Purchase, Sale and Delivery of Shares. On the basis of the representations, warranties and agreements herein contained, but subject to the terms and conditions herein set forth, the Company and the Selling Stockholders agree, severally and not jointly, to sell to the Underwriters, and each Underwriter agrees, severally and not jointly, to purchase from the Company and the Selling Stockholders, respectively, at a purchase price of $_____ per share, the respective number of Company Shares and Selling Stockholder Shares set forth opposite the names of the Company and the Selling Stockholders, respectively, in Schedule B hereto. The obligation of each Underwriter to the Company and to each Selling Stockholder shall be to purchase from the Company or such Selling Stockholder that number of Company Shares or Selling Stockholder Shares, as the case may be, which (as nearly as practicable, as determined by you) is in the same proportion to the number of Company Shares or Selling Stockholder Shares, as the case may be, set forth opposite the name of the Company or such Selling Stockholder in Schedule B hereto as the number of Firm Shares which is set forth opposite the name of such Underwriter in Schedule A hereto (subject to adjustment as provided in Section 10) is to the total number of Firm Shares to be purchased by all the Underwriters under this Agreement. The certificates in negotiable form or properly executed option exercise forms for the Selling Stockholder Shares have been placed in custody (for delivery under this Agreement) under the Custody Agreement. Each Selling Stockholder agrees that the certificates or executed option exercise forms for the Selling Stockholder Shares of such Selling Stockholder so held in custody are subject to the interests of the Underwriters hereunder, that the arrangements made by such Selling Stockholder for such custody, including the Power of Attorney is to that extent irrevocable and that the obligations of such Selling Stockholder hereunder shall not be terminated by the act of such Selling Stockholder or by operation of law, whether by the death or incapacity of such Selling Stockholder or the occurrence of any other event, except as specifically provided herein or in the Custody Agreement. If any Selling Stockholder should die or be incapacitated, or if any other such event should occur, before the delivery of the certificates for the Selling Stockholder Shares hereunder, the Selling Stockholder Shares to be sold by such Selling Stockholder shall, except as specifically provided herein or in the Custody Agreement, be delivered by the Custodian in accordance with the terms and conditions of this Agreement as if such death, incapacity or other event had not occurred, regardless of whether the Custodian shall have received notice of such death or other event. Delivery of definitive certificates for the Firm Shares to be purchased by the Underwriters pursuant to this Section 3 shall be made against payment of the purchase price therefor by the several Underwriters by certified or official bank check or checks drawn in next-day funds, payable to the order of the Company with regard to the Shares being purchased from the Company, and to the order of the Custodian for the respective accounts of the Selling Stockholders with regard to the Shares being purchased from such Selling Stockholders (and the Company and such Selling Stockholders agree not to deposit and to cause the Custodian not to deposit any such check in the bank on which it is drawn, and not to take any other action with the purpose or effect of receiving immediately available funds, until the business day following the date of its delivery to the Company or the Custodian, as the case may be, and, in the event of any breach of the foregoing, the Company or the Selling Stockholders, as the case may be, shall reimburse the Underwriters for the interest lost and any other expenses borne by them by reason of such breach), at the offices of Xxxxxxx & XxXxxxxx, Los Angeles, California (or at such other place as may be agreed upon among the Representatives and the Company), at 7:00 A.M., San Francisco time (a) on the third (3rd) full business day following the first day that Shares are traded, (b) if this Agreement is executed and delivered after 1:30 P.M., San Francisco time, the fourth (4th) full business day following the day that this Agreement is executed and delivered or (c) at such other time and date not later than seven (7) full business days following the first day that Shares are traded as the Representatives and the Company and the Attorneys may determine (or at such time and date to which payment and delivery shall have been postponed pursuant to Section 10 hereof), such time and date of payment and delivery being herein called the "Closing Date;" PROVIDED, HOWEVER, that if the Company has not made available to the Representatives copies of the Prospectus within the time provided in Section 4(d) hereof, the Representatives may, in their sole discretion, postpone the Closing Date until no later than two (2) full business days following delivery of copies of the Prospectus to the Representatives. The certificates for the Firm Shares to be so delivered will be made available to you at such office or such other location including, without limitation, in New York City, as you may reasonably request for checking at least one (1) full business day prior to the Closing Date and will be in such names and denominations as you may request, such request to be made at least two (2) full business days prior to the Closing Date. If the Representatives so elect, delivery of the Firm Shares may be made by credit through full fast transfer to the accounts at The Depository Trust Company designated by the Representatives. It is understood that you, individually, and not as the Representatives of the several Underwriters, may (but shall not be obligated to) make payment of the purchase price on behalf of any Underwriter or Underwriters whose check or checks shall not have been received by you prior to the Closing Date for the Firm Shares to be purchased by such Underwriter or Underwriters. Any such payment by you shall not relieve any such Underwriter or Underwriters of any of its or their obligations hereunder. After the Registration Statement becomes effective, the several Underwriters intend to make a public offering (as such term is described in Section 11 hereof) of the Firm Shares at a public offering price of $_____ per share. After the public offering, the several Underwriters may, in their discretion, vary the public offering price. The information set forth in the second and eighth paragraphs under the caption "Underwriting" in any Preliminary Prospectus and in the Prospectus constitutes the only information furnished by the Underwriters to the Company for inclusion in any Preliminary Prospectus, the Prospectus or the Registration Statement or any Incorporated Document, and you, on behalf of the respective Underwriters, represent and warrant to the Company and the Selling Stockholders that the statements made therein do not include any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading.
Appears in 1 contract
Samples: Tetra Tech Inc
Purchase, Sale and Delivery of Shares. On the basis of the representations, warranties and agreements herein contained, but subject to the terms and conditions herein set forth, the Company and the Selling Stockholders Shareholders agree, severally and not jointly, to sell to the Underwriters, and each Underwriter agrees, severally and not jointly, to purchase from the Company and the Selling StockholdersShareholders, respectively, at a purchase price of $_____ per share, the respective number of Company Shares as hereinafter set forth and Selling Stockholder Shareholder Shares set forth opposite the names of the Company and the Selling Stockholders, respectively, Shareholders in Schedule B hereto. The obligation of each Underwriter to the Company and to each Selling Stockholder Shareholder shall be to purchase from the Company or such Selling Stockholder Shareholder that number of Company Shares or Selling Stockholder Shareholder Shares, as the case may be, which (as nearly as practicable, as determined by you) is in the same proportion to the number of Company Shares or Selling Stockholder Shareholder Shares, as the case may be, set forth opposite the name of the Company or such Selling Stockholder Shareholder in Schedule B hereto as the number of Firm Shares which is set forth opposite the name of such Underwriter in Schedule A hereto (subject to adjustment as provided in Section 10) is to the total number of Firm Shares to be purchased by all the Underwriters under this Agreement. The certificates in negotiable form or properly executed option exercise forms for the Selling Stockholder Shareholder Shares have been placed in custody (for delivery under this Agreement) under the Custody Agreement. Each Selling Stockholder Shareholder agrees that the certificates or executed option exercise forms for the Selling Stockholder Shareholder Shares of such Selling Stockholder Shareholder so held in custody are subject to the interests of the Underwriters hereunder, that the arrangements made by such Selling Stockholder Shareholder for such custody, including the Power of Attorney is to that extent irrevocable and that the obligations of such Selling Stockholder Shareholder hereunder shall not be terminated by the act of such Selling Stockholder Shareholder or by operation of law, whether by the death or incapacity of such Selling Stockholder Shareholder or the occurrence of any other event, except as specifically provided herein or in the Custody Agreement. If any Selling Stockholder Shareholder should die or be incapacitated, or if any other such event should occur, before the delivery of the certificates for the Selling Stockholder Shareholder Shares hereunder, the Selling Stockholder Shareholder Shares to be sold by such Selling Stockholder Shareholder shall, except as specifically provided herein or in the Custody Agreement, be delivered by the Custodian in accordance with the terms and conditions of this Agreement as if such death, incapacity or other event had not occurred, regardless of whether the Custodian shall have received notice of such death or other event. Delivery of definitive certificates for the Firm Shares to be purchased by the Underwriters pursuant to this Section 3 shall be made against payment of the purchase price therefor by the several Underwriters by certified or official bank check or checks drawn in nextsame-day funds, payable to the order of the Company with regard to the Shares being purchased from the Company, and to the order of the Custodian for the respective accounts of the Selling Stockholders Shareholders with regard to the Shares being purchased from such Selling Stockholders (and the Company and such Selling Stockholders agree not to deposit and to cause the Custodian not to deposit any such check in the bank on which it is drawn, and not to take any other action with the purpose or effect of receiving immediately available funds, until the business day following the date of its delivery to the Company or the Custodian, as the case may be, and, in the event of any breach of the foregoing, the Company or the Selling Stockholders, as the case may be, shall reimburse the Underwriters for the interest lost and any other expenses borne by them by reason of such breach), Shareholders at the offices of Xxxxxxx Fulbright & Jawoxxxx XXX, 1301 XxXxxxxx, Los AngelesXxxxx 0000, California Houston, Texas 77010-3095 (or at such other place as may be agreed upon among the Representatives and the CompanyCompany and the Attorneys), at 7:00 9:00 A.M., San Francisco Houston time (a) on the third (3rd) full business day following the first day that Shares are traded, (b) if this Agreement is executed and delivered after 1:30 3:30 P.M., San Francisco Houston time, the fourth (4th) full business day following the day that this Agreement is executed and delivered or (c) at such other time and date not later than seven (7) full business days following the first day that Shares are traded as the Representatives and the Company and the Attorneys may determine (or at such time and date to which payment and delivery shall have been postponed pursuant to Section 10 hereof), such time and date of payment and delivery being herein called the "Closing Date;" PROVIDEDprovided, HOWEVERhowever, that if the Company has not made available to the Representatives copies of the Prospectus within the time provided in Section 4(d) hereof, the Representatives may, in their sole discretion, postpone the Closing Date until no later than two (2) full business days following delivery of copies of the Prospectus to the Representatives. The certificates for the Firm Shares to be so delivered will be made available to you at such office or such other location including, without limitation, in New York City, as you may reasonably request for checking at least one (1) full business day prior to the Closing Date and will be in such names and denominations as you may request, such request to be made at least two (2) full business days prior to the Closing Date. If the Representatives so elect, delivery of the Firm Shares may be made by credit through full fast transfer to the accounts at The Depository Trust Company designated by the Representatives. It is understood that you, individually, and not as the Representatives of the several Underwriters, may (but shall not be obligated to) make payment of the purchase price on behalf of any Underwriter or Underwriters whose check or checks shall not have been received by you prior to the Closing Date for the Firm Shares to be purchased by such Underwriter or Underwriters. Any such payment by you shall not relieve any such Underwriter or Underwriters of any of its or their obligations hereunder. After the Registration Statement becomes effective, the several Underwriters intend to make a public offering (as such term is described in Section 11 hereof) of the Firm Shares at a public offering price of $_____ per share. After the public offering, the several Underwriters may, in their discretion, vary the public offering price. The information set forth in the second and eighth paragraphs under the caption "Underwriting" in any Preliminary Prospectus and in the Prospectus constitutes the only information furnished by the Underwriters to the Company for inclusion in any Preliminary Prospectus, the Prospectus or the Registration Statement or any Incorporated Document, and you, on behalf of the respective Underwriters, represent and warrant to the Company and the Selling Stockholders that the statements made therein do not include any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading.the
Appears in 1 contract
Purchase, Sale and Delivery of Shares. On the basis of the ------------------------------------- representations, warranties and agreements herein contained, but subject to the terms and conditions herein set forth, the Company and the Selling Stockholders agree, severally and not jointly, to sell to the Underwriters, and each Underwriter agrees, severally and not jointly, to purchase from the Company and the Selling Stockholders, respectively, at a purchase price of $_____ per share, the respective number of Company Shares as hereinafter set forth and Selling Stockholder Shares set forth opposite the names of the Company and the Selling Stockholders, respectively, Stockholders in Schedule B hereto. The obligation of each Underwriter to the Company and to each Selling Stockholder shall be to purchase from the Company or such Selling Stockholder that number of Company Shares or Selling Stockholder Shares, as the case may be, which (as nearly as practicable, as determined by you) is in the same proportion to the number of Company Shares or Selling Stockholder Shares, as the case may be, set forth opposite the name of the Company or such Selling Stockholder in Schedule B hereto as the number of Firm Shares which that is set forth opposite the name of such Underwriter in Schedule A hereto (subject to adjustment as provided in Section 10) is to the total number of Firm Shares to be purchased by all the Underwriters under this Agreement. The certificates in negotiable form or properly executed option exercise forms for the Selling Stockholder Shares have been placed in custody (for delivery under this Agreement) under the Custody Agreement. Each Selling Stockholder agrees that the certificates or executed option exercise forms for the Selling Stockholder Shares of such Selling Stockholder so held in custody are subject to the interests of the Underwriters hereunder, that the arrangements made by such Selling Stockholder for such custody, including the Power of Attorney is to that extent irrevocable and that the obligations of such Selling Stockholder hereunder shall not be terminated by the act of such Selling Stockholder or by operation of law, whether by the death or incapacity of such Selling Stockholder or the occurrence of any other event, except as specifically provided herein or in the Custody Agreement. If any Selling Stockholder should die or be incapacitated, or if any other such event should occur, before the delivery of the certificates for the Selling Stockholder Shares hereunder, the Selling Stockholder Shares to be sold by such Selling Stockholder shall, except as specifically provided herein or in the Custody Agreement, be delivered by the Custodian in accordance with the terms and conditions of this Agreement as if such death, incapacity or other event had not occurred, regardless of whether the Custodian shall have received notice of such death or other event. Delivery of definitive certificates for the Firm Shares to be purchased by the Underwriters pursuant to this Section 3 shall be made against payment of the purchase price therefor by the several Underwriters by certified or official bank check or checks drawn in nextwire transfer of Federal (same-day day) funds, payable to the order of the Company with regard to the Shares being purchased from the Company, and to the order of the Custodian for the respective accounts of the Selling Stockholders with regard to the Shares being purchased from such Selling Stockholders (and the Company and such Selling Stockholders agree not to deposit and to cause the Custodian not to deposit any such check in the bank on which it is drawn, and not to take any other action with the purpose or effect of receiving immediately available funds, until the business day following the date of its delivery to the Company or the Custodian, as the case may be, and, in the event of any breach of the foregoing, the Company or the Selling Stockholders, as the case may be, shall reimburse the Underwriters for the interest lost and any other expenses borne by them by reason of such breach), at the offices of Xxxxxxx & XxXxxxxxXxxx and Xxxx LLP, Los Angeles00 Xxxxx Xxxxxx, California Xxxxxx, Xxxxxxxxxxxxx 00000 (or at such other place as may be agreed upon among the Representatives Representatives, the Company and the CompanyAttorneys), at 7:00 7 A.M., San Francisco time (a) on the third (3rd) full business day following the first day that Shares are traded, (b) if this Agreement is executed and delivered after 1:30 P.M., San Francisco time, the fourth (4th) full business day following the day that this Agreement is executed and delivered or (c) at such other time and date not later than seven (7) full business days following the first day that Shares are traded as the Representatives and Representatives, the Company and the Attorneys may determine (or at such time and date to which payment and delivery shall have been postponed pursuant to Section 10 hereof10), such time and date of payment and delivery being herein called the "Closing Date;" PROVIDED"; provided, HOWEVERhowever, that if the Company has not made available to the Representatives copies of the Prospectus within the time provided in Section 4(d) hereof), the Representatives may, in their sole discretion, postpone the Closing Date until no later than two (2) full business days following delivery of copies of the Prospectus to the Representatives. The certificates for the Firm Shares to be so delivered will be made available to you at such office or such other location including, without limitation, in New York City, as you may reasonably request for checking at least one (1) full business day prior to the Closing Date and will be in such names and denominations as you may request, such request to be made at least two (2) full business days prior to the Closing Date. If the Representatives so elect, delivery of the Firm Shares may be made by credit through full fast transfer to the accounts at The Depository Trust Company designated by the Representatives. It is understood that you, individually, and not as the Representatives of the several Underwriters, may (but shall not be obligated to) make payment of the purchase price on behalf of any Underwriter or Underwriters whose check or checks shall not have been received by you prior to the Closing Date for the Firm Shares to be purchased by such Underwriter or Underwriters. Any such payment by you shall not relieve any such Underwriter or Underwriters of any of its or their obligations hereunder. After the Registration Statement becomes effective, the several Underwriters intend to make a an initial public offering (as such term is described in Section 11 hereof11) of the Firm Shares at a an initial public offering price of $_____ per share. After the initial public offering, the several Underwriters may, in their discretion, vary the public offering price. The information set forth in the second second, sixth and eighth paragraphs under the caption "Underwriting" in any Preliminary Prospectus and in the Prospectus constitutes the only information furnished by the Underwriters to the Company for inclusion in any Preliminary Prospectus, the Prospectus or the Registration Statement or any Incorporated DocumentStatement, and you, on behalf of the respective Underwriters, represent and warrant to the Company and the Selling Stockholders that the statements made therein do not include any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading.
Appears in 1 contract
Samples: Underwriting Agreement (Bottomline Technologies Inc /De/)
Purchase, Sale and Delivery of Shares. On the basis of the ------------------------------------- representations, warranties and agreements herein contained, but subject to the terms and conditions herein set forth, the Company and each of the Selling Stockholders agree, severally and not jointly, to sell to the Underwriters, and each Underwriter agrees, severally and not jointly, to purchase from the Company and the Selling Stockholders, respectively, at a purchase price of $______ per share, the respective number of Company Shares as hereinafter set forth and Selling Stockholder Shares set forth opposite the names of the Company and the Selling Stockholders, respectively, Stockholders in Schedule B ---------- hereto. The obligation of each Underwriter to the Company and to each the Selling Stockholder Stockholders shall be to purchase from the Company or such Selling Stockholder Stockholders that number of Company Shares or Selling Stockholder Shares, as the case may be, which (as nearly as practicable, as determined by you) is in the same proportion to the number of Company Shares or Selling Stockholder Shares, as the case may be, set forth opposite the name of the Company or such Selling Stockholder Stockholders in Schedule B hereto as the number of Firm Shares which is set forth opposite the ---------- name of such Underwriter in Schedule A hereto (subject to adjustment as provided ---------- in Section 10) is to the total number of Firm Shares to be purchased by all the Underwriters under this Agreement. The certificates in negotiable form or properly executed option exercise forms for the Selling Stockholder Shares have been placed in custody (for delivery under this Agreement) under the Custody Agreement. Each Selling Stockholder agrees that the certificates or executed option exercise forms for the Selling Stockholder Shares of such Selling Stockholder so held in custody are subject to the interests of the Underwriters hereunder, that the arrangements made by such Selling Stockholder for such custody, including the Power of Attorney is to that extent irrevocable and that the obligations of such Selling Stockholder hereunder shall not be terminated by the act of such Selling Stockholder or by operation of law, whether by the death or incapacity of such Selling Stockholder or the occurrence of any other event, except as specifically provided herein or in the Custody Agreement. If any the Selling Stockholder should die or be incapacitated, or if any other such event should occur, before the delivery of the certificates for the Selling Stockholder Shares hereunder, the Selling Stockholder Shares to be sold by such Selling Stockholder shall, except as specifically provided herein or in the Custody Agreement, be delivered by the Custodian in accordance with the terms and conditions of this Agreement as if such death, incapacity or other event had not occurred, regardless of whether the Custodian shall have received notice of such death or other event. Delivery of definitive certificates for the Firm Shares to be purchased by the Underwriters pursuant to this Section 3 shall be made against payment of the purchase price therefor by the several Underwriters by certified or official bank check or checks drawn wire transfer in nextsame-day funds, payable to the order of the Company with regard to the Shares being purchased from the Company, and to the order of the Custodian for the respective accounts account of the Selling Stockholders with regard to the Shares being purchased from such Selling Stockholders (and the Company and such Selling Stockholders agree not to deposit and to cause the Custodian not to deposit any such check in the bank on which it is drawn, and not to take any other action with the purpose or effect of receiving immediately available funds, until the business day following the date of its delivery to the Company or the Custodian, as the case may be, and, in the event of any breach of the foregoing, the Company or the Selling Stockholders, as the case may be, shall reimburse the Underwriters for the interest lost and any other expenses borne by them by reason of such breach), at the offices of Skadden, Arps, Slate, Xxxxxxx & XxXxxxxxXxxx LLP, Los Angeles000 Xxxxx Xxxxxx, California Xxx Xxxx, Xxx Xxxx 00000-0000 (or at such other place as may be agreed upon among the Representatives and the CompanyCompany and the Attorneys), at 7:00 10:00 A.M., San Francisco New York time (a) on the third (3rd) full business day following the first day that Shares are traded, (b) if this Agreement is executed and delivered after 1:30 4:30 P.M., San Francisco New York time, the fourth (4th) full business day following the day that this Agreement is executed and delivered or (c) at such other time and date not later than seven (7) full business days following the first day that Shares are traded as the Representatives and the Company and the Attorneys may determine (or at such time and date to which payment and delivery shall have been postponed pursuant to Section 10 hereof), such time and date of payment and delivery being herein called the "Closing Date;" PROVIDEDprovided, HOWEVERhowever, -------- ------- that if the Company has not made available to the Representatives copies of the Prospectus within the time provided in Section 4(d) hereof, the Representatives may, in their sole discretion, postpone the Closing Date until no later than two (2) full business days following delivery of copies of the Prospectus to the Representatives. The certificates for the Firm Shares to be so delivered will be made available to you at such office or such other location including, without limitation, in New York City, as you may reasonably request for checking at least one (1) full business day prior to the Closing Date and will be in such names and denominations as you may request, such request to be made at least two (2) full business days prior to the Closing Date. If the Representatives so elect, delivery of the Firm Shares may be made by credit through full fast transfer to the accounts at The Depository Trust Company designated by the Representatives. It is understood that you, individually, and not as the Representatives of the several Underwriters, may (but shall not be obligated to) make payment of the purchase price on behalf of any Underwriter or Underwriters whose check or checks shall not have been received by you prior to the Closing Date for the Firm Shares to be purchased by such Underwriter or Underwriters. Any such payment by you shall not relieve any such Underwriter or Underwriters of any of its or their obligations hereunder. After the Registration Statement becomes effective, the several Underwriters intend to make a an initial public offering (as such term is described in Section 11 hereof) of the Firm Shares at a an initial public offering price of $______ per share. After the initial public offering, the several Underwriters may, in their discretion, vary the public offering price. The information set forth in under the first and second and eighth paragraphs under the caption "Underwriting" in any Preliminary Prospectus and in the Prospectus constitutes the only information furnished by the Underwriters to the Company for inclusion in any Preliminary Prospectus, the Prospectus or the Registration Statement or any Incorporated DocumentStatement, and you, on behalf of the respective Underwriters, represent and warrant to the Company and the Selling Stockholders that the statements made therein do not include any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading.
Appears in 1 contract
Purchase, Sale and Delivery of Shares. On the basis of the representations, warranties and agreements herein contained, but subject to the terms and conditions herein set forth, the Company and each of the Selling Stockholders agreeagrees, severally and not jointly, to sell to the Underwriters, and each Underwriter agrees, severally and not jointly, to purchase from the Company and the Selling Stockholders, respectively, at a purchase price of $_____ per share, the respective number of Company Shares as hereinafter set forth and Selling Stockholder Shares set forth opposite the names of the Company and the Selling Stockholders, respectively, Stockholders in Schedule B hereto. The obligation of each Underwriter to the Company and to each Selling Stockholder shall be to purchase from the Company or such Selling Stockholder that number of Company Shares or Selling Stockholder Shares, as the case may be, which (as nearly as practicable, as determined by you) is in the same proportion to the number of Company Shares or Selling Stockholder Shares, as the case may be, set forth opposite the name of the Company or such Selling Stockholder in Schedule B hereto as the number of Firm Shares which is set forth opposite the name of such Underwriter in Schedule A hereto (subject to adjustment as provided in Section 10) is to the total number of Firm Shares to be purchased by all the Underwriters under this Agreement. The certificates in negotiable form or properly executed option exercise forms for the Selling Stockholder Shares have been placed in custody (for delivery under this Agreement) under the Custody Agreement. Each Selling Stockholder agrees that the certificates or executed option exercise forms for the Selling Stockholder Shares of such Selling Stockholder so held in custody are subject to the interests of the Underwriters hereunder, that the arrangements made by such Selling Stockholder for such custody, including the Power of Attorney is to that extent irrevocable and that the obligations of such Selling Stockholder hereunder shall not be terminated by the act of such Selling Stockholder or by operation of law, whether by the death or incapacity of such Selling Stockholder or the occurrence of any other event, except as specifically provided herein or in the Custody Agreement. If any Selling Stockholder should die or be incapacitated, or if any other such event should occur, before the delivery of the certificates for the Selling Stockholder Shares hereunder, the Selling Stockholder Shares to be sold by such Selling Stockholder shall, except as specifically provided herein or in the Custody Agreement, be delivered by the Custodian in accordance with the terms and conditions of this Agreement as if such death, incapacity or other event had not occurred, regardless of whether the Custodian shall have received notice of such death or other event. Delivery of definitive certificates for the Firm Shares to be purchased by the Underwriters pursuant to this Section 3 shall be made against payment of the purchase price therefor by the several Underwriters by certified or official bank check or checks drawn in next-day funds, payable to the order of the Company with regard to the Shares being purchased from the Company, and to the order of the Custodian for the respective accounts of the Selling Stockholders with regard to the Shares being purchased from such Selling Stockholders (and the Company and such Selling Stockholders agree not to deposit and to cause the Custodian not to deposit any such check in the bank on which it is drawn, and not to take any other action with the purpose or effect of receiving immediately available funds, until the business day following the date of its delivery to the Company or the Custodian, as the case may be, and, in the event of any breach of the foregoing, the Company or the Selling Stockholders, as the case may be, shall reimburse the Underwriters for the interest lost and any other expenses borne by them by reason of such breach), at the offices of Xxxxxxx Testx, Xxrwxxx & XxXxxxxxXhibxxxxx, Los AngelesXXP, California 125 Xxxx Xxxxxx, Xxxx Xxxxxx Xxxxx, Xxxxxx, XX 00000 (or xx at such other place as may be agreed upon among the Representatives and the CompanyCompany and the Attorneys), at 7:00 A.M., San Francisco time (a) on the third (3rd) full business day following the first day that Shares are traded, (b) if this Agreement is executed and delivered after 1:30 P.M., San Francisco time, the fourth (4th) full business day following the day that this Agreement is executed and delivered or (c) at such other time and date not later than seven (7) full business days following the first day that Shares are traded as the Representatives and Representatives, the Company and the Attorneys may determine (or at such time and date to which payment and delivery shall have been postponed pursuant to Section 10 hereof), such time and date of payment and delivery being herein called the "Closing Date;" PROVIDED, HOWEVER, that if the Company has not made available to the Representatives copies of the Prospectus within the time provided in Section 4(d) hereof, the Representatives may, in their sole discretion, postpone the Closing Date until no later than two (2) full business days following delivery of copies of the Prospectus to the Representatives. The certificates for the Firm Shares to be so delivered will be made available to you at such office or such other location including, without limitation, in New York City, as you may reasonably request for checking at least one (1) full business day prior to the Closing Date and will be in such names and denominations as you may request, such request to be made at least two (2) full business days prior to the Closing Date. If the Representatives so elect, delivery of the Firm Shares may be made by credit through full fast transfer to the accounts at The Depository Trust Company designated by the Representatives. It is understood that you, individually, and not as the Representatives of the several Underwriters, may (but shall not be obligated to) make payment of the purchase price on behalf of any Underwriter or Underwriters whose check or checks shall not have been received by you prior to the Closing Date for the Firm Shares to be purchased by such Underwriter or Underwriters. Any such payment by you shall not relieve any such Underwriter or Underwriters of any of its or their obligations hereunder. After the Registration Statement becomes effective, the several Underwriters intend to make a an initial public offering (as such term is described in Section 11 hereof) of the Firm Shares and, if applicable, the Option Shares, at a an initial public offering price of $_____ per share. After the initial public offering, the several Underwriters may, in their discretion, vary the public offering price. The information set forth in the second last paragraph on the front cover page (insofar as such information relates to the Underwriters), on the inside front cover concerning stabilization and eighth over-allotment by the Underwriters, and under the first, second, sixth and seventh paragraphs under the caption "Underwriting" in any Preliminary Prospectus and in the Prospectus constitutes the only information furnished by the Underwriters to the Company for inclusion in any Preliminary Prospectus, the Prospectus or the Registration Statement or any Incorporated DocumentStatement, and you, on behalf of the respective Underwriters, represent and warrant to the Company and the Selling Stockholders that the statements made therein do not include any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading.
Appears in 1 contract
Samples: Underwriting Agreement (Omtool LTD)
Purchase, Sale and Delivery of Shares. On the basis of the ------------------------------------- representations, warranties and agreements herein contained, but subject to the terms and conditions herein set forth, the Company and the Selling Stockholders agree, severally and not jointly, to sell to the Underwriters, and each Underwriter agrees, severally and not jointly, to purchase from the Company and the Selling Stockholders, respectively, at a purchase price of $_____ per share, the respective number of Company Firm Shares as hereinafter set forth and Selling Stockholder Shares set forth opposite the names of the Company and the Selling Stockholders, respectively, Stockholders in Schedule B hereto. The obligation of each Underwriter to the Company and to each Selling Stockholder shall be to purchase from the Company or such Selling Stockholder that number of Company Firm Shares or Selling Stockholder Shares, as the case may be, which (as nearly as practicable, as determined by you) is in the same proportion to the number of Company Shares or Selling Stockholder Shares, as the case may be, set forth opposite the name of the Company or such Selling Stockholder in Schedule B hereto as the number of Firm Shares which is set forth opposite the name of such Underwriter in Schedule A hereto (subject to adjustment as provided in Section 10) is to the total number of Firm Shares to be purchased by all the Underwriters under this Agreement. It is understood that _____ of the Firm Shares will initially be reserved by the Underwriters for offer and sale upon the terms and conditions set forth in the Prospectus to employees and persons having business relationships with the Company and its subsidiaries who have heretofore delivered to the Representatives offers or indications of interest to purchase Firm Shares in form satisfactory to the Representatives and that any allocation of such Firm Shares among such persons will be made in accordance with timely directions received by the Representatives from the Company; provided, that under no -------- circumstances will the Representatives or any Underwriter be liable to the Company or to any such person for any action taken or omitted in good faith in connection with such offering to employees and persons having business relationships with the Company and its subsidiaries. It is further understood that any such Firm Shares which are not purchased by such persons will be offered by the Underwriters to the public upon the terms and conditions set forth in the Prospectus. The certificates in negotiable form or properly executed option exercise forms for the Selling Stockholder Shares have been placed in custody (for delivery under this Agreement) under the Custody Agreement. Each Selling Stockholder agrees that the certificates or executed option exercise forms for the Selling Stockholder Shares of such Selling Stockholder so held in custody are subject to the interests of the Underwriters hereunder, that the arrangements made by such Selling Stockholder for such custody, including the Power of Attorney is to that extent irrevocable and that the obligations of such Selling Stockholder hereunder shall not be terminated by the act of such Selling Stockholder or by operation of law, whether by the death or incapacity of such Selling Stockholder or the occurrence of any other event, except as specifically provided herein or in the Custody Agreement. If any Selling Stockholder should die or be incapacitated, or if any other such event should occur, before the delivery of the certificates for the Selling Stockholder Shares hereunder, the Selling Stockholder Shares to be sold by such Selling Stockholder shall, except as specifically provided herein or in the Custody Agreement, be delivered by the Custodian in accordance with the terms and conditions of this Agreement as if such death, incapacity or other event had not occurred, regardless of whether the Custodian shall have received notice of such death or other event. Delivery of definitive certificates for the Firm Shares to be purchased by the Underwriters pursuant to this Section 3 4 shall be made against payment of the purchase price therefor by the several Underwriters by certified or official bank check or checks drawn in next-day funds, payable to the order of the Company with regard to the Shares being purchased from the Company, and to the order of the Custodian for the respective accounts of the Selling Stockholders with regard to the Shares being purchased from such Selling Stockholders (and the Company and such Selling Stockholders agree not to deposit and to cause the Custodian not to deposit any such check in the bank on which it is drawn, and not to take any other action with the purpose or effect of receiving immediately available funds, until the business day following the date of its delivery to the Company or the Custodian, as the case may be, and, in the event of any breach of the foregoing, the Company or the Selling Stockholders, as the case may be, shall reimburse the Underwriters for the interest lost and any other expenses borne by them by reason of such breach), at the offices of Xxxxx, Xxxxxxx & XxXxxxxxXxxxxxxxx, Los AngelesLLP, California High Street Tower, 000 Xxxx Xxxxxx, Xxxxxx, XX 00000 (or at such other place as may be agreed upon among the Representatives and the CompanyCompany and the Attorneys), at 7:00 A.M., San Francisco time (a) on the third (3rd) full business day following the first day that Shares are traded, (b) if this Agreement is executed and delivered after 1:30 P.M., San Francisco time, the fourth (4th) full business day following the day that this Agreement is executed and delivered or (c) at such other time and date not later than seven (7) full business days following the first day that Shares are traded as the Representatives and the Company and the Attorneys may determine (or at such time and date to which payment and delivery shall have been postponed pursuant to Section 10 11 hereof), such time and date of payment and delivery being herein called the "Closing Date;" PROVIDEDprovided, HOWEVERhowever, that if the -------- ------- Company has not made available to the Representatives copies of the Prospectus within the time provided in Section 4(d5(d) hereof, the Representatives may, in their sole discretion, postpone the Closing Date until no later than two (2) full business days following delivery of copies of the Prospectus to the Representatives. The certificates for the Firm Shares to be so delivered will be made available to you at such office or such other location including, without limitation, in New York City, as you may reasonably request for checking at least one (1) full business day prior to the Closing Date and will be in such names and denominations as you may request, such request to be made at least two (2) full business days prior to the Closing Date. If the Representatives so elect, delivery of the Firm Shares may be made by credit through full fast transfer to the accounts at The Depository Trust Company designated by the Representatives. It is understood that you, individually, and not as the Representatives of the several Underwriters, may (but shall not be obligated to) make payment of the purchase price on behalf of any Underwriter or Underwriters whose check or checks shall not have been received by you prior to the Closing Date for the Firm Shares to be purchased by such Underwriter or Underwriters. Any such payment by you shall not relieve any such Underwriter or Underwriters of any of its or their obligations hereunder. After the Registration Statement becomes effective, the several Underwriters intend to make a an initial public offering (as such term is described in Section 11 12 hereof) of the Firm Shares at a an initial public offering price of $_____ per share. After the initial public offering, the several Underwriters may, in their discretion, vary the public offering price. The information set forth in the second last paragraph on the front cover page (insofar as such information relates to the Underwriters), on the inside front cover concerning stabilization and eighth over-allotment by the Underwriters, and under the _____ and _____ paragraphs under the caption "Underwriting" in any Preliminary Prospectus and in the Prospectus constitutes the only information furnished by the Underwriters to the Company for inclusion in any Preliminary Prospectus, the Prospectus or the Registration Statement or any Incorporated DocumentStatement, and you, on behalf of the respective Underwriters, represent and warrant to the Company and the Selling Stockholders that the statements made therein do not include any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading.
Appears in 1 contract
Samples: Underwriting Agreement (Tsi International Software LTD)
Purchase, Sale and Delivery of Shares. On the basis of the representations, warranties and agreements herein contained, but subject to the terms and conditions herein set forth, the Company and each of the Selling Stockholders agreeselling Selling Stockholder Shares agrees, severally and not jointly, to sell to the Underwriters, and each Underwriter agrees, severally and not jointly, to purchase from the Company and the Selling Stockholders, respectively, at a purchase price of $_____ per shareshare [IPO PRICE LESS DISCOUNT], the respective number of Company Shares and Selling Stockholder Shares set forth opposite the names of the Company and the Selling Stockholders, respectively, Stockholders in Schedule B hereto. The obligation of each Underwriter to the Company and to each Selling Stockholder shall be to purchase from the Company or such Selling Stockholder that number of Company Shares or Selling Stockholder Shares, as the case may be, which (as nearly as practicable, as determined by you) is in the same proportion to the number of Company Shares or Selling Stockholder Shares, as the case may be, set forth opposite the name of the Company or such Selling Stockholder in Schedule B hereto as the number of Firm Shares which is set forth opposite the name of such Underwriter in Schedule A hereto (subject to adjustment as provided in Section 10) is to the total number of Firm Shares to be purchased by all the Underwriters under this Agreement. The certificates in negotiable form or properly executed option exercise forms for the Selling Stockholder Shares have been placed in custody (for delivery under this Agreement) under the Custody Agreement. Each Selling Stockholder agrees that the certificates or executed option exercise forms for the Selling Stockholder Shares of such Selling Stockholder so held in custody are subject to the interests of the Underwriters hereunder, that the arrangements made by such Selling Stockholder for such custody, including the Custody Agreement and the Power of Attorney is to that extent irrevocable and that the obligations of such Selling Stockholder hereunder shall not be terminated by the act of such Selling Stockholder or by operation of law, whether by the death or incapacity of such Selling Stockholder or the occurrence of any other event, except as specifically provided herein or in the Custody AgreementAgreement or Power of Attorney. If any Selling Stockholder should die or be incapacitated, or if any other such event should occur, before the delivery of the certificates for the Selling Stockholder Shares hereunder, the Selling Stockholder Shares to be sold by such Selling Stockholder shall, except as specifically provided herein or in the Custody Agreement, be delivered by the Custodian in accordance with the terms and conditions of this Agreement as if such death, incapacity or other event had not occurred, regardless of whether the Custodian shall have received notice of such death or other event. Delivery of definitive certificates for the Firm Shares to be purchased by the Underwriters pursuant to this Section 3 shall be made against payment of the purchase price therefor by the several Underwriters by wire transfer, certified or official bank check or checks drawn in nextsame-day funds, payable to the order of the Company with regard to the Shares being purchased from the Company, and to the order of the Custodian for the respective accounts of the Selling Stockholders with regard to the Shares being purchased from such Selling Stockholders (and the Company and such Selling Stockholders agree not to deposit and to cause the Custodian not to deposit any such check in the bank on which it is drawn, and not to take any other action with the purpose or effect of receiving immediately available funds, until the business day following the date of its delivery to the Company or the Custodian, as the case may be, and, in the event of any breach of the foregoing, the Company or the Selling Stockholders, as the case may be, shall reimburse the Underwriters for the interest lost and any other expenses borne by them by reason of such breach), at the offices of Xxxxxxx & XxXxxxxxWeiner LLP, Los Angeles000 X. Xxxxxx Xxxxxx, California xxxxx 0000, Xxx Xxxxxxx, Xxxxxxxxxx, 00000 (or at such other place as may be agreed upon among the Representatives and the CompanyCompany and the Attorneys), at 7:00 A.M., San Francisco time (a) on the third (3rd) full business day following the first day that Shares are traded, (b) if this Agreement is executed and delivered after 1:30 P.M., San Francisco time, the fourth (4th) full business day following the day that this Agreement is executed and delivered or (c) at such other time and date not later than seven (7) full business days following the first day that Shares are traded as the Representatives and the Company and the Attorneys may determine (or at such time and date to which payment and delivery shall have been postponed pursuant to Section 10 hereof), such time and date of payment and delivery being herein called the "Closing Date;" PROVIDED, HOWEVER, that if the Company has not made available to the Representatives copies of the Prospectus within the time provided in Section 4(d) hereof, the Representatives may, in their sole discretion, postpone the Closing Date until no later than two (2) full business days following delivery of copies of the Prospectus to the Representatives. The certificates for the Firm Shares to be so delivered will be made available to you at such office or such other location including, without limitation, in San Francisco or New York City, as you may reasonably request for checking at least one (1) full business day prior to the Closing Date and will be in such names and denominations as you may request, such request to be made at least two (2) full business days prior to the Closing Date. If the Representatives so elect, delivery of the Firm Shares may be made by credit through full fast transfer to the accounts at The Depository Trust Company designated by the Representatives. It is understood that you, individually, and not as the Representatives of the several Underwriters, may (but shall not be obligated to) make payment of the purchase price on behalf of any Underwriter or Underwriters whose wire transfer(s), check or checks shall not have been received by you prior to the Closing Date for the Firm Shares to be purchased by such Underwriter or Underwriters. Any such payment by you shall not relieve any such Underwriter or Underwriters of any of its or their obligations hereunder. After the Registration Statement becomes effective, the several Underwriters intend to make a an initial public offering (as such term is described in Section 11 hereof) of the Firm Shares at a an initial public offering price of $_____ per share. After the initial public offering, the several Underwriters may, in their discretion, vary the public offering price. The information set forth in the last paragraph on the front cover page (insofar as such information relates to the Underwriters), on the inside front cover concerning stabilization and over-allotment by the Underwriters, and under the table of Underwriters, second and eighth paragraphs under the caption "Underwriting" in any Preliminary Prospectus and in the Prospectus constitutes the only information furnished by the Underwriters to the Company for inclusion in any Preliminary Prospectus, the Prospectus or the Registration Statement or any Incorporated Document, and you, on behalf of the respective Underwriters, represent and warrant to the Company and the Selling Stockholders that the statements made therein do not include any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading.
Appears in 1 contract
Samples: Big Dog Holdings Inc
Purchase, Sale and Delivery of Shares. On the basis of the representations, warranties and agreements herein contained, but subject to the terms and conditions herein set forth, the Company and the Selling Stockholders Shareholders agree, severally and not jointly, to sell to the Underwriters, and each Underwriter agrees, severally and not jointly, to purchase from the Company and the Selling StockholdersShareholders, respectively, at a purchase price of $_____ per share, the respective number of Company Firm Shares and Selling Stockholder Shares as hereinafter set forth opposite the names of the Company and the Selling Stockholders, respectively, in Schedule B heretoforth. The obligation of each Underwriter to the Company and to each Selling Stockholder Shareholder shall be to purchase from the Company or such Selling Stockholder Shareholder that number of Company Shares or Selling Stockholder Shareholder Shares, as the case may be, which (as nearly as practicable, as determined by you) is in the same proportion to the number of Company Shares or Selling Stockholder Shareholder Shares, as the case may be, set forth opposite the name of the Company or such Selling Stockholder Shareholder in Schedule B hereto as the number of Firm Shares which is set forth opposite the name of such Underwriter in Schedule A hereto (subject to adjustment as provided in Section 10) is to the total number of Firm Shares to be purchased by all the Underwriters under this Agreement. The certificates in negotiable form or properly executed option exercise forms for the Selling Stockholder Shareholder Shares have been placed in custody (for delivery under this Agreement) under the Custody Agreement. Each Selling Stockholder Shareholder agrees that the certificates or executed option exercise forms for the Selling Stockholder Shareholder Shares of such Selling Stockholder Shareholder so held in custody are subject to the interests of the Underwriters hereunder, that the arrangements made by such Selling Stockholder Shareholder for such custody, including the Power of Attorney is to that extent irrevocable and that the obligations of such Selling Stockholder Shareholder hereunder shall not be terminated by the act of such Selling Stockholder Shareholder or by operation of law, whether by the death or incapacity of such Selling Stockholder Shareholder or the occurrence of any other event, except as specifically provided herein or in the Custody Agreement. If any Selling Stockholder Shareholder should die or be incapacitated, or if any other such event should occur, before the delivery of the certificates for the Selling Stockholder Shareholder Shares hereunder, the Selling Stockholder Shareholder Shares to be sold by such Selling Stockholder Shareholder shall, except as specifically provided herein or in the Custody Agreement, be delivered by the Custodian in accordance with the terms and conditions of this Agreement as if such death, incapacity or other event had not occurred, regardless of whether the Custodian shall have received notice of such death or other event. Delivery of definitive certificates for the Firm Shares to be purchased by the Underwriters pursuant to this Section 3 shall be made against payment of the purchase price therefor by the several Underwriters by certified or official bank check or checks drawn in next-day funds, payable to the order of the Company with regard to the Shares being purchased from the Company, and to the order of the Custodian for the respective accounts of the Selling Stockholders Shareholders with regard to the Shares being purchased from such Selling Stockholders Shareholders (and the Company and such Selling Stockholders Shareholders agree not to deposit and and, in the case of the Selling Shareholders, to cause the Custodian not to deposit any such check in the bank on which it is drawn, and not to take any other action with the purpose or effect of receiving immediately available funds, until the business day following the date of its delivery to the Company or the Custodian, as the case may be, and, in the event of any breach of the foregoing, the Company or the Selling StockholdersShareholders, as the case may be, shall reimburse the Underwriters for the interest lost and any other expenses borne by them by reason of such breach), at the offices of Xxxxxxx & XxXxxxxxDykexx Xxxsxxx XXXC, Los AngelesSuite 100, California 315 Xxxx Xxxxxxxxxx Xxxxxxx, Xxx Xxxxx, Xxxxxxxx 00000-0000 (or xx at such other place as may be agreed upon among the Representatives and the CompanyCompany and the Selling Shareholders), at 7:00 A.M., San Francisco time (a) on the third (3rd) full business day following the first day that Shares are traded, (b) if this Agreement is executed and delivered after 1:30 P.M., San Francisco time, the fourth (4th) full business day following the day that this Agreement is executed and delivered or (c) at such other time and date not later than seven (7) full business days following the first day that Shares are traded as the Representatives and the Company and the Attorneys Selling Shareholders may determine (or at such time and date to which payment and delivery shall have been postponed pursuant to Section 10 hereof), such time and date of payment and delivery being herein called the "Closing Date;" PROVIDEDprovided, HOWEVERhowever, that if the Company has not made available to the Representatives copies of the Prospectus within the time provided in Section 4(d) hereof, the Representatives may, in their sole discretion, postpone the Closing Date until no later than two (2) full business days following delivery of copies of the Prospectus to the Representatives. The certificates for the Firm Shares to be so delivered will be made available to you at such office or such other location including, without limitation, in New York City, as you may reasonably request for checking at least one (1) full business day prior to the Closing Date and will be in such names and denominations as you may request, such request to be made at least two (2) full business days prior to the Closing Date. If the Representatives so elect, delivery of the Firm Shares may be made by credit through full fast transfer to the accounts at The Depository Trust Company designated by the Representatives. It is understood that you, individually, and not as the Representatives of the several Underwriters, may (but shall not be obligated to) make payment of the purchase price on behalf of any Underwriter or Underwriters whose check or checks shall not have been received by you prior to the Closing Date for the Firm Shares to be purchased by such Underwriter or Underwriters. Any such payment by you shall not relieve any such Underwriter or Underwriters of any of its or their obligations hereunder. After the Registration Statement becomes effective, the several Underwriters intend to make a an initial public offering (as such term is described in Section 11 hereof) of the Firm Shares at a an initial public offering price of $_____ per share. After the initial public offering, the several Underwriters may, in their discretion, vary the public offering price. The information set forth in the second last paragraph on the front cover page (insofar as such information relates to the Underwriters), under the last two paragraphs on page 2, concerning stabilization and eighth over-allotment by the Underwriters, and under the first, second, third, fourth, sixth and seventh paragraphs under the caption "Underwriting" in any Preliminary Prospectus and in the final form of Prospectus filed pursuant to Rule 424(b) constitutes the only information furnished by the Underwriters to the Company for inclusion in any Preliminary Prospectus, the Prospectus or the Registration Statement or any Incorporated Document, and you, on behalf of the respective Underwriters, represent and warrant to the Company and the Selling Stockholders Shareholders that the statements made therein do not include any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading.
Appears in 1 contract
Samples: Comshare Inc
Purchase, Sale and Delivery of Shares. (a) On the basis of the representations, warranties and agreements herein contained, but subject to the terms and conditions herein set forth, (i) the Company agrees to issue and the Selling Stockholders agree, severally and not jointly, to sell to each of the Underwriters, and each Underwriter of the Underwriters agrees, severally and not jointly, to purchase from the Company and the Selling Stockholders, respectivelyCompany, at a purchase price of equal to $_____ 3.995 per shareshare or such higher price so that the underwriting discount, following the respective number of Company Shares and Selling Stockholder Shares set forth opposite the names offering of the Company shares and the Selling Stockholders, respectively, in Schedule B hereto. The obligation of each Underwriter price to the Company and public as contemplated by the Prospectus, with respect to each Selling Stockholder shall be to purchase from such share is six percent (6%) (the Company or such Selling Stockholder that number of Company Shares or Selling Stockholder Shares“Per Share Price”), as the case may be, which (as nearly as practicable, as determined by you) is in the same proportion to the number of Company Firm Shares or Selling Stockholder Shares, as the case may be, set forth opposite the name of such Underwriter on Schedule V hereto, and (ii) in the event and to the extent that the Underwriters shall exercise the election to purchase Additional Shares as provided below, the Company or such Selling Stockholder in Schedule B hereto as agrees to issue and sell to each of the Underwriters, and each of the Underwriters agrees, severally and not jointly, to purchase from the Company, at the Per Share Price, that portion of the number of Firm Additional Shares as to which such election shall have been exercised (to be adjusted so as to eliminate fractional shares) determined by multiplying such number of Additional Shares by a fraction, the numerator of which is the maximum number of Additional Shares which such Underwriter is entitled to purchase as set forth opposite the name of such Underwriter in Schedule A V hereto (subject to adjustment as provided in Section 10) and the denominator of which is to the total maximum number of Firm Additional Shares to be purchased by that all the Underwriters under this Agreement. The certificates in negotiable form or properly executed option exercise forms for the Selling Stockholder Shares have been placed in custody (for delivery under this Agreement) under the Custody Agreement. Each Selling Stockholder agrees that the certificates or executed option exercise forms for the Selling Stockholder Shares of such Selling Stockholder so held in custody are subject to the interests of the Underwriters are entitled to purchase hereunder. As referenced in Section 3(a)(ii) above, the Company hereby grants to the several Underwriters the option to purchase from the Company the Additional Shares, at the Per Share Price. This option may be exercised by the Representative on behalf of the Underwriters in whole or in part at any time (but not more than once) on or before the date that is thirty (30) days following the date hereof, by written notice to the Company. Such notice shall set forth the aggregate number of Additional Shares as to which the option is being exercised, and the date and time when the Additional Shares are to be delivered (such date and time being herein referred to as the “Option Closing Date”); provided, however, that the arrangements made by such Selling Stockholder for such custody, including the Power of Attorney is to that extent irrevocable and that the obligations of such Selling Stockholder hereunder Option Closing Date shall not be terminated by earlier than the act Closing Date nor later than two business days after the date on which the option shall have been exercised unless the Company and the Underwriters otherwise agree in writing. Payment of such Selling Stockholder or by operation of law, whether by the death or incapacity of such Selling Stockholder or purchase price and delivery for the occurrence of any other event, except as specifically provided herein or Additional Shares shall be made at the Option Closing Date in the Custody Agreement. If any Selling Stockholder should die or be incapacitated, or if any other such event should occur, before same manner and at the delivery of same office as the certificates for the Selling Stockholder Shares hereunder, the Selling Stockholder Shares to be sold by such Selling Stockholder shall, except as specifically provided herein or in the Custody Agreement, be delivered by the Custodian in accordance with the terms and conditions of this Agreement as if such death, incapacity or other event had not occurred, regardless of whether the Custodian shall have received notice of such death or other event. Delivery of definitive certificates payment for the Firm Shares to be purchased by the Underwriters pursuant to this Section 3 shall be made against payment of the purchase price therefor by the several Underwriters by certified or official bank check or checks drawn in next-day funds, payable to the order of the Company with regard to the Shares being purchased from the Company, and to the order of the Custodian for the respective accounts of the Selling Stockholders with regard to the Shares being purchased from such Selling Stockholders (and the Company and such Selling Stockholders agree not to deposit and to cause the Custodian not to deposit any such check in the bank on which it is drawn, and not to take any other action with the purpose or effect of receiving immediately available funds, until the business day following the date of its delivery to the Company or the Custodian, as the case may be, and, in the event of any breach of the foregoing, the Company or the Selling Stockholders, as the case may be, shall reimburse the Underwriters for the interest lost and any other expenses borne by them by reason of such breach), at the offices of Xxxxxxx & XxXxxxxx, Los Angeles, California (or at such other place as may be agreed upon among the Representatives and the Company), at 7:00 A.M., San Francisco time (a) on the third (3rd) full business day following the first day that Shares are traded, (b) if this Agreement is executed and delivered after 1:30 P.M., San Francisco time, the fourth (4th) full business day following the day that this Agreement is executed and delivered or (c) at such other time and date not later than seven (7) full business days following the first day that Shares are traded as the Representatives and the Company and the Attorneys may determine (or at such time and date to which payment and delivery shall have been postponed pursuant to Section 10 hereof), such time and date of payment and delivery being herein called the "Closing Date;" PROVIDED, HOWEVER, that if the Company has not made available to the Representatives copies of the Prospectus within the time provided in Section 4(d) hereof, the Representatives may, in their sole discretion, postpone the Closing Date until no later than two (2) full business days following delivery of copies of the Prospectus to the Representatives. The certificates for the Firm Shares to be so delivered will be made available to you at such office or such other location including, without limitation, in New York City, as you may reasonably request for checking at least one (1) full business day prior to the Closing Date and will be in such names and denominations as you may request, such request to be made at least two (2) full business days prior to the Closing Date. If the Representatives so elect, delivery of the Firm Shares may be made by credit through full fast transfer to the accounts at The Depository Trust Company designated by the Representatives. It is understood that you, individually, and not as the Representatives of the several Underwriters, may (but shall not be obligated to) make payment of the purchase price on behalf of any Underwriter or Underwriters whose check or checks shall not have been received by you prior to the Closing Date for the Firm Shares to be purchased by such Underwriter or Underwriters. Any such payment by you shall not relieve any such Underwriter or Underwriters of any of its or their obligations hereunder. After the Registration Statement becomes effective, the several Underwriters intend to make a public offering (as such term is described in Section 11 hereof) of the Firm Shares at a public offering price of $_____ per share. After the public offering, the several Underwriters may, in their discretion, vary the public offering price. The information set forth in the second and eighth paragraphs under the caption "Underwriting" in any Preliminary Prospectus and in the Prospectus constitutes the only information furnished by the Underwriters to the Company for inclusion in any Preliminary Prospectus, the Prospectus or the Registration Statement or any Incorporated Document, and you, on behalf of the respective Underwriters, represent and warrant to the Company and the Selling Stockholders that the statements made therein do not include any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleadingSection 3(b) below.
Appears in 1 contract
Purchase, Sale and Delivery of Shares. On the basis of the representations, warranties and agreements herein contained, but subject to the terms and conditions herein set forth, the Company and the Selling Stockholders agree, severally and not jointly, to sell to the Underwriters, and each Underwriter agrees, severally and not jointly, to purchase from the Company and the Selling Stockholders, respectively, at a purchase price of $[_____ _] per share, the respective number of Company Shares as hereinafter set forth and Selling Stockholder Shares set forth opposite the names of the Company and the Selling Stockholders, respectively, Stockholders in Schedule B hereto. The obligation of each Underwriter to the Company and to each Selling Stockholder shall be to purchase from the Company or such Selling Stockholder that number of Company Shares or Selling Stockholder Shares, as the case may be, which (as nearly as practicable, as determined by you) is in the same proportion to the number of Company Shares or Selling Stockholder Shares, as the case may be, set forth opposite the name of the Company or such Selling Stockholder in Schedule B hereto as the number of Firm Shares which is set forth opposite the name of such Underwriter in Schedule A hereto (subject to adjustment as provided in Section 10) is to the total number of Firm Shares to be purchased by all the Underwriters under this Agreement. The certificates in negotiable form or properly executed option exercise forms for the Selling Stockholder Shares have been placed in custody (for delivery under this Agreement) under the Custody Agreement. Each Selling Stockholder agrees that the certificates or executed option exercise forms for the Selling Stockholder Shares of such Selling Stockholder so held in custody are subject to the interests of the Underwriters hereunder, that the arrangements made by such Selling Stockholder for such custody, including the Power of Attorney is to that extent irrevocable and that the obligations of such Selling Stockholder hereunder shall not be terminated by the act of such Selling Stockholder or by operation of law, whether by the death or incapacity of such Selling Stockholder or the occurrence of any other event, except as specifically provided herein or in the Custody Agreement. If any Selling Stockholder should die or be incapacitated, or if any other such event should occur, before the delivery of the certificates for the Selling Stockholder Shares hereunder, the Selling Stockholder Shares to be sold by such Selling Stockholder shall, except as specifically provided herein or in the Custody Agreement, be delivered by the Custodian in accordance with the terms and conditions of this Agreement as if such death, incapacity or other event had not occurred, regardless of whether the Custodian shall have received notice of such death or other event. Delivery of definitive certificates for the Firm Shares to be purchased by the Underwriters pursuant to this Section 3 shall be made against payment of the purchase price therefor by the several Underwriters by certified or official bank check or checks drawn in next-day funds, payable to the order of the Company with regard to the Shares being purchased from the Company, and to the order of the Custodian for the respective accounts of the Selling Stockholders with regard to the Shares being purchased from such Selling Stockholders (and the Company and such Selling Stockholders agree not to deposit and to cause the Custodian not to deposit any such check in the bank on which it is drawn, and not to take any other action with the purpose or effect of receiving immediately available funds, until the business day following the date of its delivery to the Company or the Custodian, as the case may be, and, in the event of any breach of the foregoing, the Company or the Selling Stockholders, as the case may be, shall reimburse the Underwriters for the interest lost and any other expenses borne by them by reason of such breach), at the offices of Xxxxxxxxx Xxxxxxx Xxxxxx Xxxxxxxxxx Xxxxxxxx & XxXxxxxxXxxxxxxxx LLP, Los Angeles0000 Xxxxxxx xx Xxxxx Xxxxxxx, California Xxxxx 0000, Xxxxxx, Xxxxx 00000 (or at such other place as may be agreed upon among the Representatives and the Company), at 7:00 A.M., San Francisco time (a) on the third (3rd) full business day following the first day that Shares are traded, (b) if this Agreement is executed and delivered after 1:30 P.M., San Francisco time, the fourth (4th) full business day following the day that this Agreement is executed and delivered or (c) at such other time and date not later than seven (7) full business days following the first day that Shares are traded as the Representatives and the Company and the Attorneys may determine (or at such time and date to which payment and delivery shall have been postponed pursuant to Section 10 hereof), such time and date of payment and delivery being herein called the "Closing Date;" PROVIDEDprovided, HOWEVERhowever, that if the Company has not made available to the Representatives copies of the Prospectus within the time provided in Section 4(d) hereof, the Representatives may, in their sole discretion, postpone the Closing Date until no later than two (2) full business days following delivery of copies of the Prospectus to the Representatives. The certificates for the Firm Shares to be so delivered will be made available to you at such office or such other location including, without limitation, in New York City, as you may reasonably request for checking at least one (1) full business day prior to the Closing Date and will be in such names and denominations as you may request, such request to be made at least two (2) full business days prior to the Closing Date. If the Representatives so elect, delivery of the Firm Shares may be made by credit through full fast transfer to the accounts at The Depository Trust Company designated by the Representatives. It is understood that you, individually, and not as the Representatives of the several Underwriters, may (but shall not be obligated to) make payment of the purchase price on behalf of any Underwriter or Underwriters whose check or checks shall not have been received by you prior to the Closing Date for the Firm Shares to be purchased by such Underwriter or Underwriters. Any such payment by you shall not relieve any such Underwriter or Underwriters of any of its or their obligations hereunder. After the Registration Statement becomes effective, the several Underwriters intend to make a public offering (as such term is described in Section 11 hereof) of the Firm Shares at a public offering price of $[_____ _] per share. After the public offering, the several Underwriters may, in their discretion, vary the public offering price. The information set forth in the second last paragraph on the front cover page (insofar as such information relates to the Underwriters), and under the seventh and eighth paragraphs under the caption "Underwriting" in any Preliminary Prospectus and in the Prospectus constitutes the only information furnished by the Underwriters to the Company for inclusion in any Preliminary Prospectus, the Prospectus or the Registration Statement or any Incorporated DocumentStatement, and you, on behalf of the respective Underwriters, represent and warrant to the Company and the Selling Stockholders that the statements made therein do not include any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading.
Appears in 1 contract
Purchase, Sale and Delivery of Shares. On The Company ------------------------------------- appoints the basis Underwriter the agent of the representationsCompany (and Group) for the period commencing on the date hereof until ( ), warranties 1997, extended by the Company and agreements herein containedthe Underwriter by their mutual agreement for a period not to exceed an additional thirty (30) days (the "Offering Termination Date"), but subject to use Underwriter's best efforts to offer and sell, on a best efforts, all or none basis, a minimum of 1,200,000 shares of Common Stock (of which the Company is offering 1,000,000 shares and Group is offering 200,000 shares) and Warrants to purchase a minimum of 1,200,000 shares of Common Stock, and a maximum of 1,600,000 shares of Common Stock (of which the Company is offering 1,400,000 shares and Group is offering 200,000 shares) and Warrants to purchase 1,600,000 shares of Common Stock at an offering price of $5.50 per share of Common Stock and $0.15 per Warrant. The shares of Common Stock and Warrants in excess of the Minimum Offering will be offered on a "best efforts" basis. The Underwriter shall have the right to engage participating broker-dealers pursuant to Section 7(d) hereof. The Underwriter hereby accepts such appointment and agrees pursuant to the terms and conditions set forth herein set forthto use its best efforts to offer and sell the Common Stock and Warrants as agent for the Company (and Group) during the periods specified above, and to find purchasers for the Common Stock and Warrants. The Underwriter shall send, by noon of the next business day after receipt, each purchaser's payment for his Common Stock and/or Warrants to the Escrow Agent designated in the following paragraph. All subscription proceeds shall be deposited directly into a special account or Escrow Account ("Escrow Account") at SunTrust/South Florida, National Association (the "Escrow Agent"), subject to an escrow agreement in the form agreed by the Company, the Underwriter and the Escrow Agent. Purchasers shall be instructed to make their checks payable to "SunTrust Bank, Escrow Agent for Medley Credit Acceptance Corp." The Underwriter shall promptly give notice to the Company if and when the Minimum Offering has been sold, or upon the Underwriter's decision to terminate the offering for any breach of any term, condition, warranty or representation contained in this Agreement by the Company. If the Offering is terminated prior to the closing of the Minimum Offering, all subscriptions will be returned by the Escrow Agent to their respective subscribers without interest and without deduction. The first closing of the offering of Common Stock and Warrants shall occur upon the sale of the Minimum Offering, which shall be deemed to have occurred when the Company has received subscriptions, and funds have cleared the banking system, for the sale of the minimum of 1,200,000 shares of Common Stock (1,000,000 shares of which will be sold by the Company and 200,000 shares of which will be sold by Group) and Warrants to purchase a minimum of 1,200,000 shares of Common Stock (the "Initial Closing"). After the Initial Closing, the Company and the Selling Stockholders agreeUnderwriter shall hold one or more additional closings, severally and not jointly, to sell to the Underwriters, and each Underwriter agrees, severally and not jointly, to purchase from the Company and the Selling Stockholders, respectively, at a purchase price as proceeds of $_____ per share, the respective number of Company Shares and Selling Stockholder Shares set forth opposite the names sale of the Company Common Stock and Warrants are received, from time-to-time, but no less than every two weeks after the Selling Stockholders, respectively, in Schedule B heretoInitial Closing. The obligation of each Underwriter to the Company and to each Selling Stockholder shall Closings will be to purchase from the Company or such Selling Stockholder that number of Company Shares or Selling Stockholder Shares, as the case may be, which (as nearly as practicable, as determined by you) is in the same proportion to the number of Company Shares or Selling Stockholder Shares, as the case may be, set forth opposite the name of the Company or such Selling Stockholder in Schedule B hereto as the number of Firm Shares which is set forth opposite the name of such Underwriter in Schedule A hereto (subject to adjustment as provided in Section 10) is to the total number of Firm Shares to be purchased by all the Underwriters under this Agreement. The certificates in negotiable form or properly executed option exercise forms for the Selling Stockholder Shares have been placed in custody (for delivery under this Agreement) under the Custody Agreement. Each Selling Stockholder agrees that the certificates or executed option exercise forms for the Selling Stockholder Shares of such Selling Stockholder so held in custody are subject to the interests of the Underwriters hereunder, that the arrangements made by such Selling Stockholder for such custody, including the Power of Attorney is to that extent irrevocable and that the obligations of such Selling Stockholder hereunder shall not be terminated by the act of such Selling Stockholder or by operation of law, whether by the death or incapacity of such Selling Stockholder or the occurrence of any other event, except as specifically provided herein or in the Custody Agreement. If any Selling Stockholder should die or be incapacitated, or if any other such event should occur, before the delivery of the certificates for the Selling Stockholder Shares hereunder, the Selling Stockholder Shares to be sold by such Selling Stockholder shall, except as specifically provided herein or in the Custody Agreement, be delivered by the Custodian in accordance with the terms and conditions of this Agreement as if such death, incapacity or other event had not occurred, regardless of whether the Custodian shall have received notice of such death or other event. Delivery of definitive certificates for the Firm Shares to be purchased by the Underwriters pursuant to this Section 3 shall be made against payment of the purchase price therefor by the several Underwriters by certified or official bank check or checks drawn in next-day funds, payable to the order of the Company with regard to the Shares being purchased from the Company, and to the order of the Custodian for the respective accounts of the Selling Stockholders with regard to the Shares being purchased from such Selling Stockholders (and the Company and such Selling Stockholders agree not to deposit and to cause the Custodian not to deposit any such check in the bank on which it is drawn, and not to take any other action with the purpose or effect of receiving immediately available funds, until the business day following the date of its delivery to the Company or the Custodian, as the case may be, and, in the event of any breach of the foregoing, the Company or the Selling Stockholders, as the case may be, shall reimburse the Underwriters for the interest lost and any other expenses borne by them by reason of such breach), at the offices of the Underwriter, 0000 Xxxxx Xxxxxxx & XxXxxxxxXxxxxxx, Los Angeles0xx Xxxxx, California (Xxxx Xxxxx, Xxxxxxx, or at such other place as may be agreed upon among the Representatives in an alternative location and the Company), at 7:00 A.M., San Francisco time (a) on the third (3rd) full business day following the first day that Shares are traded, (b) if this Agreement is executed and delivered after 1:30 P.M., San Francisco time, the fourth (4th) full business day following the day that this Agreement is executed and delivered or (c) at such other time and date not later than seven (7) full business days following the first day that Shares are traded as the Representatives and the Company and the Attorneys may determine (or at such time and date to which payment dates as the Underwriter and delivery shall have been postponed pursuant to Section 10 hereof), such time and date of payment and delivery being herein called the "Closing Date;" PROVIDED, HOWEVER, that if the Company has not made available to the Representatives copies of the Prospectus within the time provided in Section 4(d) hereof, the Representatives may, in their sole discretion, postpone the Closing Date until no later than two (2) full business days following delivery of copies of the Prospectus to the Representatives. The certificates for the Firm Shares to be so delivered will be made available to you at such office or such other location including, without limitation, in New York City, as you may reasonably request for checking at least one (1) full business day prior to the Closing Date and will be in such names and denominations as you may request, such request to be made at least two (2) full business days prior to the Closing Date. If the Representatives so elect, delivery of the Firm Shares may be made by credit through full fast transfer to the accounts at The Depository Trust Company designated by the Representatives. It is understood that you, individually, and not as the Representatives of the several Underwriters, may (but shall not be obligated to) make payment of the purchase price on behalf of any Underwriter or Underwriters whose check or checks shall not have been received by you prior to the Closing Date for the Firm Shares to be purchased by such Underwriter or Underwriters. Any such payment by you shall not relieve any such Underwriter or Underwriters of any of its or their obligations hereunder. After the Registration Statement becomes effective, the several Underwriters intend to make a public offering (as such term is described in Section 11 hereof) of the Firm Shares at a public offering price of $_____ per share. After the public offering, the several Underwriters may, in their discretion, vary the public offering price. The information set forth in the second and eighth paragraphs under the caption "Underwriting" in any Preliminary Prospectus and in the Prospectus constitutes the only information furnished by the Underwriters to the Company for inclusion in any Preliminary Prospectus, the Prospectus or the Registration Statement or any Incorporated Document, and you, on behalf of the respective Underwriters, represent and warrant to the Company and the Selling Stockholders that the statements made therein do not include any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleadingmutually agree.
Appears in 1 contract
Samples: Medley Credit Acceptance Corp
Purchase, Sale and Delivery of Shares. On the basis of the representations, warranties and agreements herein containedcovenants contained herein, but and subject to the terms and conditions herein set forth, the Company and the each Selling Stockholders agreeStockholder agrees, severally and not jointly, to sell to the Underwriters, each Underwriter and each Underwriter agrees, severally and not jointly, to purchase from the Company and the each Selling Stockholders, respectivelyStockholder, at a purchase price of $_______ per share, the respective number of Company Firm Shares and Selling Stockholder (to be adjusted by you to eliminate fractional shares) determined by multiplying the aggregate number of Firm Shares set forth opposite the names of to be sold by the Company and each of the Selling Stockholders, respectively, as set forth opposite their respective names in Schedule B hereto. The obligation , by a fraction, the numerator of each Underwriter to which is the Company and to each Selling Stockholder shall be to purchase from the Company or such Selling Stockholder that number of Company Shares or Selling Stockholder Shares, as the case may be, which (as nearly as practicable, as determined by you) is in the same proportion to the number of Company Shares or Selling Stockholder Shares, as the case may be, set forth opposite the name of the Company or such Selling Stockholder in Schedule B hereto as the aggregate number of Firm Shares which is to be purchased by such Underwriter as set forth opposite the name of such Underwriter in Schedule A hereto (subject to adjustment as provided in Section 10) and the denominator of which is to the total aggregate number of Firm Shares to be purchased by all the Underwriters under this Agreement. The certificates in negotiable form or properly executed option exercise forms for from the Company and the Selling Stockholder Shares have been placed in custody (for delivery under this Agreement) under Stockholders hereunder. In addition, on the Custody Agreement. Each Selling Stockholder agrees that basis of the certificates or executed option exercise forms for the Selling Stockholder Shares of such Selling Stockholder so held in custody are representations, warranties and covenants herein contained and subject to the interests of the Underwriters hereunder, that the arrangements made by such Selling Stockholder for such custody, including the Power of Attorney is to that extent irrevocable and that the obligations of such Selling Stockholder hereunder shall not be terminated by the act of such Selling Stockholder or by operation of law, whether by the death or incapacity of such Selling Stockholder or the occurrence of any other event, except as specifically provided herein or in the Custody Agreement. If any Selling Stockholder should die or be incapacitated, or if any other such event should occur, before the delivery of the certificates for the Selling Stockholder Shares hereunder, the Selling Stockholder Shares to be sold by such Selling Stockholder shall, except as specifically provided herein or in the Custody Agreement, be delivered by the Custodian in accordance with the terms and conditions herein set forth, the Company and each Selling Stockholder, as and to the extent indicated in Schedule B hereto, hereby grant, severally and not jointly, to the several Underwriters an option to purchase at their election up to an aggregate of this Agreement 600,000 Option Shares at the same price per share as if such death, incapacity or other event had not occurred, regardless of whether the Custodian shall have received notice of such death or other event. Delivery of definitive certificates set forth for the Firm Shares in the paragraph above, for the sole purpose of covering overallotments in the sale of the Firm Shares. The option granted hereby may be exercised in whole or in part, but only once, and at any time upon written notice given within 30 days after the date of this Agreement, by you, as Representatives of the several Underwriters, to the Company, the Attorneys-in-Fact and the Custodian setting forth the number of Option Shares as to which the several Underwriters are exercising the option and the time and date at which certificates are to be purchased by the Underwriters pursuant delivered. Any such election to this Section 3 purchase Option Shares shall be made against payment as set forth in Schedule B hereto. If any Option Shares are purchased, each Underwriter agrees, severally and not jointly, to purchase that portion of the number of Option Shares as to which such election shall have been exercised (subject to adjustment to eliminate fractional shares) determined by multiplying such number of Option Shares by a fraction the numerator of which is the maximum number of Option Shares which such Underwriter is entitled to purchase price therefor by as set forth opposite the several Underwriters by certified or official bank check or checks drawn name of such Underwriter in next-day funds, payable to Schedule A hereto and the order denominator of which is the maximum number of Option Shares which all of the Company with regard Underwriters are entitled to the Shares being purchased from the Company, and to the order of the Custodian for the respective accounts of the Selling Stockholders with regard to the Shares being purchased from such Selling Stockholders (and the Company and such Selling Stockholders agree not to deposit and to cause the Custodian not to deposit any such check in the bank on which it is drawn, and not to take any other action with the purpose or effect of receiving immediately available funds, until the business day following the date of its delivery to the Company or the Custodian, as the case may be, and, in the event of any breach of the foregoing, the Company or the Selling Stockholders, as the case may be, shall reimburse the Underwriters for the interest lost and any other expenses borne by them by reason of such breach), at the offices of Xxxxxxx & XxXxxxxx, Los Angeles, California (or at such other place as may be agreed upon among the Representatives and the Company), at 7:00 A.M., San Francisco time (a) on the third (3rd) full business day following the first day that Shares are traded, (b) if this Agreement is executed and delivered after 1:30 P.M., San Francisco time, the fourth (4th) full business day following the day that this Agreement is executed and delivered or (c) at such other purchase hereunder. The time and date at which certificates for Option Shares are to be delivered shall be determined by the Representatives but shall not be earlier than two or later than seven (7) ten full business days following after the first day that Shares are traded as the Representatives exercise of such option, and the Company and the Attorneys may determine (or at such time and date to which payment and delivery shall have been postponed pursuant to Section 10 hereof), such time and date of payment and delivery being herein called the "Closing Date;" PROVIDED, HOWEVER, that if the Company has not made available to the Representatives copies of the Prospectus within the time provided in Section 4(d) hereof, the Representatives may, in their sole discretion, postpone the Closing Date until no later than two (2) full business days following delivery of copies of the Prospectus to the Representatives. The certificates for the Firm Shares to any event be so delivered will be made available to you at such office or such other location including, without limitation, in New York City, as you may reasonably request for checking at least one (1) full business day prior to the Closing Date and will be in such names and denominations as you may request, such request to be made at least two (2) full business days prior to the Closing Date. If the Representatives so elect, delivery date of exercise of the Firm Shares may be made by credit through option is three or more full fast transfer to days before the accounts at The Depository Trust Company designated by Closing Date, the Representatives. It is understood that you, individually, and not as the Representatives notice of the several Underwriters, may (but exercise shall not be obligated to) make payment of the purchase price on behalf of any Underwriter or Underwriters whose check or checks shall not have been received by you prior to set the Closing Date as the Option Closing Date. Certificates in definitive form for the Firm Shares to be purchased by such each Underwriter or Underwriters. Any such payment by you shall not relieve any such Underwriter or Underwriters of any of its or their obligations hereunder. After the Registration Statement becomes effective, the several Underwriters intend to make a public offering (as such term is described in Section 11 hereof) of the Firm Shares at a public offering price of $_____ per share. After the public offering, the several Underwriters may, in their discretion, vary the public offering price. The information set forth in the second and eighth paragraphs under the caption "Underwriting" in any Preliminary Prospectus and in the Prospectus constitutes the only information furnished by the Underwriters such denominations and registered in such names as Furmxx Xxxx XXX may request upon at least forty-eight hours' prior notice to the Company for inclusion in any Preliminary ProspectusCompany, the Prospectus shall be delivered by or the Registration Statement or any Incorporated Document, and you, on behalf of the respective Underwriters, represent and warrant to the Company and the Selling Stockholders that to you for the statements made therein do not include any untrue statement account of a material fact such Underwriter at such time and place as shall hereafter be designated by the Representatives, against payment by such Underwriter or omit on its behalf of the purchase price therefor by wire transfer of immediately available funds to state a material fact required such accounts as the Company and the Custodian shall have designated to be stated therein the Representatives in writing at least two business days preceding the Closing Date. The time and date of such delivery and payment shall be, with respect to the Firm Shares, 9:00 a.m. New York time, at the offices of Furmxx Xxxx XXX, _______________________, New York, New York _________, on _____________ __,1997, or necessary such other time and date as you and the Company may agree upon in writing, such time and date being herein referred to make as the statements therein"CLOSING DATE," and, with respect to the Option Shares, at the time and on the date specified by you in the light written notice given by you of the circumstances under which they were madeUnderwriters' election to purchase the Option Shares, not misleadingor such other time and date as you and the Company may agree upon in writing, such time and date being referred to herein as the "OPTION CLOSING DATE." Such certificates will be made available for checking and packaging at least twenty-four hours prior to the Closing Date or the Option Closing Date, as the case may be, at a location as may be designated by you.
Appears in 1 contract
Samples: Transcrypt International Inc
Purchase, Sale and Delivery of Shares. On the basis of the representations, warranties and agreements herein contained, but subject to the terms and conditions herein set forth, the Company and the Selling Stockholders agree, severally and not jointly, to sell to the Underwriters, and each Underwriter agrees, severally and not jointly, to purchase from the Company and the Selling Stockholders, respectively, at a purchase price of $___.__ per share, the respective number of Company Shares as hereinafter set forth and Selling Stockholder Shares set forth opposite the names of the Company and the Selling Stockholders, respectively, Stockholders in Schedule B hereto. The obligation of each Underwriter to the Company and to each Selling Stockholder shall be to purchase from the Company or such Selling Stockholder that number of Company Shares or Selling Stockholder Shares, as the case may be, which (as nearly as practicable, as determined by you) is in the same proportion to the number of Company Shares or Selling Stockholder Shares, as the case may be, set forth opposite the name of the Company or such Selling Stockholder in Schedule B hereto as the number of Firm Shares which is set forth opposite the name of such Underwriter in Schedule A hereto (subject to adjustment as provided in Section 10) is to the total number of Firm Shares to be purchased by all the Underwriters under this Agreement. The certificates in negotiable form or properly executed option exercise forms for the Selling Stockholder Shares have been placed in custody (for delivery under this Agreement) under the Custody AgreementSelling Stockholder Agreements, except for the Selling Stockholder Shares to be sold by Xxx X. Xxxxx which certificates, together with duly endorsed stock xxxxxx, xxxx be delivered by Xx. Xxxxx or on his behalf to the Underwriters at the time of the Closing. Each Selling Stockholder agrees that the certificates or executed option exercise forms for the Selling Stockholder Shares of such Selling Stockholder so held in custody are subject to the interests of the Underwriters hereunder, that the arrangements made by such Selling Stockholder for such custodythe custody of the Selling Stockholder Shares, including the Power of Attorney Selling Stockholder Agreement, is to that extent irrevocable and that the obligations of such Selling Stockholder hereunder shall not be terminated by the act of such Selling Stockholder or by operation of law, whether by the death or incapacity of such Selling Stockholder or the occurrence of any other event, except as specifically provided herein or in the Custody Selling Stockholder Agreement. If any Selling Stockholder should die or be incapacitated, or if any other such event should occur, before the delivery of the certificates for the Selling Stockholder Shares hereunder, the Selling Stockholder Shares to be sold by such Selling Stockholder shall, except as specifically provided herein or in the Custody Selling Stockholder Agreement, be delivered by the Custodian in accordance with the terms and conditions of this Agreement as if such death, incapacity or other event had not occurred, regardless of whether the Custodian shall have received notice of such death or other event. Delivery of definitive certificates for the Firm Shares to be purchased by the Underwriters pursuant to this Section 3 shall be made against payment of the purchase price therefor by the several Underwriters by certified or official bank check or checks drawn in nextsame-day funds or by wire transfer in same-day funds, payable to the order of the Company with regard to the Shares being purchased from the Company, and to the order of the Custodian for the respective accounts of the Selling Stockholders with regard to the Shares being purchased from such Selling Stockholders (and the Company and such Selling Stockholders agree not to deposit and to cause the Custodian not to deposit any such check in the bank on which it is drawn, and not to take any other action with the purpose or effect of receiving immediately available funds, until the business day following the date of its delivery to the Company or the Custodian, as the case may be, and, in the event of any breach of the foregoing, the Company or the Selling Stockholders, as the case may be, shall reimburse the Underwriters for the interest lost and any other expenses borne by them by reason of such breach), at the offices of Xxxxx Xxxxxxx & XxXxxxxxRain Xxxxxxx, Los Angeles0000 Xxxx Xxxxxx, California Suite 2200, Dallas, Texas (or at such other place as may be agreed upon among the Representatives and the Company), at 7:00 A.M., San Francisco time (a) on the third (3rd) full business day following the first day that Shares are traded, (b) if this Agreement is executed and delivered after 1:30 P.M., San Francisco time, the fourth (4th) full business day following the day that this Agreement is executed and delivered or (c) at such other time and date not later than seven (7) full business days following the first day that Shares are traded as the Representatives and the Company and the Attorneys may determine (or at such time and date to which payment and delivery shall have been postponed pursuant to Section 10 hereof), such time and date of payment and delivery being herein called the "Closing Date;" "; PROVIDED, HOWEVER, that if the Company has not made available to the Representatives copies of the Prospectus within the time provided in Section 4(d) hereofhereof (through no fault of the Representatives), the Representatives may, in their sole discretion, postpone the Closing Date until no later than two (2) full business days following delivery of copies of the Prospectus to the Representatives. The certificates for the Firm Shares to be so delivered will be made available to you at such office or such other location including, without limitation, in New York City, as you may reasonably request for checking at least one (1) full business day prior to the Closing Date and will be in such names and denominations as you may request, such request to be made at least two (2) full business days prior to the Closing Date. If the Representatives so elect, delivery of the Firm Shares may be made by credit through full fast transfer to the accounts at The Depository Trust Company designated by the Representatives. It is understood that you, individually, and not as the Representatives of the several Underwriters, may (but shall not be obligated to) make payment of the purchase price on behalf of any Underwriter or Underwriters whose check or checks shall not have been received by you prior to the Closing Date for the Firm Shares to be purchased by such Underwriter or Underwriters. Any such payment by you shall not relieve any such Underwriter or Underwriters of any of its or their obligations hereunder. After the Registration Statement becomes effective, the several Underwriters intend to make a an initial public offering (as such term is described in Section 11 hereof) of the Firm Shares at a an initial public offering price of $___.__ per share. After the initial public offering, the several Underwriters may, in their discretion, vary the public offering price. The information set forth in the second last paragraph on the front cover page (insofar as such information relates to the Underwriters), on the inside front cover concerning stabilization and over-allotment by the Underwriters, and under the second, seventh, eighth and ninth paragraphs under the caption "Underwriting" in any Preliminary Prospectus and in the Prospectus constitutes the only information furnished by the Underwriters to the Company for inclusion in any Preliminary Prospectus, the Prospectus or the Registration Statement or any Incorporated DocumentStatement, and you, on behalf of the respective Underwriters, represent and warrant to the Company and the Selling Stockholders that the statements made therein do not include any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading.
Appears in 1 contract
Samples: Carreker Antinori Inc
Purchase, Sale and Delivery of Shares. On the basis of the representations, warranties and agreements herein contained, but subject to the terms and conditions herein set forth, the Company and the Selling Stockholders agree, severally and not jointly, to sell to the Underwriters, and each Underwriter agrees, severally and not jointly, to purchase from the Company and the Selling Stockholders, respectively, at a purchase price of $_____ per share, the respective number of Company Shares and Selling Stockholder Shares set forth opposite the names of the Company and the Selling Stockholders, respectively, Stockholders in Schedule B hereto. The obligation of each Underwriter to the Company and to each Selling Stockholder shall be to purchase from the Company or such Selling Stockholder that number of Company Shares or Selling Stockholder Shares, as the case may be, which (as nearly as practicable, as determined by you) is in the same proportion to the number of Company Shares or Selling Stockholder Shares, as the case may be, set forth opposite the name of the Company or such Selling Stockholder in Schedule B hereto as the number of Firm Shares which is set forth opposite the name of such Underwriter in Schedule A hereto (subject to adjustment as provided in Section 10) is to the total number of Firm Shares to be purchased by all the Underwriters under this Agreement. The certificates in negotiable form or properly executed option exercise forms for the Selling Stockholder Shares have been placed in custody (for delivery under this Agreement) under the Custody Agreement. Each Selling Stockholder agrees that the certificates or executed option exercise forms for the Selling Stockholder Shares of such Selling Stockholder so held in custody are subject to the interests of the Underwriters hereunder, that the arrangements made by such Selling Stockholder for such custody, including the Power of Attorney is to that extent irrevocable and that the obligations of such Selling Stockholder hereunder shall not be terminated by the act of such Selling Stockholder or by operation of law, whether by the death or incapacity of such Selling Stockholder or the occurrence of any other event, except as specifically provided herein or in the Custody Agreement. If any Selling Stockholder should die or be incapacitated, or if any other such event should occur, before the delivery of the certificates for the Selling Stockholder Shares hereunder, the Selling Stockholder Shares to be sold by such Selling Stockholder shall, except as specifically provided herein or in the Custody Agreement, be delivered by the Custodian in accordance with the terms and conditions of this Agreement as if such death, incapacity or other event had not occurred, regardless of whether the Custodian shall have received notice of such death or other event. Delivery of definitive certificates for the Firm Shares to be purchased by the Underwriters pursuant to this Section 3 shall be made against payment of the purchase price therefor by the several Underwriters by certified or official bank check or checks drawn in next-day funds, payable to the order of the Company with regard to the Shares being purchased from the Company, and to the order of the Custodian for the respective accounts of the Selling Stockholders with regard to the Shares being purchased from such Selling Stockholders (and the Company and such Selling Stockholders agree not to deposit and to cause the Custodian not to deposit any such check in the bank on which it is drawn, and not to take any other action with the purpose or effect of receiving immediately available funds, until the business day following the date of its delivery to the Company or the Custodian, as the case may be, and, in the event of any breach of the foregoing, the Company or the Selling Stockholders, as the case may be, shall reimburse the Underwriters for the interest lost and any other expenses borne by them by reason of such breach), at the offices of Xxxxxxx Wilson, Sonsini, Goodxxxx & XxXxxxxxXosaxx, Los Angeles000 Xxxx Xxxx Xxxx, California Xxxx Xxxx, XX 00000-0000 (or xx at such other place as may be agreed upon among the Representatives and the Company), at 7:00 A.M., San Francisco time (a) on the third (3rd) full business day following the first day that Shares are traded, (b) if this Agreement is executed and delivered after 1:30 P.M., San Francisco time, the fourth (4th) full business day following the day that this Agreement is executed and delivered or (c) at such other time and date not later than seven (7) full business days following the first day that Shares are traded as the Representatives and the Company and the Attorneys may determine (or at such time and date to which payment and delivery shall have been postponed pursuant to Section 10 hereof), such time and date of payment and delivery being herein called the "" Closing Date;" PROVIDEDprovided, HOWEVERhowever, that if the Company has not made available to the Representatives copies of the Prospectus within the time provided in Section 4(d) hereof, the Representatives may, in their sole discretion, postpone the Closing Date until no later than two (2) full business days following delivery of copies of the Prospectus to the Representatives. The certificates for the Firm Shares to be so delivered will be made available to you at such office or such other location including, without limitation, in New York City, as you may reasonably request for checking at least one (1) full business day prior to the Closing Date and will be in such names and denominations as you may request, such request to be made at least two (2) full business days prior to the Closing Date. If the Representatives so elect, delivery of the Firm Shares may be made by credit through full fast transfer to the accounts at The Depository Trust Company designated by the Representatives. It is understood that you, individually, and not as the Representatives of the several Underwriters, may (but shall not be obligated to) make payment of the purchase price on behalf of any Underwriter or Underwriters whose check or checks shall not have been received by you prior to the Closing Date for the Firm Shares to be purchased by such Underwriter or Underwriters. Any such payment by you shall not relieve any such Underwriter or Underwriters of any of its or their obligations hereunder. After the Registration Statement becomes effective, the several Underwriters intend to make a an initial public offering (as such term is described in Section 11 hereof) of the Firm Shares at a an initial public offering price of $_____ per share. After the initial public offering, the several Underwriters may, in their discretion, vary the public offering price. The information set forth in the last paragraph on the front cover page (insofar as such information relates to the Underwriters) and under the second and eighth seventh paragraphs under the caption "Underwriting" in any Preliminary Prospectus and in the Prospectus constitutes the only information furnished by the Underwriters to the Company for inclusion in any Preliminary Prospectus, the Prospectus or the Registration Statement or any Incorporated Document, and you, on behalf of the respective Underwriters, represent and warrant to the Company and the Selling Stockholders that the statements made therein do not include any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading.
Appears in 1 contract
Samples: Hi/Fn Inc
Purchase, Sale and Delivery of Shares. On the basis of the representations, warranties and agreements herein contained, but subject to the terms and conditions herein set forth, the Company and the Selling Stockholders agree, severally and not jointly, agree to sell to the Underwriters, and each Underwriter agrees, severally and not jointly, to purchase from the Company and the Selling Stockholders, respectively, at a purchase price of $_____ per shareshare [IPO PRICE LESS DISCOUNT], the respective number of Company Shares and Selling Stockholder Shares set forth opposite the names of the Company and the Selling Stockholders, respectively, Stockholders in Schedule B hereto. The obligation of each Underwriter to the Company and to each Selling Stockholder shall be to purchase from the Company or such Selling Stockholder that number of Company Shares or Selling Stockholder Shares, as the case may be, which (as nearly as practicable, as determined by you) is in the same proportion to the number of Company Shares or Selling Stockholder Shares, as the case may be, set forth opposite the name of the Company or such Selling Stockholder in Schedule B hereto as the number of Firm Shares which is set forth opposite the name of such Underwriter in Schedule A hereto (subject to adjustment as provided in Section 10) is to the total number of Firm Shares to be purchased by all the Underwriters under this Agreement. The certificates in negotiable form or properly executed option exercise forms for the Selling Stockholder Shares have been placed in custody (for delivery under this Agreement) under the Custody Agreement. Each Selling Stockholder agrees that the certificates or executed option exercise forms for the Selling Stockholder Shares of such Selling Stockholder so held in custody are subject to the interests of the Underwriters hereunder, that the arrangements made by such Selling Stockholder for such custody, including the Custody Agreement and the Power of Attorney is to that extent irrevocable and that the obligations of such Selling Stockholder hereunder shall not be terminated by the act of such Selling Stockholder or by operation of law, whether by the death or incapacity of such Selling Stockholder or the occurrence of any other event, except as specifically provided herein or in the Custody AgreementAgreement or Power of Attorney. If any Selling Stockholder should die or be incapacitated, or if any other such event should occur, before the delivery of the certificates for the Selling Stockholder Shares hereunder, the Selling Stockholder Shares to be sold by such Selling Stockholder shall, except as specifically provided herein or in the Custody Agreement, be delivered by the Custodian in accordance with the terms and conditions of this Agreement as if such death, incapacity or other event had not occurred, regardless of whether the Custodian shall have received notice of such death or other event. Delivery of definitive certificates for the Firm Shares to be purchased by the Underwriters pursuant to this Section 3 shall be made against payment of the purchase price therefor by the several Underwriters by wire transfer, certified or official bank check or checks drawn in next-day funds, payable to the order of the Company with regard to the Shares being purchased from the Company, and to the order of the Custodian for the respective accounts of the Selling Stockholders with regard to the Shares being purchased from such Selling Stockholders (and the Company and such Selling Stockholders agree not to deposit and to cause the Custodian not to deposit any such check in the bank on which it is drawn, and not to take any other action with the purpose or effect of receiving immediately available funds, until the business day following the date of its delivery to the Company or the Custodian, as the case may be, and, in the event of any breach of the foregoing, the Company or the Selling Stockholders, as the case may be, shall reimburse the Underwriters for the interest lost and any other expenses borne by them by reason of such breach), at the offices of Xxxxxxx & XxXxxxxx, Los Angeles, California (or at such other place as may be agreed upon among the Representatives and the Company), at 7:00 A.M., San Francisco time (a) on the third (3rd) full business day following the first day that Shares are traded, (b) if this Agreement is executed and delivered after 1:30 P.M., San Francisco time, the fourth (4th) full business day following the day that this Agreement is executed and delivered or (c) at such other time and date not later than seven (7) full business days following the first day that Shares are traded as the Representatives and the Company and the Attorneys may determine (or at such time and date to which payment and delivery shall have been postponed pursuant to Section 10 hereof), such time and date of payment and delivery being herein called the "Closing Date;" PROVIDED, HOWEVER, that if the Company has not made available to the Representatives copies of the Prospectus within the time provided in Section 4(d) hereof, the Representatives may, in their sole discretion, postpone the Closing Date until no later than two (2) full business days following delivery of copies of the Prospectus to the Representatives. The certificates for the Firm Shares to be so delivered will be made available to you at such office or such other location including, without limitation, in New York City, as you may reasonably request for checking at least one (1) full business day prior to the Closing Date and will be in such names and denominations as you may request, such request to be made at least two (2) full business days prior to the Closing Date. If the Representatives so elect, delivery of the Firm Shares may be made by credit through full fast transfer to the accounts at The Depository Trust Company designated by the Representatives. It is understood that you, individually, and not as the Representatives of the several Underwriters, may (but shall not be obligated to) make payment of the purchase price on behalf of any Underwriter or Underwriters whose check or checks shall not have been received by you prior to the Closing Date for the Firm Shares to be purchased by such Underwriter or Underwriters. Any such payment by you shall not relieve any such Underwriter or Underwriters of any of its or their obligations hereunder. After the Registration Statement becomes effective, the several Underwriters intend to make a public offering (as such term is described in Section 11 hereof) of the Firm Shares at a public offering price of $_____ per share. After the public offering, the several Underwriters may, in their discretion, vary the public offering price. The information set forth in the second and eighth paragraphs under the caption "Underwriting" in any Preliminary Prospectus and in the Prospectus constitutes the only information furnished by the Underwriters to the Company for inclusion in any Preliminary Prospectus, the Prospectus or the Registration Statement or any Incorporated Document, and you, on behalf of the respective Underwriters, represent and warrant to the Company and the Selling Stockholders that the statements made therein do not include any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading.check
Appears in 1 contract
Samples: Shares ( (Big Dog Holdings Inc)
Purchase, Sale and Delivery of Shares. On the basis of the representations, warranties and agreements herein containedcovenants contained herein, but and subject to the terms and conditions herein set forth, the Company and the each Selling Stockholders agreeShareholder agrees, severally and not jointly, to sell to the Underwriters, each Underwriter and each Underwriter agrees, severally and not jointly, to purchase from the Company and the each Selling Stockholders, respectivelyShareholder, at a purchase price of $_______ per share, the respective number of Firm Shares (to be adjusted by you to eliminate fractional shares) determined by multiplying the aggregate number of Firm Shares to be sold by the Company Shares and each of the Selling Stockholder Shares Shareholders, as set forth opposite the their respective names of the Company and the Selling Stockholders, respectively, in Schedule B hereto. The obligation , by a fraction, the numerator of each Underwriter to which is the Company and to each Selling Stockholder shall be to purchase from the Company or such Selling Stockholder that number of Company Shares or Selling Stockholder Shares, as the case may be, which (as nearly as practicable, as determined by you) is in the same proportion to the number of Company Shares or Selling Stockholder Shares, as the case may be, set forth opposite the name of the Company or such Selling Stockholder in Schedule B hereto as the aggregate number of Firm Shares which is to be purchased by such Underwriter as set forth opposite the name of such Underwriter in Schedule A hereto (subject to adjustment as provided in Section 10) and the denominator of which is to the total aggregate number of Firm Shares to be purchased by all the Underwriters under this Agreement. The certificates in negotiable form or properly executed option exercise forms for from the Company and the Selling Stockholder Shares have been placed in custody (for delivery under this Agreement) under Shareholders hereunder. In addition, on the Custody Agreement. Each Selling Stockholder agrees that basis of the certificates or executed option exercise forms for the Selling Stockholder Shares of such Selling Stockholder so held in custody are representations, warranties and covenants herein contained and subject to the interests of the Underwriters hereunder, that the arrangements made by such Selling Stockholder for such custody, including the Power of Attorney is to that extent irrevocable and that the obligations of such Selling Stockholder hereunder shall not be terminated by the act of such Selling Stockholder or by operation of law, whether by the death or incapacity of such Selling Stockholder or the occurrence of any other event, except as specifically provided herein or in the Custody Agreement. If any Selling Stockholder should die or be incapacitated, or if any other such event should occur, before the delivery of the certificates for the Selling Stockholder Shares hereunder, the Selling Stockholder Shares to be sold by such Selling Stockholder shall, except as specifically provided herein or in the Custody Agreement, be delivered by the Custodian in accordance with the terms and conditions herein set forth, the Selling Shareholders, as and to the extent indicated in Schedule B hereto, hereby grant, severally and not jointly, to the several Underwriters an option to purchase at their election up to an aggregate of this Agreement 562,500 Option Shares at the same price per share as if such death, incapacity or other event had not occurred, regardless of whether the Custodian shall have received notice of such death or other event. Delivery of definitive certificates set forth for the Firm Shares in the paragraph above, for the sole purpose of covering overallotments in the sale of the Firm Shares. The option granted hereby may be exercised in whole or in part, but only once, and at any time upon written notice given within 30 days after the date of this Agreement, by you, as Representatives of the several Underwriters, to the Company, the Attorneys-in-Fact and the Custodian setting forth the number of Option Shares as to which the several Underwriters are exercising the option and the time and date at which certificates are to be purchased by the Underwriters pursuant delivered. [Any such election to this Section 3 purchase Option Shares shall be made against payment as set forth in Schedule B hereto.] If any Option Shares are purchased, each Underwriter agrees, severally and not jointly, to purchase that portion of the number of Option Shares as to which such election shall have been exercised (subject to adjustment to eliminate fractional shares) determined by multiplying such number of Option Shares by a fraction the numerator of which is the maximum number of Option Shares which such Underwriter is entitled to purchase price therefor by as set forth opposite the several Underwriters by certified or official bank check or checks drawn name of such Underwriter in next-day funds, payable to Schedule A hereto and the order denominator of which is the maximum number of Option Shares which all of the Company with regard Underwriters are entitled to the Shares being purchased from the Company, and to the order of the Custodian for the respective accounts of the Selling Stockholders with regard to the Shares being purchased from such Selling Stockholders (and the Company and such Selling Stockholders agree not to deposit and to cause the Custodian not to deposit any such check in the bank on which it is drawn, and not to take any other action with the purpose or effect of receiving immediately available funds, until the business day following the date of its delivery to the Company or the Custodian, as the case may be, and, in the event of any breach of the foregoing, the Company or the Selling Stockholders, as the case may be, shall reimburse the Underwriters for the interest lost and any other expenses borne by them by reason of such breach), at the offices of Xxxxxxx & XxXxxxxx, Los Angeles, California (or at such other place as may be agreed upon among the Representatives and the Company), at 7:00 A.M., San Francisco time (a) on the third (3rd) full business day following the first day that Shares are traded, (b) if this Agreement is executed and delivered after 1:30 P.M., San Francisco time, the fourth (4th) full business day following the day that this Agreement is executed and delivered or (c) at such other purchase hereunder. The time and date at which certificates for Option Shares are to be delivered shall be determined by the Representatives but shall not be earlier than two or later than seven (7) ten full business days following after the first day that Shares are traded as the Representatives exercise of such option, and the Company and the Attorneys may determine (or at such time and date to which payment and delivery shall have been postponed pursuant to Section 10 hereof), such time and date of payment and delivery being herein called the "Closing Date;" PROVIDED, HOWEVER, that if the Company has not made available to the Representatives copies of the Prospectus within the time provided in Section 4(d) hereof, the Representatives may, in their sole discretion, postpone the Closing Date until no later than two (2) full business days following delivery of copies of the Prospectus to the Representatives. The certificates for the Firm Shares to any event be so delivered will be made available to you at such office or such other location including, without limitation, in New York City, as you may reasonably request for checking at least one (1) full business day prior to the Closing Date and will be in such names and denominations as you may request, such request to be made at least two (2) full business days prior to the Closing Date. If the Representatives so elect, delivery date of exercise of the Firm Shares may be made by credit through option is three or more full fast transfer to days before the accounts at The Depository Trust Company designated by Closing Date, the Representatives. It is understood that you, individually, and not as the Representatives notice of the several Underwriters, may (but exercise shall not be obligated to) make payment of the purchase price on behalf of any Underwriter or Underwriters whose check or checks shall not have been received by you prior to set the Closing Date as the Option Closing Date. Certificates in definitive form for the Firm Shares to be purchased by such each Underwriter or Underwriters. Any such payment by you shall not relieve any such Underwriter or Underwriters of any of its or their obligations hereunder. After the Registration Statement becomes effective, the several Underwriters intend to make a public offering (as such term is described in Section 11 hereof) of the Firm Shares at a public offering price of $_____ per share. After the public offering, the several Underwriters may, in their discretion, vary the public offering price. The information set forth in the second and eighth paragraphs under the caption "Underwriting" in any Preliminary Prospectus and in the Prospectus constitutes the only information furnished by the Underwriters such denominations and registered in such names as Dain Xxxxxxxx Xxxorporated may request upon at least forty-eight hours' prior notice to the Company for inclusion in any Preliminary ProspectusCompany, the Prospectus shall be delivered by or the Registration Statement or any Incorporated Document, and you, on behalf of the respective Underwriters, represent and warrant to the Company and the Selling Stockholders that Shareholders to you for the statements made therein do not include any untrue statement account of a material fact or omit to state a material fact required to such Underwriter at such time and place as shall hereafter be stated therein or necessary to make designated by the statements thereinRepresentatives, in the light of the circumstances under which they were made, not misleading.against payment by
Appears in 1 contract
Samples: Transcrypt International Inc
Purchase, Sale and Delivery of Shares. On the basis of the ------------------------------------- representations, warranties and agreements herein contained, but subject to the terms and conditions herein set forth, the Company and the Selling Stockholders agree, severally and not jointly, to sell to the Underwriters, and each Underwriter agrees, severally and not jointly, to purchase from the Company and the Selling Stockholders, respectively, at a purchase price of $_____ per share, the respective number of Company Firm Shares as hereinafter set forth and Selling Stockholder Shares set forth opposite the names of the Company and the Selling Stockholders, respectively, Stockholders in Schedule B hereto. The obligation of each Underwriter to the Company and to each Selling Stockholder shall be to purchase from the Company or such Selling Stockholder that number of Company Shares or Selling Stockholder Shares, as the case may be, which (as nearly as practicable, as determined by you) is in the same proportion to the number of Company Shares or Selling Stockholder Shares, as the case may be, set forth opposite the name of the Company or such Selling Stockholder in Schedule B hereto as the number of Firm Shares which is set forth opposite the name of such Underwriter in Schedule A hereto (subject to adjustment as provided in Section 10) is to the total number of Firm Shares to be purchased by all the Underwriters under this Agreement. The certificates in negotiable form or properly executed option exercise forms for the Selling Stockholder Shares have been placed in custody (for delivery under this Agreement) under the Custody Agreement. Each Selling Stockholder agrees that the certificates or executed option exercise forms for the Selling Stockholder Shares of such Selling Stockholder so held in custody are subject to the interests of the Underwriters hereunder, that the arrangements made by such Selling Stockholder for such custody, including the Power of Attorney is to that extent irrevocable and that the obligations of such Selling Stockholder hereunder shall not be terminated by the act of such Selling Stockholder or by operation of law, whether by the death or incapacity of such Selling Stockholder or the occurrence of any other event, except as specifically provided herein or in the Custody Agreement. If any Selling Stockholder should die or be incapacitated, or if any other such event should occur, before the delivery of the certificates for the Selling Stockholder Shares hereunder, the Selling Stockholder Shares to be sold by such Selling Stockholder shall, except as specifically provided herein or in the Custody Agreement, be delivered by the Custodian in accordance with the terms and conditions of this Agreement as if such death, incapacity or other event had not occurred, regardless of whether the Custodian shall have received notice of such death or other event. Delivery of definitive certificates for the Firm Shares to be purchased by the Underwriters pursuant to this Section 3 shall be made against payment of the purchase price therefor by the several Underwriters by certified or official bank check or checks drawn in next-day funds, payable to the order of the Company with regard to the Shares being purchased from the Company, and to the order of the Custodian for the respective accounts of the Selling Stockholders with regard to the Shares being purchased from such Selling Stockholders (and the Company and such Selling Stockholders agree not to deposit and to cause the Custodian not to deposit any such check in the bank on which it is drawn, and not to take any other action with the purpose or effect of receiving immediately available funds, until the business day following the date of its delivery to the Company or the Custodian, as the case may be, and, in the event of any breach of the foregoing, the Company or the Selling Stockholders, as the case may be, shall reimburse the Underwriters for the interest lost and any other expenses borne by them by reason of such breach), at the offices of Xxxxxxx & XxXxxxxx, Los Angeles, California (or at such other place as may be agreed upon among the Representatives and the Company), at 7:00 A.M., San Francisco time (a) on the third (3rd) full business day following the first day that Shares are traded, (b) if this Agreement is executed and delivered after 1:30 P.M., San Francisco time, the fourth (4th) full business day following the day that this Agreement is executed and delivered or (c) at such other time and date not later than seven (7) full business days following the first day that Shares are traded as the Representatives and the Company and the Attorneys may determine (or at such time and date to which payment and delivery shall have been postponed pursuant to Section 10 hereof), such time and date of payment and delivery being herein called the "Closing Date;" PROVIDED, HOWEVER, that if the Company has not made available to the Representatives copies of the Prospectus within the time provided in Section 4(d) hereof, the Representatives may, in their sole discretion, postpone the Closing Date until no later than two (2) full business days following delivery of copies of the Prospectus to the Representatives. The certificates for the Firm Shares to be so delivered will be made available to you at such office or such other location including, without limitation, in New York City, as you may reasonably request for checking at least one (1) full business day prior to the Closing Date and will be in such names and denominations as you may request, such request to be made at least two (2) full business days prior to the Closing Date. If the Representatives so elect, delivery of the Firm Shares may be made by credit through full fast transfer to the accounts at The Depository Trust Company designated by the Representatives. It is understood that you, individually, and not as the Representatives of the several Underwriters, may (but shall not be obligated to) make payment of the purchase price on behalf of any Underwriter or Underwriters whose check or checks shall not have been received by you prior to the Closing Date for the Firm Shares to be purchased by such Underwriter or Underwriters. Any such payment by you shall not relieve any such Underwriter or Underwriters of any of its or their obligations hereunder. After the Registration Statement becomes effective, the several Underwriters intend to make a public offering (as such term is described in Section 11 hereof) of the Firm Shares at a public offering price of $_____ per share. After the public offering, the several Underwriters may, in their discretion, vary the public offering price. The information set forth in the second and eighth paragraphs under the caption "Underwriting" in any Preliminary Prospectus and in the Prospectus constitutes the only information furnished by the Underwriters to the Company for inclusion in any Preliminary Prospectus, the Prospectus or the Registration Statement or any Incorporated Document, and you, on behalf of the respective Underwriters, represent and warrant to the Company and the Selling Stockholders that the statements made therein do not include any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading.
Appears in 1 contract
Samples: Underwriting Agreement (Applied Micro Circuits Corp)
Purchase, Sale and Delivery of Shares. On the basis of the -------------------------------------- representations, warranties and agreements herein containedcovenants contained herein, but and subject to the terms and conditions herein set forth, the Company and the Selling Stockholders agree, severally and not jointly, agrees to sell to the Underwriters, each Underwriter and each Underwriter agrees, severally and not jointly, to purchase from the Company and the Selling Stockholders, respectivelyCompany, at a purchase price of $ per share ($___ per share for Firm Shares sold to "Selected Purchasers" as provided in Section 3), the number of Firm Shares set forth opposite the name of each Underwriter in Schedule A hereto, subject to adjustments in accordance with Section 8 hereof. In addition, on the basis of the representations, warranties and covenants herein contained and subject to the terms and conditions herein set forth, the Company hereby grants to the several Underwriters an option to purchase, at their election, up to 210,000 Option Shares at a price of $_____ per share, for the respective number sole purpose of Company Shares and Selling Stockholder Shares set forth opposite covering overallotments in the names sale of the Company and the Selling Stockholders, respectively, in Schedule B heretoFirm Shares. The obligation option granted hereby may be exercised in whole or in part, but only once, and at any time upon written notice given within 30 days after the date of each Underwriter this Agreement, by you, as Representative of the several Underwriters, to the Company and to each Selling Stockholder shall be to purchase from the Company or such Selling Stockholder that number of Company Shares or Selling Stockholder Shares, as the case may be, which (as nearly as practicable, as determined by you) is in the same proportion to setting forth the number of Company Option Shares or Selling Stockholder Sharesas to which the several Underwriters are exercising the option and the time and date at which certificates are to be delivered. If any Option Shares are purchased, as the case may beeach Underwriter agrees, set forth opposite the name severally and not jointly, to purchase that portion of the Company or such Selling Stockholder in Schedule B hereto as the number of Firm Option Shares as to which such election shall have been exercised (subject to adjustment to eliminate fractional shares) determined by multiplying such number of Option Shares by a fraction the numerator of which is the maximum number of Option Shares which such Underwriter is entitled to purchase as set forth opposite the name of such Underwriter in Schedule A hereto (subject and the denominator of which is the maximum number of Option Shares which all of the Underwriters are entitled to adjustment as provided purchase hereunder. The time and date at which certificates for Option Shares are to be delivered shall be determined by the Representative but shall not be earlier than two or later than ten full business days after the exercise of such option, and shall not in Section 10) is any event be prior to the total number Closing Date. If the date of Firm exercise of the option is three or more full days before the Closing Date, the notice of exercise shall set the Closing Date as the Option Closing Date. On the Closing Date, the Company will issue and sell for nominal consideration to the Representative or its designee, consistent with all applicable state and federal securities laws and regulations and all applicable regulations of the NASD, Warrants to purchase 100,000 shares of the Common Stock. Such Warrants shall have a per share exercise price equal to 120% of the initial public offering price per share, shall be exercisable over a four-year period commencing one year from the Closing Date and shall be in substantially the form attached hereto as Exhibit A. Such Warrants shall be dated, executed and delivered as of the Closing Date. Certificates in definitive form for the Shares to be purchased by all the Underwriters under this Agreement. The certificates each Underwriter hereunder, and in negotiable form or properly executed option exercise forms for the Selling Stockholder Shares have been placed such denominations and registered in custody (for delivery under this Agreement) under the Custody Agreement. Each Selling Stockholder agrees that the certificates or executed option exercise forms for the Selling Stockholder Shares of such Selling Stockholder so held in custody are subject names as Xxxx Xxxxxxxx Xxxxxxx may request upon at least 48 hours' prior notice to the interests of the Underwriters hereunderCompany, that the arrangements made by such Selling Stockholder for such custody, including the Power of Attorney is to that extent irrevocable and that the obligations of such Selling Stockholder hereunder shall not be terminated by the act of such Selling Stockholder or by operation of law, whether by the death or incapacity of such Selling Stockholder or the occurrence of any other event, except as specifically provided herein or in the Custody Agreement. If any Selling Stockholder should die or be incapacitated, or if any other such event should occur, before the delivery of the certificates for the Selling Stockholder Shares hereunder, the Selling Stockholder Shares to be sold by such Selling Stockholder shall, except as specifically provided herein or in the Custody Agreement, be delivered by or on behalf of the Custodian in accordance with Company to you for the terms and conditions of this Agreement as if such death, incapacity or other event had not occurred, regardless of whether the Custodian shall have received notice account of such death or other event. Delivery of definitive certificates for the Firm Shares to Underwriter at such time and place as shall hereafter be purchased designated by the Underwriters pursuant to this Section 3 shall be made Representative, against payment by such Underwriter or on its behalf of the purchase price therefor by the several Underwriters by certified or official bank check or checks drawn in next-day fundschecks, payable to the order of the Company in next day funds. The time and date of such delivery and payment shall be, with regard respect to the Shares being purchased from Firm Shares, 8:30 a.m. Denver time, at the Companyoffices of Xxxxxxx & Xxxxxx L.L.C., 000 00xx Xxxxxx, Xxxxx 0000, Xxxxxx, Xxxxxxxx 00000, on , 1998, or such other time and to the order of the Custodian for the respective accounts of the Selling Stockholders with regard to the Shares being purchased from such Selling Stockholders (date as you and the Company may agree upon in writing, such time and such Selling Stockholders agree not date being herein referred to deposit as the "Closing Date," and, with respect to the Option Shares, at the time and to cause on the Custodian not to deposit any such check date specified by you in the bank on which it is drawnwritten notice given by you of the Underwriters' election to purchase the Option Shares, or such other time and not date as you and the Company may agree upon in writing, such time and date being referred to take any other action with herein as the purpose or effect of receiving immediately "Option Closing Date." Such certificates will be made available funds, until the business day following the date of its delivery for checking and packaging at least twenty- four hours prior to the Company Closing Date or the CustodianOption Closing Date, as the case may be, and, in the event of any breach of the foregoing, the Company or the Selling Stockholders, as the case may be, shall reimburse the Underwriters for the interest lost and any other expenses borne by them by reason of such breach), at the offices of Xxxxxxx & XxXxxxxx, Los Angeles, California (or at such other place a location as may be agreed upon among the Representatives and the Company), at 7:00 A.M., San Francisco time (a) on the third (3rd) full business day following the first day that Shares are traded, (b) if this Agreement is executed and delivered after 1:30 P.M., San Francisco time, the fourth (4th) full business day following the day that this Agreement is executed and delivered or (c) at such other time and date not later than seven (7) full business days following the first day that Shares are traded as the Representatives and the Company and the Attorneys may determine (or at such time and date to which payment and delivery shall have been postponed pursuant to Section 10 hereof), such time and date of payment and delivery being herein called the "Closing Date;" PROVIDED, HOWEVER, that if the Company has not made available to the Representatives copies of the Prospectus within the time provided in Section 4(d) hereof, the Representatives may, in their sole discretion, postpone the Closing Date until no later than two (2) full business days following delivery of copies of the Prospectus to the Representatives. The certificates for the Firm Shares to be so delivered will be made available to you at such office or such other location including, without limitation, in New York City, as you may reasonably request for checking at least one (1) full business day prior to the Closing Date and will be in such names and denominations as you may request, such request to be made at least two (2) full business days prior to the Closing Date. If the Representatives so elect, delivery of the Firm Shares may be made by credit through full fast transfer to the accounts at The Depository Trust Company designated by the Representatives. It is understood that you, individually, and not as the Representatives of the several Underwriters, may (but shall not be obligated to) make payment of the purchase price on behalf of any Underwriter or Underwriters whose check or checks shall not have been received by you prior to the Closing Date for the Firm Shares to be purchased by such Underwriter or Underwriters. Any such payment by you shall not relieve any such Underwriter or Underwriters of any of its or their obligations hereunder. After the Registration Statement becomes effective, the several Underwriters intend to make a public offering (as such term is described in Section 11 hereof) of the Firm Shares at a public offering price of $_____ per share. After the public offering, the several Underwriters may, in their discretion, vary the public offering price. The information set forth in the second and eighth paragraphs under the caption "Underwriting" in any Preliminary Prospectus and in the Prospectus constitutes the only information furnished by the Underwriters to the Company for inclusion in any Preliminary Prospectus, the Prospectus or the Registration Statement or any Incorporated Document, and you, on behalf of the respective Underwriters, represent and warrant to the Company and the Selling Stockholders that the statements made therein do not include any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading.
Appears in 1 contract
Samples: Underwriting Agreement (Colorado Business Bankshares Inc)
Purchase, Sale and Delivery of Shares. On the basis of the ------------------------------------- representations, warranties and agreements herein contained, but subject to the terms and conditions herein set forth, the Company and the Selling Stockholders agree, severally and not jointly, to sell to the Underwriters, and each Underwriter agrees, severally and not jointly, to purchase from the Company and the Selling Stockholders, respectively, at a purchase price of $_____ per share, the respective number of Company Shares as hereinafter set forth and Selling Stockholder Shares set forth opposite the names of the Company and the Selling Stockholders, respectively, Stockholders in Schedule B hereto. The obligation of each Underwriter to the Company and to each Selling Stockholder shall be to purchase from the Company or such Selling Stockholder that number of Company Shares or Selling Stockholder Shares, as the case may be, which (as nearly as practicable, as determined by you) is in the same proportion to the number of Company Shares or Selling Stockholder Shares, as the case may be, set forth opposite the name of the Company or such Selling Stockholder in Schedule B hereto as the number of Firm Shares which is set forth opposite the name of such Underwriter in Schedule A hereto (subject to adjustment as provided in Section 10) is to the total number of Firm Shares to be purchased by all the Underwriters under this Agreement. The certificates in negotiable form or properly executed option exercise forms for the Selling Stockholder Shares have been placed in custody (for delivery under this Agreement) under the Custody Agreement. Each Selling Stockholder agrees that the certificates or executed option exercise forms for the Selling Stockholder Shares of such Selling Stockholder so held in custody are subject to the interests of the Underwriters hereunder, that the arrangements made by such Selling Stockholder for such custody, including the Power of Attorney Attorney, is to that extent irrevocable and that the obligations of such Selling Stockholder hereunder shall not be terminated by the act of such Selling Stockholder or by operation of law, whether by the death or incapacity of such Selling Stockholder or the occurrence of any other event, except as specifically provided herein or in the Custody Agreement. If any Selling Stockholder should die or be incapacitated, or if any other such event should occur, before the delivery of the certificates for the Selling Stockholder Shares hereunder, the Selling Stockholder Shares to be sold by such Selling Stockholder shall, except as specifically provided herein or in the Custody Agreement, be delivered by the Custodian in accordance with the terms and conditions of this Agreement as if such death, incapacity or other event had not occurred, regardless of whether the Custodian shall have received notice of such death or other event. Delivery of definitive certificates for the Firm Shares to be purchased by the Underwriters pursuant to this Section 3 shall be made against payment of the purchase price therefor by the several Underwriters by certified or official bank check or checks drawn in next-day funds, payable to the order of the Company with regard to the Shares being purchased from the Company, and to the order of the Custodian for the respective accounts of the Selling Stockholders with regard to the Shares being purchased from such Selling Stockholders (and the Company and such Selling Stockholders agree not to deposit and to cause the Custodian not to deposit any such check in the bank on which it is drawn, and not to take any other action with the purpose or effect of receiving immediately available funds, until the business day following the date of its delivery to the Company or the Custodian, as the case may be, and, in the event of any breach of the foregoing, the Company or the Selling Stockholders, as the case may be, shall reimburse the Underwriters for the interest lost and any other expenses borne by them by reason of such breach), at the offices of Xxxxxxxxx Xxxxxxx Xxxxxx Xxxxxxxxxx Xxxxxxxx & XxXxxxxxXxxxxxxxx, Los AngelesLLP, California 0000 Xxxxxxx xx Xxxxx Xxxxxxx, Xxxxx 0000, Xxxxxx, Xxxxx (or at such other place as may be agreed upon among the Representatives and the Company), at 7:00 A.M., San Francisco time (a) on the third (3rd) full business day following the first day that Shares are traded, (b) if this Agreement is executed and delivered after 1:30 P.M., San Francisco time, the fourth (4th) full business day following the day that this Agreement is executed and delivered or (c) at such other time and date not later than seven (7) full business days following the first day that Shares are traded as the Representatives and the Company and the Attorneys may determine (or at such time and date to which payment and delivery shall have been postponed pursuant to Section 10 hereof), such time and date of payment and delivery being herein called the "Closing Date;" PROVIDED"; provided, HOWEVERhowever, that if the Company has not -------- ------- made available to the Representatives copies of the Prospectus within the time provided in Section 4(d) hereof, the Representatives may, in their sole discretion, postpone the Closing Date until no later than two (2) full business days following delivery of copies of the Prospectus to the Representatives. The certificates for the Firm Shares to be so delivered will be made available to you at such office or such other location including, without limitation, in New York City, as you may reasonably request for checking at least one (1) full business day prior to the Closing Date and will be in such names and denominations as you may request, such request to be made at least two (2) full business days prior to the Closing Date. If the Representatives so elect, delivery of the Firm Shares may be made by credit through full fast transfer to the accounts at The Depository Trust Company designated by the Representatives. It is understood that you, individually, and not as the Representatives of the several Underwriters, may (but shall not be obligated to) make payment of the purchase price on behalf of any Underwriter or Underwriters whose check or checks shall not have been received by you prior to the Closing Date for the Firm Shares to be purchased by such Underwriter or Underwriters. Any such payment by you shall not relieve any such Underwriter or Underwriters of any of its or their obligations hereunder. After the Registration Statement becomes effective, the several Underwriters intend to make a an initial public offering (as such term is described in Section 11 hereof) of the Firm Shares at a an initial public offering price of $_____ per share. After the initial public offering, the several Underwriters may, in their discretion, vary the public offering price. The information set forth in the second last paragraph on the front cover page (insofar as such information relates to the Underwriters), on the inside front cover concerning stabilization and eighth over-allotment by the Underwriters, and under the _____ and _____ paragraphs under the caption "Underwriting" in any Preliminary Prospectus and in the Prospectus constitutes the only information furnished by the Underwriters to the Company for inclusion in any Preliminary Prospectus, the Prospectus or the Registration Statement or any Incorporated DocumentStatement, and you, on behalf of the respective Underwriters, represent and warrant to the Company and the Selling Stockholders that the statements made therein do not include any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading.
Appears in 1 contract
Purchase, Sale and Delivery of Shares. (a) On the basis of the representations, warranties and agreements herein contained, but subject to the terms and conditions herein set forth, the Company agrees to issue and the sell [___] Firm Shares and each Selling Stockholders agreeStockholder agrees, severally and not jointly, to sell the number of Firm Shares set forth opposite the name of such Selling Stockholder in Schedule I hereto, to the several Underwriters, and each Underwriter agrees, severally and not jointly, to purchase from the Company and the Selling Stockholders, respectively, at a purchase price of $_____ per share, Stockholders the respective number of Company Shares and Selling Stockholder Firm Shares set forth opposite the names name of the Company and the Selling Stockholders, respectively, such Underwriter in Schedule B II hereto. The purchase price for each Firm Shares shall be $[___] per Share. The obligation of each Underwriter to the Company and to each the Selling Stockholder Stockholders shall be to purchase from the Company or such and the Selling Stockholder Stockholders that number of Company Firm Shares or Selling Stockholder Shares, as (to be adjusted by the case may be, Representative to avoid fractional shares) which (as nearly as practicable, as determined by you) is in represents the same proportion to of the number of Company Firm Shares or Selling Stockholder Shares, as the case may be, set forth opposite the name to be sold by each of the Company or such and the Selling Stockholder in Schedule B hereto Stockholders pursuant to this Agreement as the number of Firm Shares which is set forth opposite the name of such Underwriter in Schedule A II hereto (subject to adjustment as provided in Section 10) is represents to the total number of Firm Shares to be purchased by all the Underwriters under this Agreement. The certificates in negotiable form or properly executed option exercise forms for the Selling Stockholder Shares have been placed in custody (for delivery under this Agreement) under the Custody Agreement. Each Selling Stockholder agrees that the certificates or executed option exercise forms for the Selling Stockholder Shares of such Selling Stockholder so held in custody are subject to the interests of the Underwriters hereunder, that the arrangements made by such Selling Stockholder for such custody, including the Power of Attorney is to that extent irrevocable and that the obligations of such Selling Stockholder hereunder shall not be terminated by the act of such Selling Stockholder or by operation of law, whether by the death or incapacity of such Selling Stockholder or the occurrence of any other event, except as specifically provided herein or in the Custody Agreement. If any Selling Stockholder should die or be incapacitated, or if any other such event should occur, before the delivery of the certificates for the Selling Stockholder Shares hereunder, the Selling Stockholder Shares to be sold by such Selling Stockholder shall, except as specifically provided herein or in the Custody Agreement, be delivered by the Custodian in accordance with the terms and conditions of this Agreement as if such death, incapacity or other event had not occurred, regardless of whether the Custodian shall have received notice of such death or other event. Delivery of definitive certificates for the Firm Shares to be purchased by the Underwriters pursuant to this Agreement. In making this Agreement, each Underwriter is contracting severally and not jointly; except as provided in Section 3 shall 3(c) and in Section 8 hereof, the agreement of each Underwriter is to purchase only the respective number of Firm Shares specified in Schedule II. The Firm Shares will be made delivered by or on behalf of the Company to you for the accounts of the several Underwriters against payment of the purchase price therefor by the several Underwriters by certified or official bank check or checks drawn in next-wire transfer of same day funds, funds payable to the order of the Company with regard to the Shares being purchased from the Company, and to the order of the Custodian for the respective accounts of the Selling Stockholders with regard to the Shares being purchased from such Selling Stockholders (and the Company and such Selling Stockholders agree not to deposit and to cause the Custodian not to deposit any such check in the bank on which it is drawn, and not to take any other action with the purpose or effect of receiving immediately available funds, until the business day following the date of its delivery to the Company or the Custodian, as the case may be, and, in the event of any breach of the foregoing, the Company or the Selling Stockholders, as the case may be, shall reimburse the Underwriters for the interest lost and any other expenses borne by them by reason of such breach), at the offices of Xxxxx Xxxxxxx & XxXxxxxxCo., Los Angeles000 Xxxxxxxx Xxxx, California (Xxxxxxxxxxx, Xxxxxxxxx, or at such other place location as may be agreed upon among the Representatives and the Company)mutually acceptable, at 7:00 A.M., San Francisco 9:00 a.m. Central time (a) on the third (3rdor if the Shares are priced, as contemplated by Rule 15c6-1(c) under the Exchange Act, after 4:30 p.m. Eastern time, the fourth) full business day following the first day that Shares are tradeddate hereof, (b) if this Agreement is executed and delivered after 1:30 P.M., San Francisco time, the fourth (4th) full business day following the day that this Agreement is executed and delivered or (c) at such other time and date not later than seven (7) full business days following the first day that Shares are traded as the Representatives you and the Company and the Attorneys may determine (or at such time and date to which payment and delivery shall have been postponed pursuant to Section 10 hereof)Rule 15c6-1(a) under the Exchange Act, such time and date of payment and delivery being herein called referred to as the "“First Closing Date;" PROVIDED, HOWEVER, that if the Company has not made available to the Representatives copies of the Prospectus within the time provided in Section 4(d) hereof, the Representatives may, in their sole discretion, postpone the Closing Date until no later than two (2) full business days following delivery of copies of the Prospectus to the Representatives. The certificates for the Firm Shares to be so delivered will be made available to you at such office or such other location including, without limitation, in New York City, as you may reasonably request for checking at least one (1) full business day prior to the Closing Date and will be in such names and denominations as you may request, such request to be made at least two (2) full business days prior to the Closing Date. .” If the Representatives Representative so electelects, delivery of the Firm Shares may be made by credit through full fast transfer to the accounts at The Depository Trust Company designated by the RepresentativesRepresentative. It is understood that youCertificates representing the Firm Shares, individually, in definitive form and not in such denominations and registered in such names as the Representatives of the several Underwriters, you may (but shall not be obligated to) make payment of the purchase price on behalf of any Underwriter or Underwriters whose check or checks shall not have been received by you request upon at least two business days’ prior notice to the Company, will be made available for checking and packaging not later than 10:30 a.m., Central time, on the business day next preceding the First Closing Date for at the Firm Shares to offices of Xxxxx Xxxxxxx & Co., Minneapolis, Minnesota, or such other location as may be purchased by such Underwriter or Underwriters. Any such payment by you shall not relieve any such Underwriter or Underwriters of any of its or their obligations hereunder. After the Registration Statement becomes effective, the several Underwriters intend to make a public offering (as such term is described in Section 11 hereof) of the Firm Shares at a public offering price of $_____ per share. After the public offering, the several Underwriters may, in their discretion, vary the public offering price. The information set forth in the second and eighth paragraphs under the caption "Underwriting" in any Preliminary Prospectus and in the Prospectus constitutes the only information furnished by the Underwriters to the Company for inclusion in any Preliminary Prospectus, the Prospectus or the Registration Statement or any Incorporated Document, and you, on behalf of the respective Underwriters, represent and warrant to the Company and the Selling Stockholders that the statements made therein do not include any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleadingmutually acceptable.
Appears in 1 contract
Purchase, Sale and Delivery of Shares. On the basis of the representations, warranties and agreements herein contained, but subject to the terms and conditions herein set forth, the Company and the Selling Stockholders agree, severally and not jointly, Stockholder hereby agrees to sell to the Underwriters, and the Underwriters agree to purchase from the Selling Stockholder, at a purchase price of $______ per Share (the "purchase price per Share"), the Firm Shares. The Selling Stockholder will deliver the Firm Shares to you for your account, against payment of the purchase price therefor by wire transfer of same day funds (subject to payment to Lazard Freres & Co. LLC by the Selling Stockholder of one day's interest on the amount of such purchase price at a rate determined by Lazard Freres & Co. LLC to reflect its cost of funds) to an account specified in writing by the Selling Stockholder. Payment for the Firm Shares shall be made at the office of Cravath, Swaine & Moorx xx 10:00 A.M., New York Time, on March __, 1996 or at such other place or time not later than three full business days thereafter as you and the Company determine (the "Initial Closing Date"). The Selling Stockholder hereby agrees to sell to the Underwriters and, on the basis of the representations, warranties and agreements herein contained, but subject to the terms and conditions herein set forth, the Underwriters shall have the right to purchase, severally and not jointly, from the Selling Stockholder, pursuant to an option to be exercised in the 30-day period commencing on the date of this Agreement, all or less than all of the Additional Shares at the purchase price per Share. Additional Shares may be purchased solely for the purpose of covering over-allotments made in connection with the offering of the Firm Shares. If any Additional Shares are to be purchased, each Underwriter agrees, severally and not jointly, to purchase from the Company and the Selling Stockholders, respectively, at a purchase price of $_____ per share, the respective number of Company Shares and Selling Stockholder Shares set forth opposite the names of the Company and the Selling Stockholders, respectively, in Schedule B hereto. The obligation of each Underwriter to the Company and to each Selling Stockholder shall be to purchase from the Company or such Selling Stockholder that proportion of the total number of Company Additional Shares or Selling Stockholder Shares, as the case may be, which (as nearly as practicable, as determined subject to adjustment by youyou to eliminate fractions) is in the same proportion to the number of Company Shares or Selling Stockholder Shares, as the case may be, set forth opposite the name of the Company or such Selling Stockholder in Schedule B hereto be purchased as the number of Firm Shares which is set forth opposite the name of such Underwriter in Schedule A I hereto (subject to adjustment as provided in Section 10) is bears to the total number of Firm Shares. The Selling Stockholders will deliver the Additional Shares to be purchased by all the Underwriters under this Agreement. The certificates in negotiable form or properly executed option exercise forms you for the Selling Stockholder Shares have been placed in custody (for delivery under this Agreement) under the Custody Agreement. Each Selling Stockholder agrees that the certificates or executed option exercise forms for the Selling Stockholder Shares of such Selling Stockholder so held in custody are subject to the interests accounts of the Underwriters hereunderUnderwriters, that the arrangements made by such Selling Stockholder for such custody, including the Power of Attorney is to that extent irrevocable and that the obligations of such Selling Stockholder hereunder shall not be terminated by the act of such Selling Stockholder or by operation of law, whether by the death or incapacity of such Selling Stockholder or the occurrence of any other event, except as specifically provided herein or in the Custody Agreement. If any Selling Stockholder should die or be incapacitated, or if any other such event should occur, before the delivery of the certificates for the Selling Stockholder Shares hereunder, the Selling Stockholder Shares to be sold by such Selling Stockholder shall, except as specifically provided herein or in the Custody Agreement, be delivered by the Custodian in accordance with the terms and conditions of this Agreement as if such death, incapacity or other event had not occurred, regardless of whether the Custodian shall have received notice of such death or other event. Delivery of definitive certificates for the Firm Shares to be purchased by the Underwriters pursuant to this Section 3 shall be made against payment of the purchase price therefor by wire transfer of same day funds (subject to payment to Lazard Freres & Co. LLC by the several Underwriters Selling Stockholder of one day's interest on the amount of such purchase price at a rate determined by certified or official bank check or checks drawn Lazard Freres & Co. LLC to reflect its cost of funds) to an account specified in next-day fundswriting by the Selling Stockholder, payable at the office of Cravath, Swaine & Moorx xx such date and at such time (the "Option Closing Date") as shall be specified in the notice from Lazard Freres & Co. LLC to the order Selling Stockholder exercising the option to purchase Additional Shares. The Option Closing Date may be the same as the Initial Closing Date but shall in no event be earlier than the Initial Closing Date nor earlier than two nor later than ten business days after the giving of the Company with regard notice hereinafter referred to. Such notice may be given, by letter or by telecopy or other facsimile transmission or by telephone (if subsequently confirmed in writing), to the Shares being purchased from the Company, and to the order of the Custodian for the respective accounts of the Selling Stockholders with regard to the Shares being purchased from such Selling Stockholders (and the Company and such Selling Stockholders agree not to deposit and to cause the Custodian not to deposit Stockholder at any such check in the bank on which it is drawn, and not to take any other action with the purpose or effect of receiving immediately available funds, until the business day following time within 30 days after the date of its delivery this Agreement. The Option Closing Date may be varied by agreement between the Underwriters and the Selling Stockholder. The Initial Closing Date and the Option Closing Date are herein collectively referred to as the "Closing Date". The certificates for all the Shares so to be delivered will be made available at the office of Lazard Freres & Co., New York, New York for checking and packaging at least one full business day prior to the Company Initial Closing Date or the CustodianOption Closing Date, as the case may be, and, in the event of any breach of the foregoing, the Company or the Selling Stockholders, as the case may be, shall reimburse the Underwriters for the interest lost and any other expenses borne by them by reason of such breach), at the offices of Xxxxxxx & XxXxxxxx, Los Angeles, California (or at such other place as may be agreed upon among the Representatives and the Company), at 7:00 A.M., San Francisco time (a) on the third (3rd) full business day following the first day that Shares are traded, (b) if this Agreement is executed and delivered after 1:30 P.M., San Francisco time, the fourth (4th) full business day following the day that this Agreement is executed and delivered or (c) at such other time and date not later than seven (7) full business days following the first day that Shares are traded as the Representatives and the Company and the Attorneys may determine (or at such time and date to which payment and delivery shall have been postponed pursuant to Section 10 hereof), such time and date of payment and delivery being herein called the "Closing Date;" PROVIDED, HOWEVER, that if the Company has not made available to the Representatives copies of the Prospectus within the time provided in Section 4(d) hereof, the Representatives may, in their sole discretion, postpone the Closing Date until no later than two (2) full business days following delivery of copies of the Prospectus to the Representatives. The certificates for the Firm Shares to be so delivered will be made available to you at such office or such other location including, without limitation, in New York City, as you may reasonably request for checking at least one (1) full business day prior to the Closing Date and will be in such names and denominations as you may request, such request to be made at least two (2) full business days prior to the Closing Date. If the Representatives so elect, delivery of the Firm Shares may be made by credit through full fast transfer to the accounts at The Depository Trust Company designated by the Representatives. It is understood that you, individually, and not as the Representatives of the several Underwriters, may (but shall not be obligated to) make payment of the purchase price on behalf of any Underwriter or Underwriters whose check or checks shall not have been received by you prior to the Closing Date for the Firm Shares to be purchased by such Underwriter or Underwriters. Any such payment by you shall not relieve any such Underwriter or Underwriters of any of its or their obligations hereunder. After the Registration Statement becomes effective, the several Underwriters intend to make a public offering (as such term is described in Section 11 hereof) of the Firm Shares at a public offering price of $_____ per share. After the public offering, the several Underwriters may, in their discretion, vary the public offering price. The information set forth in the second and eighth paragraphs under the caption "Underwriting" in any Preliminary Prospectus and in the Prospectus constitutes the only information furnished by the Underwriters to the Company for inclusion in any Preliminary Prospectus, the Prospectus or the Registration Statement or any Incorporated Document, and you, on behalf of the respective Underwriters, represent and warrant to the Company and the Selling Stockholders that the statements made therein do not include any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading.
Appears in 1 contract
Samples: Underwriting Agreement (Santa Fe Energy Resources Inc)
Purchase, Sale and Delivery of Shares. On the basis of the representations, warranties and agreements herein contained, but subject to the terms and conditions herein set forth, the Company and the Selling Stockholders agree, acting severally and not jointly, to sell to the Underwriters, and each Underwriter of the Underwriters agrees, acting severally and not jointly, to purchase from the Company and the Selling Stockholders, respectively, at a purchase price of $______ per share, the respective number of Company Shares and Selling Stockholder Stockholders Firm Shares as set forth opposite the names of the Company and the Firm Selling Stockholders, respectively, Stockholders in Schedule B hereto. The obligation of each Underwriter of the Underwriters to the Company and to each Firm Selling Stockholder shall be to purchase from the Company or such Firm Selling Stockholder that number of Company Shares or Selling Stockholder Stockholders Firm Shares, as the case may be, which (as nearly as practicable, as determined by you) is in the same proportion to the number of Company Shares or Selling Stockholder Stockholders Firm Shares, as the case may be, set forth opposite the name of the Company or such Firm Selling Stockholder in Schedule B hereto as the number of Firm Shares which is set forth opposite the name of such Underwriter in Schedule A hereto (subject to adjustment as provided in Section 10) is to the total number of Firm Shares to be purchased by all the Underwriters under this Agreement. The certificates in negotiable form or properly executed option exercise forms for the Selling Stockholder Stockholders Firm Shares and the Selling Stockholders Option Shares to be sold hereunder have been placed in custody (for delivery under this Agreement) under the Custody AgreementAgreement and Power of Attorney. Each Selling Stockholder agrees that the certificates or executed option exercise forms for the Selling Stockholder Stockholders Firm Shares and the Selling Stockholders Option Shares of such Selling Stockholder so held in custody are subject to the interests of the Underwriters hereunder, that the arrangements made by such Selling Stockholder for such custody, including the power of attorney included in the Custody Agreement and Power of Attorney is Attorney, are to that extent irrevocable irrevocable, and that the obligations of such Selling Stockholder hereunder shall not be terminated by the act of such Selling Stockholder or by operation of law, whether by the death or incapacity of such Selling Stockholder or the occurrence of any other event, except as specifically provided herein or in the Custody AgreementAgreement and Power of Attorney. If any Selling Stockholder should die or be become incapacitated, or if any other such event should occur, before the delivery of the certificates for the Selling Stockholder Stockholders Shares hereunder, the Selling Stockholder Stockholders Shares to be sold by such Selling Stockholder shall, except as specifically provided herein or in the Custody AgreementAgreement and Power of Attorney, be delivered by the Custodian in accordance with the terms and conditions of this Agreement as if such death, incapacity or other event had not occurred, regardless of whether the Custodian shall have received notice of such death or other event. Delivery of definitive certificates for the Firm Shares to be purchased by the Underwriters pursuant to this Section 3 shall be made against payment of the purchase price therefor by the several Underwriters by certified or official bank check or checks drawn in next-day funds, payable wire transfer of immediately available funds to the order of the Company with regard to the Company Shares being purchased from the Company, and to the order of the Custodian for the respective accounts of the Firm Selling Stockholders with regard to the Shares being purchased from such Selling Stockholders (Firm Shares. Such delivery and the Company and such Selling Stockholders agree not to deposit and to cause the Custodian not to deposit any such check in the bank on which it is drawn, and not to payment shall take any other action with the purpose or effect of receiving immediately available funds, until the business day following the date of its delivery to the Company or the Custodian, as the case may be, and, in the event of any breach of the foregoing, the Company or the Selling Stockholders, as the case may be, shall reimburse the Underwriters for the interest lost and any other expenses borne by them by reason of such breach), place at the offices Chicago office of Xxxxxxx Winston & XxXxxxxx, Los Angeles, California Straxx (or xx at such other place as may be agreed upon among the Representatives Representatives, the Company and the CompanyAttorneys), at 7:00 A.M., San Francisco time 9:00 A.M. (aChicago time) on the third (3rd) full business day following the first day that Shares are traded, (b) if date of this Agreement is executed and delivered after 1:30 P.M., San Francisco time, the fourth (4th) full business day following the day that this Agreement is executed and delivered or (c) at such other time and date not later than seven (7) full business days following the first day that Shares are traded as the Representatives and Representatives, the Company and the Attorneys may determine (or at such time and date to which payment and delivery shall have been postponed pursuant to Section 10 hereof), such time and date of payment and delivery being herein called the "Closing Date;" PROVIDED"; provided, HOWEVERhowever, that if the Company has not made available to the Representatives copies of the Prospectus within the time provided in Section 4(d) hereof, the Representatives may, in their sole discretion, postpone the Closing Date until no later than two (2) full business days following delivery of copies of the Prospectus to the Representatives. The certificates for the Firm Shares to be so delivered will be made available to you at such office or such other location location, including, without limitation, in New York City, as you may reasonably request for checking at least one (1) full business day prior to the Closing Date and will be in such names and denominations as you may request, such request to be made at least two (2) full business days prior to the Closing Date. If the Representatives so elect, delivery of the Firm Shares may be made by credit through full fast transfer to the accounts at The Depository Trust Company designated by the Representatives. It is understood that you, individually, and not as the Representatives of the several Underwriters, may (but shall not be obligated to) make payment of the purchase price on behalf of any Underwriter or Underwriters whose check or checks shall not have been received by you prior to the Closing Date for the Firm Shares to be purchased by such Underwriter or Underwriters. Any such payment by you shall not relieve any such Underwriter or Underwriters of any of its or their obligations hereunder. After the Registration Statement becomes effective, the several Underwriters intend to make a an initial public offering (as such term is described in Section 11 hereof) of the Firm Shares at a an initial public offering price of $____________ per share. After the initial public offering, the several Underwriters may, in their discretion, vary the public offering price. The information set forth in the second last paragraph on the front cover page, the two legends on the bottom of page 3 and eighth paragraphs under the caption "Underwriting" (insofar as such information relates to the Underwriters) in any Preliminary Prospectus and in the Prospectus constitutes the only information furnished by the Underwriters to the Company for inclusion in any Preliminary Prospectus, the Prospectus or the Registration Statement or any Incorporated DocumentStatement, and you, on behalf of the respective Underwriters, represent and warrant to the Company and the Selling Stockholders that the statements made therein do not include any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading.
Appears in 1 contract
Samples: Underwriting Agreement (Lason Inc)
Purchase, Sale and Delivery of Shares. On the basis of the representations, warranties and agreements herein containedcovenants contained herein, but and subject to the terms and conditions herein set forth, the Company and the Selling Stockholders agree, severally and not jointly, agrees to sell to the Underwriters, each Underwriter and each Underwriter agrees, severally and not jointly, to purchase from the Company and the Selling Stockholders, respectivelyCompany, at a purchase price of $_____ [ ] per share, the respective number of Company Shares and Selling Stockholder Firm Shares set forth opposite their respective names in Schedule A hereto. In addition, on the names basis of the Company representations, warranties and covenants contained herein and subject to the terms and conditions herein set forth, each of the Selling Shareholders, as and to the extent indicated in Schedule B hereto, hereby grant, severally and not jointly, to the several Underwriters an option to purchase at the Underwriters' election up to [ ] Option Shares at the same price per share as set forth for the Firm Shares in the paragraph above, for the sole purpose of covering over allotments in the sale of the Firm Shares (the "Over-Allotment Option"). The Over-Allotment Option granted hereby may be exercised in whole or in part, but only once, and at any time upon written notice given within 30 days after the date of this Agreement, by you, as Representatives of the several Underwriters, to the Company, the Attorneys-in-Fact and the Custodian setting forth the number of Option Shares as to which the several Underwriters are exercising the Over-Allotment Option and the time and date at which certificates are to be delivered. Any such election to purchase Option Shares shall be made in proportion to the maximum number of Option Shares to be sold by each Selling Stockholders, respectively, Shareholder as set forth in Schedule B hereto. The obligation of If any Option Shares are purchased, each Underwriter to the Company agrees, severally and to each Selling Stockholder shall be not jointly, to purchase from the Company or such Selling Stockholder that number portion of Company Shares or Selling Stockholder Shares, as the case may be, which (as nearly as practicable, as determined by you) is in the same proportion to the number of Company Option Shares or Selling Stockholder Shares, as the case may be, set forth opposite the name of the Company or to which such Selling Stockholder in Schedule B hereto as the election shall have been exercised (subject to adjustment to eliminate fractional shares) determined by multiplying such number of Firm Option Shares by a fraction the numerator of which is the maximum number of Option Shares which such Underwriter is entitled to purchase as set forth opposite the name of such Underwriter in Schedule A hereto (subject to adjustment as provided in Section 10) and the denominator of which is to the total maximum number of Firm Option Shares to be purchased by which all the Underwriters under this Agreement. The certificates in negotiable form or properly executed option exercise forms for the Selling Stockholder Shares have been placed in custody (for delivery under this Agreement) under the Custody Agreement. Each Selling Stockholder agrees that the certificates or executed option exercise forms for the Selling Stockholder Shares of such Selling Stockholder so held in custody are subject to the interests of the Underwriters are entitled to purchase hereunder, that . The time and date at which certificates for Option Shares are to be delivered shall be determined by the arrangements made by such Selling Stockholder for such custody, including the Power of Attorney is to that extent irrevocable and that the obligations of such Selling Stockholder hereunder Representatives but shall not be terminated by the act of such Selling Stockholder earlier than two or by operation of law, whether by the death or incapacity of such Selling Stockholder or the occurrence of any other event, except as specifically provided herein or in the Custody Agreement. If any Selling Stockholder should die or be incapacitated, or if any other such event should occur, before the delivery of the certificates for the Selling Stockholder Shares hereunder, the Selling Stockholder Shares to be sold by such Selling Stockholder shall, except as specifically provided herein or in the Custody Agreement, be delivered by the Custodian in accordance with the terms and conditions of this Agreement as if such death, incapacity or other event had not occurred, regardless of whether the Custodian shall have received notice of such death or other event. Delivery of definitive certificates for the Firm Shares to be purchased by the Underwriters pursuant to this Section 3 shall be made against payment of the purchase price therefor by the several Underwriters by certified or official bank check or checks drawn in next-day funds, payable to the order of the Company with regard to the Shares being purchased from the Company, and to the order of the Custodian for the respective accounts of the Selling Stockholders with regard to the Shares being purchased from such Selling Stockholders (and the Company and such Selling Stockholders agree not to deposit and to cause the Custodian not to deposit any such check in the bank on which it is drawn, and not to take any other action with the purpose or effect of receiving immediately available funds, until the business day following the date of its delivery to the Company or the Custodian, as the case may be, and, in the event of any breach of the foregoing, the Company or the Selling Stockholders, as the case may be, shall reimburse the Underwriters for the interest lost and any other expenses borne by them by reason of such breach), at the offices of Xxxxxxx & XxXxxxxx, Los Angeles, California (or at such other place as may be agreed upon among the Representatives and the Company), at 7:00 A.M., San Francisco time (a) on the third (3rd) full business day following the first day that Shares are traded, (b) if this Agreement is executed and delivered after 1:30 P.M., San Francisco time, the fourth (4th) full business day following the day that this Agreement is executed and delivered or (c) at such other time and date not later than seven (7) ten full business days following after the first day that Shares are traded as the Representatives exercise of such option, and the Company and the Attorneys may determine (or at such time and date to which payment and delivery shall have been postponed pursuant to Section 10 hereof), such time and date of payment and delivery being herein called the "Closing Date;" PROVIDED, HOWEVER, that if the Company has not made available to the Representatives copies of the Prospectus within the time provided in Section 4(d) hereof, the Representatives may, in their sole discretion, postpone the Closing Date until no later than two (2) full business days following delivery of copies of the Prospectus to the Representatives. The certificates for the Firm Shares to any event be so delivered will be made available to you at such office or such other location including, without limitation, in New York City, as you may reasonably request for checking at least one (1) full business day prior to the Closing Date and will be in such names and denominations as you may request, such request to be made at least two (2) full business days prior to the Closing Date. If the Representatives so elect, delivery date of exercise of the Firm option is three or more full days before the Closing Date, the notice of exercise shall set the Closing Date as the Option Closing Date. Certificates in definitive form for the Shares to be purchased by each Underwriter hereunder, and in such denominations and registered in such names as Xxxx Xxxxxxxx Xxxxxxx may be made by credit through full fast transfer request upon at least forty-eight hours' prior notice to the accounts Company, shall be delivered by or on behalf of the Company to you for the account of such Underwriter at The Depository Trust Company such time and place as shall hereafter be designated by the Representatives. It is understood that you, individually, and not as the Representatives of the several Underwriters, may (but shall not be obligated to) make against payment by such Underwriter or on its behalf of the purchase price therefor by wire transfer of same day funds The time and date of such delivery and payment shall be, with respect to the Firm Shares, 6:30 a.m. Seattle, Washington time, at the offices of Xxxxxxx Coie, Washington Mutual Tower, 0000 Xxxxx Xxxxxx, 00xx Xxxxx, Xxxxxxx, Xxxxxxxxxx 00000-0000, on behalf of any Underwriter [Date], or Underwriters whose check or checks shall not have been received such other time and date as you and the Company may agree upon in writing, such time and date being herein referred to as the "Closing Date," and, with respect to the Option Shares, at the time and on the date specified by you in the written notice given by you of the Underwriters' election to purchase the Option Shares, or such other time and date as you and the Company may agree upon in writing, such time and date being referred to herein as the "Option Closing Date." Such certificates will be made available for checking and packaging at least twenty- four hours prior to the Closing Date for or the Firm Shares to be purchased by such Underwriter or Underwriters. Any such payment by you shall not relieve any such Underwriter or Underwriters of any of its or their obligations hereunder. After Option Closing Date, as the Registration Statement becomes effectivecase may be, the several Underwriters intend to make a public offering (as such term is described in Section 11 hereof) of the Firm Shares at a public offering price of $_____ per share. After the public offering, the several Underwriters may, in their discretion, vary the public offering price. The information set forth in the second and eighth paragraphs under the caption "Underwriting" in any Preliminary Prospectus and in the Prospectus constitutes the only information furnished location as may be designated by the Underwriters to the Company for inclusion in any Preliminary Prospectus, the Prospectus or the Registration Statement or any Incorporated Document, and you, on behalf of the respective Underwriters, represent and warrant to the Company and the Selling Stockholders that the statements made therein do not include any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading.
Appears in 1 contract
Samples: Underwriting Agreement (Watchguard Technologies Inc)
Purchase, Sale and Delivery of Shares. On the basis of the representations, warranties and agreements herein contained, but subject to the terms and conditions herein set forth, the Company and the Selling Stockholders Shareholders agree, severally and not jointly, to sell to the Underwriters, and each Underwriter agrees, severally and not jointly, to purchase from the Company and the Selling StockholdersShareholders, respectively, at a purchase price of $_____ per share, share (the per share price to public as set forth in the Registration Statement less the per share underwriting discounts and commissions) the respective number of Company Shares and Selling Stockholder Firm Shares set forth opposite the names of the Company and the Selling Stockholders, respectively, in on Schedule B A hereto. The obligation of each Underwriter to the Company and to each Selling Stockholder Shareholder shall be to purchase from the Company or such Selling Stockholder Shareholder that number of Company Shares or Selling Stockholder Shareholder Shares, as the case may be, which (as nearly as practicable, as determined by you) is in the same proportion to the number of Company Shares or Selling Stockholder Shareholder Shares, as the case may be, set forth opposite the name of the Company or such Selling Stockholder Shareholder in Schedule B hereto as the number of Firm Shares which is set forth opposite the name of such Underwriter in Schedule A hereto (subject to adjustment as provided in Section 1011) is to the total number of Firm Shares to be purchased by all the Underwriters under this Agreement. The certificates in negotiable form or properly executed option exercise forms for the Selling Stockholder Shareholder Shares (or certificates representing securities convertible into such Shares) have been placed in custody (for delivery under this Agreement) under the Custody Agreement. Each Selling Stockholder Shareholder agrees that the certificates or executed option exercise forms for the Selling Stockholder Shareholder Shares of such Selling Stockholder Shareholder so held in custody are subject to the interests of the Underwriters hereunder, that the arrangements made by such Selling Stockholder Shareholder for such custody, including the Power of Attorney Attorney, is to that extent irrevocable and that the obligations of such Selling Stockholder Shareholder hereunder shall not be terminated by the act of such Selling Stockholder Shareholder or by operation of law, whether by the death or incapacity of such Selling Stockholder Shareholder or the occurrence of any other event, except as specifically provided herein or in the Custody Agreement. If any Selling Stockholder Shareholder should die or be incapacitated, or if any other such event should occur, before the delivery of the certificates for the Selling Stockholder Shareholder Shares hereunder, the Selling Stockholder Shareholder Shares to be sold by such Selling Stockholder Shareholder shall, except as specifically provided herein or in the Custody Agreement, be delivered by the Custodian in accordance with the terms and conditions of this Agreement as if such death, incapacity or other event had not occurred, regardless of whether the Custodian shall have received notice of such death or other event. Delivery of definitive certificates for the Firm Shares to be purchased by the Underwriters pursuant to this Section 3 4 shall be made against payment of the purchase price therefor by the several Underwriters by certified or official bank check or checks drawn in nextsame-day funds, payable to the order of the Company with regard to the Shares being purchased from the Company, and to the order of the Custodian for the respective accounts of the Selling Stockholders Shareholders with regard to the Shares being purchased from such Selling Stockholders (and the Company and such Selling Stockholders agree not to deposit and to cause the Custodian not to deposit any such check in the bank on which it is drawn, and not to take any other action with the purpose or effect of receiving immediately available funds, until the business day following the date of its delivery to the Company or the Custodian, as the case may be, and, in the event of any breach of the foregoing, the Company or the Selling Stockholders, as the case may be, shall reimburse the Underwriters for the interest lost and any other expenses borne by them by reason of such breach)Shareholders, at the offices of Xxxxxxx & XxXxxxxx, Los Angeles, California ________________________________________________________________ (or at such other place as may be agreed upon among the Representatives Representative and the Company), at 7:00 A.M._:__ _.M., San Francisco _____________ time (a) on the third (3rd) full business day following the first day that Shares are traded, (b) if this Agreement is executed and delivered after 1:30 P.M., San Francisco Vancouver, Washington time, the fourth (4th) full business day following the day that this Agreement is executed and delivered or (c) at such other time and date not later than seven (7) full business days following the first day that Shares are traded as the Representatives Representative and the Company and the Attorneys may determine agree (or at such time and date to which payment and delivery shall have been postponed pursuant to Section 10 11 hereof), such time and date of payment and delivery being herein called the "Closing DateCLOSING DATE;" PROVIDEDprovided, HOWEVERhowever, that if the Company has not made available to the Representatives Representative copies of the Prospectus within the time provided in Section 4(d5(d) hereof, the Representatives Representative may, in their sole discretion, postpone the Closing Date until no later than two (2) full business days following delivery of copies of the Prospectus to the RepresentativesRepresentative. The certificates for the Firm Shares to be so delivered will be made available to you at such office or such other location including, without limitation, in New York City, as you may reasonably request for checking at least one (1) full business day prior to the Closing Date and will be in such names and denominations as you may request, such request to be made at least two (2) full business days prior to the Closing Date. If the Representatives Representative so electelects, delivery of the Firm Shares may be made by credit through full fast transfer to the accounts account at The Depository Trust Company designated by the RepresentativesRepresentative. It is understood that you, individually, and not as the Representatives Representative of the several Underwriters, may (but shall not be obligated to) make payment of the purchase price on behalf of any Underwriter or Underwriters whose check or checks shall not have been received by you prior to the Closing Date for the Firm Shares to be purchased by such Underwriter or Underwriters. Any such payment by you shall not relieve any such Underwriter or Underwriters of any of its or their obligations hereunder. After the Registration Statement becomes effective, the several Underwriters intend to make a an initial public offering (as such term is described in Section 11 12 hereof) of the Firm Shares at a an initial public offering price of $_____ per share. After the public offering, the several Underwriters may, in their discretion, vary the public offering price. The information set forth in the second to last paragraph on the front cover page (insofar as such information relates to the Underwriters), and eighth under all the paragraphs under the caption "Underwriting" in any Preliminary Prospectus and in the Prospectus constitutes the only information furnished by the Underwriters to the Company for inclusion in any Preliminary Prospectus, the Prospectus or the Registration Statement or any Incorporated DocumentStatement, and you, on behalf of the respective Underwriters, represent and warrant to the Company and the Selling Stockholders Shareholders that the statements made therein do not include any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading.
Appears in 1 contract
Purchase, Sale and Delivery of Shares. On the basis of the representations, warranties and agreements herein contained, but subject to the terms and conditions herein set forth, the Company and the Selling Stockholders Shareholder agree, severally and not jointly, to sell to the Underwriters, and each Underwriter agrees, severally and not jointly, to purchase from the Company and the Selling StockholdersShareholder, respectively, at a purchase price of $_____ per share, the respective number of Company Shares and Selling Stockholder Firm Shares set forth opposite the names of the Company and the Selling Stockholders, respectively, Shareholder in Schedule B hereto. The obligation of each Underwriter to the Company and to each the Selling Stockholder Shareholder shall be to purchase from the Company or such Selling Stockholder Shareholder that number of Company Shares or Selling Stockholder Shareholder Shares, as the case may be, which (as nearly as practicable, as determined by you) is in the same proportion to the number of Company Shares or Selling Stockholder Shares, as the case may be, Shareholder Shares set forth opposite the name of the Company or such Selling Stockholder Shareholder in Schedule B hereto as the number of Firm Shares which is set forth opposite the name of such Underwriter in Schedule A hereto (subject to adjustment as provided in Section 10) is to the total number of Firm Shares to be purchased by all the Underwriters under this Agreement. The certificates in negotiable form or properly executed option exercise forms for the Selling Stockholder Shareholder Shares have been placed in custody (for delivery under this Agreement) under the Custody Agreement. Each The Selling Stockholder Shareholder agrees that the certificates or executed option exercise forms for the Selling Stockholder Shareholder Shares of such Selling Stockholder Shareholder so held in custody are subject to the interests of the Underwriters hereunder, that the arrangements made by such Selling Stockholder Shareholder for such custody, including the Power of Attorney is to that extent irrevocable and that the obligations of such Selling Stockholder Shareholder hereunder shall not be terminated by the any act of such Selling Stockholder Shareholder or by operation of law, whether by the death or incapacity of such Selling Stockholder Shareholder or the occurrence of any other event, except as specifically provided herein or in the Custody Agreement. If any Selling Stockholder Shareholder should die or be incapacitated, or if any other such event should occur, before the delivery of the certificates for the Selling Stockholder Shareholder Shares hereunder, the Selling Stockholder Shareholder Shares to be sold by such Selling Stockholder Shareholder shall, except as specifically provided herein or in the Custody Agreement, be delivered by the Custodian in accordance with the terms and conditions of this Agreement as if such death, incapacity or other event had not occurred, regardless of whether the Custodian shall have received notice of such death or other event. Delivery of definitive certificates for the Firm Shares to be purchased by the Underwriters pursuant to this Section 3 shall be made against receipt of a wire transfer reference number issued by the Federal Reserve System evidencing payment of the purchase price therefor by the several Underwriters by certified or official bank check or checks drawn in next-day wire transfer of immediately available funds, payable to the order of an account specified in writing by the Company with regard to the Shares being purchased from the Company, and to the order of an account specified in writing by the Custodian for the respective accounts account of the Selling Stockholders Shareholder with regard to the Shares being purchased from such Selling Stockholders (and the Company and such Selling Stockholders agree not to deposit and to cause the Custodian not to deposit any such check in the bank on which it is drawn, and not to take any other action with the purpose or effect of receiving immediately available funds, until the business day following the date of its delivery to the Company or the Custodian, as the case may be, and, in the event of any breach of the foregoing, the Company or the Selling Stockholders, as the case may be, shall reimburse the Underwriters for the interest lost and any other expenses borne by them by reason of such breach)Shareholder, at the offices of Xxxxxxx Xxxx Xxxx Xxxx & XxXxxxxxFreidenrich LLP, Los Angeles000 Xxxxxxxx Xxxxxx, Palo Alto, California (or at such other place as may be agreed upon among the Representatives and the Company), at 7:00 A.M., San Francisco time (a) on the third (3rd) full business day following the first day that Shares are traded, (b) if this Agreement is executed and delivered after 1:30 P.M., San Francisco time, the fourth (4th) full business day following the day that this Agreement is executed and delivered or (c) at such other time and date not later than seven (7) full business days following the first day that Shares are traded as the Representatives and the Company and the Attorneys may determine (or at such time and date to which payment and delivery shall have been postponed pursuant to Section 10 hereof), such time and date of payment and delivery being herein called the "Closing Date;" PROVIDED, HOWEVER, that if the Company has not made available to the Representatives copies of the Prospectus within the time provided in Section 4(d) hereof, the Representatives may, in their sole discretion, postpone the Closing Date until no later than two (2) full business days following delivery of copies of the Prospectus to the Representatives. The certificates for the Firm Shares to be so delivered will be made available to you at such office or such other location including, without limitation, in New York City, as you may reasonably request for checking at least one (1) full business day prior to the Closing Date and will be in such names and denominations as you may request, such request to be made at least two (2) full business days prior to the Closing Date. If the Representatives so elect, delivery of the Firm Shares may be made by credit through full fast transfer to the accounts at The Depository Trust Company designated by the Representatives. It is understood that you, individually, and not as the Representatives of the several Underwriters, may (but shall not be obligated to) make payment of the purchase price on behalf of any Underwriter or Underwriters whose check or checks shall not have been received by you prior to the Closing Date for the Firm Shares to be purchased by such Underwriter or Underwriters. Any such payment by you shall not relieve any such Underwriter or Underwriters of any of its or their obligations hereunder. After the Registration Statement becomes effective, the several Underwriters intend to make a an initial public offering (as such term is described in Section 11 hereof) of the Firm Shares at a an initial public offering price of $_____ per share. After the initial public offering, the several Underwriters may, in their discretion, vary the public offering price. The information set forth in the second last paragraph on the front cover page (insofar as such information relates to the Underwriters), on the inside front cover concerning stabilization and over-allotment by the Underwriters, and in the second, seventh and eighth paragraphs under the caption "Underwriting" in any Preliminary Prospectus and in the Prospectus constitutes the only information furnished by the Underwriters to the Company for inclusion in any Preliminary Prospectus, the Prospectus or the Registration Statement or any Incorporated Document, and you, on behalf of the respective Underwriters, represent and warrant to the Company and the Selling Stockholders Shareholder that the statements made therein do not include any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading.
Appears in 1 contract
Samples: Bebe Stores Inc
Purchase, Sale and Delivery of Shares. On the basis of the representations, warranties and agreements herein contained, but subject to the terms and conditions herein set forth, the Company and the Selling Stockholders agree, severally and not jointly, to sell to the Underwriters, and each Underwriter agrees, severally and not jointly, to purchase from the Company and the Selling Stockholders, respectively, at a purchase price of $___.__ per share, the respective number of Company Shares as hereinafter set forth and Selling Stockholder Shares set forth opposite the names of the Company and the Selling Stockholders, respectively, Stockholders in Schedule B hereto. The obligation of each Underwriter to the Company and to each Selling Stockholder shall be to purchase from the Company or such Selling Stockholder that number of Company Shares or Selling Stockholder Shares, as the case may be, which (as nearly as practicable, as determined by you) is in the same proportion to the number of Company Shares or Selling Stockholder Shares, as the case may be, set forth opposite the name of the Company or such Selling Stockholder in Schedule B hereto as the number of Firm Shares which is set forth opposite the name of such Underwriter in Schedule A hereto (subject to adjustment as provided in Section 10) is to the total number of Firm Shares to be purchased by all the Underwriters under this Agreement. The certificates in negotiable form or properly executed option exercise forms for the Selling Stockholder Shares have been placed in custody (for delivery under this Agreement) under the Custody Selling Stockholder Agreement, except for the Selling Stockholder Shares to be sold by Xxx X. Xxxxx which certificates, together with duly endorsed stock xxxxxx, xxxx be delivered by Xx. Xxxxx or on his behalf to the Underwriters at the time of the Closing. Each Selling Stockholder agrees that the certificates or executed option exercise forms for the Selling Stockholder Shares of such Selling Stockholder so held in custody are subject to the interests of the Underwriters hereunder, that the arrangements made by such Selling Stockholder for such custodythe custody of the Selling Stockholder Shares, including the Power of Attorney Selling Stockholder Agreement, is to that extent irrevocable and that the obligations of such Selling Stockholder hereunder shall not be terminated by the act of such Selling Stockholder or by operation of law, whether by the death or incapacity of such Selling Stockholder or the occurrence of any other event, except as specifically provided herein or in the Custody Selling Stockholder Agreement. If any Selling Stockholder should die or be incapacitated, or if any other such event should occur, before the delivery of the certificates for the Selling Stockholder Shares hereunder, the Selling Stockholder Shares to be sold by such Selling Stockholder shall, except as specifically provided herein or in the Custody Selling Stockholder Agreement, be delivered by the Custodian in accordance with the terms and conditions of this Agreement as if such death, incapacity or other event had not occurred, regardless of whether the Custodian shall have received notice of such death or other event. Delivery of definitive certificates for the Firm Shares to be purchased by the Underwriters pursuant to this Section 3 shall be made against payment of the purchase price therefor by the several Underwriters by certified or official bank check or checks drawn in nextsame-day funds or by wire transfer in same-day funds, payable to the order of the Company with regard to the Shares being purchased from the Company, and to the order of the Custodian for the respective accounts of the Selling Stockholders with regard to the Shares being purchased from such Selling Stockholders (and the Company and such Selling Stockholders agree not to deposit and to cause the Custodian not to deposit any such check in the bank on which it is drawn, and not to take any other action with the purpose or effect of receiving immediately available funds, until the business day following the date of its delivery to the Company or the Custodian, as the case may be, and, in the event of any breach of the foregoing, the Company or the Selling Stockholders, as the case may be, shall reimburse the Underwriters for the interest lost and any other expenses borne by them by reason of such breach), at the offices of Xxxxx Xxxxxxx & XxXxxxxxRain Xxxxxxx, Los Angeles0000 Xxxx Xxxxxx, California Suite 2200, Dallas, Texas (or at such other place as may be agreed upon among the Representatives and the Company), at 7:00 A.M., San Francisco time (a) on the third (3rd) full business day following the first day that Shares are traded, (b) if this Agreement is executed and delivered after 1:30 P.M., San Francisco time, the fourth (4th) full business day following the day that this Agreement is executed and delivered or (c) at such other time and date not later than seven (7) full business days following the first day that Shares are traded as the Representatives and the Company and the Attorneys may determine (or at such time and date to which payment and delivery shall have been postponed pursuant to Section 10 hereof), such time and date of payment and delivery being herein called the "Closing Date;" "; PROVIDED, HOWEVER, that if the Company has not made available to the Representatives copies of the Prospectus within the time provided in Section 4(d) hereofhereof (through no fault of the Representatives), the Representatives may, in their sole discretion, postpone the Closing Date until no later than two (2) full business days following delivery of copies of the Prospectus to the Representatives. The certificates for the Firm Shares to be so delivered will be made available to you at such office or such other location including, without limitation, in New York City, as you may reasonably request for checking at least one (1) full business day prior to the Closing Date and will be in such names and denominations as you may request, such request to be made at least two (2) full business days prior to the Closing Date. If the Representatives so elect, delivery of the Firm Shares may be made by credit through full fast transfer to the accounts at The Depository Trust Company designated by the Representatives. It is understood that you, individually, and not as the Representatives of the several Underwriters, may (but shall not be obligated to) make payment of the purchase price on behalf of any Underwriter or Underwriters whose check or checks shall not have been received by you prior to the Closing Date for the Firm Shares to be purchased by such Underwriter or Underwriters. Any such payment by you shall not relieve any such Underwriter or Underwriters of any of its or their obligations hereunder. After the Registration Statement becomes effective, the several Underwriters intend to make a an initial public offering (as such term is described in Section 11 hereof) of the Firm Shares at a an initial public offering price of $___.__ per share. After the initial public offering, the several Underwriters may, in their discretion, vary the public offering price. The information set forth in the second last paragraph on the front cover page (insofar as such information relates to the Underwriters), on the inside front cover concerning stabilization and over-allotment by the Underwriters, and under the second, seventh, eighth and ninth paragraphs under the caption "Underwriting" in any Preliminary Prospectus and in the Prospectus constitutes the only information furnished by the Underwriters to the Company for inclusion in any Preliminary Prospectus, the Prospectus or the Registration Statement or any Incorporated DocumentStatement, and you, on behalf of the respective Underwriters, represent and warrant to the Company and the Selling Stockholders that the statements made therein do not include any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading.
Appears in 1 contract
Samples: Carreker Antinori Inc
Purchase, Sale and Delivery of Shares. 3.1. On the basis of the representations, warranties and agreements herein contained, but subject to the terms and conditions herein set forth, the Company agrees to sell to the Underwriters 1,500,000 of the Firm Shares and the Selling Stockholders agreeShareholder agrees to offer and sell 1,900,000 of the Firm Shares. The Underwriters, severally and not jointly, to sell to the Underwriters, and each Underwriter agrees, severally and not jointly, agree to purchase from the Company and the Selling Stockholders, respectively, at a purchase price of $_____ per share, the respective number of Company Shares and Selling Stockholder Shares set forth opposite the names of the Company and the Selling Stockholders, respectively, in Schedule B hereto. The obligation of each Underwriter to the Company and to each Selling Stockholder shall be to purchase from the Company or such Selling Stockholder that number of Company Shares or Selling Stockholder Shares, as the case may be, which (as nearly as practicable, as determined by you) is in the same proportion to the number of Company Shares or Selling Stockholder Shares, as the case may be, set forth opposite the name of the Company or such Selling Stockholder in Schedule B hereto as Shareholder the number of Firm Shares which is set forth opposite the name of such Underwriter in Schedule A hereto (subject hereto. The number of Firm Shares to adjustment be purchased by each Underwriter from the Company will bear the same ratio to the total number of Firm Shares to be sold by the Company as provided in Section 10) is the total number of Firm Shares to be purchased by such Underwriter bears to the total number of Firm Shares to be purchased by all the Underwriters under this Agreement. The certificates in negotiable form or properly executed option exercise forms for the Selling Stockholder Shares have been placed in custody (for delivery under this Agreement) under the Custody Agreement. Each Selling Stockholder agrees that the certificates or executed option exercise forms for the Selling Stockholder Shares of such Selling Stockholder so held in custody are subject to the interests of the Underwriters hereunderUnderwriters, that collectively and the arrangements made by such Selling Stockholder for such custody, including the Power number of Attorney is to that extent irrevocable and that the obligations of such Selling Stockholder hereunder shall not be terminated by the act of such Selling Stockholder or by operation of law, whether by the death or incapacity of such Selling Stockholder or the occurrence of any other event, except as specifically provided herein or in the Custody Agreement. If any Selling Stockholder should die or be incapacitated, or if any other such event should occur, before the delivery of the certificates for the Selling Stockholder Shares hereunder, the Selling Stockholder Shares to be sold by such Selling Stockholder shall, except as specifically provided herein or in the Custody Agreement, be delivered by the Custodian in accordance with the terms and conditions of this Agreement as if such death, incapacity or other event had not occurred, regardless of whether the Custodian shall have received notice of such death or other event. Delivery of definitive certificates for the Firm Shares to be purchased by each Underwriter from the Underwriters pursuant to this Section 3 shall be made against payment of Selling Shareholder will bear the purchase price therefor by the several Underwriters by certified or official bank check or checks drawn in next-day funds, payable same ratio to the order total number of the Company with regard to the Shares being purchased from the Company, and to the order of the Custodian for the respective accounts of the Selling Stockholders with regard to the Shares being purchased from such Selling Stockholders (and the Company and such Selling Stockholders agree not to deposit and to cause the Custodian not to deposit any such check in the bank on which it is drawn, and not to take any other action with the purpose or effect of receiving immediately available funds, until the business day following the date of its delivery to the Company or the Custodian, as the case may be, and, in the event of any breach of the foregoing, the Company or the Selling Stockholders, as the case may be, shall reimburse the Underwriters for the interest lost and any other expenses borne by them by reason of such breach), at the offices of Xxxxxxx & XxXxxxxx, Los Angeles, California (or at such other place as may be agreed upon among the Representatives and the Company), at 7:00 A.M., San Francisco time (a) on the third (3rd) full business day following the first day that Shares are traded, (b) if this Agreement is executed and delivered after 1:30 P.M., San Francisco time, the fourth (4th) full business day following the day that this Agreement is executed and delivered or (c) at such other time and date not later than seven (7) full business days following the first day that Shares are traded as the Representatives and the Company and the Attorneys may determine (or at such time and date to which payment and delivery shall have been postponed pursuant to Section 10 hereof), such time and date of payment and delivery being herein called the "Closing Date;" PROVIDED, HOWEVER, that if the Company has not made available to the Representatives copies of the Prospectus within the time provided in Section 4(d) hereof, the Representatives may, in their sole discretion, postpone the Closing Date until no later than two (2) full business days following delivery of copies of the Prospectus to the Representatives. The certificates for the Firm Shares to be so delivered will be made available to you at such office or such other location including, without limitation, in New York City, as you may reasonably request for checking at least one (1) full business day prior to the Closing Date and will be in such names and denominations as you may request, such request to be made at least two (2) full business days prior to the Closing Date. If the Representatives so elect, delivery of the Firm Shares may be made by credit through full fast transfer to the accounts at The Depository Trust Company designated sold by the Representatives. It is understood that you, individually, and not Selling Shareholder as the Representatives total number of the several Underwriters, may (but shall not be obligated to) make payment of the purchase price on behalf of any Underwriter or Underwriters whose check or checks shall not have been received by you prior to the Closing Date for the Firm Shares to be purchased by such Underwriter or bears to the total number of Firm Shares to be purchased by all of the Underwriters, collectively; provided, however, that the Representative may on behalf of the Underwriters adjust the number of Firm Shares to be purchased by each Underwriter from the Selling Shareholder so as to eliminate fractional shares. Any such payment The purchase price per share to be paid by you shall not relieve any such Underwriter or Underwriters of any of its or their obligations hereunder. After the Registration Statement becomes effective, the several Underwriters intend to make a public offering (as such term is described in Section 11 hereof) of the Firm Shares at a public offering price of Company and the Selling Shareholder will be $__________ per share. After the public offering, the several Underwriters may, in their discretion, vary the public offering price. The information set forth in the second and eighth paragraphs under the caption "Underwriting" in any Preliminary Prospectus and in the Prospectus constitutes the only information furnished by the Underwriters to the Company for inclusion in any Preliminary Prospectus, the Prospectus or the Registration Statement or any Incorporated Document, and you, on behalf of the respective Underwriters, represent and warrant to the Company and the Selling Stockholders that the statements made therein do not include any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading.
Appears in 1 contract
Purchase, Sale and Delivery of Shares. On the basis of the representations, warranties and agreements herein contained, but subject to the terms and conditions herein set forth, the Company and the Selling Stockholders agree, severally and not jointly, to sell to the Underwriters, and each Underwriter agrees, severally and not jointly, to purchase from the Company and the Selling Stockholders, respectively, at a purchase price of $__________ per share, the respective number of Company Shares and Selling Stockholder Shares set forth opposite the names of the Company and the Selling Stockholders, respectively, Stockholders in Schedule B hereto. The obligation of each Underwriter to the Company and to each Selling Stockholder shall be to purchase from the Company or such Selling Stockholder that number of Company Shares or Selling Stockholder Shares, as the case may be, which (as nearly as practicable, as determined by you) is in the same proportion to the number of Company Shares or Selling Stockholder Shares, as the case may be, set forth opposite the name of the Company or such Selling Stockholder in Schedule B hereto as the number of Firm Shares which is set forth opposite the name of such Underwriter in Schedule A hereto (subject to adjustment as provided in Section 10) is to the total number of Firm Shares to be purchased by all the Underwriters under this Agreement. In the event that any Selling Stockholder shall have failed, refused or been unable to perform any agreement on his, her or its part to be performed hereunder, the Company and not such Selling Stockholder shall sell to the Underwriters, and each Underwriter agrees, severally and not jointly, to purchase from the Company and not from such Selling Stockholder, at the same price per share as set forth in this Section 3, the number of Selling Stockholder Shares which were otherwise to be sold by such Selling Stockholder but for such Selling Stockholder's failure, refusal or inability to perform any agreement on his, her or its part to be performed hereunder. The additional shares of Common Stock so sold by the Company as a result of the provisions of the preceding sentence shall added to, and included within, "Company Shares," and shall be subtracted and excluded from "Selling Stockholder Shares" as may be applicable in the context of this Agreement. The certificates in negotiable form or properly executed option exercise forms for the Selling Stockholder Shares have been placed in custody (for delivery under this Agreement) under the Custody Agreement. Each Selling Stockholder agrees that the certificates or executed option exercise forms for the Selling Stockholder Shares of such Selling Stockholder so held in custody are subject to the interests of the Underwriters hereunder, that the arrangements made by such Selling Stockholder for such custody, including the Power of Attorney is to that extent irrevocable and that the obligations of such Selling Stockholder hereunder shall not be terminated by the act of such Selling Stockholder or by operation of law, whether by the death or incapacity of such Selling Stockholder or the occurrence of any other event, except as specifically provided herein or in the Custody Agreement. If any Selling Stockholder should die or be incapacitated, or if any other such event should occur, before the delivery of the certificates for the Selling Stockholder Shares hereunder, the Selling Stockholder Shares to be sold by such Selling Stockholder shall, except as specifically provided herein or in the Custody Agreement, be delivered by the Custodian in accordance with the terms and conditions of this Agreement as if such death, incapacity or other event had not occurred, regardless of whether the Custodian shall have received notice of such death or other event. Delivery of definitive certificates for the Firm Shares to be purchased by the Underwriters pursuant to this Section 3 shall be made against payment of the purchase price therefor by the several Underwriters by certified or official bank check or checks drawn in next-day funds, payable to the order of the Company with regard to the Shares being purchased from the Company, and to the order of the Custodian for the respective accounts of the Selling Stockholders with regard to the Shares being purchased from such Selling Stockholders (and the Company and such Selling Stockholders agree not to deposit and to cause the Custodian not to deposit any such check in the bank on which it is drawn, and not to take any other action with the purpose or effect of receiving immediately available funds, drawn until the business day following the date of its delivery to the Company or the Custodian, as the case may be, and, in the event of any breach of the foregoing, the Company or the Selling Stockholders, as the case may be, shall reimburse the Underwriters for the interest lost and any other expenses borne by them by reason of such breach), at the offices of Xxxxxxx & XxXxxxxx, Los Angeles, California (the Representative or at such other place as 15 may be agreed upon among the Representatives Representative and the Company), at 7:00 ____ A.M., San Francisco time (a) Los Angeles time, on the third (3rd) full business day following the first day that Shares are traded, (b) if this Agreement is executed and delivered after 1:30 P.M., San Francisco time, the fourth (4th) full business day following the day that this Agreement is executed and delivered or (c) at such other time and date not later than seven (7) full business days following the first day that Shares are traded as the Representatives and the Company and the Attorneys may determine (or at such time and date to which payment and delivery shall have been postponed pursuant to Section 10 hereof), such time and date of payment and delivery being herein called the "Closing Date;." PROVIDED, HOWEVER, that if the Company has not made available to the Representatives copies of the Prospectus within the time provided in Section 4(d) hereof, the Representatives may, in their sole discretion, postpone the Closing Date until no later than two (2) full business days following delivery of copies of the Prospectus to the Representatives. The certificates for the Firm Shares to be so delivered will be made available to you at such office or such other location including, without limitation, in New York City, as you may reasonably request for checking at least one (1) full business day prior to the Closing Date and will be in such names and denominations as you may request, such request to be made at least two (2) full business days prior to the Closing Date. If the Representatives Representative so electelects, delivery of the Firm Shares may be made by credit through full fast transfer to the accounts at The Depository Trust Company designated by the RepresentativesRepresentative. It is understood that you, individually, and not as the Representatives Representative of the several Underwriters, may (but shall not be obligated to) make payment of the purchase price on behalf of any Underwriter or Underwriters whose check or checks shall not have been received by you prior to the Closing Date for the Firm Shares to be purchased by such Underwriter or Underwriters. Any such payment by you shall not relieve any such Underwriter or Underwriters of any of its or their obligations hereunder. After the Registration Statement becomes effective, the several Underwriters intend to make a an initial public offering (as such term is described in Section 11 hereof) of the Firm Shares at a an initial public offering price of $______ per share. After the initial public offering, the several Underwriters may, in their discretion, vary the public offering price. The information set forth in the second last paragraph on the front cover page (insofar as such information relates to the Underwriters), in the first paragraph on page 2, concerning stabilization and eighth paragraphs over-allotment by the Underwriters, in the third paragraph under the caption "Underwriting," concerning the manner of offering the Firm Shares and the Option Shares, and in the seventh paragraph under the caption "Underwriting," concerning the discretionary accounts controlled by the Underwriters, in each case, in any Preliminary Prospectus and in the final form of Prospectus filed pursuant to Rule 424(b) constitutes the only information furnished by the Underwriters to the Company for inclusion in any Preliminary Prospectus, the Prospectus or the Registration Statement or any Incorporated DocumentStatement, and you, on behalf of the respective Underwriters, represent and warrant to the Company and the Selling Stockholders that the statements made therein do not include any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading.
Appears in 1 contract
Samples: Compass Plastics & Technologies Inc
Purchase, Sale and Delivery of Shares. On the basis of the representations, warranties and agreements herein containedcovenants contained herein, but and subject to the terms and conditions herein set forth, the Company and the each Selling Stockholders agreeShareholder agrees, severally and not jointly, to sell to the Underwriters, each Underwriter and each Underwriter agrees, severally and not jointly, to purchase from the Company and the each Selling Stockholders, respectivelyShareholder, at a purchase price of $_____ per share, the respective number of Firm Shares (to be adjusted by you to eliminate fractional shares) determined by multiplying the aggregate number of Firm Shares to be sold by the Company Shares and each of the Selling Stockholder Shares Shareholders, as set forth opposite the their respective names of the Company and the Selling Stockholders, respectively, in Schedule B hereto. The obligation , by a fraction, the numerator of each Underwriter to which is the Company and to each Selling Stockholder shall be to purchase from the Company or such Selling Stockholder that number of Company Shares or Selling Stockholder Shares, as the case may be, which (as nearly as practicable, as determined by you) is in the same proportion to the number of Company Shares or Selling Stockholder Shares, as the case may be, set forth opposite the name of the Company or such Selling Stockholder in Schedule B hereto as the aggregate number of Firm Shares which is to be purchased by such Underwriter as set forth opposite the name of such Underwriter in Schedule A hereto (subject to adjustment as provided in Section 10) and the denominator of which is to the total aggregate number of Firm Shares to be purchased by all the Underwriters under this Agreement. The certificates in negotiable form or properly executed option exercise forms for from the Company and the Selling Stockholder Shares have been placed in custody (for delivery under this Agreement) under Shareholders hereunder. In addition, on the Custody Agreement. Each Selling Stockholder agrees that basis of the certificates or executed option exercise forms for the Selling Stockholder Shares of such Selling Stockholder so held in custody are representations, warranties and covenants herein contained and subject to the interests of the Underwriters hereunder, that the arrangements made by such Selling Stockholder for such custody, including the Power of Attorney is to that extent irrevocable and that the obligations of such Selling Stockholder hereunder shall not be terminated by the act of such Selling Stockholder or by operation of law, whether by the death or incapacity of such Selling Stockholder or the occurrence of any other event, except as specifically provided herein or in the Custody Agreement. If any Selling Stockholder should die or be incapacitated, or if any other such event should occur, before the delivery of the certificates for the Selling Stockholder Shares hereunder, the Selling Stockholder Shares to be sold by such Selling Stockholder shall, except as specifically provided herein or in the Custody Agreement, be delivered by the Custodian in accordance with the terms and conditions of this Agreement herein set forth, the Company hereby grants to the several Underwriters an option to purchase at their election up to 286,500 Option Shares at the same price per share as if such death, incapacity or other event had not occurred, regardless of whether the Custodian shall have received notice of such death or other event. Delivery of definitive certificates set forth for the Firm Shares to be purchased by in the Underwriters pursuant to this Section 3 shall be made against payment paragraph above, for the sole purpose of covering overallotments in the sale of the purchase price therefor Firm Shares. The option granted hereby may be exercised in whole or in part, but only once, and at any time upon written notice given within 30 days after the date of this Agreement, by you, as Representatives of the several Underwriters, to the Company, the Attorneys-in-Fact and the Custodian setting forth the number of Option Shares as to which the several Underwriters by certified or official bank check or checks drawn in next-day funds, payable to are exercising the order of the Company with regard to the Shares being purchased from the Company, and to the order of the Custodian for the respective accounts of the Selling Stockholders with regard to the Shares being purchased from such Selling Stockholders (option and the Company and such Selling Stockholders agree not to deposit and to cause the Custodian not to deposit any such check in the bank on which it is drawn, and not to take any other action with the purpose or effect of receiving immediately available funds, until the business day following the date of its delivery to the Company or the Custodian, as the case may be, and, in the event of any breach of the foregoing, the Company or the Selling Stockholders, as the case may be, shall reimburse the Underwriters for the interest lost and any other expenses borne by them by reason of such breach), at the offices of Xxxxxxx & XxXxxxxx, Los Angeles, California (or at such other place as may be agreed upon among the Representatives and the Company), at 7:00 A.M., San Francisco time (a) on the third (3rd) full business day following the first day that Shares are traded, (b) if this Agreement is executed and delivered after 1:30 P.M., San Francisco time, the fourth (4th) full business day following the day that this Agreement is executed and delivered or (c) at such other time and date at which certificates are to be delivered. If any Option Shares are purchased, each Underwriter agrees, severally and not jointly, to purchase that portion of the number of Option Shares as to which such election shall have been exercised (subject to adjustment to eliminate fractional shares) determined by multiplying such number of Option Shares by a fraction the numerator of which is the maximum number of Option Shares which such Underwriter is entitled to purchase as set forth opposite the name of such Underwriter in Schedule A hereto and the denominator of which is the maximum number of Option Shares which all of the Underwriters are entitled to purchase hereunder. The time and date at which certificates for Option Shares are to be delivered shall be determined by the Representatives but shall not be earlier than two or later than seven (7) ten full business days following after the first day that Shares are traded as the Representatives exercise of such option, and the Company and the Attorneys may determine (or at such time and date to which payment and delivery shall have been postponed pursuant to Section 10 hereof), such time and date of payment and delivery being herein called the "Closing Date;" PROVIDED, HOWEVER, that if the Company has not made available to the Representatives copies of the Prospectus within the time provided in Section 4(d) hereof, the Representatives may, in their sole discretion, postpone the Closing Date until no later than two (2) full business days following delivery of copies of the Prospectus to the Representatives. The certificates for the Firm Shares to any event be so delivered will be made available to you at such office or such other location including, without limitation, in New York City, as you may reasonably request for checking at least one (1) full business day prior to the Closing Date and will be in such names and denominations as you may request, such request to be made at least two (2) full business days prior to the Closing Date. If the Representatives so elect, delivery date of exercise of the Firm option is three or more full days before the Closing Date, the notice of exercise shall set the Closing Date as the Option Closing Date. Certificates in definitive form for the Shares to be purchased by each Underwriter hereunder, and in such denominations and registered in such names as the Representatives may be made by credit through full fast transfer request upon at least forty-eight hours prior notice to the accounts Company, shall be delivered by or on behalf of the Company and each Selling Shareholder to you for the account of such Underwriter at The Depository Trust Company such time and place as shall hereafter be designated by the Representatives. It is understood that you, individually, and not as the Representatives of the several Underwriters, may (but shall not be obligated to) make against payment by such Underwriter or on its behalf of the purchase price therefor by wire transfer of immediately available funds to the Company and to the Custodian in accordance with instructions received in writing from the Company at least two business days prior to Closing. The time and date of such delivery and payment shall be, with respect to the Firm Shares, 8:30 a.m. Minneapolis time, at the offices of Xxxxxx & Xxxxxxx, P.L.L.P., on behalf of any Underwriter ________________, 1995, or Underwriters whose check or checks shall not have been received such other time and date as you and the Company may agree upon in writing, such time and date being herein referred to as the "Closing Date," and, with respect to the Option Shares, at the time and on the date specified by you in the written notice given by you of the Underwriters election to purchase the Option Shares, or such other time and date as you and the Company may agree upon in writing, such time and date being referred to herein as the Option Closing Date. Such certificates will be made available for checking and packaging at least twenty four hours prior to the Closing Date for or the Firm Shares to be purchased by such Underwriter or Underwriters. Any such payment by you shall not relieve any such Underwriter or Underwriters of any of its or their obligations hereunder. After Option Closing Date, as the Registration Statement becomes effectivecase may be, the several Underwriters intend to make a public offering (as such term is described in Section 11 hereof) of the Firm Shares at a public offering price of $_____ per share. After the public offering, the several Underwriters may, in their discretion, vary the public offering price. The information set forth in the second and eighth paragraphs under the caption "Underwriting" in any Preliminary Prospectus and in the Prospectus constitutes the only information furnished location as may be designated by the Underwriters to the Company for inclusion in any Preliminary Prospectus, the Prospectus or the Registration Statement or any Incorporated Document, and you, on behalf of the respective Underwriters, represent and warrant to the Company and the Selling Stockholders that the statements made therein do not include any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading.
Appears in 1 contract
Samples: Possis Medical Inc
Purchase, Sale and Delivery of Shares. On the basis of the representations, warranties and agreements herein contained, but subject to the terms and conditions herein set forth, the Company and the Selling Stockholders agreeStockholders, severally and not jointly, agree to sell to the UnderwritersUnderwriters named in Schedule A hereto, and each Underwriter agreesthe Underwriters agree, severally and not jointly, to purchase from the Company and the Selling Stockholders, respectively, at a purchase price of $_____ per share, 4,000,000 Firm Shares from the Company and the respective number of Company Shares and Selling Stockholder Firm Shares set forth opposite the names of the Company and the Selling Stockholders, respectively, Stockholders in Schedule B heretohereto at the price per share set forth in the Pricing Agreement. The obligation of each Underwriter to the Company and to each Selling Stockholder shall be to purchase from the Company or such Selling Stockholder that number of Company Shares or Selling Stockholder Shares, as the case may be, full shares which (as nearly as practicable, as determined by you) is in bears to 4,000,000, the same proportion to the number of Company Shares or Selling Stockholder Shares, as the case may be, set forth opposite the name of the Company or such Selling Stockholder in Schedule B hereto as the number of Firm Shares which is set forth opposite the name of such Underwriter in Schedule A hereto (subject to adjustment as provided in Section 10) is bears to the total number of Firm Shares to be purchased by all the Underwriters under this Agreement. The certificates in negotiable form or properly executed option exercise forms for the obligation of each Underwriter to each Selling Stockholder Shares have been placed in custody (for delivery under this Agreement) under the Custody Agreement. Each shall be to purchase from such Selling Stockholder agrees that the certificates or executed option exercise forms for number of full shares which (as nearly as practicable, as determined by you) bears to the Selling Stockholder number of Firm Shares set forth opposite the name of such Selling Stockholder so held in custody are subject Schedule B hereto, the same proportion as the number of Shares set forth opposite the name of such Underwriter in Schedule A hereto bears to the interests total number of the Underwriters hereunder, that the arrangements made by such Selling Stockholder for such custody, including the Power of Attorney is to that extent irrevocable and that the obligations of such Selling Stockholder hereunder shall not be terminated by the act of such Selling Stockholder or by operation of law, whether by the death or incapacity of such Selling Stockholder or the occurrence of any other event, except as specifically provided herein or in the Custody Agreement. If any Selling Stockholder should die or be incapacitated, or if any other such event should occur, before the delivery of the certificates for the Selling Stockholder Shares hereunder, the Selling Stockholder Shares to be sold by such Selling Stockholder shall, except as specifically provided herein or in the Custody Agreement, be delivered by the Custodian in accordance with the terms and conditions of this Agreement as if such death, incapacity or other event had not occurred, regardless of whether the Custodian shall have received notice of such death or other event. Delivery of definitive certificates for the Firm Shares to be purchased by all Underwriters under this Agreement. The public offering price and the Underwriters pursuant to this Section 3 purchase price shall be made set forth in the Pricing Agreement. At 10:00 A.M., New York Time, on the fourth business day, if permitted under Rule 15c6-1 under the Exchange Act, (or the third business day if required under Rule 15c6-1 under the Exchange Act or unless postponed in accordance with the provisions of Section 12) following the date the Registration Statement becomes effective (or, if the Company has elected to rely upon Rule 430A, the fourth business day, if permitted under Rule 15c6-1 under the Exchange Act, (or the third business day if required under Rule 15c6-1 under the Exchange Act) after execution of the Pricing Agreement), or such other time not later than ten business days after such date as shall be agreed upon by the Representatives and the Company, the Company and the Custodian will deliver to you at the offices of counsel for the Company or through the facilities of The Depository Trust Company for the accounts of the several Underwriters, certificates representing the Firm Shares to be sold by the Company and for the benefit of the Selling Stockholders, respectively, against payment of the purchase price therefor by the several Underwriters by certified delivery of federal or official bank check or checks drawn in next-day funds, payable to the order of the Company with regard to the Shares being purchased from the Company, and to the order of the Custodian for the respective accounts of the Selling Stockholders with regard to the Shares being purchased from such Selling Stockholders (and the Company and such Selling Stockholders agree not to deposit and to cause the Custodian not to deposit any such check in the bank on which it is drawn, and not to take any other action with the purpose or effect of receiving immediately available funds, until the business day following the date funds by wire transfer to an account of its delivery to the Company or the Custodian, as the case may be, and, in the event of any breach of the foregoing, the Company or the Selling Stockholders, as the case may be, shall reimburse the Underwriters for the interest lost and any other expenses borne by them by reason of such breach), at the offices of Xxxxxxx & XxXxxxxx, Los Angeles, California (or at such other place as may be agreed upon among the Representatives and the Company), at 7:00 A.M., San Francisco time (a) on the third (3rd) full business day following the first day that Shares are traded, (b) if this Agreement is executed and delivered after 1:30 P.M., San Francisco time, the fourth (4th) full business day following the day that this Agreement is executed and delivered or (c) at such other time and date not later than seven (7) full business days following the first day that Shares are traded as the Representatives and the Company and the Attorneys may determine (or at such Custodian given to the Underwriters not more than 48 hours prior thereto. Such time of delivery and date payment is herein referred to which payment and delivery shall have been postponed pursuant to Section 10 hereof), such time and date of payment and delivery being herein called as the "Closing Date;FIRST CLOSING DATE." PROVIDED, HOWEVER, that if the Company has not made available to the Representatives copies of the Prospectus within the time provided in Section 4(d) hereof, the Representatives may, in their sole discretion, postpone the Closing Date until no later than two (2) full business days following delivery of copies of the Prospectus to the Representatives. The certificates for the Firm Shares so to be so delivered will be in such denominations and registered in such names as you request by notice to the Company and the Custodian prior to 10:00 A.M., New York Time, on the second business day preceding the First Closing Date, and will be made available to you at such office or such other location including, without limitation, in New York City, as you may reasonably request City at the Company's expense for checking and packaging by the Representatives at least one (1) full 10:00 A.M., New York Time, on the business day prior preceding the First Closing Date. Payment for the Firm Shares so to be delivered shall be made at the time and in the manner described above at the offices of counsel for the Underwriters. In addition, on the basis of the representations, warranties and agreements herein contained, but subject to the Closing Date terms and will conditions herein set forth, the Company and the Selling Stockholders hereby grant an option to the several Underwriters to purchase, severally and not jointly, up to an aggregate of 675,000 Option Shares, at the same purchase price per share to be paid for the Firm Shares, for use solely in such covering any overallotments made by the Underwriters in the sale and distribution of the Firm Shares. The option granted hereunder may be exercised at any time (but not more than once) within 30 days after the date of the public offering upon notice by you to the Company and the Agent setting forth the aggregate number of Option Shares as to which the Underwriters are exercising the option, the names and denominations as you may request, in which the certificates for such request shares are to be made registered and the time and place at least two which such certificates will be delivered. Such time of delivery (2) which may not be earlier than the First Closing Date), being herein referred to as the "SECOND CLOSING DATE," shall be determined by you, but if at any time other than the First Closing Date, shall not be earlier than three nor later than 10 full business days prior to the Closing Date. If the Representatives so elect, after delivery of such notice of exercise. The number of Option Shares to be purchased from the Firm Company and each Selling Stockholder is set forth in Schedule B hereto. The maximum number of Option Shares that may be made purchased by credit through full fast transfer each Underwriter shall be determined by multiplying the number of Option Shares to the accounts at The Depository Trust Company designated be sold by the Representatives. It Company and the Selling Stockholders pursuant to such notice of exercise by a fraction, the numerator of which is understood that you, individually, and not as the Representatives number of the several Underwriters, may (but shall not be obligated to) make payment of the purchase price on behalf of any Underwriter or Underwriters whose check or checks shall not have been received by you prior to the Closing Date for the Firm Shares to be purchased by such Underwriter or Underwritersas set forth opposite its name in Schedule A and the denominator of which is the total number of Firm Shares (subject to such adjustments to eliminate any fractional share purchases as you in your absolute discretion may make). Any such Certificates for the Option Shares will be made available at the Company's expense for checking and packaging in New York City at 10:00 A.M., New York Time, on the business day preceding the Second Closing Date. The manner of payment by you for and delivery of the Option Shares shall not relieve any such Underwriter or Underwriters of any of its or their obligations hereunder. After be the Registration Statement becomes effective, the several Underwriters intend to make a public offering (same as such term is described in Section 11 hereof) of for the Firm Shares at a public offering price of $_____ per share. After the public offering, the several Underwriters may, in their discretion, vary the public offering price. The information set forth as specified in the second and eighth paragraphs under the caption "Underwriting" in any Preliminary Prospectus and in the Prospectus constitutes the only information furnished by the Underwriters to the Company for inclusion in any Preliminary Prospectus, the Prospectus or the Registration Statement or any Incorporated Document, and you, on behalf of the respective Underwriters, represent and warrant to preceding paragraph. You have advised the Company and the Selling Stockholders that each Underwriter has authorized you to accept delivery of its Shares and to make payment and receipt therefor. You, individually and not as the statements made therein do not include Representatives of the Underwriters, may make payment for any untrue statement of a material fact or omit to state a material fact required Shares to be stated therein purchased by any Underwriter whose funds shall not have been received by you by the First Closing Date or necessary to make the statements thereinSecond Closing Date, in as the light case may be, for the account of the circumstances under which they were madesuch Underwriter, but any such payment shall not misleadingrelieve such Underwriter from any obligation hereunder.
Appears in 1 contract
Samples: McSi Inc
Purchase, Sale and Delivery of Shares. On the basis of the representations, warranties and agreements herein contained, but subject to the terms and conditions herein set forth, the Company and the Selling Stockholders Shareholders agree, severally and not jointly, to sell to the Underwriters, and each Underwriter agrees, severally and not jointly, to purchase from the Company and the Selling StockholdersShareholders, respectively, at a purchase price of $_____ per share, the respective number of Company Shares as hereinafter set forth and Selling Stockholder Shareholder Shares set forth opposite the names of the Company and the Selling Stockholders, respectively, Shareholders in Schedule B hereto. The obligation of each Underwriter to the Company and to each Selling Stockholder Shareholder shall be to purchase from the Company or such Selling Stockholder Shareholder that number of Company Shares or Selling Stockholder Shareholder Shares, as the case may be, which (as nearly as practicable, as determined by you) is in the same proportion to the number of Company Shares or Selling Stockholder Shareholder Shares, as the case may be, set forth opposite the name of the Company or such Selling Stockholder Shareholder in Schedule B hereto as the number of Firm Shares which is set forth opposite the name of such Underwriter in Schedule A hereto (subject to adjustment as provided in Section 10) is to the total number of Firm Shares to be purchased by all the Underwriters under this Agreement. The certificates in negotiable form or properly executed option exercise forms for the Selling Stockholder Shareholder Shares have been placed in custody (for delivery under this Agreement) under the Custody Agreement. Each Selling Stockholder Shareholder agrees that the certificates or executed option exercise forms for the Selling Stockholder Shareholder Shares of such Selling Stockholder Shareholder so held in custody are subject to the interests of the Underwriters hereunder, that the arrangements made by such Selling Stockholder Shareholder for such custody, including the Power of Attorney is to that extent irrevocable and that the obligations of such Selling Stockholder Shareholder hereunder shall not be terminated by the act of such Selling Stockholder Shareholder or by operation of law, whether by the death or incapacity of such Selling Stockholder Shareholder or the occurrence of any other event, except as specifically provided herein or in the Custody Agreement. If any Selling Stockholder Shareholder should die or be incapacitated, or if any other such event should occur, before the delivery of the certificates for the Selling Stockholder Shareholder Shares hereunder, the Selling Stockholder Shareholder Shares to be sold by such Selling Stockholder Shareholder shall, except as specifically provided herein or in the Custody Agreement, be delivered by the Custodian in accordance with the terms and conditions of this Agreement as if such death, incapacity or other event had not occurred, regardless of whether the Custodian shall have received notice of such death or other event. Delivery of definitive certificates for the Firm Shares to be purchased by the Underwriters pursuant to this Section 3 shall be made against payment of the purchase price therefor by the several Underwriters by certified or official bank check or checks drawn in nextwire transfer of same-day funds, payable to the order of the Company with regard to the Shares being purchased from the Company, and to the order of the Custodian for the respective accounts of the Selling Stockholders Shareholders with regard to the Shares being purchased from such Selling Stockholders (and the Company and such Selling Stockholders agree not to deposit and to cause the Custodian not to deposit any such check in the bank on which it is drawn, and not to take any other action with the purpose or effect of receiving immediately available funds, until the business day following the date of its delivery to the Company or the Custodian, as the case may be, and, in the event of any breach of the foregoing, the Company or the Selling Stockholders, as the case may be, shall reimburse the Underwriters for the interest lost and any other expenses borne by them by reason of such breach), Shareholders at the offices of Long Aldrxxxx & Xormxx XXX, 303 Xxxxxxxxx Xxxxxx, X.X., Xxxxx 0000, Xxxxxxx, Xxxxxxx & XxXxxxxx, Los Angeles, California 00000 (or xx at such other place as may be agreed upon among the Representatives and the Company), at 7:00 A.M., San Francisco time (a) on the third (3rd) full business day following the first day that Shares are traded, (b) if this Agreement is executed and delivered after 1:30 P.M., San Francisco time, the fourth (4th) full business day following the day that this Agreement is executed and delivered or (c) at such other time and date not later than seven (7) full business days following the first day that Shares are traded as the Representatives and the Company and the Attorneys may determine (or at such time and date to which payment and delivery shall have been postponed pursuant to Section 10 hereof), such time and date of payment and delivery being herein called the "Closing Date;" PROVIDEDprovided, HOWEVERhowever, that if the Company has not made available to the Representatives copies of the Prospectus within the time provided in Section 4(d) hereof, the Representatives may, in their sole discretion, postpone the Closing Date until no later than two (2) full business days following delivery of copies of the Prospectus to the Representatives. The certificates for the Firm Shares to be so delivered will be made available to you at such office or such other location including, without limitation, in New York City, as you may reasonably request for checking at least one (1) full business day prior to the Closing Date and will be in such names and denominations as you may request, such request to be made at least two (2) full business days prior to the Closing Date. If the Representatives so elect, delivery of the Firm Shares may be made by credit through full fast transfer to the accounts at The Depository Trust Company designated by the Representatives. It is understood that you, individually, and not as the Representatives of the several Underwriters, may (but shall not be obligated to) make payment of the purchase price on behalf of any Underwriter or Underwriters whose check or checks shall not have been received by you prior to the Closing Date for the Firm Shares to be purchased by such Underwriter or Underwriters. Any such payment by you shall not relieve any such Underwriter or Underwriters of any of its or their obligations hereunder. After the Registration Statement becomes effective, the several Underwriters intend to make a an initial public offering (as such term is described in Section 11 hereof) of the Firm Shares at a an initial public offering price of $_____ per share. After the initial public offering, the several Underwriters may, in their discretion, vary the public offering price. The information set forth in the second last paragraph on the front cover page (insofar as such information relates to the Underwriters), on the inside front cover concerning stabilization and over-allotment by the Underwriters, and under the first, third, seventh, eighth and ninth paragraphs under the caption "Underwriting" in any Preliminary Prospectus and in the Prospectus constitutes the only information furnished by the Underwriters to the Company for inclusion in any Preliminary Prospectus, the Prospectus or the Registration Statement or any Incorporated DocumentStatement, and you, on behalf of the respective Underwriters, represent and warrant to the Company and the Selling Stockholders Shareholders that the statements made therein do not include any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading.
Appears in 1 contract
Samples: Selling Shareholders (Profit Recovery Group International Inc)
Purchase, Sale and Delivery of Shares. On the basis of the representations, warranties and agreements herein contained, but subject to the terms and conditions herein set forth, the Company and the Selling Stockholders agree, severally and not jointly, to sell to the Underwriters, and each Underwriter agrees, severally and not jointly, to purchase from the Company and the Selling Stockholders, respectively, at a purchase price of $_____ per share, the respective number of Company Shares as hereinafter set forth and Selling Stockholder Shares set forth opposite the names of the Company and the Selling Stockholders, respectively, Stockholders in Schedule B hereto. The obligation of each Underwriter to the Company and to each Selling Stockholder shall be to purchase from the Company or such Selling Stockholder that number of Company Shares or Selling Stockholder Shares, as the case may be, which (as nearly as practicable, as determined by you) is in the same proportion to the number of Company Shares or Selling Stockholder Shares, as the case may be, set forth opposite the name of the Company or such Selling Stockholder in Schedule B hereto as the number of Firm Shares which is set forth opposite the name of such Underwriter in Schedule A hereto (subject to adjustment as provided in Section 10) is to the total number of Firm Shares to be purchased by all the Underwriters under this Agreement. The certificates in negotiable form or properly executed option exercise forms for the Selling Stockholder Shares have been placed in custody (for delivery under this Agreement) under the Custody Agreement. Each Selling Stockholder agrees that the certificates or executed option exercise forms for the Selling Stockholder Shares of such Selling Stockholder so held in custody are subject to the interests of the Underwriters hereunder, that the arrangements made by such Selling Stockholder for such custody, including the Power of Attorney is are, to that the extent enforceable by law, irrevocable and that the obligations of such Selling Stockholder hereunder shall not be terminated by the any act of such Selling Stockholder or by operation of law, whether by the death or incapacity of such Selling Stockholder or the occurrence of any other event, except as specifically provided herein or in the Custody Agreement. If any Selling Stockholder should die or be incapacitated, or if any other such event should occur, before the delivery of the certificates for the Selling Stockholder Shares hereunder, the Selling Stockholder Shares to be sold by such Selling Stockholder shall, except as specifically provided herein or in the Custody Agreement, be delivered by the Custodian in accordance with the terms and conditions of this Agreement as if such death, incapacity or other event had not occurred, regardless of whether the Custodian shall have received notice of such death or other event. Delivery of definitive certificates for the Firm Shares to be purchased by the Underwriters pursuant to this Section 3 shall be made against receipt of a wire transfer reference number issued by the Federal Reserve System evidencing payment of the purchase price therefor by the several Underwriters by certified or official bank check or checks drawn in next-day wire transfer of immediately available funds, payable to the order of an account specified in writing by the Company with regard to the Shares being purchased from the Company, and to the order of an account specified in writing by the Custodian for the respective accounts of the Selling Stockholders with regard to the Shares being purchased from such Selling Stockholders (and the Company and such Selling Stockholders agree not to deposit and to cause the Custodian not to deposit any such check in the bank on which it is drawn, and not to take any other action with the purpose or effect of receiving immediately available funds, until the business day following the date of its delivery to the Company or the Custodian, as the case may be, and, in the event of any breach of the foregoing, the Company or the Selling Stockholders, as the case may be, shall reimburse the Underwriters for the interest lost and any other expenses borne by them by reason of such breach), at the offices of Xxxxxxx & XxXxxxxxCoolxx Xxxward LLP, Los AngelesFive Palo Alto Square, California 3000 Xx Xxxxxx Xxxx, Xxxx Xxxx, XX 00000-0000 (or xx at such other place as may be agreed upon among the Representatives and the CompanyCompany and the Attorneys), at 7:00 A.M., San Francisco time (a) on the third (3rd) full business day following the first day that Shares are traded, (b) if this Agreement is executed and delivered after 1:30 P.M., San Francisco time, the fourth (4th) full business day following the day that this Agreement is executed and delivered delivered, or (c) at such other time and date not later than seven (7) full business days following the first day that Shares are traded as the Representatives and the Company and the Attorneys may determine (or at such time and date to which payment and delivery shall have been postponed pursuant to Section 10 hereof), such time and date of payment and delivery being herein called the "Closing Date;" PROVIDEDprovided, HOWEVERhowever, that if the Company has not made available to the Representatives copies of the Prospectus within the time provided in Section 4(d) hereof, the Representatives may, in their sole discretion, postpone the Closing Date until no later than two (2) full business days following delivery of copies of the Prospectus to the Representatives. The certificates for the Firm Shares to be so delivered will be made available to you at such office or such other location including, without limitation, in New York City, as you may reasonably request for checking at least one (1) full business day prior to the Closing Date and will be in such names and denominations as you may request, such request to be made at least two (2) full business days prior to the Closing Date. If the Representatives so elect, delivery of the Firm Shares may be made by credit through full fast transfer to the accounts at The Depository Trust Company designated by the Representatives. It is understood that you, individually, and not as the Representatives of the several Underwriters, may (but shall not be obligated to) make payment of the purchase price on behalf of any Underwriter or Underwriters whose check or checks shall not have been received by you prior to the Closing Date for the Firm Shares to be purchased by such Underwriter or Underwriters. Any such payment by you shall not relieve any such Underwriter or Underwriters of any of its or their obligations hereunder. After the Registration Statement becomes effective, the several Underwriters intend to make a an initial public offering (as such term is described in Section 11 hereof) of the Firm Shares at a an initial public offering price of $_____ per share. After the initial public offering, the several Underwriters may, in their discretion, vary the public offering price. The information set forth in the second last paragraph on the front cover page (insofar as such information relates to the Underwriters), on the inside front cover concerning stabilization and over-allotment by the Underwriters, and under the first, second, sixth and eighth paragraphs under the caption "Underwriting" in any Preliminary Prospectus and in the Prospectus constitutes the only information furnished by the Underwriters to the Company for inclusion in any Preliminary Prospectus, the Prospectus or the Registration Statement or any Incorporated DocumentStatement, and you, on behalf of the respective Underwriters, represent and warrant to the Company and the Selling Stockholders that the statements made therein do not include any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading.
Appears in 1 contract
Samples: First Virtual Corp
Purchase, Sale and Delivery of Shares. On the basis of the representations, warranties and agreements herein contained, but subject to the terms and conditions herein set forth, the Company and the Selling Stockholders agree, severally and not jointly, to sell to the Underwriters, and each Underwriter agrees, severally and not jointly, to purchase from the Company and the Selling Stockholders, respectively, at a purchase price of $_____ per share, the respective number of Company Firm Shares as hereinafter set forth and Selling Stockholder Shares set forth opposite the names of the Company and the Selling Stockholders, respectively, Stockholders in Schedule B hereto. The obligation of each Underwriter to the Company and to each Selling Stockholder shall be to purchase from the Company or such Selling Stockholder that number of Company Firm Shares or Selling Stockholder Shares, as the case may be, which (as nearly as practicable, as determined by you) is in the same proportion to the number of Company Shares or Selling Stockholder Shares, as the case may be, set forth opposite the name of the Company or such Selling Stockholder in Schedule B hereto as the number of Firm Shares which is set forth opposite the name of such Underwriter in Schedule A hereto (subject to adjustment as provided in Section 10) is to the total number of Firm Shares to be purchased by all the Underwriters under this Agreement. The certificates in negotiable form or properly executed option exercise forms for the Selling Stockholder Shares (or certificates representing securities convertible into such Shares) have been placed in custody (for delivery under this Agreement) under the Custody Agreement. Each Selling Stockholder agrees that the certificates or executed option exercise forms for the Selling Stockholder Shares of such Selling Stockholder so held in custody are subject to the interests of the Underwriters hereunder, that the arrangements made by such Selling Stockholder for such custody, including the Power of Attorney is to that extent irrevocable and that the obligations of such Selling Stockholder hereunder shall not be terminated by the act of such Selling Stockholder or by operation of law, whether by the death or incapacity of such Selling Stockholder or the occurrence of any other event, except as specifically provided herein or in the Custody Agreement. If any Selling Stockholder should die or be incapacitated, or if any other such event should occur, before the delivery of the certificates for the Selling Stockholder Shares hereunder, the Selling Stockholder Shares to be sold by such Selling Stockholder shall, except as specifically provided herein or in the Custody Agreement, be delivered by the Custodian in accordance with the terms and conditions of this Agreement as if such death, incapacity or other event had not occurred, regardless of whether the Custodian shall have received notice of such death or other event. Delivery of definitive certificates for the Firm Shares to be purchased by the Underwriters pursuant to this Section 3 shall be made against payment of the purchase price therefor by the several Underwriters by certified or official bank check or checks drawn in next-day funds, payable to the order of the Company with regard to the Shares being purchased from the Company, and to the order of the Custodian for the respective accounts of the Selling Stockholders with regard to the Shares being purchased from such Selling Stockholders (and the Company and such Selling Stockholders agree not to deposit and to cause the Custodian not to deposit any such check in the bank on which it is drawn, and not to take any other action with the purpose or effect of receiving immediately available funds, until the business day following the date of its delivery to the Company or the Custodian, as the case may be, and, in the event of any breach of the foregoing, the Company or the Selling Stockholders, as the case may be, shall reimburse the Underwriters for the interest lost and any other expenses borne by them by reason of such breach), at the offices of Xxxxxxx & XxXxxxxx, Los Angeles, California (or at such other place as may be agreed upon among the Representatives and the Company), at 7:00 A.M., San Francisco time (a) on the third (3rd) full business day following the first day that Shares are traded, (b) if this Agreement is executed and delivered after 1:30 P.M., San Francisco time, the fourth (4th) full business day following the day that this Agreement is executed and delivered or (c) at such other time and date not later than seven (7) full business days following the first day that Shares are traded as the Representatives and the Company and the Attorneys may determine (or at such time and date to which payment and delivery shall have been postponed pursuant to Section 10 hereof), such time and date of payment and delivery being herein called the "Closing Date;" PROVIDED, HOWEVER, that if the Company has not made available to the Representatives copies of the Prospectus within the time provided in Section 4(d) hereof, the Representatives may, in their sole discretion, postpone the Closing Date until no later than two (2) full business days following delivery of copies of the Prospectus to the Representatives. The certificates for the Firm Shares to be so delivered will be made available to you at such office or such other location including, without limitation, in New York City, as you may reasonably request for checking at least one (1) full business day prior to the Closing Date and will be in such names and denominations as you may request, such request to be made at least two (2) full business days prior to the Closing Date. If the Representatives so elect, delivery of the Firm Shares may be made by credit through full fast transfer to the accounts at The Depository Trust Company designated by the Representatives. It is understood that you, individually, and not as the Representatives of the several Underwriters, may (but shall not be obligated to) make payment of the purchase price on behalf of any Underwriter or Underwriters whose check or checks shall not have been received by you prior to the Closing Date for the Firm Shares to be purchased by such Underwriter or Underwriters. Any such payment by you shall not relieve any such Underwriter or Underwriters of any of its or their obligations hereunder. After the Registration Statement becomes effective, the several Underwriters intend to make a public offering (as such term is described in Section 11 hereof) of the Firm Shares at a public offering price of $_____ per share. After the public offering, the several Underwriters may, in their discretion, vary the public offering price. The information set forth in the second and eighth paragraphs under the caption "Underwriting" in any Preliminary Prospectus and in the Prospectus constitutes the only information furnished by the Underwriters to the Company for inclusion in any Preliminary Prospectus, the Prospectus or the Registration Statement or any Incorporated Document, and you, on behalf of the respective Underwriters, represent and warrant to the Company and the Selling Stockholders that the statements made therein do not include any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading.if
Appears in 1 contract
Samples: Concur Technologies Inc
Purchase, Sale and Delivery of Shares. (a) On the basis of the representations, warranties and agreements herein contained, but subject to the terms and conditions herein set forth, the Company agrees to issue and sell the Firm Shares to the several Underwriters, and the Selling Stockholders several Underwriters agree, severally and not jointly, to sell purchase the Firm Shares set forth opposite the names of the Underwriters in Schedule I hereto. The purchase price to be paid by the Underwriters to the UnderwritersCompany for each Firm Share shall be $9.40per share; provided however, that the purchase price for each Firm Share sold to officers, directors, owners of 5% or greater of any class of the Company’s equity securities, affiliates of any of the foregoing and each Underwriter agreescertain investors previously identified to the Representative (the “Excluded Parties”) shall be $10.00 per share. The Company hereby grants to the Underwriters the option to purchase some or all of the Option Shares and, upon the basis of the warranties and representations and subject to the terms and conditions herein set forth, the Underwriters shall have the right, severally and not jointly, to purchase from at the Company and the Selling Stockholders, respectively, at a purchase price of $_____ per share, the respective number of Company Shares and Selling Stockholder Shares prices set forth opposite the names in Section 4(a) all or any portion of the Company and the Selling Stockholders, respectively, in Schedule B hereto. The obligation of each Underwriter to the Company and to each Selling Stockholder shall be to purchase from the Company or such Selling Stockholder that number of Company Option Shares or Selling Stockholder Shares, as the case may be, which (as nearly as practicable, as determined by you) is in the same proportion to the number of Company Shares or Selling Stockholder Shares, as the case may be, set forth opposite the name of the Company or such Selling Stockholder in Schedule B hereto as the number of Firm Shares which is set forth opposite the name of such Underwriter in Schedule A hereto (subject to adjustment as provided in Section 10) is to the total number of Firm Shares to be purchased by all the Underwriters under this Agreement. The certificates in negotiable form or properly executed option exercise forms for the Selling Stockholder Shares have been placed in custody (for delivery under this Agreement) under the Custody Agreement. Each Selling Stockholder agrees that the certificates or executed option exercise forms for the Selling Stockholder Shares of such Selling Stockholder so held in custody are subject to the interests of the Underwriters hereunder, that the arrangements made by such Selling Stockholder for such custody, including the Power of Attorney is to that extent irrevocable and that the obligations of such Selling Stockholder hereunder shall not be terminated by the act of such Selling Stockholder or by operation of law, whether by the death or incapacity of such Selling Stockholder or the occurrence of any other event, except as specifically provided herein or in the Custody Agreement. If any Selling Stockholder should die or be incapacitated, or if any other such event should occur, before the delivery of the certificates for the Selling Stockholder Shares hereunder, the Selling Stockholder Shares to be sold by such Selling Stockholder shall, except as specifically provided herein or in the Custody Agreement, be delivered by the Custodian in accordance with the terms and conditions of this Agreement as if such death, incapacity or other event had not occurred, regardless of whether the Custodian shall have received notice of such death or other event. Delivery of definitive certificates for the Firm Shares to be purchased by the Underwriters pursuant to this Section 3 shall be made against payment of the purchase price therefor by the several Underwriters by certified or official bank check or checks drawn in next-day funds, payable to the order of the Company with regard to the Shares being purchased from the Company, and to the order of the Custodian for the respective accounts of the Selling Stockholders with regard to the Shares being purchased from such Selling Stockholders (and the Company and such Selling Stockholders agree not to deposit and to cause the Custodian not to deposit any such check in the bank on which it is drawn, and not to take any other action with the purpose or effect of receiving immediately available funds, until the business day following the date of its delivery to the Company or the Custodian, as the case may be, and, in the event of any breach of the foregoing, the Company or the Selling Stockholders, as the case may be, shall reimburse the Underwriters for the interest lost and any other expenses borne by them by reason of such breach), at the offices of Xxxxxxx & XxXxxxxx, Los Angeles, California (or at such other place as may be agreed upon among necessary to cover over-allotments made in connection with the Representatives and the Company), at 7:00 A.M., San Francisco time (a) on the third (3rd) full business day following the first day that Shares are traded, (b) if this Agreement is executed and delivered after 1:30 P.M., San Francisco time, the fourth (4th) full business day following the day that this Agreement is executed and delivered or (c) at such other time and date not later than seven (7) full business days following the first day that Shares are traded as the Representatives and the Company and the Attorneys may determine (or at such time and date to which payment and delivery shall have been postponed pursuant to Section 10 hereof), such time and date of payment and delivery being herein called the "Closing Date;" PROVIDED, HOWEVER, that if the Company has not made available to the Representatives copies of the Prospectus within the time provided in Section 4(d) hereof, the Representatives may, in their sole discretion, postpone the Closing Date until no later than two (2) full business days following delivery of copies of the Prospectus to the Representativestransactions contemplated hereby. The certificates for the Firm Shares purchase price to be so delivered will be made available to you at such office or such other location including, without limitation, in New York City, as you may reasonably request for checking at least one (1) full business day prior to the Closing Date and will be in such names and denominations as you may request, such request to be made at least two (2) full business days prior to the Closing Date. If the Representatives so elect, delivery of the Firm Shares may be made by credit through full fast transfer to the accounts at The Depository Trust Company designated by the Representatives. It is understood that you, individually, and not as the Representatives of the several Underwriters, may (but shall not be obligated to) make payment of the purchase price on behalf of any Underwriter or Underwriters whose check or checks shall not have been received by you prior to the Closing Date for the Firm Shares to be purchased by such Underwriter or Underwriters. Any such payment by you shall not relieve any such Underwriter or Underwriters of any of its or their obligations hereunder. After the Registration Statement becomes effective, the several Underwriters intend to make a public offering (as such term is described in Section 11 hereof) of the Firm Shares at a public offering price of $_____ per share. After the public offering, the several Underwriters may, in their discretion, vary the public offering price. The information set forth in the second and eighth paragraphs under the caption "Underwriting" in any Preliminary Prospectus and in the Prospectus constitutes the only information furnished paid by the Underwriters to the Company for inclusion in each Option Share shall be $9.40 per share; provided however, that the purchase price for each Option Share sold to the Excluded Parties shall be $10.00 per share. This option may be exercised by the Underwriters at any Preliminary Prospectustime and from time to time on or before the thirtieth (30th) day following the date hereof, by written notice to the Prospectus or Company (the Registration Statement or any Incorporated Document“Option Notice”). The Option Notice shall set forth the aggregate number of Option Shares as to which the option is being exercised, and youthe date and time when the Option Shares are to be delivered (such date and time being herein referred to as the “Option Closing Date”); provided, however, that the Option Closing Date shall not be earlier than the Closing Date (as defined below) nor earlier than the first business day after the date on behalf of which the respective Underwriters, represent and warrant to option shall have been exercised nor later than the fifth business day after the date on which the option shall have been exercised unless the Company and the Selling Stockholders that the statements made therein do not include any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleadingRepresentative otherwise agree.
Appears in 1 contract
Purchase, Sale and Delivery of Shares. On the basis of the -------------------------------------- representations, warranties warranties, and agreements herein contained, but subject to the terms and conditions herein set forth, the Company and the Selling Stockholders agree, acting severally and not jointly, to sell to the Underwriters, and each Underwriter agrees, acting severally and not jointly, to purchase from the Company and the Selling Stockholders, respectively, at a purchase price of $______ per share, the respective number of Company Shares and Selling Stockholder Shares set forth opposite the names of the Company and the Selling Stockholders, respectively, Stockholders in Schedule B hereto. The obligation of each Underwriter to the Company and to each Selling Stockholder shall be to purchase from the Company or such Selling Stockholder that number of Company Shares or Selling Stockholder Shares, as the case may be, which (as nearly as practicable, as determined by you) is in the same proportion to the number of Company Shares or Selling Stockholder Shares, as the case may be, set forth opposite the name of the Company or such Selling Stockholder in Schedule B hereto as the number of Firm Shares which is set forth opposite the name of such Underwriter in Schedule A hereto (subject to adjustment as provided in Section 10) is to the total number of Firm Shares to be purchased by all the Underwriters under this Agreement. The certificates in negotiable form or properly executed option exercise forms for the Selling Stockholder Shares have been placed in custody (for delivery under this Agreement) under the Custody AgreementAgreement and Power of Attorney. Each Selling Stockholder agrees that the certificates or executed option exercise forms for the Selling Stockholder Shares of such Selling Stockholder so held in custody are subject to the interests of the Underwriters hereunder, that the arrangements made by such Selling Stockholder for such custody, including the power of attorney included in the Custody Agreement and Power of Attorney is Attorney, are to that extent irrevocable irrevocable, and that the obligations of such Selling Stockholder hereunder shall not be terminated by the act of such Selling Stockholder or by operation of law, whether by the death or incapacity of such Selling Stockholder or the occurrence of any other event, except as specifically provided herein or in the Custody AgreementAgreement and Power of Attorney. If any Selling Stockholder should die or be become incapacitated, or if any other such event should occur, before the delivery of the certificates for the Selling Stockholder Shares hereunder, the Selling Stockholder Shares to be sold by such Selling Stockholder shall, except as specifically provided herein or in the Custody AgreementAgreement and Power of Attorney, be delivered by the Custodian in accordance with the terms and conditions of this Agreement as if such death, incapacity or other event had not occurred, regardless of whether the Custodian shall have received notice of such death or other event. Delivery of definitive certificates for the Firm Shares to be purchased by the Underwriters pursuant to this Section 3 shall be made against payment of the purchase price therefor by the several Underwriters by certified or official bank check or checks drawn in next-day funds, payable wire transfer of immediately available funds to the order of the Company with regard respect to the Shares being purchased from the CompanyCompany Shares, and to the order of the Custodian Attorneys for the respective accounts of the Selling Stockholders with regard respect to the Selling Stockholder Shares being purchased from such Selling Stockholders (Stockholders. Such delivery and the Company and such Selling Stockholders agree not to deposit and to cause the Custodian not to deposit any such check in the bank on which it is drawn, and not to payment shall take any other action with the purpose or effect of receiving immediately available funds, until the business day following the date of its delivery to the Company or the Custodian, as the case may be, and, in the event of any breach of the foregoing, the Company or the Selling Stockholders, as the case may be, shall reimburse the Underwriters for the interest lost and any other expenses borne by them by reason of such breach), place at the offices Chicago office of Xxxxxxx Winston & XxXxxxxx, Los Angeles, California Xxxxxx (or at such other place as may be agreed upon among the Representatives Representatives, the Company, and the Company), Attorneys) at 7:00 A.M., San Francisco time 9:00 A.M. (aChicago time) on the third (3rd) full business day following the first day that Shares are traded, (b) if date of this Agreement is executed and delivered after 1:30 P.M., San Francisco time, the fourth (4th) full business day following the day that this Agreement is executed and delivered or (c) at such other time and date not later than seven (7) full business days following the first day that Shares are traded as the Representatives and Representatives, the Company Company, and the Attorneys may determine (or at such time and date to which payment and delivery shall have been postponed pursuant to Section 10 hereof), such time and date of payment and delivery being herein called the "Closing Date;" PROVIDED"; provided, HOWEVERhowever, that if the Company has not made available to the -------- ------- Representatives copies of the Prospectus within the time provided in Section 4(d) hereof, the Representatives may, in their sole discretion, postpone the Closing Date until no later than two (2) full business days following delivery of copies of the Prospectus to the Representatives. The certificates for the Firm Shares to be so delivered will be made available to you at such office or such other location location, including, without limitation, in New York City, as you may reasonably request for checking at least one (1) full business day prior to the Closing Date and will be in such names and denominations as you may request, such request to be made at least two (2) full business days prior to the Closing Date. If the Representatives so elect, delivery of the Firm Shares may be made by credit through full fast transfer to the accounts at The Depository Trust Company designated by the Representatives. It is understood that you, individually, and not as the Representatives of the several Underwriters, may (but shall not be obligated to) make payment of the purchase price on behalf of any Underwriter or Underwriters whose check payment or checks payments shall not have been received by you prior to the Closing Date for the Firm Shares to be purchased by such Underwriter or Underwriters. Any such payment by you shall not relieve any such Underwriter or Underwriters of any of its or their obligations hereunder. After the Registration Statement becomes effective, the several Underwriters intend to make a an initial public offering (as such term is described in Section 11 hereof) of the Firm Shares at a an initial public offering price of $____________ per share. After the initial public offering, the several Underwriters may, in their discretion, vary the public offering price. The information set forth in the second last paragraph on the front cover page and eighth paragraphs under the caption "Underwriting" (insofar as such information relates to the Underwriters) in any Preliminary Prospectus and in the Prospectus constitutes the only information furnished by the Underwriters to the Company for inclusion in any Preliminary Prospectus, the Prospectus or Prospectus, the Registration Statement Statement, or any Incorporated Document, and you, on behalf of the respective Underwriters, represent and warrant to the Company and the Selling Stockholders that the statements made therein do not include any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading.
Appears in 1 contract
Purchase, Sale and Delivery of Shares. On the basis of the ------------------------------------- representations, warranties and agreements herein contained, but subject to the terms and conditions herein set forth, the Company and the Selling Stockholders Stockholder agree, severally and not jointly, to sell to the Underwriters, and each Underwriter agrees, severally and not jointly, to purchase from the Company and the Selling Stockholders, respectivelyStockholder, at a purchase price of $_____ per share, the respective number of Company Shares as hereinafter set forth and Selling Stockholder Shares set forth opposite the names of the Company and the Selling Stockholders, respectively, Stockholder in Schedule B hereto. The ---------- obligation of each Underwriter to the Company and to each the Selling Stockholder shall be to purchase from the Company or such Selling Stockholder that number of Company Shares or Selling Stockholder Shares, as the case may be, which (as nearly as practicable, as determined by you) is in the same proportion to the number of Company Shares or Selling Stockholder Shares, as the case may be, set forth opposite the name of the Company or such Selling Stockholder in Schedule B hereto as the number of Firm Shares which is set forth opposite the ---------- name of such Underwriter in Schedule A hereto (subject to adjustment as provided ---------- in Section 10) is to the total number of Firm Shares to be purchased by all the Underwriters under this Agreement. The certificates in negotiable form or properly executed option exercise forms for the Selling Stockholder Shares have been placed in custody (for delivery under this Agreement) under the Custody Agreement. Each The Selling Stockholder agrees that the certificates or executed option exercise forms for the Selling Stockholder Shares of such Selling Stockholder so held in custody are subject to the interests of the Underwriters hereunder, that the arrangements made by such Selling Stockholder for such custody, including the Power of Attorney is to that extent irrevocable and that the obligations of such Selling Stockholder hereunder shall not be terminated by the act of such Selling Stockholder or by operation of law, whether by the death or incapacity of such Selling Stockholder or the occurrence of any other event, except as specifically provided herein or in the Custody Agreement. If any the Selling Stockholder should die or be incapacitated, or if any other such event should occur, before the delivery of the certificates for the Selling Stockholder Shares hereunder, the Selling Stockholder Shares to be sold by such Selling Stockholder shall, except as specifically provided herein or in the Custody Agreement, be delivered by the Custodian in accordance with the terms and conditions of this Agreement as if such death, incapacity or other event had not occurred, regardless of whether the Custodian shall have received notice of such death or other event. Delivery of definitive certificates for the Firm Shares to be purchased by the Underwriters pursuant to this Section 3 shall be made against payment of the purchase price therefor by the several Underwriters by certified or official bank check or checks drawn in next-day funds, payable to the order of the Company with regard to the Shares being purchased from the Company, and to the order of the Custodian for the respective accounts account of the Selling Stockholders Stockholder with regard to the Shares being purchased from such Selling Stockholders Stockholder (and the Company and such Selling Stockholders Stockholder agree not to deposit and to cause the Custodian not to deposit any such check in the bank on which it is drawn, and not to take any other action with the purpose or effect of receiving immediately available funds, until the business day following the date of its delivery to the Company or the Custodian, as the case may be, and, in the event of any breach of the foregoing, the Company or the Selling StockholdersStockholder, as the case may be, shall reimburse the Underwriters for the interest lost and any other expenses borne by them by reason of such breach), at the offices of Skadden, Arps, Slate, Xxxxxxx & XxXxxxxxXxxx, Los AngelesLLP, California 000 Xxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000- 3897 (or at such other place as may be agreed upon among the Representatives and the CompanyCompany and the Attorneys), at 7:00 10:00 A.M., San Francisco New York time (a) on the third (3rd) full business day following the first day that Shares are traded, (b) if this Agreement is executed and delivered after 1:30 4:30 P.M., San Francisco New York time, the fourth (4th) full business day following the day that this Agreement is executed and delivered or (c) at such other time and date not later than seven (7) full business days following the first day that Shares are traded as the Representatives and the Company and the Attorneys may determine (or at such time and date to which payment and delivery shall have been postponed pursuant to Section 10 hereof), such time and date of payment and delivery being herein called the "Closing Date;" PROVIDEDprovided, HOWEVERhowever, that if the Company has not made -------- ------- available to the Representatives copies of the Prospectus within the time provided in Section 4(d) hereof, the Representatives may, in their sole discretion, postpone the Closing Date until no later than two (2) full business days following delivery of copies of the Prospectus to the Representatives. The certificates for the Firm Shares to be so delivered will be made available to you at such office or such other location including, without limitation, in New York City, as you may reasonably request for checking at least one (1) full business day prior to the Closing Date and will be in such names and denominations as you may request, such request to be made at least two (2) full business days prior to the Closing Date. If the Representatives so elect, delivery of the Firm Shares may be made by credit through full fast transfer to the accounts at The Depository Trust Company designated by the Representatives. It is understood that you, individually, and not as the Representatives of the several Underwriters, may (but shall not be obligated to) make payment of the purchase price on behalf of any Underwriter or Underwriters whose check or checks shall not have been received by you prior to the Closing Date for the Firm Shares to be purchased by such Underwriter or Underwriters. Any such payment by you shall not relieve any such Underwriter or Underwriters of any of its or their obligations hereunder. After the Registration Statement becomes effective, the several Underwriters intend to make a an initial public offering (as such term is described in Section 11 hereof) of the Firm Shares at a an initial public offering price of $_____ per share. After the initial public offering, the several Underwriters may, in their discretion, vary the public offering price. The information set forth in the second last paragraph on the front cover page (insofar as such information relates to the Underwriters), on the inside front cover concerning stabilization and eighth over-allotment by the Underwriters, and under the _____ and _____ paragraphs under the caption "Underwriting" in any Preliminary Prospectus and in the Prospectus constitutes the only information furnished by the Underwriters to the Company for inclusion in any Preliminary Prospectus, the Prospectus or the Registration Statement or any Incorporated DocumentStatement, and you, on behalf of the respective Underwriters, represent and warrant to the Company and the Selling Stockholders Stockholder that the statements made therein do not include any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading.
Appears in 1 contract
Purchase, Sale and Delivery of Shares. On the basis of the representations, warranties and agreements herein contained, but subject to the terms and conditions herein set forth, the Company and the Selling Stockholders agree, severally and not jointly, to sell to the Underwriters, and each Underwriter agrees, severally and not jointly, to purchase from the Company and the Selling Stockholders, respectively, at a purchase price of $_____ per share, the respective number of Company Shares and Selling Stockholder Shares as set forth opposite the names of the Company and the Selling Stockholders, respectively, Stockholders in Schedule B hereto. The obligation of each Underwriter to the Company and to each Selling Stockholder shall be to purchase from the Company or such Selling Stockholder that number of Company Shares or Selling Stockholder Shares, as the case may be, which that (as nearly as practicable, as determined by you) is in the same proportion to the number of Company Shares or Selling Stockholder Shares, as the case may be, set forth opposite the name of the Company or such Selling Stockholder in Schedule B hereto as the number of Firm Shares which is set forth opposite the name of such Underwriter in Schedule A hereto (subject to adjustment as provided in Section 10) is to the total number of Firm Shares to be purchased by all the Underwriters under this Agreement. The certificates in negotiable form or properly executed option exercise forms for the Selling Stockholder Shares have been placed in custody (for delivery under this Agreement) under the Custody Agreement. Each Selling Stockholder agrees that the certificates or executed option exercise forms for the Selling Stockholder Shares of such Selling Stockholder so held in custody are subject to the interests of the Underwriters hereunder, that the arrangements made by such Selling Stockholder for such custody, including the Power of Attorney Attorney, is to that extent irrevocable and that the obligations of such Selling Stockholder hereunder shall not be terminated by the act of such Selling Stockholder or by operation of law, whether by the death or incapacity of such Selling Stockholder or the occurrence of any other event, except as specifically provided herein or in the Custody Agreement. If any Selling Stockholder should die or be incapacitated, or if any other such event should occur, before the delivery of the certificates for the Selling Stockholder Shares hereunder, the Selling Stockholder Shares to be sold by such Selling Stockholder shall, except as specifically provided herein or in the Custody Agreement, be delivered by the Custodian in accordance with the terms and conditions of this Agreement as if such death, incapacity or other event had not occurred, regardless of whether the Custodian shall have received notice of such death or other event. Delivery of definitive certificates for the Firm Shares to be purchased by the Underwriters pursuant to this Section 3 shall be made against payment of the purchase price therefor by the several Underwriters by certified or official bank check or checks drawn in next-day funds, payable to the order of the Company with regard to the Shares being purchased from the Company, and to the order of the Custodian for the respective accounts of the Selling Stockholders with regard to the Shares being purchased from such Selling Stockholders (and the Company and such Selling Stockholders agree not to deposit and to cause the Custodian not to deposit any such check in the bank on which it is drawn, and not to take any other action with the purpose or effect of receiving immediately available funds, until the business day following the date of its delivery to the Company or the Custodian, as the case may be, and, in the event of any breach of the foregoing, the Company or the Selling Stockholders, as the case may be, shall reimburse the Underwriters for the interest lost and any other expenses borne by them by reason of such breach), at the offices of Xxxxxxx & XxXxxxxx, Los Angeles, California (or at such other place as may be agreed upon among the Representatives and the Company), at 7:00 A.M., San Francisco time (a) on the third (3rd) full business day following the first day that Shares are traded, (b) if this Agreement is executed and delivered after 1:30 P.M., San Francisco time, the fourth (4th) full business day following the day that this Agreement is executed and delivered or (c) at such other time and date not later than seven (7) full business days following the first day that Shares are traded as the Representatives and the Company and the Attorneys may determine (or at such time and date to which payment and delivery shall have been postponed pursuant to Section 10 hereof), such time and date of payment and delivery being herein called the "Closing Date;" PROVIDED, HOWEVER, that if the Company has not made available to the Representatives copies of the Prospectus within the time provided in Section 4(d) hereof, the Representatives may, in their sole discretion, postpone the Closing Date until no later than two (2) full business days following delivery of copies of the Prospectus to the Representatives. The certificates for the Firm Shares to be so delivered will be made available to you at such office or such other location including, without limitation, in New York City, as you may reasonably request for checking at least one (1) full business day prior to the Closing Date and will be in such names and denominations as you may request, such request to be made at least two (2) full business days prior to the Closing Date. If the Representatives so elect, delivery of the Firm Shares may be made by credit through full fast transfer to the accounts at The Depository Trust Company designated by the Representatives. It is understood that you, individually, and not as the Representatives of the several Underwriters, may (but shall not be obligated to) make payment of the purchase price on behalf of any Underwriter or Underwriters whose check or checks shall not have been received by you prior to the Closing Date for the Firm Shares to be purchased by such Underwriter or Underwriters. Any such payment by you shall not relieve any such Underwriter or Underwriters of any of its or their obligations hereunder. After the Registration Statement becomes effective, the several Underwriters intend to make a public offering (as such term is described in Section 11 hereof) of the Firm Shares at a public offering price of $_____ per share. After the public offering, the several Underwriters may, in their discretion, vary the public offering price. The information set forth in the second and eighth paragraphs under the caption "Underwriting" in any Preliminary Prospectus and in the Prospectus constitutes the only information furnished by the Underwriters to the Company for inclusion in any Preliminary Prospectus, the Prospectus or the Registration Statement or any Incorporated Document, and you, on behalf of the respective Underwriters, represent and warrant to the Company and the Selling Stockholders that the statements made therein do not include any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading.the
Appears in 1 contract
Purchase, Sale and Delivery of Shares. On the basis of the representations, warranties and agreements herein contained, but subject to the terms and conditions herein set forth, the Company and the Selling Stockholders Stockholder agree, severally and not jointly, to sell to the Underwriters, and each Underwriter agrees, severally and not jointly, to purchase from the Company and the Selling StockholdersStockholder, respectively, at a purchase price of $_____ per share, the respective number of Company Shares as hereinafter set forth and Selling Stockholder Shares set forth opposite the names of the Company and the Selling Stockholders, respectively, Stockholder in Schedule B hereto. The obligation of each Underwriter to the Company and to each the Selling Stockholder shall be to purchase from the Company or such the Selling Stockholder that number of Company Shares or Selling Stockholder Shares, as the case may be, which (as nearly as practicable, as determined by you) is in the same proportion to the number of Company Shares or Selling Stockholder Shares, as the case may be, set forth opposite the name of the Company or such the Selling Stockholder in Schedule B hereto as the number of Firm Shares which is set forth opposite the name of such Underwriter in Schedule A hereto (subject to adjustment as provided in Section 10) is to the total number of Firm Shares to be purchased by all the Underwriters under this Agreement. The certificates in negotiable form or properly executed option exercise forms for the Selling Stockholder Shares have been placed in custody (for delivery under this Agreement) under the Custody Agreement. Each The Selling Stockholder agrees that the certificates or executed option exercise forms for the Selling Stockholder Shares of such the Selling Stockholder so held in custody are subject to the interests of the Underwriters hereunder, that the arrangements made by such the Selling Stockholder for such custody, including the Power of Attorney Attorney, is to that extent irrevocable and that the obligations of such the Selling Stockholder hereunder shall not be terminated by the act of such the Selling Stockholder or by operation of law, whether by the death dissolution or incapacity liquidation of such the Selling Stockholder or the occurrence of any other such event, except as specifically provided herein or in the Custody Agreement. If any Selling Stockholder should die or be incapacitated, or if any other such event should occur, occur before the delivery of the certificates for the Selling Stockholder Shares hereunder, the Selling Stockholder Shares to be sold by such the Selling Stockholder shall, except as specifically provided herein or in the Custody Agreement, be delivered by the Custodian in accordance with the terms and conditions of this Agreement as if such death, incapacity or other event had not occurred, regardless of whether the Custodian shall have received notice of such death or other event. Delivery of definitive certificates for the Firm Shares to be purchased by the Underwriters pursuant to this Section 3 shall be made against payment of the purchase price therefor by the several Underwriters by certified or official bank check or checks drawn in next-wire transfer of same day funds, payable to the order of account designated by the Company with regard to the Shares being purchased from the Company, and to the order of account designated by the Custodian for the respective accounts account of the Selling Stockholders Stockholder with regard to the Shares being purchased from such Selling Stockholders (and the Company and such Selling Stockholders agree not to deposit and to cause the Custodian not to deposit any such check in the bank on which it is drawn, and not to take any other action with the purpose or effect of receiving immediately available funds, until the business day following the date of its delivery to the Company or the Custodian, as the case may be, and, in the event of any breach of the foregoing, the Company or the Selling Stockholders, as the case may be, shall reimburse the Underwriters for the interest lost and any other expenses borne by them by reason of such breach)Stockholder, at the offices of Xxxxxxx & XxXxxxxxXxxx and Xxxx LLP, Los Angeles00 Xxxxx Xxxxxx, California Xxxxxx, XX 00000 (or at such other place as may be agreed upon among the Representatives and the CompanyCompany and the Attorneys as defined in the Custody Agreement), at 7:00 A.M., San Francisco time (a) on the third (3rd) full business day following the first day that Shares are traded, (b) if this Agreement is executed and delivered after 1:30 P.M., San Francisco time, the fourth (4th) full business day following the day that this Agreement is executed and delivered or (c) at such other time and date not later than seven (7) full business days following the first day that Shares are traded as the Representatives and Representatives, the Company and the Attorneys may determine (or at such time and date to which payment and delivery shall have been postponed pursuant to Section 10 hereof), such time and date of payment and delivery being herein called the "Closing Date;" "; PROVIDED, HOWEVER, that if the Company has not made available to the Representatives copies of the Prospectus within the time provided in Section 4(d) hereof, the Representatives may, in their sole discretion, postpone the Closing Date until no later than two (2) full business days following delivery of copies of the Prospectus to the Representatives. The certificates for the Firm Shares to be so delivered will be made available to you at such office or such other location including, without limitation, in New York City, as you may reasonably request for checking at least one (1) full business day prior to the Closing Date and will be in such names and denominations as you may request, such request to be made at least two (2) full business days prior to the Closing Date. If the Representatives so elect, delivery of the Firm Shares may be made by credit through full fast transfer to the accounts at The Depository Trust Company designated by the Representatives. It is understood that you, individually, and not as the Representatives of the several Underwriters, may (but shall not be obligated to) make payment of the purchase price on behalf of any Underwriter or Underwriters whose check or checks shall not have been received by you prior to the Closing Date for the Firm Shares to be purchased by such Underwriter or Underwriters. Any such payment by you shall not relieve any such Underwriter or Underwriters of any of its or their obligations hereunder. After the Registration Statement becomes effective, the several Underwriters intend to make a an initial public offering (as such term is described in Section 11 hereof) of the Firm Shares at a an initial public offering price of $_____ per share. After the initial public offering, the several Underwriters may, in their discretion, vary the public offering price. The information set forth in the second last paragraph on the front cover page, on the inside front cover concerning stabilization and over-allotment by the Underwriters, and under the second, sixth, seventh and eighth paragraphs under the caption "Underwriting" in any Preliminary Prospectus and in the Prospectus constitutes the only information furnished by the Underwriters to the Company for inclusion in any Preliminary Prospectus, the Prospectus or the Registration Statement or any Incorporated DocumentStatement, and you, on behalf of the respective Underwriters, represent and warrant to the Company and the Selling Stockholders Stockholder that the statements made therein do not include any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading.
Appears in 1 contract
Samples: Cognizant Technology Solutions Corp
Purchase, Sale and Delivery of Shares. On the basis of the representations, warranties and agreements herein contained, but subject to the terms and conditions herein set forth, the Company and the Selling Stockholders agree, severally and not jointly, to sell to the Underwriters, and each Underwriter agrees, severally and not jointly, to purchase from the Company and the Selling Stockholders, respectively, at a purchase price of $_____ per share, the respective number of Company Shares as hereinafter set forth and Selling Stockholder Shares set forth opposite the names of the Company and the Selling Stockholders, respectively, Stockholders in Schedule B hereto. The obligation of each Underwriter to the Company and to each Selling Stockholder shall be to purchase from the Company or such Selling Stockholder that number of Company Shares or Selling Stockholder Shares, as the case may be, which (as nearly as practicable, as determined by you) is in the same proportion to the number of Company Shares or Selling Stockholder Shares, as the case may be, set forth opposite the name of the Company or such Selling Stockholder in Schedule B hereto as the number of Firm Shares which is set forth opposite the name of such Underwriter in Schedule A hereto (subject to adjustment as provided in Section 10) is to the total number of Firm Shares to be purchased by all the Underwriters under this Agreement. The certificates in negotiable form or properly executed option exercise forms for the Selling Stockholder Shares have been placed in custody (for delivery under this Agreement) under the Custody Agreement. Each Selling Stockholder agrees that the certificates or executed option exercise forms for the Selling Stockholder Shares of such Selling Stockholder so held in custody are subject to the interests of the Underwriters hereunder, that the arrangements made by such Selling Stockholder for such custody, including the Power of Attorney is to that extent irrevocable and that the obligations of such Selling Stockholder hereunder shall not be terminated by the act of such Selling Stockholder or by operation of law, whether by the death or incapacity of such Selling Stockholder or the occurrence of any other event, except as specifically provided herein or in the Custody Agreement. If any Selling Stockholder should die or be incapacitated, or if any other such event should occur, before the delivery of the certificates for the Selling Stockholder Shares hereunder, the Selling Stockholder Shares to be sold by such Selling Stockholder shall, except as specifically provided herein or in the Custody Agreement, be delivered by the Custodian in accordance with the terms and conditions of this Agreement as if such death, incapacity or other event had not occurred, regardless of whether the Custodian shall have received notice of such death or other event. Delivery of definitive certificates for the Firm Shares to be purchased by the Underwriters pursuant to this Section 3 shall be made against payment of the purchase price therefor by the several Underwriters by wire transfer or certified or official bank check or checks drawn in nextsame-day funds, at the option of the Company, payable to the order of the Company with regard to the Shares being purchased from the Company, and to the order of the Custodian for the respective accounts of the Selling Stockholders with regard to the Shares being purchased from such Selling Stockholders (and the Company and such Selling Stockholders agree not to deposit and to cause the Custodian not to deposit any such check in the bank on which it is drawn, and not to take any other action with the purpose or effect of receiving immediately available funds, until the business day following the date of its delivery to the Company or the Custodian, as the case may be, and, in the event of any breach of the foregoing, the Company or the Selling Stockholders, as the case may be, shall reimburse the Underwriters for the interest lost and any other expenses borne by them by reason of such breach), at the offices of Xxxxxxx & XxXxxxxxCooley Godward LLP, Los AngelesOne Maritime Plaza, California 30th Floor, San Francisco, Calxxxxxxa 94111 (or at such other place as may be agreed upon among the Representatives xxxx xxxxx xxxxx xx xxx xx xxxxxx xxxx xxxxx xxx Xxxxxxxxxatives and the Company), at 7:00 A.M., San Francisco time (a) on the third (3rd) full business day following the first day that Shares are traded, (b) if this Agreement is executed and delivered after 1:30 P.M., San Francisco time, the fourth (4th) full business day following the day that this Agreement is executed and delivered or (c) at such other time and date not later than seven (7) full business days following the first day that Shares are traded as the Representatives and the Company and the Attorneys may determine (or at such time and date to which payment and delivery shall have been postponed pursuant to Section 10 hereof), such time and date of payment and delivery being herein called the "Closing Date;" PROVIDEDprovided, HOWEVERhowever, that if the Company has not made available to the Representatives copies of the Prospectus within the time provided in Section 4(d) hereof, the Representatives may, in their sole discretion, postpone the Closing Date until no later than two (2) full business days following delivery of copies of the Prospectus to the Representatives. The certificates for the Firm Shares to be so delivered will be made available to you at such office or such other location including, without limitation, in New York City, as you may reasonably request for checking at least one (1) full business day prior to the Closing Date and will be in such names and denominations as you may request, such request to be made at least two (2) full business days prior to the Closing Date. If the Representatives so elect, delivery of the Firm Shares may be made by credit through full fast transfer to the accounts at The Depository Trust Company designated by the Representatives. It is understood that you, individually, and not as the Representatives of the several Underwriters, may (but shall not be obligated to) make payment of the purchase price on behalf of any Underwriter or Underwriters whose check or checks shall not have been received by you prior to the Closing Date for the Firm Shares to be purchased by such Underwriter or Underwriters. Any such payment by you shall not relieve any such Underwriter or Underwriters of any of its or their obligations hereunder. After the Registration Statement becomes effective, the several Underwriters intend to make a an initial public offering (as such term is described in Section 11 hereof) of the Firm Shares at a an initial public offering price of $_____ per share. After the initial public offering, the several Underwriters may, in their discretion, vary the public offering price. The information set forth in the second last paragraph on the front cover page (insofar as such information relates to the Underwriters), on the inside front cover concerning stabilization and eighth over-allotment by the Underwriters, and in the first, second, third and last two paragraphs and third sentence of the fifth paragraph under the caption "Underwriting" in any Preliminary Prospectus and in the Prospectus constitutes the only information furnished by the Underwriters to the Company for inclusion in any Preliminary Prospectus, the Prospectus or the Registration Statement or any Incorporated Document, and you, on behalf of the respective Underwriters, represent and warrant to the Company and the Selling Stockholders that the statements made therein do not include any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading.
Appears in 1 contract
Purchase, Sale and Delivery of Shares. On the basis of the representations, warranties and agreements herein contained, but subject to the terms and conditions herein set forth, the Company and the Selling Stockholders agree, severally and not jointly, to sell to the U.S. Underwriters, and each U.S. Underwriter agrees, severally and not jointly, to purchase from the Company and the Selling Stockholders, respectively, at a purchase price of [$_____ ] per share, the respective number of Company Shares as hereinafter set forth and Selling Stockholder Shares set forth opposite the names of the Company and the Selling Stockholders, respectively, Stockholders in Schedule B hereto. The obligation of each U.S. Underwriter to the Company and to each Selling Stockholder shall be to purchase from the Company or such Selling Stockholder that number of full Company Shares or Selling Stockholder Shares, as the case may be, which (as nearly as practicable, as determined by you) is in the same proportion to the number of Company Shares or Selling Stockholder Shares, as the case may be, set forth opposite the name of the Company or such Selling Stockholder in Schedule B hereto as the number of Firm Shares which is set forth opposite the name of such U.S. Underwriter in Schedule A hereto (subject to adjustment as provided in Section 10) is to the total number of Firm Shares to be purchased by all the Underwriters under this Agreement. The certificates in negotiable form or properly executed option exercise forms for the Selling Stockholder Shares have been placed in custody (for delivery under this Agreement) under the Custody Agreement. Each Selling Stockholder agrees that the certificates or executed option exercise forms for the Selling Stockholder Shares of such Selling Stockholder so held in custody are subject to the interests of the Underwriters hereunder, that the arrangements made by such Selling Stockholder for such custody, including the Power of Attorney is Attorney, are to that extent irrevocable and that the obligations of such Selling Stockholder hereunder shall not be terminated by the act of such Selling Stockholder or by operation of law, whether by the death or incapacity of such Selling Stockholder or the occurrence of any other event, except as specifically provided herein or in the Custody Agreement. If any Selling Stockholder should die or be incapacitated, or if any other such event should occur, before the delivery of the certificates for the Selling Stockholder Shares hereunder, the Selling Stockholder Shares to be sold by such Selling Stockholder shall, except as specifically provided herein or in the Custody Agreement, be delivered by the Custodian in accordance with the terms and conditions of this Agreement as if such death, incapacity or other event had not occurred, regardless of whether the Custodian shall have received notice of such death or other event. Delivery of definitive certificates for the Firm Shares to be purchased by the U.S. Underwriters pursuant to this Section 3 shall be made against payment of the purchase price therefor by the several U.S. Underwriters by wire transfer or certified or official bank check or checks drawn in nextsame-day fundsfunds as elected by the Company, payable to the order of the Company with regard to the Shares being purchased from the Company, and to the order of the Custodian for the respective accounts of the Selling Stockholders with regard to the Shares being purchased from such Selling Stockholders (and the Company and such Selling Stockholders agree not to deposit and to cause the Custodian not to deposit any such check in the bank on which it is drawn, and not to take any other action with the purpose or effect of receiving immediately available funds, until the business day following the date of its delivery to the Company or the Custodian, as the case may be, and, in the event of any breach of the foregoing, the Company or the Selling Stockholders, as the case may be, shall reimburse the Underwriters for the interest lost and any other expenses borne by them by reason of such breach), at the offices of Xxxxxxx Pillsbury Madison & XxXxxxxxSutro LLP, Los Angeles000 Xxxxxxxxxx Xxxxxx, California San Francisco, CA 94104 (or at such other place as may be agreed upon among the Representatives Representatives, the Company and the CompanySelling Stockholders), at 7:00 A.M., San Francisco time (a) on the third (3rdor, if the Firm Shares are priced, as contemplated by Rule 15c6-1(c) of the Securities Exchange Act of 1934, as amended (the "Exchange Act") after 4:30 p.m. Washington D.C. time, the fourth) full business day following the first day that Shares are traded, (b) if this Agreement is executed and delivered after 1:30 P.M., San Francisco time, the fourth (4th) full business day following the day that this Agreement is executed and delivered or (c) at such other time and date not later than seven (7) full business days following the first day that Shares are traded as the Representatives and the Company and the Attorneys may determine (or at such time and date to which payment and delivery shall have been postponed pursuant to Section 10 hereof), such time and date of payment and delivery being herein called the "Closing Date;." PROVIDED, HOWEVER, that if the Company has not made available to the Representatives copies of the Prospectus within the time provided in Section 4(d) hereof, the Representatives may, in their sole discretion, postpone the Closing Date until no later than two (2) full business days following delivery of copies of the Prospectus to the Representatives. The certificates for the Firm Shares to be so delivered will be made available to you at such office or at such other location including, without limitation, in New York City, as you may reasonably request for checking at least one (1) full business day prior to the Closing Date and will be in such names and denominations as you may request, such request to be made at least two (2) full business days prior to the Closing Date. If the Representatives so elect, delivery of the Firm Shares may be made by credit through full fast transfer to the accounts at The Depository Trust Company designated by the Representatives. It is understood that you, individually, individually and not as the Representatives of the several U.S. Underwriters, may (but shall not be obligated to) make payment of the purchase price on behalf of any U.S. Underwriter or U.S. Underwriters whose check or checks shall not have been received by you prior to the Closing Date for the Firm Shares to be purchased by such U.S. Underwriter or U.S. Underwriters. Any such payment by you shall not relieve any such U.S. Underwriter or U.S. Underwriters of any of its or their obligations hereunder. After the Registration Statement becomes effective, the several U.S. Underwriters intend to make a public offering (as such term is described in Section 11 hereof) of offer the Firm Shares at a public offering price of $_____ per share. After to the public offering, as set forth in the several Underwriters may, in their discretion, vary the public offering priceProspectus. The information set forth in the second last paragraph on the front cover page (insofar as such information relates to the U.S. Underwriters), the legend appearing on the inside front cover page and eighth paragraphs all information set forth under the caption "Underwriting" in any Preliminary Prospectus and in the Prospectus filed pursuant to Rule 424(b) constitutes the only information furnished by the U.S. Underwriters to the Company for inclusion in any Preliminary Prospectus, the Prospectus or the Registration Statement or any Incorporated DocumentStatement, and you, on behalf of the respective U.S. Underwriters, represent and warrant to the Company and the Selling Stockholders that the statements made therein are true and correct and do not include any untrue statement of a material fact or omit fail to state a any material fact required to be stated therein or necessary in order to make the such statements therein, in the light of the circumstances under in which they were made, made not misleading.
Appears in 1 contract
Purchase, Sale and Delivery of Shares. (a) On the basis of the representations, warranties and agreements herein contained, but subject to the terms and conditions herein set forth, (i) the Company agrees to issue and the Selling Stockholders agree, severally and not jointly, to sell to each of the Underwriters, and each Underwriter of the Underwriters agrees, severally and not jointly, to purchase from the Company and the Selling Stockholders, respectivelyCompany, at a purchase price of equal to $_____ 3.348 per shareshare or such higher price so that the underwriting discount, following the respective number of Company Shares and Selling Stockholder Shares set forth opposite the names offering of the Company shares and the Selling Stockholders, respectively, in Schedule B hereto. The obligation of each Underwriter price to the Company and public as contemplated by the Prospectus, with respect to each Selling Stockholder shall be to purchase from such share is 7% (the Company or such Selling Stockholder that number of Company Shares or Selling Stockholder Shares“Per Share Price”), as the case may be, which (as nearly as practicable, as determined by you) is in the same proportion to the number of Company Firm Shares or Selling Stockholder Shares, as the case may be, set forth opposite the name of such Underwriter on Schedule VI hereto, and (ii) in the event and to the extent that the Underwriters shall exercise the election to purchase Additional Shares as provided below, the Company or such Selling Stockholder in Schedule B hereto as agrees to issue and sell to each of the Underwriters, and each of the Underwriters agrees, severally and not jointly, to purchase from the Company, at the Per Share Price, that portion of the number of Firm Additional Shares as to which such election shall have been exercised (to be adjusted so as to eliminate fractional shares) determined by multiplying such number of Additional Shares by a fraction, the numerator of which is the maximum number of Additional Shares which such Underwriter is entitled to purchase as set forth opposite the name of such Underwriter in Schedule A VI hereto (subject to adjustment as provided in Section 10) and the denominator of which is to the total maximum number of Firm Additional Shares to be purchased by that all the Underwriters under this Agreement. The certificates in negotiable form or properly executed option exercise forms for the Selling Stockholder Shares have been placed in custody (for delivery under this Agreement) under the Custody Agreement. Each Selling Stockholder agrees that the certificates or executed option exercise forms for the Selling Stockholder Shares of such Selling Stockholder so held in custody are subject to the interests of the Underwriters are entitled to purchase hereunder. Notwithstanding the foregoing, the parties agree that, with respect to any Shares sold by the Underwriters to Marathon Asset Management or Opaleye Management, the Underwriters’ shall purchase Shares valued at an aggregate of $3,000,000 and the underwriting discount for such Shares shall be 3%. As referenced in Section 3(a)(ii) above, the Company hereby grants to the several Underwriters the option to purchase from the Company the Additional Shares, at the Per Share Price. This option may be exercised by the Representative on behalf of the Underwriters in whole or in part at any time (but not more than once) on or before the date that is forty-five (45) days following the date hereof, by written notice to the Company. Such notice shall set forth the aggregate number of Additional Shares as to which the option is being exercised, and the date and time when the Additional Shares are to be delivered (such date and time being herein referred to as the “Option Closing Date”); provided, however, that the arrangements made by such Selling Stockholder for such custody, including the Power of Attorney is to that extent irrevocable and that the obligations of such Selling Stockholder hereunder Option Closing Date shall not be terminated by earlier than the act Closing Date nor later than two business days after the date on which the option shall have been exercised unless the Company and the Underwriters otherwise agree in writing. Payment of such Selling Stockholder or by operation of law, whether by the death or incapacity of such Selling Stockholder or purchase price and delivery for the occurrence of any other event, except as specifically provided herein or Additional Shares shall be made at the Option Closing Date in the Custody Agreement. If any Selling Stockholder should die or be incapacitated, or if any other such event should occur, before same manner and at the delivery of same office as the certificates for the Selling Stockholder Shares hereunder, the Selling Stockholder Shares to be sold by such Selling Stockholder shall, except as specifically provided herein or in the Custody Agreement, be delivered by the Custodian in accordance with the terms and conditions of this Agreement as if such death, incapacity or other event had not occurred, regardless of whether the Custodian shall have received notice of such death or other event. Delivery of definitive certificates payment for the Firm Shares to be purchased by the Underwriters pursuant to this Section 3 shall be made against payment of the purchase price therefor by the several Underwriters by certified or official bank check or checks drawn in next-day funds, payable to the order of the Company with regard to the Shares being purchased from the Company, and to the order of the Custodian for the respective accounts of the Selling Stockholders with regard to the Shares being purchased from such Selling Stockholders (and the Company and such Selling Stockholders agree not to deposit and to cause the Custodian not to deposit any such check in the bank on which it is drawn, and not to take any other action with the purpose or effect of receiving immediately available funds, until the business day following the date of its delivery to the Company or the Custodian, as the case may be, and, in the event of any breach of the foregoing, the Company or the Selling Stockholders, as the case may be, shall reimburse the Underwriters for the interest lost and any other expenses borne by them by reason of such breach), at the offices of Xxxxxxx & XxXxxxxx, Los Angeles, California (or at such other place as may be agreed upon among the Representatives and the Company), at 7:00 A.M., San Francisco time (a) on the third (3rd) full business day following the first day that Shares are traded, (b) if this Agreement is executed and delivered after 1:30 P.M., San Francisco time, the fourth (4th) full business day following the day that this Agreement is executed and delivered or (c) at such other time and date not later than seven (7) full business days following the first day that Shares are traded as the Representatives and the Company and the Attorneys may determine (or at such time and date to which payment and delivery shall have been postponed pursuant to Section 10 hereof), such time and date of payment and delivery being herein called the "Closing Date;" PROVIDED, HOWEVER, that if the Company has not made available to the Representatives copies of the Prospectus within the time provided in Section 4(d) hereof, the Representatives may, in their sole discretion, postpone the Closing Date until no later than two (2) full business days following delivery of copies of the Prospectus to the Representatives. The certificates for the Firm Shares to be so delivered will be made available to you at such office or such other location including, without limitation, in New York City, as you may reasonably request for checking at least one (1) full business day prior to the Closing Date and will be in such names and denominations as you may request, such request to be made at least two (2) full business days prior to the Closing Date. If the Representatives so elect, delivery of the Firm Shares may be made by credit through full fast transfer to the accounts at The Depository Trust Company designated by the Representatives. It is understood that you, individually, and not as the Representatives of the several Underwriters, may (but shall not be obligated to) make payment of the purchase price on behalf of any Underwriter or Underwriters whose check or checks shall not have been received by you prior to the Closing Date for the Firm Shares to be purchased by such Underwriter or Underwriters. Any such payment by you shall not relieve any such Underwriter or Underwriters of any of its or their obligations hereunder. After the Registration Statement becomes effective, the several Underwriters intend to make a public offering (as such term is described in Section 11 hereof) of the Firm Shares at a public offering price of $_____ per share. After the public offering, the several Underwriters may, in their discretion, vary the public offering price. The information set forth in the second and eighth paragraphs under the caption "Underwriting" in any Preliminary Prospectus and in the Prospectus constitutes the only information furnished by the Underwriters to the Company for inclusion in any Preliminary Prospectus, the Prospectus or the Registration Statement or any Incorporated Document, and you, on behalf of the respective Underwriters, represent and warrant to the Company and the Selling Stockholders that the statements made therein do not include any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleadingSection 3(b) below.
Appears in 1 contract
Samples: Underwriting Agreement (Imprimis Pharmaceuticals, Inc.)
Purchase, Sale and Delivery of Shares. On the basis of the representations, warranties and agreements herein contained, but subject to the terms and conditions herein set forth, the Company and the Selling Stockholders agree, severally and not jointly, to sell to the Underwriters, and each Underwriter agrees, severally and not jointly, to purchase from the Company and the Selling Stockholders, respectively, at a purchase price of $_____ per share, the respective number of Firm Company Shares as hereinafter set forth and Selling Stockholder Shares set forth opposite the names of the Company and the Selling Stockholders, respectively, Stockholders in Schedule B hereto. The obligation of each Underwriter to the Company and to each Selling Stockholder shall be to purchase from the Company or such Selling Stockholder that number of Company Shares or Selling Stockholder Shares, as the case may be, which (as nearly as practicable, as determined by you) is in the same proportion to the number of Company Shares or Selling Stockholder Shares, as the case may be, set forth opposite the name of the Company or such Selling Stockholder in Schedule SCHEDULE B hereto as the number of Firm Shares which is set forth opposite the name of such Underwriter in Schedule SCHEDULE A hereto (subject to adjustment as provided in Section 10) is to the total number of Firm Shares to be purchased by all the Underwriters under this Agreement. The certificates in negotiable form or properly executed option exercise forms for the Selling Stockholder Shares have been placed in custody (for delivery under this Agreement) under the Custody Agreement. Each Selling Stockholder agrees that the certificates or executed option exercise forms for the Selling Stockholder Shares of such Selling Stockholder so held in custody are subject to the interests of the Underwriters hereunder, that the arrangements made by such Selling Stockholder for such custody, including the Power of Attorney is to that extent irrevocable and that the obligations of such Selling Stockholder hereunder shall not be terminated by the act of such Selling Stockholder or by operation of law, whether by the death or incapacity of such Selling Stockholder or the occurrence of any other event, except as specifically provided herein or in the Custody Agreement. If any Selling Stockholder should die or be incapacitated, or if any other such event should occur, before the delivery of the certificates for the Selling Stockholder Shares hereunder, the Selling Stockholder Shares to be sold by such Selling Stockholder shall, except as specifically provided herein or in the Custody Agreement, be delivered by the Custodian in accordance with the terms and conditions of this Agreement as if such death, incapacity or other event had not occurred, regardless of whether the Custodian shall have received notice of such death or other event. Delivery of definitive certificates for the Firm Shares to be purchased by the Underwriters pursuant to this Section 3 shall be made against payment of the purchase price therefor by the several Underwriters by certified or official bank check or checks drawn in next-day funds, payable to the order of the Company with regard to the Company Shares being purchased from the Company, and to the order of the Custodian for the respective accounts of the Selling Stockholders with regard to the Selling Stockholder Shares being purchased from such Selling Stockholders (and the Company and such Selling Stockholders agree not to deposit and to cause the Custodian not to deposit any such check in the bank on which it is drawn, and not to take any other action with the purpose or effect of receiving immediately available funds, until the business day following the date of its delivery to the Company or the Custodian, as the case may be, and, in the event of any breach of the foregoing, the Company or the Selling Stockholders, as the case may be, shall reimburse the Underwriters for the interest lost and any other expenses borne by them by reason of such breach), at the offices of Xxxxxxx Testx, Xxrwxxx & XxXxxxxxXhibxxxxx, Los AngelesXXP, California High Street Tower, 125 Xxxx Xxxxxx, Xxxxxx, Xxxxxxxxxxxxx 00000 (or xx at such other place as may be agreed upon among the Representatives and the CompanyCompany and the Attorneys), at 7:00 A.M., San Francisco time (a) on the third (3rd) full business day following the first day that Firm Shares are traded, (b) if this Agreement is executed and delivered after 1:30 P.M., San Francisco time, the fourth (4th) full business day following the day that this Agreement is executed and delivered or (c) at such other time and date not later than seven (7) full business days following the first day that Firm Shares are traded as the Representatives and the Company and the Attorneys may determine (or at such time and date to which payment and delivery shall have been postponed pursuant to Section 10 hereof), such time and date of payment and delivery being herein called the "Closing CLOSING Date;" PROVIDED, HOWEVER, that if the Company has not made available to the Representatives copies of the Prospectus within the time provided in Section 4(d) hereof, the Representatives may, in their sole discretion, postpone the Closing Date until no later than two (2) full business days following delivery of copies of the Prospectus to the Representatives. The certificates for the Firm Shares to be so delivered will be made available to you at such office or such other location including, without limitation, in New York City, as you may reasonably request for checking at least one (1) full business day prior to the Closing Date and will be in such names and denominations as you may request, such request to be made at least two (2) full business days prior to the Closing Date. If the Representatives so elect, delivery of the Firm Shares may be made by credit through full fast transfer to the accounts at The Depository Trust Company designated by the Representatives. 17 It is understood that you, individually, and not as the Representatives of the several Underwriters, may (but shall not be obligated to) make payment of the purchase price on behalf of any Underwriter or Underwriters whose check or checks shall not have been received by you prior to the Closing Date for the Firm Shares to be purchased by such Underwriter or Underwriters. Any such payment by you shall not relieve any such Underwriter or Underwriters of any of its or their obligations hereunder. After the Registration Statement becomes effective, the several Underwriters intend to make a an initial public offering (as such term is described in Section 11 hereof) of the Firm Shares and, if applicable, the Option Shares, at a an initial public offering price of $_____ per share. After the initial public offering, the several Underwriters may, in their discretion, vary the public offering price. The information set forth in the second last paragraph on the front cover page (insofar as such information relates to the Underwriters), on the inside front cover concerning stabilization and eighth over-allotment by the Underwriters, and under the second, sixth, and seventh paragraphs under the caption "Underwriting" in any Preliminary Prospectus and in the Prospectus constitutes the only information furnished by the Underwriters to the Company for inclusion in any Preliminary Prospectus, the Prospectus or the Registration Statement or any Incorporated DocumentStatement, and you, on behalf of the respective Underwriters, represent and warrant to the Company and the Selling Stockholders that the statements made therein do not include any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading.
Appears in 1 contract
Samples: Atlantic Data Services Inc
Purchase, Sale and Delivery of Shares. On the basis of the representations, warranties and agreements herein contained, but subject to the terms and conditions herein set forth, the Company and each of the Selling Stockholders agreeStockholders, severally and not jointly, agrees to sell to the UnderwritersUnderwriters named in Schedule A hereto, and each Underwriter agreesthe Underwriters agree, severally and not jointly, to purchase from the Company and the Selling Stockholders, respectively, at a purchase price 25,000 Firm Shares in the case of $_____ per share, the respective Company and the number of Company Shares and Selling Stockholder Firm Shares set forth opposite the names name of the Company and the each Selling Stockholders, respectively, Stockholder in Schedule B heretohereto in the case of the Selling Stockholders at the price per share set forth in the Pricing Agreement. The obligation of each Underwriter to the Company and to each Selling Stockholder shall be to purchase from the Company or such Selling Stockholder that number of Company Firm Shares or Selling Stockholder Shares, as the case may be, which (as nearly as practicable, as determined by you) is in bears to 25,000, the same proportion to the number of Company Shares or Selling Stockholder Shares, as the case may be, set forth opposite the name of the Company or such Selling Stockholder in Schedule B hereto as the number of Firm Shares which is set forth opposite the name of such Underwriter in Schedule A hereto (subject to adjustment as provided in Section 10) is bears to the total number of Firm Shares to be purchased by all the Underwriters under this Agreement. The certificates in negotiable form or properly executed option exercise forms for obligation of each Underwriter to each of the Selling Stockholder Shares have been placed in custody (for delivery under this Agreement) under the Custody Agreement. Each Stockholders shall be to purchase from such Selling Stockholder agrees that number of full shares which (as nearly as practicable, as determined by you) bears to the certificates or executed option exercise forms for number of Firm Shares set forth opposite the Selling Stockholder Shares name of such Selling Stockholder so held in custody are subject Schedule B hereto, the same proportion as the number of Firm Shares set forth opposite the name of such Underwriter in Schedule A hereto bears to the interests total number of the Underwriters hereunder, that the arrangements made by such Selling Stockholder for such custody, including the Power of Attorney is to that extent irrevocable and that the obligations of such Selling Stockholder hereunder shall not be terminated by the act of such Selling Stockholder or by operation of law, whether by the death or incapacity of such Selling Stockholder or the occurrence of any other event, except as specifically provided herein or in the Custody Agreement. If any Selling Stockholder should die or be incapacitated, or if any other such event should occur, before the delivery of the certificates for the Selling Stockholder Shares hereunder, the Selling Stockholder Shares to be sold by such Selling Stockholder shall, except as specifically provided herein or in the Custody Agreement, be delivered by the Custodian in accordance with the terms and conditions of this Agreement as if such death, incapacity or other event had not occurred, regardless of whether the Custodian shall have received notice of such death or other event. Delivery of definitive certificates for the Firm Shares to be purchased by all Underwriters under this Agreement. The public offering price and the purchase price shall be set forth in the Pricing Agreement. At 9:00 A.M., Chicago Time, on the fourth business day, if permitted under Rule 15c6-1 under the Exchange Act, (or the third business day if required under Rule 15c6-1 under the Exchange Act or unless postponed in accordance with the provisions of Section 12) following the date the Registration Statement becomes effective (or, if the Company has elected to rely upon Rule 430A, the fourth business day, if permitted under Rule 15c6-1 under the Exchange Act, (or the third business day if required under Rule 15c6-1 under the Exchange Act) after execution of the Pricing Agreement), or such other time not later than ten business days after such date as shall be agreed upon by the Representative and the Company, the Company and the Custodian will deliver to you at the offices of counsel for the Underwriters pursuant or through the facilities of The Depository Trust Company for the accounts of the several Underwriters, certificates representing the Firm Shares to this Section 3 shall be made sold by them, against payment of the purchase price therefor by the several Underwriters by certified delivery of federal or official bank check or checks drawn in next-day funds, payable to the order of the Company with regard to the Shares being purchased from the Company, and to the order of the Custodian for the respective accounts of the Selling Stockholders with regard to the Shares being purchased from such Selling Stockholders (and the Company and such Selling Stockholders agree not to deposit and to cause the Custodian not to deposit any such check in the bank on which it is drawn, and not to take any other action with the purpose or effect of receiving immediately available funds, until the business day following the date of its delivery by wire transfer or otherwise, to the Company or the Custodian, as the case may be, and, in the event of any breach of the foregoing, the Company or the Selling Stockholders, as the case may be, shall reimburse the Underwriters for the interest lost and any other expenses borne by them by reason of such breach), at the offices of Xxxxxxx & XxXxxxxx, Los Angeles, California (or at such other place as may be agreed upon among the Representatives and the Company), at 7:00 A.M., San Francisco time (a) on the third (3rd) full business day following the first day that Shares are traded, (b) if this Agreement is executed and delivered after 1:30 P.M., San Francisco time, the fourth (4th) full business day following the day that this Agreement is executed and delivered or (c) at such other time and date not later than seven (7) full business days following the first day that Shares are traded as the Representatives and the Company and the Attorneys may determine (or at such Custodian. Such time of delivery and date payment is herein referred to which payment and delivery shall have been postponed pursuant to Section 10 hereof), such time and date of payment and delivery being herein called as the "“First Closing Date;" PROVIDED, HOWEVER, that if the Company has not made available to the Representatives copies of the Prospectus within the time provided in Section 4(d) hereof, the Representatives may, in their sole discretion, postpone the Closing Date until no later than two (2) full business days following delivery of copies of the Prospectus to the Representatives. .” The certificates for the Firm Shares to be so delivered will be made available to you at in such office or denominations and registered in such other location including, without limitation, in New York City, names as you may reasonably request for checking at least one (1) full by notice to the Company and the Custodian prior to 10:00 A.M., Chicago Time, on the second business day prior to preceding the First Closing Date Date, and will be made available at the Company’s expense for checking and packaging by the Representative at 10:00 A.M., Chicago Time, on the business day preceding the First Closing Date. Payment for the Firm Shares so to be delivered shall be made at the time and in such the manner described above at the offices of counsel for the Underwriters. In addition, on the basis of the representations, warranties and agreements herein contained, but subject to the terms and conditions herein set forth, the Selling Stockholders designated on Exhibit B hereby grant, severally and not jointly, options to the several Underwriters to purchase, severally and not jointly, up to an aggregate of [ ] Option Shares, at the same purchase price per share to be paid for the Firm Shares, for use solely in covering any overallotments made by the Underwriters in the sale and distribution of the Firm Shares. The options granted hereunder may be exercised at any time (but not more than once) within 30 days after the date of the Prospectus first filed by the Company pursuant to Rule 424(b) under the 1933 Act (the “Rule 424 Prospectus”) upon notice by you to the Company and the Agent setting forth the aggregate number of Option Shares as to which the Underwriters are exercising the option, the names and denominations as you may request, in which the certificates for such request shares are to be made registered and the time and place at least two which such certificates will be delivered. Such time of delivery (2) which may not be earlier than the First Closing Date), being herein referred to as the “Second Closing Date,” shall be determined by you, but if at any time other than the First Closing Date, shall not be earlier than three nor later than 10 full business days prior to the Closing Dateafter delivery of such notice of exercise. If the Representatives so elect, delivery all of the Firm Option Shares may are purchased, the number of Option Shares to be made purchased from each Selling Stockholder is set forth in Schedule B hereto. If less than all of the Option Shares are purchased, the number of Option Shares to be purchased from each of the Selling Stockholders shall be reduced from such maximum number on a pro rata basis (as nearly as practicable, as determined by credit through full fast transfer you). The number of Option Shares to be purchased by each Underwriter shall be determined by multiplying the accounts at The Depository Trust Company designated number of Option Shares to be sold by the Representatives. It Selling Stockholders by a fraction, the numerator of which is understood that you, individually, and not as the Representatives number of the several Underwriters, may (but shall not be obligated to) make payment of the purchase price on behalf of any Underwriter or Underwriters whose check or checks shall not have been received by you prior to the Closing Date for the Firm Shares to be purchased by such Underwriter or Underwritersas set forth opposite its name in Schedule A and the denominator of which is the total number of Firm Shares (subject to such adjustments to eliminate any fractional share purchases as you in your absolute discretion may make). Any such Certificates for the Option Shares will be made available at the Company’s expense for checking and packaging at 10:00 A.M., Chicago Time, on the first full business day preceding the Second Closing Date. The manner of payment by you for and delivery of the Option Shares shall not relieve any such Underwriter or Underwriters of any of its or their obligations hereunder. After be the Registration Statement becomes effective, the several Underwriters intend to make a public offering (same as such term is described in Section 11 hereof) of for the Firm Shares at a public offering price of $_____ per share. After the public offering, the several Underwriters may, in their discretion, vary the public offering price. The information set forth as specified in the second and eighth paragraphs under the caption "Underwriting" in any Preliminary Prospectus and in the Prospectus constitutes the only information furnished by the Underwriters to the Company for inclusion in any Preliminary Prospectus, the Prospectus or the Registration Statement or any Incorporated Document, and you, on behalf of the respective Underwriters, represent and warrant to preceding paragraph. You have advised the Company and the Selling Stockholders that each Underwriter has authorized you to accept delivery of its Shares, to make payment and to acknowledge receipt therefor. You, individually and not as the statements made therein do not include Representative of the Underwriters, may make payment for any untrue statement of a material fact or omit to state a material fact required Shares to be stated therein purchased by any Underwriter whose funds shall not have been received by you by the First Closing Date or necessary to make the statements thereinSecond Closing Date, in as the light case may be, for the account of such Underwriter, but any such payment shall not relieve such Underwriter from any obligation hereunder. You hereby waive the applicability of Section 5(o) of the circumstances under which they were madeUnderwriting Agreement dated November 8, not misleading2007 between you and the Company and the lockup letters executed by each of the Selling Stockholders in connection with the offering thereunder (collectively, the “Lockup Restrictions”) to the execution, delivery and performance of this Agreement and all actions taken in furtherance thereof (it being understood and agreed that the Lockup Restrictions shall remain in effect for all other purposes).
Appears in 1 contract
Samples: American Public Education Inc
Purchase, Sale and Delivery of Shares. (a) On the basis of the representations, warranties and agreements herein containedcovenants contained herein, but and subject to the terms and conditions herein set forth, the Company and the Selling Stockholders agree, severally and not jointly, agrees to sell to the Underwriters, each Underwriter and each Underwriter agrees, severally and not jointly, to purchase from the Company and the Selling Stockholders, respectivelyCompany, at a purchase price of $_____ per share, the respective number of Company Firm Shares and Selling Stockholder Shares set forth opposite the names of the Company and the Selling Stockholders, respectively, in Schedule B hereto. The obligation of each Underwriter to the Company and to each Selling Stockholder shall be to purchase from the Company or such Selling Stockholder that number of Company Shares or Selling Stockholder Shares, as the case may be, which (as nearly as practicable, as determined by you) is in the same proportion to the number of Company Shares or Selling Stockholder Shares, as the case may be, set forth opposite the name of each Underwriter in Schedule A hereto, subject to adjustments in accordance with Section 9 hereof. In addition, on the basis of the representations, warranties and covenants herein contained and subject to the terms and conditions herein set forth, the Company hereby grants to the several Underwriters an option to purchase at their election up to 200,000 Option Shares and the Selling Shareholder hereby grants to the several Underwriters an option to purchase at its election up to 50,000 Option Shares, each at the same price per share as set forth for the Firm Shares in the paragraph above, for the sole purpose of covering overallotments in the sale of the Firm Shares. The option granted hereby may be exercised in whole or such in part, but only once, and at any time upon written notice given within 30 days after the date of this Agreement, by you, as Representative of the several Underwriters, to the Company and the Selling Stockholder in Schedule B hereto as Shareholder setting forth the number of Firm Option Shares as to which the several Underwriters are exercising the option and the time and date at which certificates are to be delivered. If any Option Shares are purchased, each Underwriter agrees, severally and not jointly, to purchase that portion of the number of Option Shares as to which such election shall have been exercised (subject to adjustment to eliminate fractional shares) determined by multiplying such number of Option Shares by a fraction the numerator of which is the maximum number of Option Shares which such Underwriter is entitled to purchase as set forth opposite the name of such Underwriter in Schedule A hereto (subject to adjustment as provided in Section 10) and the denominator of which is to the total maximum number of Firm Option Shares to be purchased by which all the Underwriters under this Agreement. The certificates in negotiable form or properly executed option exercise forms for the Selling Stockholder Shares have been placed in custody (for delivery under this Agreement) under the Custody Agreement. Each Selling Stockholder agrees that the certificates or executed option exercise forms for the Selling Stockholder Shares of such Selling Stockholder so held in custody are subject to the interests of the Underwriters are entitled to purchase hereunder, that . The time and date at which certificates for Option Shares are to be delivered shall be determined by the arrangements made by such Selling Stockholder for such custody, including the Power of Attorney is to that extent irrevocable and that the obligations of such Selling Stockholder hereunder Representative but shall not be terminated by the act of such Selling Stockholder earlier than two or by operation of law, whether by the death or incapacity of such Selling Stockholder or the occurrence of any other event, except as specifically provided herein or in the Custody Agreement. If any Selling Stockholder should die or be incapacitated, or if any other such event should occur, before the delivery of the certificates for the Selling Stockholder Shares hereunder, the Selling Stockholder Shares to be sold by such Selling Stockholder shall, except as specifically provided herein or in the Custody Agreement, be delivered by the Custodian in accordance with the terms and conditions of this Agreement as if such death, incapacity or other event had not occurred, regardless of whether the Custodian shall have received notice of such death or other event. Delivery of definitive certificates for the Firm Shares to be purchased by the Underwriters pursuant to this Section 3 shall be made against payment of the purchase price therefor by the several Underwriters by certified or official bank check or checks drawn in next-day funds, payable to the order of the Company with regard to the Shares being purchased from the Company, and to the order of the Custodian for the respective accounts of the Selling Stockholders with regard to the Shares being purchased from such Selling Stockholders (and the Company and such Selling Stockholders agree not to deposit and to cause the Custodian not to deposit any such check in the bank on which it is drawn, and not to take any other action with the purpose or effect of receiving immediately available funds, until the business day following the date of its delivery to the Company or the Custodian, as the case may be, and, in the event of any breach of the foregoing, the Company or the Selling Stockholders, as the case may be, shall reimburse the Underwriters for the interest lost and any other expenses borne by them by reason of such breach), at the offices of Xxxxxxx & XxXxxxxx, Los Angeles, California (or at such other place as may be agreed upon among the Representatives and the Company), at 7:00 A.M., San Francisco time (a) on the third (3rd) full business day following the first day that Shares are traded, (b) if this Agreement is executed and delivered after 1:30 P.M., San Francisco time, the fourth (4th) full business day following the day that this Agreement is executed and delivered or (c) at such other time and date not later than seven (7) ten full business days following after the first day that Shares are traded as the Representatives exercise of such option, and the Company and the Attorneys may determine (or at such time and date to which payment and delivery shall have been postponed pursuant to Section 10 hereof), such time and date of payment and delivery being herein called the "Closing Date;" PROVIDED, HOWEVER, that if the Company has not made available to the Representatives copies of the Prospectus within the time provided in Section 4(d) hereof, the Representatives may, in their sole discretion, postpone the Closing Date until no later than two (2) full business days following delivery of copies of the Prospectus to the Representatives. The certificates for the Firm Shares to any event be so delivered will be made available to you at such office or such other location including, without limitation, in New York City, as you may reasonably request for checking at least one (1) full business day prior to the Closing Date and will be in such names and denominations as you may request, such request to be made at least two (2) full business days prior to the Closing Date. If the Representatives so elect, delivery date of exercise of the Firm Shares may be made by credit through option is three or more full fast transfer to days before the accounts at The Depository Trust Company designated by Closing Date, the Representatives. It is understood that you, individually, and not as the Representatives notice of the several Underwriters, may (but exercise shall not be obligated to) make payment of the purchase price on behalf of any Underwriter or Underwriters whose check or checks shall not have been received by you prior to set the Closing Date for as the Firm Shares to be purchased by such Underwriter or Underwriters. Any such payment by you shall not relieve any such Underwriter or Underwriters of any of its or their obligations hereunder. After the Registration Statement becomes effective, the several Underwriters intend to make a public offering (as such term is described in Section 11 hereof) of the Firm Shares at a public offering price of $_____ per share. After the public offering, the several Underwriters may, in their discretion, vary the public offering price. The information set forth in the second and eighth paragraphs under the caption "Underwriting" in any Preliminary Prospectus and in the Prospectus constitutes the only information furnished by the Underwriters to the Company for inclusion in any Preliminary Prospectus, the Prospectus or the Registration Statement or any Incorporated Document, and you, on behalf of the respective Underwriters, represent and warrant to the Company and the Selling Stockholders that the statements made therein do not include any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleadingOption Closing Date.
Appears in 1 contract
Samples: Paper Warehouse Inc
Purchase, Sale and Delivery of Shares. On the basis of the representations, warranties and agreements herein contained, but subject to the terms and conditions herein set forth, the Company and the Selling Stockholders agree, severally and not jointly, agrees to sell to the Underwriters, and each Underwriter agrees, severally and not jointly, to purchase from the Company and the Selling Stockholders, respectivelyCompany, at a purchase price of $_____ $ per shareShare, the respective number of Company Shares and Selling Stockholder Shares set forth opposite the names of the Company and the Selling Stockholders, respectively, in Schedule B hereto. The obligation of each Underwriter to the Company and to each Selling Stockholder shall be to purchase from the Company or such Selling Stockholder that number of Company Shares or Selling Stockholder Shares, as the case may be, which (as nearly as practicable, as determined by you) is in the same proportion to the number of Company Shares or Selling Stockholder Shares, as the case may be, set forth opposite the name of the Company or such Selling Stockholder in Schedule B hereto as the number of Firm Shares which is set forth opposite the name of such Underwriter in Schedule A hereto (subject to adjustment as provided in Section 10) is to the total number of Firm Shares to be purchased by all the Underwriters under this Agreement). The certificates in negotiable form or properly executed option exercise forms for the Selling Stockholder Shares have been placed in custody (for delivery under this Agreement) under the Custody Agreement or have been delivered to the Attorneys who will place such shares in custody immediately after execution of this Agreement. Each Selling Stockholder agrees that the certificates or executed option exercise forms for the Selling Stockholder Shares of such Selling Stockholder so held in custody are subject to the interests of the Underwriters hereunder, that the arrangements made by such Selling Stockholder for such custody, including the Power of Attorney is to that extent irrevocable and that the obligations of such Selling Stockholder hereunder shall not be terminated by the any act of such Selling Stockholder or by operation of law, whether by the death or incapacity of such Selling Stockholder or the occurrence of any other event, except as specifically provided herein or in the Custody Agreement. If any Selling Stockholder should die or be incapacitated, or if any other such event should occur, occur before the delivery of the certificates for the Selling Stockholder Shares hereunder, the Selling Stockholder Shares to be sold by such Selling Stockholder shall, except as specifically provided herein or in the Custody Agreement, be delivered by the Custodian in accordance with the terms and conditions of this Agreement as if such death, incapacity or other event had not occurred, regardless of whether the Custodian shall have received notice of such death or other event. Delivery of definitive certificates for the Firm Shares to be purchased by the Underwriters pursuant to this Section 3 shall be made against payment of the purchase price therefor by the several Underwriters by certified or official bank check or checks drawn in next-day funds, payable to the order of the Company with regard to the Shares being purchased from the Company, and to the order of the Custodian for the respective accounts of the Selling Stockholders with regard to the Shares being purchased from such Selling Stockholders (and the Company and such Selling Stockholders agree not to deposit and to cause the Custodian not to deposit any such check in the bank on which it is drawn, and not to take any other action with the purpose or effect of receiving immediately available funds, until the business day following the date of its delivery to the Company or the Custodian, as the case may be, and, in the event of any breach of the foregoing, the Company or the Selling Stockholders, as the case may be, shall reimburse the Underwriters for the interest lost and any other expenses borne by them by reason of such breach), at the offices of Xxxxxxx & XxXxxxxx, Los Angeles, California (or at such other place as may be agreed upon among the Representatives and the Company), at 7:00 A.M., San Francisco time (a) on the third (3rd) full business day following the first day that Shares are traded, (b) if this Agreement is executed and delivered after 1:30 P.M., San Francisco time, the fourth (4th) full business day following the day that this Agreement is executed and delivered or (c) at such other time and date not later than seven (7) full business days following the first day that Shares are traded as the Representatives and the Company and the Attorneys may determine (or at such time and date to which payment and delivery shall have been postponed pursuant to Section 10 hereof), such time and date of payment and delivery being herein called the "Closing Date;" PROVIDED, HOWEVER, that if the Company has not made available to the Representatives copies of the Prospectus within the time provided in Section 4(d) hereof, the Representatives may, in their sole discretion, postpone the Closing Date until no later than two (2) full business days following delivery of copies of the Prospectus to the Representatives. The certificates for the Firm Shares to be so delivered will be made available to you at such office or such other location including, without limitation, in New York City, as you may reasonably request for checking at least one (1) full business day prior to the Closing Date and will be in such names and denominations as you may request, such request to be made at least two (2) full business days prior to the Closing Date. If the Representatives so elect, delivery of the Firm Shares may be made by credit through full fast transfer to the accounts at The Depository Trust Company designated by the Representatives. It is understood that you, individually, and not as the Representatives of the several Underwriters, may (but shall not be obligated to) make payment of the purchase price on behalf of any Underwriter or Underwriters whose check or checks shall not have been received by you prior to the Closing Date for the Firm Shares to be purchased by such Underwriter or Underwriters. Any such payment by you shall not relieve any such Underwriter or Underwriters of any of its or their obligations hereunder. After the Registration Statement becomes effective, the several Underwriters intend to make a public offering (as such term is described in Section 11 hereof) of the Firm Shares at a public offering price of $_____ per share. After the public offering, the several Underwriters may, in their discretion, vary the public offering price. The information set forth in the second and eighth paragraphs under the caption "Underwriting" in any Preliminary Prospectus and in the Prospectus constitutes the only information furnished by the Underwriters to the Company for inclusion in any Preliminary Prospectus, the Prospectus or the Registration Statement or any Incorporated Document, and you, on behalf of the respective Underwriters, represent and warrant to the Company and the Selling Stockholders that the statements made therein do not include any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading.if
Appears in 1 contract
Samples: Laser Power Corp/Fa
Purchase, Sale and Delivery of Shares. On the basis of the representations, warranties and agreements herein containedcovenants contained herein, but and subject to the terms and conditions herein set forth, the Company and the each Selling Stockholders Shareholder agree, severally and not jointly, to sell to the Underwriters, each Underwriter and each Underwriter agrees, severally and not jointly, to purchase from the Company and the each Selling Stockholders, respectivelyShareholder, at a purchase price of $_____ [ ] per share, the respective number of Company Shares and Selling Stockholder Shares set forth opposite the names of the Company and the Selling Stockholders, respectively, in Schedule B hereto. The obligation of each Underwriter to the Company and to each Selling Stockholder shall be to purchase from the Company or such Selling Stockholder that number of Company Shares or Selling Stockholder Shares, as the case may be, which (as nearly as practicable, as determined by you) is in the same proportion to the number of Company Shares or Selling Stockholder Shares, as the case may be, set forth opposite the name of the Company or such Selling Stockholder in Schedule B hereto as the number of Firm Shares (to be adjusted by you to eliminate fractional shares) determined by multiplying the aggregate number of Firm Shares to be sold by the Company and each Selling Shareholder, as set forth opposite their respective names in Schedule B hereto, by a fraction, the numerator of which is the aggregate number of Firm Shares to be purchased by such Underwriter as set forth opposite the name of such Underwriter in Schedule A hereto (subject to adjustment as provided in Section 10) and the denominator of which is to the total aggregate number of Firm Shares to be purchased by all the Underwriters under this Agreement. The certificates in negotiable form or properly executed option exercise forms for from the Company and the Selling Stockholder Shares have been placed in custody (for delivery under this Agreement) under Shareholders hereunder. In addition, on the Custody Agreement. Each Selling Stockholder agrees that basis of the certificates or executed option exercise forms for the Selling Stockholder Shares of such Selling Stockholder so held in custody are representations, warranties and covenants contained herein and subject to the interests of the Underwriters hereunder, that the arrangements made by such Selling Stockholder for such custody, including the Power of Attorney is to that extent irrevocable and that the obligations of such Selling Stockholder hereunder shall not be terminated by the act of such Selling Stockholder or by operation of law, whether by the death or incapacity of such Selling Stockholder or the occurrence of any other event, except as specifically provided herein or in the Custody Agreement. If any Selling Stockholder should die or be incapacitated, or if any other such event should occur, before the delivery of the certificates for the Selling Stockholder Shares hereunder, the Selling Stockholder Shares to be sold by such Selling Stockholder shall, except as specifically provided herein or in the Custody Agreement, be delivered by the Custodian in accordance with the terms and conditions herein set forth, the Company hereby grants, to the several Underwriters an option to purchase at the Underwriters' election up to the number of this Agreement Option Shares, at the same price per share as if such death, incapacity or other event had not occurred, regardless of whether the Custodian shall have received notice of such death or other event. Delivery of definitive certificates set forth for the Firm Shares in the paragraph above, for the sole purpose of covering over allotments in the sale of the Firm Shares. The option granted hereby may be exercised in whole or in part, but only once, and at any time upon written notice given within 30 days after the date of this Agreement, by you, as Representatives of the several Underwriters, to the Company, and the Custodian setting forth the number of Option Shares as to which the several Underwriters are exercising the option and the time and date at which certificates are to be delivered. If any Option Shares are purchased, each Underwriter agrees, severally and not jointly, to purchase that portion of the number of Option Shares as to which such election shall have been exercised (subject to adjustment to eliminate fractional shares) determined by multiplying such number of Option Shares by a fraction the numerator of which is the maximum number of Option Shares which such Underwriter is entitled to purchase as set forth opposite the name of such Underwriter in Schedule A hereto and the denominator of which is the maximum number of Option Shares which all of the Underwriters are entitled to purchase hereunder. The time and date at which certificates for Option Shares are to be delivered shall be determined by the Representatives but shall not be earlier than two or later than ten full business days after the exercise of such option, and shall not in any event be prior to the Closing Date. If the date of exercise of the option is three or more full days before the Closing Date, the notice of exercise shall set the Closing Date as the Option Closing Date. Certificates in definitive form for the Shares to be purchased by each Underwriter hereunder, and in such denominations and registered in such names as Dain Xxxxxxxx Xxxxxxx xxx request upon at least forty-eight hours' prior notice to the Underwriters pursuant to this Section 3 Company, shall be made delivered by or on behalf of the Company and such Selling Shareholder to you for the account of such Underwriter at such time and place as shall hereafter be designated by the Representatives, against payment by such Underwriter or on its behalf of the purchase price therefor by the several Underwriters by certified or official bank check or checks drawn in next-day fundschecks, payable to the order of the Company with regard to the Shares being purchased from the Company, and to the order of the Custodian for the respective accounts of the Selling Stockholders with regard to the Shares being purchased from such Selling Stockholders (and the Company and such Selling Stockholders agree not Shareholder in same day funds. The time and date of such delivery and payment shall be, with respect to deposit and to cause the Custodian not to deposit any such check in Firm Shares, 8:30 a.m., Minneapolis, Minnesota time, at the bank offices of Faegre & Bensxx, XXP, Minneapolis, Minnesota, on which it is drawnthe third (or if the Shares are priced, and not to take any other action with as contemplated by Rule 15c6-1(c) under the purpose or effect of receiving immediately available fundsExchange Act, until after 4:30 p.m. Eastern time, the fourth) full business day following the date of its delivery hereof, or at such other time and date as you and the Company determine pursuant to Rule 15c6-1(a) under the Exchange Act, such time and date being herein referred to as the "Closing Date," and, with respect to the Option Shares, at the time and on the date specified by you in the written notice given by you of the Underwriters' election to purchase the Option Shares, or such other time and date as you and the Company may agree upon in writing, such time and date being referred to herein as the "Option Closing Date." Such certificates will be made available for checking and packaging at least twenty-four hours prior to the Closing Date or the CustodianOption Closing Date, as the case may be, and, in the event of any breach of the foregoing, the Company or the Selling Stockholders, as the case may be, shall reimburse the Underwriters for the interest lost and any other expenses borne by them by reason of such breach), at the offices of Xxxxxxx & XxXxxxxx, Los Angeles, California (or at such other place a location as may be agreed upon among the Representatives and the Company), at 7:00 A.M., San Francisco time (a) on the third (3rd) full business day following the first day that Shares are traded, (b) if this Agreement is executed and delivered after 1:30 P.M., San Francisco time, the fourth (4th) full business day following the day that this Agreement is executed and delivered or (c) at such other time and date not later than seven (7) full business days following the first day that Shares are traded as the Representatives and the Company and the Attorneys may determine (or at such time and date to which payment and delivery shall have been postponed pursuant to Section 10 hereof), such time and date of payment and delivery being herein called the "Closing Date;" PROVIDED, HOWEVER, that if the Company has not made available to the Representatives copies of the Prospectus within the time provided in Section 4(d) hereof, the Representatives may, in their sole discretion, postpone the Closing Date until no later than two (2) full business days following delivery of copies of the Prospectus to the Representatives. The certificates for the Firm Shares to be so delivered will be made available to you at such office or such other location including, without limitation, in New York City, as you may reasonably request for checking at least one (1) full business day prior to the Closing Date and will be in such names and denominations as you may request, such request to be made at least two (2) full business days prior to the Closing Date. If the Representatives so elect, delivery of the Firm Shares may be made by credit through full fast transfer to the accounts at The Depository Trust Company designated by the Representatives. It is understood that you, individually, and not as the Representatives of the several Underwriters, may (but shall not be obligated to) make payment of the purchase price on behalf of any Underwriter or Underwriters whose check or checks shall not have been received by you prior to the Closing Date for the Firm Shares to be purchased by such Underwriter or Underwriters. Any such payment by you shall not relieve any such Underwriter or Underwriters of any of its or their obligations hereunder. After the Registration Statement becomes effective, the several Underwriters intend to make a public offering (as such term is described in Section 11 hereof) of the Firm Shares at a public offering price of $_____ per share. After the public offering, the several Underwriters may, in their discretion, vary the public offering price. The information set forth in the second and eighth paragraphs under the caption "Underwriting" in any Preliminary Prospectus and in the Prospectus constitutes the only information furnished by the Underwriters to the Company for inclusion in any Preliminary Prospectus, the Prospectus or the Registration Statement or any Incorporated Document, and you, on behalf of the respective Underwriters, represent and warrant to the Company and the Selling Stockholders that the statements made therein do not include any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading.
Appears in 1 contract
Purchase, Sale and Delivery of Shares. On the basis of the ------------------------------------- representations, warranties and agreements herein contained, but subject to the terms and conditions herein set forth, the Company and the Selling Stockholders agreeagrees, severally and not jointly, to sell to the Underwriters, and each Underwriter agrees, severally and not jointly, to purchase from the Company and the Selling Stockholders, respectively, at a purchase price of $_____ [10-12] per share, the respective number of Company Firm Shares as hereinafter set forth and Selling Stockholder Shares set forth opposite the names of the Company and the Selling Stockholders, respectively, Stockholders in Schedule B hereto. The obligation of each Underwriter to the Company and to each Selling Stockholder shall be to purchase from the Company or such Selling Stockholder that number of Company Shares or Selling Stockholder Shares, as the case may be, which (as nearly as practicable, as determined by you) is in the same proportion to the number of Company Shares or Selling Stockholder Shares, as the case may be, set forth opposite the name of the Company or such Selling Stockholder in Schedule B hereto as the number of Firm Shares which is set forth opposite the name of such Underwriter in Schedule A hereto (subject to adjustment as provided in Section 10) is to the total number of Firm Shares to be purchased by all the Underwriters under this Agreement. The certificates in negotiable form or properly executed option exercise forms for the Selling Stockholder Shares have been placed in custody (for delivery under this Agreement) under the Custody Agreement. Each Selling Stockholder agrees that the certificates or executed option exercise forms for the Selling Stockholder Shares of such Selling Stockholder so held in custody are subject to the interests of the Underwriters hereunder, that the arrangements made by such Selling Stockholder for such custody, including the Power of Attorney is to that extent irrevocable and that the obligations of such Selling Stockholder hereunder shall not be terminated by the act of such Selling Stockholder or by operation of law, whether by the death or incapacity of such Selling Stockholder or the occurrence of any other event, except as specifically provided herein or in the Custody Agreement. If any Selling Stockholder should die or be incapacitated, or if any other such event should occur, before the delivery of the certificates for the Selling Stockholder Shares hereunder, the Selling Stockholder Shares to be sold by such Selling Stockholder shall, except as specifically provided herein or in the Custody Agreement, be delivered by the Custodian in accordance with the terms and conditions of this Agreement as if such death, incapacity or other event had not occurred, regardless of whether the Custodian shall have received notice of such death or other event. Delivery of definitive certificates for the Firm Shares to be purchased by the Underwriters pursuant to this Section 3 shall be made against payment of the purchase price therefor by the several Underwriters by certified or official bank check or checks drawn in next-day funds, payable to the order of the Company with regard to the Shares being purchased from the Company, and to the order of the Custodian for the respective accounts of the Selling Stockholders with regard to the Shares being purchased from such Selling Stockholders (and the Company and such Selling Stockholders agree not to deposit and to cause the Custodian not to deposit any such check in the bank on which it is drawn, and not to take any other action with the purpose or effect of receiving immediately available funds, until the business day following the date of its delivery to the Company or the Custodian, as the case may be, and, in the event of any breach of the foregoing, the Company or the Selling Stockholders, as the case may be, shall reimburse the Underwriters for the interest lost and any other expenses borne by them by reason of such breach), at the offices of Xxxxxxx & XxXxxxxx, Los Angeles, California (or at such other place as may be agreed upon among the Representatives and the Company), at 7:00 A.M., San Francisco time (a) on the third (3rd) full business day following the first day that Shares are traded, (b) if this Agreement is executed and delivered after 1:30 P.M., San Francisco time, the fourth (4th) full business day following the day that this Agreement is executed and delivered or (c) at such other time and date not later than seven (7) full business days following the first day that Shares are traded as the Representatives and the Company and the Attorneys may determine (or at such time and date to which payment and delivery shall have been postponed pursuant to Section 10 hereof), such time and date of payment and delivery being herein called the "Closing Date;" PROVIDED, HOWEVER, that if the Company has not made available to the Representatives copies of the Prospectus within the time provided in Section 4(d) hereof, the Representatives may, in their sole discretion, postpone the Closing Date until no later than two (2) full business days following delivery of copies of the Prospectus to the Representatives. The certificates for the Firm Shares to be so delivered will be made available to you at such office or such other location including, without limitation, in New York City, as you may reasonably request for checking at least one (1) full business day prior to the Closing Date and will be in such names and denominations as you may request, such request to be made at least two (2) full business days prior to the Closing Date. If the Representatives so elect, delivery of the Firm Shares may be made by credit through full fast transfer to the accounts at The Depository Trust Company designated by the Representatives. It is understood that you, individually, and not as the Representatives of the several Underwriters, may (but shall not be obligated to) make payment of the purchase price on behalf of any Underwriter or Underwriters whose check or checks shall not have been received by you prior to the Closing Date for the Firm Shares to be purchased by such Underwriter or Underwriters. Any such payment by you shall not relieve any such Underwriter or Underwriters of any of its or their obligations hereunder. After the Registration Statement becomes effective, the several Underwriters intend to make a public offering (as such term is described in Section 11 hereof) of the Firm Shares at a public offering price of $_____ per share. After the public offering, the several Underwriters may, in their discretion, vary the public offering price. The information set forth in the second and eighth paragraphs under the caption "Underwriting" in any Preliminary Prospectus and in the Prospectus constitutes the only information furnished by the Underwriters to the Company for inclusion in any Preliminary Prospectus, the Prospectus or the Registration Statement or any Incorporated Document, and you, on behalf of the respective Underwriters, represent and warrant to the Company and the Selling Stockholders that the statements made therein do not include any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading.,
Appears in 1 contract
Samples: Underwriting Agreement (Applied Micro Circuits Corp)
Purchase, Sale and Delivery of Shares. On the basis of the representations, warranties and agreements herein contained, but subject to the terms and conditions herein set forth, the Company and the Selling Stockholders agree, severally and not jointly, to sell to the Underwriters, 15 and each Underwriter agrees, severally and not jointly, to purchase from the Company and the Selling Stockholders, respectively, at a purchase price of $_____ 9.765 per share, the respective number of Firm Company Shares as hereinafter set forth and Selling Stockholder Shares set forth opposite the names of the Company and the Selling Stockholders, respectively, Stockholders in Schedule B hereto. The obligation of each Underwriter to the Company and to each Selling Stockholder shall be to purchase from the Company or such Selling Stockholder that number of Firm Company Shares or Selling Stockholder Shares, as the case may be, which (as nearly as practicable, as determined by you) is in the same proportion to the number of Company Shares or Selling Stockholder Shares, as the case may be, set forth opposite the name of the Company or such Selling Stockholder in Schedule B hereto as the number of Firm Shares which is set forth opposite the name of such Underwriter in Schedule A hereto (subject to adjustment as provided in Section 10) is to the total number of Firm Shares to be purchased by all the Underwriters under this Agreement. The certificates in negotiable form or properly executed option exercise forms for the Selling Stockholder Shares have been placed in custody (for delivery under this Agreement) under the Custody Agreement. Each Selling Stockholder agrees that the certificates or executed option exercise forms for the Selling Stockholder Shares of such Selling Stockholder so held in custody are subject to the interests of the Underwriters hereunder, that the arrangements made by such Selling Stockholder for such custody, including the Power of Attorney is to that extent irrevocable and that the obligations of such Selling Stockholder hereunder shall not be terminated by the act of such Selling Stockholder or by operation of law, whether by the death or incapacity of such Selling Stockholder or the occurrence of any other event, except as specifically provided herein or in the Custody Agreement. If any Selling Stockholder should die or be incapacitated, or if any other such event should occur, before the delivery of the certificates for the Selling Stockholder Shares hereunder, the Selling Stockholder Shares to be sold by such Selling Stockholder shall, except as specifically provided herein or in the Custody Agreement, be delivered by the Custodian in accordance with the terms and conditions of this Agreement as if such death, incapacity or other event had not occurred, regardless of whether the Custodian shall have received notice of such death or other event. Delivery of definitive certificates for the Firm Shares to be purchased by the Underwriters pursuant to this Section 3 shall be made against payment of the purchase price therefor by the several Underwriters by wire transfer or certified or official bank check or checks checks, at the option of the Company, drawn in nextsame-day funds, payable to the order of the Company with regard to the Shares being purchased from the Company, and to the order of the Custodian for the respective accounts of the Selling Stockholders with regard to the Shares being purchased from such Selling Stockholders (and the Company and such Selling Stockholders agree not to deposit and to cause the Custodian not to deposit any such check in the bank on which it is drawn, and not to take any other action with the purpose or effect of receiving immediately available funds, until the business day following the date of its delivery to the Company or the Custodian, as the case may be, and, in the event of any breach of the foregoing, the Company or the Selling Stockholders, as the case may be, shall reimburse the Underwriters for the interest lost and any other expenses borne by them by reason of such breach), at the offices of Xxxxxxx Bxxxxxx, Phleger & XxXxxxxxHxxxxxxx LLP, Los AngelesOxx Xxxxxx, California Xxxxx Xxxxxx Xxxxx, Xxx Xxxxxxxxx, Xxxxxxxxxx 00000 (or at such other place as may be agreed upon among the Representatives and the CompanyCompany and the Attorneys), at 7:00 A.M.a.m., San Francisco time (a) on the third (3rd) full business day following the first day that Shares are traded, (b) if this Agreement is executed and delivered after 1:30 P.M.p.m., San Francisco time, the fourth (4th) full business day following the day that this Agreement is executed and delivered or (c) at such other time and date not later than seven (7) full business days following the first day that Shares are traded as the Representatives and the 16 Company and the Attorneys may determine (or at such time and date to which payment and delivery shall have been postponed pursuant to Section 10 hereof), such time and date of payment and delivery being herein called the "Closing Date;" PROVIDEDprovided, HOWEVERhowever, that if the Company has not made available to the Representatives copies of the Prospectus within the time provided in Section 4(d) hereof, the Representatives may, in their sole discretion, postpone the Closing Date until no later than two (2) full business days following delivery of copies of the Prospectus to the Representatives. The certificates for the Firm Shares to be so delivered will be made available to you at such office or such other location including, without limitation, in New York City, as you may reasonably request for checking at least one (1) full business day prior to the Closing Date and will be in such names and denominations as you may request, such request to be made at least two (2) full business days prior to the Closing Date. If the Representatives so elect, delivery of the Firm Shares may be made by credit through full fast transfer to the accounts at The Depository Trust Company designated by the Representatives. It is understood that you, individually, and not as the Representatives of the several Underwriters, may (but shall not be obligated to) make payment of the purchase price on behalf of any Underwriter or Underwriters whose check or checks shall not have been received by you prior to the Closing Date for the Firm Shares to be purchased by such Underwriter or Underwriters. Any such payment by you shall not relieve any such Underwriter or Underwriters of any of its or their obligations hereunder. After the Registration Statement becomes effective, the several Underwriters intend to make a an initial public offering (as such term is described in Section 11 hereof) of the Firm Shares at a an initial public offering price of $_____ 10.50 per share. After the initial public offering, the several Underwriters may, in their discretion, vary the public offering price. The information set forth in the second last paragraph on the front cover page (insofar as such information relates to the Underwriters), on the inside front cover concerning stabilization and eighth over-allotment by the Underwriters, and under the second, sixth and seventh paragraphs and the third sentence of the fifth paragraph under the caption "Underwriting" in any Preliminary Prospectus and in the Prospectus constitutes the only information furnished by the Underwriters to the Company for inclusion in any Preliminary Prospectus, the Prospectus or the Registration Statement or any Incorporated DocumentStatement, and you, on behalf of the respective Underwriters, represent and warrant to the Company and the Selling Stockholders that the statements made therein do not include any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading.
Appears in 1 contract
Samples: E Trade Group Inc
Purchase, Sale and Delivery of Shares. On the basis of the representations, warranties and agreements herein contained, but subject to the terms and conditions herein set forth, the Company and the Selling Stockholders Shareholders agree, severally and not jointly, to sell to the Underwriters, and each Underwriter agrees, severally and not jointly, to purchase from the Company and the Selling StockholdersShareholders, respectively, at a purchase price of $_____ per share, share (the per share price to public as set forth in the Registration Statement less the per share underwriting discounts and commissions) the respective number of Company Shares and Selling Stockholder Firm Shares set forth opposite the names of the Company and the Selling Stockholders, respectively, in on Schedule B A hereto. The obligation of each Underwriter to the Company and to each Selling Stockholder Shareholder shall be to purchase from the Company or such Selling Stockholder Shareholder that number of Company Shares or Selling Stockholder Shareholder Shares, as the case may be, which (as nearly as practicable, as determined by you) is in the same proportion to the number of Company Shares or Selling Stockholder Shareholder Shares, as the case may be, set forth opposite the name of the Company or such Selling Stockholder Shareholder in Schedule B hereto as the number of Firm Shares which is set forth opposite the name of such Underwriter in Schedule A hereto (subject to adjustment as provided in Section 1011) is to the total number of Firm Shares to be purchased by all the Underwriters under this Agreement. The certificates in negotiable form or properly executed option exercise forms for the Selling Stockholder Shareholder Shares (or certificates representing securities convertible into such Shares) have been placed in custody (for delivery under this Agreement) under the Custody Agreement. Each Selling Stockholder Shareholder agrees that the certificates or executed option exercise forms for the Selling Stockholder Shareholder Shares of such Selling Stockholder Shareholder so held in custody are subject to the interests of the Underwriters hereunder, that the arrangements made by such Selling Stockholder Shareholder for such custody, including the Power of Attorney Attorney, is to that extent irrevocable and that the obligations of such Selling Stockholder Shareholder hereunder shall not be terminated by the act of such Selling Stockholder Shareholder or by operation of law, whether by the death or incapacity of such Selling Stockholder Shareholder or the occurrence of any other event, except as specifically provided herein or in the Custody Agreement. If any Selling Stockholder Shareholder should die or be incapacitated, or if any other such event should occur, before the delivery of the certificates for the Selling Stockholder Shareholder Shares hereunder, the Selling Stockholder Shareholder Shares to be sold by such Selling Stockholder Shareholder shall, except as specifically provided herein or in the Custody Agreement, be delivered by the Custodian in accordance with the terms and conditions of this Agreement as if such death, incapacity or other event had not occurred, regardless of whether the Custodian shall have received notice of such death or other event. Delivery of definitive certificates for the Firm Shares to be purchased by the Underwriters pursuant to this Section 3 4 shall be made against payment of the purchase price therefor by the several Underwriters by certified or official bank check or checks drawn in nextsame-day funds, payable to the order of the Company with regard to the Shares being purchased from the Company, and to the order of the Custodian for the respective accounts of the Selling Stockholders Shareholders with regard to the Shares being purchased from such Selling Stockholders (and the Company and such Selling Stockholders agree not to deposit and to cause the Custodian not to deposit any such check in the bank on which it is drawn, and not to take any other action with the purpose or effect of receiving immediately available funds, until the business day following the date of its delivery to the Company or the Custodian, as the case may be, and, in the event of any breach of the foregoing, the Company or the Selling Stockholders, as the case may be, shall reimburse the Underwriters for the interest lost and any other expenses borne by them by reason of such breach)Shareholders, at the offices of Xxxxxxx & XxXxxxxx, Los Angeles, California ________________________________________________________________ (or at such other place as may be agreed upon among the Representatives and the Company), at 7:00 A.M._:__ _.M., San Francisco _____________ time (a) on the third (3rd) full business day following the first day that Shares are traded, (b) if this Agreement is executed and delivered after 1:30 P.M., San Francisco Vancouver, Washington time, the fourth (4th) full business day following the day that this Agreement is executed and delivered or (c) at such other time and date not later than seven (7) full business days following the first day that Shares are traded as the Representatives and the Company and the Attorneys may determine agree (or at such time and date to which payment and delivery shall have been postponed pursuant to Section 10 11 hereof), such time and date of payment and delivery being herein called the "Closing DateCLOSING DATE;" PROVIDEDprovided, HOWEVERhowever, that if the Company has not made available to the Representatives copies of the Prospectus within the time provided in Section 4(d5(d) hereof, the Representatives may, in their sole discretion, postpone the Closing Date until no later than two (2) full business days following delivery of copies of the Prospectus to the Representatives. The certificates for the Firm Shares to be so delivered will be made available to you at such office or such other location including, without limitation, in New York City, as you may reasonably request for checking at least one (1) full business day prior to the Closing Date and will be in such names and denominations as you may request, such request to be made at least two (2) full business days prior to the Closing Date. If the Representatives so elect, delivery of the Firm Shares may be made by credit through full fast transfer to the accounts account at The Depository Trust Company designated by the Representatives. It is understood that you, individually, and not as the Representatives of the several Underwriters, may (but shall not be obligated to) make payment of the purchase price on behalf of any Underwriter or Underwriters whose check or checks shall not have been received by you prior to the Closing Date for the Firm Shares to be purchased by such Underwriter or Underwriters. Any such payment by you shall not relieve any such Underwriter or Underwriters of any of its or their obligations hereunder. After the Registration Statement becomes effective, the several Underwriters intend to make a an initial public offering (as such term is described in Section 11 12 hereof) of the Firm Shares at a an initial public offering price of $_____ per share. After the public offering, the several Underwriters may, in their discretion, vary the public offering price. The information set forth in the second to last paragraph on the front cover page (insofar as such information relates to the Underwriters), and eighth under all the paragraphs under the caption "Underwriting" in any Preliminary Prospectus and in the Prospectus constitutes the only information furnished by the Underwriters to the Company for inclusion in any Preliminary Prospectus, the Prospectus or the Registration Statement or any Incorporated DocumentStatement, and you, on behalf of the respective Underwriters, represent and warrant to the Company and the Selling Stockholders Shareholders that the statements made therein do not include any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading.
Appears in 1 contract
Purchase, Sale and Delivery of Shares. On the basis of the representations, warranties and agreements herein contained, but subject to the terms and conditions herein set forth, the Company and the Selling Stockholders Shareholders agree, severally and not jointly, to sell to the Underwriters, and each Underwriter agrees, severally and not jointly, to purchase from the Company and the Selling StockholdersShareholders, respectively, at a purchase price of $______ per share, the respective number of Company Shares and Selling Stockholder Shareholder Shares set forth opposite the names of the Company and the Selling Stockholders, respectively, Shareholders in Schedule B hereto. The obligation of each Underwriter to the Company and to each Selling Stockholder Shareholder shall be to purchase from the Company or such Selling Stockholder Shareholder that number of Company Shares or Selling Stockholder Shareholder Shares, as the case may be, which (as nearly as practicable, as determined by you) is in the same proportion to the number of Company Shares or Selling Stockholder Shareholder Shares, as the case may be, set forth opposite the name of the Company or such Selling Stockholder Shareholder in Schedule B hereto as the number of Firm Shares which is set forth opposite the name of such Underwriter in Schedule A hereto (subject to adjustment as provided in Section 10) is to the total number of Firm Shares to be purchased by all the Underwriters under this Agreement. The certificates in negotiable form or properly executed option exercise forms for the Selling Stockholder Shareholder Shares have been placed in custody (for delivery under this Agreement) under the Custody Agreement. Each Selling Stockholder Shareholder agrees that the certificates or executed option exercise forms for the Selling Stockholder Shareholder Shares of such Selling Stockholder Shareholder so held in custody are subject to the interests of the Underwriters hereunder, that the arrangements made by such Selling Stockholder Shareholder for such custody, including the Power of Attorney is to that extent irrevocable and that the obligations of such Selling Stockholder Shareholder hereunder shall not be terminated by the act of such Selling Stockholder Shareholder or by operation of law, whether by the death or incapacity of such Selling Stockholder Shareholder or the occurrence of any other event, except as specifically provided herein or in the Custody Agreement. If any Selling Stockholder Shareholder should die or be incapacitated, or if any other such event should occur, before the delivery of the certificates for the Selling Stockholder Shareholder Shares hereunder, the Selling Stockholder Shareholder Shares to be sold by such Selling Stockholder Shareholder shall, except as specifically provided herein or in the Custody Agreement, be delivered by the Custodian in accordance with the terms and conditions of this Agreement as if such death, incapacity or other event had not occurred, regardless of whether the Custodian shall have received notice of such death or other event. Delivery of definitive certificates for the Firm Shares to be purchased by the Underwriters pursuant to this Section 3 shall be made against receipts of wire transfer reference numbers issued by the Federal Reserve System evidencing payment of the purchase price therefor by the several Underwriters by certified or official bank check or checks drawn wire transfer of immediately available funds to an account specified in next-day funds, payable to the order of writing by the Company with regard to the Shares being purchased from the Company, Company and to the order of an account specified in writing by the Custodian for the respective accounts of the Selling Stockholders with regard to the Shares being purchased from such Selling Stockholders (and the Company and such Selling Stockholders agree not to deposit and to cause the Custodian not to deposit any such check in the bank on which it is drawn, and not to take any other action with the purpose or effect of receiving immediately available funds, until the business day following the date of its delivery to the Company or the Custodian, as the case may be, and, in the event of any breach of the foregoing, the Company or the Selling Stockholders, as the case may be, shall reimburse the Underwriters for the interest lost and any other expenses borne by them by reason of such breach)Shareholders, at the offices of Wilsxx Xxxxxxx Xxxxxxxx & XxXxxxxxXosaxx, Los Angeles000 Xxxx Xxxx Xxxx, California Xxxx Xxxx, Xxxxxxxxxx 00000 (or xx at such other place as may be agreed upon among the Representatives and the CompanyCompany and the Attorneys), at 7:00 A.M., San Francisco time (a) on the third (3rd) full business day following the first day that Shares are traded, (b) if this -11- 12 Agreement is executed and delivered after 1:30 P.M., San Francisco time, the fourth (4th) full business day following the day that this Agreement is executed and delivered or (c) at such other time and date not later than seven (7) full business days following the first day that Shares are traded as the Representatives and the Company and the Attorneys may determine (or at such time and date to which payment and delivery shall have been postponed pursuant to Section 10 hereof), such time and date of payment and delivery being herein called the "Closing Date;" PROVIDEDprovided, HOWEVERhowever, that if the Company has not made available to the Representatives copies of the Prospectus within the time provided in Section 4(d) hereof, the Representatives may, in their sole discretion, postpone the Closing Date until no later than two (2) full business days following delivery of copies of the Prospectus to the Representatives. The certificates for the Firm Shares to be so delivered will be made available to you at such office or such other location including, without limitation, in New York City, as you may reasonably request for checking at least one (1) full business day prior to the Closing Date and will be in such names and denominations as you may request, such request to be made at least two (2) full business days prior to the Closing Date. If the Representatives so elect, delivery of the Firm Shares may be made by credit through full fast transfer to the accounts at The Depository Trust Company designated by the Representatives. It is understood that you, individually, and not as the Representatives of the several Underwriters, may (but shall not be obligated to) make payment of the purchase price on behalf of any Underwriter or Underwriters whose check or checks wire transfer funds shall not have been received by you prior to the Closing Date for the Firm Shares to be purchased by such Underwriter or Underwriters. Any such payment by you shall not relieve any such Underwriter or Underwriters of any of its or their obligations hereunder. After the Registration Statement becomes effective, the several Underwriters intend to make a an initial public offering (as such term is described in Section 11 hereof) of the Firm Shares at a an initial public offering price of $__________ per share. After the initial public offering, the several Underwriters may, in their discretion, vary the public offering price. The information set forth in the second last paragraph on the front cover page (insofar as such information relates to the Underwriters), under the paragraph on page 2, concerning stabilization and over-allotment by the Underwriters, and under the first (including the table), second, seventh and eighth paragraphs under the caption "Underwriting" in any Preliminary Prospectus and in the final form of Prospectus filed pursuant to Rule 424(b) constitutes the only information furnished by the Underwriters to the Company for inclusion in any Preliminary Prospectus, the Prospectus or the Registration Statement or any Incorporated DocumentStatement, and you, on behalf of the respective Underwriters, represent and warrant to the Company and the Selling Stockholders Shareholders that the statements made therein do not include any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading.
Appears in 1 contract
Samples: 3dfx Interactive Inc
Purchase, Sale and Delivery of Shares. On the basis of the representations, warranties and agreements herein contained, but subject to the terms and conditions herein set forth, the Company and the Firm Selling Stockholders agree, severally and not jointly, to sell to the Underwriters, and each Underwriter agrees, severally and not jointly, to purchase from the Company and the Firm Selling Stockholders, respectively, at a purchase price of $_____ per shareShare, the respective number of Company Shares and Selling Stockholder Firm Shares set forth opposite the names of the Company and the Firm Selling Stockholders, respectively, Stockholders in Schedule B hereto. The obligation of each Underwriter to the Company and to each Firm Selling Stockholder shall be to purchase from the Company or such Firm Selling Stockholder that number of Company Shares or Selling Stockholder Firm Shares, as the case may be, which (as nearly as practicable, as determined by you) is in the same proportion to the number of Company Shares or Selling Stockholder Firm Shares, as the case may be, set forth opposite the name of the Company or such Firm Selling Stockholder in Schedule B hereto as the number of Firm Shares which is set forth opposite the name of such Underwriter in Schedule A hereto (subject to adjustment as provided in Section 1010 hereof) is to the total number of Firm Shares to be purchased by all the Underwriters under this Agreement. The certificates in negotiable form or properly executed option exercise forms for the Shares to be sold by the Selling Stockholder Shares Stockholders hereunder have been placed in custody (for delivery under this Agreement) under the Custody AgreementAgreement and Power of Attorney. Each Selling Stockholder agrees that the certificates or executed option exercise forms for the Selling Stockholder Shares of such Selling Stockholder so held in custody are subject to the interests of the Underwriters hereunder, that the arrangements made by such Selling Stockholder for such custody, including the power of attorney provided in the Custody Agreement and Power of Attorney Attorney, is to that extent irrevocable and that the obligations of such Selling Stockholder hereunder shall not be terminated by the act of such Selling Stockholder or by operation of law, whether by the death or incapacity of such Selling Stockholder or the occurrence of any other event, except as specifically provided herein or in the Custody AgreementAgreement and Power of Attorney. If any Selling Stockholder should die or be incapacitated, or if any other such event should occur, before the delivery of the certificates for the Shares of such Selling Stockholder Shares hereunder, the Selling Stockholder Shares to be sold by such Selling Stockholder shall, except as specifically provided herein or in the Custody AgreementAgreement and Power of Attorney, be delivered by the Custodian in accordance with the terms and conditions of this Agreement as if such death, incapacity or other event had not occurred, regardless of whether the Custodian shall have received notice of such death or other event. Delivery of definitive certificates for the Firm Shares to be purchased by the Underwriters pursuant to this Section 3 shall be made against payment of the purchase price therefor by the several Underwriters by certified or official bank check or checks drawn in next-day funds, payable wire transfer of immediately available funds to the order of the Company with regard to the Company Shares being purchased from the Companypurchased, and to the order of the Custodian either Attorney for the respective accounts of the Firm Selling Stockholders with regard to the Selling Stockholder Firm Shares being purchased from such Selling Stockholders (purchased. Such delivery and the Company and such Selling Stockholders agree not to deposit and to cause the Custodian not to deposit any such check in the bank on which it is drawn, and not to payment shall take any other action with the purpose or effect of receiving immediately available funds, until the business day following the date of its delivery to the Company or the Custodian, as the case may be, and, in the event of any breach of the foregoing, the Company or the Selling Stockholders, as the case may be, shall reimburse the Underwriters for the interest lost and any other expenses borne by them by reason of such breach), place at the offices Chicago office of Xxxxxxx Winston & XxXxxxxx, Los Angeles, California Xxxxxx (or at such other place as may be agreed upon among the Representatives Representatives, the Company and the Company), Selling Stockholders) at 7:00 9:00 A.M., San Francisco local time (a) in Chicago, Illinois, on the third (3rd) full business day following the first day that Shares are traded, (b) if date of this Agreement is executed and delivered after 1:30 P.M., San Francisco time, the fourth (4th) full business day following the day that this Agreement is executed and delivered or (c) at such other time and date not later than seven (7) full business days following the first day that Shares are traded thereafter as the Representatives and Representatives, the Company and the Attorneys Selling Stockholders may determine (or at such time and date to which payment and delivery shall have been postponed pursuant to Section 10 hereof), such time and date of payment and delivery being herein called the "Closing Date;" PROVIDED, HOWEVER, that if the Company has not made available to the Representatives copies of the Prospectus within the time provided in Section 4(d) hereof, the Representatives may, in their sole discretion, postpone the Closing Date until no later than two (2) full business days following delivery of copies of the Prospectus to the Representatives". The certificates for the Firm Shares to be so delivered will be made available to you at such office or at such other location location, including, without limitation, in New York City, as you may reasonably request for checking at least one two (12) full business day days prior to the Closing Date and will be in such names and denominations as you may request, such request to be made at least two three (23) full business days prior to the Closing Date. If the Representatives so elect, delivery of the Firm Shares may be made by credit through full fast transfer to the accounts at The Depository Trust Company designated by the Representatives. It is understood that you, individually, individually and not as the Representatives of the several Underwriters, may (but shall not be obligated to) make payment of the purchase price on behalf of any Underwriter or Underwriters whose check payment or checks payments shall not have been received by you prior to the Closing Date for the Firm Shares to be purchased by such Underwriter or Underwriters. Any such payment by you shall not relieve any such Underwriter or Underwriters of any of its or their obligations hereunder. After the Registration Statement becomes effective, the several Underwriters intend to make a offer the Firm Shares to the public as set forth in the Prospectus, but after the initial public offering (as such term is described in Section 11 hereof) of the Firm Shares at a public offering price of $_____ per share. After the public offeringsuch Shares, the several Underwriters may, may in their discretion, discretion vary the public offering price. The information set forth in the second last paragraph on the front cover page and eighth paragraphs under the caption "Underwriting" (insofar as such information relates to the Underwriters) in any Preliminary Prospectus and in the final form of Prospectus filed pursuant to Rule 424(b) constitutes the only information furnished by the Underwriters to the Company for inclusion in any Preliminary Prospectus, the Prospectus or the Registration Statement or any Incorporated DocumentStatement, and you, on behalf of the respective Underwriters, represent and warrant to the Company and the Selling Stockholders that the statements made therein do not include any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements thereinsuch statements, in the light of the circumstances under in which they were made, not misleading.
Appears in 1 contract
Samples: Us Office Products Co
Purchase, Sale and Delivery of Shares. On the basis of the ------------------------------------- representations, warranties and agreements herein contained, but subject to the terms and conditions herein set forth, the Company and the Selling Stockholders agree, severally and not jointly, agree to sell to the Underwriters, and each Underwriter agrees, severally and not jointly, to purchase from the Company and the Selling Stockholders, respectively, at a purchase price of $_____ per share, the respective number of Company Shares and Selling Stockholder Shares set forth opposite the names of the Company and the Selling Stockholders, respectively, Stockholders in Schedule B hereto. The obligation of each Underwriter to the Company and to each Selling Stockholder shall be to purchase from the Company or such Selling Stockholder that number of Company Shares or Selling Stockholder Shares, as the case may be, which (as nearly as practicable, as determined by you) is in the same proportion to the number of Company Shares or Selling Stockholder Shares, as the case may be, set forth opposite the name of the Company or such Selling Stockholder in Schedule B hereto as the number of Firm Shares which is set forth opposite the name of such Underwriter in Schedule A hereto (subject to adjustment as provided in Section 10) is to the total number of Firm Shares to be purchased by all the Underwriters under this Agreement. The certificates in negotiable form or properly executed option exercise forms for the Selling Stockholder Shares have been placed in custody (for delivery under this Agreement) under the Custody Agreement. Each Selling Stockholder agrees that the certificates or executed option exercise forms for the Selling Stockholder Shares of such Selling Stockholder so held in custody are subject to the interests of the Underwriters hereunder, that the arrangements made by such Selling Stockholder for such custody, including the Power of Attorney is to that extent irrevocable and that the obligations of such Selling Stockholder hereunder shall not be terminated by the act of such Selling Stockholder or by operation of law, whether by the death or incapacity of such Selling Stockholder or the occurrence of any other event, except as specifically provided herein or in the Custody Agreement. If any Selling Stockholder should die or be incapacitated, or if any other such event should occur, before the delivery of the certificates for the Selling Stockholder Shares hereunder, the Selling Stockholder Shares to be sold by such Selling Stockholder shall, except as specifically provided herein or in the Custody Agreement, be delivered by the Custodian in accordance with the terms and conditions of this Agreement as if such death, incapacity or other event had not occurred, regardless of whether the Custodian shall have received notice of such death or other event. Delivery of definitive certificates for the Firm Shares to be purchased by the Underwriters pursuant to this Section 3 shall be made against payment of the purchase price therefor by the several Underwriters by certified or official bank check or checks drawn in next-day funds, payable to the order of the Company with regard to the Shares being purchased from the Company, and to the order of the Custodian for the respective accounts of the Selling Stockholders with regard to the Shares being purchased from such Selling Stockholders (and the Company and such Selling Stockholders agree not to deposit and to cause the Custodian not to deposit any such check in the bank on which it is drawn, and not to take any other action with the purpose or effect of receiving immediately available funds, until the business day following the date of its delivery to the Company or the Custodian, as the case may be, and, in the event of any breach of the foregoing, the Company or the Selling Stockholders, as the case may be, shall reimburse the Underwriters for the interest lost and any other expenses borne by them by reason of such breach), at the offices of Xxxxxx Xxxxxxx Xxxxxxxx & XxXxxxxxXxxxxx, Los AngelesProfessional Corporation, California 0000 Xxxxxxxxxx Xxxxxx, Xxxx Xxxx, Xxxxxxxxxx 00000 (or at such other place as may be agreed upon among the Representatives Representatives, the Company and the CompanySelling Stockholders), at 7:00 A.M., San Francisco time (a) on the third (3rd) full business day following the first day that Shares are traded, (b) if this Agreement is executed and delivered after 1:30 P.M., San Francisco time, the fourth (4th) full business day following the day that this Agreement is executed and delivered or (c) at such other time and date not later than seven (7) full business days following the first day that Shares are traded as the Representatives and the Company and the Attorneys Selling Stockholders may determine (or at such time and date to which payment and delivery shall have been postponed pursuant to Section 10 hereof), such time and date of payment and delivery being herein called the "Closing Date;" PROVIDED"; provided, HOWEVERhowever, that if the Company has not made available to the -------- ------- Representatives copies of the Prospectus within the time provided in Section 4(d) hereof, the Representatives may, in their sole discretion, postpone the Closing Date until no later than two (2) full business days following delivery of copies of the Prospectus to the Representatives. The certificates for the Firm Shares to be so delivered will be made available to you at such office or such other location including, without limitation, in New York City, as you may reasonably request for checking at least one (1) full business day prior to the Closing Date and will be in such names and denominations as you may request, such request to be made at least two (2) full business days prior to the Closing Date. If the Representatives so elect, delivery of the Firm Shares may be made by credit through full fast transfer to the accounts at The Depository Trust Company designated by the Representatives. It is understood that you, individually, and not as the Representatives of the several Underwriters, may (but shall not be obligated to) make payment of the purchase price on behalf of any Underwriter or Underwriters whose check or checks shall not have been received by you prior to the Closing Date for the Firm Shares to be purchased by such Underwriter or Underwriters. Any such payment by you shall not relieve any such Underwriter or Underwriters of any of its or their obligations hereunder. After the Registration Statement becomes effective, the several Underwriters intend to make a an initial public offering (as such term is described in Section 11 hereof) of the Firm Shares at a an initial public offering price of $_____ per share. After the initial public offering, the several Underwriters may, in their discretion, vary the public offering price. The information set forth in the second last paragraph on the front cover page (insofar as such information relates to the Underwriters), at the bottom of the inside front cover page concerning stabilization and eighth under the second, sixth and seventh paragraphs under the caption "Underwriting" in any Preliminary Prospectus and in the final form of Prospectus filed pursuant to Rule 424(b) constitutes the only information furnished by the Underwriters to the Company for inclusion in any Preliminary Prospectus, the Prospectus or the Registration Statement or any Incorporated DocumentStatement, and you, on behalf of the respective Underwriters, represent and warrant to the Company and the Selling Stockholders that the statements made therein do not include any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading.
Appears in 1 contract
Purchase, Sale and Delivery of Shares. On the basis of the ------------------------------------- representations, warranties and agreements herein contained, but subject to the terms and conditions herein set forth, each Selling Stockholder, severally and not jointly, hereby agrees to sell to the Underwriters, and each Underwriter agrees, severally and not jointly, to purchase from such Selling Stockholder, at a purchase price of $______ per Share (the "purchase price per Share"), the respective number of Firm Shares (subject to adjustment by Lazard Freres & Co. LLC to eliminate fractions) that bear the same proportion to the number of Firm Shares to be sold by such Selling Stockholder as the number of Firm Shares set forth opposite the name of such Underwriter in Schedule I hereto bears to the total number of Firm Shares. CGIP hereby agrees to sell to the Underwriters and, on the basis of the representations, warranties and agreements herein contained, but subject to the terms and conditions herein set forth, the Company and Underwriters shall have the Selling Stockholders agreeright to purchase, severally and not jointly, from CGIP, pursuant to sell an option to be exercised in the Underwriters30-day period commencing on the date of this Agreement, and up to 450,000 Additional Shares at the purchase price per Share. Additional Shares may be purchased solely for the purpose of covering over-allotments made in connection with the offering of the Firm Shares. If any Additional Shares are to be purchased, each Underwriter agrees, severally and not jointly, to purchase from CGIP that proportion of the Company and the Selling Stockholders, respectively, at a purchase price of $_____ per share, the respective total number of Company Additional Shares and Selling Stockholder Shares set forth opposite the names of the Company and the Selling Stockholders, respectively, in Schedule B hereto. The obligation of each Underwriter (subject to the Company and adjustment by Lazard Freres & Co. LLC to each Selling Stockholder shall eliminate fractions) to be to purchase purchased from the Company or such Selling Stockholder that number of Company Shares or Selling Stockholder Shares, as the case may be, which (as nearly as practicable, as determined by you) is in the same proportion to the number of Company Shares or Selling Stockholder Shares, as the case may be, set forth opposite the name of the Company or such Selling Stockholder in Schedule B hereto CGIP as the number of Firm Shares which is set forth opposite the name of such Underwriter in Schedule A I hereto (subject to adjustment as provided in Section 10) is bears to the total number of Firm Shares to be purchased by all the Underwriters under this Agreement. The certificates in negotiable form or properly executed option exercise forms for the Selling Stockholder Shares have been placed in custody (for delivery under this Agreement) under the Custody AgreementShares. Each Selling Stockholder agrees that the certificates or executed option exercise forms for the Selling Stockholder Shares of such Selling Stockholder so held in custody are subject to the interests of the Underwriters hereunder, that the arrangements made by such Selling Stockholder for such custody, including the Power of Attorney is to that extent irrevocable and that the obligations of such Selling Stockholder hereunder shall not be terminated by the act of such Selling Stockholder or by operation of law, whether by the death or incapacity of such Selling Stockholder or the occurrence of any other event, except as specifically provided herein or in the Custody Agreement. If any Selling Stockholder should die or be incapacitated, or if any other such event should occur, before the delivery of the certificates for the Selling Stockholder Shares hereunder, the Selling Stockholder Shares to be sold by such Selling Stockholder shall, except as specifically provided herein or in the Custody Agreement, be delivered by the Custodian in accordance with the terms and conditions of this Agreement as if such death, incapacity or other event had not occurred, regardless of whether the Custodian shall have received notice of such death or other event. Delivery of definitive certificates for will deliver the Firm Shares to be purchased by the Underwriters pursuant to this Section 3 shall be made Underwriters, against payment of the purchase price therefor by the several Underwriters wire transfer of same day funds to an account specified in writing by certified or official bank check or checks drawn in next-day funds, payable to the order of the Company with regard to the Shares being purchased from the Company, and to the order of the Custodian such Selling Stockholder. Payment for the respective accounts Firm Shares shall be made at the offices of Cravath, Swaine & Xxxxx at 10:00 A.M., New York Time, on _____________, 1996 or at such other place or time not later than seven full business days thereafter as the Underwriters and the Selling Stockholders with regard determine (the "Initial Closing Date"). CGIP will deliver the Additional Shares to the Shares being purchased from Underwriters, against payment of the purchase price therefor by wire transfer of same day funds to an account specified in writing by CGIP, at the offices of Cravath, Swaine & Xxxxx on such Selling Stockholders date and at such time (and the Company and such Selling Stockholders agree not to deposit and to cause the Custodian not to deposit any such check "Option Closing Date"), as shall be specified in the bank on which it is drawnnotice from Lazard Freres & Co. LLC to CGIP exercising the option to purchase the Additional Shares. The Option Closing Date may be the same as the Initial Closing Date but shall in no event be earlier than the Initial Closing Date nor earlier than two nor later than ten business days after the giving of the notice hereinafter referred to. Such notice may be given, and not by letter or by telecopy or other facsimile transmission or by telephone (if subsequently confirmed in writing), to take CGIP at any other action with the purpose or effect of receiving immediately available funds, until the business day following time within 30 days after the date of its delivery this Agreement. The Option Closing Date may be varied by agreement between the Underwriters and CGIP. The Initial Closing Date and the Option Closing Date are herein collectively referred to as the "Closing Date." The certificates for all the Firm Shares and the Additional Shares so to be delivered will be in such denominations and registered in such names as the Underwriters request two full business days prior to the Company Initial Closing Date or the CustodianOption Closing Date, as the case may be, andand will be made available at the offices of Lazard Freres & Co. LLC, in New York, New York or, upon your request, through the event facilities of any breach of The Depository Trust Company, for checking and packaging at least one full business day prior to the foregoing, the Company Initial Closing Date or the Selling StockholdersOption Closing Date, as the case may be, shall reimburse the Underwriters for the interest lost and any other expenses borne by them by reason of such breach), at the offices of Xxxxxxx & XxXxxxxx, Los Angeles, California (or at such other place as may be agreed upon among the Representatives and the Company), at 7:00 A.M., San Francisco time (a) on the third (3rd) full business day following the first day that Shares are traded, (b) if this Agreement is executed and delivered after 1:30 P.M., San Francisco time, the fourth (4th) full business day following the day that this Agreement is executed and delivered or (c) at such other time and date not later than seven (7) full business days following the first day that Shares are traded as the Representatives and the Company and the Attorneys may determine (or at such time and date to which payment and delivery shall have been postponed pursuant to Section 10 hereof), such time and date of payment and delivery being herein called the "Closing Date;" PROVIDED, HOWEVER, that if the Company has not made available to the Representatives copies of the Prospectus within the time provided in Section 4(d) hereof, the Representatives may, in their sole discretion, postpone the Closing Date until no later than two (2) full business days following delivery of copies of the Prospectus to the Representatives. The certificates for the Firm Shares to be so delivered will be made available to you at such office or such other location including, without limitation, in New York City, as you may reasonably request for checking at least one (1) full business day prior to the Closing Date and will be in such names and denominations as you may request, such request to be made at least two (2) full business days prior to the Closing Date. If the Representatives so elect, delivery of the Firm Shares may be made by credit through full fast transfer to the accounts at The Depository Trust Company designated by the Representatives. It is understood that you, individually, and not as the Representatives of the several Underwriters, may (but shall not be obligated to) make payment of the purchase price on behalf of any Underwriter or Underwriters whose check or checks shall not have been received by you prior to the Closing Date for the Firm Shares to be purchased by such Underwriter or Underwriters. Any such payment by you shall not relieve any such Underwriter or Underwriters of any of its or their obligations hereunder. After the Registration Statement becomes effective, the several Underwriters intend to make a public offering (as such term is described in Section 11 hereof) of the Firm Shares at a public offering price of $_____ per share. After the public offering, the several Underwriters may, in their discretion, vary the public offering price. The information set forth in the second and eighth paragraphs under the caption "Underwriting" in any Preliminary Prospectus and in the Prospectus constitutes the only information furnished by the Underwriters to the Company for inclusion in any Preliminary Prospectus, the Prospectus or the Registration Statement or any Incorporated Document, and you, on behalf of the respective Underwriters, represent and warrant to the Company and the Selling Stockholders that the statements made therein do not include any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading.
Appears in 1 contract
Purchase, Sale and Delivery of Shares. On the basis of the representations, warranties and agreements herein containedcovenants contained herein, but and subject to the terms and conditions herein set forth, the Company and the each Selling Stockholders agreeShareholder agrees, severally and not jointly, to sell to the Underwriters, each Underwriter and each Underwriter agrees, severally and not jointly, to purchase from the Company and the each Selling Stockholders, respectivelyShareholder, at a purchase price of $_____ [ ] per share, the respective number of Company Shares and Selling Stockholder Shares set forth opposite the names of the Company and the Selling Stockholders, respectively, in Schedule B hereto. The obligation of each Underwriter to the Company and to each Selling Stockholder shall be to purchase from the Company or such Selling Stockholder that number of Company Shares or Selling Stockholder Shares, as the case may be, which (as nearly as practicable, as determined by you) is in the same proportion to the number of Company Shares or Selling Stockholder Shares, as the case may be, set forth opposite the name of the Company or such Selling Stockholder in Schedule B hereto as the number of Firm Shares (to be adjusted by you to eliminate fractional shares) determined by multiplying the aggregate number of Firm Shares to be sold by the Company and each of the Selling Shareholders, as set forth opposite their respective names in Schedule B hereto, by a fraction, the numerator of which is the aggregate number of Firm Shares to be purchased by such Underwriter as set forth opposite the name of such Underwriter in Schedule A hereto (subject to adjustment as provided in Section 10) and the denominator of which is to the total aggregate number of Firm Shares to be purchased by all the Underwriters under this Agreement. The certificates in negotiable form or properly executed option exercise forms for from the Company and the Selling Stockholder Shares have been placed in custody (for delivery under this Agreement) under Shareholders hereunder. In addition, on the Custody Agreement. Each Selling Stockholder agrees that basis of the certificates or executed option exercise forms for the Selling Stockholder Shares of such Selling Stockholder so held in custody are representations, warranties and covenants contained herein and subject to the interests terms and conditions herein set forth, each of the Company and the Selling Shareholders, as and to the extent indicated in Schedule B hereto, hereby grant, severally and not jointly, to the several Underwriters hereunderan option to purchase at the Underwriters' election up to 375,000 Option Shares at the same price per share as set forth for the Firm Shares in the paragraph above, that for the arrangements made by such Selling Stockholder for such custody, including sole purpose of covering over allotments in the Power sale of Attorney is to that extent irrevocable and that the obligations of such Selling Stockholder hereunder shall not Firm Shares. The option granted hereby may be terminated by the act of such Selling Stockholder or by operation of law, whether by the death or incapacity of such Selling Stockholder or the occurrence of any other event, except as specifically provided herein exercised in whole or in part, but only once, and at any time upon written notice given within 30 days after the Custody date of this Agreement. If any Selling Stockholder should die or be incapacitated, or if any other such event should occurby you, before the delivery as Representatives of the certificates for several Underwriters, to the Selling Stockholder Shares hereunderCompany, the Selling Stockholder Attorneys-in-Fact and the Custodian setting forth the number of Option Shares as to which the several Underwriters are exercising the option and the time and date at which certificates are to be delivered. Any such election to purchase Option Shares shall be made in proportion to the maximum number of Option Shares to be sold by the Company and each Selling Shareholder as set forth in Schedule B hereto. If any Option Shares are purchased, each Underwriter agrees, severally and not jointly, to purchase that portion of the number of Option Shares as to which such Selling Stockholder shall, except election shall have been exercised (subject to adjustment to eliminate fractional shares) determined by multiplying such number of Option Shares by a fraction the numerator of which is the maximum number of Option Shares which such Underwriter is entitled to purchase as specifically provided herein or set forth opposite the name of such Underwriter in Schedule A hereto and the Custody Agreement, denominator of which is the maximum number of Option Shares which all of the Underwriters are entitled to purchase hereunder. The time and date at which certificates for Option Shares are to be delivered shall be determined by the Custodian Representatives but shall not be earlier than two or later than ten full business days after the exercise of such option, and shall not in accordance with any event be prior to the terms and conditions Closing Date. If the date of this Agreement as if such deathexercise of the option is three or more full days before the Closing Date, incapacity or other event had not occurred, regardless of whether the Custodian shall have received notice of such death or other eventexercise shall set the Closing Date as the Option Closing Date. Delivery of Certificates in definitive certificates form for the Firm Shares to be purchased by each Underwriter hereunder, and in such denominations and registered in such names as Dain Xxxxxxxx Xxxxxxx xxx request upon at least forty-eight hours' prior notice to the Underwriters pursuant to this Section 3 Company, shall be made delivered by or on behalf of the Company to you for the account of such Underwriter at such time and place as shall hereafter be designated by the Representatives, against payment by such Underwriter or on its behalf of the purchase price therefor by the several Underwriters by certified or official bank check or checks drawn in next-day fundschecks, payable to the order of the Company in next day funds. The time and date of such delivery and payment shall be, with regard respect to the Shares being purchased from Firm Shares, 6:30 a.m. Portland, Oregon time, at the Companyoffices of Perkxxx Xxxe LLP, 1211 XX 0xx Xxxxxx, 00xx Xxxxx, Xxxxxxxx, Xxxxxx, xx May __, 1999, or such other time and to the order of the Custodian for the respective accounts of the Selling Stockholders with regard to the Shares being purchased from such Selling Stockholders (date as you and the Company may agree upon in writing, such time and such Selling Stockholders agree not date being herein referred to deposit as the "Closing Date," and, with respect to the Option Shares, at the time and to cause on the Custodian not to deposit any such check date specified by you in the bank on which it is drawnwritten notice given by you of the Underwriters' election to purchase the Option Shares, or such other time and not date as you and the Company may agree upon in writing, such time and date being referred to take any other action with herein as the purpose or effect of receiving immediately "Option Closing Date." Such certificates will be made available funds, until the business day following the date of its delivery for checking and packaging at least twenty-four hours prior to the Company Closing Date or the CustodianOption Closing Date, as the case may be, and, in the event of any breach of the foregoing, the Company or the Selling Stockholders, as the case may be, shall reimburse the Underwriters for the interest lost and any other expenses borne by them by reason of such breach), at the offices of Xxxxxxx & XxXxxxxx, Los Angeles, California (or at such other place a location as may be agreed upon among the Representatives and the Company), at 7:00 A.M., San Francisco time (a) on the third (3rd) full business day following the first day that Shares are traded, (b) if this Agreement is executed and delivered after 1:30 P.M., San Francisco time, the fourth (4th) full business day following the day that this Agreement is executed and delivered or (c) at such other time and date not later than seven (7) full business days following the first day that Shares are traded as the Representatives and the Company and the Attorneys may determine (or at such time and date to which payment and delivery shall have been postponed pursuant to Section 10 hereof), such time and date of payment and delivery being herein called the "Closing Date;" PROVIDED, HOWEVER, that if the Company has not made available to the Representatives copies of the Prospectus within the time provided in Section 4(d) hereof, the Representatives may, in their sole discretion, postpone the Closing Date until no later than two (2) full business days following delivery of copies of the Prospectus to the Representatives. The certificates for the Firm Shares to be so delivered will be made available to you at such office or such other location including, without limitation, in New York City, as you may reasonably request for checking at least one (1) full business day prior to the Closing Date and will be in such names and denominations as you may request, such request to be made at least two (2) full business days prior to the Closing Date. If the Representatives so elect, delivery of the Firm Shares may be made by credit through full fast transfer to the accounts at The Depository Trust Company designated by the Representatives. It is understood that you, individually, and not as the Representatives of the several Underwriters, may (but shall not be obligated to) make payment of the purchase price on behalf of any Underwriter or Underwriters whose check or checks shall not have been received by you prior to the Closing Date for the Firm Shares to be purchased by such Underwriter or Underwriters. Any such payment by you shall not relieve any such Underwriter or Underwriters of any of its or their obligations hereunder. After the Registration Statement becomes effective, the several Underwriters intend to make a public offering (as such term is described in Section 11 hereof) of the Firm Shares at a public offering price of $_____ per share. After the public offering, the several Underwriters may, in their discretion, vary the public offering price. The information set forth in the second and eighth paragraphs under the caption "Underwriting" in any Preliminary Prospectus and in the Prospectus constitutes the only information furnished by the Underwriters to the Company for inclusion in any Preliminary Prospectus, the Prospectus or the Registration Statement or any Incorporated Document, and you, on behalf of the respective Underwriters, represent and warrant to the Company and the Selling Stockholders that the statements made therein do not include any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading.
Appears in 1 contract
Samples: Webtrends Corp
Purchase, Sale and Delivery of Shares. On the basis of the representations, warranties and agreements herein contained, but subject to the terms and conditions herein set forth, the Company and the Selling Stockholders agree, severally and not jointly, to sell to the UnderwritersInternational Managers, and each Underwriter International Manager agrees, severally and not jointly, to purchase from the Company and the Selling Stockholders, respectively, at a purchase price of $_____ [$ ] per share, the respective number of Company Shares as hereinafter set ---- forth and Selling Stockholder Shares set forth opposite the names of the Company and the Selling Stockholders, respectively, Stockholders in Schedule B hereto. The obligation of each Underwriter International Manager to the Company and to each Selling Stockholder shall be to purchase from the Company or such Selling Stockholder that number of full Company Shares or Selling Stockholder Shares, as the case may be, which (as nearly as practicable, as determined by you) is in the same proportion to the number of Company Shares or Selling Stockholder Shares, as the case may be, set forth opposite the name of the Company or such Selling Stockholder in Schedule B hereto as the number of Firm Shares which is set forth opposite the name of such Underwriter International Manager in Schedule A hereto (subject to adjustment as provided in Section 10) is to the total number of Firm Shares to be purchased by all the Underwriters International Managers under this Agreement. The certificates in negotiable form or properly executed option exercise forms for the Selling Stockholder Shares have been placed in custody (for delivery under this Agreement) under the Custody Agreement. Each Selling Stockholder agrees that the certificates or executed option exercise forms for the Selling Stockholder Shares of such Selling Stockholder so held in custody are subject to the interests of the Underwriters International Managers hereunder, that the arrangements made by such Selling Stockholder for such custody, including the Power of Attorney is Attorney, are to that extent irrevocable and that the obligations of such Selling Stockholder hereunder shall not be terminated by the act of such Selling Stockholder or by operation of law, whether by the death or incapacity of such Selling Stockholder or the occurrence of any other event, except as specifically provided herein or in the Custody Agreement. If any Selling Stockholder should die or be incapacitated, or if any other such event should occur, before the delivery of the certificates for the Selling Stockholder Shares hereunder, the Selling Stockholder Shares to be sold by such Selling Stockholder shall, except as specifically provided herein or in the Custody Agreement, be delivered by the Custodian in accordance with the terms and conditions of this Agreement as if such death, incapacity or other event had not occurred, regardless of whether the Custodian shall have received notice of such death or other event. Delivery of definitive certificates for the Firm Shares to be purchased by the Underwriters International Managers pursuant to this Section 3 shall be made against payment of the purchase price therefor by the several Underwriters International Managers by wire transfer or certified or official bank check or checks drawn in nextsame-day fundsfunds as elected by the Company, payable to the order of the Company with regard to the Shares being purchased from the Company, and to the order of the Custodian for the respective accounts of the Selling Stockholders with regard to the Shares being purchased from such Selling Stockholders (and the Company and such Selling Stockholders agree not to deposit and to cause the Custodian not to deposit any such check in the bank on which it is drawn, and not to take any other action with the purpose or effect of receiving immediately available funds, until the business day following the date of its delivery to the Company or the Custodian, as the case may be, and, in the event of any breach of the foregoing, the Company or the Selling Stockholders, as the case may be, shall reimburse the Underwriters for the interest lost and any other expenses borne by them by reason of such breach), at the offices of Xxxxxxx Pillsbury Madison & XxXxxxxxSutro LLP, Los Angeles000 Xxxxxxxxxx Xxxxxx, California San Francisco, CA 94104 (or at such other place as may be agreed upon among the Representatives Lead Managers, the Company and the CompanySelling Stockholders), at 7:00 A.M., San Francisco time (a) on the third (3rdor, if the Firm Shares are priced, as contemplated by Rule 15c6-1(c) of the Securities Exchange Act of 1934, as amended (the "Exchange Act") after 4:30 p.m. Washington D.C. time, the fourth) full business day following the first day that Shares are traded, (b) if this Agreement is executed and delivered after 1:30 P.M., San Francisco time, the fourth (4th) full business day following the day that this Agreement is executed and delivered or (c) at such other time and date not later than seven (7) full business days following the first day that Shares are traded as the Representatives and the Company and the Attorneys may determine (or at such time and date to which payment and delivery shall have been postponed pursuant to Section 10 hereof), such time and date of payment and delivery being herein called the "Closing Date;." PROVIDED, HOWEVER, that if the Company has not made available to the Representatives copies of the Prospectus within the time provided in Section 4(d) hereof, the Representatives may, in their sole discretion, postpone the Closing Date until no later than two (2) full business days following delivery of copies of the Prospectus to the Representatives. The certificates for the Firm Shares to be so delivered will be made available to you at such office or at such other location including, without limitation, in New York City, as you may reasonably request for checking at least one (1) full business day prior to the Closing Date and will be in such names and denominations as you may request, such request to be made at least two (2) full business days prior to the Closing Date. If the Representatives Lead Managers so elect, delivery of the Firm Shares may be made by credit through full fast transfer to the accounts at The Depository Trust Company designated by the RepresentativesLead Managers. It is understood that you, individually, individually and not as the Representatives Lead Managers of the several UnderwritersInternational Managers, may (but shall not be obligated to) make payment of the purchase price on behalf of any Underwriter International Manager or Underwriters International Managers whose check or checks shall not have been received by you prior to the Closing Date for the Firm Shares to be purchased by such Underwriter International Manager or UnderwritersInternational Managers. Any such payment by you shall not relieve any such Underwriter International Manager or Underwriters International Managers of any of its or their obligations hereunder. After the Registration Statement becomes effective, the several Underwriters International Managers intend to make a public offering (as such term is described in Section 11 hereof) of offer the Firm Shares at a public offering price of $_____ per share. After to the public offering, as set forth in the several Underwriters may, in their discretion, vary the public offering priceProspectus. The information set forth in the second last paragraph on the front cover page (insofar as such information relates to the International Managers), the legend appearing on the inside front cover page and eighth paragraphs all information set forth under the caption "Underwriting" in any Preliminary Prospectus and in the Prospectus filed pursuant to Rule 424(b) constitutes the only information furnished by the Underwriters International Managers to the Company for inclusion in any Preliminary Prospectus, the Prospectus or the Registration Statement or any Incorporated DocumentStatement, and you, on behalf of the respective UnderwritersInternational Managers, represent and warrant to the Company and the Selling Stockholders that the statements made therein are true and correct and do not include any untrue statement of a material fact or omit fail to state a any material fact required to be stated therein or necessary in order to make the such statements therein, in the light of the circumstances under in which they were made, made not misleading.
Appears in 1 contract
Purchase, Sale and Delivery of Shares. On the basis of the representations, warranties and agreements herein containedcovenants contained herein, but and subject to the terms and conditions herein set forth, the Company and the each Selling Stockholders agreeShareholder agrees, severally and not jointly, to sell to the Underwriters, each Underwriter and each Underwriter agrees, severally and not jointly, to purchase from the Company and the each Selling Stockholders, respectivelyShareholder, at a purchase price of $_____ per share, the respective number of Firm Shares (to be adjusted by you to eliminate fractional shares) determined by multiplying the aggregate number of Firm Shares to be sold by the Company Shares and each of the Selling Stockholder Shares Shareholders, as set forth opposite the their respective names of the Company and the Selling Stockholders, respectively, in Schedule B hereto. The obligation , by a fraction, the numerator of each Underwriter to which is the Company and to each Selling Stockholder shall be to purchase from the Company or such Selling Stockholder that number of Company Shares or Selling Stockholder Shares, as the case may be, which (as nearly as practicable, as determined by you) is in the same proportion to the number of Company Shares or Selling Stockholder Shares, as the case may be, set forth opposite the name of the Company or such Selling Stockholder in Schedule B hereto as the aggregate number of Firm Shares which is to be purchased by such Underwriter as set forth opposite the name of such Underwriter in Schedule A hereto (subject to adjustment as provided in Section 10) and the denominator of which is to the total aggregate number of Firm Shares to be purchased by all the Underwriters under this Agreement. The certificates in negotiable form or properly executed option exercise forms for from the Company and the Selling Stockholder Shares have been placed in custody (for delivery under this Agreement) under Shareholders hereunder. In addition, on the Custody Agreement. Each Selling Stockholder agrees that basis of the certificates or executed option exercise forms for the Selling Stockholder Shares of such Selling Stockholder so held in custody are representations, warranties and covenants contained herein and subject to the interests terms and conditions herein set forth, each of the Selling Shareholders, as and to the extent indicated in Schedule B hereto, hereby grant, severally and not jointly, to the several Underwriters hereunderan option to purchase at the Underwriters' election up to 525,000 Option Shares at the same price per share as set forth for the Firm Shares in the paragraph above, that for the arrangements made by such Selling Stockholder for such custody, including sole purpose of covering over allotments in the Power sale of Attorney is to that extent irrevocable and that the obligations of such Selling Stockholder hereunder shall not Firm Shares. The option granted hereby may be terminated by the act of such Selling Stockholder or by operation of law, whether by the death or incapacity of such Selling Stockholder or the occurrence of any other event, except as specifically provided herein exercised in whole or in part, but only once, and at any time upon written notice given within 30 days after the Custody date of this Agreement. If any Selling Stockholder should die or be incapacitated, or if any other such event should occurby you, before the delivery as Representatives of the certificates for several Underwriters, to the Selling Stockholder Shares hereunderCompany, the Selling Stockholder Attorneys-in-Fact and the Custodian setting forth the number of Option Shares as to which the several Underwriters are exercising the option and the time and date at which certificates are to be delivered. Any such election to purchase Option Shares shall be made in proportion to the maximum number of Option Shares to be sold by each Selling Shareholder as set forth in Schedule B hereto. If any Option Shares are purchased, each Underwriter agrees, severally and not jointly, to purchase that portion of the number of Option Shares as to which such Selling Stockholder shall, except election shall have been exercised (subject to adjustment to eliminate fractional shares) determined by multiplying such number of Option Shares by a fraction the numerator of which is the maximum number of Option Shares which such Underwriter is entitled to purchase as specifically provided herein or set forth opposite the name of such Underwriter in Schedule A hereto and the Custody Agreement, denominator of which is the maximum number of Option Shares which all of the Underwriters are entitled to purchase hereunder. The time and date at which certificates for Option Shares are to be delivered shall be determined by the Custodian Representatives but shall not be earlier than two or later than ten full business days after the exercise of such option, and shall not in accordance with any event be prior to the terms and conditions Closing Date. If the date of this Agreement as if such deathexercise of the option is three or more full days before the Closing Date, incapacity or other event had not occurred, regardless of whether the Custodian shall have received notice of such death or other eventexercise shall set the Closing Date as the Option Closing Date. Delivery of Certificates in definitive certificates form for the Firm Shares to be purchased by each Underwriter hereunder, and in such denominations and registered in such names as Dain Xxxxxxxx Xxxxxxx xxx request upon at least forty-eight hours' prior notice to the Underwriters pursuant to this Section 3 Company, shall be made delivered by or on behalf of the Company to you for the account of such Underwriter at such time and place as shall hereafter be designated by the Representatives, against payment by such Underwriter or on its behalf of the purchase price therefor by the several Underwriters by certified or official bank check or checks drawn in next-day fundschecks, payable to the order of the Company in next day funds. The time and date of such delivery and payment shall be, with regard respect to the Shares being purchased from Firm Shares, 8:30 a.m. Palo Alto, California] time, at the Companyoffices of Wilsxx Xxxxxxx Xxxxxxxx & Xosaxx, 000 Xxxx Xxxx Xxxx, Xxxx Xxxx, XX 00000, xx _______________, 1999, or such other time and to the order of the Custodian for the respective accounts of the Selling Stockholders with regard to the Shares being purchased from such Selling Stockholders (date as you and the Company may agree upon in writing, such time and such Selling Stockholders agree not date being herein referred to deposit as the "Closing Date," and, with respect to the Option Shares, at the time and to cause on the Custodian not to deposit any such check date specified by you in the bank on which it is drawnwritten notice given by you of the Underwriters' election to purchase the Option Shares, or such other time and not date as you and the Company may agree upon in writing, such time and date being referred to take any other action with herein as the purpose or effect of receiving immediately "Option Closing Date." Such certificates will be made available funds, until the business day following the date of its delivery for checking and packaging at least twenty-four hours prior to the Company Closing Date or the CustodianOption Closing Date, as the case may be, and, in the event of any breach of the foregoing, the Company or the Selling Stockholders, as the case may be, shall reimburse the Underwriters for the interest lost and any other expenses borne by them by reason of such breach), at the offices of Xxxxxxx & XxXxxxxx, Los Angeles, California (or at such other place a location as may be agreed upon among the Representatives and the Company), at 7:00 A.M., San Francisco time (a) on the third (3rd) full business day following the first day that Shares are traded, (b) if this Agreement is executed and delivered after 1:30 P.M., San Francisco time, the fourth (4th) full business day following the day that this Agreement is executed and delivered or (c) at such other time and date not later than seven (7) full business days following the first day that Shares are traded as the Representatives and the Company and the Attorneys may determine (or at such time and date to which payment and delivery shall have been postponed pursuant to Section 10 hereof), such time and date of payment and delivery being herein called the "Closing Date;" PROVIDED, HOWEVER, that if the Company has not made available to the Representatives copies of the Prospectus within the time provided in Section 4(d) hereof, the Representatives may, in their sole discretion, postpone the Closing Date until no later than two (2) full business days following delivery of copies of the Prospectus to the Representatives. The certificates for the Firm Shares to be so delivered will be made available to you at such office or such other location including, without limitation, in New York City, as you may reasonably request for checking at least one (1) full business day prior to the Closing Date and will be in such names and denominations as you may request, such request to be made at least two (2) full business days prior to the Closing Date. If the Representatives so elect, delivery of the Firm Shares may be made by credit through full fast transfer to the accounts at The Depository Trust Company designated by the Representatives. It is understood that you, individually, and not as the Representatives of the several Underwriters, may (but shall not be obligated to) make payment of the purchase price on behalf of any Underwriter or Underwriters whose check or checks shall not have been received by you prior to the Closing Date for the Firm Shares to be purchased by such Underwriter or Underwriters. Any such payment by you shall not relieve any such Underwriter or Underwriters of any of its or their obligations hereunder. After the Registration Statement becomes effective, the several Underwriters intend to make a public offering (as such term is described in Section 11 hereof) of the Firm Shares at a public offering price of $_____ per share. After the public offering, the several Underwriters may, in their discretion, vary the public offering price. The information set forth in the second and eighth paragraphs under the caption "Underwriting" in any Preliminary Prospectus and in the Prospectus constitutes the only information furnished by the Underwriters to the Company for inclusion in any Preliminary Prospectus, the Prospectus or the Registration Statement or any Incorporated Document, and you, on behalf of the respective Underwriters, represent and warrant to the Company and the Selling Stockholders that the statements made therein do not include any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading.
Appears in 1 contract
Samples: Webtrends Corp
Purchase, Sale and Delivery of Shares. On (a) Shares representing the basis of the representations, warranties and agreements herein contained, but subject to the terms and conditions herein set forth, the Company and the Selling Stockholders agree, severally and not jointly, to sell to the Underwriters, and each Underwriter agrees, severally and not jointly, to purchase from the Company and the Selling Stockholders, respectively, at a purchase price of $_____ per share, the respective number of Company Shares and Selling Stockholder Shares set forth opposite the names of the Company and the Selling Stockholders, respectively, in Schedule B heretoInitial Preferred Shares. The obligation of each Underwriter the Underwriters to purchase the Shares representing the Initial Preferred Shares will be evidenced by an agreement or exchange of other written communications (the "Terms Agreement") at the time the Company determines to sell the Shares representing the Initial Preferred Shares. The Terms Agreement will incorporate by reference the provisions of this Agreement, except as otherwise provided therein, and to each Selling Stockholder shall will specify the firm or firms that will be to purchase from Underwriters, the Company or such Selling Stockholder that number names of Company Shares or Selling Stockholder Sharesany Representatives, as the case may be, which (as nearly as practicable, as determined by you) is in the same proportion to the number of Company Shares or Selling Stockholder Shares, as the case may be, set forth opposite the name of the Company or such Selling Stockholder in Schedule B hereto as the number of Firm Shares which is set forth opposite the name of such Underwriter in Schedule A hereto (subject to adjustment as provided in Section 10) is to the total number of Firm Shares to be purchased by all the Underwriters under this Agreement. The certificates in negotiable form or properly executed option exercise forms for the Selling Stockholder Shares have been placed in custody (for delivery under this Agreement) under the Custody Agreement. Each Selling Stockholder agrees that the certificates or executed option exercise forms for the Selling Stockholder Shares of such Selling Stockholder so held in custody are subject to the interests of the Underwriters hereunder, that the arrangements made by such Selling Stockholder for such custody, including the Power of Attorney is to that extent irrevocable each Underwriter and that the obligations of such Selling Stockholder hereunder shall not be terminated by the act of such Selling Stockholder or by operation of law, whether by the death or incapacity of such Selling Stockholder or the occurrence of any other event, except as specifically provided herein or in the Custody Agreement. If any Selling Stockholder should die or be incapacitated, or if any other such event should occur, before the delivery of the certificates for the Selling Stockholder Shares hereunder, the Selling Stockholder Shares to be sold by such Selling Stockholder shall, except as specifically provided herein or in the Custody Agreement, be delivered by the Custodian in accordance with the terms and conditions of this Agreement as if such death, incapacity or other event had not occurred, regardless of whether the Custodian shall have received notice of such death or other event. Delivery of definitive certificates for the Firm Shares to be purchased by the Underwriters pursuant to this Section 3 shall be made against payment of the purchase price therefor to be paid by the several Underwriters by certified or official bank check or checks drawn in next-day funds, payable to Underwriters. The Terms Agreement will also specify the order of the Company with regard to the Shares being purchased from the Company, time and to the order of the Custodian for the respective accounts of the Selling Stockholders with regard to the Shares being purchased from such Selling Stockholders (and the Company and such Selling Stockholders agree not to deposit and to cause the Custodian not to deposit any such check in the bank on which it is drawn, and not to take any other action with the purpose or effect of receiving immediately available funds, until the business day following the date of its delivery to the Company and payment (such time and date, or the Custodian, as the case may be, and, in the event of any breach of the foregoing, the Company or the Selling Stockholders, as the case may be, shall reimburse the Underwriters for the interest lost and any other expenses borne by them by reason of such breach), at the offices of Xxxxxxx & XxXxxxxx, Los Angeles, California (or at such other place as may be agreed upon among the Representatives and the Company), at 7:00 A.M., San Francisco time (a) on the third (3rd) full business day following the first day that Shares are traded, (b) if this Agreement is executed and delivered after 1:30 P.M., San Francisco time, the fourth (4th) full business day following the day that this Agreement is executed and delivered or (c) at such other time and date not later than seven (7) full business days following the first day that Shares are traded thereafter as the Representatives Underwriter first named in the Terms Agreement (the "Lead Underwriter") and the Company and agree as the Attorneys may determine (or at such time and date to which for payment and delivery shall have been postponed pursuant to Section 10 hereof)delivery, such time and date of payment and delivery being herein called and in the Terms Agreement referred to as the "Closing Date;" PROVIDED"), HOWEVER, the place of delivery and payment and any details of the terms of offering that if should be reflected in the Company has not made available prospectus supplement relating to the Representatives copies offering of the Prospectus within Shares representing the time provided in Section 4(d) hereofInitial Preferred Shares. For purposes of Rule 15c6-1 under the Exchange Act, the Representatives may, in their sole discretion, postpone the Closing Date until no (if later than two (2the otherwise applicable settlement date) full business days following shall be the date for payment of funds and delivery of copies securities for all the Shares representing the Initial Preferred Shares sold pursuant to the offering. The obligations of the Prospectus Underwriters to purchase the Representatives. The certificates for Shares representing the Firm Initial Preferred Shares to be so delivered will be made available to you at such office or such other location including, without limitation, in New York City, as you may reasonably request for checking at least one (1) full business day prior to the Closing Date several and will be in such names and denominations as you may request, such request to be made at least two (2) full business days prior to the Closing Date. If the Representatives so elect, delivery of the Firm Shares may be made by credit through full fast transfer to the accounts at The Depository Trust Company designated by the Representativesnot joint. It is understood that you, individually, and not the Underwriters propose to offer the Shares representing the Initial Preferred Shares for sale as the Representatives of the several Underwriters, may (but shall not be obligated to) make payment of the purchase price on behalf of any Underwriter or Underwriters whose check or checks shall not have been received by you prior to the Closing Date for the Firm Shares to be purchased by such Underwriter or Underwriters. Any such payment by you shall not relieve any such Underwriter or Underwriters of any of its or their obligations hereunder. After the Registration Statement becomes effective, the several Underwriters intend to make a public offering (as such term is described in Section 11 hereof) of the Firm Shares at a public offering price of $_____ per share. After the public offering, the several Underwriters may, in their discretion, vary the public offering price. The information set forth in the second and eighth paragraphs under the caption "Underwriting" in any Preliminary Prospectus and in the Prospectus constitutes the only information furnished by the Underwriters to the Company for inclusion in any Preliminary Prospectus, the Prospectus or the Registration Statement or any Incorporated Document, and you, on behalf of the respective Underwriters, represent and warrant to the Company and the Selling Stockholders that the statements made therein do not include any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading.
Appears in 1 contract
Samples: Terms Agreement (Ace LTD)
Purchase, Sale and Delivery of Shares. On the basis of the representations, warranties and agreements herein contained, but subject to the terms and conditions herein set forth, the Company and the Selling Stockholders agree, severally and not jointly, to sell to the Underwriters, and each Underwriter agrees, severally and not jointly, to purchase from the Company and the Selling Stockholders, respectively, at a purchase price of $________ per share, the respective number of Company Firm Shares as hereinafter set forth and Selling Stockholder Shares set forth opposite the names of the Company and the Selling Stockholders, respectively, Stockholders in Schedule B hereto. The obligation of each Underwriter to the Company and to each Selling Stockholder shall be to purchase from the Company or such Selling Stockholder that number of Company Firm Shares or Selling Stockholder Shares, as the case may be, which (as nearly as practicable, as determined by you) is in the same proportion to the number of Company Shares or Selling Stockholder Shares, as the case may be, set forth opposite the name of the Company or such Selling Stockholder in Schedule B hereto as the number of Firm Shares which is set forth opposite the name of such Underwriter in Schedule A hereto (subject to adjustment as provided in Section 10) is to the total number of Firm Shares to be purchased by all the Underwriters under this Agreement. The certificates in negotiable form or properly executed option exercise forms for the Selling Stockholder Shares (or certificates representing securities convertible into such Shares) have been placed in custody (for delivery under this Agreement) under the Custody Agreement. Each Selling Stockholder agrees that the certificates or executed option exercise forms for the Selling Stockholder Shares of such Selling Stockholder so held in custody are subject to the interests of the Underwriters hereunder, that the arrangements made by such Selling Stockholder for such custody, including the Power of Attorney is to that extent irrevocable and that the obligations of such Selling Stockholder hereunder shall not be terminated by the act of such Selling Stockholder or by operation of law, whether by the death or incapacity of such Selling Stockholder or the occurrence of any other event, except as specifically provided herein or in the Custody Agreement. If any Selling Stockholder should die or be incapacitated, or if any other such event should occur, before the delivery of the certificates for the Selling Stockholder Shares hereunder, the Selling Stockholder Shares to be sold by such Selling Stockholder shall, except as specifically provided herein or in the Custody Agreement, be delivered by the Custodian in accordance with the terms and conditions of this Agreement as if such death, incapacity or other event had not occurred, regardless of whether the Custodian shall have received notice of such death or other event. Delivery of definitive certificates for the Firm Shares to be purchased by the Underwriters pursuant to this Section 3 shall be made against payment of the purchase price therefor by the several Underwriters by certified or official bank check or checks drawn in nextsame-day funds, payable to the order of the Company with regard to the Shares being purchased from the Company, and to the order of the Custodian for the respective accounts of the Selling Stockholders with regard to the Shares being purchased from such Selling Stockholders (and the Company and such Selling Stockholders agree not to deposit and to cause the Custodian not to deposit any such check in the bank on which it is drawn, and not to take any other action with the purpose or effect of receiving immediately available funds, until the business day following the date of its delivery to the Company or the Custodian, as the case may be, and, in the event of any breach of the foregoing, the Company or the Selling Stockholders, as the case may be, shall reimburse the Underwriters for the interest lost and any other expenses borne by them by reason of such breach), at the offices of Xxxxxxx & XxXxxxxx, Los Angeles, California (or at such other place as may be agreed upon among the Representatives and the Company), at 7:00 A.M., San Francisco time (a) on the third (3rd) full business day following the first day that Shares are traded, (b) if this Agreement is executed and delivered after 1:30 P.M., San Francisco time, the fourth (4th) full business day following the day that this Agreement is executed and delivered or (c) at such other time and date not later than seven (7) full business days following the first day that Shares are traded as the Representatives and the Company and the Attorneys may determine (or at such time and date to which payment and delivery shall have been postponed pursuant to Section 10 hereof), such time and date of payment and delivery being herein called the "Closing Date;" PROVIDED, HOWEVER, that if the Company has not made available to the Representatives copies of the Prospectus within the time provided in Section 4(d) hereof, the Representatives may, in their sole discretion, postpone the Closing Date until no later than two (2) full business days following delivery of copies of the Prospectus to the Representatives. The certificates for the Firm Shares to be so delivered will be made available to you at such office or such other location including, without limitation, in New York City, as you may reasonably request for checking at least one (1) full business day prior to the Closing Date and will be in such names and denominations as you may request, such request to be made at least two (2) full business days prior to the Closing Date. If the Representatives so elect, delivery of the Firm Shares may be made by credit through full fast transfer to the accounts at The Depository Trust Company designated by the Representatives. It is understood that you, individually, and not as the Representatives of the several Underwriters, may (but shall not be obligated to) make payment of the purchase price on behalf of any Underwriter or Underwriters whose check or checks shall not have been received by you prior to the Closing Date for the Firm Shares to be purchased by such Underwriter or Underwriters. Any such payment by you shall not relieve any such Underwriter or Underwriters of any of its or their obligations hereunder. After the Registration Statement becomes effective, the several Underwriters intend to make a public offering (as such term is described in Section 11 hereof) of the Firm Shares at a public offering price of $_____ per share. After the public offering, the several Underwriters may, in their discretion, vary the public offering price. The information set forth in the second and eighth paragraphs under the caption "Underwriting" in any Preliminary Prospectus and in the Prospectus constitutes the only information furnished by the Underwriters to the Company for inclusion in any Preliminary Prospectus, the Prospectus or the Registration Statement or any Incorporated Document, and you, on behalf of the respective Underwriters, represent and warrant to the Company and the Selling Stockholders that the statements made therein do not include any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading.Selling
Appears in 1 contract
Purchase, Sale and Delivery of Shares. On the basis of the representations, warranties and agreements herein containedcovenants contained herein, but and subject to the terms and conditions herein set forth, the Company and the Selling Stockholders agree, severally and not jointly, agrees to sell to the Underwriters, each Underwriter and each Underwriter agrees, severally and not jointly, to purchase from the Company and the Selling Stockholders, respectivelyCompany, at a purchase price of $_______ per share, the respective number of Company Shares and Selling Stockholder Shares set forth opposite the names of the Company and the Selling Stockholders, respectively, in Schedule B hereto. The obligation of each Underwriter to the Company and to each Selling Stockholder shall be to purchase from the Company or such Selling Stockholder that number of Company Shares or Selling Stockholder Shares, as the case may be, which (as nearly as practicable, as determined by you) is in the same proportion to the number of Company Shares or Selling Stockholder Shares, as the case may be, set forth opposite the name of the Company or such Selling Stockholder in Schedule B hereto as the number of Firm Shares which is as set forth opposite the name of such Underwriter in Schedule A hereto . In addition, on the basis of the representations, warranties and covenants contained herein and subject to the terms and conditions herein set forth, the Company hereby grants to the several Underwriters an option to purchase at the Underwriters' election up to the aggregate number of Option Shares, at the same price per share as set forth for the Firm Shares in the paragraph above, for the sole purpose of covering over allotments in the sale of the Firm Shares. The option granted hereby may be exercised in whole or in part, but only once, and at any time upon written notice given within 30 days after the date of this Agreement, by you, as Representatives of the several Underwriters, to the Company setting forth the aggregate number of Option Shares as to which the several Underwriters are exercising the option and the time and date at which certificates are to be delivered. Any such election to purchase Option Shares shall be made in proportion to the maximum number of Option Shares to be sold by the Company. If any Option Shares are purchased, each Underwriter agrees, severally and not jointly, to purchase that portion of the aggregate number of Option Shares as to which such election shall have been exercised (subject to adjustment to eliminate fractional shares) determined by multiplying such aggregate number of Option Shares by a fraction the numerator of which is the maximum number of Option Shares which such Underwriter is entitled to purchase as provided set forth opposite the name of such Underwriter in Section 10) Schedule A hereto and the denominator of which is the maximum number of Option Shares which all of the Underwriters are entitled to purchase hereunder. The time and date at which certificates for Option Shares are to be delivered shall be determined by the Representatives but shall not be earlier than two or later than ten full business days after the exercise of such option, and shall not in any event be prior to the total number Closing Date. If the date of Firm exercise of the option is three or more full days before the Closing Date, the notice of exercise shall set the Closing Date as the Option Closing Date. Certificates in definitive form for the Shares to be purchased by all the Underwriters under this Agreement. The certificates each Underwriter hereunder, and in negotiable form or properly executed option exercise forms for the Selling Stockholder Shares have been placed such denominations and registered in custody (for delivery under this Agreement) under the Custody Agreement. Each Selling Stockholder agrees that the certificates or executed option exercise forms for the Selling Stockholder Shares of such Selling Stockholder so held in custody are subject names as Xxxx Xxxxxxxx Xxxxxxx may request upon at least forty-eight hours' prior notice to the interests of the Underwriters hereunderCompany, that the arrangements made by such Selling Stockholder for such custody, including the Power of Attorney is to that extent irrevocable and that the obligations of such Selling Stockholder hereunder shall not be terminated by the act of such Selling Stockholder or by operation of law, whether by the death or incapacity of such Selling Stockholder or the occurrence of any other event, except as specifically provided herein or in the Custody Agreement. If any Selling Stockholder should die or be incapacitated, or if any other such event should occur, before the delivery of the certificates for the Selling Stockholder Shares hereunder, the Selling Stockholder Shares to be sold by such Selling Stockholder shall, except as specifically provided herein or in the Custody Agreement, be delivered by or on behalf of the Custodian in accordance with Company to you for the terms and conditions of this Agreement as if such death, incapacity or other event had not occurred, regardless of whether the Custodian shall have received notice account of such death or other event. Delivery of definitive certificates for the Firm Shares to Underwriter at such time and place as shall hereafter be purchased designated by the Underwriters pursuant to this Section 3 shall be made Representatives, against payment by such Underwriter or on its behalf of the purchase price therefor by the several Underwriters by certified or official bank check or checks drawn in next-day fundswire transfer, payable to the order of the Company in next day funds. The time and date of such delivery and payment shall be, with regard respect to the Shares being purchased from Firm Shares, 8:30 a.m., local time, at the Companyoffices of Xxxxxx Xxxxxxx Xxxxxxxx & Xxxxxx, and to 0000 Xxxxxxxx Xxxxx, Xxxxxxxx, Xxxxxxxxxx, xx the order of the Custodian for the respective accounts of the Selling Stockholders with regard to third (or if the Shares being purchased from such Selling Stockholders (and are priced, as contemplated by Rule 15c6-1(c) under the Company and such Selling Stockholders agree not to deposit and to cause Exchange Act, after 4:30 p.m. Eastern time, the Custodian not to deposit any such check in the bank on which it is drawn, and not to take any other action with the purpose or effect of receiving immediately available funds, until the fourth) full business day following the date of its delivery hereof, or at such other time and date as you and the Company determine pursuant to Rule 15c6-1(a) under the Exchange Act, such time and date being herein referred to as the "Closing Date," and, with respect to the Option Shares, at the time and on the date specified by you in the written notice delivered by you to the Company with respect to the Underwriters' election to purchase the Option Shares, or such other time and date as you and the Company may agree upon in writing, such time and date being referred to herein as the "Option Closing Date." Such certificates will be made available for checking and packaging at least twenty-four hours prior to the Closing Date or the CustodianOption Closing Date, as the case may be, and, in the event of any breach of the foregoing, the Company or the Selling Stockholders, as the case may be, shall reimburse the Underwriters for the interest lost and any other expenses borne by them by reason of such breach), at the offices of Xxxxxxx & XxXxxxxx, Los Angeles, California (or at such other place a location as may be agreed upon among the Representatives and the Company), at 7:00 A.M., San Francisco time (a) on the third (3rd) full business day following the first day that Shares are traded, (b) if this Agreement is executed and delivered after 1:30 P.M., San Francisco time, the fourth (4th) full business day following the day that this Agreement is executed and delivered or (c) at such other time and date not later than seven (7) full business days following the first day that Shares are traded as the Representatives and the Company and the Attorneys may determine (or at such time and date to which payment and delivery shall have been postponed pursuant to Section 10 hereof), such time and date of payment and delivery being herein called the "Closing Date;" PROVIDED, HOWEVER, that if the Company has not made available to the Representatives copies of the Prospectus within the time provided in Section 4(d) hereof, the Representatives may, in their sole discretion, postpone the Closing Date until no later than two (2) full business days following delivery of copies of the Prospectus to the Representatives. The certificates for the Firm Shares to be so delivered will be made available to you at such office or such other location including, without limitation, in New York City, as you may reasonably request for checking at least one (1) full business day prior to the Closing Date and will be in such names and denominations as you may request, such request to be made at least two (2) full business days prior to the Closing Date. If the Representatives so elect, delivery of the Firm Shares may be made by credit through full fast transfer to the accounts at The Depository Trust Company designated by the Representatives. It is understood that you, individually, and not as the Representatives of the several Underwriters, may (but shall not be obligated to) make payment of the purchase price on behalf of any Underwriter or Underwriters whose check or checks shall not have been received by you prior to the Closing Date for the Firm Shares to be purchased by such Underwriter or Underwriters. Any such payment by you shall not relieve any such Underwriter or Underwriters of any of its or their obligations hereunder. After the Registration Statement becomes effective, the several Underwriters intend to make a public offering (as such term is described in Section 11 hereof) of the Firm Shares at a public offering price of $_____ per share. After the public offering, the several Underwriters may, in their discretion, vary the public offering price. The information set forth in the second and eighth paragraphs under the caption "Underwriting" in any Preliminary Prospectus and in the Prospectus constitutes the only information furnished by the Underwriters to the Company for inclusion in any Preliminary Prospectus, the Prospectus or the Registration Statement or any Incorporated Document, and you, on behalf of the respective Underwriters, represent and warrant to the Company and the Selling Stockholders that the statements made therein do not include any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading.
Appears in 1 contract
Samples: Shares (Shopnow Com Inc)
Purchase, Sale and Delivery of Shares. On the basis of the representations, warranties and agreements herein containedcovenants contained herein, but and subject to the terms and conditions herein set forth, the Company and the Selling Stockholders agree, severally and not jointly, agrees to sell to the Underwriters, each Underwriter and each Underwriter agrees, severally and not jointly, to purchase from the Company and the Selling Stockholders, respectivelyCompany, at a purchase price of $_______ per share, the respective number of Company Shares and Selling Stockholder Shares set forth opposite the names of the Company and the Selling Stockholders, respectively, in Schedule B hereto. The obligation of each Underwriter to the Company and to each Selling Stockholder shall be to purchase from the Company or such Selling Stockholder that number of Company Shares or Selling Stockholder Shares, as the case may be, which (as nearly as practicable, as determined by you) is in the same proportion to the number of Company Shares or Selling Stockholder Shares, as the case may be, set forth opposite the name of the Company or such Selling Stockholder in Schedule B hereto as the number of Firm Shares (to be adjusted by you to eliminate fractional shares) determined by multiplying the aggregate number of Firm Shares by a fraction, the numerator of which is the aggregate number of Firm Shares to be purchased by such Underwriter as set forth opposite the name of such Underwriter in Schedule A hereto (subject to adjustment as provided in Section 10) and the denominator of which is to the total aggregate number of Firm Shares to be purchased by all the Underwriters under this AgreementUnderwriters. The certificates in negotiable form or properly executed option exercise forms for In addition, on the Selling Stockholder Shares have been placed in custody (for delivery under this Agreement) under basis of the Custody Agreement. Each Selling Stockholder agrees that the certificates or executed option exercise forms for the Selling Stockholder Shares of such Selling Stockholder so held in custody are representations, warranties and covenants contained herein and subject to the interests terms and conditions herein set forth, the Company hereby grants to the several Underwriters an option to purchase at the Underwriters' election up to the aggregate number of Option Shares, at the same price per share as set forth for the Firm Shares in the paragraph above, for the sole purpose of covering over allotments in the sale of the Underwriters hereunder, that the arrangements made by such Selling Stockholder for such custody, including the Power of Attorney is to that extent irrevocable and that the obligations of such Selling Stockholder hereunder shall not Firm Shares. The option granted hereby may be terminated by the act of such Selling Stockholder or by operation of law, whether by the death or incapacity of such Selling Stockholder or the occurrence of any other event, except as specifically provided herein exercised in whole or in part, but only once, and at any time upon written notice given within 30 days after the Custody date of this Agreement. If any Selling Stockholder should die or be incapacitated, or if any other such event should occurby you, before the delivery as Representatives of the several Underwriters, to the Company setting forth the number of Option Shares as to which the several Underwriters are exercising the option and the time and date at which certificates for are to be delivered. Any such election to purchase Option Shares shall be made in proportion to the Selling Stockholder Shares hereunder, the Selling Stockholder maximum number of Option Shares to be sold by the Company. If any Option Shares are purchased, each Underwriter agrees, severally and not jointly, to purchase that portion of the number of Option Shares as to which such Selling Stockholder shall, except election shall have been exercised (subject to adjustment to eliminate fractional shares) determined by multiplying such number of Option Shares by a fraction the numerator of which is the maximum number of Option Shares which such Underwriter is entitled to purchase as specifically provided herein or set forth opposite the name of such Underwriter in Schedule A hereto and the Custody Agreement, denominator of which is the maximum number of Option Shares which all of the Underwriters are entitled to purchase hereunder. The time and date at which certificates for Option Shares are to be delivered shall be determined by the Custodian Representatives but shall not be earlier than two or later than ten full business days after the exercise of such option, and shall not in accordance with any event be prior to the terms and conditions Closing Date. If the date of this Agreement as if such deathexercise of the option is three or more full days before the Closing Date, incapacity or other event had not occurred, regardless of whether the Custodian shall have received notice of such death or other eventexercise shall set the Closing Date as the Option Closing Date. Delivery of Certificates in definitive certificates form for the Firm Shares to be purchased by each Underwriter hereunder, and in such denominations and registered in such names as Xxxx Xxxxxxxx Xxxxxxx may request upon at least forty-eight hours' prior notice to the Underwriters pursuant to this Section 3 Company, shall be made delivered by or on behalf of the Company to you for the account of such Underwriter at such time and place as shall hereafter be designated by the Representatives, against payment by such Underwriter or on its behalf of the purchase price therefor by the several Underwriters by certified or official bank check or checks drawn in next-day fundschecks, payable to the order of the Company in next day funds. The time and date of such delivery and payment shall be, with regard respect to the Shares being purchased from Firm Shares, 8:30 a.m., local time, at the Companyoffices of Xxxxxx Xxxxxxx Xxxxxxxx & Xxxxxx, and to 0000 Xxxxxxxx Xxxxx, Xxxxxxxx, Xxxxxxxxxx, xx the order of the Custodian for the respective accounts of the Selling Stockholders with regard to third (or if the Shares being purchased from such Selling Stockholders (and are priced, as contemplated by Rule 15c6-1(c) under the Company and such Selling Stockholders agree not to deposit and to cause Exchange Act, after 4:30 p.m. Eastern time, the Custodian not to deposit any such check in the bank on which it is drawn, and not to take any other action with the purpose or effect of receiving immediately available funds, until the fourth) full business day following the date of its delivery hereof, or at such other time and date as you and the Company determine pursuant to Rule 15c6-1(a) under the Exchange Act, such time and date being herein referred to as the "Closing Date," and, with respect to the Option Shares, at the time and on the date specified by you in the written notice given by you of the Underwriters' election to purchase the Option Shares, or such other time and date as you and the Company may agree upon in writing, such time and date being referred to herein as the "Option Closing Date." Such certificates will be made available for checking and packaging at least twenty-four hours prior to the Closing Date or the CustodianOption Closing Date, as the case may be, and, in the event of any breach of the foregoing, the Company or the Selling Stockholders, as the case may be, shall reimburse the Underwriters for the interest lost and any other expenses borne by them by reason of such breach), at the offices of Xxxxxxx & XxXxxxxx, Los Angeles, California (or at such other place a location as may be agreed upon among the Representatives and the Company), at 7:00 A.M., San Francisco time (a) on the third (3rd) full business day following the first day that Shares are traded, (b) if this Agreement is executed and delivered after 1:30 P.M., San Francisco time, the fourth (4th) full business day following the day that this Agreement is executed and delivered or (c) at such other time and date not later than seven (7) full business days following the first day that Shares are traded as the Representatives and the Company and the Attorneys may determine (or at such time and date to which payment and delivery shall have been postponed pursuant to Section 10 hereof), such time and date of payment and delivery being herein called the "Closing Date;" PROVIDED, HOWEVER, that if the Company has not made available to the Representatives copies of the Prospectus within the time provided in Section 4(d) hereof, the Representatives may, in their sole discretion, postpone the Closing Date until no later than two (2) full business days following delivery of copies of the Prospectus to the Representatives. The certificates for the Firm Shares to be so delivered will be made available to you at such office or such other location including, without limitation, in New York City, as you may reasonably request for checking at least one (1) full business day prior to the Closing Date and will be in such names and denominations as you may request, such request to be made at least two (2) full business days prior to the Closing Date. If the Representatives so elect, delivery of the Firm Shares may be made by credit through full fast transfer to the accounts at The Depository Trust Company designated by the Representatives. It is understood that you, individually, and not as the Representatives of the several Underwriters, may (but shall not be obligated to) make payment of the purchase price on behalf of any Underwriter or Underwriters whose check or checks shall not have been received by you prior to the Closing Date for the Firm Shares to be purchased by such Underwriter or Underwriters. Any such payment by you shall not relieve any such Underwriter or Underwriters of any of its or their obligations hereunder. After the Registration Statement becomes effective, the several Underwriters intend to make a public offering (as such term is described in Section 11 hereof) of the Firm Shares at a public offering price of $_____ per share. After the public offering, the several Underwriters may, in their discretion, vary the public offering price. The information set forth in the second and eighth paragraphs under the caption "Underwriting" in any Preliminary Prospectus and in the Prospectus constitutes the only information furnished by the Underwriters to the Company for inclusion in any Preliminary Prospectus, the Prospectus or the Registration Statement or any Incorporated Document, and you, on behalf of the respective Underwriters, represent and warrant to the Company and the Selling Stockholders that the statements made therein do not include any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading.
Appears in 1 contract
Samples: Shopnow Com Inc
Purchase, Sale and Delivery of Shares. On the basis of the representations, warranties and agreements herein contained, but subject to the terms and conditions herein set forth, the Company and the Selling Stockholders agreeStockholders, severally and not jointly, agree to sell to the UnderwritersUnderwriters named in Schedule A hereto, and each Underwriter agreesthe Underwriters agree, severally and not jointly, to purchase from the Company Company, and the Selling Stockholders, respectively, at a purchase price of $_____ per share, 2,500,000 Firm Shares from the Company and the respective number of Company Shares and Selling Stockholder Firm Shares set forth opposite the names of the Company and the Selling Stockholders, respectively, Stockholders in Schedule B heretohereto at the price per share set forth in the Pricing Agreement. The obligation of each Underwriter to the Company and to each Selling Stockholder shall be to purchase from the Company or such Selling Stockholder that number of Company Shares or Selling Stockholder Shares, as the case may be, full shares which (as nearly as practicable, as determined by you) is in bears to 2,500,000, the same proportion to the number of Company Shares or Selling Stockholder Shares, as the case may be, set forth opposite the name of the Company or such Selling Stockholder in Schedule B hereto as the number of Firm Shares which is set forth opposite the name of such Underwriter in Schedule A hereto (subject to adjustment as provided in Section 10) is bears to the total number of Firm Shares to be purchased by all the Underwriters under this Agreement. The certificates in negotiable form or properly executed option exercise forms for the obligation of each Underwriter to each Selling Stockholder Shares have been placed in custody (for delivery under this Agreement) under the Custody Agreement. Each shall be to purchase from such Selling Stockholder agrees the number of full shares which (as nearly as practicable, as determined by you) bears to that number of Firm Shares set forth opposite the certificates or executed option exercise forms for the Selling Stockholder Shares name of such Selling Stockholder so held in custody are subject Schedule B hereto, the same proportion as the number of Shares set forth opposite the name of such Underwriter in Schedule A hereto bears to the interests total number of the Underwriters hereunder, that the arrangements made by such Selling Stockholder for such custody, including the Power of Attorney is to that extent irrevocable and that the obligations of such Selling Stockholder hereunder shall not be terminated by the act of such Selling Stockholder or by operation of law, whether by the death or incapacity of such Selling Stockholder or the occurrence of any other event, except as specifically provided herein or in the Custody Agreement. If any Selling Stockholder should die or be incapacitated, or if any other such event should occur, before the delivery of the certificates for the Selling Stockholder Shares hereunder, the Selling Stockholder Shares to be sold by such Selling Stockholder shall, except as specifically provided herein or in the Custody Agreement, be delivered by the Custodian in accordance with the terms and conditions of this Agreement as if such death, incapacity or other event had not occurred, regardless of whether the Custodian shall have received notice of such death or other event. Delivery of definitive certificates for the Firm Shares to be purchased by all Underwriters under this Agreement. The public offering price and the purchase price shall be set forth in the Pricing Agreement. The Company and the Custodian will deliver to you certificates for the Firm Shares at the offices of counsel for the Underwriters pursuant to this Section 3 shall be made or through the facilities of The Depository Trust Company against receipt of a wire transfer reference number issued by the Federal Reserve System evidencing payment of the purchase price therefor therefore by the several Underwriters by certified or official bank check or checks drawn in next-day funds, payable to the order wire transfer of the Company with regard to the Shares being purchased from the Company, and to the order of the Custodian for the respective accounts of the Selling Stockholders with regard to the Shares being purchased from such Selling Stockholders (and the Company and such Selling Stockholders agree not to deposit and to cause the Custodian not to deposit any such check in the bank on which it is drawn, and not to take any other action with the purpose or effect of receiving immediately available funds, until the business day following the date of its delivery to the respective accounts specified in writing by the Company or and the Custodian, as the case may be, and, in the event of any breach of the foregoing, the Company at or the Selling Stockholders, as the case may be, shall reimburse the Underwriters for the interest lost and any other expenses borne by them by reason of such breach), at the offices of Xxxxxxx & XxXxxxxx, Los Angeles, California (or at such other place as may be agreed upon among the Representatives and the Company), at 7:00 before 11:00 A.M., San Francisco time Chicago Time, (a) on the third (3rd) full business day following after the first day that Shares are tradedeffective date of this Agreement, (b) if this Agreement is executed and delivered and becomes effective after 1:30 3:30 P.M., San Francisco timeChicago Time, the fourth (4th) full business day following after the day that effective date of this Agreement is executed and delivered Agreement, or (c) at such other time and date on such other day, not later than seven (7) full ten business days following after the first day that Shares are traded effective date of this Agreement, as shall be agreed upon by the Representatives and the Company and the Attorneys may determine (or at such time and date to which payment and delivery shall have been postponed pursuant to Section 10 hereof), such time and date of payment and delivery being herein called the "First Closing Date;" PROVIDED, HOWEVER, that if the Company has not made available to the Representatives copies of the Prospectus within the time provided in Section 4(d) hereof, the Representatives may, in their sole discretion, postpone the Closing Date until no later than two (2) full business days following delivery of copies of the Prospectus to the Representatives"). The Such certificates for the Firm Shares to be so delivered will be made available to you at such office or such other location including, without limitation, in New York City, as you may reasonably request for checking at least one (1) full business day prior to the Closing Date and will be in such denominations and registered in such names as you request by notice to the Company prior to 10:00 A.M., Chicago Time, on the second business day preceding the First Closing Date. In addition, on the basis of the representations, warranties and agreements herein contained, but subject to the terms and conditions herein set forth, Xxxxxxxx-Xxxxx Specialty Retail Group III, L.P., the Xxxxxxx X. Xxxxxxx Revocable Trust, as amended and the Xxxxxx Xxxxxx Xxxxxxx Revocable Trust, as amended hereby jointly and severally grant an option to the several Underwriters to purchase, severally and not jointly, up to an aggregate of 750,000 Option Shares, at the same purchase price per share to be paid for the Firm Shares, for use solely in covering any over-allotments made by the Underwriters in the sale and distribution of the Firm Shares. The option granted hereunder may be exercised at any time (but not more than once) within 30 days after the date of the public offering upon notice by you to such Selling Stockholders setting forth the aggregate number of Option Shares as to which the Underwriters are exercising the option, the names and denominations as you may request, in which the certificates for such request shares are to be made registered and the time and place at least two which such certificates will be delivered. Such time of delivery (2) which may not be earlier than the First Closing Date), being herein referred to as the "Second Closing Date," shall be determined by you, but if at any time other than the First Closing Date, shall not be earlier than three nor later than 10 full business days prior to the Closing Date. If the Representatives so elect, after delivery of such notice of exercise. The number of Option Shares to be purchased by each Underwriter shall be determined by multiplying the Firm number of Option Shares may to be made sold by credit through full fast transfer each such Selling Stockholder pursuant to such notice of exercise by a fraction, the accounts at The Depository Trust Company designated by numerator of which is the Representatives. It is understood that you, individually, and not as the Representatives number of the several Underwriters, may (but shall not be obligated to) make payment of the purchase price on behalf of any Underwriter or Underwriters whose check or checks shall not have been received by you prior to the Closing Date for the Firm Shares to be purchased by such Underwriter or Underwritersas set forth opposite its name in Schedule A and the denominator of which is the total number of Firm Shares (subject to such adjustments to eliminate any fractional share purchases as you in your absolute discretion may make). Any such The manner of payment by you for and delivery of the Option Shares shall not relieve any such Underwriter or Underwriters of any of its or their obligations hereunder. After be the Registration Statement becomes effective, the several Underwriters intend to make a public offering (same as such term is described in Section 11 hereof) of for the Firm Shares at a public offering price of $_____ per share. After the public offering, the several Underwriters may, in their discretion, vary the public offering price. The information set forth as specified in the second and eighth paragraphs under the caption "Underwriting" in any Preliminary Prospectus and in the Prospectus constitutes the only information furnished by the Underwriters to the Company for inclusion in any Preliminary Prospectus, the Prospectus or the Registration Statement or any Incorporated Document, and you, on behalf of the respective Underwriters, represent and warrant to preceding paragraph. You have advised the Company and the Selling Stockholders that each Underwriter has authorized you to accept delivery of its Shares, to make payment and to receipt therefor. You, individually and not as the statements made therein do not include Representatives of the Underwriters, may make payment for any untrue statement of a material fact or omit to state a material fact required Shares to be stated therein purchased by any Underwriter whose funds shall not have been received by you by the First Closing Date or necessary to make the statements thereinSecond Closing Date, in as the light case may be, for the account of the circumstances under which they were madesuch Underwriter, but any such payment shall not misleadingrelieve such Underwriter from any obligation hereunder.
Appears in 1 contract
Samples: Cheap Tickets Inc
Purchase, Sale and Delivery of Shares. On the basis of the representations, warranties and agreements herein containedcovenants contained herein, but and subject to the terms and conditions herein set forth, the Company and the each Selling Stockholders agreeShareholder agrees, severally and not jointly, to sell to the Underwriters, each Underwriter and each Underwriter agrees, severally and not jointly, to purchase from the Company and the each Selling Stockholders, respectivelyShareholder, at a purchase price of $___________ per share, the respective number of Firm Shares (to be adjusted by you to eliminate fractional shares) determined by multiplying the aggregate number of Firm Shares to be sold by the Company Shares and each of the Selling Stockholder Shares Shareholders, as set forth opposite the their respective names of the Company and the Selling Stockholders, respectively, in Schedule B hereto. The obligation , by a fraction, the numerator of each Underwriter to which is the Company and to each Selling Stockholder shall be to purchase from the Company or such Selling Stockholder that number of Company Shares or Selling Stockholder Shares, as the case may be, which (as nearly as practicable, as determined by you) is in the same proportion to the number of Company Shares or Selling Stockholder Shares, as the case may be, set forth opposite the name of the Company or such Selling Stockholder in Schedule B hereto as the aggregate number of Firm Shares which is to be purchased by such Underwriter as set forth opposite the name of such Underwriter in Schedule A hereto (subject to adjustment as provided in Section 10) and the denominator of which is to the total aggregate number of Firm Shares to be purchased by all the Underwriters under this Agreement. The certificates in negotiable form or properly executed option exercise forms for from the Company and the Selling Stockholder Shares have been placed in custody (for delivery under this Agreement) under Shareholders hereunder. In addition, on the Custody Agreement. Each Selling Stockholder agrees that basis of the certificates or executed option exercise forms for the Selling Stockholder Shares of such Selling Stockholder so held in custody are representations, warranties and covenants contained herein and subject to the interests of the Underwriters hereunder, that the arrangements made by such Selling Stockholder for such custody, including the Power of Attorney is to that extent irrevocable and that the obligations of such Selling Stockholder hereunder shall not be terminated by the act of such Selling Stockholder or by operation of law, whether by the death or incapacity of such Selling Stockholder or the occurrence of any other event, except as specifically provided herein or in the Custody Agreement. If any Selling Stockholder should die or be incapacitated, or if any other such event should occur, before the delivery of the certificates for the Selling Stockholder Shares hereunder, the Selling Stockholder Shares to be sold by such Selling Stockholder shall, except as specifically provided herein or in the Custody Agreement, be delivered by the Custodian in accordance with the terms and conditions of this Agreement herein set forth, the Company hereby grants to the several Underwriters an option to purchase at the Underwriters' election up to 502,500 Option Shares at the same price per share as if such death, incapacity or other event had not occurred, regardless of whether the Custodian shall have received notice of such death or other event. Delivery of definitive certificates set forth for the Firm Shares to be purchased by in the Underwriters pursuant to this Section 3 shall be made against payment paragraph above, for the sole purpose of covering over-allotments in the sale of the purchase price therefor Firm Shares. The option granted hereby may be exercised in whole or in part, but only once, and at any time upon written notice given within 30 days after the date of this Agreement, by you, as Representatives of the several Underwriters, to the Company setting forth the number of Option Shares as to which the several Underwriters by certified or official bank check or checks drawn in next-day funds, payable to are exercising the order of the Company with regard to the Shares being purchased from the Company, and to the order of the Custodian for the respective accounts of the Selling Stockholders with regard to the Shares being purchased from such Selling Stockholders (option and the Company and such Selling Stockholders agree not to deposit and to cause the Custodian not to deposit any such check in the bank on which it is drawn, and not to take any other action with the purpose or effect of receiving immediately available funds, until the business day following the date of its delivery to the Company or the Custodian, as the case may be, and, in the event of any breach of the foregoing, the Company or the Selling Stockholders, as the case may be, shall reimburse the Underwriters for the interest lost and any other expenses borne by them by reason of such breach), at the offices of Xxxxxxx & XxXxxxxx, Los Angeles, California (or at such other place as may be agreed upon among the Representatives and the Company), at 7:00 A.M., San Francisco time (a) on the third (3rd) full business day following the first day that Shares are traded, (b) if this Agreement is executed and delivered after 1:30 P.M., San Francisco time, the fourth (4th) full business day following the day that this Agreement is executed and delivered or (c) at such other time and date at which certificates are to be delivered. If any Option Shares are purchased, each Underwriter agrees, severally and not jointly, to purchase that portion of the number of Option Shares as to which such election shall have been exercised (subject to adjustment to eliminate fractional shares) determined by multiplying such number of Option Shares by a fraction the numerator of which is the maximum number of Option Shares which such Underwriter is entitled to purchase as set forth opposite the name of such Underwriter in Schedule A hereto and the denominator of which is the maximum number of Option Shares which all of the Underwriters are entitled to purchase hereunder. The time and date at which certificates for Option Shares are to be delivered shall be determined by the Representatives but shall not be earlier than two or later than seven (7) ten full business days following after the first day that Shares are traded as the Representatives exercise of such option, and the Company and the Attorneys may determine (or at such time and date to which payment and delivery shall have been postponed pursuant to Section 10 hereof), such time and date of payment and delivery being herein called the "Closing Date;" PROVIDED, HOWEVER, that if the Company has not made available to the Representatives copies of the Prospectus within the time provided in Section 4(d) hereof, the Representatives may, in their sole discretion, postpone the Closing Date until no later than two (2) full business days following delivery of copies of the Prospectus to the Representatives. The certificates for the Firm Shares to any event be so delivered will be made available to you at such office or such other location including, without limitation, in New York City, as you may reasonably request for checking at least one (1) full business day prior to the Closing Date and will be in such names and denominations as you may request, such request to be made at least two (2) full business days prior to the Closing Date. If the Representatives so elect, delivery date of exercise of the Firm option is three or more full days before the Closing Date, the notice of exercise shall set the Closing Date as the Option Closing Date. Certificates in definitive form for the Shares may to be made purchased by credit through full fast transfer each Underwriter hereunder, and in such denominations and registered in such names as Dain Xxxxxxxx Xxxxxxx xxx request upon at least 48 hours' prior notice to the accounts Company, shall be delivered by or on behalf of the Company or the Selling Shareholders, as applicable, to you for the account of such Underwriter at The Depository Trust Company such time and place as shall hereafter be designated by the Representatives. It is understood that you, individually, and not as the Representatives of the several Underwriters, may (but shall not be obligated to) make against payment by such Underwriter or on its behalf of the purchase price therefor by wire transfer of Federal or other funds immediately available in Minneapolis, Minnesota. The time and date of such delivery and payment shall be, with respect to the Firm Shares, 8:30 a.m. Minneapolis, Minnesota time, at the offices of Steptoe & Johnxxx XXX, 40 N. Xxxxxxx Xxxxxx, Xxxxx 0000, Xxxxxxx, Xxxxxxx, xx _________, 2000, or such other time and date as you and the Company may agree upon in writing, such time and date being herein referred to as the "Closing Date," and, with respect to the Option Shares, at the time and on behalf of any Underwriter or Underwriters whose check or checks shall not have been received the date specified by you in the written notice given by you of the Underwriters' election to purchase the Option Shares, or such other time and date as you and the Company may agree upon in writing, such time and date being referred to herein as the "Option Closing Date." Such certificates will be made available for checking and packaging at least 24 hours prior to the Closing Date for or the Firm Shares to be purchased by such Underwriter or Underwriters. Any such payment by you shall not relieve any such Underwriter or Underwriters of any of its or their obligations hereunder. After Option Closing Date, as the Registration Statement becomes effectivecase may be, the several Underwriters intend to make a public offering (as such term is described in Section 11 hereof) of the Firm Shares at a public offering price of $_____ per share. After the public offering, the several Underwriters may, in their discretion, vary the public offering price. The information set forth in the second and eighth paragraphs under the caption "Underwriting" in any Preliminary Prospectus and in the Prospectus constitutes the only information furnished location as may be designated by the Underwriters to the Company for inclusion in any Preliminary Prospectus, the Prospectus or the Registration Statement or any Incorporated Document, and you, on behalf of the respective Underwriters, represent and warrant to the Company and the Selling Stockholders that the statements made therein do not include any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading.
Appears in 1 contract
Samples: Rockford Corp
Purchase, Sale and Delivery of Shares. (a) On the basis of the representations, warranties and agreements herein contained, but subject to the terms and conditions herein set forth, the Company agrees to issue and the sell 1,251,533 Firm Shares, and each Selling Stockholders agreeStockholder, severally and not jointly, agrees to sell the number of Firm Shares or Options set forth opposite the name of such Selling Stockholder in Schedule I hereto, to the several Underwriters, and each Underwriter agrees, severally and not jointly, to purchase from the Company and the Selling Stockholders, respectively, at a purchase price of $_____ per share, the respective number of Company Shares and Selling Stockholder Shares set forth opposite the names of the Company and the Selling Stockholders, respectively, in Schedule B hereto. The obligation of each Underwriter to the Company and to each Selling Stockholder shall be to purchase from the Company or such Selling Stockholder that number of Company Shares or Selling Stockholder Shares, as the case may be, which (as nearly as practicable, as determined by you) is in the same proportion to the number of Company Shares or Selling Stockholder Shares, as the case may be, set forth opposite the name of the Company or such Selling Stockholder in Schedule B hereto as Stockholders the number of Firm Shares which is or Options set forth opposite the name of such Underwriter in Schedule A II hereto. The purchase price for each Firm Share shall be $_____ per share (the "Firm Price") and the purchase price for each Option shall be the Firm Price less the exercise price of each Option. The obligation of each Underwriter to each of the Company and the Selling Stockholders shall be to purchase from each of the Company and the Selling Stockholders that number of Firm Shares and Options (to be adjusted by the Representatives to avoid fractional shares) which represents the same proportion of the number of Firm Shares and Options to be sold by each of the Company and the Selling Stockholders pursuant to this Agreement as the number of Firm Shares and Options set forth opposite the name of such Underwriter in Schedule II hereto (subject to adjustment as provided in Section 10) is represents to the total number of Firm Shares and Options to be purchased by all the Underwriters under pursuant to this Agreement. The In making this Agreement, each Underwriter and each Selling Stockholder is contracting, severally and not jointly; except as provided in paragraph (c) of this Section 3 and in Section 8 hereof, the agreement of each Underwriter is to purchase only the respective number of Firm Shares and Options specified in Schedule II. Each Selling Stockholder solely with respect to itself or himself or herself agrees and acknowledges that certificates in negotiable form or properly representing Shares, and, in the case of Options, instruments representing such Options, if applicable, and/or with duly executed option exercise forms instruments of assignment (together, "Option Instruments") for the total number of the Shares and Options to be sold hereunder by such Selling Stockholder (including certificates representing Shares issued or issuable upon the exercise of Share Rights as defined in Section 2(b) hereof) have been placed in custody (with the Custodian pursuant to the Custody Agreement executed by or on behalf of such Selling Stockholder for delivery under this Agreement) of all Firm Shares, Options and Over-allotment Shares to be sold hereunder by such Selling Stockholder. Such Selling Stockholder specifically agrees that the Firm Shares and Over-allotment Shares represented by the certificates and the Option Instruments held in custody for such Selling Stockholder at any time under the Custody Agreement. Each Selling Stockholder agrees that , together with the certificates or executed option exercise forms Share Rights and funds held in custody for the Selling Stockholder Shares of such Selling Stockholder so held as described in custody Section 2(b) hereof, are subject to the interests of the Underwriters hereunder, that the arrangements made by such Selling Stockholder for such custody, including the Power of Attorney is custody are to that extent irrevocable irrevocable, and that the obligations of such Selling Stockholder hereunder shall not be terminated terminable by the any act or deed of such Selling Stockholder (or by any other person, firm or corporation including the Company, the Custodian or the Underwriters) or by operation of lawlaw (including, whether by without limitation, the death or incapacity of such an individual Selling Stockholder or the dissolution of a corporate, trust or partnership Selling Stockholder) or by the occurrence of any other eventevent or events, except as specifically provided herein or set forth in the Custody Agreement. If any Selling Stockholder should die or be incapacitated, or if any other such event should occur, before occur prior to the delivery to the Underwriters of the Firm Shares, the Options or Over-allotment Shares hereunder, as the case may be, certificates for the Selling Stockholder Firm Shares hereunderor instruments representing the Options, as the Selling Stockholder Shares to be sold by such Selling Stockholder shallcase may be, except as specifically provided herein or in the Custody Agreement, shall be delivered by the Custodian in accordance with the terms and conditions of this Agreement as if such death, incapacity or other event had has not occurred. The Custodian is authorized to receive and acknowledge receipt of the proceeds of sale of the Firm Shares, regardless Options or Over-allotment Shares, as the case may be, held by it against delivery of whether such Shares. The Firm Shares and Options will be delivered by the Company and the Custodian shall have received notice of such death or other event. Delivery of definitive certificates to you for the Firm Shares to be purchased by accounts of the several Underwriters pursuant to this Section 3 shall be made against payment of the purchase price therefor by the several Underwriters by certified or official bank check or checks drawn in next-other next day funds, funds payable to the order of the Company with regard to (in the case of the Shares being purchased from to be sold by the Company, and ) or to the order of the Custodian for and the respective accounts Selling Stockholder (in the case of the Selling Stockholders with regard Shares and Options to the Shares being purchased from such Selling Stockholders (and the Company and such Selling Stockholders agree not to deposit and to cause the Custodian not to deposit any such check in the bank on which it is drawn, and not to take any other action with the purpose or effect of receiving immediately available funds, until the business day following the date of its delivery to the Company or the Custodian, as the case may be, and, in the event of any breach of the foregoing, the Company or be sold by the Selling Stockholders), as the case may be, shall reimburse the Underwriters for the interest lost and any other expenses borne by them by reason of such breach)appropriate, at the offices of Xxxxxxx & XxXxxxxxFirst Albany Corporation, Los Angeles41 Sxxxx Xxxxxx, California (or at Xxxxxx, Xxx Xxxx 00000 xx such other place location as may be agreed upon among the Representatives and the Company)mutually acceptable, at 7:00 A.M.9:00 a.m., San Francisco time (a) on the third (3rd) full business day following the first day that Shares are traded, (b) if this Agreement is executed and delivered after 1:30 P.M., San Francisco time, the fourth (4th) full business day following the day that this Agreement is executed and delivered or (c) at such other time and date not later than seven (7) full business days following the first day that Shares are traded as the Representatives and the Company and the Attorneys may determine (or at such time and date to which payment and delivery shall have been postponed pursuant to Section 10 hereof), such time and date of payment and delivery being herein called the "Closing Date;" PROVIDED, HOWEVER, that if the Company has not made available to the Representatives copies of the Prospectus within the time provided in Section 4(d) hereof, the Representatives may, in their sole discretion, postpone the Closing Date until no later than two (2) full business days following delivery of copies of the Prospectus to the Representatives. The certificates for the Firm Shares to be so delivered will be made available to you at such office or such other location including, without limitation, in New York City, as you may reasonably request for checking at least one (1) full business day prior to the Closing Date and will be in such names and denominations as you may request, such request to be made at least two (2) full business days prior to the Closing Date. If the Representatives so elect, delivery of the Firm Shares may be made by credit through full fast transfer to the accounts at The Depository Trust Company designated by the Representatives. It is understood that you, individually, and not as the Representatives of the several Underwriters, may (but shall not be obligated to) make payment of the purchase price on behalf of any Underwriter or Underwriters whose check or checks shall not have been received by you prior to the Closing Date for the Firm Shares to be purchased by such Underwriter or Underwriters. Any such payment by you shall not relieve any such Underwriter or Underwriters of any of its or their obligations hereunder. After the Registration Statement becomes effective, the several Underwriters intend to make a public offering (as such term is described in Section 11 hereof) of the Firm Shares at a public offering price of $_____ per share. After the public offering, the several Underwriters may, in their discretion, vary the public offering price. The information set forth in the second and eighth paragraphs under the caption "Underwriting" in any Preliminary Prospectus and in the Prospectus constitutes the only information furnished by the Underwriters to the Company for inclusion in any Preliminary Prospectus, the Prospectus or the Registration Statement or any Incorporated Document, and you, on behalf of the respective Underwriters, represent and warrant to the Company and the Selling Stockholders that the statements made therein do not include any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading.time,
Appears in 1 contract
Samples: Voice Control Systems Inc /De/
Purchase, Sale and Delivery of Shares. On the basis of the representations, warranties and agreements herein containedcovenants contained herein, but and subject to the terms and conditions herein set forth, the Company and the each Selling Stockholders Shareholder agree, severally and not jointly, to sell to the Underwriters, each Underwriter and each Underwriter agrees, severally and not jointly, to purchase from the Company and the each Selling Stockholders, respectivelyShareholder, at a purchase price of $_____ 7.44 per share, the respective number of Company Shares and Selling Stockholder Shares set forth opposite the names of the Company and the Selling Stockholders, respectively, in Schedule B hereto. The obligation of each Underwriter to the Company and to each Selling Stockholder shall be to purchase from the Company or such Selling Stockholder that number of Company Shares or Selling Stockholder Shares, as the case may be, which (as nearly as practicable, as determined by you) is in the same proportion to the number of Company Shares or Selling Stockholder Shares, as the case may be, set forth opposite the name of the Company or such Selling Stockholder in Schedule B hereto as the number of Firm Shares (to be adjusted by you to eliminate fractional shares) determined by multiplying the aggregate number of Firm Shares to be sold by the Company and each Selling Shareholder, as set forth opposite their respective names in Schedule B hereto, by a fraction, the numerator of which is the aggregate number of Firm Shares to be purchased by such Underwriter as set forth opposite the name of such Underwriter in Schedule A hereto (subject to adjustment as provided in Section 10) and the denominator of which is to the total aggregate number of Firm Shares to be purchased by all the Underwriters under this Agreement. The certificates in negotiable form or properly executed option exercise forms for from the Company and the Selling Stockholder Shares have been placed in custody (for delivery under this Agreement) under Shareholders hereunder. In addition, on the Custody Agreement. Each Selling Stockholder agrees that basis of the certificates or executed option exercise forms for the Selling Stockholder Shares of such Selling Stockholder so held in custody are representations, warranties and covenants contained herein and subject to the interests of the Underwriters hereunder, that the arrangements made by such Selling Stockholder for such custody, including the Power of Attorney is to that extent irrevocable and that the obligations of such Selling Stockholder hereunder shall not be terminated by the act of such Selling Stockholder or by operation of law, whether by the death or incapacity of such Selling Stockholder or the occurrence of any other event, except as specifically provided herein or in the Custody Agreement. If any Selling Stockholder should die or be incapacitated, or if any other such event should occur, before the delivery of the certificates for the Selling Stockholder Shares hereunder, the Selling Stockholder Shares to be sold by such Selling Stockholder shall, except as specifically provided herein or in the Custody Agreement, be delivered by the Custodian in accordance with the terms and conditions herein set forth, the Company and each Selling Shareholder, as and to the extent indicated in Schedule B hereto, hereby grant, severally and not jointly, to the several Underwriters an option to purchase at the Underwriters' election up to the number of this Agreement Option Shares set forth opposite their respective names in Schedule B hereto, at the same price per share as if such death, incapacity or other event had not occurred, regardless of whether the Custodian shall have received notice of such death or other event. Delivery of definitive certificates set forth for the Firm Shares to be purchased by in the Underwriters pursuant to this Section 3 shall be made against payment paragraph above, for the sole purpose of covering over allotments in the sale of the purchase price therefor by the several Underwriters by certified Firm Shares. The option granted hereby may be exercised in whole or official bank check or checks drawn in next-day fundspart, payable to the order of the Company with regard to the Shares being purchased from the Companybut only once, and to the order of the Custodian for the respective accounts of the Selling Stockholders with regard to the Shares being purchased from such Selling Stockholders (and the Company and such Selling Stockholders agree not to deposit and to cause the Custodian not to deposit at any such check in the bank on which it is drawn, and not to take any other action with the purpose or effect of receiving immediately available funds, until the business day following time upon written notice given within 30 days after the date of its delivery to the Company or the Custodianthis Agreement, by you, as the case may be, and, in the event of any breach of the foregoing, the Company or the Selling Stockholders, as the case may be, shall reimburse the Underwriters for the interest lost and any other expenses borne by them by reason of such breach), at the offices of Xxxxxxx & XxXxxxxx, Los Angeles, California (or at such other place as may be agreed upon among the Representatives and the Company), at 7:00 A.M., San Francisco time (a) on the third (3rd) full business day following the first day that Shares are traded, (b) if this Agreement is executed and delivered after 1:30 P.M., San Francisco time, the fourth (4th) full business day following the day that this Agreement is executed and delivered or (c) at such other time and date not later than seven (7) full business days following the first day that Shares are traded as the Representatives and the Company and the Attorneys may determine (or at such time and date to which payment and delivery shall have been postponed pursuant to Section 10 hereof), such time and date of payment and delivery being herein called the "Closing Date;" PROVIDED, HOWEVER, that if the Company has not made available to the Representatives copies of the Prospectus within the time provided in Section 4(d) hereof, the Representatives may, in their sole discretion, postpone the Closing Date until no later than two (2) full business days following delivery of copies of the Prospectus to the Representatives. The certificates for the Firm Shares to be so delivered will be made available to you at such office or such other location including, without limitation, in New York City, as you may reasonably request for checking at least one (1) full business day prior to the Closing Date and will be in such names and denominations as you may request, such request to be made at least two (2) full business days prior to the Closing Date. If the Representatives so elect, delivery of the Firm Shares may be made by credit through full fast transfer to the accounts at The Depository Trust Company designated by the Representatives. It is understood that you, individually, and not as the Representatives of the several Underwriters, may to the Company, the Selling Shareholders and the Custodian setting forth the number of Option Shares as to which the several Underwriters are exercising the option and the time and date at which certificates are to be delivered. Any such election to purchase Option Shares shall be made in proportion to the maximum number of Option Shares to be sold by the Company and each Selling Shareholder as set forth in Schedule B hereto. If any Option Shares are purchased, each Underwriter agrees, severally and not jointly, to purchase that portion of the number of Option Shares as to which such election shall have been exercised (subject to adjustment to eliminate fractional shares) determined by multiplying such number of Option Shares by a fraction the numerator of which is the maximum number of Option Shares which such Underwriter is entitled to purchase as set forth opposite the name of such Underwriter in Schedule A hereto and the denominator of which is the maximum number of Option Shares which all of the Underwriters are entitled to purchase hereunder. The time and date at which certificates for Option Shares are to be delivered shall be determined by the Representatives but shall not be obligated to) make payment earlier than two or later than ten full business days after the exercise of the purchase price on behalf of any Underwriter or Underwriters whose check or checks shall not have been received by you prior to the Closing Date for the Firm Shares to be purchased by such Underwriter or Underwriters. Any such payment by you shall not relieve any such Underwriter or Underwriters of any of its or their obligations hereunder. After the Registration Statement becomes effective, the several Underwriters intend to make a public offering (as such term is described in Section 11 hereof) of the Firm Shares at a public offering price of $_____ per share. After the public offering, the several Underwriters may, in their discretion, vary the public offering price. The information set forth in the second and eighth paragraphs under the caption "Underwriting" in any Preliminary Prospectus and in the Prospectus constitutes the only information furnished by the Underwriters to the Company for inclusion in any Preliminary Prospectus, the Prospectus or the Registration Statement or any Incorporated Document, and you, on behalf of the respective Underwriters, represent and warrant to the Company and the Selling Stockholders that the statements made therein do not include any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading.option,
Appears in 1 contract
Samples: Intranet Solutions Inc
Purchase, Sale and Delivery of Shares. On the basis of the representations, warranties and agreements herein contained, but subject to the terms and conditions herein set forth, the Company and the Selling Stockholders agree, agree severally and not jointly, to sell to the Underwriters, and each Underwriter agrees, severally and not jointly, to purchase from the Company and the Selling Stockholders, respectively, at a purchase price of $_____ per share, the respective number of Company Firm Shares as hereinafter set forth and Selling Stockholder Shares set forth opposite the names of the Company and the Selling Stockholders, respectively, Stockholders in Schedule B hereto. The obligation of each Underwriter to the Company and to each Selling Stockholder shall be to purchase from the Company or such Selling Stockholder that number of Company Firm Shares or Selling Stockholder Shares, as the case may be, which (as nearly as practicable, as determined by you) is in the same proportion to the number of Company Shares or Selling Stockholder Shares, as the case may be, set forth opposite the name of the Company or such Selling Stockholder in Schedule B hereto as the number of Firm Shares which is set forth opposite the name of such Underwriter in Schedule A hereto (subject to adjustment as provided in Section 10) is to the total number of Firm Shares to be purchased by all the Underwriters under this Agreement. The certificates in negotiable form or properly executed option exercise forms for the Selling Stockholder Shares have been placed in custody (for delivery under this Agreement) under the Custody Agreement. Each Selling Stockholder agrees that the certificates or executed option exercise forms for the Selling Stockholder Shares of such Selling Stockholder so held in custody are subject to the interests of the Underwriters hereunder, that the arrangements made by such Selling Stockholder for such custody, including the Power of Attorney is to that extent irrevocable and that the obligations of such Selling Stockholder hereunder shall not be terminated by the act of such Selling Stockholder or by operation of law, whether by the death or incapacity of such Selling Stockholder or the occurrence of any other event, except as specifically provided herein or in the Custody Agreement. If any Selling Stockholder should die or be incapacitated, or if any other such event should occur, before the delivery of the certificates for the Selling Stockholder Shares hereunder, the Selling Stockholder Shares to be sold by such Selling Stockholder shall, except as specifically provided herein or in the Custody Agreement, be delivered by the Custodian in accordance with the terms and conditions of this Agreement as if such death, incapacity or other event had not occurred, regardless of whether the Custodian shall have received notice of such death or other event. Delivery of definitive certificates for the Firm Shares to be purchased by the Underwriters pursuant to this Section 3 shall be made against payment of the purchase price therefor by the several Underwriters by certified or official bank check or checks drawn in next-day funds, payable to the order of the Company with regard to the Shares being purchased from the Company, and to the order of the Custodian for the respective accounts of the Selling Stockholders with regard to the Shares being purchased from such Selling Stockholders (and the Company and such Selling Stockholders agree agrees not to deposit and to cause the Custodian not to deposit any such check in the bank on which it is drawn, and not to take any other action with the purpose or effect of receiving immediately available funds, until the business day following the date of its delivery to the Company or the Custodian, as the case may be, and, in the event of any breach of the foregoing, the Company or the Selling Stockholders, as the case may be, shall reimburse the Underwriters for the interest lost and any other expenses borne by them by reason of such breach), at the offices of Xxxxxxx Wolf, Block, Schoxx and Solix-Xxxxx, Xxelfth Floor Packard Building, S.E. Xxxxxx 00xx & XxXxxxxxXxxxxxxx Xxxxxxx, Los AngelesXxxxxxxxxxxx, California Xxxxxxxxxxxx 00000 (or xx at such other place as may be agreed upon among the Representatives and the CompanyCompany and the Attorneys), at 7:00 A.M., San Francisco time (a) on the third (3rd) full business day following the first day that Shares are traded, (b) if this Agreement is executed and delivered after 1:30 P.M., San Francisco time, the fourth (4th) full business day following the day that this Agreement is executed and delivered or (c) at such other time and date not later than seven (7) full business days following the first day that Shares are traded as the Representatives and the Company and the Attorneys may determine (or at such time and date to which payment and delivery shall have been postponed pursuant to Section 10 hereof), such time and date of payment and delivery being herein called the "Closing Date;" PROVIDED, HOWEVER, that if the Company has not made available to the Representatives copies of the Prospectus within the time provided in Section 4(d) hereof, the Representatives may, in their sole discretion, postpone the Closing Date until no later than two (2) full business days following delivery of copies of the Prospectus to the Representatives. The certificates for the Firm Shares to be so delivered will be made available to you at such office or such other location including, without limitation, in New York City, as you may reasonably request for checking at least one (1) full business day prior to the Closing Date and will be in such names and denominations as you may request, such request to be made at least two (2) full business days prior to the Closing Date. If the Representatives so elect, delivery of the Firm Shares may be made by credit through full fast transfer to the accounts at The Depository Trust Company designated by the Representatives. It is understood that you, individually, and not as the Representatives of the several Underwriters, may (but shall not be obligated to) make payment of the purchase price on behalf of any Underwriter or Underwriters whose check or checks shall not have been received by you prior to the Closing Date for the Firm Shares to be purchased by such Underwriter or Underwriters. Any such payment by you shall not relieve any such Underwriter or Underwriters of any of its or their obligations hereunder. After the Registration Statement becomes effective, the several Underwriters intend to make a public offering (as such term is described in Section 11 hereof) of the Firm Shares at a public offering price of $_____ per share. After the public offering, the several Underwriters may, in their discretion, vary the public offering price. The information set forth in the second and eighth paragraphs under the caption "Underwriting" in any Preliminary Prospectus and in the Prospectus constitutes the only information furnished by the Underwriters to the Company for inclusion in any Preliminary Prospectus, the Prospectus or the Registration Statement or any Incorporated Document, and you, on behalf of the respective Underwriters, represent and warrant to the Company and the Selling Stockholders that the statements made therein do not include any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading.after
Appears in 1 contract
Samples: Piercing Pagoda Inc
Purchase, Sale and Delivery of Shares. On the basis of the representations, warranties and agreements herein contained, but subject to the terms and conditions herein set forth, the Company and the Selling Stockholders agree, severally and not jointly, to sell to the Underwriters, and each Underwriter agrees, severally and not jointly, to purchase from the Company and the Selling Stockholders, respectively, at a purchase price of $_____ per share, the respective number of Company Shares as hereinafter set forth and Selling Stockholder Shares set forth opposite the names of the Company and the Selling Stockholders, respectively, Stockholders in Schedule B hereto. The obligation of each Underwriter to the Company and to each Selling Stockholder shall be to purchase from the Company or such Selling Stockholder that number of Company Shares or Selling Stockholder Shares, as the case may be, which (as nearly as practicable, as determined by you) is in the same proportion to the number of Company Shares or Selling Stockholder Shares, as the case may be, set forth opposite the name of the Company or such Selling Stockholder in Schedule B hereto as the number of Firm Shares which is set forth opposite the name of such Underwriter in Schedule A hereto (subject to adjustment as provided in Section 10) is to the total number of Firm Shares to be purchased by all the Underwriters under this Agreement. The certificates in negotiable form or properly executed option exercise forms for the Selling Stockholder Shares have been placed in custody (for delivery under this Agreement) under the Custody Agreement. Each Selling Stockholder agrees that the certificates or executed option exercise forms for the Selling Stockholder Shares of such Selling Stockholder so held in custody are subject to the interests of the Underwriters hereunder, that the arrangements made by such Selling Stockholder for such custody, including the Power of Attorney is to that extent irrevocable and that the obligations of such Selling Stockholder hereunder shall not be terminated by the act of such Selling Stockholder or by operation of law, whether by the death or incapacity of such Selling Stockholder or the occurrence of any other event, except as specifically provided herein or in the Custody Agreement. If any Selling Stockholder should die or be incapacitated, or if any other such event should occur, before the delivery of the certificates for the Selling Stockholder Shares hereunder, the Selling Stockholder Shares to be sold by such Selling Stockholder shall, except as specifically provided herein or in the Custody Agreement, be delivered by the Custodian in accordance with the terms and conditions of this Agreement as if such death, incapacity or other event had not occurred, regardless of whether the Custodian shall have received notice of such death or other event. Delivery of definitive certificates for the Firm Shares to be purchased by the Underwriters pursuant to this Section 3 shall be made against payment of the purchase price therefor by the several Underwriters by certified or official bank check or checks drawn in next-day funds, payable to the order of the Company with regard to the Shares being purchased from the Company, and to the order of the Custodian for the respective accounts of the Selling Stockholders with regard to the Shares being purchased from such Selling Stockholders (and the Company and such Selling Stockholders agree not to deposit and to cause the Custodian not to deposit any such check in the bank on which it is drawn, and not to take any other action with the purpose or effect of receiving immediately available funds, until the business day following the date of its delivery to the Company or the Custodian, as the case may be, and, in the event of any breach of the foregoing, the Company or the Selling Stockholders, as the case may be, shall reimburse the Underwriters for the interest lost and any other expenses borne by them by reason of such breach), at the offices of Xxxxxxx & XxXxxxxxCoolxx Xxxward LLP, Los AngelesBoulder, California Colorado (or at such other place as may be agreed upon among the Representatives and the Company), at 7:00 A.M., San Francisco time (a) on the third (3rd) full business day following the first day that Shares are traded, (b) if this Agreement is executed and delivered after 1:30 P.M., San Francisco time, the fourth (4th) full business day following the day that this Agreement is executed and delivered or (c) at such other time and date not later than seven (7) full business days following the first day that Shares are traded as the Representatives and the Company and the Attorneys may determine (or at such time and date to which payment and delivery shall have been postponed pursuant to Section 10 hereof), such time and date of payment and delivery being herein called the "Closing Date;" PROVIDEDprovided, HOWEVERhowever, that if the Company has not made available to the Representatives copies of the Prospectus within the time provided in Section 4(d) hereof, the Representatives may, in their sole discretion, postpone the Closing Date until no later than two (2) full business days following delivery of copies of the Prospectus to the Representatives. The certificates for the Firm Shares to be so delivered will be made available to you at such office or such other location including, without limitation, in New York City, as you may reasonably request for checking at least one (1) full business day prior to the Closing Date and will be in such names and denominations as you may request, such request to be made at least two (2) full business days prior to the Closing Date. If the Representatives so elect, delivery of the Firm Shares may be made by credit through full fast transfer to the accounts at The Depository Trust Company designated by the Representatives. It is understood that you, individually, and not as the Representatives of the several Underwriters, may (but shall not be obligated to) make payment of the purchase price on behalf of any Underwriter or Underwriters whose check or checks shall not have been received by you prior to the Closing Date for the Firm Shares to be purchased by such Underwriter or Underwriters. Any such payment by you shall not relieve any such Underwriter or Underwriters of any of its or their obligations hereunder. After the Registration Statement becomes effective, the several Underwriters intend to make a public offering (as such term is described in Section 11 II hereof) of the Firm Shares at a public offering price of $_____ per share. After the public offering, the several Underwriters may, in their discretion, vary the public offering price. The information set forth in the last paragraph on the front cover page (insofar as such information relates to the Underwriters), on the inside front cover concerning stabilization and over-allotment by the Underwriters, and under the second and eighth paragraphs under the caption "Underwriting" in any Preliminary Prospectus and in the Prospectus constitutes the only information furnished by the Underwriters to the Company for inclusion in any Preliminary Prospectus, the Prospectus or the Registration Statement or any Incorporated Document, and you, on behalf of the respective Underwriters, represent and warrant to the Company and the Selling Stockholders that the statements made therein do not include any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading.
Appears in 1 contract
Purchase, Sale and Delivery of Shares. On the basis of the representations, warranties and agreements herein contained, but subject to the terms and conditions herein set forth, the Company and each of the Selling Stockholders agreeShareholders, severally and not jointly, agree to sell to the UnderwritersUnderwriters named in Schedule A hereto, and each Underwriter agreesthe Underwriters agree, severally and not jointly, to purchase from the Company and each of the Selling StockholdersShareholders, respectively, at a purchase price of $_____ per share, 3,400,000 Firm Shares from the respective Company and the number of Company Shares and Selling Stockholder Firm Shares set forth opposite the names name of the Company and the each Selling Stockholders, respectively, Shareholder in Schedule B heretohereto at the price per share set forth in the Pricing Agreement. The obligation of each Underwriter to the Company and to each Selling Stockholder shall be to purchase from the Company or such Selling Stockholder that number of Company Shares or Selling Stockholder Shares, as the case may be, full shares which (as nearly as practicable, as determined by you) is in bears to 3,400,000, the same proportion to the number of Company Shares or Selling Stockholder Shares, as the case may be, set forth opposite the name of the Company or such Selling Stockholder in Schedule B hereto as the number of Firm Shares which is set forth opposite the name of such Underwriter in Schedule A hereto (subject to adjustment as provided in Section 10) is bears to the total number of Firm Shares to be purchased by all the Underwriters under this Agreement. The certificates in negotiable form or properly executed option exercise forms for obligation of each Underwriter to each of the Selling Stockholder Shareholders shall be to purchase from such Selling Shareholders the number of full shares which (as nearly as practicable, as determined by you) bears to that number of Firm Shares have been placed in custody (for delivery under this Agreement) under set forth opposite the Custody Agreement. Each Selling Stockholder agrees that the certificates or executed option exercise forms for the Selling Stockholder Shares name of such Selling Stockholder so held Shareholder in custody are subject Schedule B hereto, the same proportion as the number of Shares set forth opposite the name of such Underwriter in Schedule A hereto bears to the interests total number of the Underwriters hereunder, that the arrangements made by such Selling Stockholder for such custody, including the Power of Attorney is to that extent irrevocable and that the obligations of such Selling Stockholder hereunder shall not be terminated by the act of such Selling Stockholder or by operation of law, whether by the death or incapacity of such Selling Stockholder or the occurrence of any other event, except as specifically provided herein or in the Custody Agreement. If any Selling Stockholder should die or be incapacitated, or if any other such event should occur, before the delivery of the certificates for the Selling Stockholder Shares hereunder, the Selling Stockholder Shares to be sold by such Selling Stockholder shall, except as specifically provided herein or in the Custody Agreement, be delivered by the Custodian in accordance with the terms and conditions of this Agreement as if such death, incapacity or other event had not occurred, regardless of whether the Custodian shall have received notice of such death or other event. Delivery of definitive certificates for the Firm Shares to be purchased by all Underwriters under this Agreement. The initial public offering price and the purchase price shall be set forth in the Pricing Agreement. At 9:00 A.M., Chicago Time, on the fourth business day, if permitted under Rule 15c6-1 under the Exchange Act, (or the third business day if required under Rule 15c6-1 under the Exchange Act or unless postponed in accordance with the provisions of Section 12) following the date the Registration Statement becomes effective (or, if the Company has elected to rely upon Rule 430A, the fourth business day, if permitted under Rule 15c6-1 under the Exchange Act, (or the third business day if required under Rule 15c6-1 under the Exchange Act) after execution of the Pricing Agreement), or such other time not later than ten business days after such date as shall be agreed upon by the Representatives and the Company, the Company and the Custodian will deliver to you at the offices of counsel for the Underwriters pursuant or through the facilities of The Depository Trust Company for the accounts of the several Underwriters, certificates representing the Firm Shares to this Section 3 shall be made sold by them, respectively, against payment of the purchase price therefor by the several Underwriters by certified delivery of federal or official bank check or checks drawn in next-day funds, payable to the order of the Company with regard to the Shares being purchased from the Company, and to the order of the Custodian for the respective accounts of the Selling Stockholders with regard to the Shares being purchased from such Selling Stockholders (and the Company and such Selling Stockholders agree not to deposit and to cause the Custodian not to deposit any such check in the bank on which it is drawn, and not to take any other action with the purpose or effect of receiving immediately available funds, until the business day following the date of its delivery by wire transfer or otherwise, to the Company or the Custodian, as the case may be, and, in the event of any breach of the foregoing, the Company or the Selling Stockholders, as the case may be, shall reimburse the Underwriters for the interest lost and any other expenses borne by them by reason of such breach), at the offices of Xxxxxxx & XxXxxxxx, Los Angeles, California (or at such other place as may be agreed upon among the Representatives and the Company), at 7:00 A.M., San Francisco time (a) on the third (3rd) full business day following the first day that Shares are traded, (b) if this Agreement is executed and delivered after 1:30 P.M., San Francisco time, the fourth (4th) full business day following the day that this Agreement is executed and delivered or (c) at such other time and date not later than seven (7) full business days following the first day that Shares are traded as the Representatives and the Company and the Attorneys may determine (or at such Custodian. Such time of delivery and date payment is herein referred to which payment and delivery shall have been postponed pursuant to Section 10 hereof), such time and date of payment and delivery being herein called as the "“First Closing Date;" PROVIDED, HOWEVER, that if the Company has not made available to the Representatives copies of the Prospectus within the time provided in Section 4(d) hereof, the Representatives may, in their sole discretion, postpone the Closing Date until no later than two (2) full business days following delivery of copies of the Prospectus to the Representatives. .” The certificates for the Firm Shares so to be so delivered will be in such denominations and registered in such names as you request by notice to the Company and the Custodian prior to 10:00 A.M., Chicago Time, on the second business day preceding the First Closing Date, and will be made available to you at such office or such other location including, without limitation, in New York City, as you may reasonably request the Company’s expense for checking and packaging by the Representatives at least one (1) full 10:00 A.M., Chicago Time, on the business day prior preceding the First Closing Date. Payment for the Firm Shares so to be delivered shall be made at the time and in the manner described above at the offices of counsel for the Underwriters. In addition, on the basis of the representations, warranties and agreements herein contained, but subject to the Closing Date terms and will conditions herein set forth, the Selling Shareholders hereby grant an option to the several Underwriters to purchase, severally and not jointly, up to an aggregate of 600,000 Option Shares, at the same purchase price per share to be paid for the Firm Shares, for use solely in such covering any overallotments made by the Underwriters in the sale and distribution of the Firm Shares. The option granted hereunder may be exercised at any time (but not more than once) within 30 days after the date of the initial public offering upon notice by you to the Company and the Agents setting forth the aggregate number of Option Shares as to which the Underwriters are exercising the option, the names and denominations as you may request, in which the certificates for such request shares are to be made registered and the time and place at least two which such certificates will be delivered. Such time of delivery (2) which may not be earlier than the First Closing Date), being herein referred to as the “Second Closing Date,” shall be determined by you, but if at any time other than the First Closing Date, shall not be earlier than three nor later than 10 full business days prior after delivery of such notice of exercise. The number of Option Shares to be purchased from each such Selling Shareholder if all of the Closing DateOption Shares are purchased is set forth in Schedule B hereto. If the Representatives so elect, delivery less than all of the Firm Option Shares may are purchased, the number of Option Shares to be made sold by credit through full fast transfer each Selling Shareholder shall be reduced from such maximum number on a pro rata basis. The number of Option Shares to be purchased by each Underwriter shall be determined by multiplying the accounts at The Depository Trust Company designated number of Option Shares to be sold by the Representatives. It Selling Shareholders pursuant to such notice of exercise by a fraction, the numerator of which is understood that you, individually, and not as the Representatives number of the several Underwriters, may (but shall not be obligated to) make payment of the purchase price on behalf of any Underwriter or Underwriters whose check or checks shall not have been received by you prior to the Closing Date for the Firm Shares to be purchased by such Underwriter or Underwritersas set forth opposite its name in Schedule A and the denominator of which is the total number of Firm Shares (subject to such adjustments to eliminate any fractional share purchases as you in your absolute discretion may make). Any such Certificates for the Option Shares will be made available at the Company’s expense for checking and packaging at 10:00 A.M., Chicago Time, on the business day preceding the Second Closing Date. The manner of payment by you for and delivery of the Option Shares shall not relieve any such Underwriter or Underwriters of any of its or their obligations hereunder. After be the Registration Statement becomes effective, the several Underwriters intend to make a public offering (same as such term is described in Section 11 hereof) of for the Firm Shares at a public offering price of $_____ per share. After the public offering, the several Underwriters may, in their discretion, vary the public offering price. The information set forth as specified in the second and eighth paragraphs under the caption "Underwriting" in any Preliminary Prospectus and in the Prospectus constitutes the only information furnished by the Underwriters to the Company for inclusion in any Preliminary Prospectus, the Prospectus or the Registration Statement or any Incorporated Document, and you, on behalf of the respective Underwriters, represent and warrant to preceding paragraph. You have advised the Company and the Selling Stockholders Shareholders that each Underwriter has authorized you to accept delivery of its Shares, to make payment and to receipt therefor. You, individually and not as the statements made therein do not include Representatives of the Underwriters, may make payment for any untrue statement of a material fact or omit to state a material fact required Shares to be stated therein purchased by any Underwriter whose funds shall not have been received by you by the First Closing Date or necessary to make the statements thereinSecond Closing Date, in as the light case may be, for the account of the circumstances under which they were madesuch Underwriter, but any such payment shall not misleadingrelieve such Underwriter from any obligation hereunder.
Appears in 1 contract
Samples: Underwriting Agreement (Shamir Optical Industry Ltd.)
Purchase, Sale and Delivery of Shares. On the basis of the representations, warranties and agreements herein containedcovenants contained herein, but and subject to the terms and conditions herein set forth, the Company and the each Selling Stockholders agreeShareholder agrees, severally and not jointly, to sell to the Underwriters, each Underwriter and each Underwriter agrees, severally and not jointly, to purchase from the Company and the each Selling Stockholders, respectivelyShareholder, at a purchase price of $_____ 10.23 per share, the respective number of Company Shares and Selling Stockholder Shares set forth opposite the names of the Company and the Selling Stockholders, respectively, in Schedule B hereto. The obligation of each Underwriter to the Company and to each Selling Stockholder shall be to purchase from the Company or such Selling Stockholder that number of Company Shares or Selling Stockholder Shares, as the case may be, which (as nearly as practicable, as determined by you) is in the same proportion to the number of Company Shares or Selling Stockholder Shares, as the case may be, set forth opposite the name of the Company or such Selling Stockholder in Schedule B hereto as the number of Firm Shares (to be adjusted by you to eliminate fractional shares) determined by multiplying the aggregate number of Firm Shares to be sold by the Company and each of the Selling Shareholders, as set forth opposite their respective names in Schedule B hereto, by a fraction, the numerator of which is the aggregate number of Firm Shares to be purchased by such Underwriter as set forth opposite the name of such Underwriter in Schedule A hereto (subject to adjustment as provided in Section 10) and the denominator of which is to the total aggregate number of Firm Shares to be purchased by all the Underwriters under this Agreement. The certificates in negotiable form or properly executed option exercise forms for from the Company and the Selling Stockholder Shares have been placed in custody (for delivery under this Agreement) under Shareholders hereunder. In addition, on the Custody Agreement. Each Selling Stockholder agrees that basis of the certificates or executed option exercise forms for the Selling Stockholder Shares of such Selling Stockholder so held in custody are representations, warranties and covenants contained herein and subject to the interests of the Underwriters hereunder, that the arrangements made by such Selling Stockholder for such custody, including the Power of Attorney is to that extent irrevocable and that the obligations of such Selling Stockholder hereunder shall not be terminated by the act of such Selling Stockholder or by operation of law, whether by the death or incapacity of such Selling Stockholder or the occurrence of any other event, except as specifically provided herein or in the Custody Agreement. If any Selling Stockholder should die or be incapacitated, or if any other such event should occur, before the delivery of the certificates for the Selling Stockholder Shares hereunder, the Selling Stockholder Shares to be sold by such Selling Stockholder shall, except as specifically provided herein or in the Custody Agreement, be delivered by the Custodian in accordance with the terms and conditions of this Agreement herein set forth, the Company hereby grants to the several Underwriters an option to purchase at the Underwriters' election up to 442,500 Option Shares at the same price per share as if such death, incapacity or other event had not occurred, regardless of whether the Custodian shall have received notice of such death or other event. Delivery of definitive certificates set forth for the Firm Shares to be purchased by in the Underwriters pursuant to this Section 3 shall be made against payment paragraph above, for the sole purpose of covering over-allotments in the sale of the purchase price therefor Firm Shares. The option granted hereby may be exercised in whole or in part, but only once, and at any time upon written notice given within 30 days after the date of this Agreement, by you, as Representatives of the several Underwriters, to the Company setting forth the number of Option Shares as to which the several Underwriters by certified or official bank check or checks drawn in next-day funds, payable to are exercising the order of the Company with regard to the Shares being purchased from the Company, and to the order of the Custodian for the respective accounts of the Selling Stockholders with regard to the Shares being purchased from such Selling Stockholders (option and the Company and such Selling Stockholders agree not to deposit and to cause the Custodian not to deposit any such check in the bank on which it is drawn, and not to take any other action with the purpose or effect of receiving immediately available funds, until the business day following the date of its delivery to the Company or the Custodian, as the case may be, and, in the event of any breach of the foregoing, the Company or the Selling Stockholders, as the case may be, shall reimburse the Underwriters for the interest lost and any other expenses borne by them by reason of such breach), at the offices of Xxxxxxx & XxXxxxxx, Los Angeles, California (or at such other place as may be agreed upon among the Representatives and the Company), at 7:00 A.M., San Francisco time (a) on the third (3rd) full business day following the first day that Shares are traded, (b) if this Agreement is executed and delivered after 1:30 P.M., San Francisco time, the fourth (4th) full business day following the day that this Agreement is executed and delivered or (c) at such other time and date at which certificates are to be delivered. If any Option Shares are purchased, each Underwriter agrees, severally and not jointly, to purchase that portion of the number of Option Shares as to which such election shall have been exercised (subject to adjustment to eliminate fractional shares) determined by multiplying such number of Option Shares by a fraction the numerator of which is the maximum number of Option Shares which such Underwriter is entitled to purchase as set forth opposite the name of such Underwriter in Schedule A hereto and the denominator of which is the maximum number of Option Shares which all of the Underwriters are entitled to purchase hereunder. The time and date at which certificates for Option Shares are to be delivered shall be determined by the Representatives but shall not be earlier than two or later than seven (7) ten full business days following after the first day that Shares are traded as the Representatives exercise of such option, and the Company and the Attorneys may determine (or at such time and date to which payment and delivery shall have been postponed pursuant to Section 10 hereof), such time and date of payment and delivery being herein called the "Closing Date;" PROVIDED, HOWEVER, that if the Company has not made available to the Representatives copies of the Prospectus within the time provided in Section 4(d) hereof, the Representatives may, in their sole discretion, postpone the Closing Date until no later than two (2) full business days following delivery of copies of the Prospectus to the Representatives. The certificates for the Firm Shares to any event be so delivered will be made available to you at such office or such other location including, without limitation, in New York City, as you may reasonably request for checking at least one (1) full business day prior to the Closing Date and will be in such names and denominations as you may request, such request to be made at least two (2) full business days prior to the Closing Date. If the Representatives so elect, delivery date of exercise of the Firm option is three or more full days before the Closing Date, the notice of exercise shall set the Closing Date as the Option Closing Date. Certificates in definitive form for the Shares may to be made purchased by credit through full fast transfer each Underwriter hereunder, and in such denominations and registered in such names as Dain Xxxxxxxx Xxxxxxx xxx request upon at least 48 hours' prior notice to the accounts Company, shall be delivered by or on behalf of the Company or the Selling Shareholders, as applicable, to you for the account of such Underwriter at The Depository Trust Company such time and place as shall hereafter be designated by the Representatives. It is understood that you, individually, and not as the Representatives of the several Underwriters, may (but shall not be obligated to) make against payment by such Underwriter or on its behalf of the purchase price therefor by wire transfer of Federal or other funds immediately available in Minneapolis, Minnesota. The time and date of such delivery and payment shall be, with respect to the Firm Shares, 8:30 a.m. Minneapolis, Minnesota time, at the offices of Steptoe & Johnxxx XXX, 40 N. Xxxxxxx Xxxxxx, Xxxxx 0000, Xxxxxxx, Xxxxxxx, xx Xxxil 26, 2000, or such other time and date as you and the Company may agree upon in writing, such time and date being herein referred to as the "Closing Date," and, with respect to the Option Shares, at the time and on behalf of any Underwriter or Underwriters whose check or checks shall not have been received the date specified by you in the written notice given by you of the Underwriters' election to purchase the Option Shares, or such other time and date as you and the Company may agree upon in writing, such time and date being referred to herein as the "Option Closing Date." Such certificates will be made available for checking and packaging at least 24 hours prior to the Closing Date for or the Firm Shares to be purchased by such Underwriter or Underwriters. Any such payment by you shall not relieve any such Underwriter or Underwriters of any of its or their obligations hereunder. After Option Closing Date, as the Registration Statement becomes effectivecase may be, the several Underwriters intend to make a public offering (as such term is described in Section 11 hereof) of the Firm Shares at a public offering price of $_____ per share. After the public offering, the several Underwriters may, in their discretion, vary the public offering price. The information set forth in the second and eighth paragraphs under the caption "Underwriting" in any Preliminary Prospectus and in the Prospectus constitutes the only information furnished location as may be designated by the Underwriters to the Company for inclusion in any Preliminary Prospectus, the Prospectus or the Registration Statement or any Incorporated Document, and you, on behalf of the respective Underwriters, represent and warrant to the Company and the Selling Stockholders that the statements made therein do not include any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading.
Appears in 1 contract
Samples: Rockford Corp
Purchase, Sale and Delivery of Shares. On the basis of the representations, warranties and agreements herein contained, but subject to the terms and conditions herein set forth, the Company and the Selling Stockholders agree, severally and not jointly, agree to sell to the Underwriters, and each Underwriter agrees, severally and not jointly, to purchase from the Company and the Selling Stockholders, respectively, at a purchase price of $[_____ _] per share, the respective number of Company Shares and Selling Stockholder Shares set forth opposite the names of the Company and the Selling Stockholders, respectively, Stockholders in Schedule B hereto. The obligation of each Underwriter to the Company and to each Selling Stockholder shall be to purchase from the Company or such Selling Stockholder that number of Company Shares or Selling Stockholder Shares, as the case may be, which (as nearly as practicable, as determined by you) is in the same proportion to the number of Company Shares or Selling Stockholder Shares, as the case may be, set forth opposite the name of the Company or such Selling Stockholder in Schedule B hereto as the number of Firm Shares which is set forth opposite the name of such Underwriter in Schedule A hereto (subject to adjustment as provided in Section 10) is to the total number of Firm Shares to be purchased by all the Underwriters under this Agreement. The certificates in negotiable form or properly executed option exercise forms for the Selling Stockholder Shares have been placed in custody (for delivery under this Agreement) under the Custody AgreementAgreement and Power of Attorney. Each Selling Stockholder agrees that the certificates or executed option exercise forms for the Selling Stockholder Shares of such Selling Stockholder so held in custody are subject to the interests of the Underwriters hereunder, that the arrangements made by such Selling Stockholder for such custody, including the Custody Agreement and Power of Attorney is to that extent irrevocable and that the obligations of such Selling Stockholder hereunder shall not be terminated by the act of such Selling Stockholder or by operation of law, whether by the death or incapacity of such Selling Stockholder or the occurrence of any other event, except as specifically provided herein or in the Custody AgreementAgreement and Power of Attorney. If any Selling Stockholder should die or be incapacitated, or if any other such event should occur, before the delivery of the certificates for the Selling Stockholder Shares hereunder, the Selling Stockholder Shares to be sold by such Selling Stockholder shall, except as specifically provided herein or in the Custody AgreementAgreement and Power of Attorney, be delivered by the Custodian in accordance with the terms and conditions of this Agreement as if such death, incapacity or other event had not occurred, regardless of whether the Custodian shall have received notice of such death or other event. Delivery of definitive certificates for the Firm Shares to be purchased by the Underwriters pursuant to this Section 3 shall be made against payment of the purchase price therefor by the several Underwriters by certified or official bank check or checks drawn in next-wire transfer is same day funds, payable to the order of the Company with regard to the Shares being purchased from the Company, and to the order of the Custodian for the respective accounts of the Selling Stockholders with regard to the Shares being purchased from such Selling Stockholders (and the Company and such Selling Stockholders agree not to deposit and to cause the Custodian not to deposit any such check in the bank on which it is drawn, and not to take any other action with the purpose or effect of receiving immediately available funds, until the business day following the date of its delivery to the Company or the Custodian, as the case may be, and, in the event of any breach of the foregoing, the Company or the Selling Stockholders, as the case may be, shall reimburse the Underwriters for the interest lost and any other expenses borne by them by reason of such breach), at the offices of Xxxxxxx & XxXxxxxxXxxxxx Godward LLP, Los AngelesFive Palo Alto Square, California 0000 Xx Xxxxxx Xxxx, Xxxx Xxxx, Xxxxxxxxxx 00000-0000 (or at such other place as may be agreed upon among the Representatives Representatives, the Company and the CompanySelling Stockholders), at 7:00 A.M., San Francisco time (a) on the third (3rd) full business day following the first day that Shares are traded, (b) if this Agreement is executed and delivered after 1:30 P.M., San Francisco time, the fourth (4th) full business day following the day that this Agreement is executed and delivered or (c) at such other time and date not later than seven (7) full business days following the first day that Shares are traded as the Representatives and Representatives, the Company and the Attorneys Selling Stockholders may determine (or at such time and date to which payment and delivery shall have been postponed pursuant to Section 10 hereof), such time and date of payment and delivery being herein called the "Closing Date;" PROVIDED, HOWEVER, that if the Company has not made available to the Representatives copies of the Prospectus within the time provided in Section 4(d) hereof, the Representatives may, in their sole discretion, postpone the Closing Date until no later than two (2) full business days following delivery of copies of the Prospectus to the Representatives. The certificates for the Firm Shares to be so delivered will be made available to you at such office or such other location including, without limitation, in New York CityYork, as you may reasonably request for checking at least one (1) full business day prior to the Closing Date and will be in such names and denominations as you may request, such request to be made at least two (2) full business days prior to the Closing Date. If the Representatives so elect, delivery of the Firm Shares may be made by credit through full fast transfer to the accounts at The Depository Trust Company designated by the Representatives. It is understood that you, individually, and not as the Representatives of the several Underwriters, may (but shall not be obligated to) make payment of the purchase price on behalf of any Underwriter or Underwriters whose check or checks shall not have been received by you prior to the Closing Date for the Firm Shares to be purchased by such Underwriter or Underwriters. Any such payment by you shall not relieve any such Underwriter or Underwriters of any of its or their obligations hereunder. After the Registration Statement becomes effective, the several Underwriters intend to make a secondary public offering (as such term is described in Section 11 hereof) of the Firm Shares at a secondary public offering price of $[_____ _] per share. After the secondary public offering, the several Underwriters may, in their discretion, vary the public offering price. The information set forth in the second last paragraph on the front cover page (insofar as such information relates to the Underwriters), under the last two paragraphs on page 2, concerning stabilization and passive market-making by the Underwriters, and under the second, seventh and eighth paragraphs under the caption "Underwriting" in any Preliminary Prospectus and in the final form of Prospectus filed pursuant to Rule 424(b) constitutes the only information furnished by the Underwriters to the Company for inclusion in any Preliminary Prospectus, the Prospectus or the Registration Statement or any Incorporated DocumentStatement, and you, on behalf of the respective Underwriters, represent and warrant to the Company and the Selling Stockholders that the statements made therein do not include any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading.
Appears in 1 contract
Purchase, Sale and Delivery of Shares. On the basis of the ------------------------------------- representations, warranties and agreements herein contained, but subject to the terms and conditions herein set forth, the Company and the Selling Stockholders agree, severally and not jointly, to sell to the Underwriters, and each Underwriter agrees, severally and not jointly, to purchase from the Company and the Selling Stockholders, respectively, at a purchase price of $_____ per share, the respective number of Company Shares and Selling Stockholder Shares set forth opposite the names of the Company and the Selling Stockholders, respectively, Stockholders in Schedule B hereto. The obligation ---------- of each Underwriter to the Company and to each Selling Stockholder shall be to purchase from the Company or such Selling Stockholder that number of Company Shares or Selling Stockholder Shares, as the case may be, which (as nearly as practicable, as determined by you) is in the same proportion to the number of Company Shares or Selling Stockholder Shares, as the case may be, set forth opposite the name of the Company or such Selling Stockholder in Schedule B hereto as the number of Firm Company Shares which is set forth opposite ---------- the name of such Underwriter in Schedule A hereto (subject to adjustment as ---------- provided in Section 10) is to the total number of Firm Shares to be purchased by all the Underwriters under this Agreement. The certificates in negotiable form or properly executed option exercise forms for the Selling Stockholder Shares have been placed in custody (for delivery under this Agreement) under the Custody Agreement. Each Selling Stockholder agrees that the certificates or executed option exercise forms for the Selling Stockholder Shares of such Selling Stockholder so held in custody are subject to the interests of the Underwriters hereunder, that the arrangements made by such Selling Stockholder for such custody, including the Power of Attorney is and the Custody Agreement, are to that extent irrevocable and that the obligations of such Selling Stockholder hereunder shall not be terminated by the act of such Selling Stockholder or by operation of law, whether by the death or incapacity of such Selling Stockholder or the occurrence of any other event, except as specifically provided herein or in the Custody Agreement. If any Selling Stockholder should die or be incapacitated, or if any other such event should occur, before the delivery of the certificates for the Selling Stockholder Shares hereunder, the Selling Stockholder Shares to be sold by such Selling Stockholder shall, except as specifically provided herein or in the Custody Agreement, be delivered by the Custodian in accordance with the terms and conditions of this Agreement as if such death, incapacity or other event had not occurred, regardless of whether the Custodian shall have received notice of such death or other event. Delivery of definitive certificates for the Firm Shares to be purchased by the Underwriters pursuant to this Section 3 shall be made against payment of the purchase price therefor by the several Underwriters by certified or official bank check or checks drawn in next-day funds, payable to the order of the Company with regard to the Shares being purchased from the Company, and to the order of the Custodian for the respective accounts of the Selling Stockholders with regard to the Shares being purchased from such Selling Stockholders (and the Company and such Selling Stockholders agree not to deposit and to cause the Custodian not to deposit any such check in the bank on which it is drawn, and not to take any other action with the purpose or effect of receiving immediately available funds, until the business day following the date of its delivery to the Company or the Custodian, as the case may be, and, in the event of any breach of the foregoing, the Company or the Selling Stockholders, as the case may be, shall reimburse the Underwriters for the interest lost and any other expenses borne by them by reason of such breach), at the offices of Xxxxxxx Brown, Rudnick, Freed & XxXxxxxxGesmer, Los AngelesXxx Xxxxxxxxx Xxxxxx, California Xxxxxx, XX 00000 (or at such other place as may be agreed upon among the Representatives and the CompanyCompany and the Attorneys), at 7:00 A.M., San Francisco time (a) on the third (3rd) full business day following the first day that Shares are traded, (b) if this Agreement is executed and delivered after 1:30 P.M., San Francisco time, the fourth (4th) full business day following the day that this Agreement is executed and delivered or (c) at such other time and date not later than seven (7) full business days following the first day that Shares are traded as the Representatives and Representatives, the Company and the Attorneys may determine (or at such time and date to which payment and delivery shall have been postponed pursuant to Section 10 hereof), such time and date of payment and delivery being herein called the "Closing Date;" PROVIDEDprovided, HOWEVERhowever, that if the Company has not made -------- ------- available to the Representatives copies of the Prospectus within the time provided in Section 4(d) hereof, the Representatives may, in their sole discretion, postpone the Closing Date until no later than two (2) full business days following delivery of copies of the Prospectus to the Representatives. The certificates for the Firm Shares to be so delivered will be made available to you at such office or such other location including, without limitation, in New York City, as you may reasonably request for checking at least one (1) full business day prior to the Closing Date and will be in such names and denominations as you may request, such request to be made at least two (2) full business days prior to the Closing Date. If the Representatives so elect, delivery of the Firm Shares may be made by credit through full fast transfer to the accounts at The Depository Trust Company designated by the Representatives. It is understood that you, individually, and not as the Representatives of the several Underwriters, may (but shall not be obligated to) make payment of the purchase price on behalf of any Underwriter or Underwriters whose check or checks shall not have been received by you prior to the Closing Date for the Firm Shares to be purchased by such Underwriter or Underwriters. Any such payment by you shall not relieve any such Underwriter or Underwriters of any of its or their obligations hereunder. After the Registration Statement becomes effective, the several Underwriters intend to make a an initial public offering (as such term is described in Section 11 hereof) of the Firm Shares at a an initial public offering price of $_____ per share. After the initial public offering, the several Underwriters may, in their discretion, vary the public offering price. The information set forth in the second last paragraph on the front cover page (insofar as such information relates to the Underwriters), on the inside front cover concerning stabilization and eighth passive market making by the Underwriters, and in the first, second, seventh, eighth, ninth, tenth and eleventh paragraphs under the caption "Underwriting" in any Preliminary Prospectus and in the Prospectus constitutes the only information furnished by the Underwriters to the Company for inclusion in any Preliminary Prospectus, the Prospectus or the Registration Statement or any Incorporated Document, and you, on behalf of the respective Underwriters, represent and warrant to the Company and the Selling Stockholders that the statements made therein do not include any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading.
Appears in 1 contract
Samples: Underwriting Agreement (Abiomed Inc)
Purchase, Sale and Delivery of Shares. On the basis of the representations, warranties and agreements herein contained, but subject to the terms and conditions herein set forth, the Company agrees to issue and sell to the Underwriters the Underwritten Shares, and the Selling Stockholders agreeagree to sell to the Underwriters the Secondary Shares, and the Underwriters, severally and not jointly, agree to sell purchase the Underwritten Shares and Secondary Shares. The purchase price for each Underwritten Share and Secondary Share shall be $[_______] per share (the “Per Share Price”). Notwithstanding the foregoing provisions of this Section 5, the Per Share Price for sales of Underwritten Shares by the Underwriters to KIT Media Ltd. and Gxxxxxxx MxXxxxx Capital, LLC shall be $[_______] per share. The Underwriters hereby acknowledge that they are not being paid a fee for the Underwritten Shares sold to KIT Media Ltd. and Gxxxxxxx MxXxxxx Capital, LLC, however, all such shares being sold to KIT Media Ltd. and Gxxxxxxx MxXxxxx Capital, LLC are being underwritten by the Underwriters. The Company and the Selling Stockholders agree to pay the Underwriters’ compensation as set forth in Schedule II hereto. The Company hereby grants to the UnderwritersUnderwriters the option to purchase some or all of the Additional Shares and, upon the basis of the warranties and each Underwriter agreesrepresentations and subject to the terms and conditions herein set forth, the Underwriters shall have the right to purchase, severally and not jointly, all or any portion of the Additional Shares at the Per Share Price as may be necessary to cover over-allotments made in connection with the transactions contemplated hereby. This option may be exercised by an Underwriter at any time or from time to time on or before the thirtieth day following the date hereof, by written notice to the Company (the “Option Notice”). The Option Notice shall set forth the aggregate number of Additional Shares as to which the option is being exercised, and the date and time when the Additional Shares are to be delivered (such date and time being herein referred to as the “Option Closing Date”); provided, however, that the Option Closing Date shall not be earlier than the Closing Date (as defined below) nor earlier than the second business day after the date on which the option shall have been exercised nor later than the fifth business day after the date on which the option shall have been exercised unless the Company and the Underwriter otherwise agree. Payment of the purchase from price for and delivery of the Additional Shares shall be made at the Option Closing Date in the same manner and at the same office as the payment for the Underwritten Shares as set forth in subparagraph (c) below. For the purpose of expediting the checking of the certificate for the Additional Shares by the Underwriters, the Company agrees to make a form of such certificate available to the Underwriters for such purpose at least one full business day preceding the Option Closing Date. The Underwritten Shares and Secondary Shares will be delivered by the Company and the Selling Stockholders, respectively, at a purchase price of $_____ per share, the respective number of Company Shares and Selling Stockholder Shares set forth opposite the names of the Company and the Selling Stockholders, respectively, in Schedule B hereto. The obligation of each Underwriter Stockholders to the Company and to each Selling Stockholder shall be to purchase from the Company or such Selling Stockholder that number of Company Shares or Selling Stockholder Shares, as the case may be, which (as nearly as practicable, as determined by you) is in the same proportion to the number of Company Shares or Selling Stockholder Shares, as the case may be, set forth opposite the name of the Company or such Selling Stockholder in Schedule B hereto as the number of Firm Shares which is set forth opposite the name of such Underwriter in Schedule A hereto (subject to adjustment as provided in Section 10) is to the total number of Firm Shares to be purchased by all the Underwriters under this Agreement. The certificates in negotiable form or properly executed option exercise forms for the Selling Stockholder Shares have been placed in custody (for delivery under this Agreement) under the Custody Agreement. Each Selling Stockholder agrees that the certificates or executed option exercise forms for the Selling Stockholder Shares of such Selling Stockholder so held in custody are subject to the interests of the Underwriters hereunder, that the arrangements made by such Selling Stockholder for such custody, including the Power of Attorney is to that extent irrevocable and that the obligations of such Selling Stockholder hereunder shall not be terminated by the act of such Selling Stockholder or by operation of law, whether by the death or incapacity of such Selling Stockholder or the occurrence of any other event, except as specifically provided herein or in the Custody Agreement. If any Selling Stockholder should die or be incapacitated, or if any other such event should occur, before the delivery of the certificates for the Selling Stockholder Shares hereunder, the Selling Stockholder Shares to be sold by such Selling Stockholder shall, except as specifically provided herein or in the Custody Agreement, be delivered by the Custodian in accordance with the terms and conditions of this Agreement as if such death, incapacity or other event had not occurred, regardless of whether the Custodian shall have received notice of such death or other event. Delivery of definitive certificates for the Firm Shares to be purchased by the Underwriters pursuant to this Section 3 shall be made against payment of the purchase price therefor by the several Underwriters by certified wire transfer of immediately available or official bank check or checks drawn in next-same day funds, funds payable to the order of the Company with regard to the Shares being purchased from the Company, and to the order of the Custodian for the respective accounts of the or a Selling Stockholders with regard to the Shares being purchased from such Selling Stockholders (and the Company and such Selling Stockholders agree not to deposit and to cause the Custodian not to deposit any such check in the bank on which it is drawn, and not to take any other action with the purpose or effect of receiving immediately available funds, until the business day following the date of its delivery to the Company or the CustodianStockholder, as the case may be, and, in the event of any breach of the foregoing, the Company or the Selling Stockholders, as the case may be, shall reimburse the Underwriters for the interest lost and any other expenses borne by them by reason of such breach)appropriate, at the offices of Rxxx Capital Partners, LLC, 24 Xxxxxxxxx Xxxxx, Xxxxxxx & XxXxxxxxXxxxx, Los AngelesXX 00000, California (or at xr such other place location as may be agreed upon among the Representatives and the Company)mutually acceptable, at 7:00 A.M.6:00 a.m. Pacific Time, San Francisco time (a) on the third (3rdor if the Underwritten Shares and Secondary Shares are priced, as contemplated by Rule 15c6-1(c) under the Exchange Act, after 4:30 p.m. Eastern time, the fourth) full business day following the first day that Shares are tradeddate hereof, (b) if this Agreement is executed and delivered after 1:30 P.M., San Francisco time, the fourth (4th) full business day following the day that this Agreement is executed and delivered or (c) at such other time and date not later than seven (7) full business days following the first day that Shares are traded as the Representatives Underwriter and the Company and determine pursuant to Rule 15c6-1(a) under the Attorneys may determine (or Exchange Act, or, in the case of the Additional Shares, at such date and time and date to which payment and delivery shall have been postponed pursuant to Section 10 hereof), such set forth in the Option Notice. The time and date of payment delivery of the Underwritten Shares and delivery being the Secondary Shares or the Additional Shares, as applicable, is referred to herein called as the "“Closing Date;" PROVIDED, HOWEVER, that if the Company has not made available to the Representatives copies of the Prospectus within the time provided in Section 4(d) hereof, the Representatives may, in their sole discretion, postpone the Closing Date until no later than two (2) full business days following delivery of copies of the Prospectus to the Representatives. The certificates for the Firm Shares to be .” If an Underwriter so delivered will be made available to you at such office or such other location including, without limitation, in New York City, as you may reasonably request for checking at least one (1) full business day prior to the Closing Date and will be in such names and denominations as you may request, such request to be made at least two (2) full business days prior to the Closing Date. If the Representatives so electelects, delivery of the Firm Underwritten Shares, Secondary Shares and Additional Shares may be made by credit through full fast transfer to the accounts account at The Depository Trust Company designated by such Underwriter. Certificates representing the Representatives. It is understood that youShares, individually, in definitive form and not in such denominations and registered in such names as the Representatives of Underwriters may request upon at least two business days’ prior notice to the several UnderwritersCompany, may (but shall will be made available for checking and packaging not be obligated to) make payment of later than 10:30 a.m. Pacific Time on the purchase price on behalf of any Underwriter or Underwriters whose check or checks shall not have been received by you prior to business day next preceding the Closing Date for at the Firm Shares to above addresses, or such other location as may be purchased by such Underwriter or Underwriters. Any such payment by you shall not relieve any such Underwriter or Underwriters of any of its or their obligations hereunder. After the Registration Statement becomes effective, the several Underwriters intend to make a public offering (as such term is described in Section 11 hereof) of the Firm Shares at a public offering price of $_____ per share. After the public offering, the several Underwriters may, in their discretion, vary the public offering price. The information set forth in the second and eighth paragraphs under the caption "Underwriting" in any Preliminary Prospectus and in the Prospectus constitutes the only information furnished by the Underwriters to the Company for inclusion in any Preliminary Prospectus, the Prospectus or the Registration Statement or any Incorporated Document, and you, on behalf of the respective Underwriters, represent and warrant to the Company and the Selling Stockholders that the statements made therein do not include any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleadingmutually acceptable.
Appears in 1 contract
Purchase, Sale and Delivery of Shares. On the basis of the ------------------------------------- representations, warranties and agreements herein contained, but subject to the terms and conditions herein set forth, the Company and the Selling Stockholders agree, severally and not jointly, to sell to the Underwriters, and each Underwriter agrees, severally and not jointly, to purchase from the Company and the Selling Stockholders, respectively, at a purchase price of $______ per share, the respective number of Company Shares and Selling Stockholder Shares set forth opposite the names of the Company and the Selling Stockholders, respectively, Stockholders in Schedule B hereto. The obligation of each Underwriter to the Company and to ---------- each Selling Stockholder shall be to purchase from the Company or such Selling Stockholder that number of Company Shares or Selling Stockholder Shares, as the case may be, which (as nearly as practicable, as determined by you) is in the same proportion to the number of Company Shares or Selling Stockholder Shares, as the case may be, set forth opposite the name of the Company or such Selling Stockholder in Schedule B hereto as the number of Firm Shares which is set forth ---------- opposite the name of such Underwriter in Schedule A hereto (subject to ---------- adjustment as provided in Section 10) is to the total number of Firm Shares to be purchased by all the Underwriters under this Agreement. The certificates in negotiable form or properly executed option exercise forms for the Selling Stockholder Shares have been placed in custody (for delivery under this Agreement) under the Custody Agreement. Each Selling Stockholder agrees that the certificates or executed option exercise forms for the Selling Stockholder Shares of such Selling Stockholder so held in custody are subject to the interests of the Underwriters hereunder, that the arrangements made by such Selling Stockholder for such custody, including the Power of Attorney is to that extent irrevocable and that the obligations of such Selling Stockholder hereunder shall not be terminated by the act of such Selling Stockholder or by operation of law, whether by the death or incapacity of such Selling Stockholder or the occurrence of any other event, except as specifically provided herein or in the Custody Agreement. If any Selling Stockholder should die or be incapacitated, or if any other such event should occur, before the delivery of the certificates for the Selling Stockholder Shares hereunder, the Selling Stockholder Shares to be sold by such Selling Stockholder shall, except as specifically provided herein or in the Custody Agreement, be delivered by the Custodian in accordance with the terms and conditions of this Agreement as if such death, incapacity or other event had not occurred, regardless of whether the Custodian shall have received notice of such death or other event. Delivery of definitive certificates for the Firm Shares to be purchased by the Underwriters pursuant to this Section 3 shall be made against payment of the purchase price therefor by the several Underwriters by certified or official bank check or checks drawn in next-day funds, payable wire transfer of Federal funds to the order of account specified by the Company with regard to the Shares being purchased from the Company, and to the order of the Custodian account specified by an Attorney for the respective accounts of the Selling Stockholders with regard to the Shares being purchased from such Selling Stockholders (and the Company and such Selling Stockholders agree not to deposit and to cause the Custodian not to deposit any such check in the bank on which it is drawn, and not to take any other action with the purpose or effect of receiving immediately available funds, until the business day following the date of its delivery to the Company or the Custodian, as the case may be, and, in the event of any breach of the foregoing, the Company or the Selling Stockholders, as the case may be, shall reimburse the Underwriters for the interest lost and any other expenses borne by them by reason of such breach), at the offices of Xxxxx, Xxxxxxx & XxXxxxxxXxxxxxxxx, Los AngelesHigh Street Tower, California 22nd Floor, 000 Xxxx Xxxxxx, Xxxxxx, XX 00000, (or at such other place as may be agreed upon among the Representatives Representatives, the Company and the CompanyAttorneys), at 7:00 A.M., San Francisco time (a) on the third (3rd) full business day following the first day that the Shares are traded, (b) if this Agreement is executed and delivered after 1:30 P.M., San Francisco time, the fourth (4th) full business day following the day that this Agreement is executed and delivered or (c) at such other time and date not later than seven (7) full business days following the first day that Shares are traded as the Representatives and Representatives, the Company and the Attorneys may determine (or at such time and date to which payment and delivery shall have been postponed pursuant to Section 10 hereof), such time and date of payment and delivery being herein called the "Closing Date;" PROVIDEDprovided, HOWEVERhowever, that if the Company has not made -------- ------- available to the Representatives copies of the Prospectus within the time provided in Section 4(d) hereof, the Representatives may, in their sole discretion, postpone the Closing Date until no later than two (2) full business days following delivery of copies of the Prospectus to the Representatives. The certificates for the Firm Shares to be so delivered will be made available to you at such office or such other location including, without limitation, in New York City, as you may reasonably request for checking at least one (1) full business day prior to the Closing Date and will be in such names and denominations as you may request, such request to be made at least two (2) full business days prior to the Closing Date. If the Representatives so elect, delivery of the Firm Shares may be made by credit through full fast transfer to the accounts at The Depository Trust Company designated by the Representatives. It is understood that you, individually, and not as the Representatives of the several Underwriters, may (but shall not be obligated to) make payment of the purchase price on behalf of any Underwriter or Underwriters whose check or checks shall not have been received by you prior to the Closing Date for the Firm Shares to be purchased by such Underwriter or Underwriters. Any such payment by you shall not relieve any such Underwriter or Underwriters of any of its or their obligations hereunder. After the Registration Statement becomes effective, the several Underwriters intend to make a public offering (as such term is described in Section 11 hereof) of the Firm Shares at a public offering price of $______ per share. After the public offering, the several Underwriters may, in their discretion, vary the public offering price. The information set forth in the second and eighth paragraphs under the caption "Underwriting" in any Preliminary Prospectus and in the Prospectus constitutes the only information furnished by the Underwriters to the Company for inclusion in any Preliminary Prospectus, the Prospectus or the Registration Statement or any Incorporated Document, and you, on behalf of the respective Underwriters, represent and warrant to the Company and the Selling Stockholders that the statements made therein do not include any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading.per
Appears in 1 contract
Samples: Underwriting Agreement (Cytyc Corp)
Purchase, Sale and Delivery of Shares. On the basis of the representations, warranties and agreements herein containedcovenants contained herein, but and subject to the terms and conditions herein set forth, the Company and the Selling Stockholders Shareholder agree, severally and not jointly, to sell to the Underwriters, each Underwriter and each Underwriter agrees, severally and not jointly, to purchase from the Company and the Selling Stockholders, respectivelyShareholder, at a purchase price of $_____ [ ] per share, the respective number of Company Firm Shares and Selling Stockholder (to be adjusted by you to eliminate fractional shares) determined by multiplying the aggregate number of Firm Shares set forth opposite the names of to be sold by the Company and the Selling StockholdersShareholder, respectively, as set forth opposite their respective names in Schedule B hereto. The obligation , by a fraction, the numerator of each Underwriter to which is the Company and to each Selling Stockholder shall be to purchase from the Company or such Selling Stockholder that number of Company Shares or Selling Stockholder Shares, as the case may be, which (as nearly as practicable, as determined by you) is in the same proportion to the number of Company Shares or Selling Stockholder Shares, as the case may be, set forth opposite the name of the Company or such Selling Stockholder in Schedule B hereto as the aggregate number of Firm Shares which is to be purchased by such Underwriter as set forth opposite the name of such Underwriter in Schedule A hereto (subject to adjustment as provided in Section 10) and the denominator of which is to the total aggregate number of Firm Shares to be purchased by all the Underwriters under this Agreement. The certificates in negotiable form or properly executed option exercise forms for from the Company and the Selling Stockholder Shares have been placed in custody (for delivery under this Agreement) under Shareholder hereunder. In addition, on the Custody Agreement. Each Selling Stockholder agrees that basis of the certificates or executed option exercise forms for the Selling Stockholder Shares of such Selling Stockholder so held in custody are representations, warranties and covenants contained herein and subject to the interests of the Underwriters hereunder, that the arrangements made by such Selling Stockholder for such custody, including the Power of Attorney is to that extent irrevocable and that the obligations of such Selling Stockholder hereunder shall not be terminated by the act of such Selling Stockholder or by operation of law, whether by the death or incapacity of such Selling Stockholder or the occurrence of any other event, except as specifically provided herein or in the Custody Agreement. If any Selling Stockholder should die or be incapacitated, or if any other such event should occur, before the delivery of the certificates for the Selling Stockholder Shares hereunder, the Selling Stockholder Shares to be sold by such Selling Stockholder shall, except as specifically provided herein or in the Custody Agreement, be delivered by the Custodian in accordance with the terms and conditions herein set forth, the Company and the Selling Shareholder, as and to the extent indicated in Schedule B hereto, hereby grant, severally and not jointly, to the several Underwriters an option to purchase at the Underwriters' election up to the number of this Agreement Option Shares set forth opposite their respective names in Schedule B hereto, at the same price per share as if such death, incapacity or other event had not occurred, regardless of whether the Custodian shall have received notice of such death or other event. Delivery of definitive certificates set forth for the Firm Shares to be purchased by in the Underwriters pursuant to this Section 3 shall be made against payment paragraph above, for the sole purpose of covering over allotments in the sale of the purchase price therefor by the several Underwriters by certified Firm Shares. The option granted hereby may be exercised in whole or official bank check or checks drawn in next-day fundspart, payable to the order of the Company with regard to the Shares being purchased from the Companybut only once, and to the order of the Custodian for the respective accounts of the Selling Stockholders with regard to the Shares being purchased from such Selling Stockholders (and the Company and such Selling Stockholders agree not to deposit and to cause the Custodian not to deposit at any such check in the bank on which it is drawn, and not to take any other action with the purpose or effect of receiving immediately available funds, until the business day following time upon written notice given within 30 days after the date of its delivery to the Company or the Custodianthis Agreement, by you, as the case may be, and, in the event of any breach of the foregoing, the Company or the Selling Stockholders, as the case may be, shall reimburse the Underwriters for the interest lost and any other expenses borne by them by reason of such breach), at the offices of Xxxxxxx & XxXxxxxx, Los Angeles, California (or at such other place as may be agreed upon among the Representatives and the Company), at 7:00 A.M., San Francisco time (a) on the third (3rd) full business day following the first day that Shares are traded, (b) if this Agreement is executed and delivered after 1:30 P.M., San Francisco time, the fourth (4th) full business day following the day that this Agreement is executed and delivered or (c) at such other time and date not later than seven (7) full business days following the first day that Shares are traded as the Representatives and the Company and the Attorneys may determine (or at such time and date to which payment and delivery shall have been postponed pursuant to Section 10 hereof), such time and date of payment and delivery being herein called the "Closing Date;" PROVIDED, HOWEVER, that if the Company has not made available to the Representatives copies of the Prospectus within the time provided in Section 4(d) hereof, the Representatives may, in their sole discretion, postpone the Closing Date until no later than two (2) full business days following delivery of copies of the Prospectus to the Representatives. The certificates for the Firm Shares to be so delivered will be made available to you at such office or such other location including, without limitation, in New York City, as you may reasonably request for checking at least one (1) full business day prior to the Closing Date and will be in such names and denominations as you may request, such request to be made at least two (2) full business days prior to the Closing Date. If the Representatives so elect, delivery of the Firm Shares may be made by credit through full fast transfer to the accounts at The Depository Trust Company designated by the Representatives. It is understood that you, individually, and not as the Representatives of the several Underwriters, may (but shall not be obligated to) make payment of the purchase price on behalf of any Underwriter or Underwriters whose check or checks shall not have been received by you prior to the Closing Date for Company, the Firm Selling Shareholder and the Custodian setting forth the number of Option Shares as to which the several Underwriters are exercising the option and the time and date at which certificates are to be delivered. Any such election to purchase Option Shares shall be made in proportion to the maximum number of Option Shares to be purchased sold by such Underwriter or Underwriters. Any such payment by you shall not relieve any such Underwriter or Underwriters of any of its or their obligations hereunder. After the Registration Statement becomes effective, the several Underwriters intend to make a public offering (as such term is described in Section 11 hereof) of the Firm Shares at a public offering price of $_____ per share. After the public offering, the several Underwriters may, in their discretion, vary the public offering price. The information set forth in the second and eighth paragraphs under the caption "Underwriting" in any Preliminary Prospectus and in the Prospectus constitutes the only information furnished by the Underwriters to the Company for inclusion in any Preliminary Prospectus, the Prospectus or the Registration Statement or any Incorporated Document, and you, on behalf of the respective Underwriters, represent and warrant to the Company and the Selling Stockholders Shareholder as set forth in Schedule B hereto. If any Option Shares are purchased, each Underwriter agrees, severally and not jointly, to purchase that the statements made therein do not include any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in the light portion of the circumstances under number of Option Shares as to which they were made, not misleading.such election shall have been exercised (subject to adjustment to eliminate fractional shares) determined by multiplying such number of Option Shares by a fraction the numerator of which is the maximum number of Option Shares which such Underwriter is entitled to purchase as set forth opposite the name of such Underwriter in Schedule A hereto and the denominator of which is the maximum number of Option Shares which all of the Underwriters
Appears in 1 contract
Samples: Intranet Solutions Inc
Purchase, Sale and Delivery of Shares. On the basis of the representations, warranties and agreements herein contained, but subject to the terms and conditions herein set forth, the Company and the each Selling Stockholders agreeStockholder, severally and not jointly, hereby agrees to sell to the Underwriters, and each Underwriter agrees, severally and not jointly, to purchase from the Company and the such Selling Stockholders, respectivelyStockholder, at a purchase price of $_____ 43.033 per shareShare (the "purchase price per Share"), the respective number of Company Firm Shares and Selling Stockholder Shares set forth opposite the names of the Company and the Selling Stockholders, respectively, in Schedule B hereto. The obligation of each Underwriter (subject to the Company and adjustment by Lazard Freres & Co. LLC to each Selling Stockholder shall be to purchase from the Company or such Selling Stockholder eliminate fractions) that number of Company Shares or Selling Stockholder Shares, as the case may be, which (as nearly as practicable, as determined by you) is in bear the same proportion to the number of Company Firm Shares or Selling Stockholder Shares, as the case may be, set forth opposite the name of the Company or to be sold by such Selling Stockholder in Schedule B hereto as the number of Firm Shares which is set forth opposite the name of such Underwriter in Schedule A I hereto (subject to adjustment as provided in Section 10) is bears to the total number of Firm Shares. CGIP hereby agrees to sell to the Underwriters and, on the basis of the representations, warranties and agreements herein contained, but subject to the terms and conditions herein set forth, the Underwriters shall have the right to purchase, severally and not jointly, from CGIP, pursuant to an option to be exercised in the 30-day period commencing on the date of this Agreement, up to 450,000 Additional Shares at the purchase price per Share. Additional Shares may be purchased solely for the purpose of covering over- allotments made in connection with the offering of the Firm Shares. If any Additional Shares are to be purchased, each Underwriter agrees, severally and not jointly, to purchase from CGIP that proportion of the total number of Additional Shares (subject to adjustment by Lazard Freres & Co. LLC to eliminate fractions) to be purchased by all from CGIP as the Underwriters under this Agreement. The certificates number of Firm Shares set forth opposite the name of such Underwriter in negotiable form or properly executed option exercise forms for Schedule I hereto bears to the Selling Stockholder Shares have been placed in custody (for delivery under this Agreement) under the Custody Agreementtotal number of Firm Shares. Each Selling Stockholder agrees that the certificates or executed option exercise forms for the Selling Stockholder Shares of such Selling Stockholder so held in custody are subject to the interests of the Underwriters hereunder, that the arrangements made by such Selling Stockholder for such custody, including the Power of Attorney is to that extent irrevocable and that the obligations of such Selling Stockholder hereunder shall not be terminated by the act of such Selling Stockholder or by operation of law, whether by the death or incapacity of such Selling Stockholder or the occurrence of any other event, except as specifically provided herein or in the Custody Agreement. If any Selling Stockholder should die or be incapacitated, or if any other such event should occur, before the delivery of the certificates for the Selling Stockholder Shares hereunder, the Selling Stockholder Shares to be sold by such Selling Stockholder shall, except as specifically provided herein or in the Custody Agreement, be delivered by the Custodian in accordance with the terms and conditions of this Agreement as if such death, incapacity or other event had not occurred, regardless of whether the Custodian shall have received notice of such death or other event. Delivery of definitive certificates for will deliver the Firm Shares to be purchased by the Underwriters pursuant to this Section 3 shall be made Underwriters, against payment of the purchase price therefor by the several Underwriters wire transfer of same day funds to an account specified in writing by certified or official bank check or checks drawn in next-day funds, payable to the order of the Company with regard to the Shares being purchased from the Company, and to the order of the Custodian such Selling Stockholder. Payment for the respective accounts Firm Shares shall be made at the offices of Cravath, Swaine & Moore at 10:00 A.M., New York Time, on October 30, 1996 or at such xxxxr place or time not later than seven full business days thereafter as the Underwriters and the Selling Stockholders with regard determine (the "Initial Closing Date"). CGIP will deliver the Additional Shares to the Shares being purchased from Underwriters, against payment of the purchase price therefor by wire transfer of same day funds to an account specified in writing by CGIP, at the offices of Cravath, Swaine & Moore on such Selling Stockholders date and at such time (and the Company and such Selling Stockholders agree not to deposit and to cause the Custodian not to deposit any such check "Option Closing Date"), ax xxxll be specified in the bank on which it is drawnnotice from Lazard Freres & Co. LLC to CGIP exercising the option to purchase the Additional Shares. The Option Closing Date may be the same as the Initial Closing Date but shall in no event be earlier than the Initial Closing Date nor earlier than two nor later than ten business days after the giving of the notice hereinafter referred to. Such notice may be given, and not by letter or by telecopy or other facsimile transmission or by telephone (if subsequently confirmed in writing), to take CGIP at any other action with the purpose or effect of receiving immediately available funds, until the business day following time within 30 days after the date of its delivery this Agreement. The Option Closing Date may be varied by agreement between the Underwriters and CGIP. The Initial Closing Date and the Option Closing Date are herein collectively referred to as the "Closing Date." The certificates for all the Firm Shares and the Additional Shares so to be delivered will be in such denominations and registered in such names as the Underwriters request two full business days prior to the Company Initial Closing Date or the CustodianOption Closing Date, as the case may be, andand will be made available at the offices of Lazard Freres & Co. LLC, in New York, New York or, upon your request, through the event facilities of any breach of The Depository Trust Company, for checking and packaging at least one full business day prior to the foregoing, the Company Initial Closing Date or the Selling StockholdersOption Closing Date, as the case may be. Each Selling Stockholder will not, shall reimburse without the Underwriters for prior written consent of the interest lost and Underwriters, offer, sell, pledge or otherwise dispose of any other expenses borne by them by reason shares of such breach), at the offices capital stock of Xxxxxxx & XxXxxxxx, Los Angeles, California (or at such other place as may be agreed upon among the Representatives and the Company), at 7:00 A.M., San Francisco time (a) on the third (3rd) full business day following the first day that Shares are traded, (b) if this Agreement is executed and delivered after 1:30 P.M., San Francisco time, the fourth (4th) full business day following the day that this Agreement is executed and delivered or (c) at such other time and date not later than seven (7) full business days following the first day that Shares are traded as the Representatives and the Company and or any securities convertible into or exercisable or exchangeable for such capital stock or any rights to purchase or acquire such capital stock, for a period of one year after the Attorneys may determine (or at such time and date to which payment and delivery shall have been postponed pursuant to Section 10 hereof), such time and date of payment and delivery being herein called the "Closing Date;" PROVIDEDthis Agreement; provided, HOWEVERhowever, that if the Company has foregoing restriction shall not made available apply to (i) the Representatives copies sale of the Prospectus within the time provided in Section 4(d) hereof, the Representatives may, in their sole discretion, postpone the Closing Date until no later than two (2) full business days following delivery of copies of the Prospectus to the Representatives. The certificates for the Firm Shares to be so delivered will be made available to you at such office or such other location includingsold hereunder, without limitation, in New York City, as you may reasonably request for checking at least one (1ii) full business day prior to the Closing Date and will be in such names and denominations as you may request, such request to be made at least two (2) full business days prior to the Closing Date. If the Representatives so elect, delivery sale of the Firm Shares may be made by credit through full fast transfer to the accounts at The Depository Trust Company designated by the Representatives. It is understood that you, individually, and not as the Representatives of the several Underwriters, may (but shall not be obligated to) make payment of the purchase price on behalf of any Underwriter or Underwriters whose check or checks shall not have been received by you prior to the Closing Date for the Firm Common Shares to be purchased by such Underwriter or Underwriters. Any such payment by you shall not relieve sold under the U.S. Common Stock Underwriting Agreement and the International Common Stock Underwriting Agreement, (iii) any such Underwriter or Underwriters conversion of shares of Preferred Stock into shares of Common Stock pursuant to the terms of the Preferred Stock and (iv) any disposition of any shares of its Common Stock or their obligations hereunder. After Preferred Stock pursuant to a bona fide pledge or grant of a security interest to a major brokerage firm or financial institution to secure bona fide indebtedness, or the Registration Statement becomes effectivesale of such shares upon foreclosure on such pledge, the several Underwriters intend provided that each purchaser of such shares upon foreclosure agrees to make a public offering (as such term is described in Section 11 hereof) of the Firm Shares at a public offering price of $_____ per share. After the public offering, the several Underwriters may, in their discretion, vary the public offering price. The information set forth in the second and eighth paragraphs under the caption "Underwriting" in any Preliminary Prospectus and in the Prospectus constitutes the only information furnished be bound by the Underwriters to the Company for inclusion in any Preliminary Prospectus, the Prospectus or the Registration Statement or any Incorporated Document, and you, on behalf provisions of the respective Underwriters, represent and warrant to the Company and the Selling Stockholders that the statements made therein do not include any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleadingthis paragraph.
Appears in 1 contract
Samples: Underwriting Agreement (Compagnie Generale D Industrie Et De Participations)
Purchase, Sale and Delivery of Shares. On the basis of the representations, warranties and agreements herein contained, but subject to the terms and conditions herein set forth, the Company and the Selling Stockholders Shareholders agree, severally and not jointly, to sell to the Underwriters, and each Underwriter agrees, severally and not jointly, to purchase from the Company and the Selling StockholdersShareholders, respectively, at a purchase price of $_______ per share, the respective number of Company Shares as hereinafter set forth and Selling Stockholder Shareholder Shares set forth opposite the names of the Company and the Selling Stockholders, respectively, Shareholders in Schedule B hereto. The obligation of each Underwriter to the Company and to each Selling Stockholder Shareholder shall be to purchase from the Company or such Selling Stockholder Shareholder that number of Company Shares or Selling Stockholder Shareholder Shares, as the case may be, which (as nearly as practicable, as determined by you) is in the same proportion to the number of Company Shares or Selling Stockholder Shareholder Shares, as the case may be, set forth opposite the name of the Company or such Selling Stockholder Shareholder in Schedule B hereto as the number of Firm Shares which is set forth opposite the name of such Underwriter in Schedule A hereto (subject to adjustment as provided in Section 10) is to the total number of Firm Shares to be purchased by all the Underwriters under this Agreement. The certificates in negotiable form or properly executed option exercise forms for the Selling Stockholder Shareholder Shares have been placed in custody (for delivery under this Agreement) under the Custody Agreement. Each Selling Stockholder Shareholder agrees that the certificates or executed option exercise forms for the Selling Stockholder Shareholder Shares of such Selling Stockholder Shareholder so held in custody are subject to the interests of the Underwriters hereunder, that the arrangements made by such Selling Stockholder Shareholder for such custody, including the Power of Attorney is to that extent irrevocable and that the obligations of such Selling Stockholder Shareholder hereunder shall not be terminated by the act of such Selling Stockholder Shareholder or by operation of law, whether by the death or incapacity of such Selling Stockholder Shareholder or the occurrence of any other event, except as specifically provided herein or in the Custody Agreement. If any Selling Stockholder Shareholder should die or be incapacitated, or if any other such event should occur, before the delivery of the certificates for the Selling Stockholder Shareholder Shares hereunder, the Selling Stockholder Shareholder Shares to be sold by such Selling Stockholder Shareholder shall, except as specifically provided herein or in the Custody Agreement, be delivered by the Custodian in accordance with the terms and conditions of this Agreement as if such death, incapacity or other event had not occurred, regardless of whether the Custodian shall have received notice of such death or other event. Delivery of definitive certificates for the Firm Shares to be purchased by the Underwriters pursuant to this Section 3 shall be made against payment of the purchase price therefor by the several Underwriters by certified or official bank check or checks drawn in nextwire transfer of same-day funds, payable to the order of the Company with regard to the Shares being purchased from the Company, and to the order of the Custodian for the respective accounts of the Selling Stockholders Shareholders with regard to the Shares being purchased from such Selling Stockholders (and the Company and such Selling Stockholders agree not to deposit and to cause the Custodian not to deposit any such check in the bank on which it is drawn, and not to take any other action with the purpose or effect of receiving immediately available funds, until the business day following the date of its delivery to the Company or the Custodian, as the case may be, and, in the event of any breach of the foregoing, the Company or the Selling Stockholders, as the case may be, shall reimburse the Underwriters for the interest lost and any other expenses borne by them by reason of such breach), Shareholders at the offices of Long Aldrxxxx & Xormxx XXX, 303 Xxxxxxxxx Xxxxxx, X.X., Xxxxx 0000, Xxxxxxx, Xxxxxxx & XxXxxxxx, Los Angeles, California 00000 (or xx at such other place as may be agreed upon among the Representatives and the Company), at 7:00 A.M., San Francisco time (a) on the third (3rd) full business day following the first day that Shares are traded, (b) if this Agreement is executed and delivered after 1:30 P.M., San Francisco time, the fourth (4th) full business day following the day that this Agreement is executed and delivered or (c) at such other time and date not later than seven (7) full business days following the first day that Shares are traded as the Representatives and the Company and the Attorneys may determine (or at such time and date to which payment and delivery shall have been postponed pursuant to Section 10 hereof), such time and date of payment and delivery being herein called the "Closing Date;" PROVIDEDprovided, HOWEVERhowever, that if the Company has not made available to the Representatives copies of the Prospectus within the time provided in Section 4(d) hereof, the Representatives may, in their sole discretion, postpone the Closing Date until no later than two (2) full business days following delivery of copies of the Prospectus to the Representatives. The certificates for the Firm Shares to be so delivered will be made available to you at such office or such other location including, without limitation, in New York City, as you may reasonably request for checking at least one (1) full business day prior to the Closing Date and will be in such names and denominations as you may request, such request to be made at least two (2) full business days prior to the Closing Date. If the Representatives so elect, delivery of the Firm Shares may be made by credit through full fast transfer to the accounts at The Depository Trust Company designated by the Representatives. It is understood that you, individually, and not as the Representatives of the several Underwriters, may (but shall not be obligated to) make payment of the purchase price on behalf of any Underwriter or Underwriters whose check or checks shall not have been received by you prior to the Closing Date for the Firm Shares to be purchased by such Underwriter or Underwriters. Any such payment by you shall not relieve any such Underwriter or Underwriters of any of its or their obligations hereunder. After the Registration Statement becomes effective, the several Underwriters intend to make a an initial public offering (as such term is described in Section 11 hereof) of the Firm Shares at a an initial public offering price of $_______ per share. After the initial public offering, the several Underwriters may, in their discretion, vary the public offering price. The information set forth in the second last paragraph on the front cover page (insofar as such information relates to the Underwriters) and under the first, second, sixth, seventh and eighth paragraphs and the table following the first such paragraph under the caption "Underwriting" in any Preliminary Prospectus and in the Prospectus constitutes the only information furnished by the Underwriters to the Company for inclusion in any Preliminary Prospectus, the Prospectus or the Registration Statement or any Incorporated DocumentStatement, and you, on behalf of the respective Underwriters, represent and warrant to the Company and the Selling Stockholders Shareholders that the statements made therein do not include any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading.
Appears in 1 contract
Purchase, Sale and Delivery of Shares. On the basis of the ------------------------------------- representations, warranties and agreements herein contained, but subject to the terms and conditions herein set forth, the Company and the Selling Stockholders agree, severally and not jointly, to sell to the Underwriters, and each Underwriter agrees, severally and not jointly, to purchase from the Company and the Selling Stockholders, respectively, at a purchase price of $_____ per share, the respective number of Company Shares as hereinafter set forth and Selling Stockholder Shares set forth opposite the names of the Company and the Selling Stockholders, respectively, Stockholders in Schedule B hereto. The obligation of each Underwriter to the Company and to each Selling Stockholder shall be to purchase from the Company or such Selling Stockholder that number of Company Shares or Selling Stockholder Shares, as the case may be, which (as nearly as practicable, as determined by you) is in the same proportion to the number of Company Shares or Selling Stockholder Shares, as the case may be, set forth opposite the name of the Company or such Selling Stockholder in Schedule B hereto as the number of Firm Shares which that is set forth opposite the name of such Underwriter in Schedule A hereto (subject to adjustment as provided in Section 10) is to the total number of Firm Shares to be purchased by all the Underwriters under this Agreement. The certificates in negotiable form or properly executed option exercise forms for the Selling Stockholder Shares have been placed in custody (for delivery under this Agreement) under the Custody Agreement. Each Selling Stockholder agrees that the certificates or executed option exercise forms for the Selling Stockholder Shares of such Selling Stockholder so held in custody are subject to the interests of the Underwriters hereunder, that the arrangements made by such Selling Stockholder for such custody, including the Power of Attorney is to that extent irrevocable and that the obligations of such Selling Stockholder hereunder shall not be terminated by the act of such Selling Stockholder or by operation of law, whether by the death or incapacity of such Selling Stockholder or the occurrence of any other event, except as specifically provided herein or in the Custody Agreement. If any Selling Stockholder should die or be incapacitated, or if any other such event should occur, before the delivery of the certificates for the Selling Stockholder Shares hereunder, the Selling Stockholder Shares to be sold by such Selling Stockholder shall, except as specifically provided herein or in the Custody Agreement, be delivered by the Custodian in accordance with the terms and conditions of this Agreement as if such death, incapacity or other event had not occurred, regardless of whether the Custodian shall have received notice of such death or other event. Delivery of definitive certificates for the Firm Shares to be purchased by the Underwriters pursuant to this Section 3 shall be made against payment of the purchase price therefor by the several Underwriters by certified or official bank check or checks drawn in nextsame-day funds or by wire transfer of same-day funds, payable to the order of the Company with regard to the Shares being purchased from the Company, and to the order of the Custodian for the respective accounts of the Selling Stockholders with regard to the Shares being purchased from such Selling Stockholders (and the Company and such Selling Stockholders agree not to deposit and to cause the Custodian not to deposit any such check in the bank on which it is drawn, and not to take any other action with the purpose or effect of receiving immediately available funds, until the business day following the date of its delivery to the Company or the Custodian, as the case may be, and, in the event of any breach of the foregoing, the Company or the Selling Stockholders, as the case may be, shall reimburse the Underwriters for the interest lost and any other expenses borne by them by reason of such breach), at the offices of Xxxxxxx Xxxxxxx, Xxxxxxxx & XxXxxxxxXxxxxxxxxx, Los AngelesL.L.P., California 0000 Xxxxx Xxxxxx, Suite 3000, Dallas, Texas 75201 (or at such other place as may be agreed upon among the Representatives Representatives, the Company and the CompanyAttorneys), at 7:00 7 A.M., San Francisco time (a) on the third (3rd) full business day following the first day that Shares are traded, (b) if this Agreement is executed and delivered after 1:30 P.M., San Francisco time, the fourth (4th) full business day following the day that this Agreement is executed and delivered or (c) at such other time and date not later than seven (7) full business days following the first day that Shares are traded as the Representatives and Representatives, the Company and the Attorneys may determine (or at such time and date to which payment and delivery shall have been postponed pursuant to Section 10 hereof10), such time and date of payment and delivery being herein called the "Closing Date;" PROVIDED"; provided, HOWEVERhowever, that if the Company has not made available to the Representatives copies of the Prospectus within the time provided in Section 4(d) hereof), the Representatives may, in their sole discretion, postpone the Closing Date until no later than two (2) full business days following delivery of copies of the Prospectus to the Representatives. The certificates for the Firm Shares to be so delivered will be made available to you at such office or such other location including, without limitation, in New York City, as you may reasonably request for checking at least one (1) full business day prior to the Closing Date and will be in such names and denominations as you may request, such request to be made at least two (2) full business days prior to the Closing Date. If the Representatives so elect, delivery of the Firm Shares may be made by credit through full fast transfer to the accounts at The Depository Trust Company designated by the Representatives. It is understood that you, individually, and not as the Representatives of the several Underwriters, may (but shall not be obligated to) make payment of the purchase price on behalf of any Underwriter or Underwriters whose check or checks shall not have been received by you prior to the Closing Date for the Firm Shares to be purchased by such Underwriter or Underwriters. Any such payment by you shall not relieve any such Underwriter or Underwriters of any of its or their obligations hereunder. After the Registration Statement becomes effective, the several Underwriters intend to make a an initial public offering (as such term is described in Section 11 hereof11) of the Firm Shares at a an initial public offering price of $_____ per share. After the initial public offering, the several Underwriters may, in their discretion, vary the public offering price. The information set forth in the second sentence of the last paragraph on the front cover page, on the inside front cover concerning stabilization and over-allotment by the Underwriters, and in the second, sixth and eighth paragraphs under the caption "Underwriting" in any Preliminary Prospectus and in the Prospectus constitutes the only information furnished by the Underwriters to the Company for inclusion in any Preliminary Prospectus, the Prospectus or the Registration Statement or any Incorporated DocumentStatement, and you, on behalf of the respective Underwriters, represent and warrant to the Company and the Selling Stockholders that the statements made therein do not include any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading.
Appears in 1 contract
Purchase, Sale and Delivery of Shares. On the basis of the representations, warranties and agreements herein contained, but subject to the terms and conditions herein set forth, the Company and the Selling Stockholders agree, severally and not jointly, agrees to sell to the UnderwritersUnderwriters named in Schedule A hereto, and each Underwriter agreesthe Underwriters agree, severally and not jointly, to purchase from the Company and the Selling Stockholders, respectively, at a purchase price of $_____ per shareCompany, the respective number of Company Shares and Selling Stockholder Shares at the price per share set forth opposite in the names of the Company and the Selling Stockholders, respectively, in Schedule B heretoPricing Agreement. The obligation of each Underwriter to the Company and to each Selling Stockholder shall be to purchase from the Company or such Selling Stockholder that number of Company Shares or Selling Stockholder Shares, as the case may be, which (as nearly as practicable, as determined by you) is in the same proportion to the number of Company Shares or Selling Stockholder Shares, as the case may be, set forth opposite the name of the Company or such Selling Stockholder in Schedule B hereto as the number of Firm Shares which is set forth opposite the name of such Underwriter in Schedule A hereto (subject to adjustment as provided in Section 10) is to A. The public offering price and the total number of Firm Shares to purchase price shall be purchased by all the Underwriters under this Agreement. The certificates in negotiable form or properly executed option exercise forms for the Selling Stockholder Shares have been placed in custody (for delivery under this Agreement) under the Custody Agreement. Each Selling Stockholder agrees that the certificates or executed option exercise forms for the Selling Stockholder Shares of such Selling Stockholder so held in custody are subject to the interests of the Underwriters hereunder, that the arrangements made by such Selling Stockholder for such custody, including the Power of Attorney is to that extent irrevocable and that the obligations of such Selling Stockholder hereunder shall not be terminated by the act of such Selling Stockholder or by operation of law, whether by the death or incapacity of such Selling Stockholder or the occurrence of any other event, except as specifically provided herein or set forth in the Custody Pricing Agreement. If any Selling Stockholder should die or be incapacitated, or if any other such event should occur, before the delivery of the certificates for the Selling Stockholder Shares hereunder, the Selling Stockholder Shares to be sold by such Selling Stockholder shall, except as specifically provided herein or in the Custody Agreement, be delivered by the Custodian in accordance with the terms and conditions of this Agreement as if such death, incapacity or other event had not occurred, regardless of whether the Custodian shall have received notice of such death or other event. Delivery of definitive certificates and payment for the Firm Shares to be purchased by the Underwriters pursuant to this Section 3 shall be made against payment of at 10:00 A.M., New York City time, on the purchase price therefor by the several Underwriters by certified or official bank check or checks drawn in next-day funds, payable to the order of the Company with regard to the Shares being purchased from the Company, and to the order of the Custodian for the respective accounts of the Selling Stockholders with regard to the Shares being purchased from such Selling Stockholders (and the Company and such Selling Stockholders agree not to deposit and to cause the Custodian not to deposit any such check in the bank on which it is drawn, and not to take any other action with the purpose or effect of receiving immediately available funds, until the third full business day following the date of its delivery to the Company or the Custodian, as the case may be, and, in the event of any breach of the foregoing, the Company or the Selling Stockholders, as the case may be, shall reimburse the Underwriters for the interest lost and any other expenses borne by them by reason of such breach), at the offices of Xxxxxxx & XxXxxxxx, Los Angeles, California (this Agreement or at such other date or place as may shall be agreed upon among determined by agreement between the Representatives Representative and the Company). This date and time are sometimes referred to as the “Closing Date.” Delivery of the Shares shall be made to the Representative for the account of each Underwriter against payment by the Underwriters through the Representative of the aggregate purchase price of the Shares by wire transfer in immediately available funds to the accounts specified by the Company. Time shall be of the essence, and delivery at 7:00 A.M., San Francisco the time (a) on the third (3rd) full business day following the first day that Shares are traded, (b) if and place specified pursuant to this Agreement is executed and delivered after 1:30 P.M., San Francisco time, a further condition of the fourth (4th) full business day following obligation of each Underwriter hereunder. The Company shall deliver the day that this Agreement is executed and delivered or (c) at such other time and date not later than seven (7) full business days following Shares through the first day that Shares are traded as facilities of DTC unless the Representatives and Representative shall otherwise instruct. You have advised the Company and the Attorneys may determine (or at such time and date that each Underwriter has authorized you to which accept delivery of its Shares, to make payment and delivery shall have been postponed pursuant to Section 10 hereof)acknowledge receipt therefor. You, such time and date of payment and delivery being herein called the "Closing Date;" PROVIDED, HOWEVER, that if the Company has not made available to the Representatives copies of the Prospectus within the time provided in Section 4(d) hereof, the Representatives may, in their sole discretion, postpone the Closing Date until no later than two (2) full business days following delivery of copies of the Prospectus to the Representatives. The certificates for the Firm Shares to be so delivered will be made available to you at such office or such other location including, without limitation, in New York City, as you may reasonably request for checking at least one (1) full business day prior to the Closing Date and will be in such names and denominations as you may request, such request to be made at least two (2) full business days prior to the Closing Date. If the Representatives so elect, delivery of the Firm Shares may be made by credit through full fast transfer to the accounts at The Depository Trust Company designated by the Representatives. It is understood that you, individually, individually and not as the Representatives Representative of the several Underwriters, may (but shall not be obligated to) make payment of the purchase price on behalf of for any Shares to be purchased by any Underwriter or Underwriters whose check or checks funds shall not have been received by you prior to by the Closing Date for the Firm Shares to be purchased by account of such Underwriter or Underwriters. Any Underwriter, but any such payment by you shall not relieve any such Underwriter or Underwriters of from any of its or their obligations obligation hereunder. After the Registration Statement becomes effective, the several Underwriters intend to make a public offering (as such term is described in Section 11 hereof) of the Firm Shares at a public offering price of $_____ per share. After the public offering, the several Underwriters may, in their discretion, vary the public offering price. The information set forth in the second and eighth paragraphs under the caption "Underwriting" in any Preliminary Prospectus and in the Prospectus constitutes the only information furnished by the Underwriters to the Company for inclusion in any Preliminary Prospectus, the Prospectus or the Registration Statement or any Incorporated Document, and you, on behalf of the respective Underwriters, represent and warrant to the Company and the Selling Stockholders that the statements made therein do not include any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading.
Appears in 1 contract
Samples: Underwriting Agreement (Agenus Inc)
Purchase, Sale and Delivery of Shares. On the basis of the ------------------------------------- representations, warranties and agreements herein contained, but subject to the terms and conditions herein set forth, the Company and the Selling Stockholders agree, severally and not jointly, to sell to the Underwriters, and each Underwriter agrees, severally and not jointly, to purchase from the Company and the Selling Stockholders, respectively, at a purchase price of $_____ per share, the respective number of Company Shares as hereinafter set forth and Selling Stockholder Shares set forth opposite the names of the Company and the Selling Stockholders, respectively, Stockholders in Schedule B hereto. The obligation of each Underwriter to the Company and to each Selling Stockholder shall be to purchase from the Company or such Selling Stockholder that number of Company Shares or Selling Stockholder Shares, as the case may be, which (as nearly as practicable, as determined by you) is in the same proportion to the number of Company Shares or Selling Stockholder Shares, as the case may be, set forth opposite the name of the Company or such Selling Stockholder in Schedule B hereto as the number of Firm Shares which is set forth opposite the name of such Underwriter in Schedule A hereto (subject to adjustment as provided in Section 10) is to the total number of Firm Shares to be purchased by all the Underwriters under this Agreement. The certificates in negotiable form or properly executed option exercise forms for the Selling Stockholder Shares and the Option Shares to be sold by the Selling Stockholders have been placed in custody (for delivery under this Agreement) under the Custody Agreement. Each Selling Stockholder agrees that the certificates or executed option exercise forms for the Selling Stockholder Shares and the Option Shares of such Selling Stockholder so held in custody are subject to the interests of the Underwriters hereunder, that the arrangements made by such Selling Stockholder for such custody, including the Power of Attorney is to that extent irrevocable and that the obligations of such Selling Stockholder hereunder shall not be terminated by the act of such Selling Stockholder or by operation of law, whether by the death or incapacity of such Selling Stockholder or the occurrence of any other event, except as specifically provided herein or in the Custody Agreement. If any Selling Stockholder should die or be incapacitated, or if any other such event should occur, before the delivery of the certificates for the Selling Stockholder Shares and the Option Shares hereunder, the Selling Stockholder Shares and the Option Shares to be sold by such Selling Stockholder shall, except as specifically provided herein or in the Custody Agreement, be delivered by the Custodian in accordance with the terms and conditions of this Agreement as if such death, incapacity or other event had not occurred, regardless of whether the Custodian shall have received notice of such death or other event. Delivery of definitive certificates for the Firm Shares to be purchased by the Underwriters pursuant to this Section 3 shall be made against payment of the purchase price therefor by the several Underwriters by wire transfer or by certified or official bank check or checks drawn in nextsame-day funds, payable to the order of the Company with regard to the Shares being purchased from the Company, and to the order of the Custodian for the respective accounts of the Selling Stockholders with regard to the Shares being purchased from such Selling Stockholders (and the Company and such Selling Stockholders agree not to deposit and to cause the Custodian not to deposit any such check in the bank on which it is drawn, and not to take any other action with the purpose or effect of receiving immediately available funds, until the business day following the date of its delivery to the Company or the Custodian, as the case may be, and, in the event of any breach of the foregoing, the Company or the Selling Stockholders, as the case may be, shall reimburse the Underwriters for the interest lost and any other expenses borne by them by reason of such breach), at the offices of Xxxxxxx Xxxxxx & XxXxxxxx, Los Angeles, California Xxxxxx (or at such other place as may be agreed upon among the Representatives and the CompanyCompany and the Attorneys), at 7:00 A.M., San Francisco time (a) on the third (3rd) full business day following the first day that Shares are traded, (b) if this Agreement is executed and delivered after 1:30 P.M., San Francisco time, the fourth (4th) full business day following the day that this Agreement is executed and delivered or (c) at such other time and date not later than seven (7) full business days following the first day that Shares are traded as the Representatives and the Company and the Attorneys may determine (or at such time and date to which payment and delivery shall have been postponed pursuant to Section 10 hereof), such time and date of payment and delivery being herein called the "Closing Date;" PROVIDEDprovided, HOWEVERhowever, that if the Company has not made -------- ------- available to the Representatives copies of the Prospectus within the time provided in Section 4(d) hereof, the Representatives may, in their sole discretion, postpone the Closing Date until no later than two (2) full business days following delivery of copies of the Prospectus to the Representatives. The certificates for the Firm Shares to be so delivered will be made available to you at such office or such other location including, without limitation, in New York City, as you may reasonably request for checking at least one (1) full business day prior to the Closing Date and will be in such names and denominations as you may request, such request to be made at least two (2) full business days prior to the Closing Date. If the Representatives so elect, delivery of the Firm Shares may be made by credit through full fast transfer to the accounts at The Depository Trust Company designated by the Representatives. It is understood that you, individually, and not as the Representatives of the several Underwriters, may (but shall not be obligated to) make payment of the purchase price on behalf of any Underwriter or Underwriters whose check or checks shall not have been received by you prior to the Closing Date for the Firm Shares to be purchased by such Underwriter or Underwriters. Any such payment by you shall not relieve any such Underwriter or Underwriters of any of its or their obligations hereunder. After the Registration Statement becomes effective, the several Underwriters intend to make a an initial public offering (as such term is described in Section 11 hereof) of the Firm Shares at a an initial public offering price of $_____ per share. After the initial public offering, the several Underwriters may, in their discretion, vary the public offering price. The information set forth in the second last paragraph on the front cover page (insofar as such information relates to the Underwriters), on the inside front cover concerning stabilization and eighth over-allotment by the Underwriters, and in the table included within the first paragraph and the second, sixth and seventh paragraphs under the caption "Underwriting" in any Preliminary Prospectus and in the Prospectus constitutes the only information furnished by the Underwriters to the Company for inclusion in any Preliminary Prospectus, the Prospectus or the Registration Statement or any Incorporated DocumentStatement, and you, on behalf of the respective Underwriters, represent and warrant to the Company and the Selling Stockholders that the statements made therein do not include any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading.
Appears in 1 contract
Purchase, Sale and Delivery of Shares. On the basis of the representations, warranties and agreements herein contained, but subject to the terms and conditions herein set forth, the Company and the Selling Stockholders agree, severally and not jointly, to sell to the Underwriters, and each Underwriter agrees, severally and not jointly, to purchase from the Company and the Selling Stockholders, respectively, at a purchase price of $_____ per share, the respective number of Company Shares as hereinafter set forth and Selling Stockholder Shares set forth opposite the names of the Company and the Selling Stockholders, respectively, Stockholders in Schedule B hereto. The obligation of each Underwriter to the Company and to each Selling Stockholder shall be to purchase from the Company or such Selling Stockholder that number of Company Shares or Selling Stockholder Shares, as the case may be, which (as nearly as practicable, as determined by you) is in the same proportion to the number of Company Shares or Selling Stockholder Shares, as the case may be, set forth opposite the name of the Company or such Selling Stockholder in Schedule B hereto as the number of Firm Shares which is set forth opposite the name of such Underwriter in Schedule A hereto (subject to adjustment as provided in Section 10) is to the total number of Firm Shares to be purchased by all the Underwriters under this Agreement. The certificates in negotiable form or properly executed option exercise forms for the Selling Stockholder Shares have been placed in custody (for delivery under this Agreement) under the Custody Agreement. Each Selling Stockholder agrees that the certificates or executed option exercise forms for the Selling Stockholder Shares of such Selling Stockholder so held in custody are subject to the interests of the Underwriters hereunder, that the arrangements made by such Selling Stockholder for such custody, including the Power of Attorney is to that extent irrevocable and that the obligations of such Selling Stockholder hereunder shall not be terminated by the act of such Selling Stockholder or by operation of law, whether by the death or incapacity of such Selling Stockholder or the occurrence of any other event, except as specifically provided herein or in the Custody Agreement. If any Selling Stockholder should die or be incapacitated, or if any other such event should occur, before the delivery of the certificates for the Selling Stockholder Shares hereunder, the Selling Stockholder Shares to be sold by such Selling Stockholder shall, except as specifically provided herein or in the Custody Agreement, be delivered by the Custodian in accordance with the terms and conditions of this Agreement as if such death, incapacity or other event had not occurred, regardless of whether the Custodian shall have received notice of such death or other event. Delivery of definitive certificates for the Firm Shares to be purchased by the Underwriters pursuant to this Section 3 shall be made against payment of the purchase price therefor by the several Underwriters by certified or official bank check or checks drawn in next-day wire transfer of immediately available funds, payable to the order of an account specified in writing by the Company with regard to the Shares being purchased from the Company, and to the order of the Custodian for the respective accounts of the Selling Stockholders with regard to the Shares being purchased from such Selling Stockholders (and the Company and such Selling Stockholders agree not to deposit and to cause the Custodian not to deposit any such check in the bank on which it is drawn, and not to take any other action with the purpose or effect of receiving immediately available funds, until the business day following the date of its delivery to the Company or the Custodian, as the case may be, and, in the event of any breach of the foregoing, the Company or the Selling Stockholders, as the case may be, shall reimburse the Underwriters for the interest lost and any other expenses borne by them by reason of such breach), at the offices of Xxxxxx Xxxxxxx Xxxxxxxx & XxXxxxxxXxxxxx, Los AngelesProfessional Corporation, California 000 Xxxx Xxxx Xxxx, Xxxx Xxxx, Xxxxxxxxxx 00000 (or at such other place as may be agreed upon among the Representatives and the CompanyCompany and the Attorneys), at 7:00 A.M., San Francisco time (a) on the third (3rd) full business day following the first day that Shares are traded, (b) if this Agreement is executed and delivered after 1:30 P.M., San Francisco time, the fourth (4th) full business day following the day that this Agreement is executed and delivered or (c) at such other time and date not later than seven (7) full business days following the first day that Shares are traded as the Representatives and the Company and the Attorneys may determine (or at such time and date to which payment and delivery shall have been postponed pursuant to Section 10 hereof), such time and date of payment and delivery being herein called the "Closing Date;" PROVIDED, HOWEVER, that if the Company has not made available to the Representatives copies of the Prospectus within the time provided in Section 4(d) hereof, the Representatives may, in their sole discretion, postpone the Closing Date until no later than two (2) full business days following delivery of copies of the Prospectus to the Representatives. The certificates for the Firm Shares to be so delivered will be made available to you at such office or such other location including, without limitation, in New York City, as you may reasonably request for checking at least one (1) full business day prior to the Closing Date and will be in such names and denominations as you may request, such request to be made at least two (2) full business days prior to the Closing Date. If the Representatives so elect, delivery of the Firm Shares may be made by credit through full fast transfer to the accounts at The Depository Trust Company designated by the Representatives. It is understood that you, individually, and not as the Representatives of the several Underwriters, may (but shall not be obligated to) make payment of the purchase price on behalf of any Underwriter or Underwriters whose check or checks payment shall not have been received by you prior to the Closing Date for the Firm Shares to be purchased by such Underwriter or Underwriters. Any such payment by you shall not relieve any such Underwriter or Underwriters of any of its or their obligations hereunder. After the Registration Statement becomes effective, the several Underwriters intend to make a public offering (as such term is described in Section 11 hereof) of the Firm Shares at a an initial public offering price of $_____ per share. After the initial public offering, the several Underwriters may, in their discretion, vary the public offering price. The information set forth in the second last paragraph on the front cover page (insofar as such information relates to the Underwriters), on the inside front cover concerning stabilization and over-allotment by the Underwriters, and under the first (including the table below such paragraph), second, sixth, seventh, and eighth paragraphs under the caption "Underwriting" in any Preliminary Prospectus and in the Prospectus constitutes the only information furnished by the Underwriters to the Company for inclusion in any Preliminary Prospectus, the Prospectus or the Registration Statement or any Incorporated DocumentStatement, and you, on behalf of the respective Underwriters, represent and warrant to the Company and the Selling Stockholders that the statements made therein do not include any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading.
Appears in 1 contract
Samples: Netgravity Inc
Purchase, Sale and Delivery of Shares. On the basis of the representations, warranties and agreements herein contained, but subject to the terms and conditions herein set forth, the Company and the Venture Capital Selling Stockholders agreeStockholders, severally and not jointly, agree to sell to the UnderwritersUnderwriters named in Schedule A hereto, and each Underwriter agreesthe Underwriters agree, severally and not jointly, to purchase from the Company and the Venture Capital Selling Stockholders, respectively, at a purchase price of $_________ per share, Firm Shares from the Company and the respective number of Company Shares and Selling Stockholder Firm Shares set forth opposite the names of the Company and the Venture Capital Selling Stockholders, respectively, Stockholders in Schedule B heretoB-1 hereto at the price per share set forth in the Pricing Agreement. The obligation of each Underwriter to the Company and to each Selling Stockholder shall be to purchase from the Company or such Selling Stockholder that number of Company Shares or Selling Stockholder Shares, as the case may be, full shares which (as nearly as practicable, as determined by you) is in the same proportion bears to the number of Company Shares or Selling Stockholder Shares, as the case may be, set forth opposite the name of the Company or such Selling Stockholder in Schedule B hereto as the number of Firm Shares which is to be sold by the Company, the same proportion as the number of Shares set forth opposite the name of such Underwriter in Schedule A hereto (subject to adjustment as provided in Section 10) is bears to the total number of Firm Shares to be purchased by all the Underwriters under this Agreement. The certificates in negotiable form or properly executed option exercise forms for the obligation of each Underwriter to each Venture Capital Selling Stockholder Shares have been placed in custody (for delivery under this Agreement) under the Custody Agreement. Each shall be to purchase from such Venture Capital Selling Stockholder agrees the number of full shares which (as nearly as practicable, as determined by you) bears to that number of Firm Shares set forth opposite the certificates or executed option exercise forms for the name of such Venture Capital Selling Stockholder in Schedule B-1 hereto, the same proportion as the number of Shares set forth opposite the name of such Selling Stockholder so held Underwriter in custody are subject Schedule A hereto bears to the interests total number of the Underwriters hereunder, that the arrangements made by such Selling Stockholder for such custody, including the Power of Attorney is to that extent irrevocable and that the obligations of such Selling Stockholder hereunder shall not be terminated by the act of such Selling Stockholder or by operation of law, whether by the death or incapacity of such Selling Stockholder or the occurrence of any other event, except as specifically provided herein or in the Custody Agreement. If any Selling Stockholder should die or be incapacitated, or if any other such event should occur, before the delivery of the certificates for the Selling Stockholder Shares hereunder, the Selling Stockholder Shares to be sold by such Selling Stockholder shall, except as specifically provided herein or in the Custody Agreement, be delivered by the Custodian in accordance with the terms and conditions of this Agreement as if such death, incapacity or other event had not occurred, regardless of whether the Custodian shall have received notice of such death or other event. Delivery of definitive certificates for the Firm Shares to be purchased by the all Underwriters pursuant to under this Section 3 shall be made against payment of Agreement. The initial public offering price and the purchase price therefor by the several Underwriters by certified or official bank check or checks drawn in next-day funds, payable to the order of the Company with regard to the Shares being purchased from the Company, and to the order of the Custodian for the respective accounts of the Selling Stockholders with regard to the Shares being purchased from such Selling Stockholders (and the Company and such Selling Stockholders agree not to deposit and to cause the Custodian not to deposit any such check in the bank on which it is drawn, and not to take any other action with the purpose or effect of receiving immediately available funds, until the business day following the date of its delivery to the Company or the Custodian, as the case may be, and, in the event of any breach of the foregoing, the Company or the Selling Stockholders, as the case may be, shall reimburse the Underwriters for the interest lost and any other expenses borne by them by reason of such breach), at the offices of Xxxxxxx & XxXxxxxx, Los Angeles, California (or at such other place as may be agreed upon among the Representatives and the Company), at 7:00 A.M., San Francisco time (a) on the third (3rd) full business day following the first day that Shares are traded, (b) if this Agreement is executed and delivered after 1:30 P.M., San Francisco time, the fourth (4th) full business day following the day that this Agreement is executed and delivered or (c) at such other time and date not later than seven (7) full business days following the first day that Shares are traded as the Representatives and the Company and the Attorneys may determine (or at such time and date to which payment and delivery shall have been postponed pursuant to Section 10 hereof), such time and date of payment and delivery being herein called the "Closing Date;" PROVIDED, HOWEVER, that if the Company has not made available to the Representatives copies of the Prospectus within the time provided in Section 4(d) hereof, the Representatives may, in their sole discretion, postpone the Closing Date until no later than two (2) full business days following delivery of copies of the Prospectus to the Representatives. The certificates for the Firm Shares to be so delivered will be made available to you at such office or such other location including, without limitation, in New York City, as you may reasonably request for checking at least one (1) full business day prior to the Closing Date and will be in such names and denominations as you may request, such request to be made at least two (2) full business days prior to the Closing Date. If the Representatives so elect, delivery of the Firm Shares may be made by credit through full fast transfer to the accounts at The Depository Trust Company designated by the Representatives. It is understood that you, individually, and not as the Representatives of the several Underwriters, may (but shall not be obligated to) make payment of the purchase price on behalf of any Underwriter or Underwriters whose check or checks shall not have been received by you prior to the Closing Date for the Firm Shares to be purchased by such Underwriter or Underwriters. Any such payment by you shall not relieve any such Underwriter or Underwriters of any of its or their obligations hereunder. After the Registration Statement becomes effective, the several Underwriters intend to make a public offering (as such term is described in Section 11 hereof) of the Firm Shares at a public offering price of $_____ per share. After the public offering, the several Underwriters may, in their discretion, vary the public offering price. The information set forth in the second and eighth paragraphs under the caption "Underwriting" in any Preliminary Prospectus and in the Prospectus constitutes the only information furnished by the Underwriters to the Company for inclusion in any Preliminary Prospectus, the Prospectus or the Registration Statement or any Incorporated Document, and you, on behalf of the respective Underwriters, represent and warrant to the Company and the Selling Stockholders that the statements made therein do not include any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleadingPricing Agreement.
Appears in 1 contract
Samples: Onesource Information Services Inc
Purchase, Sale and Delivery of Shares. On the basis of the ------------------------------------- representations, warranties and agreements herein contained, but subject to the terms and conditions herein set forth, the Company and the Selling Stockholders agree, severally and not jointly, to sell to the Underwriters, and each Underwriter agrees, severally and not jointly, to purchase from the Company and the Selling Stockholders, respectively, at a purchase price of $_____ per share, the respective number of Company Shares and Selling Stockholder Firm Shares set forth opposite the names of the Company and the Selling Stockholders, respectively, Stockholders in Schedule B hereto. The obligation of each Underwriter to the Company and to each Selling Stockholder shall be to purchase from the Company or such Selling Stockholder that number of Company Firm Shares or Selling Stockholder Shares, as the case may be, which (as nearly as practicable, as determined by you) is in the same proportion to the number of Company Firm Shares or Selling Stockholder Shares, as the case may be, set forth opposite the name of the Company or such Selling Stockholder in Schedule B hereto as the number of Firm Shares which is set forth opposite the name of such Underwriter in Schedule A hereto (subject to adjustment as provided in Section 10) is to the total number of Firm Shares to be purchased by all the Underwriters under this Agreement. The certificates in negotiable form or properly executed option exercise forms for the Firm Shares to be sold by the Selling Stockholder Shares Stockholders have been placed in custody (for delivery under this Agreement) under the Custody Agreement. Each Selling Stockholder agrees that the certificates or executed option exercise forms for the Selling Stockholder Firm Shares and the Option Shares of such Selling Stockholder so held in custody are subject to the interests of the Underwriters hereunder, that the arrangements made by such Selling Stockholder for such custody, including the Power of Attorney is to that extent irrevocable and that the obligations of such Selling Stockholder hereunder shall not be terminated by the act of such Selling Stockholder or by operation of law, whether by the death or incapacity of such Selling Stockholder or the occurrence of any other event, except as specifically provided herein or in the Custody Agreement. If any Selling Stockholder should die or be incapacitated, or if any other such event should occur, before the delivery of the certificates for the Selling Stockholder Firm Shares and the Option Shares hereunder, the Selling Stockholder Firm Shares and the Option Shares to be sold by such Selling Stockholder shall, except as specifically provided herein or in the Custody Agreement, be delivered by the Custodian in accordance with the terms and conditions of this Agreement as if such death, incapacity or other event had not occurred, regardless of whether the Custodian shall have received notice of such death or other event. Delivery of definitive certificates for the Firm Shares to be purchased by the Underwriters pursuant to this Section 3 shall be made against payment of the purchase price therefor by the several Underwriters by wire transfer or by certified or official bank check or checks drawn in nextsame-day funds, payable to the order of the Company with regard to the Shares being purchased from the Company, and to the order of the Custodian for the respective accounts of the Selling Stockholders with regard to the Shares being purchased from such Selling Stockholders (and the Company and such Selling Stockholders agree not to deposit and to cause the Custodian not to deposit any such check in the bank on which it is drawn, and not to take any other action with the purpose or effect of receiving immediately available funds, until the business day following the date of its delivery to the Company or the Custodian, as the case may be, and, in the event of any breach of the foregoing, the Company or the Selling Stockholders, as the case may be, shall reimburse the Underwriters for the interest lost and any other expenses borne by them by reason of such breach), at the offices of Xxxxxxx Xxxxxx & XxXxxxxx, Los Angeles, California Xxxxxx (or at such other place as may be agreed upon among the Representatives and the CompanyCompany and the Attorneys), at 7:00 A.M., San Francisco time (a) on the third (3rd) full business day following the first day that Shares are traded, (b) if this Agreement is executed and delivered after 1:30 P.M., San Francisco time, the fourth (4th) full business day following the day that this Agreement is executed and delivered or (c) at such other time and date not later than seven (7) full business days following the first day that Shares are traded as the Representatives and the Company and the Attorneys may determine (or at such time and date to which payment and delivery shall have been postponed pursuant to Section 10 hereof), such time and date of payment and delivery being herein called the "Closing Date;" PROVIDEDprovided, HOWEVER-------- however, that if the Company has not made available to the Representatives ------- copies of the Prospectus within the time provided in Section 4(d) hereof, the Representatives may, in their sole discretion, postpone the Closing Date until no later than two (2) full business days following delivery of copies of the Prospectus to the Representatives. The certificates for the Firm Shares to be so delivered will be made available to you at such office or such other location including, without limitation, in New York City, as you may reasonably request for checking at least one (1) full business day prior to the Closing Date and will be in such names and denominations as you may request, such request to be made at least two (2) full business days prior to the Closing Date. If the Representatives so elect, delivery of the Firm Shares may be made by credit through full fast transfer to the accounts at The Depository Trust Company designated by the Representatives. It is understood that you, individually, and not as the Representatives of the several Underwriters, may (but shall not be obligated to) make payment of the purchase price on behalf of any Underwriter or Underwriters whose check or checks shall not have been received by you prior to the Closing Date for the Firm Shares to be purchased by such Underwriter or Underwriters. Any such payment by you shall not relieve any such Underwriter or Underwriters of any of its or their obligations hereunder. After the Registration Statement becomes effective, the several Underwriters intend to make a an initial public offering (as such term is described in Section 11 hereof) of the Firm Shares at a an initial public offering price of $_____ per share. After the initial public offering, the several Underwriters may, in their discretion, vary the public offering price. The information set forth in the second last paragraph on the front cover page (insofar as such information relates to the Underwriters), on the inside front cover concerning stabilization and over-allotment by the Underwriters, and in the table included within the first paragraph and the [second, sixth, seventh and eighth paragraphs and the first and last sentences of the tenth paragraph] under the caption "Underwriting" in any Preliminary Prospectus and in the Prospectus constitutes the only information furnished by the Underwriters to the Company for inclusion in any Preliminary Prospectus, the Prospectus or the Registration Statement or any Incorporated DocumentStatement, and you, on behalf of the respective Underwriters, represent and warrant to the Company and the Selling Stockholders that the statements made therein do not include any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading.
Appears in 1 contract
Purchase, Sale and Delivery of Shares. On the basis of the representations, warranties and agreements herein contained, but subject to the terms and conditions herein set forth, the Company and the Selling Stockholders agree, severally and not jointly, Shareholders agree to sell to the Underwriters, and each Underwriter agrees, severally and not jointly, to purchase from the Company and the Selling StockholdersShareholders, respectively, at a purchase price of $_____ [ ] per share, the respective number of Company Shares and Selling Stockholder Shareholder Shares set forth opposite the names of the Company and the Selling Stockholders, respectively, Shareholders in Schedule B heretoherein. The obligation of each Underwriter to the Company and to each such Selling Stockholder Shareholder shall be to purchase from the Company or such Selling Stockholder Shareholder that number of Company Shares or Selling Stockholder Shareholder Shares, as the case may be, which (as nearly as practicable, as determined by you) is in the same proportion to the number work of Company Shares Stock or Selling Stockholder Shareholder Shares, as the case may be, set forth opposite the name of the Company or such Selling Stockholder Shareholder in Schedule B hereto as the number of Firm Shares which is set forth opposite the name of such Underwriter in Schedule A hereto (subject to adjustment as provided in Section 10) is to the total number of Firm Shares to be purchased by all of the Underwriters under this Agreement. The certificates in negotiable form or properly executed option exercise forms for the Selling Stockholder Shareholder Shares have been placed in custody (for delivery under this Agreement) under the Custody AgreementAgreement and Power of Attorney. Each Selling Stockholder Shareholder agrees that the certificates or executed option exercise forms for the Selling Stockholder Shareholder Shares of such Selling Stockholder Shareholder so held in custody are subject to the interests of the Underwriters hereunder, that the arrangements made by such Selling Stockholder Shareholder for such custody, including the Power of Attorney Attorney, is to that extent irrevocable and that the obligations of such Selling Stockholder Shareholder hereunder shall not be terminated by the act of such Selling Stockholder Shareholder or by operation of law, whether by the death or incapacity of such Selling Stockholder Shareholder or the occurrence of any other event, except as specifically provided herein or in the Custody AgreementAgreement and Power of Attorney. If any Selling Stockholder Shareholder should die or be incapacitated, or if any other such event should occur, before the delivery of the certificates for the Selling Stockholder Shareholder Shares hereunder, the Selling Stockholder Shareholder Shares to be sold by such Selling Stockholder Shareholder shall, except as specifically provided herein or in the Custody AgreementAgreement and Power of Attorney, be delivered by the Custodian in accordance with the terms and conditions of this Agreement as if such death, incapacity or other event had not occurred, regardless of whether the Custodian shall have received notice of such death or other event. Delivery of definitive certificates for the Firm Shares to be purchased by the Underwriters pursuant to this Section 3 shall be made against payment of the purchase price therefor by the several Underwriters by certified or official bank check or checks drawn in next-day funds, payable wire transfer of Federal funds to the order of an account specified by the Company with regard respect to the Shares being purchased from the Company, Company and to the order of an account or accounts specified by the Custodian for the respective accounts of the Selling Stockholders Shareholders with regard respect to the Shares being purchased from such Selling Stockholders (and the Company and such Selling Stockholders agree not to deposit and to cause the Custodian not to deposit any such check in the bank on which it is drawn, and not to take any other action with the purpose or effect of receiving immediately available funds, until the business day following the date of its delivery to the Company or the Custodian, as the case may be, and, in the event of any breach of the foregoing, the Company or the Selling Stockholders, as the case may be, shall reimburse the Underwriters for the interest lost and any other expenses borne by them by reason of such breach)Shareholder, at the offices of Xxxxxxx Greenberg Traurig Hoffman Lipoff Rosen & XxXxxxxxQuentel, Los AngelesP.A., California 1221 Brickell Xxxxxx, Xiami, Floxxxx 00100 (or at such other place xx xx xxch xxxxx xlace as may be agreed upon among the Representatives xxx xx xxxxxx xxxx xxxxx xxx Xxxxxxxxxxxxxes and the Company), at 7:00 A.M., San Francisco time (a) on the third (3rd) full business day following the first day that Shares are traded, (b) if this Agreement is executed and delivered after 1:30 P.M., San Francisco time, the fourth (4th) full business day following the day that this Agreement is executed and delivered or (c) at such other time and date not later than seven (7) full business days following the first day that Shares are traded as the Representatives and the Company and the Attorneys may determine (or at such time and date to which payment and delivery shall have been postponed pursuant to Section 10 hereof), such time and date of payment and delivery being herein called the "Closing Date;" PROVIDEDprovided, HOWEVER, that if the Company has not made available to the Representatives copies of the Prospectus within the time provided in Section 4(d) hereof, the Representatives may, in their sole discretion, postpone the Closing Date until no later than two (2) full business days following delivery of copies of the Prospectus to the Representatives. The certificates for the Firm Shares to be so delivered will be made available to you at such office or such other location including, without limitation, in New York City, as you may reasonably request for checking at least one (1) full business day prior to the Closing Date and will be in such names and denominations as you may request, such request to be made at least two (2) full business days prior to the Closing Date. If the Representatives so elect, delivery of the Firm Shares may be made by credit through full fast transfer to the accounts at The Depository Trust Company designated by the Representatives. It is understood that you, individually, and not as the Representatives of the several Underwriters, may (but shall not be obligated to) make payment of the purchase price on behalf of any Underwriter or Underwriters whose check or checks shall not have been received by you prior to the Closing Date for the Firm Shares to be purchased by such Underwriter or Underwriters. Any such payment by you shall not relieve any such Underwriter or Underwriters of any of its or their obligations hereunder. After the Registration Statement becomes effective, the several Underwriters intend to make a an initial public offering (as such term is described in Section 11 hereof) of the Firm Shares at a an initial public offering price of $_____ [ ] per share. After the initial public offering, the several Underwriters may, in their discretion, vary the public offering price. The information set forth in the second last paragraph on the front cover page (insofar as such information relates to the Underwriters), on the inside front cover concerning stabilization and eighth paragraphs over-allotment by the Underwriters, and under the caption section captioned "Underwriting" in any Preliminary Prospectus and in the Prospectus constitutes the only information furnished by the Underwriters to the Company for inclusion in any Preliminary Prospectus, the Prospectus or the Registration Statement or any Incorporated DocumentStatement, and you, on behalf of the respective Underwriters, represent and warrant to the Company and the Selling Stockholders Shareholders that the statements made therein do not include any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading.
Appears in 1 contract
Samples: Sportsline Usa Inc
Purchase, Sale and Delivery of Shares. On the basis of the representations, warranties and agreements herein contained, but subject to the terms and conditions herein set forth, the Company and the Selling Stockholders Shareholders agree, severally and not jointly, to sell to the Underwriters, and each Underwriter agrees, severally and not jointly, to purchase from the Company and the Selling StockholdersShareholders, respectively, at a purchase price of $________ per share, the respective number of Company Shares as hereinafter set forth and Selling Stockholder Shareholder Shares set forth opposite the names of the Company and the Selling Stockholders, respectively, Shareholders in Schedule B hereto. The obligation of each Underwriter to the Company and to each Selling Stockholder Shareholder shall be to purchase from the Company or such Selling Stockholder Shareholder that number of Company Shares or Selling Stockholder Shareholder Shares, as the case may be, which (as nearly as practicable, as determined by you) is in the same proportion to the number of Company Shares or Selling Stockholder Shareholder Shares, as the case may be, set forth opposite the name of the Company or such Selling Stockholder Shareholder in Schedule B hereto as the number of Firm Shares which is set forth opposite the name of such Underwriter in Schedule A hereto (subject to adjustment as provided in Section 10) is to the total number of Firm Shares to be purchased by all the Underwriters under this Agreement. The certificates in negotiable form or properly executed option exercise forms for the Selling Stockholder Shareholder Shares have been placed in custody (for delivery under this Agreement) under the Custody Agreement. Each Selling Stockholder Shareholder agrees that the certificates or executed option exercise forms for the Selling Stockholder Shareholder Shares of such Selling Stockholder Shareholder so held in custody are subject to the interests of the Underwriters hereunder, that the arrangements made by such Selling Stockholder Shareholder for such custody, including the Power of Attorney is to that extent irrevocable and that the obligations of such Selling Stockholder Shareholder hereunder shall not be terminated by the act of such Selling Stockholder Shareholder or by operation of law, whether by the death or incapacity of such Selling Stockholder Shareholder or the occurrence of any other event, except as specifically provided herein or in the Custody Agreement. If any Selling Stockholder should die or be incapacitated, or if any other such event should occur, before the delivery of the certificates for the Selling Stockholder Shares hereunder, the Selling Stockholder Shares to be sold by such Selling Stockholder shall, except as specifically provided herein or in the Custody Agreement, be delivered by the Custodian in accordance with the terms and conditions of this Agreement as if such death, incapacity or other event had not occurred, regardless of whether the Custodian shall have received notice of such death or other event. Delivery of definitive certificates for the Firm Shares to be purchased by the Underwriters pursuant to this Section 3 shall be made against payment of the purchase price therefor by the several Underwriters by certified or official bank check or checks drawn in next-day funds, payable to the order of the Company with regard to the Shares being purchased from the Company, and to the order of the Custodian for the respective accounts of the Selling Stockholders with regard to the Shares being purchased from such Selling Stockholders (and the Company and such Selling Stockholders agree not to deposit and to cause the Custodian not to deposit any such check in the bank on which it is drawn, and not to take any other action with the purpose or effect of receiving immediately available funds, until the business day following the date of its delivery to the Company or the Custodian, as the case may be, and, in the event of any breach of the foregoing, the Company or the Selling Stockholders, as the case may be, shall reimburse the Underwriters for the interest lost and any other expenses borne by them by reason of such breach), at the offices of Xxxxxxx & XxXxxxxx, Los Angeles, California (or at such other place as may be agreed upon among the Representatives and the Company), at 7:00 A.M., San Francisco time (a) on the third (3rd) full business day following the first day that Shares are traded, (b) if this Agreement is executed and delivered after 1:30 P.M., San Francisco time, the fourth (4th) full business day following the day that this Agreement is executed and delivered or (c) at such other time and date not later than seven (7) full business days following the first day that Shares are traded as the Representatives and the Company and the Attorneys may determine (or at such time and date to which payment and delivery shall have been postponed pursuant to Section 10 hereof), such time and date of payment and delivery being herein called the "Closing Date;" PROVIDED, HOWEVER, that if the Company has not made available to the Representatives copies of the Prospectus within the time provided in Section 4(d) hereof, the Representatives may, in their sole discretion, postpone the Closing Date until no later than two (2) full business days following delivery of copies of the Prospectus to the Representatives. The certificates for the Firm Shares to be so delivered will be made available to you at such office or such other location including, without limitation, in New York City, as you may reasonably request for checking at least one (1) full business day prior to the Closing Date and will be in such names and denominations as you may request, such request to be made at least two (2) full business days prior to the Closing Date. If the Representatives so elect, delivery of the Firm Shares may be made by credit through full fast transfer to the accounts at The Depository Trust Company designated by the Representatives. It is understood that you, individually, and not as the Representatives of the several Underwriters, may (but shall not be obligated to) make payment of the purchase price on behalf of any Underwriter or Underwriters whose check or checks shall not have been received by you prior to the Closing Date for the Firm Shares to be purchased by such Underwriter or Underwriters. Any such payment by you shall not relieve any such Underwriter or Underwriters of any of its or their obligations hereunder. After the Registration Statement becomes effective, the several Underwriters intend to make a public offering (as such term is described in Section 11 hereof) of the Firm Shares at a public offering price of $_____ per share. After the public offering, the several Underwriters may, in their discretion, vary the public offering price. The information set forth in the second and eighth paragraphs under the caption "Underwriting" in any Preliminary Prospectus and in the Prospectus constitutes the only information furnished by the Underwriters to the Company for inclusion in any Preliminary Prospectus, the Prospectus or the Registration Statement or any Incorporated Document, and you, on behalf of the respective Underwriters, represent and warrant to the Company and the Selling Stockholders that the statements made therein do not include any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading.provided
Appears in 1 contract
Purchase, Sale and Delivery of Shares. On the basis of the ------------------------------------- representations, warranties and agreements herein contained, but subject to the terms and conditions herein set forth, the Company and the Selling Stockholders Shareholders agree, severally and not jointly, to sell to the Underwriters, and each Underwriter agrees, severally and not jointly, to purchase from the Company and the Selling StockholdersShareholders, respectively, at a purchase price of $_____ per share, the respective number of Company Firm Shares and Selling Stockholder Shares as set forth opposite the names of the Company and the Selling Stockholders, respectively, Shareholders in Schedule B hereto. The obligation of each Underwriter to the Company and to each Selling Stockholder Shareholder shall be to purchase from the Company or such Selling Stockholder Shareholder that number of Company Firm Shares or Selling Stockholder Shares, as the case may be, which that (as nearly as practicable, as determined by you) is in the same proportion to the number of Company Shares or Selling Stockholder Shareholder Shares, as the case may be, set forth opposite the name of the Company or such Selling Stockholder Shareholder in Schedule B hereto as the number of Firm Shares which is set forth opposite the name of such Underwriter in Schedule A hereto (subject to adjustment as provided in Section 10) is to the total number of Firm Shares to be purchased by all the Underwriters under this Agreement. The certificates in negotiable form or properly executed option exercise forms for the Selling Stockholder Shareholder Shares have been placed in custody (for delivery under this Agreement) under the Custody Agreement. Each Selling Stockholder Shareholder agrees that the certificates or executed option exercise forms for the Selling Stockholder Shareholder Shares of such Selling Stockholder Shareholder so held in custody are subject to the interests of the Underwriters hereunder, that the arrangements made by such Selling Stockholder Shareholder for such custody, including the Power of Attorney Attorney, is to that extent irrevocable and that the obligations of such Selling Stockholder Shareholder hereunder shall not be terminated by the act of such Selling Stockholder Shareholder or by operation of law, whether by the death or incapacity of such Selling Stockholder Shareholder or the occurrence of any other event, except as specifically provided herein or in the Custody Agreement. If any Selling Stockholder Shareholder should die or be incapacitated, or if any other such event should occur, before the delivery of the certificates for the Selling Stockholder Shareholder Shares hereunder, the Selling Stockholder Shareholder Shares to be sold by such Selling Stockholder Shareholder shall, except as specifically provided herein or in the Custody Agreement, be delivered by the Custodian in accordance with the terms and conditions of this Agreement as if such death, incapacity or other event had not occurred, regardless of whether the Custodian shall have received notice of such death or other event. Delivery of definitive certificates for the Firm Shares to be purchased by the Underwriters pursuant to this Section 3 shall be made against payment of the purchase price therefor by the several Underwriters by certified or official bank check or checks drawn in next-day funds, payable to the order of the Company with regard to the Shares being purchased from the Company, and to the order of the Custodian for the respective accounts of the Selling Stockholders Shareholders with regard to the Shares being purchased from such Selling Stockholders Shareholders (and the Company and such Selling Stockholders Shareholders agree not to deposit and to cause the Custodian not to deposit any such check in the bank on which it is drawn, and not to take any other action with the purpose or effect of receiving immediately available funds, until the business day following the date of its delivery to the Company or the Custodian, as the case may be, and, in the event of any breach of the foregoing, the Company or the Selling StockholdersShareholders, as the case may be, shall reimburse the Underwriters for the interest lost and any other expenses borne by them by reason of such breach), at the offices of Xxxxxx & Bird, One Atlantic Center, 0000 Xxxx Xxxxxxxxx Xxxxxx, Xxxxxxx, Xxxxxxx & XxXxxxxx, Los Angeles, California 00000-0000 (or at such other place as may be agreed upon among the Representatives and the CompanyCompany and the Attorneys), at 7:00 A.M., San Francisco time (a) on the third (3rd) full business day following the first day that Shares are traded, (b) if this Agreement is executed and delivered after 1:30 P.M., San Francisco time, the fourth (4th) full business day following the day that this Agreement is executed and delivered or (c) at such other time and date not later than seven (7) full business days following the first day that Shares are traded as the Representatives and the Company and the Attorneys may determine (or at such time and date to which payment and delivery shall have been postponed pursuant to Section 10 hereof), such time and date of payment and delivery being herein called the "Closing Date;" PROVIDEDprovided, HOWEVERhowever, that if the -------- ------- Company has not made available to the Representatives copies of the Prospectus within the time provided in Section 4(d) hereof, the Representatives may, in their sole discretion, postpone the Closing Date until no later than two (2) full business days following delivery of copies of the Prospectus to the Representatives. The certificates for the Firm Shares to be so delivered will be made available to you at such office or such other location including, without limitation, in New York City, as you may reasonably request for checking at least one (1) full business day prior to the Closing Date and will be in such names and denominations as you may request, such request to be made at least two (2) full business days prior to the Closing Date. If the Representatives so elect, delivery of the Firm Shares may be made by credit through full fast transfer to the accounts at The Depository Trust Company designated by the Representatives. It is understood that you, individually, and not as the Representatives of the several Underwriters, may (but shall not be obligated to) make payment of the purchase price on behalf of any Underwriter or Underwriters whose check or checks shall not have been received by you prior to the Closing Date for the Firm Shares to be purchased by such Underwriter or Underwriters. Any such payment by you shall not relieve any such Underwriter or Underwriters of any of its or their obligations hereunder. After the Registration Statement becomes effective, the several Underwriters intend to make a public offering (as such term is described in Section 11 hereof) of the Firm Shares at a public offering price of $_____ per share. After the public offering, the several Underwriters may, in their discretion, vary the public offering price. The information set forth in the second last paragraph on the front cover page (insofar as such information relates to the Underwriters), on the inside front cover concerning stabilization and eighth over-allotment by the Underwriters, and under the _____ and _____ paragraphs under the caption "Underwriting" in any Preliminary Prospectus and in the Prospectus constitutes the only information furnished by the Underwriters to the Company for inclusion in any Preliminary Prospectus, the Prospectus or the Registration Statement or any Incorporated Document, and you, on behalf of the respective Underwriters, represent and warrant to the Company and the Selling Stockholders Shareholders that the statements made therein do not include any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading.
Appears in 1 contract
Purchase, Sale and Delivery of Shares. On the basis of the representations, warranties and agreements herein contained, but subject to the terms and conditions herein set forth, the Company and the Selling Stockholders agree, severally and not jointly, to sell to the Underwriters, and each Underwriter agrees, severally and not jointly, to purchase from the Company and the Selling Stockholders, respectively, at a purchase price of $_____ per share, the respective number of Company Shares and Selling Stockholder Shares set forth opposite the names of the Company and the Selling Stockholders, respectively, Stockholders in Schedule B hereto. The obligation of each Underwriter to the Company and to each Selling Stockholder shall be to purchase from the Company or such Selling Stockholder that number of Company Shares or Selling Stockholder Shares, as the case may be, which (as nearly as practicable, as determined by you) is in the same proportion to the number of Company Shares or Selling Stockholder Shares, as the case may be, set forth opposite the name of the Company or such Selling Stockholder in Schedule B hereto as the number of Firm Shares which is set forth opposite the name of such Underwriter in Schedule A hereto (subject to adjustment as provided in Section 10) is to the total number of Firm Shares to be purchased by all the Underwriters under this Agreement. The certificates in negotiable form or properly executed option exercise forms for the Selling Stockholder Shares have been placed in custody (for delivery under this Agreement) under the Custody Agreement. Each Selling Stockholder agrees that the certificates or executed option exercise forms for the Selling Stockholder Shares of such Selling Stockholder so held in custody are subject to the interests of the Underwriters hereunder, that the arrangements made by such Selling Stockholder for such custody, including the Power of Attorney is to that extent irrevocable and that the obligations of such Selling Stockholder hereunder shall not be terminated by the act of such Selling Stockholder or by operation of law, whether by the death or incapacity of such Selling Stockholder or the occurrence of any other event, except as specifically provided herein or in the Custody Agreement. If any Selling Stockholder should die or be incapacitated, or if any other such event should occur, before the delivery of the certificates for the Selling Stockholder Shares hereunder, the Selling Stockholder Shares to be sold by such Selling Stockholder shall, except as specifically provided herein or in the Custody Agreement, be delivered by the Custodian in accordance with the terms and conditions of this Agreement as if such death, incapacity or other event had not occurred, regardless of whether the Custodian shall have received notice of such death or other event. Delivery of definitive certificates for the Firm Shares to be purchased by the Underwriters pursuant to this Section 3 shall be made against payment of the purchase price therefor by the several Underwriters by certified or official bank check or checks drawn in next-day funds, payable to the order of the Company with regard to the Shares being purchased from the Company, and to the order of each such Selling Stockholder (or the Custodian for the respective accounts of the Selling Stockholders Stockholders) with regard to the Shares being purchased from such Selling Stockholders (and the Company and such Selling Stockholders agree not to deposit and to cause the Custodian not to deposit any such check in the bank on which it is drawn, and not to take any other action with the purpose or effect of receiving immediately available funds, drawn until the business day following the date of its delivery to the Company or the Custodian, as the case may be, and, in the event of any breach of the foregoing, the Company or the Selling Stockholders, as the case may be, shall reimburse the Underwriters for the interest lost and any other expenses borne by them by reason of such breach), at the offices of Xxxxxxx Freshman, Marantz, Orlanski, Coopxx & XxXxxxxxXleix, Los Angeles0000 Xxxxxxxx Xxxxxxxxx, California (Xxxxxx Xxxor, East Tower, Beverly Hills, California, or at such other place as may be agreed upon among the Representatives and the CompanyCompany and the Selling Stockholders), at 7:00 A.M., San Francisco time (a) California time, on the third (3rd) full business day following the first day that Shares are traded, (b) if this Agreement is executed and delivered after 1:30 P.M., San Francisco time, the fourth (4th) full business day following the day that this Agreement is executed and delivered traded or (c) at such other time and date not later than seven (7) full business days following the first day that Shares are traded as the Representatives and the Company and the Attorneys Selling Stockholders may determine (or at such time and date to which payment and delivery shall have been postponed pursuant to Section 10 hereof), such time and date of payment and delivery being herein called the "Closing Date;." PROVIDED, HOWEVER, that if the Company has not made available to the Representatives copies of the Prospectus within the time provided in Section 4(d) hereof, the Representatives may, in their sole discretion, postpone the Closing Date until no later than two (2) full business days following delivery of copies of the Prospectus to the Representatives. The certificates for the Firm Shares to be so delivered will be made available to you at such office or such other location including, without limitation, in New York City, as you may reasonably request for checking at least one (1) full business day prior to the Closing Date and will be in such names and denominations as you may request, such request to be made at least two (2) full business days prior to the Closing Date. If the Representatives so elect, delivery of the Firm Shares may be made by credit through full fast transfer to the accounts at The Depository Trust Company designated by the Representatives. It is understood that you, individually, and not as the Representatives of the several Underwriters, may (but shall not be obligated to) make payment of the purchase price on behalf of any Underwriter or Underwriters whose check or checks shall not have been received by you prior to the Closing Date for the Firm Shares to be purchased by such Underwriter or Underwriters. Any such payment by you shall not relieve any such Underwriter or Underwriters of any of its or their obligations hereunder. After the Registration Statement becomes effective, the several Underwriters intend to make a public offering (as such term is described in Section 11 hereof) of the Firm Shares at a public offering price of $_____ per share. After the public offering, the several Underwriters may, in their discretion, vary the public offering price. The information set forth in the second and eighth paragraphs under the caption "Underwriting" in any Preliminary Prospectus and in the Prospectus constitutes the only information furnished by the Underwriters to the Company for inclusion in any Preliminary Prospectus, the Prospectus or the Registration Statement or any Incorporated Document, and you, on behalf of the respective Underwriters, represent and warrant to the Company and the Selling Stockholders that the statements made therein do not include any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading.the
Appears in 1 contract
Samples: Jaco Electronics Inc
Purchase, Sale and Delivery of Shares. On the basis of the representations, warranties and agreements herein contained, but subject to the terms and conditions herein set forth, the Company and the Selling Stockholders Havant, agree, severally and not jointly, to sell to the Underwriters, and each Underwriter agrees, severally and not jointly, to purchase from the Company and the Selling StockholdersHavant, respectively, at a purchase price of $_____ per share, the respective number of Company Shares as hereinafter set forth and Selling Stockholder Shares set forth opposite the names of the Company and the Selling Stockholders, respectively, Havant in Schedule B hereto. The obligation of each Underwriter to the Company and to each Selling Stockholder Havant shall be to purchase from the Company or such Selling Stockholder Havant that number of full Company Shares or Selling Stockholder Shares, as the case may be, which (as nearly as practicable, as determined by you) is in the same proportion to the number of Company Shares or Selling Stockholder Shares, as the case may be, set forth opposite the name of the Company or such Selling Stockholder Havant in Schedule B hereto as the number of Firm Shares which is set forth opposite the name of such Underwriter in Schedule A hereto (subject to adjustment as provided in Section 10) is to the total number of Firm Shares to be purchased by all the Underwriters under this Agreement. The certificates in negotiable form or properly executed option exercise forms for the Selling Stockholder Shares have been placed in custody (for delivery under this Agreement) under the Custody AgreementCustodian Agreement and Power of Attorney. Each Selling Stockholder agrees that the certificates or executed option exercise forms for the Selling Stockholder Shares of such Selling Stockholder so held in custody are subject to the interests of the Underwriters hereunder, that the arrangements made by such Selling Stockholder for such custody, including the Custodian Agreement and Power of Attorney is to that extent irrevocable and that the obligations of such Selling Stockholder hereunder shall not be terminated by the act of such Selling Stockholder or by operation of law, whether by the death or incapacity of such Selling Stockholder or the occurrence of any other event, except as specifically provided herein or in the Custody AgreementCustodian Agreement and Power of Attorney. If any Selling Stockholder should die or be incapacitated, or if any other such event should occur, before the delivery of the certificates for the Selling Stockholder Shares hereunder, the Selling Stockholder Shares to be sold by such Selling Stockholder shall, except as specifically provided herein or in the Custody AgreementCustodian Agreement and Power of Attorney, be delivered by the Custodian in accordance with the terms and conditions of this Agreement as if such death, incapacity or other event had not occurred, regardless of whether the Custodian shall have received notice of such death or other event. Delivery of definitive certificates for the Firm Shares to be purchased by the Underwriters pursuant to this Section 3 shall be made against payment of the purchase price therefor by the several Underwriters by certified or official bank check or checks drawn in next-day funds, payable to the order of the Company with regard to the Shares being purchased from the Company, and to the order of the Custodian for the respective accounts of the Selling Stockholders with regard to the Shares being purchased from such Selling Stockholders (and the Company and such Selling Stockholders agree not to deposit and to cause the Custodian not to deposit any such check in the bank on which it is drawn, and not to take any other action with the purpose or effect of receiving immediately available funds, until the business day following the date of its delivery to the Company or the Custodian, as the case may be, and, in the event of any breach of the foregoing, the Company or the Selling Stockholders, as the case may be, shall reimburse the Underwriters for the interest lost and any other expenses borne by them by reason of such breach), at the offices of Xxxxxxx & XxXxxxxx, Los Angeles, California (or at such other place as may be agreed upon among the Representatives and the Company), at 7:00 A.M., San Francisco time (a) on the third (3rd) full business day following the first day that Shares are traded, (b) if this Agreement is executed and delivered after 1:30 P.M., San Francisco time, the fourth (4th) full business day following the day that this Agreement is executed and delivered or (c) at such other time and date not later than seven (7) full business days following the first day that Shares are traded as the Representatives and the Company and the Attorneys may determine (or at such time and date to which payment and delivery shall have been postponed pursuant to Section 10 hereof), such time and date of payment and delivery being herein called the "Closing Date;" PROVIDED, HOWEVER, that if the Company has not made available to the Representatives copies of the Prospectus within the time provided in Section 4(d) hereof, the Representatives may, in their sole discretion, postpone the Closing Date until no later than two (2) full business days following delivery of copies of the Prospectus to the Representatives. The certificates for the Firm Shares to be so delivered will be made available to you at such office or such other location including, without limitation, in New York City, as you may reasonably request for checking at least one (1) full business day prior to the Closing Date and will be in such names and denominations as you may request, such request to be made at least two (2) full business days prior to the Closing Date. If the Representatives so elect, delivery of the Firm Shares may be made by credit through full fast transfer to the accounts at The Depository Trust Company designated by the Representatives. It is understood that you, individually, and not as the Representatives of the several Underwriters, may (but shall not be obligated to) make payment of the purchase price on behalf of any Underwriter or Underwriters whose check or checks shall not have been received by you prior to the Closing Date for the Firm Shares to be purchased by such Underwriter or Underwriters. Any such payment by you shall not relieve any such Underwriter or Underwriters of any of its or their obligations hereunder. After the Registration Statement becomes effective, the several Underwriters intend to make a public offering (as such term is described in Section 11 hereof) of the Firm Shares at a public offering price of $_____ per share. After the public offering, the several Underwriters may, in their discretion, vary the public offering price. The information set forth in the second and eighth paragraphs under the caption "Underwriting" in any Preliminary Prospectus and in the Prospectus constitutes the only information furnished by the Underwriters to the Company for inclusion in any Preliminary Prospectus, the Prospectus or the Registration Statement or any Incorporated Document, and you, on behalf of the respective Underwriters, represent and warrant to the Company and the Selling Stockholders that the statements made therein do not include any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading.,
Appears in 1 contract
Samples: Adflex Solutions Inc
Purchase, Sale and Delivery of Shares. (a) On the basis of the representations, warranties and agreements herein containedcovenants contained in this Agreement, but and subject to the terms and conditions herein set forthforth in this Agreement, the Company and the Firm Selling Stockholders agree, severally and not jointly, to sell to the Underwriters, and each Underwriter agrees, severally and not jointly, to purchase from the Company and the Firm Selling Stockholders, respectively, at a purchase price of $_____ per share, the respective number of Company Shares and Firm Selling Stockholder Shares set forth opposite the names of the Company and the Firm Selling Stockholders, respectively, Stockholders in Schedule B hereto at a purchase price of $_____ per Firm Share, the number of Firm Shares set forth opposite such Underwriter's name in Schedule A hereto. The obligation of each Underwriter to the Company and to each Firm Selling Stockholder shall be to purchase from the Company or such Firm Selling Stockholder that number of Company Shares or Firm Selling Stockholder Shares, as the case may be, which (as nearly as practicable, as determined by you) is in the same proportion to the number of Company Shares or Firm Selling Stockholder Shares, as the case may be, set forth opposite the name of the Company or such Firm Selling Stockholder in Schedule B hereto as the number of Firm Shares which is set forth opposite the name of such Underwriter in Schedule A hereto (subject to adjustment as provided in Section 10) 8) is to the total number of Firm Shares to be purchased by all the Underwriters under this Agreement. In the event that any Firm Selling Stockholder shall have failed, refused or been unable to perform any agreement on his, her or its part to be performed hereunder, the Company and not such Firm Selling Stockholder shall sell to the Underwriters, and each Underwriter agrees, severally and not jointly, to purchase from the Company and not from such Firm Selling Stockholder, at the same price per share as set forth in this Section 2, that number of additional authorized but unissued shares of Common Stock which were otherwise to be sold by such Firm Selling Stockholder but for such Firm Selling Stockholder's failure, refusal or inability to perform any agreement on his, her or its part to be performed hereunder. The additional shares of Common Stock so sold by the Company as a result of the provisions of the preceding sentence shall added to, and included within, "Company Shares," and shall be subtracted and excluded from "Selling Stockholder Shares" as may be applicable in the context of this Agreement. The certificates in negotiable form or properly executed option exercise forms for the Selling Stockholder Shares have been placed in custody (for delivery under this Agreement) under the Custody AgreementAgreements. Each Selling Stockholder agrees that the certificates or executed option exercise forms for the Selling Stockholder Shares of such Selling Stockholder so held in custody are subject to the interests of the Underwriters hereunder, that the arrangements made by such Selling Stockholder for such custody, including the Power of Attorney Attorney, if applicable, is to that extent irrevocable and that the obligations of such Selling Stockholder hereunder shall not be terminated by the act of such Selling Stockholder or by operation of law, whether by the death or incapacity of such Selling Stockholder or the occurrence of any other event, except as specifically provided herein or in the Custody Agreement. If any Selling Stockholder should die or be incapacitated, or if any other such event should occur, before the delivery of the certificates for the Selling Stockholder Shares hereunder, the Selling Stockholder Shares to be sold by such Selling Stockholder shall, except as specifically provided herein or in the Custody Agreement, be delivered by the Custodian in accordance with the terms and conditions of this Agreement as if such death, incapacity or other event had not occurred, regardless of whether the Custodian shall have received notice of such death or other event. Delivery of definitive certificates for the Firm Shares to be purchased by the Underwriters pursuant to this Section 3 shall be made against payment of the purchase price therefor by the several Underwriters by certified or official bank check or checks drawn in next-day funds, payable to the order of the Company with regard to the Shares being purchased from the Company, and to the order of the Custodian for the respective accounts of the Selling Stockholders with regard to the Shares being purchased from such Selling Stockholders (and the Company and such Selling Stockholders agree not to deposit and to cause the Custodian not to deposit any such check in the bank on which it is drawn, and not to take any other action with the purpose or effect of receiving immediately available funds, until the business day following the date of its delivery to the Company or the Custodian, as the case may be, and, in the event of any breach of the foregoing, the Company or the Selling Stockholders, as the case may be, shall reimburse the Underwriters for the interest lost and any other expenses borne by them by reason of such breach), at the offices of Xxxxxxx & XxXxxxxx, Los Angeles, California (or at such other place as may be agreed upon among the Representatives and the Company), at 7:00 A.M., San Francisco time (a) on the third (3rd) full business day following the first day that Shares are traded, (b) if this Agreement is executed and delivered after 1:30 P.M., San Francisco time, the fourth (4th) full business day following the day that this Agreement is executed and delivered or (c) at such other time and date not later than seven (7) full business days following the first day that Shares are traded as the Representatives and the Company and the Attorneys may determine (or at such time and date to which payment and delivery shall have been postponed pursuant to Section 10 hereof), such time and date of payment and delivery being herein called the "Closing Date;" PROVIDED, HOWEVER, that if the Company has not made available to the Representatives copies of the Prospectus within the time provided in Section 4(d) hereof, the Representatives may, in their sole discretion, postpone the Closing Date until no later than two (2) full business days following delivery of copies of the Prospectus to the Representatives. The certificates for the Firm Shares to be so delivered will be made available to you at such office or such other location including, without limitation, in New York City, as you may reasonably request for checking at least one (1) full business day prior to the Closing Date and will be in such names and denominations as you may request, such request to be made at least two (2) full business days prior to the Closing Date. If the Representatives so elect, delivery of the Firm Shares may be made by credit through full fast transfer to the accounts at The Depository Trust Company designated by the Representatives. It is understood that you, individually, and not as the Representatives of the several Underwriters, may (but shall not be obligated to) make payment of the purchase price on behalf of any Underwriter or Underwriters whose check or checks shall not have been received by you prior to the Closing Date for the Firm Shares to be purchased by such Underwriter or Underwriters. Any such payment by you shall not relieve any such Underwriter or Underwriters of any of its or their obligations hereunder. After the Registration Statement becomes effective, the several Underwriters intend to make a public offering (as such term is described in Section 11 hereof) of the Firm Shares at a public offering price of $_____ per share. After the public offering, the several Underwriters may, in their discretion, vary the public offering price. The information set forth in the second and eighth paragraphs under the caption "Underwriting" in any Preliminary Prospectus and in the Prospectus constitutes the only information furnished by the Underwriters to the Company for inclusion in any Preliminary Prospectus, the Prospectus or the Registration Statement or any Incorporated Document, and you, on behalf of the respective Underwriters, represent and warrant to the Company and the Selling Stockholders that the statements made therein do not include any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading.
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Samples: Creative Master International Inc
