Representations and Warranties of the Selling Securityholders. Each Selling Securityholder, severally and not jointly, represents and warrants to, and agrees with, the Underwriters that: (a) Such Selling Securityholder has full power and authority to enter into this Agreement and the Power of Attorney and Custody Agreement (as hereinafter defined). All authorizations and consents necessary for the execution and delivery by such Selling Securityholder of this Agreement and the Power of Attorney and Custody Agreement and the performance of the transactions contemplated hereby and thereby have been obtained. Each of this Agreement and the Power of Attorney and Custody Agreement has been duly authorized, executed and delivered by or on behalf of such Selling Securityholder and constitutes a valid and binding agreement of such Selling Securityholder and is enforceable against such Selling Securityholder in accordance with its terms, except, in the case of enforceability, as limited by applicable bankruptcy, insolvency, reorganization, moratorium or other laws now or hereafter in effect relating to or affecting creditors' rights generally or by general principles of equity relating to the availability of remedies and except as rights to indemnity and contribution may be limited by federal or state securities laws or the public policy underlying such laws. (b) Such Selling Securityholder now has, and at the time of delivery thereof hereunder will have, (i) good and marketable title to the Shares to be sold by such Selling Securityholder hereunder, free and clear of all security interests, pledges, liens, encumbrances, equities, charges and claims whatsoever, and (ii) full legal right and power, and all authorizations and approvals required by law, except as required under the Act and the state Blue Sky laws or by the NASD, to sell, transfer and deliver the Shares to be sold by such Selling Securityholder to the Underwriters hereunder and to make the representations, warranties and agreements made by such Selling Securityholder herein. Upon the delivery of and payment for the Shares to be sold by such Selling Securityholder hereunder, such Selling Securityholder will deliver good and marketable title thereto, free and clear of all security interests, pledges, liens, encumbrances, equities, charges and claims whatsoever. (c) On the Closing Date and the Additional Closing Date, if any, all stock transfer or other taxes (other than income taxes) which are required to be paid in connection with the sale and transfer of the Shares to be sold by such Selling Securityholder to the several Underwriters hereunder will have been fully paid or provided for by the Company and all laws imposing such taxes will have been complied with in all material respects. (d) The execution, delivery and performance of this Agreement or the Power of Attorney and Custody Agreement and the consummation of the transactions contemplated hereby and thereby do not and will not (i) conflict with or result in a breach of any of the terms and provisions of, or constitute a default (or an event which with notice or lapse of time, or both, would constitute a default) under, or result in the creation or imposition of any lien, charge or encumbrance upon any property or assets of such Selling Securityholder pursuant to, any agreement, instrument, franchise, license or permit to which such Selling Securityholder is a party or by which such Selling Securityholder's properties or assets may be bound, (ii) with respect to each Selling Securityholder which is a corporation, violate or conflict with any provision of the certificate or articles of incorporation or bylaws of such Selling Securityholder, (iii) with respect to each Selling Securityholder which is a trust, violate or conflict with any provision of the declaration of trust of such Selling Securityholder, (iv) with respect to each Selling Securityholder which is a limited liability company, violate or conflict with any provisions of the articles of organization or operating agreement or regulations of such Selling Securityholder, or (v) violate or conflict with any judgment, decree, order, statute, rule or regulation of any court or any public, governmental or regulatory agency or body having jurisdiction over such Selling Securityholder or any of its properties or assets. No License is required for the execution, delivery and performance of this Agreement or the Power of Attorney and Custody Agreement or the consummation of the transactions contemplated hereby or thereby, including the issuance, sale and delivery of the Shares to be issued, sold and delivered by such Selling Securityholder hereunder, except the registration under the Act of the Shares and such consents, approvals, authorizations, orders, registrations, filings, qualifications, licenses and permits as may be required under state securities or Blue Sky laws in connection with the purchase and distribution of the Shares by the Underwriters. (e) The sale of the Shares proposed to be sold by such Selling Securityholder is not prompted by such Selling Securityholder's knowledge of any material non-public information concerning the Company or any of its subsidiaries. (f) At the time of the effectiveness of the Registration Statement or the effectiveness of any post-effective amendment to the Registration Statement, when the Prospectus is first filed with the Commission pursuant to Rule 424(b) of the Regulations, when any supplement to or amendment of the Prospectus is filed with the Commission and at the Closing Date and the Additional Closing Date, if any, all information required by Item 507 of Regulation S-K under the Act with respect to such Selling Securityholder contained in the Registration Statement and the Prospectus and any amendments thereof and supplements thereto complied or will comply in all material respects with Item 507 of Regulation S-K; the Registration Statement and the Prospectus and any amendments thereof and supplements thereto contains and will contain all statements with respect to such Selling Securityholder required to be stated therein in accordance with Item 507 of Regulation S-K and does not or will not contain an untrue statement of a material fact regarding such Selling Securityholder and does not or will not omit to state any material fact regarding such Selling Securityholder required to be stated therein by Item 507 of Regulation S-K or necessary in order to make the statements therein (i) in the case of the Registration Statement, not misleading and (ii) in the case of the Prospectus, in light of the circumstances under which they were made, not misleading. When any related preliminary prospectus was first filed with the Commission (whether filed as part of the registration statement for the registration of the Shares or any amendment thereto or pursuant to Rule 424(a) of the Regulations) and when any amendment thereof or supplement thereto was first filed with the Commission, all information required by Item 507 of Regulation S-K with respect to such Selling Securityholder contained in such preliminary prospectus and any amendments thereof and supplements thereto complied in all material respects with Item 507 of Regulation S-K and such preliminary prospectus and any amendments thereof and supplements thereto did not contain an untrue statement of a material fact regarding such Selling Securityholder and did not omit to state any material fact regarding such Selling Securityholder required to be stated therein by Item 507 of Regulation S-K or necessary in order to make the statements therein in light of the circumstances under which they were made not misleading. (g) Other than as permitted by the Act and the Regulations, such Selling Securityholder has not distributed and will not distribute any preliminary prospectus, the Prospectus or any other offering material in connection with the offering and sale of the Shares. Such Selling Securityholder has not taken and will not take, directly or indirectly, any action designed to cause or result in, or which constitutes or which might reasonably be expected to constitute, the stabilization or manipulation of the price of the shares of Common Stock to facilitate the sale or resale of the Shares. (h) Such Selling Securityholder has duly executed and delivered in the form heretofore furnished to the Representatives, a power of attorney and custody agreement ("Power of Attorney and Custody Agreement") with ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ and ▇▇▇▇ ▇. ▇▇▇▇▇ as the attorney(s)-in-fact (each, an "Attorney-in-Fact") and Key Corp Shareholder Services, Inc. as the custodian (the "Custodian"); the Attorney-in-Fact is authorized to execute and deliver this Agreement and the certificates referred to in Section 6(f), to authorize the delivery of the Shares to be sold hereunder by such Selling Securityholder, to duly endorse (in blank or otherwise) the certificate or certificates representing such Shares, to accept payment therefor, and otherwise to act on behalf of such Selling Securityholder in connection with this Agreement. (i) Certificates in negotiable form, or accompanied by duly executed instruments of transfer or assignment in blank with signatures guaranteed, for all Shares to be sold by such Selling Securityholder hereunder have been placed in custody with the Custodian by or for the benefit of such Selling Securityholder for the purpose of effecting delivery by such Selling Securityholder hereunder. (j) Each certificate signed by such Selling Securityholder and delivered to the Representative or counsel for the Underwriters shall be deemed to be a representation and warranty by such Selling Securityholder to each Underwriter as to the matters covered thereby.
Appears in 2 contracts
Sources: Underwriting Agreement (Rac Financial Group Inc), Underwriting Agreement (Rac Financial Group Inc)
Representations and Warranties of the Selling Securityholders. Each Selling Securityholder, severally and not jointly, represents and warrants toto each Underwriter as of the date hereof, as of the Applicable Time and as of the Closing Date and agrees withwith each Underwriter, the Underwriters thatas follows:
(a1) At the Closing Date, such Selling Securityholder will have good and marketable title to the Secondary Notes to be sold by it, free and clear of all Liens, and full right, power and authority to effect the sale and delivery of the Secondary Notes; and upon the delivery of, against payment for, the Secondary Notes pursuant to this Agreement, and assuming an Underwriter does not have notice of any adverse claim, such Underwriter will acquire good and marketable title thereto, free and clear of all Liens.
(2) Such Selling Securityholder has full right, power and authority to enter into execute and deliver this Agreement and the Power of Attorney to perform its obligations hereunder, and Custody Agreement (as hereinafter defined). All authorizations and consents necessary for the execution and delivery by such Selling Securityholder of this Agreement and the Power of Attorney and Custody Agreement and the performance of the transactions contemplated hereby and thereby have been obtained. Each of this Agreement and the Power of Attorney and Custody Agreement has been duly authorized, executed and delivered by or on behalf of such Selling Securityholder and constitutes a valid and binding agreement of such Selling Securityholder and is enforceable against such Selling Securityholder in accordance with its terms, except, in the case of enforceability, as limited by applicable bankruptcy, insolvency, reorganization, moratorium or other laws now or hereafter in effect relating to or affecting creditors' rights generally or by general principles of equity relating to the availability of remedies and except as rights to indemnity and contribution may be limited by federal or state securities laws or the public policy underlying such lawsSecurityholder.
(b3) Such Selling Securityholder now hasNo consent, and at the time of delivery thereof hereunder will have, (i) good and marketable title to the Shares to be sold by such Selling Securityholder hereunder, free and clear of all security interests, pledges, liens, encumbrances, equities, charges and claims whatsoever, and (ii) full legal right and power, and all authorizations and approvals required by law, except as approval or waiver is required under the Act and the state Blue Sky laws any instrument or by the NASD, to sell, transfer and deliver the Shares to be sold by such Selling Securityholder to the Underwriters hereunder and to make the representations, warranties and agreements made by such Selling Securityholder herein. Upon the delivery of and payment for the Shares to be sold by such Selling Securityholder hereunder, such Selling Securityholder will deliver good and marketable title thereto, free and clear of all security interests, pledges, liens, encumbrances, equities, charges and claims whatsoever.
(c) On the Closing Date and the Additional Closing Date, if any, all stock transfer or other taxes (other than income taxes) which are required to be paid in connection with the sale and transfer of the Shares to be sold by such Selling Securityholder to the several Underwriters hereunder will have been fully paid or provided for by the Company and all laws imposing such taxes will have been complied with in all material respects.
(d) The execution, delivery and performance of this Agreement or the Power of Attorney and Custody Agreement and the consummation of the transactions contemplated hereby and thereby do not and will not (i) conflict with or result in a breach of any of the terms and provisions of, or constitute a default (or an event which with notice or lapse of time, or both, would constitute a default) under, or result in the creation or imposition of any lien, charge or encumbrance upon any property or assets of such Selling Securityholder pursuant to, any agreement, instrument, franchise, license or permit agreement to which such Selling Securityholder is a party or by which such Selling Securityholder's properties or assets may be bound, (ii) with respect to each Selling Securityholder which is a corporation, violate or conflict with any provision of the certificate or articles of incorporation or bylaws of such Selling Securityholder, (iii) with respect to each Selling Securityholder which is a trust, violate or conflict with any provision of the declaration of trust of such Selling Securityholder, (iv) with respect to each Selling Securityholder which is a limited liability company, violate or conflict with any provisions of the articles of organization or operating agreement or regulations of such Selling Securityholder, or (v) violate or conflict with any judgment, decree, order, statute, rule or regulation of any court or any public, governmental or regulatory agency or body having jurisdiction over such Selling Securityholder or any of its properties or assets. No License is required for the execution, delivery and performance of this Agreement or the Power of Attorney and Custody Agreement or the consummation of the transactions contemplated hereby or thereby, including the issuance, sale and delivery of the Shares to be issued, sold and delivered by such Selling Securityholder hereunder, except the registration under the Act of the Shares and such consents, approvals, authorizations, orders, registrations, filings, qualifications, licenses and permits as may be required under state securities or Blue Sky laws bound in connection with the offering, sale or purchase and distribution by the Underwriters of any of the Shares by the Underwriters.
(e) The sale of the Shares proposed to Secondary Notes that may be sold by such Selling Securityholder is not prompted under this Agreement or the consummation by such Selling Securityholder's knowledge Securityholder of any material non-public information concerning of the Company or any of its subsidiariesother transactions contemplated hereby.
(f4) At the time of the effectiveness of the Registration Statement or the effectiveness of any post-effective amendment Such Selling Securityholder will deliver to the Registration Statement, when the Prospectus is first filed with the Commission pursuant to Rule 424(b) of the Regulations, when any supplement you prior to or amendment of the Prospectus is filed with the Commission and at the Closing Date a properly completed and the Additional Closing Date, if any, all information required executed Internal Revenue Service Form W-9 (or other applicable form or statement specified by Item 507 of Regulation S-K under the Act with respect to such Selling Securityholder contained U.S. Treasury Department regulations in the Registration Statement and the Prospectus and any amendments thereof and supplements thereto complied or will comply in all material respects with Item 507 of Regulation S-K; the Registration Statement and the Prospectus and any amendments thereof and supplements thereto contains and will contain all statements with respect to such Selling Securityholder required to be stated therein in accordance with Item 507 of Regulation S-K and does not or will not contain an untrue statement of a material fact regarding such Selling Securityholder and does not or will not omit to state any material fact regarding such Selling Securityholder required to be stated therein by Item 507 of Regulation S-K or necessary in order to make the statements therein (i) in the case of the Registration Statement, not misleading and (ii) in the case of the Prospectus, in light of the circumstances under which they were made, not misleading. When any related preliminary prospectus was first filed with the Commission (whether filed as part of the registration statement for the registration of the Shares or any amendment thereto or pursuant to Rule 424(a) of the Regulations) and when any amendment thereof or supplement thereto was first filed with the Commission, all information required by Item 507 of Regulation S-K with respect to such Selling Securityholder contained in such preliminary prospectus and any amendments thereof and supplements thereto complied in all material respects with Item 507 of Regulation S-K and such preliminary prospectus and any amendments thereof and supplements thereto did not contain an untrue statement of a material fact regarding such Selling Securityholder and did not omit to state any material fact regarding such Selling Securityholder required to be stated therein by Item 507 of Regulation S-K or necessary in order to make the statements therein in light of the circumstances under which they were made not misleadinglieu thereof).
(g6) Other than as permitted by the Act and the Regulations, such Selling Securityholder has not distributed and will not distribute any preliminary prospectus, the Prospectus or any other offering material in connection with the offering and sale of the Shares. Such Selling Securityholder has not taken and until the Closing Date will not take, directly create any derivative or indirectly, any action designed to cause or result in, or which constitutes or which might reasonably be expected to constitute, the stabilization or manipulation of the price of the shares of Common Stock to facilitate the sale or resale of the Shares.
(h) Such Selling Securityholder has duly executed and delivered in the form heretofore furnished security linked to the Representatives, a power of attorney and custody agreement ("Power of Attorney and Custody Agreement") with ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ and ▇▇▇▇ ▇. ▇▇▇▇▇ as the attorney(s)-in-fact (each, an "Attorney-in-Fact") and Key Corp Shareholder Services, Inc. as the custodian (the "Custodian"); the Attorney-in-Fact is authorized to execute and deliver this Agreement and the certificates referred to in Section 6(f), to authorize the delivery of the Shares to be sold hereunder by such Selling Securityholder, to duly endorse (in blank or otherwise) the certificate or certificates representing such Shares, to accept payment therefor, and otherwise to act on behalf of such Selling Securityholder in connection with this AgreementSecondary Notes.
(i) Certificates in negotiable form, or accompanied by duly executed instruments of transfer or assignment in blank with signatures guaranteed, for all Shares to be sold by such Selling Securityholder hereunder have been placed in custody with the Custodian by or for the benefit of such Selling Securityholder for the purpose of effecting delivery by such Selling Securityholder hereunder.
(j) Each certificate signed by such Selling Securityholder and delivered to the Representative or counsel for the Underwriters shall be deemed to be a representation and warranty by such Selling Securityholder to each Underwriter as to the matters covered thereby.
Appears in 1 contract
Sources: Underwriting Agreement (Spire Inc)
Representations and Warranties of the Selling Securityholders. Each Selling Securityholder, severally and not jointly, represents and warrants toto each Underwriter as of the date hereof, the Applicable Time referred to in Section 2(b) hereof and as of the Closing Date referred to in Section 6 hereof, and agrees with, the Underwriters thatwith each Underwriter as follows:
(a) At the Closing Date, such Selling Securityholder will have good and marketable title to the Notes to be sold by it, free and clear of any liens, encumbrances, equities and claims, and full right, power and authority to effect the sale and delivery of the Notes; and upon the delivery of, against payment for, the Notes pursuant to this Agreement, and assuming an Underwriter does not have notice of any adverse claim (within the meaning of the Uniform Commercial Code as in effect in the State of New York), such Underwriter will acquire good and marketable title thereto, free and clear of any liens, encumbrances, equities and claims.
(b) Such Selling Securityholder has full right, power and authority to enter into execute and deliver this Agreement and the Power of Attorney to perform its obligations hereunder, and Custody Agreement (as hereinafter defined). All authorizations and consents necessary for the execution and delivery by such Selling Securityholder of this Agreement and the Power of Attorney and Custody Agreement and the performance of the transactions contemplated hereby and thereby have been obtained. Each of this Agreement and the Power of Attorney and Custody Agreement has been duly authorized, executed and delivered by or on behalf of such Selling Securityholder and constitutes a valid and binding agreement of such Selling Securityholder and is enforceable against such Selling Securityholder in accordance with its terms, except, in the case of enforceability, as limited by applicable bankruptcy, insolvency, reorganization, moratorium or other laws now or hereafter in effect relating to or affecting creditors' rights generally or by general principles of equity relating to the availability of remedies and except as rights to indemnity and contribution may be limited by federal or state securities laws or the public policy underlying such laws.
(b) Such Selling Securityholder now has, and at the time of delivery thereof hereunder will have, (i) good and marketable title to the Shares to be sold by such Selling Securityholder hereunder, free and clear of all security interests, pledges, liens, encumbrances, equities, charges and claims whatsoever, and (ii) full legal right and power, and all authorizations and approvals required by law, except as required under the Act and the state Blue Sky laws or by the NASD, to sell, transfer and deliver the Shares to be sold by such Selling Securityholder to the Underwriters hereunder and to make the representations, warranties and agreements made by such Selling Securityholder herein. Upon the delivery of and payment for the Shares to be sold by such Selling Securityholder hereunder, such Selling Securityholder will deliver good and marketable title thereto, free and clear of all security interests, pledges, liens, encumbrances, equities, charges and claims whatsoeverSecurityholder.
(c) On the Closing Date and the Additional Closing DateNo consent, if any, all stock transfer approval or other taxes (other than income taxes) which are waiver is required to be paid in connection with the sale and transfer of the Shares to be sold by such Selling Securityholder to the several Underwriters hereunder will have been fully paid under any instrument or provided for by the Company and all laws imposing such taxes will have been complied with in all material respects.
(d) The execution, delivery and performance of this Agreement or the Power of Attorney and Custody Agreement and the consummation of the transactions contemplated hereby and thereby do not and will not (i) conflict with or result in a breach of any of the terms and provisions of, or constitute a default (or an event which with notice or lapse of time, or both, would constitute a default) under, or result in the creation or imposition of any lien, charge or encumbrance upon any property or assets of such Selling Securityholder pursuant to, any agreement, instrument, franchise, license or permit agreement to which such Selling Securityholder is a party or by which such Selling Securityholder's properties Securityholder is bound in connection with the offering, sale or assets purchase by the Underwriters of any of the Notes which may be bound, (ii) with respect to each Selling Securityholder which is a corporation, violate or conflict with any provision of the certificate or articles of incorporation or bylaws of such Selling Securityholder, (iii) with respect to each Selling Securityholder which is a trust, violate or conflict with any provision of the declaration of trust of such Selling Securityholder, (iv) with respect to each Selling Securityholder which is a limited liability company, violate or conflict with any provisions of the articles of organization or operating agreement or regulations of such Selling Securityholder, or (v) violate or conflict with any judgment, decree, order, statute, rule or regulation of any court or any public, governmental or regulatory agency or body having jurisdiction over sold by such Selling Securityholder or any of its properties or assets. No License is required for the execution, delivery and performance of under this Agreement or the Power of Attorney and Custody Agreement or the consummation of the transactions contemplated hereby or thereby, including the issuance, sale and delivery of the Shares to be issued, sold and delivered by such Selling Securityholder hereunder, except the registration under the Act of any of the Shares other transactions contemplated hereby.
(d) Each Selling Securityholder will deliver to you prior to or at the Closing Date (as hereinafter defined) a properly completed and such consents, approvals, authorizations, orders, registrations, filings, qualifications, licenses and permits as may be required under state securities executed Internal Revenue Service Form W-9 (or Blue Sky laws other applicable form or statement specified by Treasury Department regulations in connection with the purchase and distribution of the Shares by the Underwriterslieu thereof).
(e) The sale power of the Shares proposed to be sold by attorney, dated March 3, 2014, from such Selling Securityholder is not prompted Securityholders to the Attorneys-in-Fact named therein has been duly authorized, executed and delivered by such Selling Securityholder's knowledge of any material non-public information concerning the Company or any of its subsidiaries.
(f) At the time of the effectiveness of the Registration Statement or the effectiveness of any post-effective amendment to the Registration Statement, when the Prospectus is first filed with the Commission pursuant to Rule 424(b) of the Regulations, when any supplement to or amendment of the Prospectus is filed with the Commission and at the Closing Date and the Additional Closing Date, if any, all information required by Item 507 of Regulation S-K under the Act with respect to such Selling Securityholder contained in the Registration Statement and the Prospectus and any amendments thereof and supplements thereto complied or will comply in all material respects with Item 507 of Regulation S-K; the Registration Statement and the Prospectus and any amendments thereof and supplements thereto contains and will contain all statements with respect to such Selling Securityholder required to be stated therein in accordance with Item 507 of Regulation S-K and does not or will not contain an untrue statement of a material fact regarding such Selling Securityholder and does not or will not omit to state any material fact regarding such Selling Securityholder required to be stated therein by Item 507 of Regulation S-K or necessary in order to make the statements therein (i) in the case of the Registration Statement, not misleading and (ii) in the case of the Prospectus, in light of the circumstances under which they were made, not misleading. When any related preliminary prospectus was first filed with the Commission (whether filed as part of the registration statement for the registration of the Shares or any amendment thereto or pursuant to Rule 424(a) of the Regulations) and when any amendment thereof or supplement thereto was first filed with the Commission, all information required by Item 507 of Regulation S-K with respect to such Selling Securityholder contained in such preliminary prospectus and any amendments thereof and supplements thereto complied in all material respects with Item 507 of Regulation S-K and such preliminary prospectus and any amendments thereof and supplements thereto did not contain an untrue statement of a material fact regarding such Selling Securityholder and did not omit to state any material fact regarding such Selling Securityholder required to be stated therein by Item 507 of Regulation S-K or necessary in order to make the statements therein in light of the circumstances under which they were made not misleading.
(g) Other than as permitted by the Act and the Regulations, such Selling Securityholder has not distributed and will not distribute any preliminary prospectus, the Prospectus or any other offering material in connection with the offering and sale of the Shares. Such Selling Securityholder has not taken and until the Closing Date will not take, directly create any derivative or indirectly, any action designed to cause or result in, or which constitutes or which might reasonably be expected to constitute, the stabilization or manipulation of the price of the shares of Common Stock to facilitate the sale or resale of the Shares.
(h) Such Selling Securityholder has duly executed and delivered in the form heretofore furnished security linked to the Representatives, a power of attorney and custody agreement ("Power of Attorney and Custody Agreement") with ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ and ▇▇▇▇ ▇. ▇▇▇▇▇ as the attorney(s)-in-fact (each, an "Attorney-in-Fact") and Key Corp Shareholder Services, Inc. as the custodian (the "Custodian"); the Attorney-in-Fact is authorized to execute and deliver this Agreement and the certificates referred to in Section 6(f), to authorize the delivery of the Shares to be sold hereunder by such Selling Securityholder, to duly endorse (in blank or otherwise) the certificate or certificates representing such Shares, to accept payment therefor, and otherwise to act on behalf of such Selling Securityholder in connection with this AgreementNotes.
(i) Certificates in negotiable form, or accompanied by duly executed instruments of transfer or assignment in blank with signatures guaranteed, for all Shares to be sold by such Selling Securityholder hereunder have been placed in custody with the Custodian by or for the benefit of such Selling Securityholder for the purpose of effecting delivery by such Selling Securityholder hereunder.
(j) Each certificate signed by such Selling Securityholder and delivered to the Representative or counsel for the Underwriters shall be deemed to be a representation and warranty by such Selling Securityholder to each Underwriter as to the matters covered thereby.
Appears in 1 contract
Sources: Underwriting Agreement (PPL Corp)
Representations and Warranties of the Selling Securityholders. Each of the Selling Securityholder, severally and not jointly, Securityholders represents and warrants to, and agrees with, to the Underwriters thatInitial Purchaser as follows:
(a) Such Selling Securityholder has full power and authority to enter into this Agreement and the Power of Attorney and Custody Agreement (as hereinafter defined). All authorizations and consents necessary for the execution and delivery by such Selling Securityholder of this Agreement and the Power of Attorney and Custody Agreement and the performance of the transactions contemplated hereby and thereby have been obtained. Each of this Agreement and the Power of Attorney and Custody This Agreement has been duly authorized, executed and delivered by or on behalf of such Selling Securityholder and constitutes a valid and binding agreement of such Selling Securityholder and is enforceable against such Selling Securityholder in accordance with its terms, except, in the case of enforceability, as limited by applicable bankruptcy, insolvency, reorganization, moratorium or other laws now or hereafter in effect relating to or affecting creditors' rights generally or by general principles of equity relating to the availability of remedies and except as rights to indemnity and contribution may be limited by federal or state securities laws or the public policy underlying such lawsSecurityholder.
(b) Such Selling Securityholder now has, Upon delivery of and at payment for the time of delivery thereof hereunder will have, (i) good and marketable title to the Shares Securities to be sold by such Selling Securityholder hereunderpursuant to this Agreement, good and clear title to such Securities will pass to the Initial Purchaser, free and clear of all security interests, pledgesrestrictions on transfer, liens, encumbrances, equities, charges and claims whatsoever, and (ii) full legal right and power, and all authorizations and approvals required by law, except as required under the Act and the state Blue Sky laws or by the NASD, to sell, transfer and deliver the Shares to be sold by such Selling Securityholder to the Underwriters hereunder and to make the representations, warranties and agreements made by such Selling Securityholder herein. Upon the delivery of and payment for the Shares to be sold by such Selling Securityholder hereunder, such Selling Securityholder will deliver good and marketable title thereto, free and clear of all security interests, pledges, liens, encumbrances, equities, charges equities and claims whatsoever.
(c) On the Closing Date and the Additional Closing Date, if any, all stock transfer or other taxes (other than income taxes) which are required to be paid in connection with the sale and transfer of the Shares to be sold by such Selling Securityholder to the several Underwriters hereunder will have been fully paid or provided for by the Company and all laws imposing such taxes will have been complied with in all material respects.
(d) The execution, delivery and performance of this Agreement or by such Selling Shareholder, the Power of Attorney and Custody Agreement compliance by such Selling Shareholder with all the provisions hereof and the consummation of the transactions contemplated hereby and thereby do not and will not (i) require any consent, approval, authorization or other order of, or qualification with, any court or governmental body or agency (except such as may be required under the securities or Blue Sky laws or the various states), (ii) conflict with or result in constitute a breach of any of the terms and or provisions of, or constitute a default (or an event which with notice or lapse of time, or both, would constitute a default) under, or result in the creation or imposition of any lien, charge or encumbrance upon any property or assets organizational documents of such Selling Securityholder, if such Selling Securityholder pursuant tois not an individual, or any indenture, loan agreement, instrumentmortgage, franchise, license lease or permit other agreement or instrument to which such Selling Securityholder is a party or by which such Selling Securityholder's properties Securityholder or assets may be bound, (ii) with respect to each Selling Securityholder which is a corporation, violate or conflict with any provision of the certificate or articles of incorporation or bylaws property of such Selling Securityholder, Securityholder is bound or (iii) with respect to each Selling Securityholder which is a trust, violate or conflict with any provision of the declaration of trust of such Selling Securityholder, (iv) with respect to each Selling Securityholder which is a limited liability company, violate or conflict with any provisions of the articles of organization or operating agreement or regulations of such Selling Securityholder, or (v) violate or conflict with any judgmentapplicable law or any rule, decreeregulation, orderjudgement, statute, rule order or regulation decree of any court of any governmental body or any public, governmental or regulatory agency or body having jurisdiction over such Selling Securityholder or any property of its properties such Selling Securityholder.
(d) Neither the Selling Securityholders nor anyone acting on their behalf has offered or assets. No License is required for the execution, delivery and performance of this Agreement or the Power of Attorney and Custody Agreement or the consummation sold any of the transactions contemplated hereby Securities by means of any "general solicitation" or thereby, including the issuance, sale and delivery of the Shares to be issued, sold and delivered by "general advertising," as such Selling Securityholder hereunder, except the registration terms are defined in Regulation D under the Act of the Shares and such consents, approvals, authorizations, orders, registrations, filings, qualifications, licenses and permits as may be required under state securities or Blue Sky laws in connection with the purchase and distribution of the Shares by the UnderwritersSecurities Act.
(e) The sale Neither the Selling Securityholders nor anyone acting on their behalf has offered any of the Shares proposed Securities to be sold by such Selling Securityholder is not prompted by such Selling Securityholder's knowledge of any material non-public information concerning person other than the Company or any of its subsidiariesInitial Purchaser.
(f) At the time of the effectiveness of the Registration Statement or the effectiveness of any post-effective amendment to the Registration Statement, when the Prospectus is first filed with the Commission pursuant to Rule 424(b) of the Regulations, when any supplement to or amendment of the Prospectus is filed with the Commission and at the Closing Date and the Additional Closing Date, if any, all information required by Item 507 of Regulation S-K under the Act with respect to such Selling Securityholder contained in the Registration Statement and the Prospectus and any amendments thereof and supplements thereto complied or will comply in all material respects with Item 507 of Regulation S-K; the Registration Statement and the Prospectus and any amendments thereof and supplements thereto contains and will contain all statements with respect to such Selling Securityholder required to be stated therein in accordance with Item 507 of Regulation S-K and does not or will not contain an untrue statement of a material fact regarding such Selling Securityholder and does not or will not omit to state any material fact regarding such Selling Securityholder required to be stated therein by Item 507 of Regulation S-K or necessary in order to make the statements therein (i) in the case of the Registration Statement, not misleading and (ii) in the case of the Prospectus, in light of the circumstances under which they were made, not misleading. When any related preliminary prospectus was first filed with the Commission (whether filed as part of the registration statement for the registration of the Shares or any amendment thereto or pursuant to Rule 424(a) of the Regulations) and when any amendment thereof or supplement thereto was first filed with the Commission, all information required by Item 507 of Regulation S-K with respect to such Selling Securityholder contained in such preliminary prospectus and any amendments thereof and supplements thereto complied in all material respects with Item 507 of Regulation S-K and such preliminary prospectus and any amendments thereof and supplements thereto did not contain an untrue statement of a material fact regarding such Selling Securityholder and did not omit to state any material fact regarding such Selling Securityholder required to be stated therein by Item 507 of Regulation S-K or necessary in order to make the statements therein in light of the circumstances under which they were made not misleading.
(g) Other than as permitted by the Act and the Regulations, such Selling Securityholder has not distributed and will not distribute any preliminary prospectus, the Prospectus or any other offering material in connection with the offering and sale of the Shares. Such Selling Securityholder has not taken and will not take, directly or indirectly, any action designed to cause or result in, or which constitutes or which might reasonably be expected to constitute, the stabilization or manipulation of the price of the shares of Common Stock to facilitate the sale or resale of the Shares.
(h) Such Selling Securityholder has duly executed and delivered in the form heretofore furnished to the Representatives, a power of attorney and custody agreement ("Power of Attorney and Custody Agreement") with ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ and ▇▇▇▇ ▇. ▇▇▇▇▇ as the attorney(s)-in-fact (each, an "Attorney-in-Fact") and Key Corp Shareholder Services, Inc. as the custodian (the "Custodian"); the Attorney-in-Fact is authorized to execute and deliver this Agreement and the certificates referred to in Section 6(f), to authorize the delivery of the Shares to be sold hereunder by such Selling Securityholder, to duly endorse (in blank or otherwise) the certificate or certificates representing such Shares, to accept payment therefor, and otherwise to act on behalf of such Selling Securityholder in connection with this Agreement.
(i) Certificates in negotiable form, or accompanied by duly executed instruments of transfer or assignment in blank with signatures guaranteed, for all Shares to be sold by such Selling Securityholder hereunder have been placed in custody with the Custodian by or for the benefit of such Selling Securityholder for the purpose of effecting delivery by such Selling Securityholder hereunder.
(j) Each certificate signed by such Selling Securityholder and delivered to the Representative or counsel for the Underwriters shall be deemed to be a representation and warranty by such Selling Securityholder to each Underwriter as to the matters covered thereby.
Appears in 1 contract
Representations and Warranties of the Selling Securityholders. Each Selling Securityholder, severally and not jointly, represents and warrants toto each Underwriter as of the date hereof, as of the Applicable Time and as of the Closing Date and agrees withwith each Underwriter, the Underwriters thatas follows:
(a1) At the Closing Date, such Selling Securityholder will have good and marketable title to the Secondary Notes to be sold by it, free and clear of all Liens, and full right, power and authority to effect the sale and delivery of the Secondary Notes; and upon the delivery of, against payment for, the Secondary Notes pursuant to this Agreement, and assuming an Underwriter does not have notice of any adverse claim, such Underwriter will acquire good and marketable title thereto, free and clear of all Liens.
(2) Such Selling Securityholder has full right, power and authority to enter into execute and deliver this Agreement and the Power of Attorney to perform its obligations hereunder, and Custody Agreement (as hereinafter defined). All authorizations and consents necessary for the execution and delivery by such Selling Securityholder of this Agreement and the Power of Attorney and Custody Agreement and the performance of the transactions contemplated hereby and thereby have been obtained. Each of this Agreement and the Power of Attorney and Custody Agreement has been duly authorized, executed and delivered by or on behalf of such Selling Securityholder and constitutes a valid and binding agreement of such Selling Securityholder and is enforceable against such Selling Securityholder in accordance with its terms, except, in the case of enforceability, as limited by applicable bankruptcy, insolvency, reorganization, moratorium or other laws now or hereafter in effect relating to or affecting creditors' rights generally or by general principles of equity relating to the availability of remedies and except as rights to indemnity and contribution may be limited by federal or state securities laws or the public policy underlying such lawsSecurityholder.
(b3) Such Selling Securityholder now hasNo consent, and at the time of delivery thereof hereunder will have, (i) good and marketable title to the Shares to be sold by such Selling Securityholder hereunder, free and clear of all security interests, pledges, liens, encumbrances, equities, charges and claims whatsoever, and (ii) full legal right and power, and all authorizations and approvals required by law, except as approval or waiver is required under the Act and the state Blue Sky laws any instrument or by the NASD, to sell, transfer and deliver the Shares to be sold by such Selling Securityholder to the Underwriters hereunder and to make the representations, warranties and agreements made by such Selling Securityholder herein. Upon the delivery of and payment for the Shares to be sold by such Selling Securityholder hereunder, such Selling Securityholder will deliver good and marketable title thereto, free and clear of all security interests, pledges, liens, encumbrances, equities, charges and claims whatsoever.
(c) On the Closing Date and the Additional Closing Date, if any, all stock transfer or other taxes (other than income taxes) which are required to be paid in connection with the sale and transfer of the Shares to be sold by such Selling Securityholder to the several Underwriters hereunder will have been fully paid or provided for by the Company and all laws imposing such taxes will have been complied with in all material respects.
(d) The execution, delivery and performance of this Agreement or the Power of Attorney and Custody Agreement and the consummation of the transactions contemplated hereby and thereby do not and will not (i) conflict with or result in a breach of any of the terms and provisions of, or constitute a default (or an event which with notice or lapse of time, or both, would constitute a default) under, or result in the creation or imposition of any lien, charge or encumbrance upon any property or assets of such Selling Securityholder pursuant to, any agreement, instrument, franchise, license or permit agreement to which such Selling Securityholder is a party or by which such Selling Securityholder's properties or assets may be bound, (ii) with respect to each Selling Securityholder which is a corporation, violate or conflict with any provision of the certificate or articles of incorporation or bylaws of such Selling Securityholder, (iii) with respect to each Selling Securityholder which is a trust, violate or conflict with any provision of the declaration of trust of such Selling Securityholder, (iv) with respect to each Selling Securityholder which is a limited liability company, violate or conflict with any provisions of the articles of organization or operating agreement or regulations of such Selling Securityholder, or (v) violate or conflict with any judgment, decree, order, statute, rule or regulation of any court or any public, governmental or regulatory agency or body having jurisdiction over such Selling Securityholder or any of its properties or assets. No License is required for the execution, delivery and performance of this Agreement or the Power of Attorney and Custody Agreement or the consummation of the transactions contemplated hereby or thereby, including the issuance, sale and delivery of the Shares to be issued, sold and delivered by such Selling Securityholder hereunder, except the registration under the Act of the Shares and such consents, approvals, authorizations, orders, registrations, filings, qualifications, licenses and permits as may be required under state securities or Blue Sky laws bound in connection with the offering, sale or purchase and distribution by the Underwriters of any of the Shares by the Underwriters.
(e) The sale of the Shares proposed to Secondary Notes that may be sold by such Selling Securityholder is not prompted under this Agreement or the consummation by such Selling Securityholder's knowledge Securityholder of any material non-public information concerning of the Company or any of its subsidiariesother transactions contemplated hereby.
(f4) At the time of the effectiveness of the Registration Statement or the effectiveness of any post-effective amendment Such Selling Securityholder will deliver to the Registration Statement, when the Prospectus is first filed with the Commission pursuant to Rule 424(b) of the Regulations, when any supplement you prior to or amendment of the Prospectus is filed with the Commission and at the Closing Date a properly completed and the Additional Closing Date, if any, all information required executed Internal Revenue Service Form W-9 (or other applicable form or statement specified by Item 507 of Regulation S-K under the Act with respect to such Selling Securityholder contained U.S. Treasury Department regulations in the Registration Statement and the Prospectus and any amendments thereof and supplements thereto complied or will comply in all material respects with Item 507 of Regulation S-K; the Registration Statement and the Prospectus and any amendments thereof and supplements thereto contains and will contain all statements with respect to such Selling Securityholder required to be stated therein in accordance with Item 507 of Regulation S-K and does not or will not contain an untrue statement of a material fact regarding such Selling Securityholder and does not or will not omit to state any material fact regarding such Selling Securityholder required to be stated therein by Item 507 of Regulation S-K or necessary in order to make the statements therein (i) in the case of the Registration Statement, not misleading and (ii) in the case of the Prospectus, in light of the circumstances under which they were made, not misleading. When any related preliminary prospectus was first filed with the Commission (whether filed as part of the registration statement for the registration of the Shares or any amendment thereto or pursuant to Rule 424(a) of the Regulations) and when any amendment thereof or supplement thereto was first filed with the Commission, all information required by Item 507 of Regulation S-K with respect to such Selling Securityholder contained in such preliminary prospectus and any amendments thereof and supplements thereto complied in all material respects with Item 507 of Regulation S-K and such preliminary prospectus and any amendments thereof and supplements thereto did not contain an untrue statement of a material fact regarding such Selling Securityholder and did not omit to state any material fact regarding such Selling Securityholder required to be stated therein by Item 507 of Regulation S-K or necessary in order to make the statements therein in light of the circumstances under which they were made not misleadinglieu thereof).
(g5) Other than as permitted by the Act and the Regulations, such Selling Securityholder has not distributed and will not distribute any preliminary prospectus, the Prospectus or any other offering material in connection with the offering and sale of the Shares. Such Selling Securityholder has not taken and until the Closing Date will not take, directly create any derivative or indirectly, any action designed to cause or result in, or which constitutes or which might reasonably be expected to constitute, the stabilization or manipulation of the price of the shares of Common Stock to facilitate the sale or resale of the Shares.
(h) Such Selling Securityholder has duly executed and delivered in the form heretofore furnished security linked to the Representatives, a power of attorney and custody agreement ("Power of Attorney and Custody Agreement") with ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ and ▇▇▇▇ ▇. ▇▇▇▇▇ as the attorney(s)-in-fact (each, an "Attorney-in-Fact") and Key Corp Shareholder Services, Inc. as the custodian (the "Custodian"); the Attorney-in-Fact is authorized to execute and deliver this Agreement and the certificates referred to in Section 6(f), to authorize the delivery of the Shares to be sold hereunder by such Selling Securityholder, to duly endorse (in blank or otherwise) the certificate or certificates representing such Shares, to accept payment therefor, and otherwise to act on behalf of such Selling Securityholder in connection with this AgreementSecondary Notes.
(i) Certificates in negotiable form, or accompanied by duly executed instruments of transfer or assignment in blank with signatures guaranteed, for all Shares to be sold by such Selling Securityholder hereunder have been placed in custody with the Custodian by or for the benefit of such Selling Securityholder for the purpose of effecting delivery by such Selling Securityholder hereunder.
(j) Each certificate signed by such Selling Securityholder and delivered to the Representative or counsel for the Underwriters shall be deemed to be a representation and warranty by such Selling Securityholder to each Underwriter as to the matters covered thereby.
Appears in 1 contract
Sources: Underwriting Agreement (Spire Inc)
Representations and Warranties of the Selling Securityholders. Each ------------------------------------------------------------- Selling Securityholder, severally not jointly and not jointlyonly with respect to itself, represents and warrants to, and agrees with, each of the several Underwriters that:
(a) Such Selling Securityholder has full power and authority to enter into this Agreement and to sell, assign, transfer and deliver to the Power of Attorney and Custody Agreement (as hereinafter defined). All authorizations and consents necessary for Underwriters the execution and delivery Securities to be sold by such Selling Securityholder hereunder in accordance with the terms of this Agreement Agreement, and the Power of Attorney and Custody Agreement and the performance of the transactions contemplated hereby and thereby have been obtained. Each of this Agreement and the Power of Attorney and Custody Agreement has been duly authorized, executed and delivered by or on behalf of such Selling Securityholder and constitutes a valid and binding agreement of such Selling Securityholder and is enforceable against such Selling Securityholder in accordance with its terms, except, in the case of enforceability, as limited by applicable bankruptcy, insolvency, reorganization, moratorium or other laws now or hereafter in effect relating to or affecting creditors' rights generally or by general principles of equity relating to the availability of remedies and except as rights to indemnity and contribution may be limited by federal or state securities laws or the public policy underlying such lawsSecurityholder.
(b) Such Selling Securityholder now hashas duly executed and delivered a power of attorney and custody agreement (with respect to such Selling Securityholder, the "Power-of-Attorney" and at the time of delivery thereof hereunder will have"Custody Agreement", (i) good and marketable title respectively), each in the form heretofore delivered to the Shares Representatives, appointing ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, III or ▇▇▇▇▇ ▇. ▇▇▇▇▇ as such Selling Securityholder's attorney-in-fact (the "Attorney-in-Fact") with authority to execute, deliver and perform this Agreement on behalf of such Selling Securityholder and appointing American Stock Transfer & Trust Company as custodian thereunder (the "Custodian"). Certificates in negotiable form, endorsed in blank or accompanied by blank stock powers duly executed, with signatures appropriately guaranteed, representing the Securities to be sold by such Selling Securityholder hereunder have been deposited with the Custodian pursuant to the Custody Agreement for the purpose of delivery pursuant to this Agreement. Such Selling Securityholder has full power to enter into the Custody Agreement and the Power-of-Attorney and to perform its obligations under the Custody Agreement. The Custody Agreement and the Power-of-Attorney have been duly executed and delivered by such Selling Securityholder and, assuming due authorization, execution and delivery by the Custodian, are the legal, valid, binding and enforceable instruments of such Selling Securityholder. Such Selling Securityholder agrees that each of the Securities represented by the certificates on deposit with the Custodian is subject to the interests of the Underwriters hereunder, that the arrangements made for such custody, the appointment of the Attorney-in-Fact and the right, power and authority of the Attorney-in-Fact to execute and deliver this Agreement, to agree on the price at which the Securities (including such Selling Securityholder's Securities) are to be sold to the Underwriters, and to carry out the terms of this Agreement, are to that extent irrevocable and that the obligations of such Selling Securityholder hereunder shall not be terminated, except as provided in this Agreement or the Custody Agreement, by any act of such Selling Securityholder, by operation of law or otherwise, whether in the case of any individual Selling Securityholder by the death or incapacity of such Selling Securityholder, in the case of a trust or estate by the death of the trustee or trustees or the executor or executors or the termination of such trust or estate, or in the case of a corporate or partnership Selling Securityholder by its liquidation or dissolution or by the occurrence of any other event. If any individual Selling Securityholder, trustee or executor should die or become incapacitated or any such trust should be terminated, or if any corporate or partnership Selling Securityholder shall liquidate or dissolve, or if any other event should occur, before the delivery of such Securities hereunder, the certificates for such Securities deposited with the Custodian shall be delivered by the Custodian in accordance with the respective terms and conditions of this Agreement as if such death, incapacity, termination, liquidation or dissolution or other event had not occurred, regardless of whether or not the Custodian or the Attorney-in-Fact shall have received notice thereof.
(c) Such Selling Securityholder is the lawful owner of the Securities to be sold by such Selling Securityholder hereunder and upon sale and delivery of, and payment for, such Securities, as provided herein, such Selling Securityholder will convey good and marketable title to such Securities, free and clear of all any security interests, pledges, liens, encumbrances, equities, charges and claims whatsoever, and (ii) full legal right and power, and all authorizations and approvals required by law, except as required under the Act and the state Blue Sky laws or by the NASD, to sell, transfer and deliver the Shares to be sold by such Selling Securityholder to the Underwriters hereunder and to make the representations, warranties and agreements made by such Selling Securityholder herein. Upon the delivery of and payment for the Shares to be sold by such Selling Securityholder hereunder, such Selling Securityholder will deliver good and marketable title thereto, free and clear of all security interests, pledges, liens, encumbrances, equities, charges and claims whatsoever.
(c) On the Closing Date and the Additional Closing Date, if any, all stock transfer or other taxes (other than income taxes) which are required to be paid in connection with the sale and transfer of the Shares to be sold by such Selling Securityholder to the several Underwriters hereunder will have been fully paid or provided for by the Company and all laws imposing such taxes will have been complied with in all material respectsdefects.
(d) The execution, delivery and performance of this Agreement or the Power of Attorney and Custody Agreement and the consummation of the transactions contemplated hereby and thereby do not and will not (i) conflict with or result in a breach of any of the terms and provisions of, or constitute a default (or an event which with notice or lapse of time, or both, would constitute a default) under, or result in the creation or imposition of any lien, charge or encumbrance upon any property or assets of such Selling Securityholder pursuant to, any agreement, instrument, franchise, license or permit to which such Selling Securityholder is a party or by which such Selling Securityholder's properties or assets may be bound, (ii) with respect to each Selling Securityholder which is a corporation, violate or conflict with any provision of the certificate or articles of incorporation or bylaws of such Selling Securityholder, (iii) with respect to each Selling Securityholder which is a trust, violate or conflict with any provision of the declaration of trust of such Selling Securityholder, (iv) with respect to each Selling Securityholder which is a limited liability company, violate or conflict with any provisions of the articles of organization or operating agreement or regulations of such Selling Securityholder, or (v) violate or conflict with any judgment, decree, order, statute, rule or regulation of any court or any public, governmental or regulatory agency or body having jurisdiction over such Selling Securityholder or any of its properties or assets. No License is required for the execution, delivery and performance of this Agreement or the Power of Attorney and Custody Agreement or the consummation of the transactions contemplated hereby or thereby, including the issuance, sale and delivery of the Shares to be issued, sold and delivered by such Selling Securityholder hereunder, except the registration under the Act of the Shares and such consents, approvals, authorizations, orders, registrations, filings, qualifications, licenses and permits as may be required under state securities or Blue Sky laws in connection with the purchase and distribution of the Shares by the Underwriters.
(e) The sale of the Shares proposed to be sold by such Selling Securityholder is not prompted by such Selling Securityholder's knowledge of any material non-public information concerning the Company or any of its subsidiaries.
(f) At the time of the effectiveness of the Registration Statement or the effectiveness of any post-effective amendment to the Registration Statement, when the Prospectus is first filed with the Commission pursuant to Rule 424(b) of the Regulations, when any supplement to or amendment of the Prospectus is filed with the Commission and at the Closing Date and the Additional Closing Date, if any, all information required by Item 507 of Regulation S-K under the Act with respect to such Selling Securityholder contained in the Registration Statement and the Prospectus and any amendments thereof and supplements thereto complied or will comply in all material respects with Item 507 of Regulation S-K; the Registration Statement and the Prospectus and any amendments thereof and supplements thereto contains and will contain all statements with respect to such Selling Securityholder required to be stated therein in accordance with Item 507 of Regulation S-K and does not or will not contain an untrue statement of a material fact regarding such Selling Securityholder and does not or will not omit to state any material fact regarding such Selling Securityholder required to be stated therein by Item 507 of Regulation S-K or necessary in order to make the statements therein (i) in the case of the Registration Statement, not misleading and (ii) in the case of the Prospectus, in light of the circumstances under which they were made, not misleading. When any related preliminary prospectus was first filed with the Commission (whether filed as part of the registration statement for the registration of the Shares or any amendment thereto or pursuant to Rule 424(a) of the Regulations) and when any amendment thereof or supplement thereto was first filed with the Commission, all information required by Item 507 of Regulation S-K with respect to such Selling Securityholder contained in such preliminary prospectus and any amendments thereof and supplements thereto complied in all material respects with Item 507 of Regulation S-K and such preliminary prospectus and any amendments thereof and supplements thereto did not contain an untrue statement of a material fact regarding such Selling Securityholder and did not omit to state any material fact regarding such Selling Securityholder required to be stated therein by Item 507 of Regulation S-K or necessary in order to make the statements therein in light of the circumstances under which they were made not misleading.
(g) Other than as permitted by the Act and the Regulations, such Selling Securityholder has not distributed and will not distribute any preliminary prospectus, the Prospectus or any other offering material in connection with the offering and sale of the Shares. Such Selling Securityholder has not taken and will not takenot, directly or indirectly, (i) taken any action designed to cause or result in, or which constitutes that has constituted or which might reasonably be expected to constitute, the stabilization or manipulation of the price of any security of the shares of Common Stock Company to facilitate the sale or resale of the SharesSecurities or (ii) since the filing of the Registration Statement (A) sold, bid for, purchased, or paid anyone any compensation for soliciting purchases of, the Securities or (B) paid or agreed to pay to any person any compensation for soliciting another to purchase any other securities of the Company (except for the sale of Securities by the Selling Securityholders under this Agreement).
(e) Such Selling Securityholder has not distributed and, prior to the later of (i) the Firm Closing Date and (ii) the completion of the distribution of the Securities, will not distribute any offering material in connection with the offering and sale of the Securities other than the Registration Statement or any amendment thereto, any Preliminary Prospectus or the Prospectus or any amendment or supplement thereto, or other materials, if any, permitted by the Act.
(f) In order to document the Underwriters' compliance with the reporting and withholding provisions of the Internal Revenue Code of 1986, as amended, with respect to the transactions herein contemplated, each Selling Securityholder agrees to deliver to you prior to or on the Firm Closing Date, as hereinafter defined, a properly completed and executed United States Treasury Department Form W-8 or W-9 (or other applicable form of statement specified by Treasury Department regulations in lieu thereof).
(g) The sale by such Selling Securityholder of Securities pursuant hereto is not prompted by any adverse information concerning the Company that is not set forth in the Registration Statement or the Prospectus (or, if the Prospectus is not in existence, the most recent Preliminary Prospectus).
(h) Such The sale of the Securities to the Underwriters by such Selling Securityholder has duly executed and delivered in pursuant to this Agreement, the form heretofore furnished to compliance by such Selling Securityholder with the Representatives, a power other provisions of attorney and custody agreement ("Power of Attorney and Custody Agreement") with ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ and ▇▇▇▇ ▇. ▇▇▇▇▇ as the attorney(s)-in-fact (each, an "Attorney-in-Fact") and Key Corp Shareholder Services, Inc. as the custodian (the "Custodian"); the Attorney-in-Fact is authorized to execute and deliver this Agreement and the certificates referred to in Section 6(f), to authorize Custody Agreement and the delivery consummation of the Shares other transactions herein contemplated do not (i) require the consent, approval, authorization, registration or qualification of or with any governmental authority, except such as have been obtained, such as may be required under state securities or blue sky laws and, if the registration statement filed with respect to the Securities (as amended) is not effective under the Act as of the time of execution hereof, such as may be sold hereunder required (and shall be obtained as provided in this Agreement) under the Act, or (ii) conflict with or result in a breach or violation of any of the terms and provisions of, or constitute a default under, any indenture, mortgage, deed of trust, lease or other agreement or instrument to which such Selling Securityholder is a party or by which such Selling Securityholder or any of such Selling Securityholder's properties are bound, or any statute or any judgment, decree, order, rule or regulation of any court or other governmental authority or any arbitrator applicable to duly endorse (in blank or otherwise) the certificate or certificates representing such Shares, to accept payment therefor, and otherwise to act on behalf of such Selling Securityholder in connection with this AgreementSecurityholder.
(i) Certificates To the extent that any statements or omissions are made in negotiable formthe Registration Statement, any Preliminary Prospectus, the Prospectus or accompanied by duly executed instruments of transfer any amendment or assignment supplement thereto in blank reliance upon and in conformity with signatures guaranteed, for all Shares written information furnished to be sold the Company by such Selling Securityholder hereunder have been placed in custody specifically for use therein, such Preliminary Prospectus did, and the Registration Statement and the Prospectus and any amendments or supplements thereto, when they become effective or are filed with the Custodian by Commission, as the case may be, will conform in all material respects to the requirements of the Act and the respective rules and regulations of the Commission thereunder and will not contain any untrue statement of a material fact or for omit to state any material fact required to be stated therein or necessary to make the benefit statements therein in the light of the circumstances under which they are made, not misleading. Such Selling Securityholder has reviewed the Prospectus (or, if the Prospectus is not in existence, the most recent Preliminary Prospectus) and the Registration Statement, and the information regarding such Selling Securityholder for set forth therein under the purpose of effecting delivery by such caption "Principal and Selling Securityholder hereunderStockholders" is complete and accurate.
(j) Each certificate signed by If such Selling Securityholder and delivered to is a director of the Representative or counsel for the Underwriters shall be deemed to be a representation and warranty by Company, such Selling Securityholder has reviewed the Registration Statement, any Preliminary Prospectus, the Prospectus or any amendment or supplement thereto and such Preliminary Prospectus did, and the Registration Statement and the Prospectus and any amendments or supplements thereto, when they become effective or are filed with the Commission, as the case may be, will not contain any untrue statement of a material fact or omit to each Underwriter as state any material fact required to be stated therein or necessary to make the matters covered therebystatements therein, in the light of the circumstances under which they are made, not misleading.
Appears in 1 contract
Sources: Underwriting Agreement (Jetfax Inc)
Representations and Warranties of the Selling Securityholders. (a) Each of the Selling Securityholder, Securityholders severally and not jointly, represents and warrants to, and agrees with, the several Underwriters that:
(ai) Such Selling Securityholder has has, and on the First Closing Date hereinafter mentioned will have, good and marketable title to the Stock proposed to be sold by such Selling Securityholder hereunder on such Closing Date and full right, power and authority to enter into this Agreement and to sell, assign, transfer and deliver such Common Shares hereunder, free and clear of all voting trust arrangements, liens, encumbrances, equities, security interests, restrictions and claims whatsoever; and upon delivery of and payment for such Stock hereunder, the Underwriters will acquire good and valid title thereto, free and clear of all liens, encumbrances, equities, claims, restrictions, security interests, voting trusts or other defects of title whatsoever, provided that the Underwriters are purchasing such Stock in good faith and without notice of any adverse claim.
(ii) Such Selling Securityholder has executed and delivered a Power of Attorney and a Custody Agreement (hereinafter collectively referred to as hereinafter defined). All authorizations the "Securityholders Agreements") and consents necessary in connection herewith such Selling Securityholder further represents, warrants and agrees that such Selling Securityholder has deposited in custody, under the Securityholders Agreement, with the agent named therein (the "Agent") as custodian, certificates in negotiable form for the execution and Stock to be sold hereunder by such Selling Securityholder, for the purpose of further delivery pursuant to this Agreement. Such Selling Securityholder agrees that the Stock to be sold by such Selling Securityholder on deposit with the Agent are subject to the interests of the Company and the Underwriters, that the arrangements made for such custody are to that extent irrevocable, and that the obligations of such Selling Securityholder hereunder shall not be terminated, except as provided in this Agreement or in the Securityholders Agreement, by any act of such Selling Securityholder, by operation of law, by the death or incapacity of such Selling Securityholder or by the occurrence of any other event. If the Selling Securityholder should die or become incapacitated, or if any other event should occur, before the delivery of the Stock hereunder, the documents evidencing Stock then on deposit with the Agent shall be delivered by the Agent in accordance with the terms and conditions of this Agreement and as if such death, incapacity or other event had not occurred, regardless of whether or not the Power of Attorney and Custody Agent shall have received notice thereof. This Agreement and the performance of the transactions contemplated hereby and thereby Securityholders Agreement have been obtained. Each of this Agreement and the Power of Attorney and Custody Agreement has been duly authorized, executed and delivered by or on behalf of such Selling Securityholder and constitutes a valid and binding agreement the form of such Selling Securityholder and is enforceable against such Selling Securityholder in accordance with its terms, except, in the case of enforceability, as limited by applicable bankruptcy, insolvency, reorganization, moratorium or other laws now or hereafter in effect relating Securityholders Agreements has been delivered to or affecting creditors' rights generally or by general principles of equity relating to the availability of remedies and except as rights to indemnity and contribution may be limited by federal or state securities laws or the public policy underlying such lawsyou.
(b) Such Selling Securityholder now has, and at the time of delivery thereof hereunder will have, (i) good and marketable title to the Shares to be sold by such Selling Securityholder hereunder, free and clear of all security interests, pledges, liens, encumbrances, equities, charges and claims whatsoever, and (ii) full legal right and power, and all authorizations and approvals required by law, except as required under the Act and the state Blue Sky laws or by the NASD, to sell, transfer and deliver the Shares to be sold by such Selling Securityholder to the Underwriters hereunder and to make the representations, warranties and agreements made by such Selling Securityholder herein. Upon the delivery of and payment for the Shares to be sold by such Selling Securityholder hereunder, such Selling Securityholder will deliver good and marketable title thereto, free and clear of all security interests, pledges, liens, encumbrances, equities, charges and claims whatsoever.
(c) On the Closing Date and the Additional Closing Date, if any, all stock transfer or other taxes (other than income taxes) which are required to be paid in connection with the sale and transfer of the Shares to be sold by such Selling Securityholder to the several Underwriters hereunder will have been fully paid or provided for by the Company and all laws imposing such taxes will have been complied with in all material respects.
(diii) The execution, delivery and performance of this Agreement or and the Power of Attorney and Custody Agreement Securityholders Agreements and the consummation of the transactions contemplated hereby and thereby do not and by the Securityholders Agreements will not (i) conflict with or result in a breach or violation by such Selling Securityholder of any of the terms and or provisions of, or constitute a default (or an event which with notice or lapse of time, or both, would constitute a default) under, or result in the creation or imposition of any lien, charge or encumbrance upon any property or assets of by such Selling Securityholder pursuant tounder, any indenture, mortgage, deed of trust, trust (constructive or other), loan agreement, instrumentlease, franchise, license or permit other agreement or instrument to which such Selling Securityholder is a party or by which such Selling Securityholder's Securityholder or any of its properties or assets may be is bound, (ii) with respect to each Selling Securityholder which is a corporation, violate or conflict with any provision of the certificate or articles of incorporation or bylaws of such Selling Securityholder, (iii) with respect to each Selling Securityholder which is a trust, violate or conflict with any provision of the declaration of trust of such Selling Securityholder, (iv) with respect to each Selling Securityholder which is a limited liability company, violate or conflict with any provisions of the articles of organization or operating agreement or regulations of such Selling Securityholderstatute, or (v) violate or conflict with any judgment, decree, order, statute, rule or regulation of any court or any public, governmental or regulatory agency or body having jurisdiction over applicable to such Selling Securityholder or any of its properties properties, in which such breach, violation or assets. No License is required for default would adversely affect the execution, delivery and performance of ability to such Selling Securityholder to perform its obligations pursuant to this Agreement or the Power of Attorney and Custody Agreement Securityholders Agreements or the consummation of the transactions contemplated hereby or thereby, including the issuance, sale and delivery of the Shares to be issued, sold and delivered by could otherwise have a material adverse effect on such Selling Securityholder hereunder, except the registration under the Act of the Shares and such consents, approvals, authorizations, orders, registrations, filings, qualifications, licenses and permits as may be required under state securities or Blue Sky laws in connection with the purchase and distribution of the Shares by the UnderwritersSecurityholder.
(eiv) The sale of the Shares proposed to be sold by such Selling Securityholder is not prompted by such Selling Securityholder's knowledge of any material non-public information concerning the Company or any of its subsidiaries.
(f) At the time of the effectiveness of the Registration Statement or the effectiveness of any post-effective amendment to the Registration Statement, when the Prospectus is first filed with the Commission pursuant to Rule 424(b) of the Regulations, when any supplement to or amendment of the Prospectus is filed with the Commission and at the Closing Date and the Additional Closing Date, if any, all information required by Item 507 of Regulation S-K under the Act with respect to such Selling Securityholder contained in the Registration Statement and the Prospectus and any amendments thereof and supplements thereto complied or will comply in all material respects with Item 507 of Regulation S-K; the Registration Statement and the Prospectus and any amendments thereof and supplements thereto contains and will contain all statements with respect to such Selling Securityholder required to be stated therein in accordance with Item 507 of Regulation S-K and does not or will not contain an untrue statement of a material fact regarding such Selling Securityholder and does not or will not omit to state any material fact regarding such Selling Securityholder required to be stated therein by Item 507 of Regulation S-K or necessary in order to make the statements therein (i) in the case of the Registration Statement, not misleading and (ii) in the case of the Prospectus, in light of the circumstances under which they were made, not misleading. When any related preliminary prospectus was first filed with the Commission (whether filed as part of the registration statement for the registration of the Shares or any amendment thereto or pursuant to Rule 424(a) of the Regulations) and when any amendment thereof or supplement thereto was first filed with the Commission, all information required by Item 507 of Regulation S-K with respect to such Selling Securityholder contained in such preliminary prospectus and any amendments thereof and supplements thereto complied in all material respects with Item 507 of Regulation S-K and such preliminary prospectus and any amendments thereof and supplements thereto did not contain an untrue statement of a material fact regarding such Selling Securityholder and did not omit to state any material fact regarding such Selling Securityholder required to be stated therein by Item 507 of Regulation S-K or necessary in order to make the statements therein in light of the circumstances under which they were made not misleading.
(g) Other than as permitted by the Act and the Regulations, such Selling Securityholder has not distributed and will not distribute any preliminary prospectus, the Prospectus or any other offering material in connection with the offering and sale of the Shares. Such Selling Securityholder has not taken and will not take, directly or indirectly, any action designed to cause or result in, or which constitutes has constituted or which might reasonably be expected to constitute, the cause or result in stabilization or manipulation of the price of any security of the shares of Common Stock Company to facilitate the sale or resale of the SharesStock.
(hv) Such Selling Securityholder has duly executed reviewed the Registration Statement and delivered in the form heretofore furnished to the RepresentativesProspectus, a power of attorney and custody agreement ("Power of Attorney and Custody Agreement") with ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ and ▇▇▇▇ ▇. ▇▇▇▇▇ as the attorney(s)-in-fact (eachand, an "Attorney-in-Fact") and Key Corp Shareholder Services, Inc. as the custodian (the "Custodian"); the Attorney-in-Fact is authorized to execute and deliver this Agreement and the certificates referred to in Section 6(f), to authorize the delivery of the Shares to be sold hereunder by such Selling Securityholder, to duly endorse (in blank or otherwise) the certificate or certificates representing such Shares, to accept payment therefor, and otherwise to act on behalf of although such Selling Securityholder in connection with this Agreement.
(i) Certificates in negotiable form, or accompanied by duly executed instruments of transfer or assignment in blank with signatures guaranteed, for all Shares to be sold by such Selling Securityholder hereunder have been placed in custody with the Custodian by or for the benefit of such Selling Securityholder for the purpose of effecting delivery by such Selling Securityholder hereunder.
(j) Each certificate signed by such Selling Securityholder and delivered to the Representative or counsel for the Underwriters shall be deemed to be a representation and warranty by such Selling Securityholder to each Underwriter as to the matters covered thereby.has not independently verified the
Appears in 1 contract
Representations and Warranties of the Selling Securityholders. a. Each of the Selling Securityholder, Securityholders severally and not jointly, represents and warrants to, and agrees with, the several Underwriters that:
(ai) Such Selling Securityholder has has, and on the First Closing Date hereinafter mentioned will have, good and marketable title to the Stock proposed to be sold by such Selling Securityholder hereunder on such Closing Date and full right, power and authority to enter into this Agreement and to sell, assign, transfer and deliver such Common Shares hereunder, free and clear of all voting trust arrangements, liens, encumbrances, equities, security interests, restrictions and claims whatsoever; and upon delivery of and payment for such Stock hereunder, the Underwriters will acquire good and valid title thereto, free and clear of all liens, encumbrances, equities, claims, restrictions, security interests, voting trusts or other defects of title whatsoever, provided that the Underwriters are purchasing such Stock in good faith and without notice of any adverse claim.
(ii) Such Selling Securityholder has executed and delivered a Power of Attorney and a Custody Agreement (hereinafter collectively referred to as hereinafter defined). All authorizations the "Securityholders Agreements") and consents necessary in connection herewith such Selling Securityholder further represents, warrants and agrees that such Selling Securityholder has deposited in custody, under the Securityholders Agreement, with the agent named therein (the "Agent") as custodian, certificates in negotiable form for the execution and Stock to be sold hereunder by such Selling Securityholder, for the purpose of further delivery pursuant to this Agreement. Such Selling Securityholder agrees that the Stock to be sold by such Selling Securityholder on deposit with the Agent are subject to the interests of the Company and the Underwriters, that the arrangements made for such custody are to that extent irrevocable, and that the obligations of such Selling Securityholder hereunder shall not be terminated, except as provided in this Agreement or in the Securityholders Agreement, by any act of such Selling Securityholder, by operation of law, by the death or incapacity of such Selling Securityholder or by the occurrence of any other event. If the Selling Securityholder should die or become incapacitated, or if any other event should occur, before the delivery of the Stock hereunder, the documents evidencing Stock then on deposit with the Agent shall be delivered by the Agent in accordance with the terms and conditions of this Agreement and as if such death, incapacity or other event had not occurred, regardless of whether or not the Power of Attorney and Custody Agent shall have received notice thereof. This Agreement and the performance of the transactions contemplated hereby and thereby Securityholders Agreement have been obtained. Each of this Agreement and the Power of Attorney and Custody Agreement has been duly authorized, executed and delivered by or on behalf of such Selling Securityholder and constitutes a valid and binding agreement the form of such Selling Securityholder and is enforceable against such Selling Securityholder in accordance with its terms, except, in the case of enforceability, as limited by applicable bankruptcy, insolvency, reorganization, moratorium or other laws now or hereafter in effect relating Securityholders Agreements has been delivered to or affecting creditors' rights generally or by general principles of equity relating to the availability of remedies and except as rights to indemnity and contribution may be limited by federal or state securities laws or the public policy underlying such lawsyou.
(b) Such Selling Securityholder now has, and at the time of delivery thereof hereunder will have, (i) good and marketable title to the Shares to be sold by such Selling Securityholder hereunder, free and clear of all security interests, pledges, liens, encumbrances, equities, charges and claims whatsoever, and (ii) full legal right and power, and all authorizations and approvals required by law, except as required under the Act and the state Blue Sky laws or by the NASD, to sell, transfer and deliver the Shares to be sold by such Selling Securityholder to the Underwriters hereunder and to make the representations, warranties and agreements made by such Selling Securityholder herein. Upon the delivery of and payment for the Shares to be sold by such Selling Securityholder hereunder, such Selling Securityholder will deliver good and marketable title thereto, free and clear of all security interests, pledges, liens, encumbrances, equities, charges and claims whatsoever.
(c) On the Closing Date and the Additional Closing Date, if any, all stock transfer or other taxes (other than income taxes) which are required to be paid in connection with the sale and transfer of the Shares to be sold by such Selling Securityholder to the several Underwriters hereunder will have been fully paid or provided for by the Company and all laws imposing such taxes will have been complied with in all material respects.
(diii) The execution, delivery and performance of this Agreement or and the Power of Attorney and Custody Agreement Securityholders Agreements and the consummation of the transactions contemplated hereby and thereby do not and by the Securityholders Agreements will not (i) conflict with or result in a breach or violation by such Selling Securityholder of any of the terms and or provisions of, or constitute a default (or an event which with notice or lapse of time, or both, would constitute a default) under, or result in the creation or imposition of any lien, charge or encumbrance upon any property or assets of by such Selling Securityholder pursuant tounder, any indenture, mortgage, deed of trust, trust (constructive or other), loan agreement, instrumentlease, franchise, license or permit other agreement or instrument to which such Selling Securityholder is a party or by which such Selling Securityholder's Securityholder or any of its properties or assets may be is bound, (ii) with respect to each Selling Securityholder which is a corporation, violate or conflict with any provision of the certificate or articles of incorporation or bylaws of such Selling Securityholder, (iii) with respect to each Selling Securityholder which is a trust, violate or conflict with any provision of the declaration of trust of such Selling Securityholder, (iv) with respect to each Selling Securityholder which is a limited liability company, violate or conflict with any provisions of the articles of organization or operating agreement or regulations of such Selling Securityholderstatute, or (v) violate or conflict with any judgment, decree, order, statute, rule or regulation of any court or any public, governmental or regulatory agency or body having jurisdiction over applicable to such Selling Securityholder or any of its properties properties, in which such breach, violation or assets. No License is required for default would adversely affect the execution, delivery and performance of ability to such Selling Securityholder to perform its obligations pursuant to this Agreement or the Power of Attorney and Custody Agreement Securityholders Agreements or the consummation of the transactions contemplated hereby or thereby, including the issuance, sale and delivery of the Shares to be issued, sold and delivered by could otherwise have a material adverse effect on such Selling Securityholder hereunder, except the registration under the Act of the Shares and such consents, approvals, authorizations, orders, registrations, filings, qualifications, licenses and permits as may be required under state securities or Blue Sky laws in connection with the purchase and distribution of the Shares by the UnderwritersSecurityholder.
(eiv) The sale of the Shares proposed to be sold by such Selling Securityholder is not prompted by such Selling Securityholder's knowledge of any material non-public information concerning the Company or any of its subsidiaries.
(f) At the time of the effectiveness of the Registration Statement or the effectiveness of any post-effective amendment to the Registration Statement, when the Prospectus is first filed with the Commission pursuant to Rule 424(b) of the Regulations, when any supplement to or amendment of the Prospectus is filed with the Commission and at the Closing Date and the Additional Closing Date, if any, all information required by Item 507 of Regulation S-K under the Act with respect to such Selling Securityholder contained in the Registration Statement and the Prospectus and any amendments thereof and supplements thereto complied or will comply in all material respects with Item 507 of Regulation S-K; the Registration Statement and the Prospectus and any amendments thereof and supplements thereto contains and will contain all statements with respect to such Selling Securityholder required to be stated therein in accordance with Item 507 of Regulation S-K and does not or will not contain an untrue statement of a material fact regarding such Selling Securityholder and does not or will not omit to state any material fact regarding such Selling Securityholder required to be stated therein by Item 507 of Regulation S-K or necessary in order to make the statements therein (i) in the case of the Registration Statement, not misleading and (ii) in the case of the Prospectus, in light of the circumstances under which they were made, not misleading. When any related preliminary prospectus was first filed with the Commission (whether filed as part of the registration statement for the registration of the Shares or any amendment thereto or pursuant to Rule 424(a) of the Regulations) and when any amendment thereof or supplement thereto was first filed with the Commission, all information required by Item 507 of Regulation S-K with respect to such Selling Securityholder contained in such preliminary prospectus and any amendments thereof and supplements thereto complied in all material respects with Item 507 of Regulation S-K and such preliminary prospectus and any amendments thereof and supplements thereto did not contain an untrue statement of a material fact regarding such Selling Securityholder and did not omit to state any material fact regarding such Selling Securityholder required to be stated therein by Item 507 of Regulation S-K or necessary in order to make the statements therein in light of the circumstances under which they were made not misleading.
(g) Other than as permitted by the Act and the Regulations, such Selling Securityholder has not distributed and will not distribute any preliminary prospectus, the Prospectus or any other offering material in connection with the offering and sale of the Shares. Such Selling Securityholder has not taken and will not take, directly or indirectly, any action designed to cause or result in, or which constitutes has constituted or which might reasonably be expected to constitute, the cause or result in stabilization or manipulation of the price of any security of the shares of Common Stock Company to facilitate the sale or resale of the SharesStock.
(hv) Such Selling Securityholder has duly executed reviewed the Registration Statement and delivered in Prospectus, and, although such Selling Securityholder has not independently verified the form heretofore furnished accuracy or completeness of the information contained therein (other than the information regarding such Selling Securityholder and its affiliates, if any, set forth under the captions "Management" and "Principal and Selling Securityholders"), nothing has come to the Representatives, a power of attorney and custody agreement ("Power of Attorney and Custody Agreement") with ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ and ▇▇▇▇ ▇. ▇▇▇▇▇ as the attorney(s)-in-fact (each, an "Attorney-in-Fact") and Key Corp Shareholder Services, Inc. as the custodian (the "Custodian"); the Attorney-in-Fact is authorized to execute and deliver this Agreement and the certificates referred to in Section 6(f), to authorize the delivery of the Shares to be sold hereunder by such Selling Securityholder, to duly endorse (in blank or otherwise) the certificate or certificates representing such Shares, to accept payment therefor, and otherwise to act on behalf attention of such Selling Securityholder in connection with this Agreement.
(i) Certificates in negotiable form, or accompanied by duly executed instruments of transfer or assignment in blank with signatures guaranteed, for all Shares to be sold by such Selling Securityholder hereunder have been placed in custody with the Custodian by or for the benefit of such Selling Securityholder for the purpose of effecting delivery by such Selling Securityholder hereunder.
(j) Each certificate signed by such Selling Securityholder and delivered to the Representative or counsel for the Underwriters shall be deemed to be a representation and warranty by that would lead such Selling Securityholder to each Underwriter as believe that (A) on the effective date thereof the Registration Statement contained any untrue statement of a material fact or omitted to state any material fact required to be stated therein or necessary in order to make the matters covered therebystatements therein not misleading or (B) on the date of the Prospectus, the Prospectus contained and, on the Closing Date, contains any untrue statement of a material fact or omitted or omits to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading.
Appears in 1 contract
Representations and Warranties of the Selling Securityholders. Each Selling Securityholder, severally and not jointly, Securityholder represents and warrants to, and agrees with, each of the several Underwriters that:
(a) Such Selling Securityholder has full power (corporate and authority other) to enter into this Agreement and to sell, assign, transfer and deliver to the Power Underwriters the Securities to be sold by such Selling Securityholder hereunder in accordance with the terms of Attorney and Custody Agreement (as hereinafter defined). All authorizations and consents necessary for this Agreement; the execution and delivery by such Selling Securityholder of this Agreement and the Power of Attorney and Custody Agreement and the performance of the transactions contemplated hereby and thereby have been obtained. Each duly authorized by all necessary corporate and other action of such Selling Securityholder; and this Agreement and the Power of Attorney and Custody Agreement has been duly authorized, executed and delivered by or on behalf of such Selling Securityholder and constitutes a valid and binding agreement of such Selling Securityholder and is enforceable against such Selling Securityholder in accordance with its terms, except, in the case of enforceability, as limited by applicable bankruptcy, insolvency, reorganization, moratorium or other laws now or hereafter in effect relating to or affecting creditors' rights generally or by general principles of equity relating to the availability of remedies and except as rights to indemnity and contribution may be limited by federal or state securities laws or the public policy underlying such lawsSecurityholder.
(b) Such Selling Securityholder now hashas duly executed and delivered a power of attorney and custody agreement (with respect to such Selling Securityholder, the "Power-of-Attorney" and the "Custody Agreement", respectively), each in the form heretofore delivered to the Representatives, appointing Mark S. Siegel, Vaughn E. Drum and P. Blake Dupuis, and at ▇▇▇▇ ▇▇ ▇▇em, ▇▇ ▇uch Selling ▇▇▇▇▇▇▇▇▇▇▇▇▇▇'s attorney-in-fact (the time "Attorney-in-Fact") with authority to execute, deliver and perform this Agreement on behalf of delivery thereof hereunder will havesuch Selling Securityholder and appointing Chase Mellon Shareholder Services as custodian thereund▇▇ (▇▇▇ "▇▇stodian"). Certificates in negotiable form, (i) good and marketable title to endorsed in blank or accompanied by blank stock powers duly executed, with signatures appropriately guaranteed, representing the Shares Securities to be sold by such Selling Securityholder hereunder have been deposited with the Custodian pursuant to the Custody Agreement for the purpose of delivery pursuant to this Agreement. Such Selling Securityholder has full power (corporate and other) to enter into the Custody Agreement and the Power-of-Attorney and to perform its obligations under the Custody Agreement. The execution and delivery of the Custody Agreement and the Power-of-Attorney have been duly authorized by all necessary corporate and other action of such Selling Securityholder; the Custody Agreement and the Power-of-Attorney have been duly executed and delivered by such Selling Securityholder and, assuming due authorization, execution and delivery by the Custodian, are the legal, valid, binding and enforceable instruments of such Selling Securityholder. Such Selling Securityholder agrees that each of the Securities represented by the certificates on deposit with the Custodian is subject to the interests of the Underwriters hereunder, free that the arrangements made for such custody, the appointment of the Attorney-in-Fact and clear the right, power and authority of all security intereststhe Attorney-in-Fact to execute and deliver this Agreement, pledges, liens, encumbrances, equities, charges and claims whatsoeverto agree on the price at which the Securities (including such Selling Securityholder's Securities) are to be sold to the Underwriters, and (ii) full legal right to carry out the terms of this Agreement, are to that extent irrevocable and power, and all authorizations and approvals required by lawthat the obligations of such Selling Securityholder hereunder shall not be terminated, except as required under provided in this Agreement or the Act and Custody Agreement, by any act of such Selling Securityholder, by operation of law or otherwise, whether in the state Blue Sky laws case of any individual Selling Securityholder by the death or incapacity of such Selling Securityholder, in the case of a trust or estate by the death of the trustee or trustees or the executor or executors or the termination of such trust or estate, or in the case of a corporate or partnership Selling Securityholder by its liquidation or dissolution or by the NASDoccurrence of any other event. If any individual Selling Securityholder, trustee or executor should die or become incapacitated or any such trust should be terminated, or if any corporate or partnership Selling Securityholder shall liquidate or dissolve, or if any other event should occur, before the delivery of such Securities hereunder, the certificates for such Securities deposited with the Custodian shall be delivered by the Custodian in accordance with the respective terms and conditions of this Agreement as if such death, incapacity, termination, liquidation or dissolution or other event had not occurred, regardless of whether or not the Custodian or the Attorney-in-Fact shall have received notice thereof.
(c) Such Selling Securityholder has valid title to sell, transfer and deliver the Shares Securities to be sold by such Selling Securityholder hereunder and upon sale and delivery of, and payment for, such Securities, as provided herein, and the payment of the exercise price with respect to any Securities issuable on exercise of the Warrants, the Underwriters hereunder and will receive valid title to make the representations, warranties and agreements made by such Selling Securityholder herein. Upon the delivery of and payment for the Shares to be sold by such Selling Securityholder hereunder, such Selling Securityholder will deliver good and marketable title thereto, Securities free and clear of all security interestsany adverse claims, pledgesassuming that the Underwriters have acquired such Securities for value, liens, encumbrances, equities, charges in good faith and claims whatsoever.
(c) On the Closing Date and the Additional Closing Date, if any, all stock transfer or other taxes (other than income taxes) which are required to be paid in connection with the sale and transfer without notice of the Shares to be sold by such Selling Securityholder to the several Underwriters hereunder will have been fully paid or provided for by the Company and all laws imposing such taxes will have been complied with in all material respectsany adverse claim.
(d) The execution, delivery and performance of this Agreement or the Power of Attorney and Custody Agreement and the consummation of the transactions contemplated hereby and thereby do not and will not (i) conflict with or result in a breach of any of the terms and provisions of, or constitute a default (or an event which with notice or lapse of time, or both, would constitute a default) under, or result in the creation or imposition of any lien, charge or encumbrance upon any property or assets of such Selling Securityholder pursuant to, any agreement, instrument, franchise, license or permit to which such Selling Securityholder is a party or by which such Selling Securityholder's properties or assets may be bound, (ii) with respect to each Selling Securityholder which is a corporation, violate or conflict with any provision of the certificate or articles of incorporation or bylaws of such Selling Securityholder, (iii) with respect to each Selling Securityholder which is a trust, violate or conflict with any provision of the declaration of trust of such Selling Securityholder, (iv) with respect to each Selling Securityholder which is a limited liability company, violate or conflict with any provisions of the articles of organization or operating agreement or regulations of such Selling Securityholder, or (v) violate or conflict with any judgment, decree, order, statute, rule or regulation of any court or any public, governmental or regulatory agency or body having jurisdiction over such Selling Securityholder or any of its properties or assets. No License is required for the execution, delivery and performance of this Agreement or the Power of Attorney and Custody Agreement or the consummation of the transactions contemplated hereby or thereby, including the issuance, sale and delivery of the Shares to be issued, sold and delivered by such Selling Securityholder hereunder, except the registration under the Act of the Shares and such consents, approvals, authorizations, orders, registrations, filings, qualifications, licenses and permits as may be required under state securities or Blue Sky laws in connection with the purchase and distribution of the Shares by the Underwriters.
(e) The sale of the Shares proposed to be sold by such Selling Securityholder is not prompted by such Selling Securityholder's knowledge of any material non-public information concerning the Company or any of its subsidiaries.
(f) At the time of the effectiveness of the Registration Statement or the effectiveness of any post-effective amendment to the Registration Statement, when the Prospectus is first filed with the Commission pursuant to Rule 424(b) of the Regulations, when any supplement to or amendment of the Prospectus is filed with the Commission and at the Closing Date and the Additional Closing Date, if any, all information required by Item 507 of Regulation S-K under the Act with respect to such Selling Securityholder contained in the Registration Statement and the Prospectus and any amendments thereof and supplements thereto complied or will comply in all material respects with Item 507 of Regulation S-K; the Registration Statement and the Prospectus and any amendments thereof and supplements thereto contains and will contain all statements with respect to such Selling Securityholder required to be stated therein in accordance with Item 507 of Regulation S-K and does not or will not contain an untrue statement of a material fact regarding such Selling Securityholder and does not or will not omit to state any material fact regarding such Selling Securityholder required to be stated therein by Item 507 of Regulation S-K or necessary in order to make the statements therein (i) in the case of the Registration Statement, not misleading and (ii) in the case of the Prospectus, in light of the circumstances under which they were made, not misleading. When any related preliminary prospectus was first filed with the Commission (whether filed as part of the registration statement for the registration of the Shares or any amendment thereto or pursuant to Rule 424(a) of the Regulations) and when any amendment thereof or supplement thereto was first filed with the Commission, all information required by Item 507 of Regulation S-K with respect to such Selling Securityholder contained in such preliminary prospectus and any amendments thereof and supplements thereto complied in all material respects with Item 507 of Regulation S-K and such preliminary prospectus and any amendments thereof and supplements thereto did not contain an untrue statement of a material fact regarding such Selling Securityholder and did not omit to state any material fact regarding such Selling Securityholder required to be stated therein by Item 507 of Regulation S-K or necessary in order to make the statements therein in light of the circumstances under which they were made not misleading.
(g) Other than as permitted by the Act and the Regulations, such Selling Securityholder has not distributed and will not distribute any preliminary prospectus, the Prospectus or any other offering material in connection with the offering and sale of the Shares. Such Selling Securityholder has not taken and will not takenot, directly or indirectly, (i) taken any action designed to cause or result in, or which constitutes that has constituted or which might reasonably be expected to constitute, the stabilization or manipulation of the price of any security of the shares of Common Stock Company to facilitate the sale or resale of the SharesSecurities or (ii) since the filing of the Registration Statement (A) sold, bid for, purchased, or paid anyone any compensation for soliciting purchases of, the Securities or (B) paid or agreed to pay to any person any compensation for soliciting another to purchase any other securities of the Company (except for the sale of Securities by the Selling Securityholders under this Agreement).
(he) To the extent that any statements or omissions are made in the Registration Statement, any Preliminary Prospectus, the Prospectus or any amendment or supplement thereto in reliance upon and in conformity with written information furnished to the Company by such Selling Securityholder specifically for use therein, such Preliminary Prospectus did, and the Registration Statement and the Prospectus and any amendments or supplements thereto, when they become effective or are filed with the Commission, as the case may be, will, with respect to such information, conform in all material respects to the requirements of the Act, the Exchange Act and the respective rules and regulations of the Commission thereunder and will, with respect to such information, not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they are made, not misleading. Such Selling Securityholder has reviewed the Prospectus (or, if the Prospectus is not in existence, the most recent Preliminary Prospectus) and the Registration Statement, and the information regarding such Selling Securityholder set forth therein under the caption "Principal and Selling Stockholders" is complete and accurate.
(f) Such Selling Securityholder has duly executed and delivered no actual knowledge of any material adverse information specifically concerning the Company that is not set forth in the form heretofore furnished Registration Statement or the Prospectus (or, if the Prospectus is not in existence, the most recent Preliminary Prospectus) that is prompting such Selling Securityholder to sell Securities pursuant hereto.
(g) The sale of the Securities to the RepresentativesUnderwriters by such Selling Securityholder pursuant to this Agreement, a power the compliance by such Selling Securityholder with the other provisions of attorney and custody agreement ("Power of Attorney and this Agreement, the Custody Agreement") with ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ and ▇▇▇▇ ▇. ▇▇▇▇▇ as the attorney(s)-in-fact (each, an "Attorney-in-Fact") and Key Corp Shareholder Services, Inc. as the custodian (the "Custodian"); the Attorney-in-Fact is authorized to execute and deliver this Agreement and the certificates referred to in Section 6(f), to authorize the delivery consummation of the Shares other transactions herein contemplated do not (i) require the consent, approval, authorization, registration or qualification of or with any governmental authority, except such as have been obtained, such as may be required under state securities or blue sky laws and, if the registration statement filed with respect to the Securities (as amended) is not effective under the Act as of the time of execution hereof, such as may be sold hereunder required (and shall be obtained as provided in this Agreement) under the Act and the Exchange Act, or (ii) conflict with or result in a breach or violation of any of the terms and provisions of, or constitute a default under any indenture, mortgage, deed of trust, lease or other agreement or instrument to which such Selling Securityholder or any of its subsidiaries is a party or by which such Selling Securityholder or any of its subsidiaries or any of such Selling Securityholder's properties are bound, to duly endorse (in blank or otherwise) the certificate charter documents or certificates representing such Shares, to accept payment therefor, and otherwise to act on behalf by-laws of such Selling Securityholder or any of its subsidiaries or any statute or any judgment, decree, order, rule or regulation of any court or other governmental authority or any arbitrator applicable to such Selling Securityholder or any of its subsidiaries."
(h) The Selling Securityholders have not distributed and, prior to the later of (i) the Closing Date and (ii) the completion of the distribution of the shares, will not distribute any offering material in connection with this Agreement.
(i) Certificates in negotiable formthe offering and sale of the Securities other than the Registration Statement or any amendment thereto, any Preliminary Prospectus or the Prospectus or any amendment or supplement thereto, or accompanied other materials, if any, permitted by duly executed instruments of transfer or assignment in blank with signatures guaranteed, for all Shares to be sold by such Selling Securityholder hereunder have been placed in custody with the Custodian by or for the benefit of such Selling Securityholder for the purpose of effecting delivery by such Selling Securityholder hereunderAct.
(j) Each certificate signed by such Selling Securityholder and delivered to the Representative or counsel for the Underwriters shall be deemed to be a representation and warranty by such Selling Securityholder to each Underwriter as to the matters covered thereby.
Appears in 1 contract
Sources: Underwriting Agreement (Shamrock Holdings of California Inc)
Representations and Warranties of the Selling Securityholders. Each Selling Securityholder, Securityholder severally and not jointly, jointly represents and warrants to, and agrees with, each of the several Underwriters that:
(a) Such Selling Securityholder has full power and authority to enter into this Agreement and to sell, assign, transfer and deliver to the Underwriters the Securities to be sold by such Selling Securityholder hereunder in accordance with the terms of this Agreement, and this Agreement has been duly executed and delivered by such Selling Securityholder.
(b) Such Selling Securityholder has duly executed and delivered a power of attorney and custody agreement (with respect to such Selling Securityholder, the "Power of Attorney" and the "Custody Agreement", respectively), each in the form heretofore delivered to the Representatives, appointing Phil▇▇▇ ▇. ▇▇▇▇▇▇ ▇▇▇ Robe▇▇ ▇. ▇▇▇▇▇▇ ▇▇ such Selling Securityholder's attorney in fact (the "Attorney in Fact") with authority to execute, deliver and perform this Agreement on behalf of such Selling Securityholder and appointing Chasemellon Shareholder Services, as custodian thereunder (the "Custodian"). Certificates in negotiable form, endorsed in blank or accompanied by blank stock bond powers duly executed, with signatures appropriately guaranteed, representing the Securities to be sold by such Selling Securityholder hereunder have been deposited with the Custodian pursuant to the Custody Agreement for the purpose of delivery pursuant to this Agreement. Such Selling Securityholder has full power to enter into the Custody Agreement and the Power of Attorney and to perform its obligations under the Custody Agreement (as hereinafter defined)Agreement. All authorizations and consents necessary for the execution and delivery by such Selling Securityholder of this The Custody Agreement and the Power of Attorney and Custody Agreement and the performance of the transactions contemplated hereby and thereby have been obtained. Each of this Agreement and the Power of Attorney and Custody Agreement has been duly authorized, executed and delivered by or on behalf such Selling Securityholder and, assuming due authorization, execution and delivery by the Custodian, are the legal, valid, binding and enforceable instruments of such Selling Securityholder and constitutes a valid and binding agreement of such Selling Securityholder and is enforceable against such Selling Securityholder in accordance with its termsSecurityholder, except, in the case of enforceability, except as rights to indemnification or contribution hereunder may be limited by applicable law and except as the enforcement hereof may be limited by bankruptcy, insolvency, reorganization, moratorium or other similar laws now or hereafter in effect relating to or affecting creditors' the rights generally and remedies of creditors or by general principles equitable principles. Such Selling Securityholder agrees that each of equity relating the Securities represented by the certificates on deposit with the Custodian is subject to the availability interests of remedies the Underwriters hereunder, that the arrangements made for such custody, the appointment of the Attorney in Fact and the right, power and authority of the Attorney in Fact to execute and deliver this Agreement, to agree on the price at which the Securities (including such Selling Securityholder's Securities) are to be sold to the Underwriters, and to carry out the terms of this Agreement, are to that extent irrevocable and that the obligations of such Selling Securityholder hereunder shall not be terminated, except as rights to indemnity and contribution may be limited by federal or state securities laws provided in this Agreement or the public policy underlying Custody Agreement, by any act of such lawsSelling Securityholder, by operation of law or otherwise, whether in the case of any individual Selling Securityholder by the death or incapacity of such Selling Securityholder, in the case of a trust or estate by the death of the trustee or trustees or the executor or executors or the termination of such trust or estate, or in the case of a corporate or partnership Selling Securityholder by its liquidation or dissolution or by the occurrence of any other event. If any individual Selling Securityholder, trustee or executor should die or become incapacitated or any such trust should be terminated, or if any corporate or partnership Selling Securityholder shall liquidate or dissolve, or if any other event should occur, before the delivery of such Securities hereunder, the certificates for such Securities deposited with the Custodian shall be delivered by the Custodian in accordance with the respective terms and conditions of this Agreement as if such death, incapacity, termination, liquidation or dissolution or other event had not occurred, regardless of whether or not the Custodian or the Attorney in Fact shall have received notice thereof.
(bc) Such Selling Securityholder now has, and at is the time lawful owner of delivery thereof hereunder will have, (i) good and marketable title to the Shares Securities to be sold by such Selling Securityholder hereunderhereunder and upon sale and delivery of, and payment for, such Securities, as provided herein, such Selling Securityholder will convey good and marketable title to such Securities, free and clear of all any security interests, pledges, liens, encumbrances, equities, charges and claims whatsoever, and (ii) full legal right and power, and all authorizations and approvals required by law, except as required under the Act and the state Blue Sky laws or by the NASD, to sell, transfer and deliver the Shares to be sold by such Selling Securityholder to the Underwriters hereunder and to make the representations, warranties and agreements made by such Selling Securityholder herein. Upon the delivery of and payment for the Shares to be sold by such Selling Securityholder hereunder, such Selling Securityholder will deliver good and marketable title thereto, free and clear of all security interests, pledges, liens, encumbrances, equities, charges and claims whatsoever.
(c) On the Closing Date and the Additional Closing Date, if any, all stock transfer or other taxes (other than income taxes) which are required to be paid in connection with the sale and transfer of the Shares to be sold by such Selling Securityholder to the several Underwriters hereunder will have been fully paid or provided for by the Company and all laws imposing such taxes will have been complied with in all material respectsdefects.
(d) The execution, delivery and performance of this Agreement or the Power of Attorney and Custody Agreement and the consummation of the transactions contemplated hereby and thereby do not and will not (i) conflict with or result in a breach of any of the terms and provisions of, or constitute a default (or an event which with notice or lapse of time, or both, would constitute a default) under, or result in the creation or imposition of any lien, charge or encumbrance upon any property or assets of such Selling Securityholder pursuant to, any agreement, instrument, franchise, license or permit to which such Selling Securityholder is a party or by which such Selling Securityholder's properties or assets may be bound, (ii) with respect to each Selling Securityholder which is a corporation, violate or conflict with any provision of the certificate or articles of incorporation or bylaws of such Selling Securityholder, (iii) with respect to each Selling Securityholder which is a trust, violate or conflict with any provision of the declaration of trust of such Selling Securityholder, (iv) with respect to each Selling Securityholder which is a limited liability company, violate or conflict with any provisions of the articles of organization or operating agreement or regulations of such Selling Securityholder, or (v) violate or conflict with any judgment, decree, order, statute, rule or regulation of any court or any public, governmental or regulatory agency or body having jurisdiction over such Selling Securityholder or any of its properties or assets. No License is required for the execution, delivery and performance of this Agreement or the Power of Attorney and Custody Agreement or the consummation of the transactions contemplated hereby or thereby, including the issuance, sale and delivery of the Shares to be issued, sold and delivered by such Selling Securityholder hereunder, except the registration under the Act of the Shares and such consents, approvals, authorizations, orders, registrations, filings, qualifications, licenses and permits as may be required under state securities or Blue Sky laws in connection with the purchase and distribution of the Shares by the Underwriters.
(e) The sale of the Shares proposed to be sold by such Selling Securityholder is not prompted by such Selling Securityholder's knowledge of any material non-public information concerning the Company or any of its subsidiaries.
(f) At the time of the effectiveness of the Registration Statement or the effectiveness of any post-effective amendment to the Registration Statement, when the Prospectus is first filed with the Commission pursuant to Rule 424(b) of the Regulations, when any supplement to or amendment of the Prospectus is filed with the Commission and at the Closing Date and the Additional Closing Date, if any, all information required by Item 507 of Regulation S-K under the Act with respect to such Selling Securityholder contained in the Registration Statement and the Prospectus and any amendments thereof and supplements thereto complied or will comply in all material respects with Item 507 of Regulation S-K; the Registration Statement and the Prospectus and any amendments thereof and supplements thereto contains and will contain all statements with respect to such Selling Securityholder required to be stated therein in accordance with Item 507 of Regulation S-K and does not or will not contain an untrue statement of a material fact regarding such Selling Securityholder and does not or will not omit to state any material fact regarding such Selling Securityholder required to be stated therein by Item 507 of Regulation S-K or necessary in order to make the statements therein (i) in the case of the Registration Statement, not misleading and (ii) in the case of the Prospectus, in light of the circumstances under which they were made, not misleading. When any related preliminary prospectus was first filed with the Commission (whether filed as part of the registration statement for the registration of the Shares or any amendment thereto or pursuant to Rule 424(a) of the Regulations) and when any amendment thereof or supplement thereto was first filed with the Commission, all information required by Item 507 of Regulation S-K with respect to such Selling Securityholder contained in such preliminary prospectus and any amendments thereof and supplements thereto complied in all material respects with Item 507 of Regulation S-K and such preliminary prospectus and any amendments thereof and supplements thereto did not contain an untrue statement of a material fact regarding such Selling Securityholder and did not omit to state any material fact regarding such Selling Securityholder required to be stated therein by Item 507 of Regulation S-K or necessary in order to make the statements therein in light of the circumstances under which they were made not misleading.
(g) Other than as permitted by the Act and the Regulations, such Selling Securityholder has not distributed and will not distribute any preliminary prospectus, the Prospectus or any other offering material in connection with the offering and sale of the Shares. Such Selling Securityholder has not taken and will not takenot, directly or indirectly, (i) taken any action designed to cause or result in, or which constitutes that has constituted or which might reasonably be expected to constitute, the stabilization or manipulation of the price of any security of the shares of Common Stock Company to facilitate the sale or resale of the Shares.
Securities or (hii) Such Selling Securityholder has duly executed and delivered in since the form heretofore furnished to the Representatives, a power of attorney and custody agreement ("Power of Attorney and Custody Agreement") with ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ and ▇▇▇▇ ▇. ▇▇▇▇▇ as the attorney(s)-in-fact (each, an "Attorney-in-Fact") and Key Corp Shareholder Services, Inc. as the custodian (the "Custodian"); the Attorney-in-Fact is authorized to execute and deliver this Agreement and the certificates referred to in Section 6(f), to authorize the delivery filing of the Shares Registration Statement (A) sold, bid for, purchased, or paid anyone any compensation for soliciting purchases of, the Securities or (B) paid or agreed to be sold hereunder by such Selling Securityholder, pay to duly endorse any person any compensation for soliciting another to purchase any other securities of the Company (in blank or otherwise) except for the certificate or certificates representing such Shares, to accept payment therefor, and otherwise to act on behalf sale of such Selling Securityholder in connection with Securities under this Agreement.
(ie) Certificates To the extent that any statements or omissions are made in negotiable formthe Registration Statement, any Preliminary Prospectus, the Prospectus or accompanied by duly executed instruments of transfer any amendment or assignment supplement thereto in blank reliance upon and in conformity with signatures guaranteed, for all Shares written information furnished to be sold the Company by such Selling Securityholder hereunder have been placed in custody specifically for use therein, such Preliminary Prospectus did, and the Registration Statement and the Prospectus and any amendments or supplements thereto, when they become effective or are filed with the Custodian by Commission, as the case may be, will conform in all material respects to the requirements of the Act, the Exchange Act and the respective rules and regulations of the Commission thereunder and will not contain any untrue statement of a material fact or for omit to state any material fact required to be stated therein or necessary to make the benefit statements therein, in the light of the circumstances under which they are made, not misleading. Such Selling Securityholder has reviewed the Prospectus (or, if the Prospectus is not in existence, the most recent Preliminary Prospectus) and the Registration Statement, and the information regarding such Selling Securityholder for set forth therein under the purpose of effecting delivery caption "Principal and Selling Securityholders" is complete and accurate.
(f) The sale by such Selling Securityholder hereunderof Securities pursuant hereto is not prompted by any material adverse information concerning the Company that is not set forth in the Registration Statement or the Prospectus (or, if the Prospectus is not in existence, the most recent Preliminary Prospectus).
(jg) Each certificate signed The sale of the Securities to the Underwriters by such Selling Securityholder and delivered pursuant to this Agreement, the Representative or counsel for the Underwriters shall be deemed to be a representation and warranty compliance by such Selling Securityholder to each Underwriter with the other provisions of this Agreement, the Custody Agreement and the consummation of the other transactions herein contemplated do not (i) require the consent, approval, authorization, registration or qualification of or with any governmental authority, except such as have been obtained, such as may be required under state securities or blue sky laws or the rules and regulations of the NASD and, if the registration statement filed with respect to the matters covered therebySecurities (as amended) is not effective under the Act as of the time of execution hereof, such as may be required (and shall be obtained as provided in this Agreement) under the Act and the Exchange Act, or (ii) conflict with or result in a breach or violation of any of the terms and provisions of, or constitute a default under any indenture, mortgage, deed of trust, lease or other agreement or instrument to which such Selling Securityholder is a party or by which such Selling Securityholder or any of such Selling Securityholder's properties are bound, or any statute or any judgment, decree, order, rule or regulation of any court or other governmental authority or any arbitrator applicable to such Selling Securityholder, except any conflict, breach, violation or default which would not result in a material adverse affect with respect to the ability of the Selling Securityholder to perform its obligations under this Agreement.
Appears in 1 contract
Representations and Warranties of the Selling Securityholders. Each Selling Securityholder, severally and not jointly, represents and warrants to, and agrees with, the Underwriters to each U.S. Underwriter that:
(a) Such Selling Securityholder has full power now has, and authority to enter into this Agreement on the Closing Date and the Power of Attorney Option Closing Date will have, valid and Custody Agreement (as hereinafter defined). All authorizations and consents necessary for marketable title to the execution and delivery Shares or the Warrants to be sold by such Selling Securityholder hereunder, free and clear of any lien, claim, security interest or other encumbrance, including, without limitation, any restriction on transfer other than those arising under this Agreement Agreement, the Custody Agreement, the Communications Act of 1934, as amended and the Power of Attorney policies, rules and Custody Agreement regulations promulgated thereunder (collectively, the "Communications Act") and any federal or state securities laws.
(b) Such Selling Securityholder now has, and on the Closing Date and the performance Option Closing Date will have, full legal right, power and authorization to sell, assign, transfer and deliver such Shares or Warrants in the manner and on the terms provided in and contemplated by this Agreement. Assuming that the U.S. Underwriters have purchased such Shares or Warrants for value and without notice of any adverse claim, upon delivery of and payment for such Shares or Warrants hereunder, the transactions contemplated hereby several U.S. Underwriters will acquire valid and thereby have been obtained. marketable title to such Shares or Warrants, as the case may be, free and clear of any lien, claim, security interest or other encumbrance, it being understood that no representation or warranty is being made herein with respect to the securities or Blue Sky laws of any jurisdiction or the Communications Act.
(c) Each of this Agreement and the Power of Attorney and Custody Agreement has been duly authorized, executed and delivered by or on behalf of or such Selling Securityholder and assuming that each has been duly authorized, executed and delivered by or on behalf of and constitutes a valid and binding agreement of each other party thereto, constitutes a valid and binding 27 agreement of such Selling Securityholder and is enforceable against such Selling Securityholder in accordance with its terms, except, in except (i) that the case of enforceability, as limited by applicable enforcement thereof may be subject to bankruptcy, insolvency, reorganization, fraudulent conveyance, moratorium or other similar laws now or hereafter in effect relating to or affecting creditors' rights generally or by generally, and to general principles of equity relating to and the availability discretion of remedies the court before which any proceeding therefor may be brought and except (ii) as any rights to indemnity and or contribution thereunder may be limited by federal or state securities applicable laws or the and public policy underlying such laws.
(b) Such Selling Securityholder now has, and at the time of delivery thereof hereunder will have, (i) good and marketable title to the Shares to be sold by such Selling Securityholder hereunder, free and clear of all security interests, pledges, liens, encumbrances, equities, charges and claims whatsoever, and (ii) full legal right and power, and all authorizations and approvals required by law, except as required under the Act and the state Blue Sky laws or by the NASD, to sell, transfer and deliver the Shares to be sold by such Selling Securityholder to the Underwriters hereunder and to make the representations, warranties and agreements made by such Selling Securityholder herein. Upon the delivery of and payment for the Shares to be sold by such Selling Securityholder hereunder, such Selling Securityholder will deliver good and marketable title thereto, free and clear of all security interests, pledges, liens, encumbrances, equities, charges and claims whatsoever.
(c) On the Closing Date and the Additional Closing Date, if any, all stock transfer or other taxes (other than income taxes) which are required to be paid in connection with the sale and transfer of the Shares to be sold by such Selling Securityholder to the several Underwriters hereunder will have been fully paid or provided for by the Company and all laws imposing such taxes will have been complied with in all material respectsconsiderations.
(d) The executionAssuming that the agreement among the Company and certain of the Selling Securityholders setting forth certain amendments to the Stockholders Agreement (as defined in the Prospectuses) and certain other instruments and agreements are in full force and effect, that the waivers and consents given by the other parties thereto are valid and binding and that the Company's representations and warranties contained herein are true and complete in all material respects, neither the execution and delivery and performance of this Agreement or the Power of Attorney and Custody Agreement and the consummation of the transactions contemplated hereby and thereby do not and will not (i) conflict with by or result in a breach of any of the terms and provisions of, or constitute a default (or an event which with notice or lapse of time, or both, would constitute a default) under, or result in the creation or imposition of any lien, charge or encumbrance upon any property or assets on behalf of such Selling Securityholder pursuant tonor the performance by such Selling Securityholder of its obligations hereunder or thereunder requires any consent, approval, authorization or order of, or filing or registration with, any court, regulatory body, administrative agency or other governmental body, agency or official (except such as may have been obtained or as may be required under the Act or the Communications Act or such as may be required under state securities or Blue Sky laws) or conflicts with or constitutes a breach of, or default under, any agreement, instrument, franchise, license indenture or permit other instrument to which such Selling Securityholder is a party or by which such Selling Securityholder's properties or assets may be Securityholder is bound, (ii) with respect or any statute, law, rule, regulation, ruling, judgment, injunction, order or decree applicable to each such Selling Securityholder which is except, in each case, as would not (individually or in the aggregate) have a corporation, violate or conflict with any provision of the certificate or articles of incorporation or bylaws of such Selling Securityholder, (iii) with respect to each Selling Securityholder which is a trust, violate or conflict with any provision of the declaration of trust of such Selling Securityholder, (iv) with respect to each Selling Securityholder which is a limited liability company, violate or conflict with any provisions of the articles of organization or operating agreement or regulations of such Selling Securityholder, or (v) violate or conflict with any judgment, decree, order, statute, rule or regulation of any court or any public, governmental or regulatory agency or body having jurisdiction over material adverse effect on such Selling Securityholder or any of its properties or assets. No License is required for the execution, delivery and performance of this Agreement or the Power of Attorney and Custody Agreement or the consummation of the transactions contemplated hereby or thereby, including the issuance, sale and delivery of the Shares ability to be issued, sold and delivered by such Selling Securityholder perform its obligations hereunder, except the registration under the Act of the Shares and such consents, approvals, authorizations, orders, registrations, filings, qualifications, licenses and permits as may be required under state securities or Blue Sky laws in connection with the purchase and distribution of the Shares by the Underwriters.
(e) The sale of the Shares proposed to be sold by such Selling Securityholder is not prompted by such Selling Securityholder's knowledge of any material non-public information concerning the Company or any of its subsidiaries.
(f) At the time of the effectiveness of the Registration Statement or the effectiveness of any post-effective amendment to the Registration Statement, when the Prospectus is first filed with the Commission pursuant to Rule 424(b) of the Regulations, when any supplement to or amendment of the Prospectus is filed with the Commission and at the Closing Date and the Additional Closing Date, if any, all information required by Item 507 of Regulation S-K under the Act with respect to such Selling Securityholder contained in the Registration Statement and the Prospectus and any amendments thereof and supplements thereto complied or will comply in all material respects with Item 507 of Regulation S-K; the Registration Statement and the Prospectus and any amendments thereof and supplements thereto contains and will contain all statements with respect to such Selling Securityholder required to be stated therein in accordance with Item 507 of Regulation S-K and does not or will Prospectuses do not contain an untrue statement of a material fact regarding such Selling Securityholder and does not or will not omit to state any material fact regarding such Selling Securityholder required to be stated therein by Item 507 of Regulation S-K or necessary in order to make the statements therein not misleading (i) in the case of the Registration StatementProspectuses, not misleading and (ii) in the case of the Prospectus, in light of the circumstances under which they such statements were made), not misleading. When provided that the representations and warranties set forth in this paragraph (e) shall apply only to statements in or omissions 28 from the Registration Statement or any related preliminary prospectus was first filed Prospectus made in reliance upon and in conformity with the Commission (whether filed as part of the registration statement for the registration of the Shares or any amendment thereto or pursuant to Rule 424(a) of the Regulations) and when any amendment thereof or supplement thereto was first filed with the Commission, all most recent information required by Item 507 of Regulation S-K with respect relating to such Selling Securityholder contained provided by or on behalf of such Selling Securityholder in writing expressly for use therein.
(f) If, but only if, such preliminary prospectus and Selling Securityholder is an officer of the Company, such Selling Securityholder does not have any amendments thereof and supplements thereto complied in all material respects with Item 507 of Regulation S-K and such preliminary prospectus and knowledge or any amendments thereof and supplements thereto did not contain an reason to believe that the Registration Statement or the Prospectuses (or any amendment or supplement thereto) contains any untrue statement of a material fact regarding such Selling Securityholder and did not omit or omits to state any material fact regarding such Selling Securityholder required to be stated therein by Item 507 of Regulation S-K or necessary in order to make the statements therein in light of the circumstances under which they were made not misleading.
(g) Other than as permitted by the Act The representations and the Regulations, such Selling Securityholder has not distributed and will not distribute any preliminary prospectus, the Prospectus or any other offering material in connection with the offering and sale of the Shares. Such Selling Securityholder has not taken and will not take, directly or indirectly, any action designed to cause or result in, or which constitutes or which might reasonably be expected to constitute, the stabilization or manipulation of the price of the shares of Common Stock to facilitate the sale or resale of the Shares.
(h) Such Selling Securityholder has duly executed and delivered in the form heretofore furnished to the Representatives, a power of attorney and custody agreement ("Power of Attorney and Custody Agreement") with ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ and ▇▇▇▇ ▇. ▇▇▇▇▇ as the attorney(s)-in-fact (each, an "Attorney-in-Fact") and Key Corp Shareholder Services, Inc. as the custodian (the "Custodian"); the Attorney-in-Fact is authorized to execute and deliver this Agreement and the certificates referred to in Section 6(f), to authorize the delivery of the Shares to be sold hereunder by such Selling Securityholder, to duly endorse (in blank or otherwise) the certificate or certificates representing such Shares, to accept payment therefor, and otherwise to act on behalf warranties of such Selling Securityholder in connection with this Agreementthe Custody Agreement are true and correct.
(i) Certificates in negotiable form, or accompanied by duly executed instruments of transfer or assignment in blank with signatures guaranteed, for all Shares to be sold by such Selling Securityholder hereunder have been placed in custody with the Custodian by or for the benefit of such Selling Securityholder for the purpose of effecting delivery by such Selling Securityholder hereunder.
(j) Each certificate signed by such Selling Securityholder and delivered to the Representative or counsel for the Underwriters shall be deemed to be a representation and warranty by such Selling Securityholder to each Underwriter as to the matters covered thereby.
Appears in 1 contract
Sources: u.s. Underwriting Agreement (Paxson Communications Corp)
Representations and Warranties of the Selling Securityholders. Each Selling Securityholder, severally and not jointly, represents and warrants to, and agrees with, the Underwriters to each Manager that:: 26
(a) Such Selling Securityholder has full power now has, and authority to enter into this Agreement on the Closing Date and the Power of Attorney Option Closing Date will have, valid and Custody Agreement (as hereinafter defined). All authorizations and consents necessary for marketable title to the execution and delivery Shares or the Warrants to be sold by such Selling Securityholder hereunder, free and clear of any lien, claim, security interest or other encumbrance, including, without limitation, any restriction on transfer other than those arising under this Agreement Agreement, the Custody Agreement, the Communications Act of 1934, as amended and the Power of Attorney policies, rules and Custody Agreement regulations promulgated thereunder (collectively, the "Communications Act") and any federal or state securities laws.
(b) Such Selling Securityholder now has, and on the Closing Date and the performance Option Closing Date will have, full legal right, power and authorization to sell, assign, transfer and deliver such Shares or Warrants in the manner and on the terms provided in and contemplated by this Agreement. Assuming that the Managers have purchased such Shares or Warrants for value and without notice of any adverse claim, upon delivery of and payment for such Shares or Warrants hereunder, the transactions contemplated hereby several Managers will acquire valid and thereby have been obtained. marketable title to such Shares or Warrants, as the case may be, free and clear of any lien, claim, security interest or other encumbrance, it being understood that no representation or warranty is being made herein with respect to the securities or Blue Sky laws of any jurisdiction or the Communications Act.
(c) Each of this Agreement and the Power of Attorney and Custody Agreement has been duly authorized, executed and delivered by or on behalf of or such Selling Securityholder and assuming that each has been duly authorized, executed and delivered by or on behalf of and constitutes a valid and binding agreement of each other party thereto, constitutes a valid and binding agreement of such Selling Securityholder and is enforceable against such Selling Securityholder in accordance with its terms, except, in except (i) that the case of enforceability, as limited by applicable enforcement thereof may be subject to bankruptcy, insolvency, reorganization, fraudulent conveyance, moratorium or other similar laws now or hereafter in effect relating to or affecting creditors' rights generally or by generally, and to general principles of equity relating to and the availability discretion of remedies the court before which any proceeding therefor may be brought and except (ii) as any rights to indemnity and or contribution thereunder may be limited by federal or state securities applicable laws or the and public policy underlying such laws.
(b) Such Selling Securityholder now has, and at the time of delivery thereof hereunder will have, (i) good and marketable title to the Shares to be sold by such Selling Securityholder hereunder, free and clear of all security interests, pledges, liens, encumbrances, equities, charges and claims whatsoever, and (ii) full legal right and power, and all authorizations and approvals required by law, except as required under the Act and the state Blue Sky laws or by the NASD, to sell, transfer and deliver the Shares to be sold by such Selling Securityholder to the Underwriters hereunder and to make the representations, warranties and agreements made by such Selling Securityholder herein. Upon the delivery of and payment for the Shares to be sold by such Selling Securityholder hereunder, such Selling Securityholder will deliver good and marketable title thereto, free and clear of all security interests, pledges, liens, encumbrances, equities, charges and claims whatsoever.
(c) On the Closing Date and the Additional Closing Date, if any, all stock transfer or other taxes (other than income taxes) which are required to be paid in connection with the sale and transfer of the Shares to be sold by such Selling Securityholder to the several Underwriters hereunder will have been fully paid or provided for by the Company and all laws imposing such taxes will have been complied with in all material respectsconsiderations.
(d) The executionAssuming that the agreement among the Company and certain of the Selling Securityholders setting forth certain 27 amendments to the Stockholders Agreement (as defined in the Prospectuses) and certain other instruments and agreements are in full force and effect, that the waivers and consents given by the other parties thereto are valid and binding and that the Company's representations and warranties contained herein are true and complete in all material respects, neither the execution and delivery and performance of this Agreement or the Power of Attorney and Custody Agreement and the consummation of the transactions contemplated hereby and thereby do not and will not (i) conflict with by or result in a breach of any of the terms and provisions of, or constitute a default (or an event which with notice or lapse of time, or both, would constitute a default) under, or result in the creation or imposition of any lien, charge or encumbrance upon any property or assets on behalf of such Selling Securityholder pursuant tonor the performance by such Selling Securityholder of its obligations hereunder or thereunder requires any consent, approval, authorization or order of, or filing or registration with, any court, regulatory body, administrative agency or other governmental body, agency or official (except such as may have been obtained or as may be required under the Act or the Communications Act or such as may be required under state securities or Blue Sky laws) or conflicts with or constitutes a breach of, or default under, any agreement, instrument, franchise, license indenture or permit other instrument to which such Selling Securityholder is a party or by which such Selling Securityholder's properties or assets may be Securityholder is bound, (ii) with respect or any statute, law, rule, regulation, ruling, judgment, injunction, order or decree applicable to each such Selling Securityholder which is except, in each case, as would not (individually or in the aggregate) have a corporation, violate or conflict with any provision of the certificate or articles of incorporation or bylaws of such Selling Securityholder, (iii) with respect to each Selling Securityholder which is a trust, violate or conflict with any provision of the declaration of trust of such Selling Securityholder, (iv) with respect to each Selling Securityholder which is a limited liability company, violate or conflict with any provisions of the articles of organization or operating agreement or regulations of such Selling Securityholder, or (v) violate or conflict with any judgment, decree, order, statute, rule or regulation of any court or any public, governmental or regulatory agency or body having jurisdiction over material adverse effect on such Selling Securityholder or any of its properties or assets. No License is required for the execution, delivery and performance of this Agreement or the Power of Attorney and Custody Agreement or the consummation of the transactions contemplated hereby or thereby, including the issuance, sale and delivery of the Shares ability to be issued, sold and delivered by such Selling Securityholder perform its obligations hereunder, except the registration under the Act of the Shares and such consents, approvals, authorizations, orders, registrations, filings, qualifications, licenses and permits as may be required under state securities or Blue Sky laws in connection with the purchase and distribution of the Shares by the Underwriters.
(e) The sale of the Shares proposed to be sold by such Selling Securityholder is not prompted by such Selling Securityholder's knowledge of any material non-public information concerning the Company or any of its subsidiaries.
(f) At the time of the effectiveness of the Registration Statement or the effectiveness of any post-effective amendment to the Registration Statement, when the Prospectus is first filed with the Commission pursuant to Rule 424(b) of the Regulations, when any supplement to or amendment of the Prospectus is filed with the Commission and at the Closing Date and the Additional Closing Date, if any, all information required by Item 507 of Regulation S-K under the Act with respect to such Selling Securityholder contained in the Registration Statement and the Prospectus and any amendments thereof and supplements thereto complied or will comply in all material respects with Item 507 of Regulation S-K; the Registration Statement and the Prospectus and any amendments thereof and supplements thereto contains and will contain all statements with respect to such Selling Securityholder required to be stated therein in accordance with Item 507 of Regulation S-K and does not or will Prospectuses do not contain an untrue statement of a material fact regarding such Selling Securityholder and does not or will not omit to state any material fact regarding such Selling Securityholder required to be stated therein by Item 507 of Regulation S-K or necessary in order to make the statements therein not misleading (i) in the case of the Registration StatementProspectuses, not misleading and (ii) in the case of the Prospectus, in light of the circumstances under which they such statements were made), not misleading. When provided that the representations and warranties set forth in this paragraph (e) shall apply only to statements in or omissions from the Registration Statement or any related preliminary prospectus was first filed Prospectus made in reliance upon and in conformity with the Commission (whether filed as part of the registration statement for the registration of the Shares or any amendment thereto or pursuant to Rule 424(a) of the Regulations) and when any amendment thereof or supplement thereto was first filed with the Commission, all most recent information required by Item 507 of Regulation S-K with respect relating to such Selling Securityholder contained in such preliminary prospectus and any amendments thereof and supplements thereto complied in all material respects with Item 507 of Regulation S-K and such preliminary prospectus and any amendments thereof and supplements thereto did not contain an untrue statement of a material fact regarding such Selling Securityholder and did not omit to state any material fact regarding such Selling Securityholder required to be stated therein provided by Item 507 of Regulation S-K or necessary in order to make the statements therein in light of the circumstances under which they were made not misleading.
(g) Other than as permitted by the Act and the Regulations, such Selling Securityholder has not distributed and will not distribute any preliminary prospectus, the Prospectus or any other offering material in connection with the offering and sale of the Shares. Such Selling Securityholder has not taken and will not take, directly or indirectly, any action designed to cause or result in, or which constitutes or which might reasonably be expected to constitute, the stabilization or manipulation of the price of the shares of Common Stock to facilitate the sale or resale of the Shares.
(h) Such Selling Securityholder has duly executed and delivered in the form heretofore furnished to the Representatives, a power of attorney and custody agreement ("Power of Attorney and Custody Agreement") with ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ and ▇▇▇▇ ▇. ▇▇▇▇▇ as the attorney(s)-in-fact (each, an "Attorney-in-Fact") and Key Corp Shareholder Services, Inc. as the custodian (the "Custodian"); the Attorney-in-Fact is authorized to execute and deliver this Agreement and the certificates referred to in Section 6(f), to authorize the delivery of the Shares to be sold hereunder by such Selling Securityholder, to duly endorse (in blank or otherwise) the certificate or certificates representing such Shares, to accept payment therefor, and otherwise to act on behalf of such Selling Securityholder in connection with this Agreementwriting expressly for use therein.
(if) Certificates in negotiable formIf, or accompanied by duly executed instruments of transfer or assignment in blank with signatures guaranteedbut only if, for all Shares to be sold by such Selling Securityholder hereunder is an officer of the Company, such Selling Securityholder does not have been placed in custody with any knowledge or any reason to believe that the Custodian by Registration Statement or for the benefit Prospectuses (or any amendment or supplement thereto) contains any untrue statement of a material fact or omits to state any material fact required to be stated therein or necessary to make the statements therein not misleading. 28
(g) The representations and warranties of such Selling Securityholder for in the purpose of effecting delivery by such Selling Securityholder hereunderCustody Agreement are true and correct.
(j) Each certificate signed by such Selling Securityholder and delivered to the Representative or counsel for the Underwriters shall be deemed to be a representation and warranty by such Selling Securityholder to each Underwriter as to the matters covered thereby.
Appears in 1 contract
Sources: International Underwriting Agreement (Paxson Communications Corp)
Representations and Warranties of the Selling Securityholders. Each Selling Securityholder, severally and not jointlyas to itself or himself only, represents and warrants to, and agrees with, the Underwriters Underwriter that:
(a) Such Selling Securityholder has full legal right, power and authority (corporate or other) to enter into this Agreement and to sell, assign, transfer and deliver to the Power Underwriter the Options to be sold by such Selling Securityholder hereunder in accordance with the terms of Attorney and Custody Agreement (as hereinafter defined). All authorizations and consents necessary for this Agreement; the execution and delivery of this Agreement have been duly authorized and approved by all necessary corporate or other action of such Selling Securityholder; and this Agreement has been duly executed and delivered by such Selling Securityholder of this Agreement and is the Power of Attorney and Custody Agreement and the performance of the transactions contemplated hereby and thereby have been obtained. Each of this Agreement and the Power of Attorney and Custody Agreement has been duly authorized, executed and delivered by or on behalf of such Selling Securityholder and constitutes a valid and binding agreement of such Selling Securityholder and is Securityholder, enforceable against such Selling Securityholder in accordance with its terms, except, in the case of enforceability, as limited by applicable bankruptcy, insolvency, reorganization, moratorium or other laws now or hereafter in effect relating to or affecting creditors' rights generally or by general principles of equity relating to the availability of remedies and except as rights to indemnity and contribution may be limited by federal or state securities laws or the public policy underlying such laws.
(b) Such Selling Securityholder now has, and at the time of delivery thereof hereunder will have, (i) has good and marketable valid title to the Shares Options to be sold by such Selling Securityholder hereunder, and such Options are owned of record and beneficially by such Securityholder free and clear of all any security interests, pledges, liens, encumbrances, equities, charges equities or claims. Upon sale and claims whatsoeverdelivery of, and (ii) full legal right payment for, the Options, as provided herein, the Underwriter will receive good and powervalid title to such Options and, upon exercise of the Options in accordance with their terms, the Option Shares free and all authorizations clear of any security interests, liens, encumbrances, equities or claims. The exercise price of the Options is $0.95 per share of Common Stock. All of the Options held by such Selling Securityholder are assignable and approvals required by law, except as required under the Act transferable to and the state Blue Sky laws or exercisable by the NASDUnderwriter without restriction in accordance with the respective Option Agreements.
(c) In the case of Remy Investors and Consultants, Incorporated, the Option Agreement relating to sell, transfer and deliver the Shares Options to be sold by such Selling Securityholder and the assignment to the Underwriters hereunder Underwriter of such Selling Securityholder's Options and to make the representationsits rights under such Option Agreement have been duly authorized, warranties executed and agreements made delivered by such Selling Securityholder herein. Upon Securityholder, and are the delivery legal, valid and binding agreements of and payment for the Shares to be sold by such Selling Securityholder, enforceable against such Selling Securityholder hereunder, such Selling Securityholder will deliver good and marketable title thereto, free and clear of all security interests, pledges, liens, encumbrances, equities, charges and claims whatsoever.
(c) On the Closing Date and the Additional Closing Date, if any, all stock transfer or other taxes (other than income taxes) which are required to be paid in connection accordance with the sale and transfer of the Shares to be sold by such Selling Securityholder to the several Underwriters hereunder will have been fully paid or provided for by the Company and all laws imposing such taxes will have been complied with in all material respectstheir terms.
(d) The execution, delivery and performance of this Agreement or the Power of Attorney and Custody Agreement and the consummation of the transactions contemplated hereby and thereby do not and will not (i) conflict with or result in a breach of any of the terms and provisions of, or constitute a default (or an event which with notice or lapse of time, or both, would constitute a default) under, or result in the creation or imposition of any lien, charge or encumbrance upon any property or assets of such Selling Securityholder pursuant to, any agreement, instrument, franchise, license or permit to which such Selling Securityholder is a party or by which such Selling Securityholder's properties or assets may be bound, (ii) with respect to each Selling Securityholder which is a corporation, violate or conflict with any provision of the certificate or articles of incorporation or bylaws of such Selling Securityholder, (iii) with respect to each Selling Securityholder which is a trust, violate or conflict with any provision of the declaration of trust of such Selling Securityholder, (iv) with respect to each Selling Securityholder which is a limited liability company, violate or conflict with any provisions of the articles of organization or operating agreement or regulations of such Selling Securityholder, or (v) violate or conflict with any judgment, decree, order, statute, rule or regulation of any court or any public, governmental or regulatory agency or body having jurisdiction over such Selling Securityholder or any of its properties or assets. No License is required for the execution, delivery and performance of this Agreement or the Power of Attorney and Custody Agreement or the consummation of the transactions contemplated hereby or thereby, including the issuance, sale and delivery of the Shares to be issued, sold and delivered by such Selling Securityholder hereunder, except the registration under the Act of the Shares and such consents, approvals, authorizations, orders, registrations, filings, qualifications, licenses and permits as may be required under state securities or Blue Sky laws in connection with the purchase and distribution of the Shares by the Underwriters.
(e) The sale of the Shares proposed to be sold by such Selling Securityholder is not prompted by such Selling Securityholder's knowledge of any material non-public information concerning the Company or any of its subsidiaries.
(f) At the time of the effectiveness of the Registration Statement or the effectiveness of any post-effective amendment to the Registration Statement, when the Prospectus is first filed with the Commission pursuant to Rule 424(b) of the Regulations, when any supplement to or amendment of the Prospectus is filed with the Commission and at the Closing Date and the Additional Closing Date, if any, all information required by Item 507 of Regulation S-K under the Act with respect to such Selling Securityholder contained in the Registration Statement and the Prospectus and any amendments thereof and supplements thereto complied or will comply in all material respects with Item 507 of Regulation S-K; the Registration Statement and the Prospectus and any amendments thereof and supplements thereto contains and will contain all statements with respect to such Selling Securityholder required to be stated therein in accordance with Item 507 of Regulation S-K and does not or will not contain an untrue statement of a material fact regarding such Selling Securityholder and does not or will not omit to state any material fact regarding such Selling Securityholder required to be stated therein by Item 507 of Regulation S-K or necessary in order to make the statements therein (i) in the case of the Registration Statement, not misleading and (ii) in the case of the Prospectus, in light of the circumstances under which they were made, not misleading. When any related preliminary prospectus was first filed with the Commission (whether filed as part of the registration statement for the registration of the Shares or any amendment thereto or pursuant to Rule 424(a) of the Regulations) and when any amendment thereof or supplement thereto was first filed with the Commission, all information required by Item 507 of Regulation S-K with respect to such Selling Securityholder contained in such preliminary prospectus and any amendments thereof and supplements thereto complied in all material respects with Item 507 of Regulation S-K and such preliminary prospectus and any amendments thereof and supplements thereto did not contain an untrue statement of a material fact regarding such Selling Securityholder and did not omit to state any material fact regarding such Selling Securityholder required to be stated therein by Item 507 of Regulation S-K or necessary in order to make the statements therein in light of the circumstances under which they were made not misleading.
(g) Other than as permitted by the Act and the Regulations, such Selling Securityholder has not distributed and will not distribute any preliminary prospectus, the Prospectus or any other offering material in connection with the offering and sale of the Shares. Such Selling Securityholder has not taken and will not takenot, directly or indirectly, (i) taken any action designed to cause or result in, or which constitutes that has constituted or which might reasonably be expected to constitute, the stabilization or manipulation of the price of any security of the shares of Common Stock Company to facilitate the sale or resale of the SharesOptions or Option Shares or (ii) since the filing of the Registration Statement (A) sold, bid for, purchased, or paid anyone any compensation for soliciting purchases of, the Options or Option Shares or (B) paid or agreed to pay to any person any compensation for soliciting another to purchase any other securities of the Company (except for the sale of Options by the Selling Securityholders and the issuance of the Option Shares under this Agreement).
(he) Such Selling Securityholder has duly executed and delivered To the extent that any statements or omissions are made in the form heretofore furnished to Registration Statement, any Preliminary Prospectus, the Representatives, a power of attorney Prospectus or any amendment or supplement thereto in reliance upon and custody agreement ("Power of Attorney and Custody Agreement") in conformity with ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ and ▇▇▇▇ ▇. ▇▇▇▇▇ as the attorney(s)-in-fact (each, an "Attorney-in-Fact") and Key Corp Shareholder Services, Inc. as the custodian (the "Custodian"); the Attorney-in-Fact is authorized to execute and deliver this Agreement and the certificates referred to in Section 6(f), to authorize the delivery of the Shares to be sold hereunder by such Selling Securityholder, to duly endorse (in blank or otherwise) the certificate or certificates representing such Shares, to accept payment therefor, and otherwise to act on behalf of such Selling Securityholder in connection with this Agreement.
(i) Certificates in negotiable form, or accompanied by duly executed instruments of transfer or assignment in blank with signatures guaranteed, for all Shares to be sold by such Selling Securityholder hereunder have been placed in custody with the Custodian by or for the benefit of such Selling Securityholder for the purpose of effecting delivery by such Selling Securityholder hereunder.
(j) Each certificate signed by such Selling Securityholder and delivered to the Representative or counsel for the Underwriters shall be deemed to be a representation and warranty by such Selling Securityholder to each Underwriter as to the matters covered thereby.written information furnished
Appears in 1 contract
Representations and Warranties of the Selling Securityholders. Each Selling SecurityholderSecurityholder hereby represents and warrants, severally as to itself and not jointly, represents and warrants toto each Underwriter on the date hereof, and agrees with, shall be deemed to represent and warrant to each Underwriter on the Underwriters Closing Date that:
(a) Such Selling Securityholder has is the lawful owner of the Selling Securityholder Shares to be sold by such Selling Securityholder pursuant to this Agreement and has, and on the Closing Date will have, good and valid title to such Selling Securityholder Shares, free of all restrictions on transfer, liens, encumbrances, security interests, equities and claims whatsoever.
(b) Such Selling Securityholder has, and on the Closing Date will have, full legal right, power and authority authority, and all authorization and approval required by law, to enter into (i) this Agreement and (ii) the Power of Attorney and Custody Agreement (appointing certain individuals named therein as hereinafter defined). All authorizations and consents necessary for the execution and delivery by such Selling Securityholder of this Agreement and Securityholder’s attorneys-in-fact (the Power of Attorney and Custody Agreement and “Attorneys”) to the performance of extent set forth therein relating to the transactions contemplated hereby and thereby have been obtained. by the Prospectus (the “Power of Attorney”) to sell, assign, transfer and deliver the Selling Securityholder Shares to be sold by such Selling Securityholder in the manner provided herein.
(c) Each of this the Agreement and the Power of Attorney and Custody Agreement of such Selling Securityholder has been duly authorized, executed and delivered by or on behalf of such Selling Securityholder and constitutes is a valid and binding agreement of such Selling Securityholder and is Securityholder, enforceable against as to such Selling Securityholder in accordance with its terms, except, in except to the case of enforceability, as extent enforceability may be limited by applicable (i) the application of bankruptcy, insolvency, reorganization, moratorium or insolvency and other laws now or hereafter in effect relating to or affecting creditors' ’ rights generally or by general and (ii) equitable principles being applied at the discretion of equity relating to the availability of remedies and a court before which a proceeding may be brought, except as rights to indemnity and contribution hereunder may be limited by federal or state securities laws or the public policy underlying and, pursuant to such laws.
(b) Such Power of Attorney, such Selling Securityholder now has, among other things, authorized the Attorneys, or any one of them, to execute and at deliver on such Selling Securityholder’s behalf this Agreement and any other document that they, or any one of them, may deem necessary or desirable in connection with the time of delivery thereof hereunder will have, (i) good transactions contemplated hereby and marketable title thereby and to deliver the Selling Securityholder Shares to be sold by such Selling Securityholder hereunder, free and clear of all security interests, pledges, liens, encumbrances, equities, charges and claims whatsoever, and (ii) full legal right and power, and all authorizations and approvals required by law, except as required under the Act and the state Blue Sky laws or by the NASD, pursuant to sell, transfer and deliver the Shares to be sold by such Selling Securityholder to the Underwriters hereunder and to make the representations, warranties and agreements made by such Selling Securityholder herein. Upon the delivery of and payment for the Shares to be sold by such Selling Securityholder hereunder, such Selling Securityholder will deliver good and marketable title thereto, free and clear of all security interests, pledges, liens, encumbrances, equities, charges and claims whatsoever.
(c) On the Closing Date and the Additional Closing Date, if any, all stock transfer or other taxes (other than income taxes) which are required to be paid in connection with the sale and transfer of the Shares to be sold by such Selling Securityholder to the several Underwriters hereunder will have been fully paid or provided for by the Company and all laws imposing such taxes will have been complied with in all material respectsthis Agreement.
(d) The None of the sale of the Selling Securityholder Shares by such Selling Securityholder, the execution, delivery and or performance by such Selling Securityholder of this Agreement or the and Power of Attorney of such Selling Securityholder by or on behalf of such Selling Securityholder, the compliance by such Selling Securityholder with all the provisions hereof and Custody Agreement and thereof nor the consummation by such Selling Securityholder of the transactions contemplated hereby and thereby do not and will not (i) requires any consent, approval, authorization or other order of, or registration or filing with, any court, regulatory body or administrative agency or other governmental body, agency or official (except such as may be required under the securities or Blue Sky laws of the various states), (ii) conflicts with or will conflict with or result in constitutes or will constitute a breach of any of the terms and provisions of, or constitute a default (or an event which with notice or lapse of time, or both, would constitute a default) under, or result in the creation or imposition of any lien, charge or encumbrance upon any property or assets organizational documents of such Selling Securityholder, if such Selling Securityholder pursuant tois not an individual, or any agreement, instrumentindenture, franchise, license lease or permit other instrument to which such Selling Securityholder is a party or by which such Selling Securityholder's properties Securityholder or assets may be bound, (ii) with respect to each Selling Securityholder which is a corporation, violate or conflict with any provision of the certificate or articles of incorporation or bylaws property of such Selling Securityholder, Securityholder is bound or (iii) with respect to each Selling Securityholder which is a trustviolates any statute, violate or conflict with any provision of the declaration of trust of such Selling Securityholderlaw, (iv) with respect to each Selling Securityholder which is a limited liability companyregulation, violate or conflict with any provisions of the articles of organization or operating agreement or regulations of such Selling Securityholderruling, or (v) violate or conflict with any filing, judgment, decreeinjunction, order, statute, rule order or regulation of any court or any public, governmental or regulatory agency or body having jurisdiction over decree applicable to such Selling Securityholder or any property of its properties or assets. No License is required for the execution, delivery and performance of this Agreement or the Power of Attorney and Custody Agreement or the consummation of the transactions contemplated hereby or thereby, including the issuance, sale and delivery of the Shares to be issued, sold and delivered by such Selling Securityholder hereunder, except the registration under the Act of the Shares and such consents, approvals, authorizations, orders, registrations, filings, qualifications, licenses and permits as may be required under state securities or Blue Sky laws in connection with the purchase and distribution of the Shares by the UnderwritersSecurityholder.
(e) The sale of information in the Shares proposed to be sold by such Selling Securityholder is not prompted by such Selling Securityholder's knowledge of any material nonPre-public information concerning the Company or any of its subsidiaries.
(f) At the time of the effectiveness of the Registration Statement or the effectiveness of any post-effective amendment to the Registration Statement, when Pricing Prospectus and the Prospectus is first filed with the Commission pursuant to Rule 424(b) of the Regulations, when any supplement to or amendment of the Prospectus is filed with the Commission and at the Closing Date and the Additional Closing Date, if any, all information required by Item 507 of Regulation S-K Supplement under the Act with respect caption “Selling Securityholders” that specifically relates to such Selling Securityholder contained in the Registration Statement and the Prospectus and any amendments thereof and supplements thereto complied or will comply in all material respects with Item 507 of Regulation S-K; the Registration Statement and the Prospectus and any amendments thereof and supplements thereto contains does not, and will not on the Closing Date, contain all statements with respect to such Selling Securityholder required to be stated therein in accordance with Item 507 of Regulation S-K and does not or will not contain an any untrue statement of a material fact regarding such Selling Securityholder and does not or will not omit to state any material fact regarding such Selling Securityholder required to be stated therein by Item 507 of Regulation S-K or necessary in order to make the statements therein (i) therein, in the case of the Registration Statement, not misleading and (ii) in the case of the Prospectus, in light of the circumstances under which they were made, not misleading. When .
(f) At any related preliminary prospectus was first filed with time prior to the Commission (whether filed as part of Closing Date, if there is any change in the registration statement for the registration of the Shares or any amendment thereto or pursuant information referred to Rule 424(ain Section 6.2(e) of the Regulations) and when any amendment thereof or supplement thereto was first filed with the Commissionhereof, all information required by Item 507 of Regulation S-K with respect to such Selling Securityholder contained in will immediately notify the Representative of such preliminary prospectus and any amendments thereof and supplements thereto complied in all material respects with Item 507 of Regulation S-K and such preliminary prospectus and any amendments thereof and supplements thereto did not contain an untrue statement of a material fact regarding such Selling Securityholder and did not omit to state any material fact regarding such Selling Securityholder required to be stated therein by Item 507 of Regulation S-K or necessary in order to make the statements therein in light of the circumstances under which they were made not misleadingchange.
(g) Other than as permitted by excepted activity pursuant to Regulation M under the Act and the RegulationsExchange Act, such Selling Securityholder has not distributed and will not distribute any preliminary prospectus, the Prospectus or any other offering material in connection with the offering and sale of the Shares. Such Selling Securityholder has not taken and will not take, directly or indirectly, any action designed to cause or result inthat constituted, or which constitutes any action designed to, or which that might reasonably be expected to cause or result in or constitute, under the Act or otherwise, stabilization or manipulation of the price of the shares of Common Stock to facilitate the sale or resale of the Shares.
(h) Such Upon delivery of and payment for the Selling Securityholder has duly executed and delivered in the form heretofore furnished to the Representatives, a power of attorney and custody agreement ("Power of Attorney and Custody Agreement") with ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ and ▇▇▇▇ ▇. ▇▇▇▇▇ as the attorney(s)-in-fact (each, an "Attorney-in-Fact") and Key Corp Shareholder Services, Inc. as the custodian (the "Custodian"); the Attorney-in-Fact is authorized to execute and deliver this Agreement and the certificates referred to in Section 6(f), to authorize the delivery of the Shares to be sold hereunder by such Selling Securityholder, to duly endorse (in blank or otherwise) the certificate or certificates representing such Shares, to accept payment therefor, and otherwise to act on behalf of such Selling Securityholder in connection with this Agreement.
(i) Certificates in negotiable form, or accompanied by duly executed instruments of transfer or assignment in blank with signatures guaranteed, for all Shares to be sold by such Selling Securityholder hereunder have been placed in custody with the Custodian by or for the benefit of pursuant to this Agreement, good and valid title to such Selling Securityholder for Shares will pass to the purpose Underwriters, free of effecting delivery by such all restrictions on transfer, liens, encumbrances, security interests, equities and claims whatsoever.
(i) Such Selling Securityholder hereunderdoes not have any registration or other similar rights to have any equity or debt securities registered for sale by the Company under the Registration Statement or included in the offering contemplated by this Agreement, except for such rights as are being exercised in the offering contemplated by this Agreement or such rights as have been duly waived.
(j) Each certificate signed by such Such Selling Securityholder has no reason to believe that the representations and delivered warranties of the Company contained in Section 6.1 hereof are not true and correct, is familiar with the Registration Statement, the Time of Sale Information and the Prospectus Supplement, and has no knowledge of any material fact, condition or information not disclosed in the Registration Statement, the Time of Sale or the Prospectus Supplement that has had or may have a Material Adverse Effect, and is not prompted to sell shares of Common Stock by any information concerning the Representative Company that is not set forth in the Registration Statement, the Time of Sale Information or counsel for the Underwriters shall be deemed to be a representation and warranty by such Selling Securityholder to each Underwriter as to the matters covered therebyProspectus Supplement.
Appears in 1 contract
Representations and Warranties of the Selling Securityholders. Each Selling Securityholder, severally and not jointly, represents and warrants to, and agrees with, each of the several Underwriters that:
(a) Such Selling Securityholder has full power (corporate and authority other) to enter into this Agreement and to sell, assign, transfer and deliver to the Power Underwriters the Securities to be sold by such Selling Securityholder hereunder in accordance with the terms of Attorney and Custody Agreement (as hereinafter defined). All authorizations and consents necessary for this Agreement; the execution and delivery by such Selling Securityholder of this Agreement and the Power of Attorney and Custody Agreement and the performance of the transactions contemplated hereby and thereby have been obtained. Each duly authorized by all necessary corporate action of such Selling Securityholder; and this Agreement and the Power of Attorney and Custody Agreement has been duly authorized, executed and delivered by or on behalf of such Selling Securityholder and constitutes a valid and binding agreement of such Selling Securityholder and is enforceable against such Selling Securityholder in accordance with its terms, except, in the case of enforceability, as limited by applicable bankruptcy, insolvency, reorganization, moratorium or other laws now or hereafter in effect relating to or affecting creditors' rights generally or by general principles of equity relating to the availability of remedies and except as rights to indemnity and contribution may be limited by federal or state securities laws or the public policy underlying such lawsSecurityholder.
(b) Such Selling Securityholder now has, and at the time of delivery thereof hereunder will have, (i) has good and marketable title to the Shares Securities to be sold by such Selling Securityholder hereunderhereunder and upon sale and delivery of, and payment for, such Securities, as provided herein, such Selling Securityholder will convey good and marketable title to such Securities, free and clear of all security any interests, pledges, liens, encumbrances, equities, charges and claims whatsoever, and (ii) full legal right and power, and all authorizations and approvals required by law, except as required under the Act and the state Blue Sky laws or by the NASD, to sell, transfer and deliver the Shares to be sold by such Selling Securityholder to the Underwriters hereunder and to make the representations, warranties and agreements made by such Selling Securityholder herein. Upon the delivery of and payment for the Shares to be sold by such Selling Securityholder hereunder, such Selling Securityholder will deliver good and marketable title thereto, free and clear of all security interests, pledges, liens, encumbrances, equities, charges and claims whatsoeverother defects.
(c) On the Closing Date and the Additional Closing Date, if any, all stock transfer or other taxes (other than income taxes) which are required to be paid in connection with the sale and transfer of the Shares to be sold by such Selling Securityholder to the several Underwriters hereunder will have been fully paid or provided for by the Company and all laws imposing such taxes will have been complied with in all material respects.
(d) The execution, delivery and performance of this Agreement or the Power of Attorney and Custody Agreement and the consummation of the transactions contemplated hereby and thereby do not and will not (i) conflict with or result in a breach of any of the terms and provisions of, or constitute a default (or an event which with notice or lapse of time, or both, would constitute a default) under, or result in the creation or imposition of any lien, charge or encumbrance upon any property or assets of such Selling Securityholder pursuant to, any agreement, instrument, franchise, license or permit to which such Selling Securityholder is a party or by which such Selling Securityholder's properties or assets may be bound, (ii) with respect to each Selling Securityholder which is a corporation, violate or conflict with any provision of the certificate or articles of incorporation or bylaws of such Selling Securityholder, (iii) with respect to each Selling Securityholder which is a trust, violate or conflict with any provision of the declaration of trust of such Selling Securityholder, (iv) with respect to each Selling Securityholder which is a limited liability company, violate or conflict with any provisions of the articles of organization or operating agreement or regulations of such Selling Securityholder, or (v) violate or conflict with any judgment, decree, order, statute, rule or regulation of any court or any public, governmental or regulatory agency or body having jurisdiction over such Selling Securityholder or any of its properties or assets. No License is required for the execution, delivery and performance of this Agreement or the Power of Attorney and Custody Agreement or the consummation of the transactions contemplated hereby or thereby, including the issuance, sale and delivery of the Shares to be issued, sold and delivered by such Selling Securityholder hereunder, except the registration under the Act of the Shares and such consents, approvals, authorizations, orders, registrations, filings, qualifications, licenses and permits as may be required under state securities or Blue Sky laws in connection with the purchase and distribution of the Shares by the Underwriters.
(e) The sale of the Shares proposed to be sold by such Selling Securityholder is not prompted by such Selling Securityholder's knowledge of any material non-public information concerning the Company or any of its subsidiaries.
(f) At the time of the effectiveness of the Registration Statement or the effectiveness of any post-effective amendment to the Registration Statement, when the Prospectus is first filed with the Commission pursuant to Rule 424(b) of the Regulations, when any supplement to or amendment of the Prospectus is filed with the Commission and at the Closing Date and the Additional Closing Date, if any, all information required by Item 507 of Regulation S-K under the Act with respect to such Selling Securityholder contained in the Registration Statement and the Prospectus and any amendments thereof and supplements thereto complied or will comply in all material respects with Item 507 of Regulation S-K; the Registration Statement and the Prospectus and any amendments thereof and supplements thereto contains and will contain all statements with respect to such Selling Securityholder required to be stated therein in accordance with Item 507 of Regulation S-K and does not or will not contain an untrue statement of a material fact regarding such Selling Securityholder and does not or will not omit to state any material fact regarding such Selling Securityholder required to be stated therein by Item 507 of Regulation S-K or necessary in order to make the statements therein (i) in the case of the Registration Statement, not misleading and (ii) in the case of the Prospectus, in light of the circumstances under which they were made, not misleading. When any related preliminary prospectus was first filed with the Commission (whether filed as part of the registration statement for the registration of the Shares or any amendment thereto or pursuant to Rule 424(a) of the Regulations) and when any amendment thereof or supplement thereto was first filed with the Commission, all information required by Item 507 of Regulation S-K with respect to such Selling Securityholder contained in such preliminary prospectus and any amendments thereof and supplements thereto complied in all material respects with Item 507 of Regulation S-K and such preliminary prospectus and any amendments thereof and supplements thereto did not contain an untrue statement of a material fact regarding such Selling Securityholder and did not omit to state any material fact regarding such Selling Securityholder required to be stated therein by Item 507 of Regulation S-K or necessary in order to make the statements therein in light of the circumstances under which they were made not misleading.
(g) Other than as permitted by the Act and the Regulations, such Selling Securityholder has not distributed and will not distribute any preliminary prospectus, the Prospectus or any other offering material in connection with the offering and sale of the Shares. Such Selling Securityholder has not taken and will not takenot, directly or indirectly, (i) taken any action designed to cause or result in, or which constitutes that has constituted or which might reasonably be expected to constitute, the stabilization or manipulation of the price of any security of the shares of Common Stock Company to facilitate the sale or resale of the SharesSecurities or (ii) since the filing of the Registration Statement (A) sold, bid for, purchased, or paid anyone any compensation for soliciting purchases of, the Securities or (B) paid or agreed to pay to any person any compensation for soliciting another to purchase any other securities of the Company (except for the sale of Securities by the Selling Securityholders under this Agreement).
(hd) Such Selling Securityholder has duly executed reviewed the Prospectus (or, if the Prospectus is not in existence, the most recent Preliminary Prospectus) and delivered the Registration Statement, and the information regarding such Selling Securityholder set forth therein under the captions "Security Ownership of Management and Certain Beneficial Owners" and "Selling Stockholders" is complete and accurate.
(e) The sale by such Selling Securityholder of Securities pursuant hereto is not prompted by any adverse information concerning the Company that is not set forth in the form heretofore furnished Registration Statement or the Prospectus (or, if the Prospectus is not in existence, the most recent Preliminary Prospectus).
(f) The sale of the Securities to the RepresentativesUnderwriters by such Selling Securityholder pursuant to this Agreement, a power the compliance by such Selling Securityholder with the other provisions of attorney and custody agreement ("Power of Attorney and Custody Agreement") with ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ and ▇▇▇▇ ▇. ▇▇▇▇▇ as the attorney(s)-in-fact (each, an "Attorney-in-Fact") and Key Corp Shareholder Services, Inc. as the custodian (the "Custodian"); the Attorney-in-Fact is authorized to execute and deliver this Agreement and the certificates referred to in Section 6(f), to authorize the delivery consummation of the Shares other transactions herein contemplated do not (i) require the consent, approval, authorization, registration or qualification of or with any governmental authority, except such as have been obtained, such as may be required under state securities or blue sky laws and, if the registration statement filed with respect to the Securities (as amended) is not effective under the Act as of the time of execution hereof, such as may be sold hereunder required (and shall be obtained as provided in this Agreement) under the Act and the Exchange Act or (ii) conflict with or result in a breach or violation of any of the terms and provisions of, or constitute a default under any indenture, mortgage, deed of trust, lease or other agreement or instrument to which such Selling Securityholder or any of its subsidiaries is a party or by which such Selling Securityholder or any of its subsidiaries or any of such Selling Securityholder's properties are bound, to duly endorse (in blank or otherwise) the certificate charter documents or certificates representing such Shares, to accept payment therefor, and otherwise to act on behalf by-laws of such Selling Securityholder or any statute or any judgment, decree, order, rule or regulation of any court or other governmental authority or any arbitrator applicable to such Selling Securityholder or any of its subsidiaries.
(g) Neither of the Selling Securityholders has distributed and, prior to the later of (i) the Closing Date and (ii) the completion of the distribution of the Securities, will not distribute any offering material in connection with this Agreement.
(i) Certificates in negotiable formthe offering and sale of the Securities other than the Registration Statement or any amendment thereto, any Preliminary Prospectus or the Prospectus or any amendment or supplement thereto, or accompanied other materials, if any permitted by duly executed instruments of transfer or assignment in blank with signatures guaranteed, for all Shares to be sold by such Selling Securityholder hereunder have been placed in custody with the Custodian by or for the benefit of such Selling Securityholder for the purpose of effecting delivery by such Selling Securityholder hereunderAct.
(j) Each certificate signed by such Selling Securityholder and delivered to the Representative or counsel for the Underwriters shall be deemed to be a representation and warranty by such Selling Securityholder to each Underwriter as to the matters covered thereby.
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