Representations, Warranties and Covenants of the Selling Stockholder. (a) The Selling Stockholder represents and warrants to, and agrees with, the Company and the Underwriters that: (i) The Selling Stockholder has, and on the First Closing Date or the Second Closing Date hereinafter defined, as the case may be, will have, valid marketable title to the Shares proposed to be sold by the Selling Stockholder hereunder on such date and full right, power and authority to enter into this Agreement and the Pricing Agreement and to sell, assign, transfer and deliver such Shares hereunder, free and clear of all voting trust arrangements, liens, encumbrances, equities, claims and community property rights; and upon delivery of and payment for such Shares hereunder, the Underwriters will acquire valid marketable title thereto, free and clear of all voting trust arrangements, liens, encumbrances, equities, claims and community property rights other than those imposed upon or consented to in writing by the Representatives. (ii) The Selling Stockholder has not taken and will not take during the offering period (including any time after the effective date of the Registration Statement during which the Underwriters are deemed to be making a public offering), directly or indirectly, any action designed to or which might be reasonably expected to cause or result, under the Exchange Act or otherwise, in stabilization or manipulation of the price of any security of the Company to facilitate the sale or resale of the Shares. (iii) [Each preliminary prospectus, solely with respect to information provided by the Selling Stockholder for inclusion therein as of its date relating to the Selling Stockholder (it being understood such information does not include information relating to the operations of the Company), has not included any untrue statement of a material fact or omitted to state a material fact necessary to make the statements therein not misleading; and the Registration Statement at the time of effectiveness, and at all times subsequent thereto, until the First Closing Date or the Second Closing Date hereinafter defined, as the case may be, neither the Registration Statement nor the Prospectus, nor any amendment or supplement thereto, solely with respect to information relating to the Selling Stockholder (it being understood such information does not include information relating to the operations of the Company) provided by the Selling Stockholder for inclusion therein, included or will include any untrue statement of a material fact or omitted or will omit to state any material fact required to be stated therein or necessary to make the statements therein not misleading.] (iv) The Selling Stockholder agrees with the Company and the Underwriters not to, directly or indirectly, (i) offer, sell (including "short" selling), assign, transfer, encumber, pledge, contract to sell, grant an option to purchase, establish an open "put equivalent position" within the meaning of Rule 16a-1(h) under the Exchange Act, or otherwise dispose of any shares of Common Stock or securities convertible or exchangeable into, or exercisable for, Common Stock held of record or beneficially owned (within the meaning of Rule 13d-3 under the Exchange Act); or (ii) enter any swap or other arrangement that transfers all or a portion of the economic consequences associated with the ownership of any Common Stock for a period of 180 days after this Agreement becomes effective without the prior written consent of the Representatives. In order to document the Underwriter's compliance with the reporting and withholding provisions of the Internal Revenue Code of 1986, as amended, with respect to the transactions herein contemplated, the Selling Stockholder agrees to deliver to you prior to or on the First Closing Date, as hereinafter defined, a properly completed and executed United States Treasury Department Form W-8 or W-9 (or other applicable form of statement specified by Treasury Department regulations in lieu thereof).
Appears in 1 contract
Samples: Underwriting Agreement (Portfolio Recovery Associates Inc)
Representations, Warranties and Covenants of the Selling Stockholder. (a) The Selling Stockholder represents represents, warrants and warrants to, and agrees with, the Company and the Underwriters covenants to each Underwriter that:
(ia) The All consents, approvals, authorizations and orders necessary for the execution and delivery by the Selling Stockholder hasof this Agreement and the Irrevocable Power-of-Attorney and the Stock Custody Agreement (hereinafter referred to collectively as the “Stockholder’s Agreements”) hereinafter referred to, and on for the First Closing Date or sale and delivery of the Second Closing Date hereinafter defined, as the case may be, will have, valid marketable title to the Selling Stockholder Firm Shares proposed to be sold by the Selling Stockholder hereunder on such date hereunder, have been obtained; and the Selling Stockholder has full right, power and authority to enter into this Agreement and the Pricing Agreement Stockholder’s Agreements, to make the representations, warranties and agreements hereunder and thereunder, and to sell, assign, transfer and deliver the Selling Stockholder Firm Shares to be sold by the Selling Stockholder hereunder.
(b) A certificate in negotiable form representing all of the Selling Stockholder Firm Shares to be sold by the Selling Stockholder has been placed in custody under the Stockholder’s Agreements, in the form heretofore furnished to you, duly executed and delivered by the Selling Stockholder to the Custodian, and the Selling Stockholder has duly executed and delivered the Irrevocable Power-of-Attorney, in the form heretofore furnished to you and included in the Stockholder’s Agreements (the “Power-of-Attorney”), appointing Xxxxxxx X. Xxxxx and Xxxxx X. Xxxx, or either of them, as the Selling Stockholder’s attorney-in-fact (each an, “Attorney-in-Fact”) with authority to execute and deliver this Agreement on behalf of the Selling Stockholder, to determine (subject to the provisions of the Stockholder’s Agreements) the purchase price to be paid by the Underwriters to the Selling Stockholders as provided in Section 2 hereof, to authorize the delivery of the Selling Stockholder Firm Shares to be sold by the Selling Stockholder hereunder and otherwise to act on behalf of the Selling Stockholder in connection with the transactions contemplated by this Agreement and the Stockholder’s Agreements.
(c) The Selling Stockholder specifically agrees that the Selling Stockholder Firm Shares represented by the certificates held in custody for the Selling Stockholder under the Stockholder’s Agreements are for the benefit of and coupled with and subject to the interests of the Underwriters, the Custodian, each of the Attorneys-in-Fact and the Company, that the arrangements made by the Selling Stockholder for such custody, and the appointment by the Selling Stockholder of the Attorneys by the Irrevocable Power-of-Attorney, are, except as specifically provided in the Stockholder’s Agreements, to that extent irrevocable, and that the obligations of the Selling Stockholder hereunder shall not be terminated by operation of law, whether by the death, disability, incapacity, liquidation or dissolution of the Selling Stockholder or by the occurrence of any other event. If Selling Stockholder or any executor or trustee for Selling Stockholder should die or become incapacitated, or if Selling Stockholder should be liquidated or dissolved, or if any other such event should occur, before the delivery of the Selling Stockholder Firm Shares hereunder, certificates representing the Selling Stockholder Firm Shares shall be delivered by or on behalf of the Selling Stockholder in accordance with the terms and conditions of this Agreement and of the Stockholder’s Agreements, and actions taken by the Attorneys-in-Fact pursuant to the Power-of-Attorney shall be as valid as if such liquidation, dissolution, winding up or other event had not occurred, regardless of whether or not the Custodian, the Attorneys-in-Fact, or any of them, shall have received notice of such liquidation, dissolution, winding up or other event.
(d) This Agreement and the Stockholder’s Agreements have each been duly authorized, executed and delivered by or on behalf of the Selling Stockholder and each such document constitutes a valid and binding obligation of the Selling Stockholder, enforceable in accordance with its terms, except where the enforcement thereof may be limited by equitable principles or bankruptcy laws.
(e) No consent, approval, authorization or order of, or any filing or declaration with, any court or governmental agency or body is required in connection with the sale of the Selling Stockholder Firm Shares by the Selling Stockholder or the consummation by the Selling Stockholder of the transactions on its part contemplated by this Agreement and the Stockholder’s Agreements, except such as have been obtained under the Act or the Rules and Regulations and such as may be required under state securities or Blue Sky laws or the by-laws and rules of the NASD in connection with the purchase and distribution by the Underwriters of the Selling Stockholder Firm Shares to be sold by the Selling Stockholder.
(f) The sale of the Selling Stockholder Firm Shares to be sold by the Selling Stockholder hereunder and the performance by the Selling Stockholder of this Agreement and the Stockholder’s Agreements and the consummation of the transactions contemplated hereby and thereby will not result in the creation or imposition of any lien, charge or encumbrance upon any of the assets of the Selling Stockholder pursuant to the terms or provisions of, or result in a breach or violation of any of the terms or provisions of, or constitute a default under, or give any party a right to terminate any of its obligations under, or result in the acceleration of any obligation under, any indenture, mortgage, deed of trust, voting trust agreement, loan agreement, bond, debenture, note agreement or other evidence of indebtedness, lease, contract or other agreement or instrument to which the Selling Stockholder is a party or by which the Selling Stockholder or any of its properties is bound or affected, or violate or conflict with any judgment, ruling, decree, order, statute, rule or regulation of any court or other governmental agency or body applicable to the Selling Stockholder or the organizational documents of the Selling Stockholder.
(g) The Selling Stockholder has, and at the Closing Date and, will have, good and marketable title to the Selling Stockholder Firm Shares to be sold by the Selling Stockholder hereunder, free and clear of all voting trust arrangements, liens, encumbrances, equitiesequities or claims whatsoever; and, claims and community property rights; and upon delivery of such Selling Stockholder Firm Shares and payment for such Shares hereundertherefor pursuant hereto, the Underwriters will acquire valid good and marketable title theretoto such Selling Stockholder Firm Shares, free and clear of all voting trust arrangements, liens, encumbrances, equitiesequities or claims whatsoever, claims and community property rights other than those imposed upon or consented will be delivered to in writing by the RepresentativesUnderwriters.
(iih) On the Closing Date, all stock transfer or other taxes (other than income taxes) that are required to be paid in connection with the sale and transfer of the Selling Stockholder Firm Shares to be sold by the Selling Stockholder to the several Underwriters hereunder will have been fully paid or provided for by the Selling Stockholder and all laws imposing such taxes will have been fully complied with.
(i) Other than as permitted by the Act and the Rules and Regulations, the Selling Stockholder has not distributed and will not distribute any preliminary prospectus, the Prospectus or any other offering material in connection with the offering and sale of the Shares. The Selling Stockholder has not taken and will not take during the offering period (including at any time after the effective date of the Registration Statement during which the Underwriters are deemed to be making a public offering)take, directly or indirectly, any action designed to designed, or which might reasonably be reasonably expected expected, to cause or resultresult in, under the Exchange Act or otherwisewhich will constitute, in stabilization or manipulation of the price of any security shares of the Company Common Stock to facilitate the sale or resale of any of the Shares.
(iiij) [Each preliminary prospectus, solely All information with respect to information provided by the Selling Stockholder for inclusion therein as of its date relating to the Selling Stockholder (it being understood such information contained in the Registration Statement, any preliminary prospectus, the Prospectus or any amendment or supplement thereto complied or will comply in all material respects with all applicable requirements of the Act and the Rules and Regulations and does not include information relating to the operations of the Company), has and will not included contain any untrue statement of a material fact or omitted to state a material fact necessary to make the statements therein not misleading; and the Registration Statement at the time of effectiveness, and at all times subsequent thereto, until the First Closing Date or the Second Closing Date hereinafter defined, as the case may be, neither the Registration Statement nor the Prospectus, nor any amendment or supplement thereto, solely with respect to information relating to the Selling Stockholder (it being understood such information does not include information relating to the operations of the Company) provided by the Selling Stockholder for inclusion therein, included or will include any untrue statement of a material fact or omitted or will omit to state any material fact required to be stated therein or necessary to make the statements therein not misleading.]
(ivk) The Selling Stockholder agrees with has no knowledge of any material fact or condition not set forth in the Registration Statement or the Prospectus that has adversely affected, or would be reasonably likely to adversely affect, the business, properties, business prospects, condition (financial or otherwise) or results of operations of the Company and its Subsidiaries, and the Underwriters not to, directly or indirectly, (i) offer, sell (including "short" selling), assign, transfer, encumber, pledge, contract to sell, grant an option to purchase, establish an open "put equivalent position" within the meaning of Rule 16a-1(h) under the Exchange Act, or otherwise dispose of any shares of Common Stock or securities convertible or exchangeable into, or exercisable for, Common Stock held of record or beneficially owned (within the meaning of Rule 13d-3 under the Exchange Act); or (ii) enter any swap or other arrangement that transfers all or a portion sale of the economic consequences associated with Selling Stockholder Firm Shares proposed to be sold by the ownership of Selling Stockholder is not prompted by any Common Stock for a period of 180 days after this Agreement becomes effective without such knowledge.
(l) The Selling Stockholder has no reason to believe that the prior written consent representations and warranties of the Representatives. In order to document the Underwriter's compliance with the reporting Company contained in Section 3 hereof are not true and withholding provisions of the Internal Revenue Code of 1986, as amended, with respect to the transactions herein contemplated, the correct in all material respects.
(m) The Selling Stockholder agrees to deliver to you prior to or on at the First Closing Date, as hereinafter defined, Date a properly completed and executed United States Treasury Department Form W-8 or W-9 (or other applicable form of or statement specified by Treasury Department regulations in lieu thereof).
Appears in 1 contract
Representations, Warranties and Covenants of the Selling Stockholder. The Selling Stockholder represents, warrants and covenants to the Company and to the Underwriters that:
(a) The Selling Stockholder represents and warrants tois, and agrees withat the First Delivery Date (as defined in Section 5 below) will be, duly organized, validly existing and in good standing under the laws of the jurisdiction of its organization with corporate power and authority to own, lease and operate its properties and to conduct its business.
(b) The Selling Stockholder has all corporate power and authority to enter into this Agreement and to carry out all the terms and provisions hereof to be carried out by it. All authorizations and consents necessary for the execution and delivery by the Selling Stockholder of this Agreement have been given. This Agreement has been duly authorized, executed and delivered by or on behalf of the Selling Stockholder and constitutes the valid and binding agreement of the Selling Stockholder and is enforceable against the Selling Stockholder in accordance with its terms, except as limited by applicable bankruptcy, insolvency, reorganization, moratorium or other laws now or hereafter in effect relating to or affecting creditors' rights generally or by general principles of equity relating to the availability of remedies and except as rights to indemnity or contribution may be limited by federal or state securities laws and the public policy underlying such laws.
(c) The Selling Stockholder has placed in custody under a custody agreement (the "Custody Agreement") with [First National Bank of Boston], 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 Exchange) representing the Firm 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") appointing 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.
(e) The Selling Stockholder has full power and authority to enter into the Power of Attorney in the form heretofore furnished to the Selling Stockholder and the Custody Agreement in the form heretofore furnished to the Selling Stockholder and to carry out all the terms and provisions thereof to be carried out by it. All authorizations and consents necessary for the execution and delivery by the Selling Stockholder of the Power of Attorney and the Custody Agreement have been given. Each of the Power of Attorney and the Custody Agreement has been duly authorized, executed and delivered by the Selling Stockholder and is enforceable against the Selling Stockholder in accordance with the terms thereof, except as limited by applicable bankruptcy, insolvency, reorganization, moratorium or other laws now or hereafter in effect relating to or affecting creditors' rights generally or by general principles of equity relating to the availability of remedies.
(f) The Selling Stockholder now has, and at the First Delivery Date will have, (i) good and marketable title to the Selling Stockholder Shares to be sold to the Underwriters by the Selling Stockholder hereunder, free and clear of all encumbrances and adverse claims, and (ii) full legal right and power, and all authorizations and approvals required by law, to sell, transfer and deliver the Selling Stockholder Shares to the Underwriters and to make the representations, warranties and agreements made by the Selling Stockholder herein, and upon delivery of such Selling Stockholder Shares and payment therefor pursuant hereto, good and marketable title to such shares, free and clear of all encumbrances and adverse claims, will pass to the Underwriters.
(g) None of the execution, delivery or performance of this Agreement, the Company Power of Attorney or the Custody Agreement or the consummation of the transactions contemplated herein or therein by the Selling Stockholder conflicts or will conflict with or results or will result in any breach or violation of any of the terms or provisions of, or constitute a default under, or result in the creation or imposition of any encumbrance upon, any property or assets of the Selling Stockholder pursuant to (i) the terms of its organizational documents; (ii) the terms of any contract or other agreement to which the Selling Stockholder is a party or by which it is bound or to which any of its properties is subject, which conflict, breach, violation or default would adversely affect the Selling Stockholder's ability to perform its obligations hereunder; (iii) any statute, rule or regulation of any governmental body having jurisdiction over the Selling Stockholder or any of its activities or properties; or (iv) the terms of any judgment, decree or order of any arbitration or governmental body having such jurisdiction.
(h) No consent, approval, authorization or order of, or any filing or declaration with any governmental body is required for the consummation by the Selling Stockholder of the transactions on its part contemplated herein or in the Power of Attorney or Custody Agreement, except such as may be required under the Exchange Act and applicable state securities laws in connection with the Underwriters that:purchase and distribution of the Underwritten Shares by the Underwriters, and such as have been obtained under the state securities or Blue Sky laws and under the NASD rules.
(i) The sale of the Selling Stockholder has, and on the First Closing Date or the Second Closing Date hereinafter defined, as the case may be, will have, valid marketable title to the Shares proposed to be sold by the Selling Stockholder hereunder on such date and full right, power and authority to enter into this Agreement and the Pricing Agreement and to sell, assign, transfer and deliver such Shares hereunder, free and clear of all voting trust arrangements, liens, encumbrances, equities, claims and community property rights; and upon delivery of and payment for such Shares hereunder, the Underwriters will acquire valid marketable title thereto, free and clear of all voting trust arrangements, liens, encumbrances, equities, claims and community property rights other than those imposed upon or consented to in writing is not prompted by the RepresentativesSelling Stockholder's knowledge of any material adverse information concerning the Company or its Subsidiaries which is not set forth or described in the Prospectus.
(iij) On the Effective Date, the date of the Preliminary Prospectus and the date of the Prospectus, and on the First Delivery Date, the information with respect to the Selling Stockholder included therein did not contain any 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 not misleading.
(k) On the first date that any Preliminary Prospectus was used, the date the Prospectus is first filed with the Commission pursuant to Rule 424(b) (if required), at all times subsequent to and including the First Delivery Date, all information with respect to the Selling Stockholder included in the Registration Statement, each Preliminary Prospectus and the Prospectus (as amended or as supplemented if the Company shall have filed with the Commission any amendment or supplement thereto), did or will comply with all applicable provisions of the 1933 Act and the 1933 Act Regulations and did or will contain all statements required to be stated therein in accordance with the 1933 Act and the 1933 Act Regulations.
(l) The Selling Stockholder has delivered to the Underwriters an agreement in the form of Attachment B hereto to the effect that it will not, without the prior written consent of Cruttenden Roth Xxxorporated, Black & Company, Inc. and Morgxx Xxxxxx Xxxital Group LLC, as representatives of the several Underwriters (the "Representatives"), offer, sell, or otherwise dispose of any shares of capital stock or equity securities of the Company or securities convertible into, or exchangeable or exercisable for, shares of capital stock of the Company (excluding the Selling Stockholder Shares) for a period of 120 days after the Delivery Date.
(m) The Selling Stockholder has not taken and will not take during the offering period (including any time after the effective date of the Registration Statement during which the Underwriters are deemed to be making a public offering)take, directly or indirectly, any action designed to which has constituted, or which might reasonably be reasonably expected to cause or resultconstitute, under the Exchange Act or otherwise, in stabilization or manipulation of the price of any security of the Company Common Stock to facilitate the sale or resale of the Shares.
(iii) [Each preliminary prospectus, solely Underwritten Shares in connection with respect to information provided by the Selling Stockholder for inclusion therein as of its date relating offering thereof pursuant to the Selling Stockholder (it being understood such information does not include information relating to the operations of the Company), has not included any untrue statement of a material fact or omitted to state a material fact necessary to make the statements therein not misleading; and the Registration Statement at the time of effectiveness, and at all times subsequent thereto, until the First Closing Date or the Second Closing Date hereinafter defined, as the case may be, neither the Registration Statement nor the Prospectus, nor any amendment or supplement thereto, solely with respect to information relating to the Selling Stockholder (it being understood such information does not include information relating to the operations of the Company) provided by the Selling Stockholder for inclusion therein, included or will include any untrue statement of a material fact or omitted or will omit to state any material fact required to be stated therein or necessary to make the statements therein not misleadingStatement.]
(iv) The Selling Stockholder agrees with the Company and the Underwriters not to, directly or indirectly, (i) offer, sell (including "short" selling), assign, transfer, encumber, pledge, contract to sell, grant an option to purchase, establish an open "put equivalent position" within the meaning of Rule 16a-1(h) under the Exchange Act, or otherwise dispose of any shares of Common Stock or securities convertible or exchangeable into, or exercisable for, Common Stock held of record or beneficially owned (within the meaning of Rule 13d-3 under the Exchange Act); or (ii) enter any swap or other arrangement that transfers all or a portion of the economic consequences associated with the ownership of any Common Stock for a period of 180 days after this Agreement becomes effective without the prior written consent of the Representatives. In order to document the Underwriter's compliance with the reporting and withholding provisions of the Internal Revenue Code of 1986, as amended, with respect to the transactions herein contemplated, the Selling Stockholder agrees to deliver to you prior to or on the First Closing Date, as hereinafter defined, a properly completed and executed United States Treasury Department Form W-8 or W-9 (or other applicable form of statement specified by Treasury Department regulations in lieu thereof).
Appears in 1 contract
Representations, Warranties and Covenants of the Selling Stockholder. (a) The Selling Stockholder severally represents and warrants to, and covenants and agrees with, each of the Underwriters and the Company and the Underwriters that:
(i) The Selling Stockholder hashas duly executed and delivered a Power of Attorney (the "Power of Attorney"), appointing James H. Long and Donald R. Chadwick and each of them, as attornxx-xx-xxxx (xhe "Xxxxxxxxx-xx-Xxxx") with full power and authority to execute and deliver this Agreement on behalf of the Selling Stockholder, to authorize the delivery of the Common Shares to be sold by the Selling Stockholder hereunder, and otherwise to act on behalf of the First Closing Date or Selling Stockholder in connection with the Second Closing Date hereinafter definedtransactions contemplated by this Agreement.
(ii) The Selling Stockholder has duly executed and delivered a Custody Agreement (the "Custody Agreement") with James H. Long and Donald R. Chadwick and each of them, as custodxxx ("Xxxxxxxan"), xxxxxxxx xx xxxxx certificates in negotiable form for the case may be, will have, valid marketable title to the Common Shares proposed to be sold by the Selling Stockholder hereunder on such date and have been placed in custody for delivery under this Agreement.
(iii) The Selling Stockholder has full right, power and authority to enter into this Agreement Agreement, the Power of Attorney and the Pricing Agreement Custody Agreement, and to sell, assign, transfer and deliver the Common Shares to be sold by the Selling Stockholder hereunder; and all consents, approvals, authorizations and orders necessary for the execution and delivery by the Selling Stockholder of this Agreement, the Power of Attorney and the Custody Agreement, and for the sale and delivery of the Common Shares to be sold by the Selling Stockholder hereunder, have been obtained, except such as may be required by any state securities or Blue Sky laws.
(iv) The Selling Stockholder has, and at the First Closing Date (as defined below) will have, good and valid title to the Firm Common Shares to be sold by the Selling Stockholder hereunder, free and clear of all voting trust arrangements, any liens, encumbrances, equitiessecurity interests, equities or claims and community property rights; and upon whatsoever. Upon delivery of and payment for such Firm Common Shares hereunderpursuant to this Agreement, the Underwriters will acquire good and valid marketable title thereto, free and clear of all voting trust arrangements, any liens, encumbrances, equitiessecurity interests, equities or claims and community property rights other than those imposed upon or consented whatsoever, will be transferred to in writing by the Representativesseveral Underwriters.
(iiv) The consummation by the Selling Stockholder of the transactions herein contemplated and the fulfillment by the Selling Stockholder of the terms hereof will not conflict with or result in a breach or violation of any of the terms and provisions of, or constitute a default under, any will, mortgage, deed of trust, loan agreement or other agreement, instrument or obligation to which the Selling Stockholder is a party or to which any of the property or assets of the Selling Stockholder is subject, except for such agreements, instruments or obligations for which consents have been obtained, nor will such actions result in any violations of the provisions of the articles or certificate of incorporation or bylaws if the Selling Stockholder is a corporation, the partnership agreement, certificate or articles if the Selling Stockholder is a partnership, or any statute, rule, regulation or order applicable to the Selling Stockholder of any court or of any regulatory body or administrative agency or other governmental body having jurisdiction over the Selling Stockholder or the property of the Selling Stockholder.
(vi) The Selling Stockholder has not taken and will not take during the offering period (including any time after the effective date of the Registration Statement during which the Underwriters are deemed to be making a public offering)take, directly or indirectly, any action designed to to, or which has constituted, or which might reasonably be reasonably expected to cause or resultresult in, under the Exchange Act or otherwise, in stabilization or manipulation of the price of any security of the Company to facilitate the sale or resale of the SharesCommon Stock.
(iiivii) [Each preliminary prospectusTo the extent that any statements or omissions made in the Registration Statement, solely any Preliminary Prospectus thereof, the Prospectus or any amendment or supplement thereto, are made in reliance upon and in conformity with written information with respect to information provided the Selling Stockholder furnished to the Company by the Selling Stockholder expressly for inclusion therein as of its date relating use therein, such Preliminary Prospectus and the Registration Statement did not, and the Prospectus and any further amendments or supplements to the Selling Stockholder (it being understood such information does not include information relating to Registration Statement and the operations of Prospectus will not, when they become effective or are filed with the Company)Commission, has not included as the case may be, contain any untrue statement of a material fact or omitted to state a material fact necessary to make the statements therein not misleading; and the Registration Statement at the time of effectiveness, and at all times subsequent thereto, until the First Closing Date or the Second Closing Date hereinafter defined, as the case may be, neither the Registration Statement nor the Prospectus, nor any amendment or supplement thereto, solely with respect to information relating to the Selling Stockholder (it being understood such information does not include information relating to the operations of the Company) provided by the Selling Stockholder for inclusion therein, included or will include any untrue statement of a material fact or omitted or will omit to state any material fact required to be stated therein or necessary to make the statements therein not misleading.]
(ivviii) The Selling Stockholder agrees with the Company and the Underwriters not towill not, directly or indirectly, (i) offeroffer to sell, sell (including "short" selling), assign, transfer, encumber, pledgesell, contract to sell, grant an any option to purchasesell, establish an open "put equivalent position" within the meaning of Rule 16a-1(h) under the Exchange Acttransfer, assign or otherwise dispose of any shares of Common Stock Stock, or other securities which are substantially similar to the Common Stock, or securities convertible into or exchangeable into, for or exercisable for, any rights to purchase or acquire Common Stock held of record or beneficially owned (within the meaning of Rule 13d-3 under the Exchange Act); or (ii) enter any swap or other arrangement that transfers all or a portion of securities which are substantially similar to the economic consequences associated with the ownership of any Common Stock Stock, for a period of 180 days after this Agreement becomes effective without the prior date of the Prospectus, otherwise than hereunder or with the written consent of the Representatives. .
(ix) The Selling Stockholder has not taken and will not take, directly or indirectly, any action designed to or that might be reasonably expected to cause or result in stabilization or manipulation of the price of the Common Stock to facilitate the sale or resale of the Common Shares, which action is in violation of the Act and the Rules and Regulations.
(x) The share ownership shown in the Prospectus under the caption "Principal and Selling Stockholders" with respect to the Selling Stockholder is correct.
(b) In order to document the Underwriter's Underwriters' compliance with the reporting and withholding provisions of the Internal Revenue Code of 1986, as amended, with respect to the transactions herein contemplated, the Selling Stockholder agrees to deliver to you prior to or on at the First Closing Date, as hereinafter defined, Date a properly completed and executed United States Treasury Department Form W-8 or W-9 (or other applicable form of or statement specified by Treasury Department regulations in lieu thereof).
(c) The Selling Stockholder specifically agrees that the Common Shares represented by the certificates held in custody for the Selling Stockholder under the Custody Agreement are subject to the interests of the Underwriters hereunder, and that the arrangements made by the Selling Stockholder for such custody and the appointment by such Selling Stockholder of the Attorneys-in-Fact by the Power of Attorney are to that extent coupled with an interest and irrevocable. If the Selling Stockholder should die or become incapacitated or if any resulting estate or trust should be terminated before the delivery of the Firm Common Shares hereunder, certificates representing the Firm Common Shares shall be delivered by or on behalf of the Selling Stockholder in accordance with the terms and conditions of this Agreement and of the Custody Agreement, and actions taken by the Attorneys-in-Fact pursuant to the Powers of Attorney shall be as valid as if such death, incapacity or termination had not occurred, regardless of whether or not the Custodian, the Attorneys-in-Fact or any of them, shall have received notice of such death, incapacity or termination.
(d) Any certificate signed by or on behalf of the Selling Stockholder and delivered to the Representatives or to counsel to the Underwriters shall be deemed to be a representation and warranty of the Selling Stockholder to each Underwriter as to the matters covered thereby and each Underwriter and its counsel are entitled to rely thereon.
Appears in 1 contract
Representations, Warranties and Covenants of the Selling Stockholder. The Selling Stockholder represents, warrants and covenants to the Company and to the Underwriters that:
(a) The Selling Stockholder represents and warrants tois, and agrees withat the First Delivery Date (as defined in Section 5 below) will be, duly organized, validly existing and in good standing under the laws of the jurisdiction of its organization with corporate power and authority to own, lease and operate its properties and to conduct its business.
(b) The Selling Stockholder has all corporate power and authority to enter into this Agreement and to carry out all the terms and provisions hereof to be carried out by it. All authorizations and consents necessary for the execution and delivery by the Selling Stockholder of this Agreement have been given. This Agreement has been duly authorized, executed and delivered by or on behalf of the Selling Stockholder and constitutes the valid and binding agreement of the Selling Stockholder and is enforceable against the Selling Stockholder in accordance with its terms, except as limited by applicable bankruptcy, insolvency, reorganization, moratorium or other laws now or hereafter in effect relating to or affecting creditors= rights generally or by general principles of equity relating to the availability of remedies and except as rights to indemnity or contribution may be limited by federal or state securities laws and the public policy underlying such laws.
(c) The Selling Stockholder has placed in custody under a custody agreement (the "Custody Agreement") with BankBoston, N.A. (c/o Boston EquiServe), 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 Exchange) representing the Firm 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") appointing 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.
(e) The Selling Stockholder has full power and authority to enter into the Power of Attorney in the form heretofore furnished to the Selling Stockholder and the Custody Agreement in the form heretofore furnished to the Selling Stockholder and to carry out all the terms and provisions thereof to be carried out by it. All authorizations and consents necessary for the execution and delivery by the Selling Stockholder of the Power of Attorney and the Custody Agreement have been given. Each of the Power of Attorney and the Custody Agreement has been duly authorized, executed and delivered by the Selling Stockholder and is enforceable against the Selling Stockholder in accordance with the terms thereof, except as limited by applicable bankruptcy, insolvency, reorganization, moratorium or other laws now or hereafter in effect relating to or affecting creditors= rights generally or by general principles of equity relating to the availability of remedies.
(f) The Selling Stockholder now has, and at the First Delivery Date will have, (i) good and marketable title to the Selling Stockholder Shares to be sold to the Underwriters by the Selling Stockholder hereunder, free and clear of all encumbrances and adverse claims, and (ii) full legal right and power, and all authorizations and approvals required by law, to sell, transfer and deliver the Selling Stockholder Shares to the Underwriters and to make the representations, warranties and agreements made by the Selling Stockholder herein, and upon delivery of such Selling Stockholder Shares and payment therefor pursuant hereto, good and marketable title to such shares, free and clear of all encumbrances and adverse claims, will pass to the Underwriters.
(g) None of the execution, delivery or performance of this Agreement, the Company Power of Attorney or the Custody Agreement or the consummation of the transactions contemplated herein or therein by the Selling Stockholder conflicts or will conflict with or results or will result in any breach or violation of any of the terms or provisions of, or constitute a default under, or result in the creation or imposition of any encumbrance upon, any property or assets of the Selling Stockholder pursuant to (i) the terms of its organizational documents; (ii) the terms of any contract or other agreement to which the Selling Stockholder is a party or by which it is bound or to which any of its properties is subject, which conflict, breach, violation or default would adversely affect the Selling Stockholder=s ability to perform its obligations hereunder; (iii) any statute, rule or regulation of any governmental body having jurisdiction over the Selling Stockholder or any of its activities or properties; or (iv) the terms of any judgment, decree or order of any arbitration or governmental body having such jurisdiction.
(h) No consent, approval, authorization or order of, or any filing or declaration with any governmental body is required for the consummation by the Selling Stockholder of the transactions on its part contemplated herein or in the Power of Attorney or Custody Agreement, except such as may be required under the Exchange Act and applicable state securities laws in connection with the Underwriters that:purchase and distribution of the Underwritten Shares by the Underwriters, and such as have been obtained under the state securities or Blue Sky laws and under the NASD rules.
(i) The sale of the Selling Stockholder has, and on the First Closing Date or the Second Closing Date hereinafter defined, as the case may be, will have, valid marketable title to the Shares proposed to be sold by the Selling Stockholder hereunder on such date and full right, power and authority to enter into this Agreement and the Pricing Agreement and to sell, assign, transfer and deliver such Shares hereunder, free and clear of all voting trust arrangements, liens, encumbrances, equities, claims and community property rights; and upon delivery of and payment for such Shares hereunder, the Underwriters will acquire valid marketable title thereto, free and clear of all voting trust arrangements, liens, encumbrances, equities, claims and community property rights other than those imposed upon or consented to in writing is not prompted by the RepresentativesSelling Stockholder=s knowledge of any material adverse information concerning the Company or its Subsidiaries which is not set forth or described in the Prospectus.
(iij) On the Effective Date, the date of the Preliminary Prospectus and the date of the Prospectus, and on the First Delivery Date, the information with respect to the Selling Stockholder included therein under the caption APrincipal and Selling Stockholders@ was complete and accurate in all respects and did not contain any 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 not misleading, and the Selling Stockholder has no reason to believe that the other information in the Preliminary Prospectus or the Prospectus with respect to it is untrue or misleading in any material respect.
(k) On the first date that any Preliminary Prospectus was used, the date the Prospectus is first filed with the Commission pursuant to Rule 424(b) (if required), at all times subsequent to and including the First Delivery Date, all information with respect to the Selling Stockholder included in the Registration Statement, each Preliminary Prospectus and the Prospectus (as amended or as supplemented if the Company shall have filed with the Commission any amendment or supplement thereto) under the caption APrincipal and Selling Stockholders,@ did or will comply with all applicable provisions of the 1933 Act and the 1933 Act Regulations and did or will contain all statements required to be stated therein in accordance with the 1933 Act and the 1933 Act Regulations.
(l) The Selling Stockholder has delivered to the Underwriters an agreement in the form of Attachment B hereto to the effect that it will not, without the prior written consent of Cruttenden Xxxx Incorporated, Black & Company, Inc. and Xxxxxx Xxxxxx Capital Group LLC, as representatives of the several Underwriters (the ARepresentatives@), offer, sell, or otherwise dispose of any shares of capital stock or equity securities of the Company or securities convertible into, or exchangeable or exercisable for, shares of capital stock of the Company (excluding the Selling Stockholder Shares) for a period of 120 days after the Delivery Date.
(m) The Selling Stockholder has not taken and will not take during the offering period (including any time after the effective date of the Registration Statement during which the Underwriters are deemed to be making a public offering)take, directly or indirectly, any action designed to which has constituted, or which might reasonably be reasonably expected to cause or resultconstitute, under the Exchange Act or otherwise, in stabilization or manipulation of the price of any security of the Company Common Stock to facilitate the sale or resale of the Shares.
(iii) [Each preliminary prospectus, solely Underwritten Shares in connection with respect to information provided by the Selling Stockholder for inclusion therein as of its date relating offering thereof pursuant to the Selling Stockholder (it being understood such information does not include information relating to the operations of the Company), has not included any untrue statement of a material fact or omitted to state a material fact necessary to make the statements therein not misleading; and the Registration Statement at the time of effectiveness, and at all times subsequent thereto, until the First Closing Date or the Second Closing Date hereinafter defined, as the case may be, neither the Registration Statement nor the Prospectus, nor any amendment or supplement thereto, solely with respect to information relating to the Selling Stockholder (it being understood such information does not include information relating to the operations of the Company) provided by the Selling Stockholder for inclusion therein, included or will include any untrue statement of a material fact or omitted or will omit to state any material fact required to be stated therein or necessary to make the statements therein not misleadingStatement.]
(iv) The Selling Stockholder agrees with the Company and the Underwriters not to, directly or indirectly, (i) offer, sell (including "short" selling), assign, transfer, encumber, pledge, contract to sell, grant an option to purchase, establish an open "put equivalent position" within the meaning of Rule 16a-1(h) under the Exchange Act, or otherwise dispose of any shares of Common Stock or securities convertible or exchangeable into, or exercisable for, Common Stock held of record or beneficially owned (within the meaning of Rule 13d-3 under the Exchange Act); or (ii) enter any swap or other arrangement that transfers all or a portion of the economic consequences associated with the ownership of any Common Stock for a period of 180 days after this Agreement becomes effective without the prior written consent of the Representatives. In order to document the Underwriter's compliance with the reporting and withholding provisions of the Internal Revenue Code of 1986, as amended, with respect to the transactions herein contemplated, the Selling Stockholder agrees to deliver to you prior to or on the First Closing Date, as hereinafter defined, a properly completed and executed United States Treasury Department Form W-8 or W-9 (or other applicable form of statement specified by Treasury Department regulations in lieu thereof).
Appears in 1 contract
Representations, Warranties and Covenants of the Selling Stockholder. (a) The Parent and the Selling Stockholder represents Stockholder, jointly and warrants severally, represent and warrant to, and agrees agree with, the Company and the several Underwriters that:
(i) The Such Selling Stockholder has, and on the First Closing Date or the Second Closing Date hereinafter defined, as the case may be, mentioned will have, valid good and marketable title to the Common Shares proposed to be sold by the such Selling Stockholder hereunder on such date Closing Date and full right, power and authority to enter into this Agreement and the Pricing Agreement and to sell, assign, transfer and deliver such Common Shares hereunder, free and clear of all voting trust arrangements, liens, encumbrances, equities, security interests, restrictions and claims and community property rightswhatsoever; and upon delivery of and payment for such Common Shares hereunder, the Underwriters will acquire valid good and marketable title thereto, free and clear of all voting trust arrangements, liens, encumbrances, equities, claims and community property rights claims, restrictions, security interests, voting trusts or other than those imposed upon or consented to in writing by the Representativesdefects of title whatsoever.
(ii) Such Selling Stockholder has executed and delivered a Power of Attorney and caused to be executed and delivered on its behalf a Custody Agreement (hereinafter collectively referred to as the "Stockholders Agreement") and in connection herewith such Selling Stockholder further represents, warrants and agrees that such Selling Stockholder has deposited in custody, under the Stockholders Agreement, with the agent named therein (the "Agent") as custodian, certificates in negotiable form for the Common Shares to be sold hereunder by such Selling Stockholder, for the purpose of further delivery pursuant to this Agreement. Such Selling Stockholder agrees that the Common Shares to be sold by such Selling Stockholder on deposit with the Agent are subject to the interests of the Company and the Underwriters, that the arrangements made for such custody are to that extent irrevocable, and that the obligations of such Selling Stockholder hereunder shall not be terminated, except as provided in this Agreement or in the Stockholders Agreement, by any act of such Selling Stockholder, by operation of law, by the merger, dissolution or liquidation of such Selling Stockholder or by the occurrence of any other event. If the Selling Stockholder should be merged, dissolved or liquidated, or if any other event should occur, before the delivery of the Common Shares hereunder, the documents evidencing Common Shares then on deposit with the Agent shall be delivered by the Agent in accordance with the terms and conditions of this Agreement as if such merger, dissolution or liquidation or other event had not occurred, regardless of whether or not the Agent shall have received notice thereof. This Agreement and the Stockholders Agreement have been duly executed and delivered by or on behalf of such Selling Stockholder and the form of such Stockholders Agreement has been delivered to you.
(iii) The performance of this Agreement and the Stockholders Agreement and the consummation of the transactions contemplated hereby and by the Stockholders Agreement will not result in a breach or violation by such Selling Stockholder of any of the terms or provisions of, or constitute a default by such Selling Stockholder under, any indenture, mortgage, deed of trust, trust (constructive or other), loan agreement, lease, franchise, license or other agreement or instrument to which such Selling Stockholder is a party or by which such Selling Stockholder or any of its properties is bound, any statute, or any judgment, decree, order, rule or regulation of any court or governmental agency or body applicable to such Selling Stockholder or any of its properties.
(iv) Such Selling Stockholder has not taken and will not take during the offering period (including any time after the effective date of the Registration Statement during which the Underwriters are deemed to be making a public offering)take, directly or indirectly, any action designed to or which has constituted or which might reasonably be reasonably expected to cause or result, under the Exchange Act or otherwise, result in stabilization or manipulation of the price of any security of the Company to facilitate the sale or resale of the Common Shares.
(iiiv) [Each preliminary prospectusPreliminary Prospectus and the Prospectus, solely with respect insofar as it has related to information provided by the such Selling Stockholder for inclusion therein as of its date relating has conformed in all material respects to the Selling Stockholder (it being understood such information does not include information relating to the operations requirements of the Company), Act and the Rules and Regulations and has not included any untrue statement of a material fact or omitted to state a material fact necessary to make the statements therein not misleadingmisleading in light of the circumstances under which they were made; and the Registration Statement at the time of effectiveness, and at all times subsequent thereto, until the First Closing Date or the Second Closing Date hereinafter defined, as the case may be, neither the Registration Statement nor the Prospectus, nor any amendment or supplement thereto, solely with respect as it relates to information relating to the such Selling Stockholder (it being understood such information does not include information relating to the operations of the Company) provided by the Selling Stockholder for inclusion thereinStockholder, included or will include any untrue statement of a material fact or omitted or will omit to state any material fact required to be stated therein or necessary to make the statements therein not misleading.]
(ivb) The Selling Stockholder agrees with the Company and the Underwriters not to, directly or indirectly, (i) offer, sell (including "short" selling), assign, transfer, encumber, pledge, contract to offer to sell, grant an option sell or contract to purchase, establish an open "put equivalent position" within the meaning of Rule 16a-1(h) under the Exchange Act, sell or otherwise dispose of any shares of Common Stock or securities convertible into or exchangeable intofor any shares of Common Stock, or exercisable for, Common Stock held of record or beneficially owned (within the meaning of Rule 13d-3 under the Exchange Act); or (ii) enter any swap or other arrangement that transfers all or a portion of the economic consequences associated with the ownership of any Common Stock for a period of 180 days after this Agreement becomes effective the first date that any of the Common Shares are released by you for sale to the public, without the prior written consent of Xxxxxxxxxx Securities, which consent may be withheld at the Representatives. In order to document the Underwriter's compliance with the reporting and withholding provisions sole discretion of the Internal Revenue Code of 1986, as amended, with respect to the transactions herein contemplated, the Selling Stockholder agrees to deliver to you prior to or on the First Closing Date, as hereinafter defined, a properly completed and executed United States Treasury Department Form W-8 or W-9 (or other applicable form of statement specified by Treasury Department regulations in lieu thereof)Xxxxxxxxxx Securities.
Appears in 1 contract
Representations, Warranties and Covenants of the Selling Stockholder. (a) The Selling Stockholder represents represents, warrants and warrants to, and agrees with, the Company and the Underwriters covenants to each Underwriter that:
(ia) The All consents, approvals, authorizations and orders necessary for the execution and delivery by such Selling Stockholder hasof this Agreement and the Power-of-Attorney and Custody Agreement (hereinafter referred to as a "Stockholder's Agreement") hereinafter referred to, and on for the First Closing Date or sale and delivery of the Second Closing Date hereinafter defined, as the case may be, will have, valid marketable title to the Selling Stockholder Option Shares proposed to be sold by the such Selling Stockholder hereunder on hereunder, have been obtained; and such date and Selling Stockholder has full right, power and authority to enter into this Agreement and the Pricing Agreement Stockholder's Agreement, to make the representations, warranties and agreements hereunder and thereunder, and to sell, assign, transfer and deliver the Shares to be sold by such Selling Stockholder hereunder.
(b) Certificates in negotiable form representing all of the Selling Stockholder Option Shares to be sold by such Selling Stockholder have been placed in custody under the Stockholder's Agreement, in the form heretofore furnished to you, duly executed and delivered by such Selling Stockholder to the Custodian, and such Selling Stockholder has duly executed and delivered a power-of-attorney, in the form heretofore furnished to you and included in the Stockholder's Agreement (the Power-of-Attorney"), appointing Greg X. Xxxxxx xxx Robexx X. XxXxxx xxx each of them, as such Selling Stockholder's attorney-in-fact (the "Attorneys-in-Fact") with authority to execute and deliver this Agreement on behalf of such Selling Stockholder, to determine (subject to the provisions of the Stockholder's Agreement) the purchase price to be paid by the Underwriters to the Selling Stockholder as provided in Section 2 hereof, to authorize the delivery of the Selling Stockholder Option Shares, if any, to be sold by such Selling Stockholder hereunder and otherwise to act on behalf of such Selling Stockholder in connection with the transactions contemplated by this Agreement and the Stockholder's Agreement.
(c) Such Selling Stockholder specifically agrees that the Selling Stockholder Option Shares represented by the certificates held in custody for such Selling Stockholder under the Stockholder's Agreement are for the benefit of and coupled with and subject to the interests of the Underwriters, the Custodian, the Attorneys-in-Fact, and the Company, that the arrangements made by such Selling Stockholder for such custody, and the appointment by such Selling Stockholder of the Attorneys-in-Fact by the Power-of-Attorney, are to that extent irrevocable, and that the obligations of such Selling Stockholder hereunder shall not be terminated by operation of law, whether by the death, disability, incapacity, liquidation or dissolution of the Selling Stockholder or by the occurrence of any other event. If the individual Selling Stockholder or any executor or trustee for a Selling Stockholder should die or become incapacitated, or if any other such event should occur, before the delivery of the Selling Stockholder Option Shares hereunder, certificates representing the Selling Stockholder Option Shares shall be delivered by or on behalf of the Selling Stockholder in accordance with the terms and conditions of this Agreement and of the Stockholder's 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 Custodian, the Attorneys-in-Fact, or any of them, shall have received notice of such death, incapacity, termination, dissolution or other event.
(d) This Agreement and the Stockholder's Agreement have each been duly authorized, executed and delivered by such Selling Stockholder and each such document constitutes a valid and binding obligation of such Selling Stockholder, enforceable in accordance with its terms.
(e) No consent, approval, authorization or order of, or any filing or declaration with, any court or governmental agency or body is required in connection with the sale of the Selling Stockholder Option Shares by such Selling Stockholder or the consummation by such Selling Stockholder of the transactions on its part contemplated by this Agreement and the Stockholder's Agreement, except such as have been obtained under the Act or the Rules and Regulations and such as may be required under state securities or Blue Sky laws or the by-laws and rules of the NASD in connection with the purchase and distribution by the Underwriters of the Shares to be sold by such Selling Stockholder.
(f) The sale of the Selling Stockholder Option Shares to be sold by such Selling Stockholder hereunder and the performance by such Selling Stockholder of this Agreement and the Stockholder's Agreement and the consummation of the transactions contemplated hereby and thereby will not result in the creation or imposition of any lien, charge or encumbrance upon any of the assets of such Selling Stockholder pursuant to the terms or provisions of, or result in a breach or violation of any of the terms or provisions of, or constitute a default under, or give any party a right to terminate any of its obligations under, or result in the acceleration of any obligation under, any indenture, mortgage, deed of trust, voting trust agreement, loan agreement, bond, debenture, note agreement or other evidence of indebtedness, lease, contract or other agreement or instrument to which such Selling Stockholder is a party or by which such Selling Stockholder or any of its properties is bound or affected, or violate or conflict with any judgment, ruling, decree, order, statute, rule or regulation of any court or other governmental agency or body applicable to such Selling Stockholder.
(g) Such Selling Stockholder has, and at the Closing Date and, if later, the Option Closing Date, will have, good and marketable title to the Selling Stockholder Option Shares to be sold by such Selling Stockholder hereunder, free and clear of all voting trust arrangements, liens, encumbrances, equitiesequities or claims whatsoever; and, claims and community property rights; and upon delivery of such Selling Stockholder Option Shares and payment for such Shares hereundertherefor pursuant hereto, the Underwriters will acquire valid good and marketable title theretoto such Selling Stockholder Option Shares, free and clear of all voting trust arrangements, liens, encumbrances, equitiesequities or claims whatsoever, claims and community property rights other than those imposed upon or consented will be delivered to in writing by the RepresentativesUnderwriters.
(iih) The On the Option Closing Date, all stock transfer or other taxes (other than income taxes) that are required to be paid in connection with the sale and transfer of the Shares to be sold by such Selling Stockholder to the several Underwriters hereunder will be have been fully paid or provided for by such Selling Stockholder and all laws imposing such taxes will have been fully complied with.
(i) Other than as permitted by the Act and the Rules and Regulations, such Selling Stockholder has not distributed and will not distribute any preliminary prospectus, the Prospectus or any other offering material in connection with the offering and sale of the Shares. Such Selling Stockholder has not taken and will not take during the offering period (including at any time after the effective date of the Registration Statement during which the Underwriters are deemed to be making a public offering)take, directly or indirectly, any action designed to designed, or which might reasonably be reasonably expected expected, to cause or resultresult in, under the Exchange Act or otherwisewhich will constitute, in stabilization or manipulation of the price of any security shares of the Company Common Stock to facilitate the sale or resale of any of the Shares.
(iiij) [Each All information with respect to such Selling Stockholder contained in the Registration Statement, any preliminary prospectus, solely with respect to information provided by the Selling Stockholder for inclusion therein as of its date relating to the Selling Stockholder (it being understood such information does not include information relating to the operations of the Company), has not included any untrue statement of a material fact Prospectus or omitted to state a material fact necessary to make the statements therein not misleading; and the Registration Statement at the time of effectiveness, and at all times subsequent thereto, until the First Closing Date or the Second Closing Date hereinafter defined, as the case may be, neither the Registration Statement nor the Prospectus, nor any amendment or supplement thereto, solely with respect to information relating to the Selling Stockholder (it being understood such information does not include information relating to the operations of the Company) provided by the Selling Stockholder for inclusion therein, included or will include any untrue statement of a material fact or omitted or will omit to state any material fact required to be stated therein or necessary to make the statements therein not misleading.]
(iv) The Selling Stockholder agrees with the Company and the Underwriters not to, directly or indirectly, (i) offer, sell (including "short" selling), assign, transfer, encumber, pledge, contract to sell, grant an option to purchase, establish an open "put equivalent position" within the meaning of Rule 16a-1(h) under the Exchange Act, or otherwise dispose of any shares of Common Stock or securities convertible or exchangeable into, or exercisable for, Common Stock held of record or beneficially owned (within the meaning of Rule 13d-3 under the Exchange Act); or (ii) enter any swap or other arrangement that transfers all or a portion of the economic consequences associated with the ownership of any Common Stock for a period of 180 days after this Agreement becomes effective without the prior written consent of the Representatives. In order to document the Underwriter's compliance with the reporting and withholding provisions of the Internal Revenue Code of 1986, as amended, with respect to the transactions herein contemplated, the Selling Stockholder agrees to deliver to you prior to or on the First Closing Date, as hereinafter defined, a properly completed and executed United States Treasury Department Form W-8 or W-9 (or other applicable form of statement specified by Treasury Department regulations in lieu thereof).or
Appears in 1 contract
Representations, Warranties and Covenants of the Selling Stockholder. The Selling Stockholder represents, warrants and covenants to the Company and to the Placement Agents that:
(a) The Selling Stockholder represents and warrants tois, and agrees withat the Closing Date will be, duly organized, validly existing and in good standing under the Company laws of the jurisdiction of its organization with corporate power and the Underwriters that:authority to own, lease and operate its properties and to conduct its business.
(ib) The Selling Stockholder has, and on the First Closing Date or the Second Closing Date hereinafter defined, as the case may be, will have, valid marketable title to the Shares proposed to be sold by the Selling Stockholder hereunder on such date and full right, has all corporate power and authority to enter into this Agreement and the Pricing Escrow Agreement and to sellcarry out all the terms and provisions hereof and thereof to be carried out by it. All authorizations and consents necessary for the execution and delivery by the Selling Stockholder of this Agreement and the Escrow Agreement have been given. This Agreement and the Escrow Agreement have been duly authorized, assignexecuted and delivered by or on behalf of the Selling Stockholder and constitute valid and binding agreements of the Selling Stockholder and are enforceable against the Selling Stockholder in accordance with their terms, transfer except as limited by applicable bankruptcy, insolvency, reorganization, moratorium or other laws now or hereafter in effect relating to or affecting creditors' rights generally or by general principles of equity relating to the availability of remedies and deliver except as rights to indemnity or contribution may be limited by federal or state securities laws and the public policy underlying such laws.
(c) The Selling Stockholder has full power and authority to enter into the Power of Attorney in the form heretofore furnished to the Selling Stockholder and the Custody Agreement in the form heretofore furnished to the Selling Stockholder and to carry out all the terms and provisions thereof to be carried out by it. All authorizations and consents necessary for the execution and delivery by the Selling Stockholder of the Power of Attorney and the Custody Agreement have been given. Each of the Power of Attorney and the Custody Agreement has been duly authorized, executed and delivered by the Selling Stockholder and is enforceable against the Selling Stockholder in accordance with the terms thereof, except as limited by applicable bankruptcy, insolvency, reorganization, moratorium or other laws now or hereafter in effect relating to or affecting creditors' rights generally or by general principles of equity relating to the availability of remedies.
(d) The Selling Stockholder now has, and at the time of delivery thereof hereunder will have, (i) good and marketable title to the Selling Stockholder Shares to be sold by the Selling Stockholder hereunder, free and clear of all voting trust arrangementsencumbrances and adverse claims, liens, encumbrances, equities, claims and community property rights; and upon delivery of and payment for such Shares hereunder, the Underwriters will acquire valid marketable title thereto, free and clear of all voting trust arrangements, liens, encumbrances, equities, claims and community property rights other than those imposed upon or consented to in writing by the Representatives.
(ii) The full legal right and power, and all authorizations and approvals required by law, to sell, transfer and deliver the Selling Stockholder has not taken Shares to the Investors and will not take during to make the offering period (including any time after the effective date of the Registration Statement during which the Underwriters are deemed to be making a public offering)representations, directly or indirectly, any action designed to or which might be reasonably expected to cause or result, under the Exchange Act or otherwise, in stabilization or manipulation of the price of any security of the Company to facilitate the sale or resale of the Shares.
(iii) [Each preliminary prospectus, solely with respect to information provided warranties and agreements made by the Selling Stockholder for inclusion herein.
(e) None of the execution, delivery or performance of this Agreement, the Escrow Agreement, the Power of Attorney or the Custody Agreement or the consummation of the transactions contemplated herein or therein as by the Selling Stockholder conflicts or will conflict with or results or will result in any breach or violation of any of the terms or provisions of, or constitute a default under, or result in the creation or imposition of any encumbrance upon, any property or assets of the Selling Stockholder pursuant to (i) the terms of its organizational documents; (ii) the terms of any contract or other agreement to which the Selling Stockholder is a party or by which it is bound or to which any of its properties is subject, which conflict, breach, violation or default would adversely affect the Selling Stockholder's ability to perform its obligations hereunder; (iii) any statute, rule or regulation of any governmental body having jurisdiction over the Selling Stockholder or any of its activities or properties; or (iv) the terms of any judgment, decree or order of any arbitration or governmental body having such jurisdiction.
(f) No consent, approval, authorization or order of, or any filing or declaration with any governmental body is required for the consummation by the Selling Stockholder of the transactions on its part contemplated herein, except such as have been obtained under the state securities or Blue Sky laws and under the NASD rules.
(g) The sale of the Selling Stockholder Shares proposed to be sold by the Selling Stockholder is not prompted by the Selling Stockholder's knowledge of any material adverse information concerning the Company or its Subsidiaries which is not set forth or described in the Prospectus.
(h) On the Effective Date, the date relating of the Preliminary Prospectus and the date of the Prospectus, and on the Closing Date, the information with respect to the Selling Stockholder (it being understood such information does included therein did not include information relating to the operations of the Company), has not included contain any untrue statement of a material fact or omitted omit to state a material fact necessary to make the statements therein not misleading; and the Registration Statement at the time of effectiveness, and at all times subsequent thereto, until the First Closing Date or the Second Closing Date hereinafter defined, as the case may be, neither the Registration Statement nor the Prospectus, nor any amendment or supplement thereto, solely with respect to information relating to the Selling Stockholder (it being understood such information does not include information relating to the operations of the Company) provided by the Selling Stockholder for inclusion therein, included or will include any untrue statement of a material fact or omitted or will omit to state any material fact required to be stated therein or necessary in order to make the statements therein not misleading.]
(ivi) On the date that any Preliminary Prospectus was filed with the Commission, the date the Prospectus is first filed with the Commission pursuant to Rule 424(b) (if required), at all times subsequent to and including the Closing Date, all information with respect to the Selling Stockholder included in the Registration Statement, each Preliminary Prospectus and the Prospectus (as amended or as supplemented if the Company shall have filed with the Commission any amendment or supplement thereto), did or will comply with all applicable provisions of the 1933 Act and the 1933 Act Regulations and did or will contain all statements required to be stated therein in accordance with the 1933 Act and the 1933 Act Regulations.
(j) The Selling Stockholder agrees with has delivered to the Company and Placement Agents an agreement in the Underwriters not toform of Attachment B hereto to the effect that it will not, directly or indirectlywithout the prior written consent of the Representative, (i) offer, sell (including "short" selling), assign, transfer, encumber, pledge, contract to sell, grant an option to purchase, establish an open "put equivalent position" within the meaning of Rule 16a-1(h) under the Exchange Act, or otherwise dispose of any shares of Common Stock capital stock or equity securities of the Company or securities convertible into, or exchangeable into, or exercisable for, Common Stock held shares of record or beneficially owned (within the meaning of Rule 13d-3 under the Exchange Act); or (ii) enter any swap or other arrangement that transfers all or a portion capital stock of the economic consequences associated with Company (excluding the ownership of any Common Stock Selling Stockholder Shares) for a period of 180 120 days after this Agreement becomes effective without the prior written consent of the Representatives. In order to document the Underwriter's compliance with the reporting and withholding provisions of the Internal Revenue Code of 1986, as amended, with respect to the transactions herein contemplated, the Selling Stockholder agrees to deliver to you prior to or on the First Closing Date, as hereinafter defined, a properly completed and executed United States Treasury Department Form W-8 or W-9 (or other applicable form of statement specified by Treasury Department regulations in lieu thereof).
Appears in 1 contract
