriter in connection with the offering of the Stock shall be deemed a representation and warranty by such Selling Stockholder, as to matters covered thereby, to each Underwriter.
Appears in 1 contract
Representations, Warranties and Agreements of the Selling Stockholders. Each 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 Underwriters) has used or referred to any “free writing prospectus” (as defined in Rule 405), relating to the Stock;
(b) The Selling Stockholder has, and immediately prior to any the First Delivery Date on which the Selling Stockholder is selling shares of Stock(as defined in Section 5 hereof), the Selling Stockholder will have 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”) to the shares of 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, will pass to the several Underwriters.
(cb) 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 the Harrxx Xxxst Company, as custodian (the “"Custodian”"), for delivery under this Agreement, certificates in negotiable form (with signature guaranteed by a commercial bank or trust company having an office or correspondent in the United States or a member firm of the New York or American Stock ExchangesExchange) representing the shares of Stock to be sold by the Selling Stockholder hereunder.
(dc) The Selling Stockholder has duly and irrevocably executed and delivered a power of attorney (the “"Power of Attorney” " and, together with all other similar agreements executed by the other Selling Stockholders, the “"Powers of Attorney”") appointing Sxxxxxx X. Xxxxxxx the Custodian and one or more other persons, as attorneys-in-fact, with full power of substitution, and with full authority (exercisable by any one or more of them) to execute and deliver this Agreement and to take such other action as may be necessary or desirable to carry out the provisions hereof on behalf of the Selling Stockholder.
(ed) The Selling Stockholder has full right, power and authority under its limited partnership or similar organization agreement to enter into this Agreement, the Power of Attorney and the Custody Agreement; this Agreement has been duly and validly authorized, executed and delivered by or on behalf of the Selling Stockholder; the execution, delivery and performance of this 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 will not conflict with or result in a material breach or violation of any of the terms or provisions of, or constitute a material default under, any indenture, mortgage, deed of trust, loan 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 will such actions result in any violation of any of its organizational documents (in the case of non-individual Selling Stockholders) or 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 or the property or assets of the Selling Stockholder; and, except for the registration of the Stock under the Securities Act and such consents, approvals, authorizations, registrations or qualifications as may be required under the Exchange Act, by the National Association of Securities Dealers, Inc. and under applicable state securities laws in connection with the purchase and distribution of the Stock by the Underwriters, no consent, approval, authorization or order of, or filing or registration with, any such court or governmental agency or body 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.
(f) The Stock to be sold by the Selling Stockholder hereunder, which is represented by the certificates held in custody for the Selling Stockholder, is subject to the interest of the Underwriters, the arrangements made by the Selling Stockholder for such custody are to that extent irrevocable, and the obligations of the Selling Stockholder hereunder shall not be terminated by any act of the Selling Stockholder, by operation of law, by the death or incapacity of any individual 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.
(g) The Selling Stockholder is not prompted to sell shares of Common Stock by any information concerning the Company that is not set forth in the Pricing Disclosure Package.
(h) The Selling Stockholder has not taken and will not take, directly or indirectly, any action which is designed to or which has constituted or 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 of the Stock.to
Appears in 1 contract
Representations, Warranties and Agreements of the Selling Stockholders. Each Selling Stockholder severally representsStockholder, except for Insight Capital Partners III, L.P., Insight Capital Partners (Cayman) III, L.P. and Insight Capital Partners III – Co-Investors (each an “Insight Entity” and collectively, the “Insight Entities”) and UBS Capital II LLC (“UBS Capital”), severally, but not jointly, represents and warrants to, and agrees with, the Underwriters that:
(a) Neither the Selling Stockholder nor any person acting on behalf of the Selling Stockholder (other than, if applicable, the Company and the Underwriters) has used or referred to any “free writing prospectus” (as defined in Rule 405), relating to the Stock;
(b) The Selling Stockholder has, and immediately prior to any Delivery Date on which the Selling Stockholder is selling shares 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”) the 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; and upon delivery of such shares and payment therefor pursuant hereto, good and valid title to such shares, free and clear of all liens, encumbrances, equities or claims, will pass to the several Underwriters.
(c) The Such Selling Stockholder has placed in custody under a power of attorney and custody agreement (the “Custody AgreementAgreement and Power of Attorney” and, together with all other similar agreements executed by the other Selling Stockholders, the “Custody AgreementsAgreements and Powers of Attorney”) with the Company, as custodian (the “Custodian”), for delivery under this Agreement, certificates in negotiable form (with signature guaranteed by a commercial bank or trust company having an office or correspondent in the United States or a member firm of the New York or American Stock Exchanges) representing the shares of Stock to be sold by the such Selling Stockholder hereunder.
(db) The Such Selling Stockholder has duly and irrevocably executed and delivered a power of attorney (the “Custody Agreement and Power of Attorney” and, together with all other similar agreements executed by the other Selling Stockholders, the “Powers of Attorney”) Attorney appointing Sxxxxxx X. Xxxxxxx and one or more other persons, as attorneys-in-fact, with full power of substitution, and with full authority (exercisable by any one or more of them) to execute and deliver this Agreement and to take such other action as may be necessary or desirable to carry out the provisions hereof on behalf of the such Selling Stockholder.. Each Selling Stockholder severally, but not jointly, represents and warrants to, and agrees with, the Underwriters that:
(ec) The Selling Stockholder has valid title to all shares of Stock, or securities convertible or exercisable into such shares of Stock, to be sold by such Selling Stockholder under this Agreement, and immediately prior to or simultaneously with the First Delivery Date (as defined in Section 5 hereof) the Selling Stockholder will have valid title to the shares of Stock to be sold by such Selling Stockholder under this Agreement, in each case, free and clear of all liens, encumbrances, equities or claims; and upon delivery of such shares and payment therefor pursuant hereto, valid title to such shares, free and clear of all liens, encumbrances, equities or claims, will pass to the several Underwriters.
(d) The Selling Stockholder has full right, power and authority under its limited partnership or similar organization agreement to enter into this Agreement, the Power of Attorney Agreement and the Custody Agreement; this Agreement has been duly and validly authorizedPower of Attorney, executed and delivered by or on behalf of the Selling Stockholderwhere applicable; the execution, delivery and performance of this Agreement, the Power of Attorney Agreement and the Custody Agreement and Power of Attorney, where applicable, by the Selling Stockholder and the consummation by the Selling Stockholder of the transactions contemplated hereby and thereby will not (i) conflict with or result in a material breach or violation of any of the terms or provisions of, or constitute a material default under, any indenture, mortgage, deed of trust, loan 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 will such actions (ii) result in any violation of the provisions of the charter, by-laws, the articles of partnership or any other organizational document of its organizational documents the Selling Stockholder (in the case of non-individual if such Selling StockholdersStockholder is not a natural person) or (iii) result in any material violation of the provisions 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 clause (i) and (iii) above where such conflicts, breaches, violations and defaults could not reasonably be expected to materially adversely affect such Selling Stockholder’s ability to perform its obligations hereunder and under the Custody Agreement and Power of Attorney, as applicable; and, and except for the registration of the Stock under the Securities Act and such consents, approvals, authorizations, registrations or qualifications as may be required under the Exchange Act, by the National Association of Securities Dealers, Inc. Act and under applicable state securities laws in connection with the purchase and distribution of the Stock by the Underwriters, no consent, approval, authorization or order of, or filing or registration with, any such court or governmental agency or body is required for the execution, delivery and performance of this Agreement, Agreement and the Custody Agreement and 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.
(fe) The Stock information with respect to such Selling Stockholder contained in the Registration Statement and the Prospectus and any further amendments or supplements to the Registration Statement or the Prospectus that is based upon information furnished in writing to the Company by such Selling Stockholder expressly for use therein does not contain any untrue statement of a material fact or omit to state any material fact required to be sold by stated therein or necessary to make the Selling Stockholder hereunder, which is represented by statements therein not misleading in the certificates held in custody for the Selling Stockholder, is subject to the interest case of the Underwriters, the arrangements made by the Selling Stockholder for such custody are to that extent irrevocable, Registration Statement and the obligations of the Selling Stockholder hereunder shall not be terminated by any act of the Selling StockholderProspectus, by operation of law, by the death or incapacity of any individual Selling Stockholder orand, in the case of a trustthe Prospectus only, by not misleading in light of the death or incapacity of any executor or trustee or the termination of such trust, or the occurrence of any other eventcircumstances under which they were made.
(g) The Selling Stockholder is not prompted to sell shares of Common Stock by any information concerning the Company that is not set forth in the Pricing Disclosure Package.
(hf) The Selling Stockholder has not taken and will not take, directly or indirectly, any action which is designed to or which has constituted or 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 of the StockStock in violation of applicable securities laws and the Rules and Regulations of the Commission.
Appears in 1 contract
Representations, Warranties and Agreements of the Selling Stockholders. Each Selling Stockholder severally and not jointly represents, warrants and agrees that:
(a) Neither The Selling Stockholder has good and valid title to the shares of the Stock to be sold by the Selling Stockholder nor any person acting on behalf hereunder or good and valid title to the warrants or options pursuant to which the shares of Stock to be sold by the Selling Stockholder (other than, if applicable, the Company and the Underwriters) has used or referred to any “free writing prospectus” (as defined in Rule 405), relating to the Stock;
(b) The Selling Stockholder hashereunder will be issued, and immediately prior to any the applicable Delivery Date on which the Selling Stockholder is selling shares of Stock, the Selling Stockholder will have 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”) to the shares of 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 any liens, encumbrances, equities or claims arising under the Custody Agreement (as hereinafter defined); and upon delivery of such shares and payment therefor pursuant hereto, good and valid title to such shares, free and clear of all liens, encumbrances, equities or claims, will pass to the several Underwriters.
(cb) 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 the Companyother Selling Stockholders and EquiServe LLC, as custodian (the “Custodian”), and Messrs. Xxxxxxxx, Xxxxxxxx and Xxxxxxx, as Attorneys-in-fact (the “Attorneys-in-Fact”) for delivery under this Agreement, (i) 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 New York or American Stock ExchangesExchange) representing the shares of Stock to be sold by the Selling Stockholder hereunder, (ii) if such Selling Stockholder is selling shares of Stock issuable upon exercise or conversion of warrants, a warrant exercise or conversion form and, in connection with warrants being exercised, the original warrant and a check for the payment of the exercise price, and (iii) if such Selling Stockholder is selling shares of Stock issuable upon exercise of stock options, an option exercise form and a check for the option exercise price.
(dc) The Pursuant to the Custody Agreement, the Selling Stockholder has duly and irrevocably executed and delivered a power of attorney (appointing the “Power of Attorney” and, together with all other similar agreements executed by the other Selling Stockholders, the “Powers of Attorney”) appointing Sxxxxxx X. Xxxxxxx and one or more other persons, as attorneysAttorneys-in-fact, Fact with full power of substitution, and with full authority (exercisable by any one or more of them) to execute and deliver this Agreement and to take such other action as may be necessary or desirable to carry out the provisions hereof on behalf of the Selling Stockholder.
(ed) The Selling Stockholder has full right, power and authority under its limited partnership or similar organization agreement to enter into this Agreement, the Power of Attorney Agreement and the Custody Agreement; this Agreement has been duly and validly authorized, executed and delivered by or on behalf of the Selling Stockholder; the execution, delivery and performance of this Agreement, the Power of Attorney Agreement and the Custody Agreement by the Selling Stockholder and the consummation by the Selling Stockholder of the transactions contemplated hereby and thereby will not conflict with or result in a material breach or violation of any of the terms or provisions of, or constitute a material default under, any indenture, mortgage, deed of trust, loan 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 will such actions result in any violation of the provisions of the constituent documents of the Selling Stockholder (with respect to any of its organizational documents (in the case of non-individual Selling StockholdersStockholder that is not a natural person) or 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 or the property or assets of the Selling Stockholder; and, except for the registration of the Stock under the Securities Act and such consents, approvals, authorizations, registrations or qualifications as will have been obtained prior to the date hereof as may be required under the Exchange Act, by the National Association of Securities Dealers, Inc. Act and under applicable state or foreign securities laws in connection with the purchase and distribution of the Stock by the Underwriters, no consent, approval, authorization or order of, or filing or registration with, any such court or governmental agency or body is required for the execution, delivery and performance of this Agreement, the Power of Attorney Agreement or the Custody Agreement by the Selling Stockholder and the consummation by the Selling Stockholder of the transactions contemplated hereby hereby.
(e) The Registration Statement and therebythe Prospectus and any further amendments or supplements to the Registration Statement or the Prospectus, when they become effective or are filed with the Commission, as the case may be, do not and will not, as of the applicable effective date (as to the Registration Statement and any amendment thereto) and as of the applicable filing date (as to the Prospectus and any amendment or supplement thereto) contain 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 or the Prospectus in reliance upon and in conformity with written information furnished to the Company through the Representatives by or on behalf of any Underwriter specifically for inclusion therein, and provided further that this paragraph (e) shall apply to each Selling Stockholder only to the extent that the statements or omissions from the Registration Statement or the Prospectus were made in reliance upon and in conformity with written information relating to such Selling Stockholder provided by such Selling Stockholder specifically for inclusion therein, it being understood and agreed that for purposes of this Section 2 and the indemnification obligations in Section 11, the only information provided by such Selling Stockholder consists of information relating to such Selling Stockholder under the caption “Principal and Selling Stockholders” in the Prospectus.
(f) The Stock to be sold by Except as provided in this Agreement and in the Selling Stockholder hereunder, which is represented by the certificates held in custody for the Selling Stockholder, is subject to the interest of the UnderwritersLock Up Agreement (as hereinafter defined), the arrangements made by the Selling Stockholder for such custody are to that extent irrevocable, and the obligations of the Selling Stockholder hereunder shall not be terminated by any act of the Selling Stockholder, by operation of law, by the death or incapacity of any individual 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.
(g) The Selling Stockholder is not prompted to sell shares of Common Stock by any information concerning the Company that is not set forth in the Pricing Disclosure Package.
(h) The Selling Stockholder has not taken and will not take, directly or indirectly, any action which is designed to or which has constituted or 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 of the Stock.
Appears in 1 contract
Samples: Underwriting Agreement (Tempur Pedic International Inc)
Representations, Warranties and Agreements of the Selling Stockholders. Each Selling Stockholder severally and not jointly represents, warrants and agrees with the Underwriters that:
(a) Neither the Selling Stockholder nor any person acting on behalf of the Selling Stockholder (other than, if applicable, the Company and the Underwriters) has used or referred to any “free writing prospectus” (as defined in Rule 405), relating to the Stock;
(b) The Selling Stockholder has, and immediately prior to any the applicable Delivery Date on which the Selling Stockholder is selling shares of Stock, (as defined in Section 5) the Selling Stockholder will have have, good and valid title to, or a valid “security entitlement” within to the meaning of Section 8-501 of the New York Uniform Commercial Code (the “UCC”) the shares of 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, will pass to the several Underwriters.
(cb) The Selling Stockholder has placed in custody under a custody agreement Pursuant to an Irrevocable Power of Attorney (the “Power of Attorney”) and Custody Agreement (the “Custody Agreement” and, together with all other similar agreements executed by the other Selling StockholdersPower of Attorney, the “Custody Agreements”), such Selling Stockholder has (i) placed in custody with the CompanyUMB Bank, N.A., as custodian (the “Custodian”), for delivery under this Agreement, certificates in negotiable form (with signature guaranteed by a commercial bank or trust company having an office or correspondent in the United States or a member firm of the New York or American Stock Exchanges) representing the shares of Stock to be sold by the such Selling Stockholder hereunder.
; and (dii) The Selling Stockholder has duly and irrevocably executed appointed and delivered a power of attorney (the “Power of Attorney” and, together with all other similar agreements executed by the other Selling Stockholders, the “Powers of Attorney”) appointing Sxxxxxx X. Xxxxxxx and one or more other persons, as attorneys-in-fact, with full power of substitution, and with full authority (exercisable by any one or more of them) to execute and deliver this Agreement and to take such other action actions as set forth in the Custody Agreements and as may be necessary or desirable to carry out the provisions hereof of this Agreement on behalf of the Selling Stockholder.
(ec) The Selling Stockholder has full right, power and authority under its limited partnership or similar organization agreement to enter into this Agreement, the Power of Attorney and the Custody Agreement; this Agreement has been duly and validly authorized, executed and delivered by or on behalf of the Selling StockholderAgreements; the execution, delivery and performance of this Agreement, the Power of Attorney Agreement and the Custody Agreement Agreements and the lock-up agreement substantially in the form of Annex A hereto to which it is a party by the Selling Stockholder and the consummation by the Selling Stockholder of the transactions contemplated hereby and thereby will not (i) conflict with or result in a material breach or violation of any of the terms or provisions of, or constitute a material default under, any indenture, mortgage, deed of trust, loan agreement agreement, 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 breach, nor will violation or default would impair the ability of the Selling Stockholder to perform its obligations under the Agreement, the Custody Agreements or such actions lock-up agreement, (ii) result in any violation of the provisions of any partnership or limited liability company agreement, certificate of its incorporation, bylaws, operating agreement, deed of trust or other similar agreement or organizational documents document of the Selling Stockholder or (iii) result in the case of non-individual Selling Stockholders) or any material violation of any statute or any order, rule or regulation of any court or governmental agency or body (whether domestic or foreign) having jurisdiction over the Selling Stockholder or the property or assets of the Selling StockholderStockholder which violation (in the case of this clause (iii)) would impair the ability of the Selling Stockholder to perform its obligations under this Agreement, the Custody Agreements or such lock-up agreement; and, except for the registration of the Stock under the Securities Act and such consents, approvals, authorizations, registrations or qualifications as may be required under the Exchange Act, by the National Association of Securities Dealers, Inc. Act and under applicable state or foreign securities laws in connection with the purchase and distribution of the Stock by the Underwriters, no consent, approval, authorization or order of, or filing or registration with, any such court or governmental agency or body is required for the execution, delivery and performance of this Agreement, the Power of Attorney or Agreement and the Custody Agreement Agreements and such lock-up agreement by the Selling Stockholder and the consummation by the Selling Stockholder of the transactions contemplated hereby and thereby.
(f) The Stock to be sold by the Selling Stockholder hereunder, which is represented by the certificates held in custody for the Selling Stockholder, is subject to the interest of the Underwriters, the arrangements made by the Selling Stockholder for such custody are to that extent irrevocable, and the obligations of the Selling Stockholder hereunder shall not be terminated by any act of the Selling Stockholder, by operation of law, by the death or incapacity of any individual 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.
(g) The Selling Stockholder is not prompted to sell shares of Common Stock by any information concerning the Company that is not set forth in the Pricing Disclosure Package.
(hd) The Selling Stockholder has not taken and will not take, directly or indirectly, any action which is designed to or which has constituted or 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 of the Stock.
(e) The Selling Stockholder (i) has no reason to believe that the representations and warranties of the Company contained in Section 1 hereof are not true and correct and (ii) is not prompted to sell Stock by any information concerning the Company that is not set forth in the Registration Statement and the Prospectus.
(f) To the knowledge of the Selling Stockholder, after reasonable investigation (as such term is used in Section 11 of the Securities Act), the Registration Statement and the Prospectus and any further amendments or supplements to the Registration Statement or the Prospectus, when they become effective or are filed with the Commission, as the case may be, do not and will not, as of the applicable effective date (as to the Registration Statement and any amendment thereto) and as of the applicable filing date (as to the Prospectus and any amendment or supplement thereto) contain an untrue statement of 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 Selling Stockholder makes no representation or warranty as to information contained in or omitted from the Registration Statement or the Prospectus in reliance upon and in conformity with written information furnished to the Company by or on behalf of any Underwriter specifically for inclusion therein.
(g) There are no contracts, agreements or understandings between the Selling Stockholders and any person that would give rise to a valid claim against the Selling Stockholder or any Underwriter for a brokerage commission, finder’s fee or other like payment in connection with this offering. Each certificate signed by or on behalf of the Selling Stockholder and delivered to the Underwriters or counsel to the Underwriters shall be deemed to be a representation and warranty by the Selling Stockholder in its capacity as a Selling Stockholder to the Underwriters as to the matters covered thereby.
Appears in 1 contract
Samples: Underwriting Agreement (Startek Inc)
Representations, Warranties and Agreements of the Selling Stockholders. Each Selling Stockholder Stockholder, severally and not jointly, represents, warrants and agrees that:
(a) Neither the such Selling Stockholder nor any person acting on behalf of the such Selling Stockholder (other than, if applicable, the Company and the Underwriters) has used or referred to any “free writing prospectus” (as defined in Rule 405), relating to the StockStock other than any road show that is a free writing prospectus;
(b) The Such Selling Stockholder hasStockholder, and immediately prior to any Delivery Date on the time at which the such Selling Stockholder is selling shares of StockStock hereunder, the Selling Stockholder will have 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”) to the shares of Stock to be sold by the Selling Stockholder hereunder on such Delivery Datehereunder, free and clear of all liens, encumbrances, equities or claims; and upon delivery of such shares and payment therefor pursuant hereto, good and valid title to such shares, free and clear of all liens, encumbrances, equities or claims, will pass to the several Underwriters.
(c) 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 the Company, as custodian (the “Custodian”), for delivery under this Agreement, certificates in negotiable form (with signature guaranteed by a commercial bank or trust company having an office or correspondent in the United States or a member firm of the New York or American Stock Exchanges) representing the shares of Stock to be sold by such Selling Stockholder is subject to the interest of the Underwriters and the other Selling Stockholders hereunder, the arrangements made by such Selling Stockholder for the sale of such Stock hereunder are to that extent irrevocable, and the obligations of such Selling Stockholder hereunder shall not be terminated by any act of such Selling Stockholder, by operation of law, by the death or incapacity of any individual 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; if any individual Selling Stockholder or any such executor or trustee should die or become incapacitated, or if any such estate or trust should be terminated, or if any such partnership or corporation should be dissolved, or if any other such event should occur, before the delivery of the Shares hereunder, the Shares shall be delivered by or on behalf of the Selling Stockholder hereunderStockholders in accordance with the terms and conditions of this Agreement; and actions taken by the attorneys-in-fact pursuant to the Powers of Attorney shall be as valid as if such death, incapacity, termination, dissolution or other event had not occurred, regardless of whether or not the attorneys-in-fact, or any of them, shall have received notice of such death, incapacity, termination, dissolution or other event.
(d) The Upon delivery of security entitlements in respect of the Stock to be sold by such Selling Stockholder and payment therefor pursuant hereto (i) under Section 8-501 of the Uniform Commercial Code of New York (the “New York UCC”), the Underwriters will acquire good and valid title and a valid security entitlement in respect of such Stock and (ii) no action based on any “adverse claim,” within the meaning of Section 8-102(a)(2) of the UCC, to such Stock may be asserted against the Underwriters with respect to such security entitlement.
(e) Such Selling Stockholder has duly and irrevocably executed and delivered a power of attorney (the “Power of Attorney” and, together with all other similar agreements powers of attorney executed by the other Selling Stockholders, the “Powers of Attorney”) appointing Sxxxxxx Messrs. Xxxxx X. Xxxxxx, Xxxxx X. Xxxxxxxxxxx, Xxxxxxx X. Xxxxxx, Xxxx X. Xxxxxxx and one or more other persons, Xxxxxx X. Xxxxx as attorneys-in-fact, with full power of substitution, and with full authority (exercisable by any one or more of them) to execute and deliver this Agreement and to take such other action as may be necessary or desirable to carry out the provisions hereof on behalf of the such Selling Stockholder.
(ef) The Such Selling Stockholder has full right, power and authority under its limited partnership authority, corporate or similar organization agreement otherwise, to enter into this Agreement, Agreement and to execute and deliver the Power of Attorney and the Custody Agreement; this Attorney.
(g) This Agreement has been duly and validly authorized, executed and delivered by or on behalf of the such Selling Stockholder; .
(h) The Power of Attorney has been duly authorized executed and delivered by or on behalf of such Selling Stockholder and constitute valid and legally binding obligations of such Selling Stockholder enforceable against such Selling Stockholder in accordance with their terms, subject to (i) the effects of bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium and other similar laws relating to or affecting creditors’ rights generally, (ii) general equitable principles (whether considered in a proceeding in equity or at law) and (iii) an implied covenant of good faith and fair dealing.
(i) The execution, delivery and performance of this Agreement, Agreement and the Power of Attorney and the Custody Agreement by the such Selling Stockholder and the consummation by the such Selling Stockholder of the transactions contemplated hereby and thereby do not and will not (i) conflict with or result in a material breach or violation of any of the terms or provisions of, or constitute a material default under, any indenture, mortgage, deed of trust, loan agreement agreement, license or other agreement or instrument to which the such Selling Stockholder is a party or by which the such Selling Stockholder is bound or to which any of the property or assets of the such Selling Stockholder is subject, nor will such actions subject or (ii) result in any violation of any of its organizational documents (in the case of non-individual Selling Stockholders) or any material violation of any statute or any order, rule or regulation of any court or governmental agency or body having jurisdiction over the such Selling Stockholder or the property or assets of the such Selling Stockholder; and.
(j) No consent, approval, authorization or order of, or filing or registration with, any court or governmental agency or body having jurisdiction over such Selling Stockholder or the property or assets of such Selling Stockholder is required for the execution, delivery and performance of this Agreement or the Power of Attorney by such Selling Stockholder and the consummation by such Selling Stockholder of the transactions contemplated hereby and thereby, except for the registration of the offering of the Stock under the Securities Act and such consents, approvals, authorizations, registrations or qualifications as may be required under the Exchange Act, by the National Association of Securities Dealers, Inc. Act and under applicable state or foreign securities laws in connection with the purchase and distribution sale of the Stock by the Underwriters, no consent, approval, authorization or order of, or filing or registration with, any such court or governmental agency or body 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.
(fk) The Stock to be sold by the Selling Stockholder hereunder, which is represented by the certificates held in custody for the Selling Stockholder, is subject to the interest of the Underwriters, the arrangements made by the Selling Stockholder for such custody are to that extent irrevocable, and the obligations of the Selling Stockholder hereunder shall not be terminated by any act of the Selling Stockholder, by operation of law, by the death or incapacity of any individual 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.
(g) The Such Selling Stockholder is not prompted to sell shares of Common Stock by any information concerning the Company that is not set forth in the Registration Statement, the Pricing Disclosure PackagePackage and the Prospectus.
(hl) The Such Selling Stockholder has not taken and will not take, directly or indirectly, any action which that is designed to or which that has constituted or which might 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 shares of the Stock.
(m) To the extent that any statements or omissions made in the Registration Statement, the Pricing Disclosure Package, 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 Pricing Disclosure Package 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. Any certificate signed by or on behalf of any Selling Stockholder and delivered to the Representative or counsel for the Underwriters in connection with the offering of the Stock shall be deemed a representation and warranty by such Selling Stockholder, as to matters covered thereby, to each Underwriter.
Appears in 1 contract
Representations, Warranties and Agreements of the Selling Stockholders. Each 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 Underwriters) has used or referred to any “free writing prospectus” (as defined in Rule 405), relating to the Stock;
(b) The Selling Stockholder has, and immediately prior to any the First Delivery Date on which (as defined in Section 5 hereof) the Selling Stockholder is selling will have, or, for shares of Stockheld for his benefit by Vanguard Fiduciary Trust Company ("Vanguard"), the Selling Stockholder Vanguard 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”) to the shares of Stock to be sold by the Selling Stockholder hereunder on such Delivery Datedate, free and clear of all liens, encumbrances, equities or claims; claims (other than the rights of the Company pursuant to the shareholder's agreement between the Company and such Selling Stockholder), and upon delivery of such shares and payment therefor pursuant hereto, good and valid title to such shares, free and clear of all liens, encumbrances, equities or claims, will pass to the several Underwriters.
(cb) 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 the CompanyXxxxx Xxxxxx Shareholder Services, L.L.C., as custodian (the “"Custodian”"), for delivery under this Agreement, certificates in negotiable form or shares held in book entry by the Custodian (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 New York or American Stock Exchanges) representing the shares of Stock to be sold by the Selling Stockholder hereunder.
(dc) The Selling Stockholder has duly and irrevocably executed and delivered a power of attorney (the “"Power of Attorney” " and, together with all other similar agreements executed by the other Selling Stockholders, the “"Powers of Attorney”") appointing Sxxxxxx X. Xxxxxxx the Custodian and one or more other persons, as attorneys-in-fact, with full power of substitution, and with full authority (exercisable by any one or more of them) to execute and deliver this Agreement and to take such other action as may be necessary or desirable to carry out the provisions hereof on behalf of the Selling Stockholder.
(ed) The Selling Stockholder has full right, power and authority under its limited partnership or similar organization agreement to enter into this Agreement, the Power of Attorney and the Custody Agreement; this Agreement has been duly and validly authorized, executed and delivered by or on behalf of the Selling Stockholder; the execution, delivery and performance of this 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 will not conflict with or result in a material breach or violation of any of the terms or provisions of, or constitute a material default under, any indenture, mortgage, deed of trust, loan 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 will such actions result in any violation of any of its organizational documents (in the case of non-individual Selling Stockholders) or 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 or the property or assets of the Selling Stockholder; and, except for the registration of the Stock under the Securities Act and such consents, approvals, authorizations, registrations or qualifications as may be required under the Exchange Act, by the National Association of Securities Dealers, Inc. Act and under applicable state securities laws in connection with the purchase and distribution of the Stock by the Underwriters, no consent, approval, authorization or order of, or filing or registration with, any such court or governmental agency or body 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.
(fe) The Stock Registration Statement 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 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 sold stated therein or necessary to make the statements therein not misleading; provided that no representation or warranty is made as to information contained in or omitted from the Registration Statement or the Prospectus other than that provided by the such Selling Stockholder hereunder, which is represented by the certificates held in custody for the Selling Stockholder, is subject to the interest of the Underwriters, the arrangements made by the Selling Stockholder Company or to an Underwriter specifically for such custody are to that extent irrevocable, and the obligations of the Selling Stockholder hereunder shall not be terminated by any act of the Selling Stockholder, by operation of law, by the death or incapacity of any individual 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 eventinclusion therein.
(g) The Selling Stockholder is not prompted to sell shares of Common Stock by any information concerning the Company that is not set forth in the Pricing Disclosure Package.
(hf) The Selling Stockholder has not taken and will not take, directly or indirectly, any action which is designed to or which has constituted or 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 of the Stock.
Appears in 1 contract
Samples: Underwriting Agreement (Heidrick & Struggles International Inc)
Representations, Warranties and Agreements of the Selling Stockholders. 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 Underwriters) has used or referred to any “free writing prospectus” (as defined in Rule 405), 405 under the Securities Act) relating to the Stock;.
(b) The Selling Stockholder has, and immediately prior to any Delivery Date on which the Selling Stockholder is selling shares of Stock, the Selling Stockholder will have 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”) the shares of Stock to be sold by the Selling Stockholder hereunder on such Delivery Datein respect thereof, free and clear of all liens, encumbrances, equities equities, community property rights, restrictions on transfer or claims; and upon .
(c) Upon payment for the Stock to be sold by such Selling Stockholder, delivery of such shares Stock, as directed by the Underwriters, to Cede & Co. (“Cede”) or such other nominee as may be designated by The Depository Trust Company (“DTC”), registration of such Stock in the name of Cede or such other nominee and payment therefor pursuant hereto, the crediting of such Stock on the books of DTC to securities accounts of the Underwriters (i) DTC will acquire good and valid marketable title to such shares, the Stock free and clear of all liens, encumbrances, equities equities, community property rights, restrictions on transfer or claims, (ii) DTC shall be a “protected purchaser” of such Stock within the meaning of Xxxxxxx 0 000 xx xxx XXX, (xxx) under Section 8 501 of the UCC, the Underwriters will pass acquire a valid security entitlement in respect of such Stock, and (iv) an action based on an adverse claim to such securities entitlement, whether framed in conversion, replevin, constructive trust, equitable lien or other theory may not be asserted against the Underwriters with respect to such security entitlement. For purposes of this representation, such Selling Stockholder may assume that when such payment, delivery and crediting occur, (x) such 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, bylaws and applicable law, (y) DTC will be registered as a “clearing corporation” within the meaning of Section 8 102 of the UCC, and (z) appropriate entries to the several Underwriters.
(c) 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 the Company, as custodian (the “Custodian”), for delivery under this Agreement, certificates in negotiable form (with signature guaranteed by a commercial bank or trust company having an office or correspondent in the United States or a member firm accounts of the New York or American Stock Exchanges) representing several Underwriters on the shares records of Stock DTC will have been made pursuant to be sold by the Selling Stockholder hereunderUCC.
(d) The Selling Stockholder has duly full right, power and irrevocably executed and delivered a power of attorney (the “Power of Attorney” andauthority, together with all other similar agreements executed by the other Selling Stockholderscorporate or otherwise, the “Powers of Attorney”) appointing Sxxxxxx X. Xxxxxxx and one or more other persons, as attorneys-in-fact, with full power of substitution, and with full authority (exercisable by any one or more of them) to execute and deliver enter into this Agreement and to take such other action as may be necessary or desirable to carry out the provisions hereof on behalf of the Selling StockholderAgreement.
(e) The Selling Stockholder has power and authority under its limited partnership or similar organization agreement to enter into this Agreement, the Power of Attorney and the Custody Agreement; this This Agreement has been duly and validly authorized, executed and delivered by or on behalf of the Selling Stockholder; .
(f) The sale of the Stock by the Selling Stockholder, the execution, delivery and performance of this 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 do not and thereby will not (i) conflict with or result in a material breach or violation of any of the terms or provisions of, or constitute a material default under, any indenture, mortgage, deed of trust, loan agreement agreement, 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, nor will such actions (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 of its organizational documents (in the case of non-individual Selling Stockholders) or any material 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 such Selling Stockholder; and’s ability to perform its obligations under this Agreement.
(g) No consent, approval, authorization or order of, or filing or registration with, any court or governmental agency or body having jurisdiction over the Selling 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 by the Selling Stockholder and the consummation by the Selling Stockholder of the transactions contemplated hereby, except for the registration of the Stock under the Securities Act and such consents, approvals, authorizations, orders, filings, registrations or qualifications as may be required under the Exchange Act, by the National Association of Securities Dealers, Inc. Act and under applicable state or foreign securities laws in connection with the purchase and distribution sale of the Stock by the Underwriters, no consent, approval, authorization or order of, or filing or registration with, any such court or governmental agency or body 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.
(fh) The Stock to be sold by To the Selling Stockholder hereunder, which is represented by the certificates held in custody for the Selling Stockholder, is subject to the interest of the Underwriters, the arrangements made by the Selling Stockholder for such custody are to that extent irrevocable, and the obligations of the Selling Stockholder hereunder shall not be terminated by any act 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 operation of law, by the death or incapacity on behalf of any individual 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 such Selling Stockholder orfurnished to the Company by such Selling Stockholder expressly for use in the Registration Statement, it being understood and agreed that, as to each Selling Stockholder, the only such information furnished to the Company by such Selling Stockholder consists of the name of such Selling Stockholder, the number of securities offered by such Selling Stockholder, and the address and other information with respect to such Selling Stockholder (excluding percentages) that appear in the table and corresponding footnotes under the caption “Principal and Selling Stockholders” (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 or as of the applicable Delivery Date, contain an untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in the case light of a trustthe 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 Prospectus in reliance upon and in conformity with written information furnished to the Company through the Representatives by the death or incapacity on behalf of any executor 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 trustee or omissions made in reliance upon and in conformity with written information relating to such Selling Stockholder furnished to the termination Company by such Selling Stockholder expressly for use in the Prospectus, it being understood and agreed that, as to each Selling Stockholder, the only such information contained in the Prospectus consists of such trust, or the occurrence of any other eventSelling Stockholder Information.
(gj) 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 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 this Section 2(j) are limited to statements or omissions made in reliance upon and in conformity with written information relating to such Selling Stockholder furnished to the Company by such Selling Stockholder expressly for use in the Pricing Disclosure Package, it being understood and agreed that, as to each 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 [V] hereto, did not, as of the Applicable Time, contain an untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading; provided that (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 [V] 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 such Selling Stockholder furnished to the Company by such Selling Stockholder expressly for use in the Pricing Disclosure Package or in any Issuer Free Writing Prospectus listed in Schedule [V] hereto, it being understood and agreed that, as to each Selling Stockholder, the only such information contained in the Pricing Disclosure Package or in any Issuer Free Writing Prospectus listed in Schedule [V] hereto consists of the Selling Stockholder Information.
(l) The Selling Stockholder is not prompted to sell shares of Common Stock by any information concerning the Company that is not set forth in the Registration Statement, the Pricing Disclosure PackagePackage and the Prospectus.
(hm) 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 which is designed account subject to or which has constituted or which might 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 ERISA, 29 C.F.R. 2510.3-101, or otherwise. Any certificate signed by any officer of any Selling Stockholder and delivered to the Representatives or counsel for the Underwriters in connection with the offering of the Company Stock shall be deemed a representation and warranty by such Selling Stockholder, as to facilitate the sale or resale of the shares of the Stockmatters covered thereby, to each Underwriter.
Appears in 1 contract
Representations, Warranties and Agreements of the Selling Stockholders. 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 Underwriters) has used or referred to any “"free writing prospectus” " (as defined in Rule 405), relating to the Stock;.
(b) The Selling Stockholder has, and immediately prior to any Delivery Date on which the Selling Stockholder is selling shares of Stock, the Selling Stockholder will have 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 of Stock to be sold by the Selling Stockholder hereunder on such Delivery Date, free and clear of all liens, encumbrances, equities or claims; and upon delivery of such shares and payment therefor pursuant hereto, good and valid title to such shares, free and clear of all except for any liens, encumbrances, equities or claims, will pass to claims arising under the several UnderwritersCustody Agreement.
(c) 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 the Company, as custodian (the “Custodian”), for delivery under this Agreement, certificates in negotiable form (with signature guaranteed by a commercial bank or trust company having an office or correspondent in the United States or a member firm of the New York or American Stock Exchanges) representing the shares of Stock to be sold by the Selling Stockholder hereunder.
(d) The Selling Stockholder has duly and irrevocably executed and delivered a power of attorney (the “Power of Attorney” and, together with all other similar agreements executed by the other Selling Stockholders, the “Powers of Attorney”) appointing Sxxxxxx X. Xxxxxxx and one or more other persons, as attorneys-in-fact, with full power of substitution, and with full authority (exercisable by any one or more of them) to execute and deliver this Agreement and to take such other action as may be necessary or desirable to carry out the provisions hereof on behalf of the Selling Stockholder.
(e) The Selling Stockholder has power and authority under its limited partnership or similar organization agreement to enter into this Agreement, the Power of Attorney and the Custody Agreement; this Agreement has been duly and validly authorized, executed and delivered by or on behalf of the Selling Stockholder; the execution, delivery and performance of this 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 will not conflict with or result in a material breach or violation of any of the terms or provisions of, or constitute a material default under, any indenture, mortgage, deed of trust, loan 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 will such actions result in any violation of any of its organizational documents (in the case of non-individual Selling Stockholders) or 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 or the property or assets of the Selling Stockholder; and, except for the registration of the Stock under the Securities Act and such consents, approvals, authorizations, registrations or qualifications as may be required under the Exchange Act, by the National Association of Securities Dealers, Inc. and under applicable state securities laws in connection with the purchase and distribution of the Stock by the Underwriters, no consent, approval, authorization or order of, or filing or registration with, any such court or governmental agency or body 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.
(f) The Stock to be sold by the Selling Stockholder hereunder, which is represented by the certificates held in custody for the Selling Stockholder, is subject to the interest of the UnderwritersUnderwriters and the other Selling Stockholders thereunder, the arrangements made by the Selling Stockholder for such custody are to that extent irrevocable, and the obligations of the Selling Stockholder hereunder shall not be terminated by any act of the Selling Stockholder, by operation of law, by the death or incapacity of any individual 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) Upon payment for the Stock to be sold by such Selling Stockholder, delivery of such Stock, as directed by the Underwriters, to Cede & Co. ("Cede") or such other nominee as may be designated by The Depository Trust Company ("DTC"), registration of such Stock in the name of Cede or such other nominee and the crediting of such Stock on the books of DTC to securities accounts of the Underwriters (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 Stock), (i) DTC shall be a "protected purchaser" of such Stock within the meaning of Section 8-303 of the UCC, (ii) under Section 8-501 of the UCC, the Underwriters will acquire a valid security entitlement in respect of such Stock and (iii) no action based on any "adverse claim", within the meaning of Section 8-102 of the UCC, to such Stock may be asserted against the Underwriters with respect to such security entitlement. For purposes of this representation, 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 certificate of incorporation, bylaws and applicable law, (B) DTC will be registered as a "clearing corporation" within the meaning of Section 8-102 of the UCC and (C) appropriate entries to the accounts of the several Underwriters on the records of DTC will have been made pursuant to the UCC.
(e) 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 delivery under this Agreement, certificates in negotiable form (with signature guaranteed by a participant in the Securities Transfer Agents Medallion Program, the New York Stock Exchange Medallion Signature Program or the Stock Exchange Medallion Program) representing the shares of Stock to be sold by the Selling Stockholder hereunder.
(f) The Selling Stockholder has duly and irrevocably executed and delivered a power of attorney (the "Power of Attorney" and, together with all other similar agreements executed by the other Selling Stockholders, the "Powers of Attorney") appointing the Custodian and Messrs. [ ] as attorneys-in-fact, with full power of substitution, and with full authority (exercisable by any one or more of them) to execute and deliver this Agreement and to take such other action as may be necessary or desirable to carry out the provisions hereof on behalf of the Selling Stockholder.
(g) The Selling Stockholder is not prompted has full right, power and authority, corporate or otherwise, to sell shares enter into this Agreement, the Power of Common Stock Attorney and the Custody Agreement. This Agreement has been duly and validly authorized, executed and delivered by any information concerning or on behalf of the Company that is not set forth in the Pricing Disclosure PackageSelling Stockholder.
(h) The execution, delivery and performance of this 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 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, (iii) result in any violation of the provisions of the deed of trust (or similar organizational documents) of the Selling Stockholder or (iv) 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, 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, except for the registration of the Stock under the Securities Act and such consents, approvals, authorizations, registrations or qualifications as may be required under the Exchange Act and applicable state securities laws in connection with the purchase and sale of the Stock by the Underwriters.
(j) The Power of Attorney and the Custody Agreement have been duly and validly authorized, executed and delivered by or on behalf of the Selling Stockholder and constitute valid and legally binding obligations of the Selling Stockholder enforceable against the Selling Stockholder in accordance with their terms, subject to (i) the effects of bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium and other similar laws relating to or affecting creditors' rights generally, (ii) general equitable principles (whether considered in a proceeding in equity or at law) and (iii) an implied covenant of good faith and fair dealing.
(k) 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 through the Representatives by or on behalf of any Underwriter specifically for inclusion therein, which information is specified in Section 10(f); provided, further, that this Section 2(k) shall only apply to the extent that any statements in or omission from the Registration Statement are based on written information furnished to the Company by the Selling Stockholder specifically for use therein or contained in a representation or warranty given by the Selling Stockholder in this Agreement, the Power of Attorney or the Custody Agreement.
(l) To the knowledge of the Selling Stockholder, 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; 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 Representatives by or on behalf of any Underwriter specifically for inclusion therein, which information is specified in Section 10(f); provided, further, that this Section 2(l) shall only apply to the extent that any statements in or omission from the Prospectus are based on written information furnished to the Company by the Selling Stockholder specifically for use therein or contained in a representation or warranty given by the Selling Stockholder in this Agreement, the Power of Attorney or the Custody Agreement.
(m) 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 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); provided, further, that this Section 2(m) shall only apply to the extent that any statements in or omission from the Pricing Disclosure Package are based on written information furnished to the Company by the Selling Stockholder specifically for use therein or contained in a representation or warranty given by the Selling Stockholder in this Agreement, the Power of Attorney or the Custody Agreement.
(n) To the knowledge of the Selling Stockholder, each Issuer Free Writing Prospectus (including, without limitation, any road show that is a free writing prospectus under Rule 433), 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 Section 2(n) shall only apply to the extent that any statements in or omission from the Issuer Free Writing Prospectus are based on written information furnished to the Company by the Selling Stockholder specifically for use therein or contained in a representation or warranty given by the Selling Stockholder in this Agreement, the Power of Attorney or the Custody Agreement.
(o) The Selling Stockholder has not taken and will not take, directly or indirectly, any action which that is designed to or which that has constituted or which might that could reasonably be expected to cause or result in the stabilization or manipulation of the price of any security of the Company to facilitate the sale or resale of the shares of the Stock.
(p) 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 Selling Stockholder and delivered to the Representatives or counsel for the Underwriters in connection with the offering of the Stock shall be deemed a representation and warranty by such Selling Stockholder, as to matters covered thereby, to each Underwriter.
Appears in 1 contract
Representations, Warranties and Agreements of the Selling Stockholders. Each Selling Stockholder Stockholder, severally and not jointly, represents, warrants and agrees that:
(a) Neither the such Selling Stockholder nor any person acting on behalf of the such Selling Stockholder (other than, if applicable, the Company and the Underwriters) has used or referred used, prior to the completion of the Underwriters’ distribution of the Stock, any “free writing prospectus” (as defined in Rule 405), relating to the Stock;.
(b) The Such Selling Stockholder has, and immediately prior to any Delivery Date on which the Selling Stockholder is selling shares of Stock, the such Selling Stockholder will have 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 of Stock to be sold by the such Selling Stockholder hereunder on such Delivery Date, free and clear of all liens, encumbrances, equities or claims; and upon . Upon payment for the Stock to be sold by such Selling Stockholder, delivery of such shares Stock, as directed by the Underwriters, to Cede & Co. (“Cede”) or such other nominee as may be designated by The Depository Trust Company (“DTC”), registration of such Stock in the name of Cede or such other nominee and payment therefor pursuant hereto, good and valid title the crediting of such Stock on the books of DTC to securities accounts of the Underwriters (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), free (i) under Section 8-501 of the UCC, the Underwriters will acquire a valid security entitlement in respect of such Stock and clear (ii) no action based on any valid “adverse claim,” within the meaning of all liensSection 8-102 of the UCC, encumbrancesto such Stock may be asserted against the Underwriters with respect to such security entitlement. For purposes of this representation, equities 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 claimsanother nominee designated by DTC, in each case on the Company’s share registry in accordance with its certificate of incorporation, bylaws and applicable law, (B) DTC will pass be registered as a “clearing corporation” within the meaning of Section 8-102 of the UCC and (C) appropriate entries to the accounts of the several UnderwritersUnderwriters on the records of DTC will have been made pursuant to the UCC.
(c) The Such Selling Stockholder has placed in custody under a custody agreement (the “Custody Agreement” andfull right, together with all other similar agreements executed by the other Selling Stockholderspower and authority, the “Custody Agreements”) with the Companycorporate or otherwise, as custodian (the “Custodian”), for delivery under to enter into this Agreement, 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 New York or American Stock Exchanges) representing the shares of Stock to be sold by the Selling Stockholder hereunder.
(d) The Selling Stockholder has duly and irrevocably executed and delivered a power of attorney (the “Power of Attorney” and, together with all other similar agreements executed by the other Selling Stockholders, the “Powers of Attorney”) appointing Sxxxxxx X. Xxxxxxx and one or more other persons, as attorneys-in-fact, with full power of substitution, and with full authority (exercisable by any one or more of them) to execute and deliver this Agreement and to take such other action as may be necessary or desirable to carry out the provisions hereof on behalf of the Selling Stockholder.
(e) The Selling Stockholder has power and authority under its limited partnership or similar organization agreement to enter into this Agreement, the Power of Attorney and the Custody Agreement; this This Agreement has been duly and validly authorized, executed and delivered by or on behalf of the such Selling Stockholder; the .
(e) The execution, delivery and performance of this Agreement, the Power of Attorney and the Custody Agreement by the such Selling Stockholder and the consummation by the such Selling Stockholder of the transactions contemplated hereby and thereby do not and will not (i) conflict with or result in a material breach or violation of any of the terms or provisions of, or constitute a material default under, any indenture, mortgage, deed of trust, loan agreement agreement, lease, pledge or other agreement or instrument to which the such Selling Stockholder is a party or by which the such Selling Stockholder is bound or to which any of the property or assets of the such Selling Stockholder is subjectsubject which conflict, nor will breach, violation or default would impair the ability of such actions Selling Stockholder to perform its obligations under this Agreement, (ii) result in any violation of the provisions of any partnership or limited liability company agreement, certificate of its incorporation, bylaws, operating agreement, deed of trust or other similar agreement or organizational documents document of such Selling Stockholder or (iii) result in the case of non-individual Selling Stockholders) or any material violation of any statute or any order, rule or regulation of any court or governmental agency or body (whether domestic or foreign) having jurisdiction over the such Selling Stockholder or the property or assets of such Selling Stockholder which violation would impair the ability of such Selling StockholderStockholder to perform its obligations under this Agreement; and, except for the registration of the Stock under the Securities Act Act, approval by the NASD and under such consents, approvals, authorizations, registrations or qualifications as may be required under the Exchange Act, by the National Association of Securities Dealers, Inc. Act and under applicable state or foreign securities laws in connection with the purchase and distribution of the Stock by the Underwriters, 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, the Power of Attorney or the Custody Agreement by the such Selling Stockholder and the consummation by the such Selling Stockholder of the transactions contemplated hereby and therebyhereby.
(f) The Stock Registration Statement did not as of the Effective Date, the Prospectus will not as of its date and on the applicable Delivery Date, the Pricing Disclosure Package (together with the information included on Schedule 4 attached hereto) did not 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), when considered together with the Pricing Disclosure Package (together with the information included on Schedule 4 hereto), 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 sold by stated therein or necessary to make the Selling Stockholder hereunder, which is represented by the certificates held in custody for the Selling Stockholder, is subject to the interest of the Underwriters, the arrangements made by the Selling Stockholder for such custody are to that extent irrevocable, and the obligations of the Selling Stockholder hereunder shall not be terminated by any act of the Selling Stockholder, by operation of law, by the death or incapacity of any individual Selling Stockholder orstatements therein, in the case light of a trustthe circumstances under which they were made, not misleading; provided that the 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 any Issuer Free Writing Prospectus, as applicable, are made in reliance upon and in conformity with written information concerning such Selling Stockholder furnished to the Company by the death or incapacity of any executor or trustee or the termination of such trust, or the occurrence of any other eventSelling Stockholder specifically for inclusion therein.
(g) The Such Selling Stockholder is not prompted to sell shares of Common Stock by any material negative information concerning the Company that is not set forth in the Registration Statement, the Pricing Disclosure PackagePackage and the Prospectus.
(h) The Such Selling Stockholder has not taken and will not take, directly or indirectly, any action which that is designed to or which has constituted or which might that could reasonably be expected to cause or result in the stabilization or manipulation of the price of any security of the Company to facilitate the sale or resale of the shares of the Stock. Any certificate signed by any officer of any Selling Stockholder and delivered to the Representatives or counsel for the Underwriters in connection with the offering of the Stock shall be deemed a representation and warranty by such Selling Stockholder, as to matters covered thereby, to each Underwriter.
Appears in 1 contract
Representations, Warranties and Agreements of the Selling Stockholders. Each 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 Underwriters) has used or referred to any “free writing prospectus” (as defined in Rule 405), relating to the Stock;
(b) The Selling Stockholder has, and immediately prior to any the First Delivery Date on which the Selling Stockholder is selling shares of Stock, (as defined in Section 5 hereof) 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”) to the shares of 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, will pass to the several Underwriters.
(cb) 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 the Company[ ], as custodian (the “"Custodian”"), for delivery under this Agreement, certificates in negotiable form (with signature guaranteed by a commercial bank or trust company having an office or correspondent in the United States or a member firm of the New York or American Stock Exchanges) representing the shares of Stock to be sold by the Selling Stockholder hereunder.
(dc) The Selling Stockholder has duly and irrevocably executed and delivered a power of attorney (the “Power of Attorney” andfull right, together with all other similar agreements executed by the other Selling Stockholders, the “Powers of Attorney”) appointing Sxxxxxx X. Xxxxxxx and one or more other persons, as attorneys-in-fact, with full power of substitution, and with full authority (exercisable by any one or more of them) to execute and deliver this Agreement and to take such other action as may be necessary or desirable to carry out the provisions hereof on behalf of the Selling Stockholder.
(e) The Selling Stockholder has power and authority under its limited partnership or similar organization agreement to enter into this Agreement, the Power of Attorney Agreement and the Custody Agreement; this Agreement has been duly and validly authorized, executed and delivered by or on behalf of the Selling Stockholder; the execution, delivery and performance of this Agreement, the Power of Attorney Agreement and the Custody Agreement by the Selling Stockholder and the consummation by the Selling Stockholder of the transactions contemplated hereby and thereby will not conflict with or result in a material breach or violation of any of the terms or provisions of, or constitute a material default under, any indenture, mortgage, deed of trust, loan 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 will such actions result in any violation of any the provisions of its organizational documents (in the case charter or by-laws of non-individual the Selling Stockholders) Stockholder, if applicable, the articles of partnership of the Selling Stockholder, if applicable, or 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 or the property or assets of the Selling Stockholder; and, except for the registration of the Stock under the Securities Act and such consents, approvals, authorizations, registrations or qualifications as may be required under the Exchange Act, by the National Association of Securities Dealers, Inc. Act and under applicable state or foreign securities laws in connection with the purchase and distribution of the Stock by the Underwriters, no consent, approval, authorization or order of, or filing or registration with, any such court or governmental agency or body is required for the execution, delivery and performance of this Agreement, the Power of Attorney Agreement or the Custody Agreement by the Selling Stockholder and the consummation by the Selling Stockholder of the transactions contemplated hereby and thereby.
(fd) The Stock Registration Statement 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 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 sold by stated therein or necessary to make the Selling Stockholder hereunder, which statements therein not misleading; provided that no representation or warranty is represented by made as to information contained in or omitted from the certificates held Registration Statement or the Prospectus in custody for the Selling Stockholder, is subject reliance upon and in conformity with written information furnished to the interest of Company through the Underwriters, the arrangements made Representatives by the Selling Stockholder for such custody are to that extent irrevocable, and the obligations of the Selling Stockholder hereunder shall not be terminated by any act of the Selling Stockholder, by operation of law, by the death or incapacity on behalf of any individual 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 eventUnderwriter specifically for inclusion therein.
(ge) 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 effective date, or the Prospectus (or any amendment or supplement thereto), as of the applicable filing date, which has adversely affected or may adversely affect the business of the Company and is not prompted to sell shares of Common Stock by any information concerning the Company that which is not set forth in the Pricing Disclosure PackageRegistration Statement and the Prospectus.
(hf) The Selling Stockholder has not taken and will not take, directly or indirectly, any action which is designed to or which has constituted or 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 of the Stock.
Appears in 1 contract
Representations, Warranties and Agreements of the Selling Stockholders. Each Selling Stockholder Stockholder, severally and not jointly, represents, warrants and agrees that:
(a) Neither the such Selling Stockholder nor any person acting on behalf of the such Selling Stockholder (other than, if applicable, the Company and the Underwriters) has used or referred to any “free writing prospectus” (as defined in Rule 405), relating to the Stock;
(b) The Such Selling Stockholder has, and immediately prior to any Delivery Date on which the such Selling Stockholder is selling shares of Stock, the such Selling Stockholder will have 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 of Stock to be sold by the such Selling Stockholder hereunder on such Delivery Date, free and clear of all liens, encumbrances, equities or claims; and upon delivery of such shares and payment therefor pursuant hereto, good and valid title to such shares, free and clear of all liens, encumbrances, equities or claims, will pass to the several Underwriters.
(c) 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 the Company, as custodian (the “Custodian”), for delivery under this Agreement, certificates in negotiable form (with signature guaranteed by a commercial bank or trust company having an office or correspondent in the United States or a member firm of the New York or American Stock Exchanges) representing the shares of Stock to be sold by such Selling Stockholder hereunder is subject to the interest of the Underwriters, and the obligations of the Selling Stockholder hereunderhereunder shall not be terminated by any act of such Selling Stockholder, by operation of law or the occurrence of any other event.
(d) The Upon payment for the Stock to be sold by such Selling Stockholder has duly and irrevocably executed and delivered a power Stockholder, delivery of attorney (the “Power of Attorney” andsuch Stock, together with all other similar agreements executed as directed by the other Selling StockholdersUnderwriters, the to Cede & Co. (“Powers of AttorneyCede”) appointing Sxxxxxx X. Xxxxxxx and one or more other persons, as attorneys-in-fact, with full power of substitution, and with full authority (exercisable by any one or more of them) to execute and deliver this Agreement and to take such other action nominee as may be necessary designated by The Depository Trust Company (“DTC”), registration of such Stock in the name of Cede or desirable such other nominee and the crediting of such Stock on the books of DTC to carry out the provisions hereof on behalf securities accounts of the Underwriters (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 Stock), (i) DTC shall be a “protected purchaser” of such Stock within the meaning of Section 8-303 of the UCC, (ii) under Section 8-501 of the UCC, the Underwriters will acquire a valid security entitlement in respect of such Stock and (iii) no action based on any “adverse claim,” within the meaning of Section 8-102 of the UCC, to such Stock may be asserted against the Underwriters with respect to such security entitlement. For purposes of this representation, such Selling StockholderStockholder may assume that when such payment, delivery and crediting occur, (A) such Shares will have been registered in the name of Cede or another nominee designated by DTC, in each case on the Company’s share registry in accordance with its certificate of incorporation, bylaws and applicable law, (B) DTC will be registered as a “clearing corporation” within the meaning of Section 8-102 of the UCC and (C) appropriate entries to the accounts of the several Underwriters on the records of DTC will have been made pursuant to the UCC.
(e) The Such Selling Stockholder has full right, power and authority under its limited partnership authority, corporate or similar organization agreement otherwise, to enter into this Agreement, the Power of Attorney and the Custody Agreement; this .
(f) This Agreement has been duly and validly authorized, executed and delivered by or on behalf of the such Selling Stockholder; the .
(g) The execution, delivery and performance of this Agreement, the Power of Attorney and the Custody Agreement by the such Selling Stockholder and the consummation by the Selling Stockholder of the transactions contemplated hereby do not and thereby will not (i) conflict with or result in a material breach or violation of any of the terms or provisions of, or constitute a material default under, any indenture, mortgage, deed of trust, loan agreement agreement, license or other agreement or instrument to which the such 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 will such actions subject (ii) result in any violation of the provisions of the charter or by-laws (or similar organizational documents) of such Selling Stockholder or (iii) result in any of its organizational documents (in the case of non-individual Selling Stockholders) or any material violation of any statute or any order, rule or regulation of any court or governmental agency or body having jurisdiction over the such Selling Stockholder or the property or assets of the such Selling Stockholder; and.
(h) No consent, approval, authorization or order of, or filing or registration with, any court or governmental agency or body having jurisdiction over such Selling Stockholder or the property or assets of such Selling Stockholder is required for the execution, delivery and performance of this Agreement, by such Selling Stockholder and the consummation by such Selling Stockholder of the transactions contemplated hereby, except for the registration of the Stock under the Securities Act and such consents, approvals, authorizations, registrations or qualifications as may be required under the Exchange Act, by the National Association of Securities Dealers, Inc. Act and under applicable state or foreign securities laws in connection with the purchase and distribution sale of the Stock by the Underwriters, no consent, approval, authorization or order of, or filing or registration with, any such court or governmental agency or body 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.
(fi) The Stock to be sold by To the Selling Stockholder hereunder, which is represented by the certificates held in custody for the Selling Stockholder, is subject to the interest of the Underwriters, the arrangements made by the Selling Stockholder for such custody are to that extent irrevocable, and the obligations of the Selling Stockholder hereunder shall not be terminated by any act 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 through the Representative by operation of law, by the death or incapacity on behalf of any individual Underwriter specifically for inclusion therein, which information is specified in Section 10(f).
(j) To the knowledge of such Selling Stockholder orStockholder, 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 case light of a trustthe 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 the death or incapacity on behalf of any executor or trustee or the termination of such trustUnderwriter specifically for inclusion therein, or the occurrence of any other eventwhich information is specified in Section 10(f).
(gk) The To the knowledge of such Selling Stockholder, the documents incorporated by reference in any Preliminary Prospectus or the Prospectus did not, and any further documents filed and incorporated by reference therein will not, when filed with the Commission, contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading.
(l) To the knowledge of such 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 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 Representative by or on behalf of any Underwriter specifically for inclusion therein, which information is specified in Section 10(f).
(m) To the knowledge of such Selling Stockholder, each Issuer Free Writing Prospectus (including, without limitation, any road show that is a free writing prospectus under Rule 433), 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.
(n) Such Selling Stockholder is not prompted to sell shares of Common Stock by any material non-public information concerning the Company that is not set forth in the Registration Statement, the Pricing Disclosure PackagePackage and the Prospectus.
(ho) The Less than five percent of the net offering proceeds from the sale of the Stock, not including underwriting compensation, will be (i) used by such Selling Stockholder to reduce or retire the balance of a loan or credit facility extended by any Underwriter, its affiliates and its associated persons, in the aggregate, or (ii) otherwise directed by such Selling Stockholder to an Underwriter, its affiliates and associated persons, in the aggregate.
(p) Such Selling Stockholder has not taken and will not take, directly or indirectly, any action which that is designed to or which that has constituted or which might that could reasonably be expected to cause or result in the stabilization or manipulation of the price of any security of the Company to facilitate the sale or resale of the shares of the Stock. Any certificate signed by any Selling Stockholder and delivered to the Representative or counsel for the Underwriters in connection with the offering of the Stock shall be deemed a representation and warranty by such Selling Stockholder, as to matters covered thereby, to each Underwriter.
Appears in 1 contract
Representations, Warranties and Agreements of the Selling Stockholders. 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 Underwriters) has used or referred to any “free writing prospectus” (as defined in Rule 405), relating to the Stock;
(b) The Selling Stockholder has, and immediately prior to any Delivery Date on which the Selling Stockholder is selling shares of Option Stock, the Selling Stockholder will have 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 of Option Stock to be sold by the Selling Stockholder hereunder on such Delivery Date, free and clear of all liens, encumbrances, equities or claims; and upon delivery of such shares and payment therefor pursuant hereto, good and valid title to such shares, free and clear of all except for any liens, encumbrances, equities or claims, will pass to claims arising under the several UnderwritersCustody Agreement (as defined below).
(c) 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 the Company, as custodian (the “Custodian”), for delivery under this Agreement, certificates in negotiable form (with signature guaranteed by a commercial bank or trust company having an office or correspondent in the United States or a member firm of the New York or American Stock Exchanges) representing the shares of Stock to be sold by the Selling Stockholder hereunder.
(d) The Selling Stockholder has duly and irrevocably executed and delivered a power of attorney (the “Power of Attorney” and, together with all other similar agreements executed by the other Selling Stockholders, the “Powers of Attorney”) appointing Sxxxxxx X. Xxxxxxx and one or more other persons, as attorneys-in-fact, with full power of substitution, and with full authority (exercisable by any one or more of them) to execute and deliver this Agreement and to take such other action as may be necessary or desirable to carry out the provisions hereof on behalf of the Selling Stockholder.
(e) The Selling Stockholder has power and authority under its limited partnership or similar organization agreement to enter into this Agreement, the Power of Attorney and the Custody Agreement; this Agreement has been duly and validly authorized, executed and delivered by or on behalf of the Selling Stockholder; the execution, delivery and performance of this 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 will not conflict with or result in a material breach or violation of any of the terms or provisions of, or constitute a material default under, any indenture, mortgage, deed of trust, loan 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 will such actions result in any violation of any of its organizational documents (in the case of non-individual Selling Stockholders) or 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 or the property or assets of the Selling Stockholder; and, except for the registration of the Stock under the Securities Act and such consents, approvals, authorizations, registrations or qualifications as may be required under the Exchange Act, by the National Association of Securities Dealers, Inc. and under applicable state securities laws in connection with the purchase and distribution of the Stock by the Underwriters, no consent, approval, authorization or order of, or filing or registration with, any such court or governmental agency or body 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.
(f) The Option Stock to be sold by the Selling Stockholder hereunder, which is represented by the certificates held in custody for the Selling Stockholder, is subject to the interest of the UnderwritersUnderwriters and the other Selling Stockholders under the Custody Agreement, the arrangements made by the Selling Stockholder for such custody are to that extent irrevocable, and the obligations of the Selling Stockholder hereunder shall not be terminated by any act of the Selling Stockholder, by operation of law, by the death or incapacity of any individual 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 Option Stock to be sold by the Selling Stockholders hereunder is subject to the interest of the Underwriters, and the obligations of the Selling Stockholders hereunder shall not be terminated by any act of the Selling Stockholder, by operation of law or the occurrence of any other event.
(e) Upon payment for the Option Stock to be sold by such Selling Stockholder, delivery of such Option Stock, as directed by the Underwriters, to Cede & Co. (“Cede”) or such other nominee as may be designated by The Depository Trust Company (“DTC”), registration of such Option Stock in the name of Cede or such other nominee and the crediting of such Option Stock on the books of DTC to securities accounts of the Underwriters (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 Option Stock), (i) DTC shall be a “protected purchaser” of such Option Stock within the meaning of Section 8-303 of the UCC, (ii) under Section 8-501 of the UCC, the Underwriters will acquire a valid security entitlement in respect of such Option Stock and (iii) no action based on any “adverse claim,” within the meaning of Section 8-102 of the UCC, to such Option Stock may be asserted against the Underwriters with respect to such security entitlement. For purposes of this representation, such Selling Stockholder may assume that when such payment, delivery and crediting occur, (A) such Option 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, 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 accounts of the several Underwriters on the records of DTC will have been made pursuant to the UCC.
(f) 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 delivery under this Agreement, certificates in negotiable form (with signature guaranteed by a participant in the Securities Transfer Agents Medallion Program, the New York Stock Exchange Medallion Signature Program or the Stock Exchange Medallion Program) representing the shares of Option Stock to be sold by the Selling Stockholder hereunder.
(g) The Selling Stockholder has duly and irrevocably executed and delivered a power of attorney (the “Power of Attorney” and, together with all other similar agreements executed by the other Selling Stockholders, the “Powers of Attorney”) appointing the Custodian and Messrs. [ ] as attorneys-in-fact, with full power of substitution, and with full authority (exercisable by any one or more of them) to execute and deliver this Agreement and to take such other action as may be necessary or desirable to carry out the provisions hereof on behalf of the Selling Stockholder.
(h) The Selling Stockholder has full right, power and authority, corporate or otherwise, to enter into this Agreement, the Custody Agreement and the Power of Attorney.
(i) This Agreement has been duly and validly authorized, executed and delivered by or on behalf of the Selling Stockholder.
(j) The Power of Attorney and the Custody Agreement have been duly and validly authorized, executed and delivered by or on behalf of the Selling Stockholder and constitute valid and legally binding obligations of the Selling Stockholder enforceable against the Selling Stockholder in accordance with their terms, subject to (i) the effects of bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium and other similar laws relating to or affecting creditors’ rights generally, (ii) general equitable principles (whether considered in a proceeding in equity or at law) and (iii) an implied covenant of good faith and fair dealing.
(k) The execution, delivery and performance of this Agreement, the Custody Agreement and the Power of Attorney by 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 by-laws, deed of trust (or similar organizational documents) of the Selling Stockholder if the Selling Stockholder is not a natural person, 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.
(l) 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, the Custody Agreement or the Power of Attorney by the Selling Stockholder and the consummation by the Selling Stockholder of the transactions contemplated hereby and thereby, except for the registration of the Stock under the Securities Act and such consents, approvals, authorizations, registrations or qualifications as may be required under the Exchange Act and applicable state or foreign securities laws in connection with the purchase and sale of the Stock by the Underwriters.
(m) 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 through the Representatives by or on behalf of any Underwriter specifically for inclusion therein, which information is specified in Section 10(f).
(n) To the knowledge of the Selling Stockholder, 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; 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 Representatives by or on behalf of any Underwriter specifically for inclusion therein, which information is specified in Section 10(f).
(o) 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 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).
(p) To the knowledge of the Selling Stockholder, each Issuer Free Writing Prospectus (including, without limitation, any road show that is a free writing prospectus under Rule 433), 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.
(q) The Selling Stockholder is not prompted to sell shares of Common Stock by any information concerning the Company that is not set forth in the Registration Statement, the Pricing Disclosure PackagePackage and the Prospectus.
(hr) The Selling Stockholder has not taken and will not take, directly or indirectly, any action which that is designed to or which that has constituted or which might that could reasonably be expected to cause or result in the stabilization or manipulation of the price of any security of the Company to facilitate the sale or resale of the shares of the Stock.
(s) 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 Selling Stockholder or any officer of any Selling Stockholder and delivered to the Representatives or counsel for the Underwriters in connection with the offering of the Stock shall be deemed a representation and warranty by such Selling Stockholder, as to matters covered thereby, to each Underwriter.
Appears in 1 contract
Representations, Warranties and Agreements of the Selling Stockholders. 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 Underwriters) has used or referred to any “free writing prospectus” (as defined in Rule 405), relating to the Stock;
(b) The Such Selling Stockholder has, and immediately prior to any the First Delivery Date on which the Selling Stockholder is selling shares of Stock(as defined in Section 5 hereof), the Selling Stockholder will have good have, full right, power and valid title toauthority to sell, or a valid “security entitlement” within the meaning of Section 8-501 of the New York Uniform Commercial Code (the “UCC”) assign, transfer and deliver the shares of Stock to be sold by the Selling Stockholder hereunder on such Delivery Date, free and clear of all liens, encumbrances, equities or claimsdate; and upon delivery of such shares and payment therefor pursuant hereto, good and valid title to such shares, free and clear of all liens, encumbrances, equities or claims, will pass to the several Underwriters.
(cb) The Such Selling Stockholder has (i) placed in custody under a custody an agreement (the “Custody Agreement” and, together with all other similar agreements executed by the other Selling Stockholders, the “Custody Agreements”) with the Company[Transfer Agent], as custodian (the “Custodian”), for delivery under this Agreement, certificates in negotiable form (with signature guaranteed by a commercial bank or trust company having an office or correspondent in the United States or a member firm of the New York or American Stock ExchangesNasdaq National Market) representing the shares of Stock to be sold by the Selling Stockholder hereunder.
hereunder and (dii) The Selling Stockholder has duly and irrevocably executed and delivered a power of attorney (the “Power appointing each of Attorney” and, together with all other similar agreements executed by the other Selling Stockholders, the “Powers of Attorney”) appointing Sxxxxxx X. Xxxxxxx and one as his or more other persons, as attorneysher attorney-in-fact, with full power of substitution, and with full authority (exercisable by any one or more of them) to execute and deliver this Agreement and to take such other action actions as may be necessary or desirable to carry out the provisions hereof on behalf of the Selling Stockholder (as such agreement and Power of Attorney may be amended to and including the date of this Agreement, the “Irrevocable Power of Attorney and Custody Agreement”).
(c) To the best knowledge of such Selling Stockholder, the Registration Statement and the Prospectus and any further amendments or supplements to the Registration Statement or the Prospectus, when they become effective or are filed with the Commission, as the case may be, do not and will not, as of the applicable effective date (as to the Registration Statement and any amendment thereto) and as of the applicable filing date (as to the Prospectus and any amendment or supplement thereto in light of the circumstances in which they were made) 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 or the Prospectus in reliance upon and in conformity with written information furnished to the Company by or on behalf of any Underwriter specifically for inclusion therein; and provided further that this paragraph (c) shall apply to each Selling Stockholder only to the extent that the statements or omissions from the Registration Statement or the Prospectus were based on written information provided by such Selling Stockholder specifically for inclusion therein.
(d) Such Selling Stockholder is not prompted to sell shares of Common Stock by any information concerning the Company which is not set forth or incorporated by reference in the Registration Statement and the Prospectus.
(e) The Such Selling Stockholder has full right, power and authority under its limited partnership or similar organization agreement to enter into this Agreement, the Power of Attorney and the Custody Agreement; this Agreement has been duly and validly authorized, executed and delivered by or on behalf of the Selling Stockholder; the execution, delivery and performance of this 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 will not conflict with or result in a material breach or violation of any of the terms or provisions of, or constitute a material default under, any indenture, mortgage, deed of trust, loan 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 will such actions result in any violation of the provisions of any partnership agreement, certificate of its organizational documents incorporation or deed of trust of the Selling Stockholder (in the case of non-individual Selling Stockholdersif other than a natural person) or 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 or the property or assets of the Selling Stockholder; and, except for the registration of the Stock under the Securities Act and such consents, approvals, authorizations, registrations or qualifications as may be required under the Exchange Act, by the National Association of Securities Dealers, Inc. Act and under applicable state securities laws in connection with the purchase and distribution of the Stock by the Underwriters, no consent, approval, authorization or order of, or filing or registration with, any such court or governmental agency or body 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 therebyhereby.
(f) The Stock to be sold by Except as disclosed in the Prospectus, there are no contracts, agreements or understandings between the Selling Stockholder hereunder, which is represented by the certificates held in custody for the Selling Stockholder, is subject and any person that would give rise to the interest of the Underwriters, the arrangements made by a valid claim against the Selling Stockholder or any Underwriter for such custody are to that extent irrevocablea brokerage commission, finder’s fee or other like payment in connection with the offering and the obligations sale of the Selling Stockholder hereunder shall not be terminated by any act of the Selling Stockholder, by operation of law, by the death or incapacity of any individual 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 eventStock as contemplated hereunder.
(g) The Selling Stockholder is not prompted to sell shares of Common Stock by any information concerning the Company that is not set forth in the Pricing Disclosure Package.
(h) The Such Selling Stockholder has not taken and will not take, directly or indirectly, any action which is designed to or which has constituted or which might would reasonably be expected to cause or result in the stabilization or manipulation of the price of any security of the Company to facilitate the sale or resale of the shares of the Stock.
Appears in 1 contract
Representations, Warranties and Agreements of the Selling Stockholders. Each Selling 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 Underwriters) has used or referred to any “free writing prospectus” (as defined in Rule 405), relating to the Stock;
(b) The Selling Stockholder has, and immediately prior to any the First Delivery Date on which the Selling Stockholder is selling shares of Stock, (as defined in Section 5 hereof) the Selling Stockholder will have have, on such date, 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”) to the shares of Option Stock to be sold by the Selling Stockholder hereunder on such Delivery Datepursuant to Section 5 hereof, free and clear of all liens, encumbrances, equities or claims; and upon delivery of such shares of Option Stock and payment therefor pursuant hereto, good and valid title to such shares, free and clear of all liens, encumbrances, equities or claims, will pass to the several Underwriters.
(cb) The Selling Stockholder has placed (or agreed to place) 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 the Company, as custodian (the “"Custodian”"), for delivery under this Agreement, certificates in negotiable form (with signature guaranteed by a commercial bank or trust company having an office or correspondent in the United States or a member firm of the New York or American Stock Exchanges) representing the shares of Option Stock to be sold by the Selling Stockholder hereunder.
(dc) The Selling Stockholder has duly and irrevocably executed and delivered a power of attorney (the “"Power of Attorney” and, together with all other similar agreements executed by the other Selling Stockholders, the “Powers of Attorney”") appointing Sxxxxxx X. Xxxxxxx the Custodian and one or more other persons, as attorneys-in-fact, with full power of substitution, and with full authority (exercisable by any one or more of them) to execute and deliver this Agreement on such Selling Stockholder's behalf and to take such other action as may be necessary or desirable to carry out the provisions hereof on behalf of the Selling Stockholder, in accordance with the applicable Custody Agreement and the applicable Power of Attorney.
(ed) The Selling Stockholder has full right, power and authority under its limited partnership or similar organization agreement to enter into this Agreement, the Power of Attorney and the Custody Agreement; this Agreement has been duly and validly authorized, executed and delivered by or on behalf of the Selling Stockholder; the execution, delivery and performance of this 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 will not conflict with or result in a material breach or violation of any of the terms or provisions of, or constitute a material default under, any indenture, mortgage, deed of trust, loan 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 will such actions result in any violation of any of its organizational documents (in the case of non-individual Selling Stockholders) or 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 or the property or assets of the Selling Stockholder; and, except for the registration of the Option Stock under the Securities Act and such consents, approvals, authorizations, registrations or qualifications as may be required under the Exchange Act, by the National Association of Securities Dealers, Inc. Act and under applicable state securities laws in connection with the purchase and distribution of the Option Stock by the Underwriters, no consent, approval, authorization or order of, or filing or registration with, any such court or governmental agency or body is required for the execution, delivery and performance of this Agreement, 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.
(fe) The Stock Registration Statement and the Prospectus and any further amendments or supplements to the Registration Statement or the Prospectus will not, when they become effective or are filed with the Commission, as the case may be, and as of the applicable effective date (as to the Registration Statement and any amendment thereto) and as of the applicable filing date (as to the Prospectus and any amendment or supplement thereto) contain an untrue statement of a material fact or omit to state a material fact required to be sold stated therein or necessary to make the statements therein not misleading with respect to such Selling Stockholders; provided that no representation or warranty is made as to information contained in or omitted from the Registration Statement or the Prospectus in reliance upon and in conformity with written information furnished to the Company by the or on behalf of any Underwriter specifically for inclusion therein; provided, further, that such Selling Stockholder hereunder, which is represented by the certificates held in custody for the Selling Stockholder, is subject shall have no liability under this Section 2(e) except to the interest of extent that the Underwriters, the arrangements untrue statement or omission is or will be made by the in reliance upon and in conformity with information concerning such Selling Stockholder for furnished to the Company through the Representatives in writing by or on behalf of such custody are to that extent irrevocable, and the obligations of the Selling Stockholder hereunder shall not be terminated by any act of the Selling Stockholder, by operation of law, by the death or incapacity of any individual 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 eventspecifically for inclusion therein.
(gf) The Selling Stockholder has no knowledge that the representations and warranties of the Company contained in Section 1 hereof are not materially true and correct, is familiar with the Registration Statement and the Prospectus (as amended or supplemented) and has no knowledge of any material fact, condition or information not disclosed in the Registration Statement, as of the effective date, or the Prospectus (or any amendment or supplement thereto), as of the applicable filing date, which has adversely affected or is reasonably likely to adversely affect the business of the Company and is not prompted to sell shares of Common Stock by any information concerning the Company that which is not set forth in the Pricing Disclosure PackageRegistration Statement and the Prospectus.
(hg) The Selling Stockholder has not taken and will not take, directly or indirectly, any action which is designed to or which has constituted or 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 of the Stock.
Appears in 1 contract
Samples: Underwriting Agreement (Esperion Therapeutics Inc/Mi)
Representations, Warranties and Agreements of the Selling Stockholders. Each Selling Stockholder Stockholder, severally and not jointly, represents, warrants and agrees that:
(a) Neither the Selling Stockholder Stockholders nor any person acting on behalf of the Selling Stockholder Stockholders (other than, if applicable, the Company and the Underwriters) has have used or will use or referred or will refer to any “free writing prospectus” (as defined in Rule 405), relating to the StockShares;
(b) The Selling Stockholder hasStockholders have, and immediately prior to any Delivery Date on which the Selling Stockholder is Stockholders are selling shares of StockShares, the Selling Stockholder Stockholders will have 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 of Stock Shares to be sold by the Selling Stockholder Stockholders hereunder on such Delivery Date, free and clear of all liens, encumbrances, equities or claims; and upon delivery of such shares and payment therefor pursuant hereto, good and valid title to such shares, free and clear of all liens, encumbrances, equities or claims, will pass to the several Underwriters.
(c) The Shares to be sold by the Selling Stockholder Stockholders hereunder are subject to the interest of the Underwriters and the obligations of the Selling Stockholders hereunder shall not be terminated by any act of the Selling Stockholders, by operation of law, by the death or incapacity of any individual Selling Stockholders 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 Stockholders further acknowledge and agree that, although the Representatives may provide the Selling Stockholders with certain Regulation Best Interest and Form CRS disclosures or other related documentation in connection with the offering, the Representatives are not making a recommendation to the Selling Stockholders 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 Representative is making such a recommendation.
(e) Upon payment for the Shares to be sold by such Selling Stockholders, delivery of such Shares, as directed by the Underwriters, to Cede & Co. (“Cede”) or such other nominee as may be designated by The Depository Trust Company (“DTC”), registration of such Shares in the name of Cede or such other nominee and the crediting of such Shares on the books of DTC to securities accounts of the Underwriters (assuming that neither DTC nor any such Underwriter has notice of any adverse claim (within the meaning of Section 8-105 of the UCC) to such Shares), (i) DTC shall be a “protected purchaser” of such Shares within the meaning of Section 8-303 of the UCC, (ii) under Section 8-501 of the UCC, the Underwriters will acquire a valid security entitlement in respect of such Shares and (iii) no action based on any “adverse claim,” within the meaning of Section 8-102 of the UCC, to such Shares may be asserted against the Underwriters with respect to such security entitlement. For purposes of this representation, such Selling Stockholders may assume that when such payment, delivery and crediting occur, (A) such Shares will have been registered in the name of Cede or another nominee designated by DTC, in each case on the Company’s share registry in accordance with its certificate of incorporation, bylaws and applicable law, (B) DTC will be registered as a “clearing corporation” within the meaning of Section 8-102 of the UCC and (C) appropriate entries to the accounts of the several Underwriters on the records of DTC will have been made pursuant to the UCC.
(f) The Selling Stockholders have 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 the Continental Stock Transfer & Trust Company, as custodian (the “Custodian”), for delivery under this Agreement, certificates in negotiable form (with signature guaranteed by a commercial bank or trust company having an office or correspondent participant in the United States or a member firm of Securities Transfer Agents Medallion Program, the New York Stock Exchange Medallion Signature Program or American the Stock ExchangesExchange Medallion Program) representing the shares of Stock Shares to be sold by the Selling Stockholder Stockholders hereunder.
(dg) The Selling Stockholder has Stockholders have duly and irrevocably executed and delivered a power of attorney (the “Power of Attorney” and, together with all other similar agreements executed by the other Selling Stockholders, the “Powers of Attorney”) appointing Sxxxxxx X. Xxxxxxx Xxxxx Xxxxx, Xxxx Xxxx and one or more other persons, Xxxxx Xxxxxx as attorneys-in-fact, with full power of substitution, and with full authority (exercisable by any one or more of them) to execute and deliver this Agreement and to take such other action as may be necessary or desirable to carry out the provisions hereof on behalf of the Selling StockholderStockholders.
(eh) The Selling Stockholder has Stockholders have full right, power and authority under its limited partnership authority, corporate or similar organization agreement otherwise, to enter into this Agreement, the Custody Agreement and the Power of Attorney and to sell, assign, transfer and deliver the Custody Agreement; this Shares to be delivered by such Selling Stockholders.
(i) This Agreement has been duly and validly authorized, executed and delivered by or on behalf of the Selling Stockholder; Stockholders.
(j) The Power of Attorney and the Custody Agreement have been duly and validly authorized, executed and delivered by or on behalf of each Selling Stockholder and constitute valid and legally binding obligations of the Selling Stockholders enforceable against the Selling Stockholders in accordance with their terms, subject to (i) the effects of bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium and other similar laws relating to or affecting creditors’ rights generally, (ii) general equitable principles (whether considered in a proceeding in equity or at law) and (iii) an implied covenant of good faith and fair dealing.
(k) The execution, delivery and performance of this Agreement, the Custody Agreement and the Power of Attorney and the Custody Agreement by the Selling Stockholder Stockholders and the consummation by the Selling Stockholder Stockholders of the transactions contemplated hereby and thereby do not and will not (i) conflict with or result in a material breach or violation of any of the terms or provisions of, or constitute a material default under, any indenture, mortgage, deed of trust, loan agreement agreement, license or other agreement or instrument to which the Selling Stockholder is Stockholders are a party or by which the Selling Stockholder is Stockholders are bound or to which any of the property or assets of the Selling Stockholder is Stockholders are subject, nor will such actions (ii) result in any violation of the provisions of any charter or by-laws (or similar organizational documents) of its the Selling Stockholder, if applicable (iii) result in any violation of the provisions of any deed of trust (or similar organizational documents documents) of the Selling Stockholder, if applicable or (iv) result in the case of non-individual Selling Stockholders) or 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 Stockholders or the property or assets of the Selling Stockholder; andStockholders.
(l) All consents, except approvals, authorizations and orders necessary for the registration execution and delivery by such Selling Stockholder of this Agreement and the Power of Attorney and the Custody Agreement, and for the sale and delivery of the Stock under the Securities Act and Shares to be sold by such Selling Stockholders hereunder, have been obtained other than such consents, approvals, authorizations, registrations or qualifications orders as may have been obtained under the Act or as may be required by the rules and regulations of FINRA or under the Exchange Act, by the National Association blue sky laws of Securities Dealers, Inc. and under applicable state securities laws any jurisdiction in connection with the purchase and distribution of the Stock Shares by the UnderwritersUnderwriters except for such consents, no consentapprovals, approval, authorization or order ofauthorizations, or filing orders as would not, individually or registration within the aggregate, any be reasonably expected to have a material adverse effect on the ability of 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 Stockholders to consummate the transactions contemplated hereby and therebyby this Agreement.
(fm) The Stock To the knowledge of the Selling Stockholders, 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 sold 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 information relating to any Underwriter furnished to the Company in writing by the Selling Stockholder hereunderRepresentatives on behalf of any Underwriter specifically for inclusion therein, which information is represented specified in Section 10(f).
(n) To the knowledge of the Selling Stockholders, 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; provided that the representations and warranties contained in this paragraph shall only apply to any statements or omissions made in reliance upon and in conformity with information furnished in writing to the Company by such Selling Stockholders it being understood and agreed that the certificates held only information furnished in custody for writing to the Company by such Selling Stockholders consists of the name of such Selling Stockholder, is subject the number of offered shares and the address and other information with respect to the interest of the Underwriters, the arrangements made by the such Selling Stockholder for such custody are to that extent irrevocable, and the obligations of the Selling Stockholder hereunder shall not be terminated by any act of the Selling Stockholder, by operation of law, by the death or incapacity of any individual 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.
(gexcluding percentages) The Selling Stockholder is not prompted to sell shares of Common Stock by any information concerning the Company that is not set forth which appear in the Pricing Disclosure PackagePackage in the table (and corresponding footnotes) under the caption “Principal and Selling Stockholders.”
(o) To the knowledge of the Selling Stockholders, the documents incorporated by reference in any Preliminary Prospectus or the Prospectus did not, and any further documents filed and incorporated by reference therein will not, when filed with the Commission, contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading.
(hp) The To the knowledge of the Selling Stockholder has not taken and will not takeStockholders, directly the Pricing Disclosure Package did not, as of the Applicable Time, contain an untrue statement of a material fact or indirectlyomit to state a material fact required to be stated therein or necessary to make the statements therein, any action which is designed to or which has constituted or which might reasonably be expected to cause or result in the stabilization or manipulation light of the price 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 in reliance upon and in conformity with information relating to any Underwriter furnished to the Company in writing by the Representatives on behalf of any security of the Company to facilitate the sale or resale of the shares of the StockUnderwriter specifically for inclusion therein, which information is specified in Section 10(f).
Appears in 1 contract
Samples: Underwriting Agreement (Biote Corp.)
Representations, Warranties and Agreements of the Selling Stockholders. Each Except with respect to Section 2(d), which does not apply to Sprint, each Selling Stockholder Stockholder, severally and not jointly, represents, warrants and agrees that:
(a) Neither the such Selling Stockholder nor any person acting on behalf of the such Selling Stockholder (other than, if applicable, the Company and the Underwriters) has used or referred to any “free writing prospectus” (as defined in Rule 405), relating to the Stock, except for any Issuer Free Writing Prospectus;
(b) The Selling Stockholder has, and immediately Immediately prior to any Delivery Date on which the such Selling Stockholder is selling shares of Stock, the such Selling Stockholder will have 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 of Stock to be sold by the such Selling Stockholder hereunder on such Delivery Date, free and clear of all liens, encumbrances, equities or claims; and upon delivery of such shares and payment therefor pursuant hereto, good and valid title to such shares, free and clear of all except for any liens, encumbrances, equities or claimsclaims arising under the Stockholders’ Agreement to be entered into by the Company, Corvina Holdings Limited and Sprint (the “Stockholders Agreement”); provided, however, that any liens, encumbrances, equities or claims arising under the Stockholders’ Agreement will pass to terminate upon the several Underwriterssale of Stock on the applicable Delivery Date.
(c) The Selling Stockholder has placed in custody under a custody agreement (Upon payment for the “Custody Agreement” and, together with all other similar agreements executed by the other Selling Stockholders, the “Custody Agreements”) with the Company, as custodian (the “Custodian”), for delivery under this Agreement, certificates in negotiable form (with signature guaranteed by a commercial bank or trust company having an office or correspondent in the United States or a member firm of the New York or American Stock Exchanges) representing the shares of Stock to be sold by such Selling Stockholder, delivery of such Stock, as directed by the Underwriters, to Cede & Co. (“Cede”) or such other nominee as may be designated by The Depository Trust Company (“DTC”), registration of such Stock in the name of Cede or such other nominee and the crediting of such Stock on the books of DTC to securities accounts of the Underwriters (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 Stock), (i) DTC shall be a “protected purchaser” of such Stock within the meaning of Section 8-303 of the UCC, (ii) under Section 8-501 of the UCC, the Underwriters will acquire a valid security entitlement in respect of such Stock and (iii) no action based on any “adverse claim,” within the meaning of Section 8-102 of the UCC, to such Stock may be asserted against the Underwriters with respect to such security entitlement. For purposes of this representation, such Selling Stockholder hereundermay assume that when such payment, delivery and crediting occur, (A) such Shares will have been registered in the name of Cede or another nominee designated by DTC, in each case on the Company’s share registry in accordance with its certificate of incorporation, bylaws and applicable law, (B) DTC will be registered as a “clearing corporation” within the meaning of Section 8-102 of the UCC and (C) appropriate entries to the accounts of the several Underwriters on the records of DTC will have been made pursuant to the UCC.
(d) The Such Selling Stockholder has duly and irrevocably executed and delivered a power of attorney (the “Power of Attorney” and, together with all other similar agreements executed by the other Selling Stockholders, the “Powers of Attorney”) appointing Sxxxxxx X. Xxxxxxx and one or more other persons, Messrs. [ ] as attorneys-in-fact, with full power of substitution, and with full authority (exercisable by any one or more of them) to execute and deliver this Agreement and to take such other action as may be necessary or desirable to carry out the provisions hereof on behalf of the such Selling Stockholder.
(e) The Such Selling Stockholder has full right, power and authority under its limited partnership authority, corporate or similar organization agreement otherwise, to enter into this Agreement, the Reorganization Agreement and the Power of Attorney and Attorney, in each case to the Custody Agreement; this extent a party thereto.
(f) This Agreement has been duly and validly authorized, executed and delivered by or on behalf of the such Selling Stockholder; .
(g) The Reorganization Agreement and the executionPower of Attorney have been duly and validly authorized, executed and delivered by or on behalf of such Selling Stockholder, to the extent a party thereto, and constitute valid and legally binding obligations of such Selling Stockholder enforceable against such Selling Stockholder in accordance with their terms, in each case to the extent a party thereto and, 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 and delivery by such Selling Stockholder of, and performance by such Selling Stockholder of its obligations under this Agreement, the Power of Attorney Reorganization Agreement and the Custody Agreement by Powers of Attorney, in each case to the Selling Stockholder extent a party thereto, and the consummation by the such Selling Stockholder of the transactions contemplated hereby and thereby do not and will not (i) conflict with or result in a material breach or violation of any of the terms or provisions of, or constitute a material default under, any material indenture, mortgage, deed of trust, loan agreement agreement, license or other agreement or instrument to which the such Selling Stockholder is a party or by which the such Selling Stockholder is bound or to which any of the property or assets of the such Selling Stockholder is subject, nor will such actions (ii) result in any violation of the provisions of the charter or by-laws (or similar organizational documents) of such Selling Stockholder or (iii) result in any of its organizational documents (in the case of non-individual Selling Stockholders) or any material violation of any statute or any order, rule or regulation of any court or governmental agency or body having jurisdiction over the such Selling Stockholder or the property or assets of the such Selling Stockholder; and, except in the case of clauses (i) and (iii) for any such conflicts, breaches, defaults or violations that could not reasonably be expected to have a material adverse effect on the ability of such Selling Stockholder to perform its obligations under this Agreement, the Reorganization Agreement and the Powers of Attorney, to the extent a party thereto, or to consummate the transactions contemplated hereby and thereby.
(i) No consent, approval, authorization or order of, or filing or registration with, any court or governmental agency or body having jurisdiction over such Selling Stockholder or the property or assets of such Selling Stockholder is required for the execution, delivery and performance of this Agreement, the Reorganization Agreement or the Powers of Attorney, to the extent a party thereto, by such Selling Stockholder, in each case to the extent a party thereto, and the consummation by such Selling Stockholder of the transactions contemplated hereby and thereby, in each case to the extent a party thereto, except for the registration of the Stock under the Securities Act and such consents, approvals, authorizations, registrations or qualifications as may be required under the Exchange Act, by Act and applicable state or foreign securities or Blue Sky laws or rules of the National Association of Securities DealersFinancial Industry Regulatory Authority, Inc. and under applicable state securities laws (the “FINRA”) in connection with the purchase and distribution sale of the Stock by the Underwriters, no consent, approval, authorization or order of, or filing or registration with, any Underwriters and 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 as have been obtained.
(j) Such Selling Stockholder and has not breached or violated any of the consummation by terms or provisions of the Reorganization Agreement which breach or violation could adversely affect the ability of (i) such Selling Stockholder to consummate the offer and sale of the Stock or (ii) such Selling Stockholder to consummate any of the transactions contemplated hereby and therebyby the Reorganization.
(fk) The Stock information furnished by or on behalf of such Selling Stockholder in writing specifically for inclusion in the Registration Statement, the most recent Preliminary Prospectus, the Prospectus or any Issuer Free Writing Prospectus was, as of the Applicable Time and on the applicable Delivery Date will be true, correct and complete in all material respects, and did not, as of the Applicable Time, and on the applicable Delivery Date will not, contain any untrue statement of a material fact or omit to be sold by state any material fact necessary to make such information, in the light of the circumstances under which it is made, not misleading. The Underwriters and the Selling Stockholder hereunder, which is represented by the certificates held in custody for the Selling Stockholder, is subject to the interest Stockholders agree that such information consists solely of the Underwriters, the arrangements made by the Selling Stockholder for such custody are to that extent irrevocable, and the obligations of the Selling Stockholder hereunder shall not be terminated by any act of the Selling Stockholder, by operation of law, by the death or incapacity of any individual Selling Stockholder or, (A) in the case of a trustSprint, by the death or incapacity information set forth under “Prospectus Summary-Principal Owners-About Sprint Nextel” and the information specifically relating to Sprint under “Principal and Selling Stockholders” in the Registration Statement, the most recent Preliminary Prospectus and the Prospectus and (B) in the case of any executor or trustee or each other Selling Stockholder, the termination of information specifically relating to such trustSelling Stockholder under “Principal and Selling Stockholders” in the Registration Statement, or the occurrence of any other eventmost recent Preliminary Prospectus and the Prospectus.
(gl) The Such Selling Stockholder is not prompted to sell shares of Common Stock by any material information concerning about the Company or its subsidiaries that is not set forth or described in the Registration Statement, the Pricing Disclosure PackagePackage and the Prospectus.
(hm) The Such Selling Stockholder has not taken and will not take, directly or indirectly, any action which that is designed to or which that has constituted or which might that would reasonably be expected to cause or result in the stabilization or manipulation of the price of any security of the Company to facilitate the sale or resale of the shares of the Stock. Any certificate signed by any officer of any Selling Stockholder and delivered to the Representatives or counsel for the Underwriters in connection with the offering of the Stock shall be deemed a representation and warranty by such Selling Stockholder, as to matters covered thereby, to each Underwriter.
Appears in 1 contract
Representations, Warranties and Agreements of the Selling Stockholders. Each Selling Stockholder severally represents, warrants and agrees 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 Underwriters) has used or referred to any “free writing prospectus” First Delivery Date (as defined in Rule 405), relating to the Stock;
(bSection 5 hereof) The Selling Stockholder has, and immediately prior to any Delivery Date on which the Selling Stockholder is selling shares of Stock, the such 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”) to the shares of Stock to be sold by the such Selling Stockholder hereunder on such Delivery Datedate, free and clear of all liens, encumbrances, equities equities, preemptive rights, subscription rights, other rights to purchase, voting or transfer restrictions and other claims; and upon delivery of such shares Stock and payment therefor pursuant hereto, good and valid title to such sharesStock, free and clear of all liens, encumbrances, equities equities, preemptive rights, subscription rights, other rights to purchase, voting or transfer restrictions and other claims, will pass to the several Underwriters.
(cb) The Such Selling Stockholder has placed agreed to place in custody under a custody agreement and power of attorney (the “"Custody Agreement” Agreement and Power of Attorney" and, together with all other similar agreements executed by the other Selling Stockholders, the “"Custody Agreements”Agreements and Powers of Attorney") with the Company, as custodian (the “"Custodian”"), for delivery under this Agreement, certificates in negotiable form (with signature guaranteed by a commercial bank or trust company having an office or correspondent in the United States or a member firm of the New York or American Stock Exchanges) representing the shares of Stock to be sold by the such Selling Stockholder hereunder.
(d) The , and such Selling Stockholder has duly and irrevocably executed and delivered a power of attorney (the “Power appointing each of Attorney” andXxxx Xxxxxxxxx, together with all other similar agreements executed by the other Selling StockholdersXxx Xxxxxx, the “Powers of Attorney”) appointing Sxxxxxx Xxxx Xxxxxx and Xxxxxxx X. Xxxxxxx and one or more other personsXxxxx, as attorneys-in-fact, with full power of substitution, and with full authority (exercisable by any one or more of them) to execute and deliver this Agreement and to take such other action as may be necessary or desirable to carry out the provisions hereof on behalf of the such Selling Stockholder.
(ec) The Such Selling Stockholder has full right, power and authority under its limited partnership or similar organization agreement to enter into this Agreement, the Power of Attorney Agreement and the Custody Agreement; this Agreement has been duly and validly authorized, executed and delivered by or on behalf Power of the Selling StockholderAttorney; the execution, delivery and performance of this Agreement, the Power of Attorney Agreement and the Custody Agreement and Power of Attorney by the such Selling Stockholder and the consummation by the such Selling Stockholder of the transactions contemplated hereby and thereby will not conflict with or result in a material breach or violation of any of the terms or provisions of, or constitute a default under any material default under, any indenture, mortgage, deed of trust, loan agreement or other material agreement or instrument to which the such Selling Stockholder Stockholder, if applicable, is a party or by which the such Selling Stockholder is bound or to which any of the property or assets of the such Selling Stockholder is subject, nor will such actions result in any violation of any of its organizational documents (in the case of non-individual Selling Stockholders) or any material violation of any statute or any order, rule or regulation of any court or governmental agency or body having jurisdiction over the such Selling Stockholder or the property or assets of the such Selling Stockholder; and, except for the registration of the Stock under the Securities Act and such consents, approvals, authorizations, registrations or qualifications as may be required under the Exchange Act, Act and applicable state and foreign securities laws and by the National Association of Securities Dealers, Inc. and under applicable state securities laws NASD in connection with the purchase and distribution of the Stock by the Underwriters, no consent, approval, authorization or order of, or filing or registration with, any such court or governmental agency or body is required for the execution, delivery and performance of this Agreement, the Power of Attorney Agreement or the Custody Agreement and Power of Attorney by the such Selling Stockholder and the consummation by the Selling Stockholder of the transactions contemplated hereby and thereby.
(fd) The Stock to be sold by To the Selling Stockholder hereunder, which is represented by the certificates held in custody for the knowledge of any such Selling Stockholder, is subject the Registration Statement and the Prospectus and any further amendments or supplements to the interest Registration Statement or the Prospectus do not and will not, as of the Underwriters, applicable effective date (as to the arrangements made by the Selling Stockholder for such custody are to that extent irrevocable, Registration Statement and the obligations any amendment thereto) and as of the Selling Stockholder hereunder shall 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 be terminated misleading; provided, that no representation or warranty is made as to information contained in or omitted from the Registration Statement or the Prospectus in reliance upon and in conformity with written information furnished to the Company (i) through the Representatives by any act of the Selling Stockholder, by operation of law, by the death or incapacity on behalf of any individual Selling Stockholder or, in the case of a trust, Underwriter specifically for inclusion therein or (ii) by the death or incapacity of any executor or trustee or the termination of such trust, or the occurrence on behalf of any other eventSelling Stockholder specifically for inclusion therein; provided further, that such Selling Stockholder shall have no liability under this Section 2(d) except to the extent that the untrue statement or omission is or will be made in reliance upon and in conformity with information concerning such Selling Stockholder furnished to the Company in writing by or on behalf of such Selling Stockholder specifically for inclusion therein.
(ge) The Selling Stockholder is not prompted to sell shares of Common Stock by any information concerning the Company that is not set forth in the Pricing Disclosure Package.
(h) The Such Selling Stockholder has not taken and will not take, directly or indirectly, any action which is designed to or which has constituted or 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 of the Stock.
Appears in 1 contract
Representations, Warranties and Agreements of the Selling Stockholders. (a) Each Selling Stockholder severally representsStockholder, except for Insight Capital Partners III, L.P., Insight Capital Partners (Cayman) III, L.P. and Insight Capital Partners III – Co-Investors, L.P. (each an “Insight Entity” and collectively, the “Insight Entities”) and UBS Capital II LLC (“UBS Capital”), severally, but not jointly, represents and warrants to, and agrees with, the Underwriters that:
(a1) Neither the Selling Stockholder nor any person acting on behalf of the Selling Stockholder (other than, if applicable, the Company and the Underwriters) has used or referred to any “free writing prospectus” (as defined in Rule 405), relating to the Stock;
(b) The Selling Stockholder has, and immediately prior to any Delivery Date on which the Selling Stockholder is selling shares 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”) the 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; and upon delivery of such shares and payment therefor pursuant hereto, good and valid title to such shares, free and clear of all liens, encumbrances, equities or claims, will pass to the several Underwriters.
(c) The Such Selling Stockholder has placed in custody under a power of attorney and custody agreement (the “Custody AgreementAgreement and Power of Attorney” and, together with all other similar agreements executed by the other Selling Stockholders, the “Custody AgreementsAgreements and Powers of Attorney”) with the Company, as custodian (the “Custodian”), for delivery under this Agreement, certificates in negotiable form (with signature guaranteed by a commercial bank or trust company having an office or correspondent in the United States or a member firm of the New York or American Stock Exchanges) representing the shares of Stock to be sold by the such Selling Stockholder hereunder.
(d2) The Such Selling Stockholder has duly and irrevocably executed and delivered a power of attorney (the “Custody Agreement and Power of Attorney” and, together with all other similar agreements executed by the other Selling Stockholders, the “Powers of Attorney”) Attorney appointing Sxxxxxx X. Xxxxxxx and one or more other persons, as attorneys-in-fact, with full power of substitution, and with full authority (exercisable by any one or more of them) to execute and deliver this Agreement and to take such other action as may be necessary or desirable to carry out the provisions hereof on behalf of the such Selling Stockholder.
(eb) Each Selling Stockholder severally, but not jointly, represents and warrants to, and agrees with, the Underwriters that:
(1) The Selling Stockholder has valid title to all shares of Stock, or securities exercisable into such shares of Stock, to be sold by such Selling Stockholder under this Agreement, and immediately prior to or simultaneously with the First Delivery Date (as defined in Section 5 hereof) the Selling Stockholder will have valid title to the shares of Stock to be sold by such Selling Stockholder under this Agreement, in each case, free and clear of all liens, encumbrances, equities or claims; and upon delivery of such shares and payment therefor pursuant hereto, valid title to such shares, free and clear of all liens, encumbrances, equities or claims, will pass to the several Underwriters.
(2) The Selling Stockholder has full right, power and authority under its limited partnership or similar organization agreement to enter into this Agreement, the Power of Attorney Agreement and the Custody Agreement; this Agreement has been duly and validly authorizedPower of Attorney, executed and delivered by or on behalf of the Selling Stockholderwhere applicable; the execution, delivery and performance of this Agreement, the Power of Attorney Agreement and the Custody Agreement and Power of Attorney, where applicable, by the Selling Stockholder and the consummation by the Selling Stockholder of the transactions contemplated hereby and thereby will not (i) conflict with or result in a material breach or violation of any of the terms or provisions of, or constitute a material default under, any indenture, mortgage, deed of trust, loan 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 will such actions (ii) result in any violation of the provisions of the charter, by-laws, the articles of partnership or any other organizational document of its organizational documents the Selling Stockholder (in the case of non-individual if such Selling StockholdersStockholder is not a natural person) or (iii) result in any material violation of the provisions 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 clause (i) and (iii) above where such conflicts, breaches, violations and defaults could not reasonably be expected to materially adversely affect such Selling Stockholder’s ability to perform its obligations hereunder and under the Custody Agreement and Power of Attorney, as applicable; and, and except for the registration of the Stock under the Securities Act and such consents, approvals, authorizations, registrations or qualifications as may be required under the Exchange Act, by the National Association of Securities Dealers, Inc. Act and under applicable state securities laws in connection with the purchase and distribution of the Stock by the Underwriters, no consent, approval, authorization or order of, or filing or registration with, any such court or governmental agency or body is required for the execution, delivery and performance of this Agreement, Agreement and the Custody Agreement and 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.
(f3) The Stock information with respect to such Selling Stockholder contained in the Registration Statement and the Prospectus and any further amendments or supplements to the Registration Statement or the Prospectus that is based upon information furnished in writing to the Company by such Selling Stockholder expressly for use therein does not contain any untrue statement of a material fact or omit to state any material fact required to be sold by stated therein or necessary to make the Selling Stockholder hereunder, which is represented by statements therein not misleading in the certificates held in custody for the Selling Stockholder, is subject to the interest case of the Underwriters, the arrangements made by the Selling Stockholder for such custody are to that extent irrevocable, Registration Statement and the obligations of the Selling Stockholder hereunder shall not be terminated by any act of the Selling StockholderProspectus, by operation of law, by the death or incapacity of any individual Selling Stockholder orand, in the case of a trustthe Prospectus only, by not misleading in light of the death or incapacity of any executor or trustee or the termination of such trust, or the occurrence of any other eventcircumstances under which they were made.
(g) The Selling Stockholder is not prompted to sell shares of Common Stock by any information concerning the Company that is not set forth in the Pricing Disclosure Package.
(h4) The Selling Stockholder has not taken and will not take, directly or indirectly, any action which is designed to or which has constituted or 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 of the StockStock in violation of applicable securities laws and the Rules and Regulations of the Commission.
Appears in 1 contract
Representations, Warranties and Agreements of the Selling Stockholders. Each Selling Stockholder Stockholder, severally and not jointly, represents, warrants and agrees that:
(a) The Selling Stockholder, if an entity, has been duly organized and is validly existing as a corporation, limited liability company, public agency, or a limited partnership or equivalent, as the case may be, in good standing in its jurisdiction of formation (to the extent such concept is applicable).
(b) Neither the Selling Stockholder nor any person acting on behalf of the Selling Stockholder (other than, if applicable, the Company and the Underwriters) has used or referred to any “free writing prospectus” (as defined in Rule 405), 405 under the Securities Act) relating to the Stock;Common Shares in the form of ADSs.
(bc) The Selling Stockholder has, and immediately prior to any Delivery Date on which the Selling Stockholder is selling shares of StockSecurities (through ADSs), the Selling Stockholder will have have, good and valid title to, or a valid to the Securities (through ADSs) 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”) the shares of Stock to be sold by the Selling Stockholder hereunder on such Delivery Datein respect thereof, free and clear of all liens, encumbrances, equities or adverse claims; and upon .
(d) [Reserved].
(e) Upon payment for the Securities to be sold by such Selling Stockholder, delivery of such shares Securities, as directed by the Underwriters, to Cede & Co. (“Cede”) or such other nominee as may be designated by The Depository Trust Company (“DTC”), registration of such Securities in the name of Cede or such other nominee and payment therefor pursuant hereto, good and valid title the crediting of such Securities on the books of DTC to securities accounts of the Underwriters (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 Securities within the meaning of Section 8-303 of the UCC, free (ii) under Section 8-501 of the UCC, the Underwriters will acquire a valid security entitlement in respect of such Securities, and clear (iii) an action based on an adverse claim, within the meaning of all liensSection 8-102 of the UCC, encumbrancesmay not be asserted against the Underwriters with respect to such security entitlement. For purposes of this representation, equities such Selling Stockholder may assume that when such payment, delivery and crediting occur, (x) such Securities will have been registered in the name of Cede or claimsanother nominee designated by DTC, in each case on the Company’s share registry in accordance with its certificate of incorporation, bylaws and applicable law, (y) DTC will pass be registered as a “clearing corporation” within the meaning of Section 8-102 of the UCC, and (z) appropriate entries to the accounts of the several UnderwritersUnderwriters on the records of DTC will have been made pursuant to the UCC.
(cf) The Selling Stockholder has placed in custody under a custody agreement (the “Custody Agreement” full right, power and authority, corporate or otherwise, to enter into this Agreement and, together with all other similar agreements executed by in the other case of each Additional Selling StockholdersStockholder, the “Custody Agreements”) with the Company, as custodian (the “Custodian”), for delivery under this Agreement, certificates in negotiable form (with signature guaranteed by a commercial bank or trust company having an office or correspondent in the United States or a member firm Power of the New York or American Stock Exchanges) representing the shares of Stock to be sold by the Selling Stockholder hereunder.
(d) The Selling Stockholder has duly and irrevocably executed and delivered a power of attorney Attorney (the “Power of Attorney” and, together with all other similar agreements executed by the other Selling Stockholders, the “Powers of Attorney”) appointing Sxxxxxx X. Xxxxxxx and one or more other persons, as attorneys-in-fact, with full power of substitution, and with full authority (exercisable by any one or more of them) to execute and deliver this Agreement and to take such other action as may be necessary or desirable to carry out the provisions hereof on behalf of the Selling Stockholder).
(eg) The This Agreement and, in the case of each Additional Selling Stockholder has power and authority under its limited partnership or similar organization agreement to enter into this AgreementStockholder, the Power of Attorney and the Custody Agreement; this Agreement has been duly and validly authorizedauthorized (if the Selling Stockholder is an entity), executed and delivered by or on behalf of the Selling Stockholder; .
(h) The sale of the Securities by the Selling Stockholder, the execution, delivery and performance of this Agreement, the Power of Attorney and the Custody Agreement by the Selling Stockholder and, in the case of each Additional Selling Stockholder, of the Power of Attorney and the consummation by the Selling Stockholder of the transactions contemplated hereby do not and thereby will not (i) conflict with or result in a material breach or violation of any of the terms or provisions of, or constitute a material default under, any indenture, mortgage, deed of trust, loan agreement agreement, 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, nor will such actions (ii) result in any violation of the provisions of the charter or by-laws (or similar organizational documents) of the Selling Stockholder (to the extent applicable) or (iii) result in any violation of any of its organizational documents (in the case of non-individual Selling Stockholders) or any material 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 and, except for in the registration case of each Additional Selling Stockholder, the Stock under the Securities Act and such consents, approvals, authorizations, registrations or qualifications as may be required under the Exchange Act, by the National Association Power of Securities Dealers, Inc. and under applicable state securities laws in connection with the purchase and distribution of the Stock by the Underwriters, no Attorney.
(i) 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 sale of the Securities by the Selling Stockholder, the execution, delivery and performance of this AgreementAgreement by the Selling Stockholder and, in the case of each Additional Selling Stockholder, the Power of Attorney or the Custody Agreement by the Selling Stockholder and the consummation by the Selling Stockholder of the transactions contemplated hereby hereby, except for the registration of the Securities under the Securities Act, the registration of the Common Shares with the National Securities Registry, maintained by the CNBV, and therebysuch 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 Securities by the Underwriters.
(fj) The Stock Registration Statement did not, as of the Effective Date, (ii) the Pricing Disclosure Package did not, as of the Applicable Time, (iii) the Pricing Disclosure Package, when taken together with each Issuer Free Writing Prospectus listed in Schedule V hereto, did not, as of the Applicable Time and (iv) the Prospectus will not, as of the its date 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 sold stated therein or necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading. The preceding sentence applies only to written information furnished to the Company by the Selling Stockholder hereunderexpressly for use therein, which is represented it being understood and agreed that the only such information furnished by the certificates held in custody for Selling Stockholder consists of the Selling Stockholder’s Selling Stockholder Information. Each Underwriter, is subject the Company and the Selling Stockholder agree that the “Selling Stockholder Information” with respect to the interest a Selling Stockholder consists solely of the Underwriters, the arrangements made information furnished by the Selling Stockholder for such custody are to that extent irrevocableuse in connection with the offering in the Registration Statement, the Pricing Disclosure Package and the obligations Prospectus, which consists solely of (i) the name, address and number of the Selling Stockholder hereunder shall not be terminated Securities owned by any act of the Selling Stockholder, by operation of lawbefore and after the offering, by and (ii) the death or incapacity of any individual other information with respect to the Selling Stockholder orthat appears in the table (and corresponding footnotes) under the caption “Principal and Selling Shareholders,” in each case, in the case of a trustRegistration Statement, by the death Pricing Disclosure Package, the Prospectus or incapacity of in any executor or trustee or the termination of such trust, or the occurrence of any other eventIssuer Free Writing Prospectus.
(gk) [Reserved].
(l) [Reserved].
(m) [Reserved].
(n) The Selling Stockholder is not prompted to sell shares of Common Stock Securities by any material, non-public information concerning the Company and its securities that is not set forth in the Registration Statement, the Pricing Disclosure PackagePackage and the Prospectus.
(ho) The Selling Stockholder has not taken and will not taketaken, directly or indirectly, any action which that is designed to or which that has constituted or which might 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 offering of the Common Shares in the form of ADSs.
(p) The sale of the Securities by the Selling Stockholder, if an employee or a director of the Company, does not violate the Company’s by-laws or any of the Company’s internal policies regarding the sale of stock.
(q) The Selling Stockholder has not: (i) used any corporate funds for any unlawful contribution, gift, entertainment or resale 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 shares FCPA, the Bribery Act 2010, as amended, the Mexican Anti-Corruption Laws 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, the Bribery Act 2010, the Mexican Anti-Corruption Laws 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 StockSelling 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 (to the extent applicable) 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 (including, without limitation, the non-government-controlled areas of Zaporizhzhia and Kherson, the so-called Donetsk People’s Republic, or so-called Luhansk People’s Republic or any other Covered Region of Ukraine identified pursuant to Executive Order 14065, 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 Money Laundering Laws, and the FCPA, the Bribery Act 2010, the Mexican Anti-Corruption Laws and all other applicable anti-corruption and anti-bribery statutes or regulations. The Selling Stockholder has not knowingly engaged in since April 24, 2019, is not now knowingly engaged in, and will not knowingly 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) No stamp, issue, registration, documentary or other similar taxes and duties, including interest and penalties, are payable in Mexico on or in connection with the issuance and sale of the Underlying Securities by the Company and the ADSs pursuant to the Deposit Agreement or the execution and delivery of this Agreement or the Deposit Agreement. Any certificate signed by any officer of the Selling Stockholder and delivered to the Representatives or counsel for the Underwriters in connection with the offering of the Common Shares in the form of ADSs shall be deemed to be a representation and warranty by such Selling Stockholder, as to matters covered thereby, to each Underwriter.
Appears in 1 contract
Samples: Underwriting Agreement (Grupo Aeromexico, S.A.B. De C.V.)
Representations, Warranties and Agreements of the Selling Stockholders. Each Selling Stockholder severally Stockholder, several 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 Underwriters) has used or referred to any “free writing prospectus” (as defined in Rule 405), 405 under the Securities Act) relating to the Stock;.
(b) The Selling Stockholder has, and immediately prior to any Delivery Date on which the Selling Stockholder is selling shares of Stock, the Selling Stockholder will have 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”) the shares of Stock to be sold by the Selling Stockholder hereunder on such Delivery Datein respect thereof, free and clear of all liens, encumbrances, equities, community property rights, restrictions on transfer or claims, except, in the case of the University of Notre Dame du Lac (“Notre Dame”), for any liens, encumbrances, equities or claims; and upon claims arising under the Custody Agreement.
(c) Upon payment for the Stock to be sold by such Selling Stockholder, delivery of such shares Stock, as directed by the Underwriters, to Cede & Co. (“Cede”) or such other nominee as may be designated by The Depository Trust Company (“DTC”), registration of such Stock in the name of Cede or such other nominee and payment therefor pursuant hereto, the crediting of such Stock on the books of DTC to securities accounts of the Underwriters (i) DTC will acquire good and valid marketable title to such shares, the Stock free and clear of all liens, encumbrances, equities equities, community property rights, restrictions on transfer or claims, (ii) DTC shall be a “protected purchaser” of such Stock within the meaning of Section 8-303 of the UCC, (iii) under Section 8-501 of the UCC, the Underwriters will pass acquire a valid security entitlement in respect of such Stock, and (iv) an action based on an “adverse claim” (as defined in Section 8-102 of the UCC) to such securities entitlement, whether framed in conversion, replevin, constructive trust, equitable lien or other theory may not be successfully asserted against the Underwriters with respect to such security entitlement. For purposes of this representation, such Selling Stockholder may assume that when such payment, delivery and crediting occur, (w) neither DTC nor any Underwriter has notice of any “adverse claim” to such Stock within the meaning of Section 8-105 of the UCC, (x) such 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, bylaws and applicable law, (y) DTC will be registered as a “clearing corporation” within the meaning of Section 8-102 of the UCC, and (z) appropriate entries to the accounts of the several UnderwritersUnderwriters on the records of DTC will have been made pursuant to the UCC.
(cd) The Selling Stockholder In the case of Notre Dame, Notre Dame 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 the Company, as custodian (the “Custodian”), for delivery under this Agreement, certificates in negotiable form (with signature guaranteed by a commercial bank or trust company having an office or correspondent participant in the United States or a member firm of Securities Transfer Agents Medallion Program, the New York Stock Exchange Medallion Signature Program or American the Stock ExchangesExchange Medallion Program) representing the shares of Stock to be sold by the Selling Stockholder Notre Dame hereunder.
(de) The Selling Stockholder In the case of Notre Dame, Notre Dame has duly and irrevocably executed and delivered a power of attorney (the “Power of Attorney” and, together with all other similar agreements executed by the other Selling Stockholders, the “Powers of Attorney”) appointing Sxxxxxx the Custodian and Xx. Xxxxxx X. Xxxxxxx and one or more other persons, Chlapaty as attorneys-in-fact, with full power of substitution, and with full authority (exercisable by any one or more of them) to execute and deliver this Agreement and to take such other action as may be necessary or desirable to carry out the provisions hereof on behalf of the Selling StockholderNotre Dame.
(ef) The Selling Stockholder has full right, power and authority under its limited partnership authority, corporate or similar organization agreement otherwise, to enter into this Agreement, the Custody Agreement (in the case of Notre Dame) and the Power of Attorney and (in the Custody Agreement; this case of Notre Dame).
(g) This Agreement has been duly and validly authorized, executed and delivered by or on behalf of the Selling Stockholder; .
(h) In the case of Notre Dame, the Power of Attorney and the Custody Agreement have been duly and validly authorized, executed and delivered by or on behalf of Notre Dame and constitute valid and legally binding obligations of Notre Dame enforceable against Notre Dame in accordance with their terms, subject to (i) the effects of bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium and other similar laws relating to or affecting creditors’ rights generally, (ii) general equitable principles (whether considered in a proceeding in equity or at law), and (iii) an implied covenant of good faith and fair dealing.
(i) The execution, delivery and performance of this Agreement, the Custody Agreement (in the case of Notre Dame) and the Power of Attorney and (in the Custody Agreement case of Notre Dame) by the Selling Stockholder and the consummation by the Selling Stockholder of the transactions contemplated hereby and thereby (in the case of Notre Dame) do not and will not (i) conflict with or result in a material breach or violation of any of the terms or provisions of, or constitute a material default under, any indenture, mortgage, deed of trust, loan agreement agreement, 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, nor will (ii) result in any violation of the provisions of the charter or by-laws (or similar organizational document) of such actions Selling Stockholder, or (iii) result in any violation of any of its organizational documents (in the case of non-individual Selling Stockholders) or any material 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; and, except in the case of clauses (i) and (iii), 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 by this Agreement.
(j) 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, the Custody Agreement (in the case of Notre Dame) and the Power of Attorney (in the case of Notre Dame) by the Selling Stockholder and the consummation by the Selling Stockholder of the transactions contemplated hereby and thereby (in the case of Notre Dame), except (A) such as have been or prior to the Initial Delivery Date will be obtained or made, (B) for the registration of the Stock under the Securities Act and such consents, approvals, authorizations, orders, filings, registrations or qualifications as may be required under the Exchange Act, by the National Association of Securities Dealers, Inc. and under applicable state securities laws and the rules of FINRA in connection with the purchase and distribution sale of the Stock by the Underwriters, no consent, approval, authorization or order of, or filing or registration with, any such court or governmental agency or body 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.
(fC) The Stock to be sold by the Selling Stockholder hereunder, which is represented by the certificates held in custody for the Selling Stockholder, is subject to the interest of the Underwriters, the arrangements made by the Selling Stockholder for such custody are that, if not obtained, would not, individually or in the aggregate, reasonably be expected to that extent irrevocable, and have a material adverse effect on the obligations ability of the Selling Stockholder hereunder shall not be terminated to consummate the transactions contemplated by any act this Agreement, and (D) as described in the Registration Statement and the most recent Preliminary Prospectus.
(k) 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 through the Representatives by operation of law, by the death or incapacity on behalf of any individual Underwriter specifically for inclusion therein, which information is specified in Section 10(f); provided further that the representations and warranties set forth in this paragraph 2(k) are limited in all respects to statements or omissions made in reliance upon and in conformity with written information (the “Selling Stockholder orInformation”) relating to such Selling Stockholder furnished to the Company in writing by such Selling Stockholder expressly for use in the Registration Statement, it being understood and agreed that the only information furnished by such Selling Stockholder consists of the name of such Selling Stockholder, the number of offered shares and the address and other information with respect to such Selling Stockholder (excluding percentages) which appear in the Registration Statement in the table (and corresponding footnotes) under the caption “Principal and Selling Stockholders.”
(l) To the knowledge of the Selling Stockholder, the Prospectus will not, as of its date or as of the applicable Delivery Date, contain an untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in the case light of a trustthe 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 Representatives by the death or incapacity on behalf of any executor Underwriter specifically for inclusion therein, which information is specified in Section 10(f); provided further that the representations and warranties set forth in this paragraph 2(l) are limited in all respects to statements or trustee or omissions made in reliance upon and in conformity with the termination of such trust, or the occurrence of any other eventSelling Stockholder Information.
(gm) 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 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 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); provided further that the representations and warranties set forth in this paragraph 2(m) are limited in all respects to statements or omissions made in reliance upon and in conformity with the Selling Stockholder Information.
(n) To the knowledge of the Selling Stockholder, the Pricing Disclosure Package, when taken together with each Issuer Free Writing Prospectus listed in Schedule V hereto, did not, as of the Applicable Time, contain an untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading; provided that 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 any Underwriter specifically for inclusion therein, which information is specified in Section 10(f); provided further that the representations and warranties set forth in this paragraph 2(n) are limited in all respects to statements or omissions made in reliance upon and in conformity with the Selling Stockholder Information.
(o) The Selling Stockholder is not prompted to sell shares of Common Stock by any information concerning the Company that is not set forth in the Registration Statement, the Pricing Disclosure PackagePackage and the Prospectus.
(hp) The Selling Stockholder has not taken and will not taketaken, directly or indirectly, any action which that is designed to or which that has constituted or which might that would reasonably be expected to cause or result in the stabilization or manipulation of the price of any security of the Company to facilitate in connection with the sale or resale offering of the shares of the Stock. For the avoidance of doubt, notwithstanding anything to the contrary contained in this Section 2, ASP ADS Investco, LLC, as a Selling Stockholder, makes no representations or warranties with respect to the Custody Agreement or Power of Attorney. Any certificate signed by the Selling Stockholder and delivered to the Representatives or counsel for the Underwriters in connection with the offering of the Stock shall be deemed a representation and warranty by such Selling Stockholder, as to matters covered thereby, to each Underwriter.
Appears in 1 contract
Samples: Underwriting Agreement (Advanced Drainage Systems, Inc.)
Representations, Warranties and Agreements of the Selling Stockholders. Each Selling Stockholder Stockholder, severally representsand not jointly, represents and warrants to and agrees with each Underwriter and the Company that:
(a) Neither the Such Selling Stockholder nor now has, on the Closing Date, and on any person acting later date on behalf of the Selling Stockholder (other thanwhich Option Shares are purchased, if applicable, the Company and the Underwriters) has used or referred to any “free writing prospectus” (as defined in Rule 405), relating will have valid marketable title to the Stock;
(b) The Selling Stockholder has, and immediately prior to any Delivery Date on which the Selling Stockholder is selling shares 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”) the shares of Stock Shares to be sold by the such Selling Stockholder hereunder on such Delivery DateStockholder, free and clear of all liensany pledge, encumbranceslien, equities security interest, encumbrance, claim or claimsequitable interest other than pursuant to this Agreement; and upon delivery of such shares Shares hereunder and payment therefor pursuant heretoof the purchase price as herein contemplated, good and each of the Underwriters will obtain valid marketable title to the Shares purchased by it from such sharesSelling Stockholder, free and clear of all liensany pledge, encumbranceslien, equities security interest pertaining to such Selling Stockholder or claimssuch Selling Stockholder's property, will pass encumbrance, claim or equitable interest, including any liability for estate or inheritance taxes, or any liability to the several Underwritersor claims of any creditor, devisee, legatee or beneficiary of such Selling Stockholder.
(cb) The Such Selling Stockholder has placed duly authorized (if applicable), executed and delivered, in custody under the form heretofore furnished to the Representatives, a custody agreement Selling Stockholder's Irrevocable Power of Attorney (the “"Power of Attorney") appointing ___________ and ___________ as attorneys-in-fact (collectively, the "Attorneys" and individually, an "Attorney") and a Letter of Transmittal and Custody Agreement (the "Custody Agreement” and, together with all other similar agreements executed by the other Selling Stockholders, the “Custody Agreements”") with the Company______________________________, as custodian (the “"Custodian”"), for delivery under this Agreement, certificates in negotiable form (with signature guaranteed by a commercial bank or trust company having an office or correspondent in the United States or a member firm ; each of the New York or American Stock Exchanges) representing the shares of Stock to be sold by the Selling Stockholder hereunder.
(d) The Selling Stockholder has duly and irrevocably executed and delivered a power of attorney (the “Power of Attorney” andAttorney and the Custody Agreement constitutes a valid and binding agreement on the part of such Selling Stockholder, together enforceable in accordance with all its terms, except as the enforcement thereof may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or other similar agreements executed laws relating to or affecting creditors' rights generally or by the other general equitable principles; and each of such Selling StockholdersStockholder's Attorneys, the “Powers of Attorney”) appointing Sxxxxxx X. Xxxxxxx and one or more other personsacting alone, as attorneys-in-fact, with full power of substitution, and with full authority (exercisable by any one or more of them) is authorized to execute and deliver this Agreement and the certificate referred to take such other action as may be necessary or desirable to carry out the provisions in Section 7(h) hereof on behalf of such Selling Stockholder, to determine the purchase price to be paid by the several Underwriters to such Selling Stockholder as provided in Section 3 hereof, to authorize the delivery of the Selling StockholderStockholder Shares and the Option Shares to be sold by such Selling Stockholder under this Agreement and to duly endorse (in blank or otherwise) the certificate or certificates representing such Shares or a stock power or powers with respect thereto, to accept payment therefor, and otherwise to act on behalf of such Selling Stockholder in connection with this Agreement.
(ec) The All consents, approvals, authorizations and orders required for the execution and delivery by such Selling Stockholder has power and authority under its limited partnership or similar organization agreement to enter into this Agreement, of the Power of Attorney and the Custody Agreement, the execution and delivery by or on behalf of such Selling Stockholder of this Agreement and the sale and delivery of the Selling Stockholder Shares and the Option Shares to be sold by such Selling Stockholder under this Agreement (other than, at the time of the execution hereof (if the Registration Statement has not yet been declared effective by the Commission), the issuance of the order of the Commission declaring the Registration Statement effective and such consents, approvals, authorizations or orders as may be necessary under state or other securities or Blue Sky laws) have been obtained and are in full force and effect; such Selling Stockholder, if other than a natural person, has been duly organized and is validly existing in good standing under the laws of the jurisdiction of its organization as the type of entity that it purports to be; and such Selling Stockholder has full legal right, power and authority to enter into and perform its obligations under this Agreement and such Power of Attorney and Custody Agreement, and to sell, assign, transfer and deliver the Shares to be sold by such Selling Stockholder under this Agreement.
(d) Such Selling Stockholder will not, during the Lock-up Period, effect the Disposition of any Securities now owned or hereafter acquired directly by such Selling Stockholder or with respect to which such Selling Stockholder has or hereafter acquires the power of disposition, otherwise than (i) as a bona fide gift or gifts, provided the donee or donees thereof agree in writing to be bound by this restriction, (ii) as a distribution to partners or shareholders of such Selling Stockholder, provided that the distributees thereof agree in writing to be bound by the terms of this restriction, or (iii) with the prior written consent of Xxxxxxxxx, Xxxxxxxx & Company LLC. The foregoing restriction is expressly agreed to preclude the holder of the Securities from engaging in any hedging or other transaction which is designed to or reasonably expected to lead to or result in a Disposition of Securities during the Lock-up Period, even if such Securities would be disposed of by someone other than the Selling Stockholder. Such prohibited hedging or other transactions would including, without limitation, any short sale (whether or not against the box) or any purchase, sale or grant of any right (including, without limitation, any put or call option) with respect to any Securities or with respect to any security (other than a broad-based market basket or index) that includes, relates to or derives any significant part of its value from Securities. Such Selling Stockholder also agrees and consents to the entry of stop transfer instructions with the Company's transfer agent against the transfer of the securities held by such Selling Stockholder except in compliance with this restriction.
(e) Certificates in negotiable form for all Shares to be sold by such Selling Stockholder under this Agreement, together with a stock power or powers duly endorsed in blank by such Selling Stockholder, have been placed in custody with the Custodian for the purpose of effecting delivery hereunder.
(f) This Agreement has been duly authorized by each Selling Stockholder that is not a natural person and validly authorized, has been duly executed and delivered by or on behalf of the such Selling Stockholder and is a valid and binding agreement of such Selling Stockholder, enforceable in accordance with its terms, except as rights to indemnification hereunder may be limited by applicable law and except as the enforcement hereof may be limited by bankruptcy, insolvency, reorganization, moratorium or other similar laws relating to or affecting creditors' rights generally or by general equitable principles; and the execution, delivery and performance of this Agreement, the Power of Attorney and the Custody Agreement by the Selling Stockholder and the consummation by the Selling Stockholder of the transactions herein contemplated hereby and thereby will not conflict with or result in a material breach or violation of any of the terms or and provisions of, of or constitute a material default underunder any bond, debenture, note or other evidence of indebtedness, or under any lease, contract, indenture, mortgage, deed of trust, loan agreement agreement, joint venture or other agreement or instrument to which the such Selling Stockholder is a party or by which the such Selling Stockholder, or any Selling Stockholder is bound Shares or any Option Shares to which any of the property or assets of the be sold by such Selling Stockholder is subjecthereunder, nor will may be bound or, to the best of such actions Selling Stockholders' knowledge, result in any violation of any of its organizational documents (in the case of non-individual Selling Stockholders) law, order, rule, regulation, writ, injunction, judgment or any material violation decree of any statute or any ordercourt, rule or regulation of any court government or governmental agency or body body, domestic or foreign, having jurisdiction over the such Selling Stockholder or over the property or assets properties of the Selling Stockholder; and, except for the registration of the Stock under the Securities Act and such consents, approvals, authorizations, registrations or qualifications as may be required under the Exchange Act, by the National Association of Securities Dealers, Inc. and under applicable state securities laws in connection with the purchase and distribution of the Stock by the Underwriters, no consent, approval, authorization or order of, or filing or registration with, any such court or governmental agency or body 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.
(f) The Stock to be sold by the Selling Stockholder hereunder, which is represented by the certificates held in custody for the Selling Stockholder, or, if such Selling Stockholder is subject to the interest other than a natural person, result in any violation of any provisions of the Underwriterscharter, the arrangements made by the Selling Stockholder for bylaws or other organizational documents of such custody are to that extent irrevocable, and the obligations of the Selling Stockholder hereunder shall not be terminated by any act of the Selling Stockholder, by operation of law, by the death or incapacity of any individual 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.
(g) The Selling Stockholder is not prompted to sell shares of Common Stock by any information concerning the Company that is not set forth in the Pricing Disclosure Package.
(h) The Such Selling Stockholder has not taken and will not take, directly or indirectly, any action which is designed to or which has constituted or which that might reasonably be expected to cause or result in the stabilization or manipulation of the price of any security of the Company Common Stock to facilitate the sale or resale of the shares Shares.
(h) Such Selling Stockholder has not distributed and will not distribute any prospectus or other offering material in connection with the offering and sale of the StockShares.
(i) All information furnished by or on behalf of such Selling Stockholder relating to such Selling Stockholder and the Selling Stockholder Shares that is contained in the representations and warranties of such Selling Stockholder in such Selling Stockholder's Power of Attorney or set forth in the Registration Statement or the Prospectus is, and at the time the Registration Statement became or becomes, as the case may be, effective and at all times subsequent thereto up to and on the Closing Date, and on any later date on which Option Shares are to be purchased, was or will be, true, correct and complete, and does not, and at the time the Registration Statement became or becomes, as the case may be, effective and at all times subsequent thereto up to and on the Closing Date (hereinafter defined), and on any later date on which Option Shares are to be purchased, will not, contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make such information not misleading.
(j) Such Selling Stockholder will review the Prospectus and will comply with all agreements and satisfy all conditions on its part to be complied with or satisfied pursuant to this Agreement on or prior to the Closing Date, or any later date on which Option Shares are to be purchased, as the case may be, and will advise one of its Attorneys and Xxxxxxxxx, Xxxxxxxx & Company LLC prior to the Closing Date or such later date on which Option Shares are to be purchased, as the case may be, if any statement to be made on behalf of such Selling Stockholder in the certificate contemplated by Section 6(h)would be inaccurate if made as of the Closing Date or such later date on which Option Shares are to be purchased, as the case may be.
(k) Such Selling Stockholder does not have, or has waived prior to the date hereof, any preemptive right, co-sale right or right of first refusal or other similar right to purchase any of the Shares that are to be sold by the Company or any of the other Selling Stockholders to the Underwriters pursuant to this Agreement; such Selling Stockholder does not have, or has waived prior to the date hereof, any registration right or other similar right to participate in the offering made by the Prospectus, other than such rights of participation as have been satisfied by the participation of such Selling Stockholder in the transactions to which this Agreement relates in accordance with the terms of this Agreement; and such Selling Stockholder does not own any warrants, options or similar rights to acquire, and does not have any right or arrangement to acquire, any capital stock, rights, warrants, options or other securities from the Company, other than those described in the Registration Statement and the Prospectus.
(l) Such Selling Stockholder is not aware (without having conducted any investigation or inquiry) that any of the representations and warranties of the Company set forth in Section 2 above is untrue or inaccurate in any material respect.
Appears in 1 contract
Samples: Underwriting Agreement (Tsi International Software LTD)
