Representations and Warranties of the Company and the Selling Stockholders. (a) The Company hereby represents and warrants to each Underwriter as follows: (i) On the Effective Date, the Registration Statement complied, and on the date of the Prospectus, on the date any post-effective amendment to the Registration Statement shall become effective, on the date any supplement or amendment to the Prospectus is filed with the Commission and on each Closing Date, the Registration Statement and the Prospectus (and any amendment thereof or supplement thereto) will comply, in all material respects, with the applicable provisions of the Securities Act and the Rules; (ii) The documents that are incorporated by reference in the preliminary prospectus and the Prospectus or from which information is so incorporated by reference, when they became effective or were filed with the Commission, as the case may be, complied in all material respects with the requirements of the Securities Act or the Securities Exchange Act of 1934, as amended (the "Exchange Act"), as applicable, and the rules and regulations of the Commission promulgated under the Securities Act and the Exchange Act, as applicable, except as amended and superseded by statements made in the Registration Statement; and any documents so filed and incorporated by reference subsequent to the Effective Date shall, when they are filed with the Commission, conform in all material respects with the requirements of the Securities Act or the Exchange Act, as applicable, and the rules and regulations of the Commission promulgated under the Securities Act and the Exchange Act, as applicable. (iii) The consolidated financial statements of the Company (including all notes and schedules thereto) included in the Registration Statement and Prospectus present fairly the financial position, the results of operations and cash flows and the stockholders' equity and the other information purported to be shown therein of the Company and its subsidiaries, listed on Schedule III hereto (the "Subsidiaries"), at the respective dates and for the respective (iv) KPMG Peat Marwick LLP, whose report is filed with the Commission as a part of the Registration Statement, is and, during the periods covered by its reports, was independent public accountants as required by the Securities Act and the Rules. (v) The Company has been duly incorporated and is a validly existing corporation under the laws of the State of Delaware, and the Subsidiaries have been duly incorporated and are validly existing corporations under the laws of their respective jurisdictions. Other than the Subsidiaries, the Company has no subsidiaries and does not control, directly or indirectly, any corporation, partnership, joint venture, association or other business organization, except as described in the Registration Statement and the Prospectus. Each of the Company and the Subsidiaries is duly qualified and in good standing as a foreign corporation in each jurisdiction in which the character or location of its assets or properties (owned, leased or licensed) or the nature of its business makes such qualification necessary except for such jurisdictions where the failure to so qualify would not have a material adverse effect on the assets or properties, business, results of operations or condition (financial or otherwise) of the Company and the Subsidiaries, taken as a whole (a "Material Adverse Effect"). Except as disclosed in the Registration Statement and the Prospectus, neither the Company nor the Subsidiaries own, lease or license any material asset or property or conduct any material business outside the United States of America. Each of the Company and the Subsidiaries have all requisite corporate power and authority, and all necessary authorizations, approvals, consents, orders, licenses, certificates and permits of and from all governmental or regulatory bodies or any other person or entity, to own, lease and license their assets and properties and conduct their businesses as now being conducted and as described in the Registration Statement and the Prospectus except for such authorizations, approvals, consents, orders, licenses, certificates and permits the failure to so obtain would not have a Material Adverse Effect; no such authorization, approval, consent, order, license, certificate or permit contains a materially burdensome restriction other than as disclosed in the Registration Statement and the Prospectus; and the Company has all such corporate power and authority, and such authorizations, approvals, consents, orders, licenses, certificates and permits to enter into, deliver and perform this Agreement and to issue and (vi) The Company and the Subsidiaries own or possess adequate and enforceable rights to use all patents, trademarks, trademark applications, trade names, service marks, copyrights, copyright applications, licenses, know-how and other similar rights and proprietary knowledge (collectively, "Intangibles") material to or necessary for the conduct of their business as described in the Registration Statement and the Prospectus. Except as disclosed in the Registration Statement and the Prospectus, neither the Company nor any of the Subsidiaries have received any notice of, and to their knowledge are not aware of, any infringement of or conflict with asserted rights of others with respect to any Intangibles which, singly or in the aggregate, if the subject of an unfavorable decision, ruling or finding, could be reasonably expected to have a Material Adverse Effect, and neither the Company nor the Subsidiaries know of any reasonable basis therefor. Except as disclosed in the Registration Statement and the Prospectus, to the knowledge of the Company, no Intangibles of the Company or the Subsidiaries are in dispute or are in any conflict with the right of any other person or entity and the Company and each of the Subsidiaries (A) has or will have the right (subject to applicable agreements, which agreements provide for use to the extent necessary and desirable for the conduct of its business as currently conducted and as proposed to be conducted) to use, free and clear of all liens, charges, claims, encumbrances, pledges, security interests, defects, restrictions or equities of any kind whatsoever all licenses and rights to the Intangibles used in the conduct of their business as now conducted or proposed to be conducted without infringing upon or otherwise acting adversely to the right or claimed right of any other person and (B) is not or will not become, as the case may be, obligated or in any way liable for any payment by way of royalties, fees or otherwise and to any owner or licensee of, or other claimant to, any Intangibles with respect to the use thereof or in connection with the conduct of their business or otherwise, except in each case as disclosed in the Prospectus and except for any such payments, claims, uses, liens, charges, encumbrances, pledges, security interests, defects, restrictions and equities which would not have a Material Adverse Effect. (vii) The Company and the Subsidiaries have good and marketable title to each of the items of personal property which are reflected in the financial statements referred to in Section 4(a)(ii) or are referred to in the Registration Statement and the Prospectus as being owned by them and valid and enforceable leasehold interests in each of the items of real and personal property which are referred to in the Registration Statement and the Prospectus as being leased by them, in each case free and clear of all liens, encumbrances, claims, security interests and defects, other than those described in the Registration Statement and the Prospectus and those which do not and will not have a Material Adverse Effect. (viii) Except as described in the Registration Statement and the Prospectus, there is no litigation or governmental or other proceeding or investigation before any court or before or by any public body or board pending or, to the Company's knowledge, threatened (and the Company does not know of any reasonable basis therefor) against, or involving the assets, properties or business of, the Company or the Subsidiaries which, if adversely determined, could be reasonably expected to have a Material Adverse Effect. (ix) Subsequent to the respective dates as of which information is given in the Registration Statement and the Prospectus, except as described therein, (A) there has not been any material adverse change in the assets or properties, business, results of operations, prospects or condition (financial or otherwise) of the Company or the Subsidiaries taken as a whole, whether or not arising from transactions in the ordinary course of business; (B) neither the Company nor any of the Subsidiaries has sustained any material loss or interference with its assets, businesses or properties (whether owned, leased or licensed) from fire, explosion, earthquake, flood or other calamity, whether or not covered by insurance, or from any labor dispute or any court or legislative or other governmental action, order or decree; and (C) since the date of the latest balance sheet included in the Registration Statement and the Prospectus, except as reflected therein, neither the Company nor any of the Subsidiaries has (x) issued any securities (other than options or shares issued pursuant to exercise of employee stock options or warrants described in the Registration Statement and Prospectus) or incurred any liability or obligation, direct or contingent, for borrowed money, except such liabilities or obligations incurred in the ordinary course of business, (y) entered into any transaction not in the ordinary course of business or (z) declared or paid any dividend or made any distribution on any shares of its stock or redeemed, purchased or otherwise acquired or agreed to redeem, purchase or otherwise acquire any shares of its stock. (x) There is no material document or contract of a character required to be described in the Registration Statement or Prospectus or to be filed as an exhibit to the Registration Statement which is not described or filed as required. Each agreement listed in the Exhibits to the Registration Statement is in full force and effect or has terminated in accordance with its terms or by amendment and such amendment has been filed as an Exhibit to the Registration Statement or has otherwise been provided to the Representatives and, if not so terminated, is valid and enforceable in all material respects by and against the Company or the Subsidiaries, as the case may be, in accordance with its terms, assuming the due authorization, execution and delivery thereof by each of the other parties thereto, except as the enforceability thereof may be limited by (i) bankruptcy, insolvency, reorganization, moratorium or other similar laws affecting the enforcement of creditors' rights generally and (ii) indemnification provisions under Federal and state securities laws; and that the remedy of specific forms of equitable relief may be subject to equitable defenses and the discretion of the court before which any such action may be brought. Neither the Company, the (xi) Neither the Company nor the Subsidiaries is in violation of any term or provision of their respective Certificate of Incorporation and By-laws, in each case as amended to the date hereof, or other governing documents, or of any franchise, license, permit, judgment, decree, order, statute, rule or regulation, where the consequences of such violation would have a Material Adverse Effect. Except as described in the Registration Statement or Prospectus, neither the Company nor any of the Subsidiaries intends to amend its Certificate of Incorporation and By-laws. (xii) Neither the execution, delivery and performance of this Agreement by the Company or the Subsidiaries nor the consummation of any of the transactions contemplated hereby (including, without limitation, the issuance and sale by the Company of the Shares) will give rise to a right to terminate or accelerate the due date of any payment due under, or conflict with or result in the breach of any term or provision of, or constitute a default (or an event which with notice or lapse of time or both would constitute a default) under, or require any consent or waiver under, or result in the execution or imposition of any lien, charge or encumbrance upon any properties or assets of the Company or any of the Subsidiaries pursuant to the terms of, any indenture, mortgage, deed of trust or other agreement or instrument to which the Company or any of the Subsidiaries is a party or by which it or any of its properties or businesses are bound, or any franchise, license, permit, judgment, decree, order, statute, rule or regulation applicable to the Company or any of the Subsidiaries or violate any provision of the Certificate of Incorporation and By-laws of the Company or any of the Subsidiaries, except for such consents or waivers which have already been obtained and are in full force and effect or as would not have a Material Adverse Effect. No consent, approval, authorization, order, registration or qualification of or with any United States court or governmental agency or body is required for the issue and sale of the Shares or the consummation of the other transactions contemplated by this Agreement, which have not been obtained prior to the date hereof, except the registration under the Securities Act of the Shares, and such consents, approvals, authorizations, registrations or qualifications as may be required under state securities or Blue Sky laws -9- 10 in connection with the purchase and distribution of the Shares by the Underwriters. (xiii) The authorized, issued and outstanding capital stock of the Company and the capital stock reserved or committed for issuance is as set forth under the caption "Capitalization" in the Prospectus. All of the outstanding shares of Stock have been duly and validly issued and are fully paid and nonassessable, none of them was issued in violation of any preemptive or other similar right and, to the Company's knowledge, since 1991, none of them were issued in violation of any Federal or state securities laws. The Shares, when issued and sold pursuant to this Agreement, will be duly and validly issued, fully paid and nonassessable, none of them will be issued in violation of any preemptive or other similar right, any contractual right, including, without limitation, rights of first refusal, and, since 1991, none of them were issued in violation of any (subject to compliance with Section 1(c) hereof), Federal or state securities laws. Except as disclosed in the Registration Statement and the Prospectus, there is no outstanding option, warrant or other right calling for the issuance of, and there is no commitment, plan or arrangement to issue, any shares of Common Stock of the Company or any security convertible into, or exercisable or exchangeable for, such shares of Stock. The shares of Stock conform in all material respects to all statements in relation thereto contained in the Registration Statement and the Prospectus. The Company has a sufficient number of authorized but unissued shares of Stock to enable the Company to issue, without further stockholder action, or approve all the Shares to be sold by the Company. (xiv) As of the date hereof, and as of each Closing Date, all of the outstanding shares of capital stock of the Subsidiaries are duly and validly authorized and issued, are fully paid and nonassessable and are and will be owned by the Company and there is and will be no outstanding option, warrant or other right calling for the issuance of, and no commitment, plan or arrangement to issue any share of capital stock of the Subsidiaries or any security convertible or exchangeable or exercisable for capital stock of the Subsidiaries, except as otherwise described in the Registration Statement and Prospectus. (xv) Except as set forth in the Registration Statement and Prospectus, no holder of any security of the Company has the right to have any security owned by such holder included in the Registration Statement or to demand registration of any security owned by such holder during the period ending 90 days after the date of this Agreement. Each Selling Stockholder and each director and executive officer of the Company has delivered to

Appears in 2 contracts

Sources: Underwriting Agreement (Aeroflex Inc), Underwriting Agreement (Aeroflex Inc)

Representations and Warranties of the Company and the Selling Stockholders. (a) The Company ~~hereby~~ represents and warrants ~~to each Underwriter as follows~~to, and agrees with, the several Underwriters that: (i) On A registration statement (No. 333-119131) relating to the ~~Effective Date~~Offered Securities, including a form of prospectus, has been filed with the Securities and Exchange Commission ("Commission") and either (A) has been declared effective under the Securities Act of 1933 ("Act") and is not proposed to be amended or (B) is proposed to be amended by amendment or post-effective amendment. If such registration statement (the "initial registration statement") has been declared effective, either (A) an additional registration statement (the "additional registration statement") relating to the Offered Securities may have been filed with the Commission pursuant to Rule 462(b) ("Rule 462(b)") under the Act and, if so filed, has become effective upon filing pursuant to such Rule and the Offered Securities all have been duly registered under the Act pursuant to the initial registration statement and, if applicable, the ~~Registration Statement complied~~additional registration statement or (B) such an additional registration statement is proposed to be filed with the Commission pursuant to Rule 462(b) and will become effective upon filing pursuant to such Rule and upon such filing the Offered Securities will all have been duly registered under the Act pursuant to the initial registration statement and such additional registration statement. If the Company does not propose to amend the initial registration statement or if an additional registration statement has been filed and the Company does not propose to amend it, and ~~on the date of the Prospectus, on the date~~ if any post-effective amendment to ~~the Registration Statement shall become effective, on the date any supplement or amendment to the Prospectus is~~ either such registration statement has been filed with the Commission prior to the execution and ~~on each Closing Date~~delivery of this Agreement, the ~~Registration Statement and~~ most recent amendment (if any) to each such registration statement has been declared effective by the ~~Prospectus~~ Commission or has become effective upon filing pursuant to Rule 462(c) (~~and any amendment thereof or supplement thereto~~"Rule 462(c)") ~~will comply~~under the Act or, in ~~all material respects, with~~ the ~~applicable provisions~~ case of the ~~Securities Act~~ additional registration statement, Rule 462(b). For purposes of this Agreement, "Effective Time" with respect to the initial registration statement or, if filed prior to the execution and delivery of this Agreement, the ~~Rules;~~ additional registration statement means (iiA) ~~The documents~~ if the Company has advised the Representative that ~~are incorporated~~ it does not propose to amend such registration statement, the date and time as of which such registration statement, or the most recent post-effective amendment thereto (if any) filed prior to the execution and delivery of this Agreement, was declared effective by ~~reference in~~ the ~~preliminary prospectus~~ Commission or has become effective upon filing pursuant to Rule 462(c), or (B) if the Company has advised the Representative that it proposes to file an amendment or post-effective amendment to such registration statement, the date and ~~the Prospectus~~ time as of which such registration statement, as amended by such amendment or ~~from which information is so incorporated by reference, when they became~~ post-effective ~~or were filed with the Commission~~amendment, as the case may be, ~~complied~~ is declared effective by the Commission. If an additional registration statement has not been filed prior to the execution and delivery of this Agreement but the Company has advised the Representative that it proposes to file one, "Effective Time" with respect to such additional registration statement means the date and time as of which such registration statement is filed and becomes effective pursuant to Rule 462(b). "Effective Date" with respect to the initial registration statement or the additional registration statement (if any) means the date of the Effective Time thereof. The initial registration statement, as amended at its Effective Time, including all material incorporated by reference therein, including all information contained in the additional registration statement (if any) and deemed to be a part of the initial registration statement as of the Effective Time of the additional registration statement pursuant to the General Instructions of the Form on which it is filed and including all information (if any) deemed to be a part of the initial registration statement as of its Effective Time pursuant to Rule 430A(b) ("Rule 430A(b)") under the Act, is hereinafter referred to as the "Initial Registration Statement". The additional registration statement, as amended at its Effective Time, including the contents of the initial registration statement incorporated by reference therein and including all information (if any) deemed to be a part of the additional registration statement as of its Effective Time pursuant to Rule 430A(b), is hereinafter referred to as the "Additional Registration Statement". The Initial Registration Statement and the Additional Registration Statement are hereinafter referred to collectively as the "Registration Statements" and individually as a "Registration Statement". The form of prospectus relating to the Offered Securities, as first filed with the Commission pursuant to and in accordance with Rule 424(b) ("Rule 424(b)") under the Act or (if no such filing is required) as included in a Registration Statement, including all material incorporated by reference in such prospectus, is hereinafter referred to as the "Prospectus". No document has been or will be prepared or distributed in reliance on Rule 434 under the Act. (ii) If the Effective Time of the Initial Registration Statement is prior to the execution and delivery of this Agreement: (A) on the Effective Date of the Initial Registration Statement, the Initial Registration Statement conformed in all ~~material~~ respects ~~with~~ to the requirements of the ~~Securities~~ Act ~~or the Securities Exchange Act of 1934, as amended (the "Exchange Act"), as applicable,~~ and the rules and regulations of the Commission ~~promulgated under~~ ("Rules and Regulations") and did not include any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the ~~Securities Act and the Exchange Act~~statements therein not misleading, ~~as applicable, except as amended and superseded by statements made in the Registration Statement; and any documents so filed and incorporated by reference subsequent to~~ (B) on the Effective Date ~~shall~~of the Additional Registration Statement (if any), ~~when they are filed with the Commission~~each Registration Statement conformed or will conform, ~~conform~~ in all ~~material~~ respects ~~with~~ to the requirements of the ~~Securities Act or the Exchange Act, as applicable, and the rules and regulations of the Commission promulgated under the Securities~~ Act and the ~~Exchange Act~~Rules and Regulations and did not include, or will not include, any untrue statement of a material fact and did not omit, or will not omit, to state any material fact required to be stated therein or necessary to make the statements therein not misleading, and (C) on the date of this Agreement, the Initial Registration Statement and, if the Effective Time of the Additional Registration Statement is prior to the execution and delivery of this Agreement, the Additional Registration Statement each conforms, and at the time of filing of the Prospectus pursuant to Rule 424(b) or (if no such filing is required) at the Effective Date of the Additional Registration Statement in which the Prospectus is included, each Registration Statement and the Prospectus will conform, in all respects to the requirements of the Act and the Rules and Regulations, and neither of such documents includes, or will include, any untrue statement of a material fact or omits, or will omit, to state any material fact required to be stated therein or necessary to make the statements therein not misleading. If the Effective Time of the Initial Registration Statement is subsequent to the execution and delivery of this Agreement: on the Effective Date of the Initial Registration Statement, the Initial Registration Statement and the Prospectus will conform in all respects to the requirements of the Act and the Rules and Regulations, neither of such documents will include any untrue statement of a material fact or will omit to state any material fact required to be stated therein or necessary to make the statements therein not misleading, and no Additional Registration Statement has been or will be filed. The two preceding sentences do not apply to statements in or omissions from a Registration Statement or the Prospectus based upon written information furnished to the Company by any Underwriter through the Representative specifically for use therein, it being understood and agreed that the only such information is that described as ~~applicable~~such in Section 7(c) hereof. (iii) The consolidated financial statements of the Company (including all notes and schedules thereto) included in the Registration Statement and Prospectus present fairly the financial position, the results of operations and cash flows and the stockholders' equity and the other information purported to be shown therein of the Company and its subsidiaries, listed on Schedule III hereto (the "Subsidiaries"), at the respective dates and for the respective (iv) KPMG Peat Marwick LLP, whose report is filed with the Commission as a part of the Registration Statement, is and, during the periods covered by its reports, was independent public accountants as required by the Securities Act and the Rules. (v) The Company has been duly incorporated and is ~~a validly~~ an existing corporation in good standing under the laws of the State of ~~Delaware~~Texas, with power and ~~the Subsidiaries have been duly incorporated~~ authority (corporate and ~~are validly existing corporations under the laws of their respective jurisdictions. Other than the Subsidiaries, the Company has no subsidiaries~~ other) to own its properties and ~~does not control, directly or indirectly, any corporation, partnership, joint venture, association or other~~ conduct its business ~~organization, except~~ as described in the ~~Registration Statement and the~~ Prospectus~~. Each of~~ ; the Company ~~and the Subsidiaries~~ is duly qualified ~~and in good standing~~ to do business as a foreign corporation in ~~each jurisdiction~~ good standing in all other jurisdictions in which ~~the character~~ its ownership or ~~location~~ lease of ~~its assets or properties (owned, leased or licensed)~~ property or the ~~nature~~ conduct of its business ~~makes~~ requires such ~~qualification necessary~~ qualification, except ~~for such jurisdictions~~ where the failure to be so ~~qualify~~ qualified would ~~not~~ not, individually or in the aggregate, have a material adverse effect on the ~~assets or properties, business, results of operations or~~ condition (financial or ~~otherwise)~~ other), business, properties or results of operations of the Company and ~~the Subsidiaries,~~ its subsidiaries taken as a whole (a "Material Adverse Effect"). ; and Texas is the only jurisdiction in which the Company maintains an office or leases property. (iv) Each subsidiary of the Company has been duly incorporated and is an existing corporation in good standing under the laws of the jurisdiction of its incorporation, with power and authority (corporate and other) to own or lease its properties and conduct its business as described in the Prospectus; and each subsidiary of the Company is duly qualified to do business as a foreign corporation in good standing in all other jurisdictions in which its ownership or lease of property or the conduct of its business requires such qualification, except where the failure to be so qualified would not, individually or in the aggregate, have a Material Adverse Effect; the jurisdictions listed on Exhibit A to the opinion to be delivered to the Underwriters by Fulbright & ▇▇▇▇▇▇▇▇ L.L.P. pursuant to Section 6(e) hereof are the only jurisdictions in which the Company's subsidiaries maintain an office or lease property; all of the issued and outstanding capital stock of each subsidiary of the Company has been duly authorized and validly issued and is fully paid and nonassessable; and the capital stock of each subsidiary owned by the Company, directly or through subsidiaries, is owned free from liens, encumbrances and defects (other than transfer restrictions imposed under applicable securities laws). (v) The Offered Securities and all other outstanding shares of capital stock of the Company have been duly authorized and validly issued, fully paid and nonassessable and conform in all material respects to the description thereof contained in the Prospectus; and the stockholders of the Company have no preemptive rights with respect to the Securities. (vi) Except as disclosed in the Prospectus, there are no contracts, agreements or understandings between the Company and any person that would give rise to a valid claim against the Company or any Underwriter for a brokerage commission, finder's fee or other like payment in connection with this offering. (vii) There are no contracts, agreements or understandings between the Company and any person granting such person the right to require the Company to file a registration statement under the Act with respect to any securities of the Company owned or to be owned by such person or to require the Company to include such securities in the securities registered pursuant to a Registration Statement or in any securities being registered pursuant to any other registration statement filed by the Company under the Act. (viii) The Securities have been approved for listing subject to notice of issuance on The Nasdaq Stock Market's National Market. (ix) No consent, approval, authorization, or order of, or filing with, any governmental agency or body or any court is required to be obtained or made by the Company for the consummation of the transactions contemplated by this Agreement in connection with the sale of the Offered Securities, except such as have been obtained and made under the Act and such as may be required under state securities laws, the Securities Exchange Act of 1934 (the "Exchange Act") or rules of the National Association of Securities Dealers, Inc. (the "NASD"). (x) The execution, delivery and performance of this Agreement, and the consummation of the transactions herein contemplated will not result in a breach or violation of any of the terms and provisions of, or constitute a default under, (i) any statute, any rule, regulation or order of any governmental agency or body or any court, domestic or foreign, having jurisdiction over the Company or any subsidiary of the Company or any of their properties, or (ii) any agreement or instrument to which the Company or any such subsidiary is a party or by which the Company or any such subsidiary is bound or to which any of the properties of the Company or any such subsidiary is subject, or (iii) the charter or by-laws of the Company or any such subsidiary, other than in the case of (ii), conflicts or breaches that, individually or in the aggregate, would not be reasonably expected to have a Material Adverse Effect. (xi) This Agreement has been duly authorized, executed and delivered by the Company. (xii) Except as disclosed in the Prospectus, ~~neither the Company nor the Subsidiaries own, lease or license any material asset or property or conduct any material business outside the United States of America. Each of~~ the Company and ~~the Subsidiaries~~ its subsidiaries have good and marketable title to all ~~requisite corporate power and authority,~~ real properties and all ~~necessary authorizations, approvals, consents, orders, licenses, certificates and permits of and from all governmental or regulatory bodies or any~~ other ~~person or entity, to own, lease and license their assets and~~ properties and ~~conduct their businesses~~ assets owned by them, in each case free from liens, encumbrances and defects that would materially affect the value thereof or materially interfere with the use made or to be made thereof by them; and except as ~~now being conducted and as described~~ disclosed in the ~~Registration Statement~~ Prospectus, the Company and its subsidiaries hold any leased real or personal property under valid and enforceable leases with no exceptions that would materially interfere with the ~~Prospectus~~ use made or to be made thereof by them. (xiii) The Company and its subsidiaries possess adequate certificates, authorities or permits issued by appropriate governmental agencies or bodies necessary to conduct the business now operated by them, except for such ~~authorizations~~certificates, ~~approvals, consents, orders, licenses, certificates and~~ authorities or permits the ~~failure to so obtain~~ absence of which, individually or in the aggregate, would not have a Material Adverse Effect~~; no~~ , and have not received any notice of proceedings relating to the revocation or modification of any such ~~authorization~~certificate, ~~approval, consent, order, license, certificate~~ authority or permit ~~contains a materially burdensome restriction other than as disclosed~~ that, if determined adversely to the Company or any of its subsidiaries, would individually or in the ~~Registration Statement and~~ aggregate have a Material Adverse Effect. (xiv) No labor dispute with the ~~Prospectus; and~~ employees of the Company ~~has all such corporate power and authority~~or any subsidiary exists or, ~~and such authorizations~~to the knowledge of the Company, ~~approvals, consents, orders, licenses, certificates and permits to enter into, deliver and perform this Agreement and to issue and~~is imminent that might have a Material Adverse Effect. (vixv) The Company and ~~the Subsidiaries own~~ its subsidiaries own, possess or ~~possess~~ can acquire on reasonable terms, adequate trademarks, trade names and ~~enforceable~~ other rights to ~~use all~~ inventions, know-how, patents~~, trademarks, trademark applications, trade names, service marks~~, copyrights, ~~copyright applications, licenses, know-how~~ confidential information and other ~~similar rights and proprietary knowledge~~ intellectual property (collectively, "~~Intangibles~~intellectual property rights") ~~material~~ necessary to conduct the business now operated by them, or ~~necessary for the conduct of their business as described in the Registration Statement~~ presently employed by them, and ~~the Prospectus. Except as disclosed in the Registration Statement and the Prospectus, neither the Company nor any of the Subsidiaries~~ have not received any notice ~~of, and to their knowledge are not aware of, any~~ of infringement of or conflict with asserted rights of others with respect to any ~~Intangibles which~~intellectual property rights that, ~~singly~~ if determined adversely to the Company or any of its subsidiaries, would individually or in the aggregate, if the subject of an unfavorable decision, ruling or finding, could be reasonably expected to have a Material Adverse Effect, and neither the Company nor the Subsidiaries know of any reasonable basis therefor. Except as disclosed in the Registration Statement and the Prospectus, to the knowledge of the Company, no Intangibles of the Company or the Subsidiaries are in dispute or are in any conflict with the right of any other person or entity and the Company and each of the Subsidiaries (A) has or will have the right (subject to applicable agreements, which agreements provide for use to the extent necessary and desirable for the conduct of its business as currently conducted and as proposed to be conducted) to use, free and clear of all liens, charges, claims, encumbrances, pledges, security interests, defects, restrictions or equities of any kind whatsoever all licenses and rights to the Intangibles used in the conduct of their business as now conducted or proposed to be conducted without infringing upon or otherwise acting adversely to the right or claimed right of any other person and (B) is not or will not become, as the case may be, obligated or in any way liable for any payment by way of royalties, fees or otherwise and to any owner or licensee of, or other claimant to, any Intangibles with respect to the use thereof or in connection with the conduct of their business or otherwise, except in each case as disclosed in the Prospectus and except for any such payments, claims, uses, liens, charges, encumbrances, pledges, security interests, defects, restrictions and equities which would not aggregate have a Material Adverse Effect. (vii) The Company and the Subsidiaries have good and marketable title to each of the items of personal property which are reflected in the financial statements referred to in Section 4(a)(ii) or are referred to in the Registration Statement and the Prospectus as being owned by them and valid and enforceable leasehold interests in each of the items of real and personal property which are referred to in the Registration Statement and the Prospectus as being leased by them, in each case free and clear of all liens, encumbrances, claims, security interests and defects, other than those described in the Registration Statement and the Prospectus and those which do not and will not have a Material Adverse Effect. (viiixvi) Except as ~~described~~ disclosed in the Registration Statement and the Prospectus, there is no litigation or governmental or other proceeding or investigation before any court or before or by any public body or board pending or, to the Company's knowledge, threatened (and the Company does not know of any reasonable basis therefor) against, or involving the assets, properties or business of, the Company or the Subsidiaries which, if adversely determined, could be reasonably expected to have a Material Adverse Effect. (ix) Subsequent to the respective dates as of which information is given in the Registration Statement and the Prospectus, except as described therein, (A) there has not been any material adverse change in the assets or properties, business, results of operations, prospects or condition (financial or otherwise) of the Company or the Subsidiaries taken as a whole, whether or not arising from transactions in the ordinary course of business; (B) neither the Company nor any of the Subsidiaries has sustained any material loss or interference with its assets, businesses or properties (whether owned, leased or licensed) from fire, explosion, earthquake, flood or other calamity, whether or not covered by insurance, or from any labor dispute or any court or legislative or other governmental action, order or decree; and (C) since the date of the latest balance sheet included in the Registration Statement and the Prospectus, except as reflected therein, neither the Company nor any of the Subsidiaries has (x) issued any securities (other than options or shares issued pursuant to exercise of employee stock options or warrants described in the Registration Statement and Prospectus) or incurred any liability or obligation, direct or contingent, for borrowed money, except such liabilities or obligations incurred in the ordinary course of business, (y) entered into any transaction not in the ordinary course of business or (z) declared or paid any dividend or made any distribution on any shares of its stock or redeemed, purchased or otherwise acquired or agreed to redeem, purchase or otherwise acquire any shares of its stock. (x) There is no material document or contract of a character required to be described in the Registration Statement or Prospectus or to be filed as an exhibit to the Registration Statement which is not described or filed as required. Each agreement listed in the Exhibits to the Registration Statement is in full force and effect or has terminated in accordance with its terms or by amendment and such amendment has been filed as an Exhibit to the Registration Statement or has otherwise been provided to the Representatives and, if not so terminated, is valid and enforceable in all material respects by and against the Company or the Subsidiaries, as the case may be, in accordance with its terms, assuming the due authorization, execution and delivery thereof by each of the other parties thereto, except as the enforceability thereof may be limited by (i) bankruptcy, insolvency, reorganization, moratorium or other similar laws affecting the enforcement of creditors' rights generally and (ii) indemnification provisions under Federal and state securities laws; and that the remedy of specific forms of equitable relief may be subject to equitable defenses and the discretion of the court before which any such action may be brought. Neither the Company, the (xi) Neither the Company nor the Subsidiaries is in violation of any term or provision of their respective Certificate of Incorporation and By-laws, in each case as amended to the date hereof, or other governing documents, or of any franchise, license, permit, judgment, decree, order, statute, rule or regulation, where the consequences of such violation would have a Material Adverse Effect. Except as described in the Registration Statement or Prospectus, neither the Company nor any of its subsidiaries is in violation of any statute, any rule, regulation, decision or order of any governmental agency or body or any court, domestic or foreign, relating to the ~~Subsidiaries intends~~ use, disposal or release of hazardous or toxic substances or relating to ~~amend its Certificate~~ the protection or restoration of ~~Incorporation~~ the environment or human exposure to hazardous or toxic substances (collectively, "environmental laws"), owns or operates any real property contaminated with any substance that is subject to any environmental laws, is liable for any off-site disposal or contamination pursuant to any environmental laws, or is subject to any claim relating to any environmental laws, which violation, contamination, liability or claim would individually or in the aggregate have Material Adverse Effect; and ~~By-laws~~the Company is not aware of any pending investigation which might lead to such a claim. (~~xii~~xvii) ~~Neither~~ Except as disclosed in the ~~execution~~Prospectus, ~~delivery and performance of this Agreement by~~ there are no pending actions, suits or proceedings against or affecting the ~~Company or the Subsidiaries nor the consummation of~~ Company, any of the transactions contemplated hereby (including, without limitation, the issuance and sale by the Company of the Shares) will give rise to a right to terminate or accelerate the due date of any payment due under, or conflict with or result in the breach of any term or provision of, or constitute a default (or an event which with notice or lapse of time or both would constitute a default) under, or require any consent or waiver under, or result in the execution or imposition of any lien, charge or encumbrance upon any properties or assets of the Company its subsidiaries or any of ~~the Subsidiaries pursuant to the terms of~~their respective properties that, any indenture, mortgage, deed of trust or other agreement or instrument to which the Company or any of the Subsidiaries is a party or by which it or any of its properties or businesses are bound, or any franchise, license, permit, judgment, decree, order, statute, rule or regulation applicable if determined adversely to the Company or any of its subsidiaries, would individually or in the Subsidiaries or violate any provision of the Certificate of Incorporation and By-laws of the Company or any of the Subsidiaries, except for such consents or waivers which have already been obtained and are in full force and effect or as would not aggregate have a Material Adverse Effect. No consent, approval, authorization, order, registration or qualification of or with any United States court or governmental agency or body is required for the issue and sale of the Shares or the consummation of the other transactions contemplated by this Agreement, which have not been obtained prior to the date hereof, except the registration under the Securities Act of the Shares, and such consents, approvals, authorizations, registrations or qualifications as may be required under state securities or Blue Sky laws -9- 10 in connection with the purchase and distribution of the Shares by the Underwriters. (xiii) The authorized, issued and outstanding capital stock of the Company and the capital stock reserved or committed for issuance is as set forth under the caption "Capitalization" in the Prospectus. All of the outstanding shares of Stock have been duly and validly issued and are fully paid and nonassessable, none of them was issued in violation of any preemptive or other similar right and, to the Company's knowledge, since 1991, none of them were issued in violation of any Federal or state securities laws. The Shares, when issued and sold pursuant to this Agreement, will be duly and validly issued, fully paid and nonassessable, none of them will be issued in violation of any preemptive or other similar right, any contractual right, including, without limitation, rights of first refusal, and, since 1991, none of them were issued in violation of any (subject to compliance with Section 1(c) hereof), Federal or state securities laws. Except as disclosed in the Registration Statement and the Prospectus, there is no outstanding option, warrant or other right calling for the issuance of, and there is no commitment, plan or arrangement to issue, any shares of Common Stock of the Company or any security convertible into, or exercisable or exchangeable for, such shares of Stock. The shares of Stock conform in all material respects to all statements in relation thereto contained in the Registration Statement and the Prospectus. The Company has a sufficient number of authorized but unissued shares of Stock to enable the Company to issue, without further stockholder action, or approve all the Shares to be sold by the Company. (xiv) As of the date hereof, and as of each Closing Date, all of the outstanding shares of capital stock of the Subsidiaries are duly and validly authorized and issued, are fully paid and nonassessable and are and will be owned by the Company and there is and will be no outstanding option, warrant or other right calling for the issuance of, and no commitment, plan or arrangement to issue any share of capital stock of the Subsidiaries or any security convertible or exchangeable or exercisable for capital stock of the Subsidiaries, except as otherwise described in the Registration Statement and Prospectus. (xv) Except as set forth in the Registration Statement and Prospectus, no holder of any security of the Company has the right to have any security owned by such holder included in the Registration Statement or to demand registration of any security owned by such holder during the period ending 90 days after the date of this Agreement. Each Selling Stockholder and each director and executive officer of the Company has delivered towould materially

Appears in 2 contracts

Sources: Underwriting Agreement (Rush Enterprises Inc \Tx\), Underwriting Agreement (Rush Enterprises Inc \Tx\)

Representations and Warranties of the Company and the Selling Stockholders. (a) The Company ~~hereby~~ represents and warrants to to, and agrees with, each ~~Underwriter as follows~~of the Underwriters that: (i) On the Effective Date, the Registration Statement complied, and on the date of the Prospectus, on the date any post-effective amendment to the Registration Statement shall become effective, on the date any supplement or amendment to the Prospectus is The Company has filed with the Securities and Exchange Commission and on each Closing Date, the Registration Statement and the Prospectus (and any amendment thereof or supplement thereto) will comply, in all material respects, with the applicable provisions of the Securities Act and the Rules; (ii) The documents that are incorporated by reference in the preliminary prospectus and the Prospectus or from which information is so incorporated by reference, when they became effective or were filed with the Commission, as the case may be, complied in all material respects with the requirements of the Securities Act or the Securities Exchange Act of 1934, as amended (the "~~Exchange Act~~Commission") a registration statement on Form S-3 (No. 333-110182), ~~as applicable~~and amendments thereto, and the rules and regulations of the Commission promulgated under the Securities Act and the Exchange Act, as applicable, except as amended and superseded by statements made in the Registration Statement; and any documents so filed and incorporated by reference subsequent to the Effective Date shall, when they are filed with the Commission, conform in all material respects with the requirements of the Securities Act or the Exchange Act, as applicable, and the rules and regulations of the Commission promulgated under the Securities Act and the Exchange Act, as applicable. (iii) The consolidated financial statements of the Company (including all notes and schedules thereto) included in the Registration Statement and Prospectus present fairly the financial position, the results of operations and cash flows and the stockholders' equity and the other information purported to be shown therein of the Company and its subsidiaries, listed on Schedule III hereto (the "Subsidiaries"), at the respective dates and related preliminary prospectuses for the respective (iv) KPMG Peat Marwick LLP, whose report is filed with the Commission as a part of the Registration Statement, is and, during the periods covered by its reports, was independent public accountants as required by the Securities Act and the Rules. (v) The Company has been duly incorporated and is a validly existing corporation under the laws of the State of Delaware, and the Subsidiaries have been duly incorporated and are validly existing corporations under the laws of their respective jurisdictions. Other than the Subsidiaries, the Company has no subsidiaries and does not control, directly or indirectly, any corporation, partnership, joint venture, association or other business organization, except as described in the Registration Statement and the Prospectus. Each of the Company and the Subsidiaries is duly qualified and in good standing as a foreign corporation in each jurisdiction in which the character or location of its assets or properties (owned, leased or licensed) or the nature of its business makes such qualification necessary except for such jurisdictions where the failure to so qualify would not have a material adverse effect on the assets or properties, business, results of operations or condition (financial or otherwise) of the Company and the Subsidiaries, taken as a whole (a "Material Adverse Effect"). Except as disclosed in the Registration Statement and the Prospectus, neither the Company nor the Subsidiaries own, lease or license any material asset or property or conduct any material business outside the United States of America. Each of the Company and the Subsidiaries have all requisite corporate power and authority, and all necessary authorizations, approvals, consents, orders, licenses, certificates and permits of and from all governmental or regulatory bodies or any other person or entity, to own, lease and license their assets and properties and conduct their businesses as now being conducted and as described in the Registration Statement and the Prospectus except for such authorizations, approvals, consents, orders, licenses, certificates and permits the failure to so obtain would not have a Material Adverse Effect; no such authorization, approval, consent, order, license, certificate or permit contains a materially burdensome restriction other than as disclosed in the Registration Statement and the Prospectus; and the Company has all such corporate power and authority, and such authorizations, approvals, consents, orders, licenses, certificates and permits to enter into, deliver and perform this Agreement and to issue and (vi) The Company and the Subsidiaries own or possess adequate and enforceable rights to use all patents, trademarks, trademark applications, trade names, service marks, copyrights, copyright applications, licenses, know-how and other similar rights and proprietary knowledge (collectively, "Intangibles") material to or necessary for the conduct of their business as described in the Registration Statement and the Prospectus. Except as disclosed in the Registration Statement and the Prospectus, neither the Company nor any of the Subsidiaries have received any notice of, and to their knowledge are not aware of, any infringement of or conflict with asserted rights of others with respect to any Intangibles which, singly or in the aggregate, if the subject of an unfavorable decision, ruling or finding, could be reasonably expected to have a Material Adverse Effect, and neither the Company nor the Subsidiaries know of any reasonable basis therefor. Except as disclosed in the Registration Statement and the Prospectus, to the knowledge of the Company, no Intangibles of the Company or the Subsidiaries are in dispute or are in any conflict with the right of any other person or entity and the Company and each of the Subsidiaries (A) has or will have the right (subject to applicable agreements, which agreements provide for use to the extent necessary and desirable for the conduct of its business as currently conducted and as proposed to be conducted) to use, free and clear of all liens, charges, claims, encumbrances, pledges, security interests, defects, restrictions or equities of any kind whatsoever all licenses and rights to the Intangibles used in the conduct of their business as now conducted or proposed to be conducted without infringing upon or otherwise acting adversely to the right or claimed right of any other person and (B) is not or will not become, as the case may be, obligated or in any way liable for any payment by way of royalties, fees or otherwise and to any owner or licensee of, or other claimant to, any Intangibles with respect to the use thereof or in connection with the conduct of their business or otherwise, except in each case as disclosed in the Prospectus and except for any such payments, claims, uses, liens, charges, encumbrances, pledges, security interests, defects, restrictions and equities which would not have a Material Adverse Effect. (vii) The Company and the Subsidiaries have good and marketable title to each of the items of personal property which are reflected in the financial statements referred to in Section 4(a)(ii) or are referred to in the Registration Statement and the Prospectus as being owned by them and valid and enforceable leasehold interests in each of the items of real and personal property which are referred to in the Registration Statement and the Prospectus as being leased by them, in each case free and clear of all liens, encumbrances, claims, security interests and defects, other than those described in the Registration Statement and the Prospectus and those which do not and will not have a Material Adverse Effect. (viii) Except as described in the Registration Statement and the Prospectus, there is no litigation or governmental or other proceeding or investigation before any court or before or by any public body or board pending or, to the Company's knowledge, threatened (and the Company does not know of any reasonable basis therefor) against, or involving the assets, properties or business of, the Company or the Subsidiaries which, if adversely determined, could be reasonably expected to have a Material Adverse Effect. (ix) Subsequent to the respective dates as of which information is given in the Registration Statement and the Prospectus, except as described therein, (A) there has not been any material adverse change in the assets or properties, business, results of operations, prospects or condition (financial or otherwise) of the Company or the Subsidiaries taken as a whole, whether or not arising from transactions in the ordinary course of business; (B) neither the Company nor any of the Subsidiaries has sustained any material loss or interference with its assets, businesses or properties (whether owned, leased or licensed) from fire, explosion, earthquake, flood or other calamity, whether or not covered by insurance, or from any labor dispute or any court or legislative or other governmental action, order or decree; and (C) since the date of the latest balance sheet included in the Registration Statement and the Prospectus, except as reflected therein, neither the Company nor any of the Subsidiaries has (x) issued any securities (other than options or shares issued pursuant to exercise of employee stock options or warrants described in the Registration Statement and Prospectus) or incurred any liability or obligation, direct or contingent, for borrowed money, except such liabilities or obligations incurred in the ordinary course of business, (y) entered into any transaction not in the ordinary course of business or (z) declared or paid any dividend or made any distribution on any shares of its stock or redeemed, purchased or otherwise acquired or agreed to redeem, purchase or otherwise acquire any shares of its stock. (x) There is no material document or contract of a character required to be described in the Registration Statement or Prospectus or to be filed as an exhibit to the Registration Statement which is not described or filed as required. Each agreement listed in the Exhibits to the Registration Statement is in full force and effect or has terminated in accordance with its terms or by amendment and such amendment has been filed as an Exhibit to the Registration Statement or has otherwise been provided to the Representatives and, if not so terminated, is valid and enforceable in all material respects by and against the Company or the Subsidiaries, as the case may be, in accordance with its terms, assuming the due authorization, execution and delivery thereof by each of the other parties thereto, except as the enforceability thereof may be limited by (i) bankruptcy, insolvency, reorganization, moratorium or other similar laws affecting the enforcement of creditors' rights generally and (ii) indemnification provisions under Federal and state securities laws; and that the remedy of specific forms of equitable relief may be subject to equitable defenses and the discretion of the court before which any such action may be brought. Neither the Company, the (xi) Neither the Company nor the Subsidiaries is in violation of any term or provision of their respective Certificate of Incorporation and By-laws, in each case as amended to the date hereof, or other governing documents, or of any franchise, license, permit, judgment, decree, order, statute, rule or regulation, where the consequences of such violation would have a Material Adverse Effect. Except as described in the Registration Statement or Prospectus, neither the Company nor any of the Subsidiaries intends to amend its Certificate of Incorporation and By-laws. (xii) Neither the execution, delivery and performance of this Agreement by the Company or the Subsidiaries nor the consummation of any of the transactions contemplated hereby (including, without limitation, the issuance and sale by the Company of the Shares) will give rise to a right to terminate or accelerate the due date of any payment due under, or conflict with or result in the breach of any term or provision of, or constitute a default (or an event which with notice or lapse of time or both would constitute a default) under, or require any consent or waiver under, or result in the execution or imposition of any lien, charge or encumbrance upon any properties or assets of the Company or any of the Subsidiaries pursuant to the terms of, any indenture, mortgage, deed of trust or other agreement or instrument to which the Company or any of the Subsidiaries is a party or by which it or any of its properties or businesses are bound, or any franchise, license, permit, judgment, decree, order, statute, rule or regulation applicable to the Company or any of the Subsidiaries or violate any provision of the Certificate of Incorporation and By-laws of the Company or any of the Subsidiaries, except for such consents or waivers which have already been obtained and are in full force and effect or as would not have a Material Adverse Effect. No consent, approval, authorization, order, registration or qualification of or with any United States court or governmental agency or body is required for the issue and sale of the Shares or the consummation of the other transactions contemplated by this Agreement, which have not been obtained prior to the date hereof, except the registration under the Securities Act of 1933, as amended (the ~~Shares~~"Securities Act"), ~~and such consents, approvals, authorizations, registrations or qualifications as may be required under state securities or Blue Sky laws -9- 10 in connection with the purchase and distribution~~ of the Shares which registration statement, as so amended, has been declared effective by the Commission and copies of which have heretofore been delivered to the Underwriters. . The registration statement, as amended at the time it became effective, including the prospectus, financial statements, schedules, exhibits and other information (~~xiii~~if any) ~~The authorized, issued and outstanding capital stock~~ deemed to be part of the ~~Company and~~ registration statement at the ~~capital stock reserved~~ time of effectiveness pursuant to Rule 430A or ~~committed for issuance is as set forth~~ 434(d) under the ~~caption~~ Securities Act, is hereinafter referred to as the "~~Capitalization~~Registration Statement." in If the ~~Prospectus~~Company has filed or is required pursuant to the terms hereof to file a registration statement pursuant to Rule 462(b) under the Securities Act registering additional shares of Common Stock (a "Rule 462(b) Registration Statement"), then, unless otherwise specified, any reference herein to the term "Registration Statement" shall be deemed to include such Rule 462(b) Registration Statement. Other than a Rule 462(b) Registration Statement, which, if filed, becomes effective upon filing, no other document with respect to the Registration Statement has heretofore been filed with the Commission. All of the ~~outstanding shares of Stock~~ Shares have been ~~duly and validly issued and are fully paid and nonassessable, none of them was issued in violation of any preemptive or other similar right and,~~ registered under the Securities Act pursuant to the ~~Company's knowledge~~Registration Statement or, ~~since 1991, none of them were issued in violation of~~ if any ~~Federal or state securities laws. The Shares, when issued and sold pursuant to this Agreement~~Rule 462(b) Registration Statement is filed, will be duly ~~and validly issued, fully paid and nonassessable, none~~ registered under the Securities Act with the filing of them will be issued in violation of any preemptive or other similar right, any contractual right, including, without limitation, rights of first refusal, and, since 1991, none of them were issued in violation of any (subject to compliance with Section 1(c) hereofsuch Rule 462(b), Federal or state securities laws. Except as disclosed in the Registration Statement and the Prospectus, there is no outstanding option, warrant or other right calling for the issuance of, and there is no commitment, plan or arrangement to issue, any shares of Common Stock of the Company or any security convertible into, or exercisable or exchangeable for, such shares of Stock. The shares of Stock conform in all material respects to all statements in relation thereto contained in the Registration Statement and the Prospectus. The Company has a sufficient number of authorized but unissued shares of Stock to enable the Company to issue, without further stockholder action, or approve all the Shares to be sold by the Company. (xiv) As of the date hereof, and as of each Closing Date, all of the outstanding shares of capital stock of the Subsidiaries are duly and validly authorized and issued, are fully paid and nonassessable and are and will be owned by the Company and there is and will be no outstanding option, warrant or other right calling for the issuance of, and no commitment, plan or arrangement to issue any share of capital stock of the Subsidiaries or any security convertible or exchangeable or exercisable for capital stock of the Subsidiaries, except as otherwise described in the Registration Statement and Prospectus. (xv) Except as set forth in the Registration Statement and Prospectus, no holder of any security of the Company has the right to have any security owned by such holder included in the Registration Statement or to demand registration of any security owned by such holder during the period ending 90 days after the date of this Agreement. Each Selling Stockholder and each director and executive officer of the Company has delivered to

Appears in 2 contracts

Sources: Underwriting Agreement (Komag Inc /De/), Underwriting Agreement (Komag Inc /De/)

Representations and Warranties of the Company and the Selling Stockholders. ~~(a)~~ A. The Company hereby ~~represents~~ represents, warrants and ~~warrants~~ covenants to each Underwriter as follows: (ia) ~~On the Effective Date, the Registration Statement complied,~~ The Company has prepared and ~~on the date of the Prospectus, on the date any post-effective amendment to the Registration Statement shall become effective, on the date any supplement or amendment to the Prospectus is~~ filed with the Securities and Exchange Commission (the “Commission”) a registration statement on Form S-1 (File No. 333-128629), which contains a form of prospectus to be used in connection with the public offering and ~~on each Closing Date~~sale of the Shares. Such registration statement, as amended, including the ~~Registration Statement~~ financial statements, exhibits and ~~the Prospectus (and any amendment thereof or supplement~~ schedules thereto~~) will comply~~, in ~~all material respects, with~~ the ~~applicable provisions of~~ form in which it was declared effective by the Commission under the Securities Act and the Rules; (ii) The documents that are incorporated by reference in the preliminary prospectus and the Prospectus or from which information is so incorporated by reference, when they became effective or were filed with the Commissionof 1933, as ~~the case may be, complied in all material respects with the requirements of the Securities Act or the Securities Exchange Act of 1934, as amended (the "Exchange Act"), as applicable~~amended, and the rules and regulations promulgated thereunder (collectively, the “Securities Act”), including any required information deemed to be a part thereof at the time of effectiveness pursuant to Rule 430A under the ~~Commission promulgated~~ Securities Act, is called the “Registration Statement”. Any registration statement filed by the Company pursuant to Rule 462(b) under the Securities Act ~~and~~ is called the ~~Exchange Act, as applicable, except as amended and superseded by statements made in the~~ “Rule 462(b) Registration Statement; ”, and ~~any documents so filed~~ from and ~~incorporated by reference subsequent to~~ after the ~~Effective Date shall, when they are filed with the Commission, conform in all material respects with the requirements~~ date and time of filing of the ~~Securities Act or~~ Rule 462(b) Registration Statement, the ~~Exchange Act, as applicable, and~~ term “Registration Statement” shall include the ~~rules and regulations of the Commission promulgated under the Securities Act and the Exchange Act, as applicable. (iii~~Rule 462(b) ~~The consolidated financial statements of the Company (including all notes and schedules thereto)~~ Registration Statement. Any preliminary prospectus included in the Registration Statement ~~and Prospectus present fairly~~ is hereinafter called a “preliminary prospectus”. The term “Prospectus” shall mean the ~~financial position,~~ final prospectus relating to the ~~results of operations and cash flows and~~ Shares that is first filed pursuant to Rule 424(b) after the stockholders' equity and the other information purported to be shown therein of the Company and its subsidiaries, listed on Schedule III hereto (the "Subsidiaries"), at the respective dates and for the respective (iv) KPMG Peat Marwick LLP, whose report is filed with the Commission as a part effective date of the Registration ~~Statement, is and, during~~ Statement (the ~~periods covered by its reports, was independent public accountants as required by the Securities Act and the Rules. (v~~“Effective Date”) The Company has been duly incorporated and is a validly existing corporation under the laws of the State of Delaware, and the Subsidiaries have been duly incorporated and are validly existing corporations under the laws of their respective jurisdictions. Other than the Subsidiaries, the Company has no subsidiaries and does not control, directly or indirectly, any corporation, partnership, joint venture, association or other business organization, except as described in the Registration Statement and the Prospectus. Each of the Company and the Subsidiaries is duly qualified and in good standing as a foreign corporation in each jurisdiction in which the character or location of its assets or properties (owned, leased or licensed) or the nature of its business makes such qualification necessary except for such jurisdictions where the failure to so qualify would not have a material adverse effect on the assets or properties, business, results of operations or condition (financial or otherwise) of the Company and the Subsidiaries, taken as a whole (a "Material Adverse Effect"). Except as disclosed in the Registration Statement and the Prospectus, neither the Company nor the Subsidiaries own, lease or license any material asset or property or conduct any material business outside the United States of America. Each of the Company and the Subsidiaries have all requisite corporate power and authority, and all necessary authorizations, approvals, consents, orders, licenses, certificates and permits of and from all governmental or regulatory bodies or any other person or entity, to own, lease and license their assets and properties and conduct their businesses as now being conducted and as described in the Registration Statement and the Prospectus except for such authorizations, approvals, consents, orders, licenses, certificates and permits the failure to so obtain would not have a Material Adverse Effect; no such authorization, approval, consent, order, license, certificate or permit contains a materially burdensome restriction other than as disclosed in the Registration Statement and the Prospectus; and the Company has all such corporate power and authority, and such authorizations, approvals, consents, orders, licenses, certificates and permits to enter into, deliver and perform this Agreement and to issue and (vi) The Company and the Subsidiaries own or possess adequate and enforceable rights to use all patents, trademarks, trademark applications, trade names, service marks, copyrights, copyright applications, licenses, know-how and other similar rights and proprietary knowledge (collectively, "Intangibles") material to or necessary for the conduct of their business as described in the Registration Statement and the Prospectus. Except as disclosed in the Registration Statement and the Prospectus, neither the Company nor any of the Subsidiaries have received any notice of, and to their knowledge are not aware of, any infringement of or conflict with asserted rights of others with respect to any Intangibles which, singly or in the aggregateor, if no filing pursuant to Rule 424(b) is required, shall mean the ~~subject~~ form of an unfavorable decision, ruling or finding, could be reasonably expected to have a Material Adverse Effect, and neither the Company nor the Subsidiaries know of any reasonable basis therefor. Except as disclosed in the Registration Statement and the Prospectus, final prospectus relating to the knowledge of the Company, no Intangibles of the Company or the Subsidiaries are in dispute or are in any conflict with the right of any other person or entity and the Company and each of the Subsidiaries (A) has or will have the right (subject to applicable agreements, which agreements provide for use to the extent necessary and desirable for the conduct of its business as currently conducted and as proposed to be conducted) to use, free and clear of all liens, charges, claims, encumbrances, pledges, security interests, defects, restrictions or equities of any kind whatsoever all licenses and rights to the Intangibles used in the conduct of their business as now conducted or proposed to be conducted without infringing upon or otherwise acting adversely to the right or claimed right of any other person and (B) is not or will not become, as the case may be, obligated or in any way liable for any payment by way of royalties, fees or otherwise and to any owner or licensee of, or other claimant to, any Intangibles with respect to the use thereof or in connection with the conduct of their business or otherwise, except in each case as disclosed in the Prospectus and except for any such payments, claims, uses, liens, charges, encumbrances, pledges, security interests, defects, restrictions and equities which would not have a Material Adverse Effect. (vii) The Company and the Subsidiaries have good and marketable title to each of the items of personal property which are reflected in the financial statements referred to in Section 4(a)(ii) or are referred to in the Registration Statement and the Prospectus as being owned by them and valid and enforceable leasehold interests in each of the items of real and personal property which are referred to in the Registration Statement and the Prospectus as being leased by them, in each case free and clear of all liens, encumbrances, claims, security interests and defects, other than those described in the Registration Statement and the Prospectus and those which do not and will not have a Material Adverse Effect. (viii) Except as described in the Registration Statement and the Prospectus, there is no litigation or governmental or other proceeding or investigation before any court or before or by any public body or board pending or, to the Company's knowledge, threatened (and the Company does not know of any reasonable basis therefor) against, or involving the assets, properties or business of, the Company or the Subsidiaries which, if adversely determined, could be reasonably expected to have a Material Adverse Effect. (ix) Subsequent to the respective dates as of which information is given in the Registration Statement and the Prospectus, except as described therein, (A) there has not been any material adverse change in the assets or properties, business, results of operations, prospects or condition (financial or otherwise) of the Company or the Subsidiaries taken as a whole, whether or not arising from transactions in the ordinary course of business; (B) neither the Company nor any of the Subsidiaries has sustained any material loss or interference with its assets, businesses or properties (whether owned, leased or licensed) from fire, explosion, earthquake, flood or other calamity, whether or not covered by insurance, or from any labor dispute or any court or legislative or other governmental action, order or decree; and (C) since the date of the latest balance sheet Shares included in the Registration Statement ~~and~~ at the Effective Date. All references in this Agreement to the Registration Statement, the Rule 462(b) Registration Statement, a preliminary prospectus, the Prospectus, ~~except as reflected therein, neither the Company nor~~ or any amendments or supplements to any of the ~~Subsidiaries has (x) issued~~ foregoing, shall include any ~~securities (other than options or shares issued~~ copy thereof filed with the Commission pursuant to ~~exercise of employee stock options or warrants described in the Registration Statement~~ its Electronic Data Gathering, Analysis and ~~Prospectus) or incurred any liability or obligation, direct or contingent, for borrowed money, except such liabilities or obligations incurred in the ordinary course of business,~~ Retrieval System (y) entered into any transaction not in the ordinary course of business or (z) declared or paid any dividend or made any distribution on any shares of its stock or redeemed, purchased or otherwise acquired or agreed to redeem, purchase or otherwise acquire any shares of its stock“E▇▇▇▇”). (x) There is no material document or contract of a character required to be described in the Registration Statement or Prospectus or to be filed as an exhibit to the Registration Statement which is not described or filed as required. Each agreement listed in the Exhibits to the Registration Statement is in full force and effect or has terminated in accordance with its terms or by amendment and such amendment has been filed as an Exhibit to the Registration Statement or has otherwise been provided to the Representatives and, if not so terminated, is valid and enforceable in all material respects by and against the Company or the Subsidiaries, as the case may be, in accordance with its terms, assuming the due authorization, execution and delivery thereof by each of the other parties thereto, except as the enforceability thereof may be limited by (i) bankruptcy, insolvency, reorganization, moratorium or other similar laws affecting the enforcement of creditors' rights generally and (ii) indemnification provisions under Federal and state securities laws; and that the remedy of specific forms of equitable relief may be subject to equitable defenses and the discretion of the court before which any such action may be brought. Neither the Company, the (xi) Neither the Company nor the Subsidiaries is in violation of any term or provision of their respective Certificate of Incorporation and By-laws, in each case as amended to the date hereof, or other governing documents, or of any franchise, license, permit, judgment, decree, order, statute, rule or regulation, where the consequences of such violation would have a Material Adverse Effect. Except as described in the Registration Statement or Prospectus, neither the Company nor any of the Subsidiaries intends to amend its Certificate of Incorporation and By-laws. (xii) Neither the execution, delivery and performance of this Agreement by the Company or the Subsidiaries nor the consummation of any of the transactions contemplated hereby (including, without limitation, the issuance and sale by the Company of the Shares) will give rise to a right to terminate or accelerate the due date of any payment due under, or conflict with or result in the breach of any term or provision of, or constitute a default (or an event which with notice or lapse of time or both would constitute a default) under, or require any consent or waiver under, or result in the execution or imposition of any lien, charge or encumbrance upon any properties or assets of the Company or any of the Subsidiaries pursuant to the terms of, any indenture, mortgage, deed of trust or other agreement or instrument to which the Company or any of the Subsidiaries is a party or by which it or any of its properties or businesses are bound, or any franchise, license, permit, judgment, decree, order, statute, rule or regulation applicable to the Company or any of the Subsidiaries or violate any provision of the Certificate of Incorporation and By-laws of the Company or any of the Subsidiaries, except for such consents or waivers which have already been obtained and are in full force and effect or as would not have a Material Adverse Effect. No consent, approval, authorization, order, registration or qualification of or with any United States court or governmental agency or body is required for the issue and sale of the Shares or the consummation of the other transactions contemplated by this Agreement, which have not been obtained prior to the date hereof, except the registration under the Securities Act of the Shares, and such consents, approvals, authorizations, registrations or qualifications as may be required under state securities or Blue Sky laws -9- 10 in connection with the purchase and distribution of the Shares by the Underwriters. (xiii) The authorized, issued and outstanding capital stock of the Company and the capital stock reserved or committed for issuance is as set forth under the caption "Capitalization" in the Prospectus. All of the outstanding shares of Stock have been duly and validly issued and are fully paid and nonassessable, none of them was issued in violation of any preemptive or other similar right and, to the Company's knowledge, since 1991, none of them were issued in violation of any Federal or state securities laws. The Shares, when issued and sold pursuant to this Agreement, will be duly and validly issued, fully paid and nonassessable, none of them will be issued in violation of any preemptive or other similar right, any contractual right, including, without limitation, rights of first refusal, and, since 1991, none of them were issued in violation of any (subject to compliance with Section 1(c) hereof), Federal or state securities laws. Except as disclosed in the Registration Statement and the Prospectus, there is no outstanding option, warrant or other right calling for the issuance of, and there is no commitment, plan or arrangement to issue, any shares of Common Stock of the Company or any security convertible into, or exercisable or exchangeable for, such shares of Stock. The shares of Stock conform in all material respects to all statements in relation thereto contained in the Registration Statement and the Prospectus. The Company has a sufficient number of authorized but unissued shares of Stock to enable the Company to issue, without further stockholder action, or approve all the Shares to be sold by the Company. (xiv) As of the date hereof, and as of each Closing Date, all of the outstanding shares of capital stock of the Subsidiaries are duly and validly authorized and issued, are fully paid and nonassessable and are and will be owned by the Company and there is and will be no outstanding option, warrant or other right calling for the issuance of, and no commitment, plan or arrangement to issue any share of capital stock of the Subsidiaries or any security convertible or exchangeable or exercisable for capital stock of the Subsidiaries, except as otherwise described in the Registration Statement and Prospectus. (xv) Except as set forth in the Registration Statement and Prospectus, no holder of any security of the Company has the right to have any security owned by such holder included in the Registration Statement or to demand registration of any security owned by such holder during the period ending 90 days after the date of this Agreement. Each Selling Stockholder and each director and executive officer of the Company has delivered to

Appears in 2 contracts

Sources: Underwriting Agreement (Western Refining, Inc.), Underwriting Agreement (Western Refining, Inc.)

Representations and Warranties of the Company and the Selling Stockholders. (a) The Company ~~hereby~~ represents and warrants ~~to each Underwriter as follows~~to, and agrees with, the several Underwriters that: (i) On A registration statement on Form S–1 (File No. 333-[ ● ]) (the ~~Effective Date,~~ “Initial Registration Statement”) in respect of the Offered Securities has been filed with the Securities and Exchange Commission (the “Commission”); the Initial Registration Statement ~~complied,~~ and ~~on the date of the Prospectus, on the date~~ any post-effective amendment thereto, each in the form heretofore delivered to you and to you for each of the other Underwriters, excluding exhibits thereto, have been declared effective by the Commission in such form; other than a registration statement, if any, increasing or decreasing the size of the offering (an “Additional Registration Statement”), filed pursuant to Rule 462(b) under the Securities Act of 1933, as amended (the “Act”), which became effective upon filing, no other document with respect to the Initial Registration Statement ~~shall become effective~~has heretofore been filed with the Commission; and no stop order suspending the effectiveness of the Initial Registration Statement, on any post-effective amendment thereto or the ~~date any supplement or amendment~~ Additional Registration Statement, if any, has been issued and no proceeding for that purpose has been initiated or, to the ~~Prospectus is~~ knowledge of the Company, threatened by the Commission (any preliminary prospectus included in the Initial Registration Statement or filed with the Commission pursuant to Rule 424(a) of the rules and ~~on each Closing Date,~~ regulations of the Commission under the Act is hereinafter called a “Preliminary Prospectus”); the various parts of the Initial Registration Statement and the Additional Registration Statement, if any, including all exhibits thereto and including the information contained in the form of final prospectus filed with the Commission pursuant to Rule 424(b) under the Act in accordance with Section 6(a) hereof and deemed by virtue of Rule 430A under the Act to be part of the Initial Registration Statement at the time it was declared effective, each as amended at the time such part of the Initial Registration Statement became effective or such part of the Additional Registration Statement, if any, became or hereafter becomes effective, are hereinafter collectively called the “Registration Statement” the Preliminary Prospectus relating to the Offered Securities that was included in the Registration Statement immediately prior to the Applicable Time (as defined in Section 2(a)(iii) hereof) is hereinafter called the “Pricing Prospectus”; such final prospectus, in the form first filed pursuant to Rule 424(b) under the Act, is hereinafter called the “Prospectus” and any ~~amendment thereof or supplement thereto) will comply,~~ “issuer free writing prospectus” as defined in ~~all material respects, with~~ Rule 433 under the ~~applicable provisions of~~ Act relating to the Offered Securities ~~Act and the Rules~~is hereinafter called an “Issuer Free Writing Prospectus”; (ii) ~~The documents that are incorporated~~ No order preventing or suspending the use of any Preliminary Prospectus or any Issuer Free Writing Prospectus has been issued by ~~reference in~~ the Commission, and the preliminary prospectus ~~and~~ contained in the ~~Prospectus or from which information is so incorporated by reference, when they became effective or were~~ Registration Statement filed with the ~~Commission~~Commission on [ ● ], as 2016 and used by the ~~case may be~~Company in connection with the roadshow, ~~complied~~ at the time of filing thereof, conformed in all material respects ~~with~~ to the requirements of the ~~Securities~~ Act ~~or the Securities Exchange Act of 1934, as amended (the "Exchange Act"), as applicable,~~ and the rules and regulations of the Commission ~~promulgated~~ thereunder, and did not contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading; provided, however, that this representation and warranty shall not apply to any statements or omissions made in reliance upon and in conformity with information furnished in writing to the Company by an Underwriter through Credit Suisse Securities ~~Act and~~ (USA) LLC or Barclays Capital Inc. (together, the ~~Exchange Act~~“Representatives” or “you”) expressly for use therein; (iii) For the purposes of this Agreement, the “Applicable Time” is [ ● ] (Eastern time) on the date of this Agreement; the Pricing Prospectus, as ~~applicable~~supplemented by the information listed on Schedule C(2) hereto, ~~except~~ taken together (collectively, the “Pricing Disclosure Package”), as ~~amended~~ of the Applicable Time, did not include any untrue statement of a material fact or omit 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; and ~~superseded by statements made~~ each Issuer Free Writing Prospectus listed on Schedule C(1) hereto does not conflict with the information contained in the Registration Statement, the Pricing Prospectus or the Prospectus and each such Issuer Free Writing Prospectus, as supplemented by and taken together with the Pricing Disclosure Package, as of the Applicable Time, did not include any untrue statement of a material fact or omit 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; provided, however, that this representation and warranty shall not apply to statements or omissions made in reliance upon and in conformity with information furnished in writing to the Company by an Underwriter through the Representatives expressly for use therein; (iv) The Registration Statement conforms, and the Prospectus and any ~~documents so filed and incorporated by reference subsequent~~ further amendments or supplements to the ~~Effective Date shall~~Registration Statement and the Prospectus will conform, ~~when they are filed with the Commission, conform~~ in all material respects ~~with~~ to the applicable requirements of the ~~Securities~~ Act ~~or the Exchange Act, as applicable,~~ and the rules and regulations of the Commission ~~promulgated under the Securities Act~~ thereunder and ~~the Exchange Act~~do not and will not, as ~~applicable. (iii) The consolidated financial statements~~ of the ~~Company (including all notes and schedules thereto) included in~~ applicable effective date as to each part of the Registration Statement and as of the applicable filing date as to the Prospectus ~~present fairly the financial position~~and any amendment or supplement thereto, ~~the results~~ contain an untrue statement of ~~operations and cash flows and the stockholders' equity and the other information purported~~ a material fact or omit to state a material fact required to be ~~shown~~ stated therein of or necessary to make the statements therein not misleading; provided, however, that this representation and warranty shall not apply to any statements or omissions made in reliance upon and in conformity with information furnished in writing to the Company ~~and its subsidiaries, listed on Schedule III hereto (~~by an Underwriter through the ~~"Subsidiaries"), at the respective dates and~~ Representatives expressly for the respective (iv) KPMG Peat Marwick LLP, whose report is filed with the Commission as a part of the Registration Statement, is and, during the periods covered by its reports, was independent public accountants as required by the Securities Act and the Rules.use therein; (v) The Company (i) has been duly incorporated and is a validly existing as a corporation in good standing under the laws of the State of Delaware, (ii) has corporate power and authority to own its properties and conduct its business as described in the ~~Subsidiaries have~~ Pricing Prospectus, and (iii) has been duly ~~incorporated~~ qualified as a foreign corporation for the transaction of business and ~~are validly existing corporations~~ is in good standing under the laws of ~~their respective jurisdictions. Other than~~ each other jurisdiction in which it owns or leases properties or conducts any business so as to require such qualification, except, in the ~~Subsidiaries~~case of clauses (ii) and (iii), where the failure to have such power or authority or to be so qualified or in good standing would not, individually or in the aggregate, reasonably be expected to have a material adverse effect on the condition (financial or otherwise), business, material properties, management or results of operations of the Company ~~has no~~ and its subsidiaries ~~and~~ taken as a whole (a “Material Adverse Effect”); the Company does not own or control, directly or indirectly, any corporation, limited liability company, limited partnership~~, joint venture~~, association or other business organization, except as described in the Registration Statement and the Prospectus. Each of the Company and the Subsidiaries is duly qualified and in good standing as a foreign corporation in each jurisdiction in which the character or location of its assets or properties (owned, leased or licensed) or the nature of its business makes such qualification necessary except for such jurisdictions where the failure to so qualify would not have a material adverse effect on the assets or properties, business, results of operations or condition (financial or otherwise) of the Company and the Subsidiaries, taken as a whole (a "Material Adverse Effect"). Except as disclosed in the Registration Statement and the Prospectus, neither the Company nor the Subsidiaries own, lease or license any material asset or property or conduct any material business outside the United States of America. Each of the Company and the Subsidiaries have all requisite corporate power and authority, and all necessary authorizations, approvals, consents, orders, licenses, certificates and permits of and from all governmental or regulatory bodies or any other person or entity, to own, lease and license their assets and properties and conduct their businesses as now being conducted and as described in the Registration Statement and the Prospectus except for such authorizations, approvals, consents, orders, licenses, certificates and permits the failure to so obtain would not have a Material Adverse Effect; no such authorization, approval, consent, order, license, certificate or permit contains a materially burdensome restriction entity other than ~~as disclosed in~~ the ~~Registration Statement and the Prospectus; and the Company has all such corporate power and authority, and such authorizations, approvals, consents, orders, licenses, certificates and permits~~ subsidiaries listed on Schedule D to ~~enter into, deliver and perform~~ this ~~Agreement and to issue and~~Agreement; (vi) ~~The~~ Schedule D to this Agreement includes a true and complete list of each “significant subsidiary” of the Company (as such term is defined in Rule 1-02 of Regulation S-X) (each, a “Subsidiary” and the Subsidiaries own or possess adequate and enforceable rights to use all patents, trademarks, trademark applications, trade names, service marks, copyrights, copyright applications, licenses, know-how and other similar rights and proprietary knowledge (collectively, ~~"Intangibles"~~the “Subsidiaries”), including the jurisdiction of incorporation or formation of such Subsidiary; each Subsidiary (i) ~~material~~ has been duly organized and is validly existing as a corporation or limited liability company, as applicable, in good standing under the laws of its jurisdiction of incorporation or organization, (ii) has power and authority to ~~or necessary for the~~ own its properties and conduct ~~of their~~ its business as described in the ~~Registration Statement~~ Pricing Prospectus, and (iii) has been duly qualified as a foreign corporation or other entity, as the ~~Prospectus. Except~~ case may be, for the transaction of business and is in good standing under the laws of each other jurisdiction in which it owns or leases properties or conducts any business so as ~~disclosed~~ to require such qualification, except, in the ~~Registration Statement~~ case of clauses (ii) and (iii), where the ~~Prospectus~~failure to have such power or authority or to be so qualified or in good standing would not, neither the Company nor any of the Subsidiaries have received any notice of, and to their knowledge are not aware of, any infringement of or conflict with asserted rights of others with respect to any Intangibles which, singly individually or in the aggregate, ~~if the subject of an unfavorable decision, ruling or finding, could~~ reasonably be ~~reasonably~~ expected to have a Material Adverse Effect, and neither the Company nor the Subsidiaries know of any reasonable basis therefor. Except as disclosed in the Registration Statement and the Prospectus, to the knowledge of the Company, no Intangibles of the Company or the Subsidiaries are in dispute or are in any conflict with the right of any other person or entity and the Company and each of the Subsidiaries (A) has or will have the right (subject to applicable agreements, which agreements provide for use to the extent necessary and desirable for the conduct of its business as currently conducted and as proposed to be conducted) to use, free and clear of all liens, charges, claims, encumbrances, pledges, security interests, defects, restrictions or equities of any kind whatsoever all licenses and rights to the Intangibles used in the conduct of their business as now conducted or proposed to be conducted without infringing upon or otherwise acting adversely to the right or claimed right of any other person and (B) is not or will not become, as the case may be, obligated or in any way liable for any payment by way of royalties, fees or otherwise and to any owner or licensee of, or other claimant to, any Intangibles with respect to the use thereof or in connection with the conduct of their business or otherwise, except in each case as disclosed in the Prospectus and except for any such payments, claims, uses, liens, charges, encumbrances, pledges, security interests, defects, restrictions and equities which would not have a Material Adverse Effect.; (vii) The Company and the Subsidiaries have good and marketable title to each of the items of personal property which are reflected in the financial statements referred to in Section 4(a)(ii) or are referred to in the Registration Statement and the Prospectus as being owned by them and valid and enforceable leasehold interests in each of the items of real and personal property which are referred to in the Registration Statement and the Prospectus as being leased by them, in each case free and clear of all liens, encumbrances, claims, security interests and defects, other than those described in the Registration Statement and the Prospectus and those which do not and will not have a Material Adverse Effect. (viii) Except as described in the Registration Statement and the Prospectus, there is no litigation or governmental or other proceeding or investigation before any court or before or by any public body or board pending or, to the Company's knowledge, threatened (and the Company does not know of any reasonable basis therefor) against, or involving the assets, properties or business of, the Company or the Subsidiaries which, if adversely determined, could be reasonably expected to have a Material Adverse Effect. (ix) Subsequent to Since the respective dates as of which information is given in the ~~Registration Statement and the~~ Pricing Prospectus, ~~except as described therein, (A)~~ there has not been any ~~material adverse~~ change in the ~~assets~~ capital stock or ~~properties~~material change in the long-term debt of the Company or any of its Subsidiaries, ~~business~~or any material adverse change, ~~results of operations~~or any development involving a prospective material adverse change, ~~prospects or~~ in the condition (financial or otherwise) ), business, material properties, management or results of operations of the Company ~~or the Subsidiaries~~ and its subsidiaries, taken as a whole, ~~whether~~ otherwise than as set forth or ~~not arising from transactions~~ contemplated in the ~~ordinary course of business~~Pricing Prospectus; ~~(B)~~ and neither the Company nor any of ~~the~~ its Subsidiaries has sustained since the date of the latest audited financial statements included in the Pricing Prospectus any material loss or material interference with its ~~assets, businesses or properties (whether owned, leased or licensed)~~ business from fire, explosion~~, earthquake~~, flood or other calamity, whether or not covered by insurance, or from any labor dispute or ~~any~~ court or ~~legislative or other~~ governmental action, order or decree; , otherwise than as set forth or contemplated in the Pricing Prospectus; (viii) The Company and ~~(C) since the date of the latest balance sheet included~~ its Subsidiaries own in fee simple all real property identified in the Registration Statement as being owned by the Company or its Subsidiaries, as applicable, and the ~~Prospectus~~Company and its Subsidiaries have good and valid title to all personal property owned by them, in each case free and clear of all liens, encumbrances and defects except such as ~~reflected therein, neither the Company nor any of the Subsidiaries has (x) issued any securities (other than options or shares issued pursuant to exercise of employee stock options or warrants~~ are described in the ~~Registration Statement~~ Pricing Prospectus and ~~Prospectus)~~ except for minor defects in title that do not materially interfere with the Company and its Subsidiaries’ ability to conduct their business or ~~incurred any liability~~ to utilize such assets for their intended purposes and except where the failure to have such ownership or ~~obligation~~title could not reasonably be expected to have, ~~direct~~ individually or ~~contingent, for borrowed money, except such liabilities or obligations incurred~~ in the ~~ordinary course of business~~aggregate, a Material Adverse Effect; and any real property and buildings held under lease by the Company and its Subsidiaries are held by them under valid, subsisting and enforceable leases (y) entered into any transaction not in the ordinary course of business or (z) declared or paid any dividend or made any distribution on any shares of its stock or redeemed, purchased or otherwise acquired or agreed to redeem, purchase or otherwise acquire any shares of its stock. (x) There is no material document or contract of a character required to be described in the Registration Statement or Prospectus or to be filed as an exhibit subject to the Registration Statement which is not described or filed as required. Each agreement listed in the Exhibits to the Registration Statement is in full force and effect or has terminated in accordance with its terms or by amendment and such amendment has been filed as an Exhibit to the Registration Statement or has otherwise been provided to the Representatives and, if not so terminated, is valid and enforceable in all material respects by and against the Company or the Subsidiaries, as the case may be, in accordance with its terms, assuming the due authorization, execution and delivery thereof by each effects of ~~the other parties thereto, except as the enforceability thereof may be limited by~~ (iA) bankruptcy, insolvency, fraudulent conveyance, fraudulent transfer, reorganization, moratorium or other similar laws relating to or affecting the ~~enforcement~~ rights of ~~creditors' rights generally and~~ creditors generally; (iiB) ~~indemnification provisions under Federal and state securities laws; and that~~ the ~~remedy~~ application of ~~specific forms~~ general principles of equitable relief may be subject to equitable defenses and the discretion of the court before which any such action may be brought. Neither the Company, the (xi) Neither the Company nor the Subsidiaries is in violation of any term or provision of their respective Certificate of Incorporation and By-laws, in each case as amended to the date hereof, or other governing documents, or of any franchise, license, permit, judgment, decree, order, statute, rule or regulation, where the consequences of such violation would have a Material Adverse Effect. Except as described in the Registration Statement or Prospectus, neither the Company nor any of the Subsidiaries intends to amend its Certificate of Incorporation and By-laws. (xii) Neither the execution, delivery and performance of this Agreement by the Company or the Subsidiaries nor the consummation of any of the transactions contemplated hereby equity (including, without limitation, concepts of materiality, reasonableness, good faith and fair dealing, regardless of whether enforcement is considered in proceedings at law or in equity); and (C) applicable law and public policy with respect to rights to indemnity and contribution), except where the ~~issuance~~ invalidity or unenforceability of any such lease would not materially interfere with the Company and its Subsidiaries’ ability to conduct their business and except where the failure to have such leasehold title could not reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect; (ix) The Company has an authorized capitalization as set forth in the Pricing Prospectus under the caption “Capitalization” and all of the issued shares of capital stock of the Company, including the Offered Securities to be sold by the Selling Stockholders, have been duly authorized and validly issued, are fully paid and non-assessable and conform to the description of the Securities contained in each of the Pricing Disclosure Package and the Prospectus; and all of the issued shares of capital stock or limited liability company interests, as applicable, of each subsidiary of the Company have been duly authorized and validly issued, are fully paid and non-assessable and (except for directors’ qualifying shares and except as otherwise set forth in the Pricing Prospectus) are owned directly or indirectly by the Company, free and clear of all liens, encumbrances, equities or claims; (x) [Reserved]; (xi) The sale of the Offered and the compliance by the Company with this Agreement and the consummation of the ~~Shares~~transactions herein contemplated will not (A) ~~will give rise to a right to terminate or accelerate the due date of any payment due under, or~~ conflict with or result in ~~the~~ a breach or violation of any ~~term~~ of the terms or ~~provision~~ provisions of, or constitute a default ~~(or an event which with notice or lapse of time or both would constitute a default)~~ under, or require any consent or waiver under, or result in the execution or imposition of any lien, charge or encumbrance upon any properties or assets of the Company or any of the Subsidiaries pursuant to the terms of, any indenture, mortgage, deed of ~~trust~~ trust, loan agreement, lease or other agreement or instrument to which the Company or any of ~~the~~ its Subsidiaries is a party or by which ~~it or any of its properties or businesses are bound, or any franchise, license, permit, judgment, decree, order, statute, rule or regulation applicable to~~ the Company or any of ~~the~~ its Subsidiaries is bound or ~~violate~~ to which any ~~provision~~ of the property or assets of the Company or any of its Subsidiaries is subject, (B) result in any violation of the provisions of the Amended and Restated Certificate of Incorporation of the Company (the “Certificate of Incorporation”) or Amended and Restated By-laws of the Company (the “By-laws”) or organizational documents of any of its Subsidiaries, or (C) result in any violation of any statute or any order, rule or regulation of any court or governmental agency or body having jurisdiction over the Company or any of its Subsidiaries or any of their properties, except, in the ~~Subsidiaries~~case of (A) and (C), ~~except for such consents or waivers which have already been obtained and are in full force and effect or~~ as would ~~not~~ not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect~~. No~~ ; and no consent, approval, authorization, order, registration or qualification of or with any ~~United States~~ such court or governmental agency or body is required for the ~~issue and~~ sale of the ~~Shares~~ Offered Securities or the consummation by the Company of the ~~other~~ transactions contemplated by this Agreement, ~~which have not been obtained prior to the date hereof,~~ except for the registration under the ~~Securities~~ Act of the ~~Shares~~Offered Securities, the approval by the Financial Industry Regulatory Authority (“FINRA”) of the underwriting terms and arrangements and such consents, approvals, authorizations, orders, registrations or qualifications as may be required under state securities or Blue Sky laws ~~-9- 10~~ in connection with the purchase and distribution of the ~~Shares~~ Offered Securities by the Underwriters., except where the failure to obtain any such consents, approvals, authorizations, orders, registrations or qualifications would not impair, in any material respect, the sale of the Offered Securities or the consummation of the transactions contemplated by this Agreement; (xii) Neither the Company nor any of its Subsidiaries is (A) in violation of its Certificate of Incorporation or By-laws or other organizational documents, as applicable, or (B) in default in the performance or observance of any obligation, agreement, covenant or condition contained in any indenture, mortgage, deed of trust, loan agreement or other agreement or instrument to which it is a party or by which it or any of its properties may be bound, except, in the case of (B), such defaults as would not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect; (xiii) The ~~authorized, issued~~ statements set forth in the Pricing Prospectus and ~~outstanding capital stock~~ the Prospectus under the caption “Description of Capital Stock,” insofar as they purport to constitute summaries of the ~~Company~~ terms of the Securities, constitute accurate summaries of the terms of such Securities in all material respects; (xiv) The statements set forth in the Pricing Prospectus and the ~~capital stock reserved~~ Prospectus under the caption “Material United States Federal Income and Estate Tax Consequences to Non-U.S. Holders of Our Common Stock,” insofar as they constitute summaries of matters of law or ~~committed for issuance is~~ regulations or legal conclusions with respect thereto, constitute accurate summaries of the matters described therein in all material respects; (xv) Other than as set forth ~~under the caption "Capitalization"~~ in the Prospectus. All of the outstanding shares of Stock have been duly and validly issued and are fully paid and nonassessable, none of them was issued in violation of any preemptive or other similar right and, to the Company's knowledge, since 1991, none of them were issued in violation of any Federal or state securities laws. The Shares, when issued and sold pursuant to this Agreement, will be duly and validly issued, fully paid and nonassessable, none of them will be issued in violation of any preemptive or other similar right, any contractual right, including, without limitation, rights of first refusal, and, since 1991, none of them were issued in violation of any (subject to compliance with Section 1(c) hereof), Federal or state securities laws. Except as disclosed in the Registration Statement and the Pricing Prospectus, there are no legal or governmental proceedings pending to which the Company or any of its Subsidiaries is ~~no outstanding option, warrant~~ a party or ~~other right calling for the issuance of, and there is no commitment, plan or arrangement~~ to ~~issue,~~ which any ~~shares of Common Stock~~ property of the Company or any ~~security convertible into~~of its Subsidiaries is the subject which, if determined adversely to the Company or ~~exercisable~~ any of its Subsidiaries, would, individually or ~~exchangeable for, such shares of Stock. The shares of Stock conform in all material respects to all statements in relation thereto contained~~ in the ~~Registration Statement~~ aggregate, reasonably be expected to have a Material Adverse Effect; and the Prospectus. The Company has a sufficient number of authorized but unissued shares of Stock to enable the Company to issue, without further stockholder action, or approve all the Shares to be sold by the Company. (xiv) As of the date hereof, and as of each Closing Date, all of the outstanding shares of capital stock of the Subsidiaries are duly and validly authorized and issued, are fully paid and nonassessable and are and will be owned by the Company and there is and will be no outstanding option, warrant or other right calling for the issuance of, and no commitment, plan or arrangement to issue any share of capital stock of the Subsidiaries or any security convertible or exchangeable or exercisable for capital stock of the Subsidiaries, except as otherwise described in the Registration Statement and Prospectus. (xv) Except as set forth in the Registration Statement and Prospectus, no holder of any security of the Company has not received notice of any such proceedings that are threatened or contemplated by governmental authorities or threatened by others; (xvi) Neither the ~~right~~ Company nor any of its Subsidiaries is required to ~~have any security owned by~~ register as an “investment company” as such ~~holder included~~ term is defined in the Registration Statement or to demand registration of any security owned by such holder during the period ending 90 days after the date of this Agreement. Each Selling Stockholder and each director and executive officer of the Company has delivered toIn

Appears in 2 contracts

Sources: Underwriting Agreement (Performance Food Group Co), Underwriting Agreement (Performance Food Group Co)

Appears in 2 contracts

Sources: Underwriting Agreement (Hercules Offshore, L.L.C.), Underwriting Agreement (Hercules Offshore, Inc.)

Appears in 2 contracts

Sources: Underwriting Agreement (First Reserve Corp), Underwriting Agreement (Wedge Engineering B V)

Representations and Warranties of the Company and the Selling Stockholders. (a) The Company ~~hereby~~ represents and warrants ~~to each Underwriter as follows~~to, and agrees with the Underwriters that: (i) On The Company has filed Amendment No. 1 to the ~~Effective Date, the~~ Initial Registration Statement ~~complied~~on February 15, 2000, and ~~on the date of the Prospectus, on the date~~ will deliver to you any ~~post-effective amendment~~ further amendment(s) to the Registration Statement ~~shall become effective, on the date any supplement or amendment to the Prospectus is~~ filed with the Commission ~~and on each Closing Date,~~ (the Initial Registration Statement and all amendments thereto hereinafter collectively referred to as the ~~Prospectus (and any amendment thereof or supplement thereto) will comply~~"Registration Statement"). The prospectus, in ~~all material respects,~~ the form filed with the ~~applicable provisions~~ Commission pursuant to Rule 424(b) of the General Rules and Regulations (the "Regulations") of the Commission under the Securities Act and the Rules; (ii) The documents that are incorporated by reference in the preliminary prospectus and the Prospectus or from which information is so incorporated by reference, when they became effective or were filed with the Commission, as the case may be, complied in all material respects with the requirements of ~~the Securities Act or the Securities Exchange Act of 1934~~1933, as amended (the "~~Exchange~~ Act"), ) is herein referred to as ~~applicable~~the "Prospectus." (ii) When the Registration Statement becomes effective, and at all times subsequent thereto and including the ~~rules~~ Closing Date (as defined in Section 1(d) and ~~regulations of~~ during such longer period as the Prospectus may be required to be delivered in connection with sales by the Underwriter or a dealer, and during such longer period until any post-effective amendment thereto shall become effective, the Registration Statement (and any post-effective amendment thereto) and the Prospectus (as amended or as supplemented if the Company shall have filed with the Commission ~~promulgated under~~ any amendment or supplement to the ~~Securities~~ Registration Statement or the Prospectus) will contain all statements which are required to be stated therein in accordance with the Act and the ~~Exchange Act~~Regulations, ~~as applicable~~will comply with the Act and the Regulations, and will not contain any untrue statement of material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein not misleading, and no event will have occurred which should have been set forth in an amendment or supplement to the Registration Statement or the Prospectus which has not been set forth in such an amendment or supplement; except ~~as amended and superseded by statements~~ that no representation or warranty is made in this Section 2(a)(ii) with respect to statements or omissions made in reliance upon and in conformity with written information furnished to the Company with respect to the Underwriter by or on behalf of the Underwriter expressly for inclusion in any Preliminary Prospectus, the Registration Statement~~; and any documents so filed and incorporated by reference subsequent to the Effective Date shall~~, ~~when they are filed with the Commission, conform in all material respects with the requirements of the Securities Act~~ or the ~~Exchange Act~~Prospectus, ~~as applicable, and the rules and regulations of the Commission promulgated under the Securities Act and the Exchange Act, as applicable~~or any amendment or supplement thereto. (iii) Neither the Commission nor the "blue sky" or securities authority of any jurisdiction have issued an order ("Stop Order") suspending the effectiveness of the Registration Statement, preventing or suspending the use of any Preliminary Prospectus, the Prospectus, the Registration Statement refusing to permit the effectiveness of the Registration Statement, or suspending the registration or qualification of the Common Stock, nor has any of such authorities instituted or threatened to institute any proceedings with respect to a Stop Order. (iv) The only subsidiaries (as defined in the Regulations) of the Company are I.T. Technology Pty. Ltd., an Australian corporation, Bickhams, Inc., a Delaware corporation and Stam▇▇▇▇▇▇.▇▇▇, ▇▇c., a Delaware corporation (the "Subsidiaries"). The Company and the Subsidiaries are corporations duly organized, validly existing, and in good standing under the laws of their respective jurisdictions of incorporation. The Company and the Subsidiaries are each duly qualified to do business and are in good standing in every jurisdiction in which their ownership, leasing, licensing, or use of property and assets or the conduct of their business makes such qualification necessary. (v) The authorized capital stock of the Company consists of 25,000,000 shares of $.001 par value Preferred Stock of which no shares have been issued or are outstanding and 100,000,000 shares of Common Stock, of which 16,500,000 shares are outstanding. Each outstanding share of Common Stock and to the knowledge of the Company each outstanding share of capital stock of the Subsidiaries is validly authorized, validly issued, fully paid, and nonassessable, has not been issued and is not owned or held in violation of any preemptive rights of stockholders, and to the knowledge of the Company in the case of the Subsidiaries are owned of record and beneficially by the Company or the other shareholders as scheduled in the Prospectus free and clear of all liens, security interests, pledges, charges, encumbrances, stockholders' agreements, and voting trusts, except as otherwise disclosed in the Prospectus. There is currently no outstanding option, warrant, or other right calling for the issuance of, any share of capital stock of the Company or to the knowledge of the Company of the Subsidiaries or any security or other instrument which by its terms is convertible into, exercisable for, or exchangeable for capital stock of the Company, except as may be described in the Prospectus. There is outstanding no security or other instrument, which by its terms is convertible into or exchangeable for capital stock of the Company. (vi) The consolidated financial statements of the Company ~~(including all notes~~ as of and ~~schedules thereto)~~ for the period ended December 31, 1999 are included in the Registration Statement and the Prospectus fairly present ~~fairly~~ with respect to the Company and the Subsidiaries the consolidated financial position, the consolidated results of ~~operations and cash flows and the stockholders' equity~~ operations, and the other information purported to be shown therein ~~of the Company and its subsidiaries, listed on Schedule III hereto (the "Subsidiaries"),~~ at the respective dates and for the ~~respective (iv) KPMG Peat Marwick LLP~~respective periods to which they apply. Such financial statements have been prepared in accordance with generally accepted accounting principles consistently applied throughout the periods involved, are correct and complete, and are in accordance with the books and records of the Company and the Subsidiaries. The accountants whose report on the audited financial statements is filed with the Commission as a part of the Registration ~~Statement~~Statement are, ~~is and,~~ and during the periods covered by ~~its reports, was independent public accountants as required by the Securities Act and the Rules. (v~~their report(s) The Company has been duly incorporated and is a validly existing corporation under the laws of the State of Delaware, and the Subsidiaries have been duly incorporated and are validly existing corporations under the laws of their respective jurisdictions. Other than the Subsidiaries, the Company has no subsidiaries and does not control, directly or indirectly, any corporation, partnership, joint venture, association or other business organization, except as described in the Registration Statement and the Prospectus. Each of the Company and the Subsidiaries is duly qualified and in good standing as a foreign corporation in each jurisdiction in which the character or location of its assets or properties (owned, leased or licensed) or the nature of its business makes such qualification necessary except for such jurisdictions where the failure to so qualify would not have a material adverse effect on the assets or properties, business, results of operations or condition (financial or otherwise) of the Company and the Subsidiaries, taken as a whole (a "Material Adverse Effect"). Except as disclosed included in the Registration Statement and the Prospectus, ~~neither~~ independent certified public accountants with respect to the Company ~~nor~~ and the Subsidiaries ~~own~~within the meaning of the Act and the Regulations. Except for the consolidated financial statements of the Company no other financial statements are required by Form SB-2 or otherwise to be included in the Registration Statement or the Prospectus. (vii) There is no litigation, ~~lease~~ arbitration or ~~license~~ other governmental proceeding (formal or informal), or investigation pending, threatened in writing, with respect to the Company, the Subsidiaries, or any of their respective operations, businesses, properties, or assets except as may be properly described in the Prospectus or which to the knowledge of the Company do not or will not have a material ~~asset~~ adverse effect upon the operations, business, properties, or ~~property or conduct any material business outside the United States of America. Each~~ assets of the Company and the Subsidiaries ~~have all requisite corporate power and authority~~taken as a whole. Neither the Company nor the Subsidiaries is in violation of, ~~and all necessary authorizations~~or in default with respect to, ~~approvals~~any law, ~~consents~~rule, ~~orders~~regulation, ~~licenses~~order, ~~certificates and permits of and from all governmental~~ judgment, or ~~regulatory bodies or any other person or entity, to own, lease and license their assets and properties and conduct their businesses~~ decree except as ~~now being conducted and as~~ may be properly described in the ~~Registration Statement and the~~ Prospectus ~~except for~~ or such authorizations, approvals, consents, orders, licenses, certificates and permits the failure to so obtain would not have a Material Adverse Effect; no such authorization, approval, consent, order, license, certificate or permit contains a materially burdensome restriction other than as ~~disclosed~~ in the Registration Statement and the Prospectus; and the Company has all such corporate power and authority, and such authorizations, approvals, consents, orders, licenses, certificates and permits to enter into, deliver and perform this Agreement aggregate do not now have and to ~~issue and (vi) The~~ the knowledge of the Company and the Subsidiaries ~~own~~ will not in the future have a material adverse effect upon the operations, business, properties, or ~~possess adequate~~ assets of the Company and the Subsidiaries taken as a whole; nor is the Company or the Subsidiaries required to take any action in order to avoid any such violation or default. (viii) Neither the Company nor the Subsidiaries has received any notice that the Company, the Subsidiaries or any other party is in violation or breach of, or in default with respect to, complying with any material provision of any contract, agreement, instrument, lease, license, arrangement, or understanding which is material to the Company and the Subsidiaries taken as a whole, and each such contract, agreement, instrument, lease, license, arrangement, and understanding is in full force and is the legal, valid, and binding obligation of the parties thereto and is enforceable ~~rights~~ as to ~~use~~ them in accordance with its terms. Neither the Company nor the Subsidiaries is in violation or breach of, or in default with respect to, any material term of its certificate of incorporation (or other charter document) or by-laws. (ix) Except as set forth in the Prospectus, all patents, patent applications, trademarks, trademark applications, trade names, service marks, copyrights, ~~copyright applications~~franchises, ~~licenses, know-how~~ and other ~~similar rights~~ intangible properties and ~~proprietary knowledge~~ assets (~~collectively,~~ all of the foregoing herein referred to as "Intangibles") ~~material to or necessary for the conduct of their business as described in the Registration Statement and the Prospectus. Except as disclosed in the Registration Statement and the Prospectus, neither~~ that the Company ~~nor any~~ or the Subsidiaries owns or has pending, or under which it is licensed, are in good standing and to the knowledge of the Subsidiaries have received any notice of, and to their knowledge are not aware of, any infringement of or conflict with asserted rights of others with respect to any Intangibles which, singly or in the aggregate, if the subject of an unfavorable decision, ruling or finding, could be reasonably expected to have a Material Adverse Effect, and neither Company uncontested. Neither the Company nor the Subsidiaries ~~know~~ is aware that they have infringed, are infringing, or have received notice of ~~any reasonable basis therefor~~infringement with respect to asserted Intangibles of others. ~~Except as disclosed in the Registration Statement and the Prospectus, to~~ To the knowledge ~~of the Company, no Intangibles~~ of the Company or the Subsidiaries there is no infringement by others of Intangibles of the Company or of the Subsidiaries. (x) The Company has all requisite power and authority to execute, deliver, and perform this underwriting agreement (the "Agreement"). All necessary corporate proceedings of the Company have been duly taken to authorize the execution, delivery, and performance of this Agreement by the Company. This Agreement has been duly authorized, executed, and delivered by the Company, is the legal, valid, and binding obligation of the Company, and is enforceable as to the Company in accordance with its terms. No consent, authorization, approval, order, license, certificate, or permit of or from, or declaration or filing with, any federal, state, local, or other governmental authority or any court or other tribunal is required by the Company for the execution, delivery, or performance of this Agreement by the Company (except filings under the Act which have been or will be made before the Closing Date and such consents consisting only of consents under "blue sky" or securities laws which have been obtained at or prior to the date of this Agreement). Except where the failure would not have a material adverse effect on the Company taken as a whole: (a) no consent of any party to any contract, agreement, instrument, lease, license, arrangement to which the Company is a party, or to which any of its properties or assets are subject, is required for the execution, delivery, or performance of this Agreement and (b) the execution, delivery, and performance of this Agreement will not violate, result in ~~dispute or are in any~~ a breach of, conflict with any material provision of or (with or without the ~~right~~ giving of notice or the passage of time or both), entitle any party to terminate or call a default under any contract, agreement, instrument, lease, license, arrangement, or understanding, or violate or result in a breach of any term of the certificate of incorporation (or other ~~person~~ charter document) or ~~entity and~~ by-laws of the Company or violate, result in a breach of, or conflict with any law, rule, regulation, order, judgment, or decree binding on the Company or to which any of their respective operations, businesses, properties, or assets are subject. (xi) The Common Stock is validly authorized and, when issued and delivered in accordance with this Agreement, will be validly issued, fully paid, and nonassessable and will not be issued in violation of any preemptive rights of stockholders. The Common Stock conforms to all statements relating thereto contained in the Registration Statement or the Prospectus. (xii) Neither the Company nor any of its officers, directors, or affiliates (as defined in the Regulations), has taken or will take, directly or indirectly, any action designed to stabilize or manipulate the price of any security of the Company, or which has caused or resulted in, or which might in the future reasonably be expected to cause or result in, stabilization or manipulation of the price of any security of the Company, to facilitate the sale or resale of the Common Stock. (xiii) The Company has obtained from each of its directors, officers and stockholders a written agreement that for a period terminating ninety (90) days after the ~~Subsidiaries~~ termination of the offering period, without your prior written consent, offer, pledge, sell, contract to sell, grant any option for the sale of, or otherwise dispose of, directly or indirectly, any shares of Common Stock or any security or other instrument which by its terms is convertible into, exercisable for, or exchangeable for shares of Common Stock, except (a) as set forth in the Prospectus or (b) the sale of Common Stock in the Offering by the Selling Stockholder or (c) in a private placement or other transaction with a non U.S. national or resident, outside the U.S. or its territories. (xiv) On the Effective Date the Company shall have complied with the requirements of the NASD with respect to the Offering. (b) The Selling Stockholder represents and warrants to, and agrees with, the Underwriters that: (i) Such Selling Stockholder has (A) caused a certificate or certificates for the number of shares of Common Stock to be sold by such Selling Stockholder hereunder to be delivered to Comerica Bank - California, Los Angeles, California (the "Custody Agent"), duly endorsed in blank or together with blank stock powers duly executed, with such Selling Stockholder's signature appropriately guaranteed, such certificate or certificates to be held in escrow by the Custody Agent pursuant to an escrow agreement for delivery, pursuant to the provisions hereof, on the Closing Date, and (B) granted an irrevocable power of attorney to the Custody Agent to purchase all requisite stock transfer tax stamps, to sign this Agreement (including agreeing on the price at which the Common Stock is to be sold to the public) and thereafter to modify and amend this Agreement, to settle any dispute relating to the terms of this Agreement, to waive any condition to the obligations of such Selling Stockholder, and to execute all other instruments and documents and to perform all other acts necessary to carry out the provisions of this Agreement on behalf of such Selling Stockholder (such custody agreement, together with such irrevocable powers of attorney, are collectively referred to herein as the "Custody Agreement"). (ii) Such Selling Stockholder has all requisite power and authority to execute, deliver, and perform this Agreement and the Custody Agreement. All necessary corporate proceedings of each corporate Selling Stockholder have been duly taken to authorize the execution, delivery, and performance of this Agreement and the Custody Agreement by such Selling Stockholder. This Agreement and the Custody Agreement have been duly authorized by such Selling Stockholder and delivered by such Selling Stockholder, are the legal, valid, and binding obligations of such Selling Stockholder, and are enforceable as to such Selling Stockholder in accordance with their respective terms. No consent, authorization, approval, order, license, certificate, or permit of or from, or declaration or filing with, any federal, state, local, or other governmental authority or any court or other tribunal is required by such Selling Stockholder for the execution, delivery, or performance of this Agreement (except filings under the Act which have been or will be made before the Closing Date and such consents consisting only of consents under "blue sky" or securities laws which have ~~the right (subject to applicable agreements, which agreements provide for use~~ been obtained at or prior to the ~~extent necessary and desirable~~ date of this Agreement) or the Custody Agreement by such Selling Stockholder. No consent of any party to any contract, agreement, instrument, lease, license, arrangement, or understanding, to which such Selling Stockholder is a party, is required for the ~~conduct~~ execution, delivery, or performance of ~~its business as currently conducted and as proposed~~ this Agreement or the Custody Agreement. (iii) Such Selling Stockholder has good title to the shares of Stock to be ~~conducted)~~ sold by such Selling Stockholder pursuant to ~~use~~this Agreement, free and clear of all liens, ~~charges, claims, encumbrances, pledges,~~ security interests, defects, restrictions or equities of any kind whatsoever all licenses and rights to the Intangibles used in the conduct of their business as now conducted or proposed to be conducted without infringing upon or otherwise acting adversely to the right or claimed right of any other person and (B) is not or will not become, as the case may be, obligated or in any way liable for any payment by way of royalties, fees or otherwise and to any owner or licensee of, or other claimant to, any Intangibles with respect to the use thereof or in connection with the conduct of their business or otherwise, except in each case as disclosed in the Prospectus and except for any such payments, claims, uses, lienspledges, charges, encumbrances, ~~pledges~~stockholders' agreements, ~~security interests, defects, restrictions~~ and ~~equities which would not have a Material Adverse Effect.~~ voting trusts (~~vii) The Company~~ except those created by this Agreement and the ~~Subsidiaries have~~ Custody Agreement), and when delivered in accordance with this Agreement, each new investor will receive good ~~and marketable~~ title to ~~each~~ the shares of ~~the items of personal property which are reflected in the financial statements referred to in Section 4(a)(ii) or are referred to in the Registration Statement and the Prospectus as being owned~~ Common Stock purchased by them ~~and valid and enforceable leasehold interests in each of the items of real and personal property which are referred to in the Registration Statement and the Prospectus as being leased by them~~from such Selling Stockholder, ~~in each case~~ free and clear of all liens, security interests, pledges, charges, encumbrances, ~~claims~~stockholders' agreements, ~~security interests~~ and ~~defects, other than those described in the Registration Statement and the Prospectus and those which do not and will not have a Material Adverse Effect~~voting trusts. (~~viii~~iv) Except as described in the Registration Statement and the Prospectus, there is no litigation or governmental or other proceeding or investigation before any court or before or by any public body or board pending or, to the Company's knowledge, threatened (and the Company does not know of any reasonable basis therefor) against, or involving the assets, properties or business of, the Company or the Subsidiaries which, if adversely determined, could be reasonably expected to have a Material Adverse Effect. (ix) Subsequent to the respective dates as of which information is given in the Registration Statement and the Prospectus, except as described therein, (A) there has not been any material adverse change in the assets or properties, business, results of operations, prospects or condition (financial or otherwise) of the Company or the Subsidiaries taken as a whole, whether or not arising from transactions in the ordinary course of business; (B) neither the Company Neither such Selling Stockholder nor any of the Subsidiaries has sustained any material loss or interference with its assets, businesses or properties (whether owned, leased or licensed) from fire, explosion, earthquake, flood or other calamity, whether or not covered by insurance, or from any labor dispute or any court or legislative or other governmental action, order or decree; and (C) since the date of the latest balance sheet included in the Registration Statement and the Prospectus, except as reflected therein, neither the Company nor any of the Subsidiaries has (x) issued any securities (other than options or shares issued pursuant to exercise of employee stock options or warrants described in the Registration Statement and Prospectus) or incurred any liability or obligation, direct or contingent, for borrowed money, except such liabilities or obligations incurred in the ordinary course of business, (y) entered into any transaction not in the ordinary course of business or (z) declared or paid any dividend or made any distribution on any shares of its stock or redeemed, purchased or otherwise acquired or agreed to redeem, purchase or otherwise acquire any shares of its stock. (x) There is no material document or contract of a character required to be described in the Registration Statement or Prospectus or to be filed as an exhibit to the Registration Statement which is not described or filed as required. Each agreement listed in the Exhibits to the Registration Statement is in full force and effect or has terminated in accordance with its terms or by amendment and such amendment has been filed as an Exhibit to the Registration Statement or has otherwise been provided to the Representatives and, if not so terminated, is valid and enforceable in all material respects by and against the Company or the Subsidiaries, as the case may be, in accordance with its terms, assuming the due authorization, execution and delivery thereof by each of the other parties thereto, except as the enforceability thereof may be limited by (i) bankruptcy, insolvency, reorganization, moratorium or other similar laws affecting the enforcement of creditors' rights generally and (ii) indemnification provisions under Federal and state securities laws; and that the remedy of specific forms of equitable relief may be subject to equitable defenses and the discretion of the court before which any such action may be brought. Neither the Company, the (xi) Neither the Company nor the Subsidiaries is in violation of any term or provision of their respective Certificate of Incorporation and By-laws, in each case as amended to the date hereof, or other governing documents, or of any franchise, license, permit, judgment, decree, order, statute, rule or regulation, where the consequences of such violation would have a Material Adverse Effect. Except as described in the Registration Statement or Prospectus, neither the Company nor any of the Subsidiaries intends to amend its Certificate of Incorporation and By-laws. (xii) Neither the execution, delivery and performance of this Agreement by the Company or the Subsidiaries nor the consummation of any of the transactions contemplated hereby (including, without limitation, the issuance and sale by the Company of the Shares) will give rise to a right to terminate or accelerate the due date of any payment due under, or conflict with or result in the breach of any term or provision of, or constitute a default (or an event which with notice or lapse of time or both would constitute a default) under, or require any consent or waiver under, or result in the execution or imposition of any lien, charge or encumbrance upon any properties or assets of the Company or any of the Subsidiaries pursuant to the terms of, any indenture, mortgage, deed of trust or other agreement or instrument to which the Company or any of the Subsidiaries is a party or by which it or any of its properties or businesses are bound, or any franchise, license, permit, judgment, decree, order, statute, rule or regulation applicable to the Company or any of the Subsidiaries or violate any provision of the Certificate of Incorporation and By-laws of the Company or any of the Subsidiaries, except for such consents or waivers which have already been obtained and are in full force and effect or as would not have a Material Adverse Effect. No consent, approval, authorization, order, registration or qualification of or with any United States court or governmental agency or body is required for the issue and sale of the Shares or the consummation of the other transactions contemplated by this Agreement, which have not been obtained prior to the date hereof, except the registration under the Securities Act of the Shares, and such consents, approvals, authorizations, registrations or qualifications as may be required under state securities or Blue Sky laws -9- 10 in connection with the purchase and distribution of the Shares by the Underwriters. (xiii) The authorized, issued and outstanding capital stock of the Company and the capital stock reserved or committed for issuance is as set forth under the caption "Capitalization" in the Prospectus. All of the outstanding shares of Stock have been duly and validly issued and are fully paid and nonassessable, none of them was issued in violation of any preemptive or other similar right and, to the Company's knowledge, since 1991, none of them were issued in violation of any Federal or state securities laws. The Shares, when issued and sold pursuant to this Agreement, will be duly and validly issued, fully paid and nonassessable, none of them will be issued in violation of any preemptive or other similar right, any contractual right, including, without limitation, rights of first refusal, and, since 1991, none of them were issued in violation of any (subject to compliance with Section 1(c) hereof), Federal or state securities laws. Except as disclosed in the Registration Statement and the Prospectus, there is no outstanding option, warrant or other right calling for the issuance of, and there is no commitment, plan or arrangement to issue, any shares of Common Stock of the Company or any security convertible into, or exercisable or exchangeable for, such shares of Stock. The shares of Stock conform in all material respects to all statements in relation thereto contained in the Registration Statement and the Prospectus. The Company has a sufficient number of authorized but unissued shares of Stock to enable the Company to issue, without further stockholder action, or approve all the Shares to be sold by the Company. (xiv) As of the date hereof, and as of each Closing Date, all of the outstanding shares of capital stock of the Subsidiaries are duly and validly authorized and issued, are fully paid and nonassessable and are and will be owned by the Company and there is and will be no outstanding option, warrant or other right calling for the issuance of, and no commitment, plan or arrangement to issue any share of capital stock of the Subsidiaries or any security convertible or exchangeable or exercisable for capital stock of the Subsidiaries, except as otherwise described in the Registration Statement and Prospectus. (xv) Except as set forth in the Registration Statement and Prospectus, no holder of any security of the Company has the right to have any security owned by such holder included in the Registration Statement or to demand registration of any security owned by such holder during the period ending 90 days after the date of this Agreement. Each Selling Stockholder and each director and executive officer of the Company has delivered too

Appears in 2 contracts

Sources: Underwriting Agreement (I T Technology Inc), Underwriting Agreement (I T Technology Inc)

Appears in 2 contracts

Sources: Purchase Agreement (Fortegra Financial Corp), Purchase Agreement (Fortegra Financial Corp)

Representations and Warranties of the Company and the Selling Stockholders. (a) The Company ~~hereby~~ represents and warrants ~~to each Underwriter as follows~~to, and agrees with, the several Underwriters that: (i) ~~On the Effective Date, the Registration Statement complied, and on the date of the Prospectus, on the date any post~~A registration statement (No. 333-~~effective amendment~~ 109909) relating to the ~~Registration Statement shall become effective~~Offered Securities, ~~on the date any supplement or amendment to the Prospectus is~~ including a form of prospectus, has been filed with the Securities and Exchange Commission (“Commission”) and on each Closing Date, the Registration Statement and the Prospectus (and any amendment thereof or supplement thereto) will comply, in all material respects, with the applicable provisions of the Securities Act and the Rules; (ii) The documents that are incorporated by reference in the preliminary prospectus and the Prospectus or from which information is so incorporated by reference, when they became effective or were filed with the Commission, as the case may be, complied in all material respects with the requirements of the Securities Act or the Securities Exchange Act of 1934, as amended (the "Exchange Act"), as applicable, and the rules and regulations of the Commission promulgated under the Securities Act and the Exchange Act, as applicable, except as amended and superseded by statements made in the Registration Statement; and any documents so filed and incorporated by reference subsequent to the Effective Date shall, when they are filed with the Commission, conform in all material respects with the requirements of the Securities Act or the Exchange Act, as applicable, and the rules and regulations of the Commission promulgated under the Securities Act and the Exchange Act, as applicable. (iii) The consolidated financial statements of the Company (including all notes and schedules thereto) included in the Registration Statement and Prospectus present fairly the financial position, the results of operations and cash flows and the stockholders' equity and the other information purported to be shown therein of the Company and its subsidiaries, listed on Schedule III hereto (the "Subsidiaries"), at the respective dates and for the respective (iv) KPMG Peat Marwick LLP, whose report is filed with the Commission as a part of the Registration Statement, is and, during the periods covered by its reports, was independent public accountants as required by the Securities Act and the Rules. (v) The Company has been duly incorporated and is a validly existing corporation under the laws of the State of Delaware, and the Subsidiaries have been duly incorporated and are validly existing corporations under the laws of their respective jurisdictions. Other than the Subsidiaries, the Company has no subsidiaries and does not control, directly or indirectly, any corporation, partnership, joint venture, association or other business organization, except as described in the Registration Statement and the Prospectus. Each of the Company and the Subsidiaries is duly qualified and in good standing as a foreign corporation in each jurisdiction in which the character or location of its assets or properties (owned, leased or licensed) or the nature of its business makes such qualification necessary except for such jurisdictions where the failure to so qualify would not have a material adverse effect on the assets or properties, business, results of operations or condition (financial or otherwise) of the Company and the Subsidiaries, taken as a whole (a "Material Adverse Effect"). Except as disclosed in the Registration Statement and the Prospectus, neither the Company nor the Subsidiaries own, lease or license any material asset or property or conduct any material business outside the United States of America. Each of the Company and the Subsidiaries have all requisite corporate power and authority, and all necessary authorizations, approvals, consents, orders, licenses, certificates and permits of and from all governmental or regulatory bodies or any other person or entity, to own, lease and license their assets and properties and conduct their businesses as now being conducted and as described in the Registration Statement and the Prospectus except for such authorizations, approvals, consents, orders, licenses, certificates and permits the failure to so obtain would not have a Material Adverse Effect; no such authorization, approval, consent, order, license, certificate or permit contains a materially burdensome restriction other than as disclosed in the Registration Statement and the Prospectus; and the Company has all such corporate power and authority, and such authorizations, approvals, consents, orders, licenses, certificates and permits to enter into, deliver and perform this Agreement and to issue and (vi) The Company and the Subsidiaries own or possess adequate and enforceable rights to use all patents, trademarks, trademark applications, trade names, service marks, copyrights, copyright applications, licenses, know-how and other similar rights and proprietary knowledge (collectively, "Intangibles") material to or necessary for the conduct of their business as described in the Registration Statement and the Prospectus. Except as disclosed in the Registration Statement and the Prospectus, neither the Company nor any of the Subsidiaries have received any notice of, and to their knowledge are not aware of, any infringement of or conflict with asserted rights of others with respect to any Intangibles which, singly or in the aggregate, if the subject of an unfavorable decision, ruling or finding, could be reasonably expected to have a Material Adverse Effect, and neither the Company nor the Subsidiaries know of any reasonable basis therefor. Except as disclosed in the Registration Statement and the Prospectus, to the knowledge of the Company, no Intangibles of the Company or the Subsidiaries are in dispute or are in any conflict with the right of any other person or entity and the Company and each of the Subsidiaries either (A) has or will have the right (subject to applicable agreements, which agreements provide for use to the extent necessary and desirable for the conduct of its business as currently conducted and as proposed to be conducted) to use, free and clear of all liens, charges, claims, encumbrances, pledges, security interests, defects, restrictions or equities of any kind whatsoever all licenses and rights to the Intangibles used in the conduct of their business as now conducted or proposed to be conducted without infringing upon or otherwise acting adversely to the right or claimed right of any other person and (B) is not or will not become, as the case may be, obligated or in any way liable for any payment by way of royalties, fees or otherwise and to any owner or licensee of, or other claimant to, any Intangibles with respect to the use thereof or in connection with the conduct of their business or otherwise, except in each case as disclosed in the Prospectus and except for any such payments, claims, uses, liens, charges, encumbrances, pledges, security interests, defects, restrictions and equities which would not have a Material Adverse Effect. (vii) The Company and the Subsidiaries have good and marketable title to each of the items of personal property which are reflected in the financial statements referred to in Section 4(a)(ii) or are referred to in the Registration Statement and the Prospectus as being owned by them and valid and enforceable leasehold interests in each of the items of real and personal property which are referred to in the Registration Statement and the Prospectus as being leased by them, in each case free and clear of all liens, encumbrances, claims, security interests and defects, other than those described in the Registration Statement and the Prospectus and those which do not and will not have a Material Adverse Effect. (viii) Except as described in the Registration Statement and the Prospectus, there is no litigation or governmental or other proceeding or investigation before any court or before or by any public body or board pending or, to the Company's knowledge, threatened (and the Company does not know of any reasonable basis therefor) against, or involving the assets, properties or business of, the Company or the Subsidiaries which, if adversely determined, could be reasonably expected to have a Material Adverse Effect. (ix) Subsequent to the respective dates as of which information is given in the Registration Statement and the Prospectus, except as described therein, (A) there has not been any material adverse change in the assets or properties, business, results of operations, prospects or condition (financial or otherwise) of the Company or the Subsidiaries taken as a whole, whether or not arising from transactions in the ordinary course of business; (B) neither the Company nor any of the Subsidiaries has sustained any material loss or interference with its assets, businesses or properties (whether owned, leased or licensed) from fire, explosion, earthquake, flood or other calamity, whether or not covered by insurance, or from any labor dispute or any court or legislative or other governmental action, order or decree; and (C) since the date of the latest balance sheet included in the Registration Statement and the Prospectus, except as reflected therein, neither the Company nor any of the Subsidiaries has (x) issued any securities (other than options or shares issued pursuant to exercise of employee stock options or warrants described in the Registration Statement and Prospectus) or incurred any liability or obligation, direct or contingent, for borrowed money, except such liabilities or obligations incurred in the ordinary course of business, (y) entered into any transaction not in the ordinary course of business or (z) declared or paid any dividend or made any distribution on any shares of its stock or redeemed, purchased or otherwise acquired or agreed to redeem, purchase or otherwise acquire any shares of its stock. (x) There is no material document or contract of a character required to be described in the Registration Statement or Prospectus or to be filed as an exhibit to the Registration Statement which is not described or filed as required. Each agreement listed in the Exhibits to the Registration Statement is in full force and effect or has terminated in accordance with its terms or by amendment and such amendment has been filed as an Exhibit to the Registration Statement or has otherwise been provided to the Representatives and, if not so terminated, is valid and enforceable in all material respects by and against the Company or the Subsidiaries, as the case may be, in accordance with its terms, assuming the due authorization, execution and delivery thereof by each of the other parties thereto, except as the enforceability thereof may be limited by (i) bankruptcy, insolvency, reorganization, moratorium or other similar laws affecting the enforcement of creditors' rights generally and (ii) indemnification provisions under Federal and state securities laws; and that the remedy of specific forms of equitable relief may be subject to equitable defenses and the discretion of the court before which any such action may be brought. Neither the Company, the (xi) Neither the Company nor the Subsidiaries is in violation of any term or provision of their respective Certificate of Incorporation and By-laws, in each case as amended to the date hereof, or other governing documents, or of any franchise, license, permit, judgment, decree, order, statute, rule or regulation, where the consequences of such violation would have a Material Adverse Effect. Except as described in the Registration Statement or Prospectus, neither the Company nor any of the Subsidiaries intends to amend its Certificate of Incorporation and By-laws. (xii) Neither the execution, delivery and performance of this Agreement by the Company or the Subsidiaries nor the consummation of any of the transactions contemplated hereby (including, without limitation, the issuance and sale by the Company of the Shares) will give rise to a right to terminate or accelerate the due date of any payment due under, or conflict with or result in the breach of any term or provision of, or constitute a default (or an event which with notice or lapse of time or both would constitute a default) under, or require any consent or waiver under, or result in the execution or imposition of any lien, charge or encumbrance upon any properties or assets of the Company or any of the Subsidiaries pursuant to the terms of, any indenture, mortgage, deed of trust or other agreement or instrument to which the Company or any of the Subsidiaries is a party or by which it or any of its properties or businesses are bound, or any franchise, license, permit, judgment, decree, order, statute, rule or regulation applicable to the Company or any of the Subsidiaries or violate any provision of the Certificate of Incorporation and By-laws of the Company or any of the Subsidiaries, except for such consents or waivers which have already been obtained and are in full force and effect or as would not have a Material Adverse Effect. No consent, approval, authorization, order, registration or qualification of or with any United States court or governmental agency or body is required for the issue and sale of the Shares or the consummation of the other transactions contemplated by this Agreement, which have not been obtained prior to the date hereof, except the registration effective under the Securities Act of 1933 (“Act”) and is not proposed to be amended or (B) is proposed to be amended by amendment or post-effective amendment. If such registration statement (the ~~Shares~~“initial registration statement”) has been declared effective, ~~and such consents, approvals, authorizations, registrations or qualifications as~~ either (A) an additional registration statement (the “additional registration statement”) relating to the Offered Securities may ~~be required under state securities or Blue Sky laws -9- 10 in connection~~ have been filed with the ~~purchase and distribution of~~ Commission pursuant to Rule 462(b) (“Rule 462(b)”) under the ~~Shares by the Underwriters. (xiii) The authorized~~Act and, ~~issued and outstanding capital stock of the Company~~ if so filed, has become effective upon filing pursuant to such Rule and the ~~capital stock reserved or committed for issuance is as set forth under the caption "Capitalization" in the Prospectus. All of the outstanding shares of Stock~~ Offered Securities all have been duly ~~and validly issued and are fully paid and nonassessable, none of them was issued in violation of any preemptive or other similar right~~ registered under the Act pursuant to the initial registration statement and, if applicable, the additional registration statement or (B) such an additional registration statement is proposed to be filed with the ~~Company's knowledge, since 1991, none of them were issued in violation of any Federal or state securities laws. The Shares, when issued and sold~~ Commission pursuant to this Agreement, will be duly and validly issued, fully paid and nonassessable, none of them will be issued in violation of any preemptive or other similar right, any contractual right, including, without limitation, rights of first refusal, and, since 1991, none of them were issued in violation of any (subject to compliance with Section 1(cRule 462(b) hereof), Federal or state securities laws. Except as disclosed in the Registration Statement and the Prospectus, there is no outstanding option, warrant or other right calling for the issuance of, and there is no commitment, plan or arrangement to issue, any shares of Common Stock of the Company or any security convertible into, or exercisable or exchangeable for, such shares of Stock. The shares of Stock conform in all material respects to all statements in relation thereto contained in the Registration Statement and the Prospectus. The Company has a sufficient number of authorized but unissued shares of Stock to enable the Company to issue, without further stockholder action, or approve all the Shares to be sold by the Company. (xiv) As of the date hereof, and as of each Closing Date, all of the outstanding shares of capital stock of the Subsidiaries are duly and validly authorized and issued, are fully paid and nonassessable and are and will ~~be owned by~~ become effective upon filing pursuant to such Rule and upon such filing the ~~Company and there is and~~ Offered Securities will be no outstanding option, warrant or other right calling for the issuance of, and no commitment, plan or arrangement to issue any share of capital stock of the Subsidiaries or any security convertible or exchangeable or exercisable for capital stock of the Subsidiaries, except as otherwise described in the Registration Statement and Prospectus. (xv) Except as set forth in the Registration Statement and Prospectus, no holder of any security of the Company has the right to have any security owned by such holder included in the Registration Statement or to demand registration of any security owned by such holder during the period ending 90 days after the date of this Agreement. Each Selling Stockholder and each director and executive officer of the Company has delivered toall have

Appears in 2 contracts

Sources: Underwriting Agreement (Westinghouse Air Brake Technologies Corp), Underwriting Agreement (Westinghouse Air Brake Technologies Corp)

Appears in 2 contracts

Sources: Underwriting Agreement (Db Capital Partners Inc), Underwriting Agreement (New Mountain Partners Lp)

Appears in 2 contracts

Sources: Equity Underwriting Agreement (Alphasmart Inc), Equity Underwriting Agreement (Alphasmart Inc)

Appears in 2 contracts

Sources: Underwriting Agreement (Yankee Candle Co Inc), Underwriting Agreement (Yankee Candle Co Inc)

Representations and Warranties of the Company and the Selling Stockholders. (a) The Company ~~hereby~~ represents and warrants ~~to each Underwriter as follows~~to, and agrees with, the several Underwriters that: (i) ~~On the Effective Date, the Registration Statement complied, and~~ A registration statement on ~~the date of the Prospectus, on the date any post~~Form S-1 (No. 333-~~effective amendment~~ 135574) (“initial registration statement”) relating to the ~~Registration Statement shall become effective~~Offered Securities, on including a related preliminary prospectus or prospectuses, has been filed with the ~~date any supplement or amendment~~ Securities and Exchange Commission (“Commission”) and an additional registration statement (“additional registration statement”) relating to the ~~Prospectus is~~ Offered Securities may have been or may be filed with the Commission ~~and on each Closing Date, the Registration Statement and the Prospectus~~ pursuant to Rule 462(b) (~~and any amendment thereof or supplement thereto~~“Rule 462(b)”) ~~will comply, in all material respects, with the applicable provisions of~~ under the Securities Act ~~and~~ of 1933, as amended (the ~~Rules; (ii) The documents that are incorporated by reference~~ “Act”). “Initial Registration Statement” as of any time means the initial registration statement, in the ~~preliminary prospectus and the Prospectus or from which information is so incorporated by reference, when they became effective or were~~ form then filed with the Commission, as including all information contained in the ~~case may be, complied in all material respects with the requirements~~ additional registration statement (if any) and then deemed to be a part of the ~~Securities~~ initial registration statement pursuant to the General Instructions of the Form on which it is filed and all information (if any) included in a prospectus then deemed to be a part of the initial registration statement pursuant to Rule 430C (“Rule 430C”) under the Act or ~~the Securities Exchange Act of 1934, as amended (the "Exchange Act"), as applicable, and the rules and regulations~~ retroactively deemed to be a part of the ~~Commission promulgated~~ initial registration statement pursuant to Rule 430A(b) (“Rule 430A(b)”) under the ~~Securities~~ Act and that in any case has not then been superseded or modified. “Additional Registration Statement” as of any time means the ~~Exchange Act~~additional registration statement, ~~as applicable, except as amended and superseded by statements made~~ in the ~~Registration Statement; and any documents so filed and incorporated by reference subsequent to the Effective Date shall, when they are~~ form then filed with the Commission, ~~conform in all material respects with~~ including the ~~requirements~~ contents of the ~~Securities Act or the Exchange Act, as applicable,~~ Initial Registration Statement incorporated by reference therein and ~~the rules and regulations of the Commission promulgated under the Securities Act and the Exchange Act, as applicable. (iii) The consolidated financial statements of the Company (~~including all ~~notes and schedules thereto~~information (if any) included in ~~the Registration Statement and Prospectus present fairly the financial position, the results of operations and cash flows and the stockholders' equity and the other information purported~~ a prospectus then deemed to be shown therein of the Company and its subsidiaries, listed on Schedule III hereto (the "Subsidiaries"), at the respective dates and for the respective (iv) KPMG Peat Marwick LLP, whose report is filed with the Commission as a part of the Registration Statement, is and, during the periods covered by its reports, was independent public accountants as required by the Securities Act and the Rules. (v) The Company has been duly incorporated and is additional registration statement pursuant to Rule 430C or retroactively deemed to be a ~~validly existing corporation under the laws~~ part of the ~~State of Delaware,~~ additional registration statement pursuant to Rule 430A(b) and ~~the Subsidiaries have~~ that in any case has not then been ~~duly incorporated and are validly existing corporations under the laws of their respective jurisdictions~~superseded or modified. Other than the Subsidiaries, the Company has no subsidiaries and does not control, directly or indirectly, any corporation, partnership, joint venture, association or other business organization, except as described in the The Initial Registration Statement and the ~~Prospectus. Each of~~ Additional Registration Statement are herein referred to collectively as the ~~Company~~ “Registration Statements” and ~~the Subsidiaries is duly qualified and in good standing~~ individually as a ~~foreign corporation in each jurisdiction in which~~ “Registration Statement”. “Registration Statement” as of any time means the character or location of its assets or properties (owned, leased or licensed) or the nature of its business makes such qualification necessary except for such jurisdictions where the failure to so qualify would not have a material adverse effect on the assets or properties, business, results of operations or condition (financial or otherwise) of the Company and the Subsidiaries, taken as a whole (a "Material Adverse Effect"). Except as disclosed in the Initial Registration Statement and ~~the Prospectus, neither the Company nor the Subsidiaries own, lease or license~~ any ~~material asset or property or conduct any material business outside the United States~~ Additional Registration Statement as of ~~America~~such time. ~~Each~~ For purposes of the ~~Company and the Subsidiaries have all requisite corporate power and authority~~foregoing definitions, ~~and all necessary authorizations, approvals, consents, orders, licenses, certificates and permits~~ information contained in a form of ~~and from all governmental or regulatory bodies or any other person or entity,~~ prospectus that is deemed retroactively to ~~own, lease and license their assets and properties and conduct their businesses as now being conducted and as described in the~~ be a part of a Registration Statement ~~and the Prospectus except for~~ pursuant to Rule 430A shall be considered to be included in such authorizations, approvals, consents, orders, licenses, certificates and permits the failure to so obtain would not have a Material Adverse Effect; no such authorization, approval, consent, order, license, certificate or permit contains a materially burdensome restriction other than as disclosed in the Registration Statement as of the time specified in Rule 430A. As of the time of execution and delivery of this Agreement, the Prospectus; and the Company has all such corporate power and authority, and such authorizations, approvals, consents, orders, licenses, certificates and permits to enter into, deliver and perform this Agreement and to issue and (vi) The Company and the Subsidiaries own or possess adequate and enforceable rights to use all patents, trademarks, trademark applications, trade names, service marks, copyrights, copyright applications, licenses, know-how and other similar rights and proprietary knowledge (collectively, "Intangibles") material to or necessary for the conduct of their business as described in the Initial Registration Statement has been declared effective under the Act and ~~the Prospectus~~is not proposed to be amended. ~~Except as disclosed in the~~ Any Additional Registration Statement and the Prospectus, neither the Company nor any of the Subsidiaries have received any notice of, and to their knowledge are not aware of, any infringement of or conflict with asserted rights of others with respect to any Intangibles which, singly or in the aggregate, if the subject of an unfavorable decision, ruling or finding, could be reasonably expected to have a Material Adverse Effect, and neither the Company nor the Subsidiaries know of any reasonable basis therefor. Except as disclosed in the Registration Statement and the Prospectus, to the knowledge of the Company, no Intangibles of the Company or the Subsidiaries are in dispute or are in any conflict with the right of any other person or entity and the Company and each of the Subsidiaries (A) has or will ~~have~~ become effective upon filing with the ~~right (subject~~ Commission pursuant to ~~applicable agreements, which agreements provide for use to the extent necessary~~ Rule 462(b) and ~~desirable for the conduct of its business as currently conducted and as~~ is not proposed to be ~~conducted) to use, free and clear of~~ amended. The Offered Securities all ~~liens, charges, claims, encumbrances, pledges, security interests, defects, restrictions~~ have been or ~~equities of any kind whatsoever all licenses and rights~~ will be duly registered under the Act pursuant to the ~~Intangibles used in~~ Initial Registration Statement and, if applicable, the ~~conduct~~ Additional Registration Statement. For purposes of ~~their business as now conducted or proposed to be conducted without infringing upon or otherwise acting adversely to the right or claimed right of any other person and (B) is not or will not become~~this Agreement, ~~as the case may be, obligated or in any way liable for any payment by way of royalties, fees or otherwise and to any owner or licensee of, or other claimant to, any Intangibles~~ “Effective Time” with respect to the use thereof or in connection with the conduct of their business or otherwise, except in each case as disclosed in the Prospectus and except for any such payments, claims, uses, liens, charges, encumbrances, pledges, security interests, defects, restrictions and equities which would not have a Material Adverse Effect. (vii) The Company and the Subsidiaries have good and marketable title to each of the items of personal property which are reflected in the financial statements referred to in Section 4(a)(ii) or are referred to in the Initial Registration Statement or, if filed prior to the execution and delivery of this Agreement, the ~~Prospectus as being owned by them and valid and enforceable leasehold interests in each of the items of real and personal property which are referred to in the~~ Additional Registration Statement means the date and the Prospectus as being leased by them, in each case free and clear of all liens, encumbrances, claims, security interests and defects, other than those described in the Registration Statement and the Prospectus and those which do not and will not have a Material Adverse Effect. (viii) Except as described in the Registration Statement and the Prospectus, there is no litigation or governmental or other proceeding or investigation before any court or before or by any public body or board pending or, to the Company's knowledge, threatened (and the Company does not know of any reasonable basis therefor) against, or involving the assets, properties or business of, the Company or the Subsidiaries which, if adversely determined, could be reasonably expected to have a Material Adverse Effect. (ix) Subsequent to the respective dates time as of which ~~information is given in the~~ such Registration Statement and the Prospectus, except as described therein, (A) there has not been any material adverse change in the assets or properties, business, results of operations, prospects or condition (financial or otherwise) of the Company or the Subsidiaries taken as a whole, whether or not arising from transactions in the ordinary course of business; (B) neither the Company nor any of the Subsidiaries has sustained any material loss or interference with its assets, businesses or properties (whether owned, leased or licensed) from fire, explosion, earthquake, flood or other calamity, whether or not covered by insurance, or from any labor dispute or any court or legislative or other governmental action, order or decree; and (C) since the date of the latest balance sheet included in the Registration Statement and the Prospectus, except as reflected therein, neither the Company nor any of the Subsidiaries has (x) issued any securities (other than options or shares issued pursuant to exercise of employee stock options or warrants described in the Registration Statement and Prospectus) or incurred any liability or obligation, direct or contingent, for borrowed money, except such liabilities or obligations incurred in the ordinary course of business, (y) entered into any transaction not in the ordinary course of business or (z) was declared or paid any dividend or made any distribution on any shares of its stock or redeemed, purchased or otherwise acquired or agreed to redeem, purchase or otherwise acquire any shares of its stock. (x) There is no material document or contract of a character required to be described in the Registration Statement or Prospectus or to be filed as an exhibit to the Registration Statement which is not described or filed as required. Each agreement listed in the Exhibits to the Registration Statement is in full force and effect or has terminated in accordance with its terms or by amendment and such amendment has been filed as an Exhibit to the Registration Statement or has otherwise been provided to the Representatives and, if not so terminated, is valid and enforceable in all material respects by and against the Company or the Subsidiaries, as the case may be, in accordance with its terms, assuming the due authorization, execution and delivery thereof by each of the other parties thereto, except as the enforceability thereof may be limited by (i) bankruptcy, insolvency, reorganization, moratorium or other similar laws affecting the enforcement of creditors' rights generally and (ii) indemnification provisions under Federal and state securities laws; and that the remedy of specific forms of equitable relief may be subject to equitable defenses and the discretion of the court before which any such action may be brought. Neither the Company, the (xi) Neither the Company nor the Subsidiaries is in violation of any term or provision of their respective Certificate of Incorporation and By-laws, in each case as amended to the date hereof, or other governing documents, or of any franchise, license, permit, judgment, decree, order, statute, rule or regulation, where the consequences of such violation would have a Material Adverse Effect. Except as described in the Registration Statement or Prospectus, neither the Company nor any of the Subsidiaries intends to amend its Certificate of Incorporation and By-laws. (xii) Neither the execution, delivery and performance of this Agreement effective by the Company or the Subsidiaries nor the consummation of any of the transactions contemplated hereby (including, without limitation, the issuance and sale by the Company of the Shares) will give rise to a right to terminate or accelerate the due date of any payment due under, or conflict with or result in the breach of any term or provision of, or constitute a default (or an event which with notice or lapse of time or both would constitute a default) under, or require any consent or waiver under, or result in the execution or imposition of any lien, charge or encumbrance upon any properties or assets of the Company or any of the Subsidiaries pursuant to the terms of, any indenture, mortgage, deed of trust or other agreement or instrument to which the Company or any of the Subsidiaries is a party or by which it or any of its properties or businesses are bound, or any franchise, license, permit, judgment, decree, order, statute, rule or regulation applicable to the Company or any of the Subsidiaries or violate any provision of the Certificate of Incorporation and By-laws of the Company or any of the Subsidiaries, except for such consents or waivers which have already been obtained and are in full force and effect or as would not have a Material Adverse Effect. No consent, approval, authorization, order, registration or qualification of or with any United States court or governmental agency or body is required for the issue and sale of the Shares or the consummation of the other transactions contemplated by this Agreement, which have not been obtained prior to the date hereof, except the registration under the Securities Act of the Shares, and such consents, approvals, authorizations, registrations or qualifications as may be required under state securities or Blue Sky laws -9- 10 in connection with the purchase and distribution of the Shares by the Underwriters. (xiii) The authorized, issued and outstanding capital stock of the Company and the capital stock reserved or committed for issuance is as set forth under the caption "Capitalization" in the Prospectus. All of the outstanding shares of Stock have been duly and validly issued and are fully paid and nonassessable, none of them was issued in violation of any preemptive or other similar right and, to the Company's knowledge, since 1991, none of them were issued in violation of any Federal or state securities laws. The Shares, when issued and sold pursuant to this Agreement, will be duly and validly issued, fully paid and nonassessable, none of them will be issued in violation of any preemptive or other similar right, any contractual right, including, without limitation, rights of first refusal, and, since 1991, none of them were issued in violation of any (subject to compliance with Section 1(c) hereof), Federal or state securities laws. Except as disclosed in the Registration Statement and the Prospectus, there is no outstanding option, warrant or other right calling for the issuance of, and there is no commitment, plan or arrangement to issue, any shares of Common Stock of the Company or any security convertible into, or exercisable or exchangeable for, such shares of Stock. The shares of Stock conform in all material respects to all statements in relation thereto contained in the Registration Statement and the Prospectus. The Company has a sufficient number of authorized but unissued shares of Stock to enable the Company to issue, without further stockholder action, or approve all the Shares to be sold by the Company. (xiv) As of the date hereof, and as of each Closing Date, all of the outstanding shares of capital stock of the Subsidiaries are duly and validly authorized and issued, are fully paid and nonassessable and are and will be owned by the Company and there is and will be no outstanding option, warrant or other right calling for the issuance of, and no commitment, plan or arrangement to issue any share of capital stock of the Subsidiaries or any security convertible or exchangeable or exercisable for capital stock of the Subsidiaries, except as otherwise described in the Registration Statement and Prospectus. (xv) Except as set forth in the Registration Statement and Prospectus, no holder of any security of the Company has the right to have any security owned by such holder included in the Registration Statement or to demand registration of any security owned by such holder during the period ending 90 days after the date of this Agreement. Each Selling Stockholder and each director and executive officer of the Company has delivered toCommission or

Appears in 2 contracts

Sources: Underwriting Agreement (First Solar, Inc.), Underwriting Agreement (First Solar, Inc.)

Appears in 2 contracts

Sources: Purchase Agreement (Masimo Corp), Purchase Agreement (Masimo Corp)

Representations and Warranties of the Company and the Selling Stockholders. (a) The Company ~~hereby~~ represents and warrants ~~to each Underwriter~~ to, and agrees with, the Underwriters as follows: (i) On the Effective Date, the Registration Statement complied, and on the date of the Prospectus, on the date any post-effective amendment to the Registration Statement shall become effective, on the date any supplement or amendment to the Prospectus is The Company has filed with the Commission ~~and~~ a registration statement on ~~each Closing Date~~Form S-1 (No. 333-26129), including a prospectus subject to completion, for the registration of the Rights, the ~~Registration Statement~~ shares of Common Stock subject to the Rights, the Direct Shares and the ~~Prospectus~~ Option Shares under the Act, and have filed with the Commission one or more amendments thereto. After the execution of this Agreement, the Company will file with the Commission either (~~and any~~ A) if such registration statement, as it may have been amended, has been declared by the Commission to be effective under the Act as of the time of effectiveness of this Agreement, a prospectus in the form most recently included in an amendment ~~thereof or supplement thereto) will comply~~to such registration statement (or, if no such amendment shall have been filed, in ~~all material respects~~such registration statement), with such changes or insertions as are required by Rule 430A under the ~~applicable provisions~~ Act or permitted by Rule 424(b) under the Act and as have been provided to and approved by the Underwriters prior to the execution of this Agreement, or (B) if such registration statement, as it may have been amended, has not been declared by the Commission to be effective under the Act as of the ~~Securities Act~~ time of effectiveness of this Agreement, an amendment to such registration statement, including a form of prospectus, a copy of which amendment has been furnished to and approved by the ~~Rules~~Underwriters prior to the execution of this Agreement; (ii) The ~~documents that are incorporated by reference in~~ Commission has not issued any order preventing or suspending the ~~preliminary prospectus and the~~ use of any Preliminary Prospectus or ~~from which information is so incorporated by reference~~any part thereof and, ~~when they became effective~~ to the best knowledge of the Company, no proceedings for a stop order have been instituted or ~~were~~ are pending or threatened. When any Preliminary Prospectus was filed with the Commission, ~~as the case may be~~it contained all statements required to be stated therein in accordance with, and complied in all material respects with the requirements of, the Act and the Rules and Regulations except to the extent that such Preliminary Prospectus did not contain any such required statements, or did not so comply, in a manner corrected in the Prospectus. When the Registration Statement or any amendment thereto was (or is) declared effective, it (A) contained (or will contain) all statements required to be stated therein in accordance with, and complied in all material respects (or will comply in all material respects) with the requirements of, the Act and the Rules and Regulations and (B) did not or will not include any untrue statement of a material fact or omit to state any material fact necessary to make the ~~Securities Act~~ statements therein not misleading. When the Prospectus or any amendment or supplement thereto is filed pursuant to Rule 424(b) (or, if the Prospectus or such amendment or supplement is not required to be so filed, when the Registration Statement or the ~~Securities Exchange Act of 1934~~amendment thereto containing such amendment or supplement to the Prospectus was or is declared effective) and on the Closing Date and any Option Closing Date, the Prospectus, as amended or supplemented at any such time, (~~the "Exchange Act"), as applicable~~A) contained or will contain all statements required to be stated therein in accordance with, and the rules and regulations of the Commission promulgated under the Securities Act and the Exchange Act, as applicable, except as amended and superseded by statements made in the Registration Statement; and any documents so filed and incorporated by reference subsequent to the Effective Date shall, when they are filed with the Commission, conform complied or will comply in all material respects with the requirements of of, the ~~Securities Act or the Exchange Act, as applicable, and the rules and regulations of the Commission promulgated under the Securities~~ Act and the ~~Exchange Act~~Rules and Regulations and (B) did not or will not include any untrue statement of a material fact or omit to state any material fact necessary in order to make the statements therein, ~~as applicable.~~in the light of the circumstances under which they were made, not misleading. The foregoing provisions of this paragraph (ii) do not apply to the Provided Information; (iii) The ~~consolidated financial statements of the~~ Company (including all notes and schedules thereto) included in the Registration Statement and Prospectus present fairly the financial position, the results of operations and cash flows and the stockholders' equity and the other information purported to be shown therein of the Company and its subsidiaries, listed on Schedule III hereto (the "Subsidiaries"), at the respective dates and for the respective (iv) KPMG Peat Marwick LLP, whose report is filed with the Commission as a part of the Registration Statement, is and, during the periods covered by its reports, was independent public accountants as required by the Securities Act and the Rules. (v) The Company has been duly incorporated and is a corporation duly organized, validly existing ~~corporation~~ and in good standing under the laws of the State of Delaware, is duly qualified to transact business and is in good standing as foreign corporations in each jurisdiction in which its ownership or leasing of any properties or the ~~Subsidiaries have been duly incorporated and are validly existing corporations under~~ character or conduct of its operations requires such qualification, except where failures to be so qualified, individually or in the ~~laws of their respective jurisdictions~~aggregate, would not result in a Material Adverse Effect. ~~Other than the Subsidiaries, the~~ The Company ~~has no subsidiaries and~~ does not ~~control~~own any stock of or other equity in, or otherwise control directly or indirectly, any corporation, firm, partnership, trust, joint ~~venture, association~~ venture or other business ~~organization~~entity, except as described in the Registration Statement and the Prospectus. Each of the Company and the Subsidiaries is duly qualified and in good standing as a foreign corporation in each jurisdiction in which the character or location of its assets or properties (owned, leased or licensed) or the nature of its business makes such qualification necessary except for such jurisdictions where the failure to so qualify would not have a material adverse effect on the assets or properties, business, results of operations or condition (financial or otherwise) of the Company and the Subsidiaries, taken as a whole (a "Material Adverse Effect"). Except as disclosed in the ~~Registration Statement and the~~ Prospectus~~, neither the~~ . The Company ~~nor the Subsidiaries own, lease or license~~ does not own capital stock in any ~~material asset or property or conduct any material business outside the United States of America. Each of the~~ other corporation; (iv) The Company ~~and the Subsidiaries have~~ has all requisite ~~corporate~~ power and ~~authority~~authority (corporate and other), and has obtained and currently maintains in full force and effect and is operating in compliance with any and all ~~necessary~~ authorizations, approvals~~, consents~~, orders, licenses, ~~certificates~~ certificates, franchises and permits of and from all governmental or regulatory officials and bodies (including those having jurisdiction over environmental or ~~any other person~~ similar matters) necessary or ~~entity,~~ required to ~~own,~~ own or lease ~~and license their assets and~~ its properties and conduct ~~their businesses as now being conducted and~~ its business as described in the Registration ~~Statement and~~ Statement, the Prospectus and any amendment or supplement thereto, except ~~for~~ where the failure to so maintain or operate would not result in a Material Adverse Effect. The Company is and has been doing business in compliance with all such authorizations, approvals, ~~consents,~~ orders, licenses, ~~certificates~~ certificates, franchises and permits and all federal, state, local and foreign laws, rules and regulations (including without limitation those relating to employment matters and the ~~failure~~ payment of taxes) except as disclosed in the Prospectus and except where failures to ~~so obtain~~ be in compliance, individually or in the aggregate, would not ~~have~~ result in a Material Adverse Effect~~; no~~ . The Company has not received any notice or notices of proceedings relating to the revocation or modification of any such authorization, approval, ~~consent,~~ order, license, ~~certificate~~ certificate, franchise or permit ~~contains a materially burdensome restriction other than as disclosed~~ that if the subject of unfavorable decisions, rulings or findings, would, individually or in the ~~Registration Statement~~ aggregate, result in a Material Adverse Effect; (v) The Company has duly executed and delivered the Rights Agent Agreement. The shares of Common Stock to be sold by the Company and the ~~Prospectus;~~ Selling Stockholders hereunder and upon the exercise of the Rights are subject to the rights and interests of the Underwriters and the Rights Agent hereunder and under the Rights Agent Agreement. Except to the extent otherwise provided therein, the arrangements for custody or reservation and delivery of the certificates for such shares, made by the Company ~~has all such corporate power~~ hereunder and ~~authority~~under the Rights Agent Agreement, are irrevocable, and ~~such authorizations~~are not subject to termination by any acts of the Company, ~~approvals, consents, orders, licenses, certificates and permits to enter into, deliver and perform this Agreement and to issue and~~the Selling Stockholders or by operation of law; (vi) The Company has all requisite power and authority (corporate and other) to enter into this Agreement, the Other Purchasers Standby Purchase Agreements and the ~~Subsidiaries own~~ Rights Agent Agreement, and to consummate the transactions provided for herein and therein; and this Agreement, the Other Purchasers Standby Purchase Agreements and the Rights Agent Agreement have each been duly authorized by the Company. Each of this Agreement and the Rights Agent Agreement have been and the Other Purchasers Standby Purchase Agreements will be prior to the Closing Date duly executed and delivered by the Company. Each of this Agreement and the Rights Agent Agreement constitutes and the Other Purchasers Standby Purchase Agreements will constitute prior to the Closing Date, assuming due authorization, execution and delivery by the other parties to such agreements, the legal, valid and binding obligation of the Company enforceable against the Company in accordance with their respective terms, subject to the effect of general principles of equity (including standards of materiality, good faith, fair dealing and reasonableness) whether applied by a court of law or ~~possess adequate~~ equity, and ~~enforceable~~ except as rights to ~~use all patents~~indemnity and contribution hereunder may be limited by applicable law, ~~trademarks~~statutory duties or public policy. The Company's execution and delivery of this Agreement, ~~trademark applications~~the Other Purchasers Standby Purchase Agreements and the Rights Agent Agreement, ~~trade names~~its performance of its obligations hereunder and thereunder, ~~service marks~~the consummation of the transactions contemplated hereby and thereby by it, ~~copyrights, copyright applications, licenses, know-how~~ and ~~other similar rights and proprietary knowledge (collectively, "Intangibles") material to or necessary for the~~ its conduct of ~~their~~ its business as described in the Registration ~~Statement~~ Statement, the Prospectus and ~~the Prospectus. Except as disclosed~~ any amendment or supplement thereto, will not conflict with or result in ~~the Registration Statement and the Prospectus, neither the Company nor~~ a breach or violation of any of the ~~Subsidiaries have received any notice~~ terms or provisions of, ~~and to their knowledge are not aware of~~or constitute a default under, ~~any infringement of~~ or ~~conflict with asserted rights of others with respect to any Intangibles which, singly or~~ result in the ~~aggregate, if the subject of an unfavorable decision, ruling~~ creation or ~~finding, could be reasonably expected to have a Material Adverse Effect, and neither the Company nor the Subsidiaries know~~ imposition of any reasonable basis therefor. Except as disclosed in the Registration Statement and the Prospectus, to the knowledge of the Company, no Intangibles of the Company or the Subsidiaries are in dispute or are in any conflict with the right of any other person or entity and the Company and each of the Subsidiaries (A) has or will have the right (subject to applicable agreements, which agreements provide for use to the extent necessary and desirable for the conduct of its business as currently conducted and as proposed to be conducted) to use, free and clear of all material liens, charges, claims, encumbrances, pledges, security interests, ~~defects,~~ defects or other like restrictions or material equities of any kind whatsoever all licenses and rights to the Intangibles used in the conduct of their business as now conducted or proposed to be conducted without infringing upon or otherwise acting adversely to the right or claimed right of any other person and (B) is not or will not become, as the case may be, obligated or in any way liable for any payment by way of royalties, fees or otherwise and to any owner or licensee of, or other claimant toupon, any ~~Intangibles with respect to the use thereof~~ right, property or ~~in connection with the conduct of their business~~ assets (tangible or otherwise, except in each case as disclosed in the Prospectus and except for any such payments, claims, uses, liens, charges, encumbrances, pledges, security interests, defects, restrictions and equities which would not have a Material Adverse Effect. (vii) The Company and the Subsidiaries have good and marketable title to each of the items of personal property which are reflected in the financial statements referred to in Section 4(a)(ii) or are referred to in the Registration Statement and the Prospectus as being owned by them and valid and enforceable leasehold interests in each of the items of real and personal property which are referred to in the Registration Statement and the Prospectus as being leased by them, in each case free and clear of all liens, encumbrances, claims, security interests and defects, other than those described in the Registration Statement and the Prospectus and those which do not and will not have a Material Adverse Effect. (viii) Except as described in the Registration Statement and the Prospectus, there is no litigation or governmental or other proceeding or investigation before any court or before or by any public body or board pending or, to the Company's knowledge, threatened (and the Company does not know of any reasonable basis therefor) against, or involving the assets, properties or business of, the Company or the Subsidiaries which, if adversely determined, could be reasonably expected to have a Material Adverse Effect. (ix) Subsequent to the respective dates as of which information is given in the Registration Statement and the Prospectus, except as described therein, (A) there has not been any material adverse change in the assets or properties, business, results of operations, prospects or condition (financial or otherwiseintangible) of the Company pursuant to the terms of (A) the Certificate of Incorporation or bylaws, each as amended to date, of the ~~Subsidiaries taken as a whole~~Company, ~~whether or not arising from transactions in the ordinary course of business;~~ (B) ~~neither the Company nor~~ any of the Subsidiaries has sustained any material loss or interference with its assets, businesses or properties (whether owned, leased or licensed) from fire, explosion, earthquake, flood or other calamity, whether or not covered by insurance, or from any labor dispute or any court or legislative or other governmental action, order or decree; and (C) since the date of the latest balance sheet included in the Registration Statement and the Prospectus, except as reflected therein, neither the Company nor any of the Subsidiaries has (x) issued any securities (other than options or shares issued pursuant to exercise of employee stock options or warrants described in the Registration Statement and Prospectus) or incurred any liability or obligation, direct or contingent, for borrowed money, except such liabilities or obligations incurred in the ordinary course of business, (y) entered into any transaction not in the ordinary course of business or (z) declared or paid any dividend or made any distribution on any shares of its stock or redeemed, purchased or otherwise acquired or agreed to redeem, purchase or otherwise acquire any shares of its stock. (x) There is no material document or contract of a character required to be described in the Registration Statement or Prospectus or to be filed as an exhibit to the Registration Statement which is not described or filed as required. Each agreement listed in the Exhibits to the Registration Statement is in full force and effect or has terminated in accordance with its terms or by amendment and such amendment has been filed as an Exhibit to the Registration Statement or has otherwise been provided to the Representatives and, if not so terminated, is valid and enforceable in all material respects by and against the Company or the Subsidiaries, as the case may be, in accordance with its terms, assuming the due authorization, execution and delivery thereof by each of the other parties thereto, except as the enforceability thereof may be limited by (i) bankruptcy, insolvency, reorganization, moratorium or other similar laws affecting the enforcement of creditors' rights generally and (ii) indemnification provisions under Federal and state securities laws; and that the remedy of specific forms of equitable relief may be subject to equitable defenses and the discretion of the court before which any such action may be brought. Neither the Company, the (xi) Neither the Company nor the Subsidiaries is in violation of any term or provision of their respective Certificate of Incorporation and By-laws, in each case as amended to the date hereof, or other governing documents, or of any franchiselease, license, permit, ~~judgment~~contract, decree, order, statute, rule or regulation, where the consequences of such violation would have a Material Adverse Effect. Except as described in the Registration Statement or Prospectus, neither the Company nor any of the Subsidiaries intends to amend its Certificate of Incorporation and By-laws. (xii) Neither the execution, delivery and performance of this Agreement by the Company or the Subsidiaries nor the consummation of any of the transactions contemplated hereby (including, without limitation, the issuance and sale by the Company of the Shares) will give rise to a right to terminate or accelerate the due date of any payment due under, or conflict with or result in the breach of any term or provision of, or constitute a default (or an event which with notice or lapse of time or both would constitute a default) under, or require any consent or waiver under, or result in the execution or imposition of any lien, charge or encumbrance upon any properties or assets of the Company or any of the Subsidiaries pursuant to the terms of, any indenture, mortgage, deed of trust, voting trust agreement, stockholders agreement, note, loan or credit agreement (including any related to indebtedness) or any other agreement or instrument to which the Company ~~or any of the Subsidiaries~~ is a party or by which it the Company is or may be bound or to which any of its properties or ~~businesses are bound~~assets (tangible or intangible) is or may be subject, except to the extent that any such conflict, breach, violation or default, individually or in the aggregate, does not and would not result in a Material Adverse Effect and does not and would not interfere with the Offering or (C) any ~~franchise, license, permit~~statute, judgment, decree, order~~, statute~~, rule or regulation applicable to the Company or any of ~~the Subsidiaries~~ its activities or ~~violate any provision of the Certificate of Incorporation and By-laws of~~ properties adopted or issued by an arbitrator, court, regulatory body or administrative agency or other governmental agency or body (including those having jurisdiction over environmental or similar matters), domestic or foreign, having jurisdiction over the Company or any of ~~the Subsidiaries, except for~~ its activities or properties (other than such consents or waivers which have already been obtained and are in full force and effect or as would not have a Material Adverse Effect. No consent, approval, authorization, order, registration or qualification of or with any United States court or governmental agency or body is required for the issue and sale of the Shares or the consummation of the other transactions contemplated by this Agreement, which have not been obtained prior to the date hereof, except the registration under the Securities Act of the Shares, and such consents, approvals, authorizations, registrations or qualifications as may be required under state securities or "Blue ~~Sky~~ Sky" laws ~~-9- 10~~ and such as may be required by the by-laws and rules of the NASD in connection with the purchase and distribution of the Shares by the Underwriters.); (~~xiii~~vii) No consent, approval, authorization or order of, or filing with, any governmental agency or body or any court is required in connection with the offer, issuance and sale of the shares of Common Stock to be sold by the Company hereunder or upon exercise of the Rights, the Company's performance of its obligations hereunder, or the consummation by the Company of the other transactions contemplated hereby, except (A) such as may be required under the state securities or "Blue Sky" laws of any jurisdiction or as may be required by the by-laws and rules of the NASD in connection with the purchase and distribution of the Shares by the Underwriters, (B) any filing of the Prospectus pursuant to Rule 424(b) or 430A of the Rules and Regulations and, if the Registration Statement has not been declared effective, an order of the Commission declaring the Registration Statement effective under the Act, and (C) such other approvals as have been obtained and remain in full force and effect; (viii) The authorized, issued and outstanding capital stock of the Company is set forth, and conforms to the ~~capital stock reserved or committed for issuance is as set forth under the caption "Capitalization"~~ description thereof contained, in the Registration Statement, the Prospectus, and any amendment or supplement thereto. All of the ~~outstanding~~ issued shares of ~~Stock~~ capital stock of the Company, including the shares to be sold by the Selling Stockholders, have been duly authorized and validly ~~issued~~ issued, and are fully paid and nonassessable; the holders thereof have no rights of rescission against the Company with respect thereto and are not subject to personal liabilities solely by reason of being such holders (except to the extent that as a result of acquiring a substantial number of shares of Common Stock a holder may be subject to claims of personal liability as an affiliate or control person of the Company, as to which no representation is made hereby); and none of ~~them was~~ such shares have been issued in violation of the preemptive rights of any ~~preemptive~~ security holders of the Company arising as a matter of law or ~~other similar right and,~~ under or pursuant to the Company's ~~knowledge~~Certificate of Incorporation, ~~since 1991~~as amended, ~~none of them were issued in violation of~~ the Company's By-Laws, as amended, or any ~~Federal~~ agreement or ~~state securities laws~~instrument to which the Company is a party or by which it is bound. The ~~Shares, when issued~~ shares of Common Stock offered by the Company and to be sold upon the exercise of the Rights or pursuant to this ~~Agreement~~Agreement and the Other Purchasers Standby Purchase Agreements have been duly authorized and at the Closing Date, after payment therefor in accordance herewith or in accordance with the terms and conditions of the Rights (as the case may be), will be ~~duly and~~ validly issued, fully paid and nonassessable, none of them will be issued in violation of any preemptive or other similar right, any contractual right, including, without limitation, rights of first refusal, and, since 1991, none of them were issued in violation of any (nonassessable and not subject to ~~compliance~~ any Adverse Claim, with ~~Section 1(c) hereof), Federal or state securities laws. Except~~ no personal liability attaching to the holder solely as ~~disclosed in~~ a result of the ~~Registration Statement and~~ ownership thereof (except to the ~~Prospectus, there is no outstanding option, warrant or other right calling for the issuance of, and there is no commitment, plan or arrangement to issue, any~~ extent that as a result of acquiring a substantial number of shares of Common Stock a holder may be subject to claims of personal liability as an affiliate or control person of the ~~Company or any security convertible into~~Company, ~~or exercisable or exchangeable for, such shares of Stock~~as to which no representation is made hereby). ~~The shares of Stock conform in all material respects~~ Upon the issuance and delivery pursuant to ~~all statements in relation thereto contained in the Registration Statement~~ this Agreement and the ~~Prospectus. The Company has a sufficient number~~ Rights Agent Agreement of ~~authorized but unissued shares of Stock to enable the Company to issue, without further stockholder action, or approve all~~ the Shares to be sold by the Company~~. (xiv) As~~ , assuming that each of the ~~date hereof~~Underwriters is a Bona Fide Purchaser, the Underwriters will acquire good and as marketable title to the Shares free and clear of ~~each Closing Date~~any liens, ~~all~~ charges, claims, preemptive rights, encumbrances, pledges, security interests, defects or other like restrictions or like material equity of ~~the outstanding~~ any kind whatsoever. The shares of ~~capital stock of the Subsidiaries are duly and validly authorized and issued, are fully paid and nonassessable and are and will be owned~~ Common Stock offered by the Company and ~~there is and~~ to be sold upon the exercise of the Rights or pursuant to this Agreement or the Other Purchasers Standby Purchase Agreements will be conform to the description thereof contained in the Prospectus. There are no ~~outstanding option, warrant~~ preemptive or other ~~right calling~~ rights to subscribe for or to purchase nor any restriction upon the ~~issuance~~ voting or transfer of, any shares of Common Stock pursuant to the Company's Certificate of Incorporation or By-Laws, as each amended to date, or pursuant to any agreement among stockholders to which the Company is a party, by which it is bound or of which it has knowledge, and ~~no commitment~~the Shares to be sold by the Company are not otherwise subject to any preemptive or other similar rights of any security holder. The Company is not a party to or bound by any instrument, ~~plan~~ agreement or other arrangement providing for it to issue any ~~share of~~ capital ~~stock of the Subsidiaries~~ stock, rights, warrants, options or ~~any security convertible or exchangeable or exercisable for capital stock of the Subsidiaries~~other securities, except for this Agreement and as ~~otherwise~~ described in the ~~Registration Statement and~~ Prospectus~~. (xv)~~ . Except as ~~set forth~~ described in the ~~Registration Statement and Prospectus~~Prospectus with respect to Common Stock that may be registered by the Company in a registration statement on Form S-8, no holder of any ~~security~~ securities of the Company has the right to ~~have~~ include any ~~security owned~~ securities issued by ~~such holder included~~ the Company in the Registration Statement or any registration statement to ~~demand registration of any security owned~~ be filed by ~~such holder~~ the Company during ~~the~~ a period ~~ending 90 days after~~ commencing on the date the Registration Statement is declared effective by the Commission and ending 180 days following the Expiration Date or to require the Company to file a registration statement under the Act during such period. All of ~~this Agreement. Each Selling Stockholder~~ the (i) Rights and ~~each director~~ (ii) outstanding shares of Common Stock and ~~executive officer~~ all of the shares of Common Stock to be issued by the Company as contemplated herein have been approved for quotation upon notice of issuance on the Nasdaq National Market of the Nasdaq Stock Market; (ix) The financial statements and schedules of the Company ~~has delivered to~~included in the Registration Statement, the Prospectus and any amendment or supplement thereto fairly present the financial position and results of operations of the Company as of the dates and for the periods therein specified. Such financial statements and schedules have been prepared in accordance with generally accepted accounting principles as in effect in the United States and as consistently applied throughout the periods involved and in accordance with the Rules and Regulations. The selected financial data set forth under the caption "SELECTED FINANCIAL DATA" in the Prospectus fairly present, on the basis stated therein, the information included therein. The Company maintains a system of internal accounting controls sufficient to provide reasonable assurance that (A) transactions are executed in accordance with management's general or specific authorizations; (B) transactions are recorded as neces

Appears in 2 contracts

Sources: Standby Underwriting Agreement (Chromavision Medical Systems Inc), Standby Underwriting Agreement (Chromavision Medical Systems Inc)

Appears in 1 contract

Sources: Underwriting Agreement (PRA International)

Representations and Warranties of the Company and the Selling Stockholders. (a) The Company ~~hereby~~ represents and warrants ~~to each Underwriter as follows~~to, and agrees with, the several Underwriters that: (i) ~~On the Effective Date, the Registration Statement complied, and on the date of the Prospectus, on the date any post~~A registration statement (No. 333-~~effective amendment~~ 40878) relating to the ~~Registration Statement shall become effective~~Offered Securities, ~~on the date any supplement or amendment to the Prospectus is~~ including a form of prospectus, has been filed with the Securities and Exchange Commission ~~and on each Closing Date, the Registration Statement and the Prospectus~~ (and any amendment thereof or supplement thereto) will comply, in all material respects, with the applicable provisions of the Securities Act and the Rules; (ii) The documents that are incorporated by reference in the preliminary prospectus and the Prospectus or from which information is so incorporated by reference, when they became effective or were filed with the "Commission, as the case may be, complied in all material respects with the requirements of the Securities Act or the Securities Exchange Act of 1934, as amended (the "Exchange Act"), as applicable, and the rules and regulations of the Commission promulgated under the Securities Act and the Exchange Act, as applicable, except as amended and superseded by statements made in the Registration Statement; and any documents so filed and incorporated by reference subsequent to the Effective Date shall, when they are filed with the Commission, conform in all material respects with the requirements of the Securities Act or the Exchange Act, as applicable, and the rules and regulations of the Commission promulgated under the Securities Act and the Exchange Act, as applicable. (iii) The consolidated financial statements of the Company (including all notes and schedules thereto) included in the Registration Statement and Prospectus present fairly the financial position, the results of operations and cash flows and the stockholders' equity and the other information purported to be shown therein of the Company and its subsidiaries, listed on Schedule III hereto (the "Subsidiaries"), at the respective dates and for the respective (iv) KPMG Peat Marwick LLP, whose report is filed with the Commission as a part of the Registration Statement, is and, during the periods covered by its reports, was independent public accountants as required by the Securities Act and the Rules. (v) The Company has been duly incorporated and is a validly existing corporation under the laws of the State of Delaware, and the Subsidiaries have been duly incorporated and are validly existing corporations under the laws of their respective jurisdictions. Other than the Subsidiaries, the Company has no subsidiaries and does not control, directly or indirectly, any corporation, partnership, joint venture, association or other business organization, except as described in the Registration Statement and the Prospectus. Each of the Company and the Subsidiaries is duly qualified and in good standing as a foreign corporation in each jurisdiction in which the character or location of its assets or properties (owned, leased or licensed) or the nature of its business makes such qualification necessary except for such jurisdictions where the failure to so qualify would not have a material adverse effect on the assets or properties, business, results of operations or condition (financial or otherwise) of the Company and the Subsidiaries, taken as a whole (a "Material Adverse Effect"). Except as disclosed in the Registration Statement and the Prospectus, neither the Company nor the Subsidiaries own, lease or license any material asset or property or conduct any material business outside the United States of America. Each of the Company and the Subsidiaries have all requisite corporate power and authority, and all necessary authorizations, approvals, consents, orders, licenses, certificates and permits of and from all governmental or regulatory bodies or any other person or entity, to own, lease and license their assets and properties and conduct their businesses as now being conducted and as described in the Registration Statement and the Prospectus except for such authorizations, approvals, consents, orders, licenses, certificates and permits the failure to so obtain would not have a Material Adverse Effect; no such authorization, approval, consent, order, license, certificate or permit contains a materially burdensome restriction other than as disclosed in the Registration Statement and the Prospectus; and the Company has all such corporate power and authority, and such authorizations, approvals, consents, orders, licenses, certificates and permits to enter into, deliver and perform this Agreement and to issue and (vi) The Company and the Subsidiaries own or possess adequate and enforceable rights to use all patents, trademarks, trademark applications, trade names, service marks, copyrights, copyright applications, licenses, know-how and other similar rights and proprietary knowledge (collectively, "Intangibles") ~~material to or necessary for the conduct of their business as described in the Registration Statement~~ and the Prospectus. Except as disclosed in the Registration Statement and the Prospectus, neither the Company nor any of the Subsidiaries have received any notice of, and to their knowledge are not aware of, any infringement of or conflict with asserted rights of others with respect to any Intangibles which, singly or in the aggregate, if the subject of an unfavorable decision, ruling or finding, could be reasonably expected to have a Material Adverse Effect, and neither the Company nor the Subsidiaries know of any reasonable basis therefor. Except as disclosed in the Registration Statement and the Prospectus, to the knowledge of the Company, no Intangibles of the Company or the Subsidiaries are in dispute or are in any conflict with the right of any other person or entity and the Company and each of the Subsidiaries either (A) has or will have the right (subject to applicable agreements, which agreements provide for use to the extent necessary and desirable for the conduct of its business as currently conducted and as proposed to be conducted) to use, free and clear of all liens, charges, claims, encumbrances, pledges, security interests, defects, restrictions or equities of any kind whatsoever all licenses and rights to the Intangibles used in the conduct of their business as now conducted or proposed to be conducted without infringing upon or otherwise acting adversely to the right or claimed right of any other person and (B) is not or will not become, as the case may be, obligated or in any way liable for any payment by way of royalties, fees or otherwise and to any owner or licensee of, or other claimant to, any Intangibles with respect to the use thereof or in connection with the conduct of their business or otherwise, except in each case as disclosed in the Prospectus and except for any such payments, claims, uses, liens, charges, encumbrances, pledges, security interests, defects, restrictions and equities which would not have a Material Adverse Effect. (vii) The Company and the Subsidiaries have good and marketable title to each of the items of personal property which are reflected in the financial statements referred to in Section 4(a)(ii) or are referred to in the Registration Statement and the Prospectus as being owned by them and valid and enforceable leasehold interests in each of the items of real and personal property which are referred to in the Registration Statement and the Prospectus as being leased by them, in each case free and clear of all liens, encumbrances, claims, security interests and defects, other than those described in the Registration Statement and the Prospectus and those which do not and will not have a Material Adverse Effect. (viii) Except as described in the Registration Statement and the Prospectus, there is no litigation or governmental or other proceeding or investigation before any court or before or by any public body or board pending or, to the Company's knowledge, threatened (and the Company does not know of any reasonable basis therefor) against, or involving the assets, properties or business of, the Company or the Subsidiaries which, if adversely determined, could be reasonably expected to have a Material Adverse Effect. (ix) Subsequent to the respective dates as of which information is given in the Registration Statement and the Prospectus, except as described therein, (A) there has not been any material adverse change in the assets or properties, business, results of operations, prospects or condition (financial or otherwise) of the Company or the Subsidiaries taken as a whole, whether or not arising from transactions in the ordinary course of business; (B) neither the Company nor any of the Subsidiaries has sustained any material loss or interference with its assets, businesses or properties (whether owned, leased or licensed) from fire, explosion, earthquake, flood or other calamity, whether or not covered by insurance, or from any labor dispute or any court or legislative or other governmental action, order or decree; and (C) since the date of the latest balance sheet included in the Registration Statement and the Prospectus, except as reflected therein, neither the Company nor any of the Subsidiaries has (x) issued any securities (other than options or shares issued pursuant to exercise of employee stock options or warrants described in the Registration Statement and Prospectus) or incurred any liability or obligation, direct or contingent, for borrowed money, except such liabilities or obligations incurred in the ordinary course of business, (y) entered into any transaction not in the ordinary course of business or (z) declared or paid any dividend or made any distribution on any shares of its stock or redeemed, purchased or otherwise acquired or agreed to redeem, purchase or otherwise acquire any shares of its stock. (x) There is no material document or contract of a character required to be described in the Registration Statement or Prospectus or to be filed as an exhibit to the Registration Statement which is not described or filed as required. Each agreement listed in the Exhibits to the Registration Statement is in full force and effect or has terminated in accordance with its terms or by amendment and such amendment has been filed as an Exhibit to the Registration Statement or has otherwise been provided to the Representatives and, if not so terminated, is valid and enforceable in all material respects by and against the Company or the Subsidiaries, as the case may be, in accordance with its terms, assuming the due authorization, execution and delivery thereof by each of the other parties thereto, except as the enforceability thereof may be limited by (i) bankruptcy, insolvency, reorganization, moratorium or other similar laws affecting the enforcement of creditors' rights generally and (ii) indemnification provisions under Federal and state securities laws; and that the remedy of specific forms of equitable relief may be subject to equitable defenses and the discretion of the court before which any such action may be brought. Neither the Company, the (xi) Neither the Company nor the Subsidiaries is in violation of any term or provision of their respective Certificate of Incorporation and By-laws, in each case as amended to the date hereof, or other governing documents, or of any franchise, license, permit, judgment, decree, order, statute, rule or regulation, where the consequences of such violation would have a Material Adverse Effect. Except as described in the Registration Statement or Prospectus, neither the Company nor any of the Subsidiaries intends to amend its Certificate of Incorporation and By-laws. (xii) Neither the execution, delivery and performance of this Agreement by the Company or the Subsidiaries nor the consummation of any of the transactions contemplated hereby (including, without limitation, the issuance and sale by the Company of the Shares) will give rise to a right to terminate or accelerate the due date of any payment due under, or conflict with or result in the breach of any term or provision of, or constitute a default (or an event which with notice or lapse of time or both would constitute a default) under, or require any consent or waiver under, or result in the execution or imposition of any lien, charge or encumbrance upon any properties or assets of the Company or any of the Subsidiaries pursuant to the terms of, any indenture, mortgage, deed of trust or other agreement or instrument to which the Company or any of the Subsidiaries is a party or by which it or any of its properties or businesses are bound, or any franchise, license, permit, judgment, decree, order, statute, rule or regulation applicable to the Company or any of the Subsidiaries or violate any provision of the Certificate of Incorporation and By-laws of the Company or any of the Subsidiaries, except for such consents or waivers which have already been obtained and are in full force and effect or as would not have a Material Adverse Effect. No consent, approval, authorization, order, registration or qualification of or with any United States court or governmental agency or body is required for the issue and sale of the Shares or the consummation of the other transactions contemplated by this Agreement, which have not been obtained prior to the date hereof, except the registration effective under the Securities Act of 1933 ("Act") and is not proposed to be amended or (B) is proposed to be amended by amendment or post-effective amendment. If such registration statement (the ~~Shares~~"initial registration statement") has been declared effective, ~~and such consents, approvals, authorizations, registrations or qualifications as~~ either (A) an additional registration statement (the "additional registration statement") relating to the Offered Securities may ~~be required under state securities or Blue Sky laws -9- 10 in connection~~ have been filed with the ~~purchase and distribution of~~ Commission pursuant to Rule 462(b) ("Rule 462(b)") under the ~~Shares by the Underwriters. (xiii) The authorized~~Act and, ~~issued and outstanding capital stock of the Company~~ if so filed, has become effective upon filing pursuant to such Rule and the ~~capital stock reserved or committed for issuance is as set forth under the caption "Capitalization" in the Prospectus. All of the outstanding shares of Stock~~ Offered Securities all have been duly ~~and validly issued and are fully paid and nonassessable, none of them was issued in violation of any preemptive or other similar right~~ registered under the Act pursuant to the initial registration statement and, if applicable, the additional registration statement or (B) such an additional registration statement is proposed to be filed with the Commission pursuant to Rule 462(b) and will become effective upon filing pursuant to such Rule and upon such filing the Offered Securities will all have been duly registered under the Act pursuant to the ~~Company's knowledge, since 1991, none of them were issued in violation of any Federal or state securities laws~~initial registration statement and such additional registration statement. The Shares, when issued and sold pursuant to this Agreement, will be duly and validly issued, fully paid and nonassessable, none of them will be issued in violation of any preemptive or other similar right, any contractual right, including, without limitation, rights of first refusal, and, since 1991, none of them were issued in violation of any (subject to compliance with Section 1(c) hereof), Federal or state securities laws. Except as disclosed in the Registration Statement and the Prospectus, there is no outstanding option, warrant or other right calling for the issuance of, and there is no commitment, plan or arrangement to issue, any shares of Common Stock of If the Company ~~or any security convertible into, or exercisable or exchangeable for, such shares of Stock. The shares of Stock conform in all material respects~~ does not propose to ~~all statements in relation thereto contained in~~ amend the Registration Statement and the Prospectus. The Company has a sufficient number of authorized but unissued shares of Stock to enable the Company to issue, without further stockholder action, or approve all the Shares to be sold by the Company. (xiv) As of the date hereof, and as of each Closing Date, all of the outstanding shares of capital stock of the Subsidiaries are duly and validly authorized and issued, are fully paid and nonassessable and are and will be owned by the Company and there is and will be no outstanding option, warrant or other right calling for the issuance of, and no commitment, plan or arrangement to issue any share of capital stock of the Subsidiaries or any security convertible or exchangeable or exercisable for capital stock of the Subsidiaries, except as otherwise described in the Registration Statement and Prospectus. (xv) Except as set forth in the Registration Statement and Prospectus, no holder of any security of the Company has the right to have any security owned by such holder included in the Registration Statement or to demand registration of any security owned by such holder during the period ending 90 days after the date of this Agreement. Each Selling Stockholder and each director and executive officer of the Company has delivered toinitial registration

Appears in 1 contract

Sources: Underwriting Agreement (Newport Corp)

Appears in 1 contract

Sources: Underwriting Agreement (Proquest Co)

Representations and Warranties of the Company and the Selling Stockholders. (a) The Company ~~hereby~~ represents and warrants ~~to each Underwriter as follows~~to, and agrees with, the several Underwriters that: (i) ~~On the Effective Date, the Registration Statement complied, and on the date of the Prospectus, on the date any post~~A registration statement (No. 333-~~effective amendment~~ 135486) (“initial registration statement”) relating to the ~~Registration Statement shall become effective~~Offered Securities, on including a form of prospectus, has been filed with the ~~date any supplement or amendment~~ Securities and Exchange Commission (“Commission”) and an additional registration statement (“additional registration statement”) relating to the ~~Prospectus is~~ Offered Securities may have been or may be filed with the Commission ~~and on each Closing Date, the Registration Statement and the Prospectus~~ pursuant to Rule 462(b) (~~and any amendment thereof or supplement thereto~~“Rule 462(b)”) ~~will comply, in all material respects, with the applicable provisions of~~ under the Securities Act ~~and~~ of 1933 (“Act”). “Initial Registration Statement” as of any time means the ~~Rules; (ii) The documents that are incorporated by reference~~ initial registration statement, in the ~~preliminary prospectus and the Prospectus or from which information is so incorporated by reference, when they became effective or were~~ form then filed with the Commission, as including all information contained in the ~~case may be, complied in all material respects with the requirements~~ additional registration statement (if any) and then deemed to be a part of the ~~Securities~~ initial registration statement pursuant to the General Instructions of the Form on which it is filed and all information (if any) included in a prospectus then deemed to be a part of the initial registration statement pursuant to Rule 430C (“Rule 430C”) under the Act or ~~the Securities Exchange Act of 1934, as amended (the "Exchange Act"), as applicable, and the rules and regulations~~ retroactively deemed to be a part of the ~~Commission promulgated~~ initial registration statement pursuant to Rule 430A(b) (“Rule 430A(b)”) under the ~~Securities~~ Act and that in any case has not then been superseded or modified. “Additional Registration Statement” as of any time means the ~~Exchange Act~~additional registration statement, ~~as applicable, except as amended and superseded by statements made~~ in the ~~Registration Statement; and any documents so filed and incorporated by reference subsequent to the Effective Date shall, when they are~~ form then filed with the Commission, ~~conform in all material respects with~~ including the ~~requirements~~ contents of the ~~Securities Act or the Exchange Act, as applicable,~~ Initial Registration Statement incorporated by reference therein and ~~the rules and regulations of the Commission promulgated under the Securities Act and the Exchange Act, as applicable. (iii) The consolidated financial statements of the Company (~~including all ~~notes and schedules thereto~~information (if any) included in ~~the Registration Statement and Prospectus present fairly the financial position, the results of operations and cash flows and the stockholders' equity and the other information purported~~ a prospectus then deemed to be shown therein of the Company and its subsidiaries, listed on Schedule III hereto (the "Subsidiaries"), at the respective dates and for the respective (iv) KPMG Peat Marwick LLP, whose report is filed with the Commission as a part of the Registration Statement, is and, during the periods covered by its reports, was independent public accountants as required by the Securities Act and the Rules. (v) The Company has been duly incorporated and is additional registration statement pursuant to Rule 430C or retroactively deemed to be a ~~validly existing corporation under the laws~~ part of the ~~State of Delaware,~~ additional registration statement pursuant to Rule 430A(b) and ~~the Subsidiaries have~~ that in any case has not then been ~~duly incorporated and are validly existing corporations under the laws of their respective jurisdictions~~superseded or modified. Other than the Subsidiaries, the Company has no subsidiaries and does not control, directly or indirectly, any corporation, partnership, joint venture, association or other business organization, except as described in the The Initial Registration Statement and the ~~Prospectus. Each of~~ Additional Registration Statement are herein referred to collectively as the ~~Company~~ “Registration Statements” and ~~the Subsidiaries is duly qualified and in good standing~~ individually as a ~~foreign corporation in each jurisdiction in which~~ “Registration Statement”. “Registration Statement” as of any time means the character or location of its assets or properties (owned, leased or licensed) or the nature of its business makes such qualification necessary except for such jurisdictions where the failure to so qualify would not have a material adverse effect on the assets or properties, business, results of operations or condition (financial or otherwise) of the Company and the Subsidiaries, taken as a whole (a "Material Adverse Effect"). Except as disclosed in the Initial Registration Statement and ~~the Prospectus, neither the Company nor the Subsidiaries own, lease or license~~ any ~~material asset or property or conduct any material business outside the United States~~ Additional Registration Statement as of ~~America~~such time. ~~Each~~ For purposes of the ~~Company and the Subsidiaries have all requisite corporate power and authority~~foregoing definitions, ~~and all necessary authorizations, approvals, consents, orders, licenses, certificates and permits~~ information contained in a form of ~~and from all governmental or regulatory bodies or any other person or entity,~~ prospectus that is deemed retroactively to ~~own, lease and license their assets and properties and conduct their businesses as now being conducted and as described in the~~ be a part of a Registration Statement ~~and the Prospectus except for~~ pursuant to Rule 430A shall be considered to be included in such authorizations, approvals, consents, orders, licenses, certificates and permits the failure to so obtain would not have a Material Adverse Effect; no such authorization, approval, consent, order, license, certificate or permit contains a materially burdensome restriction other than as disclosed in the Registration Statement as of the time specified in Rule 430A. As of the time of execution and delivery of this Agreement, the Prospectus; and the Company has all such corporate power and authority, and such authorizations, approvals, consents, orders, licenses, certificates and permits to enter into, deliver and perform this Agreement and to issue and (vi) The Company and the Subsidiaries own or possess adequate and enforceable rights to use all patents, trademarks, trademark applications, trade names, service marks, copyrights, copyright applications, licenses, know-how and other similar rights and proprietary knowledge (collectively, "Intangibles") material to or necessary for the conduct of their business as described in the Initial Registration Statement has been declared effective under the Act and ~~the Prospectus~~is not proposed to be amended. ~~Except as disclosed in the~~ Any Additional Registration Statement has or will become effective upon filing with the Commission pursuant to Rule 462(b) and is not proposed to be amended. The Offered Securities all have been or will be duly registered under the ~~Prospectus~~Act pursuant to the Initial Registration Statement and, ~~neither~~ if applicable, the ~~Company nor any~~ Additional Registration Statement. For purposes of ~~the Subsidiaries have received any notice of~~this Agreement, ~~and to their knowledge are not aware of, any infringement of or conflict with asserted rights of others~~ “Effective Time” with respect to any Intangibles which, singly or in the aggregate, if the subject of an unfavorable decision, ruling or finding, could be reasonably expected to have a Material Adverse Effect, and neither the Company nor the Subsidiaries know of any reasonable basis therefor. Except as disclosed in the Registration Statement and the Prospectus, to the knowledge of the Company, no Intangibles of the Company or the Subsidiaries are in dispute or are in any conflict with the right of any other person or entity and the Company and each of the Subsidiaries (A) has or will have the right (subject to applicable agreements, which agreements provide for use to the extent necessary and desirable for the conduct of its business as currently conducted and as proposed to be conducted) to use, free and clear of all liens, charges, claims, encumbrances, pledges, security interests, defects, restrictions or equities of any kind whatsoever all licenses and rights to the Intangibles used in the conduct of their business as now conducted or proposed to be conducted without infringing upon or otherwise acting adversely to the right or claimed right of any other person and (B) is not or will not become, as the case may be, obligated or in any way liable for any payment by way of royalties, fees or otherwise and to any owner or licensee of, or other claimant to, any Intangibles with respect to the use thereof or in connection with the conduct of their business or otherwise, except in each case as disclosed in the Prospectus and except for any such payments, claims, uses, liens, charges, encumbrances, pledges, security interests, defects, restrictions and equities which would not have a Material Adverse Effect. (vii) The Company and the Subsidiaries have good and marketable title to each of the items of personal property which are reflected in the financial statements referred to in Section 4(a)(ii) or are referred to in the Registration Statement and the Prospectus as being owned by them and valid and enforceable leasehold interests in each of the items of real and personal property which are referred to in the Registration Statement and the Prospectus as being leased by them, in each case free and clear of all liens, encumbrances, claims, security interests and defects, other than those described in the Registration Statement and the Prospectus and those which do not and will not have a Material Adverse Effect. (viii) Except as described in the Registration Statement and the Prospectus, there is no litigation or governmental or other proceeding or investigation before any court or before or by any public body or board pending or, to the Company's knowledge, threatened (and the Company does not know of any reasonable basis therefor) against, or involving the assets, properties or business of, the Company or the Subsidiaries which, if adversely determined, could be reasonably expected to have a Material Adverse Effect. (ix) Subsequent to the respective dates as of which information is given in the Registration Statement and the Prospectus, except as described therein, (A) there has not been any material adverse change in the assets or properties, business, results of operations, prospects or condition (financial or otherwise) of the Company or the Subsidiaries taken as a whole, whether or not arising from transactions in the ordinary course of business; (B) neither the Company nor any of the Subsidiaries has sustained any material loss or interference with its assets, businesses or properties (whether owned, leased or licensed) from fire, explosion, earthquake, flood or other calamity, whether or not covered by insurance, or from any labor dispute or any court or legislative or other governmental action, order or decree; and (C) since the date of the latest balance sheet included in the Registration Statement and the Prospectus, except as reflected therein, neither the Company nor any of the Subsidiaries has (x) issued any securities (other than options or shares issued pursuant to exercise of employee stock options or warrants described in the Registration Statement and Prospectus) or incurred any liability or obligation, direct or contingent, for borrowed money, except such liabilities or obligations incurred in the ordinary course of business, (y) entered into any transaction not in the ordinary course of business or (z) declared or paid any dividend or made any distribution on any shares of its stock or redeemed, purchased or otherwise acquired or agreed to redeem, purchase or otherwise acquire any shares of its stock. (x) There is no material document or contract of a character required to be described in the Registration Statement or Prospectus or to be filed as an exhibit to the Registration Statement which is not described or filed as required. Each agreement listed in the Exhibits to the Registration Statement is in full force and effect or has terminated in accordance with its terms or by amendment and such amendment has been filed as an Exhibit to the Registration Statement or has otherwise been provided to the Representatives and, if not so terminated, is valid and enforceable in all material respects by and against the Company or the Subsidiaries, as the case may be, in accordance with its terms, assuming the due authorization, execution and delivery thereof by each of the other parties thereto, except as the enforceability thereof may be limited by (i) bankruptcy, insolvency, reorganization, moratorium or other similar laws affecting the enforcement of creditors' rights generally and (ii) indemnification provisions under Federal and state securities laws; and that the remedy of specific forms of equitable relief may be subject to equitable defenses and the discretion of the court before which any such action may be brought. Neither the Company, the (xi) Neither the Company nor the Subsidiaries is in violation of any term or provision of their respective Certificate of Incorporation and By-laws, in each case as amended to the date hereof, or other governing documents, or of any franchise, license, permit, judgment, decree, order, statute, rule or regulation, where the consequences of such violation would have a Material Adverse Effect. Except as described in the Registration Statement or Prospectus, neither the Company nor any of the Subsidiaries intends to amend its Certificate of Incorporation and By-laws. (xii) Neither the execution, delivery and performance of this Agreement by the Company or the Subsidiaries nor the consummation of any of the transactions contemplated hereby (including, without limitation, the issuance and sale by the Company of the Shares) will give rise to a right to terminate or accelerate the due date of any payment due under, or conflict with or result in the breach of any term or provision of, or constitute a default (or an event which with notice or lapse of time or both would constitute a default) under, or require any consent or waiver under, or result in the execution or imposition of any lien, charge or encumbrance upon any properties or assets of the Company or any of the Subsidiaries pursuant to the terms of, any indenture, mortgage, deed of trust or other agreement or instrument to which the Company or any of the Subsidiaries is a party or by which it or any of its properties or businesses are bound, or any franchise, license, permit, judgment, decree, order, statute, rule or regulation applicable to the Company or any of the Subsidiaries or violate any provision of the Certificate of Incorporation and By-laws of the Company or any of the Subsidiaries, except for such consents or waivers which have already been obtained and are in full force and effect or as would not have a Material Adverse Effect. No consent, approval, authorization, order, registration or qualification of or with any United States court or governmental agency or body is required for the issue and sale of the Shares or the consummation of the other transactions contemplated by this Agreement, which have not been obtained prior to the date hereof, except the registration under the Securities Act of the Shares, and such consents, approvals, authorizations, registrations or qualifications as may be required under state securities or Blue Sky laws -9- 10 in connection with the purchase and distribution of the Shares by the Underwriters. (xiii) The authorized, issued and outstanding capital stock of the Company and the capital stock reserved or committed for issuance is as set forth under the caption "Capitalization" in the Prospectus. All of the outstanding shares of Stock have been duly and validly issued and are fully paid and nonassessable, none of them was issued in violation of any preemptive or other similar right and, to the Company's knowledge, since 1991, none of them were issued in violation of any Federal or state securities laws. The Shares, when issued and sold pursuant to this Agreement, will be duly and validly issued, fully paid and nonassessable, none of them will be issued in violation of any preemptive or other similar right, any contractual right, including, without limitation, rights of first refusal, and, since 1991, none of them were issued in violation of any (subject to compliance with Section 1(c) hereof), Federal or state securities laws. Except as disclosed in the Registration Statement and the Prospectus, there is no outstanding option, warrant or other right calling for the issuance of, and there is no commitment, plan or arrangement to issue, any shares of Common Stock of the Company or any security convertible into, or exercisable or exchangeable for, such shares of Stock. The shares of Stock conform in all material respects to all statements in relation thereto contained in the Registration Statement and the Prospectus. The Company has a sufficient number of authorized but unissued shares of Stock to enable the Company to issue, without further stockholder action, or approve all the Shares to be sold by the Company. (xiv) As of the date hereof, and as of each Closing Date, all of the outstanding shares of capital stock of the Subsidiaries are duly and validly authorized and issued, are fully paid and nonassessable and are and will be owned by the Company and there is and will be no outstanding option, warrant or other right calling for the issuance of, and no commitment, plan or arrangement to issue any share of capital stock of the Subsidiaries or any security convertible or exchangeable or exercisable for capital stock of the Subsidiaries, except as otherwise described in the Registration Statement and Prospectus. (xv) Except as set forth in the Registration Statement and Prospectus, no holder of any security of the Company has the right to have any security owned by such holder included in the Registration Statement or to demand registration of any security owned by such holder during the period ending 90 days after the date of this Agreement. Each Selling Stockholder and each director and executive officer of the Company has delivered to

Appears in 1 contract

Sources: Underwriting Agreement (Spirit AeroSystems Holdings, Inc.)

Appears in 1 contract

Sources: Underwriting Agreement (Hydril Co)

Appears in 1 contract

Sources: Underwriting Agreement (Sunpower Corp)

Representations and Warranties of the Company and the Selling Stockholders. A. The Company represents and warrants to, and agrees with, the several Managers that: (a) ~~The Company hereby represents~~ A registration statement (No. 333- ) relating to the Offered Securities, including a form of prospectus relating to the U.S. Securities, has been filed with the Securities and ~~warrants to each Underwriter as follows:~~ Exchange Commission ("Commission") and either (i) On has been declared effective under the ~~Effective Date~~Securities Act of 1933 ("Act") and is not proposed to be amended or (ii) is proposed to be amended by amendment or post-effective amendment. If such registration statement (the "initial registration statement") has been declared effective, either (A) an additional registration statement (the "additional registration statement") relating to the Offered Securities may have been filed with the Commission pursuant to Rule 462(b) ("Rule 462(b)") under the Act and, if so filed, has become effective upon filing pursuant to such Rule and the Offered Securities all have been duly registered under the Act pursuant to the initial registration statement and, if applicable, the ~~Registration Statement complied~~additional registration statement or (B) such an additional registration statement is proposed to be filed with the Commission pursuant to Rule 462(b) and will become effective upon filing pursuant to such Rule and upon such filing the Offered Securities will all have been duly registered under the Act pursuant to the initial registration statement and such additional registration statement. If the Company does not propose to amend the initial registration statement or, if an additional registration statement has been filed and the Company does not propose to amend it, and ~~on the date of the Prospectus, on the date~~ if any post-effective amendment to ~~the Registration Statement shall become effective, on the date any supplement or amendment to the Prospectus is~~ either such registration statement has been filed with the Commission prior to the execution and ~~on each Closing Date~~delivery of this Agreement, the ~~Registration Statement and~~ most recent amendment (if any) to each such registration statement has been declared effective by the ~~Prospectus~~ Commission or has become effective upon filing pursuant to Rule 462(c) (~~and any amendment thereof or supplement thereto~~"Rule 462(c)") ~~will comply~~under the Act or, in ~~all material respects, with~~ the ~~applicable provisions~~ case of the ~~Securities Act~~ additional registration statement, Rule 462(b). For purposes of this Agreement, "Effective Time" with respect to the initial registration statement or, if filed prior to the execution and delivery of this Agreement, the ~~Rules;~~ additional registration statement means (i) if the Company has advised CSFBL that it does not propose to amend such registration statement, the date and time as of which such registration statement, or the most recent post-effective amendment thereto (if any) filed prior to the execution and delivery of this Agreement, was declared effective by the Commission or has become effective upon filing pursuant to Rule 462(c), or (ii) ~~The documents~~ if the Company has advised CSFBL that ~~are incorporated~~ it proposes to file an amendment or post-effective amendment to such registration statement, the date and time as of which such registration statement, as amended by ~~reference in the preliminary prospectus and the Prospectus~~ such amendment or ~~from which information is so incorporated by reference, when they became~~ post-effective ~~or were filed with the Commission~~amendment, as the case may be, ~~complied in all material respects~~ is declared effective by the Commission. If an additional registration statement has not been filed prior to the execution and delivery of this Agreement but the Company has advised CSFBL that it proposes to file one, "Effective Time" with respect to such additional registration statement means the ~~requirements~~ date and time as of which such registration statement is filed and becomes effective pursuant to Rule 462(b). "Effective Date" with respect to the initial registration statement or the additional registration statement (if any) means the date of the ~~Securities Act or the Securities Exchange Act of 1934~~Effective Time thereof. The initial registration statement, as amended ~~(the "Exchange Act")~~at its Effective Time, ~~as applicable, and the rules and regulations of the Commission promulgated under the Securities Act and the Exchange Act, as applicable, except as amended and superseded by statements made~~ including all information contained in the ~~Registration Statement;~~ additional registration statement (if any) and any documents so filed and incorporated by reference subsequent to the Effective Date shall, when they are filed with the Commission, conform in all material respects with the requirements of the Securities Act or the Exchange Act, as applicable, and the rules and regulations of the Commission promulgated under the Securities Act and the Exchange Act, as applicable. (iii) The consolidated financial statements of the Company (including all notes and schedules thereto) included in the Registration Statement and Prospectus present fairly the financial position, the results of operations and cash flows and the stockholders' equity and the other information purported deemed to be shown therein of the Company and its subsidiaries, listed on Schedule III hereto (the "Subsidiaries"), at the respective dates and for the respective (iv) KPMG Peat Marwick LLP, whose report is filed with the Commission as a part of the initial registration statement as of the Effective Time of the additional registration statement pursuant to the General Instructions of the Form on which it is filed and including all information (if any) deemed to be a part of the initial registration statement as of its Effective Time pursuant to Rule 430A(b) ("Rule 430A(b)") under the Act, is hereinafter referred to as the "Initial Registration Statement". The additional registration statement, if any, as amended at its Effective Time, including the contents of the initial registration statement incorporated by reference therein and including all information (if any) deemed to be a part of the additional registration statement as of its Effective Time pursuant to Rule 430A(b), is ~~and, during~~ hereinafter referred to as the ~~periods covered by its reports, was independent public accountants as required by the Securities Act and the Rules. (v)~~ "Additional Registration Statement". The Company has been duly incorporated and is a validly existing corporation under the laws of the State of Delaware, and the Subsidiaries have been duly incorporated and are validly existing corporations under the laws of their respective jurisdictions. Other than the Subsidiaries, the Company has no subsidiaries and does not control, directly or indirectly, any corporation, partnership, joint venture, association or other business organization, except as described in the Initial Registration Statement and the Prospectus. Each of the Company and the Subsidiaries is duly qualified and in good standing as a foreign corporation in each jurisdiction in which the character or location of its assets or properties (owned, leased or licensed) or the nature of its business makes such qualification necessary except for such jurisdictions where the failure to so qualify would not have a material adverse effect on the assets or properties, business, results of operations or condition (financial or otherwise) of the Company and the Subsidiaries, taken as a whole (a "Material Adverse Effect"). Except as disclosed in the Additional Registration Statement and the Prospectus, neither the Company nor the Subsidiaries own, lease or license any material asset or property or conduct any material business outside the United States of America. Each of the Company and the Subsidiaries have all requisite corporate power and authority, and all necessary authorizations, approvals, consents, orders, licenses, certificates and permits of and from all governmental or regulatory bodies or any other person or entity, to own, lease and license their assets and properties and conduct their businesses as now being conducted and as described in the Registration Statement and the Prospectus except for such authorizations, approvals, consents, orders, licenses, certificates and permits the failure to so obtain would not have a Material Adverse Effect; no such authorization, approval, consent, order, license, certificate or permit contains a materially burdensome restriction other than as disclosed in the Registration Statement and the Prospectus; and the Company has all such corporate power and authority, and such authorizations, approvals, consents, orders, licenses, certificates and permits to enter into, deliver and perform this Agreement and to issue and (vi) The Company and the Subsidiaries own or possess adequate and enforceable rights to use all patents, trademarks, trademark applications, trade names, service marks, copyrights, copyright applications, licenses, know-how and other similar rights and proprietary knowledge (collectively, "Intangibles") material to or necessary for the conduct of their business as described in the Registration Statement and the Prospectus. Except as disclosed in the Registration Statement and the Prospectus, neither the Company nor any of the Subsidiaries have received any notice of, and to their knowledge are not aware of, any infringement of or conflict with asserted rights of others with respect to any Intangibles which, singly or in the aggregate, if the subject of an unfavorable decision, ruling or finding, could be reasonably expected to have a Material Adverse Effect, and neither the Company nor the Subsidiaries know of any reasonable basis therefor. Except as disclosed in the Registration Statement and the Prospectus, to the knowledge of the Company, no Intangibles of the Company or the Subsidiaries are in dispute or are in any conflict with the right of any other person or entity and the Company and each of the Subsidiaries (A) has or will have the right (subject to applicable agreements, which agreements provide for use to the extent necessary and desirable for the conduct of its business as currently conducted and as proposed to be conducted) to use, free and clear of all liens, charges, claims, encumbrances, pledges, security interests, defects, restrictions or equities of any kind whatsoever all licenses and rights to the Intangibles used in the conduct of their business as now conducted or proposed to be conducted without infringing upon or otherwise acting adversely to the right or claimed right of any other person and (B) is not or will not become, as the case may be, obligated or in any way liable for any payment by way of royalties, fees or otherwise and to any owner or licensee of, or other claimant hereinafter referred to, any Intangibles with respect to the use thereof or in connection with the conduct of their business or otherwise, except in each case as disclosed in the Prospectus and except for any such payments, claims, uses, liens, charges, encumbrances, pledges, security interests, defects, restrictions and equities which would not have a Material Adverse Effect. (vii) The Company and the Subsidiaries have good and marketable title to each of the items of personal property which are reflected in the financial statements referred to in Section 4(a)(ii) or are referred to in the Registration Statement and the Prospectus as being owned by them and valid and enforceable leasehold interests in each of the items of real and personal property which are referred to in the Registration Statement and the Prospectus as being leased by them, in each case free and clear of all liens, encumbrances, claims, security interests and defects, other than those described in the Registration Statement and the Prospectus and those which do not and will not have a Material Adverse Effect. (viii) Except as described in the Registration Statement and the Prospectus, there is no litigation or governmental or other proceeding or investigation before any court or before or by any public body or board pending or, to the Company's knowledge, threatened (and the Company does not know of any reasonable basis therefor) against, or involving the assets, properties or business of, the Company or the Subsidiaries which, if adversely determined, could be reasonably expected to have a Material Adverse Effect. (ix) Subsequent to the respective dates as of which information is given in the Registration Statement and the Prospectus, except as described therein, (A) there has not been any material adverse change in the assets or properties, business, results of operations, prospects or condition (financial or otherwise) of the Company or the Subsidiaries taken as a whole, whether or not arising from transactions in the ordinary course of business; (B) neither the Company nor any of the Subsidiaries has sustained any material loss or interference with its assets, businesses or properties (whether owned, leased or licensed) from fire, explosion, earthquake, flood or other calamity, whether or not covered by insurance, or from any labor dispute or any court or legislative or other governmental action, order or decree; and (C) since the date of the latest balance sheet included in the Registration Statement and the Prospectus, except as reflected therein, neither the Company nor any of the Subsidiaries has (x) issued any securities (other than options or shares issued pursuant to exercise of employee stock options or warrants described in the Registration Statement and Prospectus) or incurred any liability or obligation, direct or contingent, for borrowed money, except such liabilities or obligations incurred in the ordinary course of business, (y) entered into any transaction not in the ordinary course of business or (z) declared or paid any dividend or made any distribution on any shares of its stock or redeemed, purchased or otherwise acquired or agreed to redeem, purchase or otherwise acquire any shares of its stock. (x) There is no material document or contract of a character required to be described in the Registration Statement or Prospectus or to be filed as an exhibit to the Registration Statement which is not described or filed as required. Each agreement listed in the Exhibits to the Registration Statement is in full force and effect or has terminated in accordance with its terms or by amendment and such amendment has been filed as an Exhibit to the Registration Statement or has otherwise been provided to the Representatives and, if not so terminated, is valid and enforceable in all material respects by and against the Company or the Subsidiaries, as the case may be, in accordance with its terms, assuming the due authorization, execution and delivery thereof by each of the other parties thereto, except as the enforceability thereof may be limited by (i) bankruptcy, insolvency, reorganization, moratorium or other similar laws affecting the enforcement of creditors' rights generally and (ii) indemnification provisions under Federal and state securities laws; and that the remedy of specific forms of equitable relief may be subject to equitable defenses and the discretion of the court before which any such action may be brought. Neither the Company, the (xi) Neither the Company nor the Subsidiaries is in violation of any term or provision of their respective Certificate of Incorporation and By-laws, in each case as amended to the date hereof, or other governing documents, or of any franchise, license, permit, judgment, decree, order, statute, rule or regulation, where the consequences of such violation would have a Material Adverse Effect. Except as described in the Registration Statement or Prospectus, neither the Company nor any of the Subsidiaries intends to amend its Certificate of Incorporation and By-laws. (xii) Neither the execution, delivery and performance of this Agreement by the Company or the Subsidiaries nor the consummation of any of the transactions contemplated hereby (including, without limitation, the issuance and sale by the Company of the Shares) will give rise to a right to terminate or accelerate the due date of any payment due under, or conflict with or result in the breach of any term or provision of, or constitute a default (or an event which with notice or lapse of time or both would constitute a default) under, or require any consent or waiver under, or result in the execution or imposition of any lien, charge or encumbrance upon any properties or assets of the Company or any of the Subsidiaries pursuant to the terms of, any indenture, mortgage, deed of trust or other agreement or instrument to which the Company or any of the Subsidiaries is a party or by which it or any of its properties or businesses are bound, or any franchise, license, permit, judgment, decree, order, statute, rule or regulation applicable to the Company or any of the Subsidiaries or violate any provision of the Certificate of Incorporation and By-laws of the Company or any of the Subsidiaries, except for such consents or waivers which have already been obtained and are in full force and effect or as would not have a Material Adverse Effect. No consent, approval, authorization, order, registration or qualification of or with any United States court or governmental agency or body is required for the issue and sale of the Shares or the consummation of the other transactions contemplated by this Agreement, which have not been obtained prior to the date hereof, except the registration under the Securities Act of the Shares, and such consents, approvals, authorizations, registrations or qualifications as may be required under state securities or Blue Sky laws -9- 10 in connection with the purchase and distribution of the Shares by the Underwriters. (xiii) The authorized, issued and outstanding capital stock of the Company and the capital stock reserved or committed for issuance is as set forth under the caption "Capitalization" in the Prospectus. All of the outstanding shares of Stock have been duly and validly issued and are fully paid and nonassessable, none of them was issued in violation of any preemptive or other similar right and, to the Company's knowledge, since 1991, none of them were issued in violation of any Federal or state securities laws. The Shares, when issued and sold pursuant to this Agreement, will be duly and validly issued, fully paid and nonassessable, none of them will be issued in violation of any preemptive or other similar right, any contractual right, including, without limitation, rights of first refusal, and, since 1991, none of them were issued in violation of any (subject to compliance with Section 1(c) hereof), Federal or state securities laws. Except as disclosed in the Registration Statement and the Prospectus, there is no outstanding option, warrant or other right calling for the issuance of, and there is no commitment, plan or arrangement to issue, any shares of Common Stock of the Company or any security convertible into, or exercisable or exchangeable for, such shares of Stock. The shares of Stock conform in all material respects to all statements in relation thereto contained in the Registration Statement and the Prospectus. The Company has a sufficient number of authorized but unissued shares of Stock to enable the Company to issue, without further stockholder action, or approve all the Shares to be sold by the Company. (xiv) As of the date hereof, and as of each Closing Date, all of the outstanding shares of capital stock of the Subsidiaries are duly and validly authorized and issued, are fully paid and nonassessable and are and will be owned by the Company and there is and will be no outstanding option, warrant or other right calling for the issuance of, and no commitment, plan or arrangement to issue any share of capital stock of the Subsidiaries or any security convertible or exchangeable or exercisable for capital stock of the Subsidiaries, except as otherwise described in the Registration Statement and Prospectus. (xv) Except as set forth in the Registration Statement and Prospectus, no holder of any security of the Company has the right to have any security owned by such holder included in the Registration Statement or to demand registration of any security owned by such holder during the period ending 90 days after the date of this Agreement. Each Selling Stockholder and each director and executive officer of the Company has delivered to

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Sources: Subscription Agreement (Sauer Inc)

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Sources: Underwriting Agreement (Selectica Inc)

Representations and Warranties of the Company and the Selling Stockholders. (a) The Company ~~hereby~~ represents and warrants ~~to each Underwriter as follows~~to, and agrees with, the several Underwriters that: (i) On A registration statement (No. 333-124730) relating to the ~~Effective Date~~Offered Securities, including a form of prospectus, has been filed with the Securities and Exchange Commission (the “Commission”) and either (A) has been declared effective under the Securities Act of 1933, as amended (“the Act”) and is not proposed to be amended or (B) is proposed to be amended by amendment or post-effective amendment. If such registration statement (the “initial registration statement”) has been declared effective, either (A) an additional registration statement (the “additional registration statement”) relating to the Offered Securities may have been filed with the Commission pursuant to Rule 462(b) (“Rule 462(b)”) under the Act and, if so filed, has become effective upon filing pursuant to such Rule and the Offered Securities all have been duly registered under the Act pursuant to the initial registration statement and, if applicable, the ~~Registration Statement complied~~additional registration statement or (B) such an additional registration statement is proposed to be filed with the Commission pursuant to Rule 462(b) and will become effective upon filing pursuant to such Rule and upon such filing the Offered Securities will all have been duly registered under the Act pursuant to the initial registration statement and such additional registration statement. If the Company does not propose to amend the initial registration statement or if an additional registration statement has been filed and the Company does not propose to amend it, and ~~on the date of the Prospectus, on the date~~ if any post-effective amendment to ~~the Registration Statement shall become effective, on the date any supplement or amendment to the Prospectus is~~ either such registration statement has been filed with the Commission prior to the execution and ~~on each Closing Date~~delivery of this Agreement, the ~~Registration Statement and~~ most recent amendment (if any) to each such registration statement has been declared effective by the ~~Prospectus~~ Commission or has become effective upon filing pursuant to Rule 462(c) (~~and any amendment thereof or supplement thereto~~“Rule 462(c)”) ~~will comply~~under the Act or, in ~~all material respects, with~~ the ~~applicable provisions~~ case of the ~~Securities Act~~ additional registration statement, Rule 462(b). For purposes of this Agreement, the “Effective Time” with respect to the initial registration statement or, if filed prior to the execution and delivery of this Agreement, the ~~Rules;~~ additional registration statement means (iiA) ~~The documents~~ if the Company has advised the Representatives that ~~are incorporated~~ it does not propose to amend such registration statement, the date and time as of which such registration statement, or the most recent post-effective amendment thereto (if any) filed prior to the execution and delivery of this Agreement, was declared effective by ~~reference in~~ the ~~preliminary prospectus~~ Commission or has become effective upon filing pursuant to Rule 462(b) or Rule 462(c), or (B) if the Company has advised the Representatives that it proposes to file an amendment or post-effective amendment to such registration statement, the date and ~~the Prospectus~~ time as of which such registration statement, as amended by such amendment or ~~from which information is so incorporated by reference, when they became~~ post-effective ~~or were filed with the Commission~~amendment, as the case may be, ~~complied~~ is declared effective by the Commission. If an additional registration statement has not been filed prior to the execution and delivery of this Agreement but the Company has advised the Representatives that it proposes to file one, “Effective Time” with respect to such additional registration statement means the date and time as of which such registration statement is filed and becomes effective pursuant to Rule 462(b). The “Effective Date” with respect to the initial registration statement or the additional registration statement (if any) means the date of the Effective Time thereof. The initial registration statement, as amended at its Effective Time, including all information contained in the additional registration statement (if any) and deemed to be a part of the initial registration statement as of the Effective Time of the additional registration statement pursuant to the General Instructions of the Form on which it is filed and including all information (if any) deemed to be a part of the initial registration statement as of its Effective Time pursuant to Rule 430A(b) (“Rule 430A(b)”) under the Act, is hereinafter referred to as the “Initial Registration Statement”. The additional registration statement, as amended at its Effective Time, including the contents of the initial registration statement incorporated by reference therein and including all information (if any) deemed to be a part of the additional registration statement as of its Effective Time pursuant to Rule 430A(b), is hereinafter referred to as the “Additional Registration Statement”. The Initial Registration Statement and the Additional Registration Statement are hereinafter referred to collectively as the “Registration Statements” and individually as a “Registration Statement”. The form of prospectus relating to the Offered Securities, as first filed with the Commission pursuant to and in accordance with Rule 424(b) (“Rule 424(b)”) under the Act or (if no such filing is required) as included in a Registration Statement, is hereinafter referred to as the “Prospectus”. No document has been or will be prepared or distributed in reliance on Rule 434 under the Act. (ii) If the Effective Time of the Initial Registration Statement is prior to the execution and delivery of this Agreement: (A) on the Effective Date of the Initial Registration Statement, the Initial Registration Statement conformed in all material respects ~~with~~ to the requirements of the ~~Securities~~ Act ~~or the Securities Exchange Act of 1934, as amended (the "Exchange Act"), as applicable,~~ and the rules and regulations of the Commission ~~promulgated under~~ (the ~~Securities~~ “Rules and Regulations”) and did not include any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein not misleading, (B) on the Effective Date of the Additional Registration Statement (if any), each Registration Statement conformed or will conform, in all material respects to the requirements of the Act and the ~~Exchange Act~~Rules and Regulations and did not include, ~~as applicable~~or will not include, ~~except as amended~~ any untrue statement of a material fact and ~~superseded by~~ did not omit, or will not omit, to state any material fact required to be stated therein or necessary to make the statements ~~made~~ therein not misleading, and (C) on the date of this Agreement, the Initial Registration Statement and, if the Effective Time of the Additional Registration Statement is prior to the execution and delivery of this Agreement, the Additional Registration Statement each conforms, and at the time of filing of the Prospectus pursuant to Rule 424(b) or (if no such filing is required) at the Effective Date of the Additional Registration Statement in which the Prospectus is included, each Registration Statement and the Prospectus will conform, in all material respects to the requirements of the Act and the Rules and Regulations, and neither of such documents includes, or will include, any untrue statement of a material fact or omits, or will omit, to state any material fact required to be stated therein or necessary to make the statements therein and, in the case of the Prospectus, in light of the circumstances under which they were made, not misleading. If the Effective Time of the Initial Registration ~~Statement; and any documents so filed and incorporated by reference~~ Statement is subsequent to the execution and delivery of this Agreement: on the Effective Date ~~shall~~of the Initial Registration Statement, ~~when they are filed with~~ the ~~Commission,~~ Initial Registration Statement and the Prospectus will conform in all material respects ~~with~~ to the requirements of the ~~Securities Act or the Exchange Act, as applicable, and the rules and regulations of the Commission promulgated under the Securities~~ Act and the ~~Exchange Act~~Rules and Regulations, neither of such documents will include 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 and, in the case of the Prospectus, in light of the circumstances under which they were made, not misleading, and no Additional Registration Statement has been or will be filed. The two preceding sentences do not apply to statements in or omissions from a Registration Statement or the Prospectus based upon written information furnished to the Company by any Underwriter through or on behalf of the Representatives specifically for use therein, it being understood and agreed that the only such information is that described as ~~applicable~~such in Section 8(d) hereof. (iii) The consolidated financial statements of the Company (including all notes and schedules thereto) included in the Registration Statement and Prospectus present fairly the financial position, the results of operations and cash flows and the stockholders' equity and the other information purported to be shown therein of the Company and its subsidiaries, listed on Schedule III hereto (the "Subsidiaries"), at the respective dates and for the respective (iv) KPMG Peat Marwick LLP, whose report is filed with the Commission as a part of the Registration Statement, is and, during the periods covered by its reports, was independent public accountants as required by the Securities Act and the Rules. (v) The Company has been duly incorporated and is ~~a validly~~ an existing corporation in good standing under the laws of the State of Delaware, with power and ~~the Subsidiaries have been duly incorporated~~ authority (corporate and ~~are validly existing corporations under the laws of their respective jurisdictions. Other than the Subsidiaries, the Company has no subsidiaries~~ other) to own its properties and ~~does not control, directly or indirectly, any corporation, partnership, joint venture, association or other~~ conduct its business ~~organization, except~~ as described in the ~~Registration Statement~~ Prospectus; and the ~~Prospectus. Each of the~~ Company ~~and the Subsidiaries~~ is duly qualified ~~and in good standing~~ to do business as a foreign corporation in ~~each jurisdiction~~ good standing in all other jurisdictions in which ~~the character~~ its ownership or ~~location~~ lease of ~~its assets or properties (owned, leased or licensed)~~ property or the ~~nature~~ conduct of its business ~~makes~~ requires such ~~qualification necessary~~ qualification, except ~~for such jurisdictions~~ where the ~~failure to so qualify~~ lack thereof would not individually or in the aggregate have a material adverse effect on the ~~assets or properties, business, results of operations or~~ condition (financial or otherwise) ), business, properties, assets or results of operations of the Company and ~~the Subsidiaries,~~ its subsidiaries taken as a whole (a "“Material Adverse Effect"”). Except as disclosed in the Registration Statement and the Prospectus, neither the Company nor the Subsidiaries own, lease or license any material asset or property or conduct any material business outside the United States of America. . (iv) Each subsidiary of the Company has been duly incorporated and is an existing corporation in good standing under the ~~Subsidiaries have all requisite corporate~~ laws of the jurisdiction of its incorporation, with power and ~~authority,~~ authority (corporate and ~~all necessary authorizations, approvals, consents, orders, licenses, certificates and permits of and from all governmental or regulatory bodies or any other person or entity,~~ other) to ~~own, lease and license their assets and~~ own its properties and conduct ~~their businesses as now being conducted and~~ its business as described in the ~~Registration Statement~~ Prospectus; and each subsidiary of the ~~Prospectus~~ Company is duly qualified to do business as a foreign corporation in good standing in all other jurisdictions in which its ownership or lease of property or the conduct of its business requires such qualification, except ~~for such authorizations, approvals, consents, orders, licenses, certificates and permits~~ where the failure to be so ~~obtain~~ qualified or in good standing would not individually or in the aggregate have a Material Adverse Effect; ~~no such authorization~~all of the issued and outstanding capital stock of each subsidiary of the Company has been duly authorized and validly issued and is fully paid and nonassessable; and the capital stock of each subsidiary owned by the Company, ~~approval~~directly or through subsidiaries, ~~consent~~is owned free from liens, ~~order~~encumbrances and defects. (v) The Offered Securities and all other outstanding shares of capital stock of the Company have been duly authorized and validly issued, ~~license~~are fully paid and nonassessable and conform, ~~certificate or permit contains a materially burdensome restriction other than as disclosed~~ in all material respects, to the ~~Registration Statement and~~ description thereof contained in the Prospectus; and the stockholders of the Company ~~has all such corporate power~~ have no preemptive rights with respect to the Securities. The transfer restrictions applicable to the Securities as set forth in the Company’s amended and ~~authority~~restated certificate of incorporation are valid, binding and ~~such authorizations, approvals, consents, orders, licenses, certificates and permits to enter into, deliver and perform this Agreement and to issue and~~enforceable. (vi) The Company and the Subsidiaries own or possess adequate and enforceable rights to use all patents, trademarks, trademark applications, trade names, service marks, copyrights, copyright applications, licenses, know-how and other similar rights and proprietary knowledge (collectively, "Intangibles") material to or necessary for the conduct of their business as described in the Registration Statement and the Prospectus. Except as disclosed in the Prospectus, there are no contracts, agreements or understandings between the Company and any person that would give rise to a valid claim against the Company or any Underwriter for a brokerage commission, finder’s fee or other like payment in connection with this offering. (vii) Except with respect to the filing of a registration statement on Form S-8 covering Securities issuable in accordance with any employee benefit or similar plan of the Company, there are no contracts, agreements or understandings between the Company and any person granting such person the right to require the Company to file a registration statement under the Act with respect to any securities of the Company owned or to be owned by such person or to require the Company to include such securities in the securities registered pursuant to a Registration Statement or in any securities being registered pursuant to any other registration statement filed by the Company under the Act. (viii) The Securities have been approved for listing, subject to notice of issuance, on The New York Stock Exchange. (ix) No consent, approval, authorization, or order of, or filing with, any governmental agency or body including but not limited to the Commodity Futures Trading Commission (“CFTC”) or any court is required to be obtained or made by the Company for the consummation of the transactions contemplated by this Agreement in connection with the sale of the Offered Securities, except (i) such as have been obtained and made under the Act, (ii) any Additional Registration Statements, (iii) the final prospectus to be filed pursuant to Rule 424(b), (iv) such as have been obtained from the National Association of Securities Dealers, Inc. (the “NASD”) and (v) such as may be required under state and foreign securities laws. (x) The execution, delivery and performance of this Agreement, and the consummation of the transactions herein contemplated will not result in a breach or violation of any of the terms and provisions of, or constitute a default under, (A) any statute, any rule, regulation or order of any governmental agency or body or any court, domestic or foreign, having jurisdiction over the Company or any subsidiary of the Company or any of their properties, or (B) any agreement or instrument to which the Company or any such subsidiary is a party or by which the Company or any such subsidiary is bound or to which any of the properties of the Company or any such subsidiary is subject, or (C) the charter or by-laws of the Company or any such subsidiary, except in the case of (A) and (B) where such breach, violation or default would not (1) individually or in the aggregate have a Material Adverse Effect and (2) affect the execution, delivery and performance of this Agreement and the consummation of the transactions herein contemplated. (xi) This Agreement has been duly authorized, executed and delivered by the Company. (xii) Except as disclosed in the Prospectus, ~~neither~~ the Company ~~nor~~ and its subsidiaries have good and marketable title to all material real properties and all other material properties and assets owned by them, in each case free from liens, encumbrances and defects that would materially affect the value thereof or materially interfere with the use made or to be made thereof by them; and except as disclosed in the Prospectus, the Company and its subsidiaries hold any of material leased real or personal property under valid and enforceable leases with no exceptions that would materially interfere with the ~~Subsidiaries~~ use made or to be made thereof by them. (xiii) The Company and its subsidiaries possess adequate certificates, authorities or permits issued by appropriate governmental agencies or bodies necessary to conduct the business now operated by them, except where the lack thereof would not individually or in the aggregate have a Material Adverse Effect, and have not received any notice ofof proceedings relating to the revocation or modification of any such certificate, authority or permit that, if determined adversely to the Company or any of its subsidiaries, would individually or in the aggregate have a Material Adverse Effect. (xiv) No labor dispute with the employees of the Company or any subsidiary exists or, to the knowledge of the Company, is imminent that is reasonably expected to have a Material Adverse Effect. (xv) The Company and its subsidiaries own, possess or can acquire on reasonable terms, adequate trademarks, trade names and other rights to inventions, know-how, patents, copyrights, confidential information and other intellectual property (collectively, “intellectual property rights”) necessary to conduct the business now operated by them, or presently employed by them, and ~~to their knowledge are~~ have not ~~aware of,~~ received any notice of infringement of or conflict with asserted rights of others with respect to any ~~Intangibles which~~intellectual property rights that, ~~singly~~ if determined adversely to the Company or any of its subsidiaries, would individually or in the aggregate, if the subject of an unfavorable decision, ruling or finding, could be reasonably expected to have a Material Adverse Effect, and neither the Company nor the Subsidiaries know of any reasonable basis therefor. Except as disclosed in the Registration Statement and the Prospectus, to the knowledge of the Company, no Intangibles of the Company or the Subsidiaries are in dispute or are in any conflict with the right of any other person or entity and the Company and each of the Subsidiaries (A) has or will have the right (subject to applicable agreements, which agreements provide for use to the extent necessary and desirable for the conduct of its business as currently conducted and as proposed to be conducted) to use, free and clear of all liens, charges, claims, encumbrances, pledges, security interests, defects, restrictions or equities of any kind whatsoever all licenses and rights to the Intangibles used in the conduct of their business as now conducted or proposed to be conducted without infringing upon or otherwise acting adversely to the right or claimed right of any other person and (B) is not or will not become, as the case may be, obligated or in any way liable for any payment by way of royalties, fees or otherwise and to any owner or licensee of, or other claimant to, any Intangibles with respect to the use thereof or in connection with the conduct of their business or otherwise, except in each case as disclosed in the Prospectus and except for any such payments, claims, uses, liens, charges, encumbrances, pledges, security interests, defects, restrictions and equities which would not aggregate have a Material Adverse Effect. (vii) The Company and the Subsidiaries have good and marketable title to each of the items of personal property which are reflected in the financial statements referred to in Section 4(a)(ii) or are referred to in the Registration Statement and the Prospectus as being owned by them and valid and enforceable leasehold interests in each of the items of real and personal property which are referred to in the Registration Statement and the Prospectus as being leased by them, in each case free and clear of all liens, encumbrances, claims, security interests and defects, other than those described in the Registration Statement and the Prospectus and those which do not and will not have a Material Adverse Effect. (viiixvi) Except as ~~described~~ disclosed in the Registration Statement and the Prospectus, there is no litigation or governmental or other proceeding or investigation before any court or before or by any public body or board pending or, to the Company's knowledge, threatened (and the Company does not know of any reasonable basis therefor) against, or involving the assets, properties or business of, the Company or the Subsidiaries which, if adversely determined, could be reasonably expected to have a Material Adverse Effect. (ix) Subsequent to the respective dates as of which information is given in the Registration Statement and the Prospectus, except as described therein, (A) there has not been any material adverse change in the assets or properties, business, results of operations, prospects or condition (financial or otherwise) of the Company or the Subsidiaries taken as a whole, whether or not arising from transactions in the ordinary course of business; (B) neither the Company nor any of the Subsidiaries has sustained any material loss or interference with its assets, businesses or properties (whether owned, leased or licensed) from fire, explosion, earthquake, flood or other calamity, whether or not covered by insurance, or from any labor dispute or any court or legislative or other governmental action, order or decree; and (C) since the date of the latest balance sheet included in the Registration Statement and the Prospectus, except as reflected therein, neither the Company nor any of the Subsidiaries has (x) issued any securities (other than options or shares issued pursuant to exercise of employee stock options or warrants described in the Registration Statement and Prospectus) or incurred any liability or obligation, direct or contingent, for borrowed money, except such liabilities or obligations incurred in the ordinary course of business, (y) entered into any transaction not in the ordinary course of business or (z) declared or paid any dividend or made any distribution on any shares of its stock or redeemed, purchased or otherwise acquired or agreed to redeem, purchase or otherwise acquire any shares of its stock. (x) There is no material document or contract of a character required to be described in the Registration Statement or Prospectus or to be filed as an exhibit to the Registration Statement which is not described or filed as required. Each agreement listed in the Exhibits to the Registration Statement is in full force and effect or has terminated in accordance with its terms or by amendment and such amendment has been filed as an Exhibit to the Registration Statement or has otherwise been provided to the Representatives and, if not so terminated, is valid and enforceable in all material respects by and against the Company or the Subsidiaries, as the case may be, in accordance with its terms, assuming the due authorization, execution and delivery thereof by each of the other parties thereto, except as the enforceability thereof may be limited by (i) bankruptcy, insolvency, reorganization, moratorium or other similar laws affecting the enforcement of creditors' rights generally and (ii) indemnification provisions under Federal and state securities laws; and that the remedy of specific forms of equitable relief may be subject to equitable defenses and the discretion of the court before which any such action may be brought. Neither the Company, the (xi) Neither the Company nor the Subsidiaries is in violation of any term or provision of their respective Certificate of Incorporation and By-laws, in each case as amended to the date hereof, or other governing documents, or of any franchise, license, permit, judgment, decree, order, statute, rule or regulation, where the consequences of such violation would have a Material Adverse Effect. Except as described in the Registration Statement or Prospectus, neither the Company nor any of ~~the Subsidiaries intends to amend~~ its ~~Certificate of Incorporation and By-laws. (xii) Neither the execution, delivery and performance of this Agreement by the Company or the Subsidiaries nor the consummation~~ subsidiaries is in violation of any statute, any rule, regulation, decision or order of any governmental agency or body or any court, domestic or foreign, relating to the use, disposal or release of hazardous or toxic substances or relating to the protection or restoration of the ~~transactions contemplated hereby~~ environment or human exposure to hazardous or toxic substances (~~including~~collectively, ~~without limitation~~“environmental laws”), ~~the issuance and sale by the Company of the Shares) will give rise~~ owns or operates any real property contaminated with any substance that is subject to ~~a right~~ any environmental laws, is liable for any off-site disposal or contamination pursuant to ~~terminate or accelerate the due date of~~ any ~~payment due under~~environmental laws, or ~~conflict with~~ is subject to any claim relating to any environmental laws, which violation, contamination, liability or ~~result~~ claim would individually or in the breach of any term or provision of, or constitute a default (or an event which with notice or lapse of time or both would constitute a default) under, or require any consent or waiver under, or result in the execution or imposition of any lien, charge or encumbrance upon any properties or assets of the Company or any of the Subsidiaries pursuant to the terms of, any indenture, mortgage, deed of trust or other agreement or instrument to which the Company or any of the Subsidiaries is a party or by which it or any of its properties or businesses are bound, or any franchise, license, permit, judgment, decree, order, statute, rule or regulation applicable to the Company or any of the Subsidiaries or violate any provision of the Certificate of Incorporation and By-laws of the Company or any of the Subsidiaries, except for such consents or waivers which have already been obtained and are in full force and effect or as would not aggregate have a Material Adverse Effect~~. No consent, approval, authorization, order, registration or qualification of or with any United States court or governmental agency or body is required for the issue~~ ; and sale of the Shares or the consummation of the other transactions contemplated by this Agreement, which have not been obtained prior to the date hereof, except the registration under the Securities Act of the Shares, and such consents, approvals, authorizations, registrations or qualifications as may be required under state securities or Blue Sky laws -9- 10 in connection with the purchase and distribution of the Shares by the Underwriters. (xiii) The authorized, issued and outstanding capital stock of the Company ~~and the capital stock reserved or committed for issuance~~ is as set forth under the caption "Capitalization" in the Prospectus. All of the outstanding shares of Stock have been duly and validly issued and are fully paid and nonassessable, none of them was issued in violation not aware of any preemptive or other similar right and, to the Company's knowledge, since 1991, none of them were issued in violation of any Federal or state securities laws. The Shares, when issued and sold pursuant to this Agreement, will be duly and validly issued, fully paid and nonassessable, none of them will be issued in violation of any preemptive or other similar right, any contractual right, including, without limitation, rights of first refusal, and, since 1991, none of them were issued in violation of any (subject to compliance with Section 1(c) hereof), Federal or state securities laws. Except as disclosed in the Registration Statement and the Prospectus, there is no outstanding option, warrant or other right calling for the issuance of, and there is no commitment, plan or arrangement to issue, any shares of Common Stock of the Company or any security convertible into, or exercisable or exchangeable for, such shares of Stock. The shares of Stock conform in all material respects to all statements in relation thereto contained in the Registration Statement and the Prospectus. The Company has a sufficient number of authorized but unissued shares of Stock to enable the Company to issue, without further stockholder action, or approve all the Shares to be sold by the Company. (xiv) As of the date hereof, and as of each Closing Date, all of the outstanding shares of capital stock of the Subsidiaries are duly and validly authorized and issued, are fully paid and nonassessable and are and will be owned by the Company and there is and will be no outstanding option, warrant or other right calling for the issuance of, and no commitment, plan or arrangement to issue any share of capital stock of the Subsidiaries or any security convertible or exchangeable or exercisable for capital stock of the Subsidiaries, except as otherwise described in the Registration Statement and Prospectus. (xv) Except as set forth in the Registration Statement and Prospectus, no holder of any security of the Company has the right to have any security owned by such holder included in the Registration Statement or to demand registration of any security owned by such holder during the period ending 90 days after the date of this Agreement. Each Selling Stockholder and each director and executive officer of the Company has delivered topending investigation whi

Appears in 1 contract

Sources: Underwriting Agreement (Cbot Holdings Inc)

Representations and Warranties of the Company and the Selling Stockholders. (a) The Company ~~hereby~~ represents and warrants ~~to each Underwriter as follows~~to, and agrees with, the several Underwriters that: (i) On A registration statement (No. 333-83638) relating to the ~~Effective Date~~Offered Securities, including a form of prospectus, has been filed with the Securities and Exchange Commission ("COMMISSION") and either (i) has been declared effective under the Securities Act of 1933 ("ACT") and is not proposed to be amended or (ii) is proposed to be amended by amendment or post-effective amendment. If such registration statement ("INITIAL REGISTRATION STATEMENT") has been declared effective, either (i) an additional registration statement ("ADDITIONAL REGISTRATION STATEMENT") relating to the Offered Securities may have been filed with the Commission pursuant to Rule 462(b) ("RULE 462(b)") under the Act and, if so filed, has become effective upon filing pursuant to such Rule and the Offered Securities all have been duly registered under the Act pursuant to the initial registration statement and, if applicable, the ~~Registration Statement complied~~additional registration statement or (ii) such an additional registration statement is proposed to be filed with the Commission pursuant to Rule 462(b) and will become effective upon filing pursuant to such Rule and upon such filing the Offered Securities will all have been duly registered under the Act pursuant to the initial registration statement and such additional registration statement. If the Company does not propose to amend the initial registration statement or if an additional registration statement has been filed and the Company does not propose to amend it, and ~~on the date of the Prospectus, on the date~~ if any post-effective amendment to ~~the Registration Statement shall become effective, on the date any supplement or amendment to the Prospectus is~~ either such registration statement has been filed with the Commission prior to the execution and ~~on each Closing Date~~delivery of this Agreement, the ~~Registration Statement and~~ most recent amendment (if any) to each such registration statement has been declared effective by the ~~Prospectus~~ Commission or has become effective upon filing pursuant to Rule 462(c) (~~and any amendment thereof or supplement thereto~~"RULE 462(c)") ~~will comply~~under the Act or, in ~~all material respects, with~~ the ~~applicable provisions~~ case of the ~~Securities Act~~ additional registration statement, Rule 462(b). For purposes of this Agreement, "EFFECTIVE TIME" with respect to the initial registration statement or, if filed prior to the execution and delivery of this Agreement, the ~~Rules;~~ additional registration statement means (i) if the Company has advised the Representatives that it does not propose to amend such registration statement, the date and time as of which such registration statement, or the most recent post-effective amendment thereto (if any) filed prior to the execution and delivery of this Agreement, was declared effective by the Commission or has become effective upon filing pursuant to Rule 462(c), or (ii) ~~The documents~~ if the Company has advised the Representatives that ~~are incorporated~~ it proposes to file an amendment or post-effective amendment to such registration statement, the date and time as of which such registration statement, as amended by ~~reference in the preliminary prospectus and the Prospectus~~ such amendment or ~~from which information is so incorporated by reference, when they became~~ post-effective ~~or were filed with the Commission~~amendment, as the case may be, ~~complied~~ is declared effective by the Commission. If an additional registration statement has not been filed prior to the execution and delivery of this Agreement but the Company has advised the Representatives that it proposes to file one, "EFFECTIVE TIME" with respect to such additional registration statement means the date and time as of which such registration statement is filed and becomes effective pursuant to Rule 462(b). "EFFECTIVE DATE" with respect to the initial registration statement or the additional registration statement (if any) means the date of the Effective Time thereof. The initial registration statement, as amended at its Effective Time, including all information contained in the additional registration statement (if any) and deemed to be a part of the initial registration statement as of the Effective Time of the additional registration statement pursuant to the General Instructions of the Form on which it is filed and including all information (if any) deemed to be a part of the initial registration statement as of its Effective Time pursuant to Rule 430A(b) ("RULE 430A(b)") under the Act, is hereinafter referred to as the "INITIAL REGISTRATION STATEMENT". The additional registration statement, as amended at its Effective Time, including the contents of the initial registration statement incorporated by reference therein and including all information (if any) deemed to be a part of the additional registration statement as of its Effective Time pursuant to Rule 430A(b), is hereinafter referred to as the "ADDITIONAL REGISTRATION STATEMENT". The Initial Registration Statement and the Additional Registration Statement are herein referred to collectively as the "REGISTRATION STATEMENTS" and individually as a "REGISTRATION STATEMENT". The form of prospectus relating to the Offered Securities, as first filed with the Commission pursuant to and in accordance with Rule 424(b) ("RULE 424(b)") under the Act or (if no such filing is required) as included in a Registration Statement, is hereinafter referred to as the "PROSPECTUS". No document has been or will be prepared or distributed in reliance on Rule 434 under the Act. (ii) If the Effective Time of the Initial Registration Statement is prior to the execution and delivery of this Agreement: (i) on the Effective Date of the Initial Registration Statement, the Initial Registration Statement conformed in all ~~material~~ respects ~~with~~ to the requirements of the ~~Securities~~ Act ~~or the Securities Exchange Act of 1934, as amended (the "Exchange Act"), as applicable,~~ and the rules and regulations of the Commission ~~promulgated under~~ ("RULES AND REGULATIONS") and did not include any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the ~~Securities Act and the Exchange Act~~statements therein not misleading, ~~as applicable, except as amended and superseded by statements made in the Registration Statement; and any documents so filed and incorporated by reference subsequent to~~ (ii) on the Effective Date ~~shall~~of the Additional Registration Statement (if any), ~~when they are filed with the Commission~~each Registration Statement conformed, ~~conform~~ or will conform, in all material respects ~~with~~ to the requirements of the ~~Securities Act or the Exchange Act, as applicable, and the rules and regulations of the Commission promulgated under the Securities~~ Act and the ~~Exchange Act~~Rules and Regulations and did not include, or will not include, any untrue statement of a material fact and did not omit, or will not omit, to state any material fact required to be stated therein or necessary to make the statements therein not misleading and (iii) on the date of this Agreement, the Initial Registration Statement and, if the Effective Time of the Additional Registration Statement is prior to the execution and delivery of this Agreement, the Additional Registration Statement each conforms, and at the time of filing of the Prospectus pursuant to Rule 424(b) or (if no such filing is required) at the Effective Date of the Additional Registration Statement in which the Prospectus is included, each Registration Statement and the Prospectus will conform, in all respects to the requirements of the Act and the Rules and Regulations, and neither of such documents includes, or will include, any untrue statement of a material fact or omits, or will omit, to state any material fact required to be stated therein or necessary to make the statements therein not misleading. If the Effective Time of the Initial Registration Statement is subsequent to the execution and delivery of this Agreement: on the Effective Date of the Initial Registration Statement, the Initial Registration Statement and the Prospectus will conform in all respects to the requirements of the Act and the Rules and Regulations, neither of such documents will include any untrue statement of a material fact or will omit to state any material fact required to be stated therein or necessary to make the statements therein not misleading, and no Additional Registration Statement has been or will be filed. The two preceding sentences do not apply to statements in or omissions from a Registration Statement or the Prospectus based upon written information furnished to the Company by any Underwriter through the Representatives specifically for use therein, it being understood and agreed that the only such information is that described as ~~applicable~~such in Section 7(c) hereof. (iii) The consolidated financial statements of the Company (including all notes and schedules thereto) included in the Registration Statement and Prospectus present fairly the financial position, the results of operations and cash flows and the stockholders' equity and the other information purported to be shown therein of the Company and its subsidiaries, listed on Schedule III hereto (the "Subsidiaries"), at the respective dates and for the respective (iv) KPMG Peat Marwick LLP, whose report is filed with the Commission as a part of the Registration Statement, is and, during the periods covered by its reports, was independent public accountants as required by the Securities Act and the Rules. (v) The Company has been duly incorporated and is a validly existing corporation in good standing under the laws of the State of Delaware, with corporate power and ~~the Subsidiaries have been duly incorporated~~ authority to own its properties and are validly existing corporations under the laws of their respective jurisdictions. Other than the Subsidiaries, the Company has no subsidiaries and does not control, directly or indirectly, any corporation, partnership, joint venture, association or other conduct its business ~~organization, except~~ as described in the ~~Registration Statement~~ Prospectus; and the ~~Prospectus. Each of the~~ Company ~~and the Subsidiaries~~ is duly qualified ~~and in good standing~~ to do business as a foreign corporation in ~~each jurisdiction~~ good standing in all other jurisdictions in which ~~the character~~ its ownership or ~~location~~ lease of ~~its assets or properties (owned, leased or licensed)~~ property or the ~~nature~~ conduct of its business ~~makes~~ requires such ~~qualification necessary~~ qualification, except ~~for such jurisdictions where~~ to the extent the failure to be so ~~qualify~~ qualified would not have a material adverse effect on the ~~assets or properties, business, results of operations or~~ condition (financial or ~~otherwise)~~ other), business, properties or results of operations of the Company and ~~the Subsidiaries,~~ its subsidiaries taken as a whole (a "Material Adverse Effect"). Except as disclosed in the Registration Statement and the Prospectus, neither the Company nor the Subsidiaries own, lease or license any material asset or property or conduct any material business outside the United States of America. . (iv) Each subsidiary of the Company has been duly incorporated and is a validly existing corporation or other business organization, as the ~~Subsidiaries have all requisite corporate~~ case may be, in good standing under the laws of the jurisdiction of its incorporation or organization, with power and ~~authority,~~ authority (corporate and ~~all necessary authorizations, approvals, consents, orders, licenses, certificates and permits of and from all governmental or regulatory bodies or any other person or entity,~~ other) to ~~own, lease and license their assets and~~ own its properties and conduct ~~their businesses as now being conducted and~~ its business as described in the ~~Registration Statement~~ Prospectus; and each subsidiary of the ~~Prospectus~~ Company is duly qualified to do business as a foreign corporation or other business organization, as the case may be, in good standing in all other jurisdictions in which its ownership or lease of property or the conduct of its business requires such qualification, except ~~for such authorizations, approvals, consents, orders, licenses, certificates and permits~~ where the failure to be so ~~obtain~~ qualified would not have a Material Adverse Effect; ~~no such authorization~~all of the issued and outstanding capital stock or other ownership interests of each subsidiary of the Company has been duly authorized and, ~~approval, consent, order, license, certificate or permit contains a materially burdensome restriction other than as disclosed~~ in the ~~Registration Statement~~ case of each subsidiary that is a corporation, validly issued and ~~the Prospectus~~is fully paid and nonassessable; and the capital stock or other ownership interests of each subsidiary owned by the Company, directly or through subsidiaries, is owned free from liens, encumbrances and defects. (v) The Board of Directors of Hexal Pharmaceuticals, Inc. ("HPI") has adopted resolutions (the "EHI Merger Resolutions") authorizing the merger of Eon Holdings, Inc. ("EHI") with and into HPI, with HPI continuing as the surviving corporation (the "EHI Merger") and approving the filing of a certificate of merger (the "EHI Merger Certificate") with the Secretary of State of the State of Delaware. The Board of Directors of HPI and the sole stockholder of HPI have adopted resolutions (the "HPI Merger Resolutions") authorizing the merger of HPI with and into the Company, with the Company ~~has all such~~ continuing as the surviving corporation (the "HPI Merger," and together with the EHI Merger, the "Reorganization Mergers") and approving the filing of a certificate of merger (the "HPI Merger Certificate" and together with the EHI Merger Resolutions, the EHI Merger Certificates and the HPI Merger Resolutions, the "Reorganization Documents") with the Secretary of State of the State of Delaware, following the consummation of the EHI Merger. The EHI Merger Resolutions and the HPI Merger Resolutions have been duly adopted, the Reorganization Mergers have been consummated in accordance with the provisions of Section 253 of the Delaware General Corporation Law (the "DGCL") and no other corporate ~~power and authority~~proceedings on the part of HPI, ~~and such authorizations, approvals, consents, orders, licenses, certificates and permits~~ EHI or the Company are necessary to ~~enter into, deliver and perform this Agreement and to issue and~~consummate the Reorganization Mergers. (vi) The ~~Company and~~ Reorganization Documents will conform in all material respects to the Subsidiaries own or possess adequate and enforceable rights to use all patents, trademarks, trademark applications, trade names, service marks, copyrights, copyright applications, licenses, know-how and other similar rights and proprietary knowledge (collectively, "Intangibles") material to or necessary for the conduct of their business as described respective statements relating thereto contained in ~~the Registration Statement and~~ the Prospectus. ~~Except as disclosed in~~ The Company has delivered to the ~~Registration Statement~~ Representatives complete and ~~the Prospectus, neither the Company nor any~~ correct copies of the ~~Subsidiaries~~ Reorganization Documents and there have ~~received any notice of~~been no amendments, ~~and to their knowledge are not aware of~~alterations, ~~any infringement of~~ modification or ~~conflict with asserted rights of others with respect to any Intangibles which, singly~~ waivers thereto or in the ~~aggregate, if the subject of an unfavorable decision, ruling~~ exhibits or finding, could be reasonably expected to have a Material Adverse Effect, and neither the Company nor the Subsidiaries know of any reasonable basis therefor. Except as disclosed in the Registration Statement and the Prospectus, to the knowledge of the Company, no Intangibles of the Company or the Subsidiaries are in dispute or are in any conflict with the right of any other person or entity and the Company and each of the Subsidiaries (A) has or will have the right (subject to applicable agreements, which agreements provide for use to the extent necessary and desirable for the conduct of its business as currently conducted and as proposed to be conducted) to use, free and clear of all liens, charges, claims, encumbrances, pledges, security interests, defects, restrictions or equities of any kind whatsoever all licenses and rights to the Intangibles used in the conduct of their business as now conducted or proposed to be conducted without infringing upon or otherwise acting adversely to the right or claimed right of any other person and (B) is not or will not become, as the case may be, obligated or in any way liable for any payment by way of royalties, fees or otherwise and to any owner or licensee of, or other claimant to, any Intangibles with respect to the use thereof or in connection with the conduct of their business or otherwise, except in each case as disclosed in the Prospectus and except for any such payments, claims, uses, liens, charges, encumbrances, pledges, security interests, defects, restrictions and equities which would not have a Material Adverse Effectschedules thereto. (vii) The Offered Securities and all other outstanding shares of capital stock of the Company have been duly authorized; all outstanding shares of capital stock of the Company are, and, when the Offered Securities have been delivered and paid for in accordance with this Agreement on each Closing Date (as defined below), such Offered Securities will have been, validly issued, fully paid and nonassessable and will conform to the description thereof contained in the Prospectus; and the ~~Subsidiaries have good and marketable title to each~~ stockholders of the ~~items of personal property which are reflected in~~ Company have no preemptive rights with respect to the financial statements referred to in Section 4(a)(ii) or are referred to in the Registration Statement and the Prospectus as being owned by them and valid and enforceable leasehold interests in each of the items of real and personal property which are referred to in the Registration Statement and the Prospectus as being leased by them, in each case free and clear of all liens, encumbrances, claims, security interests and defects, other than those described in the Registration Statement and the Prospectus and those which do not and will not have a Material Adverse EffectSecurities. (viii) Except as ~~described~~ disclosed in ~~the Registration Statement and~~ the Prospectus, there is are no ~~litigation~~ contracts, agreements or ~~governmental or other proceeding or investigation before any court or before or by any public body or board pending or, to the Company's knowledge, threatened (and~~ understandings between the Company ~~does not know of~~ and any ~~reasonable basis therefor) against, or involving the assets, properties or business of,~~ person that would give rise to a valid claim against the Company or ~~the Subsidiaries which~~any Underwriter for a brokerage commission, ~~if adversely determined, could be reasonably expected to have a Material Adverse Effect~~finder's fee or other like payment in connection with this offering. (ix) ~~Subsequent to~~ Except for the ~~respective dates~~ Warrant Agreement, dated as of ~~which information is given~~ December 5, 2000 (the "Warrant Agreement"), by and among the Company and the warrantholders named therein (the "Warrantholders"), there are no contracts, agreements or understandings between the Company and any person granting such person the right to require the Company to file a registration statement under the Act with respect to any securities of the Company owned or to be owned by such person or to require the Company to include such securities in the securities registered pursuant to the Registration Statement ~~and~~ or in any securities being registered pursuant to any other registration statement filed by the ~~Prospectus, except as described therein, (A) there has not been any material adverse change in~~ Company under the ~~assets or properties, business, results of operations, prospects or condition (financial or otherwise)~~ Act. All rights of the ~~Company or the Subsidiaries taken as a whole, whether or not arising from transactions in the ordinary course of business; (B) neither~~ Warrantholders to require the Company ~~nor any of~~ to file a registration statement under the ~~Subsidiaries has sustained any material loss~~ Act or interference with its assets, businesses or properties (whether owned, leased or licensed) from fire, explosion, earthquake, flood or other calamity, whether or not covered by insurance, or from any labor dispute or any court or legislative or other governmental action, order or decree; and (C) since to require the ~~date of the latest balance sheet included in~~ Company to register securities pursuant to the Registration Statement or in any other registration statement filed by the Company in connection with the Company's initial public offering have either been fully satisfied or waived in accordance with the terms of the Warrant Agreement and the ~~Prospectus, except as reflected therein, neither~~ Warrantholders do not have any other rights to require the Company ~~nor any of~~ to file a registration statement or to require the ~~Subsidiaries has (x) issued any~~ Company's to register securities ~~(other than options or shares issued~~ pursuant to ~~exercise of employee stock options or warrants described in~~ the Registration Statement ~~and Prospectus)~~ or ~~incurred~~ any ~~liability or obligation, direct or contingent, for borrowed money, except such liabilities or obligations incurred~~ other registration statement filed by the Company in connection with the ordinary course of business, (y) entered into any transaction not in the ordinary course of business or (z) declared or paid any dividend or made any distribution on any shares of its stock or redeemed, purchased or otherwise acquired or agreed to redeem, purchase or otherwise acquire any shares of its stockCompany's initial public offering. (x) ~~There is no material document or contract of a character required to be described in~~ The Offered Securities have been approved for listing on the Registration Statement or Prospectus or to be filed as an exhibit to the Registration Statement which is not described or filed as required. Each agreement listed in the Exhibits to the Registration Statement is in full force and effect or has terminated in accordance with its terms or by amendment and such amendment has been filed as an Exhibit to the Registration Statement or has otherwise been provided to the Representatives and, if not so terminated, is valid and enforceable in all material respects by and against the Company or the Subsidiaries, as the case may be, in accordance with its terms, assuming the due authorization, execution and delivery thereof by each of the other parties thereto, except as the enforceability thereof may be limited by (i) bankruptcy, insolvency, reorganization, moratorium or other similar laws affecting the enforcement of creditors' rights generally and (ii) indemnification provisions under Federal and state securities laws; and that the remedy of specific forms of equitable relief may be Nasdaq Stock Market's National Market subject to ~~equitable defenses and the discretion~~ notice of ~~the court before which any such action may be brought. Neither the Company, the~~issuance. (xi) ~~Neither the Company nor the Subsidiaries is in violation of any term or provision of their respective Certificate of Incorporation and By-laws~~No consent, ~~in each case as amended to the date hereof~~approval, authorization, or ~~other governing documents~~order of, or of filing with, any ~~franchise, license, permit, judgment, decree, order, statute, rule~~ governmental agency or ~~regulation, where~~ body or any court is required for the ~~consequences of such violation would have a Material Adverse Effect. Except as described in the Registration Statement or Prospectus, neither the Company nor any~~ consummation of the ~~Subsidiaries intends to amend its Certificate~~ transactions contemplated by this Agreement in connection with the issuance and sale of ~~Incorporation~~ the Offered Securities by the Company, except such as have been obtained and ~~By-~~made under the Act and such as may be required under state securities laws. (xii) ~~Neither the~~ The execution, delivery and performance of this ~~Agreement by~~ Agreement, and the ~~Company~~ issuance and sale of the Offered Securities will not result in a breach or ~~the Subsidiaries nor the consummation~~ violation of any of the ~~transactions contemplated hereby (including, without limitation, the issuance~~ terms and ~~sale by the Company of the Shares) will give rise to a right to terminate or accelerate the due date of any payment due under, or conflict with or result in the breach of any term or provision~~ provisions of, or constitute a default ~~(or an event which with notice or lapse of time or both would constitute a default)~~ under, any statute, rule, regulation or ~~require any consent or waiver under, or result in the execution or imposition~~ order of any ~~lien~~governmental agency or body or any court, ~~charge~~ domestic or ~~encumbrance upon~~ foreign, having jurisdiction over the Company or any ~~properties or assets~~ subsidiary of the Company or any of ~~the Subsidiaries pursuant to the terms of~~their properties, or any ~~indenture, mortgage, deed of trust or other~~ agreement or instrument to which the Company or any ~~of the Subsidiaries~~ such subsidiary is a party or by which ~~it or any of its properties or businesses are bound, or any franchise, license, permit, judgment, decree, order, statute, rule or regulation applicable to~~ the Company or any such subsidiary is bound or to which any of the ~~Subsidiaries or violate any provision of the Certificate of Incorporation and By-laws~~ properties of the Company or any ~~of the Subsidiaries~~such subsidiary is subject, except ~~for~~ where such ~~consents~~ breach, violation or ~~waivers which have already been obtained and are in full force and effect or as~~ default would not have a Material Adverse Effect. ~~No consent~~The execution, ~~approval~~delivery and performance of this Agreement, ~~authorization, order, registration or qualification of or with any United States court or governmental agency or body is required for~~ and the ~~issue~~ issuance and sale of the ~~Shares or the consummation~~ Offered Securities will not result in a breach of the ~~other transactions~~ charter or by-laws of the Company or any such subsidiary, and the Company has full power and authority to authorize, issue and sell the Offered Securities as contemplated by this Agreement, which have not been obtained prior to the date hereof, except the registration under the Securities Act of the Shares, and such consents, approvals, authorizations, registrations or qualifications as may be required under state securities or Blue Sky laws -9- 10 in connection with the purchase and distribution of the Shares by the Underwriters. (xiii) ~~The~~ This Agreement has been duly authorized, ~~issued~~ executed and outstanding capital stock of the Company and the capital stock reserved or committed for issuance is as set forth under the caption "Capitalization" in the Prospectus. All of the outstanding shares of Stock have been duly and validly issued and are fully paid and nonassessable, none of them was issued in violation of any preemptive or other similar right and, to the Company's knowledge, since 1991, none of them were issued in violation of any Federal or state securities laws. The Shares, when issued and sold pursuant to this Agreement, will be duly and validly issued, fully paid and nonassessable, none of them will be issued in violation of any preemptive or other similar right, any contractual right, including, without limitation, rights of first refusal, and, since 1991, none of them were issued in violation of any (subject to compliance with Section 1(c) hereof), Federal or state securities laws. Except as disclosed in the Registration Statement and the Prospectus, there is no outstanding option, warrant or other right calling for the issuance of, and there is no commitment, plan or arrangement to issue, any shares of Common Stock of the Company or any security convertible into, or exercisable or exchangeable for, such shares of Stock. The shares of Stock conform in all material respects to all statements in relation thereto contained in the Registration Statement and the Prospectus. The Company has a sufficient number of authorized but unissued shares of Stock to enable the Company to issue, without further stockholder action, or approve all the Shares to be sold delivered by the Company. (xiv) ~~As of~~ Except as disclosed in the ~~date hereof~~Prospectus, and as of each Closing Date, all of the outstanding shares of capital stock of the Subsidiaries are duly and validly authorized and issued, are fully paid and nonassessable and are and will be owned by the Company and ~~there is~~ its subsidiaries have good and ~~will~~ marketable title to all real properties and all other properties and assets owned by them, in each case free from liens, encumbrances and defects that would materially affect the value thereof or materially interfere with the use made or to be ~~no outstanding option, warrant or other right calling for the issuance of,~~ made thereof by them; and ~~no commitment, plan or arrangement to issue any share of capital stock of the Subsidiaries or any security convertible or exchangeable or exercisable for capital stock of the Subsidiaries,~~ except as ~~otherwise described~~ disclosed in the ~~Registration Statement~~ Prospectus, the Company and ~~Prospectus~~its subsidiaries hold any leased real or personal property under valid and enforceable leases with no exceptions that would materially interfere with the use made or to be made thereof by them. (xv) ~~Except as set forth in~~ The Company and its subsidiaries possess adequate certificates, authorities or permits issued by appropriate governmental agencies or bodies necessary to conduct the ~~Registration Statement~~ business now operated by them and ~~Prospectus, no holder of any security of the Company has the right to~~ have any security owned by such holder included in the Registration Statement or to demand registration of any security owned by such holder during the period ending 90 days after the date of this Agreement. Each Selling Stockholder and each director and executive officer of the Company has delivered tonot rece

Appears in 1 contract

Sources: Underwriting Agreement (Eon Labs Inc)

Representations and Warranties of the Company and the Selling Stockholders. (a) The Company ~~hereby~~ represents and warrants ~~to each Underwriter as follows~~to, and agrees with, the several Underwriters that: (i) On A registration statement (No. 333- ) relating to the ~~Effective Date~~Offered Securities, including a form of prospectus, has been filed with the Securities and Exchange Commission ("Commission") and either (A) has been declared effective under the Securities Act of 1933 ("Act") and is not proposed to be amended or (B) is proposed to be amended by amendment or post-effective amendment. If such registration statement (the "initial registration statement") has been declared effective, either (A) an additional registration statement (the "additional registration statement") relating to the Offered Securities may have been filed with the Commission pursuant to Rule 462(b) ("Rule 462(b)") under the Act and, if so filed, has become effective upon filing pursuant to such Rule and the Offered Securities all have been duly registered under the Act pursuant to the initial registration statement and, if applicable, the ~~Registration Statement complied~~additional registration statement or (B) such an additional registration statement is proposed to be filed with the Commission pursuant to Rule 462(b) and will become effective upon filing pursuant to such Rule and upon such filing the Offered Securities will all have been duly registered under the Act pursuant to the initial registration statement and such additional registration statement. If the Company does not propose to amend the initial registration statement or if an additional registration statement has been filed and the Company does not propose to amend it, and ~~on the date of the Prospectus, on the date~~ if any post-effective amendment to ~~the Registration Statement shall become effective, on the date any supplement or amendment to the Prospectus is~~ either such registration statement has been filed with the Commission prior to the execution and ~~on each Closing Date~~delivery of this Agreement, the ~~Registration Statement and~~ most recent amendment (if any) to each such registration statement has been declared effective by the ~~Prospectus~~ Commission or has become effective upon filing pursuant to Rule 462(c) (~~and any amendment thereof or supplement thereto~~"Rule 462(c)") ~~will comply~~under the Act or, in ~~all material respects, with~~ the ~~applicable provisions~~ case of the ~~Securities Act~~ additional registration statement, Rule 462(b). For purposes of this Agreement, "Effective Time" with respect to the initial registration statement or, if filed prior to the execution and delivery of this Agreement, the ~~Rules;~~ additional registration statement means (iiA) ~~The documents~~ if the Company has advised the Representatives that ~~are incorporated~~ it does not propose to amend such registration statement, the date and time as of which such registration statement, or the most recent post-effective amendment thereto (if any) filed prior to the execution and delivery of this Agreement, was declared effective by ~~reference in~~ the ~~preliminary prospectus~~ Commission or has become effective upon filing pursuant to Rule 462(c), or (B) if the Company has advised the Representatives that it proposes to file an amendment or post-effective amendment to such registration statement, the date and ~~the Prospectus~~ time as of which such registration statement, as amended by such amendment or ~~from which information is so incorporated by reference, when they became~~ post-effective ~~or were filed with the Commission~~amendment, as the case may be, ~~complied~~ is declared effective by the Commission. If an additional registration statement has not been filed prior to the execution and delivery of this Agreement but the Company has advised the Representatives that it proposes to file one, "Effective Time" with respect to such additional registration statement means the date and time as of which such registration statement is filed and becomes effective pursuant to Rule 462(b). "Effective Date" with respect to the initial registration statement or the additional registration statement (if any) means the date of the Effective Time thereof. The initial registration statement, as amended at its Effective Time, including all material incorporated by reference therein, including all information contained in the additional registration statement (if any) and deemed to be a part of the initial registration statement as of the Effective Time of the additional registration statement pursuant to the General Instructions of the Form on which it is filed and including all information (if any) deemed to be a part of the initial registration statement as of its Effective Time pursuant to Rule 430A(b) ("Rule 430A(b)") under the Act, is hereinafter referred to as the "Initial Registration Statement". The additional registration statement, as amended at its Effective Time, including the contents of the initial registration statement incorporated by reference therein and including all information (if any) deemed to be a part of the additional registration statement as of its Effective Time pursuant to Rule 430A(b), is hereinafter referred to as the "Additional Registration Statement". The Initial Registration Statement and the Additional Registration are hereinafter referred to collectively as the "Registration Statements" and individually as a "Registration Statement". The form of prospectus relating to the Offered Securities, as first filed with the Commission pursuant to and in accordance with Rule 424(b) ("Rule 424(b)") under the Act or (if no such filing is required) as included in a Registration Statement, including all material incorporated by reference in such prospectus, is hereinafter referred to as the "Prospectus". No document has been or will be prepared or distributed in reliance on Rule 434 under the Act. (ii) If the Effective Time of the Initial Registration Statement is prior to the execution and delivery of this Agreement: (A) on the Effective Date of the Initial Registration Statement, the Initial Registration Statement conformed in all ~~material~~ respects ~~with~~ to the requirements of the ~~Securities~~ Act ~~or the Securities Exchange Act of 1934, as amended (the "Exchange Act"), as applicable,~~ and the rules and regulations of the Commission ~~promulgated under~~ ("Rules and Regulations") and did not include any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the ~~Securities Act and the Exchange Act~~statements therein not misleading, ~~as applicable, except as amended and superseded by statements made in the Registration Statement; and any documents so filed and incorporated by reference subsequent to~~ (B) on the Effective Date ~~shall~~of the Additional Registration Statement (if any), ~~when they are filed with the Commission~~each Registration Statement conformed or will conform, ~~conform~~ in all ~~material~~ respects ~~with~~ to the requirements of the ~~Securities Act or the Exchange Act, as applicable, and the rules and regulations of the Commission promulgated under the Securities~~ Act and the ~~Exchange Act~~Rules and Regulations and did not include, or will not include, any untrue statement of a material fact and did not omit, or will not omit, to state any material fact required to be stated therein or necessary to make the statements therein not misleading, and (C) on the date of this Agreement, the Initial Registration Statement and, if the Effective Time of the Additional Registration Statement is prior to the execution and delivery of this Agreement, the Additional Registration Statement each conforms, and at the time of filing of the Prospectus pursuant to Rule 424(b) or (if no such filing is required) at the Effective Date of the Additional Registration Statement in which the Prospectus is included, each Registration Statement and the Prospectus will conform, in all respects to the requirements of the Act and the Rules and Regulations, and neither of such documents includes, or will include, any untrue statement of a material fact or omits, or will omit, to state any material fact required to be stated therein or necessary to make the statements therein not misleading. If the Effective Time of the Initial Registration Statement is subsequent to the execution and delivery of this Agreement: on the Effective Date of the Initial Registration Statement, the Initial Registration Statement and the Prospectus will conform in all respects to the requirements of the Act and the Rules and Regulations, neither of such documents will include any untrue statement of a material fact or will omit to state any material fact required to be stated therein or necessary to make the statements therein not misleading, and no Additional Registration Statement has been or will be filed. The two preceding sentences do not apply to statements in or omissions from a Registration Statement or the Prospectus based upon written information furnished to the Company by any Underwriter through the Representatives specifically for use therein, it being understood and agreed that the only such information is that described as ~~applicable~~such in Section 7(c) hereof. (iii) The consolidated financial statements of the Company (including all notes and schedules thereto) included in the Registration Statement and Prospectus present fairly the financial position, the results of operations and cash flows and the stockholders' equity and the other information purported to be shown therein of the Company and its subsidiaries, listed on Schedule III hereto (the "Subsidiaries"), at the respective dates and for the respective (iv) KPMG Peat Marwick LLP, whose report is filed with the Commission as a part of the Registration Statement, is and, during the periods covered by its reports, was independent public accountants as required by the Securities Act and the Rules. (v) The Company has been duly incorporated and is ~~a validly~~ an existing corporation in good standing under the laws of the State of Delaware, with power and ~~the Subsidiaries have been duly incorporated~~ authority (corporate and ~~are validly existing corporations under the laws of their respective jurisdictions. Other than the Subsidiaries, the Company has no subsidiaries~~ other) to own its properties and ~~does not control, directly or indirectly, any corporation, partnership, joint venture, association or other~~ conduct its business ~~organization, except~~ as described in the ~~Registration Statement~~ Prospectus; and the ~~Prospectus. Each of the~~ Company ~~and the Subsidiaries~~ is duly qualified ~~and in good standing~~ to do business as a foreign corporation in ~~each jurisdiction~~ good standing in all other jurisdictions in which ~~the character~~ its ownership or ~~location~~ lease of ~~its assets or properties (owned, leased or licensed)~~ property or the ~~nature~~ conduct of its business ~~makes~~ requires such ~~qualification necessary~~ qualification, except ~~for such jurisdictions~~ where the failure to be so ~~qualify~~ qualified would not have a material adverse effect on the business of the Company and its subsidiaries, taken as a whole. (iv) For the purposes of this Agreement, each of following shall be deemed a "Listed Subsidiary" of the Company: MicroEdge, Inc., a New York corporation, Advent Technology, Inc., a Delaware corporation, Hub Data, Inc., a Massachusetts corporation, and Second Street Securities, a Delaware corporation. Each Listed Subsidiary has been duly incorporated and is an existing corporation in good standing under the laws of the jurisdiction of its incorporation, with power and authority (corporate and other) to own its properties and conduct its business as described in the Prospectus; and each Listed Subsidiary of the Company is duly qualified to do business as a foreign corporation in good standing in all other jurisdictions in which its ownership or lease of property or the conduct of its business requires such qualification, except where the failure to be so qualified would not have a material adverse effect on the business of the Company and its subsidiaries, taken as a whole; all of the issued and outstanding capital stock of each Listed Subsidiary of the Company has been duly authorized and validly issued and is fully paid and nonassessable; and the capital stock of each Listed Subsidiary owned by the Company, directly or through subsidiaries, is owned free from liens, encumbrances and defects; other than the Listed Subsidiaries, there is no other subsidiary of the Company other than inactive subsidiaries or subsidiaries with assets of less than $1.0 million and revenue of less than $1.0 million per year. (v) The Offered Securities and all other outstanding shares of capital stock of the Company have been duly authorized and validly issued, fully paid and nonassessable and conform to the description thereof contained in the Prospectus; and the stockholders of the Company have no preemptive rights with respect to the Securities. (vi) Except as disclosed in the Prospectus, there are no contracts, agreements or understandings between the Company and any person that would give rise to a valid claim against the Company or any Underwriter for a brokerage commission, finder's fee or other like payment in connection with this offering. (vii) There are no contracts, agreements or understandings between the Company and any person granting such person the right to require the Company to file a registration statement under the Act with respect to any securities of the Company owned or to be owned by such person or to require the Company to include such securities in the securities registered pursuant to a Registration Statement or in any securities being registered pursuant to any other registration statement filed by the Company under the Act. (viii) The Securities are listed on the Nasdaq National Market. (ix) No consent, approval, authorization, or order of, or filing with, any governmental agency or body or any court is required to be obtained or made by the Company for the consummation of the transactions contemplated by this Agreement in connection with the sale of the Offered Securities, except such as have been obtained and made under the Act and such as may be required under state securities laws. (x) The execution, delivery and performance of this Agreement, and the consummation of the transactions herein contemplated will not result in a breach or violation of any of the terms and provisions of, or constitute a default under, any statute, any rule, regulation or order of any governmental agency or body or any court, domestic or foreign, having jurisdiction over the Company or any Listed Subsidiary of the Company or any of their properties, ~~business~~or any agreement or instrument to which the Company or any such Listed Subsidiary is a party or by which the Company or any such Listed Subsidiary is bound or to which any of the properties of the Company or any such Listed Subsidiary is subject, ~~results~~ or the charter or by-laws of ~~operations~~ the Company or any such Listed Subsidiary. (xi) This Agreement has been duly authorized, executed and delivered by the Company. (xii) Except as disclosed in the Prospectus, the Company and its Listed Subsidiaries have good and marketable title to all real properties and all other properties and assets owned by them, in each case free from liens, encumbrances and defects that would materially affect the value thereof or materially interfere with the use made or to be made thereof by them; and except as disclosed in the Prospectus, the Company and its Listed Subsidiaries hold any leased real or personal property under valid and enforceable leases with no exceptions that would materially interfere with the use made or to be made thereof by them. (xiii) The Company and its Listed Subsidiaries possess adequate certificates, authorities or permits issued by appropriate governmental agencies or bodies necessary to conduct the business now operated by them and have not received any notice of proceedings relating to the revocation or modification of any such certificate, authority or permit that, if determined adversely to the Company or any of its Listed Subsidiaries, would individually or in the aggregate have a material adverse effect on the condition (financial or ~~otherwise)~~ other), business, properties or results of operations of the Company and ~~the Subsidiaries~~its subsidiaries, taken as a whole (a "Material Adverse Effect")~~. Except as disclosed in~~ . (xiv) No labor dispute with the Registration Statement and the Prospectus, neither the Company nor the Subsidiaries own, lease or license any material asset or property or conduct any material business outside the United States of America. Each employees of the Company and the Subsidiaries have all requisite corporate power and authority, and all necessary authorizations, approvals, consents, orders, licenses, certificates and permits of and from all governmental or regulatory bodies or any ~~other person or entity~~subsidiary exists or, to ~~own~~the knowledge of the Company, lease and license their assets and properties and conduct their businesses as now being conducted and as described in the Registration Statement and the Prospectus except for such authorizations, approvals, consents, orders, licenses, certificates and permits the failure to so obtain would not is imminent that might have a Material Adverse Effect; no such authorization, approval, consent, order, license, certificate or permit contains a materially burdensome restriction other than as disclosed in the Registration Statement and the Prospectus; and the Company has all such corporate power and authority, and such authorizations, approvals, consents, orders, licenses, certificates and permits to enter into, deliver and perform this Agreement and to issue and. (vixv) The Company and ~~the~~ its Listed Subsidiaries ~~own~~ own, possess or ~~possess~~ can acquire on reasonable terms, adequate trademarks, trade names and ~~enforceable~~ other rights to ~~use all patents~~inventions, ~~trademarks, trademark applications, trade names, service marks~~know-how, copyrights, ~~copyright applications, licenses, know-how~~ confidential information and other ~~similar rights and proprietary knowledge~~ intellectual property (collectively, "~~Intangibles~~intellectual property rights") ~~material~~ necessary to conduct the business now operated by them, or ~~necessary for the conduct of their business as described in the Registration Statement~~ presently employed by them, and ~~the Prospectus. Except as disclosed in the Registration Statement and the Prospectus, neither the Company nor any of the Subsidiaries~~ have not received any notice ~~of, and to their knowledge are not aware of, any~~ of infringement of or conflict with asserted rights of others with respect to any ~~Intangibles which~~intellectual property rights that, ~~singly~~ if determined adversely to the Company or any of its Listed Subsidiaries, would individually or in the ~~aggregate~~aggregate have a Material Adverse Effect. (xvi) Except as disclosed in the Prospectus, neither the Company nor any of its Listed Subsidiaries is in violation of any statute, any rule, regulation, decision or order of any governmental agency or body or any court, domestic or foreign, relating to the use, disposal or release of hazardous or toxic substances or relating to the protection or restoration of the environment or human exposure to hazardous or toxic substances (collectively, "environmental laws"), owns or operates any real property contaminated with any substance that is subject to any environmental laws, is liable for any off-site disposal or contamination pursuant to any environmental laws, or is subject to any claim relating to any environmental laws, which violation, contamination, liability or claim would individually or in the aggregate have Material Adverse Effect; and the Company is not aware of any pending investigation which might lead to such a claim. (xvii) Except as disclosed in the Prospectus, there are no pending actions, suits or proceedings against or affecting the Company, any of its Listed Subsidiaries or any of their respective properties that, if determined adversely to the ~~subject~~ Company or any of ~~an unfavorable decision~~its Listed Subsidiaries, ~~ruling~~ would individually or ~~finding, could be reasonably expected to~~ in the aggregate have a Material Adverse Effect, or would materially and ~~neither~~ adversely affect the ability of the Company ~~nor the Subsidiaries know of any reasonable basis therefor. Except as disclosed~~ to perform its obligations under this Agreement, or which are otherwise material in the ~~Registration Statement and~~ context of the ~~Prospectus~~sale of the Offered Securities; and, to the knowledge of the Company, no ~~Intangibles of the Company~~ such actions, suits or ~~the Subsidiaries~~ proceedings are in dispute or are in any conflict with the right of any other person or entity and the Company and each of the Subsidiaries (A) has or will have the right (subject to applicable agreements, which agreements provide for use to the extent necessary and desirable for the conduct of its business as currently conducted and as proposed to be conducted) to use, free and clear of all liens, charges, claims, encumbrances, pledges, security interests, defects, restrictions or equities of any kind whatsoever all licenses and rights to the Intangibles used in the conduct of their business as now conducted or proposed to be conducted without infringing upon or otherwise acting adversely to the right or claimed right of any other person and (B) is not or will not become, as the case may be, obligated or in any way liable for any payment by way of royalties, fees or otherwise and to any owner or licensee of, or other claimant to, any Intangibles with respect to the use thereof or in connection with the conduct of their business or otherwise, except in each case as disclosed in the Prospectus and except for any such payments, claims, uses, liens, charges, encumbrances, pledges, security interests, defects, restrictions and equities which would not have a Material Adverse Effect. (vii) The Company and the Subsidiaries have good and marketable title to each of the items of personal property which are reflected in the financial statements referred to in Section 4(a)(ii) or are referred to in the Registration Statement and the Prospectus as being owned by them and valid and enforceable leasehold interests in each of the items of real and personal property which are referred to in the Registration Statement and the Prospectus as being leased by them, in each case free and clear of all liens, encumbrances, claims, security interests and defects, other than those described in the Registration Statement and the Prospectus and those which do not and will not have a Material Adverse Effect. (viii) Except as described in the Registration Statement and the Prospectus, there is no litigation or governmental or other proceeding or investigation before any court or before or by any public body or board pending threatened or, to the Company's knowledge, threatened (and the Company does not know of any reasonable basis therefor) against, or involving the assets, properties or business of, the Company or the Subsidiaries which, if adversely determined, could be reasonably expected to have a Material Adverse Effect. (ix) Subsequent to the respective dates as of which information is given in the Registration Statement and the Prospectus, except as described therein, (A) there has not been any material adverse change in the assets or properties, business, results of operations, prospects or condition (financial or otherwise) of the Company or the Subsidiaries taken as a whole, whether or not arising from transactions in the ordinary course of business; (B) neither the Company nor any of the Subsidiaries has sustained any material loss or interference with its assets, businesses or properties (whether owned, leased or licensed) from fire, explosion, earthquake, flood or other calamity, whether or not covered by insurance, or from any labor dispute or any court or legislative or other governmental action, order or decree; and (C) since the date of the latest balance sheet included in the Registration Statement and the Prospectus, except as reflected therein, neither the Company nor any of the Subsidiaries has (x) issued any securities (other than options or shares issued pursuant to exercise of employee stock options or warrants described in the Registration Statement and Prospectus) or incurred any liability or obligation, direct or contingent, for borrowed money, except such liabilities or obligations incurred in the ordinary course of business, (y) entered into any transaction not in the ordinary course of business or (z) declared or paid any dividend or made any distribution on any shares of its stock or redeemed, purchased or otherwise acquired or agreed to redeem, purchase or otherwise acquire any shares of its stock. (x) There is no material document or contract of a character required to be described in the Registration Statement or Prospectus or to be filed as an exhibit to the Registration Statement which is not described or filed as required. Each agreement listed in the Exhibits to the Registration Statement is in full force and effect or has terminated in accordance with its terms or by amendment and such amendment has been filed as an Exhibit to the Registration Statement or has otherwise been provided to the Representatives and, if not so terminated, is valid and enforceable in all material respects by and against the Company or the Subsidiaries, as the case may be, in accordance with its terms, assuming the due authorization, execution and delivery thereof by each of the other parties thereto, except as the enforceability thereof may be limited by (i) bankruptcy, insolvency, reorganization, moratorium or other similar laws affecting the enforcement of creditors' rights generally and (ii) indemnification provisions under Federal and state securities laws; and that the remedy of specific forms of equitable relief may be subject to equitable defenses and the discretion of the court before which any such action may be brought. Neither the Company, the (xi) Neither the Company nor the Subsidiaries is in violation of any term or provision of their respective Certificate of Incorporation and By-laws, in each case as amended to the date hereof, or other governing documents, or of any franchise, license, permit, judgment, decree, order, statute, rule or regulation, where the consequences of such violation would have a Material Adverse Effect. Except as described in the Registration Statement or Prospectus, neither the Company nor any of the Subsidiaries intends to amend its Certificate of Incorporation and By-laws. (xii) Neither the execution, delivery and performance of this Agreement by the Company or the Subsidiaries nor the consummation of any of the transactions contemplated hereby (including, without limitation, the issuance and sale by the Company of the Shares) will give rise to a right to terminate or accelerate the due date of any payment due under, or conflict with or result in the breach of any term or provision of, or constitute a default (or an event which with notice or lapse of time or both would constitute a default) under, or require any consent or waiver under, or result in the execution or imposition of any lien, charge or encumbrance upon any properties or assets of the Company or any of the Subsidiaries pursuant to the terms of, any indenture, mortgage, deed of trust or other agreement or instrument to which the Company or any of the Subsidiaries is a party or by which it or any of its properties or businesses are bound, or any franchise, license, permit, judgment, decree, order, statute, rule or regulation applicable to the Company or any of the Subsidiaries or violate any provision of the Certificate of Incorporation and By-laws of the Company or any of the Subsidiaries, except for such consents or waivers which have already been obtained and are in full force and effect or as would not have a Material Adverse Effect. No consent, approval, authorization, order, registration or qualification of or with any United States court or governmental agency or body is required for the issue and sale of the Shares or the consummation of the other transactions contemplated by this Agreement, which have not been obtained prior to the date hereof, except the registration under the Securities Act of the Shares, and such consents, approvals, authorizations, registrations or qualifications as may be required under state securities or Blue Sky laws -9- 10 in connection with the purchase and distribution of the Shares by the Underwriters. (xiii) The authorized, issued and outstanding capital stock of the Company and the capital stock reserved or committed for issuance is as set forth under the caption "Capitalization" in the Prospectus. All of the outstanding shares of Stock have been duly and validly issued and are fully paid and nonassessable, none of them was issued in violation of any preemptive or other similar right and, to the Company's knowledge, since 1991, none of them were issued in violation of any Federal or state securities laws. The Shares, when issued and sold pursuant to this Agreement, will be duly and validly issued, fully paid and nonassessable, none of them will be issued in violation of any preemptive or other similar right, any contractual right, including, without limitation, rights of first refusal, and, since 1991, none of them were issued in violation of any (subject to compliance with Section 1(c) hereof), Federal or state securities laws. Except as disclosed in the Registration Statement and the Prospectus, there is no outstanding option, warrant or other right calling for the issuance of, and there is no commitment, plan or arrangement to issue, any shares of Common Stock of the Company or any security convertible into, or exercisable or exchangeable for, such shares of Stock. The shares of Stock conform in all material respects to all statements in relation thereto contained in the Registration Statement and the Prospectus. The Company has a sufficient number of authorized but unissued shares of Stock to enable the Company to issue, without further stockholder action, or approve all the Shares to be sold by the Company. (xiv) As of the date hereof, and as of each Closing Date, all of the outstanding shares of capital stock of the Subsidiaries are duly and validly authorized and issued, are fully paid and nonassessable and are and will be owned by the Company and there is and will be no outstanding option, warrant or other right calling for the issuance of, and no commitment, plan or arrangement to issue any share of capital stock of the Subsidiaries or any security convertible or exchangeable or exercisable for capital stock of the Subsidiaries, except as otherwise described in the Registration Statement and Prospectus. (xv) Except as set forth in the Registration Statement and Prospectus, no holder of any security of the Company has the right to have any security owned by such holder included in the Registration Statement or to demand registration of any security owned by such holder during the period ending 90 days after the date of this Agreement. Each Selling Stockholder and each director and executive officer of the Company has delivered tocon

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Representations and Warranties of the Company and the Selling Stockholders. (a) The Company ~~hereby~~ represents and warrants ~~to each Underwriter as follows~~to, and agrees with, the several Underwriters that: (i) ~~On the Effective Date, the Registration Statement complied, and on the date of the Prospectus, on the date any post~~A registration statement (No. 333-~~effective amendment~~ 126428) (“initial registration statement”) relating to the ~~Registration Statement shall become effective~~Offered Securities, on including a form of prospectus, has been filed with the ~~date any supplement or amendment~~ Securities and Exchange Commission (“Commission”) and an additional registration statement (“additional registration statement”) relating to the ~~Prospectus is~~ Offered Securities may have been or may be filed with the Commission ~~and on each Closing Date, the Registration Statement and the Prospectus~~ pursuant to Rule 462(b) (~~and any amendment thereof or supplement thereto~~“Rule 462(b)”) ~~will comply, in all material respects, with the applicable provisions of~~ under the Securities Act ~~and~~ of 1933 (“Act”). “Initial Registration Statement” as of any time means the ~~Rules; (ii) The documents that are incorporated by reference~~ initial registration statement, in the ~~preliminary prospectus and the Prospectus or from which information is so incorporated by reference, when they became effective or were~~ form then filed with the Commission, as including all information contained in the ~~case may be, complied in all material respects with the requirements~~ additional registration statement (if any) and then deemed to be a part of the ~~Securities~~ initial registration statement pursuant to the General Instructions of the Form on which it is filed and all information (if any) included in a prospectus then deemed to be a part of the initial registration statement pursuant to Rule 430C (“Rule 430C”) under the Act or ~~the Securities Exchange Act of 1934, as amended (the "Exchange Act"), as applicable, and the rules and regulations~~ retroactively deemed to be a part of the ~~Commission promulgated~~ initial registration statement pursuant to paragraph (b) of Rule 430A (“Rule 430A”) under the ~~Securities~~ Act and that in any case has not then been superseded or modified. “Additional Registration Statement” as of any time means the ~~Exchange Act~~additional registration statement, ~~as applicable, except as amended and superseded by statements made~~ in the ~~Registration Statement; and any documents so filed and incorporated by reference subsequent to the Effective Date shall, when they are~~ form then filed with the Commission, ~~conform in all material respects with~~ including the ~~requirements~~ contents of the ~~Securities Act or the Exchange Act, as applicable,~~ Initial Registration Statement incorporated by reference therein and ~~the rules and regulations of the Commission promulgated under the Securities Act and the Exchange Act, as applicable. (iii) The consolidated financial statements of the Company (~~including all ~~notes and schedules thereto~~information (if any) included in ~~the Registration Statement and Prospectus present fairly the financial position, the results of operations and cash flows and the stockholders' equity and the other information purported~~ a prospectus then deemed to be shown therein of the Company and its subsidiaries, listed on Schedule III hereto (the "Subsidiaries"), at the respective dates and for the respective (iv) KPMG Peat Marwick LLP, whose report is filed with the Commission as a part of the Registration Statement, is and, during the periods covered by its reports, was independent public accountants as required by the Securities Act and the Rules. (v) The Company has been duly incorporated and is additional registration statement pursuant to Rule 430C or retroactively deemed to be a ~~validly existing corporation under the laws~~ part of the ~~State of Delaware,~~ additional registration statement pursuant to Rule 430A(b) and ~~the Subsidiaries have~~ that in any case has not then been ~~duly incorporated and are validly existing corporations under the laws of their respective jurisdictions~~superseded or modified. Other than the Subsidiaries, the Company has no subsidiaries and does not control, directly or indirectly, any corporation, partnership, joint venture, association or other business organization, except as described in the The Initial Registration Statement and the ~~Prospectus. Each of~~ Additional Registration Statement are herein referred to collectively as the ~~Company~~ “Registration Statements” and ~~the Subsidiaries is duly qualified and in good standing~~ individually as a ~~foreign corporation in each jurisdiction in which~~ “Registration Statement.” “Registration Statement” as of any time means the character or location of its assets or properties (owned, leased or licensed) or the nature of its business makes such qualification necessary except for such jurisdictions where the failure to so qualify would not have a material adverse effect on the assets or properties, business, results of operations or condition (financial or otherwise) of the Company and the Subsidiaries, taken as a whole (a "Material Adverse Effect"). Except as disclosed in the Initial Registration Statement and ~~the Prospectus, neither the Company nor the Subsidiaries own, lease or license~~ any ~~material asset or property or conduct any material business outside the United States~~ Additional Registration Statement as of ~~America~~such time. ~~Each~~ For purposes of the ~~Company and the Subsidiaries have all requisite corporate power and authority~~foregoing definitions, ~~and all necessary authorizations, approvals, consents, orders, licenses, certificates and permits~~ information contained in a form of ~~and from all governmental or regulatory bodies or any other person or entity,~~ prospectus that is deemed retroactively to ~~own, lease and license their assets and properties and conduct their businesses as now being conducted and as described in the~~ be a part of a Registration Statement ~~and the Prospectus except for~~ pursuant to Rule 430A shall be considered to be included in such authorizations, approvals, consents, orders, licenses, certificates and permits the failure to so obtain would not have a Material Adverse Effect; no such authorization, approval, consent, order, license, certificate or permit contains a materially burdensome restriction other than as disclosed in the Registration Statement as of the time specified in Rule 430A. As of the time of execution and delivery of this Agreement, the Prospectus; and the Company has all such corporate power and authority, and such authorizations, approvals, consents, orders, licenses, certificates and permits to enter into, deliver and perform this Agreement and to issue and (vi) The Company and the Subsidiaries own or possess adequate and enforceable rights to use all patents, trademarks, trademark applications, trade names, service marks, copyrights, copyright applications, licenses, know-how and other similar rights and proprietary knowledge (collectively, "Intangibles") material to or necessary for the conduct of their business as described in the Initial Registration Statement has been declared effective under the Act and ~~the Prospectus~~is not proposed to be amended. ~~Except as disclosed in the~~ Any Additional Registration Statement and the Prospectus, neither the Company nor any of the Subsidiaries have received any notice of, and to their knowledge are not aware of, any infringement of or conflict with asserted rights of others with respect to any Intangibles which, singly or in the aggregate, if the subject of an unfavorable decision, ruling or finding, could be reasonably expected to have a Material Adverse Effect, and neither the Company nor the Subsidiaries know of any reasonable basis therefor. Except as disclosed in the Registration Statement and the Prospectus, to the knowledge of the Company, no Intangibles of the Company or the Subsidiaries are in dispute or are in any conflict with the right of any other person or entity and the Company and each of the Subsidiaries (A) has or will ~~have~~ become effective upon filing with the ~~right (subject~~ Commission pursuant to ~~applicable agreements, which agreements provide for use to the extent necessary~~ Rule 462(b) and ~~desirable for the conduct of its business as currently conducted and as~~ is not proposed to be ~~conducted) to use, free and clear of~~ amended. The Offered Securities all ~~liens, charges, claims, encumbrances, pledges, security interests, defects, restrictions~~ have been or ~~equities of any kind whatsoever all licenses and rights~~ will be duly registered under the Act pursuant to the ~~Intangibles used in~~ Initial Registration Statement and, if applicable, the ~~conduct~~ Additional Registration Statement. For purposes of ~~their business as now conducted or proposed to be conducted without infringing upon or otherwise acting adversely to the right or claimed right of any other person and (B) is not or will not become~~this Agreement, ~~as the case may be, obligated or in any way liable for any payment by way of royalties, fees or otherwise and to any owner or licensee of, or other claimant to, any Intangibles~~ “Effective Time” with respect to the use thereof or in connection with the conduct of their business or otherwise, except in each case as disclosed in the Prospectus and except for any such payments, claims, uses, liens, charges, encumbrances, pledges, security interests, defects, restrictions and equities which would not have a Material Adverse Effect. (vii) The Company and the Subsidiaries have good and marketable title to each of the items of personal property which are reflected in the financial statements referred to in Section 4(a)(ii) or are referred to in the Initial Registration Statement or, if filed prior to the execution and delivery of this Agreement, the ~~Prospectus as being owned by them and valid and enforceable leasehold interests in each of the items of real and personal property which are referred to in the~~ Additional Registration Statement means the date and the Prospectus as being leased by them, in each case free and clear of all liens, encumbrances, claims, security interests and defects, other than those described in the Registration Statement and the Prospectus and those which do not and will not have a Material Adverse Effect. (viii) Except as described in the Registration Statement and the Prospectus, there is no litigation or governmental or other proceeding or investigation before any court or before or by any public body or board pending or, to the Company's knowledge, threatened (and the Company does not know of any reasonable basis therefor) against, or involving the assets, properties or business of, the Company or the Subsidiaries which, if adversely determined, could be reasonably expected to have a Material Adverse Effect. (ix) Subsequent to the respective dates time as of which ~~information is given in the~~ such Registration Statement and the Prospectus, except as described therein, (A) there has not been any material adverse change in the assets or properties, business, results of operations, prospects or condition (financial or otherwise) of the Company or the Subsidiaries taken as a whole, whether or not arising from transactions in the ordinary course of business; (B) neither the Company nor any of the Subsidiaries has sustained any material loss or interference with its assets, businesses or properties (whether owned, leased or licensed) from fire, explosion, earthquake, flood or other calamity, whether or not covered by insurance, or from any labor dispute or any court or legislative or other governmental action, order or decree; and (C) since the date of the latest balance sheet included in the Registration Statement and the Prospectus, except as reflected therein, neither the Company nor any of the Subsidiaries has (x) issued any securities (other than options or shares issued pursuant to exercise of employee stock options or warrants described in the Registration Statement and Prospectus) or incurred any liability or obligation, direct or contingent, for borrowed money, except such liabilities or obligations incurred in the ordinary course of business, (y) entered into any transaction not in the ordinary course of business or (z) declared or paid any dividend or made any distribution on any shares of its stock or redeemed, purchased or otherwise acquired or agreed to redeem, purchase or otherwise acquire any shares of its stock. (x) There is no material document or contract of a character required to be described in the Registration Statement or Prospectus or to be filed as an exhibit to the Registration Statement which is not described or filed as required. Each agreement listed in the Exhibits to the Registration Statement is in full force and effect or has terminated in accordance with its terms or by amendment and such amendment has been filed as an Exhibit to the Registration Statement or has otherwise been provided to the Representatives and, if not so terminated, is valid and enforceable in all material respects by and against the Company or the Subsidiaries, as the case may be, in accordance with its terms, assuming the due authorization, execution and delivery thereof by each of the other parties thereto, except as the enforceability thereof may be limited by (i) bankruptcy, insolvency, reorganization, moratorium or other similar laws affecting the enforcement of creditors' rights generally and (ii) indemnification provisions under Federal and state securities laws; and that the remedy of specific forms of equitable relief may be subject to equitable defenses and the discretion of the court before which any such action may be brought. Neither the Company, the (xi) Neither the Company nor the Subsidiaries is in violation of any term or provision of their respective Certificate of Incorporation and By-laws, in each case as amended to the date hereof, or other governing documents, or of any franchise, license, permit, judgment, decree, order, statute, rule or regulation, where the consequences of such violation would have a Material Adverse Effect. Except as described in the Registration Statement or Prospectus, neither the Company nor any of the Subsidiaries intends to amend its Certificate of Incorporation and By-laws. (xii) Neither the execution, delivery and performance of this Agreement by the Company or the Subsidiaries nor the consummation of any of the transactions contemplated hereby (including, without limitation, the issuance and sale by the Company of the Shares) will give rise to a right to terminate or accelerate the due date of any payment due under, or conflict with or result in the breach of any term or provision of, or constitute a default (or an event which with notice or lapse of time or both would constitute a default) under, or require any consent or waiver under, or result in the execution or imposition of any lien, charge or encumbrance upon any properties or assets of the Company or any of the Subsidiaries pursuant to the terms of, any indenture, mortgage, deed of trust or other agreement or instrument to which the Company or any of the Subsidiaries is a party or by which it or any of its properties or businesses are bound, or any franchise, license, permit, judgment, decree, order, statute, rule or regulation applicable to the Company or any of the Subsidiaries or violate any provision of the Certificate of Incorporation and By-laws of the Company or any of the Subsidiaries, except for such consents or waivers which have already been obtained and are in full force and effect or as would not have a Material Adverse Effect. No consent, approval, authorization, order, registration or qualification of or with any United States court or governmental agency or body is required for the issue and sale of the Shares or the consummation of the other transactions contemplated by this Agreement, which have not been obtained prior to the date hereof, except the registration under the Securities Act of the Shares, and such consents, approvals, authorizations, registrations or qualifications as may be required under state securities or Blue Sky laws -9- 10 in connection with the purchase and distribution of the Shares by the Underwriters. (xiii) The authorized, issued and outstanding capital stock of the Company and the capital stock reserved or committed for issuance is as set forth under the caption "Capitalization" in the Prospectus. All of the outstanding shares of Stock have been duly and validly issued and are fully paid and nonassessable, none of them was issued in violation of any preemptive or other similar right and, to the Company's knowledge, since 1991, none of them were issued in violation of any Federal or state securities laws. The Shares, when issued and sold pursuant to this Agreement, will be duly and validly issued, fully paid and nonassessable, none of them will be issued in violation of any preemptive or other similar right, any contractual right, including, without limitation, rights of first refusal, and, since 1991, none of them were issued in violation of any (subject to compliance with Section 1(c) hereof), Federal or state securities laws. Except as disclosed in the Registration Statement and the Prospectus, there is no outstanding option, warrant or other right calling for the issuance of, and there is no commitment, plan or arrangement to issue, any shares of Common Stock of the Company or any security convertible into, or exercisable or exchangeable for, such shares of Stock. The shares of Stock conform in all material respects to all statements in relation thereto contained in the Registration Statement and the Prospectus. The Company has a sufficient number of authorized but unissued shares of Stock to enable the Company to issue, without further stockholder action, or approve all the Shares to be sold by the Company. (xiv) As of the date hereof, and as of each Closing Date, all of the outstanding shares of capital stock of the Subsidiaries are duly and validly authorized and issued, are fully paid and nonassessable and are and will be owned by the Company and there is and will be no outstanding option, warrant or other right calling for the issuance of, and no commitment, plan or arrangement to issue any share of capital stock of the Subsidiaries or any security convertible or exchangeable or exercisable for capital stock of the Subsidiaries, except as otherwise described in the Registration Statement and Prospectus. (xv) Except as set forth in the Registration Statement and Prospectus, no holder of any security of the Company has the right to have any security owned by such holder included in the Registration Statement or to demand registration of any security owned by such holder during the period ending 90 days after the date of this Agreement. Each Selling Stockholder and each director and executive officer of the Company has delivered todeclared

Appears in 1 contract

Sources: Underwriting Agreement (Town Sports International Holdings Inc)

Appears in 1 contract

Sources: Underwriting Agreement (Chicago Bridge & Iron Co N V)

Representations and Warranties of the Company and the Selling Stockholders. ~~(a)~~ A. The Company hereby represents and warrants to to, and covenants with, each Underwriter as follows: (ia) ~~On the Effective Date, the Registration Statement complied,~~ The Company has prepared and ~~on the date of the Prospectus, on the date any post-effective amendment to the Registration Statement shall become effective, on the date any supplement or amendment to the Prospectus is~~ filed with the Securities and Exchange Commission (the “Commission”) a registration statement on Form F-3 (File No. 333-162183), which contains a form of prospectus to be used in connection with the public offering and ~~on each Closing Date~~sale of the Shares. Such registration statement, as amended, including all material then incorporated by reference therein, the ~~Registration Statement~~ financial statements, exhibits and ~~the Prospectus (and any amendment thereof or supplement~~ schedules thereto~~) will comply~~, in ~~all material respects, with~~ the ~~applicable provisions of~~ form in which it was declared effective by the Commission under the Securities Act and the Rules; (ii) The documents that are incorporated by reference in the preliminary prospectus and the Prospectus or from which information is so incorporated by reference, when they became effective or were filed with the Commission, as the case may be, complied in all material respects with the requirements of ~~the Securities Act or the Securities Exchange Act of 1934, as amended (the "Exchange Act"), as applicable,~~ 1933 and the rules and regulations promulgated thereunder (collectively, the “Securities Act”), including any required information deemed to be a part thereof at the time of ~~the Commission promulgated~~ effectiveness pursuant to Rule 430A or 430C under the Securities Act ~~and~~ is called the ~~Exchange Act, as applicable, except as amended and superseded by statements made in the~~ “Registration Statement~~; and any documents so~~ ”. Any registration statement filed ~~and incorporated~~ by ~~reference subsequent~~ the Company pursuant to the Effective Date shall, when they are filed with the Commission, conform in all material respects with the requirements of the Securities Act or the Exchange Act, as applicable, and the rules and regulations of the Commission promulgated Rule 462(b) under the Securities Act is called the “Rule 462(b) Registration Statement”, and from and after the ~~Exchange Act, as applicable. (iii) The consolidated financial statements~~ date and time of filing of the ~~Company (~~Rule 462(b) Registration Statement, the term “Registration Statement” shall include the Rule 462(b) Registration Statement. Any preliminary prospectus, including all ~~notes and schedules thereto)~~ material then incorporated by reference therein, included in the Registration Statement is hereinafter called a “preliminary prospectus.” The term “Prospectus” shall mean the final prospectus relating to the Shares that is first filed pursuant to Rule 424(b) after the date and ~~Prospectus present fairly~~ time that this Agreement is executed and delivered by the financial position, the results of operations and cash flows and the stockholders' equity and the other information purported to be shown therein of the Company and its subsidiaries, listed on Schedule III parties hereto (the ~~"Subsidiaries"), at the respective dates and for the respective (iv~~“Execution Time”) KPMG Peat Marwick LLP, whose report is filed with the Commission as a part of the Registration Statement, is and, during the periods covered by its reports, was independent public accountants as required by the Securities Act and the Rules. (v) The Company has been duly incorporated and is a validly existing corporation under the laws of the State of Delaware, and the Subsidiaries have been duly incorporated and are validly existing corporations under the laws of their respective jurisdictions. Other than the Subsidiaries, the Company has no subsidiaries and does not control, directly or indirectly, any corporation, partnership, joint venture, association or other business organization, except as described in the Registration Statement and the Prospectus. Each of the Company and the Subsidiaries is duly qualified and in good standing as a foreign corporation in each jurisdiction in which the character or location of its assets or properties (owned, leased or licensed) or the nature of its business makes such qualification necessary except for such jurisdictions where the failure to so qualify would not have a material adverse effect on the assets or properties, business, results of operations or condition (financial or otherwise) of the Company and the Subsidiaries, taken as a whole (a "Material Adverse Effect"). Except as disclosed in the Registration Statement and the Prospectus, neither the Company nor the Subsidiaries own, lease or license any material asset or property or conduct any material business outside the United States of America. Each of the Company and the Subsidiaries have all requisite corporate power and authority, and all necessary authorizations, approvals, consents, orders, licenses, certificates and permits of and from all governmental or regulatory bodies or any other person or entity, to own, lease and license their assets and properties and conduct their businesses as now being conducted and as described in the Registration Statement and the Prospectus except for such authorizations, approvals, consents, orders, licenses, certificates and permits the failure to so obtain would not have a Material Adverse Effect; no such authorization, approval, consent, order, license, certificate or permit contains a materially burdensome restriction other than as disclosed in the Registration Statement and the Prospectus; and the Company has all such corporate power and authority, and such authorizations, approvals, consents, orders, licenses, certificates and permits to enter into, deliver and perform this Agreement and to issue and (vi) The Company and the Subsidiaries own or possess adequate and enforceable rights to use all patents, trademarks, trademark applications, trade names, service marks, copyrights, copyright applications, licenses, know-how and other similar rights and proprietary knowledge (collectively, "Intangibles") material to or necessary for the conduct of their business as described in the Registration Statement and the Prospectus. Except as disclosed in the Registration Statement and the Prospectus, neither the Company nor any of the Subsidiaries have received any notice of, and to their knowledge are not aware of, any infringement of or conflict with asserted rights of others with respect to any Intangibles which, singly or in the aggregateor, if no filing pursuant to Rule 424(b) is required, shall mean the ~~subject~~ form of an unfavorable decision, ruling or finding, could be reasonably expected to have a Material Adverse Effect, and neither the Company nor the Subsidiaries know of any reasonable basis therefor. Except as disclosed in the Registration Statement and the Prospectus, final prospectus relating to the knowledge of the Company, no Intangibles of the Company or the Subsidiaries are in dispute or are in any conflict with the right of any other person or entity and the Company and each of the Subsidiaries (A) has or will have the right (subject to applicable agreements, which agreements provide for use to the extent necessary and desirable for the conduct of its business as currently conducted and as proposed to be conducted) to use, free and clear of all liens, charges, claims, encumbrances, pledges, security interests, defects, restrictions or equities of any kind whatsoever all licenses and rights to the Intangibles used in the conduct of their business as now conducted or proposed to be conducted without infringing upon or otherwise acting adversely to the right or claimed right of any other person and (B) is not or will not become, as the case may be, obligated or in any way liable for any payment by way of royalties, fees or otherwise and to any owner or licensee of, or other claimant to, any Intangibles with respect to the use thereof or in connection with the conduct of their business or otherwise, except in each case as disclosed in the Prospectus and except for any such payments, claims, uses, liens, charges, encumbrances, pledges, security interests, defects, restrictions and equities which would not have a Material Adverse Effect. (vii) The Company and the Subsidiaries have good and marketable title to each of the items of personal property which are reflected in the financial statements referred to in Section 4(a)(ii) or are referred to in the Registration Statement and the Prospectus as being owned by them and valid and enforceable leasehold interests in each of the items of real and personal property which are referred to in the Registration Statement and the Prospectus as being leased by them, in each case free and clear of all liens, encumbrances, claims, security interests and defects, other than those described in the Registration Statement and the Prospectus and those which do not and will not have a Material Adverse Effect. (viii) Except as described in the Registration Statement and the Prospectus, there is no litigation or governmental or other proceeding or investigation before any court or before or by any public body or board pending or, to the Company's knowledge, threatened (and the Company does not know of any reasonable basis therefor) against, or involving the assets, properties or business of, the Company or the Subsidiaries which, if adversely determined, could be reasonably expected to have a Material Adverse Effect. (ix) Subsequent to the respective dates as of which information is given in the Registration Statement and the Prospectus, except as described therein, (A) there has not been any material adverse change in the assets or properties, business, results of operations, prospects or condition (financial or otherwise) of the Company or the Subsidiaries taken as a whole, whether or not arising from transactions in the ordinary course of business; (B) neither the Company nor any of the Subsidiaries has sustained any material loss or interference with its assets, businesses or properties (whether owned, leased or licensed) from fire, explosion, earthquake, flood or other calamity, whether or not covered by insurance, or from any labor dispute or any court or legislative or other governmental action, order or decree; and (C) since the date of the latest balance sheet Shares included in the Registration Statement ~~and~~ at the effective date, in each case, including all material then incorporated by reference therein. All references in this Agreement to the Registration Statement, the Rule 462(b) Registration Statement, a preliminary prospectus, the Prospectus, ~~except as reflected therein, neither the Company nor~~ or any amendments or supplements to any of the ~~Subsidiaries has (x) issued~~ foregoing, shall include any ~~securities (other than options or shares issued~~ copy thereof filed with the Commission pursuant to ~~exercise of employee stock options or warrants described in the Registration Statement~~ its Interactive Data Electronic Applications/Electronic Data Gathering, Analysis and ~~Prospectus) or incurred any liability or obligation, direct or contingent, for borrowed money, except such liabilities or obligations incurred in the ordinary course of business,~~ Retrieval System (y) entered into any transaction not in the ordinary course of business or (z) declared or paid any dividend or made any distribution on any shares of its stock or redeemed, purchased or otherwise acquired or agreed to redeem, purchase or otherwise acquire any shares of its stock“IDEA/▇▇▇▇▇”). (x) There is no material document or contract of a character required to be described in the Registration Statement or Prospectus or to be filed as an exhibit to the Registration Statement which is not described or filed as required. Each agreement listed in the Exhibits to the Registration Statement is in full force and effect or has terminated in accordance with its terms or by amendment and such amendment has been filed as an Exhibit to the Registration Statement or has otherwise been provided to the Representatives and, if not so terminated, is valid and enforceable in all material respects by and against the Company or the Subsidiaries, as the case may be, in accordance with its terms, assuming the due authorization, execution and delivery thereof by each of the other parties thereto, except as the enforceability thereof may be limited by (i) bankruptcy, insolvency, reorganization, moratorium or other similar laws affecting the enforcement of creditors' rights generally and (ii) indemnification provisions under Federal and state securities laws; and that the remedy of specific forms of equitable relief may be subject to equitable defenses and the discretion of the court before which any such action may be brought. Neither the Company, the (xi) Neither the Company nor the Subsidiaries is in violation of any term or provision of their respective Certificate of Incorporation and By-laws, in each case as amended to the date hereof, or other governing documents, or of any franchise, license, permit, judgment, decree, order, statute, rule or regulation, where the consequences of such violation would have a Material Adverse Effect. Except as described in the Registration Statement or Prospectus, neither the Company nor any of the Subsidiaries intends to amend its Certificate of Incorporation and By-laws. (xii) Neither the execution, delivery and performance of this Agreement by the Company or the Subsidiaries nor the consummation of any of the transactions contemplated hereby (including, without limitation, the issuance and sale by the Company of the Shares) will give rise to a right to terminate or accelerate the due date of any payment due under, or conflict with or result in the breach of any term or provision of, or constitute a default (or an event which with notice or lapse of time or both would constitute a default) under, or require any consent or waiver under, or result in the execution or imposition of any lien, charge or encumbrance upon any properties or assets of the Company or any of the Subsidiaries pursuant to the terms of, any indenture, mortgage, deed of trust or other agreement or instrument to which the Company or any of the Subsidiaries is a party or by which it or any of its properties or businesses are bound, or any franchise, license, permit, judgment, decree, order, statute, rule or regulation applicable to the Company or any of the Subsidiaries or violate any provision of the Certificate of Incorporation and By-laws of the Company or any of the Subsidiaries, except for such consents or waivers which have already been obtained and are in full force and effect or as would not have a Material Adverse Effect. No consent, approval, authorization, order, registration or qualification of or with any United States court or governmental agency or body is required for the issue and sale of the Shares or the consummation of the other transactions contemplated by this Agreement, which have not been obtained prior to the date hereof, except the registration under the Securities Act of the Shares, and such consents, approvals, authorizations, registrations or qualifications as may be required under state securities or Blue Sky laws -9- 10 in connection with the purchase and distribution of the Shares by the Underwriters. (xiii) The authorized, issued and outstanding capital stock of the Company and the capital stock reserved or committed for issuance is as set forth under the caption "Capitalization" in the Prospectus. All of the outstanding shares of Stock have been duly and validly issued and are fully paid and nonassessable, none of them was issued in violation of any preemptive or other similar right and, to the Company's knowledge, since 1991, none of them were issued in violation of any Federal or state securities laws. The Shares, when issued and sold pursuant to this Agreement, will be duly and validly issued, fully paid and nonassessable, none of them will be issued in violation of any preemptive or other similar right, any contractual right, including, without limitation, rights of first refusal, and, since 1991, none of them were issued in violation of any (subject to compliance with Section 1(c) hereof), Federal or state securities laws. Except as disclosed in the Registration Statement and the Prospectus, there is no outstanding option, warrant or other right calling for the issuance of, and there is no commitment, plan or arrangement to issue, any shares of Common Stock of the Company or any security convertible into, or exercisable or exchangeable for, such shares of Stock. The shares of Stock conform in all material respects to all statements in relation thereto contained in the Registration Statement and the Prospectus. The Company has a sufficient number of authorized but unissued shares of Stock to enable the Company to issue, without further stockholder action, or approve all the Shares to be sold by the Company. (xiv) As of the date hereof, and as of each Closing Date, all of the outstanding shares of capital stock of the Subsidiaries are duly and validly authorized and issued, are fully paid and nonassessable and are and will be owned by the Company and there is and will be no outstanding option, warrant or other right calling for the issuance of, and no commitment, plan or arrangement to issue any share of capital stock of the Subsidiaries or any security convertible or exchangeable or exercisable for capital stock of the Subsidiaries, except as otherwise described in the Registration Statement and Prospectus. (xv) Except as set forth in the Registration Statement and Prospectus, no holder of any security of the Company has the right to have any security owned by such holder included in the Registration Statement or to demand registration of any security owned by such holder during the period ending 90 days after the date of this Agreement. Each Selling Stockholder and each director and executive officer of the Company has delivered to

Appears in 1 contract

Sources: Underwriting Agreement (Eurand N.V.)

Appears in 1 contract

Sources: Underwriting Agreement (Beyond Com Corp)

Appears in 1 contract

Sources: Underwriting Agreement (Radio One Inc)

Representations and Warranties of the Company and the Selling Stockholders. (a) The Company ~~hereby~~ represents and warrants ~~to each Underwriter as follows~~to, and agrees with, the several Underwriters that: (i) On An “automatic shelf registration statement” as defined under Rule 405 under the ~~Effective Date~~Securities Act of 1933, as amended (the ~~Registration Statement complied~~“Act”), on Form S–3 (File No. 333-[ ● ]) in respect of the Offered Securities has been filed with the Securities and Exchange Commission (the “Commission”) not earlier than three years prior to the date hereof; such registration statement, and any post-effective amendment thereto, if any, each in the form heretofore delivered to you became effective upon filing with the Commission; and no stop order suspending the effectiveness of such registration statement or any part thereof has been issued and no proceeding for that purpose has been initiated or, to the knowledge of the Company, threatened by the Commission, and no notice of objection of the Commission to the use of such registration statement or any post-effective amendment thereto pursuant to Rule 401(g)(2) under the Act has been received by the Company; the base prospectus filed as part of such registration statement, in the form in which it has most recently been filed with the Commission on or prior to the date of this Agreement related to the Offered Securities, is hereinafter called the “Basic Prospectus”; the Basic Prospectus, on as supplemented by any preliminary prospectus (including any preliminary prospectus supplement) relating to the Offered Securities filed with the Commission pursuant to Rule 424(b) of the rules and regulations of the Commission under the Act is hereinafter called a “Preliminary Prospectus”; the various parts of such registration statement, including all exhibits thereto and including any prospectus supplement relating to the Offered Securities that is filed with the Commission and deemed by virtue of Rule 430B under the Act to be part of such registration statement, each as amended at the time such part of the registration statement became effective, are hereinafter collectively called the “Registration Statement”; the Basic Prospectus, as amended and supplemented by any preliminary prospectus supplement relating to the Offered Securities immediately prior to the Applicable Time (as defined in Section 2(a)(iii) hereof), is hereinafter called the “Pricing Prospectus”; the Basic Prospectus, as supplemented by the final prospectus relating to the Offered Securities filed with the Commission pursuant to Rule 424(b) under the Act, is hereinafter called the “Prospectus”; any reference herein to the Basic Prospectus, the Pricing Prospectus, any Preliminary Prospectus or the Prospectus shall be deemed to refer to and include the documents incorporated by reference therein pursuant to Item 12 of Form S-3 under the Act, as of the date of such prospectus; any reference to any amendment or supplement to the Basic Prospectus, any Preliminary Prospectus or the Prospectus shall be deemed to refer to and include any post-effective amendment to the Registration ~~Statement shall become effective~~Statement, ~~on the date~~ any prospectus supplement ~~or amendment~~ relating to the ~~Prospectus is~~ Offered Securities filed with the Commission pursuant to Rule 424(b) under the Act and on any documents filed under the Securities Exchange Act of 1934, as amended (the “Exchange Act”), and incorporated therein, in each ~~Closing Date~~case after the date of the Basic Prospectus, such Preliminary Prospectus or the Prospectus, as the case may be; any reference to any amendment to the Registration Statement shall be deemed to refer to and include any annual report of the ~~Prospectus (~~Company filed pursuant to Sections 13(a) or 15(d) of the Exchange Act after the effective date of the Registration Statement that is incorporated by reference in the Registration Statement; and any ~~amendment thereof or supplement thereto) will comply,~~ “issuer free writing prospectus” as defined in ~~all material respects, with~~ Rule 433 under the ~~applicable provisions of~~ Act relating to the Offered Securities ~~Act and the Rules~~is hereinafter called an “Issuer Free Writing Prospectus”; (ii) ~~The documents~~ No order preventing or suspending the use of any Preliminary Prospectus or any Issuer Free Writing Prospectus has been issued by the Commission, and each Preliminary Prospectus, at the time of filing thereof, conformed in all material respects to the requirements of the Act and the rules and regulations of the Commission thereunder, and did not contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading; provided, however, that ~~are~~ this representation and warranty shall not apply to any statements or omissions made in reliance upon and in conformity with information furnished in writing to the Company by an Underwriter through the Representatives expressly for use therein; (iii) For the purposes of this Agreement, the “Applicable Time” is [ ● ] p.m. (Eastern time) on the date of this Agreement; the Pricing Prospectus, as supplemented by the information listed on Schedule C(2) hereto, taken together (collectively, the “Pricing Disclosure Package”), as of the Applicable Time, did not include any untrue statement of a material fact or omit 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; and each Issuer Free Writing Prospectus listed on Schedule C(1) hereto does not conflict with the information contained or incorporated by reference in the ~~preliminary prospectus~~ Registration Statement, the Pricing Prospectus or the Prospectus and each such Issuer Free Writing Prospectus, as supplemented by and taken together with the Pricing Disclosure Package, as of the Applicable Time, did not include any untrue statement of a material fact or omit 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; provided, however, that this representation and warranty shall not apply to statements or omissions made in reliance upon and in conformity with information furnished in writing to the Company by an Underwriter through the Representatives expressly for use therein; (iv) The documents incorporated by reference in the Pricing Prospectus and the ~~Prospectus or from which information is so incorporated by reference~~Prospectus, when they became effective or were filed with the Commission, as the case may be, ~~complied~~ conformed in all material respects ~~with~~ to the requirements of the Securities Act or the Securities Exchange Act of 1934, as amended (the "Exchange Act"), as applicable, and the rules and regulations of the Commission promulgated under the Securities Act and the Exchange Act, as applicable, except as amended and superseded by statements made in the Registration Statement; and any documents so filed and incorporated by reference subsequent to the Effective Date shall, when they are filed with the Commission, conform in all material respects with the requirements of the Securities Act or the Exchange Act, as applicable, and the rules and regulations of the Commission ~~promulgated under~~ thereunder, and none of such documents contained an untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary to make the ~~Securities~~ statements therein, in light of the circumstances in which they were made, not misleading; and any further documents so filed and incorporated by reference in the Prospectus or any further amendment or supplement thereto, when such documents become effective or are filed with the Commission, as the case may be, will conform in all material respects to the requirements of the Act ~~and~~ or the Exchange Act, as applicable~~. (iii) The consolidated financial statements~~ , and the rules and regulations of the ~~Company (including all notes~~ Commission thereunder and ~~schedules thereto) included in the Registration Statement and Prospectus present fairly the financial position, the results~~ will not contain an untrue statement of ~~operations and cash flows and the stockholders' equity and the other information purported~~ a material fact or omit to state a material fact required to be ~~shown~~ stated therein of or necessary to make the statements therein not misleading; provided, however, that this representation and warranty shall not apply to any statements or omissions made in reliance upon and in conformity with information furnished in writing to the Company by an Underwriter through the Representatives expressly for use therein; and ~~its subsidiaries, listed on Schedule III hereto (the "Subsidiaries"), at the respective dates and for the respective (iv) KPMG Peat Marwick LLP, whose report is~~ no such documents were filed with the Commission since the Commission’s close of business on the business day immediately prior to the date of this Agreement and prior to the execution of this Agreement, except as ~~a part of the Registration Statement, is and, during the periods covered by its reports, was independent public accountants as required by the Securities Act and the Rules.~~set forth on Schedule C(1) hereto; (v) The Registration Statement conforms, and the Prospectus and any further amendments or supplements to the Registration Statement and the Prospectus will conform, in all material respects to the applicable requirements of the Act and the rules and regulations of the Commission thereunder and do not and will not, as of the applicable effective date as to each part of the Registration Statement and as of the applicable filing date as to the Prospectus and any amendment or supplement thereto, contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading; provided, however, that this representation and warranty shall not apply to any statements or omissions made in reliance upon and in conformity with information furnished in writing to the Company by an Underwriter through the Representatives expressly for use therein; (vi) The Company (i) has been duly incorporated and is a validly existing as a corporation in good standing under the laws of the State of Delaware, (ii) has corporate power and authority to own its properties and conduct its business as described in the ~~Subsidiaries have~~ Pricing Prospectus and (iii) has been duly ~~incorporated~~ qualified as a foreign corporation for the transaction of business and ~~are validly existing corporations~~ is in good standing under the laws of ~~their respective jurisdictions. Other than~~ each other jurisdiction in which it owns or leases properties or conducts any business so as to require such qualification, except, in the ~~Subsidiaries~~case of clauses (ii) and (iii), where the failure to have such power or authority or to be so qualified or in good standing would not, individually or in the aggregate, reasonably be expected to have a material adverse effect on the condition (financial or otherwise), business, material properties, management or results of operations of the Company ~~has no~~ and its subsidiaries ~~and~~ taken as a whole (a “Material Adverse Effect”); the Company does not own or control, directly or indirectly, any corporation, limited liability company, limited partnership~~, joint venture~~, association or other ~~business organization, except as described in~~ entity other than the ~~Registration Statement~~ subsidiaries listed on Schedule D to this Agreement; (vii) Schedule D to this Agreement includes a true and ~~the Prospectus. Each~~ complete list of each “significant subsidiary” of the Company (as such term is defined in Rule 1-02 of Regulation S-X) (each, a “Subsidiary” and collectively, the ~~Subsidiaries~~ “Subsidiaries”), including the jurisdiction of incorporation or formation of such Subsidiary; each Subsidiary (i) has been duly organized and is ~~duly qualified and~~ validly existing as a corporation or limited liability company, as applicable, in good standing ~~as a foreign corporation in each jurisdiction in which~~ under the ~~character or location~~ laws of its ~~assets~~ jurisdiction of incorporation or ~~properties~~ organization, (~~owned, leased or licensed~~ii) or the nature of its business makes such qualification necessary except for such jurisdictions where the failure to so qualify would not have a material adverse effect on the assets or properties, business, results of operations or condition (financial or otherwise) of the Company and the Subsidiaries, taken as a whole (a "Material Adverse Effect"). Except as disclosed in the Registration Statement and the Prospectus, neither the Company nor the Subsidiaries own, lease or license any material asset or property or conduct any material business outside the United States of America. Each of the Company and the Subsidiaries have all requisite corporate has power and ~~authority, and all necessary authorizations, approvals, consents, orders, licenses, certificates and permits of and from all governmental or regulatory bodies or any other person or entity,~~ authority to ~~own, lease and license their assets and~~ own its properties and conduct their businesses as now being conducted and as described in the Registration Statement and the Prospectus except for such authorizations, approvals, consents, orders, licenses, certificates and permits the failure to so obtain would not have a Material Adverse Effect; no such authorization, approval, consent, order, license, certificate or permit contains a materially burdensome restriction other than as disclosed in the Registration Statement and the Prospectus; and the Company has all such corporate power and authority, and such authorizations, approvals, consents, orders, licenses, certificates and permits to enter into, deliver and perform this Agreement and to issue and (vi) The Company and the Subsidiaries own or possess adequate and enforceable rights to use all patents, trademarks, trademark applications, trade names, service marks, copyrights, copyright applications, licenses, know-how and other similar rights and proprietary knowledge (collectively, "Intangibles") material to or necessary for the conduct of their its business as described in the ~~Registration Statement~~ Pricing Prospectus, and (iii) has been duly qualified as a foreign corporation or other entity, as the ~~Prospectus. Except~~ case may be, for the transaction of business and is in good standing under the laws of each other jurisdiction in which it owns or leases properties or conducts any business so as ~~disclosed~~ to require such qualification, except, in the ~~Registration Statement~~ case of clauses (ii) and (iii), where the ~~Prospectus~~failure to have such power or authority or to be so qualified or in good standing would not, neither the Company nor any of the Subsidiaries have received any notice of, and to their knowledge are not aware of, any infringement of or conflict with asserted rights of others with respect to any Intangibles which, singly individually or in the aggregate, ~~if the subject of an unfavorable decision, ruling or finding, could~~ reasonably be ~~reasonably~~ expected to have a Material Adverse Effect, and neither the Company nor the Subsidiaries know of any reasonable basis therefor. Except as disclosed in the Registration Statement and the Prospectus, to the knowledge of the Company, no Intangibles of the Company or the Subsidiaries are in dispute or are in any conflict with the right of any other person or entity and the Company and each of the Subsidiaries (A) has or will have the right (subject to applicable agreements, which agreements provide for use to the extent necessary and desirable for the conduct of its business as currently conducted and as proposed to be conducted) to use, free and clear of all liens, charges, claims, encumbrances, pledges, security interests, defects, restrictions or equities of any kind whatsoever all licenses and rights to the Intangibles used in the conduct of their business as now conducted or proposed to be conducted without infringing upon or otherwise acting adversely to the right or claimed right of any other person and (B) is not or will not become, as the case may be, obligated or in any way liable for any payment by way of royalties, fees or otherwise and to any owner or licensee of, or other claimant to, any Intangibles with respect to the use thereof or in connection with the conduct of their business or otherwise, except in each case as disclosed in the Prospectus and except for any such payments, claims, uses, liens, charges, encumbrances, pledges, security interests, defects, restrictions and equities which would not have a Material Adverse Effect. (vii) The Company and the Subsidiaries have good and marketable title to each of the items of personal property which are reflected in the financial statements referred to in Section 4(a)(ii) or are referred to in the Registration Statement and the Prospectus as being owned by them and valid and enforceable leasehold interests in each of the items of real and personal property which are referred to in the Registration Statement and the Prospectus as being leased by them, in each case free and clear of all liens, encumbrances, claims, security interests and defects, other than those described in the Registration Statement and the Prospectus and those which do not and will not have a Material Adverse Effect.; (viii) Except as described in the Registration Statement and the Prospectus, there is no litigation or governmental or other proceeding or investigation before any court or before or by any public body or board pending or, to the Company's knowledge, threatened (and the Company does not know of any reasonable basis therefor) against, or involving the assets, properties or business of, the Company or the Subsidiaries which, if adversely determined, could be reasonably expected to have a Material Adverse Effect. (ix) Subsequent to Since the respective dates as of which information is given in the ~~Registration Statement and the~~ Pricing Prospectus, ~~except as described therein, (A)~~ there has not been any ~~material adverse~~ change in the ~~assets~~ capital stock or ~~properties~~material change in the long-term debt of the Company or any of its Subsidiaries, ~~business~~or any material adverse change, ~~results of operations~~or any development involving a prospective material adverse change, ~~prospects or~~ in the condition (financial or otherwise) ), business, material properties, management or results of operations of the Company ~~or the Subsidiaries~~ and its subsidiaries, taken as a whole, ~~whether~~ otherwise than as set forth or ~~not arising from transactions~~ contemplated in the ~~ordinary course of business~~Pricing Prospectus; ~~(B)~~ and neither the Company nor any of ~~the~~ its Subsidiaries has sustained since the date of the latest audited financial statements included or incorporated by reference in the Pricing Prospectus or the Prospectus any material loss or material interference with its ~~assets, businesses or properties (whether owned, leased or licensed)~~ business from fire, explosion~~, earthquake~~, flood or other calamity, whether or not covered by insurance, or from any labor dispute or ~~any~~ court or ~~legislative or other~~ governmental action, order or decree; , otherwise than as set forth or contemplated in the Pricing Prospectus; (ix) The Company and ~~(C) since the date of the latest balance sheet included~~ its Subsidiaries own in fee simple all real property identified in the Registration Statement as being owned by the Company or its Subsidiaries, as applicable, and the ~~Prospectus~~Company and its Subsidiaries have good and valid title to all personal property owned by them, in each case free and clear of all liens, encumbrances and defects except such as ~~reflected therein, neither the Company nor any of the Subsidiaries has (x) issued any securities (other than options or shares issued pursuant to exercise of employee stock options or warrants~~ are described in the ~~Registration Statement~~ Pricing Prospectus and ~~Prospectus)~~ except for minor defects in title that do not materially interfere with the Company and its Subsidiaries’ ability to conduct their business or ~~incurred any liability~~ to utilize such assets for their intended purposes and except where the failure to have such ownership or ~~obligation~~title could not reasonably be expected to have, ~~direct~~ individually or ~~contingent, for borrowed money, except such liabilities or obligations incurred~~ in the ~~ordinary course of business~~aggregate, a Material Adverse Effect; and any real property and buildings held under lease by the Company and its Subsidiaries are held by them under valid, subsisting and enforceable leases (y) entered into any transaction not in the ordinary course of business or (z) declared or paid any dividend or made any distribution on any shares of its stock or redeemed, purchased or otherwise acquired or agreed to redeem, purchase or otherwise acquire any shares of its stock. (x) There is no material document or contract of a character required to be described in the Registration Statement or Prospectus or to be filed as an exhibit subject to the Registration Statement which is not described or filed as required. Each agreement listed in the Exhibits to the Registration Statement is in full force and effect or has terminated in accordance with its terms or by amendment and such amendment has been filed as an Exhibit to the Registration Statement or has otherwise been provided to the Representatives and, if not so terminated, is valid and enforceable in all material respects by and against the Company or the Subsidiaries, as the case may be, in accordance with its terms, assuming the due authorization, execution and delivery thereof by each effects of ~~the other parties thereto, except as the enforceability thereof may be limited by~~ (iA) bankruptcy, insolvency, fraudulent conveyance, fraudulent transfer, reorganization, moratorium or other similar laws relating to or affecting the ~~enforcement~~ rights of ~~creditors' rights generally and~~ creditors generally; (iiB) ~~indemnification provisions under Federal and state securities laws; and that~~ the ~~remedy~~ application of ~~specific forms~~ general principles of equitable relief may be subject to equitable defenses and the discretion of the court before which any such action may be brought. Neither the Company, the (xi) Neither the Company nor the Subsidiaries is in violation of any term or provision of their respective Certificate of Incorporation and By-laws, in each case as amended to the date hereof, or other governing documents, or of any franchise, license, permit, judgment, decree, order, statute, rule or regulation, where the consequences of such violation would have a Material Adverse Effect. Except as described in the Registration Statement or Prospectus, neither the Company nor any of the Subsidiaries intends to amend its Certificate of Incorporation and By-laws. (xii) Neither the execution, delivery and performance of this Agreement by the Company or the Subsidiaries nor the consummation of any of the transactions contemplated hereby equity (including, without limitation, concepts of materiality, reasonableness, good faith and fair dealing, regardless of whether enforcement is considered in proceedings at law or in equity); and (C) applicable law and public policy with respect to rights to indemnity and contribution), except where the ~~issuance~~ invalidity or unenforceability of any such lease would not materially interfere with the Company and its Subsidiaries’ ability to conduct their business and except where the failure to have such leasehold title could not reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect; (x) The Company has an authorized capitalization as set forth in the Pricing Prospectus under the caption “Capitalization” and all of the issued shares of capital stock of the Company, including the Offered Securities to be sold by the Selling Stockholders, have been duly authorized and validly issued, are fully paid and non-assessable and conform to the description of the Securities contained or incorporated by reference in each of the Pricing Disclosure Package and the Prospectus; and all of the issued shares of capital stock or limited liability company interests, as applicable, of each subsidiary of the Company have been duly authorized and validly issued, are fully paid and non-assessable and (except for directors’ qualifying shares and except as otherwise set forth in the Pricing Prospectus) are owned directly or indirectly by the Company, free and clear of all liens, encumbrances, equities or claims; (xi) [Reserved]; (xii) The sale of the Offered Securities and the compliance by the Company with this Agreement and the consummation of the ~~Shares~~transactions herein contemplated will not (A) ~~will give rise to a right to terminate or accelerate the due date of any payment due under, or~~ conflict with or result in ~~the~~ a breach or violation of any ~~term~~ of the terms or ~~provision~~ provisions of, or constitute a default ~~(or an event which with notice or lapse of time or both would constitute a default)~~ under, or require any consent or waiver under, or result in the execution or imposition of any lien, charge or encumbrance upon any properties or assets of the Company or any of the Subsidiaries pursuant to the terms of, any indenture, mortgage, deed of ~~trust~~ trust, loan agreement, lease or other agreement or instrument to which the Company or any of ~~the~~ its Subsidiaries is a party or by which ~~it or any of its properties or businesses are bound, or any franchise, license, permit, judgment, decree, order, statute, rule or regulation applicable to~~ the Company or any of ~~the~~ its Subsidiaries is bound or ~~violate~~ to which any ~~provision~~ of the property or assets of the Company or any of its Subsidiaries is subject, (B) result in any violation of the provisions of the Amended and Restated Certificate of Incorporation of the Company (the “Certificate of Incorporation”) or Amended and Restated By-laws of the Company (the “By-laws”) or organizational documents of any of its Subsidiaries, or (C) result in any violation of any statute or any order, rule or regulation of any court or governmental agency or body having jurisdiction over the Company or any of its Subsidiaries or any of their properties, except, in the ~~Subsidiaries~~case of (A) and (C), ~~except for such consents or waivers which have already been obtained and are in full force and effect or~~ as would ~~not~~ not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect~~. No~~ ; and no consent, approval, authorization, order, registration or qualification of or with any ~~United States~~ such court or governmental agency or body is required for the ~~issue and~~ sale of the ~~Shares~~ Offered Securities or the consummation by the Company of the ~~other~~ transactions contemplated by this Agreement, which have not been obtained prior to the date hereof, except the registration under the Securities Act of the Shares, and such consents, approvals, authorizations, registrations or qualifications as may be required under state securities or Blue Sky laws -9- 10 in connection with the purchase and distribution of the Shares by the Underwriters. (xiii) The authorized, issued and outstanding capital stock of the Company and the capital stock reserved or committed for issuance is as set forth under the caption "Capitalization" in the Prospectus. All of the outstanding shares of Stock have been duly and validly issued and are fully paid and nonassessable, none of them was issued in violation of any preemptive or other similar right and, to the Company's knowledge, since 1991, none of them were issued in violation of any Federal or state securities laws. The Shares, when issued and sold pursuant to this Agreement, will be duly and validly issued, fully paid and nonassessable, none of them will be issued in violation of any preemptive or other similar right, any contractual right, including, without limitation, rights of first refusal, and, since 1991, none of them were issued in violation of any (subject to compliance with Section 1(c) hereof), Federal or state securities laws. Except as disclosed in the Registration Statement and the Prospectus, there is no outstanding option, warrant or other right calling for the issuance of, and there is no commitment, plan or arrangement to issue, any shares of Common Stock of the Company or any security convertible into, or exercisable or exchangeable for, such shares of Stock. The shares of Stock conform in all material respects to all statements in relation thereto contained in the Registration Statement and the Prospectus. The Company has a sufficient number of authorized but unissued shares of Stock to enable the Company to issue, without further stockholder action, or approve all the Shares to be sold by the Company. (xiv) As of the date hereof, and as of each Closing Date, all of the outstanding shares of capital stock of the Subsidiaries are duly and validly authorized and issued, are fully paid and nonassessable and are and will be owned by the Company and there is and will be no outstanding option, warrant or other right calling for the issuance of, and no commitment, plan or arrangement to issue any share of capital stock of the Subsidiaries or any security convertible or exchangeable or exercisable for capital stock of the Subsidiaries, except as otherwise described in the Registration Statement and Prospectus. (xv) Except as set forth in the Registration Statement and Prospectus, no holder of any security of the Company has the right to have any security owned by such holder included in the Registration Statement or to demand registration of any security owned by such holder during the period ending 90 days after the date of this Agreement. Each Selling Stockholder and each director and executive officer of the Company has delivered toAgreemen

Appears in 1 contract

Sources: Underwriting Agreement (Performance Food Group Co)

Appears in 1 contract

Sources: Underwriting Agreement (Interwoven Inc)

Representations and Warranties of the Company and the Selling Stockholders. (a) The Company ~~hereby~~ represents and warrants ~~to each Underwriter as follows~~to, and agrees with, the several Underwriters that: (i) On A registration statement (No. 333-110723) relating to the ~~Effective Date~~Offered Securities including a form of prospectus, has been filed with the Securities and Exchange Commission (the "Commission") and either (i) has been declared effective under the Securities Act of 1933 (the "Act") and is not proposed to be amended or (ii) is proposed to be amended by amendment or post-effective amendment. If such registration statement (the "initial registration statement") has been declared effective, either (i) an additional registration statement (the "additional registration statement") relating to the Offered Securities may have been filed with the Commission pursuant to Rule 462(b) ("Rule 462(b)") under the Act and, if so filed, has become effective upon filing pursuant to such Rule and the Offered Securities all have been duly registered under the Act pursuant to the initial registration statement and, if applicable, the ~~Registration Statement complied~~additional registration statement or (ii) such an additional registration statement is proposed to be filed with the Commission pursuant to Rule 462(b) and will become effective upon filing pursuant to such Rule and upon such filing the Offered Securities will all have been duly registered under the Act pursuant to the initial registration statement and such additional registration statement. If the Company does not propose to amend the initial registration statement or if an additional registration statement has been filed and the Company does not propose to amend it, and ~~on the date of the Prospectus, on the date~~ if any post-effective amendment to ~~the Registration Statement shall become effective, on the date any supplement or amendment to the Prospectus is~~ either such registration statement has been filed with the Commission prior to the execution and ~~on each Closing Date~~delivery of this Agreement, the ~~Registration Statement and~~ most recent amendment (if any) to each such registration statement has been declared effective by the ~~Prospectus~~ Commission or has become effective upon filing pursuant to Rule 462(c) (~~and any amendment thereof or supplement thereto~~"Rule 462(c)") ~~will comply~~under the Act or, in ~~all material respects, with~~ the ~~applicable provisions~~ case of the ~~Securities Act~~ additional registration statement, Rule 462(b). For purposes of this Agreement, "Effective Time" with respect to the initial registration statement or, if filed prior to the execution and delivery of this Agreement, the ~~Rules;~~ additional registration statement means (i) if the Company has advised the Representatives that it does not propose to amend such registration statement, the date and time as of which such registration statement, or the most recent post-effective amendment thereto (if any) filed prior to the execution and delivery of this Agreement, was declared effective by the Commission or has become effective upon filing pursuant to Rule 462(c), or (ii) ~~The documents~~ if the Company has advised the Representatives that ~~are incorporated~~ it proposes to file an amendment or post-effective amendment to such registration statement, the date and time as of which such registration statement, as amended by ~~reference in the preliminary prospectus and the Prospectus~~ such amendment or ~~from which information is so incorporated by reference, when they became~~ post-effective ~~or were filed with the Commission~~amendment, as the case may be, ~~complied~~ is declared effective by the Commission. If an additional registration statement has not been filed prior to the execution and delivery of this Agreement but the Company has advised the Representatives that it proposes to file one, "Effective Time" with respect to such additional registration statement means the date and time as of which such registration statement is filed and becomes effective pursuant to Rule 462(b). "Effective Date" with respect to the initial registration statement or the additional registration statement (if any) means the date of the Effective Time thereof. The initial registration statement, as amended at its Effective Time, including all information contained in the additional registration statement (if any) and deemed to be a part of the initial registration statement as of the Effective Time of the additional registration statement pursuant to the General Instructions of the Form on which it is filed and including all information (if any) deemed to be a part of the initial registration statement as of its Effective Time pursuant to Rule 430A(b) ("Rule 430A(b)") under the Act, is hereinafter referred to as the "Initial Registration Statement." The additional registration statement, as amended at its Effective Time, including the contents of the initial registration statement incorporated by reference therein and including all information (if any) deemed to be a part of the additional registration statement as of its Effective Time pursuant to Rule 430A(b), is hereinafter referred to as the "Additional Registration Statement." The Initial Registration Statement and the Additional Registration Statement are herein referred to collectively as the "Registration Statements" and individually as a "Registration Statement." The form of prospectus relating to the Offered Securities, as first filed with the Commission pursuant to and in accordance with Rule 424(b) ("Rule 424(b)") under the Act or (if no such filing is required) as included in a Registration Statement, is hereinafter referred to as the "Prospectus." No document has been or will be prepared or distributed in reliance on Rule 434 under the Act. (ii) If the Effective Time of the Initial Registration Statement is prior to the execution and delivery of this Agreement: (i) on the Effective Date of the Initial Registration Statement, the Initial Registration Statement conformed in all material respects ~~with~~ to the applicable requirements of the Act and the rules and regulations of the Commission ("Rules and Regulations") and did not include any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein not misleading, (ii) on the Effective Date of the Additional Registration Statement (if any), each Registration Statement conformed, or will conform, in all material respects to the applicable requirements of the Act and the Rules and Regulations and did not include, or will not include, any untrue statement of a material fact and did not omit, or will not omit, to state any material fact required to be stated therein or necessary to make the statements therein not misleading and (iii) on the date of this Agreement, the Initial Registration Statement and, if the Effective Time of the Additional Registration Statement is prior to the execution and delivery of this Agreement, the Additional Registration Statement each conforms, and at the time of filing of the Prospectus pursuant to Rule 424(b) or (if no such filing is required) at the Effective Date of the Additional Registration Statement in which the Prospectus is included, each Registration Statement and the Prospectus will conform, in all material respects to the applicable requirements of the Act and the Rules and Regulations, and neither of such documents includes, or will include, any untrue statement of a material fact or omits, or will omit, to state any material fact required to be stated therein or necessary to make the statements therein (with respect to the Prospectus, in light of the circumstances under which they were made) not misleading. If the Effective Time of the Initial Registration Statement is subsequent to the execution and delivery of this Agreement: on the Effective Date of the Initial Registration Statement, the Initial Registration Statement and the Prospectus will conform in all material respects to the applicable requirements of the Act and the Rules and Regulations, neither of such documents will include any untrue statement of a material fact or will omit to state any material fact required to be stated therein or necessary to make the statements therein (with respect to the Prospectus, in light of the circumstances under which they were made) not misleading, and no Additional Registration Statement has been or will be filed. The two preceding sentences do not apply to statements in or omissions from a Registration Statement or the Prospectus based upon written information furnished to the Company by any Underwriter through the Representatives specifically for use therein, it being understood and agreed that the only such information is that described as such in Section 7(b) of this Agreement. (iii) The Company has been duly incorporated and is an existing corporation in good standing under the laws of the State of Delaware, with corporate power and authority to own its properties and conduct its business as described in the Prospectus; and the Company is duly qualified to do business as a foreign corporation in good standing in all other jurisdictions in which its ownership or lease of property or the conduct of its business requires such qualification, except where the failure to be so qualified would not have a material adverse effect on the condition (financial or other), business, properties or results of operations of the Company and its subsidiaries taken as a whole (a "Material Adverse Effect"). (iv) Each subsidiary of the Company other than and (the "Material Subsidiaries") has been duly incorporated or organized and is an existing corporation or other business organization, as the case may be, in good standing (with respect to jurisdictions that recognize such concept) under the laws of the jurisdiction of its incorporation or organization, as the case may be, with power and authority (corporate and other) to own its properties and conduct its business as described in the Prospectus; and each Material Subsidiary is duly qualified to do business as a foreign corporation or other business organization, as the case may be, in good standing in all other jurisdictions in which its ownership or lease of property or the conduct of its business requires such qualification, except where the failure to be so qualified would not have a Material Adverse Effect; all of the issued and outstanding capital stock of each subsidiary of the Company has been duly authorized and validly issued and is fully paid and, with respect to such subsidiaries that are corporations, nonassessable; and except as described in the Prospectus or set forth on Schedule 2(a)(iv)(1) hereto, all of the capital stock of each subsidiary is owned by the Company, directly or through subsidiaries, free from liens, encumbrances and defects. None of the subsidiaries set forth on Schedule 2(a)(iv)(2) hereto is, either individually or collectively, a Significant Subsidiary as defined in Rule 1-02(w) of Regulation S-X, nor do they have operations other than de minimis operations that are immaterial to the Company. There are no outstanding options, warrants or rights to purchase or acquire any equity interests of any of the Company's subsidiaries. (v) The Offered Securities and all other outstanding shares of capital stock of the Company have been duly authorized; all outstanding shares of capital stock of the Company are, and, when the Offered Securities have been delivered and paid for in accordance with this Agreement on each Closing Date (as defined below), such Offered Securities will have been, validly issued, fully paid and nonassessable, have been, or will be, offered and sold in compliance with all applicable federal and state securities laws, and will conform to the description thereof contained in the Prospectus; and the stockholders of the Company have no preemptive rights with respect to the Securities (other than such rights which have been duly waived in a manner acceptable to the Representatives). Except as described in the Prospectus, there are no outstanding options, warrants, or other rights to subscribe for or to purchase, any securities or obligations convertible into, or any contracts or commitments to issue or sell, shares of the Company's capital stock or any such options, warrants, rights, convertible securities or obligations. (vi) The authorized, issued and outstanding capital stock of the Company as of December 31, 2003 is as set forth in the Prospectus under the column entitled "Actual" under the caption "Capitalization" and, after giving effect to the offering and sale of the Firm Securities and the Conversion of Convertible Securities (as defined in the Prospectus) as described in the Prospectus, will, on the First Closing Date (as defined below), be as set forth in the column entitled "Pro Forma As Adjusted" under the caption "Capitalization," and conforms in all material respects to the description thereof contained in the Prospectus under the caption "Description of Capital Stock." As of the date of this Agreement, since December 31, 2003, the Company has not issued any additional shares of its common stock, or securities convertible into or exchangeable for its common stock, other than shares of common stock issued to employees of Cherokee Europe SCA and options granted under the Company's 2002 Stock Option Plan to purchase shares of common stock. None of the outstanding shares of capital stock of the Company, or the shares to be outstanding on the Closing Date as set forth in the Prospectus under the caption "Capitalization," was issued or will be issued in violation of any preemptive or other similar rights. (vii) Except as disclosed in the Prospectus, there are no contracts, agreements or understandings between the Company and any person that would give rise to a valid claim against the Company or any Underwriter for a brokerage commission, finder's fee or other like payment in connection with the offering of the Offered Securities. (viii) There are no contracts, agreements or understandings between the Company and any person granting such person the right to require the Company to file a registration statement under the Act with respect to any securities of the Company owned or to be owned by such person other than pursuant to the terms of the Registration Rights Agreement dated as of February , 2004, by and among the Company and the securityholders party thereto, and the Stockholders' Agreement, dated as of November 27, 2002, by and among the Company and the securityholders party thereto (the "Stockholders Agreement"), or to require the Company to include such securities in the securities registered pursuant to a Registration Statement. (ix) The Offered Securities have been approved for listing on The Nasdaq Stock Market's National Market subject to notice of issuance. (x) No consent, approval, authorization, or order of, or filing with, any governmental agency or body or any court is required for the consummation of the transactions contemplated by this Agreement in connection with the issuance and sale of the Offered Securities by the Company, except such as have been obtained and made under the Act, the Securities Exchange Act of 1934, as amended (the "Exchange Act")) and such as may be required by the National Association of Securities Dealers, as applicable, and the rules and regulations of the Commission promulgated under the Securities Act and the Exchange Act, as applicable, except as amended and superseded by statements made in the Registration Statement; and any documents so filed and incorporated by reference subsequent to the Effective Date shall, when they are filed with the Commission, conform in all material respects with the requirements of the Securities Act or the Exchange Act, as applicable, and the rules and regulations of the Commission promulgated under the Securities Act and the Exchange Act, as applicable. (iii) The consolidated financial statements of the Company (including all notes and schedules thereto) included in the Registration Statement and Prospectus present fairly the financial position, the results of operations and cash flows and the stockholders' equity and the other information purported to be shown therein of the Company and its subsidiaries, listed on Schedule III hereto Inc. (the "Subsidiaries"), at the respective dates and for the respective (iv) KPMG Peat Marwick LLP, whose report is filed with the Commission as a part of the Registration Statement, is and, during the periods covered by its reports, was independent public accountants as required by the Securities Act and the Rules. (v) The Company has been duly incorporated and is a validly existing corporation under the laws of the State of Delaware, and the Subsidiaries have been duly incorporated and are validly existing corporations under the laws of their respective jurisdictions. Other than the Subsidiaries, the Company has no subsidiaries and does not control, directly or indirectly, any corporation, partnership, joint venture, association or other business organization, except as described in the Registration Statement and the Prospectus. Each of the Company and the Subsidiaries is duly qualified and in good standing as a foreign corporation in each jurisdiction in which the character or location of its assets or properties (owned, leased or licensed) or the nature of its business makes such qualification necessary except for such jurisdictions where the failure to so qualify would not have a material adverse effect on the assets or properties, business, results of operations or condition (financial or otherwise) of the Company and the Subsidiaries, taken as a whole (a "Material Adverse Effect"). Except as disclosed in the Registration Statement and the Prospectus, neither the Company nor the Subsidiaries own, lease or license any material asset or property or conduct any material business outside the United States of America. Each of the Company and the Subsidiaries have all requisite corporate power and authority, and all necessary authorizations, approvals, consents, orders, licenses, certificates and permits of and from all governmental or regulatory bodies or any other person or entity, to own, lease and license their assets and properties and conduct their businesses as now being conducted and as described in the Registration Statement and the Prospectus except for such authorizations, approvals, consents, orders, licenses, certificates and permits the failure to so obtain would not have a Material Adverse Effect; no such authorization, approval, consent, order, license, certificate or permit contains a materially burdensome restriction other than as disclosed in the Registration Statement and the Prospectus; and the Company has all such corporate power and authority, and such authorizations, approvals, consents, orders, licenses, certificates and permits to enter into, deliver and perform this Agreement and to issue and (vi) The Company and the Subsidiaries own or possess adequate and enforceable rights to use all patents, trademarks, trademark applications, trade names, service marks, copyrights, copyright applications, licenses, know-how and other similar rights and proprietary knowledge (collectively, "IntangiblesNASD") ~~material to or necessary for the conduct of their business as described in the Registration Statement~~ and the Prospectus. Except as disclosed in the Registration Statement and the Prospectus, neither the Company nor any of the Subsidiaries have received any notice of, and to their knowledge are not aware of, any infringement of or conflict with asserted rights of others with respect to any Intangibles which, singly or in the aggregate, if the subject of an unfavorable decision, ruling or finding, could be reasonably expected to have a Material Adverse Effect, and neither the Company nor the Subsidiaries know of any reasonable basis therefor. Except as disclosed in the Registration Statement and the Prospectus, to the knowledge of the Company, no Intangibles of the Company or the Subsidiaries are in dispute or are in any conflict with the right of any other person or entity and the Company and each of the Subsidiaries (A) has or will have the right (subject to applicable agreements, which agreements provide for use to the extent necessary and desirable for the conduct of its business as currently conducted and as proposed to be conducted) to use, free and clear of all liens, charges, claims, encumbrances, pledges, security interests, defects, restrictions or equities of any kind whatsoever all licenses and rights to the Intangibles used in the conduct of their business as now conducted or proposed to be conducted without infringing upon or otherwise acting adversely to the right or claimed right of any other person and (B) is not or will not become, as the case may be, obligated or in any way liable for any payment by way of royalties, fees or otherwise and to any owner or licensee of, or other claimant to, any Intangibles with respect to the use thereof or in connection with the conduct of their business or otherwise, except in each case as disclosed in the Prospectus and except for any such payments, claims, uses, liens, charges, encumbrances, pledges, security interests, defects, restrictions and equities which would not have a Material Adverse Effect. (vii) The Company and the Subsidiaries have good and marketable title to each of the items of personal property which are reflected in the financial statements referred to in Section 4(a)(ii) or are referred to in the Registration Statement and the Prospectus as being owned by them and valid and enforceable leasehold interests in each of the items of real and personal property which are referred to in the Registration Statement and the Prospectus as being leased by them, in each case free and clear of all liens, encumbrances, claims, security interests and defects, other than those described in the Registration Statement and the Prospectus and those which do not and will not have a Material Adverse Effect. (viii) Except as described in the Registration Statement and the Prospectus, there is no litigation or governmental or other proceeding or investigation before any court or before or by any public body or board pending or, to the Company's knowledge, threatened (and the Company does not know of any reasonable basis therefor) against, or involving the assets, properties or business of, the Company or the Subsidiaries which, if adversely determined, could be reasonably expected to have a Material Adverse Effect. (ix) Subsequent to the respective dates as of which information is given in the Registration Statement and the Prospectus, except as described therein, (A) there has not been any material adverse change in the assets or properties, business, results of operations, prospects or condition (financial or otherwise) of the Company or the Subsidiaries taken as a whole, whether or not arising from transactions in the ordinary course of business; (B) neither the Company nor any of the Subsidiaries has sustained any material loss or interference with its assets, businesses or properties (whether owned, leased or licensed) from fire, explosion, earthquake, flood or other calamity, whether or not covered by insurance, or from any labor dispute or any court or legislative or other governmental action, order or decree; and (C) since the date of the latest balance sheet included in the Registration Statement and the Prospectus, except as reflected therein, neither the Company nor any of the Subsidiaries has (x) issued any securities (other than options or shares issued pursuant to exercise of employee stock options or warrants described in the Registration Statement and Prospectus) or incurred any liability or obligation, direct or contingent, for borrowed money, except such liabilities or obligations incurred in the ordinary course of business, (y) entered into any transaction not in the ordinary course of business or (z) declared or paid any dividend or made any distribution on any shares of its stock or redeemed, purchased or otherwise acquired or agreed to redeem, purchase or otherwise acquire any shares of its stock. (x) There is no material document or contract of a character required to be described in the Registration Statement or Prospectus or to be filed as an exhibit to the Registration Statement which is not described or filed as required. Each agreement listed in the Exhibits to the Registration Statement is in full force and effect or has terminated in accordance with its terms or by amendment and such amendment has been filed as an Exhibit to the Registration Statement or has otherwise been provided to the Representatives and, if not so terminated, is valid and enforceable in all material respects by and against the Company or the Subsidiaries, as the case may be, in accordance with its terms, assuming the due authorization, execution and delivery thereof by each of the other parties thereto, except as the enforceability thereof may be limited by (i) bankruptcy, insolvency, reorganization, moratorium or other similar laws affecting the enforcement of creditors' rights generally and (ii) indemnification provisions under ~~Federal and~~ state securities laws~~; and that the remedy of specific forms of equitable relief may be subject to equitable defenses and the discretion of the court before which any such action may be brought. Neither the Company, the~~. (xi) Neither the Company nor the Subsidiaries is in violation of any term or provision of their respective Certificate of Incorporation and By-laws, in each case as amended to the date hereof, or other governing documents, or of any franchise, license, permit, judgment, decree, order, statute, rule or regulation, where the consequences of such violation would have a Material Adverse Effect. Except as described in the Registration Statement or Prospectus, neither the Company nor any of the Subsidiaries intends to amend its Certificate of Incorporation and By-laws. (xii) Neither the The execution, delivery and performance of this ~~Agreement by~~ Agreement, and the ~~Company~~ issuance and sale of the Offered Securities will not result in a breach or ~~the Subsidiaries nor the consummation~~ violation of any of the ~~transactions contemplated hereby (including, without limitation, the issuance~~ terms and ~~sale by the Company of the Shares) will give rise to a right to terminate or accelerate the due date of any payment due under, or conflict with or result in the breach of any term or provision~~ provisions of, or constitute a default ~~(or an event which with notice or lapse of time or both would constitute a default)~~ under, (i) any statute, any rule, regulation or ~~require any consent or waiver under, or result in the execution or imposition~~ order of any ~~lien~~governmental agency or body or any court, ~~charge~~ domestic or ~~encumbrance upon~~ foreign, having jurisdiction over the Company or any ~~properties or assets~~ subsidiary of the Company or any of ~~the Subsidiaries pursuant~~ their properties, except for such breaches, violations or defaults that would not result in a Material Adverse Effect, (ii) after giving effect to the ~~terms of~~application of the net proceeds as described in the Prospectus, any ~~indenture, mortgage, deed of trust or other~~ agreement or instrument to which the Company or any ~~of the Subsidiaries~~ such subsidiary is a party or by which ~~it or any of its properties or businesses are bound, or any franchise, license, permit, judgment, decree, order, statute, rule or regulation applicable to~~ the Company or any such subsidiary is bound or to which any of the ~~Subsidiaries or violate any provision~~ properties of the ~~Certificate of Incorporation and By~~Company or any such subsidiary is subject, except for such breaches, violations or defaults that would not result in a Material Adverse Effect, or (iii) the charter or by-laws of the Company or any of such subsidiary, and the ~~Subsidiaries~~Company has full power and authority to authorize, except for such consents or waivers which have already been obtained and are in full force and effect or as would not have a Material Adverse Effect. No consent, approval, authorization, order, registration or qualification of or with any United States court or governmental agency or body is required for the issue and ~~sale of~~ sell the ~~Shares or the consummation of the other transactions~~ Offered Securities as contemplated by this Agreement, which have not been obtained prior to the date hereof, except the registration under the Securities Act of the Shares, and such consents, approvals, authorizations, registrations or qualifications as may be required under state securities or Blue Sky laws -9- 10 in connection with the purchase and distribution of the Shares by the Underwriters. (~~xiii~~xii) ~~The~~ This Agreement has been duly authorized, ~~issued~~ executed and outstanding capital stock of the Company and the capital stock reserved or committed for issuance is as set forth under the caption "Capitalization" in the Prospectus. All of the outstanding shares of Stock have been duly and validly issued and are fully paid and nonassessable, none of them was issued in violation of any preemptive or other similar right and, to the Company's knowledge, since 1991, none of them were issued in violation of any Federal or state securities laws. The Shares, when issued and sold pursuant to this Agreement, will be duly and validly issued, fully paid and nonassessable, none of them will be issued in violation of any preemptive or other similar right, any contractual right, including, without limitation, rights of first refusal, and, since 1991, none of them were issued in violation of any (subject to compliance with Section 1(c) hereof), Federal or state securities laws. Except as disclosed in the Registration Statement and the Prospectus, there is no outstanding option, warrant or other right calling for the issuance of, and there is no commitment, plan or arrangement to issue, any shares of Common Stock of the Company or any security convertible into, or exercisable or exchangeable for, such shares of Stock. The shares of Stock conform in all material respects to all statements in relation thereto contained in the Registration Statement and the Prospectus. The Company has a sufficient number of authorized but unissued shares of Stock to enable the Company to issue, without further stockholder action, or approve all the Shares to be sold delivered by the Company. (~~xiv~~xiii) ~~As of~~ Except as disclosed in the ~~date hereof~~Prospectus, and as of each Closing Date, all of the outstanding shares of capital stock of the Subsidiaries are duly and validly authorized and issued, are fully paid and nonassessable and are and will be owned by the Company and ~~there is~~ its subsidiaries have good and ~~will be no outstanding option, warrant or~~ marketable title to all real properties and all other ~~right calling for the issuance of,~~ material properties and no commitment, plan or arrangement to issue any share of capital stock of the Subsidiaries or any security convertible or exchangeable or exercisable for capital stock of the Subsidiaries, except as otherwise described in the Registration Statement and Prospectus. (xv) Except as set forth in the Registration Statement and Prospectus, no holder of any security of the Company has the right to have any security assets owned by ~~such holder included~~ them, in each case free from liens, encumbrances and defects that would materially affect the ~~Registration Statement~~ value thereof or materially interfere with the use made or to demand registration of any security owned by such holder during the period ending 90 days after the date of this Agreement. Each Selling Stockholder and each director and executive officer of the Company has delivered tob

Appears in 1 contract

Sources: Underwriting Agreement (Cherokee International Corp)

Representations and Warranties of the Company and the Selling Stockholders. ~~(a)~~ The Company ~~hereby represents~~ and ~~warrants~~ the Selling Stockholders hereby, jointly and severally, represent and warrant to each Underwriter as follows: (ia) On the Effective Date, the Registration Statement and all other registration statements and reports filed with the Commission by the Company complied, and on the date of the Prospectus, on the date any post-effective amendment to the Registration Statement shall become effective, on the date any supplement or amendment to the Prospectus is filed with the ~~Commission~~ Commission, at all times that a prospectus must be delivered by the Underwriters pursuant to the Securities Act and on each Closing Date, the Registration Statement and the Prospectus (and any amendment thereof or supplement thereto) and all other registration statements and reports filed with the Commission by the Company will comply, in all material respects, with the applicable provisions of the Securities Act and the ~~Rules; (ii) The documents that are incorporated by reference in the preliminary prospectus~~ Rules and the Prospectus or from which information is so incorporated by reference, when they became effective or were filed with the Commission, as the case may be, complied in all material respects with the requirements of the Securities Act or the Securities Exchange Act of 1934, as amended (the "Exchange Act"), ~~as applicable,~~ and the rules and regulations of the Commission ~~promulgated under~~ thereunder; the Registration Statement did not, as of the Effective Date, contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary in order to make the statements therein not misleading; and on the other dates referred to above neither the Registration Statement nor the Prospectus, nor any amendment thereof or supplement thereto, will contain any untrue statement of a material fact or will omit to state any material fact required to be stated therein or necessary in order to make the statements therein not misleading. When any related preliminary prospectus was first filed with the Commission (whether filed as part of the Registration Statement or any amendment thereto or pursuant to Rule 424(a) of the Rules) and when any amendment thereof or supplement thereto was first filed with the Commission, such preliminary prospectus, as amended or supplemented, complied in all material respects with the applicable provisions of the Securities Act and the ~~Exchange Act~~Rules and did not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary in order to make the statements therein not misleading. Notwithstanding the foregoing, the Company and the Selling Stockholders make no representation or warranty as ~~applicable~~to the last paragraph of the cover page of the Prospectus, ~~except as amended~~ the paragraph with respect to stabilization on the inside front cover page of the Prospectus and ~~superseded~~ the statements contained under the caption "Underwriting" in the Prospectus (to the extent such statements relate to the Underwriters). The Company and each of the Selling Stockholders acknowledge that the statements referred to in the previous sentence constitute the only information furnished in writing by ~~statements made~~ the Representatives on behalf of the several Underwriters specifically for inclusion in the Registration Statement~~; and~~ , any preliminary prospectus or the Prospectus. The documents ~~so filed and~~ incorporated by reference ~~subsequent to~~ in the Registration Statement and the Prospectus, when they were first filed with the Commission, complied in all material respects with the applicable provisions of the Exchange Act and the rules and regulations of the Commission thereunder and any document filed under the Exchange Act after the Effective Date ~~shall~~of the Registration Statement, the date of the preliminary prospectus or the date of the Prospectus, as the case may be, which is incorporated therein by reference will, when they are filed with the Commission, ~~conform~~ comply in all material respects with the ~~requirements~~ applicable provisions of the ~~Securities~~ Exchange Act ~~or the Exchange Act, as applicable,~~ and the rules and regulations of the Commission ~~promulgated under the Securities Act and the Exchange Act, as applicable~~thereunder. (~~iii~~b) All contracts and other documents required to be filed as exhibits to the Registration Statement have been filed with the Commission or incorporated by reference as exhibits to the Registration Statement. (c) The consolidated financial statements of the Company (including all notes and schedules thereto) included in the Registration Statement and the Prospectus comply as to form in all material respects with the Securities Act and the Exchange Act and present fairly on a consolidated basis the financial position, the results of operations and cash flows and the stockholders' equity and the other information purported to be shown therein of the Company ~~and its subsidiaries, listed on Schedule III hereto (the "Subsidiaries"),~~ at the respective dates and for the ~~respective~~respective periods to which they apply; and such financial statements have been prepared in conformity with generally accepted accounting principles, consistently applied throughout the periods involved, and all adjustments necessary for a fair presentation of the results for such periods have been made; and the other financial and statistical information and the supporting schedules included or incorporated by reference in the Prospectus and in the Registration Statement present fairly, in all material respects, the information required to be stated therein. (ivd) ~~KPMG Peat Marwick~~ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ LLP, whose ~~report is~~ reports are filed with the Commission as a part of the Registration Statement, ~~is and~~are, and during the periods covered by ~~its reports~~their reports were, ~~was~~ independent public accountants as required by the Securities Act and the Rules. (ve) The Company has been duly ~~incorporated~~ organized and is a validly existing as a corporation in good standing under the laws of the State of Delaware~~, and~~ . Except for the ~~Subsidiaries have been duly incorporated and are validly existing corporations under~~ Company's subsidiaries listed in Exhibit 21 to the ~~laws of their respective jurisdictions. Other than~~ Registration Statement (the "Subsidiaries"), the Company has no subsidiary or subsidiaries and does not control, directly or indirectly, any corporation, partnership, joint venture, association or other business organization~~, except~~ . Each of the Subsidiaries has been duly organized and is validly existing as ~~described~~ a corporation in good standing under the ~~Registration Statement and~~ laws of the ~~Prospectus~~jurisdiction of its organization. Each of the Company and ~~the~~ its Subsidiaries is duly qualified and in good standing as a foreign corporation in each jurisdiction in which the character or location of its assets or properties (owned, leased or licensed) or the nature of its business makes such qualification ~~necessary~~ necessary, except for such jurisdictions where the failure to so qualify would not have a material adverse effect on the assets or properties, business, results of ~~operations~~ operations, prospects or condition (financial or otherwise) of the Company and ~~the~~ its Subsidiaries, taken as a ~~whole (a "Material Adverse Effect")~~whole. Except as disclosed in the Registration Statement and the Prospectus, neither the Company nor ~~the~~ any of its Subsidiaries ~~own~~owns, ~~lease~~ leases or ~~license~~ licenses any ~~material~~ asset or property or ~~conduct~~ conducts any ~~material~~ business outside the United States of America. Each of the Company and ~~the~~ its Subsidiaries ~~have~~ has all requisite ~~corporate~~ power and authority, and all necessary authorizations, approvals, consents, orders, licenses, certificates and permits of and from all governmental or regulatory ~~bodies~~ bodies, or any other person or entity, to own, lease and license ~~their~~ its assets and properties and conduct ~~their~~ its businesses as now being conducted and as described in the Registration Statement and the ~~Prospectus~~ Prospectus, except for such authorizations, approvals, consents, orders, licenses, certificates and permits the failure to so obtain would not have a ~~Material Adverse Effect~~material adverse effect upon the assets or properties, business, results of operations, prospects or condition (financial or otherwise) of the Company and its Subsidiaries, taken as a whole; no such authorization, approval, consent, order, license, certificate or permit contains a materially burdensome restriction other than as disclosed in the Registration Statement and the Prospectus; and the Company has all such corporate power and authority, and such authorizations, approvals, consents, orders, licenses, certificates and ~~permits~~ permits, to enter into, deliver and perform this Agreement (except as may be required under the Securities Act and ~~to issue and~~state and foreign Blue Sky laws). (vif) ~~The~~ Neither the Commission nor the Blue Sky or securities authorities of any jurisdiction has issued an order suspending the effectiveness of the Registration Statement, preventing or suspending the use of any preliminary prospectus, the Prospectus, the Registration Statement, or any amendment or supplement thereto, refusing to permit the effectiveness of the Registration Statement or suspending the registration or qualification of the Shares, nor has any of such authorities instituted or threatened to institute any proceedings with respect to such an order in any jurisdiction in which the Shares are to be sold. (g) Each of the Company and ~~the~~ its Subsidiaries ~~own~~ owns, or ~~possess~~ possesses adequate and enforceable rights to ~~use~~ use, all ~~patents,~~ trademarks, trademark applications, trade names, service marks, copyrights, copyright applications, licenses, know-how and other similar rights and proprietary knowledge (collectively, "Intangibles") ~~material to or~~ necessary for the conduct of ~~their~~ its business as described in the Registration Statement and the Prospectus. ~~Except as disclosed in the Registration Statement and the Prospectus, neither~~ Neither the Company nor any ~~of the Subsidiaries have~~ Subsidiary has received any notice of, ~~and~~ or to ~~their~~ its best knowledge ~~are not~~ is aware of, any infringement of or conflict with asserted rights of others with respect to any Intangibles which, singly or in the aggregate, if the subject of an unfavorable decision, ruling or finding, ~~could be reasonably expected to~~ would have a ~~Material Adverse Effect~~material adverse effect upon the assets or properties, ~~and neither the Company nor the Subsidiaries know~~ business, results of ~~any reasonable basis therefor. Except as disclosed in the Registration Statement and the Prospectus~~operations, ~~to the knowledge of the Company, no Intangibles~~ prospects or condition (financial or otherwise) of the Company ~~or the Subsidiaries are in dispute or are in any conflict with the right~~ and its Subsidiaries, taken as a whole. (h) Each of ~~any other person or entity and~~ the Company and ~~each of the~~ its Subsidiaries ~~(A)~~ has or will have the right (subject to applicable agreements, which agreements provide for use to the extent necessary and desirable for the conduct of its business as currently conducted and as proposed to be conducted) to use, free and clear of all liens, charges, claims, encumbrances, pledges, security interests, defects, restrictions or equities of any kind whatsoever all licenses and rights to the Intangibles used in the conduct of their business as now conducted or proposed to be conducted without infringing upon or otherwise acting adversely to the right or claimed right of any other person and (B) is not or will not become, as the case may be, obligated or in any way liable for any payment by way of royalties, fees or otherwise and to any owner or licensee of, or other claimant to, any Intangibles with respect to the use thereof or in connection with the conduct of their business or otherwise, except in each case as disclosed in the Prospectus and except for any such payments, claims, uses, liens, charges, encumbrances, pledges, security interests, defects, restrictions and equities which would not have a Material Adverse Effect. (vii) The Company and the Subsidiaries have good ~~and marketable~~ title to each of the items of real and personal property which are reflected in the financial statements referred to in Section ~~4(a)(ii~~4(c) or are referred to in the Registration Statement and the Prospectus as being owned by ~~them~~ it and valid and enforceable leasehold interests in each of the items of real and personal property which are referred to in the Registration Statement and the Prospectus as being leased by ~~them~~it, in each case free and clear of all liens, encumbrances, claims, security interests and defects, other than those described in the Registration Statement and the Prospectus and those which do not and will not have a ~~Material Adverse Effect~~material adverse effect upon the assets or properties, business, results of operations, prospects or condition (financial or otherwise) of the Company and its Subsidiaries, taken as a whole. (~~viii~~i) ~~Except as described in the Registration Statement and the Prospectus, there~~ There is no litigation or governmental or other proceeding or investigation before any court or before or by any public body or ~~board~~ board, pending or, to the best knowledge of the Company~~'s knowledge~~, threatened (and the Company does not know of any ~~reasonable~~ basis therefor) against, or involving the assets, properties or business of, the Company or any of its Subsidiaries which would materially adversely affect the ~~Subsidiaries which~~value or the operation of any such assets or properties or the business, ~~if adversely determined~~results of operations, ~~could~~ prospects or condition (financial or otherwise) of the Company and its Subsidiaries, taken as a whole, which would prevent the consummation of the transactions contemplated by this Agreement or is required to be ~~reasonably expected to have a Material Adverse Effect~~disclosed in the Prospectus. (ixj) Subsequent to the respective dates as of which information is given in the Registration Statement and the Prospectus, except as described therein, (Ai) there has not been any material adverse change in the assets or properties, business, results of operations, prospects or condition (financial or otherwise) ), of the Company or ~~the Subsidiaries taken as a whole~~any of its Subsidiaries, whether or not arising from transactions in the ordinary course of business; (Bii) neither the Company nor any of ~~the~~ its Subsidiaries has sustained any material loss or interference with its assets, businesses or properties (whether ~~owned, leased~~ owned or ~~licensed~~leased) from fire, explosion, earthquake, hurricane, flood or other calamity, whether or not covered by insurance, or from any labor dispute or any court or legislative or other governmental action, order or decree; and (Ciii) and since the date of the latest balance sheet included in the Registration Statement and the Prospectus, except as reflected therein, neither the Company nor any of ~~the~~ its Subsidiaries has (xA) issued any securities ~~(other than options or shares issued pursuant to exercise of employee stock options or warrants described in the Registration Statement and Prospectus)~~ or incurred any liability or obligation, direct or contingent, for borrowed money, except such liabilities or obligations incurred in the ordinary course of business, (yB) entered into any transaction not in the ordinary course of business or (zC) declared or paid any dividend or made any distribution on any shares of its stock or redeemed, purchased or otherwise acquired or agreed to redeem, purchase or otherwise acquire any shares of its ~~stock~~stock or other securities. (xk) There is no ~~material~~ document or contract of a character required to be described in the Registration Statement or and the Prospectus or to be filed as an exhibit to the Registration Statement which is not described or filed as required. Each agreement listed in the Exhibits to the Registration Statement is in full force and effect ~~or has terminated in accordance with its terms or by amendment~~ and ~~such amendment has been filed as an Exhibit to the Registration Statement or has otherwise been provided to the Representatives and, if not so terminated,~~ is valid and enforceable ~~in all material respects~~ by and against the Company or ~~the~~ one or more of its Subsidiaries, as the case may be, in accordance with its terms, assuming the due authorization, execution and delivery thereof by each of the other parties thereto, except as the enforceability thereof may be limited by (i) bankruptcy, insolvency, reorganization, moratorium or other similar laws affecting the enforcement of creditors' rights generally and (ii) indemnification provisions under Federal and state securities laws; and that the remedy of specific forms of equitable relief may be subject to equitable defenses and the discretion of the court before which any such action may be brought. Neither the Company nor any of its Subsidiaries, nor, to the best knowledge of the Company, ~~the~~any other party is in default in the observance or performance of any term or obligation to be performed by it under any such agreement, and no event has occurred which with notice or lapse of time or both would constitute such a default, in any such case which default or event would have a material adverse effect on the assets or properties, business, results of operations, prospects or condition (financial or otherwise) of the Company and its Subsidiaries, taken as a whole. No default exists, and no event has occurred which with notice or lapse of time or both would constitute a default, in the due performance and observance of any term, covenant or condition, by the Company or any of its Subsidiaries, of any other agreement or instrument to which the Company or any of its Subsidiaries is a party or by which it or its properties or business may be bound or affected which default or event would have a material adverse effect on the assets or properties, business, results of operations, prospects or condition (financial or otherwise) of the Company and its Subsidiaries, taken as whole. (xil) Neither the Company nor ~~the~~ any of its Subsidiaries is in violation of any term or provision of ~~their respective Certificate of Incorporation and By~~its charter or by-~~laws, in each case as amended to the date hereof, or other governing documents,~~ laws or of any franchise, license, permit, judgment, decree, order, statute, rule or regulation, where the consequences of such violation would have a ~~Material Adverse Effect. Except as described in~~ material adverse effect on the ~~Registration Statement~~ assets or ~~Prospectus~~properties, ~~neither~~ business, results of operations, prospects or condition (financial or otherwise) of the Company ~~nor any of the Subsidiaries intends to amend~~ and its ~~Certificate of Incorporation and By-laws~~Subsidiaries, taken as a whole. (~~xii~~m) Neither the execution, delivery and performance of this Agreement by the Company or the Subsidiaries nor the consummation of any of the transactions contemplated hereby (including, without limitation, the issuance and sale by the Company of the Shares) will give rise to a right to terminate or accelerate the due date of any payment due under, or conflict with or result in the breach of any term or provision of, or constitute a default (or an event which with notice or lapse of time or both would constitute a default) under, or require any consent or waiver under, or result in the execution or imposition of any lien, charge or encumbrance upon any properties or assets of the Company or any of ~~the~~ its Subsidiaries pursuant to the terms of, any indenture, mortgage, deed of trust or other agreement or instrument to which the Company or any of ~~the~~ its Subsidiaries is a party or by which it the Company or any of its Subsidiaries or any of its properties or businesses ~~are~~ is bound, or any franchise, license, permit, judgment, decree, order, statute, rule or ~~regulation~~ regulation, applicable to the Company or any of ~~the~~ its Subsidiaries or violate any provision of the ~~Certificate~~ Articles of Incorporation ~~and~~ or By-laws of the ~~Company or any of the Subsidiaries~~Company, except for such consents or waivers which have already been obtained and are in full force and effect or as would not have a Material Adverse Effect. No consent, approval, authorization, order, registration or qualification of or with any United States court or governmental agency or body is required for the issue and sale of the Shares or the consummation of the other transactions contemplated by this Agreement, which have not been obtained prior to the date hereof, except the registration under the Securities Act of the Shares, and such consents, approvals, authorizations, registrations or qualifications as may be required under state securities or Blue Sky laws -9- 10 in connection with the purchase and distribution of the Shares by the Underwriterseffect. (~~xiii~~n) The ~~authorized, issued~~ Company has an authorized and outstanding capital stock ~~of the Company and the capital stock reserved or committed for issuance is~~ as set forth under the ~~caption~~ captions "Capitalization" and "Description of Capital Stock" in the Prospectus. All of the outstanding shares of ~~Stock~~ the Company's Common Stock, $0.01 par value (the "Common Stock") have been duly and validly issued and are fully paid and ~~nonassessable,~~ nonassessable and none of them was issued in violation of any preemptive or other similar right and, to the Company's knowledge, since 1991, none of them were issued in violation of any Federal or state securities laws. The Shares, when issued and sold pursuant to this Agreement, will be duly and validly issued, fully paid and nonassessable, none of them will be issued in violation of any preemptive or other similar right, any contractual right, including, without limitation, rights of first refusal, and, since 1991, none of them were issued in violation of any (subject to compliance with Section 1(c) hereof), Federal or state securities laws. Except as disclosed in the Registration Statement and the Prospectus, there is no outstanding option, warrant or other right calling for the issuance of, and there is no commitment, plan or arrangement to issue, any shares of Common Stock of the Company or any security convertible into, or exercisable or exchangeable for, such shares of Stock. The shares of Stock conform in all material respects to all statements in relation thereto contained in the Registration Statement and the Prospectus. The Company has a sufficient number of authorized but unissued shares of Stock to enable the Company to issue, without further stockholder action, or approve all the Shares to be sold by the Company. (xiv) As of the date hereof, and as of each Closing Date, all of the outstanding shares of capital stock of the Subsidiaries are duly and validly authorized and issued, are fully paid and nonassessable and are and will be owned by the Company and there is and will be no outstanding option, warrant or other right calling for the issuance of, and no commitment, plan or arrangement to issue any share of capital stock of the Subsidiaries or any security convertible or exchangeable or exercisable for capital stock of the Subsidiaries, except as otherwise described in the Registration Statement and Prospectus. (xv) Except as set forth in the Registration Statement and Prospectus, no holder of any security of the Company has the right to have any security owned by such holder included in the Registration Statement or to demand registration of any security owned by such holder during the period ending 90 days after the date of this Agreement. Each Selling Stockholder and each director and executive officer of the Company has delivered tosh

Appears in 1 contract

Sources: Underwriting Agreement (American List Corp)

Representations and Warranties of the Company and the Selling Stockholders. (a) The Company ~~hereby~~ represents and warrants ~~to each Underwriter as follows~~to, and agrees with, the Underwriters that: (i) On An “automatic shelf registration statement” as defined under Rule 405 under the ~~Effective Date~~Securities Act of 1933, as amended (the ~~Registration Statement complied~~“Act”), on Form S-3 (File No. 333-196516) in respect of the Securities has been filed with the Securities and Exchange Commission (the “Commission”) on June 4, 2014; such registration statement, and any post-effective amendment thereto, became effective on filing; and no stop order suspending the effectiveness of such registration statement or any part thereof has been issued and no proceeding for that purpose has been initiated or threatened by the Commission, and no notice of objection of the Commission to the use of such registration statement or any post-effective amendment thereto pursuant to Rule 401(g)(2) under the Act has been received by the Company (the base prospectus filed as part of such registration statement, in the form in which it has most recently been filed with the Commission on or prior to the date of this Agreement, is hereinafter called the “Basic Prospectus”; the various parts of such registration statement, on including all exhibits thereto and including any prospectus supplement relating to the Securities that is filed with the Commission and deemed by virtue of Rule 430B to be part of such registration statement, each as amended at the time such part of the registration statement became effective, are hereinafter collectively called the “Registration Statement”; the form of the final prospectus relating to the Securities filed with the Commission pursuant to Rule 424(b) (“Rule 424(b)”) under the Act in accordance with Section 5(a) hereof is hereinafter called the “Prospectus”; any reference herein to the Basic Prospectus or the Prospectus shall be deemed to refer to and include the documents incorporated by reference therein pursuant to Item 12 of Form S-3 under the Act, as of the date of such prospectus; any reference to any amendment or supplement to the Basic Prospectus or the Prospectus shall be deemed to refer to and include any post-effective amendment to the Registration ~~Statement shall become effective~~Statement, ~~on the date~~ any prospectus supplement ~~or amendment~~ relating to the ~~Prospectus is~~ Securities filed with the Commission pursuant to Rule 424(b) and on any documents filed under the Securities Exchange Act of 1934, as amended (the “Exchange Act”), and incorporated by reference therein, in each ~~Closing Date~~case after the date of the Basic Prospectus or the Prospectus, as the case may be; any reference to any amendment to the Registration Statement shall be deemed to refer to and ~~the Prospectus (and~~ include any ~~amendment thereof or supplement thereto) will comply, in all material respects, with the applicable provisions~~ annual report of the ~~Securities~~ Company filed pursuant to Section 13(a) or 15(d) of the Exchange Act ~~and~~ after the ~~Rules; (ii) The documents~~ effective date of the Registration Statement that ~~are~~ is incorporated by reference in the ~~preliminary prospectus~~ Registration Statement; and any “issuer free writing prospectus” as defined in Rule 433 under the Act relating to the Shares is hereinafter called an “Issuer Free Writing Prospectus”). (ii) No order preventing or suspending the use of the Basic Prospectus or any Issuer Free Writing Prospectus has been issued by the Commission, and the ~~Prospectus~~ Basic Prospectus, at the time of filing thereof, conformed in all material respects to the requirements of the Act and the rules and regulations of the Commission (the “Rules and Regulations”) thereunder, and did not contain an untrue statement of a material fact or ~~from~~ omit to state a material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading; provided, however, that this representation and warranty shall not apply to any statements or omissions made in reliance upon and in conformity with information furnished in writing to the Company by any Underwriter expressly for use therein, it being understood and agreed that the only such information is so that described as such in Section 8(c) hereof; (iii) For the purposes of this Agreement, the “Applicable Time” is 4:00 p.m. (Eastern time) on August 7, 2014; the information set forth on Exhibit B hereto, any Issuer Free Writing Prospectus listed on Exhibit C hereto and the Basic Prospectus, (collectively, the “General Disclosure Package”) as of the Applicable Time, did not include any untrue statement of a material fact or omit 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; and the General Disclosure Package does not conflict with the information contained in the Registration Statement or the Prospectus and the General Disclosure Package as of the Applicable Time, did not include any untrue statement of a material fact or omit 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; provided, however, that this representation and warranty shall not apply to statements or omissions made in the General Disclosure Package in reliance upon and in conformity with information furnished in writing to the Company by the Underwriters expressly for use therein, it being understood and agreed that the only such information is that described as such in Section 8(c) hereof; (iv) The documents incorporated by ~~reference~~reference in the Prospectus, when ~~they~~ it became effective or ~~were~~ was filed with the Commission, as the case may be, ~~complied~~ conformed in all material respects ~~with~~ to the requirements of the ~~Securities Act or the Securities~~ Exchange Act ~~of 1934, as amended (the "Exchange Act"), as applicable,~~ and the rules and regulations of the Commission ~~promulgated under~~ thereunder, and none of such documents contained an untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary to make the ~~Securities Act and the Exchange Act, as applicable, except as amended and superseded by~~ statements ~~made in the Registration Statement~~therein not misleading; ~~and~~ any further documents so filed and incorporated by reference ~~subsequent to~~ in the ~~Effective Date shall~~Prospectus or any further amendment or supplement thereto, when ~~they~~ such documents become effective or are filed with the Commission, as the case may be, will conform in all material respects ~~with~~ to the requirements of the ~~Securities~~ Act or the Exchange Act, as applicable, and the rules and regulations of the Commission ~~promulgated under~~ thereunder and will not contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the ~~Securities~~ statements therein not misleading; provided, however, that this representation and warranty shall not apply to any statements or omissions made in reliance upon and in conformity with information furnished in writing to the Company by the Underwriters expressly for use therein (it being understood and agreed that the only such information is that described as such in Section 8(c) hereof); and no such documents were filed with the Commission since the Commission’s close of business on the business day immediately prior to the date of this Agreement and prior to the execution of this Agreement, except as set forth on Exhibit D hereto; (v) The Registration Statement conforms, and the Prospectus and any further amendments or supplements to the Registration Statement and the Prospectus will conform, in all material respects to the requirements of the Act and the ~~Exchange Act~~rules and regulations of the Commission thereunder and do not and will not, as ~~applicable~~of the applicable effective date as to each part of the Registration Statement and as of the applicable filing date as to the Prospectus and any amendment or supplement thereto, contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading; provided, however, that this representation and warranty shall not apply to any statements or omissions made in reliance upon and in conformity with information furnished in writing to the Company by the Underwriters expressly for use therein, it being understood and agreed that the only such information is that described as such in Section 8(c) hereof; (A) At the time of filing of the Registration Statement and (B) at the date of this Agreement, the Company was not and is not an “ineligible issuer,” as defined in Rule 405, including (1) the Company or any other subsidiary in the preceding three years not having been convicted of a felony or misdemeanor or having been made the subject of a judicial or administrative decree or order as described in Rule 405 and (2) the Company in the preceding three years not having been the subject of a bankruptcy petition or insolvency or similar proceeding, not having had a registration statement be the subject of a proceeding under Section 8 of the Act and not being the subject of a proceeding under Section 8A of the Act in connection with the offering of the Offered Securities, all as described in Rule 405. (vii) At (i) the time of filing the Registration Statement and (ii) at the time the Company or any person acting on its behalf (within the meaning, for this clause only, of Rule 163(c) under the Act) made any offer relating to the Shares in reliance on the exemption of Rule 163 under the Act, the Company was a “well-known seasoned issuer” as defined in Rule 405 under the Act; (viii) If at any time following issuance of an Issuer Free Writing Prospectus but no later than the latest of (i) the Closing Date, (ii) the completion of the distribution of the Offered Securities or (iii) ~~The consolidated financial statements~~ the termination of the ~~Company (including all notes and schedules thereto~~Underwriters’ prospectus delivery obligation pursuant to Section 4(3) ~~included~~ of the Act, there occurred or occurs an event or development as a result of which such Issuer Free Writing Prospectus conflicted or would conflict with the information then contained in the Registration Statement ~~and Prospectus present fairly~~ or included or would include an untrue statement of a material fact or omitted or would omit to state a material fact necessary in order to make the ~~financial position~~statements therein, in the ~~results of operations and cash flows and the stockholders' equity and the other information purported to be shown therein~~ light of the circumstances prevailing at that subsequent time, not misleading, (i) the Company has promptly notified or will promptly notify the Underwriters and ~~its subsidiaries~~(ii) the Company has promptly amended or supplemented or will promptly amend or supplement such Issuer Free Writing Prospectus to eliminate or correct such conflict, ~~listed on Schedule III hereto (~~untrue statement or omission. The foregoing two sentences do not apply to statements in or omissions from any Issuer Free Writing Prospectus in reliance upon and in conformity with written information furnished to the ~~"Subsidiaries")~~Company by the Underwriters specifically for use therein, at it being understood and agreed that the ~~respective dates and for~~ only such information furnished by the ~~respective (iv) KPMG Peat Marwick LLP, whose report is filed with the Commission as a part~~ Underwriters consists of the ~~Registration Statement, is and, during the periods covered by its reports, was independent public accountants~~ information described as ~~required by the Securities Act and the Rules~~such in Section 8(c) hereof. (vix) The Company has been duly incorporated and is ~~a validly~~ an existing corporation in good standing under the laws of the State of Delaware, with corporate power and ~~the Subsidiaries have been duly incorporated~~ authority to own its properties and are validly existing corporations under the laws of their respective jurisdictions. Other than the Subsidiaries, the Company has no subsidiaries and does not control, directly or indirectly, any corporation, partnership, joint venture, association or other conduct its business ~~organization, except~~ as described in the ~~Registration Statement~~ General Disclosure Package; and the ~~Prospectus. Each of the~~ Company ~~and the Subsidiaries~~ is duly qualified ~~and in good standing~~ to do business as a foreign corporation in ~~each jurisdiction~~ good standing in all other jurisdictions in which ~~the character~~ its ownership or ~~location~~ lease of ~~its assets or properties (owned, leased or licensed)~~ property or the ~~nature~~ conduct of its business ~~makes~~ requires such ~~qualification necessary~~ qualification, except for ~~such jurisdictions~~ any jurisdiction where the failure to be so ~~qualify~~ qualified would ~~not~~ not, individually or in the aggregate, have a material adverse effect on the ~~assets or properties, business, results of operations or~~ condition (financial or ~~otherwise)~~ other), business, properties or results of operations of the Company and ~~the Subsidiaries,~~ its subsidiaries taken as a whole (~~a "~~“Material Adverse Effect"”). Except as disclosed in the Registration Statement and the Prospectus, neither the Company nor the Subsidiaries own, lease or license any material asset or property or conduct any material business outside the United States of America. . (x) Each subsidiary of the Company has been duly incorporated or formed, as applicable, and is validly existing as a corporation, limited partnership or limited liability company, as applicable, in good standing under the ~~Subsidiaries have all requisite corporate~~ laws of the jurisdiction of its incorporation or formation, as applicable, and has corporate, partnership or limited liability company, as applicable, or other entity power and ~~authority, and all necessary authorizations, approvals, consents, orders, licenses, certificates and permits of and from all governmental or regulatory bodies or any other person or entity,~~ authority to ~~own, lease and license their assets and~~ own its properties and conduct ~~their businesses as now being conducted and~~ its business as described in the ~~Registration Statement~~ General Disclosure Package; and each subsidiary of the ~~Prospectus~~ Company is duly qualified to do business as a foreign corporation in good standing in all other jurisdictions in which its ownership or lease of property or the conduct of its business requires such qualification, except for any such ~~authorizations, approvals, consents, orders, licenses, certificates and permits~~ jurisdiction where the failure to be so ~~obtain~~ qualified would not have a Material Adverse Effect; ~~no such authorization~~all of the issued and outstanding capital stock of each subsidiary of the Company has been duly authorized and validly issued and is fully paid and nonassessable; and the capital stock of each subsidiary owned by the Company, ~~approval~~directly or through subsidiaries, ~~consent~~is owned free from liens, ~~order, license, certificate or permit contains a materially burdensome restriction~~ encumbrances and defects (other than transfer restrictions imposed under applicable securities laws). (xi) The Offered Securities and all other outstanding shares of capital stock of the Company have been duly authorized; all outstanding shares of capital stock of the Company are, and, when the Offered Securities have been delivered and paid for in accordance with this Agreement on the Closing Date (as ~~disclosed~~ defined below), such Offered Securities will have been, validly issued, fully paid and nonassessable, will be consistent in all material respects with the information in the ~~Registration Statement~~ General Disclosure Package and will conform in all material respects to the description thereof contained in the Prospectus; and the stockholders of the Company ~~has all such corporate power and authority, and such authorizations, approvals, consents, orders, licenses, certificates and permits~~ have no preemptive rights with respect to ~~enter into, deliver and perform this Agreement and to issue and~~the Offered Securities. (vixii) The Company and the Subsidiaries own or possess adequate and enforceable rights to use all patents, trademarks, trademark applications, trade names, service marks, copyrights, copyright applications, licenses, know-how and other similar rights and proprietary knowledge (collectively, "Intangibles") material to or necessary for the conduct of their business as described in the Registration Statement and the Prospectus. Except as disclosed in the ~~Registration Statement and the Prospectus~~General Disclosure Package, ~~neither~~ there are no contracts, agreements or understandings between the Company ~~nor~~ and any ~~of the Subsidiaries have received any notice of, and~~ person that would give rise to their knowledge are not aware of, any infringement of or conflict with asserted rights of others with respect to any Intangibles which, singly or in the aggregate, if the subject of an unfavorable decision, ruling or finding, could be reasonably expected to have a ~~Material Adverse Effect, and neither~~ valid claim against the Company ~~nor the Subsidiaries know of~~ or any ~~reasonable basis therefor.~~ Underwriter for a brokerage commission, finder’s fee or other like payment in connection with this offering. (xiii) Except as disclosed in the ~~Registration Statement~~ General Disclosure Package, there are no contracts, agreements or understandings between the Company and any person granting such person the ~~Prospectus,~~ right to require the ~~knowledge of~~ Company to file a registration statement under the ~~Company, no Intangibles~~ Act with respect to any securities of the Company owned or ~~the Subsidiaries are in dispute or are in any conflict with the right of any other~~ to be owned by such person or ~~entity and~~ to require the Company ~~and each of the Subsidiaries (A) has or will have the right (subject~~ to applicable agreements, which agreements provide for use to the extent necessary and desirable for the conduct of its business as currently conducted and as proposed to be conducted) to use, free and clear of all liens, charges, claims, encumbrances, pledges, security interests, defects, restrictions or equities of any kind whatsoever all licenses and rights to the Intangibles used include such securities in the ~~conduct of their business as now conducted or proposed~~ securities registered pursuant to ~~be conducted without infringing upon or otherwise acting adversely to the right or claimed right of any other person and (B) is not or will not become, as the case may be, obligated~~ a Registration Statement or in any ~~way liable for any payment by way of royalties, fees or otherwise and~~ securities being registered pursuant to any ~~owner~~ other registration statement filed by the Company under the Act that have not been complied with or ~~licensee~~ waived in writing. (xiv) The Offered Securities have been approved for listing on The New York Stock Exchange. (xv) No consent, approval, authorization, or order of, or ~~other claimant to~~filing with, any ~~Intangibles with respect~~ governmental agency or body or any court is required to be obtained or made by the ~~use thereof or~~ Company for the consummation of the transactions contemplated by this Agreement in connection with the ~~conduct of their business or otherwise, except in each case as disclosed in the Prospectus~~ issuance and except for any such payments, claims, uses, liens, charges, encumbrances, pledges, security interests, defects, restrictions and equities which would not have a Material Adverse Effect. (vii) The Company and the Subsidiaries have good and marketable title to each sale of the items of personal property which are reflected in the financial statements referred to in Section 4(a)(ii) or are referred to in the Registration Statement and the Prospectus as being owned by them and valid and enforceable leasehold interests in each of the items of real and personal property which are referred to in the Registration Statement and the Prospectus as being leased by them, in each case free and clear of all liens, encumbrances, claims, security interests and defects, other than those described in the Registration Statement and the Prospectus and those which do not and will not have a Material Adverse Effect. (viii) Except as described in the Registration Statement and the Prospectus, there is no litigation or governmental or other proceeding or investigation before any court or before or by any public body or board pending or, to the Company's knowledge, threatened (and the Company does not know of any reasonable basis therefor) against, or involving the assets, properties or business of, the Company or the Subsidiaries which, if adversely determined, could be reasonably expected to have a Material Adverse Effect. (ix) Subsequent to the respective dates as of which information is given in the Registration Statement and the Prospectus, except as described therein, (A) there has not been any material adverse change in the assets or properties, business, results of operations, prospects or condition (financial or otherwise) of the Company or the Subsidiaries taken as a whole, whether or not arising from transactions in the ordinary course of business; (B) neither the Company nor any of the Subsidiaries has sustained any material loss or interference with its assets, businesses or properties (whether owned, leased or licensed) from fire, explosion, earthquake, flood or other calamity, whether or not covered by insurance, or from any labor dispute or any court or legislative or other governmental action, order or decree; and (C) since the date of the latest balance sheet included in the Registration Statement and the Prospectus, except as reflected therein, neither the Company nor any of the Subsidiaries has (x) issued any securities (other than options or shares issued pursuant to exercise of employee stock options or warrants described in the Registration Statement and Prospectus) or incurred any liability or obligation, direct or contingent, for borrowed moneyOffered Securities, except such ~~liabilities or obligations incurred in~~ as have been obtained and made under the ~~ordinary course~~ Act and the Securities Exchange Act of ~~business,~~ 1934 (ythe “Exchange Act”) entered into any transaction not in the ordinary course of business or (z) declared or paid any dividend or made any distribution on any shares of its stock or redeemed, purchased or otherwise acquired or agreed to redeem, purchase or otherwise acquire any shares of its stock. (x) There is no material document or contract of a character required to be described in the Registration Statement or Prospectus or to be filed as an exhibit to the Registration Statement which is not described or filed as required. Each agreement listed in the Exhibits to the Registration Statement is in full force and effect or has terminated in accordance with its terms or by amendment and such ~~amendment has been filed~~ as an Exhibit to the Registration Statement or has otherwise been provided to the Representatives and, if not so terminated, is valid and enforceable in all material respects by and against the Company or the Subsidiaries, as the case may be, in accordance with its terms, assuming the due authorization, execution and delivery thereof by each of the other parties thereto, except as the enforceability thereof may be ~~limited by (i) bankruptcy, insolvency, reorganization, moratorium or other similar laws affecting the enforcement of creditors' rights generally and (ii) indemnification provisions~~ required under ~~Federal and~~ state securities laws; and that the remedy of specific forms of equitable relief may be subject to equitable defenses and the discretion of the court before which any such action may be brought. Neither the Company, the (xi) Neither the Company nor the Subsidiaries is in violation of any term or provision of their respective Certificate of Incorporation and By-laws, in each case as amended to the date hereof, or other governing documents, or of any franchise, license, permit, judgment, decree, order, statute, rule or regulation, where the consequences of such violation would have a Material Adverse Effect. Except as described in the Registration Statement or Prospectus, neither the Company nor any of the Subsidiaries intends to amend its Certificate of Incorporation and By-laws. (~~xii~~xvi) ~~Neither the~~ The execution, delivery and performance of this ~~Agreement by~~ Agreement, and the ~~Company~~ issuance and sale of the Offered Securities as herein contemplated will not result in a breach or ~~the Subsidiaries nor the consummation~~ violation of any of the ~~transactions contemplated hereby (including, without limitation, the issuance~~ terms and ~~sale by the Company of the Shares) will give rise to a right to terminate or accelerate the due date of any payment due under, or conflict with or result in the breach of any term or provision~~ provisions of, or constitute a default ~~(or an event which with notice or lapse of time or both would constitute a default)~~ under, (a) any statute, any rule, regulation or ~~require any consent or waiver under, or result in the execution or imposition~~ order of any ~~lien~~governmental agency or body or any court, ~~charge~~ domestic or ~~encumbrance upon any properties or assets of~~ foreign, having jurisdiction over the Company or any subsidiary of the ~~Subsidiaries pursuant to the terms of~~Company (each, a “Governmental Entity”), (b) any ~~indenture~~of their properties, ~~mortgage, deed of trust~~ or ~~other~~ any agreement or instrument to which the Company or any ~~of the Subsidiaries~~ such subsidiary is a party or by which ~~it or any of its properties or businesses are bound, or any franchise, license, permit, judgment, decree, order, statute, rule or regulation applicable to~~ the Company or any such subsidiary is bound or to which any of the ~~Subsidiaries or violate any provision~~ properties of the ~~Certificate of Incorporation and By~~Company or any such subsidiary is subject, or (c) the charter or by-laws of the Company or any such subsidiary, except, in the case of ~~the Subsidiaries~~clauses (a) and (b) above, ~~except for such consents or waivers which have already been obtained and are in full force and effect or~~ as would not have a Material Adverse Effect~~. No consent~~, ~~approval, authorization, order, registration or qualification of or with any United States court or governmental agency or body is required for~~ and the Company has full power and authority to authorize and issue ~~and sale of~~ the ~~Shares or the consummation of the other transactions~~ Offered Securities as contemplated by this Agreement, which have not been obtained prior to the date hereof, except the registration under the Securities Act of the Shares, and such consents, approvals, authorizations, registrations or qualifications as may be required under state securities or Blue Sky laws -9- 10 in connection with the purchase and distribution of the Shares by the Underwriters. (~~xiii~~xvii) ~~The~~ This Agreement has been duly authorized, ~~issued~~ executed and outstanding capital stock of the Company and the capital stock reserved or committed for issuance is as set forth under the caption "Capitalization" in the Prospectus. All of the outstanding shares of Stock have been duly and validly issued and are fully paid and nonassessable, none of them was issued in violation of any preemptive or other similar right and, to the Company's knowledge, since 1991, none of them were issued in violation of any Federal or state securities laws. The Shares, when issued and sold pursuant to this Agreement, will be duly and validly issued, fully paid and nonassessable, none of them will be issued in violation of any preemptive or other similar right, any contractual right, including, without limitation, rights of first refusal, and, since 1991, none of them were issued in violation of any (subject to compliance with Section 1(c) hereof), Federal or state securities laws. Except as disclosed in the Registration Statement and the Prospectus, there is no outstanding option, warrant or other right calling for the issuance of, and there is no commitment, plan or arrangement to issue, any shares of Common Stock of the Company or any security convertible into, or exercisable or exchangeable for, such shares of Stock. The shares of Stock conform in all material respects to all statements in relation thereto contained in the Registration Statement and the Prospectus. The Company has a sufficient number of authorized but unissued shares of Stock to enable the Company to issue, without further stockholder action, or approve all the Shares to be sold delivered by the Company. (~~xiv~~xviii) ~~As of~~ Except as disclosed in the ~~date hereof~~General Disclosure Package, and as of each Closing Date, all of the outstanding shares of capital stock of the Subsidiaries are duly and validly authorized and issued, are fully paid and nonassessable and are and will be owned by the Company and ~~there is~~ its subsidiaries have good and ~~will~~ marketable title to all real properties and all other properties and assets owned by them, in each case free from liens, encumbrances and defects that would affect the value thereof or interfere with the use made or to be no outstanding option, warrant or other right calling for the issuance of, and no commitment, plan or arrangement to issue any share of capital stock of the Subsidiaries or any security convertible or exchangeable or exercisable for capital stock of the Subsidiariesmade thereof by them, except in each case as ~~otherwise described~~ would not, individually or in the ~~Registration Statement and Prospectus. (xv) Except as set forth in the Registration Statement and Prospectus~~aggregate, ~~no holder of any security of the Company has the right to~~ have any security owned by such holder included in the Registration Statement or to demand registration of any security owned by such holder during the period ending 90 days after the date of this Agreement. Each Selling Stockholder and each director and executive officer of the Company has delivered toa Material Adverse Effec

Appears in 1 contract

Sources: Underwriting Agreement (Spirit AeroSystems Holdings, Inc.)

Representations and Warranties of the Company and the Selling Stockholders. (a) The Company ~~hereby~~ represents and warrants ~~to each Underwriter~~ as follows: (i) On A registration statement on Form SB-2 (File No. 333 - 18155) with respect to the ~~Effective Date~~Shares has been carefully prepared by the Company in conformity with the requirements of the Securities Act of 1933, as amended (the "Act"), and the Rules and Regulations (the "Rules and Regulations") of the Securities and Exchange Commission (the "Commission") thereunder and has been filed with the Commission under the Act. The Company has complied with the conditions for the use of Form SB-2. Copies of such registration statement, including any amendments thereto, the ~~Registration Statement complied, and on~~ preliminary prospectuses (meeting the ~~date~~ requirements of Rule 430A of the ~~Prospectus~~Rules and Regulations) contained therein and the exhibits, on financial statements and schedules, as finally amended and revised, have heretofore been delivered by the ~~date any~~ Company to you. Such registration statement, herein referred to as the "Registration Statement," which shall be deemed to include all information omitted therefrom in reliance upon Rule 430A and contained in the Prospectus referred to below, has been declared effective by the Commission under the Act and no post-effective amendment to the Registration Statement ~~shall become effective, on~~ has been filed as of the date ~~any supplement or amendment to~~ of this Agreement. The form of prospectus first filed by the ~~Prospectus is filed~~ Company with the Commission pursuant to its Rule 424(b) and ~~on each Closing Date~~Rule 430A, or if no form of prospectus is required to be filed pursuant to Rule 424(b), the ~~Registration Statement and the Prospectus (and any amendment thereof or supplement thereto) will comply, in all material respects, with the applicable provisions~~ form of ~~the Securities Act and the Rules; (ii) The documents that are incorporated by reference in the preliminary~~ prospectus and the Prospectus or from which information is so incorporated by reference, when they became effective or were filed with the Commission, as the case may be, complied in all material respects with the requirements of the Securities Act or the Securities Exchange Act of 1934, as amended (the "Exchange Act"), as applicable, and the rules and regulations of the Commission promulgated under the Securities Act and the Exchange Act, as applicable, except as amended and superseded by statements made in the Registration Statement; and any documents so filed and incorporated by reference subsequent to the Effective Date shall, when they are filed with the Commission, conform in all material respects with the requirements of the Securities Act or the Exchange Act, as applicable, and the rules and regulations of the Commission promulgated under the Securities Act and the Exchange Act, as applicable. (iii) The consolidated financial statements of the Company (including all notes and schedules thereto) included in the Registration Statement ~~and Prospectus present fairly~~ at the ~~financial position~~time it became effective, ~~the results of operations and cash flows and the stockholders' equity and the other information purported~~ is herein referred to ~~be shown therein of the Company and its subsidiaries, listed on Schedule III hereto (~~as the "~~Subsidiaries~~Prospectus." Each preliminary prospectus included in the Registration Statement prior to the time it becomes effective is herein referred to as a "~~), at the respective dates and for the respective~~Preliminary Prospectus." (iv) KPMG Peat Marwick LLP, whose report is filed with the Commission as a part of the Registration Statement, is and, during the periods covered by its reports, was independent public accountants as required by the Securities Act and the Rules. (vii) The Company has been duly ~~incorporated~~ organized and is a validly existing as a corporation in good standing under the laws of the State of ~~Delaware,~~ Delaware with corporate power and ~~the Subsidiaries have been duly incorporated~~ authority to own its properties and are validly existing corporations under the laws of their respective jurisdictions. Other than the Subsidiaries, the Company has no subsidiaries and does not control, directly or indirectly, any corporation, partnership, joint venture, association or other conduct its business ~~organization, except~~ as described in the Registration ~~Statement and the Prospectus. Each of~~ Statement; the Company ~~and the Subsidiaries~~ is duly qualified ~~and~~ to transact business in ~~good standing as a foreign corporation in each jurisdiction~~ all jurisdictions in which the ~~character or location of its assets or properties (owned, leased or licensed) or the nature~~ conduct of its business ~~makes~~ requires such ~~qualification necessary~~ qualification, except ~~for such jurisdictions~~ where the ~~failure~~ failure, individually or in the aggregate, to be so ~~qualify~~ qualified would not have a material adverse effect on upon the ~~assets or properties~~condition, ~~business, results of operations or condition (~~financial or otherwise) of the Company and the Subsidiaries, taken as a whole (a "Material Adverse Effect"). Except as disclosed in the Registration Statement and the Prospectus, neither the Company nor the Subsidiaries own, lease or license any material asset or property or conduct any material business outside the United States of America. Each of the Company and the Subsidiaries have all requisite corporate power and authority, and all necessary authorizations, approvals, consents, orders, licenses, certificates and permits of and from all governmental or regulatory bodies or any other person or entity, to own, lease and license their assets and properties and conduct their businesses as now being conducted and as described in the Registration Statement and the Prospectus except for such authorizations, approvals, consents, orders, licenses, certificates and permits the failure to so obtain would not have a Material Adverse Effect; no such authorization, approval, consent, order, license, certificate or permit contains a materially burdensome restriction other than as disclosed in the Registration Statement and the Prospectus; and the Company has all such corporate power and authority, and such authorizations, approvals, consents, orders, licenses, certificates and permits to enter into, deliver and perform this Agreement and to issue and (vi) The Company and the Subsidiaries own or possess adequate and enforceable rights to use all patents, trademarks, trademark applications, trade names, service marks, copyrights, copyright applications, licenses, know-how and other similar rights and proprietary knowledge (collectively, "Intangibles") material to or necessary for the conduct of their business as described in the Registration Statement and the Prospectus. Except as disclosed in the Registration Statement and the Prospectus, neither the Company nor any of the Subsidiaries have received any notice of, and to their knowledge are not aware of, any infringement of or conflict with asserted rights of others with respect to any Intangibles which, singly or in the aggregate, if the subject of an unfavorable decision, ruling or finding, could be reasonably expected to have a Material Adverse Effect, and neither the Company nor the Subsidiaries know of any reasonable basis therefor. Except as disclosed in the Registration Statement and the Prospectus, to the knowledge of the Company, no Intangibles of the Company or the Subsidiaries are in dispute or are in any conflict with the right of any other person or entity and the Company and each of the Subsidiaries (A) has or will have the right (subject to applicable agreements, which agreements provide for use to the extent necessary and desirable for the conduct of its business as currently conducted and as proposed to be conducted) to use, free and clear of all liens, charges, claims, encumbrances, pledges, security interests, defects, restrictions or equities of any kind whatsoever all licenses and rights to the Intangibles used in the conduct of their business as now conducted or proposed to be conducted without infringing upon or otherwise acting adversely to the right or claimed right of any other person and (B) is not or will not become, as the case may be, obligated or in any way liable for any payment by way of royalties, fees or otherwise and to any owner or licensee of, or other claimant to, any Intangibles with respect to the use thereof or in connection with the conduct of their business or otherwise, except in each case as disclosed in the Prospectus and except for any such payments, claims, uses, liens, charges, encumbrances, pledges, security interests, defects, restrictions and equities which would not have a Material Adverse Effect. (vii) The Company and the Subsidiaries have good and marketable title to each of the items of personal property which are reflected in the financial statements referred to in Section 4(a)(ii) or are referred to in the Registration Statement and the Prospectus as being owned by them and valid and enforceable leasehold interests in each of the items of real and personal property which are referred to in the Registration Statement and the Prospectus as being leased by them, in each case free and clear of all liens, encumbrances, claims, security interests and defects, other than those described in the Registration Statement and the Prospectus and those which do not and will not have a Material Adverse Effect. (viii) Except as described in the Registration Statement and the Prospectus, there is no litigation or governmental or other proceeding or investigation before any court or before or by any public body or board pending or, to the Company's knowledge, threatened (and the Company does not know of any reasonable basis therefor) against, or involving the assets, properties or business of, the Company or the Subsidiaries which, if adversely determined, could be reasonably expected to have a Material Adverse Effect. (ix) Subsequent to the respective dates as of which information is given in the Registration Statement and the Prospectus, except as described therein, (A) there has not been any material adverse change in the assets or properties, business, results of operations, prospects or condition (financial or otherwise) of the Company or the Subsidiaries taken as a whole, whether or not arising from transactions in the ordinary course of business; (B) neither the Company nor any of the Subsidiaries has sustained any material loss or interference with its assets, businesses or properties (whether owned, leased or licensed) from fire, explosion, earthquake, flood or other calamity, whether or not covered by insurance, or from any labor dispute or any court or legislative or other governmental action, order or decree; and (C) since the date of the latest balance sheet included in the Registration Statement and the Prospectus, except as reflected therein, neither the Company nor any of the Subsidiaries has (x) issued any securities (other than options or shares issued pursuant to exercise of employee stock options or warrants described in the Registration Statement and Prospectus) or incurred any liability or obligation, direct or contingent, for borrowed money, except such liabilities or obligations incurred in the ordinary course of business, (y) entered into any transaction not in the ordinary course of business or (z) declared or paid any dividend or made any distribution on any shares of its stock or redeemed, purchased or otherwise acquired or agreed to redeem, purchase or otherwise acquire any shares of its stock. (x) There is no material document or contract of a character required to be described in the Registration Statement or Prospectus or to be filed as an exhibit to the Registration Statement which is not described or filed as required. Each agreement listed in the Exhibits to the Registration Statement is in full force and effect or has terminated in accordance with its terms or by amendment and such amendment has been filed as an Exhibit to the Registration Statement or has otherwise been provided to the Representatives and, if not so terminated, is valid and enforceable in all material respects by and against the Company or the Subsidiaries, as the case may be, in accordance with its terms, assuming the due authorization, execution and delivery thereof by each of the other parties thereto, except as the enforceability thereof may be limited by (i) bankruptcy, insolvency, reorganization, moratorium or other similar laws affecting the enforcement of creditors' rights generally and (ii) indemnification provisions under Federal and state securities laws; and that the remedy of specific forms of equitable relief may be subject to equitable defenses and the discretion of the court before which any such action may be brought. Neither the Company, the (xi) Neither the Company nor the Subsidiaries is in violation of any term or provision of their respective Certificate of Incorporation and By-laws, in each case as amended to the date hereof, or other governing documents, or of any franchise, license, permit, judgment, decree, order, statute, rule or regulation, where the consequences of such violation would have a Material Adverse Effect. Except as described in the Registration Statement or Prospectus, neither the Company nor any of the Subsidiaries intends to amend its Certificate of Incorporation and By-laws. (xii) Neither the execution, delivery and performance of this Agreement by the Company or the Subsidiaries nor the consummation of any of the transactions contemplated hereby (including, without limitation, the issuance and sale by the Company of the Shares) will give rise to a right to terminate or accelerate the due date of any payment due under, or conflict with or result in the breach of any term or provision of, or constitute a default (or an event which with notice or lapse of time or both would constitute a default) under, or require any consent or waiver under, or result in the execution or imposition of any lien, charge or encumbrance upon any properties or assets of the Company or any of the Subsidiaries pursuant to the terms of, any indenture, mortgage, deed of trust or other agreement or instrument to which the Company or any of the Subsidiaries is a party or by which it or any of its properties or businesses are bound, or any franchise, license, permit, judgment, decree, order, statute, rule or regulation applicable to the Company or any of the Subsidiaries or violate any provision of the Certificate of Incorporation and By-laws of the Company or any of the Subsidiaries, except for such consents or waivers which have already been obtained and are in full force and effect or as would not have a Material Adverse Effect. No consent, approval, authorization, order, registration or qualification of or with any United States court or governmental agency or body is required for the issue and sale of the Shares or the consummation of the other transactions contemplated by this Agreement, which have not been obtained prior to the date hereof, except the registration under the Securities Act of the Shares, and such consents, approvals, authorizations, registrations or qualifications as may be required under state securities or Blue Sky laws -9- 10 in connection with the purchase and distribution of the Shares by the Underwriters. (xiii) The authorized, issued and outstanding capital stock of the Company and the capital stock reserved or committed for issuance is as set forth under the caption "Capitalization" in the Prospectus. All of the outstanding shares of Stock have been duly and validly issued and are fully paid and nonassessable, none of them was issued in violation of any preemptive or other similar right and, to the Company's knowledge, since 1991, none of them were issued in violation of any Federal or state securities laws. The Shares, when issued and sold pursuant to this Agreement, will be duly and validly issued, fully paid and nonassessable, none of them will be issued in violation of any preemptive or other similar right, any contractual right, including, without limitation, rights of first refusal, and, since 1991, none of them were issued in violation of any (subject to compliance with Section 1(c) hereof), Federal or state securities laws. Except as disclosed in the Registration Statement and the Prospectus, there is no outstanding option, warrant or other right calling for the issuance of, and there is no commitment, plan or arrangement to issue, any shares of Common Stock of the Company or any security convertible into, or exercisable or exchangeable for, such shares of Stock. The shares of Stock conform in all material respects to all statements in relation thereto contained in the Registration Statement and the Prospectus. The Company has a sufficient number of authorized but unissued shares of Stock to enable the Company to issue, without further stockholder action, or approve all the Shares to be sold by the Company. (xiv) As of the date hereof, and as of each Closing Date, all of the outstanding shares of capital stock of the Subsidiaries are duly and validly authorized and issued, are fully paid and nonassessable and are and will be owned by the Company and there is and will be no outstanding option, warrant or other right calling for the issuance of, and no commitment, plan or arrangement to issue any share of capital stock of the Subsidiaries or any security convertible or exchangeable or exercisable for capital stock of the Subsidiaries, except as otherwise described in the Registration Statement and Prospectus. (xv) Except as set forth in the Registration Statement and Prospectus, no holder of any security of the Company has the right to have any security owned by such holder included in the Registration Statement or to demand registration of any security owned by such holder during the period ending 90 days after the date of this Agreement. Each Selling Stockholder and each director and executive officer of the Company has delivered to,

Appears in 1 contract

Sources: Underwriting Agreement (Daou Systems Inc)

Representations and Warranties of the Company and the Selling Stockholders. (a) The Company ~~hereby~~ represents and warrants ~~to each~~ to, and agrees with, the Underwriter ~~as follows~~that: (i) On An “automatic shelf registration statement” as defined under Rule 405 under the ~~Effective Date~~Securities Act of 1933, as amended (the ~~Registration Statement complied~~“Act”), on Form S-3 (File No. 333-173369) in respect of the Securities has been filed with the Securities and Exchange Commission (the “Commission”) on April 7, 2011; such registration statement, and any post-effective amendment thereto, became effective on filing; and no stop order suspending the effectiveness of such registration statement or any part thereof has been issued and no proceeding for that purpose has been initiated or threatened by the Commission, and no notice of objection of the Commission to the use of such registration statement or any post-effective amendment thereto pursuant to Rule 401(g)(2) under the Act has been received by the Company (the base prospectus filed as part of such registration statement, in the form in which it has most recently been filed with the Commission on or prior to the date of this Agreement, is hereinafter called the “Basic Prospectus”; the various parts of such registration statement, on including all exhibits thereto and including any prospectus supplement relating to the Securities that is filed with the Commission and deemed by virtue of Rule 430B to be part of such registration statement, each as amended at the time such part of the registration statement became effective, are hereinafter collectively called the “Registration Statement”; the form of the final prospectus relating to the Securities filed with the Commission pursuant to Rule 424(b) (“Rule 424(b)”) under the Act in accordance with Section 5(a) hereof is hereinafter called the “Prospectus”; any reference herein to the Basic Prospectus or the Prospectus shall be deemed to refer to and include the documents incorporated by reference therein pursuant to Item 12 of Form S-3 under the Act, as of the date of such prospectus; any reference to any amendment or supplement to the Basic Prospectus or the Prospectus shall be deemed to refer to and include any post-effective amendment to the Registration ~~Statement shall become effective~~Statement, ~~on the date~~ any prospectus supplement ~~or amendment~~ relating to the ~~Prospectus is~~ Securities filed with the Commission pursuant to Rule 424(b) and on any documents filed under the Securities Exchange Act of 1934, as amended (the “Exchange Act”), and incorporated by reference therein, in each ~~Closing Date~~case after the date of the Basic Prospectus or the Prospectus, as the case may be; any reference to any amendment to the Registration Statement shall be deemed to refer to and ~~the Prospectus (and~~ include any ~~amendment thereof or supplement thereto) will comply, in all material respects, with the applicable provisions~~ annual report of the ~~Securities~~ Company filed pursuant to Section 13(a) or 15(d) of the Exchange Act ~~and~~ after the ~~Rules; (ii) The documents~~ effective date of the Registration Statement that ~~are~~ is incorporated by reference in the ~~preliminary prospectus~~ Registration Statement; and any “issuer free writing prospectus” as defined in Rule 433 under the Act relating to the Shares is hereinafter called an “Issuer Free Writing Prospectus”). (ii) No order preventing or suspending the use of the Basic Prospectus or any Issuer Free Writing Prospectus has been issued by the Commission, and the ~~Prospectus~~ Basic Prospectus, at the time of filing thereof, conformed in all material respects to the requirements of the Act and the rules and regulations of the Commission (the “Rules and Regulations”) thereunder, and did not contain an untrue statement of a material fact or ~~from~~ omit to state a material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading; provided, however, that this representation and warranty shall not apply to any statements or omissions made in reliance upon and in conformity with information furnished in writing to the Company by the Underwriter expressly for use therein, it being understood and agreed that the only such information is so that described as such in Section 8(c) hereof; (iii) For the purposes of this Agreement, the “Applicable Time” is 6:30 a.m. (Eastern time) on April 8, 2011; any Issuer Free Writing Prospectus listed on Exhibit C hereto and the Basic Prospectus, (collectively, the “General Disclosure Package”) as of the Applicable Time, did not include any untrue statement of a material fact or omit 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; and the General Disclosure Package does not conflict with the information contained in the Registration Statement or the Prospectus and the General Disclosure Package, as supplemented by and taken together with the Pricing Disclosure Package as of the Applicable Time, did not include any untrue statement of a material fact or omit 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; provided, however, that this representation and warranty shall not apply to statements or omissions made in the General Disclosure Package in reliance upon and in conformity with information furnished in writing to the Company by the Underwriter expressly for use therein, it being understood and agreed that the only such information is that described as such in Section 8(c) hereof; (iv) The documents incorporated by ~~reference~~reference in the Prospectus, when ~~they~~ it became effective or ~~were~~ was filed with the Commission, as the case may be, ~~complied~~ conformed in all material respects ~~with~~ to the requirements of the ~~Securities Act or the Securities~~ Exchange Act ~~of 1934, as amended (the "Exchange Act"), as applicable,~~ and the rules and regulations of the Commission ~~promulgated under~~ thereunder, and none of such documents contained an untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary to make the ~~Securities Act and the Exchange Act, as applicable, except as amended and superseded by~~ statements ~~made in the Registration Statement~~therein not misleading; ~~and~~ any further documents so filed and incorporated by reference ~~subsequent to~~ in the ~~Effective Date shall~~Prospectus or any further amendment or supplement thereto, when ~~they~~ such documents become effective or are filed with the Commission, as the case may be, will conform in all material respects ~~with~~ to the requirements of the ~~Securities~~ Act or the Exchange Act, as applicable, and the rules and regulations of the Commission ~~promulgated under~~ thereunder and will not contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the ~~Securities~~ statements therein not misleading; provided, however, that this representation and warranty shall not apply to any statements or omissions made in reliance upon and in conformity with information furnished in writing to the Company by the Underwriter expressly for use therein (it being understood and agreed that the only such information is that described as such in Section 8(c) hereof); and no such documents were filed with the Commission since the Commission’s close of business on the business day immediately prior to the date of this Agreement and prior to the execution of this Agreement, except as set forth on Exhibit D hereto; (v) The Registration Statement conforms, and the Prospectus and any further amendments or supplements to the Registration Statement and the Prospectus will conform, in all material respects to the requirements of the Act and the ~~Exchange Act~~rules and regulations of the Commission thereunder and do not and will not, as ~~applicable~~of the applicable effective date as to each part of the Registration Statement and as of the applicable filing date as to the Prospectus and any amendment or supplement thereto, contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading; provided, however, that this representation and warranty shall not apply to any statements or omissions made in reliance upon and in conformity with information furnished in writing to the Company by the Underwriter expressly for use therein, it being understood and agreed that the only such information is that described as such in Section 8(c) hereof; (A) At the time of filing of the Registration Statement and (B) at the date of this Agreement, the Company was not and is not an “ineligible issuer,” as defined in Rule 405, including (1) the Company or any other subsidiary in the preceding three years not having been convicted of a felony or misdemeanor or having been made the subject of a judicial or administrative decree or order as described in Rule 405 and (2) the Company in the preceding three years not having been the subject of a bankruptcy petition or insolvency or similar proceeding, not having had a registration statement be the subject of a proceeding under Section 8 of the Act and not being the subject of a proceeding under Section 8A of the Act in connection with the offering of the Offered Securities, all as described in Rule 405. (vii) At (i) the time of filing the Registration Statement and (ii) at the time the Company or any person acting on its behalf (within the meaning, for this clause only, of Rule 163(c) under the Act) made any offer relating to the Shares in reliance on the exemption of Rule 163 under the Act, the Company was a “well-known seasoned issuer” as defined in Rule 405 under the Act; (viii) If at any time following issuance of an Issuer Free Writing Prospectus but no later than the latest of (i) the Closing Date, (ii) the completion of the distribution of the Offered Securities or (iii) ~~The consolidated financial statements~~ the termination of the ~~Company (including all notes and schedules thereto~~Underwriter’s prospectus delivery obligation pursuant to Section 4(3) ~~included~~ of the Act, there occurred or occurs an event or development as a result of which such Issuer Free Writing Prospectus conflicted or would conflict with the information then contained in the Registration Statement ~~and Prospectus present fairly~~ or included or would include an untrue statement of a material fact or omitted or would omit to state a material fact necessary in order to make the ~~financial position~~statements therein, in the ~~results of operations and cash flows and the stockholders' equity and the other information purported to be shown therein~~ light of the circumstances prevailing at that subsequent time, not misleading, (i) the Company has promptly notified or will promptly notify the Underwriter and ~~its subsidiaries~~(ii) the Company has promptly amended or supplemented or will promptly amend or supplement such Issuer Free Writing Prospectus to eliminate or correct such conflict, ~~listed on Schedule III hereto (~~untrue statement or omission. The foregoing two sentences do not apply to statements in or omissions from any Issuer Free Writing Prospectus in reliance upon and in conformity with written information furnished to the ~~"Subsidiaries")~~Company by the Underwriter specifically for use therein, at it being understood and agreed that the ~~respective dates and for~~ only such information furnished by the ~~respective (iv) KPMG Peat Marwick LLP, whose report is filed with the Commission as a part~~ Underwriter consists of the ~~Registration Statement, is and, during the periods covered by its reports, was independent public accountants~~ information described as ~~required by the Securities Act and the Rules~~such in Section 8(c) hereof. (vix) The Company has been duly incorporated and is ~~a validly~~ an existing corporation in good standing under the laws of the State of Delaware, with corporate power and ~~the Subsidiaries have been duly incorporated~~ authority to own its properties and are validly existing corporations under the laws of their respective jurisdictions. Other than the Subsidiaries, the Company has no subsidiaries and does not control, directly or indirectly, any corporation, partnership, joint venture, association or other conduct its business ~~organization, except~~ as described in the ~~Registration Statement~~ General Disclosure Package; and the ~~Prospectus. Each of the~~ Company ~~and the Subsidiaries~~ is duly qualified ~~and in good standing~~ to do business as a foreign corporation in ~~each jurisdiction~~ good standing in all other jurisdictions in which ~~the character~~ its ownership or ~~location~~ lease of ~~its assets or properties (owned, leased or licensed)~~ property or the ~~nature~~ conduct of its business ~~makes~~ requires such ~~qualification necessary~~ qualification, except for ~~such jurisdictions~~ any jurisdiction where the failure to be so ~~qualify~~ qualified would ~~not~~ not, individually or in the aggregate, have a material adverse effect on the ~~assets or properties, business, results of operations or~~ condition (financial or ~~otherwise)~~ other), business, properties or results of operations of the Company and ~~the Subsidiaries,~~ its subsidiaries taken as a whole (~~a "~~“Material Adverse Effect"”). Except as disclosed in the Registration Statement and the Prospectus, neither the Company nor the Subsidiaries own, lease or license any material asset or property or conduct any material business outside the United States of America. . (x) Each subsidiary of the Company has been duly incorporated or formed, as applicable, and is validly existing as a corporation, limited partnership or limited liability company, as applicable, in good standing under the ~~Subsidiaries have all requisite corporate~~ laws of the jurisdiction of its incorporation or formation, as applicable, and has corporate, partnership or limited liability company, as applicable, or other entity power and ~~authority, and all necessary authorizations, approvals, consents, orders, licenses, certificates and permits of and from all governmental or regulatory bodies or any other person or entity,~~ authority to ~~own, lease and license their assets and~~ own its properties and conduct ~~their businesses as now being conducted and~~ its business as described in the ~~Registration Statement~~ General Disclosure Package; and each subsidiary of the ~~Prospectus~~ Company is duly qualified to do business as a foreign corporation in good standing in all other jurisdictions in which its ownership or lease of property or the conduct of its business requires such qualification, except for any such ~~authorizations, approvals, consents, orders, licenses, certificates and permits~~ jurisdiction where the failure to be so ~~obtain~~ qualified would not have a Material Adverse Effect; ~~no such authorization~~all of the issued and outstanding capital stock of each subsidiary of the Company has been duly authorized and validly issued and is fully paid and nonassessable; and the capital stock of each subsidiary owned by the Company, ~~approval~~directly or through subsidiaries, ~~consent~~is owned free from liens, ~~order, license, certificate or permit contains a materially burdensome restriction~~ encumbrances and defects (other than transfer restrictions imposed under applicable securities laws). (xi) The Offered Securities and all other outstanding shares of capital stock of the Company have been duly authorized; all outstanding shares of capital stock of the Company are, and, when the Offered Securities have been delivered and paid for in accordance with this Agreement on each Closing Date (as ~~disclosed~~ defined below), such Offered Securities will have been, validly issued, fully paid and nonassessable, will be consistent in all material respects with the information in the ~~Registration Statement~~ General Disclosure Package and will conform in all material respects to the description thereof contained in the Prospectus; and the stockholders of the Company ~~has all such corporate power and authority, and such authorizations, approvals, consents, orders, licenses, certificates and permits~~ have no preemptive rights with respect to ~~enter into, deliver and perform this Agreement and to issue and~~the Securities. (vixii) The Company and the Subsidiaries own or possess adequate and enforceable rights to use all patents, trademarks, trademark applications, trade names, service marks, copyrights, copyright applications, licenses, know-how and other similar rights and proprietary knowledge (collectively, "Intangibles") material to or necessary for the conduct of their business as described in the Registration Statement and the Prospectus. Except as disclosed in the ~~Registration Statement and the Prospectus~~General Disclosure Package, ~~neither~~ there are no contracts, agreements or understandings between the Company ~~nor~~ and any ~~of the Subsidiaries have received any notice of, and~~ person that would give rise to their knowledge are not aware of, any infringement of or conflict with asserted rights of others with respect to any Intangibles which, singly or in the aggregate, if the subject of an unfavorable decision, ruling or finding, could be reasonably expected to have a ~~Material Adverse Effect, and neither~~ valid claim against the Company ~~nor~~ or the ~~Subsidiaries know of any reasonable basis therefor.~~ Underwriter for a brokerage commission, finder’s fee or other like payment in connection with this offering. (xiii) Except as disclosed in the ~~Registration Statement~~ General Disclosure Package, there are no contracts, agreements or understandings between the Company and any person granting such person the ~~Prospectus,~~ right to require the ~~knowledge of~~ Company to file a registration statement under the ~~Company, no Intangibles~~ Act with respect to any securities of the Company owned or ~~the Subsidiaries are in dispute or are in any conflict with the right of any other~~ to be owned by such person or ~~entity and~~ to require the Company ~~and each of the Subsidiaries (A) has or will have the right (subject~~ to applicable agreements, which agreements provide for use to the extent necessary and desirable for the conduct of its business as currently conducted and as proposed to be conducted) to use, free and clear of all liens, charges, claims, encumbrances, pledges, security interests, defects, restrictions or equities of any kind whatsoever all licenses and rights to the Intangibles used include such securities in the ~~conduct of their business as now conducted or proposed~~ securities registered pursuant to ~~be conducted without infringing upon or otherwise acting adversely to the right or claimed right of any other person and (B) is not or will not become, as the case may be, obligated~~ a Registration Statement or in any ~~way liable for any payment by way of royalties, fees or otherwise and~~ securities being registered pursuant to any ~~owner~~ other registration statement filed by the Company under the Act that have not been complied with or ~~licensee~~ waived in writing. (xiv) The Offered Securities have been approved for listing on The New York Stock Exchange. (xv) No consent, approval, authorization, or order of, or ~~other claimant to~~filing with, any ~~Intangibles with respect~~ governmental agency or body or any court is required to be obtained or made by the ~~use thereof or~~ Company for the consummation of the transactions contemplated by this Agreement in connection with the ~~conduct of their business or otherwise, except in each case as disclosed in the Prospectus~~ issuance and except for any such payments, claims, uses, liens, charges, encumbrances, pledges, security interests, defects, restrictions and equities which would not have a Material Adverse Effect. (vii) The Company and the Subsidiaries have good and marketable title to each sale of the items of personal property which are reflected in the financial statements referred to in Section 4(a)(ii) or are referred to in the Registration Statement and the Prospectus as being owned by them and valid and enforceable leasehold interests in each of the items of real and personal property which are referred to in the Registration Statement and the Prospectus as being leased by them, in each case free and clear of all liens, encumbrances, claims, security interests and defects, other than those described in the Registration Statement and the Prospectus and those which do not and will not have a Material Adverse Effect. (viii) Except as described in the Registration Statement and the Prospectus, there is no litigation or governmental or other proceeding or investigation before any court or before or by any public body or board pending or, to the Company's knowledge, threatened (and the Company does not know of any reasonable basis therefor) against, or involving the assets, properties or business of, the Company or the Subsidiaries which, if adversely determined, could be reasonably expected to have a Material Adverse Effect. (ix) Subsequent to the respective dates as of which information is given in the Registration Statement and the Prospectus, except as described therein, (A) there has not been any material adverse change in the assets or properties, business, results of operations, prospects or condition (financial or otherwise) of the Company or the Subsidiaries taken as a whole, whether or not arising from transactions in the ordinary course of business; (B) neither the Company nor any of the Subsidiaries has sustained any material loss or interference with its assets, businesses or properties (whether owned, leased or licensed) from fire, explosion, earthquake, flood or other calamity, whether or not covered by insurance, or from any labor dispute or any court or legislative or other governmental action, order or decree; and (C) since the date of the latest balance sheet included in the Registration Statement and the Prospectus, except as reflected therein, neither the Company nor any of the Subsidiaries has (x) issued any securities (other than options or shares issued pursuant to exercise of employee stock options or warrants described in the Registration Statement and Prospectus) or incurred any liability or obligation, direct or contingent, for borrowed moneyOffered Securities, except such ~~liabilities or obligations incurred in~~ as have been obtained and made under the ~~ordinary course~~ Act and the Securities Exchange Act of ~~business,~~ 1934 (ythe “Exchange Act”) entered into any transaction not in the ordinary course of business or (z) declared or paid any dividend or made any distribution on any shares of its stock or redeemed, purchased or otherwise acquired or agreed to redeem, purchase or otherwise acquire any shares of its stock. (x) There is no material document or contract of a character required to be described in the Registration Statement or Prospectus or to be filed as an exhibit to the Registration Statement which is not described or filed as required. Each agreement listed in the Exhibits to the Registration Statement is in full force and effect or has terminated in accordance with its terms or by amendment and such ~~amendment has been filed~~ as an Exhibit to the Registration Statement or has otherwise been provided to the Representatives and, if not so terminated, is valid and enforceable in all material respects by and against the Company or the Subsidiaries, as the case may be, in accordance with its terms, assuming the due authorization, execution and delivery thereof by each of the other parties thereto, except as the enforceability thereof may be ~~limited by (i) bankruptcy, insolvency, reorganization, moratorium or other similar laws affecting the enforcement of creditors' rights generally and (ii) indemnification provisions~~ required under ~~Federal and~~ state securities laws; and that the remedy of specific forms of equitable relief may be subject to equitable defenses and the discretion of the court before which any such action may be brought. Neither the Company, the (xi) Neither the Company nor the Subsidiaries is in violation of any term or provision of their respective Certificate of Incorporation and By-laws, in each case as amended to the date hereof, or other governing documents, or of any franchise, license, permit, judgment, decree, order, statute, rule or regulation, where the consequences of such violation would have a Material Adverse Effect. Except as described in the Registration Statement or Prospectus, neither the Company nor any of the Subsidiaries intends to amend its Certificate of Incorporation and By-laws. (~~xii~~xvi) ~~Neither the~~ The execution, delivery and performance of this ~~Agreement by~~ Agreement, and the ~~Company~~ issuance and sale of the Offered Securities as herein contemplated will not result in a breach or ~~the Subsidiaries nor the consummation~~ violation of any of the ~~transactions contemplated hereby (including, without limitation, the issuance~~ terms and ~~sale by the Company of the Shares) will give rise to a right to terminate or accelerate the due date of any payment due under, or conflict with or result in the breach of any term or provision~~ provisions of, or constitute a default ~~(or an event which with notice or lapse of time or both would constitute a default)~~ under, (a) any statute, any rule, regulation or ~~require any consent or waiver under, or result in the execution or imposition~~ order of any ~~lien~~governmental agency or body or any court, ~~charge~~ domestic or ~~encumbrance upon any properties or assets of~~ foreign, having jurisdiction over the Company or any subsidiary of the ~~Subsidiaries pursuant to the terms of~~Company, (b) any ~~indenture~~of their properties, ~~mortgage, deed of trust~~ or ~~other~~ any agreement or instrument to which the Company or any ~~of the Subsidiaries~~ such subsidiary is a party or by which ~~it or any of its properties or businesses are bound, or any franchise, license, permit, judgment, decree, order, statute, rule or regulation applicable to~~ the Company or any such subsidiary is bound or to which any of the ~~Subsidiaries or violate any provision~~ properties of the ~~Certificate of Incorporation and By~~Company or any such subsidiary is subject, or (c) the charter or by-laws of the Company or any such subsidiary, except, in the case of ~~the Subsidiaries~~clauses (a) and (b) above, ~~except for such consents or waivers which have already been obtained and are in full force and effect or~~ as would not have a Material Adverse Effect~~. No consent~~, ~~approval, authorization, order, registration or qualification of or with any United States court or governmental agency or body is required for~~ and the Company has full power and authority to authorize and issue ~~and sale of~~ the ~~Shares or the consummation of the other transactions~~ Offered Securities as contemplated by this Agreement, which have not been obtained prior to the date hereof, except the registration under the Securities Act of the Shares, and such consents, approvals, authorizations, registrations or qualifications as may be required under state securities or Blue Sky laws -9- 10 in connection with the purchase and distribution of the Shares by the Underwriters. (~~xiii~~xvii) ~~The~~ This Agreement has been duly authorized, ~~issued~~ executed and outstanding capital stock of the Company and the capital stock reserved or committed for issuance is as set forth under the caption "Capitalization" in the Prospectus. All of the outstanding shares of Stock have been duly and validly issued and are fully paid and nonassessable, none of them was issued in violation of any preemptive or other similar right and, to the Company's knowledge, since 1991, none of them were issued in violation of any Federal or state securities laws. The Shares, when issued and sold pursuant to this Agreement, will be duly and validly issued, fully paid and nonassessable, none of them will be issued in violation of any preemptive or other similar right, any contractual right, including, without limitation, rights of first refusal, and, since 1991, none of them were issued in violation of any (subject to compliance with Section 1(c) hereof), Federal or state securities laws. Except as disclosed in the Registration Statement and the Prospectus, there is no outstanding option, warrant or other right calling for the issuance of, and there is no commitment, plan or arrangement to issue, any shares of Common Stock of the Company or any security convertible into, or exercisable or exchangeable for, such shares of Stock. The shares of Stock conform in all material respects to all statements in relation thereto contained in the Registration Statement and the Prospectus. The Company has a sufficient number of authorized but unissued shares of Stock to enable the Company to issue, without further stockholder action, or approve all the Shares to be sold delivered by the Company. (~~xiv~~xviii) ~~As of~~ Except as disclosed in the ~~date hereof~~General Disclosure Package, and as of each Closing Date, all of the outstanding shares of capital stock of the Subsidiaries are duly and validly authorized and issued, are fully paid and nonassessable and are and will be owned by the Company and ~~there is~~ its subsidiaries have good and ~~will~~ marketable title to all real properties and all other properties and assets owned by them, in each case free from liens, encumbrances and defects that would affect the value thereof or interfere with the use made or to be no outstanding option, warrant or other right calling for the issuance of, and no commitment, plan or arrangement to issue any share of capital stock of the Subsidiaries or any security convertible or exchangeable or exercisable for capital stock of the Subsidiariesmade thereof by them, except in each case as ~~otherwise described~~ would not, individually or in the ~~Registration Statement~~ aggregate, have a Material Adverse Effect; and ~~Prospectus. (xv) Except~~ except as set forth in the Registration Statement and Prospectus, no holder of any security of the Company has the right to have any security owned by such holder included in the Registration Statement or to demand registration of any security owned by such holder during the period ending 90 days after the date of this Agreement. Each Selling Stockholder and each director and executive officer of the Company has delivered tod

Appears in 1 contract

Sources: Underwriting Agreement (Spirit AeroSystems Holdings, Inc.)

Appears in 1 contract

Sources: Underwriting Agreement (Ultrapetrol Bahamas LTD)

Representations and Warranties of the Company and the Selling Stockholders. (a) The Company ~~hereby~~ represents and warrants ~~to each Underwriter as follows~~to, and agrees with, the several Underwriters that: (i) On A registration statement (No. 333-103833) relating to the ~~Effective Date~~Offered Securities, including a form of prospectus, has been filed with the Securities and Exchange Commission ("COMMISSION") and either (A) has been declared effective under the Securities Act of 1933 ("ACT") and is not proposed to be amended or (B) is proposed to be amended by amendment or post-effective amendment. If such registration statement (the "INITIAL REGISTRATION STATEMENT") has been declared effective, either (A) an additional registration statement (the "ADDITIONAL REGISTRATION STATEMENT") relating to the Offered Securities may have been filed with the Commission pursuant to Rule 462(b) ("RULE 462(b)") under the Act and, if so filed, has become effective upon filing pursuant to such Rule and the Offered Securities all have been duly registered under the Act pursuant to the initial registration statement and, if applicable, the ~~Registration Statement complied~~additional registration statement or (B) such an additional registration statement is proposed to be filed with the Commission pursuant to Rule 462(b) and will become effective upon filing pursuant to such Rule and upon such filing the Offered Securities will all have been duly registered under the Act pursuant to the initial registration statement and such additional registration statement. If the Company does not propose to amend the initial registration statement or if an additional registration statement has been filed and the Company does not propose to amend it, and ~~on the date of the Prospectus, on the date~~ if any post-effective amendment to ~~the Registration Statement shall become effective, on the date any supplement or amendment to the Prospectus is~~ either such registration statement has been filed with the Commission prior to the execution and ~~on each Closing Date~~delivery of this Agreement, the ~~Registration Statement and~~ most recent amendment (if any) to each such registration statement has been declared effective by the ~~Prospectus~~ Commission or has become effective upon filing pursuant to Rule 462(c) (~~and any amendment thereof or supplement thereto~~"RULE 462(c)") ~~will comply~~under the Act or, in ~~all material respects, with~~ the ~~applicable provisions~~ case of the ~~Securities Act~~ additional registration statement, Rule 462(b). For purposes of this Agreement, "EFFECTIVE TIME" with respect to the initial registration statement or, if filed prior to the execution and delivery of this Agreement, the ~~Rules;~~ additional registration statement means (iiA) ~~The documents~~ if the Company has advised Credit Suisse First Boston LLC ("CSFB"), Merrill Lynch & Co. and Merrill Lynch, Pierce, Fenner & Smith ▇▇▇▇▇▇o▇▇▇▇▇ (collectively, "▇ERRILL Lynch"; a▇▇ ▇▇▇ Re▇▇▇▇▇ntatives collectively, the "RE▇▇▇▇▇▇▇A▇▇▇▇▇") that ~~are incorporated~~ it does not propose to amend such registration statement, the date and time as of which such registration statement, or the most recent post-effective amendment thereto (if any) filed prior to the execution and delivery of this Agreement, was declared effective by ~~reference in~~ the ~~preliminary prospectus~~ Commission or has become effective upon filing pursuant to Rule 462(c), or (B) if the Company has advised the Representatives that it proposes to file an amendment or post-effective amendment to such registration statement, the date and ~~the Prospectus~~ time as of which such registration statement, as amended by such amendment or ~~from which information is so incorporated by reference, when they became~~ post-effective ~~or were filed with the Commission~~amendment, as the case may be, ~~complied~~ is declared effective by the Commission. If an additional registration statement has not been filed prior to the execution and delivery of this Agreement but the Company has advised the Representatives that it proposes to file one, "EFFECTIVE TIME" with respect to such additional registration statement means the date and time as of which such registration statement is filed and becomes effective pursuant to Rule 462(b). "EFFECTIVE DATE" with respect to the initial registration statement or the additional registration statement (if any) means the date of the Effective Time thereof. The initial registration statement, as amended at its Effective Time, including all material incorporated by reference therein, including all information contained in the additional registration statement (if any) and deemed to be a part of the initial registration statement as of the Effective Time of the additional registration statement pursuant to the General Instructions of the Form on which it is filed and including all information (if any) deemed to be a part of the initial registration statement as of its Effective Time pursuant to Rule 430A(b) ("RULE 430A(b)") under the Act, is hereinafter referred to as the "INITIAL REGISTRATION STATEMENT." The additional registration statement, as amended at its Effective Time, including the contents of the initial registration statement incorporated by reference therein and including all information (if any) deemed to be a part of the additional registration statement as of its Effective Time pursuant to Rule 430A(b), is hereinafter referred to as the "ADDITIONAL REGISTRATION STATEMENT." The Initial Registration Statement and the Additional Registration are hereinafter referred to collectively as the "REGISTRATION STATEMENTS" and individually as a "REGISTRATION STATEMENT." The form of prospectus relating to the Offered Securities, as first filed with the Commission pursuant to and in accordance with Rule 424(b) ("RULE 424(b)") under the Act or (if no such filing is required) as included in a Registration Statement, including all material incorporated by reference in such prospectus, is hereinafter referred to as the "PROSPECTUS." No document has been or will be prepared or distributed in reliance on Rule 434 under the Act. (ii) If the Effective Time of the Initial Registration Statement is prior to the execution and delivery of this Agreement: (A) on the Effective Date of the Initial Registration Statement, the Initial Registration Statement conformed in all ~~material~~ respects ~~with~~ to the requirements of the ~~Securities~~ Act ~~or the Securities Exchange Act of 1934, as amended (the "Exchange Act"), as applicable,~~ and the rules and regulations of the Commission ~~promulgated under~~ ("RULES AND REGULATIONS") and did not include any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the ~~Securities Act and the Exchange Act~~statements therein not misleading, ~~as applicable, except as amended and superseded by statements made in the Registration Statement; and any documents so filed and incorporated by reference subsequent to~~ (B) on the Effective Date ~~shall~~of the Additional Registration Statement (if any), ~~when they are filed with the Commission~~each Registration Statement conformed or will conform, ~~conform~~ in all ~~material~~ respects ~~with~~ to the requirements of the ~~Securities Act or the Exchange Act, as applicable, and the rules and regulations of the Commission promulgated under the Securities~~ Act and the ~~Exchange Act~~Rules and Regulations and did not include, or will not include, any untrue statement of a material fact and did not omit, or will not omit, to state any material fact required to be stated therein or necessary to make the statements therein not misleading, and (C) on the date of this Agreement, the Initial Registration Statement and, if the Effective Time of the Additional Registration Statement is prior to the execution and delivery of this Agreement, the Additional Registration Statement each conforms, and at the time of filing of the Prospectus pursuant to Rule 424(b) or (if no such filing is required) at the Effective Date of the Additional Registration Statement in which the Prospectus is included, each Registration Statement and the Prospectus will conform, in all respects to the requirements of the Act and the Rules and Regulations, and neither of such documents includes, or will include, any untrue statement of a material fact or omits, or will omit, to state any material fact required to be stated therein or necessary to make the statements therein not misleading. If the Effective Time of the Initial Registration Statement is subsequent to the execution and delivery of this Agreement: on the Effective Date of the Initial Registration Statement, the Initial Registration Statement and the Prospectus will conform in all respects to the requirements of the Act and the Rules and Regulations, neither of such documents will include any untrue statement of a material fact or will omit to state any material fact required to be stated therein or necessary to make the statements therein not misleading, and no Additional Registration Statement has been or will be filed. The two preceding sentences do not apply to statements in or omissions from a Registration Statement or the Prospectus based upon written information furnished to the Company by any Underwriter through the Representatives specifically for use therein, it being understood and agreed that the only such information is that described as ~~applicable~~such in Section 7(c) hereof. (iii) The consolidated financial statements of the Company (including all notes and schedules thereto) included in the Registration Statement and Prospectus present fairly the financial position, the results of operations and cash flows and the stockholders' equity and the other information purported to be shown therein of the Company and its subsidiaries, listed on Schedule III hereto (the "Subsidiaries"), at the respective dates and for the respective (iv) KPMG Peat Marwick LLP, whose report is filed with the Commission as a part of the Registration Statement, is and, during the periods covered by its reports, was independent public accountants as required by the Securities Act and the Rules. (v) The Company has been duly incorporated and is ~~a validly~~ an existing corporation in good standing under the laws of the State of ~~Delaware,~~ Delaware with power and ~~the Subsidiaries have been duly incorporated~~ authority (corporate and ~~are validly existing corporations under the laws of their respective jurisdictions. Other than the Subsidiaries, the Company has no subsidiaries~~ other) to own its properties and ~~does not control, directly or indirectly, any corporation, partnership, joint venture, association or other~~ conduct its business ~~organization, except~~ as described in the Registration Statement and the Prospectus. Each of the Company and the Subsidiaries is duly qualified and in good standing as a foreign corporation in each jurisdiction in which the character or location of its assets or properties (owned, leased or licensed) or the nature of its business makes such qualification necessary except for such jurisdictions where the failure to so qualify would not have a material adverse effect on the assets or properties, business, results of operations or condition (financial or otherwise) of the Company and the Subsidiaries, taken as a whole (a "Material Adverse Effect"). Except as disclosed in the Registration Statement and the Prospectus, neither the Company nor the Subsidiaries own, lease or license any material asset or property or conduct any material business outside the United States of America. Each of the Company and the Subsidiaries have all requisite corporate power and authority, and all necessary authorizations, approvals, consents, orders, licenses, certificates and permits of and from all governmental or regulatory bodies or any other person or entity, to own, lease and license their assets and properties and conduct their businesses as now being conducted and as described in the Registration Statement and the Prospectus except for such authorizations, approvals, consents, orders, licenses, certificates and permits the failure to so obtain would not have a Material Adverse Effect; no such authorization, approval, consent, order, license, certificate or permit contains a materially burdensome restriction other than as disclosed in the Registration Statement and the Prospectus; and the Company ~~has~~ is duly qualified to do business as a foreign corporation in good standing in all such corporate power and authority, and such authorizations, approvals, consents, orders, licenses, certificates and permits to enter into, deliver and perform this Agreement and to issue and (vi) The Company and the Subsidiaries own other jurisdictions in which its ownership or possess adequate and enforceable rights to use all patents, trademarks, trademark applications, trade names, service marks, copyrights, copyright applications, licenses, know-how and other similar rights and proprietary knowledge (collectively, "Intangibles") material to lease of property or ~~necessary for~~ the conduct of ~~their~~ its business requires such qualification. (iv) Each subsidiary of the Company has been duly incorporated or organized and is an existing corporation or other entity in good standing under the laws of the jurisdiction of its incorporation or organization, with power and authority (corporate and other) to own its properties and conduct its business as described in the ~~Registration Statement~~ Prospectus; and each subsidiary of the Company is duly qualified to do business as a foreign corporation or other entity in good standing in all other jurisdictions in which its ownership or lease of property or the conduct of its business requires such qualification; all of the issued and outstanding capital stock or other ownership interest of each subsidiary of the Company has been duly authorized and validly issued and is fully paid and nonassessable; and the capital stock or other ownership interest of each subsidiary owned by the Company, directly or through subsidiaries, is owned free from liens, encumbrances and defects. (v) The authorized, issued and outstanding capital stock of the Company is as set forth in the Prospectus in the column entitled "Actual" under the caption "Capitalization" and, as of each Closing Date, the authorized, issued and outstanding capital stock of the Company will be as set forth in the Prospectus under the column entitled "As Adjusted" under the caption "Capitalization" (except for subsequent issuances, if any, pursuant to this Agreement, pursuant to reservations, agreements or employee benefit plans referred to in the Prospectus or pursuant to the exercise of convertible securities or options referred to in the Prospectus). The Offered Securities and all other outstanding shares of capital stock of the Company have been duly authorized and validly issued. All other outstanding shares of capital stock of the Company (including the Offered Securities to be sold by the Selling Stockholders) are fully paid and nonassessable and, when the Offered Securities to be sold by the Company have been delivered and paid for in accordance with this Agreement, such Offered Securities will be fully paid and nonassessable. The Offered Securities and all other outstanding shares of capital stock of the Company conform to the description thereof contained or incorporated in the Prospectus; and the stockholders of the Company have no preemptive rights with respect to the Securities. (vi) Except as disclosed in the ~~Registration Statement and the~~ Prospectus, ~~neither~~ there are no contracts, agreements or understandings between the Company ~~nor~~ and any ~~of the Subsidiaries have received any notice of, and~~ person that would give rise to their knowledge are not aware of, any infringement of or conflict with asserted rights of others with respect to any Intangibles which, singly or in the aggregate, if the subject of an unfavorable decision, ruling or finding, could be reasonably expected to have a Material Adverse Effect, and neither the Company nor the Subsidiaries know of any reasonable basis therefor. Except as disclosed in the Registration Statement and the Prospectus, to the knowledge of the Company, no Intangibles of valid claim against the Company or ~~the Subsidiaries are in dispute or are in~~ any ~~conflict with the right of any other person or entity and the Company and each of the Subsidiaries (A) has or will have the right (subject to applicable agreements~~Underwriter for a brokerage commission, which agreements provide for use to the extent necessary and desirable for the conduct of its business as currently conducted and as proposed to be conducted) to use, free and clear of all liens, charges, claims, encumbrances, pledges, security interests, defects, restrictions or equities of any kind whatsoever all licenses and rights to the Intangibles used in the conduct of their business as now conducted or proposed to be conducted without infringing upon or otherwise acting adversely to the right or claimed right of any other person and (B) is not or will not become, as the case may be, obligated or in any way liable for any payment by way of royalties, fees or otherwise and to any owner or licensee of, finder's fee or other ~~claimant to, any Intangibles with respect to the use thereof or~~ like payment in connection with the conduct of their business or otherwise, except in each case as disclosed in the Prospectus and except for any such payments, claims, uses, liens, charges, encumbrances, pledges, security interests, defects, restrictions and equities which would not have a Material Adverse Effectthis offering. (vii) ~~The~~ There are no contracts, agreements or understandings between the Company and any person granting such person the ~~Subsidiaries have good and marketable title~~ right to ~~each~~ require the Company to file a registration statement under the Act with respect to any securities of the ~~items of personal property which are reflected~~ Company owned or to be owned by such person or to require the Company to include such securities in the ~~financial statements referred~~ securities registered pursuant to ~~in Section 4(a)(ii) or are referred to in the~~ a Registration Statement ~~and~~ or in any securities being registered pursuant to any other registration statement filed by the ~~Prospectus as being owned by them and valid and enforceable leasehold interests in each of~~ Company under the items of real and personal property which are referred to in the Registration Statement and the Prospectus as being leased by them, in each case free and clear of all liens, encumbrances, claims, security interests and defects, Act other than those ~~described~~ that have been complied with or waived in ~~the Registration Statement and the Prospectus and those which do not and will not have a Material Adverse Effect~~connection with this offering. (viii) ~~Except as~~ No relationship, direct or indirect, exists between or among the Company or any of their respective subsidiaries, on the one hand, and the directors, officers, shareholders, customers or suppliers of the Company or any of their respective subsidiaries on the other hand, which is required to be described in the ~~Registration Statement and the Prospectus, there~~ Prospectus which is ~~no litigation~~ not so described or ~~governmental or other proceeding or investigation before any court or before or~~ incorporated by any public body or board pending or, to the Company's knowledge, threatened (and the Company does not know of any reasonable basis therefor) against, or involving the assets, properties or business of, the Company or the Subsidiaries which, if adversely determined, could be reasonably expected to have a Material Adverse Effectreference therein. (ix) ~~Subsequent~~ The Offered Securities to the respective dates as of which information is given in the Registration Statement and the Prospectus, except as described therein, (A) there has not been any material adverse change in the assets or properties, business, results of operations, prospects or condition (financial or otherwise) of be sold by the Company or have been approved for listing on The New York Stock Exchange subject to notice of issuance. The Offered Securities to be sold by the Subsidiaries taken as a whole, whether or not arising from transactions in the ordinary course of business; (B) neither the Company nor any of the Subsidiaries has sustained any material loss or interference with its assets, businesses or properties (whether owned, leased or licensed) from fire, explosion, earthquake, flood or other calamity, whether or not covered by insurance, or from any labor dispute or any court or legislative or other governmental action, order or decree; and (C) since the date of the latest balance sheet included in the Registration Statement and the Prospectus, except as reflected therein, neither the Company nor any of the Subsidiaries has (x) issued any securities (other than options or shares issued pursuant to exercise of employee stock options or warrants described in the Registration Statement and Prospectus) or incurred any liability or obligation, direct or contingent, for borrowed money, except such liabilities or obligations incurred in the ordinary course of business, (y) entered into any transaction not in the ordinary course of business or (z) declared or paid any dividend or made any distribution Selling Stockholders have been listed on ~~any shares of its stock or redeemed, purchased or otherwise acquired or agreed to redeem, purchase or otherwise acquire any shares of its stock~~The New York Stock Exchange. (x) No consent, approval, authorization, or order of, or filing with, any governmental agency or body or any court is required to be obtained or made by the Company for the consummation of the transactions contemplated by this Agreement in connection with the sale of the Offered Securities, except such as have been obtained and made under the Act and such as may be required under state securities laws. (xi) There is are no ~~material document~~ contracts or ~~contract of a character~~ documents which are required to be described in the Registration Statement or the Prospectus or to be filed as ~~an exhibit to the Registration Statement~~ exhibits thereto which is have not been so described or and filed as required. Each agreement listed in the Exhibits to the Registration Statement is in full force and effect or has terminated in accordance with its terms or by amendment and such amendment has been filed as an Exhibit to the Registration Statement or has otherwise been provided to the Representatives and, if not so terminated, is valid and enforceable in all material respects by and against the Company or the Subsidiaries, as the case may be, in accordance with its terms, assuming the due authorization, execution and delivery thereof by each of the other parties thereto, except as the enforceability thereof may be limited by (i) bankruptcy, insolvency, reorganization, moratorium or other similar laws affecting the enforcement of creditors' rights generally and (ii) indemnification provisions under Federal and state securities laws; and that the remedy of specific forms of equitable relief may be subject to equitable defenses and the discretion of the court before which any such action may be brought. Neither the Company, the (xi) Neither the Company nor the Subsidiaries is in violation of any term or provision of their respective Certificate of Incorporation and By-laws, in each case as amended to the date hereof, or other governing documents, or of any franchise, license, permit, judgment, decree, order, statute, rule or regulation, where the consequences of such violation would have a Material Adverse Effect. Except as described in the Registration Statement or Prospectus, neither the Company nor any of the Subsidiaries intends to amend its Certificate of Incorporation and By-laws. (xii) Neither the ~~execution~~Company nor any of its subsidiaries is (1) in violation of its charter or by-laws, ~~delivery and~~ or other organizational documents, or in default in the performance ~~of this Agreement by the Company~~ or ~~the Subsidiaries nor the consummation~~ observance of any ~~of the transactions contemplated hereby (including~~obligation, ~~without limitation~~agreement, ~~the issuance and sale by the Company of the Shares) will give rise to a right to terminate~~ covenant or ~~accelerate the due date of~~ condition contained in any ~~payment due under~~contract, or conflict with or result in the breach of any term or provision of, or constitute a default (or an event which with notice or lapse of time or both would constitute a default) under, or require any consent or waiver under, or result in the execution or imposition of any lien, charge or encumbrance upon any properties or assets of the Company or any of the Subsidiaries pursuant to the terms of, any indenture, mortgage, deed of ~~trust~~ trust, loan or credit agreement, note, lease or other agreement or instrument to which the Company or any of ~~the Subsidiaries~~ its subsidiaries is a party or by which it or any of ~~its properties or businesses are~~ them may be bound, or ~~any franchise, license, permit, judgment, decree, order, statute, rule or regulation applicable~~ to ~~the Company or~~ which any of the ~~Subsidiaries~~ property or ~~violate any provision of the Certificate of Incorporation and By-laws~~ assets of the Company or any subsidiary is subject (collectively, "AGREEMENTS AND Instruments") except for such defaults that, individually or in the aggregate, would not have a material adverse effect on the condition (financial or other), business, properties or results of operations of the ~~Subsidiaries~~Company and its subsidiaries taken as a whole ("MATERIAL ADVERSE EFFECT") or (2) in violation in any material respect of any law, ordinance, governmental rule, regulation or court decree to which it or its property or assets may be subject or has failed to obtain any material license, permit, certificate, franchise or other governmental authorization or permit necessary to the ownership of its property or assets or to the conduct of its business, except for such ~~consents~~ violations or ~~waivers which~~ failures that, individually or in the aggregate, would not result in a Material Adverse Effect; and the execution, delivery and performance of this Agreement and the consummation of the transactions contemplated in this Agreement and in the Registration Statement (including the issuance and sale of the Offered Securities to be sold by the Company and the use of the proceeds from the sale of the Offered Securities to be sold by the Company as described in the Prospectus under the caption "Use of Proceeds") and compliance by the Company with its obligations under this Agreement have ~~already~~ been ~~obtained~~ duly authorized by all necessary corporate action and, except as disclosed in the Prospectus, do not and ~~are~~ will not, whether with or without the giving of notice or passage of time or both, conflict with or constitute a breach of, or default or Repayment Event (as defined below) under, or result in ~~full force~~ the creation or imposition of any lien, charge or encumbrance upon any property or assets of the Company or any subsidiary pursuant to, the Agreements and ~~effect~~ Instruments (except for such conflicts, breaches or defaults or liens, charges or encumbrances that would not result in a Material Adverse Effect), nor will such action result in any violation of the provisions of the charter or by-laws, or other organizational documents, of the Company or any subsidiary or any applicable law, statute, rule, regulation, judgment, order, writ or decree of any government, government instrumentality or court, domestic or foreign, having jurisdiction over the Company or any subsidiary or any of their assets, properties or operations, except as would not have a Material Adverse Effect. ~~No consent~~As used herein, ~~approval, authorization, order, registration~~ a "REPAYMENT EVENT" means any event or ~~qualification of or with any United States court or governmental agency or body is required for~~ condition which gives the issue and sale of the Shares or the consummation of the other transactions contemplated by this Agreement, which have not been obtained prior to the date hereof, except the registration under the Securities Act of the Shares, and such consents, approvals, authorizations, registrations or qualifications as may be required under state securities or Blue Sky laws -9- 10 in connection with the purchase and distribution of the Shares by the Underwriters. (xiii) The authorized, issued and outstanding capital stock of the Company and the capital stock reserved or committed for issuance is as set forth under the caption "Capitalization" in the Prospectus. All of the outstanding shares of Stock have been duly and validly issued and are fully paid and nonassessable, none of them was issued in violation of any preemptive or other similar right and, to the Company's knowledge, since 1991, none of them were issued in violation of any Federal or state securities laws. The Shares, when issued and sold pursuant to this Agreement, will be duly and validly issued, fully paid and nonassessable, none of them will be issued in violation of any preemptive or other similar right, any contractual right, including, without limitation, rights of first refusal, and, since 1991, none of them were issued in violation of any (subject to compliance with Section 1(c) hereof), Federal or state securities laws. Except as disclosed in the Registration Statement and the Prospectus, there is no outstanding option, warrant or other right calling for the issuance of, and there is no commitment, plan or arrangement to issue, any shares of Common Stock of the Company or any security convertible into, or exercisable or exchangeable for, such shares of Stock. The shares of Stock conform in all material respects to all statements in relation thereto contained in the Registration Statement and the Prospectus. The Company has a sufficient number of authorized but unissued shares of Stock to enable the Company to issue, without further stockholder action, or approve all the Shares to be sold by the Company. (xiv) As of the date hereof, and as of each Closing Date, all of the outstanding shares of capital stock of the Subsidiaries are duly and validly authorized and issued, are fully paid and nonassessable and are and will be owned by the Company and there is and will be no outstanding option, warrant or other right calling for the issuance of, and no commitment, plan or arrangement to issue any share of capital stock of the Subsidiaries or any security convertible or exchangeable or exercisable for capital stock of the Subsidiaries, except as otherwise described in the Registration Statement and Prospectus. (xv) Except as set forth in the Registration Statement and Prospectus, no holder of any ~~security~~ note, debenture or other evidence of ~~the Company has~~ indebtedness (or any person acting on such holder's behalf) the right to ~~have any security owned by such holder included in~~ require the Registration Statement or to demand registration of any security owned by such holder during the period ending 90 days after the date of this Agreement. Each Selling Stockholder and each director and executive officer of the Company has delivered torepurchase

Appears in 1 contract

Sources: Underwriting Agreement (Energy Partners LTD)

Representations and Warranties of the Company and the Selling Stockholders. (a) The Company ~~hereby represents~~ and ~~warrants to each Underwriter as follows~~the Knight Selling Stockholders jointly and severally represent and warrant to, and agree with, the several Underwriters that: (i) On A registration statement (No. 333- [___________]) relating to the ~~Effective Date~~Offered Securities, including a form of prospectus, has been filed with the Securities and Exchange Commission ("COMMISSION") and either (A) has been declared effective under the Securities Act of 1933 ("ACT") and is not proposed to be amended or (B) is proposed to be amended by amendment or post-effective amendment. If such registration statement (the "INITIAL REGISTRATION STATEMENT") has been declared effective, either (A) an additional registration statement (the "ADDITIONAL REGISTRATION STATEMENT") relating to the Offered Securities may have been filed with the Commission pursuant to Rule 462(b) ("RULE 462(B)") under the Act and, if so filed, has become effective upon filing pursuant to such Rule and the Offered Securities all have been duly registered under the Act pursuant to the initial registration statement and, if applicable, the ~~Registration Statement complied~~additional registration statement or (B) such an additional registration statement is proposed to be filed with the Commission pursuant to Rule 462(b) and will become effective upon filing pursuant to such Rule and upon such filing the Offered Securities will all have been duly registered under the Act pursuant to the initial registration statement and such additional registration statement. If the Company does not propose to amend the initial registration statement or if an additional registration statement has been filed and the Company does not propose to amend it, and ~~on the date of the Prospectus, on the date~~ if any post-effective amendment to ~~the Registration Statement shall become effective, on the date any supplement or amendment to the Prospectus is~~ either such registration statement has been filed with the Commission prior to the execution and ~~on each Closing Date~~delivery of this Agreement, the ~~Registration Statement and~~ most recent amendment (if any) to each such registration statement has been declared effective by the ~~Prospectus~~ Commission or has become effective upon filing pursuant to Rule 462(c) (~~and any amendment thereof or supplement thereto~~"RULE 462(C)") ~~will comply~~under the Act or, in ~~all material respects, with~~ the ~~applicable provisions~~ case of the ~~Securities Act~~ additional registration statement, Rule 462(b). For purposes of this Agreement, "EFFECTIVE Time" with respect to the initial registration statement or, if filed prior to the execution and delivery of this Agreement, the ~~Rules;~~ additional registration statement means (iiA) ~~The documents~~ if the Company has advised the Representatives that ~~are incorporated~~ it does not propose to amend such registration statement, the date and time as of which such registration statement, or the most recent post-effective amendment thereto (if any) filed prior to the execution and delivery of this Agreement, was declared effective by ~~reference in~~ the ~~preliminary prospectus~~ Commission or has become effective upon filing pursuant to Rule 462(c), or (B) if the Company has advised the Representatives that it proposes to file an amendment or post-effective amendment to such registration statement, the date and ~~the Prospectus~~ time as of which such registration statement, as amended by such amendment or ~~from which information is so incorporated by reference, when they became~~ post-effective ~~or were filed with the Commission~~amendment, as the case may be, ~~complied in all material respects~~ is declared effective by the Commission. If an additional registration statement has not been filed prior to the execution and delivery of this Agreement but the Company has advised the Representative[s] that it proposes to file one, "EFFECTIVE TIME" with respect to such additional registration statement means the ~~requirements~~ date and time as of which such registration statement is filed and becomes effective pursuant to Rule 462(b). "EFFECTIVE DATE" with respect to the initial registration statement or the additional registration statement (if any) means the date of the ~~Securities Act or the Securities Exchange Act of 1934~~Effective Time thereof. The initial registration statement, as amended ~~(the "Exchange Act")~~at its Effective Time, as applicable, and the rules and regulations of the Commission promulgated under the Securities Act and the Exchange Act, as applicable, except as amended and superseded by statements made in the Registration Statement; and any documents so filed and including all material incorporated by reference ~~subsequent~~ therein, including all information contained in the additional registration statement (if any) and deemed to be a part of the initial registration statement as of the Effective Time of the additional registration statement pursuant to the ~~Effective Date shall, when they are filed with the Commission, conform in all material respects with the requirements~~ General Instructions of the ~~Securities Act or~~ Form on which it is filed and including all information (if any) deemed to be a part of the ~~Exchange~~ initial registration statement as of its Effective Time pursuant to Rule 430A(b) ("RULE 430A(B)") under the Act, is hereinafter referred to as ~~applicable~~the "INITIAL REGISTRATION STATEMENT". The additional registration statement, ~~and~~ as amended at its Effective Time, including the ~~rules and regulations~~ contents of the ~~Commission promulgated under the Securities Act~~ initial registration statement incorporated by reference therein and ~~the Exchange Act, as applicable.~~ including all information (~~iii~~if any) ~~The consolidated financial statements~~ deemed to be a part of the ~~Company (including all notes and schedules thereto) included in~~ additional registration statement as of its Effective Time pursuant to Rule 430A(b), is hereinafter referred to as the "ADDITIONAL REGISTRATION STATEMENT". The Initial Registration Statement and ~~Prospectus present fairly~~ the ~~financial position, the results of operations and cash flows and the stockholders' equity and the other information purported~~ Additional Registration are hereinafter referred to ~~be shown therein of the Company and its subsidiaries, listed on Schedule III hereto (~~collectively as the "~~Subsidiaries~~REGISTRATION STATEMENTS" and individually as a ")REGISTRATION STATEMENT". The form of prospectus relating to the Offered Securities, ~~at the respective dates and for the respective (iv) KPMG Peat Marwick LLP, whose report is~~ as first filed with the Commission pursuant to and in accordance with Rule 424(b) ("RULE 424(B)") under the Act or (if no such filing is required) as included in a ~~part of the~~ Registration Statement, including all material incorporated by reference in such prospectus, is ~~and, during~~ hereinafter referred to as the ~~periods covered by its reports, was independent public accountants as required by the Securities Act and the Rules. (v) The Company~~ "PROSPECTUS". No document has been ~~duly incorporated and is a validly existing corporation~~ or will be prepared or distributed in reliance on Rule 434 under the laws of the State of Delaware, and the Subsidiaries have been duly incorporated and are validly existing corporations under the laws of their respective jurisdictions. Other than the Subsidiaries, the Company has no subsidiaries and does not control, directly or indirectly, any corporation, partnership, joint venture, association or other business organization, except as described in the Registration Statement and the Prospectus. Each of the Company and the Subsidiaries is duly qualified and in good standing as a foreign corporation in each jurisdiction in which the character or location of its assets or properties (owned, leased or licensed) or the nature of its business makes such qualification necessary except for such jurisdictions where the failure to so qualify would not have a material adverse effect on the assets or properties, business, results of operations or condition (financial or otherwise) of the Company and the Subsidiaries, taken as a whole (a "Material Adverse Effect"). Except as disclosed in the Registration Statement and the Prospectus, neither the Company nor the Subsidiaries own, lease or license any material asset or property or conduct any material business outside the United States of America. Each of the Company and the Subsidiaries have all requisite corporate power and authority, and all necessary authorizations, approvals, consents, orders, licenses, certificates and permits of and from all governmental or regulatory bodies or any other person or entity, to own, lease and license their assets and properties and conduct their businesses as now being conducted and as described in the Registration Statement and the Prospectus except for such authorizations, approvals, consents, orders, licenses, certificates and permits the failure to so obtain would not have a Material Adverse Effect; no such authorization, approval, consent, order, license, certificate or permit contains a materially burdensome restriction other than as disclosed in the Registration Statement and the Prospectus; and the Company has all such corporate power and authority, and such authorizations, approvals, consents, orders, licenses, certificates and permits to enter into, deliver and perform this Agreement and to issue and (vi) The Company and the Subsidiaries own or possess adequate and enforceable rights to use all patents, trademarks, trademark applications, trade names, service marks, copyrights, copyright applications, licenses, know-how and other similar rights and proprietary knowledge (collectively, "Intangibles") material to or necessary for the conduct of their business as described in the Registration Statement and the Prospectus. Except as disclosed in the Registration Statement and the Prospectus, neither the Company nor any of the Subsidiaries have received any notice of, and to their knowledge are not aware of, any infringement of or conflict with asserted rights of others with respect to any Intangibles which, singly or in the aggregate, if the subject of an unfavorable decision, ruling or finding, could be reasonably expected to have a Material Adverse Effect, and neither the Company nor the Subsidiaries know of any reasonable basis therefor. Except as disclosed in the Registration Statement and the Prospectus, to the knowledge of the Company, no Intangibles of the Company or the Subsidiaries are in dispute or are in any conflict with the right of any other person or entity and the Company and each of the Subsidiaries (A) has or will have the right (subject to applicable agreements, which agreements provide for use to the extent necessary and desirable for the conduct of its business as currently conducted and as proposed to be conducted) to use, free and clear of all liens, charges, claims, encumbrances, pledges, security interests, defects, restrictions or equities of any kind whatsoever all licenses and rights to the Intangibles used in the conduct of their business as now conducted or proposed to be conducted without infringing upon or otherwise acting adversely to the right or claimed right of any other person and (B) is not or will not become, as the case may be, obligated or in any way liable for any payment by way of royalties, fees or otherwise and to any owner or licensee of, or other claimant to, any Intangibles with respect to the use thereof or in connection with the conduct of their business or otherwise, except in each case as disclosed in the Prospectus and except for any such payments, claims, uses, liens, charges, encumbrances, pledges, security interests, defects, restrictions and equities which would not have a Material Adverse EffectAct. (vii) The Company and the Subsidiaries have good and marketable title to each of the items of personal property which are reflected in the financial statements referred to in Section 4(a)(ii) or are referred to in the Registration Statement and the Prospectus as being owned by them and valid and enforceable leasehold interests in each of the items of real and personal property which are referred to in the Registration Statement and the Prospectus as being leased by them, in each case free and clear of all liens, encumbrances, claims, security interests and defects, other than those described in the Registration Statement and the Prospectus and those which do not and will not have a Material Adverse Effect. (viii) Except as described in the Registration Statement and the Prospectus, there is no litigation or governmental or other proceeding or investigation before any court or before or by any public body or board pending or, to the Company's knowledge, threatened (and the Company does not know of any reasonable basis therefor) against, or involving the assets, properties or business of, the Company or the Subsidiaries which, if adversely determined, could be reasonably expected to have a Material Adverse Effect. (ix) Subsequent to the respective dates as of which information is given in the Registration Statement and the Prospectus, except as described therein, (A) there has not been any material adverse change in the assets or properties, business, results of operations, prospects or condition (financial or otherwise) of the Company or the Subsidiaries taken as a whole, whether or not arising from transactions in the ordinary course of business; (B) neither the Company nor any of the Subsidiaries has sustained any material loss or interference with its assets, businesses or properties (whether owned, leased or licensed) from fire, explosion, earthquake, flood or other calamity, whether or not covered by insurance, or from any labor dispute or any court or legislative or other governmental action, order or decree; and (C) since the date of the latest balance sheet included in the Registration Statement and the Prospectus, except as reflected therein, neither the Company nor any of the Subsidiaries has (x) issued any securities (other than options or shares issued pursuant to exercise of employee stock options or warrants described in the Registration Statement and Prospectus) or incurred any liability or obligation, direct or contingent, for borrowed money, except such liabilities or obligations incurred in the ordinary course of business, (y) entered into any transaction not in the ordinary course of business or (z) declared or paid any dividend or made any distribution on any shares of its stock or redeemed, purchased or otherwise acquired or agreed to redeem, purchase or otherwise acquire any shares of its stock. (x) There is no material document or contract of a character required to be described in the Registration Statement or Prospectus or to be filed as an exhibit to the Registration Statement which is not described or filed as required. Each agreement listed in the Exhibits to the Registration Statement is in full force and effect or has terminated in accordance with its terms or by amendment and such amendment has been filed as an Exhibit to the Registration Statement or has otherwise been provided to the Representatives and, if not so terminated, is valid and enforceable in all material respects by and against the Company or the Subsidiaries, as the case may be, in accordance with its terms, assuming the due authorization, execution and delivery thereof by each of the other parties thereto, except as the enforceability thereof may be limited by (i) bankruptcy, insolvency, reorganization, moratorium or other similar laws affecting the enforcement of creditors' rights generally and (ii) indemnification provisions under Federal and state securities laws; and that the remedy of specific forms of equitable relief may be subject to equitable defenses and the discretion of the court before which any such action may be brought. Neither the Company, the (xi) Neither the Company nor the Subsidiaries is in violation of any term or provision of their respective Certificate of Incorporation and By-laws, in each case as amended to the date hereof, or other governing documents, or of any franchise, license, permit, judgment, decree, order, statute, rule or regulation, where the consequences of such violation would have a Material Adverse Effect. Except as described in the Registration Statement or Prospectus, neither the Company nor any of the Subsidiaries intends to amend its Certificate of Incorporation and By-laws. (xii) Neither the execution, delivery and performance of this Agreement by the Company or the Subsidiaries nor the consummation of any of the transactions contemplated hereby (including, without limitation, the issuance and sale by the Company of the Shares) will give rise to a right to terminate or accelerate the due date of any payment due under, or conflict with or result in the breach of any term or provision of, or constitute a default (or an event which with notice or lapse of time or both would constitute a default) under, or require any consent or waiver under, or result in the execution or imposition of any lien, charge or encumbrance upon any properties or assets of the Company or any of the Subsidiaries pursuant to the terms of, any indenture, mortgage, deed of trust or other agreement or instrument to which the Company or any of the Subsidiaries is a party or by which it or any of its properties or businesses are bound, or any franchise, license, permit, judgment, decree, order, statute, rule or regulation applicable to the Company or any of the Subsidiaries or violate any provision of the Certificate of Incorporation and By-laws of the Company or any of the Subsidiaries, except for such consents or waivers which have already been obtained and are in full force and effect or as would not have a Material Adverse Effect. No consent, approval, authorization, order, registration or qualification of or with any United States court or governmental agency or body is required for the issue and sale of the Shares or the consummation of the other transactions contemplated by this Agreement, which have not been obtained prior to the date hereof, except the registration under the Securities Act of the Shares, and such consents, approvals, authorizations, registrations or qualifications as may be required under state securities or Blue Sky laws -9- 10 in connection with the purchase and distribution of the Shares by the Underwriters. (xiii) The authorized, issued and outstanding capital stock of the Company and the capital stock reserved or committed for issuance is as set forth under the caption "Capitalization" in the Prospectus. All of the outstanding shares of Stock have been duly and validly issued and are fully paid and nonassessable, none of them was issued in violation of any preemptive or other similar right and, to the Company's knowledge, since 1991, none of them were issued in violation of any Federal or state securities laws. The Shares, when issued and sold pursuant to this Agreement, will be duly and validly issued, fully paid and nonassessable, none of them will be issued in violation of any preemptive or other similar right, any contractual right, including, without limitation, rights of first refusal, and, since 1991, none of them were issued in violation of any (subject to compliance with Section 1(c) hereof), Federal or state securities laws. Except as disclosed in the Registration Statement and the Prospectus, there is no outstanding option, warrant or other right calling for the issuance of, and there is no commitment, plan or arrangement to issue, any shares of Common Stock of the Company or any security convertible into, or exercisable or exchangeable for, such shares of Stock. The shares of Stock conform in all material respects to all statements in relation thereto contained in the Registration Statement and the Prospectus. The Company has a sufficient number of authorized but unissued shares of Stock to enable the Company to issue, without further stockholder action, or approve all the Shares to be sold by the Company. (xiv) As of the date hereof, and as of each Closing Date, all of the outstanding shares of capital stock of the Subsidiaries are duly and validly authorized and issued, are fully paid and nonassessable and are and will be owned by the Company and there is and will be no outstanding option, warrant or other right calling for the issuance of, and no commitment, plan or arrangement to issue any share of capital stock of the Subsidiaries or any security convertible or exchangeable or exercisable for capital stock of the Subsidiaries, except as otherwise described in the Registration Statement and Prospectus. (xv) Except as set forth in the Registration Statement and Prospectus, no holder of any security of the Company has the right to have any security owned by such holder included in the Registration Statement or to demand registration of any security owned by such holder during the period ending 90 days after the date of this Agreement. Each Selling Stockholder and each director and executive officer of the Company has delivered to

Appears in 1 contract

Sources: Underwriting Agreement (Knight Transportation Inc)

Appears in 1 contract

Sources: Purchase Agreement (Optimer Pharmaceuticals Inc)

Appears in 1 contract

Sources: Underwriting Agreement (CVS Corp)

Representations and Warranties of the Company and the Selling Stockholders. (a) The Company ~~hereby~~ represents and warrants ~~to each Underwriter~~ to, and agrees with, the several Underwriters as follows: (i) On The Company satisfies the ~~Effective Date,~~ requirements for and is eligible to use a Form S-3 registration statement under the Act and the Rules and Regulations pursuant to the standards of that Form currently in effect and applicable to the Company. (ii) The Registration Statement has become effective; no stop order suspending the effectiveness of the Registration Statement ~~complied~~is in effect, and on no proceedings for such purpose have been initiated or are pending before or, to the ~~date~~ Company’s knowledge, are threatened by the Commission. (iii) No order preventing or suspending the use of any Preliminary Prospectus has been issued by the Commission and each Preliminary Prospectus, at the time of filing thereof, did not contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in the light of the ~~Prospectus~~circumstances under which they were made, on not misleading; except that the ~~date~~ foregoing shall not apply to statements in or omissions from any Preliminary Prospectus in reliance upon, and in conformity with, written information furnished to the Company by you, or by any Underwriter through you, specifically for use in the preparation thereof. (iv) As of the time the Registration Statement (or any post-effective amendment thereto, including a registration statement (if any) filed pursuant to Rule 462(b) of the Rules and Regulations increasing the size of the offering registered under the Act) is or was declared effective by the Commission, upon the filing or first delivery to the ~~Registration Statement shall become effective, on~~ Underwriters of the ~~date~~ Prospectus (or any supplement ~~or amendment~~ to the Prospectus ~~is filed with~~ (including any term sheet meeting the ~~Commission~~ requirements of Rule 434 of the Rules and ~~on each~~ Regulations)) and at the First Closing ~~Date~~Date and Second Closing Date (as hereinafter defined), (A) the Registration Statement and Prospectus (in each case, as so amended and/or supplemented) complied or will comply in all material respects to the requirements of the Act and the Rules and Regulations, (B) the Registration Statement (as so amended) did not or will not include an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading, and (C) the Prospectus (~~and~~ as so supplemented) did not or will not include an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances in which they are or were made, not misleading; except that the foregoing shall not apply to statements in or omissions from the Registration Statement or Prospectus based upon information relating to any Underwriter furnished to the Company in writing by such Underwriter through you specifically for use therein. (v) Each preliminary prospectus filed as part of the registration statement as originally filed or as part of any amendment ~~thereof~~ thereto, or ~~supplement thereto) will comply~~filed pursuant to Rule 424 under the Act, complied when so filed in all material ~~respects,~~ respects with the ~~applicable provisions of the Securities~~ Act and the ~~Rules;~~Rules and Regulations. (iivi) The documents ~~that are~~ incorporated by reference in the ~~preliminary prospectus and the Prospectus or from which information is so incorporated by reference~~Prospectus, when they ~~became effective or~~ were filed with the Commission~~, as the case may be~~, complied in all material respects with the requirements of the ~~Securities Act or the Securities~~ Exchange Act ~~of 1934, as amended (the "Exchange Act"), as applicable,~~ and the applicable rules and regulations of the Commission ~~promulgated under~~ thereunder, and none of such documents contained an untrue statement of a material fact or omitted to state a material fact necessary to make the ~~Securities Act and the Exchange Act~~statements therein, ~~as applicable, except as amended and superseded by statements made~~ in the ~~Registration Statement~~light of the circumstances under which they were made, not misleading; and any further documents so filed and incorporated by reference ~~subsequent to~~ in the ~~Effective Date shall~~Prospectus, when ~~they~~ such documents are filed with the Commission, ~~conform~~ will comply in all material respects to the requirements of the Exchange Act and the applicable rules and regulations of the Commission thereunder, and will not contain an untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading. (vii) The financial statements of the Company, together with the related notes, set forth in the Registration Statement and Prospectus comply in all material respects with the requirements of the ~~Securities Act or the Exchange Act, as applicable, and the rules and regulations of the Commission promulgated under the Securities~~ Act and fairly present the ~~Exchange Act, as applicable. (iii) The consolidated~~ financial ~~statements~~ condition of the Company (as of the dates indicated and the results of operations and changes in cash flows for the periods therein specified in conformity with generally accepted accounting principles consistently applied throughout the periods involved; and the supporting schedules included in the Registration Statement present fairly the information required to be stated therein. The pro forma combined financial statement data set forth or incorporated by reference in the Registration Statement and Prospectus have been prepared in accordance with the requirements of the Act, including Regulation S-X thereunder, and comply in all ~~notes~~ material respects with such requirements. The Company has no reason to believe that the assumptions upon which the pro forma combined financial statement data are prepared are not reasonable assumptions given the circumstances under which such assumptions were made. No other financial statements, pro forma financial data or schedules are required to be included in the Registration Statement or Prospectus. Deloitte & Touche LLP, which has expressed its opinion with respect to the financial statements and schedules ~~thereto)~~ for the years ended December 31, 2003 and 2002 filed as a part of the Registration Statement and included in the Registration Statement and ~~Prospectus present fairly~~ Prospectus, is (x) an independent public accounting firm with respect to the ~~financial position,~~ Company within the ~~results~~ meaning of ~~operations and cash flows~~ the Act and the ~~stockholders' equity~~ Rules and Regulations, (y) to the Company’s knowledge, a registered public accounting firm (as defined in Section 2(a)(12) of the ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act of 2002 (the “▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act”)) and (z) not in violation of the auditor independence requirements of the ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act. ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ LLP was an independent public accounting firm with respect to the Company within the meaning of the Act and the ~~other information purported~~ Rules and Regulations with respect to ~~be shown therein~~ its audit of the Company’s financial statements for the year ended December 31, 2001. (viii) Each of the Company and its subsidiaries, listed on Schedule III hereto (the "Subsidiaries"), at the respective dates and for the respective (iv) KPMG Peat Marwick LLP, whose report is filed with the Commission as a part of the Registration Statement, is and, during the periods covered by its reports, was independent public accountants as required by the Securities Act and the Rules. (v) The Company subsidiaries has been duly ~~incorporated~~ organized and is a validly existing as a corporation or limited liability company, as applicable, in good standing under the laws of ~~the State~~ its jurisdiction of ~~Delaware~~incorporation or formation, and the Subsidiaries have been duly incorporated and are validly existing corporations under the laws of their respective jurisdictions. Other than the Subsidiaries, the Company has no subsidiaries and does not control, directly or indirectly, any corporation, partnership, joint venture, association or other business organization, except as ~~described in the Registration Statement and the Prospectus~~applicable. Each of the Company and ~~the Subsidiaries is duly qualified and in good standing as a foreign corporation in each jurisdiction in which the character~~ its subsidiaries has full corporate or location of its assets or properties (owned, leased or licensed) or the nature of its business makes such qualification necessary except for such jurisdictions where the failure to so qualify would not have a material adverse effect on the assets or properties, business, results of operations or condition (financial or otherwise) of the Company and the Subsidiaries, taken as a whole (a "Material Adverse Effect"). Except as disclosed in the Registration Statement and the Prospectus, neither the Company nor the Subsidiaries own, lease or license any material asset or property or conduct any material business outside the United States of America. Each of the Company and the Subsidiaries have all requisite corporate limited liability company power and ~~authority, and all necessary authorizations, approvals, consents, orders, licenses, certificates and permits of and from all governmental or regulatory bodies or any other person or entity,~~ authority to own, lease and ~~license their assets and~~ operate its properties and conduct ~~their businesses~~ its business as ~~now~~ currently being conducted and as described in the Registration Statement and the Prospectus except for such authorizations, approvals, consents, orders, licenses, certificates and permits the failure to so obtain would not have a Material Adverse Effect; no such authorization, approval, consent, order, license, certificate or permit contains a materially burdensome restriction other than as disclosed in the Registration Statement and the Prospectus~~; and the Company has all such corporate power and authority~~, and ~~such authorizations, approvals, consents, orders, licenses, certificates and permits~~ is duly qualified to enter into, deliver and perform this Agreement and to issue and (vi) The Company and the Subsidiaries own or possess adequate and enforceable rights to use all patents, trademarks, trademark applications, trade names, service marks, copyrights, copyright applications, licenses, know-how and other similar rights and proprietary knowledge (collectively, "Intangibles") material to or necessary for the conduct of their do business as ~~described in the Registration Statement and the Prospectus. Except~~ a foreign corporation or limited liability company, as ~~disclosed in the Registration Statement and the Prospectus, neither the Company nor any of the Subsidiaries have received any notice of~~applicable, and ~~to their knowledge are not aware of, any infringement of~~ is in good standing in each jurisdiction in which it owns or ~~conflict with asserted rights of others with respect to any Intangibles which, singly~~ leases real property or in the aggregate, if the subject of an unfavorable decision, ruling or finding, could be reasonably expected to have a Material Adverse Effect, and neither the Company nor the Subsidiaries know of any reasonable basis therefor. Except as disclosed in the Registration Statement and the Prospectus, to the knowledge of the Company, no Intangibles of the Company or the Subsidiaries are in dispute or are in any conflict with the right of any other person or entity and the Company and each of the Subsidiaries (A) has or will have the right (subject to applicable agreements, which ~~agreements provide for use to the extent necessary and desirable for~~ the conduct of its business ~~as currently conducted~~ makes such qualification necessary and ~~as proposed~~ in which the failure to ~~be conducted) to use~~so qualify would have a material adverse effect upon the business, ~~free and clear of all liens~~properties, ~~charges~~operations, claims, encumbrances, pledges, security interests, defects, restrictions or equities of any kind whatsoever all licenses and rights to the Intangibles used in the conduct of their business as now conducted or proposed to be conducted without infringing upon or otherwise acting adversely to the right or claimed right of any other person and condition (B) is not or will not become, as the case may be, obligated or in any way liable for any payment by way of royalties, fees or otherwise and to any owner or licensee of, or other claimant to, any Intangibles with respect to the use thereof or in connection with the conduct of their business financial or otherwise) or results of operations of the Company and its subsidiaries, ~~except in each case~~ taken as ~~disclosed in the Prospectus and except for any such payments, claims, uses, liens, charges, encumbrances, pledges, security interests, defects, restrictions and equities which would not have~~ a whole (“Material Adverse Effect. (vii) The Company and the Subsidiaries have good and marketable title to each of the items of personal property which are reflected in the financial statements referred to in Section 4(a)(ii) or are referred to in the Registration Statement and the Prospectus as being owned by them and valid and enforceable leasehold interests in each of the items of real and personal property which are referred to in the Registration Statement and the Prospectus as being leased by them, in each case free and clear of all liens, encumbrances, claims, security interests and defects, other than those described in the Registration Statement and the Prospectus and those which do not and will not have a Material Adverse Effect. (viii) Except as described in the Registration Statement and the Prospectus, there is no litigation or governmental or other proceeding or investigation before any court or before or by any public body or board pending or, to the Company's knowledge, threatened (and the Company does not know of any reasonable basis therefor) against, or involving the assets, properties or business of, the Company or the Subsidiaries which, if adversely determined, could be reasonably expected to have a Material Adverse Effect”). (ix) ~~Subsequent~~ Except as contemplated in the Prospectus, subsequent to the respective dates as of which information is given in the Registration Statement and the Prospectus, ~~except as described therein~~neither the Company nor any of its subsidiaries has incurred any material liabilities or obligations, ~~(A)~~ direct or contingent, or entered into any material transactions, or declared or paid any dividends or made any distribution of any kind with respect to its capital stock; and there has not been any change in the capital stock (other than a change in the number of outstanding shares of Common Stock due to the issuance of shares upon the exercise of outstanding options or warrants), or any material change in the short-term or long-term debt, or any issuance of options (other than issuances made pursuant to the Company’s 1999 Stock Incentive Plan), warrants, convertible securities or other rights to purchase the capital stock, of the Company or any of its subsidiaries, or any material adverse change in the ~~assets or~~ business, properties, ~~business, results of~~ operations, ~~prospects or~~ condition (financial or otherwise) or results of operations of the Company ~~or the Subsidiaries~~ and its subsidiaries, taken as a ~~whole, whether or not arising from transactions in the ordinary course of business;~~ whole (B) neither the Company nor any of the Subsidiaries has sustained any material loss or interference with its assets, businesses or properties (whether owned, leased or licensed) from fire, explosion, earthquake, flood or other calamity, whether or not covered by insurance“Material Adverse Change”), or ~~from~~ any ~~labor dispute or any court or legislative or other governmental action, order or decree; and (C) since the date of the latest balance sheet included~~ development that could reasonably be expected to result in the Registration Statement and the Prospectus, except as reflected therein, neither the Company nor any of the Subsidiaries has (x) issued any securities (other than options or shares issued pursuant to exercise of employee stock options or warrants described in the Registration Statement and Prospectus) or incurred any liability or obligation, direct or contingent, for borrowed money, except such liabilities or obligations incurred in the ordinary course of business, (y) entered into any transaction not in the ordinary course of business or (z) declared or paid any dividend or made any distribution on any shares of its stock or redeemed, purchased or otherwise acquired or agreed to redeem, purchase or otherwise acquire any shares of its stocka Material Adverse Change. (x) ~~There~~ Except as set forth in the Prospectus, there is ~~no material document~~ not pending or, to the knowledge of the Company, threatened, any action, suit or ~~contract~~ proceeding to which the Company or any of its subsidiaries is a ~~character~~ party or of which any property or assets of the Company is the subject before or by any court or governmental agency, authority or body, or any arbitrator, which, individually or in the aggregate, could reasonably be expected to result in any Material Adverse Change or that are otherwise required to be described in the Registration Statement or the Prospectus and that are not so described. (xi) There are no statutes, regulations, contracts or other documents that are required to be described in the Registration Statement and Prospectus or to be filed as ~~an exhibit~~ exhibits to the Registration Statement ~~which is~~ by the Act or by the Rules and Regulations that have not been or are not so described or ~~filed as required. Each agreement listed in the Exhibits to the Registration Statement is in full force and effect or has terminated in accordance with its terms or by amendment and such amendment~~ filed. (xii) This Purchase Agreement has been ~~filed as an Exhibit to~~ duly authorized, executed and delivered by the ~~Registration Statement or has otherwise been provided to~~ Company, and constitutes a valid, legal and binding obligation of the ~~Representatives and~~Company, ~~if not so terminated, is valid and~~ enforceable ~~in all material respects by and against the Company or the Subsidiaries, as the case may be,~~ in accordance with its terms, ~~assuming the due authorization, execution and delivery thereof by each of the other parties thereto,~~ except as ~~the enforceability thereof~~ rights to indemnity hereunder may be limited by ~~(i)~~ federal or state securities laws and except as such enforceability may be limited by bankruptcy, insolvency, reorganization, moratorium or other similar laws affecting the ~~enforcement~~ rights of ~~creditors' rights~~ creditors generally and ~~(ii) indemnification provisions under Federal and state securities laws; and that the remedy of specific forms of equitable relief may be~~ subject to ~~equitable defenses and the discretion~~ general principles of ~~the court before which any such action may be brought~~equity. Neither the Company, the (xi) Neither the Company nor the Subsidiaries is in violation of any term or provision of their respective Certificate of Incorporation and By-laws, in each case as amended to the date hereof, or other governing documents, or of any franchise, license, permit, judgment, decree, order, statute, rule or regulation, where the consequences of such violation would have a Material Adverse Effect. Except as described in the Registration Statement or Prospectus, neither the Company nor any of the Subsidiaries intends to amend its Certificate of Incorporation and By-laws. (xii) Neither the The execution, delivery and performance of this Purchase Agreement ~~by the Company or the Subsidiaries nor~~ and the consummation of the transactions herein contemplated will not result in a breach or violation of any of the ~~transactions contemplated hereby (including, without limitation, the issuance~~ terms and ~~sale by the Company of the Shares) will give rise to a right to terminate or accelerate the due date of any payment due under, or conflict with or result in the breach of any term or provision~~ provisions of, or constitute a default under (or an event ~~which~~ that with notice or ~~lapse~~ passage of ~~time~~ time, or ~~both~~ both, would constitute a default~~) under~~), ~~or require any consent or waiver under, or~~ result in ~~the execution~~ acceleration of indebtedness under or ~~imposition of~~ conflict with, (A) any ~~lien, charge or encumbrance upon any properties or assets of the Company or any of the Subsidiaries pursuant to the terms of, any indenture, mortgage, deed of trust~~ statute or other provision of applicable law, (B) any material agreement or instrument to which the Company or any ~~of the Subsidiaries~~ subsidiary is a party or by which it is bound or to which any of its ~~properties~~ respective property is subject, (C) the Company’s certificate of incorporation or ~~businesses are bound~~by-laws, or (D) any ~~franchise, license, permit,~~ judgment~~, decree~~, order, ~~statute~~rule, ~~rule~~ regulation or ~~regulation applicable to~~ decree of any court or governmental agency or body having jurisdiction over the Company or any of ~~the Subsidiaries~~ its subsidiaries or ~~violate any provision of the Certificate of Incorporation and By-laws of the Company or any of the Subsidiaries~~properties, except ~~for~~ in the case of subsections 2(a)(xii)(A) and (D) where such ~~consents~~ breach, violation or ~~waivers which have already been obtained and are~~ default individually or in ~~full force and effect or as would~~ the aggregate could not reasonably be expected to have a Material Adverse Effect~~. No~~ ; no consent, approval, ~~authorization~~authorization or order of, ~~order~~or filing, ~~registration~~ registration, qualification, license or ~~qualification~~ permit of or ~~with~~ with, any ~~United States~~ court or governmental agency or body is required to be obtained or made by the Company in connection with the execution, delivery and performance of this Purchase Agreement or for ~~the issue and sale of the Shares or~~ the consummation of the ~~other~~ transactions contemplated hereby, including the issuance or sale of the Securities by ~~this Agreement, which have not been obtained prior to~~ the ~~date hereof~~Company, except ~~the registration under the Securities Act of the Shares, and~~ such ~~consents, approvals, authorizations, registrations or qualifications~~ as may be required under state securities or ~~Blue Sky~~ blue sky laws ~~-9- 10~~ in connection with the ~~purchase~~ offer and ~~distribution~~ sale of the ~~Shares~~ Securities; and the Company has full power and authority to enter into this Purchase Agreement and to authorize, issue and sell the Securities as contemplated by ~~the Underwriters~~this Purchase Agreement. (xiii) ~~The authorized,~~ All of the issued and outstanding shares of capital stock of the ~~Company and the capital stock reserved or committed for issuance is as set forth under the caption "Capitalization" in the Prospectus. All of~~ Company, including the outstanding shares of ~~Stock have been~~ Common Stock, are duly and validly issued and are fully paid and nonassessable, none of them was issued in violation of any preemptive or other similar right and, to the Company's knowledge, since 1991, none of them were issued in violation of any Federal or state securities laws. The Shares, when issued and sold pursuant to this Agreement, will be duly authorized and validly issued, fully paid and nonassessable, ~~none of them will be~~ have been issued in compliance with all federal and state securities laws, were not issued in violation of or subject to any preemptive rights or other ~~similar right~~rights to subscribe for or purchase securities that have not been waived in writing (a copy of which has been delivered to counsel to the Representatives), ~~any contractual right, including, without limitation, rights~~ and the holders thereof are not subject to personal liability by reason of ~~first refusal,~~ being such holders; the Securities which may be sold hereunder by the Company have been duly authorized and, ~~since 1991~~when issued, ~~none~~ delivered and paid for in accordance with the terms of ~~them were~~ this Purchase Agreement on the First Closing Date or the Second Closing Date, as applicable, will have been validly issued ~~in violation~~ and will be fully paid and nonassessable, the issuance of ~~any (~~such shares will not be subject to ~~compliance with Section 1(c) hereof)~~preemptive or similar rights, ~~Federal or state securities laws. Except as disclosed~~ and the holders thereof will not be subject to personal liability by reason of being such holders; and the authorized capital stock of the Company, including the Common Stock, conforms to the description thereof in the Registration Statement and Prospectus. Except as otherwise stated in the Registration Statement and Prospectus, there is are no ~~outstanding option, warrant~~ preemptive rights or other ~~right calling~~ rights to subscribe for or to purchase, or any restriction upon the ~~issuance~~ voting or transfer of~~, and there is no commitment, plan or arrangement to issue~~, any shares of Common Stock of pursuant to the Company’s charter, by-laws or any agreement or other instrument to which the Company is a party or ~~any security convertible into, or exercisable or exchangeable for, such shares of Stock~~by which the Company is bound. ~~The shares of Stock conform in all material respects to all statements in relation thereto contained~~ Except as otherwise stated in the Registration Statement and Prospectus, neither the ~~Prospectus. The Company has a sufficient number~~ filing of ~~authorized but unissued~~ the Registration Statement nor the offering or sale of the Securities as contemplated by this Purchase Agreement gives rise to any rights for or relating to the registration of any shares of Common Stock or other securities of the Company. There are no contracts, agreements or understandings between the Company and any person granting such person the right to ~~enable~~ require the Company to ~~issue, without further stockholder action,~~ file a registration statement under the Act with respect to any securities of the Company or ~~approve all~~ to require the Company to include such securities with the Shares registered pursuant to ~~be sold by~~ the ~~Company. (xiv) As~~ Registration Statement. All of the ~~date hereof,~~ issued and ~~as of each Closing Date, all of the~~ outstanding shares of capital stock and interests of each of the ~~Subsidiaries are~~ Company’s subsidiaries have been duly and validly authorized and ~~issued,~~ issued and are fully paid and ~~nonassessable and are and will be owned by the Company and there is and will be no outstanding option~~nonassessable, warrant or other right calling for the issuance of, and no commitment, plan or arrangement to issue any share of capital stock of the Subsidiaries or any security convertible or exchangeable or exercisable for capital stock of the Subsidiariesand, except as otherwise described in the Registration Statement and Prospectus~~. (xv)~~ , the Company owns, directly or indirectly of record and beneficially, free and clear of any security interests, claims, liens, proxies, equities or other encumbrances, all of the issued and outstanding shares of such capital stock and interests. Except as described in the Registration Statement and the Prospectus, there are no outstanding securities convertible into or exchangeable for, or options, warrants, agreements, contracts or other rights in existence to purchase or acquire from the Company or any subsidiary of the Company, any shares of the capital stock of the Company or any shares of the capital stock or other interests of any subsidiary of the Company. The Company has an authorized and outstanding capitalization as set forth in the Registration Statement and ~~Prospectus~~the Prospectus as of the respective dates specified therein. (xiv) The Company and each of its subsidiaries holds, ~~no holder~~ and is operating in compliance in all respects with, all franchises, grants, authorizations, licenses, permits, easements, consents, certificates and orders of any ~~security~~ federal, state, local or foreign governmental, regulatory or self-regulatory body required for the conduct of its business, except where the failure to hold or be in compliance could not reasonably be expected to have a Material Adverse Effect, and all such franchises, grants, authorizations, licenses, permits, easements, consents, certifications and orders are valid and in full force and effect; and neither the Company nor any of its subsidiaries has received notice of proceedings relating to the ~~right to have any security owned by such holder included in the Registration Statement~~ revocation or ~~to demand registration~~ modification of any ~~security owned by~~ such ~~holder during~~ franchise, grant, authorization, license, permit, easement, consent, certification or order which, if the ~~period ending 90 days after~~ subject of an unfavorable decision, ruling or finding, would result in a Material Adverse Effect; and the ~~date of this Agreement. Each Selling Stockholder~~ Company and each ~~director~~ of its subsidiaries is in compliance in all respects with all applicable federal, state, local and ~~executive officer of the Company has delivered to~~foreign laws, regu

Appears in 1 contract

Sources: Purchase Agreement (Jupitermedia Corp)

Representations and Warranties of the Company and the Selling Stockholders. (aA) The Company hereby represents and warrants to to, and agrees with each ~~Underwriter~~ Underwriter, as follows: (iI) ~~On the Effective Date, the~~ A registration statement (Registration ~~Statement complied, and~~ No. 333-______) on the date of the Prospectus, on the date any post-effective amendment to the Registration Statement shall become effective, on the date any supplement or amendment to the Prospectus is filed with the Commission and on each Closing Date, the Registration Statement and the Prospectus (and any amendment thereof or supplement thereto) will comply, in all material respects, with the applicable provisions of Form S-3 under the Securities Act and the Rules; (ii) The documents that are incorporated by reference in the preliminary prospectus and the Prospectus or from which information is so incorporated by reference, when they became effective or were filed with the Commission, as the case may be, complied in all material respects with the requirements of ~~the Securities Act or the Securities Exchange Act of 1934~~1933, as amended (the "~~Exchange Act~~SECURITIES ACT"), including such amendments to such Registration Statement as ~~applicable~~may have been required to the date of this Agreement, relating to the Shares has been prepared by the Company under and in conformity with the provisions of the Securities Act, the rules and regulations (the "RULES AND REGULATIONS") of the Securities and Exchange Commission ~~promulgated under~~ (the ~~Securities Act~~ "Commission") thereunder and the Exchange Act, as applicable, except as amended and superseded by statements made in the Registration Statement; and any documents so filed and incorporated by reference subsequent to the Effective Date shall, when they are has been filed with the Commission. After the execution of this Agreement, ~~conform in all material respects~~ the Company will file with the ~~requirements~~ Commission either (i) if such Registration Statement, as it may have been amended, has been declared by the Commission to be effective under the Securities Act, either (A) if the Company relies on Rule 434 of the Rules and Regulations, a Term Sheet (defined below) relating to the Shares, that identifies the Preliminary Prospectus (defined below) that it supplements and contains such information as is required or permitted by Rules 434, 430A and 424(b) of the Rules and Regulations or (B) if the Company does not rely on Rule 434, a prospectus in the form most recently included in an amendment to such Registration Statement (or, if no such amendment has been filed, in such Registration Statement), with such changes or insertions as are required by Rule 430A of the Rules and Regulations or permitted by Rule 424(b) of the Rules and Regulations, and in the case of either (i)(A) or (i)(B) of this sentence, as has been provided to and approved by the Representatives prior to the execution of this Agreement, or (ii) if such Registration Statement, as it may have been amended, has not been declared by the Commission to be effective pursuant to Section 8 of the Securities ~~Act or the Exchange~~ Act, ~~as applicable~~an amendment to such Registration Statement, including a form of prospectus, a copy of which amendment has been furnished to and approved by the ~~rules~~ Representatives prior to the execution of this Agreement. As used in this Agreement, the term "REGISTRATION STATEMENT" means such Registration Statement, including all financial schedules and ~~regulations~~ exhibits thereto and including any information omitted therefrom pursuant to Rule 430A of the ~~Commission promulgated under the Securities Act~~ Rules and ~~the Exchange Act, as applicable. (iii) The consolidated financial statements of the Company (including all notes~~ Regulations and ~~schedules thereto)~~ included in the Prospectus (defined below), in the form in which it became effective from and after the time it became effective, and any Registration Statement ~~and Prospectus present fairly the financial position, the results of operations and cash flows and the stockholders' equity and the other information purported~~ filed pursuant to be shown therein of the Company and its subsidiaries, listed on Schedule III hereto (the "Subsidiaries"), at the respective dates and for the respective (iv) KPMG Peat Marwick LLP, whose report is filed with the Commission as a part of the Registration Statement, is and, during the periods covered by its reports, was independent public accountants as required by the Securities Act and the Rules. (v) The Company has been duly incorporated and is a validly existing corporation under the laws of the State of Delaware, and the Subsidiaries have been duly incorporated and are validly existing corporations under the laws of their respective jurisdictions. Other than the Subsidiaries, the Company has no subsidiaries and does not control, directly or indirectly, any corporation, partnership, joint venture, association or other business organization, except as described in the Registration Statement and the Prospectus. Each of the Company and the Subsidiaries is duly qualified and in good standing as a foreign corporation in each jurisdiction in which the character or location of its assets or properties (owned, leased or licensed) or the nature of its business makes such qualification necessary except for such jurisdictions where the failure to so qualify would not have a material adverse effect on the assets or properties, business, results of operations or condition (financial or otherwiseRule 462(b) of the ~~Company~~ Rules and the Subsidiaries, taken as a whole (a "Material Adverse Effect"). Except as disclosed in the Registration Statement and the Prospectus, neither the Company nor the Subsidiaries own, lease or license any material asset or property or conduct any material business outside the United States of America. Each of the Company and the Subsidiaries have all requisite corporate power and authority, and all necessary authorizations, approvals, consents, orders, licenses, certificates and permits of and from all governmental or regulatory bodies or any other person or entity, to own, lease and license their assets and properties and conduct their businesses as now being conducted and as described in the Registration Statement and the Prospectus except for such authorizations, approvals, consents, orders, licenses, certificates and permits the failure to so obtain would not have a Material Adverse Effect; no such authorization, approval, consent, order, license, certificate or permit contains a materially burdensome restriction other than as disclosed in the Registration Statement and the Prospectus; and the Company has all such corporate power and authority, and such authorizations, approvals, consents, orders, licenses, certificates and permits to enter into, deliver and perform this Agreement and to issue and (vi) The Company and the Subsidiaries own or possess adequate and enforceable rights to use all patents, trademarks, trademark applications, trade names, service marks, copyrights, copyright applications, licenses, know-how and other similar rights and proprietary knowledge (collectively, "Intangibles") material to or necessary for the conduct of their business as described in the Registration Statement and the Prospectus. Except as disclosed in the Registration Statement and the Prospectus, neither the Company nor any of the Subsidiaries have received any notice of, and to their knowledge are not aware of, any infringement of or conflict with asserted rights of others with respect to any Intangibles which, singly or in the aggregate, if the subject of an unfavorable decision, ruling or finding, could be reasonably expected to have a Material Adverse Effect, and neither the Company nor the Subsidiaries know of any reasonable basis therefor. Except as disclosed in the Registration Statement and the Prospectus, to the knowledge of the Company, no Intangibles of the Company or the Subsidiaries are in dispute or are in any conflict with the right of any other person or entity and the Company and each of the Subsidiaries (A) has or will have the right (subject to applicable agreements, which agreements provide for use to the extent necessary and desirable for the conduct of its business as currently conducted and as proposed to be conducted) to use, free and clear of all liens, charges, claims, encumbrances, pledges, security interests, defects, restrictions or equities of any kind whatsoever all licenses and rights to the Intangibles used in the conduct of their business as now conducted or proposed to be conducted without infringing upon or otherwise acting adversely to the right or claimed right of any other person and (B) is not or will not become, as the case may be, obligated or in any way liable for any payment by way of royalties, fees or otherwise and to any owner or licensee of, or other claimant to, any Intangibles Regulations with respect to the ~~use thereof or in connection with the conduct of their business or otherwise~~Common Stock (a "RULE 462(B) REGISTRATION STATEMENT"), ~~except in each case as disclosed~~ and, in the ~~Prospectus and except for~~ event of any amendment thereto after the effective date of such payments, claims, uses, liens, charges, encumbrances, pledges, security interests, defects, restrictions and equities which would not have a Material Adverse Effect. (vii) The Company and the Subsidiaries have good and marketable title to each of the items of personal property which are reflected in the financial statements referred to in Section 4(a)(ii) or are referred to in the Registration Statement (the "EFFECTIVE DATE"), shall also mean (from and after the ~~Prospectus as being owned by them and valid and enforceable leasehold interests in each~~ effectiveness of ~~the items of real and personal property which are referred to in the~~ such amendment) such Registration Statement ~~and~~ as so amended (including any 462(b) Registration Statement); the ~~Prospectus as being leased by them, in~~ term "PRELIMINARY PROSPECTUS" means each case free and clear of all liens, encumbrances, claims, security interests and defects, other than those described in the Registration Statement and the Prospectus and those which do not and will not have a Material Adverse Effect. (viii) Except as described in the Registration Statement and the Prospectus, there is no litigation or governmental or other proceeding or investigation before any court or before or by any public body or board pending or, prospectus subject to the Company's knowledge, threatened (and the Company does not know of any reasonable basis therefor) against, or involving the assets, properties or business of, the Company or the Subsidiaries which, if adversely determined, could be reasonably expected to have a Material Adverse Effect. (ix) Subsequent to the respective dates as of which information is given in the Registration Statement and the Prospectus, except as described therein, (A) there has not been any material adverse change in the assets or properties, business, results of operations, prospects or condition (financial or otherwise) of the Company or the Subsidiaries taken as a whole, whether or not arising from transactions in the ordinary course of business; (B) neither the Company nor any of the Subsidiaries has sustained any material loss or interference completion filed with its assets, businesses or properties (whether owned, leased or licensed) from fire, explosion, earthquake, flood or other calamity, whether or not covered by insurance, or from any labor dispute or any court or legislative or other governmental action, order or decree; and (C) since the date of the latest balance sheet included in the Registration Statement and the Prospectus, except as reflected therein, neither the Company nor any of the Subsidiaries has (x) issued any securities (other than options or shares issued pursuant to exercise of employee stock options or warrants described in the Registration Statement and Prospectus) or incurred any liability or obligation, direct or contingent, for borrowed money, except such liabilities or obligations incurred in the ordinary course of business, (y) entered into any transaction not in the ordinary course of business or (z) declared or paid any dividend or made any distribution on any shares of its stock or redeemed, purchased or otherwise acquired or agreed to redeem, purchase or otherwise acquire any shares of its stock. (x) There is no material document or contract of a character required to be described in the Registration Statement or ~~Prospectus or~~ any amendment thereto (including the prospectus subject to be filed as an exhibit to the Registration Statement which is not described or filed as required. Each agreement listed in the Exhibits to the Registration Statement is in full force and effect or has terminated in accordance with its terms or by amendment and such amendment has been filed as an Exhibit to the Registration Statement or has otherwise been provided to the Representatives andcompletion, if ~~not so terminated~~any, is valid and enforceable in all material respects by and against the Company or the Subsidiaries, as the case may be, in accordance with its terms, assuming the due authorization, execution and delivery thereof by each of the other parties thereto, except as the enforceability thereof may be limited by (i) bankruptcy, insolvency, reorganization, moratorium or other similar laws affecting the enforcement of creditors' rights generally and (ii) indemnification provisions under Federal and state securities laws; and that the remedy of specific forms of equitable relief may be subject to equitable defenses and the discretion of the court before which any such action may be brought. Neither the Company, the (xi) Neither the Company nor the Subsidiaries is in violation of any term or provision of their respective Certificate of Incorporation and By-laws, in each case as amended to the date hereof, or other governing documents, or of any franchise, license, permit, judgment, decree, order, statute, rule or regulation, where the consequences of such violation would have a Material Adverse Effect. Except as described in the Registration Statement or Prospectus, neither the Company nor any of the Subsidiaries intends to amend its Certificate of Incorporation and By-laws. (xii) Neither the execution, delivery and performance of this Agreement by the Company or the Subsidiaries nor the consummation of any of the transactions contemplated hereby (including, without limitation, the issuance and sale by the Company of the Shares) will give rise to a right to terminate or accelerate the due date of any payment due under, or conflict with or result in the breach of any term or provision of, or constitute a default (or an event which with notice or lapse of time or both would constitute a default) under, or require any consent or waiver under, or result in the execution or imposition of any lien, charge or encumbrance upon any properties or assets of the Company or any of the Subsidiaries pursuant to the terms of, any indenture, mortgage, deed of trust or other agreement or instrument to which the Company or any of the Subsidiaries is a party or by which it or any of its properties or businesses are bound, or any franchise, license, permit, judgment, decree, order, statute, rule or regulation applicable to the Company or any of the Subsidiaries or violate any provision of the Certificate of Incorporation and By-laws of the Company or any of the Subsidiaries, except for such consents or waivers which have already been obtained and are in full force and effect or as would not have a Material Adverse Effect. No consent, approval, authorization, order, registration or qualification of or with any United States court or governmental agency or body is required for the issue and sale of the Shares or the consummation of the other transactions contemplated by this Agreement, which have not been obtained prior to the date hereof, except the registration under the Securities Act of the Shares, and such consents, approvals, authorizations, registrations or qualifications as may be required under state securities or Blue Sky laws -9- 10 in connection with the purchase and distribution of the Shares by the Underwriters. (xiii) The authorized, issued and outstanding capital stock of the Company and the capital stock reserved or committed for issuance is as set forth under the caption "Capitalization" in the Prospectus. All of the outstanding shares of Stock have been duly and validly issued and are fully paid and nonassessable, none of them was issued in violation of any preemptive or other similar right and, to the Company's knowledge, since 1991, none of them were issued in violation of any Federal or state securities laws. The Shares, when issued and sold pursuant to this Agreement, will be duly and validly issued, fully paid and nonassessable, none of them will be issued in violation of any preemptive or other similar right, any contractual right, including, without limitation, rights of first refusal, and, since 1991, none of them were issued in violation of any (subject to compliance with Section 1(c) hereof), Federal or state securities laws. Except as disclosed in the Registration Statement and the Prospectus, there is no outstanding option, warrant or other right calling for the issuance of, and there is no commitment, plan or arrangement to issue, any shares of Common Stock of the Company or any security convertible into, or exercisable or exchangeable for, such shares of Stock. The shares of Stock conform in all material respects to all statements in relation thereto contained in the Registration Statement and the Prospectus. The Company has a sufficient number of authorized but unissued shares of Stock to enable the Company to issue, without further stockholder action, or approve all the Shares to be sold by the Company. (xiv) As of the date hereof, and as of each Closing Date, all of the outstanding shares of capital stock of the Subsidiaries are duly and validly authorized and issued, are fully paid and nonassessable and are and will be owned by the Company and there is and will be no outstanding option, warrant or other right calling for the issuance of, and no commitment, plan or arrangement to issue any share of capital stock of the Subsidiaries or any security convertible or exchangeable or exercisable for capital stock of the Subsidiaries, except as otherwise described in the Registration Statement and Prospectus. (xv) Except as set forth in the Registration Statement and Prospectus, no holder of any security of the Company has the right to have any security owned by such holder included in the Registration Statement or ~~to demand registration of~~ any ~~security owned by such holder during~~ amendment thereto at the ~~period ending 90 days after~~ time it was or is declared effective); the ~~date of this Agreement. Each Selling Stockholder and each director and executive officer of the Company has delivered to~~term "PROSPECTUS" means:

Appears in 1 contract

Sources: Underwriting Agreement (Navidec Inc)

Representations and Warranties of the Company and the Selling Stockholders. (a) ~~The~~ Each of the Company ~~hereby~~ and Selling Stockholder A, severally and not jointly, represents and warrants to each ~~Underwriter~~ of the Underwriters as follows: (i) On A registration statement on Form S-1 (File No. 333-139291) with respect to the ~~Effective Date~~Shares has been prepared by the Company in conformity with the requirements of the Securities Act of 1933, as amended (the “Act”), and the rules and regulations (the “Rules and Regulations”) of the Securities and Exchange Commission (the “Commission”) thereunder and has been filed with the Commission. Copies of such registration statement, including any amendments thereto, the ~~Registration Statement complied, and on~~ preliminary prospectuses (meeting the ~~date~~ requirements of the ~~Prospectus~~Rules and Regulations) contained therein and the exhibits and financial statements, on as finally amended and revised, have heretofore been delivered by the ~~date~~ Company to you. Such registration statement, together with any registration statement filed by the Company pursuant to Rule 462(b) under the Act, is herein referred to as the “Registration Statement,” which shall be deemed to include all information omitted therefrom in reliance upon Rules 430A, 430B or 430C under the Act and contained in the Prospectus referred to below, has become effective under the Act and no post-effective amendment to the Registration Statement ~~shall become effective, on~~ has been filed as of the date ~~any supplement or amendment to~~ of this Agreement. “Prospectus” means the ~~Prospectus is~~ form of prospectus first filed with the Commission pursuant to and ~~on each Closing Date,~~ within the time limits described in Rule 424(b) under the Act. Each preliminary prospectus included in the Registration Statement prior to the time it becomes effective is herein referred to as a “Preliminary Prospectus.” The Company has prepared and ~~the Prospectus (and any amendment thereof or supplement thereto) will comply~~filed, in ~~all material respects,~~ accordance with ~~the applicable provisions~~ Section 12 of the Securities ~~Act~~ and the Rules; (ii) The documents that are incorporated by reference in the preliminary prospectus and the Prospectus or from which information is so incorporated by reference, when they became effective or were filed with the Commission, as the case may be, complied in all material respects with the requirements of the Securities Act or the Securities Exchange Act of 1934, as amended (the "“Exchange Act"”), a registration statement (as ~~applicable~~may be amended prior to the time of execution of this Agreement, ~~and~~ the ~~rules and regulations of the Commission promulgated~~ “Exchange Act Registration Statement”) on Form 8-A (File No. 000-51934) under the ~~Securities~~ Exchange Act ~~and~~ to register, under Section 12(b) of the Exchange Act, ~~as applicable, except as amended and superseded by statements made in~~ the Registration Statement; and any documents so filed and incorporated by reference subsequent to the Effective Date shall, when they are filed with the Commission, conform in all material respects with the requirements class of securities consisting of the ~~Securities Act or the Exchange Act, as applicable, and the rules and regulations of the Commission promulgated under the Securities Act and the Exchange Act, as applicable~~Common Stock. (iii) The consolidated financial statements of the Company (including all notes and schedules thereto) included in the Registration Statement and Prospectus present fairly the financial position, the results of operations and cash flows and the stockholders' equity and the other information purported to be shown therein of the Company and its subsidiaries, listed on Schedule III hereto (the "Subsidiaries"), at the respective dates and for the respective (iv) KPMG Peat Marwick LLP, whose report is filed with the Commission as a part of the Registration Statement, is and, during the periods covered by its reports, was independent public accountants as required by the Securities Act and the Rules. (v) The Company has been duly incorporated and is a validly existing corporation under the laws of the State of Delaware, and the Subsidiaries have been duly incorporated and are validly existing corporations under the laws of their respective jurisdictions. Other than the Subsidiaries, the Company has no subsidiaries and does not control, directly or indirectly, any corporation, partnership, joint venture, association or other business organization, except as described in the Registration Statement and the Prospectus. Each of the Company and the Subsidiaries is duly qualified and in good standing as a foreign corporation in each jurisdiction in which the character or location of its assets or properties (owned, leased or licensed) or the nature of its business makes such qualification necessary except for such jurisdictions where the failure to so qualify would not have a material adverse effect on the assets or properties, business, results of operations or condition (financial or otherwise) of the Company and the Subsidiaries, taken as a whole (a "Material Adverse Effect"). Except as disclosed in the Registration Statement and the Prospectus, neither the Company nor the Subsidiaries own, lease or license any material asset or property or conduct any material business outside the United States of America. Each of the Company and the Subsidiaries have all requisite corporate power and authority, and all necessary authorizations, approvals, consents, orders, licenses, certificates and permits of and from all governmental or regulatory bodies or any other person or entity, to own, lease and license their assets and properties and conduct their businesses as now being conducted and as described in the Registration Statement and the Prospectus except for such authorizations, approvals, consents, orders, licenses, certificates and permits the failure to so obtain would not have a Material Adverse Effect; no such authorization, approval, consent, order, license, certificate or permit contains a materially burdensome restriction other than as disclosed in the Registration Statement and the Prospectus; and the Company has all such corporate power and authority, and such authorizations, approvals, consents, orders, licenses, certificates and permits to enter into, deliver and perform this Agreement and to issue and (vi) The Company and the Subsidiaries own or possess adequate and enforceable rights to use all patents, trademarks, trademark applications, trade names, service marks, copyrights, copyright applications, licenses, know-how and other similar rights and proprietary knowledge (collectively, "Intangibles") material to or necessary for the conduct of their business as described in the Registration Statement and the Prospectus. Except as disclosed in the Registration Statement and the Prospectus, neither the Company nor any of the Subsidiaries have received any notice of, and to their knowledge are not aware of, any infringement of or conflict with asserted rights of others with respect to any Intangibles which, singly or in the aggregate, if the subject of an unfavorable decision, ruling or finding, could be reasonably expected to have a Material Adverse Effect, and neither the Company nor the Subsidiaries know of any reasonable basis therefor. Except as disclosed in the Registration Statement and the Prospectus, to the knowledge of the Company, no Intangibles of the Company or the Subsidiaries are in dispute or are in any conflict with the right of any other person or entity and the Company and each of the Subsidiaries (A) has or will have the right (subject to applicable agreements, which agreements provide for use to the extent necessary and desirable for the conduct of its business as currently conducted and as proposed to be conducted) to use, free and clear of all liens, charges, claims, encumbrances, pledges, security interests, defects, restrictions or equities of any kind whatsoever all licenses and rights to the Intangibles used in the conduct of their business as now conducted or proposed to be conducted without infringing upon or otherwise acting adversely to the right or claimed right of any other person and (B) is not or will not become, as the case may be, obligated or in any way liable for any payment by way of royalties, fees or otherwise and to any owner or licensee of, or other claimant to, any Intangibles with respect to the use thereof or in connection with the conduct of their business or otherwise, except in each case as disclosed in the Prospectus and except for any such payments, claims, uses, liens, charges, encumbrances, pledges, security interests, defects, restrictions and equities which would not have a Material Adverse Effect. (vii) The Company and the Subsidiaries have good and marketable title to each of the items of personal property which are reflected in the financial statements referred to in Section 4(a)(ii) or are referred to in the Registration Statement and the Prospectus as being owned by them and valid and enforceable leasehold interests in each of the items of real and personal property which are referred to in the Registration Statement and the Prospectus as being leased by them, in each case free and clear of all liens, encumbrances, claims, security interests and defects, other than those described in the Registration Statement and the Prospectus and those which do not and will not have a Material Adverse Effect. (viii) Except as described in the Registration Statement and the Prospectus, there is no litigation or governmental or other proceeding or investigation before any court or before or by any public body or board pending or, to the Company's knowledge, threatened (and the Company does not know of any reasonable basis therefor) against, or involving the assets, properties or business of, the Company or the Subsidiaries which, if adversely determined, could be reasonably expected to have a Material Adverse Effect. (ix) Subsequent to the respective dates as of which information is given in the Registration Statement and the Prospectus, except as described therein, (A) there has not been any material adverse change in the assets or properties, business, results of operations, prospects or condition (financial or otherwise) of the Company or the Subsidiaries taken as a whole, whether or not arising from transactions in the ordinary course of business; (B) neither the Company nor any of the Subsidiaries has sustained any material loss or interference with its assets, businesses or properties (whether owned, leased or licensed) from fire, explosion, earthquake, flood or other calamity, whether or not covered by insurance, or from any labor dispute or any court or legislative or other governmental action, order or decree; and (C) since the date of the latest balance sheet included in the Registration Statement and the Prospectus, except as reflected therein, neither the Company nor any of the Subsidiaries has (x) issued any securities (other than options or shares issued pursuant to exercise of employee stock options or warrants described in the Registration Statement and Prospectus) or incurred any liability or obligation, direct or contingent, for borrowed money, except such liabilities or obligations incurred in the ordinary course of business, (y) entered into any transaction not in the ordinary course of business or (z) declared or paid any dividend or made any distribution on any shares of its stock or redeemed, purchased or otherwise acquired or agreed to redeem, purchase or otherwise acquire any shares of its stock. (x) There is no material document or contract of a character required to be described in the Registration Statement or Prospectus or to be filed as an exhibit to the Registration Statement which is not described or filed as required. Each agreement listed in the Exhibits to the Registration Statement is in full force and effect or has terminated in accordance with its terms or by amendment and such amendment has been filed as an Exhibit to the Registration Statement or has otherwise been provided to the Representatives and, if not so terminated, is valid and enforceable in all material respects by and against the Company or the Subsidiaries, as the case may be, in accordance with its terms, assuming the due authorization, execution and delivery thereof by each of the other parties thereto, except as the enforceability thereof may be limited by (i) bankruptcy, insolvency, reorganization, moratorium or other similar laws affecting the enforcement of creditors' rights generally and (ii) indemnification provisions under Federal and state securities laws; and that the remedy of specific forms of equitable relief may be subject to equitable defenses and the discretion of the court before which any such action may be brought. Neither the Company, the (xi) Neither the Company nor the Subsidiaries is in violation of any term or provision of their respective Certificate of Incorporation and By-laws, in each case as amended to the date hereof, or other governing documents, or of any franchise, license, permit, judgment, decree, order, statute, rule or regulation, where the consequences of such violation would have a Material Adverse Effect. Except as described in the Registration Statement or Prospectus, neither the Company nor any of the Subsidiaries intends to amend its Certificate of Incorporation and By-laws. (xii) Neither the execution, delivery and performance of this Agreement by the Company or the Subsidiaries nor the consummation of any of the transactions contemplated hereby (including, without limitation, the issuance and sale by the Company of the Shares) will give rise to a right to terminate or accelerate the due date of any payment due under, or conflict with or result in the breach of any term or provision of, or constitute a default (or an event which with notice or lapse of time or both would constitute a default) under, or require any consent or waiver under, or result in the execution or imposition of any lien, charge or encumbrance upon any properties or assets of the Company or any of the Subsidiaries pursuant to the terms of, any indenture, mortgage, deed of trust or other agreement or instrument to which the Company or any of the Subsidiaries is a party or by which it or any of its properties or businesses are bound, or any franchise, license, permit, judgment, decree, order, statute, rule or regulation applicable to the Company or any of the Subsidiaries or violate any provision of the Certificate of Incorporation and By-laws of the Company or any of the Subsidiaries, except for such consents or waivers which have already been obtained and are in full force and effect or as would not have a Material Adverse Effect. No consent, approval, authorization, order, registration or qualification of or with any United States court or governmental agency or body is required for the issue and sale of the Shares or the consummation of the other transactions contemplated by this Agreement, which have not been obtained prior to the date hereof, except the registration under the Securities Act of the Shares, and such consents, approvals, authorizations, registrations or qualifications as may be required under state securities or Blue Sky laws -9- 10 in connection with the purchase and distribution of the Shares by the Underwriters. (xiii) The authorized, issued and outstanding capital stock of the Company and the capital stock reserved or committed for issuance is as set forth under the caption "Capitalization" in the Prospectus. All of the outstanding shares of Stock have been duly and validly issued and are fully paid and nonassessable, none of them was issued in violation of any preemptive or other similar right and, to the Company's knowledge, since 1991, none of them were issued in violation of any Federal or state securities laws. The Shares, when issued and sold pursuant to this Agreement, will be duly and validly issued, fully paid and nonassessable, none of them will be issued in violation of any preemptive or other similar right, any contractual right, including, without limitation, rights of first refusal, and, since 1991, none of them were issued in violation of any (subject to compliance with Section 1(c) hereof), Federal or state securities laws. Except as disclosed in the Registration Statement and the Prospectus, there is no outstanding option, warrant or other right calling for the issuance of, and there is no commitment, plan or arrangement to issue, any shares of Common Stock of the Company or any security convertible into, or exercisable or exchangeable for, such shares of Stock. The shares of Stock conform in all material respects to all statements in relation thereto contained in the Registration Statement and the Prospectus. The Company has a sufficient number of authorized but unissued shares of Stock to enable the Company to issue, without further stockholder action, or approve all the Shares to be sold by the Company. (xiv) As of the date hereof, and as of each Closing Date, all of the outstanding shares of capital stock of the Subsidiaries are duly and validly authorized and issued, are fully paid and nonassessable and are and will be owned by the Company and there is and will be no outstanding option, warrant or other right calling for the issuance of, and no commitment, plan or arrangement to issue any share of capital stock of the Subsidiaries or any security convertible or exchangeable or exercisable for capital stock of the Subsidiaries, except as otherwise described in the Registration Statement and Prospectus. (xv) Except as set forth in the Registration Statement and Prospectus, no holder of any security of the Company has the right to have any security owned by such holder included in the Registration Statement or to demand registration of any security owned by such holder during the period ending 90 days after the date of this Agreement. Each Selling Stockholder and each director and executive officer of the Company has delivered to

Appears in 1 contract

Sources: Underwriting Agreement (Biomimetic Therapeutics, Inc.)

Appears in 1 contract

Sources: Subscription Agreement (Prime Service Inc)

Appears in 1 contract

Sources: Underwriting Agreement (National Information Consortium)

Appears in 1 contract

Sources: Underwriting Agreement (Navigators Group Inc)

Representations and Warranties of the Company and the Selling Stockholders. (a) The Company ~~hereby~~ represents and warrants ~~to each Underwriter~~ to, and agrees with, the Underwriters as follows: (i) On the Effective Date, the Registration Statement complied, and on the date of the Prospectus, on the date any post-effective amendment to the Registration Statement shall become effective, on the date any supplement or amendment to the Prospectus is The Company has filed with the Commission ~~and~~ a registration statement on ~~each Closing Date~~Form S-1 (No. 333-59219), including a prospectus subject to completion, for the registration of the Rights, the ~~Registration Statement~~ shares of Common Stock subject to the Rights, the Direct Shares and the ~~Prospectus~~ Option Shares under the Act, and have filed with the Commission one or more amendments thereto. After the execution of this Agreement, the Company will file with the Commission either (~~and any~~ A) if such registration statement, as it may have been amended, has been declared by the Commission to be effective under the Act as of the time of effectiveness of this Agreement, a prospectus in the form most recently included in an amendment ~~thereof or supplement thereto) will comply~~to such registration statement (or, if no such amendment shall have been filed, in ~~all material respects~~such registration statement), with such changes or insertions as are required by Rule 430A under the ~~applicable provisions~~ Act or permitted by Rule 424(b) under the Act and as have been provided to and approved by the Underwriters prior to the execution of this Agreement, or (B) if such registration statement, as it may have been amended, has not been declared by the Commission to be effective under the Act as of the ~~Securities Act~~ time of effectiveness of this Agreement, an amendment to such registration statement, including a form of prospectus, a copy of which amendment has been furnished to and approved by the ~~Rules~~Underwriters prior to the execution of this Agreement; (ii) The ~~documents that are incorporated by reference in~~ Commission has not issued any order preventing or suspending the ~~preliminary prospectus and the~~ use of any Preliminary Prospectus or ~~from which information is so incorporated by reference~~any part thereof and, ~~when they became effective~~ to the best knowledge of the Company, no proceedings for a stop order have been instituted or ~~were~~ are pending or threatened. When any Preliminary Prospectus was filed with the Commission, ~~as the case may be~~it contained all statements required to be stated therein in accordance with, and complied in all material respects with the requirements of, the Act and the Rules and Regulations except to the extent that such Preliminary Prospectus did not contain any such required statements, or did not so comply, in a manner corrected in the Prospectus. When the Registration Statement or any amendment thereto was (or is) declared effective, it (A) contained (or will contain) all statements required to be stated therein in accordance with, and complied in all material respects (or will comply in all material respects) with the requirements of, the Act and the Rules and Regulations and (B) did not or will not include any untrue statement of a material fact or omit to state any material fact necessary to make the ~~Securities Act~~ statements therein not misleading. When the Prospectus or any amendment or supplement thereto is filed pursuant to Rule 424(b) (or, if the Prospectus or such amendment or supplement is not required to be so filed, when the Registration Statement or the ~~Securities Exchange Act of 1934~~amendment thereto containing such amendment or supplement to the Prospectus was or is declared effective) and on the Closing Date and any Option Closing Date, the Prospectus, as amended or supplemented at any such time, (~~the "Exchange Act"), as applicable~~A) contained or will contain all statements required to be stated therein in accordance with, and the rules and regulations of the Commission promulgated under the Securities Act and the Exchange Act, as applicable, except as amended and superseded by statements made in the Registration Statement; and any documents so filed and incorporated by reference subsequent to the Effective Date shall, when they are filed with the Commission, conform complied or will comply in all material respects with the requirements of of, the ~~Securities Act or the Exchange Act, as applicable, and the rules and regulations of the Commission promulgated under the Securities~~ Act and the ~~Exchange Act~~Rules and Regulations and (B) did not or will not include any untrue statement of a material fact or omit to state any material fact necessary in order to make the statements therein, ~~as applicable.~~in the light of the circumstances under which they were made, not misleading. The foregoing provisions of this paragraph (ii) do not apply to the Provided Information; (iii) The ~~consolidated financial statements of the~~ Company (including all notes and schedules thereto) included in the Registration Statement and Prospectus present fairly the financial position, the results of operations and cash flows and the stockholders' equity and the other information purported to be shown therein of the Company and its subsidiaries, listed on Schedule III hereto (the "Subsidiaries"), at the respective dates and for the respective (iv) KPMG Peat Marwick LLP, whose report is filed with the Commission as a part of the Registration Statement, is and, during the periods covered by its reports, was independent public accountants as required by the Securities Act and the Rules. (v) The Company has been duly incorporated and is a corporation duly organized, validly existing ~~corporation~~ and in good standing under the laws of the State of Delaware, and the Subsidiaries have been duly incorporated and are validly existing corporations under the laws of their respective jurisdictions. Other than the Subsidiaries, the Company has no subsidiaries and does not control, directly or indirectly, any corporation, partnership, joint venture, association or other business organization, except as described in the Registration Statement and the Prospectus. Each of the Company and the Subsidiaries is duly qualified to transact business and is in good standing as a foreign corporation in each jurisdiction in which its ownership or leasing of any properties or the character or ~~location~~ conduct of its ~~assets~~ operations requires such qualification, except where failures to be so qualified, individually or ~~properties (owned~~in the aggregate, ~~leased or licensed) or the nature of its business makes such qualification necessary except for such jurisdictions where the failure to so qualify~~ would not ~~have~~ result in a ~~material adverse effect on the assets or properties, business, results of operations or condition (financial or otherwise) of the Company and the Subsidiaries, taken as a whole (a "~~Material Adverse Effect"). ~~Except as disclosed in the Registration Statement and the Prospectus~~The Company does not own any stock of or other equity in, ~~neither the~~ or otherwise control directly or indirectly, any corporation, firm, partnership, trust, joint venture or other business entity; (iv) The Company ~~nor the Subsidiaries own, lease or license any material asset or property or conduct any material business outside the United States of America. Each of the Company and the Subsidiaries have~~ has all requisite ~~corporate~~ power and ~~authority~~authority (corporate and other), and has obtained and currently maintains in full force and effect and is operating in compliance with any and all ~~necessary~~ authorizations, approvals~~, consents~~, orders, licenses, ~~certificates~~ certificates, franchises and permits of and from all governmental or regulatory officials and bodies (including those having jurisdiction over environmental or ~~any other person~~ similar matters) necessary or ~~entity,~~ required to ~~own,~~ own or lease ~~and license their assets and~~ its properties and conduct ~~their businesses as now being conducted and~~ its business as described in the Registration ~~Statement and~~ Statement, the Prospectus and any amendment or supplement thereto, except ~~for~~ where the failure to so maintain or operate would not result in a Material Adverse Effect. The Company is and has been doing business in compliance with all such authorizations, approvals, ~~consents,~~ orders, licenses, ~~certificates~~ certificates, franchises and permits and all federal, state, local and foreign laws, rules and regulations (including without limitation those relating to employment matters and the ~~failure~~ payment of taxes) except as disclosed in the Prospectus and except where failures to ~~so obtain~~ be in compliance, individually or in the aggregate, would not ~~have~~ result in a Material Adverse Effect~~; no~~ . The Company has not received any notice or notices of proceedings relating to the revocation or modification of any such authorization, approval, ~~consent,~~ order, license, ~~certificate~~ certificate, franchise or permit ~~contains a materially burdensome restriction other than as disclosed~~ that if the subject of unfavorable decisions, rulings or findings, would, individually or in the ~~Registration Statement~~ aggregate, result in a Material Adverse Effect; (v) The Company has duly executed and delivered the Rights Agent Agreement. The shares of Common Stock to be sold by the Company hereunder and upon the exercise of the Rights are subject to the rights and interests of the Underwriters and the ~~Prospectus;~~ Rights Agent hereunder and under the Rights Agent Agreement. Except to the extent otherwise provided therein, the arrangements for custody or reservation and delivery of the certificates for such shares, made by the Company ~~has all such corporate power~~ hereunder and ~~authority~~under the Rights Agent Agreement, are irrevocable, and ~~such authorizations, approvals, consents, orders, licenses, certificates and permits~~ are not subject to ~~enter into, deliver and perform this Agreement and to issue and~~termination by any acts of the Company or by operation of law; (vi) The Company has all requisite power and authority (corporate and other) to enter into this Agreement, the Other Purchasers Standby Purchase Agreements and the ~~Subsidiaries own~~ Rights Agent Agreement, and to consummate the transactions provided for herein and therein; and this Agreement, the Other Purchasers Standby Purchase Agreements and the Rights Agent Agreement have each been duly authorized by the Company. Each of this Agreement and the Rights Agent Agreement have been and the Other Purchasers Standby Purchase Agreements will be prior to the Closing Date duly executed and delivered by the Company. Each of this Agreement and the Rights Agent Agreement constitutes and the Other Purchasers Standby Purchase Agreements will constitute prior to the Closing Date, assuming due authorization, execution and delivery by the other parties to such agreements, the legal, valid and binding obligation of the Company enforceable against the Company in accordance with their respective terms, subject to the effect of general principles of equity (including standards of materiality, good faith, fair dealing and reasonableness) whether applied by a court of law or ~~possess adequate~~ equity, and ~~enforceable~~ except as rights to ~~use all patents~~indemnity and contribution hereunder may be limited by applicable law, ~~trademarks~~statutory duties or public policy. The Company's execution and delivery of this Agreement, ~~trademark applications~~the Other Purchasers Standby Purchase Agreements and the Rights Agent Agreement, ~~trade names~~its performance of its obligations hereunder and thereunder, ~~service marks~~the consummation of the transactions contemplated hereby and thereby by it, ~~copyrights, copyright applications, licenses, know-how~~ and ~~other similar rights and proprietary knowledge (collectively, "Intangibles") material to or necessary for the~~ its conduct of ~~their~~ its business as described in the Registration ~~Statement~~ Statement, the Prospectus and ~~the Prospectus. Except as disclosed~~ any amendment or supplement thereto, will not conflict with or result in ~~the Registration Statement and the Prospectus, neither the Company nor~~ a breach or violation of any of the ~~Subsidiaries have received any notice~~ terms or provisions of, ~~and to their knowledge are not aware of~~or constitute a default under, ~~any infringement of~~ or ~~conflict with asserted rights of others with respect to any Intangibles which, singly or~~ result in the ~~aggregate, if the subject of an unfavorable decision, ruling~~ creation or ~~finding, could be reasonably expected to have a Material Adverse Effect, and neither the Company nor the Subsidiaries know~~ imposition of any reasonable basis therefor. Except as disclosed in the Registration Statement and the Prospectus, to the knowledge of the Company, no Intangibles of the Company or the Subsidiaries are in dispute or are in any conflict with the right of any other person or entity and the Company and each of the Subsidiaries (A) has or will have the right (subject to applicable agreements, which agreements provide for use to the extent necessary and desirable for the conduct of its business as currently conducted and as proposed to be conducted) to use, free and clear of all material liens, charges, claims, encumbrances, pledges, security interests, ~~defects,~~ defects or other like restrictions or material equities of any kind whatsoever all licenses and rights to the Intangibles used in the conduct of their business as now conducted or proposed to be conducted without infringing upon or otherwise acting adversely to the right or claimed right of any other person and (B) is not or will not become, as the case may be, obligated or in any way liable for any payment by way of royalties, fees or otherwise and to any owner or licensee of, or other claimant toupon, any ~~Intangibles with respect to the use thereof~~ right, property or ~~in connection with the conduct of their business~~ assets (tangible or otherwise, except in each case as disclosed in the Prospectus and except for any such payments, claims, uses, liens, charges, encumbrances, pledges, security interests, defects, restrictions and equities which would not have a Material Adverse Effect. (vii) The Company and the Subsidiaries have good and marketable title to each of the items of personal property which are reflected in the financial statements referred to in Section 4(a)(ii) or are referred to in the Registration Statement and the Prospectus as being owned by them and valid and enforceable leasehold interests in each of the items of real and personal property which are referred to in the Registration Statement and the Prospectus as being leased by them, in each case free and clear of all liens, encumbrances, claims, security interests and defects, other than those described in the Registration Statement and the Prospectus and those which do not and will not have a Material Adverse Effect. (viii) Except as described in the Registration Statement and the Prospectus, there is no litigation or governmental or other proceeding or investigation before any court or before or by any public body or board pending or, to the Company's knowledge, threatened (and the Company does not know of any reasonable basis therefor) against, or involving the assets, properties or business of, the Company or the Subsidiaries which, if adversely determined, could be reasonably expected to have a Material Adverse Effect. (ix) Subsequent to the respective dates as of which information is given in the Registration Statement and the Prospectus, except as described therein, (A) there has not been any material adverse change in the assets or properties, business, results of operations, prospects or condition (financial or otherwiseintangible) of the Company pursuant to the terms of (A) the Certificate of Incorporation or bylaws, each as amended to date, of the ~~Subsidiaries taken as a whole~~Company, ~~whether or not arising from transactions in the ordinary course of business;~~ (B) ~~neither the Company nor~~ any of the Subsidiaries has sustained any material loss or interference with its assets, businesses or properties (whether owned, leased or licensed) from fire, explosion, earthquake, flood or other calamity, whether or not covered by insurance, or from any labor dispute or any court or legislative or other governmental action, order or decree; and (C) since the date of the latest balance sheet included in the Registration Statement and the Prospectus, except as reflected therein, neither the Company nor any of the Subsidiaries has (x) issued any securities (other than options or shares issued pursuant to exercise of employee stock options or warrants described in the Registration Statement and Prospectus) or incurred any liability or obligation, direct or contingent, for borrowed money, except such liabilities or obligations incurred in the ordinary course of business, (y) entered into any transaction not in the ordinary course of business or (z) declared or paid any dividend or made any distribution on any shares of its stock or redeemed, purchased or otherwise acquired or agreed to redeem, purchase or otherwise acquire any shares of its stock. (x) There is no material document or contract of a character required to be described in the Registration Statement or Prospectus or to be filed as an exhibit to the Registration Statement which is not described or filed as required. Each agreement listed in the Exhibits to the Registration Statement is in full force and effect or has terminated in accordance with its terms or by amendment and such amendment has been filed as an Exhibit to the Registration Statement or has otherwise been provided to the Representatives and, if not so terminated, is valid and enforceable in all material respects by and against the Company or the Subsidiaries, as the case may be, in accordance with its terms, assuming the due authorization, execution and delivery thereof by each of the other parties thereto, except as the enforceability thereof may be limited by (i) bankruptcy, insolvency, reorganization, moratorium or other similar laws affecting the enforcement of creditors' rights generally and (ii) indemnification provisions under Federal and state securities laws; and that the remedy of specific forms of equitable relief may be subject to equitable defenses and the discretion of the court before which any such action may be brought. Neither the Company, the (xi) Neither the Company nor the Subsidiaries is in violation of any term or provision of their respective Certificate of Incorporation and By-laws, in each case as amended to the date hereof, or other governing documents, or of any franchiselease, license, permit, ~~judgment~~contract, decree, order, statute, rule or regulation, where the consequences of such violation would have a Material Adverse Effect. Except as described in the Registration Statement or Prospectus, neither the Company nor any of the Subsidiaries intends to amend its Certificate of Incorporation and By-laws. (xii) Neither the execution, delivery and performance of this Agreement by the Company or the Subsidiaries nor the consummation of any of the transactions contemplated hereby (including, without limitation, the issuance and sale by the Company of the Shares) will give rise to a right to terminate or accelerate the due date of any payment due under, or conflict with or result in the breach of any term or provision of, or constitute a default (or an event which with notice or lapse of time or both would constitute a default) under, or require any consent or waiver under, or result in the execution or imposition of any lien, charge or encumbrance upon any properties or assets of the Company or any of the Subsidiaries pursuant to the terms of, any indenture, mortgage, deed of trust, voting trust agreement, stockholders agreement, note, loan or credit agreement (including any related to indebtedness) or any other agreement or instrument to which the Company ~~or any of the Subsidiaries~~ is a party or by which it the Company is or may be bound or to which any of its properties or ~~businesses are bound~~assets (tangible or intangible) is or may be subject, except to the extent that any such conflict, breach, violation or default, individually or in the aggregate, does not and would not result in a Material Adverse Effect and does not and would not interfere with the Offering or (C) any ~~franchise, license, permit~~statute, judgment, decree, order~~, statute~~, rule or regulation applicable to the Company or any of ~~the Subsidiaries~~ its activities or ~~violate any provision of the Certificate of Incorporation and By-laws of~~ properties adopted or issued by an arbitrator, court, regulatory body or administrative agency or other governmental agency or body (including those having jurisdiction over environmental or similar matters), domestic or foreign, having jurisdiction over the Company or any of ~~the Subsidiaries, except for~~ its activities or properties (other than such consents or waivers which have already been obtained and are in full force and effect or as would not have a Material Adverse Effect. No consent, approval, authorization, order, registration or qualification of or with any United States court or governmental agency or body is required for the issue and sale of the Shares or the consummation of the other transactions contemplated by this Agreement, which have not been obtained prior to the date hereof, except the registration under the Securities Act of the Shares, and such consents, approvals, authorizations, registrations or qualifications as may be required under state securities or "Blue ~~Sky~~ Sky" laws ~~-9- 10~~ and such as may be required by the by-laws and rules of the NASD in connection with the purchase and distribution of the Shares by the Underwriters.); (~~xiii~~vii) ~~The~~ No consent, approval, authorization or order of, or filing with, any governmental agency or body or any court is required in connection with the offer, issuance and sale of the shares of Common Stock to be sold by the Company hereunder or upon exercise of the Rights, the Company's performance of its obligations hereunder, or the consummation by the Company of the other transactions contemplated hereby, except (A) such as may be required under the state securities or "Blue Sky" laws of any jurisdiction or as may be required by the by-laws and rules of the NASD in connection with the purchase and distribution of the Shares by the Underwriters, (B) any filing of the Prospectus pursuant to Rule 424(b) or 430A of the Rules and Regulations and, if the Registration Statement has not been declared effective, an order of the Commission declaring the Registration Statement effective under the Act, and (C) such other approvals as have been obtained and remain in full force and effect; (viii) Upon consummation of the Offering, the authorized, issued and outstanding capital stock of the Company is set forth, and conforms to the ~~capital stock reserved or committed for issuance is as set forth under the caption "Capitalization"~~ description thereof contained, in the Registration Statement, the Prospectus, and any amendment or supplement thereto. All of the ~~outstanding~~ issued shares of ~~Stock~~ capital stock of the Company, including the shares to be sold by the Selling Stockholders, have been duly authorized and validly ~~issued~~ issued, and are fully paid and nonassessable; the holders thereof have no rights of rescission against the Company with respect thereto and are not subject to personal liabilities solely by reason of being such holders (except to the extent that as a result of acquiring a substantial number of shares of Common Stock a holder may be subject to claims of personal liability as an affiliate or control person of the Company, as to which no representation is made hereby); and none of ~~them was~~ such shares have been issued in violation of the preemptive rights of any ~~preemptive~~ security holders of the Company arising as a matter of law or ~~other similar right and,~~ under or pursuant to the Company's ~~knowledge~~Certificate of Incorporation, ~~since 1991~~as amended, ~~none of them were issued in violation of~~ the Company's By-Laws, as amended, or any ~~Federal~~ agreement or ~~state securities laws~~instrument to which the Company is a party or by which it is bound. The ~~Shares, when issued~~ shares of Common Stock offered by the Company and to be sold upon the exercise of the Rights or pursuant to this ~~Agreement~~Agreement and the Other Purchasers Standby Purchase Agreements have been duly authorized and at the Closing Date, after payment therefor in accordance herewith or in accordance with the terms and conditions of the Rights (as the case may be), will be ~~duly and~~ validly issued, fully paid and nonassessable, none of them will be issued in violation of any preemptive or other similar right, any contractual right, including, without limitation, rights of first refusal, and, since 1991, none of them were issued in violation of any (nonassessable and not subject to ~~compliance~~ any Adverse Claim, with ~~Section 1(c) hereof), Federal or state securities laws. Except~~ no personal liability attaching to the holder solely as ~~disclosed in~~ a result of the ~~Registration Statement and~~ ownership thereof (except to the ~~Prospectus, there is no outstanding option, warrant or other right calling for the issuance of, and there is no commitment, plan or arrangement to issue, any~~ extent that as a result of acquiring a substantial number of shares of Common Stock a holder may be subject to claims of personal liability as an affiliate or control person of the ~~Company or any security convertible into~~Company, ~~or exercisable or exchangeable for, such shares of Stock~~as to which no representation is made hereby). ~~The shares of Stock conform in all material respects~~ Upon the issuance and delivery pursuant to ~~all statements in relation thereto contained in the Registration Statement~~ this Agreement and the ~~Prospectus. The Company has a sufficient number~~ Rights Agent Agreement of ~~authorized but unissued shares of Stock to enable the Company to issue, without further stockholder action, or approve all~~ the Shares to be sold by the Company~~. (xiv) As~~ , assuming that each of the ~~date hereof~~Underwriters is a Bona Fide Purchaser, the Underwriters will acquire good and as marketable title to the Shares free and clear of ~~each Closing Date~~any liens, ~~all~~ charges, claims, preemptive rights, encumbrances, pledges, security interests, defects or other like restrictions or like material equity of ~~the outstanding~~ any kind whatsoever. The shares of ~~capital stock of the Subsidiaries are duly and validly authorized and issued, are fully paid and nonassessable and are and will be owned~~ Common Stock offered by the Company and ~~there is and~~ to be sold upon the exercise of the Rights or pursuant to this Agreement or the Other Purchasers Standby Purchase Agreements will be conform to the description thereof contained in the Prospectus. There are no ~~outstanding option, warrant~~ preemptive or other ~~right calling~~ rights to subscribe for or to purchase nor any restriction upon the ~~issuance~~ voting or transfer of, any shares of Common Stock pursuant to the Company's Certificate of Incorporation or By-Laws, each as amended to date, or pursuant to any agreement among stockholders to which the Company is a party, by which it is bound or of which it has knowledge, and ~~no commitment~~the Shares to be sold by the Company are not otherwise subject to any preemptive or other similar rights of any security holder. The Company is not a party to or bound by any instrument, ~~plan~~ agreement or other arrangement providing for it to issue any ~~share of~~ capital ~~stock of the Subsidiaries~~ stock, rights, warrants, options or ~~any security convertible or exchangeable or exercisable for capital stock of the Subsidiaries~~other securities, except for this Agreement and as ~~otherwise~~ described in the ~~Registration Statement and~~ Prospectus~~. (xv)~~ . Except as ~~set forth~~ described in the ~~Registration Statement and Prospectus~~Prospectus with respect to Common Stock that may be registered by the Company in a registration statement on Form S-8, no holder of any ~~security~~ securities of the Company has the right to ~~have~~ include any ~~security owned~~ securities issued by ~~such holder included~~ the Company in the Registration Statement or any registration statement to ~~demand registration of any security owned~~ be filed by ~~such holder~~ the Company during ~~the~~ a period ~~ending 90 days after~~ commencing on the date the Registration Statement is declared effective by the Commission and ending 180 days following the Expiration Date or to require the Company to file a registration statement under the Act during such period. All of ~~this Agreement. Each Selling Stockholder~~ the (i) Rights and ~~each director~~ (ii) outstanding shares of Common Stock and ~~executive officer~~ all of the shares of Common Stock to be issued by the Company as contemplated herein have been approved for quotation upon notice of issuance on the Nasdaq National Market of the Nasdaq Stock Market; (ix) The financial statements and schedules of the Company ~~has delivered to~~included in the Registration Statement, the Prospectus (or, if the Prospectus is not in existence, the most recent Preliminary Prospectus) and any amendment or supplement thereto fairly present the financial position and results of operations of the Company as of the dates and for the periods therein specified. Such financial statements and schedules have been prepared in accordance with generally accepted accounting principles as in effect in the United States and as consistently applied throughout the periods involved and in accordance with the Rules and Regulations. The selected financial data set forth under the caption "SELECTED FINANCIAL DATA" in the Prospectus (or, if the Prospectus is not in existence, the most recent Preliminary Prospectus) fairly present, on the basis stated therein, the information included therein. The Company maintains a system of internal accounting controls sufficient to provide reasonable assurance that (A) transactions are executed in accordance with management's general or specific authoriza

Appears in 1 contract

Sources: Standby Underwriting Agreement (Who Vision Systems Inc /Fl)

Representations and Warranties of the Company and the Selling Stockholders. (a) ~~The~~ Each of the Company ~~hereby~~ and HealthChoice, jointly and severally, represents and warrants ~~to each Underwriter as follows~~to, and agrees with, the several Underwriters that: (i) On A registration statement filed on Form S-1 (No. 333-99051) relating to the ~~Effective Date~~Offered Securities, including a form of prospectus, was initially filed with the Securities and Exchange Commission ("Commission") on August 30, 2002 and either (A) has been declared effective under the Securities Act of 1933, as amended ("Act") and is not proposed to be amended or (B) is proposed to be amended by amendment or post-effective amendment. If such registration statement (the "initial registration statement") has been declared effective, either (A) an additional registration statement (the "additional registration statement") relating to the Offered Securities may have been filed with the Commission pursuant to Rule 462(b) ("Rule 462(b)") under the Act and, if so filed, has become effective upon filing pursuant to such Rule and the Offered Securities all have been duly registered under the Act pursuant to the initial registration statement and, if applicable, the ~~Registration Statement complied~~additional registration statement or (B) such an additional registration statement is proposed to be filed with the Commission pursuant to Rule 462(b) and will become effective upon filing pursuant to such Rule and upon such filing the Offered Securities will all have been duly registered under the Act pursuant to the initial registration statement and such additional registration statement. If the Company does not propose to amend the initial registration statement or if an additional registration statement has been filed and the Company does not propose to amend it, and ~~on the date of the Prospectus, on the date~~ if any post-effective amendment to ~~the Registration Statement shall become effective, on the date any supplement or amendment to the Prospectus is~~ either such registration statement has been filed with the Commission prior to the execution and ~~on each Closing Date~~delivery of this Agreement, the ~~Registration Statement and~~ most recent amendment (if any) to each such registration statement has been declared effective by the ~~Prospectus~~ Commission or has become effective upon filing pursuant to Rule 462(c) (~~and any amendment thereof or supplement thereto~~"Rule 462(c)") ~~will comply~~under the Act or, in ~~all material respects, with~~ the ~~applicable provisions~~ case of the ~~Securities Act~~ additional registration statement, Rule 462(b). For purposes of this Agreement, "Effective Time" with respect to the initial registration statement or, if filed prior to the execution and delivery of this Agreement, the ~~Rules;~~ additional registration statement means (iiA) ~~The documents~~ if the Company has advised the Representatives that ~~are incorporated~~ it does not propose to amend such registration statement, the date and time as of which such registration statement, or the most recent post-effective amendment thereto (if any) filed prior to the execution and delivery of this Agreement, was declared effective by ~~reference in~~ the ~~preliminary prospectus~~ Commission or has become effective upon filing pursuant to Rule 462(c), or (B) if the Company has advised the Representatives that it proposes to file an amendment or post-effective amendment to such registration statement, the date and ~~the Prospectus~~ time as of which such registration statement, as amended by such amendment or ~~from which information is so incorporated by reference, when they became~~ post-effective ~~or were filed with the Commission~~amendment, as the case may be, ~~complied in all material respects~~ is declared effective by the Commission. If an additional registration statement has not been filed prior to the execution and delivery of this Agreement but the Company has advised the Representatives that it proposes to file one, "Effective Time" with respect to such additional registration statement means the ~~requirements~~ date and time as of which such registration statement is filed and becomes effective pursuant to Rule 462(b). "Effective Date" with respect to the initial registration statement or the additional registration statement (if any) means the date of the ~~Securities Act or the Securities Exchange Act of 1934~~Effective Time thereof. The initial registration statement, as amended at its Effective Time, including all information contained in the additional registration statement (if any) and deemed to be a part of the initial registration statement as of the Effective Time of the additional registration statement pursuant to the General Instructions of the Form on which it is filed and including all information (if any) deemed to be a part of the initial registration statement as of its Effective Time pursuant to Rule 430A(b) ("Rule 430A(b)") under the Act, is hereinafter referred to as the "~~Exchange Act")~~Initial Registration Statement." The additional registration statement, as ~~applicable~~amended at its Effective Time, ~~and~~ including the ~~rules and regulations~~ contents of the ~~Commission promulgated under the Securities Act and the Exchange Act, as applicable, except as amended and superseded by statements made in the Registration Statement; and any documents so filed and~~ initial registration statement incorporated by reference ~~subsequent~~ therein and including all information (if any) deemed to ~~the Effective Date shall, when they are filed with the Commission, conform in all material respects with the requirements~~ be a part of the ~~Securities Act or~~ additional registration statement as of its Effective Time pursuant to Rule 430A(b), is hereinafter referred to as the ~~Exchange Act, as applicable, and the rules and regulations of the Commission promulgated under the Securities Act and the Exchange Act, as applicable~~"Additional Registration Statement. ~~(iii)~~ " The ~~consolidated financial statements of the Company (including all notes and schedules thereto) included in the~~ Initial Registration Statement and ~~Prospectus present fairly~~ the ~~financial position, the results of operations and cash flows and the stockholders' equity and the other information purported~~ Additional Registration are hereinafter referred to ~~be shown therein of the Company and its subsidiaries, listed on Schedule III hereto (~~collectively as the "~~Subsidiaries~~Registration Statements" and individually as a ")Registration Statement." The form of prospectus relating to the Offered Securities, ~~at the respective dates and for the respective (iv) KPMG Peat Marwick LLP, whose report is~~ as first filed with the Commission pursuant to and in accordance with Rule 424(b) ("Rule 424(b)") under the Act or (if no such filing is required) as included in a ~~part of the~~ Registration Statement, is ~~and, during~~ hereinafter referred to as the ~~periods covered by its reports, was independent public accountants as required by the Securities Act and the Rules~~"Prospectus. ~~(v) The Company~~ " No document has been ~~duly incorporated and is a validly existing corporation~~ or will be prepared or distributed in reliance on Rule 434 under the laws of the State of Delaware, and the Subsidiaries have been duly incorporated and are validly existing corporations under the laws of their respective jurisdictions. Other than the Subsidiaries, the Company has no subsidiaries and does not control, directly or indirectly, any corporation, partnership, joint venture, association or other business organization, except as described in the Registration Statement and the Prospectus. Each of the Company and the Subsidiaries is duly qualified and in good standing as a foreign corporation in each jurisdiction in which the character or location of its assets or properties (owned, leased or licensed) or the nature of its business makes such qualification necessary except for such jurisdictions where the failure to so qualify would not have a material adverse effect on the assets or properties, business, results of operations or condition (financial or otherwise) of the Company and the Subsidiaries, taken as a whole (a "Material Adverse Effect"). Except as disclosed in the Registration Statement and the Prospectus, neither the Company nor the Subsidiaries own, lease or license any material asset or property or conduct any material business outside the United States of America. Each of the Company and the Subsidiaries have all requisite corporate power and authority, and all necessary authorizations, approvals, consents, orders, licenses, certificates and permits of and from all governmental or regulatory bodies or any other person or entity, to own, lease and license their assets and properties and conduct their businesses as now being conducted and as described in the Registration Statement and the Prospectus except for such authorizations, approvals, consents, orders, licenses, certificates and permits the failure to so obtain would not have a Material Adverse Effect; no such authorization, approval, consent, order, license, certificate or permit contains a materially burdensome restriction other than as disclosed in the Registration Statement and the Prospectus; and the Company has all such corporate power and authority, and such authorizations, approvals, consents, orders, licenses, certificates and permits to enter into, deliver and perform this Agreement and to issue and (vi) The Company and the Subsidiaries own or possess adequate and enforceable rights to use all patents, trademarks, trademark applications, trade names, service marks, copyrights, copyright applications, licenses, know-how and other similar rights and proprietary knowledge (collectively, "Intangibles") material to or necessary for the conduct of their business as described in the Registration Statement and the Prospectus. Except as disclosed in the Registration Statement and the Prospectus, neither the Company nor any of the Subsidiaries have received any notice of, and to their knowledge are not aware of, any infringement of or conflict with asserted rights of others with respect to any Intangibles which, singly or in the aggregate, if the subject of an unfavorable decision, ruling or finding, could be reasonably expected to have a Material Adverse Effect, and neither the Company nor the Subsidiaries know of any reasonable basis therefor. Except as disclosed in the Registration Statement and the Prospectus, to the knowledge of the Company, no Intangibles of the Company or the Subsidiaries are in dispute or are in any conflict with the right of any other person or entity and the Company and each of the Subsidiaries (A) has or will have the right (subject to applicable agreements, which agreements provide for use to the extent necessary and desirable for the conduct of its business as currently conducted and as proposed to be conducted) to use, free and clear of all liens, charges, claims, encumbrances, pledges, security interests, defects, restrictions or equities of any kind whatsoever all licenses and rights to the Intangibles used in the conduct of their business as now conducted or proposed to be conducted without infringing upon or otherwise acting adversely to the right or claimed right of any other person and (B) is not or will not become, as the case may be, obligated or in any way liable for any payment by way of royalties, fees or otherwise and to any owner or licensee of, or other claimant to, any Intangibles with respect to the use thereof or in connection with the conduct of their business or otherwise, except in each case as disclosed in the Prospectus and except for any such payments, claims, uses, liens, charges, encumbrances, pledges, security interests, defects, restrictions and equities which would not have a Material Adverse EffectAct. (vii) The Company and the Subsidiaries have good and marketable title to each of the items of personal property which are reflected in the financial statements referred to in Section 4(a)(ii) or are referred to in the Registration Statement and the Prospectus as being owned by them and valid and enforceable leasehold interests in each of the items of real and personal property which are referred to in the Registration Statement and the Prospectus as being leased by them, in each case free and clear of all liens, encumbrances, claims, security interests and defects, other than those described in the Registration Statement and the Prospectus and those which do not and will not have a Material Adverse Effect. (viii) Except as described in the Registration Statement and the Prospectus, there is no litigation or governmental or other proceeding or investigation before any court or before or by any public body or board pending or, to the Company's knowledge, threatened (and the Company does not know of any reasonable basis therefor) against, or involving the assets, properties or business of, the Company or the Subsidiaries which, if adversely determined, could be reasonably expected to have a Material Adverse Effect. (ix) Subsequent to the respective dates as of which information is given in the Registration Statement and the Prospectus, except as described therein, (A) there has not been any material adverse change in the assets or properties, business, results of operations, prospects or condition (financial or otherwise) of the Company or the Subsidiaries taken as a whole, whether or not arising from transactions in the ordinary course of business; (B) neither the Company nor any of the Subsidiaries has sustained any material loss or interference with its assets, businesses or properties (whether owned, leased or licensed) from fire, explosion, earthquake, flood or other calamity, whether or not covered by insurance, or from any labor dispute or any court or legislative or other governmental action, order or decree; and (C) since the date of the latest balance sheet included in the Registration Statement and the Prospectus, except as reflected therein, neither the Company nor any of the Subsidiaries has (x) issued any securities (other than options or shares issued pursuant to exercise of employee stock options or warrants described in the Registration Statement and Prospectus) or incurred any liability or obligation, direct or contingent, for borrowed money, except such liabilities or obligations incurred in the ordinary course of business, (y) entered into any transaction not in the ordinary course of business or (z) declared or paid any dividend or made any distribution on any shares of its stock or redeemed, purchased or otherwise acquired or agreed to redeem, purchase or otherwise acquire any shares of its stock. (x) There is no material document or contract of a character required to be described in the Registration Statement or Prospectus or to be filed as an exhibit to the Registration Statement which is not described or filed as required. Each agreement listed in the Exhibits to the Registration Statement is in full force and effect or has terminated in accordance with its terms or by amendment and such amendment has been filed as an Exhibit to the Registration Statement or has otherwise been provided to the Representatives and, if not so terminated, is valid and enforceable in all material respects by and against the Company or the Subsidiaries, as the case may be, in accordance with its terms, assuming the due authorization, execution and delivery thereof by each of the other parties thereto, except as the enforceability thereof may be limited by (i) bankruptcy, insolvency, reorganization, moratorium or other similar laws affecting the enforcement of creditors' rights generally and (ii) indemnification provisions under Federal and state securities laws; and that the remedy of specific forms of equitable relief may be subject to equitable defenses and the discretion of the court before which any such action may be brought. Neither the Company, the (xi) Neither the Company nor the Subsidiaries is in violation of any term or provision of their respective Certificate of Incorporation and By-laws, in each case as amended to the date hereof, or other governing documents, or of any franchise, license, permit, judgment, decree, order, statute, rule or regulation, where the consequences of such violation would have a Material Adverse Effect. Except as described in the Registration Statement or Prospectus, neither the Company nor any of the Subsidiaries intends to amend its Certificate of Incorporation and By-laws. (xii) Neither the execution, delivery and performance of this Agreement by the Company or the Subsidiaries nor the consummation of any of the transactions contemplated hereby (including, without limitation, the issuance and sale by the Company of the Shares) will give rise to a right to terminate or accelerate the due date of any payment due under, or conflict with or result in the breach of any term or provision of, or constitute a default (or an event which with notice or lapse of time or both would constitute a default) under, or require any consent or waiver under, or result in the execution or imposition of any lien, charge or encumbrance upon any properties or assets of the Company or any of the Subsidiaries pursuant to the terms of, any indenture, mortgage, deed of trust or other agreement or instrument to which the Company or any of the Subsidiaries is a party or by which it or any of its properties or businesses are bound, or any franchise, license, permit, judgment, decree, order, statute, rule or regulation applicable to the Company or any of the Subsidiaries or violate any provision of the Certificate of Incorporation and By-laws of the Company or any of the Subsidiaries, except for such consents or waivers which have already been obtained and are in full force and effect or as would not have a Material Adverse Effect. No consent, approval, authorization, order, registration or qualification of or with any United States court or governmental agency or body is required for the issue and sale of the Shares or the consummation of the other transactions contemplated by this Agreement, which have not been obtained prior to the date hereof, except the registration under the Securities Act of the Shares, and such consents, approvals, authorizations, registrations or qualifications as may be required under state securities or Blue Sky laws -9- 10 in connection with the purchase and distribution of the Shares by the Underwriters. (xiii) The authorized, issued and outstanding capital stock of the Company and the capital stock reserved or committed for issuance is as set forth under the caption "Capitalization" in the Prospectus. All of the outstanding shares of Stock have been duly and validly issued and are fully paid and nonassessable, none of them was issued in violation of any preemptive or other similar right and, to the Company's knowledge, since 1991, none of them were issued in violation of any Federal or state securities laws. The Shares, when issued and sold pursuant to this Agreement, will be duly and validly issued, fully paid and nonassessable, none of them will be issued in violation of any preemptive or other similar right, any contractual right, including, without limitation, rights of first refusal, and, since 1991, none of them were issued in violation of any (subject to compliance with Section 1(c) hereof), Federal or state securities laws. Except as disclosed in the Registration Statement and the Prospectus, there is no outstanding option, warrant or other right calling for the issuance of, and there is no commitment, plan or arrangement to issue, any shares of Common Stock of the Company or any security convertible into, or exercisable or exchangeable for, such shares of Stock. The shares of Stock conform in all material respects to all statements in relation thereto contained in the Registration Statement and the Prospectus. The Company has a sufficient number of authorized but unissued shares of Stock to enable the Company to issue, without further stockholder action, or approve all the Shares to be sold by the Company. (xiv) As of the date hereof, and as of each Closing Date, all of the outstanding shares of capital stock of the Subsidiaries are duly and validly authorized and issued, are fully paid and nonassessable and are and will be owned by the Company and there is and will be no outstanding option, warrant or other right calling for the issuance of, and no commitment, plan or arrangement to issue any share of capital stock of the Subsidiaries or any security convertible or exchangeable or exercisable for capital stock of the Subsidiaries, except as otherwise described in the Registration Statement and Prospectus. (xv) Except as set forth in the Registration Statement and Prospectus, no holder of any security of the Company has the right to have any security owned by such holder included in the Registration Statement or to demand registration of any security owned by such holder during the period ending 90 days after the date of this Agreement. Each Selling Stockholder and each director and executive officer of the Company has delivered to

Appears in 1 contract

Sources: Underwriting Agreement (Wellchoice Inc)

Appears in 1 contract

Sources: Underwriting Agreement (Clarent Corp/Ca)

Appears in 1 contract

Sources: Underwriting Agreement (Celadon Group Inc)

Representations and Warranties of the Company and the Selling Stockholders. (a) The Company ~~hereby~~ represents and warrants ~~to each Underwriter as follows~~to, and agrees with, the several Underwriters that: (i) On A registration statement (No. 333-89474) relating to the ~~Effective Date~~Offered Securities, including a form of prospectus, has been filed with the Securities and Exchange Commission ("COMMISSION") and either (A) has been declared effective under the Securities Act of 1933, as amended ("ACT") and is not proposed to be amended or (B) is proposed to be amended by amendment or post-effective amendment. If such registration statement (the "INITIAL REGISTRATION STATEMENT") has been declared effective, either (A) an additional registration statement (the "ADDITIONAL REGISTRATION STATEMENT") relating to the Offered Securities may have been filed with the Commission pursuant to Rule 462(b) ("RULE 462(b)") under the Act and, if so filed, has become effective upon filing pursuant to such Rule and the Offered Securities all have been duly registered under the Act pursuant to the initial registration statement and, if applicable, the ~~Registration Statement complied~~additional registration statement or (B) such an additional registration statement is proposed to be filed with the Commission pursuant to Rule 462(b) and will become effective upon filing pursuant to such Rule and upon such filing the Offered Securities will all have been duly registered under the Act pursuant to the initial registration statement and such additional registration statement. If the Company does not propose to amend the initial registration statement or if an additional registration statement has been filed and the Company does not propose to amend it, and ~~on the date of the Prospectus, on the date~~ if any post-effective amendment to ~~the Registration Statement shall become effective, on the date any supplement or amendment to the Prospectus is~~ either such registration statement has been filed with the Commission prior to the execution and ~~on each Closing Date~~delivery of this Agreement, the ~~Registration Statement and~~ most recent amendment (if any) to each such registration statement has been declared effective by the ~~Prospectus~~ Commission or has become effective upon filing pursuant to Rule 462(c) (~~and any amendment thereof or supplement thereto~~"RULE 462(c)") ~~will comply~~under the Act or, in ~~all material respects, with~~ the ~~applicable provisions~~ case of the ~~Securities Act~~ additional registration statement, Rule 462(b). For purposes of this Agreement, "EFFECTIVE TIME" with respect to the initial registration statement or, if filed prior to the execution and delivery of this Agreement, the ~~Rules;~~ additional registration statement means (iiA) ~~The documents~~ if the Company has advised the Representatives that ~~are incorporated~~ it does not propose to amend such registration statement, the date and time as of which such registration statement, or the most recent post-effective amendment thereto (if any) filed prior to the execution and delivery of this Agreement, was declared effective by ~~reference in~~ the ~~preliminary prospectus~~ Commission or has become effective upon filing pursuant to Rule 462(c), or (B) if the Company has advised the Representatives that it proposes to file an amendment or post-effective amendment to such registration statement, the date and ~~the Prospectus~~ time as of which such registration statement, as amended by such amendment or ~~from which information is so incorporated by reference, when they became~~ post-effective ~~or were filed with the Commission~~amendment, as the case may be, ~~complied~~ is declared effective by the Commission. If an additional registration statement has not been filed prior to the execution and delivery of this Agreement but the Company has advised the Representatives that it proposes to file one, "EFFECTIVE TIME" with respect to such additional registration statement means the date and time as of which such registration statement is filed and becomes effective pursuant to Rule 462(b). "EFFECTIVE DATE" with respect to the initial registration statement or the additional registration statement (if any) means the date of the Effective Time thereof. The initial registration statement, as amended at its Effective Time, including all information contained in the additional registration statement (if any) and deemed to be a part of the initial registration statement as of the Effective Time of the additional registration statement pursuant to the General Instructions of the Form on which it is filed and including all information (if any) deemed to be a part of the initial registration statement as of its Effective Time pursuant to Rule 430A(b) ("RULE 430A(b)") under the Act, is hereinafter referred to as the "INITIAL REGISTRATION STATEMENT". The additional registration statement, as amended at its Effective Time, including the contents of the initial registration statement incorporated by reference therein and including all information (if any) deemed to be a part of the additional registration statement as of its Effective Time pursuant to Rule 430A(b), is hereinafter referred to as the "ADDITIONAL REGISTRATION STATEMENT". The Initial Registration Statement and the Additional Registration Statement are hereinafter referred to collectively as the "REGISTRATION STATEMENTS" and individually as a "REGISTRATION STATEMENT". The form of prospectus relating to the Offered Securities, as first filed with the Commission pursuant to and in accordance with Rule 424(b) ("RULE 424(b)") under the Act or (if no such filing is required) as included in a Registration Statement, is hereinafter referred to as the "PROSPECTUS". No document has been or will be prepared or distributed in reliance on Rule 434 under the Act. (ii) If the Effective Time of the Initial Registration Statement is prior to the execution and delivery of this Agreement: (A) on the Effective Date of the Initial Registration Statement, the Initial Registration Statement conformed in all ~~material~~ respects ~~with~~ to the requirements of the ~~Securities~~ Act ~~or the Securities Exchange Act of 1934, as amended (the "Exchange Act"), as applicable,~~ and the rules and regulations of the Commission ~~promulgated under~~ ("RULES AND REGULATIONS") and did not include any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the ~~Securities Act and the Exchange Act~~statements therein not misleading, ~~as applicable, except as amended and superseded by statements made in the Registration Statement; and any documents so filed and incorporated by reference subsequent to~~ (B) on the Effective Date ~~shall~~of the Additional Registration Statement (if any), ~~when they are filed with the Commission~~each Registration Statement conformed or will conform, ~~conform~~ in all ~~material~~ respects ~~with~~ to the requirements of the ~~Securities Act or the Exchange Act, as applicable, and the rules and regulations of the Commission promulgated under the Securities~~ Act and the ~~Exchange Act~~Rules and Regulations and did not include, or will not include, any untrue statement of a material fact and did not omit, or will not omit, to state any material fact required to be stated therein or necessary to make the statements therein not misleading, and (C) on the date of this Agreement, the Initial Registration Statement and, if the Effective Time of the Additional Registration Statement is prior to the execution and delivery of this Agreement, the Additional Registration Statement each conforms, and at the time of filing of the Prospectus pursuant to Rule 424(b) or (if no such filing is required) at the Effective Date of the Additional Registration Statement in which the Prospectus is included, each Registration Statement and the Prospectus will conform, in all respects to the requirements of the Act and the Rules and Regulations, and neither of such documents includes, or will include, any untrue statement of a material fact or omits, or will omit, to state any material fact required to be stated therein or necessary to make the statements therein not misleading. If the Effective Time of the Initial Registration Statement is subsequent to the execution and delivery of this Agreement: on the Effective Date of the Initial Registration Statement, the Initial Registration Statement and the Prospectus will conform in all respects to the requirements of the Act and the Rules and Regulations, none of such documents will include any untrue statement of a material fact or will omit to state any material fact required to be stated therein or necessary to make the statements therein not misleading, and no Additional Registration Statement has been or will be filed. The two preceding sentences do not apply to statements in or omissions from a Registration Statement or the Prospectus based upon written information furnished to the Company by any Underwriter through the Representatives specifically for use therein, it being understood and agreed that the only such information is that described as ~~applicable~~such in Section 7(c) hereof. (iii) The consolidated financial statements of the Company (including all notes and schedules thereto) included in the Registration Statement and Prospectus present fairly the financial position, the results of operations and cash flows and the stockholders' equity and the other information purported to be shown therein of the Company and its subsidiaries, listed on Schedule III hereto (the "Subsidiaries"), at the respective dates and for the respective (iv) KPMG Peat Marwick LLP, whose report is filed with the Commission as a part of the Registration Statement, is and, during the periods covered by its reports, was independent public accountants as required by the Securities Act and the Rules. (v) The Company has been duly incorporated and is ~~a validly~~ an existing corporation in good standing under the laws of the State of Delaware, with power and authority (corporate and other) to own its properties and conduct its business as described in the Prospectus; and the ~~Subsidiaries have been~~ Company is duly ~~incorporated and are validly existing corporations under~~ qualified to do business as a foreign corporation in good standing in all other jurisdictions in which its ownership or lease of property or the ~~laws~~ conduct of ~~their respective jurisdictions. Other than the Subsidiaries, the~~ its business requires such qualification. (iv) The Company has no ~~subsidiaries and does not control~~subsidiaries, which for purposes of this Agreement shall mean any entity in which the Company, directly or indirectly, ~~any corporation, partnership, joint venture, association~~ owns capital stock or holds an equity or similar interest. (v) The Offered Securities and all other ~~business organization, except as described in the Registration Statement and the Prospectus. Each~~ outstanding shares of capital stock of the Company have been duly authorized and validly issued, are fully paid and nonassessable and conform to the description thereof contained in the Prospectus; and the ~~Subsidiaries~~ stockholders of the Company have no preemptive rights with respect to the Securities. (vi) Except as disclosed in the Prospectus, there are no contracts, agreements or understandings between the Company and any person that would give rise to a valid claim against the Company or any Underwriter for a brokerage commission, finder's fee or other like payment in connection with this offering. (vii) Except as disclosed in the Prospectus, there are no contracts, agreements or understandings between the Company and any person granting such person the right to require the Company to file a registration statement under the Act with respect to any securities of the Company owned or to be owned by such person or to require the Company to include such securities in the Offered Securities registered pursuant to a Registration Statement or in any securities being registered pursuant to any other registration statement filed by the Company under the Act that have not been validly waived or satisfied prior to the date hereof. (viii) The Securities have been approved for listing subject to notice of issuance on The Nasdaq Stock Market's National Market. (ix) No consent, approval, authorization, or order of, or filing with, any governmental agency or body or any court is required to be obtained or made by the Company for the consummation of the transactions contemplated by this Agreement in connection with the sale of the Offered Securities, except such as have been obtained and made under the Act and such as may be required under state securities laws. (x) The execution, delivery and performance of this Agreement, and the consummation of the transactions herein contemplated will not result in a breach or violation of any of the terms and provisions of, or constitute a default under, (A) any statute, any rule, regulation or order of any governmental agency or body or any court, domestic or foreign, having jurisdiction over the Company or any of its properties, or (B) any agreement or instrument to which the Company is a party or by which the Company is bound or to which any of the properties of the Company is subject, or (C) the charter or by-laws of the Company. (xi) This Agreement has been duly ~~qualified~~ authorized, executed and delivered by the Company. (xii) Except as disclosed in the Prospectus, the Company has good ~~standing as a foreign corporation~~ and marketable title to all real properties and all other properties and assets owned by them, in each ~~jurisdiction~~ case free from liens, encumbrances and defects that would materially affect the value thereof or materially interfere with the use made or to be made thereof by them; and except as disclosed in ~~which~~ the ~~character~~ Prospectus, the Company and its subsidiaries hold any leased real or ~~location~~ personal property under valid and enforceable leases with no exceptions that would materially interfere with the use made or to be made thereof by them. (xiii) The Company possesses adequate certificates, authorities or permits issued by appropriate governmental agencies or bodies necessary to conduct the business now operated by it and has not received any notice of ~~its assets~~ proceedings relating to the revocation or ~~properties (owned~~modification of any such certificate, ~~leased~~ authority or ~~licensed)~~ permit that, if determined adversely to the Company, would individually or in the ~~nature of its business makes such qualification necessary except for such jurisdictions where the failure to so qualify would not~~ aggregate have a material adverse effect on the ~~assets or properties, business, results of operations or~~ condition (financial or ~~otherwise)~~ other), business, properties or results of operations of the Company ~~and the Subsidiaries,~~ taken as a whole (a "~~Material Adverse Effect~~MATERIAL ADVERSE EFFECT")~~. Except as disclosed in~~ . (xiv) No labor dispute with the Registration Statement and the Prospectus, neither the Company nor the Subsidiaries own, lease or license any material asset or property or conduct any material business outside the United States of America. Each employees of the Company and the Subsidiaries have all requisite corporate power and authority, and all necessary authorizations, approvals, consents, orders, licenses, certificates and permits of and from all governmental or regulatory bodies or any other person or entityexists or, to ~~own~~the knowledge of the Company, lease and license their assets and properties and conduct their businesses as now being conducted and as described in the Registration Statement and the Prospectus except for such authorizations, approvals, consents, orders, licenses, certificates and permits the failure to so obtain would not is imminent that might have a Material Adverse Effect; no such authorization, approval, consent, order, license, certificate or permit contains a materially burdensome restriction other than as disclosed in the Registration Statement and the Prospectus; and the Company has all such corporate power and authority, and such authorizations, approvals, consents, orders, licenses, certificates and permits to enter into, deliver and perform this Agreement and to issue and. (vixv) The Company owns, possesses or can acquire on reasonable terms, adequate trademarks, trade names and ~~the Subsidiaries own or possess adequate and enforceable~~ other rights to ~~use all~~ inventions, know-how, patents~~, trademarks, trademark applications, trade names, service marks~~, copyrights, ~~copyright applications, licenses, know-how~~ confidential information and other ~~similar rights and proprietary knowledge~~ intellectual property (collectively, "~~Intangibles~~INTELLECTUAL PROPERTY RIGHTS") ~~material~~ necessary to conduct the business now operated by it, or ~~necessary for the conduct of their business as described in the Registration Statement~~ presently employed by it, and ~~the Prospectus. Except as disclosed in the Registration Statement and the Prospectus, neither the Company nor any of the Subsidiaries have~~ has not received any notice ~~of, and to their knowledge are not aware of, any~~ of infringement of or conflict with asserted rights of others with respect to any ~~Intangibles which~~intellectual property rights that, ~~singly~~ if determined adversely to the Company, would individually or in the aggregate, if the subject of an unfavorable decision, ruling or finding, could be reasonably expected to have a Material Adverse Effect, and neither the Company nor the Subsidiaries know of any reasonable basis therefor. Except as disclosed in the Registration Statement and the Prospectus, to the knowledge of the Company, no Intangibles of the Company or the Subsidiaries are in dispute or are in any conflict with the right of any other person or entity and the Company and each of the Subsidiaries (A) has or will have the right (subject to applicable agreements, which agreements provide for use to the extent necessary and desirable for the conduct of its business as currently conducted and as proposed to be conducted) to use, free and clear of all liens, charges, claims, encumbrances, pledges, security interests, defects, restrictions or equities of any kind whatsoever all licenses and rights to the Intangibles used in the conduct of their business as now conducted or proposed to be conducted without infringing upon or otherwise acting adversely to the right or claimed right of any other person and (B) is not or will not become, as the case may be, obligated or in any way liable for any payment by way of royalties, fees or otherwise and to any owner or licensee of, or other claimant to, any Intangibles with respect to the use thereof or in connection with the conduct of their business or otherwise, except in each case as disclosed in the Prospectus and except for any such payments, claims, uses, liens, charges, encumbrances, pledges, security interests, defects, restrictions and equities which would not aggregate have a Material Adverse Effect. (~~vii~~xvi) ~~The~~ Except as disclosed in the Prospectus, the Company is not in violation of any statute, any rule, regulation, decision or order of any governmental agency or body or any court, domestic or foreign, relating to the use, disposal or release of hazardous or toxic substances or relating to the protection or restoration of the environment or human exposure to hazardous or toxic substances (collectively, "ENVIRONMENTAL LAWS"), does not own or operate any real property contaminated with any substance that is subject to any environmental laws, is not liable for any off-site disposal or contamination pursuant to any environmental laws, and is not subject to any claim relating to any environmental laws, which violation, contamination, liability or claim would individually or in the aggregate have Material Adverse Effect; and the ~~Subsidiaries have good and marketable title~~ Company is not aware of any pending investigation that might lead to ~~each of the items of personal property which are reflected~~ such a claim. (xvii) Except as disclosed in the ~~financial statements referred~~ Prospectus, there are no pending actions, suits or proceedings against or affecting the Company or any of its properties that, if determined adversely to ~~in Section 4(a)(ii)~~ the Company, would individually or ~~are referred to~~ in the Registration Statement and the Prospectus as being owned by them and valid and enforceable leasehold interests in each of the items of real and personal property which are referred to in the Registration Statement and the Prospectus as being leased by them, in each case free and clear of all liens, encumbrances, claims, security interests and defects, other than those described in the Registration Statement and the Prospectus and those which do not and will not aggregate have a Material Adverse Effect~~. (viii) Except as described~~ , or would materially and adversely affect the ability of the Company to perform its obligations under this Agreement, or which are otherwise material in the ~~Registration Statement~~ context of the sale of the Offered Securities; and ~~the Prospectus~~no such actions, ~~there is no litigation~~ suits or ~~governmental or other proceeding or investigation before any court or before or by any public body or board pending~~ proceedings are threatened or, to the Company's knowledge, threatened (and the Company does not know of any reasonable basis therefor) against, or involving the assets, properties or business of, the Company or the Subsidiaries which, if adversely determined, could be reasonably expected to have a Material Adverse Effectcontemplated. (ixxviii) ~~Subsequent to the respective dates as of which information is given~~ The financial statements included in ~~the~~ each Registration Statement and the ~~Prospectus~~Prospectus present fairly the financial position of the Company as of the dates shown and its results of operations and cash flows for the periods shown, ~~except as~~ and such financial statements have been prepared in conformity with the generally accepted accounting principles in the United States applied on a consistent basis; the schedules included in each Registration Statement present fairly the information required to be stated therein; and the assumptions used in preparing the pro forma financial statements included in each Registration Statement and the Prospectus provide a reasonable basis for presenting the significant effects directly attributable to the transactions or events described therein, the related pro forma adjustments give appropriate effect to those assumptions, and the pro forma columns therein reflect the proper application of those adjustments to the corresponding historical financial statement amounts. (Axix) ~~there has not been any material adverse change~~ Except as disclosed in the ~~assets or properties~~Prospectus, business, results of operations, prospects or condition (financial or otherwise) of the Company or the Subsidiaries taken as a whole, whether or not arising from transactions in the ordinary course of business; (B) neither the Company nor any of the Subsidiaries has sustained any material loss or interference with its assets, businesses or properties (whether owned, leased or licensed) from fire, explosion, earthquake, flood or other calamity, whether or not covered by insurance, or from any labor dispute or any court or legislative or other governmental action, order or decree; and (C) since the date of the latest ~~balance sheet~~ audited financial statements included in the ~~Registration Statement and~~ Prospectus there has been no material adverse change, nor any development or event involving a prospective material adverse change, in the condition (financial or other), business, properties or results of operations of the Company taken as a whole, and, except as disclosed in or contemplated by the Prospectus, ~~except as reflected therein~~there has been no dividend or distribution of any kind declared, ~~neither~~ paid or made by the Company nor any of the Subsidiaries has (x) issued any securities (other than options or shares issued pursuant to exercise of employee stock options or warrants described in the Registration Statement and Prospectus) or incurred any liability or obligation, direct or contingent, for borrowed money, except such liabilities or obligations incurred in the ordinary course of business, (y) entered into any transaction not in the ordinary course of business or (z) declared or paid any dividend or made any distribution on any ~~shares~~ class of its ~~stock or redeemed, purchased or otherwise acquired or agreed to redeem, purchase or otherwise acquire any shares of its~~ capital stock. (xxx) There is no material document or contract of a character required to be described in the Registration Statement or Prospectus or to be filed as an exhibit to the Registration Statement which is not described or filed as required. Each agreement listed in the Exhibits to the Registration Statement is in full force and effect or has terminated in accordance with its terms or by amendment and such amendment has been filed as an Exhibit to the Registration Statement or has otherwise been provided to the Representatives and, if not so terminated, is valid and enforceable in all material respects by and against the Company or the Subsidiaries, as the case may be, in accordance with its terms, assuming the due authorization, execution and delivery thereof by each of the other parties thereto, except as the enforceability thereof may be limited by (i) bankruptcy, insolvency, reorganization, moratorium or other similar laws affecting the enforcement of creditors' rights generally and (ii) indemnification provisions under Federal and state securities laws; and that the remedy of specific forms of equitable relief may be subject to equitable defenses and the discretion of the court before which any such action may be brought. Neither the Company, the (xi) Neither the Company nor the Subsidiaries is in violation of any term or provision of their respective Certificate of Incorporation and By-laws, in each case as amended to the date hereof, or other governing documents, or of any franchise, license, permit, judgment, decree, order, statute, rule or regulation, where the consequences of such violation would have a Material Adverse Effect. Except as described in the ~~Registration Statement or~~ Prospectus, ~~neither the Company nor any of the Subsidiaries intends to amend its Certificate of Incorporation and By-laws.~~ there are no outstanding (~~xii~~A) ~~Neither the execution, delivery and performance of this Agreement by the Company~~ securities or the Subsidiaries nor the consummation of any of the transactions contemplated hereby (including, without limitation, the issuance and sale by the Company of the Shares) will give rise to a right to terminate or accelerate the due date of any payment due under, or conflict with or result in the breach of any term or provision of, or constitute a default (or an event which with notice or lapse of time or both would constitute a default) under, or require any consent or waiver under, or result in the execution or imposition of any lien, charge or encumbrance upon any properties or assets obligations of the Company convertible into or exchangeable for any of the Subsidiaries pursuant to the terms of, any indenture, mortgage, deed of trust or other agreement or instrument to which the Company or any of the Subsidiaries is a party or by which it or any of its properties or businesses are bound, or any franchise, license, permit, judgment, decree, order, statute, rule or regulation applicable to the Company or any of the Subsidiaries or violate any provision of the Certificate of Incorporation and By-laws of the Company or any of the Subsidiaries, except for such consents or waivers which have already been obtained and are in full force and effect or as would not have a Material Adverse Effect. No consent, approval, authorization, order, registration or qualification of or with any United States court or governmental agency or body is required for the issue and sale of the Shares or the consummation of the other transactions contemplated by this Agreement, which have not been obtained prior to the date hereof, except the registration under the Securities Act of the Shares, and such consents, approvals, authorizations, registrations or qualifications as may be required under state securities or Blue Sky laws -9- 10 in connection with the purchase and distribution of the Shares by the Underwriters. (xiii) The authorized, issued and outstanding capital stock of the Company and the capital stock reserved or committed for issuance is as set forth under the caption "Capitalization" in the Prospectus. All of the outstanding shares of Stock have been duly and validly issued and are fully paid and nonassessable, none of them was issued in violation of any preemptive or other similar right and, to the Company's knowledge, since 1991, none of them were issued in violation of any Federal or state securities laws. The Shares, when issued and sold pursuant to this Agreement, will be duly and validly issued, fully paid and nonassessable, none of them will be issued in violation of any preemptive or other similar right, any contractual right, including, without limitation, rights of first refusal, and, since 1991, none of them were issued in violation of any (subject to compliance with Section 1(c) hereof), Federal or state securities laws. Except as disclosed in the Registration Statement and the Prospectus, there is no outstanding option, warrant or other right calling for the issuance of, and there is no commitment, plan or arrangement to issue, any shares of Common Stock of the Company or any security convertible ~~into, or exercisable~~ into or exchangeable for, such shares of Stock. The shares of Stock conform in all material respects to all statements in relation thereto contained in the Registration Statement and the Prospectus. The Company has a sufficient number of authorized but unissued shares of Stock to enable the Company to issue, without further stockholder action, or approve all the Shares to be sold by the Company. (xiv) As of the date hereof, and as of each Closing Date, all of the outstanding shares of for any capital stock of the ~~Subsidiaries are duly and validly authorized and issued~~Company, ~~are fully paid and nonassessable and are and will be owned by the Company and there is and will be no outstanding option~~(B) warrants, ~~warrant~~ rights or ~~other right calling for the issuance of, and no commitment, plan or arrangement~~ options to issue any share of capital stock of the Subsidiaries or any security convertible or exchangeable or exercisable for capital stock of the Subsidiaries, except as otherwise described in the Registration Statement and Prospectus. (xv) Except as set forth in the Registration Statement and Prospectus, no holder of any security of the Company has the right to have any security owned by such holder included in the Registration Statement or to demand registration of any security owned by such holder during the period ending 90 days after the date of this Agreement. Each Selling Stockholder and each director and executive officer of the Company has delivered tosubscr

Appears in 1 contract

Sources: Underwriting Agreement (Collegis Inc)

Representations and Warranties of the Company and the Selling Stockholders. (a) The Company ~~hereby~~ represents and warrants ~~to each Underwriter as follows~~to, and agrees with, the several Underwriters that: (i) On A registration statement (No. 333-125626) relating to the ~~Effective Date~~Offered Securities, including a form of prospectus, has been filed with the Securities and Exchange Commission ("COMMISSION") and either (A) has been declared effective under the Securities Act of 1933 ("ACT") and is not proposed to be amended or (B) is proposed to be amended by amendment or post-effective amendment. If such registration statement (the "INITIAL REGISTRATION STATEMENT") has been declared effective, either (A) an additional registration statement (the "ADDITIONAL REGISTRATION STATEMENT") relating to the Offered Securities may have been filed with the Commission pursuant to Rule 462(b) ("RULE 462(b)") under the Act and, if so filed, has become effective upon filing pursuant to such Rule and the Offered Securities all have been duly registered under the Act pursuant to the initial registration statement and, if applicable, the ~~Registration Statement complied~~additional registration statement or (B) such an additional registration statement is proposed to be filed with the Commission pursuant to Rule 462(b) and will become effective upon filing pursuant to such Rule and upon such filing the Offered Securities will all have been duly registered under the Act pursuant to the initial registration statement and such additional registration statement. If the Company does not propose to amend the initial registration statement or if an additional registration statement has been filed and the Company does not propose to amend it, and ~~on the date of the Prospectus, on the date~~ if any post-effective amendment to ~~the Registration Statement shall become effective, on the date any supplement or amendment to the Prospectus is~~ either such registration statement has been filed with the Commission prior to the execution and ~~on each Closing Date~~delivery of this Agreement, the ~~Registration Statement and~~ most recent amendment (if any) to each such registration statement has been declared effective by the ~~Prospectus~~ Commission or has become effective upon filing pursuant to Rule 462(c) (~~and any amendment thereof or supplement thereto~~"RULE 462(c)") ~~will comply~~under the Act or, in ~~all material respects, with~~ the ~~applicable provisions~~ case of the ~~Securities Act~~ additional registration statement, Rule 462(b). For purposes of this Agreement, "EFFECTIVE TIME" with respect to the initial registration statement or, if filed prior to the execution and delivery of this Agreement, the ~~Rules;~~ additional registration statement means (iiA) ~~The documents~~ if the Company has advised the Representatives that ~~are incorporated~~ it does not propose to amend such registration statement, the date and time as of which such registration statement, or the most recent post-effective amendment thereto (if any) filed prior to the execution and delivery of this Agreement, was declared effective by ~~reference in~~ the ~~preliminary prospectus~~ Commission or has become effective upon filing pursuant to Rule 462(c), or (B) if the Company has advised the Representatives that it proposes to file an amendment or post-effective amendment to such registration statement, the date and ~~the Prospectus~~ time as of which such registration statement, as amended by such amendment or ~~from which information is so incorporated by reference, when they became~~ post-effective ~~or were filed with the Commission~~amendment, as the case may be, ~~complied~~ is declared effective by the Commission. If an additional registration statement has not been filed prior to the execution and delivery of this Agreement but the Company has advised the Representatives that it proposes to file one, "EFFECTIVE TIME" with respect to such additional registration statement means the date and time as of which such registration statement is filed and becomes effective pursuant to Rule 462(b). "EFFECTIVE DATE" with respect to the initial registration statement or the additional registration statement (if any) means the date of the Effective Time thereof. The initial registration statement, as amended at its Effective Time, including all information contained in the additional registration statement (if any) and deemed to be a part of the initial registration statement as of the Effective Time of the additional registration statement pursuant to the General Instructions of the Form on which it is filed and including all information (if any) deemed to be a part of the initial registration statement as of its Effective Time pursuant to Rule 430A(b) ("RULE 430A(b)") under the Act, is hereinafter referred to as the "INITIAL REGISTRATION STATEMENT". The additional registration statement, as amended at its Effective Time, including the contents of the initial registration statement incorporated by reference therein and including all information (if any) deemed to be a part of the additional registration statement as of its Effective Time pursuant to Rule 430A(b), is hereinafter referred to as the "ADDITIONAL REGISTRATION STATEMENT". The Initial Registration Statement and the Additional Registration Statement are hereinafter referred to collectively as the "REGISTRATION STATEMENTS" and individually as a "REGISTRATION STATEMENT". The form of prospectus relating to the Offered Securities, as first filed with the Commission pursuant to and in accordance with Rule 424(b) ("RULE 424(b)") under the Act or (if no such filing is required) as included in a Registration Statement, is hereinafter referred to as the "PROSPECTUS". No document has been or will be prepared or distributed in reliance on Rule 434 under the Act. (ii) If the Effective Time of the Initial Registration Statement is prior to the execution and delivery of this Agreement: (A) on the Effective Date of the Initial Registration Statement, the Initial Registration Statement conformed in all material respects ~~with~~ to the requirements of the ~~Securities~~ Act ~~or the Securities Exchange Act of 1934, as amended (the "Exchange Act"), as applicable,~~ and the rules and regulations of the Commission ~~promulgated under~~ ("RULES AND REGULATIONS") and did not include any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the ~~Securities~~ statements therein not misleading, (B) on the Effective Date of the Additional Registration Statement (if any), each Registration Statement conformed or will conform, in all material respects to the requirements of the Act and the ~~Exchange Act~~Rules and Regulations and did not include, ~~as applicable~~or will not include, ~~except as amended~~ any untrue statement of a material fact and ~~superseded by~~ did not omit, or will not omit, to state any material fact required to be stated therein or necessary to make the statements ~~made~~ therein not misleading, and (C) on the date of this Agreement, the Initial Registration Statement and, if the Effective Time of the Additional Registration Statement is prior to the execution and delivery of this Agreement, the Additional Registration Statement each conforms, and at the time of filing of the Prospectus pursuant to Rule 424(b) or (if no such filing is required) at the Effective Date of the Additional Registration Statement in which the Prospectus is included, each Registration ~~Statement;~~ Statement and the Prospectus will conform, in all material respects to the requirements of the Act and the Rules and Regulations, and neither of such documents includes, or will include, any ~~documents so filed and incorporated by reference~~ untrue statement of a material fact or omits, or will omit, to state any material fact required to be stated therein or necessary to make the statements therein not misleading. If the Effective Time of the Initial Registration Statement is subsequent to the execution and delivery of this Agreement: on the Effective Date ~~shall~~of the Initial Registration Statement, ~~when they are filed with~~ the ~~Commission,~~ Initial Registration Statement and the Prospectus will conform in all material respects ~~with~~ to the requirements of the ~~Securities Act or the Exchange Act, as applicable, and the rules and regulations of the Commission promulgated under the Securities~~ Act and the ~~Exchange Act~~Rules and Regulations, neither of such documents will include any untrue statement of a material fact or will omit to state any material fact required to be stated therein or necessary to make the statements therein not misleading, and no Additional Registration Statement has been or will be filed. The two preceding sentences do not apply to statements in or omissions from a Registration Statement or the Prospectus based upon written information furnished to the Company by any Underwriter through the Representatives specifically for use therein, it being understood and agreed that the only such information is that described as ~~applicable~~such in Section 7(c) hereof, or relating to the Selling Stockholders, furnished in writing to the Company by a Selling Stockholder specifically for use therein. (iii) The consolidated financial statements of the Company (including all notes and schedules thereto) included in the Registration Statement and Prospectus present fairly the financial position, the results of operations and cash flows and the stockholders' equity and the other information purported to be shown therein of the Company and its subsidiaries, listed on Schedule III hereto (the "Subsidiaries"), at the respective dates and for the respective (iv) KPMG Peat Marwick LLP, whose report is filed with the Commission as a part of the Registration Statement, is and, during the periods covered by its reports, was independent public accountants as required by the Securities Act and the Rules. (v) The Company has been duly incorporated and is ~~a validly~~ an existing corporation in good standing under the laws of the State of Delaware, with power and ~~the Subsidiaries have been duly incorporated~~ authority (corporate and ~~are validly existing corporations under the laws of their respective jurisdictions. Other than the Subsidiaries, the Company has no subsidiaries~~ other) to own its properties and ~~does not control, directly or indirectly, any corporation, partnership, joint venture, association or other~~ conduct its business ~~organization, except~~ as described in the ~~Registration Statement~~ Prospectus; and the ~~Prospectus. Each of the~~ Company ~~and the Subsidiaries~~ is duly qualified ~~and in good standing~~ to do business as a foreign corporation in ~~each jurisdiction~~ good standing in all other jurisdictions in which ~~the character~~ its ownership or ~~location~~ lease of ~~its assets or properties (owned, leased or licensed)~~ property or the ~~nature~~ conduct of its business ~~makes~~ requires such ~~qualification necessary~~ qualification, except ~~for such jurisdictions~~ where the failure to be so ~~qualify~~ qualified would not have a material adverse effect on the ~~assets or properties, business, results of operations or~~ condition (financial or ~~otherwise)~~ other), business, properties or results of operations of the Company and ~~the Subsidiaries~~its subsidiaries, taken as a whole (a "~~Material Adverse Effect~~MATERIAL ADVERSE EFFECT"). Except as disclosed in the Registration Statement and the Prospectus, neither the Company nor the Subsidiaries own, lease or license any material asset or property or conduct any material business outside the United States of America. . (iv) Each subsidiary of the Company has been duly incorporated and is an existing corporation in good standing under the ~~Subsidiaries have all requisite~~ laws of the jurisdiction of its incorporation, with corporate power and ~~authority, and all necessary authorizations, approvals, consents, orders, licenses, certificates and permits of and from all governmental~~ authority to own or ~~regulatory bodies or any other person or entity, to own,~~ lease ~~and license their assets and~~ its properties and conduct ~~their businesses as now being conducted and~~ its business as described in the ~~Registration Statement~~ Prospectus; and each subsidiary of the ~~Prospectus~~ Company is duly qualified to do business as a foreign corporation in good standing in all other jurisdictions in which its ownership or lease of property or the conduct of its business requires such qualification, except ~~for such authorizations, approvals, consents, orders, licenses, certificates and permits~~ where the failure to be so ~~obtain~~ qualified would not have a Material Adverse Effect; no all of the issued and outstanding capital stock or other equity interests of each subsidiary of the Company has been duly authorized and validly issued and, in the case of each subsidiary that is organized as a corporation, is fully paid and nonassessable; all capital contributions with respect to the outstanding membership interests of each subsidiary of the Company that is a limited liability company have been made to such ~~authorization~~subsidiary; and the capital stock of each subsidiary owned by the Company, ~~approval~~directly or through subsidiaries, ~~consent~~is owned free from liens, ~~order, license, certificate or permit contains a materially burdensome restriction~~ encumbrances and defects (other than transfer restrictions imposed under applicable securities laws and liens granted to the lenders under the Revolving Credit and Term Loan Agreement dated as ~~disclosed~~ of August 10, 2004, among the Company, certain of its subsidiaries, U.S. Bank National Association, as administrative agent, Comerica Bank, as syndication agent, and the lenders party thereto, as amended). (v) The entities listed on Schedule C hereto are the only subsidiaries of the Company. (vi) No subsidiary, other than the subsidiaries indicated as "significant subsidiaries" on Schedule C hereto, as of December 31, 2004, was a "significant subsidiary" within the meaning of Regulation S-X under the Act. (vii) The Offered Securities and all other outstanding shares of capital stock of the Company have been duly authorized and validly issued, fully paid and nonassessable and conform in all material respects to the ~~Registration Statement and~~ description thereof contained in the Prospectus; and the stockholders of the Company ~~has all such corporate power and authority, and such authorizations, approvals, consents, orders, licenses, certificates and permits~~ have no preemptive rights with respect to ~~enter into, deliver and perform this Agreement and to issue and~~the Securities. (viviii) The Company and the Subsidiaries own or possess adequate and enforceable rights to use all patents, trademarks, trademark applications, trade names, service marks, copyrights, copyright applications, licenses, know-how and other similar rights and proprietary knowledge (collectively, "Intangibles") material to or necessary for the conduct of their business as described in the Registration Statement and the Prospectus. Except as disclosed in the Prospectus, there are no contracts, agreements or understandings between the Company and any person that would give rise to a valid claim against the Company or any Underwriter for a brokerage commission, finder's fee or other like payment in connection with this offering. (ix) There are no contracts, agreements or understandings between the Company and any person granting such person the right to require the Company to file a registration statement under the Act with respect to any securities of the Company owned or to be owned by such person or to require the Company to include such securities in the securities registered pursuant to a Registration Statement or in any securities being registered pursuant to any other registration statement filed by the Company under the Act that have not otherwise been complied with or waived. (x) The Company's common stock is listed on The Nasdaq National Market. (xi) No consent, approval, authorization, or order of, or filing with, any governmental agency or body or any court is required to be obtained or made by the Company for the consummation of the transactions contemplated by this Agreement in connection with the sale of the Offered Securities, except such as have been obtained and made under the Act and the Securities Exchange Act of 1934 (the "EXCHANGE ACT"), and such as may be required under state securities laws or rules of the National Association of Securities Dealers, Inc. (the "NASD"). (xii) The execution, delivery and performance of this Agreement, and the consummation of the transactions herein contemplated will not result in a breach or violation of any of the terms and provisions of, or constitute a default under, (a) any statute, any rule, regulation or order of any governmental agency or body or any court, domestic or foreign, having jurisdiction over the Company or any subsidiary of the Company or any of their properties, or (b) any agreement or instrument to which the Company or any such subsidiary is a party or by which the Company or any such subsidiary is bound or to which any of the properties of the Company or any such subsidiary is subject, or (c) the charter or by-laws of the Company or any such subsidiary, other than, in the case of (a) and (b), conflicts or breaches that, individually or in the aggregate, would not reasonably be expected to have a Material Adverse Effect. (xiii) This Agreement has been duly authorized, executed and delivered by the Company. (xiv) Except as disclosed in the Prospectus, ~~neither~~ the Company ~~nor~~ and its subsidiaries have good and marketable title to all real properties and all other properties and assets owned by them, in each case free from liens, encumbrances and defects the enforcement of which would reasonably be expected to have a Material Adverse Effect; and except as disclosed in the Prospectus, the Company and its subsidiaries hold any leased real or personal property under valid and enforceable leases with no exceptions that would materially interfere with the use made or to be made thereof by them and no material default has occurred or is continuing under any material lease to which the Company or any of its subsidiaries is a party. (xv) The Company and its subsidiaries possess adequate certificates, authorizations or permits issued by appropriate governmental agencies or bodies necessary to conduct the ~~Subsidiaries~~ business now operated by them, except for such certificates, authorizations or permits the absence of which, individually or in the aggregate, would not have a Material Adverse Effect and have not received any notice ofof proceedings relating to the revocation or modification of any such certificate, authorization or permit that, if determined adversely to the Company or any of its subsidiaries, would individually or in the aggregate have a Material Adverse Effect. (xvi) No labor dispute with the employees of the Company or any subsidiary exists or, to the knowledge of the Company, is imminent that would reasonably be expected to have a Material Adverse Effect. (xvii) The Company and its subsidiaries own, possess or can acquire on reasonable terms, adequate trademarks, trade names and other rights to inventions, know-how, patents, copyrights, confidential information and other intellectual property (collectively, "INTELLECTUAL PROPERTY RIGHTS") necessary to conduct the business now operated by them, or presently employed by them, and ~~to their knowledge are~~ have not ~~aware of,~~ received any notice of infringement of or conflict with asserted rights of others with respect to any ~~Intangibles which~~intellectual property rights that, ~~singly~~ if determined adversely to the Company or any of its subsidiaries, which individually or in the ~~aggregate, if the subject of an unfavorable decision, ruling or finding, could~~ aggregate would reasonably be reasonably expected to have a Material Adverse Effect, and neither the Company nor the Subsidiaries know of any reasonable basis therefor. Except as disclosed in the Registration Statement and the Prospectus, to the knowledge of the Company, no Intangibles of the Company or the Subsidiaries are in dispute or are in any conflict with the right of any other person or entity and the Company and each of the Subsidiaries (A) has or will have the right (subject to applicable agreements, which agreements provide for use to the extent necessary and desirable for the conduct of its business as currently conducted and as proposed to be conducted) to use, free and clear of all liens, charges, claims, encumbrances, pledges, security interests, defects, restrictions or equities of any kind whatsoever all licenses and rights to the Intangibles used in the conduct of their business as now conducted or proposed to be conducted without infringing upon or otherwise acting adversely to the right or claimed right of any other person and (B) is not or will not become, as the case may be, obligated or in any way liable for any payment by way of royalties, fees or otherwise and to any owner or licensee of, or other claimant to, any Intangibles with respect to the use thereof or in connection with the conduct of their business or otherwise, except in each case as disclosed in the Prospectus and except for any such payments, claims, uses, liens, charges, encumbrances, pledges, security interests, defects, restrictions and equities which would not have a Material Adverse Effect. (vii) The Company and the Subsidiaries have good and marketable title to each of the items of personal property which are reflected in the financial statements referred to in Section 4(a)(ii) or are referred to in the Registration Statement and the Prospectus as being owned by them and valid and enforceable leasehold interests in each of the items of real and personal property which are referred to in the Registration Statement and the Prospectus as being leased by them, in each case free and clear of all liens, encumbrances, claims, security interests and defects, other than those described in the Registration Statement and the Prospectus and those which do not and will not have a Material Adverse Effect. (viii) Except as described in the Registration Statement and the Prospectus, there is no litigation or governmental or other proceeding or investigation before any court or before or by any public body or board pending or, to the Company's knowledge, threatened (and the Company does not know of any reasonable basis therefor) against, or involving the assets, properties or business of, the Company or the Subsidiaries which, if adversely determined, could be reasonably expected to have a Material Adverse Effect. (ixxviii) ~~Subsequent to the respective dates~~ Except as ~~of which information is given~~ disclosed in the Registration Statement and the Prospectus, except as described therein, (A) there has not been any material adverse change in the assets or properties, business, results of operations, prospects or condition (financial or otherwise) of the Company or the Subsidiaries taken as a whole, whether or not arising from transactions in the ordinary course of business; (B) neither the Company nor any of the Subsidiaries has sustained any material loss or interference with its assets, businesses or properties (whether owned, leased or licensed) from fire, explosion, earthquake, flood or other calamity, whether or not covered by insurance, or from any labor dispute or any court or legislative or other governmental action, order or decree; and (C) since the date of the latest balance sheet included in the Registration Statement and the Prospectus, except as reflected therein, neither the Company nor any of the Subsidiaries has (x) issued any securities (other than options or shares issued pursuant to exercise of employee stock options or warrants described in the Registration Statement and Prospectus) or incurred any liability or obligation, direct or contingent, for borrowed money, except such liabilities or obligations incurred in the ordinary course of business, (y) entered into any transaction not in the ordinary course of business or (z) declared or paid any dividend or made any distribution on any shares of its stock or redeemed, purchased or otherwise acquired or agreed to redeem, purchase or otherwise acquire any shares of its stock. (x) There is no material document or contract of a character required to be described in the Registration Statement or Prospectus or to be filed as an exhibit to the Registration Statement which is not described or filed as required. Each agreement listed in the Exhibits to the Registration Statement is in full force and effect or has terminated in accordance with its terms or by amendment and such amendment has been filed as an Exhibit to the Registration Statement or has otherwise been provided to the Representatives and, if not so terminated, is valid and enforceable in all material respects by and against the Company or the Subsidiaries, as the case may be, in accordance with its terms, assuming the due authorization, execution and delivery thereof by each of the other parties thereto, except as the enforceability thereof may be limited by (i) bankruptcy, insolvency, reorganization, moratorium or other similar laws affecting the enforcement of creditors' rights generally and (ii) indemnification provisions under Federal and state securities laws; and that the remedy of specific forms of equitable relief may be subject to equitable defenses and the discretion of the court before which any such action may be brought. Neither the Company, the (xi) Neither the Company nor the Subsidiaries is in violation of any term or provision of their respective Certificate of Incorporation and By-laws, in each case as amended to the date hereof, or other governing documents, or of any franchise, license, permit, judgment, decree, order, statute, rule or regulation, where the consequences of such violation would have a Material Adverse Effect. Except as described in the Registration Statement or Prospectus, neither the Company nor any of ~~the Subsidiaries intends to amend~~ its ~~Certificate of Incorporation and By-laws. (xii) Neither the execution, delivery and performance of this Agreement by the Company or the Subsidiaries nor the consummation~~ subsidiaries is in violation of any ~~of the transactions contemplated hereby (including~~statute, ~~without limitation~~any rule, ~~the issuance and sale by the Company of the Shares) will give rise to a right to terminate~~ regulation, decision or ~~accelerate the due date~~ order of any payment due under, or conflict with or result in the breach of any term or provision of, or constitute a default (or an event which with notice or lapse of time or both would constitute a default) under, or require any consent or waiver under, or result in the execution or imposition of any lien, charge or encumbrance upon any properties or assets of the Company or any of the Subsidiaries pursuant to the terms of, any indenture, mortgage, deed of trust or other agreement or instrument to which the Company or any of the Subsidiaries is a party or by which it or any of its properties or businesses are bound, or any franchise, license, permit, judgment, decree, order, statute, rule or regulation applicable to the Company or any of the Subsidiaries or violate any provision of the Certificate of Incorporation and By-laws of the Company or any of the Subsidiaries, except for such consents or waivers which have already been obtained and are in full force and effect or as would not have a Material Adverse Effect. No consent, approval, authorization, order, registration or qualification of or with any United States court or governmental agency or body ~~is required for~~ or any court, domestic or foreign, relating to the ~~issue and sale~~ use, disposal or release of hazardous or toxic substances or relating to the protection or restoration of the ~~Shares~~ environment or ~~the consummation of the other transactions contemplated by this Agreement~~human exposure to hazardous or toxic substances (collectively, ~~which have not been obtained prior to the date hereof~~"ENVIRONMENTAL LAWS"), ~~except the registration under the Securities Act of the Shares, and such consents, approvals, authorizations, registrations~~ owns or ~~qualifications as may be required under state securities or Blue Sky laws -9- 10 in connection~~ operates any real property contaminated with ~~the purchase and distribution of the Shares by the Underwriters. (xiii) The authorized, issued and outstanding capital stock of the Company and the capital stock reserved or committed for issuance~~ any substance that is as set forth under the caption "Capitalization" in the Prospectus. All of the outstanding shares of Stock have been duly and validly issued and are fully paid and nonassessable, none of them was issued in violation of any preemptive or other similar right and, to the Company's knowledge, since 1991, none of them were issued in violation of any Federal or state securities laws. The Shares, when issued and sold pursuant to this Agreement, will be duly and validly issued, fully paid and nonassessable, none of them will be issued in violation of any preemptive or other similar right, any contractual right, including, without limitation, rights of first refusal, and, since 1991, none of them were issued in violation of any (subject to ~~compliance with Section 1(c) hereof)~~any environmental laws, ~~Federal or state securities laws. Except as disclosed in the Registration Statement and the Prospectus, there~~ is ~~no outstanding option, warrant or other right calling~~ liable for ~~the issuance of, and there is no commitment, plan or arrangement to issue,~~ any shares of Common Stock of the Company or any security convertible into, or exercisable or exchangeable for, such shares of Stock. The shares of Stock conform in all material respects to all statements in relation thereto contained in the Registration Statement and the Prospectus. The Company has a sufficient number of authorized but unissued shares of Stock to enable the Company to issue, without further stockholder action, or approve all the Shares to be sold by the Company. (xiv) As of the date hereof, and as of each Closing Date, all of the outstanding shares of capital stock of the Subsidiaries are duly and validly authorized and issued, are fully paid and nonassessable and are and will be owned by the Company and there is and will be no outstanding option, warrant or other right calling for the issuance of, and no commitment, plan or arrangement to issue any share of capital stock of the Subsidiaries or any security convertible or exchangeable or exercisable for capital stock of the Subsidiaries, except as otherwise described in the Registration Statement and Prospectus. (xv) Except as set forth in the Registration Statement and Prospectus, no holder of any security of the Company has the right to have any security owned by such holder included in the Registration Statement or to demand registration of any security owned by such holder during the period ending 90 days after the date of this Agreement. Each Selling Stockholder and each director and executive officer of the Company has delivered tooff-site dis

Appears in 1 contract

Sources: Underwriting Agreement (Commercial Vehicle Group, Inc.)

Representations and Warranties of the Company and the Selling Stockholders. (a) The Company ~~hereby~~ represents and warrants ~~to each Underwriter as follows~~to, and agrees with, the several Underwriters that: (i) On A registration statement (No. 333-[ ]) relating to the ~~Effective Date~~Offered Securities, including a form of prospectus, has been filed with the Securities and Exchange Commission ("Commission") and either (A) has been declared effective under the Securities Act of 1933, as amended, ("Act") and is not proposed to be amended or (B) is proposed to be amended by amendment or post-effective amendment. If such registration statement (the "initial registration statement") has been declared effective, either (A) an additional registration statement (the "additional registration statement") relating to the Offered Securities may have been filed with the Commission pursuant to Rule 462(b) ("Rule 462(b)") under the Act and, if so filed, has become effective upon filing pursuant to such Rule and the Offered Securities all have been duly registered under the Act pursuant to the initial registration statement and, if applicable, the ~~Registration Statement complied~~additional registration statement or (B) such an additional registration statement is proposed to be filed with the Commission pursuant to Rule 462(b) and will become effective upon filing pursuant to such Rule and upon such filing the Offered Securities will all have been duly registered under the Act pursuant to the initial registration statement and such additional registration statement. If the Company does not propose to amend the initial registration statement or if an additional registration statement has been filed and the Company does not propose to amend it, and ~~on the date of the Prospectus, on the date~~ if any post-effective amendment to ~~the Registration Statement shall become effective, on the date any supplement or amendment to the Prospectus is~~ either such registration statement has been filed with the Commission prior to the execution and ~~on each Closing Date~~delivery of this Agreement, the ~~Registration Statement and~~ most recent amendment (if any) to each such registration statement has been declared effective by the ~~Prospectus~~ Commission or has become effective upon filing pursuant to Rule 462(c) (~~and any amendment thereof or supplement thereto~~"Rule 462(c)") ~~will comply~~under the Act or, in ~~all material respects, with~~ the ~~applicable provisions~~ case of the ~~Securities Act~~ additional registration statement, Rule 462(b). For purposes of this Agreement, "Effective Time" with respect to the initial registration statement or, if filed prior to the execution and delivery of this Agreement, the ~~Rules;~~ additional registration statement means (iiA) ~~The documents~~ if the Company has advised the Representative that ~~are incorporated~~ it does not propose to amend such registration statement, the date and time as of which such registration statement, or the most recent post-effective amendment thereto (if any) filed prior to the execution and delivery of this Agreement, was declared effective by ~~reference in~~ the ~~preliminary prospectus~~ Commission or has become effective upon filing pursuant to Rule 462(c), or (B) if the Company has advised the Representative that it proposes to file an amendment or post-effective amendment to such registration statement, the date and ~~the Prospectus~~ time as of which such registration statement, as amended by such amendment or ~~from which information is so incorporated by reference, when they became~~ post-effective ~~or were filed with the Commission~~amendment, as the case may be, ~~complied~~ is declared effective by the Commission. If an additional registration statement has not been filed prior to the execution and delivery of this Agreement but the Company has advised the Representative that it proposes to file one, "Effective Time" with respect to such additional registration statement means the date and time as of which such registration statement is filed and becomes effective pursuant to Rule 462(b). "Effective Date" with respect to the initial registration statement or the additional registration statement (if any) means the date of the Effective Time thereof. The initial registration statement, as amended at its Effective Time, including all material incorporated by reference therein, including all information contained in the additional registration statement (if any) and deemed to be a part of the initial registration statement as of the Effective Time of the additional registration statement pursuant to the General Instructions of the Form on which it is filed and including all information (if any) deemed to be a part of the initial registration statement as of its Effective Time pursuant to Rule 430A(b) ("Rule 430A(b)") under the Act, is hereinafter referred to as the "Initial Registration Statement". The additional registration statement (if any), as amended at its Effective Time, including the contents of the initial registration statement incorporated by reference therein and including all information (if any) deemed to be a part of the additional registration statement as of its Effective Time pursuant to Rule 430A(b), is hereinafter referred to as the "Additional Registration Statement". The Initial Registration Statement and the Additional Registration Statement are hereinafter referred to collectively as the "Registration Statements" and individually as a "Registration Statement". The form of prospectus relating to the Offered Securities, as first filed with the Commission pursuant to and in accordance with Rule 424(b) ("Rule 424(b)") under the Act or (if no such filing is required) as included in a Registration Statement, including all material incorporated by reference in such prospectus, is hereinafter referred to as the "Prospectus". No document has been or will be prepared or distributed in reliance on Rule 434 under the Act. (ii) If the Effective Time of the Initial Registration Statement is prior to the execution and delivery of this Agreement: (A) on the Effective Date of the Initial Registration Statement, the Initial Registration Statement conformed in all material respects ~~with~~ to the requirements of the ~~Securities~~ Act ~~or the Securities Exchange Act of 1934, as amended (the "Exchange Act"), as applicable,~~ and the rules and regulations of the Commission ~~promulgated under~~ ("Rules and Regulations") and did not include any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the ~~Securities~~ statements therein not misleading, (B) on the Effective Date of the Additional Registration Statement (if any), each Registration Statement conformed, or will conform, in all material respects to the requirements of the Act and the ~~Exchange Act~~Rules and Regulations and did not include, ~~as applicable~~or will not include, ~~except as amended~~ any untrue statement of a material fact and ~~superseded by~~ did not omit, or will not omit, to state any material fact required to be stated therein or necessary to make the statements ~~made~~ therein not misleading, and (C) on the date of this Agreement, the Initial Registration Statement and, if the Effective Time of the Additional Registration Statement is prior to the execution and delivery of this Agreement, the Additional Registration Statement each conforms, and at the time of filing of the Prospectus pursuant to Rule 424(b) or (if no such filing is required) at the Effective Date of the Additional Registration Statement in which the Prospectus is included, each Registration ~~Statement;~~ Statement and the Prospectus will conform, in all material respects to the requirements of the Act and the Rules and Regulations, and neither of such documents includes, or will include, any ~~documents so filed and incorporated by reference~~ untrue statement of a material fact or omits, or will omit, to state any material fact required to be stated therein or necessary to make the statements therein not misleading. If the Effective Time of the Initial Registration Statement is subsequent to the execution and delivery of this Agreement: on the Effective Date ~~shall~~of the Initial Registration Statement, ~~when they are filed with~~ the ~~Commission,~~ Initial Registration Statement and the Prospectus will conform in all material respects ~~with~~ to the requirements of the ~~Securities Act or the Exchange Act, as applicable, and the rules and regulations of the Commission promulgated under the Securities~~ Act and the ~~Exchange Act~~Rules and Regulations, neither of such documents will include any untrue statement of a material fact or will omit to state any material fact required to be stated therein or necessary to make the statements therein not misleading, and no Additional Registration Statement has been or will be filed. The two preceding sentences do not apply to statements in or omissions from a Registration Statement or the Prospectus based upon written information furnished to the Company by any Underwriter through the Representative specifically for use therein, it being understood and agreed that the only such information is that described as ~~applicable~~such in Section 7(d) hereof. (iii) The consolidated financial statements of the Company (including all notes and schedules thereto) included in the Registration Statement and Prospectus present fairly the financial position, the results of operations and cash flows and the stockholders' equity and the other information purported to be shown therein of the Company and its subsidiaries, listed on Schedule III hereto (the "Subsidiaries"), at the respective dates and for the respective (iv) KPMG Peat Marwick LLP, whose report is filed with the Commission as a part of the Registration Statement, is and, during the periods covered by its reports, was independent public accountants as required by the Securities Act and the Rules. (v) The Company has been duly ~~incorporated and~~ incorporated, is a validly existing as a corporation in good standing under the laws of the ~~State~~ jurisdiction of ~~Delaware~~its incorporation, has the corporate power and ~~the Subsidiaries have been duly incorporated~~ authority to own its property and are validly existing corporations under the laws of their respective jurisdictions. Other than the Subsidiaries, the Company has no subsidiaries and does not control, directly or indirectly, any corporation, partnership, joint venture, association or other to conduct its business ~~organization, except~~ as described in the ~~Registration Statement~~ Prospectus and ~~the Prospectus. Each of the Company and the Subsidiaries~~ is duly qualified to transact business and is in good standing ~~as a foreign corporation~~ in each jurisdiction in which the ~~character or location of its assets or properties (owned, leased or licensed) or the nature~~ conduct of its business ~~makes~~ or its ownership or leasing of property requires such ~~qualification necessary~~ qualification, except ~~for such jurisdictions where~~ to the extent that the failure to be so ~~qualify~~ qualified or be in good standing would not have a material adverse effect on the ~~assets or properties, business, results of operations or condition (financial or otherwise) of the~~ Company and ~~the Subsidiaries~~its subsidiaries, taken as a ~~whole~~ whole. (~~a "Material Adverse Effect"). Except as disclosed in the Registration Statement and the Prospectus, neither the~~ iv) The Company nor the Subsidiaries own, lease or license any material asset or property or conduct any material business outside the United States of America. Each of the Company and the Subsidiaries have all requisite corporate power and authority, and all necessary authorizations, approvals, consents, orders, licenses, certificates and permits of and from all governmental or regulatory bodies or any other person or entity, to own, lease and license their assets and properties and conduct their businesses as now being conducted and as described in the Registration Statement and the Prospectus except for such authorizations, approvals, consents, orders, licenses, certificates and permits the failure to so obtain would does not have ~~a Material Adverse Effect; no such authorization~~any significant subsidiaries within the meaning of Regulation S-X under the Act. (v) This Agreement has been duly authorized, ~~approval, consent, order, license, certificate or permit contains a materially burdensome restriction other than as disclosed in~~ executed and delivered by the Registration Statement and the Prospectus; and the Company has all such corporate power and authority, and such authorizations, approvals, consents, orders, licenses, certificates and permits to enter into, deliver and perform this Agreement and to issue andCompany. (vi) The authorized capital stock of the Company conforms as to legal matters to the description thereof contained in the Prospectus under the caption "Description of Capital Stock". (vii) The Securities (including the Offered Securities to be sold by the Selling Stockholders, other than the Offered Securities issuable upon the exercise of Options, as defined below) have been duly authorized and are validly issued, fully paid and non-assessable. (viii) The Offered Securities issuable upon the exercise of options to be exercised by certain of the Selling Stockholders (the "Options") will be issued pursuant to the Stock Option Agreements which have been entered into by the Company and such Selling Stockholders (the ~~Subsidiaries own~~ "Option Agreements"); the Option Agreements were duly authorized, executed and delivered by the Company and constitute valid and binding instruments enforceable against the Company in accordance with their terms subject, as to the enforcement, to bankruptcy, insolvency, reorganization and other laws of general applicability relating to or ~~possess adequate~~ affecting creditors' rights and to general equity principles; and the Options and the Option Agreements conform in all material respects to the descriptions thereof in the Prospectus. (ix) The unissued Offered Securities issuable upon the exercise of the Options have been duly and validly authorized and reserved for issuance, and at the time such Offered Securities are to be sold by the Selling Stockholders, such Offered Securities will have been delivered in accordance with the provisions of the Option Agreements and will be duly and validly issued, fully paid and non-assessable and will conform in all material respects to the description thereof in the Prospectus. (x) The execution and delivery by the Company of, and the performance by the Company of its obligations under, this Agreement will not contravene any provision of applicable law or the Articles of Organization or By-laws of the Company or any agreement or other instrument binding upon the Company or any of its subsidiaries that is material to the Company and its subsidiaries, taken as a whole, or any judgment, order or decree of any governmental body, agency or court having jurisdiction over the Company or any subsidiary, and no consent, approval, authorization or order of, or qualification with, any governmental body or agency is required for the performance by the Company of its obligations under this Agreement, except for the registration under the Act of the Offered Securities and such consents, approvals, authorizations, registrations or qualifications as may be required by the securities or Blue Sky laws of the various states in connection with the offer and sale of the Offered Securities. (xi) There has not occurred any material adverse change, or any development involving a prospective material adverse change, in the condition, financial or otherwise, or in the earnings, business or operations of the Company and its subsidiaries, taken as a whole, from that set forth in the Prospectus (exclusive of any amendments or supplements thereto subsequent to the date of this Agreement). (xii) Other than as set forth in the Registration Statements or the Prospectus, there are no legal or governmental proceedings pending or, to the Company's knowledge, threatened to which the Company is a party or to which any of the properties of the Company is subject that are required to be described in the Registration Statements or the Prospectus and are not so described, and there are no statutes, regulations, contracts or other documents that are required to be described in the Registration Statements or the Prospectus or to be filed as exhibits to the Registration Statements that are not described or filed as required. (xiii) Each preliminary prospectus filed as part of a Registration Statement as originally filed or as part of any amendment thereto, or filed pursuant to Rule 424 under the Act, complied when so filed in all material respects with the Act and the applicable rules and regulations of the Commission thereunder. (xiv) The Company is not required to be registered as an "investment company" as such term is defined in the Investment Company Act of 1940, as amended. (xv) The Company has good and marketable title in fee simple to all real property owned by it and good and marketable title to all personal property owned by it which is material to the business of the Company, in each case free and clear of all liens, encumbrances and defects except such as are described in the Prospectus or such as do not materially affect the value of such property and do not interfere with the use made and proposed to be made of such property by the Company; and any real property and buildings held under lease by the Company are held by it under valid, subsisting and enforceable ~~rights~~ leases with such exceptions as are not material and do not interfere with the use made and proposed to ~~use~~ be made of such property and buildings by the Company, in each case except as described in or contemplated by the Prospectus. (xvi) The Company owns or possesses, or can acquire on reasonable terms, all material patents, ~~trademarks~~patent rights, ~~trademark applications~~licenses, ~~trade names, service marks~~inventions, copyrights~~, copyright applications, licenses~~, know-how (including trade secrets and other ~~similar rights~~ unpatented and/or unpatentable proprietary or confidential information, systems or procedures), trademarks, service marks and ~~proprietary knowledge (collectively~~trade names currently employed by it in connection with the business now operated by it, ~~"Intangibles") material to or necessary for the conduct of their business as described in the Registration Statement~~ and the ~~Prospectus. Except as disclosed in the Registration Statement and the Prospectus, neither the~~ Company ~~nor any of the Subsidiaries have~~ has not received any notice ~~of, and to their knowledge are not aware of, any~~ of infringement of or conflict with asserted rights of others with respect to any ~~Intangibles~~ of the foregoing which, singly or in the aggregate, if the subject of an unfavorable decision, ruling or finding, ~~could be reasonably expected to have a Material Adverse Effect~~would result in any material adverse change in the condition, ~~and neither~~ financial or otherwise, or in the earnings, business or operations of the Company ~~nor~~ and its subsidiaries, taken as a whole. (xvii) No material labor dispute with the ~~Subsidiaries know~~ employees of ~~any reasonable basis therefor. Except~~ the Company exists, except as ~~disclosed~~ described in ~~the Registration Statement and~~ or contemplated by the Prospectus, or, to the knowledge of the Company, no Intangibles of the Company or the Subsidiaries are in dispute or are in any conflict with the right of any other person or entity and the Company and each of the Subsidiaries (A) has or will have the right (subject to applicable agreements, which agreements provide for use to the extent necessary and desirable for the conduct of its business as currently conducted and as proposed to be conducted) to use, free and clear of all liens, charges, claims, encumbrances, pledges, security interests, defects, restrictions or equities of any kind whatsoever all licenses and rights to the Intangibles used in the conduct of their business as now conducted or proposed to be conducted without infringing upon or otherwise acting adversely to the right or claimed right of any other person and (B) is not or will not become, as the case may be, obligated or in any way liable for any payment by way of royalties, fees or otherwise and to any owner or licensee of, or other claimant to, any Intangibles with respect to the use thereof or in connection with the conduct of their business or otherwise, except in each case as disclosed in the Prospectus and except for any such payments, claims, uses, liens, charges, encumbrances, pledges, security interests, defects, restrictions and equities which would not have a Material Adverse Effectimminent. (~~vii~~xviii) ~~The~~ Except as described in or contemplated by the Prospectus, the Company is insured by insurers of recognized financial responsibility against such losses and ~~the Subsidiaries have good~~ risks and ~~marketable title to each of the items of personal property which~~ in such amounts as are ~~reflected~~ prudent and customary in the ~~financial statements referred to~~ businesses in Section 4(a)(ii) or are referred to in the Registration Statement and the Prospectus as being owned by them and valid and enforceable leasehold interests in each of the items of real and personal property which are referred to in the Registration Statement and the Prospectus as being leased by them, in each case free and clear of all liens, encumbrances, claims, security interests and defects, other than those described in the Registration Statement and the Prospectus and those which do not and will not have a Material Adverse Effectit is engaged. (~~viii~~xix) Except as described in the ~~Registration Statement and the~~ Prospectus, ~~there is no litigation~~ the Company possesses all certificates, authorizations and permits issued by the appropriate federal, state or ~~governmental or other proceeding or investigation before any court or before or by any public body or board pending or~~foreign regulatory authorities necessary to conduct its business, ~~to the Company's knowledge, threatened (~~and the Company ~~does~~ has not ~~know~~ received any notice of proceedings relating to the revocation or modification of any ~~reasonable basis therefor) against~~such certificate, authorization or ~~involving the assets, properties or business of, the Company or the Subsidiaries~~ permit which, ~~if adversely determined, could be reasonably expected to have a Material Adverse Effect. (ix) Subsequent to the respective dates as of which information is given~~ singly or in the ~~Registration Statement and~~ aggregate, if the ~~Prospectus~~subject of an unfavorable decision, ~~except as described therein~~ruling or finding, ~~(A) there has not been any~~ would result in a material adverse change in the ~~assets or properties~~condition, ~~business, results of operations, prospects or condition (~~financial or otherwise) , or in the earnings, business or operations of the Company ~~or the Subsidiaries~~ and its subsidiaries, taken as a whole, whether or not arising from transactions in the ordinary course of business; (B) neither the Company nor any of the Subsidiaries has sustained any material loss or interference with its assets, businesses or properties (whether owned, leased or licensed) from fire, explosion, earthquake, flood or other calamity, whether or not covered by insurance, or from any labor dispute or any court or legislative or other governmental action, order or decree; and (C) since the date of the latest balance sheet included in the Registration Statement and the Prospectus, except as reflected therein, neither the Company nor any of the Subsidiaries has (x) issued any securities (other than options or shares issued pursuant to exercise of employee stock options or warrants described in the Registration Statement and Prospectus) or incurred any liability or obligation, direct or contingent, for borrowed money, except such liabilities or obligations incurred in the ordinary course of business, (y) entered into any transaction not in the ordinary course of business or (z) declared or paid any dividend or made any distribution on any shares of its stock or redeemed, purchased or otherwise acquired or agreed to redeem, purchase or otherwise acquire any shares of its stock. (xxx) There is no material document or contract of a character required to be described in the Registration Statement or Prospectus or to be filed as an exhibit to the Registration Statement which is not described or filed as required. Each agreement listed in the Exhibits to the Registration Statement is in full force and effect or has terminated in accordance with its terms or by amendment and such amendment has been filed as an Exhibit to the Registration Statement or has otherwise been provided to the Representatives and, if not so terminated, is valid and enforceable in all material respects by and against the Company or the Subsidiaries, as the case may be, in accordance with its terms, assuming the due authorization, execution and delivery thereof by each of the other parties thereto, except as the enforceability thereof may be limited by (i) bankruptcy, insolvency, reorganization, moratorium or other similar laws affecting the enforcement of creditors' rights generally and (ii) indemnification provisions under Federal and state securities laws; and that the remedy of specific forms of equitable relief may be subject to equitable defenses and the discretion of the court before which any such action may be brought. Neither the Company, the (xi) Neither the Company nor the Subsidiaries is in violation of any term or provision of their respective Certificate of Incorporation and By-laws, in each case as amended to the date hereof, or other governing documents, or of any franchise, license, permit, judgment, decree, order, statute, rule or regulation, where the consequences of such violation would have a Material Adverse Effect. Except as described in the ~~Registration Statement or Prospectus, neither the Company nor any of the Subsidiaries intends to amend its Certificate of Incorporation and By-laws.~~ Prospectus (~~xii) Neither the execution, delivery and performance of this Agreement by the Company or the Subsidiaries nor the consummation~~ exclusive of any ~~of the transactions contemplated hereby (including, without limitation, the issuance and sale by the Company of the Shares) will give rise~~ amendments or supplements thereto subsequent to a right to terminate or accelerate the due date of any payment due under, or conflict with or result in the breach of any term or provision of, or constitute a default (or an event which with notice or lapse of time or both would constitute a default) under, or require any consent or waiver under, or result in the execution or imposition of any lien, charge or encumbrance upon any properties or assets of the Company or any of the Subsidiaries pursuant to the terms of, any indenture, mortgage, deed of trust or other agreement or instrument to which the Company or any of the Subsidiaries is a party or by which it or any of its properties or businesses are bound, or any franchise, license, permit, judgment, decree, order, statute, rule or regulation applicable to the Company or any of the Subsidiaries or violate any provision of the Certificate of Incorporation and By-laws of the Company or any of the Subsidiaries, except for such consents or waivers which have already been obtained and are in full force and effect or as would not have a Material Adverse Effect. No consent, approval, authorization, order, registration or qualification of or with any United States court or governmental agency or body is required for the issue and sale of the Shares or the consummation of the other transactions contemplated by this Agreement, which have not been obtained prior to the date hereof, except the registration under the Securities Act of the Shares, and such consents, approvals, authorizations, registrations or qualifications as may be required under state securities or Blue Sky laws -9- 10 in connection with the purchase and distribution of the Shares by the Underwriters. (xiii) The authorized, issued and outstanding capital stock of the Company and the capital stock reserved or committed for issuance is as set forth under the caption "Capitalization" in the Prospectus. All of the outstanding shares of Stock have been duly and validly issued and are fully paid and nonassessable, none of them was issued in violation of any preemptive or other similar right and, to the Company's knowledge, since 1991, none of them were issued in violation of any Federal or state securities laws. The Shares, when issued and sold pursuant to this Agreement, will be duly and validly issued, fully paid and nonassessable, none of them will be issued in violation of any preemptive or other similar right, any contractual right, including, without limitation, rights of first refusal, and, since 1991, none of them were issued in violation of any (subject to compliance with Section 1(c) hereof), Federal or state securities laws. Except as disclosed in the Registration Statement and the Prospectus, there is no outstanding option, warrant or other right calling for the issuance of, and there is no commitment, plan or arrangement to issue, any shares of Common Stock of the Company or any security convertible into, or exercisable or exchangeable for, such shares of Stock. The shares of Stock conform in all material respects to all statements in relation thereto contained in the Registration Statement and the Prospectus. The Company has a sufficient number of authorized but unissued shares of Stock to enable the Company to issue, without further stockholder action, or approve all the Shares to be sold by the Company. (xiv) As of the date hereof, and as of each Closing Date, all of the outstanding shares of capital stock of the Subsidiaries are duly and validly authorized and issued, are fully paid and nonassessable and are and will be owned by the Company and there is and will be no outstanding option, warrant or other right calling for the issuance of, and no commitment, plan or arrangement to issue any share of capital stock of the Subsidiaries or any security convertible or exchangeable or exercisable for capital stock of the Subsidiaries, except as otherwise described in the Registration Statement and Prospectus. (xv) Except as set forth in the Registration Statement and Prospectus, no holder of any security of the Company has the right to have any security owned by such holder included in the Registration Statement or to demand registration of any security owned by such holder during the period ending 90 days after the date of this Agreement~~. Each Selling Stockholder and each director and executive officer of~~ ), the Company has ~~delivered to~~not sold, issued or distributed any Securities during the six-month period preceding the date hereof, including any sales pursuant to Rule 144A under, or Regulation D or S of, the Act, other than shares issued pursuant to employee benefit plans, qualified stock option plans or other employee compensation plans or pursuant to outs

Appears in 1 contract

Sources: Underwriting Agreement (Yankee Candle Co Inc)

Representations and Warranties of the Company and the Selling Stockholders. (a) The Company ~~hereby~~ represents and warrants ~~to each~~ to, and agrees with, the Underwriter ~~as follows~~that: (i) On An “automatic shelf registration statement” as defined under Rule 405 under the ~~Effective Date~~Securities Act of 1933, as amended (the ~~Registration Statement complied~~“Act”), on Form S-3 (File No. 333-173369) in respect of the Securities has been filed with the Securities and Exchange Commission (the “Commission”) on April 7, 2011; such registration statement, and any post-effective amendment thereto, became effective on filing; and no stop order suspending the effectiveness of such registration statement or any part thereof has been issued and no proceeding for that purpose has been initiated or threatened by the Commission, and no notice of objection of the Commission to the use of such registration statement or any post-effective amendment thereto pursuant to Rule 401(g)(2) under the Act has been received by the Company (the base prospectus filed as part of such registration statement, in the form in which it has most recently been filed with the Commission on or prior to the date of this Agreement, is hereinafter called the “Basic Prospectus”; the various parts of such registration statement, on including all exhibits thereto and including any prospectus supplement relating to the Securities that is filed with the Commission and deemed by virtue of Rule 430B to be part of such registration statement, each as amended at the time such part of the registration statement became effective, are hereinafter collectively called the “Registration Statement”; the form of the final prospectus relating to the Securities filed with the Commission pursuant to Rule 424(b) (“Rule 424(b)”) under the Act in accordance with Section 5(a) hereof is hereinafter called the “Prospectus”; any reference herein to the Basic Prospectus or the Prospectus shall be deemed to refer to and include the documents incorporated by reference therein pursuant to Item 12 of Form S-3 under the Act, as of the date of such prospectus; any reference to any amendment or supplement to the Basic Prospectus or the Prospectus shall be deemed to refer to and include any post-effective amendment to the Registration ~~Statement shall become effective~~Statement, ~~on the date~~ any prospectus supplement ~~or amendment~~ relating to the ~~Prospectus is~~ Securities filed with the Commission pursuant to Rule 424(b) and on any documents filed under the Securities Exchange Act of 1934, as amended (the “Exchange Act”), and incorporated by reference therein, in each ~~Closing Date~~case after the date of the Basic Prospectus or the Prospectus, as the case may be; any reference to any amendment to the Registration Statement shall be deemed to refer to and ~~the Prospectus (and~~ include any ~~amendment thereof or supplement thereto) will comply, in all material respects, with the applicable provisions~~ annual report of the ~~Securities~~ Company filed pursuant to Section 13(a) or 15(d) of the Exchange Act ~~and~~ after the ~~Rules; (ii) The documents~~ effective date of the Registration Statement that ~~are~~ is incorporated by reference in the ~~preliminary prospectus~~ Registration Statement; and any “issuer free writing prospectus” as defined in Rule 433 under the Act relating to the Shares is hereinafter called an “Issuer Free Writing Prospectus”). (ii) No order preventing or suspending the use of the Basic Prospectus or any Issuer Free Writing Prospectus has been issued by the Commission, and the ~~Prospectus~~ Basic Prospectus, at the time of filing thereof, conformed in all material respects to the requirements of the Act and the rules and regulations of the Commission (the “Rules and Regulations”) thereunder, and did not contain an untrue statement of a material fact or ~~from~~ omit to state a material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading; provided, however, that this representation and warranty shall not apply to any statements or omissions made in reliance upon and in conformity with information furnished in writing to the Company by the Underwriter expressly for use therein, it being understood and agreed that the only such information is so that described as such in Section 8(c) hereof; (iii) For the purposes of this Agreement, the “Applicable Time” is 5:30 p.m. (Eastern time) on March 4, 2014; the information set forth on Exhibit B hereto; any Issuer Free Writing Prospectus listed on Exhibit C hereto and the Basic Prospectus, (collectively, the “General Disclosure Package”) as of the Applicable Time, did not include any untrue statement of a material fact or omit 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; and the General Disclosure Package does not conflict with the information contained in the Registration Statement or the Prospectus and the General Disclosure Package as of the Applicable Time, did not include any untrue statement of a material fact or omit 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; provided, however, that this representation and warranty shall not apply to statements or omissions made in the General Disclosure Package in reliance upon and in conformity with information furnished in writing to the Company by the Underwriter expressly for use therein, it being understood and agreed that the only such information is that described as such in Section 8(c) hereof; (iv) The documents incorporated by ~~reference~~reference in the Prospectus, when ~~they~~ it became effective or ~~were~~ was filed with the Commission, as the case may be, ~~complied~~ conformed in all material respects ~~with~~ to the requirements of the ~~Securities Act or the Securities~~ Exchange Act ~~of 1934, as amended (the "Exchange Act"), as applicable,~~ and the rules and regulations of the Commission ~~promulgated under~~ thereunder, and none of such documents contained an untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary to make the ~~Securities Act and the Exchange Act, as applicable, except as amended and superseded by~~ statements ~~made in the Registration Statement~~therein not misleading; ~~and~~ any further documents so filed and incorporated by reference ~~subsequent to~~ in the ~~Effective Date shall~~Prospectus or any further amendment or supplement thereto, when ~~they~~ such documents become effective or are filed with the Commission, as the case may be, will conform in all material respects ~~with~~ to the requirements of the ~~Securities~~ Act or the Exchange Act, as applicable, and the rules and regulations of the Commission ~~promulgated under~~ thereunder and will not contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the ~~Securities~~ statements therein not misleading; provided, however, that this representation and warranty shall not apply to any statements or omissions made in reliance upon and in conformity with information furnished in writing to the Company by the Underwriter expressly for use therein (it being understood and agreed that the only such information is that described as such in Section 8(c) hereof); and no such documents were filed with the Commission since the Commission’s close of business on the business day immediately prior to the date of this Agreement and prior to the execution of this Agreement, except as set forth on Exhibit D hereto; (v) The Registration Statement conforms, and the Prospectus and any further amendments or supplements to the Registration Statement and the Prospectus will conform, in all material respects to the requirements of the Act and the ~~Exchange Act~~rules and regulations of the Commission thereunder and do not and will not, as ~~applicable~~of the applicable effective date as to each part of the Registration Statement and as of the applicable filing date as to the Prospectus and any amendment or supplement thereto, contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading; provided, however, that this representation and warranty shall not apply to any statements or omissions made in reliance upon and in conformity with information furnished in writing to the Company by the Underwriter expressly for use therein, it being understood and agreed that the only such information is that described as such in Section 8(c) hereof; (A) At the time of filing of the Registration Statement and (B) at the date of this Agreement, the Company was not and is not an “ineligible issuer,” as defined in Rule 405, including (1) the Company or any other subsidiary in the preceding three years not having been convicted of a felony or misdemeanor or having been made the subject of a judicial or administrative decree or order as described in Rule 405 and (2) the Company in the preceding three years not having been the subject of a bankruptcy petition or insolvency or similar proceeding, not having had a registration statement be the subject of a proceeding under Section 8 of the Act and not being the subject of a proceeding under Section 8A of the Act in connection with the offering of the Offered Securities, all as described in Rule 405. (vii) At (i) the time of filing the Registration Statement and (ii) at the time the Company or any person acting on its behalf (within the meaning, for this clause only, of Rule 163(c) under the Act) made any offer relating to the Shares in reliance on the exemption of Rule 163 under the Act, the Company was a “well-known seasoned issuer” as defined in Rule 405 under the Act; (viii) If at any time following issuance of an Issuer Free Writing Prospectus but no later than the latest of (i) the Closing Date, (ii) the completion of the distribution of the Offered Securities or (iii) ~~The consolidated financial statements~~ the termination of the ~~Company (including all notes and schedules thereto~~Underwriter’s prospectus delivery obligation pursuant to Section 4(3) ~~included~~ of the Act, there occurred or occurs an event or development as a result of which such Issuer Free Writing Prospectus conflicted or would conflict with the information then contained in the Registration Statement ~~and Prospectus present fairly~~ or included or would include an untrue statement of a material fact or omitted or would omit to state a material fact necessary in order to make the ~~financial position~~statements therein, in the ~~results of operations and cash flows and the stockholders' equity and the other information purported to be shown therein~~ light of the circumstances prevailing at that subsequent time, not misleading, (i) the Company has promptly notified or will promptly notify the Underwriter and ~~its subsidiaries~~(ii) the Company has promptly amended or supplemented or will promptly amend or supplement such Issuer Free Writing Prospectus to eliminate or correct such conflict, ~~listed on Schedule III hereto (~~untrue statement or omission. The foregoing two sentences do not apply to statements in or omissions from any Issuer Free Writing Prospectus in reliance upon and in conformity with written information furnished to the ~~"Subsidiaries")~~Company by the Underwriter specifically for use therein, at it being understood and agreed that the ~~respective dates and for~~ only such information furnished by the ~~respective (iv) KPMG Peat Marwick LLP, whose report is filed with the Commission as a part~~ Underwriter consists of the ~~Registration Statement, is and, during the periods covered by its reports, was independent public accountants~~ information described as ~~required by the Securities Act and the Rules~~such in Section 8(c) hereof. (vix) The Company has been duly incorporated and is ~~a validly~~ an existing corporation in good standing under the laws of the State of Delaware, with corporate power and ~~the Subsidiaries have been duly incorporated~~ authority to own its properties and are validly existing corporations under the laws of their respective jurisdictions. Other than the Subsidiaries, the Company has no subsidiaries and does not control, directly or indirectly, any corporation, partnership, joint venture, association or other conduct its business ~~organization, except~~ as described in the ~~Registration Statement~~ General Disclosure Package; and the ~~Prospectus. Each of the~~ Company ~~and the Subsidiaries~~ is duly qualified ~~and in good standing~~ to do business as a foreign corporation in ~~each jurisdiction~~ good standing in all other jurisdictions in which ~~the character~~ its ownership or ~~location~~ lease of ~~its assets or properties (owned, leased or licensed)~~ property or the ~~nature~~ conduct of its business ~~makes~~ requires such ~~qualification necessary~~ qualification, except for ~~such jurisdictions~~ any jurisdiction where the failure to be so ~~qualify~~ qualified would ~~not~~ not, individually or in the aggregate, have a material adverse effect on the ~~assets or properties, business, results of operations or~~ condition (financial or ~~otherwise)~~ other), business, properties or results of operations of the Company and ~~the Subsidiaries,~~ its subsidiaries taken as a whole (~~a "~~“Material Adverse Effect"”). Except as disclosed in the Registration Statement and the Prospectus, neither the Company nor the Subsidiaries own, lease or license any material asset or property or conduct any material business outside the United States of America. . (x) Each subsidiary of the Company has been duly incorporated or formed, as applicable, and is validly existing as a corporation, limited partnership or limited liability company, as applicable, in good standing under the ~~Subsidiaries have all requisite corporate~~ laws of the jurisdiction of its incorporation or formation, as applicable, and has corporate, partnership or limited liability company, as applicable, or other entity power and ~~authority, and all necessary authorizations, approvals, consents, orders, licenses, certificates and permits of and from all governmental or regulatory bodies or any other person or entity,~~ authority to ~~own, lease and license their assets and~~ own its properties and conduct ~~their businesses as now being conducted and~~ its business as described in the ~~Registration Statement~~ General Disclosure Package; and each subsidiary of the ~~Prospectus~~ Company is duly qualified to do business as a foreign corporation in good standing in all other jurisdictions in which its ownership or lease of property or the conduct of its business requires such qualification, except for any such ~~authorizations, approvals, consents, orders, licenses, certificates and permits~~ jurisdiction where the failure to be so ~~obtain~~ qualified would not have a Material Adverse Effect; ~~no such authorization~~all of the issued and outstanding capital stock of each subsidiary of the Company has been duly authorized and validly issued and is fully paid and nonassessable; and the capital stock of each subsidiary owned by the Company, ~~approval~~directly or through subsidiaries, ~~consent~~is owned free from liens, ~~order, license, certificate or permit contains a materially burdensome restriction~~ encumbrances and defects (other than transfer restrictions imposed under applicable securities laws). (xi) The Offered Securities and all other outstanding shares of capital stock of the Company have been duly authorized; all outstanding shares of capital stock of the Company are, and, when the Offered Securities have been delivered and paid for in accordance with this Agreement on the Closing Date (as ~~disclosed~~ defined below), such Offered Securities will have been, validly issued, fully paid and nonassessable, will be consistent in all material respects with the information in the ~~Registration Statement~~ General Disclosure Package and will conform in all material respects to the description thereof contained in the Prospectus; and the stockholders of the Company ~~has all such corporate power and authority, and such authorizations, approvals, consents, orders, licenses, certificates and permits~~ have no preemptive rights with respect to ~~enter into, deliver and perform this Agreement and to issue and~~the Offered Securities. (vixii) The Company and the Subsidiaries own or possess adequate and enforceable rights to use all patents, trademarks, trademark applications, trade names, service marks, copyrights, copyright applications, licenses, know-how and other similar rights and proprietary knowledge (collectively, "Intangibles") material to or necessary for the conduct of their business as described in the Registration Statement and the Prospectus. Except as disclosed in the ~~Registration Statement and the Prospectus~~General Disclosure Package, ~~neither~~ there are no contracts, agreements or understandings between the Company ~~nor~~ and any ~~of the Subsidiaries have received any notice of, and~~ person that would give rise to their knowledge are not aware of, any infringement of or conflict with asserted rights of others with respect to any Intangibles which, singly or in the aggregate, if the subject of an unfavorable decision, ruling or finding, could be reasonably expected to have a ~~Material Adverse Effect, and neither~~ valid claim against the Company ~~nor~~ or the ~~Subsidiaries know of any reasonable basis therefor.~~ Underwriter for a brokerage commission, finder’s fee or other like payment in connection with this offering. (xiii) Except as disclosed in the ~~Registration Statement~~ General Disclosure Package, there are no contracts, agreements or understandings between the Company and any person granting such person the ~~Prospectus,~~ right to require the ~~knowledge of~~ Company to file a registration statement under the ~~Company, no Intangibles~~ Act with respect to any securities of the Company owned or ~~the Subsidiaries are in dispute or are in any conflict with the right of any other~~ to be owned by such person or ~~entity and~~ to require the Company ~~and each of the Subsidiaries (A) has or will have the right (subject~~ to applicable agreements, which agreements provide for use to the extent necessary and desirable for the conduct of its business as currently conducted and as proposed to be conducted) to use, free and clear of all liens, charges, claims, encumbrances, pledges, security interests, defects, restrictions or equities of any kind whatsoever all licenses and rights to the Intangibles used include such securities in the ~~conduct of their business as now conducted or proposed~~ securities registered pursuant to ~~be conducted without infringing upon or otherwise acting adversely to the right or claimed right of any other person and (B) is not or will not become, as the case may be, obligated~~ a Registration Statement or in any ~~way liable for any payment by way of royalties, fees or otherwise and~~ securities being registered pursuant to any ~~owner~~ other registration statement filed by the Company under the Act that have not been complied with or ~~licensee~~ waived in writing. (xiv) The Offered Securities have been approved for listing on The New York Stock Exchange. (xv) No consent, approval, authorization, or order of, or ~~other claimant to~~filing with, any ~~Intangibles with respect~~ governmental agency or body or any court is required to be obtained or made by the ~~use thereof or~~ Company for the consummation of the transactions contemplated by this Agreement in connection with the ~~conduct of their business or otherwise, except in each case as disclosed in the Prospectus~~ issuance and except for any such payments, claims, uses, liens, charges, encumbrances, pledges, security interests, defects, restrictions and equities which would not have a Material Adverse Effect. (vii) The Company and the Subsidiaries have good and marketable title to each sale of the items of personal property which are reflected in the financial statements referred to in Section 4(a)(ii) or are referred to in the Registration Statement and the Prospectus as being owned by them and valid and enforceable leasehold interests in each of the items of real and personal property which are referred to in the Registration Statement and the Prospectus as being leased by them, in each case free and clear of all liens, encumbrances, claims, security interests and defects, other than those described in the Registration Statement and the Prospectus and those which do not and will not have a Material Adverse Effect. (viii) Except as described in the Registration Statement and the Prospectus, there is no litigation or governmental or other proceeding or investigation before any court or before or by any public body or board pending or, to the Company's knowledge, threatened (and the Company does not know of any reasonable basis therefor) against, or involving the assets, properties or business of, the Company or the Subsidiaries which, if adversely determined, could be reasonably expected to have a Material Adverse Effect. (ix) Subsequent to the respective dates as of which information is given in the Registration Statement and the Prospectus, except as described therein, (A) there has not been any material adverse change in the assets or properties, business, results of operations, prospects or condition (financial or otherwise) of the Company or the Subsidiaries taken as a whole, whether or not arising from transactions in the ordinary course of business; (B) neither the Company nor any of the Subsidiaries has sustained any material loss or interference with its assets, businesses or properties (whether owned, leased or licensed) from fire, explosion, earthquake, flood or other calamity, whether or not covered by insurance, or from any labor dispute or any court or legislative or other governmental action, order or decree; and (C) since the date of the latest balance sheet included in the Registration Statement and the Prospectus, except as reflected therein, neither the Company nor any of the Subsidiaries has (x) issued any securities (other than options or shares issued pursuant to exercise of employee stock options or warrants described in the Registration Statement and Prospectus) or incurred any liability or obligation, direct or contingent, for borrowed moneyOffered Securities, except such ~~liabilities or obligations incurred in~~ as have been obtained and made under the ~~ordinary course~~ Act and the Securities Exchange Act of ~~business,~~ 1934 (ythe “Exchange Act”) entered into any transaction not in the ordinary course of business or (z) declared or paid any dividend or made any distribution on any shares of its stock or redeemed, purchased or otherwise acquired or agreed to redeem, purchase or otherwise acquire any shares of its stock. (x) There is no material document or contract of a character required to be described in the Registration Statement or Prospectus or to be filed as an exhibit to the Registration Statement which is not described or filed as required. Each agreement listed in the Exhibits to the Registration Statement is in full force and effect or has terminated in accordance with its terms or by amendment and such ~~amendment has been filed~~ as an Exhibit to the Registration Statement or has otherwise been provided to the Representatives and, if not so terminated, is valid and enforceable in all material respects by and against the Company or the Subsidiaries, as the case may be, in accordance with its terms, assuming the due authorization, execution and delivery thereof by each of the other parties thereto, except as the enforceability thereof may be ~~limited by (i) bankruptcy, insolvency, reorganization, moratorium or other similar laws affecting the enforcement of creditors' rights generally and (ii) indemnification provisions~~ required under ~~Federal and~~ state securities laws; and that the remedy of specific forms of equitable relief may be subject to equitable defenses and the discretion of the court before which any such action may be brought. Neither the Company, the (xi) Neither the Company nor the Subsidiaries is in violation of any term or provision of their respective Certificate of Incorporation and By-laws, in each case as amended to the date hereof, or other governing documents, or of any franchise, license, permit, judgment, decree, order, statute, rule or regulation, where the consequences of such violation would have a Material Adverse Effect. Except as described in the Registration Statement or Prospectus, neither the Company nor any of the Subsidiaries intends to amend its Certificate of Incorporation and By-laws. (~~xii~~xvi) ~~Neither the~~ The execution, delivery and performance of this ~~Agreement by~~ Agreement, and the ~~Company~~ issuance and sale of the Offered Securities as herein contemplated will not result in a breach or ~~the Subsidiaries nor the consummation~~ violation of any of the ~~transactions contemplated hereby (including, without limitation, the issuance~~ terms and ~~sale by the Company of the Shares) will give rise to a right to terminate or accelerate the due date of any payment due under, or conflict with or result in the breach of any term or provision~~ provisions of, or constitute a default ~~(or an event which with notice or lapse of time or both would constitute a default)~~ under, (a) any statute, any rule, regulation or ~~require any consent or waiver under, or result in the execution or imposition~~ order of any ~~lien~~governmental agency or body or any court, ~~charge~~ domestic or ~~encumbrance upon any properties or assets of~~ foreign, having jurisdiction over the Company or any subsidiary of the ~~Subsidiaries pursuant to the terms of~~Company (each, a “Governmental Entity”), (b) any ~~indenture~~of their properties, ~~mortgage, deed of trust~~ or ~~other~~ any agreement or instrument to which the Company or any ~~of the Subsidiaries~~ such subsidiary is a party or by which ~~it or any of its properties or businesses are bound, or any franchise, license, permit, judgment, decree, order, statute, rule or regulation applicable to~~ the Company or any such subsidiary is bound or to which any of the ~~Subsidiaries or violate any provision~~ properties of the ~~Certificate of Incorporation and By~~Company or any such subsidiary is subject, or (c) the charter or by-laws of the Company or any such subsidiary, except, in the case of ~~the Subsidiaries~~clauses (a) and (b) above, ~~except for such consents or waivers which have already been obtained and are in full force and effect or~~ as would not have a Material Adverse Effect~~. No consent~~, ~~approval, authorization, order, registration or qualification of or with any United States court or governmental agency or body is required for~~ and the Company has full power and authority to authorize and issue ~~and sale of~~ the ~~Shares or the consummation of the other transactions~~ Offered Securities as contemplated by this Agreement, which have not been obtained prior to the date hereof, except the registration under the Securities Act of the Shares, and such consents, approvals, authorizations, registrations or qualifications as may be required under state securities or Blue Sky laws -9- 10 in connection with the purchase and distribution of the Shares by the Underwriters. (~~xiii~~xvii) ~~The~~ This Agreement has been duly authorized, ~~issued~~ executed and outstanding capital stock of the Company and the capital stock reserved or committed for issuance is as set forth under the caption "Capitalization" in the Prospectus. All of the outstanding shares of Stock have been duly and validly issued and are fully paid and nonassessable, none of them was issued in violation of any preemptive or other similar right and, to the Company's knowledge, since 1991, none of them were issued in violation of any Federal or state securities laws. The Shares, when issued and sold pursuant to this Agreement, will be duly and validly issued, fully paid and nonassessable, none of them will be issued in violation of any preemptive or other similar right, any contractual right, including, without limitation, rights of first refusal, and, since 1991, none of them were issued in violation of any (subject to compliance with Section 1(c) hereof), Federal or state securities laws. Except as disclosed in the Registration Statement and the Prospectus, there is no outstanding option, warrant or other right calling for the issuance of, and there is no commitment, plan or arrangement to issue, any shares of Common Stock of the Company or any security convertible into, or exercisable or exchangeable for, such shares of Stock. The shares of Stock conform in all material respects to all statements in relation thereto contained in the Registration Statement and the Prospectus. The Company has a sufficient number of authorized but unissued shares of Stock to enable the Company to issue, without further stockholder action, or approve all the Shares to be sold delivered by the Company. (~~xiv~~xviii) ~~As of~~ Except as disclosed in the ~~date hereof~~General Disclosure Package, and as of each Closing Date, all of the outstanding shares of capital stock of the Subsidiaries are duly and validly authorized and issued, are fully paid and nonassessable and are and will be owned by the Company and ~~there is~~ its subsidiaries have good and ~~will~~ marketable title to all real properties and all other properties and assets owned by them, in each case free from liens, encumbrances and defects that would affect the value thereof or interfere with the use made or to be no outstanding option, warrant or other right calling for the issuance of, and no commitment, plan or arrangement to issue any share of capital stock of the Subsidiaries or any security convertible or exchangeable or exercisable for capital stock of the Subsidiariesmade thereof by them, except in each case as ~~otherwise described~~ would not, individually or in the ~~Registration Statement~~ aggregate, have a Material Adverse Effect; and Prospectus. (xv) Except as set forth in the Registration Statement and Prospectus, no holder of any security of the Company has the right to have any security owned by such holder included in the Registration Statement or to demand registration of any security owned by such holder during the period ending 90 days after the date of this Agreement. Each Selling Stockholder and each director and executive officer of the Company has delivered to

Appears in 1 contract

Sources: Underwriting Agreement (Spirit AeroSystems Holdings, Inc.)

Appears in 1 contract

Sources: Underwriting Agreement (Northeast Optic Network Inc)

Representations and Warranties of the Company and the Selling Stockholders. The Company and the Selling Stockholders jointly and severally represent and warrant to, and agree with, each of the several Underwriters that: (a) ~~The Company hereby represents and warrants to each Underwriter as follows:~~ A registration statement on Form S-3 (iFile No. 333-_________) ~~On the Effective Date, the Registration Statement complied, and on the date of the Prospectus, on the date any post-effective amendment~~ with respect to the ~~Registration Statement shall become effective~~Securities, on including a prospectus subject to completion, has been filed by the ~~date any supplement or amendment to the Prospectus is filed~~ Company with the Securities and Exchange Commission ~~and on each Closing Date,~~ (the ~~Registration Statement and the Prospectus (and any amendment thereof or supplement thereto~~"Commission") ~~will comply, in all material respects, with the applicable provisions of~~ under the Securities Act and the Rules; (ii) The documents that are incorporated by reference in the preliminary prospectus and the Prospectus or from which information is so incorporated by reference, when they became effective or were filed with the Commission, as the case may be, complied in all material respects with the requirements of ~~the Securities Act or the Securities Exchange Act of 1934~~1933, as amended (the "~~Exchange~~ Act"), and one or more amendments to such registration statement may have been so filed. After the execution of this Agreement, the Company will file with the Commission either (i) if such registration statement, as ~~applicable~~it may have been amended, has been declared by the Commission to be effective under the Act, either (A) if the Company relies on Rule 434 under the Act, a Term Sheet (as hereinafter defined) relating to the Securities, that shall identify the Preliminary Prospectus (as hereinafter defined) that it supplements containing such information as is required or permitted by Rules 434, 430A and 424(b) under the Act or (B) if the Company does not rely on Rule 434 under the Act, a prospectus in the form most recently included in an amendment to such registration statement (or, if no such amendment shall have been filed, in such registration statement), with such changes or insertions as are required by Rule 430A under the Act or permitted by Rule 424(b) under the Act, and in the ~~rules~~ case of either clause (i)(A) or (i)(B) of this sentence as have been provided to and ~~regulations~~ approved by the Representatives prior to the execution of this Agreement, or (ii) if such registration statement, as it may have been amended, has not been declared by the Commission ~~promulgated~~ to be effective under the ~~Securities~~ Act, an amendment to such registration statement, including a form of prospectus, a copy of which amendment has been furnished to and approved by the Representatives prior to the execution of this Agreement. The Company may also file a related registration statement with the Commission pursuant to Rule 462(b) under the Act for the purpose of registering certain additional Securities, which registration shall be effective upon filing with the Commission. As used in this Agreement, the term "Original Registration Statement" means the registration statement initially filed relating to the Securities, as amended at the time when it was or is declared effective, including all financial schedules and exhibits thereto and including any information omitted therefrom pursuant to Rule 430A under the Act and ~~the Exchange Act, as applicable, except as amended and superseded by statements made~~ included in the Prospectus (as hereinafter defined); the term "Rule 462(b) Registration Statement~~; and~~ " means any ~~documents so filed and incorporated by reference subsequent to the Effective Date shall, when they are~~ registration statement filed with the ~~Commission, conform in all material respects with the requirements of the Securities Act or the Exchange Act, as applicable, and the rules and regulations of the~~ Commission ~~promulgated~~ pursuant to Rule 462(b) under the ~~Securities~~ Act ~~and the Exchange Act, as applicable. (iii) The consolidated financial statements of the Company~~ (including ~~all notes and schedules thereto) included in~~ the Registration Statement and any Preliminary Prospectus ~~present fairly the financial position, the results of operations and cash flows and the stockholders' equity and the other information purported to be shown~~ or Prospectus incorporated therein ~~of the Company and its subsidiaries, listed on Schedule III hereto (the "Subsidiaries"),~~ at the ~~respective dates and for~~ time such Registration Statement becomes effective); the ~~respective (iv) KPMG Peat Marwick LLP, whose report is filed with the Commission as a part of the~~ term "Registration Statement~~, is and, during~~ " includes both the periods covered by its reports, was independent public accountants as required by the Securities Act and the Rules. (v) The Company has been duly incorporated and is a validly existing corporation under the laws of the State of Delaware, and the Subsidiaries have been duly incorporated and are validly existing corporations under the laws of their respective jurisdictions. Other than the Subsidiaries, the Company has no subsidiaries and does not control, directly or indirectly, any corporation, partnership, joint venture, association or other business organization, except as described in the Original Registration Statement and any Rule 462(b) Registration Statement; the term "Preliminary Prospectus~~. Each of the Company and the Subsidiaries is duly qualified and in good standing as a foreign corporation in~~ " means each ~~jurisdiction in which the character or location of its assets or properties (owned, leased or licensed) or the nature of its business makes~~ prospectus subject to completion filed with such qualification necessary except for such jurisdictions where the failure to so qualify would not have a material adverse effect on the assets or properties, business, results of operations or condition (financial or otherwise) of the Company and the Subsidiaries, taken as a whole (a "Material Adverse Effect"). Except as disclosed in the Registration Statement and the Prospectus, neither the Company nor the Subsidiaries own, lease or license any material asset or property or conduct any material business outside the United States of America. Each of the Company and the Subsidiaries have all requisite corporate power and authority, and all necessary authorizations, approvals, consents, orders, licenses, certificates and permits of and from all governmental or regulatory bodies registration statement or any ~~other person or entity,~~ amendment thereto (including the prospectus subject to own, lease and license their assets and properties and conduct their businesses as now being conducted and as described in the Registration Statement and the Prospectus except for such authorizations, approvals, consents, orders, licenses, certificates and permits the failure to so obtain would not have a Material Adverse Effect; no such authorization, approval, consent, order, license, certificate or permit contains a materially burdensome restriction other than as disclosed in the Registration Statement and the Prospectus; and the Company has all such corporate power and authority, and such authorizations, approvals, consents, orders, licenses, certificates and permits to enter into, deliver and perform this Agreement and to issue and (vi) The Company and the Subsidiaries own or possess adequate and enforceable rights to use all patents, trademarks, trademark applications, trade names, service marks, copyrights, copyright applications, licenses, know-how and other similar rights and proprietary knowledge (collectively, "Intangibles") material to or necessary for the conduct of their business as described in the Registration Statement and the Prospectus. Except as disclosed in the Registration Statement and the Prospectus, neither the Company nor any of the Subsidiaries have received any notice of, and to their knowledge are not aware of, any infringement of or conflict with asserted rights of others with respect to any Intangibles which, singly or in the aggregatecompletion, if ~~the subject of an unfavorable decision~~any, ruling or finding, could be reasonably expected to have a Material Adverse Effect, and neither the Company nor the Subsidiaries know of any reasonable basis therefor. Except as disclosed in the Registration Statement and the Prospectus, to the knowledge of the Company, no Intangibles of the Company or the Subsidiaries are in dispute or are in any conflict with the right of any other person or entity and the Company and each of the Subsidiaries (A) has or will have the right (subject to applicable agreements, which agreements provide for use to the extent necessary and desirable for the conduct of its business as currently conducted and as proposed to be conducted) to use, free and clear of all liens, charges, claims, encumbrances, pledges, security interests, defects, restrictions or equities of any kind whatsoever all licenses and rights to the Intangibles used in the conduct of their business as now conducted or proposed to be conducted without infringing upon or otherwise acting adversely to the right or claimed right of any other person and (B) is not or will not become, as the case may be, obligated or in any way liable for any payment by way of royalties, fees or otherwise and to any owner or licensee of, or other claimant to, any Intangibles with respect to the use thereof or in connection with the conduct of their business or otherwise, except in each case as disclosed in the Prospectus and except for any such payments, claims, uses, liens, charges, encumbrances, pledges, security interests, defects, restrictions and equities which would not have a Material Adverse Effect. (vii) The Company and the Subsidiaries have good and marketable title to each of the items of personal property which are reflected in the financial statements referred to in Section 4(a)(ii) or are referred to in the Registration Statement and the Prospectus as being owned by them and valid and enforceable leasehold interests in each of the items of real and personal property which are referred to in the Registration Statement and the Prospectus as being leased by them, in each case free and clear of all liens, encumbrances, claims, security interests and defects, other than those described in the Registration Statement and the Prospectus and those which do not and will not have a Material Adverse Effect. (viii) Except as described in the Registration Statement and the Prospectus, there is no litigation or governmental or other proceeding or investigation before any court or before or by any public body or board pending or, to the Company's knowledge, threatened (and the Company does not know of any reasonable basis therefor) against, or involving the assets, properties or business of, the Company or the Subsidiaries which, if adversely determined, could be reasonably expected to have a Material Adverse Effect. (ix) Subsequent to the respective dates as of which information is given in the Registration Statement and the Prospectus, except as described therein, (A) there has not been any material adverse change in the assets or properties, business, results of operations, prospects or condition (financial or otherwise) of the Company or the Subsidiaries taken as a whole, whether or not arising from transactions in the ordinary course of business; (B) neither the Company nor any of the Subsidiaries has sustained any material loss or interference with its assets, businesses or properties (whether owned, leased or licensed) from fire, explosion, earthquake, flood or other calamity, whether or not covered by insurance, or from any labor dispute or any court or legislative or other governmental action, order or decree; and (C) since the date of the latest balance sheet included in the Registration Statement and the Prospectus, except as reflected therein, neither the Company nor any of the Subsidiaries has (x) issued any securities (other than options or shares issued pursuant to exercise of employee stock options or warrants described in the Registration Statement and Prospectus) or incurred any liability or obligation, direct or contingent, for borrowed money, except such liabilities or obligations incurred in the ordinary course of business, (y) entered into any transaction not in the ordinary course of business or (z) declared or paid any dividend or made any distribution on any shares of its stock or redeemed, purchased or otherwise acquired or agreed to redeem, purchase or otherwise acquire any shares of its stock. (x) There is no material document or contract of a character required to be described in the Registration Statement or Prospectus or to be filed as an exhibit to the Registration Statement which is not described or filed as required. Each agreement listed in the Exhibits to the Registration Statement is in full force and effect or has terminated in accordance with its terms or by amendment and such amendment has been filed as an Exhibit to the Registration Statement or has otherwise been provided to the Representatives and, if not so terminated, is valid and enforceable in all material respects by and against the Company or the Subsidiaries, as the case may be, in accordance with its terms, assuming the due authorization, execution and delivery thereof by each of the other parties thereto, except as the enforceability thereof may be limited by (i) bankruptcy, insolvency, reorganization, moratorium or other similar laws affecting the enforcement of creditors' rights generally and (ii) indemnification provisions under Federal and state securities laws; and that the remedy of specific forms of equitable relief may be subject to equitable defenses and the discretion of the court before which any such action may be brought. Neither the Company, the (xi) Neither the Company nor the Subsidiaries is in violation of any term or provision of their respective Certificate of Incorporation and By-laws, in each case as amended to the date hereof, or other governing documents, or of any franchise, license, permit, judgment, decree, order, statute, rule or regulation, where the consequences of such violation would have a Material Adverse Effect. Except as described in the Registration Statement or Prospectus, neither the Company nor any of the Subsidiaries intends to amend its Certificate of Incorporation and By-laws. (xii) Neither the execution, delivery and performance of this Agreement by the Company or the Subsidiaries nor the consummation of any of the transactions contemplated hereby (including, without limitation, the issuance and sale by the Company of the Shares) will give rise to a right to terminate or accelerate the due date of any payment due under, or conflict with or result in the breach of any term or provision of, or constitute a default (or an event which with notice or lapse of time or both would constitute a default) under, or require any consent or waiver under, or result in the execution or imposition of any lien, charge or encumbrance upon any properties or assets of the Company or any of the Subsidiaries pursuant to the terms of, any indenture, mortgage, deed of trust or other agreement or instrument to which the Company or any of the Subsidiaries is a party or by which it or any of its properties or businesses are bound, or any franchise, license, permit, judgment, decree, order, statute, rule or regulation applicable to the Company or any of the Subsidiaries or violate any provision of the Certificate of Incorporation and By-laws of the Company or any of the Subsidiaries, except for such consents or waivers which have already been obtained and are in full force and effect or as would not have a Material Adverse Effect. No consent, approval, authorization, order, registration or qualification of or with any United States court or governmental agency or body is required for the issue and sale of the Shares or the consummation of the other transactions contemplated by this Agreement, which have not been obtained prior to the date hereof, except the registration under the Securities Act of the Shares, and such consents, approvals, authorizations, registrations or qualifications as may be required under state securities or Blue Sky laws -9- 10 in connection with the purchase and distribution of the Shares by the Underwriters. (xiii) The authorized, issued and outstanding capital stock of the Company and the capital stock reserved or committed for issuance is as set forth under the caption "Capitalization" in the Prospectus. All of the outstanding shares of Stock have been duly and validly issued and are fully paid and nonassessable, none of them was issued in violation of any preemptive or other similar right and, to the Company's knowledge, since 1991, none of them were issued in violation of any Federal or state securities laws. The Shares, when issued and sold pursuant to this Agreement, will be duly and validly issued, fully paid and nonassessable, none of them will be issued in violation of any preemptive or other similar right, any contractual right, including, without limitation, rights of first refusal, and, since 1991, none of them were issued in violation of any (subject to compliance with Section 1(c) hereof), Federal or state securities laws. Except as disclosed in the Registration Statement and the Prospectus, there is no outstanding option, warrant or other right calling for the issuance of, and there is no commitment, plan or arrangement to issue, any shares of Common Stock of the Company or any security convertible into, or exercisable or exchangeable for, such shares of Stock. The shares of Stock conform in all material respects to all statements in relation thereto contained in the Registration Statement and the Prospectus. The Company has a sufficient number of authorized but unissued shares of Stock to enable the Company to issue, without further stockholder action, or approve all the Shares to be sold by the Company. (xiv) As of the date hereof, and as of each Closing Date, all of the outstanding shares of capital stock of the Subsidiaries are duly and validly authorized and issued, are fully paid and nonassessable and are and will be owned by the Company and there is and will be no outstanding option, warrant or other right calling for the issuance of, and no commitment, plan or arrangement to issue any share of capital stock of the Subsidiaries or any security convertible or exchangeable or exercisable for capital stock of the Subsidiaries, except as otherwise described in the Registration Statement and Prospectus. (xv) Except as set forth in the Registration Statement and Prospectus, no holder of any security of the Company has the right to have any security owned by such holder included in the Registration Statement or ~~to demand registration of~~ any ~~security owned by such holder during~~ amendment thereto at the ~~period ending 90 days after the date of this Agreement. Each Selling Stockholder and each director and executive officer of the Company has delivered to~~time

Appears in 1 contract

Sources: Underwriting Agreement (Lca Vision Inc)

Appears in 1 contract

Sources: Underwriting Agreement (Specialty Care Network Inc)

Appears in 1 contract

Sources: Underwriting Agreement (Falcon Drilling Co Inc)

Appears in 1 contract

Sources: Underwriting Agreement (Simulation Sciences Inc)

Representations and Warranties of the Company and the Selling Stockholders. (a) The Company ~~hereby~~ represents and warrants to to, and agrees with, the several Underwriters, as of the date hereof and as of each ~~Underwriter~~ Closing Date (as ~~follows~~defined below), that: (i) ~~On the Effective Date, the Registration Statement complied, and~~ A registration statement on ~~the date of the Prospectus, on the date any post~~Form S-3 (No. 333-~~effective amendment~~ 120549) relating to the ~~Registration Statement shall become effective~~Offered Securities, ~~on the date any supplement or amendment to the Prospectus is~~ including a form of prospectus, has been filed with the Securities and Exchange Commission and on each Closing Date, the Registration Statement and the Prospectus (and any amendment thereof or supplement thereto) will comply, in all material respects, with the applicable provisions of the Securities Act and the Rules; (ii) The documents that are incorporated by reference in the preliminary prospectus and the Prospectus or from which information is so incorporated by reference, when they became effective or were filed with the Commission, as the case may be, complied in all material respects with the requirements of the Securities Act or the Securities Exchange Act of 1934, as amended (the ~~"Exchange Act"), as applicable,~~ “Commission”) and the rules and regulations of the Commission promulgated under the Securities Act and the Exchange Act, as applicable, except as amended and superseded by statements made in the Registration Statement; and any documents so filed and incorporated by reference subsequent to the Effective Date shall, when they are filed with the Commission, conform in all material respects with the requirements of the Securities Act or the Exchange Act, as applicable, and the rules and regulations of the Commission promulgated under the Securities Act and the Exchange Act, as applicable. (iii) The consolidated financial statements of the Company (including all notes and schedules thereto) included in the Registration Statement and Prospectus present fairly the financial position, the results of operations and cash flows and the stockholders' equity and the other information purported to be shown therein of the Company and its subsidiaries, listed on Schedule III hereto (the "Subsidiaries"), at the respective dates and for the respective (iv) KPMG Peat Marwick LLP, whose report is filed with the Commission as a part of the Registration Statement, is and, during the periods covered by its reports, was independent public accountants as required by the Securities Act and the Rules. (v) The Company has been duly incorporated and is a validly existing corporation under the laws of the State of Delaware, and the Subsidiaries have been duly incorporated and are validly existing corporations under the laws of their respective jurisdictions. Other than the Subsidiaries, the Company has no subsidiaries and does not control, directly or indirectly, any corporation, partnership, joint venture, association or other business organization, except as described in the Registration Statement and the Prospectus. Each of the Company and the Subsidiaries is duly qualified and in good standing as a foreign corporation in each jurisdiction in which the character or location of its assets or properties (owned, leased or licensed) or the nature of its business makes such qualification necessary except for such jurisdictions where the failure to so qualify would not have a material adverse effect on the assets or properties, business, results of operations or condition (financial or otherwise) of the Company and the Subsidiaries, taken as a whole (a "Material Adverse Effect"). Except as disclosed in the Registration Statement and the Prospectus, neither the Company nor the Subsidiaries own, lease or license any material asset or property or conduct any material business outside the United States of America. Each of the Company and the Subsidiaries have all requisite corporate power and authority, and all necessary authorizations, approvals, consents, orders, licenses, certificates and permits of and from all governmental or regulatory bodies or any other person or entity, to own, lease and license their assets and properties and conduct their businesses as now being conducted and as described in the Registration Statement and the Prospectus except for such authorizations, approvals, consents, orders, licenses, certificates and permits the failure to so obtain would not have a Material Adverse Effect; no such authorization, approval, consent, order, license, certificate or permit contains a materially burdensome restriction other than as disclosed in the Registration Statement and the Prospectus; and the Company has all such corporate power and authority, and such authorizations, approvals, consents, orders, licenses, certificates and permits to enter into, deliver and perform this Agreement and to issue and (vi) The Company and the Subsidiaries own or possess adequate and enforceable rights to use all patents, trademarks, trademark applications, trade names, service marks, copyrights, copyright applications, licenses, know-how and other similar rights and proprietary knowledge (collectively, "Intangibles") material to or necessary for the conduct of their business as described in the Registration Statement and the Prospectus. Except as disclosed in the Registration Statement and the Prospectus, neither the Company nor any of the Subsidiaries have received any notice of, and to their knowledge are not aware of, any infringement of or conflict with asserted rights of others with respect to any Intangibles which, singly or in the aggregate, if the subject of an unfavorable decision, ruling or finding, could be reasonably expected to have a Material Adverse Effect, and neither the Company nor the Subsidiaries know of any reasonable basis therefor. Except as disclosed in the Registration Statement and the Prospectus, to the knowledge of the Company, no Intangibles of the Company or the Subsidiaries are in dispute or are in any conflict with the right of any other person or entity and the Company and each of the Subsidiaries either (A) has or will have the right (subject to applicable agreements, which agreements provide for use to the extent necessary and desirable for the conduct of its business as currently conducted and as proposed to be conducted) to use, free and clear of all liens, charges, claims, encumbrances, pledges, security interests, defects, restrictions or equities of any kind whatsoever all licenses and rights to the Intangibles used in the conduct of their business as now conducted or proposed to be conducted without infringing upon or otherwise acting adversely to the right or claimed right of any other person and (B) is not or will not become, as the case may be, obligated or in any way liable for any payment by way of royalties, fees or otherwise and to any owner or licensee of, or other claimant to, any Intangibles with respect to the use thereof or in connection with the conduct of their business or otherwise, except in each case as disclosed in the Prospectus and except for any such payments, claims, uses, liens, charges, encumbrances, pledges, security interests, defects, restrictions and equities which would not have a Material Adverse Effect. (vii) The Company and the Subsidiaries have good and marketable title to each of the items of personal property which are reflected in the financial statements referred to in Section 4(a)(ii) or are referred to in the Registration Statement and the Prospectus as being owned by them and valid and enforceable leasehold interests in each of the items of real and personal property which are referred to in the Registration Statement and the Prospectus as being leased by them, in each case free and clear of all liens, encumbrances, claims, security interests and defects, other than those described in the Registration Statement and the Prospectus and those which do not and will not have a Material Adverse Effect. (viii) Except as described in the Registration Statement and the Prospectus, there is no litigation or governmental or other proceeding or investigation before any court or before or by any public body or board pending or, to the Company's knowledge, threatened (and the Company does not know of any reasonable basis therefor) against, or involving the assets, properties or business of, the Company or the Subsidiaries which, if adversely determined, could be reasonably expected to have a Material Adverse Effect. (ix) Subsequent to the respective dates as of which information is given in the Registration Statement and the Prospectus, except as described therein, (A) there has not been any material adverse change in the assets or properties, business, results of operations, prospects or condition (financial or otherwise) of the Company or the Subsidiaries taken as a whole, whether or not arising from transactions in the ordinary course of business; (B) neither the Company nor any of the Subsidiaries has sustained any material loss or interference with its assets, businesses or properties (whether owned, leased or licensed) from fire, explosion, earthquake, flood or other calamity, whether or not covered by insurance, or from any labor dispute or any court or legislative or other governmental action, order or decree; and (C) since the date of the latest balance sheet included in the Registration Statement and the Prospectus, except as reflected therein, neither the Company nor any of the Subsidiaries has (x) issued any securities (other than options or shares issued pursuant to exercise of employee stock options or warrants described in the Registration Statement and Prospectus) or incurred any liability or obligation, direct or contingent, for borrowed money, except such liabilities or obligations incurred in the ordinary course of business, (y) entered into any transaction not in the ordinary course of business or (z) declared or paid any dividend or made any distribution on any shares of its stock or redeemed, purchased or otherwise acquired or agreed to redeem, purchase or otherwise acquire any shares of its stock. (x) There is no material document or contract of a character required to be described in the Registration Statement or Prospectus or to be filed as an exhibit to the Registration Statement which is not described or filed as required. Each agreement listed in the Exhibits to the Registration Statement is in full force and effect or has terminated in accordance with its terms or by amendment and such amendment has been filed as an Exhibit to the Registration Statement or has otherwise been provided to the Representatives and, if not so terminated, is valid and enforceable in all material respects by and against the Company or the Subsidiaries, as the case may be, in accordance with its terms, assuming the due authorization, execution and delivery thereof by each of the other parties thereto, except as the enforceability thereof may be limited by (i) bankruptcy, insolvency, reorganization, moratorium or other similar laws affecting the enforcement of creditors' rights generally and (ii) indemnification provisions under Federal and state securities laws; and that the remedy of specific forms of equitable relief may be subject to equitable defenses and the discretion of the court before which any such action may be brought. Neither the Company, the (xi) Neither the Company nor the Subsidiaries is in violation of any term or provision of their respective Certificate of Incorporation and By-laws, in each case as amended to the date hereof, or other governing documents, or of any franchise, license, permit, judgment, decree, order, statute, rule or regulation, where the consequences of such violation would have a Material Adverse Effect. Except as described in the Registration Statement or Prospectus, neither the Company nor any of the Subsidiaries intends to amend its Certificate of Incorporation and By-laws. (xii) Neither the execution, delivery and performance of this Agreement by the Company or the Subsidiaries nor the consummation of any of the transactions contemplated hereby (including, without limitation, the issuance and sale by the Company of the Shares) will give rise to a right to terminate or accelerate the due date of any payment due under, or conflict with or result in the breach of any term or provision of, or constitute a default (or an event which with notice or lapse of time or both would constitute a default) under, or require any consent or waiver under, or result in the execution or imposition of any lien, charge or encumbrance upon any properties or assets of the Company or any of the Subsidiaries pursuant to the terms of, any indenture, mortgage, deed of trust or other agreement or instrument to which the Company or any of the Subsidiaries is a party or by which it or any of its properties or businesses are bound, or any franchise, license, permit, judgment, decree, order, statute, rule or regulation applicable to the Company or any of the Subsidiaries or violate any provision of the Certificate of Incorporation and By-laws of the Company or any of the Subsidiaries, except for such consents or waivers which have already been obtained and are in full force and effect or as would not have a Material Adverse Effect. No consent, approval, authorization, order, registration or qualification of or with any United States court or governmental agency or body is required for the issue and sale of the Shares or the consummation of the other transactions contemplated by this Agreement, which have not been obtained prior to the date hereof, except the registration effective under the Securities Act of 1933 (the ~~Shares~~“Act”) and is not proposed to be amended or (B) is proposed to be amended by amendment or post-effective amendment. If such registration statement (the “initial registration statement”) has been declared effective, ~~and such consents, approvals, authorizations, registrations or qualifications as~~ either (A) an additional registration statement (the “additional registration statement”) relating to the Offered Securities may ~~be required under state securities or Blue Sky laws -9- 10 in connection~~ have been filed with the ~~purchase and distribution of~~ Commission pursuant to Rule 462(b) (“Rule 462(b)”) under the ~~Shares by the Underwriters. (xiii) The authorized~~Act and, ~~issued and outstanding capital stock of the Company~~ if so filed, has become effective upon filing pursuant to such Rule and the ~~capital stock reserved or committed for issuance is as set forth under the caption "Capitalization" in the Prospectus. All of the outstanding shares of Stock~~ Offered Securities all have been duly ~~and validly issued and are fully paid and nonassessable, none of them was issued in violation of any preemptive or other similar right~~ registered under the Act pursuant to the initial registration statement and, if applicable, the additional registration statement or (B) such an additional registration statement is proposed to be filed with the Commission pursuant to Rule 462(b) and will become effective upon filing pursuant to such Rule and upon such filing the Offered Securities will all have been duly registered under the Act pursuant to the ~~Company's knowledge, since 1991, none of them were issued in violation of any Federal or state securities laws. The Shares, when issued~~ initial registration statement and sold pursuant to this Agreement, will be duly and validly issued, fully paid and nonassessable, none of them will be issued in violation of any preemptive or other similar right, any contractual right, including, without limitation, rights of first refusal, and, since 1991, none of them were issued in violation of any (subject to compliance with Section 1(c) hereof), Federal or state securities laws. Except as disclosed in the Registration Statement and the Prospectus, there is no outstanding option, warrant or other right calling for the issuance of, and there is no commitment, plan or arrangement to issue, any shares of Common Stock of the Company or any security convertible into, or exercisable or exchangeable for, such shares of Stock. The shares of Stock conform in all material respects to all statements in relation thereto contained in the Registration Statement and the Prospectus. The Company has a sufficient number of authorized but unissued shares of Stock to enable the Company to issue, without further stockholder action, or approve all the Shares to be sold by the Company. (xiv) As of the date hereof, and as of each Closing Date, all of the outstanding shares of capital stock of the Subsidiaries are duly and validly authorized and issued, are fully paid and nonassessable and are and will be owned by the Company and there is and will be no outstanding option, warrant or other right calling for the issuance of, and no commitment, plan or arrangement to issue any share of capital stock of the Subsidiaries or any security convertible or exchangeable or exercisable for capital stock of the Subsidiaries, except as otherwise described in the Registration Statement and Prospectus. (xv) Except as set forth in the Registration Statement and Prospectus, no holder of any security of the Company has the right to have any security owned by such holder included in the Registration Statement or to demand registration of any security owned by such holder during the period ending 90 days after the date of this Agreement. Each Selling Stockholder and each director and executive officer of the Company has delivered tosuch

Appears in 1 contract

Sources: Underwriting Agreement (Us Xpress Enterprises Inc)

Appears in 1 contract

Sources: Underwriting Agreement (Pilot Network Services Inc)

Appears in 1 contract

Sources: Underwriting Agreement (Niku Corp)

Representations and Warranties of the Company and the Selling Stockholders. ~~(a) The~~ Each of the Company ~~hereby~~ and the Selling Stockholders, jointly and severally, represents and warrants to each Underwriter ~~as follows~~on the date hereof, and shall be deemed to represent and warrant to each Underwriter on the Closing Date and the Additional Closing Date, that: (ia) ~~On the Effective Date, the~~ The Registration Statement ~~complied,~~ has been declared effective by the Commission under the Act and ~~on the date of the Prospectus, on the date any~~ no post-effective amendment to the Registration Statement ~~shall become effective, on~~ has been filed as of the date ~~any supplement or amendment to the~~ of this Agreement. Each Prepricing Prospectus ~~is filed with the Commission and on each Closing Date,~~ included as part of the Registration Statement as originally filed or as part of any amendment or supplement thereto, or filed pursuant to Rule 424(a) under the Act, complied when so filed in all material respects with the provisions of the Act, except that this representation and ~~the~~ warranty does not apply to statements in or omissions from such Prepricing Prospectus (~~and~~ or any amendment ~~thereof~~ or supplement thereto) ~~will comply~~made in reliance upon and in conformity with information relating to any Underwriter furnished to the Company in writing by or on behalf of any Underwriter through you expressly for use therein. (b) The Commission has not issued any order preventing or suspending the use of any Prepricing Prospectus, ~~in all material respects, with~~ and the ~~applicable provisions~~ Prepricing Prospectus included as part of the ~~Securities Act and~~ Registration Statement declared effective by the Rules; (ii) The documents that are incorporated by reference in the preliminary prospectus and the Prospectus or from which information is so incorporated by reference, when they became effective or were filed with the Commission, Commission complies as ~~the case may be, complied~~ to form in all material respects with the requirements of the ~~Securities Act or~~ Act. The Company has satisfied all conditions to the ~~Securities Exchange Act~~ use of ~~1934~~Form S-3 with respect to the offering of the Shares for sale to the public. The Registration Statement, in the form in which it became effective and also in such form as ~~amended (the "Exchange Act"), as applicable~~it may be when any post-effective amendment thereto shall become effective, and ~~the rules and regulations of the Commission promulgated~~ any registration statement filed pursuant to Rule 462(b) under the ~~Securities Act and the Exchange~~ Act, ~~as applicable, except as amended~~ complies and superseded by statements made in the Registration Statement; and any documents so filed and incorporated by reference subsequent to the Effective Date shall, when they are filed with the Commission, conform will comply in all material respects with the ~~requirements~~ provisions of the ~~Securities Act or the Exchange Act, as applicable, and the rules and regulations of the Commission promulgated under the Securities~~ Act and does not and will not at any such times contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the ~~Exchange Act~~statements therein not misleading, ~~as applicable. (iii) The consolidated financial~~ except that this representation and warranty does not apply to statements ~~of the Company (including all notes and schedules thereto) included~~ in or omissions from the Registration Statement (or any amendment or supplement thereto) made in reliance upon and ~~Prospectus present fairly the financial position, the results of operations and cash flows and the stockholders' equity and the other~~ in conformity with information ~~purported~~ relating to ~~be shown therein of~~ any Underwriter furnished to the Company in writing by or on behalf of any Underwriter through you expressly for use therein. The Prospectus, and ~~its subsidiaries~~any supplement or amendment thereto, ~~listed on Schedule III hereto (the "Subsidiaries"), at the respective dates and for the respective (iv) KPMG Peat Marwick LLP, whose report is~~ when filed with the Commission ~~as a part~~ under Rule 424(b) under the Act, complies and will comply in all material respects with the provisions of the ~~Registration Statement, is and, during the periods covered by its reports, was independent public accountants as required by the Securities~~ Act and the Rules. (v) The Company has been duly incorporated and is a validly existing corporation under the laws of the State of Delaware, and the Subsidiaries have been duly incorporated and are validly existing corporations under the laws of their respective jurisdictions. Other than the Subsidiaries, the Company has no subsidiaries and does not control, directly or indirectly, any corporation, partnership, joint venture, association or other business organization, except as described in the Registration Statement and the Prospectus. Each of the Company and the Subsidiaries is duly qualified and in good standing as a foreign corporation in each jurisdiction in which the character or location of its assets or properties (owned, leased or licensed) or the nature of its business makes such qualification necessary except for such jurisdictions where the failure to so qualify would not have a material adverse effect on the assets or properties, business, results of operations or condition (financial or otherwise) of the Company and the Subsidiaries, taken as a whole (a "Material Adverse Effect"). Except as disclosed in the Registration Statement and the Prospectus, neither the Company nor the Subsidiaries own, lease or license any material asset or property or conduct any material business outside the United States of America. Each of the Company and the Subsidiaries have all requisite corporate power and authority, and all necessary authorizations, approvals, consents, orders, licenses, certificates and permits of and from all governmental or regulatory bodies or any other person or entity, to own, lease and license their assets and properties and conduct their businesses as now being conducted and as described in the Registration Statement and the Prospectus except for such authorizations, approvals, consents, orders, licenses, certificates and permits the failure to so obtain would not have a Material Adverse Effect; no such authorization, approval, consent, order, license, certificate or permit contains a materially burdensome restriction other than as disclosed in the Registration Statement and the Prospectus; and the Company has all such corporate power and authority, and such authorizations, approvals, consents, orders, licenses, certificates and permits to enter into, deliver and perform this Agreement and to issue and (vi) The Company and the Subsidiaries own or possess adequate and enforceable rights to use all patents, trademarks, trademark applications, trade names, service marks, copyrights, copyright applications, licenses, know-how and other similar rights and proprietary knowledge (collectively, "Intangibles") material to or necessary for the conduct of their business as described in the Registration Statement and the Prospectus. Except as disclosed in the Registration Statement and the Prospectus, neither the Company nor any of the Subsidiaries have received any notice of, and to their knowledge are not aware of, any infringement of or conflict with asserted rights of others with respect to any Intangibles which, singly or in the aggregate, if the subject of an unfavorable decision, ruling or finding, could be reasonably expected to have a Material Adverse Effect, and neither the Company nor the Subsidiaries know of any reasonable basis therefor. Except as disclosed in the Registration Statement and the Prospectus, to the knowledge of the Company, no Intangibles of the Company or the Subsidiaries are in dispute or are in any conflict with the right of any other person or entity and the Company and each of the Subsidiaries (A) has or will have the right (subject to applicable agreements, which agreements provide for use to the extent necessary and desirable for the conduct of its business as currently conducted and as proposed to be conducted) to use, free and clear of all liens, charges, claims, encumbrances, pledges, security interests, defects, restrictions or equities of any kind whatsoever all licenses and rights to the Intangibles used in the conduct of their business as now conducted or proposed to be conducted without infringing upon or otherwise acting adversely to the right or claimed right of any other person and (B) is not or will not become, as the case may be, obligated or in any way liable for any payment by way of royalties, fees or otherwise and to any owner or licensee of, or other claimant to, any Intangibles with respect to the use thereof or in connection with the conduct of their business or otherwise, except in each case as disclosed in the Prospectus and except for any such payments, claims, uses, liens, charges, encumbrances, pledges, security interests, defects, restrictions and equities which would not have a Material Adverse Effect. (vii) The Company and the Subsidiaries have good and marketable title to each of the items of personal property which are reflected in the financial statements referred to in Section 4(a)(ii) or are referred to in the Registration Statement and the Prospectus as being owned by them and valid and enforceable leasehold interests in each of the items of real and personal property which are referred to in the Registration Statement and the Prospectus as being leased by them, in each case free and clear of all liens, encumbrances, claims, security interests and defects, other than those described in the Registration Statement and the Prospectus and those which do not and will not ~~have~~ at any such times contain an untrue statement of a ~~Material Adverse Effect~~material fact or omit to state a material fact necessary in order to make the statements, in the light of the circumstances under which they were made, not misleading, except that this representation and warranty does not apply to statements in or omissions from the Prospectus (or any amendment or supplement thereto) made in reliance upon and in conformity with information relating to any Underwriter furnished to the Company in writing by or on behalf of any Underwriter through you expressly for use therein. (~~viii~~c) Except as described in the Registration Statement and the Prospectus, there is no litigation or governmental or other proceeding or investigation before any court or before or by any public body or board pending or, to the Company's knowledge, threatened (and the Company does not know of any reasonable basis therefor) against, or involving the assets, properties or business of, the Company or the Subsidiaries which, if adversely determined, could be reasonably expected to have a Material Adverse Effect. (ix) Subsequent to the respective dates as of which information is given in the Registration Statement and the Prospectus, except as described therein, (A) there has not been any material adverse change in the assets or properties, business, results of operations, prospects or condition (financial or otherwise) The capitalization of the Company or the Subsidiaries taken as a whole, whether or not arising from transactions in the ordinary course of business; (B) neither the Company nor any of the Subsidiaries has sustained any material loss or interference with its assets, businesses or properties (whether owned, leased or licensed) from fire, explosion, earthquake, flood or other calamity, whether or not covered by insurance, or from any labor dispute or any court or legislative or other governmental action, order or decree; and (C) since the date of the latest balance sheet included in the Registration Statement and the Prospectus, except as reflected therein, neither the Company nor any of the Subsidiaries has (x) issued any securities (other than options or shares issued pursuant to exercise of employee stock options or warrants described in the Registration Statement and Prospectus) or incurred any liability or obligation, direct or contingent, for borrowed money, except such liabilities or obligations incurred in the ordinary course of business, (y) entered into any transaction not in the ordinary course of business or (z) declared or paid any dividend or made any distribution on any shares of its stock or redeemed, purchased or otherwise acquired or agreed to redeem, purchase or otherwise acquire any shares of its stock. (x) There is no material document or contract of a character required to be described in the Registration Statement or Prospectus or to be filed as an exhibit to the Registration Statement which is not described or filed as required. Each agreement listed in the Exhibits to the Registration Statement is in full force and effect or has terminated in accordance with its terms or by amendment and such amendment has been filed as an Exhibit to the Registration Statement or has otherwise been provided to the Representatives and, if not so terminated, is valid and enforceable in all material respects by and against the Company or the Subsidiaries, as the case may be, in accordance with its terms, assuming the due authorization, execution and delivery thereof by each of the other parties thereto, except as the enforceability thereof may be limited by (i) bankruptcy, insolvency, reorganization, moratorium or other similar laws affecting the enforcement of creditors' rights generally and (ii) indemnification provisions under Federal and state securities laws; and that the remedy of specific forms of equitable relief may be subject to equitable defenses and the discretion of the court before which any such action may be brought. Neither the Company, the (xi) Neither the Company nor the Subsidiaries is in violation of any term or provision of their respective Certificate of Incorporation and By-laws, in each case as amended to the date hereof, or other governing documents, or of any franchise, license, permit, judgment, decree, order, statute, rule or regulation, where the consequences of such violation would have a Material Adverse Effect. Except as described in the Registration Statement or Prospectus, neither the Company nor any of the Subsidiaries intends to amend its Certificate of Incorporation and By-laws. (xii) Neither the execution, delivery and performance of this Agreement by the Company or the Subsidiaries nor the consummation of any of the transactions contemplated hereby (including, without limitation, the issuance and sale by the Company of the Shares) will give rise to a right to terminate or accelerate the due date of any payment due under, or conflict with or result in the breach of any term or provision of, or constitute a default (or an event which with notice or lapse of time or both would constitute a default) under, or require any consent or waiver under, or result in the execution or imposition of any lien, charge or encumbrance upon any properties or assets of the Company or any of the Subsidiaries pursuant to the terms of, any indenture, mortgage, deed of trust or other agreement or instrument to which the Company or any of the Subsidiaries is a party or by which it or any of its properties or businesses are bound, or any franchise, license, permit, judgment, decree, order, statute, rule or regulation applicable to the Company or any of the Subsidiaries or violate any provision of the Certificate of Incorporation and By-laws of the Company or any of the Subsidiaries, except for such consents or waivers which have already been obtained and are in full force and effect or as would not have a Material Adverse Effect. No consent, approval, authorization, order, registration or qualification of or with any United States court or governmental agency or body is required for the issue and sale of the Shares or the consummation of the other transactions contemplated by this Agreement, which have not been obtained prior to the date hereof, except the registration under the Securities Act of the Shares, and such consents, approvals, authorizations, registrations or qualifications as may be required under state securities or Blue Sky laws -9- 10 in connection with the purchase and distribution of the Shares by the Underwriters. (xiii) The authorized, issued and outstanding capital stock of the Company and the capital stock reserved or committed for issuance is as set forth ~~under the caption "Capitalization"~~ in the ~~Prospectus~~Prospectus as of the date set forth therein. All of the outstanding shares of Common Stock (including without limitation the Stockholder Firm Shares) and other securities of the Company have been duly authorized and validly issued and are fully paid and nonassessable, none of them was issued in violation of any preemptive or other similar right and, to the Company's knowledge, since 1991, none of them were issued in violation of any Federal or state securities laws. The Shares, when issued and sold pursuant to this Agreement, will be duly and validly issued, fully paid and nonassessable, none of them will be issued in violation of any preemptive or other similar right, any contractual right, including, without limitation, rights of first refusal, and, since 1991, none of them were issued in violation of any (subject to compliance with Section 1(c) hereof), Federal or state securities laws. Except as disclosed in the Registration Statement and the Prospectus, there is no outstanding option, warrant or other right calling for the issuance of, and there is no commitment, plan or arrangement to issue, any shares of Common Stock of the Company or any security convertible into, or exercisable or exchangeable for, such shares of Stock. The shares of Stock conform in all material respects to all statements in relation thereto contained in the Registration Statement and the Prospectus. The Company has a sufficient number of authorized but unissued shares of Stock to enable the Company to issue, without further stockholder action, or approve all the Shares to be sold by the Company. (xiv) As of the date hereof, and as of each Closing Date, all of the outstanding shares of capital stock of the Subsidiaries are duly and validly authorized and issued, are fully paid and nonassessable and are free of any preemptive or similar rights; all offers and ~~will~~ sales of the capital stock, warrants, options and debt or other securities or the Company and the Subsidiaries prior to the date hereof (including without limitation the Stockholder Firm Shares) were made in compliance with the Act and all other applicable state, federal and foreign laws or regulations, or any actions under the Act or any state, federal or foreign laws or regulations in respect of any such offers or sales are effectively barred by effective waivers or statutes of limitation; the Shares to be ~~owned~~ issued and sold to the Underwriters by the Company hereunder have been duly authorized and, when issued and ~~there is and~~ delivered to the Underwriters against payment therefor in accordance with the terms hereof, will be ~~no outstanding option~~validly issued, ~~warrant~~ fully paid and nonassessable and free of any preemptive or ~~other right calling for~~ similar rights; the ~~issuance of, and no commitment, plan or arrangement to issue any share of capital stock~~ securities of the ~~Subsidiaries or any security convertible or exchangeable or exercisable for capital stock of~~ Company conform to the ~~Subsidiaries, except as otherwise described~~ description thereof in the Registration Statement and ~~Prospectus~~the Prospectus (or any amendment or supplement thereto); the form of certificate for the Shares conforms to the corporate law of the State of Utah; and the delivery of certificates for the Shares to be issued and sold by the Company pursuant to the terms of this Agreement and payment for such Shares will pass valid marketable title to such shares, free and clear of any voting trust arrangements, liens, encumbrances, equities, claims or defects in title to the several Underwriters purchasing such Shares in good faith and without notice of any lien, claim or encumbrance. (xvd) ~~Except as set forth~~ The descriptions in the Registration Statement and ~~Prospectus, no holder~~ the Prospectus of any security of the Company has the right to have any security owned by such holder included in the Registration Statement or to demand registration of any security owned by such holder during the period ending 90 days after the date of this Agreement. Each Selling Stockholder and each director and executive officer of the Company has delivered tostatutes,

Appears in 1 contract

Sources: Underwriting Agreement (Skywest Inc)

Appears in 1 contract

Sources: Underwriting Agreement (Province Healthcare Co)

Representations and Warranties of the Company and the Selling Stockholders. (a) The Company ~~hereby~~ represents and warrants ~~to each Underwriter as follows~~to, and agrees with, the several Underwriters that: (i) ~~On the Effective Date, the Registration Statement complied, and on the date of the Prospectus, on the date any post~~A registration statement (No. 333-~~effective amendment~~ 126499) relating to the ~~Registration Statement shall become effective~~Offered Securities, ~~on the date any supplement or amendment to the Prospectus is~~ including a form of prospectus, has been filed with the Securities and Exchange Commission (“Commission”) and on each Closing Date, the Registration Statement and the Prospectus (and any amendment thereof or supplement thereto) will comply, in all material respects, with the applicable provisions of the Securities Act and the Rules; (ii) The documents that are incorporated by reference in the preliminary prospectus and the Prospectus or from which information is so incorporated by reference, when they became effective or were filed with the Commission, as the case may be, complied in all material respects with the requirements of the Securities Act or the Securities Exchange Act of 1934, as amended (the "Exchange Act"), as applicable, and the rules and regulations of the Commission promulgated under the Securities Act and the Exchange Act, as applicable, except as amended and superseded by statements made in the Registration Statement; and any documents so filed and incorporated by reference subsequent to the Effective Date shall, when they are filed with the Commission, conform in all material respects with the requirements of the Securities Act or the Exchange Act, as applicable, and the rules and regulations of the Commission promulgated under the Securities Act and the Exchange Act, as applicable. (iii) The consolidated financial statements of the Company (including all notes and schedules thereto) included in the Registration Statement and Prospectus present fairly the financial position, the results of operations and cash flows and the stockholders' equity and the other information purported to be shown therein of the Company and its subsidiaries, listed on Schedule III hereto (the "Subsidiaries"), at the respective dates and for the respective (iv) KPMG Peat Marwick LLP, whose report is filed with the Commission as a part of the Registration Statement, is and, during the periods covered by its reports, was independent public accountants as required by the Securities Act and the Rules. (v) The Company has been duly incorporated and is a validly existing corporation under the laws of the State of Delaware, and the Subsidiaries have been duly incorporated and are validly existing corporations under the laws of their respective jurisdictions. Other than the Subsidiaries, the Company has no subsidiaries and does not control, directly or indirectly, any corporation, partnership, joint venture, association or other business organization, except as described in the Registration Statement and the Prospectus. Each of the Company and the Subsidiaries is duly qualified and in good standing as a foreign corporation in each jurisdiction in which the character or location of its assets or properties (owned, leased or licensed) or the nature of its business makes such qualification necessary except for such jurisdictions where the failure to so qualify would not have a material adverse effect on the assets or properties, business, results of operations or condition (financial or otherwise) of the Company and the Subsidiaries, taken as a whole (a "Material Adverse Effect"). Except as disclosed in the Registration Statement and the Prospectus, neither the Company nor the Subsidiaries own, lease or license any material asset or property or conduct any material business outside the United States of America. Each of the Company and the Subsidiaries have all requisite corporate power and authority, and all necessary authorizations, approvals, consents, orders, licenses, certificates and permits of and from all governmental or regulatory bodies or any other person or entity, to own, lease and license their assets and properties and conduct their businesses as now being conducted and as described in the Registration Statement and the Prospectus except for such authorizations, approvals, consents, orders, licenses, certificates and permits the failure to so obtain would not have a Material Adverse Effect; no such authorization, approval, consent, order, license, certificate or permit contains a materially burdensome restriction other than as disclosed in the Registration Statement and the Prospectus; and the Company has all such corporate power and authority, and such authorizations, approvals, consents, orders, licenses, certificates and permits to enter into, deliver and perform this Agreement and to issue and (vi) The Company and the Subsidiaries own or possess adequate and enforceable rights to use all patents, trademarks, trademark applications, trade names, service marks, copyrights, copyright applications, licenses, know-how and other similar rights and proprietary knowledge (collectively, "Intangibles") material to or necessary for the conduct of their business as described in the Registration Statement and the Prospectus. Except as disclosed in the Registration Statement and the Prospectus, neither the Company nor any of the Subsidiaries have received any notice of, and to their knowledge are not aware of, any infringement of or conflict with asserted rights of others with respect to any Intangibles which, singly or in the aggregate, if the subject of an unfavorable decision, ruling or finding, could be reasonably expected to have a Material Adverse Effect, and neither the Company nor the Subsidiaries know of any reasonable basis therefor. Except as disclosed in the Registration Statement and the Prospectus, to the knowledge of the Company, no Intangibles of the Company or the Subsidiaries are in dispute or are in any conflict with the right of any other person or entity and the Company and each of the Subsidiaries either (A) has or will have the right (subject to applicable agreements, which agreements provide for use to the extent necessary and desirable for the conduct of its business as currently conducted and as proposed to be conducted) to use, free and clear of all liens, charges, claims, encumbrances, pledges, security interests, defects, restrictions or equities of any kind whatsoever all licenses and rights to the Intangibles used in the conduct of their business as now conducted or proposed to be conducted without infringing upon or otherwise acting adversely to the right or claimed right of any other person and (B) is not or will not become, as the case may be, obligated or in any way liable for any payment by way of royalties, fees or otherwise and to any owner or licensee of, or other claimant to, any Intangibles with respect to the use thereof or in connection with the conduct of their business or otherwise, except in each case as disclosed in the Prospectus and except for any such payments, claims, uses, liens, charges, encumbrances, pledges, security interests, defects, restrictions and equities which would not have a Material Adverse Effect. (vii) The Company and the Subsidiaries have good and marketable title to each of the items of personal property which are reflected in the financial statements referred to in Section 4(a)(ii) or are referred to in the Registration Statement and the Prospectus as being owned by them and valid and enforceable leasehold interests in each of the items of real and personal property which are referred to in the Registration Statement and the Prospectus as being leased by them, in each case free and clear of all liens, encumbrances, claims, security interests and defects, other than those described in the Registration Statement and the Prospectus and those which do not and will not have a Material Adverse Effect. (viii) Except as described in the Registration Statement and the Prospectus, there is no litigation or governmental or other proceeding or investigation before any court or before or by any public body or board pending or, to the Company's knowledge, threatened (and the Company does not know of any reasonable basis therefor) against, or involving the assets, properties or business of, the Company or the Subsidiaries which, if adversely determined, could be reasonably expected to have a Material Adverse Effect. (ix) Subsequent to the respective dates as of which information is given in the Registration Statement and the Prospectus, except as described therein, (A) there has not been any material adverse change in the assets or properties, business, results of operations, prospects or condition (financial or otherwise) of the Company or the Subsidiaries taken as a whole, whether or not arising from transactions in the ordinary course of business; (B) neither the Company nor any of the Subsidiaries has sustained any material loss or interference with its assets, businesses or properties (whether owned, leased or licensed) from fire, explosion, earthquake, flood or other calamity, whether or not covered by insurance, or from any labor dispute or any court or legislative or other governmental action, order or decree; and (C) since the date of the latest balance sheet included in the Registration Statement and the Prospectus, except as reflected therein, neither the Company nor any of the Subsidiaries has (x) issued any securities (other than options or shares issued pursuant to exercise of employee stock options or warrants described in the Registration Statement and Prospectus) or incurred any liability or obligation, direct or contingent, for borrowed money, except such liabilities or obligations incurred in the ordinary course of business, (y) entered into any transaction not in the ordinary course of business or (z) declared or paid any dividend or made any distribution on any shares of its stock or redeemed, purchased or otherwise acquired or agreed to redeem, purchase or otherwise acquire any shares of its stock. (x) There is no material document or contract of a character required to be described in the Registration Statement or Prospectus or to be filed as an exhibit to the Registration Statement which is not described or filed as required. Each agreement listed in the Exhibits to the Registration Statement is in full force and effect or has terminated in accordance with its terms or by amendment and such amendment has been filed as an Exhibit to the Registration Statement or has otherwise been provided to the Representatives and, if not so terminated, is valid and enforceable in all material respects by and against the Company or the Subsidiaries, as the case may be, in accordance with its terms, assuming the due authorization, execution and delivery thereof by each of the other parties thereto, except as the enforceability thereof may be limited by (i) bankruptcy, insolvency, reorganization, moratorium or other similar laws affecting the enforcement of creditors' rights generally and (ii) indemnification provisions under Federal and state securities laws; and that the remedy of specific forms of equitable relief may be subject to equitable defenses and the discretion of the court before which any such action may be brought. Neither the Company, the (xi) Neither the Company nor the Subsidiaries is in violation of any term or provision of their respective Certificate of Incorporation and By-laws, in each case as amended to the date hereof, or other governing documents, or of any franchise, license, permit, judgment, decree, order, statute, rule or regulation, where the consequences of such violation would have a Material Adverse Effect. Except as described in the Registration Statement or Prospectus, neither the Company nor any of the Subsidiaries intends to amend its Certificate of Incorporation and By-laws. (xii) Neither the execution, delivery and performance of this Agreement by the Company or the Subsidiaries nor the consummation of any of the transactions contemplated hereby (including, without limitation, the issuance and sale by the Company of the Shares) will give rise to a right to terminate or accelerate the due date of any payment due under, or conflict with or result in the breach of any term or provision of, or constitute a default (or an event which with notice or lapse of time or both would constitute a default) under, or require any consent or waiver under, or result in the execution or imposition of any lien, charge or encumbrance upon any properties or assets of the Company or any of the Subsidiaries pursuant to the terms of, any indenture, mortgage, deed of trust or other agreement or instrument to which the Company or any of the Subsidiaries is a party or by which it or any of its properties or businesses are bound, or any franchise, license, permit, judgment, decree, order, statute, rule or regulation applicable to the Company or any of the Subsidiaries or violate any provision of the Certificate of Incorporation and By-laws of the Company or any of the Subsidiaries, except for such consents or waivers which have already been obtained and are in full force and effect or as would not have a Material Adverse Effect. No consent, approval, authorization, order, registration or qualification of or with any United States court or governmental agency or body is required for the issue and sale of the Shares or the consummation of the other transactions contemplated by this Agreement, which have not been obtained prior to the date hereof, except the registration effective under the Securities Act of 1933 (“Act”) and is not proposed to be amended or (B) is proposed to be amended by amendment or post-effective amendment. If such registration statement (the ~~Shares~~“initial registration statement”) has been declared effective, ~~and such consents, approvals, authorizations, registrations or qualifications as~~ either (A) an additional registration statement (the “additional registration statement”) relating to the Offered Securities may ~~be required under state securities or Blue Sky laws -9- 10 in connection~~ have been filed with the ~~purchase and distribution of~~ Commission pursuant to Rule 462(b) (“Rule 462(b)”) under the ~~Shares by the Underwriters. (xiii) The authorized~~Act and, ~~issued and outstanding capital stock of the Company~~ if so filed, has become effective upon filing pursuant to such Rule and the ~~capital stock reserved or committed for issuance is as set forth under the caption "Capitalization" in the Prospectus. All of the outstanding shares of Stock~~ Offered Securities all have been duly ~~and validly issued and are fully paid and nonassessable, none of them was issued in violation of any preemptive or other similar right~~ registered under the Act pursuant to the initial registration statement and, if applicable, the additional registration statement or (B) such an additional registration statement is proposed to be filed with the Commission pursuant to Rule 462(b) and will become effective upon filing pursuant to such Rule and upon such filing the Offered Securities will all have been duly registered under the Act pursuant to the ~~Company's knowledge, since 1991, none of them were issued in violation of any Federal or state securities laws~~initial registration statement and such additional registration statement. The Shares, when issued and sold pursuant to this Agreement, will be duly and validly issued, fully paid and nonassessable, none of them will be issued in violation of any preemptive or other similar right, any contractual right, including, without limitation, rights of first refusal, and, since 1991, none of them were issued in violation of any (subject to compliance with Section 1(c) hereof), Federal or state securities laws. Except as disclosed in the Registration Statement and the Prospectus, there is no outstanding option, warrant or other right calling for the issuance of, and there is no commitment, plan or arrangement to issue, any shares of Common Stock of If the Company does not propose to amend the initial registration statement or any security convertible into, or exercisable or exchangeable for, such shares of Stock. The shares of Stock conform in all material respects to all statements in relation thereto contained in the Registration Statement and the Prospectus. The Company if an additional registration statement has a sufficient number of authorized but unissued shares of Stock to enable the Company to issue, without further stockholder action, or approve all the Shares to be sold by the Company. (xiv) As of the date hereof, and as of each Closing Date, all of the outstanding shares of capital stock of the Subsidiaries are duly and validly authorized and issued, are fully paid and nonassessable and are and will be owned by the Company and there is and will be no outstanding option, warrant or other right calling for the issuance of, and no commitment, plan or arrangement to issue any share of capital stock of the Subsidiaries or any security convertible or exchangeable or exercisable for capital stock of the Subsidiaries, except as otherwise described in the Registration Statement and Prospectus. (xv) Except as set forth in the Registration Statement and Prospectus, no holder of any security of the Company has the right to have any security owned by such holder included in the Registration Statement or to demand registration of any security owned by such holder during the period ending 90 days after the date of this Agreement. Each Selling Stockholder and each director and executive officer of the Company has delivered tobeen filed

Appears in 1 contract

Sources: Underwriting Agreement (Golden Energy Marine Corp.)

Representations and Warranties of the Company and the Selling Stockholders. (a) The Company ~~hereby~~ represents and warrants ~~to each Underwriter~~ to, and agrees with, the Underwriters as follows: (i) On No order preventing or suspending the ~~Effective Date~~use of any Preliminary Prospectus has been issued by the Commission and each Preliminary Prospectus, at the time of filing thereof, did not contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading; except that the foregoing shall not apply to statements in or omissions from any Preliminary Prospectus in reliance upon, and in conformity with, written information furnished to the Company by you, specifically for use in the preparation thereof. (ii) As of the time the Registration Statement ~~complied, and on the date of the Prospectus, on the date~~ (or any post-effective amendment thereto) is or was declared effective by the Commission, upon the filing or first delivery to the ~~Registration Statement shall become effective, on~~ Underwriters of the ~~date~~ Prospectus (or any supplement ~~or amendment~~ to the ~~Prospectus is filed with~~ Prospectus) and at the ~~Commission~~ First Closing Date and ~~on each~~ Second Closing ~~Date~~Date (as hereinafter defined), (A) the Registration Statement and ~~the~~ Prospectus ~~(and any amendment thereof~~ will conform or ~~supplement thereto) will comply,~~ conformed in all material ~~respects, with~~ respects to the ~~applicable provisions~~ requirements of the ~~Securities~~ Act and the ~~Rules;~~ Rules and Regulations, (iiB) ~~The documents~~ the Registration Statement will not or did not include an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading, and (C) the Prospectus will not or did not include an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances in which they are or were made, not misleading; except that ~~are incorporated~~ the foregoing shall not apply to statements in or omissions from any such document in reliance upon, and in conformity with, written information furnished to the Company by ~~reference~~ you, specifically for use in the ~~preliminary prospectus and~~ preparation thereof. If the ~~Prospectus or from which information is so incorporated~~ Registration Statement has been declared effective by ~~reference, when they became effective or were filed with~~ the Commission, as no stop order suspending the ~~case may be~~effectiveness of the Registration Statement has been issued, ~~complied~~ and no proceeding for that purpose has been initiated or, to the Company's knowledge, threatened by the Commission. (iii) The financial statements of the Company, together with the notes thereto, set forth in the Registration Statement and Prospectus comply in all material respects with the requirements of the ~~Securities~~ Act or and fairly present the ~~Securities Exchange Act~~ financial condition of ~~1934,~~ the Company as ~~amended (~~of the ~~"Exchange Act"), as applicable,~~ dates indicated and the ~~rules~~ results of operations and ~~regulations of~~ changes in stockholders equity and cash flows for the ~~Commission promulgated under~~ periods therein specified in conformity with generally accepted accounting principles as in effect in the ~~Securities Act~~ United States consistently applied throughout the periods involved (except as otherwise stated therein); and the ~~Exchange Act, as applicable, except as amended and superseded by statements made~~ supporting schedules included in the Registration ~~Statement; and any documents so filed and incorporated by reference subsequent~~ Statement present fairly the information required to be stated therein. No other financial statements or schedules are required to be included in the Registration Statement or Prospectus. Arth▇▇ ▇▇▇e▇▇▇▇ ▇▇▇, who have expressed their opinion with respect to the ~~Effective Date shall, when they are~~ financial statements and schedules filed ~~with the Commission, conform in all material respects with the requirements~~ as a part of the ~~Securities Act or the Exchange Act, as applicable,~~ Registration Statement and the rules and regulations of the Commission promulgated under the Securities Act and the Exchange Act, as applicable. (iii) The consolidated financial statements of the Company (including all notes and schedules thereto) included in the Registration Statement and ~~Prospectus present fairly the financial position~~Prospectus, the results of operations and cash flows and the stockholders' equity and the other information purported to be shown therein of the Company and its subsidiaries, listed on Schedule III hereto (the "Subsidiaries"), at the respective dates and for the respective (iv) KPMG Peat Marwick LLP, whose report is filed with the Commission as a part of the Registration Statement, is and, during the periods covered by its reports, was are independent public accountants as required by the ~~Securities~~ Act and the ~~Rules~~Rules and Regulations. (viv) ~~The~~ Each of the Company and its subsidiaries has been duly ~~incorporated~~ organized and is a validly existing as a corporation in good standing under the laws of ~~the State~~ its jurisdiction of Delaware, and the Subsidiaries have been duly incorporated and are validly existing corporations under the laws of their respective jurisdictions. Other than the Subsidiaries, the Company has no subsidiaries and does not control, directly or indirectly, any corporation, partnership, joint venture, association or other business organization, except as described in the Registration Statement and the Prospectusincorporation. Each of the Company and ~~the Subsidiaries is duly qualified and in good standing as a foreign corporation in each jurisdiction in which the character or location of~~ its assets or properties (owned, leased or licensed) or the nature of its business makes such qualification necessary except for such jurisdictions where the failure to so qualify would not have a material adverse effect on the assets or properties, business, results of operations or condition (financial or otherwise) of the Company and the Subsidiaries, taken as a whole (a "Material Adverse Effect"). Except as disclosed in the Registration Statement and the Prospectus, neither the Company nor the Subsidiaries own, lease or license any material asset or property or conduct any material business outside the United States of America. Each of the Company and the Subsidiaries have all requisite subsidiaries has full corporate power and ~~authority, and all necessary authorizations, approvals, consents, orders, licenses, certificates and permits of and from all governmental or regulatory bodies or any other person or entity,~~ authority to own, lease and ~~license their assets and~~ operate its properties and conduct ~~their businesses~~ its business as ~~now~~ currently being ~~conducted~~ carried on and as described in the Registration Statement and the Prospectus except for such authorizations, approvals, consents, orders, licenses, certificates and permits the failure to so obtain would not have a Material Adverse Effect; no such authorization, approval, consent, order, license, certificate or permit contains a materially burdensome restriction other than as disclosed in the Registration Statement and the Prospectus~~; and the Company has all such corporate power and authority~~, and ~~such authorizations, approvals, consents, orders, licenses, certificates and permits~~ is duly qualified to enter into, deliver and perform this Agreement and to issue and (vi) The Company and the Subsidiaries own or possess adequate and enforceable rights to use all patents, trademarks, trademark applications, trade names, service marks, copyrights, copyright applications, licenses, know-how and other similar rights and proprietary knowledge (collectively, "Intangibles") material to or necessary for the conduct of their do business as ~~described~~ a foreign corporation in ~~the Registration Statement~~ good standing in each domestic and ~~the Prospectus. Except as disclosed~~ foreign jurisdiction in ~~the Registration Statement and the Prospectus, neither the Company nor any of the Subsidiaries have received any notice of, and to their knowledge are not aware of, any infringement of~~ which it owns or ~~conflict with asserted rights of others with respect to any Intangibles which, singly~~ leases real property or in the aggregate, if the subject of an unfavorable decision, ruling or finding, could be reasonably expected to have a Material Adverse Effect, and neither the Company nor the Subsidiaries know of any reasonable basis therefor. Except as disclosed in the Registration Statement and the Prospectus, to the knowledge of the Company, no Intangibles of the Company or the Subsidiaries are in dispute or are in any conflict with the right of any other person or entity and the Company and each of the Subsidiaries (A) has or will have the right (subject to applicable agreements, which ~~agreements provide for use to the extent necessary and desirable for~~ the conduct of its business ~~as currently conducted~~ makes such qualification necessary and ~~as proposed~~ in which the failure to be conducted) to use, free and clear of all liens, charges, claims, encumbrances, pledges, security interests, defects, restrictions or equities of any kind whatsoever all licenses and rights to the Intangibles used in the conduct of their business as now conducted or proposed to be conducted without infringing upon or otherwise acting adversely to the right or claimed right of any other person and (B) is not or will not become, as the case may be, obligated or in any way liable for any payment by way of royalties, fees or otherwise and to any owner or licensee of, or other claimant to, any Intangibles with respect to the use thereof or in connection with the conduct of their business or otherwise, except in each case as disclosed in the Prospectus and except for any such payments, claims, uses, liens, charges, encumbrances, pledges, security interests, defects, restrictions and equities which so qualify would ~~not~~ have a ~~Material Adverse Effect~~material adverse effect upon the business, financial condition or properties of the Company and its subsidiaries, taken as a whole. (vii) The Company and the Subsidiaries have good and marketable title to each of the items of personal property which are reflected in the financial statements referred to in Section 4(a)(ii) or are referred to in the Registration Statement and the Prospectus as being owned by them and valid and enforceable leasehold interests in each of the items of real and personal property which are referred to in the Registration Statement and the Prospectus as being leased by them, in each case free and clear of all liens, encumbrances, claims, security interests and defects, other than those described in the Registration Statement and the Prospectus and those which do not and will not have a Material Adverse Effect. (viiiv) Except as ~~described~~ contemplated in ~~the Registration Statement and~~ the Prospectus, there is no litigation or governmental or other proceeding or investigation before any court or before or by any public body or board pending or, to the Company's knowledge, threatened (and the Company does not know of any reasonable basis therefor) against, or involving the assets, properties or business of, the Company or the Subsidiaries which, if adversely determined, could be reasonably expected to have a Material Adverse Effect. (ix) Subsequent subsequent to the respective dates as of which information is given in the Registration Statement and the Prospectus, neither the Company nor any of its subsidiaries other than in the ordinary course has incurred any material liabilities or obligations, direct or contingent, or entered into any material transactions, or declared or paid any dividends or made any distribution of any kind with respect to its capital stock, except as ~~described therein, (A)~~ contemplated in the Prospectus and Registration Statement and there has not other than in the ordinary course been any change in the capital stock (other than a change in the number of outstanding shares of Common Stock due to the issuance of shares upon the exercise of outstanding options or warrants), or any material change in the short-term or long-term debt, or any issuance of options, warrants, convertible securities or other rights to purchase the capital stock, of the Company or any of its subsidiaries, or any material adverse change, or any development reasonably likely to involve a prospective material adverse change, in the general affairs, condition (financial or otherwise), business, key personnel, property, prospects, net worth or results of operations of the Company and its subsidiaries, taken as a whole. (vi) Except as set forth in the Prospectus, there is not pending or, to the knowledge of the Company, threatened or contemplated, any action, suit or proceeding to which the Company or any of its subsidiaries or, to the best knowledge of the Company after due inquiry, any of its officers, is a party before or by any domestic or foreign court or governmental agency, authority or body, or any arbitrator, which might result in any material adverse change in the ~~assets or properties, business, results of operations, prospects or~~ condition (financial or otherwise) ), business, prospects, net worth, or results of operations of the Company ~~or the Subsidiaries~~ and its subsidiaries, taken as a whole, ~~whether~~ or ~~not arising from transactions in~~ prevent the ~~ordinary course of business; (B) neither the Company nor any~~ consummation of the Subsidiaries has sustained any material loss or interference with its assets, businesses or properties (whether owned, leased or licensed) from fire, explosion, earthquake, flood or other calamity, whether or not covered by insurance, or from any labor dispute or any court or legislative or other governmental action, order or decree; and (C) since the date of the latest balance sheet included in the Registration Statement and the Prospectus, except as reflected therein, neither the Company nor any of the Subsidiaries has (x) issued any securities (other than options or shares issued pursuant to exercise of employee stock options or warrants described in the Registration Statement and Prospectus) or incurred any liability or obligation, direct or contingent, for borrowed money, except such liabilities or obligations incurred in the ordinary course of business, (y) entered into any transaction not in the ordinary course of business or (z) declared or paid any dividend or made any distribution on any shares of its stock or redeemed, purchased or otherwise acquired or agreed to redeem, purchase or otherwise acquire any shares of its stocktransactions contemplated hereby. (xvii) There is are no ~~material document~~ contracts or ~~contract~~ documents of ~~a character~~ the Company or any of its subsidiaries that are required to be described in the ~~Registration Statement or~~ Prospectus or ~~to be~~ filed as ~~an exhibit~~ exhibits to the Registration Statement ~~which is not described or filed as required. Each agreement listed in~~ by the ~~Exhibits to the Registration Statement is in full force and effect or has terminated in accordance with its terms~~ Act or by ~~amendment~~ the Rules and ~~such amendment has~~ Regulations that have not been ~~filed as an Exhibit to the Registration Statement or has otherwise been provided to the Representatives and, if not so terminated, is valid and enforceable~~ accurately described in all material respects or so filed. (viii) This Agreement has been duly authorized, executed and delivered by the Company, and constitutes a valid, legal and binding obligation of the Company, enforceable against the Company ~~or the Subsidiaries, as the case may be,~~ in accordance with its terms, ~~assuming the due authorization, execution and delivery thereof by each of the other parties thereto,~~ except as ~~the enforceability thereof~~ rights to indemnity and contribution hereunder may be limited by ~~(i)~~ federal or state securities laws and except as such enforceability against the Company may be limited by bankruptcy, insolvency, ~~reorganization, moratorium~~ reorganization or ~~other~~ similar laws affecting the ~~enforcement~~ rights of ~~creditors' rights~~ creditors generally and ~~(ii) indemnification provisions under Federal and state securities laws; and that the remedy of specific forms of equitable relief may be~~ subject to ~~equitable defenses and the discretion~~ general principles of ~~the court before which any such action may be brought~~equity. Neither the Company, the (xi) Neither the Company nor the Subsidiaries is in violation of any term or provision of their respective Certificate of Incorporation and By-laws, in each case as amended to the date hereof, or other governing documents, or of any franchise, license, permit, judgment, decree, order, statute, rule or regulation, where the consequences of such violation would have a Material Adverse Effect. Except as described in the Registration Statement or Prospectus, neither the Company nor any of the Subsidiaries intends to amend its Certificate of Incorporation and By-laws. (xii) Neither the The execution, delivery and performance of this Agreement and the consummation of the transactions herein contemplated in each case by the Company will not result in a breach or ~~the Subsidiaries nor the consummation~~ violation of any of the ~~transactions contemplated hereby (including, without limitation, the issuance~~ terms and ~~sale by the Company of the Shares) will give rise to a right to terminate or accelerate the due date of any payment due under, or conflict with or result in the breach of any term or provision~~ provisions of, or constitute a default ~~(or an event which with notice or lapse of time or both would constitute a default)~~ under, ~~or require~~ any ~~consent or waiver under, or result in the execution or imposition of any lien, charge or encumbrance upon any properties or assets of the Company or any of the Subsidiaries pursuant to the terms of~~statute, any ~~indenture, mortgage, deed of trust or other~~ material agreement or instrument to which the Company ~~or any of the Subsidiaries~~ is a party or by which it is bound or to which any of its ~~properties~~ property is subject, the Company's Articles of Organization or ~~businesses are bound~~by-laws, or any ~~franchise, license, permit, judgment, decree,~~ order, ~~statute~~rule, ~~rule~~ regulation or ~~regulation applicable to~~ decree of any court or governmental agency or body having jurisdiction over the Company or any of its properties, provided, that the ~~Subsidiaries~~ foregoing shall not be deemed to refer to blue sky or ~~violate any provision~~ state securities laws or regulations applicable to the public offering of Common Stock by the Underwriters contemplated hereby ("Blue Sky Laws") or to the by-laws or rules of the ~~Certificate~~ National Association of ~~Incorporation and By-laws of~~ Securities Dealers, Inc. ("NASD") relating to the ~~Company or any of~~ corporate financing arrangements applicable to the ~~Subsidiaries, except for such consents or waivers which have already been obtained and are in full force and effect or as would not have a Material Adverse Effect~~transactions contemplated hereby. No consent, approval, ~~authorization~~authorization or order of, ~~order~~or filing with, ~~registration or qualification of or with~~ any ~~United States~~ court or governmental agency or body is required for the ~~issue~~ execution, delivery and ~~sale~~ performance of ~~the Shares~~ this Agreement or for the consummation of the ~~other~~ transactions contemplated hereby, including the issuance or sale of the Securities by ~~this Agreement, which have not been obtained prior to~~ the ~~date hereof~~Company, except ~~the registration under the Securities Act of the Shares, and~~ such ~~consents, approvals, authorizations, registrations or qualifications~~ as may be required under ~~state securities or~~ the Act, any Blue Sky Law, or the by-laws ~~-9- 10 in connection with the purchase and distribution~~ or rules of the ~~Shares~~ NASD relating to the corporate financing arrangements, and the Company has full power and authority to enter into this Agreement and to authorize, issue and sell the Securities as contemplated by ~~the Underwriters~~this Agreement. (~~xiii~~ix) ~~The authorized,~~ All of the issued and outstanding shares of capital stock of the Company, including the outstanding shares of Common Stock, are duly authorized and validly issued, fully paid and nonassessable, have been issued in compliance with all federal and state securities laws, were not issued in violation of or subject to any preemptive rights or other rights to subscribe for or purchase securities; the Securities which may be sold hereunder by the Company have been duly authorized and, when issued, delivered and paid for in accordance with the terms hereof, will have been validly issued and will be fully paid and nonassessable, and the capital stock ~~reserved~~ of the Company, including the Common Stock, conforms in all material respects to the description thereof in the Registration Statement and Prospectus. Except as otherwise stated in the Registration Statement and Prospectus, there are no preemptive rights or ~~committed~~ other rights to subscribe for ~~issuance~~ or to purchase, or any restriction upon the voting or transfer of, any shares of Common Stock pursuant to the Company's Articles of Organization, by-laws or any agreement or other instrument to which the Company is a party or by which the Company is bound. Except as ~~set forth under the caption "Capitalization"~~ described in the Prospectus, neither the filing of the Registration Statement nor the offering or sale of the Securities as contemplated by this Agreement gives rise to any rights for or relating to the registration of any shares of Common Stock or other securities of the Company. All of the issued and outstanding shares of ~~Stock~~ capital stock of each of the Company's subsidiaries have been duly authorized and validly issued and are fully paid and nonassessable, ~~none of them was issued in violation of any preemptive or other similar right~~ and, to the Company's knowledge, since 1991, none of them were issued in violation of any Federal or state securities laws. The Shares, when issued and sold pursuant to this Agreement, will be duly and validly issued, fully paid and nonassessable, none of them will be issued in violation of any preemptive or other similar right, any contractual right, including, without limitation, rights of first refusal, and, since 1991, none of them were issued in violation of any (subject to compliance with Section 1(c) hereof), Federal or state securities laws. Except as disclosed in the Registration Statement and the Prospectus, there is no outstanding option, warrant or other right calling for the issuance of, and there is no commitment, plan or arrangement to issue, any shares of Common Stock of the Company or any security convertible into, or exercisable or exchangeable for, such shares of Stock. The shares of Stock conform in all material respects to all statements in relation thereto contained in the Registration Statement and the Prospectus. The Company has a sufficient number of authorized but unissued shares of Stock to enable the Company to issue, without further stockholder action, or approve all the Shares to be sold by the Company. (xiv) As of the date hereof, and as of each Closing Date, all of the outstanding shares of capital stock of the Subsidiaries are duly and validly authorized and issued, are fully paid and nonassessable and are and will be owned by the Company and there is and will be no outstanding option, warrant or other right calling for the issuance of, and no commitment, plan or arrangement to issue any share of capital stock of the Subsidiaries or any security convertible or exchangeable or exercisable for capital stock of the Subsidiaries, except as otherwise described in the Registration Statement and ~~Prospectus.~~ Prospectus and except for any directors' qualifying shares, the Company owns of record and beneficially, free and clear of any security interests, claims, liens, proxies, equities or other encumbrances, all of the issued and outstanding shares of such stock. Except as described in the Registration Statement and the Prospectus or issued pursuant to the Company's 1986 Employee Stock Purchase Plan, Key Employee Incentive Plan (xv1980), Key Employee Incentive Plan (1982) ~~Except~~ or Key Employee Incentive Plan (1992), there are no options, warrants, agreements, contracts or other rights in existence to purchase or acquire from the Company or any subsidiary of the Company any shares of the capital stock of the Company or any subsidiary of the Company. The Company has an authorized and outstanding capitalization as of respective the date set forth in the Registration Statement and the Prospectus as set forth in the Registration Statement and the Prospectus, ~~no holder~~ respectively. (x) The Company and each of its subsidiaries holds, and is operating in compliance with, all franchises, grants, authorizations, licenses, permits, easements, consents, certificates and orders of any ~~security~~ governmental or self-regulatory body required for the conduct of its business and all such franchises, grants, authorizations, licenses, permits, easements, consents, certifications and orders are valid and in full force and effect; and the Company and each of its subsidiaries is in compliance with all applicable federal, state, local and foreign laws, regulations, orders and decrees, except, in any of the foregoing cases, where the failure be so in compliance would not have a material adverse effect on the business, condition (financial or otherwise), prospects, net worth or results of operations of the Company ~~has the right~~ and its subsidiaries, taken as a whole. (xi) The Company and its subsidiaries have good and marketable title to ~~have any security owned by such holder included~~ all property and assets described in the Registration Statement ~~or to demand registration of any security~~ and Prospectus as being owned by them, in each case free and clear of all liens, claims, security interests or other encumbrances except such ~~holder during~~ as (i) are described in the ~~period ending 90 days after~~ Registration Statement and the ~~date~~ Prospectus or (ii) do not materially adversely affect the business, condition (financial or otherwise), prospects, net worth or results of ~~this Agreement. Each Selling Stockholder and each director and executive officer~~ operations of the Company and its subsidiaries, taken as a whole; the property held under lease by the Company and its subsidiaries is held by them under valid, subsisting and enforceable leases with only such exceptions with respect to any particular lease as do not interfere in any material respect with the conduct of the business of the Company or its subsidiaries, taken as a whole. (xii) The Company and each of its subsidiaries owns or possesses adequate rights to use all patents, patent applications, trademarks, service marks, trade names, trademark registrations, service mark ▇▇▇istrations, copyrights, licenses, inventions, know-how, trade secrets and rights ("Intellectual Property") necessary for the conduct of the business of the Company and its subsidiaries as currently carried on and as described in the Registration Statement and Prospectus, including the Intellectual Property described or referred to in the Prospectus as being owned or used by the Company or any subsidiary. Except as stated in the Registration Statement and Prospectus or as disclosed to you in a letter from the Company dated November __, 1995, no activity engaged in by or aspect of the business of the Company or any of its subsidiaries uses or involves or gives rise to any infringement of, or license or similar fees for, any Intellectual Property or other similar rights of others, which infringements or fees are materially adverse to the business or prospects of the Company and its subsidiaries, taken as a whole, and neither the Company nor any of its subsidiaries has ~~delivered to~~received any notice alleging any such infringement or that any such fee is due. To the knowledge of the Company, no prior employer of any employee of the Company or any of its subsidiaries has any right to or interest in any inventions, improvements, discoveries or other information assigned to the Company or any of its subsidiaries and material to the conduct of the business of the Company and its subsidiaries, taken as a whole, as currently conducted and as currently proposed to be conducted. (xiii) Neither the Company nor any of its subsidiaries is in violation of its respective charter or by-laws or in breach of or otherwise in default in the performance of any material obligation, agreement or condition contained in any bond, debenture, note, indenture, loan agreement or any other material contract, lease or other instrument to which it is subject or by which any of them may be bound, or to which any of the material property or assets of the Company or any of its subsidiaries is subject, which violation or default would have a material adverse effect on the Company and its subsidiaries, taken as a whole. (xiv) The Company and its subsidiaries have filed all federal, state, local and foreign income and franchise tax returns required to be filed (or filed for extensions thereof) and are not in default in the payment of any taxes which were payable pursuant to said returns or any assessments with respect thereto, other than any which the Company or any of its subsidiaries is contesting in good faith, or where the failure to timely file such return or pay such taxes would not have a material adverse effect on the business, condition (financial or otherwise), prospects, net worth or results of operations of the Company and its subsidiaries, taken as a whole. (xv) The Company has not distributed and will not distribute any prospectus or other offering material in connection with the offering and sale of the Securities other than any Preliminary Prospectus or the Prospectus or other materials permitted by the Act. (xvi) The

Appears in 1 contract

Sources: Common Stock Purchase Agreement (Data Translation Inc)

Appears in 1 contract

Sources: Underwriting Agreement (Ha Lo Industries Inc)

Appears in 1 contract

Sources: Underwriting Agreement (Intertrust Technologies Corp)

Representations and Warranties of the Company and the Selling Stockholders. (a) The Company ~~hereby~~ represents and warrants to each ~~Underwriter~~ of the Underwriters as follows: (i) On A registration statement on Form S-3 (File No. 333-114474) with respect to the ~~Effective Date~~Company's common stock (the "Shelf Securities") to be issued from time to time has (i) been prepared by the Company in conformity with the requirements of the Securities Act of 1933, as amended (the "Act"), and the rules and regulations (the "Rules and Regulations") of the Securities and Exchange Commission (the "Commission") thereunder, (ii) been filed with the Commission and (iii) become effective under the Act. The Company and the transactions contemplated by this Agreement meet the requirements and comply with the conditions for the use of Form S-3. Copies of such registration statement, including any amendments thereto, the ~~Registration Statement complied, and on~~ preliminary prospectuses (meeting the ~~date~~ requirements of the ~~Prospectus~~Rules and Regulations) contained therein and the exhibits, on financial statements and schedules, as finally amended and revised, have heretofore been delivered by the ~~date~~ Company to you. Such registration statement, together with any registration statement filed by the Company pursuant to Rule 462(b) of the Act, is herein referred to as the "Registration Statement," which shall be deemed to include all information omitted therefrom in reliance upon Rule 430A and contained in the Prospectus referred to below, has become effective under the Act and no post-effective amendment to the Registration Statement ~~shall become effective, on~~ has been filed as of the date ~~any~~ of this Agreement. The prospectus covering the Shelf Securities contained in the Registration Statement is hereinafter referred to as the "Base Prospectus." The Base Prospectus as supplemented by the prospectus supplement ~~or amendment~~ specifically relating to the Shares in the form first filed pursuant to Rule 424 is hereinafter referred to as the "Prospectus." Any reference herein to the Registration Statement, the Base Prospectus, any preliminary form of Prospectus is (a "Preliminary Prospectus") previously filed with the Commission ~~and on each Closing Date~~pursuant to Rule 424, ~~the Registration Statement and~~ or the Prospectus (shall be deemed to refer to and include any amendment or supplement to any of the foregoing documents and any ~~amendment thereof or supplement thereto) will comply~~documents incorporated by reference therein, and, in ~~all material respects~~the case of any reference herein to any Base Prospectus, Preliminary Prospectus or the Prospectus, also shall be deemed to include any documents incorporated by reference therein, and any supplements or amendments thereto, filed with the ~~applicable provisions~~ Commission after the date of filing of the ~~Securities Act~~ Prospectus under Rules 424(b) or 430A, and prior to the ~~Rules;~~termination of the offering of the Shares by the Underwriters. (ii) The Company has been duly incorporated and is validly existing as a corporation in good standing under the laws of the State of Delaware, with corporate power and authority to own or lease its properties and conduct its business as described in the Registration Statement. Each of the subsidiaries of the Company required to be disclosed pursuant to Item 601 of Regulation S-K, as listed in Exhibit A hereto (collectively, the "Subsidiaries" and, individually a "Subsidiary"), has been duly organized and is validly existing as a corporation in good standing under the laws of the jurisdiction of its incorporation, with corporate power and authority to own or lease its properties and conduct its business as described in the Registration Statement. The Company and each of the Subsidiaries are duly qualified to transact business in all jurisdictions in which the conduct of their business requires such qualification, except where failure to be so qualified or be in good standing would not individually or in the aggregate have a material adverse effect on the earnings, condition (financial or otherwise), business, operations, prospects, management, properties, assets, rights, stockholders' equity or results of operations of the Company and its Subsidiaries taken as a whole ("Material Adverse Effect"). The outstanding shares of capital stock of each of the Subsidiaries have been duly authorized and validly issued, are fully paid and non-assessable and, to the extent shown in Exhibit A hereto, are owned by the Company or another Subsidiary free and clear of all liens, encumbrances and equities and claims; and except as disclosed in the Prospectus, no options, warrants or other rights to purchase, agreements or other obligations to issue or other rights to convert any obligations into shares of capital stock or ownership interests in the Subsidiaries are outstanding. (iii) The outstanding shares of Common Stock of the Company, including all shares to be sold by the Selling Stockholders, have been duly authorized and validly issued and are fully paid and non-assessable; the portion of the Shares to be issued and sold by the Company have been duly authorized and when issued and paid for as contemplated herein will be validly issued, fully paid and non-assessable; and no preemptive rights of stockholders exist with respect to any of the Shares or the issue and sale thereof. Except as described in the Prospectus, there are no contracts, agreements or understandings between the Company and any person granting such person the right to require the Company to file a registration statement under the Act with respect to any securities of the Company or to require the Company to include such securities with the Shares registered pursuant to the Registration Statement, and the right of each person who is a party to any contract, agreement or understanding so described to include such securities pursuant to the Registration Statement has been effectively satisfied or waived. (iv) The information set forth under the caption "Capitalization" in the Prospectus is true and correct as of the date therein indicated and the Company's authorized capitalization as set forth in the Prospectus has not changed since the date therein indicated. The statements set forth in the Prospectus under the caption "Description of Capital Stock", insofar as they purport to constitute a summary of the terms of the Shares, and under the caption "Underwriting" (with the exception of the first sentence of the fourth paragraph and the ninth, tenth, eleventh and twelfth paragraphs of such section), insofar as they purport to describe the provisions of the laws and documents referred to therein, are accurate summaries and descriptions of such terms and provisions in all material respects. (v) The Commission has not issued an order preventing or suspending the use of any Prospectus relating to the proposed offering of the Shares nor instituted proceedings for that ~~are incorporated~~ purpose. The Registration Statement conforms, and the Prospectus and any further amendments or supplements to the Registration Statement or the Prospectus will conform, in all material respects to, the requirements of the Act and the Rules and Regulations. The documents incorporated, or to be incorporated, by reference in the ~~preliminary prospectus and~~ Prospectus, at the ~~Prospectus or from which information is so incorporated by reference, when they became effective or were~~ time filed with the ~~Commission~~Commission conformed or will conform, ~~as the case may be, complied~~ in all material respects ~~with~~ to the requirements of ~~the Securities Act or~~ the Securities Exchange Act of 1934, as amended (~~the~~ "Exchange Act"), as applicable, and the rules and regulations of the Commission promulgated under the Securities Act and the Exchange Act, as applicable, except as amended and superseded by statements made in the Registration Statement; and any documents so filed and incorporated by reference subsequent to the Effective Date shall, when they are filed with the Commission, conform in all material respects with the requirements of the Securities Act ) or the ~~Exchange~~ Act, as applicable, and the rules and regulations of the Commission ~~promulgated~~ thereunder. The Registration Statement does not contain, and will not contain, any untrue statement of a material fact and does not omit, and will not omit, to state any material fact required to be stated therein or necessary to make the statements therein not misleading. The Prospectus and any supplements thereto do not contain, and will not contain, any untrue statement of material fact; and do not omit, and will not 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 were made, not misleading; provided, however, that the Company makes no representations or warranties as to information contained in or omitted from the Registration Statement or the Prospectus, or any such amendment or supplement, in reliance upon, and in conformity with, written information furnished to the Company (i) by the Selling Stockholders for use under the ~~Securities Act and~~ caption "Selling Stockholders" in the ~~Exchange Act~~Prospectus or (ii) by or on behalf of any Underwriter through the Representatives, ~~as applicable~~specifically for use in the preparation thereof. (~~iii~~vi) The consolidated financial statements of the Company ~~(including all~~ and the Subsidiaries, together with related notes and schedules ~~thereto) included~~ as set forth or incorporated by reference in the Registration ~~Statement and Prospectus~~ Statement, present fairly the financial ~~position,~~ position and the results of operations and cash flows ~~and the stockholders' equity and the other information purported to be shown therein~~ of the Company and ~~its subsidiaries, listed~~ the Subsidiaries on ~~Schedule III hereto (the "Subsidiaries")~~a consolidated basis, at the ~~respective~~ indicated dates and for the ~~respective~~indicated periods. Such financial statements and related schedules have been prepared in accordance with generally accepted accounting principles, consistently applied throughout the periods involved, except as disclosed therein, and all adjustments necessary for a fair presentation of results for such periods have been made. The summary financial and statistical data included or incorporated by reference in the Registration Statement, including under the caption "Summary Recent Results" in the Prospectus, presents fairly the information shown therein and such data has been compiled on a basis consistent with the consolidated financial statements presented therein and the books and records of the Company. (ivvii) ~~KPMG Peat Marwick~~ PricewaterhouseCoopers LLP, ~~whose report is~~ who have audited certain of the consolidated financial statements filed with the Commission as a part of of, or incorporated by reference in, the Registration Statement, ~~is and, during the periods covered by its reports, was~~ are independent public accountants as required by the ~~Securities~~ Act and the ~~Rules. (v) The Company has been duly incorporated~~ Rules and is a validly existing corporation under the laws of the State of Delaware, and the Subsidiaries have been duly incorporated and are validly existing corporations under the laws of their respective jurisdictionsRegulations. Other than the Subsidiaries, the Company has no subsidiaries and does not control, directly or indirectly, any corporation, partnership, joint venture, association or other business organization, except Except as described in the Registration Statement and as preapproved in accordance with the requirements set forth in Section 10A of the Exchange Act, PricewaterhouseCoopers LLP has not engaged in any "prohibited activities" (as defined in Section 10A of the Exchange Act) on behalf of the Company. (viii) Other than as set forth in the Prospectus~~. Each~~ , there are no legal or governmental proceedings pending to which the Company or any of its subsidiaries is a party or of which any property of the Company ~~and the Subsidiaries is duly qualified and in good standing as a foreign corporation in each jurisdiction in which the character~~ or ~~location~~ any of its ~~assets~~ subsidiaries is the subject which, if determined adversely to the Company or ~~properties (owned, leased or licensed) or the nature~~ any of its ~~business makes such qualification necessary except for such jurisdictions where the failure to so qualify would not have a material adverse effect on the assets~~ subsidiaries, would, individually or ~~properties, business, results of operations or condition (financial or otherwise) of the Company and the Subsidiaries, taken as a whole (a "Material Adverse Effect"). Except as disclosed~~ in the ~~Registration Statement and the Prospectus~~aggregate, neither the Company nor the Subsidiaries own, lease or license any material asset or property or conduct any material business outside the United States of America. Each of the Company and the Subsidiaries have all requisite corporate power and authority, and all necessary authorizations, approvals, consents, orders, licenses, certificates and permits of and from all governmental or regulatory bodies or any other person or entity, to own, lease and license their assets and properties and conduct their businesses as now being conducted and as described in the Registration Statement and the Prospectus except for such authorizations, approvals, consents, orders, licenses, certificates and permits the failure to so obtain would not have a Material Adverse ~~Effect;~~ Effect and, to the best of the Company's knowledge, no such ~~authorization, approval, consent, order, license, certificate~~ proceedings are threatened or permit contains a materially burdensome restriction other than as disclosed in the Registration Statement and the Prospectus; and the Company has all such corporate power and authority, and such authorizations, approvals, consents, orders, licenses, certificates and permits to enter into, deliver and perform this Agreement and to issue andcontemplated by governmental authorities or threatened by others. (viix) The Company and the Subsidiaries own or possess adequate and enforceable rights to use all patents, trademarks, trademark applications, trade names, service marks, copyrights, copyright applications, licenses, know-how and other similar rights and proprietary knowledge (collectively, "Intangibles") material to or necessary for the conduct of their business as described in the Registration Statement and the Prospectus. Except as disclosed in the Registration Statement and the Prospectus, neither Neither the Company nor any of ~~the Subsidiaries have received~~ its subsidiaries owns any notice of, and to their knowledge are not aware of, any infringement of or conflict with asserted rights of others with respect to any Intangibles which, singly or in the aggregate, if the subject of an unfavorable decision, ruling or finding, could be reasonably expected to have a Material Adverse Effect, and neither the Company nor the Subsidiaries know of any reasonable basis thereforreal property. Except as disclosed in the Registration Statement and the Prospectus, to the knowledge of the Company, no Intangibles of the Company or the Subsidiaries are in dispute or are in any conflict with the right of any other person or entity and the Company and each of the Subsidiaries (A) has or will have the right (subject to applicable agreements, which agreements provide for use to the extent necessary and desirable for the conduct of its business as currently conducted and as proposed to be conducted) to use, free and clear of all liens, charges, claims, encumbrances, pledges, security interests, defects, restrictions or equities of any kind whatsoever all licenses and rights to the Intangibles used in the conduct of their business as now conducted or proposed to be conducted without infringing upon or otherwise acting adversely to the right or claimed right of any other person and (B) is not or will not become, as the case may be, obligated or in any way liable for any payment by way of royalties, fees or otherwise and to any owner or licensee of, or other claimant to, any Intangibles with respect to the use thereof or in connection with the conduct of their business or otherwise, except in each case as disclosed in the Prospectus and except for any such payments, claims, uses, liens, charges, encumbrances, pledges, security interests, defects, restrictions and equities which would not have a Material Adverse Effect. (vii) The Company and ~~the Subsidiaries~~ its subsidiaries have good and marketable title to ~~each of the items of~~ all personal property ~~which are reflected in the financial statements referred to in Section 4(a)(ii) or are referred to in the Registration Statement and the Prospectus as being~~ owned ~~by them and valid and enforceable leasehold interests in each of the items of real and personal property which are referred to in the Registration Statement and the Prospectus as being leased~~ by them, in each case free and clear of all liens, ~~encumbrances, claims, security interests~~ encumbrances and defects, ~~other than those~~ except such as are described in the ~~Registration Statement and the~~ Prospectus ~~and those which~~ or such as do not materially affect the value of such property and ~~will~~ do not ~~have a Material Adverse Effect~~materially interfere with the use made and proposed to be made of such property by the Company and its subsidiaries. Any real property and buildings held under lease by the Company and its subsidiaries are held by them under valid, subsisting and enforceable leases with such exceptions as are not material and do not materially interfere with the use made and proposed to be made of such property and buildings by the Company and its subsidiaries. (~~viii~~x) ~~Except as described~~ The Company and the Subsidiaries have filed all Federal, State, local and foreign tax returns which they have been required to file and have paid all taxes indicated by such returns and all assessments received by them or any of them to the extent that such taxes have become due. All tax liabilities have been adequately provided for in the ~~Registration Statement and the Prospectus, there is no litigation or governmental or other proceeding or investigation before any court or before or by any public body or board pending or, to~~ consolidated financial statements of the Company~~'s knowledge~~, ~~threatened (~~and the Company does not know of any ~~reasonable basis therefor) against,~~ actual or ~~involving the assets, properties or business of, the Company or the Subsidiaries which, if adversely determined, could be reasonably expected to have a Material Adverse Effect~~proposed additional material tax assessments. (ixxi) ~~Subsequent to the respective dates~~ Except as ~~of which information is given~~ set forth in ~~the Registration Statement and~~ the Prospectus, except as described therein, (A) there has not been any material adverse change in the assets or properties, business, results of operations, prospects or condition (financial or otherwise) of the Company or the Subsidiaries taken as a whole, whether or not arising from transactions in the ordinary course of business; (B) neither the Company nor any of ~~the~~ its Subsidiaries has sustained since the date of the latest audited consolidated financial statements included in the Prospectus any material loss or interference with its ~~assets, businesses or properties (whether owned, leased or licensed)~~ business from fire, explosion~~, earthquake~~, flood or other calamity, whether or not covered by insurance, or from any labor dispute or ~~any~~ court or ~~legislative or other~~ governmental action, order or decree, in each case, which is material to the Company and its Subsidiaries taken as a whole; ~~and (C)~~ and, since the ~~date~~ respective dates as of ~~the latest balance sheet included~~ which information is given in the Registration Statement and the Prospectus, ~~except as reflected therein, neither~~ there has not been any change in the capital stock of the Company ~~nor~~ or any of its Subsidiaries or any Material Adverse Effect, otherwise than as set forth or contemplated in the Prospectus. The Company and the Subsidiaries ~~has (x) issued any securities (other than options or shares issued pursuant to exercise of employee stock options or warrants described~~ have no material contingent obligations which are not disclosed in the Company's financial statements which are included in the Registration Statement and Prospectus) or incurred any liability or obligation, direct or contingent, for borrowed money, except such liabilities or obligations incurred in the ordinary course of business, (y) entered into any transaction not in the ordinary course of business or (z) declared or paid any dividend or made any distribution on any shares of its stock or redeemed, purchased or otherwise acquired or agreed to redeem, purchase or otherwise acquire any shares of its stock. (x) There is no material document or contract of a character required to be described in the Registration Statement or Prospectus or to be filed as an exhibit to the Registration Statement which is not described or filed as required. Each agreement listed in the Exhibits to the Registration Statement is in full force and effect or has terminated in accordance with its terms or by amendment and such amendment has been filed as an Exhibit to the Registration Statement or has otherwise been provided to the Representatives and, if not so terminated, is valid and enforceable in all material respects by and against the Company or the Subsidiaries, as the case may be, in accordance with its terms, assuming the due authorization, execution and delivery thereof by each of the other parties thereto, except as the enforceability thereof may be limited by (i) bankruptcy, insolvency, reorganization, moratorium or other similar laws affecting the enforcement of creditors' rights generally and (ii) indemnification provisions under Federal and state securities laws; and that the remedy of specific forms of equitable relief may be subject to equitable defenses and the discretion of the court before which any such action may be brought. Neither the Company, the (xi) Neither the Company nor the Subsidiaries is in violation of any term or provision of their respective Certificate of Incorporation and By-laws, in each case as amended to the date hereof, or other governing documents, or of any franchise, license, permit, judgment, decree, order, statute, rule or regulation, where the consequences of such violation would have a Material Adverse Effect. Except as described in the Registration Statement or Prospectus, neither the Company nor any of the Subsidiaries intends to amend its Certificate of Incorporation and By-lawsStatement. (xii) ~~Neither~~ The issue and sale of the ~~execution, delivery~~ Shares to be sold by the Company and ~~performance~~ the compliance by the Company with all of the provisions of this Agreement ~~by the Company or the Subsidiaries nor~~ and the consummation of ~~any of~~ the transactions herein contemplated ~~hereby (including, without limitation, the issuance and sale by the Company of the Shares)~~ will ~~give rise to a right to terminate or accelerate the due date of any payment due under, or~~ not conflict with or result in ~~the~~ a breach or violation of any ~~term~~ of the terms or ~~provision~~ provisions of, or constitute a default ~~(or an event which with notice or lapse of time or both would constitute a default)~~ under, or require any consent or waiver under, or result in the execution or imposition of any lien, charge or encumbrance upon any properties or assets of the Company or any of the Subsidiaries pursuant to the terms of, any indenture, mortgage, deed of ~~trust~~ trust, loan agreement or other agreement or instrument to which the Company or any of ~~the~~ its Subsidiaries is a party or by which ~~it or any of its properties or businesses are bound, or any franchise, license, permit, judgment, decree, order, statute, rule or regulation applicable to~~ the Company or any of ~~the~~ its Subsidiaries is bound or ~~violate~~ to which any ~~provision~~ of the ~~Certificate of Incorporation and By-laws~~ property or assets of the Company or any of its Subsidiaries is subject, nor will such action result in any violation of the ~~Subsidiaries~~provisions of the certificate of incorporation or bylaws of the Company or any statute or any order, ~~except for such consents~~ rule or ~~waivers which have already been obtained~~ regulation of any court or governmental agency or body having jurisdiction over the Company or any of its Subsidiaries or any of their properties; and ~~are in full force and effect or as would not have a Material Adverse Effect. No~~ no consent, approval, authorization, order, registration or qualification of or with any ~~United States~~ such court or governmental agency or body is required for the issue and sale of the Shares or the consummation by the Company of the ~~other~~ transactions contemplated by this Agreement, ~~which have not been obtained prior to the date hereof,~~ except the registration under the Act of the Shares, the approval by the National Association of Securities ~~Act~~ Dealers, Inc. (the "NASD") of the terms of the sale of the Shares, and such consents, approvals, authorizations, registrations or qualifications as may be required under state securities or Blue Sky laws ~~-9- 10~~ in connection with the purchase and distribution of the Shares by the ~~Underwriters~~Underwriters in accordance with this Agreement. (xiii) ~~The authorized, issued and outstanding capital stock of~~ Neither the Company nor any of its Subsidiaries is in violation of its certificate of incorporation or bylaws or in default in the performance or observance of any obligation, agreement, covenant or condition contained in any indenture, mortgage, deed of trust, loan agreement, lease or other agreement or instrument to which it is a party or by which it or any of its properties may be bound, except where such default would not, individually or in the aggregate, have a Material Adverse Effect. (xiv) The execution and delivery of, and the ~~capital stock reserved or committed for issuance is as set forth under~~ performance by the ~~caption "Capitalization" in the Prospectus. All~~ Company of ~~the outstanding shares of Stock have~~ its obligations under, this Agreement has been duly and validly ~~issued~~ authorized by all necessary corporate action on the part of the Company, and this Agreement has been duly executed and delivered by the Company. (xv) The Company and each of its Subsidiaries hold all material licenses, certificates and permits from governmental authorities, which are ~~fully paid~~ necessary to the conduct of their business. Other than as set forth in the Prospectus, the Company and ~~nonassessable~~its Subsidiaries have sufficient interests in all patents, ~~none of them was issued~~ trademarks, service marks, trade names, domain names, copyrights, trade secrets, information, proprietary rights and processes ("Intellectual Property") necessary for their business as described in ~~violation of any preemptive or other similar right~~ the Prospectus and, to the Company's knowledge, ~~since 1991~~necessary in connection with the products and services under development by it, ~~none of them were issued in violation of any Federal or state securities laws. The Shares~~without, ~~when issued and sold pursuant~~ to ~~this Agreement, will be duly and validly issued, fully paid and nonassessable, none of them will be issued in violation of any preemptive or other similar right~~the Company's knowledge, any ~~contractual right~~conflict with or infringement of the interests of others, ~~including~~except for such conflicts or infringements which, ~~without limitation, rights of first refusal, and, since 1991, none of them were issued in violation of any (subject to compliance with Section 1(c) hereof), Federal~~ individually or ~~state securities laws. Except as disclosed~~ in the ~~Registration Statement~~ aggregate, have not had and ~~the Prospectus, there is no outstanding option, warrant or other right calling for the issuance of~~are not reasonably likely to result in a Material Adverse Effect, and ~~there is no commitment, plan or arrangement~~ have taken all reasonable steps necessary to ~~issue, any shares of Common Stock of the Company or any security convertible into, or exercisable or exchangeable for,~~ secure interests in such shares of Stock. The shares of Stock conform in all material respects to all statements in relation thereto contained in the Registration Statement and the Prospectus. The Company has a sufficient number of authorized but unissued shares of Stock to enable the Company to issue, without further stockholder action, or approve all the Shares to be sold by the Company. (xiv) As of the date hereof, and as of each Closing Date, all of the outstanding shares of capital stock of the Subsidiaries are duly and validly authorized and issued, are fully paid and nonassessable and are and will be owned by the Company and there is and will be no outstanding option, warrant or other right calling for the issuance of, and no commitment, plan or arrangement to issue any share of capital stock of the Subsidiaries or any security convertible or exchangeable or exercisable for capital stock of the Subsidiaries, Intellectual Property from their contractors; except ~~as otherwise described in the Registration Statement and Prospectus. (xv) Except~~ as set forth in the ~~Registration Statement and~~ Prospectus, ~~no holder of any security of~~ the Company ~~has the right to have any security owned by such holder included in the Registration Statement~~ is not aware of outstanding options, licenses or to demand registration of any security owned by such holder during the period ending 90 days after the date of this Agreement. Each Selling Stockholder and each director and executive officer of the Company has delivered toag

Appears in 1 contract

Sources: Underwriting Agreement (Ivillage Inc)

Appears in 1 contract

Sources: Equity Underwriting Agreement (Color Kinetics Inc)

Representations and Warranties of the Company and the Selling Stockholders. (a) The Company ~~hereby~~ represents and warrants to each ~~Underwriter~~ of the Underwriters as follows: (i) ~~On the Effective Date, the Registration Statement complied, and~~ A registration statement on ~~the date of the Prospectus, on the date any post~~Form S-1 (File No. 333-~~effective amendment~~ 180044) with respect to the ~~Registration Statement shall become effective, on~~ Shares has been prepared by the date any supplement or amendment to the Prospectus is filed with the Commission and on each Closing Date, the Registration Statement and the Prospectus (and any amendment thereof or supplement thereto) will comply, Company in all material respects, with the applicable provisions of the Securities Act and the Rules; (ii) The documents that are incorporated by reference in the preliminary prospectus and the Prospectus or from which information is so incorporated by reference, when they became effective or were filed with the Commission, as the case may be, complied conformity in all material respects with the requirements of the Securities Act ~~or the Securities Exchange Act~~ of ~~1934~~1933, as amended (the ~~"Exchange~~ “Act"”)~~, as applicable~~, and the rules and regulations (the “Rules and Regulations”) of the Securities and Exchange Commission ~~promulgated under~~ (the ~~Securities Act~~ “Commission”) thereunder and the Exchange Act, as applicable, except as amended and superseded by statements made in the Registration Statement; and any documents so filed and incorporated by reference subsequent to the Effective Date shall, when they are has been filed with the Commission. Copies of such registration statement, ~~conform~~ including any amendments thereto, the preliminary prospectuses (meeting in all material ~~respects with~~ respects, at the time of filing thereof, the requirements of the ~~Securities Act or~~ Rules and Regulations) contained therein and the ~~Exchange~~ exhibits and financial statements thereto, as finally amended and revised, have heretofore been delivered by the Company to you. Such registration statement, together with any registration statement filed by the Company pursuant to Rule 462(b) under the Act, is herein referred to as ~~applicable~~the “Registration Statement,” which shall be deemed to include all information omitted therefrom in reliance upon any of Rules 430A, 430B and 430C under the ~~rules~~ Act and ~~regulations~~ contained in the Prospectus referred to below, has become effective under the Act and no post-effective amendment to the Registration Statement has been filed as of the date of this Agreement. “Prospectus” means the form of prospectus first filed with the Commission ~~promulgated~~ pursuant to and within the time limits described in Rule 424(b) under the ~~Securities Act and the Exchange~~ Act~~, as applicable. (iii) The consolidated financial statements of the Company (including all notes and schedules thereto)~~ . Each preliminary prospectus included in the Registration Statement ~~and~~ prior to the time it becomes effective is herein referred to as a “Preliminary Prospectus.” Any reference herein to the Registration Statement, any Preliminary Prospectus ~~present fairly~~ or to the ~~financial position, the results of operations and cash flows and the stockholders' equity and the other information purported~~ Prospectus or to ~~be shown therein~~ any amendment or supplement to any of the ~~Company~~ foregoing documents shall be deemed to refer to and ~~its subsidiaries~~include any documents incorporated by reference therein, ~~listed on Schedule III hereto (~~and, in the ~~"Subsidiaries")~~case of any reference herein to the Prospectus, ~~at the respective dates~~ also shall be deemed to include any documents incorporated by reference therein, and ~~for the respective (iv) KPMG Peat Marwick LLP~~any supplements or amendments thereto, ~~whose report is~~ filed with the Commission as a part of the Registration Statement, is and, during the periods covered by its reports, was independent public accountants as required by the Securities Act and the Rules. (v) The Company has been duly incorporated and is a validly existing corporation under the laws of the State of Delaware, and the Subsidiaries have been duly incorporated and are validly existing corporations under the laws of their respective jurisdictions. Other than the Subsidiaries, the Company has no subsidiaries and does not control, directly or indirectly, any corporation, partnership, joint venture, association or other business organization, except as described in the Registration Statement and the Prospectus. Each of the Company and the Subsidiaries is duly qualified and in good standing as a foreign corporation in each jurisdiction in which the character or location of its assets or properties (owned, leased or licensed) or the nature of its business makes such qualification necessary except for such jurisdictions where the failure to so qualify would not have a material adverse effect on the assets or properties, business, results of operations or condition (financial or otherwise) of the Company and the Subsidiaries, taken as a whole (a "Material Adverse Effect"). Except as disclosed in the Registration Statement and the Prospectus, neither the Company nor the Subsidiaries own, lease or license any material asset or property or conduct any material business outside the United States of America. Each of the Company and the Subsidiaries have all requisite corporate power and authority, and all necessary authorizations, approvals, consents, orders, licenses, certificates and permits of and from all governmental or regulatory bodies or any other person or entity, to own, lease and license their assets and properties and conduct their businesses as now being conducted and as described in the Registration Statement and the Prospectus except for such authorizations, approvals, consents, orders, licenses, certificates and permits the failure to so obtain would not have a Material Adverse Effect; no such authorization, approval, consent, order, license, certificate or permit contains a materially burdensome restriction other than as disclosed in the Registration Statement and the Prospectus; and the Company has all such corporate power and authority, and such authorizations, approvals, consents, orders, licenses, certificates and permits to enter into, deliver and perform this Agreement and to issue and (vi) The Company and the Subsidiaries own or possess adequate and enforceable rights to use all patents, trademarks, trademark applications, trade names, service marks, copyrights, copyright applications, licenses, know-how and other similar rights and proprietary knowledge (collectively, "Intangibles") material to or necessary for the conduct of their business as described in the Registration Statement and the Prospectus. Except as disclosed in the Registration Statement and the Prospectus, neither the Company nor any of the Subsidiaries have received any notice of, and to their knowledge are not aware of, any infringement of or conflict with asserted rights of others with respect to any Intangibles which, singly or in the aggregate, if the subject of an unfavorable decision, ruling or finding, could be reasonably expected to have a Material Adverse Effect, and neither the Company nor the Subsidiaries know of any reasonable basis therefor. Except as disclosed in the Registration Statement and the Prospectus, to the knowledge of the Company, no Intangibles of the Company or the Subsidiaries are in dispute or are in any conflict with the right of any other person or entity and the Company and each of the Subsidiaries (A) has or will have the right (subject to applicable agreements, which agreements provide for use to the extent necessary and desirable for the conduct of its business as currently conducted and as proposed to be conducted) to use, free and clear of all liens, charges, claims, encumbrances, pledges, security interests, defects, restrictions or equities of any kind whatsoever all licenses and rights to the Intangibles used in the conduct of their business as now conducted or proposed to be conducted without infringing upon or otherwise acting adversely to the right or claimed right of any other person and (B) is not or will not become, as the case may be, obligated or in any way liable for any payment by way of royalties, fees or otherwise and to any owner or licensee of, or other claimant to, any Intangibles with respect to the use thereof or in connection with the conduct of their business or otherwise, except in each case as disclosed in the Prospectus and except for any such payments, claims, uses, liens, charges, encumbrances, pledges, security interests, defects, restrictions and equities which would not have a Material Adverse Effect. (vii) The Company and the Subsidiaries have good and marketable title to each of the items of personal property which are reflected in the financial statements referred to in Section 4(a)(ii) or are referred to in the Registration Statement and the Prospectus as being owned by them and valid and enforceable leasehold interests in each of the items of real and personal property which are referred to in the Registration Statement and the Prospectus as being leased by them, in each case free and clear of all liens, encumbrances, claims, security interests and defects, other than those described in the Registration Statement and the Prospectus and those which do not and will not have a Material Adverse Effect. (viii) Except as described in the Registration Statement and the Prospectus, there is no litigation or governmental or other proceeding or investigation before any court or before or by any public body or board pending or, to the Company's knowledge, threatened (and the Company does not know of any reasonable basis therefor) against, or involving the assets, properties or business of, the Company or the Subsidiaries which, if adversely determined, could be reasonably expected to have a Material Adverse Effect. (ix) Subsequent to the respective dates as of which information is given in the Registration Statement and the Prospectus, except as described therein, (A) there has not been any material adverse change in the assets or properties, business, results of operations, prospects or condition (financial or otherwise) of the Company or the Subsidiaries taken as a whole, whether or not arising from transactions in the ordinary course of business; (B) neither the Company nor any of the Subsidiaries has sustained any material loss or interference with its assets, businesses or properties (whether owned, leased or licensed) from fire, explosion, earthquake, flood or other calamity, whether or not covered by insurance, or from any labor dispute or any court or legislative or other governmental action, order or decree; and (C) since after the date of ~~the latest balance sheet included in the Registration Statement and the Prospectus, except as reflected therein, neither the Company nor any~~ filing of the ~~Subsidiaries has (x~~Prospectus under Rule 424(b) ~~issued any securities (other than options or shares issued pursuant to exercise of employee stock options or warrants described in~~ under the ~~Registration Statement~~ Act, and Prospectus) or incurred any liability or obligation, direct or contingent, for borrowed money, except such liabilities or obligations incurred in the ordinary course of business, (y) entered into any transaction not in the ordinary course of business or (z) declared or paid any dividend or made any distribution on any shares of its stock or redeemed, purchased or otherwise acquired or agreed to redeem, purchase or otherwise acquire any shares of its stock. (x) There is no material document or contract of a character required to be described in the Registration Statement or Prospectus or to be filed as an exhibit to the Registration Statement which is not described or filed as required. Each agreement listed in the Exhibits to the Registration Statement is in full force and effect or has terminated in accordance with its terms or by amendment and such amendment has been filed as an Exhibit to the Registration Statement or has otherwise been provided to the Representatives and, if not so terminated, is valid and enforceable in all material respects by and against the Company or the Subsidiaries, as the case may be, in accordance with its terms, assuming the due authorization, execution and delivery thereof by each of the other parties thereto, except as the enforceability thereof may be limited by (i) bankruptcy, insolvency, reorganization, moratorium or other similar laws affecting the enforcement of creditors' rights generally and (ii) indemnification provisions under Federal and state securities laws; and that the remedy of specific forms of equitable relief may be subject to equitable defenses and the discretion of the court before which any such action may be brought. Neither the Company, the (xi) Neither the Company nor the Subsidiaries is in violation of any term or provision of their respective Certificate of Incorporation and By-laws, in each case as amended to the date hereof, or other governing documents, or of any franchise, license, permit, judgment, decree, order, statute, rule or regulation, where the consequences of such violation would have a Material Adverse Effect. Except as described in the Registration Statement or Prospectus, neither the Company nor any of the Subsidiaries intends to amend its Certificate of Incorporation and By-laws. (xii) Neither the execution, delivery and performance of this Agreement by the Company or the Subsidiaries nor the consummation of any of the transactions contemplated hereby (including, without limitation, the issuance and sale by the Company of the Shares) will give rise to a right to terminate or accelerate the due date of any payment due under, or conflict with or result in the breach of any term or provision of, or constitute a default (or an event which with notice or lapse of time or both would constitute a default) under, or require any consent or waiver under, or result in the execution or imposition of any lien, charge or encumbrance upon any properties or assets of the Company or any of the Subsidiaries pursuant to the terms of, any indenture, mortgage, deed of trust or other agreement or instrument to which the Company or any of the Subsidiaries is a party or by which it or any of its properties or businesses are bound, or any franchise, license, permit, judgment, decree, order, statute, rule or regulation applicable to the Company or any of the Subsidiaries or violate any provision of the Certificate of Incorporation and By-laws of the Company or any of the Subsidiaries, except for such consents or waivers which have already been obtained and are in full force and effect or as would not have a Material Adverse Effect. No consent, approval, authorization, order, registration or qualification of or with any United States court or governmental agency or body is required for the issue and sale of the Shares or the consummation of the other transactions contemplated by this Agreement, which have not been obtained prior to the ~~date hereof, except the registration under the Securities Act~~ termination of the ~~Shares, and such consents, approvals, authorizations, registrations or qualifications as may be required under state securities or Blue Sky laws -9- 10 in connection with the purchase and distribution~~ offering of the Shares by the Underwriters. (xiii) The authorized, issued and outstanding capital stock of the Company and the capital stock reserved or committed for issuance is as set forth under the caption "Capitalization" in the Prospectus. All of the outstanding shares of Stock have been duly and validly issued and are fully paid and nonassessable, none of them was issued in violation of any preemptive or other similar right and, to the Company's knowledge, since 1991, none of them were issued in violation of any Federal or state securities laws. The Shares, when issued and sold pursuant to this Agreement, will be duly and validly issued, fully paid and nonassessable, none of them will be issued in violation of any preemptive or other similar right, any contractual right, including, without limitation, rights of first refusal, and, since 1991, none of them were issued in violation of any (subject to compliance with Section 1(c) hereof), Federal or state securities laws. Except as disclosed in the Registration Statement and the Prospectus, there is no outstanding option, warrant or other right calling for the issuance of, and there is no commitment, plan or arrangement to issue, any shares of Common Stock of the Company or any security convertible into, or exercisable or exchangeable for, such shares of Stock. The shares of Stock conform in all material respects to all statements in relation thereto contained in the Registration Statement and the Prospectus. The Company has a sufficient number of authorized but unissued shares of Stock to enable the Company to issue, without further stockholder action, or approve all the Shares to be sold by the Company. (xiv) As of the date hereof, and as of each Closing Date, all of the outstanding shares of capital stock of the Subsidiaries are duly and validly authorized and issued, are fully paid and nonassessable and are and will be owned by the Company and there is and will be no outstanding option, warrant or other right calling for the issuance of, and no commitment, plan or arrangement to issue any share of capital stock of the Subsidiaries or any security convertible or exchangeable or exercisable for capital stock of the Subsidiaries, except as otherwise described in the Registration Statement and Prospectus. (xv) Except as set forth in the Registration Statement and Prospectus, no holder of any security of the Company has the right to have any security owned by such holder included in the Registration Statement or to demand registration of any security owned by such holder during the period ending 90 days after the date of this Agreement. Each Selling Stockholder and each director and executive officer of the Company has delivered to

Appears in 1 contract

Sources: Equity Underwriting Agreement (Tangoe Inc)

Representations and Warranties of the Company and the Selling Stockholders. (a) The Company ~~hereby~~ represents and warrants ~~to each Underwriter as follows~~to, and agrees with, the several Underwriters that: (i) On A registration statement (No. 333-116424) relating to the ~~Effective Date~~Offered Securities, including a form of prospectus, has been filed with the Securities and Exchange Commission ("COMMISSION") and either (A) has been declared effective under the Securities Act of 1933 ("SECURITIES ACT") and is not proposed to be amended or (B) is proposed to be amended by amendment or post-effective amendment. If such registration statement (the "INITIAL REGISTRATION STATEMENT") has been declared effective, either (A) an additional registration statement (the "ADDITIONAL REGISTRATION STATEMENT") relating to the Offered Securities may have been filed with the Commission pursuant to Rule 462(b) ("RULE 462(b)") under the Securities Act and, if so filed, has become effective upon filing pursuant to such Rule and the Offered Securities all have been duly registered under the Securities Act pursuant to the initial registration statement and, if applicable, the ~~Registration Statement complied~~additional registration statement or (B) such an additional registration statement is proposed to be filed with the Commission pursuant to Rule 462(b) and will become effective upon filing pursuant to such Rule and upon such filing the Offered Securities will all have been duly registered under the Securities Act pursuant to the initial registration statement and such additional registration statement. If the Company does not propose to amend the initial registration statement or if an additional registration statement has been filed and the Company does not propose to amend it, and ~~on the date of the Prospectus, on the date~~ if any post-effective amendment to ~~the Registration Statement shall become effective, on the date any supplement or amendment to the Prospectus is~~ either such registration statement has been filed with the Commission prior to the execution and ~~on each Closing Date~~delivery of this Agreement, the ~~Registration Statement and~~ most recent amendment (if any) to each such registration statement has been declared effective by the ~~Prospectus~~ Commission or has become effective upon filing pursuant to Rule 462(c) (~~and any amendment thereof or supplement thereto~~"RULE 462(c)") ~~will comply, in all material respects, with the applicable provisions of~~ under the Securities Act ~~and the Rules; (ii) The documents that are incorporated by reference~~ or, in the ~~preliminary prospectus~~ case of the additional registration statement, Rule 462(b). For purposes of this Agreement, "EFFECTIVE TIME" with respect to the initial registration statement or, if filed prior to the execution and delivery of this Agreement, the ~~Prospectus~~ additional registration statement means (A) if the Company has advised the Representatives that it does not propose to amend such registration statement, the date and time as of which such registration statement, or ~~from~~ the most recent post-effective amendment thereto (if any) filed prior to the execution and delivery of this Agreement, was declared effective by the Commission or has become effective upon filing pursuant to Rule 462(c), or (B) if the Company has advised the Representatives that it proposes to file an amendment or post-effective amendment to such registration statement, the date and time as of which ~~information is so incorporated~~ such registration statement, as amended by ~~reference, when they became~~ such amendment or post-effective ~~or were filed with the Commission~~amendment, as the case may be, ~~complied~~ is declared effective by the Commission. If an additional registration statement has not been filed prior to the execution and delivery of this Agreement but the Company has advised the Representatives that it proposes to file one, "EFFECTIVE TIME" with respect to such additional registration statement means the date and time as of which such registration statement is filed and becomes effective pursuant to Rule 462(b). "EFFECTIVE DATE" with respect to the initial registration statement or the additional registration statement (if any) means the date of the Effective Time thereof. The initial registration statement, as amended at its Effective Time, including all information contained in the additional registration statement (if any) and deemed to be a part of the initial registration statement as of the Effective Time of the additional registration statement pursuant to the General Instructions of the Form on which it is filed and including all information (if any) deemed to be a part of the initial registration statement as of its Effective Time pursuant to Rule 430A(b) ("RULE 430A(b)") under the Securities Act, is hereinafter referred to as the "INITIAL REGISTRATION STATEMENT". The additional registration statement, as amended at its Effective Time, including the contents of the initial registration statement incorporated by reference therein and including all information (if any) deemed to be a part of the additional registration statement as of its Effective Time pursuant to Rule 430A(b), is hereinafter referred to as the "ADDITIONAL REGISTRATION STATEMENT". The Initial Registration Statement and the Additional Registration Statement are hereinafter referred to collectively as the "REGISTRATION STATEMENTS" and individually as a "REGISTRATION STATEMENT". The form of prospectus relating to the Offered Securities, as first filed with the Commission pursuant to and in accordance with Rule 424(b) ("RULE 424(b)") under the Securities Act or (if no such filing is required) as included in a Registration Statement, is hereinafter referred to as the "PROSPECTUS". No document has been or will be prepared or distributed in reliance on Rule 434 under the Securities Act. (ii) If the Effective Time of the Initial Registration Statement is prior to the execution and delivery of this Agreement: (A) on the Effective Date of the Initial Registration Statement, the Initial Registration Statement conformed in all material respects ~~with~~ to the requirements of the Securities Act ~~or the Securities Exchange Act of 1934, as amended (the "Exchange Act"), as applicable,~~ and the rules and regulations of the Commission ~~promulgated under~~ ("RULES AND REGULATIONS") and did not include any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the ~~Securities Act and the Exchange Act~~statements therein not misleading, ~~as applicable, except as amended and superseded by statements made in the Registration Statement; and any documents so filed and incorporated by reference subsequent to~~ (B) on the Effective Date ~~shall~~of the Additional Registration Statement (if any), ~~when they are filed with the Commission~~each Registration Statement conformed or will conform, ~~conform~~ in all material respects ~~with~~ to the requirements of the Securities Act and the Rules and Regulations and did not include, or will not include, any untrue statement of a material fact and did not omit, or will not omit, to state any material fact required to be stated therein or necessary to make the ~~Exchange Act, as applicable~~statements therein not misleading, and (C) on the ~~rules and regulations~~ date of this Agreement, the Initial Registration Statement and, if the Effective Time of the ~~Commission promulgated under~~ Additional Registration Statement is prior to the execution and delivery of this Agreement, the Additional Registration Statement each conforms, and at the time of filing of the Prospectus pursuant to Rule 424(b) or (if no such filing is required) at the Effective Date of the Additional Registration Statement in which the Prospectus is included, each Registration Statement and the Prospectus will conform, in all material respects to the requirements of the Securities Act and the ~~Exchange Act~~Rules and Regulations, ~~as applicable. (iii) The consolidated financial~~ and neither of such documents includes, or will include, any untrue statement of a material fact or omits, or will omit, to state any material fact required to be stated therein or necessary to make the statements therein not misleading. If the Effective Time of the ~~Company (including all notes~~ Initial Registration Statement is subsequent to the execution and ~~schedules thereto) included in~~ delivery of this Agreement: on the Effective Date of the Initial Registration Statement, the Initial Registration Statement and the Prospectus ~~present fairly~~ will conform in all material respects to the ~~financial position, the results~~ requirements of operations and cash flows and the stockholders' equity and the other information purported to be shown therein of the Company and its subsidiaries, listed on Schedule III hereto (the "Subsidiaries"), at the respective dates and for the respective (iv) KPMG Peat Marwick LLP, whose report is filed with the Commission as a part of the Registration Statement, is and, during the periods covered by its reports, was independent public accountants as required by the Securities Act and the ~~Rules~~Rules and Regulations, neither of such documents will include any untrue statement of a material fact or will omit to state any material fact required to be stated therein or necessary to make the statements therein not misleading, and no Additional Registration Statement has been or will be filed. The two preceding sentences do not apply to statements in or omissions from a Registration Statement or the Prospectus based upon written information furnished to the Company by any Underwriter through the Representatives specifically for use therein, it being understood and agreed that the only such information is that described as such in Section 7(c) hereof. (viii) The Company has been duly incorporated and is ~~a validly~~ an existing corporation in good standing under the laws of the State of Delaware, with power and ~~the Subsidiaries have been duly incorporated~~ authority (corporate and ~~are validly existing corporations under the laws of their respective jurisdictions. Other than the Subsidiaries, the Company has no subsidiaries~~ other) to own its properties and ~~does not control, directly or indirectly, any corporation, partnership, joint venture, association or other~~ conduct its business ~~organization, except~~ as described in the ~~Registration Statement~~ Prospectus; and the ~~Prospectus. Each of the~~ Company ~~and the Subsidiaries~~ is duly qualified ~~and in good standing~~ to do business as a foreign corporation in ~~each jurisdiction~~ good standing in all other jurisdictions in which ~~the character~~ its ownership or ~~location~~ lease of ~~its assets or properties (owned, leased or licensed)~~ property or the ~~nature~~ conduct of its business ~~makes~~ requires such ~~qualification necessary~~ qualification, except ~~for such jurisdictions~~ where the failure to be so ~~qualify~~ qualified or in good standing would not have a material adverse effect on the ~~assets or properties, business, results of operations or~~ condition (financial or ~~otherwise)~~ other), business, properties or results of operations of the Company and ~~the Subsidiaries,~~ its subsidiaries taken as a whole (a "~~Material Adverse Effect~~MATERIAL ADVERSE EFFECT")~~. Except as disclosed~~ . (iv) Each subsidiary of the Company required to be identified in the Registration Statement pursuant to Item 601(b)(21) of Regulation S-K under the Securities Act has been duly incorporated and is an existing corporation in good standing under the ~~Prospectus, neither the Company nor the Subsidiaries own, lease or license any material asset or property or conduct any material business outside the United States of America. Each~~ laws of the ~~Company and the Subsidiaries have all requisite corporate~~ jurisdiction of its incorporation, with power and ~~authority,~~ authority (corporate and ~~all necessary authorizations, approvals, consents, orders, licenses, certificates and permits of and from all governmental or regulatory bodies or any other person or entity,~~ other) to ~~own, lease and license their assets and~~ own its properties and conduct ~~their businesses as now being conducted and~~ its business as described in the ~~Registration Statement and the Prospectus~~ Prospectus, except ~~for such authorizations, approvals, consents, orders, licenses, certificates and permits~~ where the failure to ~~so obtain~~ be in good standing would not have a Material Adverse Effect; no and each subsidiary of the Company is duly qualified to do business as a foreign corporation in good standing in all other jurisdictions in which its ownership or lease of property or the conduct of its business requires such ~~authorization~~qualification, ~~approval~~except where the failure to be so qualified would not have a Material Adverse Effect; all of the issued and outstanding capital stock of each subsidiary of the Company has been duly authorized and validly issued and is fully paid and nonassessable; and the capital stock of each subsidiary owned by the Company, ~~consent~~directly or through subsidiaries, ~~order~~is owned free from liens, ~~license~~encumbrances and defects, ~~certificate or permit contains a materially burdensome restriction other than as disclosed~~ except pursuant to the Company's senior credit facility described in the ~~Registration Statement~~ Prospectus. (v) The Offered Securities and all other outstanding shares of capital stock of the Company have been duly authorized; all outstanding shares of capital stock are and the Offered Securities, when delivered and paid for in accordance with this Agreement, will be validly issued, fully paid and nonassessable and in conformity with the description thereof contained in the Prospectus; and the stockholders of the Company ~~has all such corporate power and authority, and such authorizations, approvals, consents, orders, licenses, certificates and permits~~ have no preemptive rights with respect to ~~enter into, deliver and perform this Agreement and to issue and~~the Securities. (vi) The Company and the Subsidiaries own or possess adequate and enforceable rights to use all patents, trademarks, trademark applications, trade names, service marks, copyrights, copyright applications, licenses, know-how and other similar rights and proprietary knowledge (collectively, "Intangibles") material to or necessary for the conduct of their business as described in the Registration Statement and the Prospectus. Except as disclosed in the ~~Registration Statement~~ Prospectus, there are no contracts, agreements or understandings between the Company and any person that would give rise to a valid claim against the Company or any Underwriter for a brokerage commission, finder's fee or other like payment in connection with this offering. (vii) Except as disclosed in the Prospectus, ~~neither~~ there are no contracts, agreements or understandings between the Company ~~nor~~ and any person granting such person the right to require the Company to file a registration statement under the Securities Act with respect to any securities of the Company owned or to be owned by such person or to require the Company to include such securities in the securities registered pursuant to a Registration Statement or in any securities being registered pursuant to any other registration statement filed by the Company under the Securities Act. (viii) The Securities have been approved for listing subject to notice of issuance on The Nasdaq Stock Market's National Market. (ix) No consent, approval, authorization, or order of, or filing with, any governmental agency or body or any court is required to be obtained or made by the Company for the consummation of the transactions contemplated by this Agreement in connection with the sale of the Offered Securities, except (i) such as have been obtained and made under the Securities Act; (ii) such as have been obtained and made by the Underwriters with the National Association of Securities Dealers, Inc. ("NASD") in connection with the Offered Securities; and (iii) such as may be required under state securities laws. (x) The execution, delivery and performance of this Agreement, and the consummation of the transactions herein contemplated will not result in a breach or violation of any of the ~~Subsidiaries~~ terms and provisions of, or constitute a default under, any statute, any rule, regulation or order of any governmental agency or body or any court, domestic or foreign, having jurisdiction over the Company or any subsidiary of the Company or any of their properties, or any agreement or instrument to which the Company or any such subsidiary is a party or by which the Company or any such subsidiary is bound or to which any of the properties of the Company or any such subsidiary is subject, or the charter or by-laws of the Company or any such subsidiary, and the Company has full power and authority to authorize, issue and sell the Offered Securities as contemplated by this Agreement. (xi) This Agreement has been duly authorized, executed and delivered by the Company. (xii) Except as disclosed in the Prospectus, the Company and its subsidiaries have good and marketable title to all real properties and all other properties and assets owned by them, in each case free from liens, encumbrances and defects that would materially affect the value thereof or materially interfere with the use made or to be made thereof by them; and except as disclosed in the Prospectus, the Company and its subsidiaries hold any leased real or personal property under valid and enforceable leases with no exceptions that would materially interfere with the use made or to be made thereof by them. (xiii) The Company and its subsidiaries possess adequate certificates, authorities or permits issued by appropriate governmental agencies or bodies necessary to conduct the business now operated by them as described in the Prospectus and have not received any notice ofof proceedings relating to the revocation or modification of any such certificate, authority or permit that, if determined adversely to the Company or any of its subsidiaries, would individually or in the aggregate have a Material Adverse Effect. (xiv) No labor dispute with the employees of the Company or any subsidiary exists or, to the knowledge of the Company, is imminent that might have a Material Adverse Effect. (xv) The Company and its subsidiaries own, possess or can acquire on reasonable terms, adequate trademarks, trade names and other rights to inventions, know-how, patents, copyrights, confidential information and other intellectual property (collectively, "INTELLECTUAL PROPERTY RIGHTS") necessary to conduct in all material respects the business now operated by them, or presently employed by them as described in the Prospectus, and ~~to their knowledge are~~ have not ~~aware of,~~ received any notice of infringement of or conflict with asserted rights of others with respect to any ~~Intangibles which, singly or in the aggregate, if the subject of an unfavorable decision, ruling or finding,~~ intellectual property rights that could reasonably be reasonably expected to have a Material Adverse Effect, and neither the Company nor the Subsidiaries know of any reasonable basis therefor. Except as disclosed in the Registration Statement and the Prospectus, to the knowledge of the Company, no Intangibles of the Company or the Subsidiaries are in dispute or are in any conflict with the right of any other person or entity and the Company and each of the Subsidiaries (A) has or will have the right (subject to applicable agreements, which agreements provide for use to the extent necessary and desirable for the conduct of its business as currently conducted and as proposed to be conducted) to use, free and clear of all liens, charges, claims, encumbrances, pledges, security interests, defects, restrictions or equities of any kind whatsoever all licenses and rights to the Intangibles used in the conduct of their business as now conducted or proposed to be conducted without infringing upon or otherwise acting adversely to the right or claimed right of any other person and (B) is not or will not become, as the case may be, obligated or in any way liable for any payment by way of royalties, fees or otherwise and to any owner or licensee of, or other claimant to, any Intangibles with respect to the use thereof or in connection with the conduct of their business or otherwise, except in each case as disclosed in the Prospectus and except for any such payments, claims, uses, liens, charges, encumbrances, pledges, security interests, defects, restrictions and equities which would not have a Material Adverse Effect. (vii) The Company and the Subsidiaries have good and marketable title to each of the items of personal property which are reflected in the financial statements referred to in Section 4(a)(ii) or are referred to in the Registration Statement and the Prospectus as being owned by them and valid and enforceable leasehold interests in each of the items of real and personal property which are referred to in the Registration Statement and the Prospectus as being leased by them, in each case free and clear of all liens, encumbrances, claims, security interests and defects, other than those described in the Registration Statement and the Prospectus and those which do not and will not have a Material Adverse Effect. (viii) Except as described in the Registration Statement and the Prospectus, there is no litigation or governmental or other proceeding or investigation before any court or before or by any public body or board pending or, to the Company's knowledge, threatened (and the Company does not know of any reasonable basis therefor) against, or involving the assets, properties or business of, the Company or the Subsidiaries which, if adversely determined, could be reasonably expected to have a Material Adverse Effect. (ixxvi) ~~Subsequent to the respective dates~~ Except as ~~of which information is given~~ disclosed in the Registration Statement and the Prospectus, except as described therein, (A) there has not been any material adverse change in the assets or properties, business, results of operations, prospects or condition (financial or otherwise) of the Company or the Subsidiaries taken as a whole, whether or not arising from transactions in the ordinary course of business; (B) neither the Company nor any of the Subsidiaries has sustained any material loss or interference with its assets, businesses or properties (whether owned, leased or licensed) from fire, explosion, earthquake, flood or other calamity, whether or not covered by insurance, or from any labor dispute or any court or legislative or other governmental action, order or decree; and (C) since the date of the latest balance sheet included in the Registration Statement and the Prospectus, except as reflected therein, neither the Company nor any of the Subsidiaries has (x) issued any securities (other than options or shares issued pursuant to exercise of employee stock options or warrants described in the Registration Statement and Prospectus) or incurred any liability or obligation, direct or contingent, for borrowed money, except such liabilities or obligations incurred in the ordinary course of business, (y) entered into any transaction not in the ordinary course of business or (z) declared or paid any dividend or made any distribution on any shares of its stock or redeemed, purchased or otherwise acquired or agreed to redeem, purchase or otherwise acquire any shares of its stock. (x) There is no material document or contract of a character required to be described in the Registration Statement or Prospectus or to be filed as an exhibit to the Registration Statement which is not described or filed as required. Each agreement listed in the Exhibits to the Registration Statement is in full force and effect or has terminated in accordance with its terms or by amendment and such amendment has been filed as an Exhibit to the Registration Statement or has otherwise been provided to the Representatives and, if not so terminated, is valid and enforceable in all material respects by and against the Company or the Subsidiaries, as the case may be, in accordance with its terms, assuming the due authorization, execution and delivery thereof by each of the other parties thereto, except as the enforceability thereof may be limited by (i) bankruptcy, insolvency, reorganization, moratorium or other similar laws affecting the enforcement of creditors' rights generally and (ii) indemnification provisions under Federal and state securities laws; and that the remedy of specific forms of equitable relief may be subject to equitable defenses and the discretion of the court before which any such action may be brought. Neither the Company, the (xi) Neither the Company nor the Subsidiaries is in violation of any term or provision of their respective Certificate of Incorporation and By-laws, in each case as amended to the date hereof, or other governing documents, or of any franchise, license, permit, judgment, decree, order, statute, rule or regulation, where the consequences of such violation would have a Material Adverse Effect. Except as described in the Registration Statement or Prospectus, neither the Company nor any of its subsidiaries is in violation of any statute, any rule, regulation, decision or order of any governmental agency or body or any court, domestic or foreign, relating to the ~~Subsidiaries intends~~ use, disposal or release of hazardous or toxic substances or relating to ~~amend its Certificate~~ the protection or restoration of ~~Incorporation~~ the environment or human exposure to hazardous or toxic substances (collectively, "ENVIRONMENTAL LAWS"), owns or operates any real property contaminated with any substance that is subject to any environmental laws, is liable for any off-site disposal or contamination pursuant to any environmental laws, or is subject to any claim relating to any environmental laws, which violation, contamination, liability or claim would individually or in the aggregate have a Material Adverse Effect; and ~~By-laws~~the Company is not aware of any pending investigation which might lead to such a claim. (~~xii~~xvii) ~~Neither~~ Except as disclosed in the ~~execution~~Prospectus, ~~delivery and performance of this Agreement by~~ there are no pending actions, suits or proceedings against or affecting the ~~Company or the Subsidiaries nor the consummation of~~ Company, any of the transactions contemplated hereby (including, without limitation, the issuance and sale by the Company of the Shares) will give rise to a right to terminate or accelerate the due date of any payment due under, or conflict with or result in the breach of any term or provision of, or constitute a default (or an event which with notice or lapse of time or both would constitute a default) under, or require any consent or waiver under, or result in the execution or imposition of any lien, charge or encumbrance upon any properties or assets of the Company its subsidiaries or any of ~~the Subsidiaries pursuant to the terms of~~their respective properties that, any indenture, mortgage, deed of trust or other agreement or instrument to which the Company or any of the Subsidiaries is a party or by which it or any of its properties or businesses are bound, or any franchise, license, permit, judgment, decree, order, statute, rule or regulation applicable if determined adversely to the Company or any of its subsidiaries, would individually or in the Subsidiaries or violate any provision of the Certificate of Incorporation and By-laws of the Company or any of the Subsidiaries, except for such consents or waivers which have already been obtained and are in full force and effect or as would not aggregate have a Material Adverse Effect~~. No consent~~, ~~approval, authorization, order, registration~~ or ~~qualification of or with any United States court or governmental agency or body is required for~~ would materially and adversely affect the issue and sale of the Shares or the consummation of the other transactions contemplated by this Agreement, which have not been obtained prior to the date hereof, except the registration under the Securities Act of the Shares, and such consents, approvals, authorizations, registrations or qualifications as may be required under state securities or Blue Sky laws -9- 10 in connection with the purchase and distribution of the Shares by the Underwriters. (xiii) The authorized, issued and outstanding capital stock ability of the Company and the capital stock reserved or committed for issuance is as set forth under the caption "Capitalization" in the Prospectus. All of the outstanding shares of Stock have been duly and validly issued and are fully paid and nonassessable, none of them was issued in violation of any preemptive or other similar right and, to the Company's knowledge, since 1991, none of them were issued in violation of any Federal or state securities laws. The Shares, when issued and sold pursuant to this Agreement, will be duly and validly issued, fully paid and nonassessable, none of them will be issued in violation of any preemptive or other similar right, any contractual right, including, without limitation, rights of first refusal, and, since 1991, none of them were issued in violation of any (subject to compliance with Section 1(c) hereof), Federal or state securities laws. Except as disclosed in the Registration Statement and the Prospectus, there is no outstanding option, warrant or other right calling for the issuance of, and there is no commitment, plan or arrangement to issue, any shares of Common Stock of the Company or any security convertible into, or exercisable or exchangeable for, such shares of Stock. The shares of Stock conform in all material respects to all statements in relation thereto contained in the Registration Statement and the Prospectus. The Company has a sufficient number of authorized but unissued shares of Stock to enable the Company to issue, without further stockholder action, or approve all the Shares to be sold by the Company. (xiv) As of the date hereof, and as of each Closing Date, all of the outstanding shares of capital stock of the Subsidiaries are duly and validly authorized and issued, are fully paid and nonassessable and are and will be owned by the Company and there is and will be no outstanding option, warrant or other right calling for the issuance of, and no commitment, plan or arrangement to issue any share of capital stock of the Subsidiaries or any security convertible or exchangeable or exercisable for capital stock of the Subsidiaries, except as otherwise described in the Registration Statement and Prospectus. (xv) Except as set forth in the Registration Statement and Prospectus, no holder of any security of the Company has the right to have any security owned by such holder included in the Registration Statement or to demand registration of any security owned by such holder during the period ending 90 days after the date of this Agreement. Each Selling Stockholder and each director and executive officer of the Company has delivered toperform its obligation

Appears in 1 contract

Sources: Underwriting Agreement (PRA International)

Appears in 1 contract

Sources: Underwriting Agreement (Commercial Vehicle Group, Inc.)

Representations and Warranties of the Company and the Selling Stockholders. (a) The Company ~~hereby~~ represents and warrants to each Underwriter as of the date hereof, as of the Firm Shares Closing Date and as of the Optional Shares Closing Date (each, as defined below) as follows: (i1) ~~On the Effective Date, the Registration Statement complied, and on the date of the Prospectus, on the date any post~~A registration statement (No. 333-~~effective amendment~~ 114278) relating to the Shares, including a form of prospectus (“Registration ~~Statement shall become effective~~Statement”), ~~on the date any supplement or amendment to the Prospectus is~~ has been filed with the Securities and Exchange Commission (“Commission”) and on each Closing Date, the Registration Statement and the Prospectus (and any amendment thereof or supplement thereto) will comply, in all material respects, with the applicable provisions of the Securities Act and the Rules; (ii) The documents that are incorporated by reference in the preliminary prospectus and the Prospectus or from which information is so incorporated by reference, when they became effective or were filed with the Commission, as the case may be, complied in all material respects with the requirements of the Securities Act or the Securities Exchange Act of 1934, as amended (the "Exchange Act"), as applicable, and the rules and regulations of the Commission promulgated under the Securities Act and the Exchange Act, as applicable, except as amended and superseded by statements made in the Registration Statement; and any documents so filed and incorporated by reference subsequent to the Effective Date shall, when they are filed with the Commission, conform in all material respects with the requirements of the Securities Act or the Exchange Act, as applicable, and the rules and regulations of the Commission promulgated under the Securities Act and the Exchange Act, as applicable. (iii) The consolidated financial statements of the Company (including all notes and schedules thereto) included in the Registration Statement and Prospectus present fairly the financial position, the results of operations and cash flows and the stockholders' equity and the other information purported to be shown therein of the Company and its subsidiaries, listed on Schedule III hereto (the "Subsidiaries"), at the respective dates and for the respective (iv) KPMG Peat Marwick LLP, whose report is filed with the Commission as a part of the Registration Statement, is and, during the periods covered by its reports, was independent public accountants as required by the Securities Act and the Rules. (v) The Company has been duly incorporated and is a validly existing corporation under the laws of the State of Delaware, and the Subsidiaries have been duly incorporated and are validly existing corporations under the laws of their respective jurisdictions. Other than the Subsidiaries, the Company has no subsidiaries and does not control, directly or indirectly, any corporation, partnership, joint venture, association or other business organization, except as described in the Registration Statement and the Prospectus. Each of the Company and the Subsidiaries is duly qualified and in good standing as a foreign corporation in each jurisdiction in which the character or location of its assets or properties (owned, leased or licensed) or the nature of its business makes such qualification necessary except for such jurisdictions where the failure to so qualify would not have a material adverse effect on the assets or properties, business, results of operations or condition (financial or otherwise) of the Company and the Subsidiaries, taken as a whole (a "Material Adverse Effect"). Except as disclosed in the Registration Statement and the Prospectus, neither the Company nor the Subsidiaries own, lease or license any material asset or property or conduct any material business outside the United States of America. Each of the Company and the Subsidiaries have all requisite corporate power and authority, and all necessary authorizations, approvals, consents, orders, licenses, certificates and permits of and from all governmental or regulatory bodies or any other person or entity, to own, lease and license their assets and properties and conduct their businesses as now being conducted and as described in the Registration Statement and the Prospectus except for such authorizations, approvals, consents, orders, licenses, certificates and permits the failure to so obtain would not have a Material Adverse Effect; no such authorization, approval, consent, order, license, certificate or permit contains a materially burdensome restriction other than as disclosed in the Registration Statement and the Prospectus; and the Company has all such corporate power and authority, and such authorizations, approvals, consents, orders, licenses, certificates and permits to enter into, deliver and perform this Agreement and to issue and (vi) The Company and the Subsidiaries own or possess adequate and enforceable rights to use all patents, trademarks, trademark applications, trade names, service marks, copyrights, copyright applications, licenses, know-how and other similar rights and proprietary knowledge (collectively, "Intangibles") material to or necessary for the conduct of their business as described in the Registration Statement and the Prospectus. Except as disclosed in the Registration Statement and the Prospectus, neither the Company nor any of the Subsidiaries have received any notice of, and to their knowledge are not aware of, any infringement of or conflict with asserted rights of others with respect to any Intangibles which, singly or in the aggregate, if the subject of an unfavorable decision, ruling or finding, could be reasonably expected to have a Material Adverse Effect, and neither the Company nor the Subsidiaries know of any reasonable basis therefor. Except as disclosed in the Registration Statement and the Prospectus, to the knowledge of the Company, no Intangibles of the Company or the Subsidiaries are in dispute or are in any conflict with the right of any other person or entity and the Company and each of the Subsidiaries (A) has or will have the right (subject to applicable agreements, which agreements provide for use to the extent necessary and desirable for the conduct of its business as currently conducted and as proposed to be conducted) to use, free and clear of all liens, charges, claims, encumbrances, pledges, security interests, defects, restrictions or equities of any kind whatsoever all licenses and rights to the Intangibles used in the conduct of their business as now conducted or proposed to be conducted without infringing upon or otherwise acting adversely to the right or claimed right of any other person and (B) is not or will not become, as the case may be, obligated or in any way liable for any payment by way of royalties, fees or otherwise and to any owner or licensee of, or other claimant to, any Intangibles with respect to the use thereof or in connection with the conduct of their business or otherwise, except in each case as disclosed in the Prospectus and except for any such payments, claims, uses, liens, charges, encumbrances, pledges, security interests, defects, restrictions and equities which would not have a Material Adverse Effect. (vii) The Company and the Subsidiaries have good and marketable title to each of the items of personal property which are reflected in the financial statements referred to in Section 4(a)(ii) or are referred to in the Registration Statement and the Prospectus as being owned by them and valid and enforceable leasehold interests in each of the items of real and personal property which are referred to in the Registration Statement and the Prospectus as being leased by them, in each case free and clear of all liens, encumbrances, claims, security interests and defects, other than those described in the Registration Statement and the Prospectus and those which do not and will not have a Material Adverse Effect. (viii) Except as described in the Registration Statement and the Prospectus, there is no litigation or governmental or other proceeding or investigation before any court or before or by any public body or board pending or, to the Company's knowledge, threatened (and the Company does not know of any reasonable basis therefor) against, or involving the assets, properties or business of, the Company or the Subsidiaries which, if adversely determined, could be reasonably expected to have a Material Adverse Effect. (ix) Subsequent to the respective dates as of which information is given in the Registration Statement and the Prospectus, except as described therein, (A) there has not been any material adverse change in the assets or properties, business, results of operations, prospects or condition (financial or otherwise) of the Company or the Subsidiaries taken as a whole, whether or not arising from transactions in the ordinary course of business; (B) neither the Company nor any of the Subsidiaries has sustained any material loss or interference with its assets, businesses or properties (whether owned, leased or licensed) from fire, explosion, earthquake, flood or other calamity, whether or not covered by insurance, or from any labor dispute or any court or legislative or other governmental action, order or decree; and (C) since the date of the latest balance sheet included in the Registration Statement and the Prospectus, except as reflected therein, neither the Company nor any of the Subsidiaries has (x) issued any securities (other than options or shares issued pursuant to exercise of employee stock options or warrants described in the Registration Statement and Prospectus) or incurred any liability or obligation, direct or contingent, for borrowed money, except such liabilities or obligations incurred in the ordinary course of business, (y) entered into any transaction not in the ordinary course of business or (z) declared or paid any dividend or made any distribution on any shares of its stock or redeemed, purchased or otherwise acquired or agreed to redeem, purchase or otherwise acquire any shares of its stock. (x) There is no material document or contract of a character required to be described in the Registration Statement or Prospectus or to be filed as an exhibit to the Registration Statement which is not described or filed as required. Each agreement listed in the Exhibits to the Registration Statement is in full force and effect or has terminated in accordance with its terms or by amendment and such amendment has been filed as an Exhibit to the Registration Statement or has otherwise been provided to the Representatives and, if not so terminated, is valid and enforceable in all material respects by and against the Company or the Subsidiaries, as the case may be, in accordance with its terms, assuming the due authorization, execution and delivery thereof by each of the other parties thereto, except as the enforceability thereof may be limited by either (i) bankruptcy, insolvency, reorganization, moratorium or other similar laws affecting the enforcement of creditors' rights generally and (ii) indemnification provisions under Federal and state securities laws; and that the remedy of specific forms of equitable relief may be subject to equitable defenses and the discretion of the court before which any such action may be brought. Neither the Company, the (xi) Neither the Company nor the Subsidiaries is in violation of any term or provision of their respective Certificate of Incorporation and By-laws, in each case as amended to the date hereof, or other governing documents, or of any franchise, license, permit, judgment, decree, order, statute, rule or regulation, where the consequences of such violation would have a Material Adverse Effect. Except as described in the Registration Statement or Prospectus, neither the Company nor any of the Subsidiaries intends to amend its Certificate of Incorporation and By-laws. (xii) Neither the execution, delivery and performance of this Agreement by the Company or the Subsidiaries nor the consummation of any of the transactions contemplated hereby (including, without limitation, the issuance and sale by the Company of the Shares) will give rise to a right to terminate or accelerate the due date of any payment due under, or conflict with or result in the breach of any term or provision of, or constitute a default (or an event which with notice or lapse of time or both would constitute a default) under, or require any consent or waiver under, or result in the execution or imposition of any lien, charge or encumbrance upon any properties or assets of the Company or any of the Subsidiaries pursuant to the terms of, any indenture, mortgage, deed of trust or other agreement or instrument to which the Company or any of the Subsidiaries is a party or by which it or any of its properties or businesses are bound, or any franchise, license, permit, judgment, decree, order, statute, rule or regulation applicable to the Company or any of the Subsidiaries or violate any provision of the Certificate of Incorporation and By-laws of the Company or any of the Subsidiaries, except for such consents or waivers which have already has been obtained and are in full force and effect or as would not have a Material Adverse Effect. No consent, approval, authorization, order, registration or qualification of or with any United States court or governmental agency or body is required for the issue and sale of the Shares or the consummation of the other transactions contemplated by this Agreement, which have not been obtained prior to the date hereof, except the registration declared effective under the Securities Act of 1933 (the ~~Shares~~“Securities Act”) and is not proposed to be amended or (ii) is proposed to be amended by amendment or post-effective amendment. If such registration statement (“initial registration statement”) has been declared effective, ~~and such consents, approvals, authorizations, registrations or qualifications as~~ either (i) an additional registration statement (“additional registration statement”) relating to the Shares may ~~be required under state securities or Blue Sky laws -9- 10 in connection~~ have been filed with the ~~purchase~~ Commission pursuant to Rule 462(b) (“Rule 462(b)”) under the Securities Act and, if so filed, has become effective upon filing pursuant to such Rule and ~~distribution of~~ the Shares by the Underwriters. (xiii) The authorized, issued and outstanding capital stock of the Company and the capital stock reserved or committed for issuance is as set forth under the caption "Capitalization" in the Prospectus. All of the outstanding shares of Stock all have been duly ~~and validly issued and are fully paid and nonassessable, none of them was issued in violation of any preemptive or other similar right~~ registered under the Securities Act pursuant to the initial registration statement and, if applicable, the additional registration statement or (ii) such an additional registration statement is proposed to be filed with the Commission pursuant to Rule 462(b) and will become effective upon filing pursuant to such Rule and upon such filing the Shares will all have been duly registered under the Securities Act pursuant to the ~~Company's knowledge, since 1991, none of them were issued in violation of any Federal or state securities laws~~initial registration statement and such additional registration statement. The Shares, when issued and sold pursuant to this Agreement, will be duly and validly issued, fully paid and nonassessable, none of them will be issued in violation of any preemptive or other similar right, any contractual right, including, without limitation, rights of first refusal, and, since 1991, none of them were issued in violation of any (subject to compliance with Section 1(c) hereof), Federal or state securities laws. Except as disclosed in the Registration Statement and the Prospectus, there is no outstanding option, warrant or other right calling for the issuance of, and there is no commitment, plan or arrangement to issue, any shares of Common Stock of If the Company ~~or any security convertible into, or exercisable or exchangeable for, such shares of Stock. The shares of Stock conform in all material respects~~ does not propose to ~~all statements in relation thereto contained in~~ amend the Registration Statement and the Prospectus. The Company has a sufficient number of authorized but unissued shares of Stock to enable the Company to issue, without further stockholder action, or approve all the Shares to be sold by the Company. (xiv) As of the date hereof, and as of each Closing Date, all of the outstanding shares of capital stock of the Subsidiaries are duly and validly authorized and issued, are fully paid and nonassessable and are and will be owned by the Company and there is and will be no outstanding option, warrant or other right calling for the issuance of, and no commitment, plan or arrangement to issue any share of capital stock of the Subsidiaries or any security convertible or exchangeable or exercisable for capital stock of the Subsidiaries, except as otherwise described in the Registration Statement and Prospectus. (xv) Except as set forth in the Registration Statement and Prospectus, no holder of any security of the Company has the right to have any security owned by such holder included in the Registration Statement or to demand registration of any security owned by such holder during the period ending 90 days after the date of this Agreement. Each Selling Stockholder and each director and executive officer of the Company has delivered toinitial registration

Appears in 1 contract

Sources: Underwriting Agreement (Uap Holding Corp)

Appears in 1 contract

Sources: Underwriting Agreement (TAL International Group, Inc.)

Appears in 1 contract

Sources: Underwriting Agreement (Stage Stores Inc)

Appears in 1 contract

Sources: Underwriting Agreement (Idt Corp)

Appears in 1 contract

Sources: Underwriting Agreement (Global Eagle Entertainment Inc.)

Representations and Warranties of the Company and the Selling Stockholders. (a) The Company ~~hereby~~ represents and warrants ~~to each Underwriter as follows~~to, and agrees with, the several Underwriters that: (i) ~~On the Effective Date, the Registration Statement complied, and on the date of the Prospectus, on the date any post~~A registration statement (No. 333-~~effective amendment~~ 59190) relating to the ~~Registration Statement shall become effective~~Offered Securities, ~~on the date any supplement or amendment to the Prospectus is~~ including a form of prospectus, has been filed with the Securities and Exchange Commission and on each Closing Date, the Registration Statement and the Prospectus (and any amendment thereof or supplement thereto) will comply, in all material respects, with the applicable provisions of the Securities Act and the Rules; (ii) The documents that are incorporated by reference in the preliminary prospectus and the Prospectus or from which information is so incorporated by reference, when they became effective or were filed with the Commission, as the case may be, complied in all material respects with the requirements of the Securities Act or the Securities Exchange Act of 1934, as amended (the "Exchange Act"), as applicable, and the rules and regulations of the Commission promulgated under the Securities Act and the Exchange Act, as applicable, except as amended and superseded by statements made in the Registration Statement; and any documents so filed and incorporated by reference subsequent to the Effective Date shall, when they are filed with the Commission, conform in all material respects with the requirements of the Securities Act or the Exchange Act, as applicable, and the rules and regulations of the Commission promulgated under the Securities Act and the Exchange Act, as applicable. (iii) The consolidated financial statements of the Company (including all notes and schedules thereto) included in the Registration Statement and Prospectus present fairly the financial position, the results of operations and cash flows and the stockholders' equity and the other information purported to be shown therein of the Company and its subsidiaries, listed on Schedule III hereto (the "Subsidiaries"), at the respective dates and for the respective (iv) KPMG Peat Marwick LLP, whose report is filed with the Commission as a part of the Registration Statement, is and, during the periods covered by its reports, was independent public accountants as required by the Securities Act and the Rules. (v) The Company has been duly incorporated and is a validly existing corporation under the laws of the State of Delaware, and the Subsidiaries have been duly incorporated and are validly existing corporations under the laws of their respective jurisdictions. Other than the Subsidiaries, the Company has no subsidiaries and does not control, directly or indirectly, any corporation, partnership, joint venture, association or other business organization, except as described in the Registration Statement and the Prospectus. Each of the Company and the Subsidiaries is duly qualified and in good standing as a foreign corporation in each jurisdiction in which the character or location of its assets or properties (owned, leased or licensed) or the nature of its business makes such qualification necessary except for such jurisdictions where the failure to so qualify would not have a material adverse effect on the assets or properties, business, results of operations or condition (financial or otherwise) of the Company and the Subsidiaries, taken as a whole (a "Material Adverse Effect"). Except as disclosed in the Registration Statement and the Prospectus, neither the Company nor the Subsidiaries own, lease or license any material asset or property or conduct any material business outside the United States of America. Each of the Company and the Subsidiaries have all requisite corporate power and authority, and all necessary authorizations, approvals, consents, orders, licenses, certificates and permits of and from all governmental or regulatory bodies or any other person or entity, to own, lease and license their assets and properties and conduct their businesses as now being conducted and as described in the Registration Statement and the Prospectus except for such authorizations, approvals, consents, orders, licenses, certificates and permits the failure to so obtain would not have a Material Adverse Effect; no such authorization, approval, consent, order, license, certificate or permit contains a materially burdensome restriction other than as disclosed in the Registration Statement and the Prospectus; and the Company has all such corporate power and authority, and such authorizations, approvals, consents, orders, licenses, certificates and permits to enter into, deliver and perform this Agreement and to issue and (vi) The Company and the Subsidiaries own or possess adequate and enforceable rights to use all patents, trademarks, trademark applications, trade names, service marks, copyrights, copyright applications, licenses, know-how and other similar rights and proprietary knowledge (collectively, "Intangibles") ~~material to or necessary for the conduct of their business as described in the Registration Statement~~ and the Prospectus. Except as disclosed in the Registration Statement and the Prospectus, neither the Company nor any of the Subsidiaries have received any notice of, and to their knowledge are not aware of, any infringement of or conflict with asserted rights of others with respect to any Intangibles which, singly or in the aggregate, if the subject of an unfavorable decision, ruling or finding, could be reasonably expected to have a Material Adverse Effect, and neither the Company nor the Subsidiaries know of any reasonable basis therefor. Except as disclosed in the Registration Statement and the Prospectus, to the knowledge of the Company, no Intangibles of the Company or the Subsidiaries are in dispute or are in any conflict with the right of any other person or entity and the Company and each of the Subsidiaries either (A) has or will have the right (subject to applicable agreements, which agreements provide for use to the extent necessary and desirable for the conduct of its business as currently conducted and as proposed to be conducted) to use, free and clear of all liens, charges, claims, encumbrances, pledges, security interests, defects, restrictions or equities of any kind whatsoever all licenses and rights to the Intangibles used in the conduct of their business as now conducted or proposed to be conducted without infringing upon or otherwise acting adversely to the right or claimed right of any other person and (B) is not or will not become, as the case may be, obligated or in any way liable for any payment by way of royalties, fees or otherwise and to any owner or licensee of, or other claimant to, any Intangibles with respect to the use thereof or in connection with the conduct of their business or otherwise, except in each case as disclosed in the Prospectus and except for any such payments, claims, uses, liens, charges, encumbrances, pledges, security interests, defects, restrictions and equities which would not have a Material Adverse Effect. (vii) The Company and the Subsidiaries have good and marketable title to each of the items of personal property which are reflected in the financial statements referred to in Section 4(a)(ii) or are referred to in the Registration Statement and the Prospectus as being owned by them and valid and enforceable leasehold interests in each of the items of real and personal property which are referred to in the Registration Statement and the Prospectus as being leased by them, in each case free and clear of all liens, encumbrances, claims, security interests and defects, other than those described in the Registration Statement and the Prospectus and those which do not and will not have a Material Adverse Effect. (viii) Except as described in the Registration Statement and the Prospectus, there is no litigation or governmental or other proceeding or investigation before any court or before or by any public body or board pending or, to the Company's knowledge, threatened (and the Company does not know of any reasonable basis therefor) against, or involving the assets, properties or business of, the Company or the Subsidiaries which, if adversely determined, could be reasonably expected to have a Material Adverse Effect. (ix) Subsequent to the respective dates as of which information is given in the Registration Statement and the Prospectus, except as described therein, (A) there has not been any material adverse change in the assets or properties, business, results of operations, prospects or condition (financial or otherwise) of the Company or the Subsidiaries taken as a whole, whether or not arising from transactions in the ordinary course of business; (B) neither the Company nor any of the Subsidiaries has sustained any material loss or interference with its assets, businesses or properties (whether owned, leased or licensed) from fire, explosion, earthquake, flood or other calamity, whether or not covered by insurance, or from any labor dispute or any court or legislative or other governmental action, order or decree; and (C) since the date of the latest balance sheet included in the Registration Statement and the Prospectus, except as reflected therein, neither the Company nor any of the Subsidiaries has (x) issued any securities (other than options or shares issued pursuant to exercise of employee stock options or warrants described in the Registration Statement and Prospectus) or incurred any liability or obligation, direct or contingent, for borrowed money, except such liabilities or obligations incurred in the ordinary course of business, (y) entered into any transaction not in the ordinary course of business or (z) declared or paid any dividend or made any distribution on any shares of its stock or redeemed, purchased or otherwise acquired or agreed to redeem, purchase or otherwise acquire any shares of its stock. (x) There is no material document or contract of a character required to be described in the Registration Statement or Prospectus or to be filed as an exhibit to the Registration Statement which is not described or filed as required. Each agreement listed in the Exhibits to the Registration Statement is in full force and effect or has terminated in accordance with its terms or by amendment and such amendment has been filed as an Exhibit to the Registration Statement or has otherwise been provided to the Representatives and, if not so terminated, is valid and enforceable in all material respects by and against the Company or the Subsidiaries, as the case may be, in accordance with its terms, assuming the due authorization, execution and delivery thereof by each of the other parties thereto, except as the enforceability thereof may be limited by (i) bankruptcy, insolvency, reorganization, moratorium or other similar laws affecting the enforcement of creditors' rights generally and (ii) indemnification provisions under Federal and state securities laws; and that the remedy of specific forms of equitable relief may be subject to equitable defenses and the discretion of the court before which any such action may be brought. Neither the Company, the (xi) Neither the Company nor the Subsidiaries is in violation of any term or provision of their respective Certificate of Incorporation and By-laws, in each case as amended to the date hereof, or other governing documents, or of any franchise, license, permit, judgment, decree, order, statute, rule or regulation, where the consequences of such violation would have a Material Adverse Effect. Except as described in the Registration Statement or Prospectus, neither the Company nor any of the Subsidiaries intends to amend its Certificate of Incorporation and By-laws. (xii) Neither the execution, delivery and performance of this Agreement by the Company or the Subsidiaries nor the consummation of any of the transactions contemplated hereby (including, without limitation, the issuance and sale by the Company of the Shares) will give rise to a right to terminate or accelerate the due date of any payment due under, or conflict with or result in the breach of any term or provision of, or constitute a default (or an event which with notice or lapse of time or both would constitute a default) under, or require any consent or waiver under, or result in the execution or imposition of any lien, charge or encumbrance upon any properties or assets of the Company or any of the Subsidiaries pursuant to the terms of, any indenture, mortgage, deed of trust or other agreement or instrument to which the Company or any of the Subsidiaries is a party or by which it or any of its properties or businesses are bound, or any franchise, license, permit, judgment, decree, order, statute, rule or regulation applicable to the Company or any of the Subsidiaries or violate any provision of the Certificate of Incorporation and By-laws of the Company or any of the Subsidiaries, except for such consents or waivers which have already been obtained and are in full force and effect or as would not have a Material Adverse Effect. No consent, approval, authorization, order, registration or qualification of or with any United States court or governmental agency or body is required for the issue and sale of the Shares or the consummation of the other transactions contemplated by this Agreement, which have not been obtained prior to the date hereof, except the registration effective under the Securities Act of 1933 (the ~~Shares~~"Act") and is not proposed to be amended or (B) is proposed to be amended by amendment or post-effective amendment. If such registration statement (the "initial registration statement") has been declared effective, ~~and such consents, approvals, authorizations, registrations or qualifications as~~ either (A) an additional registration statement (the "additional registration statement") relating to the Offered Securities may ~~be required under state securities or Blue Sky laws -9- 10 in connection~~ have been filed with the ~~purchase and distribution of~~ Commission pursuant to Rule 462(b) ("Rule 462(b)") under the ~~Shares by the Underwriters. (xiii) The authorized~~Act and, ~~issued and outstanding capital stock of the Company~~ if so filed, has become effective upon filing pursuant to such Rule and the ~~capital stock reserved or committed for issuance is as set forth under the caption "Capitalization" in the Prospectus. All of the outstanding shares of Stock~~ Offered Securities all have been duly ~~and validly issued and are fully paid and nonassessable, none of them was issued in violation of any preemptive or other similar right~~ registered under the Act pursuant to the initial registration statement and, if applicable, the additional registration statement or (B) such an additional registration statement is proposed to be filed with the Commission pursuant to Rule 462(b) and will become effective upon filing pursuant to such Rule and upon such filing the Offered Securities will all have been duly registered under the Act pursuant to the ~~Company's knowledge, since 1991, none of them were issued in violation of any Federal or state securities laws~~initial registration statement and such additional registration statement. The Shares, when issued and sold pursuant to this Agreement, will be duly and validly issued, fully paid and nonassessable, none of them will be issued in violation of any preemptive or other similar right, any contractual right, including, without limitation, rights of first refusal, and, since 1991, none of them were issued in violation of any (subject to compliance with Section 1(c) hereof), Federal or state securities laws. Except as disclosed in the Registration Statement and the Prospectus, there is no outstanding option, warrant or other right calling for the issuance of, and there is no commitment, plan or arrangement to issue, any shares of Common Stock of If the Company does not propose to amend the initial registration statement or any security convertible into, or exercisable or exchangeable for, such shares of Stock. The shares of Stock conform in all material respects to all statements in relation thereto contained in the Registration Statement and the Prospectus. The Company has a sufficient number of authorized but unissued shares of Stock to enable the Company to issue, without further stockholder action, or approve all the Shares to be sold by the Company. (xiv) As of the date hereof, and as of each Closing Date, all of the outstanding shares of capital stock of the Subsidiaries are duly and validly authorized and issued, are fully paid and nonassessable and are and will be owned by the Company and there is and will be no outstanding option, warrant or other right calling for the issuance of, and no commitment, plan or arrangement to issue any share of capital stock of the Subsidiaries or any security convertible or exchangeable or exercisable for capital stock of the Subsidiaries, except as otherwise described in the Registration Statement and Prospectus. (xv) Except as set forth in the Registration Statement and Prospectus, no holder of any security of the Company has the right to have any security owned by such holder included in the Registration Statement or to demand if an additional registration ~~of any security owned by such holder during the period ending 90 days after the date of this Agreement. Each Selling Stockholder and each director and executive officer of the Company has delivered to~~statement has

Appears in 1 contract

Sources: Underwriting Agreement (Dal Tile International Inc)

Appears in 1 contract

Sources: Underwriting Agreement (American Tower Corp /Ma/)

Appears in 1 contract

Sources: Underwriting Agreement (Bristol West Holdings Inc)

Representations and Warranties of the Company and the Selling Stockholders. (a) The Company ~~hereby~~ represents and warrants ~~to each Underwriter as follows~~to, and agrees with, the Selling Stockholders and the several Underwriters that: (i) ~~On the Effective Date, the Registration Statement complied, and on the date of the Prospectus, on the date any post~~A registration statement (No. 333-~~effective amendment~~ 86563) relating to the ~~Registration Statement shall become effective~~Offered Securities, ~~on the date any supplement or amendment to the Prospectus is~~ including a form of prospectus, has been filed with the Securities and Exchange Commission ~~and on each Closing Date, the Registration Statement and the Prospectus~~ (and any amendment thereof or supplement thereto) will comply, in all material respects, with the applicable provisions of the Securities Act and the Rules; (ii) The documents that are incorporated by reference in the preliminary prospectus and the Prospectus or from which information is so incorporated by reference, when they became effective or were filed with the Commission, as the case may be, complied in all material respects with the requirements of the Securities Act or the Securities Exchange Act of 1934, as amended (the "Exchange Act"), as applicable, and the rules and regulations of the Commission promulgated under the Securities Act and the Exchange Act, as applicable, except as amended and superseded by statements made in the Registration Statement; and any documents so filed and incorporated by reference subsequent to the Effective Date shall, when they are filed with the Commission, conform in all material respects with the requirements of the Securities Act or the Exchange Act, as applicable, and the rules and regulations of the Commission promulgated under the Securities Act and the Exchange Act, as applicable. (iii) The consolidated financial statements of the Company (including all notes and schedules thereto) included in the Registration Statement and Prospectus present fairly the financial position, the results of operations and cash flows and the stockholders' equity and the other information purported to be shown therein of the Company and its subsidiaries, listed on Schedule III hereto (the "Subsidiaries"), at the respective dates and for the respective (iv) KPMG Peat Marwick LLP, whose report is filed with the Commission as a part of the Registration Statement, is and, during the periods covered by its reports, was independent public accountants as required by the Securities Act and the Rules. (v) The Company has been duly incorporated and is a validly existing corporation under the laws of the State of Delaware, and the Subsidiaries have been duly incorporated and are validly existing corporations under the laws of their respective jurisdictions. Other than the Subsidiaries, the Company has no subsidiaries and does not control, directly or indirectly, any corporation, partnership, joint venture, association or other business organization, except as described in the Registration Statement and the Prospectus. Each of the Company and the Subsidiaries is duly qualified and in good standing as a foreign corporation in each jurisdiction in which the character or location of its assets or properties (owned, leased or licensed) or the nature of its business makes such qualification necessary except for such jurisdictions where the failure to so qualify would not have a material adverse effect on the assets or properties, business, results of operations or condition (financial or otherwise) of the Company and the Subsidiaries, taken as a whole (a "Material Adverse Effect"). Except as disclosed in the Registration Statement and the Prospectus, neither the Company nor the Subsidiaries own, lease or license any material asset or property or conduct any material business outside the United States of America. Each of the Company and the Subsidiaries have all requisite corporate power and authority, and all necessary authorizations, approvals, consents, orders, licenses, certificates and permits of and from all governmental or regulatory bodies or any other person or entity, to own, lease and license their assets and properties and conduct their businesses as now being conducted and as described in the Registration Statement and the Prospectus except for such authorizations, approvals, consents, orders, licenses, certificates and permits the failure to so obtain would not have a Material Adverse Effect; no such authorization, approval, consent, order, license, certificate or permit contains a materially burdensome restriction other than as disclosed in the Registration Statement and the Prospectus; and the Company has all such corporate power and authority, and such authorizations, approvals, consents, orders, licenses, certificates and permits to enter into, deliver and perform this Agreement and to issue and (vi) The Company and the Subsidiaries own or possess adequate and enforceable rights to use all patents, trademarks, trademark applications, trade names, service marks, copyrights, copyright applications, licenses, know-how and other similar rights and proprietary knowledge (collectively, "IntangiblesCOMMISSION") ~~material to or necessary for the conduct of their business as described in the Registration Statement~~ and the Prospectus. Except as disclosed in the Registration Statement and the Prospectus, neither the Company nor any of the Subsidiaries have received any notice of, and to their knowledge are not aware of, any infringement of or conflict with asserted rights of others with respect to any Intangibles which, singly or in the aggregate, if the subject of an unfavorable decision, ruling or finding, could be reasonably expected to have a Material Adverse Effect, and neither the Company nor the Subsidiaries know of any reasonable basis therefor. Except as disclosed in the Registration Statement and the Prospectus, to the knowledge of the Company, no Intangibles of the Company or the Subsidiaries are in dispute or are in any conflict with the right of any other person or entity and the Company and each of the Subsidiaries either (A) has or will have the right (subject to applicable agreements, which agreements provide for use to the extent necessary and desirable for the conduct of its business as currently conducted and as proposed to be conducted) to use, free and clear of all liens, charges, claims, encumbrances, pledges, security interests, defects, restrictions or equities of any kind whatsoever all licenses and rights to the Intangibles used in the conduct of their business as now conducted or proposed to be conducted without infringing upon or otherwise acting adversely to the right or claimed right of any other person and (B) is not or will not become, as the case may be, obligated or in any way liable for any payment by way of royalties, fees or otherwise and to any owner or licensee of, or other claimant to, any Intangibles with respect to the use thereof or in connection with the conduct of their business or otherwise, except in each case as disclosed in the Prospectus and except for any such payments, claims, uses, liens, charges, encumbrances, pledges, security interests, defects, restrictions and equities which would not have a Material Adverse Effect. (vii) The Company and the Subsidiaries have good and marketable title to each of the items of personal property which are reflected in the financial statements referred to in Section 4(a)(ii) or are referred to in the Registration Statement and the Prospectus as being owned by them and valid and enforceable leasehold interests in each of the items of real and personal property which are referred to in the Registration Statement and the Prospectus as being leased by them, in each case free and clear of all liens, encumbrances, claims, security interests and defects, other than those described in the Registration Statement and the Prospectus and those which do not and will not have a Material Adverse Effect. (viii) Except as described in the Registration Statement and the Prospectus, there is no litigation or governmental or other proceeding or investigation before any court or before or by any public body or board pending or, to the Company's knowledge, threatened (and the Company does not know of any reasonable basis therefor) against, or involving the assets, properties or business of, the Company or the Subsidiaries which, if adversely determined, could be reasonably expected to have a Material Adverse Effect. (ix) Subsequent to the respective dates as of which information is given in the Registration Statement and the Prospectus, except as described therein, (A) there has not been any material adverse change in the assets or properties, business, results of operations, prospects or condition (financial or otherwise) of the Company or the Subsidiaries taken as a whole, whether or not arising from transactions in the ordinary course of business; (B) neither the Company nor any of the Subsidiaries has sustained any material loss or interference with its assets, businesses or properties (whether owned, leased or licensed) from fire, explosion, earthquake, flood or other calamity, whether or not covered by insurance, or from any labor dispute or any court or legislative or other governmental action, order or decree; and (C) since the date of the latest balance sheet included in the Registration Statement and the Prospectus, except as reflected therein, neither the Company nor any of the Subsidiaries has (x) issued any securities (other than options or shares issued pursuant to exercise of employee stock options or warrants described in the Registration Statement and Prospectus) or incurred any liability or obligation, direct or contingent, for borrowed money, except such liabilities or obligations incurred in the ordinary course of business, (y) entered into any transaction not in the ordinary course of business or (z) declared or paid any dividend or made any distribution on any shares of its stock or redeemed, purchased or otherwise acquired or agreed to redeem, purchase or otherwise acquire any shares of its stock. (x) There is no material document or contract of a character required to be described in the Registration Statement or Prospectus or to be filed as an exhibit to the Registration Statement which is not described or filed as required. Each agreement listed in the Exhibits to the Registration Statement is in full force and effect or has terminated in accordance with its terms or by amendment and such amendment has been filed as an Exhibit to the Registration Statement or has otherwise been provided to the Representatives and, if not so terminated, is valid and enforceable in all material respects by and against the Company or the Subsidiaries, as the case may be, in accordance with its terms, assuming the due authorization, execution and delivery thereof by each of the other parties thereto, except as the enforceability thereof may be limited by (i) bankruptcy, insolvency, reorganization, moratorium or other similar laws affecting the enforcement of creditors' rights generally and (ii) indemnification provisions under Federal and state securities laws; and that the remedy of specific forms of equitable relief may be subject to equitable defenses and the discretion of the court before which any such action may be brought. Neither the Company, the (xi) Neither the Company nor the Subsidiaries is in violation of any term or provision of their respective Certificate of Incorporation and By-laws, in each case as amended to the date hereof, or other governing documents, or of any franchise, license, permit, judgment, decree, order, statute, rule or regulation, where the consequences of such violation would have a Material Adverse Effect. Except as described in the Registration Statement or Prospectus, neither the Company nor any of the Subsidiaries intends to amend its Certificate of Incorporation and By-laws. (xii) Neither the execution, delivery and performance of this Agreement by the Company or the Subsidiaries nor the consummation of any of the transactions contemplated hereby (including, without limitation, the issuance and sale by the Company of the Shares) will give rise to a right to terminate or accelerate the due date of any payment due under, or conflict with or result in the breach of any term or provision of, or constitute a default (or an event which with notice or lapse of time or both would constitute a default) under, or require any consent or waiver under, or result in the execution or imposition of any lien, charge or encumbrance upon any properties or assets of the Company or any of the Subsidiaries pursuant to the terms of, any indenture, mortgage, deed of trust or other agreement or instrument to which the Company or any of the Subsidiaries is a party or by which it or any of its properties or businesses are bound, or any franchise, license, permit, judgment, decree, order, statute, rule or regulation applicable to the Company or any of the Subsidiaries or violate any provision of the Certificate of Incorporation and By-laws of the Company or any of the Subsidiaries, except for such consents or waivers which have already been obtained and are in full force and effect or as would not have a Material Adverse Effect. No consent, approval, authorization, order, registration or qualification of or with any United States court or governmental agency or body is required for the issue and sale of the Shares or the consummation of the other transactions contemplated by this Agreement, which have not been obtained prior to the date hereof, except the registration effective under the Securities Act of 1933 ("ACT") and is not proposed to be amended or (B) is proposed to be amended by amendment or post-effective amendment. If such registration statement (the ~~Shares~~"INITIAL REGISTRATION STATEMENT") has been declared effective, ~~and such consents, approvals, authorizations, registrations or qualifications as~~ either (A) an additional registration statement (the "ADDITIONAL REGISTRATION STATEMENT") relating to the Offered Securities may ~~be required under state securities or Blue Sky laws -9- 10 in connection~~ have been filed with the ~~purchase and distribution of~~ Commission pursuant to Rule 462(b) ("RULE 462(b)") under the ~~Shares by the Underwriters. (xiii) The authorized~~Act and, ~~issued and outstanding capital stock of the Company~~ if so filed, has become effective upon filing pursuant to such Rule and the ~~capital stock reserved or committed for issuance is as set forth under the caption "Capitalization" in the Prospectus. All of the outstanding shares of Stock~~ Offered Securities all have been duly ~~and validly issued and are fully paid and nonassessable, none of them was issued in violation of any preemptive or other similar right~~ registered under the Act pursuant to the initial registration statement and, if applicable, the additional registration statement or (B) such an additional registration statement is proposed to be filed with the Commission pursuant to Rule 462(b) and will become effective upon filing pursuant to such Rule and upon such filing the Offered Securities will all have been duly registered under the Act pursuant to the ~~Company's knowledge, since 1991, none of them were issued in violation of any Federal or state securities laws. The Shares, when issued~~ initial registration statement and sold pursuant to this Agreement, will be duly and validly issued, fully paid and nonassessable, none of them will be issued in violation of any preemptive or other similar right, any contractual right, including, without limitation, rights of first refusal, and, since 1991, none of them were issued in violation of any (subject to compliance with Section 1(c) hereof), Federal or state securities laws. Except as disclosed in the Registration Statement and the Prospectus, there is no outstanding option, warrant or other right calling for the issuance of, and there is no commitment, plan or arrangement to issue, any shares of Common Stock of the Company or any security convertible into, or exercisable or exchangeable for, such shares of Stock. The shares of Stock conform in all material respects to all statements in relation thereto contained in the Registration Statement and the Prospectus. The Company has a sufficient number of authorized but unissued shares of Stock to enable the Company to issue, without further stockholder action, or approve all the Shares to be sold by the Company. (xiv) As of the date hereof, and as of each Closing Date, all of the outstanding shares of capital stock of the Subsidiaries are duly and validly authorized and issued, are fully paid and nonassessable and are and will be owned by the Company and there is and will be no outstanding option, warrant or other right calling for the issuance of, and no commitment, plan or arrangement to issue any share of capital stock of the Subsidiaries or any security convertible or exchangeable or exercisable for capital stock of the Subsidiaries, except as otherwise described in the Registration Statement and Prospectus. (xv) Except as set forth in the Registration Statement and Prospectus, no holder of any security of the Company has the right to have any security owned by such holder included in the Registration Statement or to demand registration of any security owned by such holder during the period ending 90 days after the date of this Agreement. Each Selling Stockholder and each director and executive officer of the Company has delivered toadditional

Appears in 1 contract

Sources: Underwriting Agreement (Allaire Corp)

Appears in 1 contract

Sources: Underwriting Agreement (Gevity Hr Inc)

Appears in 1 contract

Sources: Underwriting Agreement (Power Solutions International, Inc.)

Representations and Warranties of the Company and the Selling Stockholders. The Company and the Selling Stockholders represent, warrant and covenant, severally and not jointly, to the Underwriter the following, provided, however, that with respect to any representation, warranty or covenant that is to the knowledge of the Company and/or a Selling Stockholder, (1) any breach of such representation, warranty or covenant by the Company due solely to the Company’s knowledge shall only be a breach by the Company, and (2) any breach of such representation, warranty or covenant by the Selling Stockholder due solely to the Selling Stockholder’s knowledge shall only be a breach by such Selling Stockholder: (a) The Company ~~hereby represents~~ meets the requirements for use of Form S-3 for sales of the Shares by the Selling Stockholders and ~~warrants~~ a registration statement (Registration No. 333-113255) on Form S-3 relating to ~~each Underwriter~~ the sale of the Shares by the Selling Stockholders, including a preliminary prospectus and such amendments to such registration statement as ~~follows: (i) On the Effective Date, the Registration Statement complied, and on~~ may have been required to the date of this Agreement, has been prepared by the ~~Prospectus, on~~ Company under the date any post-effective amendment to the Registration Statement shall become effective, on the date any supplement or amendment to the Prospectus is filed with the Commission and on each Closing Date, the Registration Statement and the Prospectus (and any amendment thereof or supplement thereto) will comply, in all material respects, with the applicable provisions of the Securities Act of 1933, as amended (the “Act”), and the ~~Rules;~~ rules and regulations (iicollectively referred to as the “Rules and Regulations”) ~~The documents that are incorporated by reference in~~ of the ~~preliminary prospectus~~ Securities and Exchange Commission (the ~~Prospectus or from which information is so incorporated by reference~~“Commission”) thereunder, ~~when they became effective or were~~ and has been filed with the Commission. The term “preliminary prospectus” as used herein means a preliminary prospectus, including the documents incorporated by reference therein, as contemplated by Rule 430 or Rule 430A of the ~~case may be~~Rules and Regulations included at any time as part of the registration statement. Copies of such registration statement and amendments and of each related preliminary prospectus have been delivered to the Underwriter. If such registration statement has not become effective, ~~complied in all material respects~~ a further amendment to such registration statement, including a form of final prospectus, necessary to permit such registration statement to become effective will be filed promptly by the Company with the ~~requirements~~ Commission. If such registration statement has become effective, a final prospectus containing information permitted to be omitted at the time of effectiveness by Rule 430A of the ~~Securities Act~~ Rules and Regulations will be filed promptly by the Company with the Commission in accordance with Rule 424(b) of the Rules and Regulations. The term “Registration Statement” means the registration statement as amended at the time it becomes or became effective (the “Effective Date”), including all documents incorporated by reference therein, financial statements and all exhibits and schedules thereto and any information deemed to be included by Rule 430A, and includes any registration statement relating to the offering contemplated by this Agreement and filed pursuant to Rule 462(b) of the Rules and Regulations. The term “Prospectus” means the prospectus relating to the sale of the Shares by the Selling Stockholders, including the documents incorporated by reference therein, as first filed with the Commission pursuant to Rule 424(b) of the Rules and Regulations or, if no such filing is required, the form of final prospectus, including the documents incorporated by reference therein, included in the Registration Statement at the Effective Date. Any reference herein to the terms “amend,” “amendment” or “supplement” with respect to the Registration Statement, any preliminary prospectus or the Prospectus shall be deemed to refer to and include the filing of any document under the Securities Exchange Act of 1934, as amended (the "“Exchange Act"”), ~~as applicable~~after the Effective Date, ~~and~~ the ~~rules and regulations~~ date of any preliminary prospectus or the date of the Commission promulgated under the Securities Act and the Exchange Act, as applicable, except as amended and superseded by statements made in the Registration Statement; and any documents so filed and incorporated by reference subsequent to the Effective Date shall, when they are filed with the Commission, conform in all material respects with the requirements of the Securities Act or the Exchange Act, as applicable, and the rules and regulations of the Commission promulgated under the Securities Act and the Exchange Act, as applicable. (iii) The consolidated financial statements of the Company (including all notes and schedules thereto) included in the Registration Statement and Prospectus present fairly the financial position, the results of operations and cash flows and the stockholders' equity and the other information purported to be shown therein of the Company and its subsidiaries, listed on Schedule III hereto (the "Subsidiaries"), at the respective dates and for the respective (iv) KPMG Peat Marwick LLP, whose report is filed with the Commission as a part of the Registration Statement, is and, during the periods covered by its reports, was independent public accountants as required by the Securities Act and the Rules. (v) The Company has been duly incorporated and is a validly existing corporation under the laws of the State of Delaware, and the Subsidiaries have been duly incorporated and are validly existing corporations under the laws of their respective jurisdictions. Other than the Subsidiaries, the Company has no subsidiaries and does not control, directly or indirectly, any corporation, partnership, joint venture, association or other business organization, except as described in the Registration Statement and the Prospectus. Each of the Company and the Subsidiaries is duly qualified and in good standing as a foreign corporation in each jurisdiction in which the character or location of its assets or properties (owned, leased or licensed) or the nature of its business makes such qualification necessary except for such jurisdictions where the failure to so qualify would not have a material adverse effect on the assets or properties, business, results of operations or condition (financial or otherwise) of the Company and the Subsidiaries, taken as a whole (a "Material Adverse Effect"). Except as disclosed in the Registration Statement and the Prospectus, neither the Company nor the Subsidiaries own, lease or license any material asset or property or conduct any material business outside the United States of America. Each of the Company and the Subsidiaries have all requisite corporate power and authority, and all necessary authorizations, approvals, consents, orders, licenses, certificates and permits of and from all governmental or regulatory bodies or any other person or entity, to own, lease and license their assets and properties and conduct their businesses as now being conducted and as described in the Registration Statement and the Prospectus except for such authorizations, approvals, consents, orders, licenses, certificates and permits the failure to so obtain would not have a Material Adverse Effect; no such authorization, approval, consent, order, license, certificate or permit contains a materially burdensome restriction other than as disclosed in the Registration Statement and the Prospectus; and the Company has all such corporate power and authority, and such authorizations, approvals, consents, orders, licenses, certificates and permits to enter into, deliver and perform this Agreement and to issue and (vi) The Company and the Subsidiaries own or possess adequate and enforceable rights to use all patents, trademarks, trademark applications, trade names, service marks, copyrights, copyright applications, licenses, know-how and other similar rights and proprietary knowledge (collectively, "Intangibles") material to or necessary for the conduct of their business as described in the Registration Statement and the Prospectus. Except as disclosed in the Registration Statement and the Prospectus, neither the Company nor any of the Subsidiaries have received any notice of, and to their knowledge are not aware of, any infringement of or conflict with asserted rights of others with respect to any Intangibles which, singly or in the aggregate, if the subject of an unfavorable decision, ruling or finding, could be reasonably expected to have a Material Adverse Effect, and neither the Company nor the Subsidiaries know of any reasonable basis therefor. Except as disclosed in the Registration Statement and the Prospectus, to the knowledge of the Company, no Intangibles of the Company or the Subsidiaries are in dispute or are in any conflict with the right of any other person or entity and the Company and each of the Subsidiaries (A) has or will have the right (subject to applicable agreements, which agreements provide for use to the extent necessary and desirable for the conduct of its business as currently conducted and as proposed to be conducted) to use, free and clear of all liens, charges, claims, encumbrances, pledges, security interests, defects, restrictions or equities of any kind whatsoever all licenses and rights to the Intangibles used in the conduct of their business as now conducted or proposed to be conducted without infringing upon or otherwise acting adversely to the right or claimed right of any other person and (B) is not or will not become, as the case may be, ~~obligated or in any way liable for any payment by way of royalties, fees or otherwise~~ and to any owner or licensee of, or other claimant to, any Intangibles with respect to the use thereof or in connection with the conduct of their business or otherwise, except in each case as disclosed in the Prospectus and except for any such payments, claims, uses, liens, charges, encumbrances, pledges, security interests, defects, restrictions and equities which would not have a Material Adverse Effect. (vii) The Company and the Subsidiaries have good and marketable title to each of the items of personal property which are reflected in the financial statements referred to in Section 4(a)(ii) or are referred to in the Registration Statement and the Prospectus as being owned by them and valid and enforceable leasehold interests in each of the items of real and personal property which are referred to in the Registration Statement and the Prospectus as being leased by them, in each case free and clear of all liens, encumbrances, claims, security interests and defects, other than those described in the Registration Statement and the Prospectus and those which do not and will not have a Material Adverse Effect. (viii) Except as described in the Registration Statement and the Prospectus, there is no litigation or governmental or other proceeding or investigation before any court or before or by any public body or board pending or, to the Company's knowledge, threatened (and the Company does not know of any reasonable basis therefor) against, or involving the assets, properties or business of, the Company or the Subsidiaries which, if adversely determined, could be reasonably expected to have a Material Adverse Effect. (ix) Subsequent to the respective dates as of which information is given in the Registration Statement and the Prospectus, except as described therein, (A) there has not been any material adverse change in the assets or properties, business, results of operations, prospects or condition (financial or otherwise) of the Company or the Subsidiaries taken as a whole, whether or not arising from transactions in the ordinary course of business; (B) neither the Company nor any of the Subsidiaries has sustained any material loss or interference with its assets, businesses or properties (whether owned, leased or licensed) from fire, explosion, earthquake, flood or other calamity, whether or not covered by insurance, or from any labor dispute or any court or legislative or other governmental action, order or decree; and (C) since the date of the latest balance sheet included in the Registration Statement and the Prospectus, except as reflected therein, neither the Company nor any of the Subsidiaries has (x) issued any securities (other than options or shares issued pursuant to exercise of employee stock options or warrants described in the Registration Statement and Prospectus) or incurred any liability or obligation, direct or contingent, for borrowed money, except such liabilities or obligations incurred in the ordinary course of business, (y) entered into any transaction not in the ordinary course of business or (z) declared or paid any dividend or made any distribution on any shares of its stock or redeemed, purchased or otherwise acquired or agreed to redeem, purchase or otherwise acquire any shares of its stock. (x) There is no material document or contract of a character required deemed to be described in the Registration Statement or Prospectus or to be filed as an exhibit to the Registration Statement which is not described or filed as required. Each agreement listed in the Exhibits to the Registration Statement is in full force and effect or has terminated in accordance with its terms or incorporated therein by amendment and such amendment has been filed as an Exhibit to the Registration Statement or has otherwise been provided to the Representatives and, if not so terminated, is valid and enforceable in all material respects by and against the Company or the Subsidiaries, as the case may be, in accordance with its terms, assuming the due authorization, execution and delivery thereof by each of the other parties thereto, except as the enforceability thereof may be limited by (i) bankruptcy, insolvency, reorganization, moratorium or other similar laws affecting the enforcement of creditors' rights generally and (ii) indemnification provisions under Federal and state securities laws; and that the remedy of specific forms of equitable relief may be subject to equitable defenses and the discretion of the court before which any such action may be brought. Neither the Company, the (xi) Neither the Company nor the Subsidiaries is in violation of any term or provision of their respective Certificate of Incorporation and By-laws, in each case as amended to the date hereof, or other governing documents, or of any franchise, license, permit, judgment, decree, order, statute, rule or regulation, where the consequences of such violation would have a Material Adverse Effect. Except as described in the Registration Statement or Prospectus, neither the Company nor any of the Subsidiaries intends to amend its Certificate of Incorporation and By-lawsreference. (xii) Neither the execution, delivery and performance of this Agreement by the Company or the Subsidiaries nor the consummation of any of the transactions contemplated hereby (including, without limitation, the issuance and sale by the Company of the Shares) will give rise to a right to terminate or accelerate the due date of any payment due under, or conflict with or result in the breach of any term or provision of, or constitute a default (or an event which with notice or lapse of time or both would constitute a default) under, or require any consent or waiver under, or result in the execution or imposition of any lien, charge or encumbrance upon any properties or assets of the Company or any of the Subsidiaries pursuant to the terms of, any indenture, mortgage, deed of trust or other agreement or instrument to which the Company or any of the Subsidiaries is a party or by which it or any of its properties or businesses are bound, or any franchise, license, permit, judgment, decree, order, statute, rule or regulation applicable to the Company or any of the Subsidiaries or violate any provision of the Certificate of Incorporation and By-laws of the Company or any of the Subsidiaries, except for such consents or waivers which have already been obtained and are in full force and effect or as would not have a Material Adverse Effect. No consent, approval, authorization, order, registration or qualification of or with any United States court or governmental agency or body is required for the issue and sale of the Shares or the consummation of the other transactions contemplated by this Agreement, which have not been obtained prior to the date hereof, except the registration under the Securities Act of the Shares, and such consents, approvals, authorizations, registrations or qualifications as may be required under state securities or Blue Sky laws -9- 10 in connection with the purchase and distribution of the Shares by the Underwriters. (xiii) The authorized, issued and outstanding capital stock of the Company and the capital stock reserved or committed for issuance is as set forth under the caption "Capitalization" in the Prospectus. All of the outstanding shares of Stock have been duly and validly issued and are fully paid and nonassessable, none of them was issued in violation of any preemptive or other similar right and, to the Company's knowledge, since 1991, none of them were issued in violation of any Federal or state securities laws. The Shares, when issued and sold pursuant to this Agreement, will be duly and validly issued, fully paid and nonassessable, none of them will be issued in violation of any preemptive or other similar right, any contractual right, including, without limitation, rights of first refusal, and, since 1991, none of them were issued in violation of any (subject to compliance with Section 1(c) hereof), Federal or state securities laws. Except as disclosed in the Registration Statement and the Prospectus, there is no outstanding option, warrant or other right calling for the issuance of, and there is no commitment, plan or arrangement to issue, any shares of Common Stock of the Company or any security convertible into, or exercisable or exchangeable for, such shares of Stock. The shares of Stock conform in all material respects to all statements in relation thereto contained in the Registration Statement and the Prospectus. The Company has a sufficient number of authorized but unissued shares of Stock to enable the Company to issue, without further stockholder action, or approve all the Shares to be sold by the Company. (xiv) As of the date hereof, and as of each Closing Date, all of the outstanding shares of capital stock of the Subsidiaries are duly and validly authorized and issued, are fully paid and nonassessable and are and will be owned by the Company and there is and will be no outstanding option, warrant or other right calling for the issuance of, and no commitment, plan or arrangement to issue any share of capital stock of the Subsidiaries or any security convertible or exchangeable or exercisable for capital stock of the Subsidiaries, except as otherwise described in the Registration Statement and Prospectus. (xv) Except as set forth in the Registration Statement and Prospectus, no holder of any security of the Company has the right to have any security owned by such holder included in the Registration Statement or to demand registration of any security owned by such holder during the period ending 90 days after the date of this Agreement. Each Selling Stockholder and each director and executive officer of the Company has delivered to

Appears in 1 contract

Sources: Underwriting Agreement (Computer Access Technology Corp)

Representations and Warranties of the Company and the Selling Stockholders. (a) The Company ~~hereby~~ represents and warrants ~~to each Underwriter~~ as follows: (i) On A registration statement on Form S-3 (File No. 33-63775) with respect to the ~~Effective Date~~Shares has been carefully prepared by the Company in conformity with the requirements of the Securities Act of 1933, as amended (the "Act"), and the rules and regulations (the "Rules and Regulations") of the Securities and Exchange Commission (the "Commission") promulgated thereunder and has been filed with the Commission under the Act. The Company has complied with the conditions for the use of Form S-3. Copies of such registration statement, including any amendments thereto, the ~~Registration Statement complied, and on~~ preliminary prospectuses (meeting the ~~date~~ requirements of Rule 430A of the ~~Prospectus~~Rules and Regulations) contained therein and the exhibits, on financial statements and schedules, as finally amended and revised, have heretofore been delivered by the ~~date any~~ Company to you. Such registration statement, herein referred to as the "Registration Statement", which shall be deemed to include all information omitted therefrom in reliance upon Rule 430A and contained in the Prospectus referred to below, has been declared effective by the Commission under the Act and no post-effective amendment to the Registration Statement ~~shall become effective, on~~ has been filed as of the date ~~any supplement or amendment to~~ of this Agreement. The term "Prospectus" means the ~~Prospectus is~~ form of prospectus first filed by the Company with the Commission pursuant to its Rule 424(b) and Rule 430A or, if the Company relies on ~~each Closing Date~~Rule 434 of the Rules and Regulations, the "Term Sheet" relating to the Shares together with the preliminary prospectus that such Term Sheet supplements. "Term Sheet" means any term sheet that satisfies the requirements of Rule 434. Each preliminary prospectus included in the Registration Statement ~~and~~ prior to the time it becomes effective is herein referred to as a "Preliminary Prospectus". Any reference herein to any Preliminary Prospectus or the Prospectus (shall be deemed to refer to and ~~any amendment thereof or supplement thereto) will comply, in all material respects, with~~ include the ~~applicable provisions of the Securities Act and the Rules; (ii) The~~ documents ~~that are~~ incorporated by reference in therein, as of the ~~preliminary prospectus and the~~ date of such Preliminary Prospectus or ~~from which information is so incorporated by reference, when they became effective or were filed with the Commission~~Prospectus, as the case may be, ~~complied in all material respects with the requirements of the Securities Act or the Securities Exchange Act of 1934~~and, as amended (the "Exchange Act"), as applicable, and the rules and regulations of the Commission promulgated under the Securities Act and the Exchange Act, as applicable, except as amended and superseded by statements made in the ~~Registration Statement; and~~ case of any reference herein to any Prospectus, also shall be deemed to include any documents ~~so filed and~~ incorporated by reference ~~subsequent to the Effective Date shall, when they are filed with the Commission, conform in all material respects with the requirements of the Securities Act or the Exchange Act, as applicable~~therein, and ~~the rules and regulations of the Commission promulgated under the Securities Act and the Exchange Act~~any supplements or amendments thereto, as applicable. (iii) The consolidated financial statements of the Company (including all notes and schedules thereto) included in the Registration Statement and Prospectus present fairly the financial position, the results of operations and cash flows and the stockholders' equity and the other information purported to be shown therein of the Company and its subsidiaries, listed on Schedule III hereto (the "Subsidiaries"), at the respective dates and for the respective (iv) KPMG Peat Marwick LLP, whose report is filed with the Commission as a part of the Registration Statement, is and, during the periods covered by its reports, was independent public accountants as required by the Securities Act and the Rules. (v) The Company has been duly incorporated and is a validly existing corporation under the laws of the State of Delaware, and the Subsidiaries have been duly incorporated and are validly existing corporations under the laws of their respective jurisdictions. Other than the Subsidiaries, the Company has no subsidiaries and does not control, directly or indirectly, any corporation, partnership, joint venture, association or other business organization, except as described in the Registration Statement and the Prospectus. Each of the Company and the Subsidiaries is duly qualified and in good standing as a foreign corporation in each jurisdiction in which the character or location of its assets or properties (owned, leased or licensed) or the nature of its business makes such qualification necessary except for such jurisdictions where the failure to so qualify would not have a material adverse effect on the assets or properties, business, results of operations or condition (financial or otherwise) of the Company and the Subsidiaries, taken as a whole (a "Material Adverse Effect"). Except as disclosed in the Registration Statement and the Prospectus, neither the Company nor the Subsidiaries own, lease or license any material asset or property or conduct any material business outside the United States of America. Each of the Company and the Subsidiaries have all requisite corporate power and authority, and all necessary authorizations, approvals, consents, orders, licenses, certificates and permits of and from all governmental or regulatory bodies or any other person or entity, to own, lease and license their assets and properties and conduct their businesses as now being conducted and as described in the Registration Statement and the Prospectus except for such authorizations, approvals, consents, orders, licenses, certificates and permits the failure to so obtain would not have a Material Adverse Effect; no such authorization, approval, consent, order, license, certificate or permit contains a materially burdensome restriction other than as disclosed in the Registration Statement and the Prospectus; and the Company has all such corporate power and authority, and such authorizations, approvals, consents, orders, licenses, certificates and permits to enter into, deliver and perform this Agreement and to issue and (vi) The Company and the Subsidiaries own or possess adequate and enforceable rights to use all patents, trademarks, trademark applications, trade names, service marks, copyrights, copyright applications, licenses, know-how and other similar rights and proprietary knowledge (collectively, "Intangibles") material to or necessary for the conduct of their business as described in the Registration Statement and the Prospectus. Except as disclosed in the Registration Statement and the Prospectus, neither the Company nor any of the Subsidiaries have received any notice of, and to their knowledge are not aware of, any infringement of or conflict with asserted rights of others with respect to any Intangibles which, singly or in the aggregate, if the subject of an unfavorable decision, ruling or finding, could be reasonably expected to have a Material Adverse Effect, and neither the Company nor the Subsidiaries know of any reasonable basis therefor. Except as disclosed in the Registration Statement and the Prospectus, to the knowledge of the Company, no Intangibles of the Company or the Subsidiaries are in dispute or are in any conflict with the right of any other person or entity and the Company and each of the Subsidiaries (A) has or will have the right (subject to applicable agreements, which agreements provide for use to the extent necessary and desirable for the conduct of its business as currently conducted and as proposed to be conducted) to use, free and clear of all liens, charges, claims, encumbrances, pledges, security interests, defects, restrictions or equities of any kind whatsoever all licenses and rights to the Intangibles used in the conduct of their business as now conducted or proposed to be conducted without infringing upon or otherwise acting adversely to the right or claimed right of any other person and (B) is not or will not become, as the case may be, obligated or in any way liable for any payment by way of royalties, fees or otherwise and to any owner or licensee of, or other claimant to, any Intangibles with respect to the use thereof or in connection with the conduct of their business or otherwise, except in each case as disclosed in the Prospectus and except for any such payments, claims, uses, liens, charges, encumbrances, pledges, security interests, defects, restrictions and equities which would not have a Material Adverse Effect. (vii) The Company and the Subsidiaries have good and marketable title to each of the items of personal property which are reflected in the financial statements referred to in Section 4(a)(ii) or are referred to in the Registration Statement and the Prospectus as being owned by them and valid and enforceable leasehold interests in each of the items of real and personal property which are referred to in the Registration Statement and the Prospectus as being leased by them, in each case free and clear of all liens, encumbrances, claims, security interests and defects, other than those described in the Registration Statement and the Prospectus and those which do not and will not have a Material Adverse Effect. (viii) Except as described in the Registration Statement and the Prospectus, there is no litigation or governmental or other proceeding or investigation before any court or before or by any public body or board pending or, to the Company's knowledge, threatened (and the Company does not know of any reasonable basis therefor) against, or involving the assets, properties or business of, the Company or the Subsidiaries which, if adversely determined, could be reasonably expected to have a Material Adverse Effect. (ix) Subsequent to the respective dates as of which information is given in the Registration Statement and the Prospectus, except as described therein, (A) there has not been any material adverse change in the assets or properties, business, results of operations, prospects or condition (financial or otherwise) of the Company or the Subsidiaries taken as a whole, whether or not arising from transactions in the ordinary course of business; (B) neither the Company nor any of the Subsidiaries has sustained any material loss or interference with its assets, businesses or properties (whether owned, leased or licensed) from fire, explosion, earthquake, flood or other calamity, whether or not covered by insurance, or from any labor dispute or any court or legislative or other governmental action, order or decree; and (C) since after the date of ~~the latest balance sheet included in the Registration Statement and the Prospectus, except as reflected therein, neither the Company nor any~~ filing of the ~~Subsidiaries has (x~~Prospectus under Rules 424(b) ~~issued any securities (other than options or shares issued pursuant to exercise of employee stock options or warrants described in the Registration Statement~~ and ~~Prospectus) or incurred any liability or obligation~~430A, direct or contingent, for borrowed money, except such liabilities or obligations incurred in the ordinary course of business, (y) entered into any transaction not in the ordinary course of business or (z) declared or paid any dividend or made any distribution on any shares of its stock or redeemed, purchased or otherwise acquired or agreed to redeem, purchase or otherwise acquire any shares of its stock. (x) There is no material document or contract of a character required to be described in the Registration Statement or Prospectus or to be filed as an exhibit to the Registration Statement which is not described or filed as required. Each agreement listed in the Exhibits to the Registration Statement is in full force and effect or has terminated in accordance with its terms or by amendment and such amendment has been filed as an Exhibit to the Registration Statement or has otherwise been provided to the Representatives and, if not so terminated, is valid and enforceable in all material respects by and against the Company or the Subsidiaries, as the case may be, in accordance with its terms, assuming the due authorization, execution and delivery thereof by each of the other parties thereto, except as the enforceability thereof may be limited by (i) bankruptcy, insolvency, reorganization, moratorium or other similar laws affecting the enforcement of creditors' rights generally and (ii) indemnification provisions under Federal and state securities laws; and that the remedy of specific forms of equitable relief may be subject to equitable defenses and the discretion of the court before which any such action may be brought. Neither the Company, the (xi) Neither the Company nor the Subsidiaries is in violation of any term or provision of their respective Certificate of Incorporation and By-laws, in each case as amended to the date hereof, or other governing documents, or of any franchise, license, permit, judgment, decree, order, statute, rule or regulation, where the consequences of such violation would have a Material Adverse Effect. Except as described in the Registration Statement or Prospectus, neither the Company nor any of the Subsidiaries intends to amend its Certificate of Incorporation and By-laws. (xii) Neither the execution, delivery and performance of this Agreement by the Company or the Subsidiaries nor the consummation of any of the transactions contemplated hereby (including, without limitation, the issuance and sale by the Company of the Shares) will give rise to a right to terminate or accelerate the due date of any payment due under, or conflict with or result in the breach of any term or provision of, or constitute a default (or an event which with notice or lapse of time or both would constitute a default) under, or require any consent or waiver under, or result in the execution or imposition of any lien, charge or encumbrance upon any properties or assets of the Company or any of the Subsidiaries pursuant to the terms of, any indenture, mortgage, deed of trust or other agreement or instrument to which the Company or any of the Subsidiaries is a party or by which it or any of its properties or businesses are bound, or any franchise, license, permit, judgment, decree, order, statute, rule or regulation applicable to the Company or any of the Subsidiaries or violate any provision of the Certificate of Incorporation and By-laws of the Company or any of the Subsidiaries, except for such consents or waivers which have already been obtained and are in full force and effect or as would not have a Material Adverse Effect. No consent, approval, authorization, order, registration or qualification of or with any United States court or governmental agency or body is required for the issue and sale of the Shares or the consummation of the other transactions contemplated by this Agreement, which have not been obtained prior to the ~~date hereof, except the registration under the Securities Act~~ termination of the ~~Shares, and such consents, approvals, authorizations, registrations or qualifications as may be required under state securities or Blue Sky laws -9- 10 in connection with the purchase and distribution~~ offering of the Shares by the Underwriters. (xiii) The authorized, issued and outstanding capital stock of the Company and the capital stock reserved or committed for issuance is as set forth under the caption "Capitalization" in the Prospectus. All of the outstanding shares of Stock have been duly and validly issued and are fully paid and nonassessable, none of them was issued in violation of any preemptive or other similar right and, to the Company's knowledge, since 1991, none of them were issued in violation of any Federal or state securities laws. The Shares, when issued and sold pursuant to this Agreement, will be duly and validly issued, fully paid and nonassessable, none of them will be issued in violation of any preemptive or other similar right, any contractual right, including, without limitation, rights of first refusal, and, since 1991, none of them were issued in violation of any (subject to compliance with Section 1(c) hereof), Federal or state securities laws. Except as disclosed in the Registration Statement and the Prospectus, there is no outstanding option, warrant or other right calling for the issuance of, and there is no commitment, plan or arrangement to issue, any shares of Common Stock of the Company or any security convertible into, or exercisable or exchangeable for, such shares of Stock. The shares of Stock conform in all material respects to all statements in relation thereto contained in the Registration Statement and the Prospectus. The Company has a sufficient number of authorized but unissued shares of Stock to enable the Company to issue, without further stockholder action, or approve all the Shares to be sold by the Company. (xiv) As of the date hereof, and as of each Closing Date, all of the outstanding shares of capital stock of the Subsidiaries are duly and validly authorized and issued, are fully paid and nonassessable and are and will be owned by the Company and there is and will be no outstanding option, warrant or other right calling for the issuance of, and no commitment, plan or arrangement to issue any share of capital stock of the Subsidiaries or any security convertible or exchangeable or exercisable for capital stock of the Subsidiaries, except as otherwise described in the Registration Statement and Prospectus. (xv) Except as set forth in the Registration Statement and Prospectus, no holder of any security of the Company has the right to have any security owned by such holder included in the Registration Statement or to demand registration of any security owned by such holder during the period ending 90 days after the date of this Agreement. Each Selling Stockholder and each director and executive officer of the Company has delivered to

Appears in 1 contract

Sources: Underwriting Agreement (Zygo Corp)

Appears in 1 contract

Sources: Underwriting Agreement (Global Power Equipment Group Inc/)

Representations and Warranties of the Company and the Selling Stockholders. The Company and each of the Selling Stockholders (with the exception of ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇) severally represent and warrant to the several Underwriters that: (a) ~~The Company hereby represents and warrants to each Underwriter as follows:~~ A registration statement on Form S-1 (iFile No. 333-___) ~~On the Effective Date, the Registration Statement complied, and on the date of the Prospectus, on the date any post-effective amendment~~ with respect to the ~~Registration Statement shall become effective, on~~ Common Shares has been prepared by the date any supplement or amendment to the Prospectus is filed with the Commission and on each Closing Date, the Registration Statement and the Prospectus (and any amendment thereof or supplement thereto) will comply, Company in all material respects, with the applicable provisions of the Securities Act and the Rules; (ii) The documents that are incorporated by reference in the preliminary prospectus and the Prospectus or from which information is so incorporated by reference, when they became effective or were filed with the Commission, as the case may be, complied in all material respects conformity with the requirements of the Securities Act ~~or the Securities Exchange Act~~ of ~~1934~~1933, as amended (the "~~Exchange~~ Act")~~, as applicable~~, and the rules and regulations (the "Rules and Regulations") of the Securities and Exchange Commission ~~promulgated under~~ (the ~~Securities Act~~ "Commission") thereunder, and the Exchange Act, as applicable, except as amended and superseded by statements made in the Registration Statement; and any documents so filed and incorporated by reference subsequent to the Effective Date shall, when they are has been filed with the Commission. The Company has prepared and has filed or proposes to file prior to the effective date of such registration statement an amendment or amendments to such registration statement, ~~conform in all material respects~~ which amendment or amendments have been or will be similarly prepared. There have been delivered to you two signed copies of such registration statement and amendments, together with ~~the requirements~~ two copies of each exhibit filed therewith. Conformed copies of such registration statement and amendments (but without exhibits) and of the ~~Securities Act or the Exchange Act,~~ related preliminary prospectus have been delivered to you in such reasonable quantities as ~~applicable, and the rules and regulations~~ you have requested for each of the ~~Commission promulgated under the Securities Act and the Exchange Act, as applicable. (iii)~~ Underwriters. The ~~consolidated financial statements of the~~ Company (including all notes and schedules thereto) included in the Registration Statement and Prospectus present fairly the financial position, the results of operations and cash flows and the stockholders' equity and the other information purported to be shown therein of the Company and its subsidiaries, listed on Schedule III hereto (the "Subsidiaries"), at the respective dates and for the respective (iv) KPMG Peat Marwick LLP, whose report is filed will next file with the Commission ~~as a part~~ one of the ~~Registration Statement~~following: (i) prior to effectiveness of such registration statement, ~~is and~~a further amendment thereto, ~~during~~ including the ~~periods covered by its reports~~form of final prospectus, ~~was independent public accountants as required by the Securities Act~~ (ii) a final prospectus in accordance with Rules 430A and the Rules. (v) The Company has been duly incorporated and is a validly existing corporation under the laws of the State of Delaware, and the Subsidiaries have been duly incorporated and are validly existing corporations under the laws of their respective jurisdictions. Other than the Subsidiaries, the Company has no subsidiaries and does not control, directly or indirectly, any corporation, partnership, joint venture, association or other business organization, except as described in the Registration Statement and the Prospectus. Each of the Company and the Subsidiaries is duly qualified and in good standing as a foreign corporation in each jurisdiction in which the character or location of its assets or properties (owned, leased or licensed) or the nature of its business makes such qualification necessary except for such jurisdictions where the failure to so qualify would not have a material adverse effect on the assets or properties, business, results of operations or condition (financial or otherwise424(b) of the ~~Company~~ Rules and ~~the Subsidiaries~~Regulations. As filed, ~~taken as a whole (a "Material Adverse Effect"). Except as disclosed in the Registration Statement~~ such amendment and ~~the Prospectus~~form of final prospectus, ~~neither the Company nor the Subsidiaries own~~or such final prospectus, ~~lease or license any material asset or property or conduct any material business outside the United States of America. Each of the Company and the Subsidiaries have~~ shall include all ~~requisite corporate power and authority~~Rule 430A Information and, and all necessary authorizations, approvals, consents, orders, licenses, certificates and permits of and from all governmental or regulatory bodies or any other person or entity, to own, lease and license their assets and properties and conduct their businesses as now being conducted and as described in the Registration Statement and the Prospectus except for such authorizations, approvals, consents, orders, licenses, certificates and permits the failure to so obtain would not have a Material Adverse Effect; no such authorization, approval, consent, order, license, certificate or permit contains a materially burdensome restriction other than as disclosed in the Registration Statement and the Prospectus; and the Company has all such corporate power and authority, and such authorizations, approvals, consents, orders, licenses, certificates and permits to enter into, deliver and perform this Agreement and to issue and (vi) The Company and the Subsidiaries own or possess adequate and enforceable rights to use all patents, trademarks, trademark applications, trade names, service marks, copyrights, copyright applications, licenses, know-how and other similar rights and proprietary knowledge (collectively, "Intangibles") material to or necessary for the conduct of their business as described in the Registration Statement and the Prospectus. Except as disclosed in the Registration Statement and the Prospectus, neither the Company nor any of the Subsidiaries have received any notice of, and to their knowledge are not aware of, any infringement of or conflict with asserted rights of others with respect to any Intangibles which, singly or in the aggregate, if the subject of an unfavorable decision, ruling or finding, could be reasonably expected to have a Material Adverse Effect, and neither the Company nor the Subsidiaries know of any reasonable basis therefor. Except as disclosed in the Registration Statement and the Prospectus, to the knowledge of the Company, no Intangibles of the Company or the Subsidiaries are in dispute or are in any conflict with the right of any other person or entity and the Company and each of the Subsidiaries (A) has or will have the right (subject to applicable agreements, which agreements provide for use to the extent ~~necessary and desirable for~~ that you shall agree in writing to a modification, shall be in all substantive respects in the ~~conduct of its business as currently conducted and as proposed~~ form furnished to ~~be conducted) to use, free and clear of all liens, charges, claims, encumbrances, pledges, security interests, defects, restrictions or equities of any kind whatsoever all licenses and rights~~ you prior to the ~~Intangibles used in~~ date and time that this Agreement was executed and delivered by the conduct of their business as now conducted or proposed to be conducted without infringing upon or otherwise acting adversely to the right or claimed right of any other person and (B) is not or will not becomeparties hereto, as the case may be, obligated or in any way liable for any payment by way of royalties, fees or otherwise and to any owner or licensee of, or other claimant to, any Intangibles with respect to the use thereof or in connection with the conduct of their business or otherwise, except in each case as disclosed in the Prospectus and except for any such payments, claims, uses, liens, charges, encumbrances, pledges, security interests, defects, restrictions and equities which would not have a Material Adverse Effect. (vii) The Company and the Subsidiaries have good and marketable title to each of the items of personal property which are reflected in the financial statements referred to in Section 4(a)(ii) or are referred to in the Registration Statement and the Prospectus as being owned by them and valid and enforceable leasehold interests in each of the items of real and personal property which are referred to in the Registration Statement and the Prospectus as being leased by them, in each case free and clear of all liens, encumbrances, claims, security interests and defects, other than those described in the Registration Statement and the Prospectus and those which do not and will not have a Material Adverse Effect. (viii) Except as described in the Registration Statement and the Prospectus, there is no litigation or governmental or other proceeding or investigation before any court or before or by any public body or board pending or, to the ~~Company's knowledge~~extent not completed at such date and time, ~~threatened~~ shall contain only such specific additional information and other changes (and the Company does not know of any reasonable basis therefor) against, or involving the assets, properties or business of, the Company or the Subsidiaries which, if adversely determined, could be reasonably expected to have a Material Adverse Effect. (ix) Subsequent to the respective dates as of which information is given in the Registration Statement and the Prospectus, except as described therein, (A) there has not been any material adverse change in the assets or properties, business, results of operations, prospects or condition (financial or otherwise) of the Company or the Subsidiaries taken as a whole, whether or not arising from transactions in the ordinary course of business; (B) neither the Company nor any of the Subsidiaries has sustained any material loss or interference with its assets, businesses or properties (whether owned, leased or licensed) from fire, explosion, earthquake, flood or other calamity, whether or not covered by insurance, or from any labor dispute or any court or legislative or other governmental action, order or decree; and (C) since the date of the latest balance sheet included in the Registration Statement and the Prospectus, except as reflected therein, neither the Company nor any of the Subsidiaries has (x) issued any securities (other than options or shares issued pursuant to exercise of employee stock options or warrants described in the Registration Statement and Prospectus) or incurred any liability or obligation, direct or contingent, for borrowed money, except such liabilities or obligations incurred in the ordinary course of business, (y) entered into any transaction not in the ordinary course of business or (z) declared or paid any dividend or made any distribution on any shares of its stock or redeemed, purchased or otherwise acquired or agreed to redeem, purchase or otherwise acquire any shares of its stock. (x) There is no material document or contract of a character required to be described in the Registration Statement or Prospectus or to be filed as an exhibit to the Registration Statement which is not described or filed as required. Each agreement listed in the Exhibits to the Registration Statement is in full force and effect or has terminated in accordance with its terms or by amendment and such amendment has been filed as an Exhibit to the Registration Statement or has otherwise been provided to the Representatives and, if not so terminated, is valid and enforceable in all material respects by and against the Company or the Subsidiaries, as the case may be, in accordance with its terms, assuming the due authorization, execution and delivery thereof by each of the other parties thereto, except as the enforceability thereof may be limited by (i) bankruptcy, insolvency, reorganization, moratorium or other similar laws affecting the enforcement of creditors' rights generally and (ii) indemnification provisions under Federal and state securities laws; and beyond that the remedy of specific forms of equitable relief may be subject to equitable defenses and the discretion of the court before which any such action may be brought. Neither the Company, the (xi) Neither the Company nor the Subsidiaries is in violation of any term or provision of their respective Certificate of Incorporation and By-laws, in each case as amended to the date hereof, or other governing documents, or of any franchise, license, permit, judgment, decree, order, statute, rule or regulation, where the consequences of such violation would have a Material Adverse Effect. Except as described in the Registration Statement or Prospectus, neither the Company nor any of the Subsidiaries intends to amend its Certificate of Incorporation and By-laws. (xii) Neither the execution, delivery and performance of this Agreement by the Company or the Subsidiaries nor the consummation of any of the transactions contemplated hereby (including, without limitation, the issuance and sale by the Company of the Shares) will give rise to a right to terminate or accelerate the due date of any payment due under, or conflict with or result in the breach of any term or provision of, or constitute a default (or an event which with notice or lapse of time or both would constitute a default) under, or require any consent or waiver under, or result in the execution or imposition of any lien, charge or encumbrance upon any properties or assets of the Company or any of the Subsidiaries pursuant to the terms of, any indenture, mortgage, deed of trust or other agreement or instrument to which the Company or any of the Subsidiaries is a party or by which it or any of its properties or businesses are bound, or any franchise, license, permit, judgment, decree, order, statute, rule or regulation applicable to the Company or any of the Subsidiaries or violate any provision of the Certificate of Incorporation and By-laws of the Company or any of the Subsidiaries, except for such consents or waivers which have already been obtained and are in full force and effect or as would not have a Material Adverse Effect. No consent, approval, authorization, order, registration or qualification of or with any United States court or governmental agency or body is required for the issue and sale of the Shares or the consummation of the other transactions contemplated by this Agreement, which have not been obtained prior to the date hereof, except the registration under the Securities Act of the Shares, and such consents, approvals, authorizations, registrations or qualifications as may be required under state securities or Blue Sky laws -9- 10 in connection with the purchase and distribution of the Shares by the Underwriters. (xiii) The authorized, issued and outstanding capital stock of the Company and the capital stock reserved or committed for issuance is as set forth under the caption "Capitalization" in the Prospectus. All of the outstanding shares of Stock have been duly and validly issued and are fully paid and nonassessable, none of them was issued in violation of any preemptive or other similar right and, to the Company's knowledge, since 1991, none of them were issued in violation of any Federal or state securities laws. The Shares, when issued and sold pursuant to this Agreement, will be duly and validly issued, fully paid and nonassessable, none of them will be issued in violation of any preemptive or other similar right, any contractual right, including, without limitation, rights of first refusal, and, since 1991, none of them were issued in violation of any (subject to compliance with Section 1(c) hereof), Federal or state securities laws. Except as disclosed in the Registration Statement and the Prospectus, there is no outstanding option, warrant or other right calling for the issuance of, and there is no commitment, plan or arrangement to issue, any shares of Common Stock of the Company or any security convertible into, or exercisable or exchangeable for, such shares of Stock. The shares of Stock conform in all material respects to all statements in relation thereto contained in the ~~Registration Statement and the~~ latest Preliminary Prospectus~~. The Company has a sufficient number of authorized but unissued shares of Stock to enable~~ ) as the Company ~~to issue, without further stockholder action,~~ shall have previously advised you in writing would be included or ~~approve all the Shares to be sold by the Company~~made therein. (xiv) As of the date hereof, and as of each Closing Date, all of the outstanding shares of capital stock of the Subsidiaries are duly and validly authorized and issued, are fully paid and nonassessable and are and will be owned by the Company and there is and will be no outstanding option, warrant or other right calling for the issuance of, and no commitment, plan or arrangement to issue any share of capital stock of the Subsidiaries or any security convertible or exchangeable or exercisable for capital stock of the Subsidiaries, except as otherwise described in the Registration Statement and Prospectus. (xv) Except as set forth in the Registration Statement and Prospectus, no holder of any security of the Company has the right to have any security owned by such holder included in the Registration Statement or to demand registration of any security owned by such holder during the period ending 90 days after the date of this Agreement. Each Selling Stockholder and each director and executive officer of the Company has delivered to

Appears in 1 contract

Sources: Underwriting Agreement (Nco Group Inc)

Representations and Warranties of the Company and the Selling Stockholders. (a) The Company ~~hereby~~ represents and warrants ~~to each Underwriter as follows:~~to, and agrees with, the several Underwriters that: 2 (i) On A registration statement (No. 333-61626) relating to the ~~Effective Date~~Offered Securities, including a form of prospectus, has been filed with the Securities and Exchange Commission ("COMMISSION") and either (A) has been declared effective under the Securities Act of 1933 ("ACT") and is not proposed to be amended or (B) is proposed to be amended by amendment or post-effective amendment. If such registration statement ("INITIAL REGISTRATION STATEMENT") has been declared effective, either (A) an additional registration statement ("ADDITIONAL REGISTRATION STATEMENT") relating to the Offered Securities may have been filed with the Commission pursuant to Rule 462(b) ("RULE 462(b)") under the Act and, if so filed, has become effective upon filing pursuant to such Rule and the Offered Securities all have been duly registered under the Act pursuant to the initial registration statement and, if applicable, the ~~Registration Statement complied~~additional registration statement or (B) such an additional registration statement is proposed to be filed with the Commission pursuant to Rule 462(b) and will become effective upon filing pursuant to such Rule and upon such filing the Offered Securities will all have been duly registered under the Act pursuant to the initial registration statement and such additional registration statement. If the Company does not propose to amend the initial registration statement or if an additional registration statement has been filed and the Company does not propose to amend it, and ~~on the date of the Prospectus, on the date~~ if any post-effective amendment to ~~the Registration Statement shall become effective, on the date any supplement or amendment to the Prospectus is~~ either such registration statement has been filed with the Commission prior to the execution and ~~on each Closing Date~~delivery of this Agreement, the ~~Registration Statement and~~ most recent amendment (if any) to each such registration statement has been declared effective by the ~~Prospectus~~ Commission or has become effective upon filing pursuant to Rule 462(c) (~~and any amendment thereof or supplement thereto~~"RULE 462(c)") ~~will comply~~under the Act or, in ~~all material respects, with~~ the ~~applicable provisions~~ case of the ~~Securities Act~~ additional registration statement, Rule 462(b). For purposes of this Agreement, "EFFECTIVE TIME" with respect to the initial registration statement or, if filed prior to the execution and delivery of this Agreement, the ~~Rules;~~ additional registration statement means (iiA) ~~The documents~~ if the Company has advised the Representatives that ~~are incorporated~~ it does not propose to amend such registration statement, the date and time as of which such registration statement, or the most recent post-effective amendment thereto (if any) filed prior to the execution and delivery of this Agreement, was declared effective by ~~reference in~~ the ~~preliminary prospectus~~ Commission or has become effective upon filing pursuant to Rule 462(c) or (B) if the Company has advised the Representatives that it proposes to file an amendment or post-effective amendment to such registration statement, the date and ~~the Prospectus~~ time as of which such registration statement, as amended by such amendment or ~~from which information is so incorporated by reference, when they became~~ post-effective ~~or were filed with the Commission~~amendment, as the case may be, ~~complied in all material respects~~ is declared effective by the Commission. If an additional registration statement has not been filed prior to the execution and delivery of this Agreement but the Company has advised the Representatives that it proposes to file one, "EFFECTIVE TIME" with respect to such additional registration statement means the ~~requirements~~ date and time as of which such registration statement is filed and becomes effective pursuant to Rule 462(b). "EFFECTIVE DATE" with respect to the initial registration statement or the additional registration statement (if any) means the date of the ~~Securities Act or the Securities Exchange Act of 1934~~Effective Time thereof. The initial registration statement, as amended ~~(the "Exchange Act")~~at its Effective Time, as applicable, and the rules and regulations of the Commission promulgated under the Securities Act and the Exchange Act, as applicable, except as amended and superseded by statements made in the Registration Statement; and any documents so filed and including all material incorporated by reference ~~subsequent~~ therein, including all information contained in the additional registration statement (if any) and deemed to be a part of the initial registration statement as of the Effective Time of the additional registration statement pursuant to the ~~Effective Date shall, when they are filed with the Commission, conform in all material respects with the requirements~~ General Instructions of the ~~Securities Act or~~ Form on which it is filed and including all information (if any) deemed to be a part of the ~~Exchange~~ initial registration statement as of its Effective Time pursuant to Rule 430A(b) ("RULE 430A(b)") under the Act, is hereinafter referred to as ~~applicable~~the "INITIAL REGISTRATION STATEMENT". The additional registration statement, ~~and~~ as amended at its Effective Time, including the ~~rules and regulations~~ contents of the ~~Commission promulgated under the Securities Act~~ initial registration statement incorporated by reference therein and ~~the Exchange Act, as applicable.~~ including all information (~~iii~~if any) ~~The consolidated financial statements~~ deemed to be a part of the ~~Company (including all notes and schedules thereto) included in~~ additional registration statement as of its Effective Time pursuant to Rule 430A(b), is hereinafter referred to as the "ADDITIONAL REGISTRATION STATEMENT". The Initial Registration Statement and ~~Prospectus present fairly~~ the ~~financial position, the results of operations and cash flows and the stockholders' equity and the other information purported~~ Additional Registration Statement are herein referred to ~~be shown therein of the Company and its subsidiaries, listed on Schedule III hereto (~~collectively as the "~~Subsidiaries~~REGISTRATION STATEMENTS" and individually as a ")REGISTRATION STATEMENT". The form of prospectus relating to the Offered Securities, ~~at the respective dates and for the respective (iv) KPMG Peat Marwick LLP, whose report is~~ as first filed with the Commission pursuant to and in accordance with Rule 424(b) ("RULE 424(b)") under the Act or (if no such filing is required) as included in a ~~part of the~~ Registration Statement, including all material incorporated by reference in such prospectus, is ~~and, during~~ hereinafter referred to as the ~~periods covered by its reports, was independent public accountants as required by the Securities Act and the Rules. (v) The Company~~ "PROSPECTUS". No document has been ~~duly incorporated and is a validly existing corporation~~ or will be prepared or distributed in reliance on Rule 434 under the laws of the State of Delaware, and the Subsidiaries have been duly incorporated and are validly existing corporations under the laws of their respective jurisdictions. Other than the Subsidiaries, the Company has no subsidiaries and does not control, directly or indirectly, any corporation, partnership, joint venture, association or other business organization, except as described in the Registration Statement and the Prospectus. Each of the Company and the Subsidiaries is duly qualified and in good standing as a foreign corporation in each jurisdiction in which the character or location of its assets or properties (owned, leased or licensed) or the nature of its business makes such qualification necessary except for such jurisdictions where the failure to so qualify would not have a material adverse effect on the assets or properties, business, results of operations or condition (financial or otherwise) of the Company and the Subsidiaries, taken as a whole (a "Material Adverse Effect"). Except as disclosed in the Registration Statement and the Prospectus, neither the Company nor the Subsidiaries own, lease or license any material asset or property or conduct any material business outside the United States of America. Each of the Company and the Subsidiaries have all requisite corporate power and authority, and all necessary authorizations, approvals, consents, orders, licenses, certificates and permits of and from all governmental or regulatory bodies or any other person or entity, to own, lease and license their assets and properties and conduct their businesses as now being conducted and as described in the Registration Statement and the Prospectus except for such authorizations, approvals, consents, orders, licenses, certificates and permits the failure to so obtain would not have a Material Adverse Effect; no such authorization, approval, consent, order, license, certificate or permit contains a materially burdensome restriction other than as disclosed in the Registration Statement and the Prospectus; and the Company has all such corporate power and authority, and such authorizations, approvals, consents, orders, licenses, certificates and permits to enter into, deliver and perform this Agreement and to issue and (vi) The Company and the Subsidiaries own or possess adequate and enforceable rights to use all patents, trademarks, trademark applications, trade names, service marks, copyrights, copyright applications, licenses, know-how and other similar rights and proprietary knowledge (collectively, "Intangibles") material to or necessary for the conduct of their business as described in the Registration Statement and the Prospectus. Except as disclosed in the Registration Statement and the Prospectus, neither the Company nor any of the Subsidiaries have received any notice of, and to their knowledge are not aware of, any infringement of or conflict with asserted rights of others with respect to any Intangibles which, singly or in the aggregate, if the subject of an unfavorable decision, ruling or finding, could be reasonably expected to have a Material Adverse Effect, and neither the Company nor the Subsidiaries know of any reasonable basis therefor. Except as disclosed in the Registration Statement and the Prospectus, to the knowledge of the Company, no Intangibles of the Company or the Subsidiaries are in dispute or are in any conflict with the right of any other person or entity and the Company and each of the Subsidiaries (A) has or will have the right (subject to applicable agreements, which agreements provide for use to the extent necessary and desirable for the conduct of its business as currently conducted and as proposed to be conducted) to use, free and clear of all liens, charges, claims, encumbrances, pledges, security interests, defects, restrictions or equities of any kind whatsoever all licenses and rights to the Intangibles used in the conduct of their business as now conducted or proposed to be conducted without infringing upon or otherwise acting adversely to the right or claimed right of any other person and (B) is not or will not become, as the case may be, obligated or in any way liable for any payment by way of royalties, fees or otherwise and to any owner or licensee of, or other claimant to, any Intangibles with respect to the use thereof or in connection with the conduct of their business or otherwise, except in each case as disclosed in the Prospectus and except for any such payments, claims, uses, liens, charges, encumbrances, pledges, security interests, defects, restrictions and equities which would not have a Material Adverse EffectAct. (vii) The Company and the Subsidiaries have good and marketable title to each of the items of personal property which are reflected in the financial statements referred to in Section 4(a)(ii) or are referred to in the Registration Statement and the Prospectus as being owned by them and valid and enforceable leasehold interests in each of the items of real and personal property which are referred to in the Registration Statement and the Prospectus as being leased by them, in each case free and clear of all liens, encumbrances, claims, security interests and defects, other than those described in the Registration Statement and the Prospectus and those which do not and will not have a Material Adverse Effect. (viii) Except as described in the Registration Statement and the Prospectus, there is no litigation or governmental or other proceeding or investigation before any court or before or by any public body or board pending or, to the Company's knowledge, threatened (and the Company does not know of any reasonable basis therefor) against, or involving the assets, properties or business of, the Company or the Subsidiaries which, if adversely determined, could be reasonably expected to have a Material Adverse Effect. (ix) Subsequent to the respective dates as of which information is given in the Registration Statement and the Prospectus, except as described therein, (A) there has not been any material adverse change in the assets or properties, business, results of operations, prospects or condition (financial or otherwise) of the Company or the Subsidiaries taken as a whole, whether or not arising from transactions in the ordinary course of business; (B) neither the Company nor any of the Subsidiaries has sustained any material loss or interference with its assets, businesses or properties (whether owned, leased or licensed) from fire, explosion, earthquake, flood or other calamity, whether or not covered by insurance, or from any labor dispute or any court or legislative or other governmental action, order or decree; and (C) since the date of the latest balance sheet included in the Registration Statement and the Prospectus, except as reflected therein, neither the Company nor any of the Subsidiaries has (x) issued any securities (other than options or shares issued pursuant to exercise of employee stock options or warrants described in the Registration Statement and Prospectus) or incurred any liability or obligation, direct or contingent, for borrowed money, except such liabilities or obligations incurred in the ordinary course of business, (y) entered into any transaction not in the ordinary course of business or (z) declared or paid any dividend or made any distribution on any shares of its stock or redeemed, purchased or otherwise acquired or agreed to redeem, purchase or otherwise acquire any shares of its stock. (x) There is no material document or contract of a character required to be described in the Registration Statement or Prospectus or to be filed as an exhibit to the Registration Statement which is not described or filed as required. Each agreement listed in the Exhibits to the Registration Statement is in full force and effect or has terminated in accordance with its terms or by amendment and such amendment has been filed as an Exhibit to the Registration Statement or has otherwise been provided to the Representatives and, if not so terminated, is valid and enforceable in all material respects by and against the Company or the Subsidiaries, as the case may be, in accordance with its terms, assuming the due authorization, execution and delivery thereof by each of the other parties thereto, except as the enforceability thereof may be limited by (i) bankruptcy, insolvency, reorganization, moratorium or other similar laws affecting the enforcement of creditors' rights generally and (ii) indemnification provisions under Federal and state securities laws; and that the remedy of specific forms of equitable relief may be subject to equitable defenses and the discretion of the court before which any such action may be brought. Neither the Company, the (xi) Neither the Company nor the Subsidiaries is in violation of any term or provision of their respective Certificate of Incorporation and By-laws, in each case as amended to the date hereof, or other governing documents, or of any franchise, license, permit, judgment, decree, order, statute, rule or regulation, where the consequences of such violation would have a Material Adverse Effect. Except as described in the Registration Statement or Prospectus, neither the Company nor any of the Subsidiaries intends to amend its Certificate of Incorporation and By-laws. (xii) Neither the execution, delivery and performance of this Agreement by the Company or the Subsidiaries nor the consummation of any of the transactions contemplated hereby (including, without limitation, the issuance and sale by the Company of the Shares) will give rise to a right to terminate or accelerate the due date of any payment due under, or conflict with or result in the breach of any term or provision of, or constitute a default (or an event which with notice or lapse of time or both would constitute a default) under, or require any consent or waiver under, or result in the execution or imposition of any lien, charge or encumbrance upon any properties or assets of the Company or any of the Subsidiaries pursuant to the terms of, any indenture, mortgage, deed of trust or other agreement or instrument to which the Company or any of the Subsidiaries is a party or by which it or any of its properties or businesses are bound, or any franchise, license, permit, judgment, decree, order, statute, rule or regulation applicable to the Company or any of the Subsidiaries or violate any provision of the Certificate of Incorporation and By-laws of the Company or any of the Subsidiaries, except for such consents or waivers which have already been obtained and are in full force and effect or as would not have a Material Adverse Effect. No consent, approval, authorization, order, registration or qualification of or with any United States court or governmental agency or body is required for the issue and sale of the Shares or the consummation of the other transactions contemplated by this Agreement, which have not been obtained prior to the date hereof, except the registration under the Securities Act of the Shares, and such consents, approvals, authorizations, registrations or qualifications as may be required under state securities or Blue Sky laws -9- 10 in connection with the purchase and distribution of the Shares by the Underwriters. (xiii) The authorized, issued and outstanding capital stock of the Company and the capital stock reserved or committed for issuance is as set forth under the caption "Capitalization" in the Prospectus. All of the outstanding shares of Stock have been duly and validly issued and are fully paid and nonassessable, none of them was issued in violation of any preemptive or other similar right and, to the Company's knowledge, since 1991, none of them were issued in violation of any Federal or state securities laws. The Shares, when issued and sold pursuant to this Agreement, will be duly and validly issued, fully paid and nonassessable, none of them will be issued in violation of any preemptive or other similar right, any contractual right, including, without limitation, rights of first refusal, and, since 1991, none of them were issued in violation of any (subject to compliance with Section 1(c) hereof), Federal or state securities laws. Except as disclosed in the Registration Statement and the Prospectus, there is no outstanding option, warrant or other right calling for the issuance of, and there is no commitment, plan or arrangement to issue, any shares of Common Stock of the Company or any security convertible into, or exercisable or exchangeable for, such shares of Stock. The shares of Stock conform in all material respects to all statements in relation thereto contained in the Registration Statement and the Prospectus. The Company has a sufficient number of authorized but unissued shares of Stock to enable the Company to issue, without further stockholder action, or approve all the Shares to be sold by the Company. (xiv) As of the date hereof, and as of each Closing Date, all of the outstanding shares of capital stock of the Subsidiaries are duly and validly authorized and issued, are fully paid and nonassessable and are and will be owned by the Company and there is and will be no outstanding option, warrant or other right calling for the issuance of, and no commitment, plan or arrangement to issue any share of capital stock of the Subsidiaries or any security convertible or exchangeable or exercisable for capital stock of the Subsidiaries, except as otherwise described in the Registration Statement and Prospectus. (xv) Except as set forth in the Registration Statement and Prospectus, no holder of any security of the Company has the right to have any security owned by such holder included in the Registration Statement or to demand registration of any security owned by such holder during the period ending 90 days after the date of this Agreement. Each Selling Stockholder and each director and executive officer of the Company has delivered to

Appears in 1 contract

Sources: Underwriting Agreement (Skillsoft Corp)

Representations and Warranties of the Company and the Selling Stockholders. (a) The Company ~~hereby~~ represents and warrants to to, and agrees with, the Underwriter, CSI and each ~~Underwriter~~ Selling Stockholder at the Execution Time, at each Applicable Time (as ~~follows~~defined in Section 4 below) and on the Closing Date (as defined in Section 3 below) that: (i) The Company meets the requirements for use of Form S-3 under the Act and has prepared and filed with the Commission an automatic shelf registration statement, as defined in Rule 405 on Form S-3 (File No. 333-140859), including a related Base Prospectus, for registration under the Act of the offering and sale of the Hedge Securities. Such Registration Statement, including any amendments thereto filed prior to the Execution Time, became effective upon filing and no notice of objection of the Commission to the use of such registration statement or any post-effective amendment thereto pursuant to Rule 40l (g)(2) under the Act has been received by the Company. No order suspending the effectiveness of the Registration Statement has been issued by the Commission and no proceeding for that purpose or pursuant to Section 8A of the Act against the Company or related to the offering has been initiated or, to the Company’s knowledge, threatened by the Commission. The Company will file with the Commission a final prospectus supplement relating to the Hedge Securities in accordance with Rule 424(b). The Registration Statement, at the Execution Time, meets the requirements set forth in Rule 415(a)(1)(x). (ii) On ~~the~~ each Effective Date, the Registration Statement ~~complied~~did, and on when the ~~date of the Prospectus, on the date any post-effective amendment to the Registration Statement shall become effective, on the date any supplement or amendment to the~~ Final Prospectus is first filed in accordance with Rule 424(b) and at each Applicable Time and the ~~Commission and on each~~ Closing Date, the ~~Registration Statement and the~~ Final Prospectus (and any ~~amendment thereof or~~ supplement thereto) ~~will comply~~will, comply in all material ~~respects,~~ respects with the applicable ~~provisions~~ requirements of the ~~Securities~~ Act and the ~~Rules;~~Exchange Act and the respective rules thereunder. On each Effective Date, at each Applicable Time and at the Execution Time, the Registration Statement did not and will not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary in order to make the statements therein not misleading; provided, however, that the Company makes no representations or warranties as to the information contained in or omitted from the Registration Statement (or any amendment thereto) in reliance upon and in conformity with information furnished in writing to the Company by or on behalf of the Underwriter or CSI or by or on behalf of the Selling Stockholders specifically for inclusion in the Registration Statement (or any amendment thereto), it being understood and agreed that the only such written information furnished by or on behalf of the Underwriter or CSI consists of the information described as such in Section 7(c) hereof and that the only such information furnished by or on behalf of the Selling Stockholders consists of the information described as such in Section 7(b) hereof. At the Execution Time and at each Applicable Time, the Final Prospectus did not and will not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading; provided, however, that the Company makes no representations or warranties as to the information contained in or omitted from the Final Prospectus (or any supplement thereto) in reliance upon and in conformity with information furnished in writing to the Company by or on behalf of the Underwriter or CSI or by or on behalf of the Selling Stockholders specifically for inclusion in the Final Prospectus (or any supplement thereto), it being understood and agreed that the only such written information furnished by or on behalf of the Underwriter or CSI consists of the information described as such in Section 7(c) hereof and that the only such information furnished by or on behalf of the Selling Stockholders consists of the information described as such in Section 7(b) hereof. (iiiii) At each Applicable Time, the Disclosure Package will not contain any untrue statement of a material fact or omit 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. The preceding sentence does not apply to statements in or omissions from the Disclosure Package based upon and in conformity with written information furnished to the Company by the Underwriter or CSI or by or on behalf of the Selling Stockholders specifically for use therein, it being understood and agreed that the only such written information furnished by or on behalf of the Underwriter or CSI consists of the information described as such in Section 7(c) hereof and that the only such information furnished by or on behalf of the Selling Stockholders consists of the information described as such in Section 7(b) hereof. (A) At the time of filing the Registration Statement, (B) at the time of the most recent amendment thereto for the purposes of complying with Section 10(a)(3) of the Act (whether such amendment was by post-effective amendment, incorporated report filed pursuant to Sections 13 or 15(d) of the Exchange Act or form of prospectus), (C) at the time the Company or any person acting on its behalf (within the meaning, for this clause only, of Rule 163(c)) made any offer relating to the Hedge Securities in reliance on the exemption in Rule 163, and (D) at the Execution Time (with such times being used as the determination dates for purposes of this clause (D)), the Company was and is (as the case may be) a “well-known seasoned issuer” as defined in Rule 405. The Company agrees to pay the fees required by the Commission relating to the Hedge Securities within the time required by Rule 456(b)(1) without regard to the proviso therein and otherwise in accordance with Rules 456(b) and 457(r). (A) At the earliest time after the filing of the Registration Statement that the Underwriter made a bona fide offer (within the meaning of Rule 164(h)(2)) of the Hedge Securities and (B) at the Execution Time, the Company was not and is not an “ineligible issuer,” as defined in Rule 405, without taking account of any determination by the Commission pursuant to Rule 405 that it is not necessary that the Company be considered such an “ineligible issuer.” (vi) Each Issuer Free Writing Prospectus, if any, as of its issue date and at all subsequent times through the completion of the public offer and sale of the Hedge Securities, did not, does not and will not include any information that conflicted, conflicts or will conflict with the information contained in the Registration Statement, including any document incorporated therein by reference and any prospectus supplement deemed to be a part thereof that has not been superseded or modified. The foregoing sentence does not apply to statements in or omissions from any Issuer Free Writing Prospectus based upon and in conformity with written information furnished to the Company by or on behalf of the Underwriter or CSI specifically for use therein, it being understood and agreed that the only such written information furnished by or on behalf of the Underwriter or CSI consists of the information described as such in Section 7(c) hereof. If at any time following issuance of an Issuer Free Writing Prospectus there occurred or occurs an event or development as a result of which such Issuer Free Writing Prospectus conflicted or would conflict with the information contained in the Registration Statement or the Final Prospectus, or as a result of which such Issuer Free Writing Prospectus, if republished immediately following such event or development, included or would include an untrue statement of a material fact or omitted or would omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made or the circumstances then prevailing, not misleading, the Company has promptly notified or will promptly notify the Underwriter and CSI and has promptly amended or supplemented or will promptly amend or supplement, at its own expense, such Issuer Free Writing Prospectus to eliminate or correct such conflict, untrue statement or omission. (vii) The documents ~~that are~~ incorporated by reference in the ~~preliminary prospectus~~ Disclosure Package and the ~~Prospectus or from which information is so incorporated by reference~~Final Prospectus, when they became effective or were filed with the Commission, as the case may be, ~~complied~~ conformed in all material respects ~~with~~ to the requirements of the ~~Securities~~ Act or the ~~Securities~~ Exchange Act ~~of 1934, as amended (the "Exchange Act"), as applicable,~~ and the rules and regulations of the Commission ~~promulgated under~~ thereunder, and none of such documents contained an untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary to make the ~~Securities Act and the Exchange Act~~statements therein, ~~as applicable, except as amended and superseded by statements made~~ in the ~~Registration Statement~~light of the circumstances under which they were made, not misleading; and any further documents so filed and incorporated by reference ~~subsequent to~~ in the ~~Effective Date shall~~Registration Statement and the Final Prospectus, when ~~they~~ such documents become effective or are filed with the Commission, as the case may be, will conform in all material respects ~~with~~ to the requirements of the ~~Securities~~ Act or the Exchange Act, as applicable, and the rules and regulations of the Commission ~~promulgated~~ thereunder then in effect and will not contain any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under ~~the Securities Act and the Exchange Act~~which they were made, ~~as applicable~~not misleading. (iii) The consolidated financial statements of the Company (including all notes and schedules thereto) included in the Registration Statement and Prospectus present fairly the financial position, the results of operations and cash flows and the stockholders' equity and the other information purported to be shown therein of the Company and its subsidiaries, listed on Schedule III hereto (the "Subsidiaries"), at the respective dates and for the respective (iv) KPMG Peat Marwick LLP, whose report is filed with the Commission as a part of the Registration Statement, is and, during the periods covered by its reports, was independent public accountants as required by the Securities Act and the Rules. (vviii) The Company has been duly ~~incorporated~~ organized and is a validly existing as a corporation in good standing under the laws of the State of Delaware, with power and authority to own or lease, as the ~~Subsidiaries have been duly incorporated~~ case may be, and ~~are validly existing corporations under the laws of their respective jurisdictions. Other than the Subsidiaries, the Company has no subsidiaries~~ to operate its properties and ~~does not control, directly or indirectly, any corporation, partnership, joint venture, association or other~~ conduct its business ~~organization, except~~ as described in the ~~Registration Statement~~ Disclosure Package and the Final Prospectus~~. Each of~~ ; the Company ~~and the Subsidiaries~~ is duly qualified ~~and in good standing~~ as a foreign corporation to transact business and is in good standing in each other jurisdiction in which such qualification is required, whether by reason of the ~~character~~ ownership or ~~location~~ leasing of ~~its assets or properties (owned, leased or licensed)~~ property or the ~~nature~~ conduct of ~~its business makes such qualification necessary~~ business, except ~~for such jurisdictions~~ where the failure so to so qualify or to be in good standing would not have a material adverse effect on the ~~assets or properties,~~ business, financial condition or results of operations ~~or condition (financial or otherwise)~~ of the Company and ~~the Subsidiaries, taken~~ its subsidiaries considered as a whole (a "“Material Adverse Effect"”)~~. Except as disclosed in~~ . (ix) Union Carbide Corporation (“UCC”) and Rohm and H▇▇▇ Company (“Rohm and H▇▇▇”) are the Registration Statement and the Prospectus, neither the Company nor the Subsidiaries own, lease or license any material asset or property or conduct any material business outside the United States of America. Each only subsidiaries of the Company that qualify as a “significant subsidiary” under Section 1-02(w) of Regulation S-X. Each of UCC and Rohm and H▇▇▇ has been duly organized and is validly existing as a corporation in good standing under the ~~Subsidiaries have all requisite corporate~~ laws of the jurisdiction of its incorporation, with power and ~~authority~~authority to own or lease, as the case may be, and ~~all necessary authorizations, approvals, consents, orders, licenses, certificates and permits of and from all governmental or regulatory bodies or any other person or entity,~~ to ~~own, lease and license their assets and~~ operate its properties and conduct ~~their businesses as now being conducted and~~ its business as described in the ~~Registration Statement~~ Disclosure Package and the ~~Prospectus~~ Final Prospectus; each of UCC and Rohm and H▇▇▇ is duly qualified as a foreign corporation to transact business and is in good standing in each jurisdiction in which such qualification is required, whether by reason of the ownership or leasing of property or the conduct of business, except ~~for such authorizations, approvals, consents, orders, licenses, certificates and permits~~ where the failure so to ~~so obtain~~ qualify or to be in good standing would not have a Material Adverse Effect; ~~no such authorization, approval, consent, order, license, certificate or permit contains a materially burdensome restriction other than~~ except as otherwise disclosed in the ~~Registration Statement~~ Disclosure Package and the Prospectus; and the Company has all such corporate power and authority, and such authorizations, approvals, consents, orders, licenses, certificates and permits to enter into, deliver and perform this Agreement and to issue and (vi) The Company and the Subsidiaries own or possess adequate and enforceable rights to use all patents, trademarks, trademark applications, trade names, service marks, copyrights, copyright applications, licenses, know-how and other similar rights and proprietary knowledge (collectively, "Intangibles") material to or necessary for the conduct of their business as described in the Registration Statement and the Prospectus. Except as disclosed in the Registration Statement and the Final Prospectus, ~~neither the Company nor any~~ all of the ~~Subsidiaries have received~~ issued and outstanding capital stock of each of UCC and Rohm and H▇▇▇ has been duly authorized and validly issued, is fully paid and non-assessable and (except for shares necessary to qualify directors or to maintain any ~~notice of, and to their knowledge are not aware of, any infringement~~ minimum number of or conflict with asserted rights of others with respect to any Intangibles which, singly or in the aggregate, if the subject of an unfavorable decision, ruling or finding, could be reasonably expected to have a Material Adverse Effect, and neither the Company nor the Subsidiaries know of any reasonable basis therefor. Except as disclosed in the Registration Statement and the Prospectus, to the knowledge of shareholders required by law) is owned by the Company, ~~no Intangibles of the Company~~ directly or the Subsidiaries are in dispute or are in any conflict with the right of any other person or entity and the Company and each of the Subsidiaries (A) has or will have the right (subject to applicable agreements, which agreements provide for use to the extent necessary and desirable for the conduct of its business as currently conducted and as proposed to be conducted) to usethrough subsidiaries, free and clear of ~~all liens~~any security interest, ~~charges~~mortgage, ~~claims~~pledge, ~~encumbrances~~lien, pledges, security interests, defects, restrictions or equities of any kind whatsoever all licenses and rights to the Intangibles used in the conduct of their business as now conducted or proposed to be conducted without infringing upon or otherwise acting adversely to the right or claimed right of any other person and (B) is not or will not become, as the case may be, obligated or in any way liable for any payment by way of royalties, fees or otherwise and to any owner or licensee ofencumbrance, or other claimant to, any Intangibles with respect to the use thereof or in connection with the conduct of their business or otherwise, except in each case as disclosed in the Prospectus and except for any such payments, claims, uses, liens, charges, encumbrances, pledges, security interests, defects, restrictions and equities which would not have a Material Adverse Effect. (vii) The Company and the Subsidiaries have good and marketable title to each of the items of personal property which are reflected in the financial statements referred to in Section 4(a)(ii) or are referred to in the Registration Statement and the Prospectus as being owned by them and valid and enforceable leasehold interests in each of the items of real and personal property which are referred to in the Registration Statement and the Prospectus as being leased by them, in each case free and clear of all liens, encumbrances, claims, security interests and defects, other than those described in the Registration Statement and the Prospectus and those which do not and will not have a Material Adverse Effect. (viii) Except as described in the Registration Statement and the Prospectus, there is no litigation or governmental or other proceeding or investigation before any court or before or by any public body or board pending or, to the Company's knowledge, threatened (and the Company does not know of any reasonable basis therefor) against, or involving the assets, properties or business of, the Company or the Subsidiaries which, if adversely determined, could be reasonably expected to have a Material Adverse Effect. (ix) Subsequent to the respective dates as of which information is given in the Registration Statement and the Prospectus, except as described therein, (A) there has not been any material adverse change in the assets or properties, business, results of operations, prospects or condition (financial or otherwise) of the Company or the Subsidiaries taken as a whole, whether or not arising from transactions in the ordinary course of business; (B) neither the Company nor any of the Subsidiaries has sustained any material loss or interference with its assets, businesses or properties (whether owned, leased or licensed) from fire, explosion, earthquake, flood or other calamity, whether or not covered by insurance, or from any labor dispute or any court or legislative or other governmental action, order or decree; and (C) since the date of the latest balance sheet included in the Registration Statement and the Prospectus, except as reflected therein, neither the Company nor any of the Subsidiaries has (x) issued any securities (other than options or shares issued pursuant to exercise of employee stock options or warrants described in the Registration Statement and Prospectus) or incurred any liability or obligation, direct or contingent, for borrowed money, except such liabilities or obligations incurred in the ordinary course of business, (y) entered into any transaction not in the ordinary course of business or (z) declared or paid any dividend or made any distribution on any shares of its stock or redeemed, purchased or otherwise acquired or agreed to redeem, purchase or otherwise acquire any shares of its stockclaim. (x) ~~There is no material document or contract of a character required to be~~ The Company has outstanding capital stock as set forth in the Disclosure Package and the Final Prospectus (except for subsequent issuances as described in the ~~Registration Statement~~ Disclosure Package and the Final Prospectus pursuant to employee benefit plans or ~~Prospectus or to be filed as an exhibit~~ pursuant to the ~~Registration Statement which is not described~~ exercise of convertible securities or ~~filed as required~~options and except for repurchases in connection with open market or repurchase plans or redemptions of shares of preferred stock). ~~Each agreement listed~~ The Preferred Securities and all other outstanding shares of capital stock of the Company have been duly authorized and validly issued, are fully paid and non-assessable and conform to the description thereof contained in the ~~Exhibits~~ Disclosure Package and the Final Prospectus; the Offered Securities have been duly authorized and, when delivered upon conversion of the Preferred Securities, will be validly issued, fully paid and non-assessable and conform to the ~~Registration Statement is~~ description thereof contained in ~~full force~~ the Disclosure Package and ~~effect or has terminated in accordance~~ the Final Prospectus; and the stockholders of the Company do not have, and will not have at the Closing Date, any preemptive rights with ~~its terms or by amendment and such amendment has been filed as an Exhibit~~ respect to the Registration Statement or has otherwise been provided to the Representatives and, if not so terminated, is valid and enforceable in all material respects by and against the Company or the Subsidiaries, as the case may be, in accordance with its terms, assuming the due authorization, execution and delivery thereof by each of the other parties thereto, except as the enforceability thereof may be limited by (i) bankruptcy, insolvency, reorganization, moratorium or other similar laws affecting the enforcement of creditors' rights generally and (ii) indemnification provisions under Federal and state securities laws; and that the remedy of specific forms of equitable relief may be subject to equitable defenses and the discretion of the court before which any such action may be brought. Neither the Company, theOffered Securities. (xi) ~~Neither~~ The Offered Securities have been approved for listing on The New York Stock Exchange (the ~~Company nor the Subsidiaries is in violation~~ “NYSE”), subject to notice of any term or provision of their respective Certificate of Incorporation and By-laws, in each case as amended to the date hereof, or other governing documents, or of any franchise, license, permit, judgment, decree, order, statute, rule or regulation, where the consequences of such violation would have a Material Adverse Effect. Except as described in the Registration Statement or Prospectus, neither the Company nor any of the Subsidiaries intends to amend its Certificate of Incorporation and By-lawsissuance. (xii) ~~Neither~~ This Agreement has been duly authorized, executed and delivered by the ~~execution~~Company. (xiii) The statements in each of the Disclosure Package and the Final Prospectus under the captions “Description of the Financing Transactions," Description of the Common Stock,” “Certain United States Federal Tax Considerations for Non-U.S. Holders,” “Underwriting” and “Description of Capital Stock,” in each case insofar as such statements constitute a summary of the legal matters, documents or proceedings referred to therein, fairly present and summarize, in all material respects, the matters referred to therein. (xiv) The issuance of the Offered Securities upon conversion of the Preferred Securities, the delivery of the Offered Securities by the Company to the Custodian (as defined below) on behalf of the Selling Stockholders and ~~performance~~ by the Custodian to CSI as provided herein and the compliance by the Company with all of the provisions of this Agreement and the consummation of the transactions by the Company herein contemplated, will not result in a breach or ~~the Subsidiaries nor the consummation~~ violation of any of the ~~transactions contemplated hereby (including, without limitation, the issuance and sale by the Company of the Shares) will give rise to a right to terminate~~ terms or ~~accelerate the due date of any payment due under, or conflict with or result in the breach of any term or provision~~ provisions of, or constitute a default ~~(or an event which with notice or lapse of time or both would constitute a default) under, or require any consent or waiver~~ under, or result in the ~~execution~~ creation or imposition of any lien, charge or encumbrance upon any ~~properties~~ of the property or assets of the ~~Company~~ Company, UCC or ~~any of the Subsidiaries~~ Rohm and H▇▇▇ pursuant to the terms ~~of,~~ of any indenture, mortgage, deed of ~~trust~~ trust, loan agreement or other agreement or instrument to which the ~~Company~~ Company, UCC or ~~any of the Subsidiaries~~ Rohm and H▇▇▇ is a party or by which it the Company, UCC or Rohm and H▇▇▇ is bound or to which any property or assets of the Company, UCC or Rohm and H▇▇▇ is subject, which would reasonably be expected to have a Material Adverse Effect or affect the validity of the Offered Securities or the legal authority of the Company to comply with this Agreement; nor will such action result in any violation of the provisions of the Restated Articles of Incorporation, as amended, or the Bylaws of the Company; nor will such action result in a violation of any statute or any ~~of its properties or businesses are bound, or any franchise, license, permit, judgment, decree,~~ order~~, statute~~, rule or regulation ~~applicable to~~ of any court or governmental agency or body in the ~~Company~~ United States having jurisdiction over the Company, UCC or Rohm and H▇▇▇ or any of ~~the Subsidiaries or violate any provision of the Certificate of Incorporation and By-laws of the Company or any of the Subsidiaries~~their properties, ~~except for such consents or waivers~~ which ~~have already been obtained and are in full force and effect or as~~ would ~~not~~ reasonably be expected to have a Material Adverse Effect. . (xv) No consent, approval, authorization, order, registration or qualification of or with any court or any such regulatory authority or other governmental body in the United States ~~court or governmental agency or body~~ having jurisdiction over the Company is required for the ~~issue and sale~~ issuance of the ~~Shares~~ Offered Securities upon conversion of the Preferred Securities, the delivery of the Offered Securities by the Company to the Custodian on behalf of the Selling Stockholders and by the Custodian to CSI as provided herein or the consummation by the Company of the other transactions contemplated by this Agreement, ~~which have not been obtained prior~~ assuming that the Offered Securities shall only be used to close out open borrowings of shares of Common Stock established in connection with the ~~date hereof~~sales of the Hedge Securities as contemplated by Section 4 of this Agreement, except ~~the registration under the Securities Act of the Shares, and~~ such consents, approvals, authorizations, orders, registrations or qualifications as have been obtained under the Act and such as may be required ~~under state~~ by the securities or Blue Sky laws ~~-9- 10 in connection with the purchase and distribution~~ of the ~~Shares by the Underwriters. (xiii) The authorized, issued and outstanding capital stock of the Company~~ various states and the capital stock reserved or committed for issuance is as set forth under the caption "Capitalization" in the Prospectus. All of the outstanding shares of Stock have been duly and validly issued and are fully paid and nonassessable, none of them was issued in violation securities laws of any ~~preemptive or other similar right and, to~~ jurisdiction outside the Company's knowledge, since 1991, none of them were issued in violation of any Federal or state securities laws. The Shares, when issued and sold pursuant to this Agreement, will be duly and validly issued, fully paid and nonassessable, none of them will be issued in violation of any preemptive or other similar right, any contractual right, including, without limitation, rights of first refusal, and, since 1991, none of them were issued in violation of any (subject to compliance with Section 1(c) hereof), Federal or state securities laws. Except as disclosed in the Registration Statement and the Prospectus, there is no outstanding option, warrant or other right calling for the issuance of, and there is no commitment, plan or arrangement to issue, any shares of Common Stock of the Company or any security convertible into, or exercisable or exchangeable for, such shares of Stock. The shares of Stock conform in all material respects to all statements in relation thereto contained in the Registration Statement and the Prospectus. The Company has a sufficient number of authorized but unissued shares of Stock to enable the Company to issue, without further stockholder action, or approve all the Shares to be sold by the Company. (xiv) As of the date hereof, and as of each Closing Date, all of the outstanding shares of capital stock of the Subsidiaries are duly and validly authorized and issued, are fully paid and nonassessable and are and will be owned by the Company and there is and will be no outstanding option, warrant or other right calling for the issuance of, and no commitment, plan or arrangement to issue any share of capital stock of the Subsidiaries or any security convertible or exchangeable or exercisable for capital stock of the Subsidiaries, except as otherwise described in the Registration Statement and Prospectus. (xv) Except as set forth in the Registration Statement and Prospectus, no holder of any security of the Company has the right to have any security owned by such holder included in the Registration Statement or to demand registration of any security owned by such holder during the period ending 90 days after the date of this Agreement. Each Selling Stockholder and each director and executive officer of the Company has delivered toUnited St

Appears in 1 contract

Sources: Underwriting Agreement (Dow Chemical Co /De/)

Appears in 1 contract

Sources: Underwriting Agreement (Appaloosa Management Lp)

Representations and Warranties of the Company and the Selling Stockholders. (a) The Company ~~hereby~~ represents and warrants to each ~~Underwriter~~ of the Underwriters as follows: (i) ~~On the Effective Date, the Registration Statement complied, and~~ A registration statement on ~~the date of the Prospectus, on the date any post~~Form S-1 (File No. 333-~~effective amendment~~ 166123) with respect to the ~~Registration Statement shall become effective, on~~ Shares has been prepared by the date any supplement or amendment to the Prospectus is filed with the Commission and on each Closing Date, the Registration Statement and the Prospectus (and any amendment thereof or supplement thereto) will comply, Company in all material respects, with the applicable provisions of the Securities Act and the Rules; (ii) The documents that are incorporated by reference in the preliminary prospectus and the Prospectus or from which information is so incorporated by reference, when they became effective or were filed with the Commission, as the case may be, complied conformity in all material respects with the requirements of the Securities Act ~~or the Securities Exchange Act~~ of ~~1934~~1933, as amended (the ~~"Exchange~~ “Act"”)~~, as applicable~~, and the rules and regulations (the “Rules and Regulations”) of the Securities and Exchange Commission ~~promulgated under~~ (the ~~Securities Act~~ “Commission”) thereunder and the Exchange Act, as applicable, except as amended and superseded by statements made in the Registration Statement; and any documents so filed and incorporated by reference subsequent to the Effective Date shall, when they are has been filed with the Commission. Copies of such registration statement, ~~conform~~ including any amendments thereto, the preliminary prospectuses (meeting in all material ~~respects with~~ respects, at the time of filing thereof, the requirements of the ~~Securities Act or~~ Rules and Regulations) contained therein and the ~~Exchange~~ exhibits and financial statements thereto, as finally amended and revised, have heretofore been delivered by the Company to you. Such registration statement, together with any registration statement filed by the Company pursuant to Rule 462(b) under the Act, is herein referred to as ~~applicable~~the “Registration Statement,” which shall be deemed to include all information omitted therefrom in reliance upon any of Rules 430A, 430B and 430C under the ~~rules~~ Act and ~~regulations~~ contained in the Prospectus referred to below, has become effective under the Act and no post-effective amendment to the Registration Statement has been filed as of the date of this Agreement. “Prospectus” means the form of prospectus first filed with the Commission ~~promulgated~~ pursuant to and within the time limits described in Rule 424(b) under the ~~Securities Act and the Exchange~~ Act~~, as applicable. (iii) The consolidated financial statements of the Company (including all notes and schedules thereto)~~ . Each preliminary prospectus included in the Registration Statement ~~and~~ prior to the time it becomes effective is herein referred to as a “Preliminary Prospectus.” Any reference herein to the Registration Statement, any Preliminary Prospectus ~~present fairly~~ or to the ~~financial position, the results of operations and cash flows and the stockholders' equity and the other information purported~~ Prospectus or to ~~be shown therein~~ any amendment or supplement to any of the ~~Company~~ foregoing documents shall be deemed to refer to and ~~its subsidiaries~~include any documents incorporated by reference therein, ~~listed on Schedule III hereto (~~and, in the ~~"Subsidiaries")~~case of any reference herein to the Prospectus, ~~at the respective dates~~ also shall be deemed to include any documents incorporated by reference therein, and ~~for the respective (iv) KPMG Peat Marwick LLP~~any supplements or amendments thereto, ~~whose report is~~ filed with the Commission as a part of the Registration Statement, is and, during the periods covered by its reports, was independent public accountants as required by the Securities Act and the Rules. (v) The Company has been duly incorporated and is a validly existing corporation under the laws of the State of Delaware, and the Subsidiaries have been duly incorporated and are validly existing corporations under the laws of their respective jurisdictions. Other than the Subsidiaries, the Company has no subsidiaries and does not control, directly or indirectly, any corporation, partnership, joint venture, association or other business organization, except as described in the Registration Statement and the Prospectus. Each of the Company and the Subsidiaries is duly qualified and in good standing as a foreign corporation in each jurisdiction in which the character or location of its assets or properties (owned, leased or licensed) or the nature of its business makes such qualification necessary except for such jurisdictions where the failure to so qualify would not have a material adverse effect on the assets or properties, business, results of operations or condition (financial or otherwise) of the Company and the Subsidiaries, taken as a whole (a "Material Adverse Effect"). Except as disclosed in the Registration Statement and the Prospectus, neither the Company nor the Subsidiaries own, lease or license any material asset or property or conduct any material business outside the United States of America. Each of the Company and the Subsidiaries have all requisite corporate power and authority, and all necessary authorizations, approvals, consents, orders, licenses, certificates and permits of and from all governmental or regulatory bodies or any other person or entity, to own, lease and license their assets and properties and conduct their businesses as now being conducted and as described in the Registration Statement and the Prospectus except for such authorizations, approvals, consents, orders, licenses, certificates and permits the failure to so obtain would not have a Material Adverse Effect; no such authorization, approval, consent, order, license, certificate or permit contains a materially burdensome restriction other than as disclosed in the Registration Statement and the Prospectus; and the Company has all such corporate power and authority, and such authorizations, approvals, consents, orders, licenses, certificates and permits to enter into, deliver and perform this Agreement and to issue and (vi) The Company and the Subsidiaries own or possess adequate and enforceable rights to use all patents, trademarks, trademark applications, trade names, service marks, copyrights, copyright applications, licenses, know-how and other similar rights and proprietary knowledge (collectively, "Intangibles") material to or necessary for the conduct of their business as described in the Registration Statement and the Prospectus. Except as disclosed in the Registration Statement and the Prospectus, neither the Company nor any of the Subsidiaries have received any notice of, and to their knowledge are not aware of, any infringement of or conflict with asserted rights of others with respect to any Intangibles which, singly or in the aggregate, if the subject of an unfavorable decision, ruling or finding, could be reasonably expected to have a Material Adverse Effect, and neither the Company nor the Subsidiaries know of any reasonable basis therefor. Except as disclosed in the Registration Statement and the Prospectus, to the knowledge of the Company, no Intangibles of the Company or the Subsidiaries are in dispute or are in any conflict with the right of any other person or entity and the Company and each of the Subsidiaries (A) has or will have the right (subject to applicable agreements, which agreements provide for use to the extent necessary and desirable for the conduct of its business as currently conducted and as proposed to be conducted) to use, free and clear of all liens, charges, claims, encumbrances, pledges, security interests, defects, restrictions or equities of any kind whatsoever all licenses and rights to the Intangibles used in the conduct of their business as now conducted or proposed to be conducted without infringing upon or otherwise acting adversely to the right or claimed right of any other person and (B) is not or will not become, as the case may be, obligated or in any way liable for any payment by way of royalties, fees or otherwise and to any owner or licensee of, or other claimant to, any Intangibles with respect to the use thereof or in connection with the conduct of their business or otherwise, except in each case as disclosed in the Prospectus and except for any such payments, claims, uses, liens, charges, encumbrances, pledges, security interests, defects, restrictions and equities which would not have a Material Adverse Effect. (vii) The Company and the Subsidiaries have good and marketable title to each of the items of personal property which are reflected in the financial statements referred to in Section 4(a)(ii) or are referred to in the Registration Statement and the Prospectus as being owned by them and valid and enforceable leasehold interests in each of the items of real and personal property which are referred to in the Registration Statement and the Prospectus as being leased by them, in each case free and clear of all liens, encumbrances, claims, security interests and defects, other than those described in the Registration Statement and the Prospectus and those which do not and will not have a Material Adverse Effect. (viii) Except as described in the Registration Statement and the Prospectus, there is no litigation or governmental or other proceeding or investigation before any court or before or by any public body or board pending or, to the Company's knowledge, threatened (and the Company does not know of any reasonable basis therefor) against, or involving the assets, properties or business of, the Company or the Subsidiaries which, if adversely determined, could be reasonably expected to have a Material Adverse Effect. (ix) Subsequent to the respective dates as of which information is given in the Registration Statement and the Prospectus, except as described therein, (A) there has not been any material adverse change in the assets or properties, business, results of operations, prospects or condition (financial or otherwise) of the Company or the Subsidiaries taken as a whole, whether or not arising from transactions in the ordinary course of business; (B) neither the Company nor any of the Subsidiaries has sustained any material loss or interference with its assets, businesses or properties (whether owned, leased or licensed) from fire, explosion, earthquake, flood or other calamity, whether or not covered by insurance, or from any labor dispute or any court or legislative or other governmental action, order or decree; and (C) since after the date of ~~the latest balance sheet included in the Registration Statement and the Prospectus, except as reflected therein, neither the Company nor any~~ filing of the ~~Subsidiaries has (x~~Prospectus under Rule 424(b) ~~issued any securities (other than options or shares issued pursuant to exercise of employee stock options or warrants described in~~ under the ~~Registration Statement~~ Act, and Prospectus) or incurred any liability or obligation, direct or contingent, for borrowed money, except such liabilities or obligations incurred in the ordinary course of business, (y) entered into any transaction not in the ordinary course of business or (z) declared or paid any dividend or made any distribution on any shares of its stock or redeemed, purchased or otherwise acquired or agreed to redeem, purchase or otherwise acquire any shares of its stock. (x) There is no material document or contract of a character required to be described in the Registration Statement or Prospectus or to be filed as an exhibit to the Registration Statement which is not described or filed as required. Each agreement listed in the Exhibits to the Registration Statement is in full force and effect or has terminated in accordance with its terms or by amendment and such amendment has been filed as an Exhibit to the Registration Statement or has otherwise been provided to the Representatives and, if not so terminated, is valid and enforceable in all material respects by and against the Company or the Subsidiaries, as the case may be, in accordance with its terms, assuming the due authorization, execution and delivery thereof by each of the other parties thereto, except as the enforceability thereof may be limited by (i) bankruptcy, insolvency, reorganization, moratorium or other similar laws affecting the enforcement of creditors' rights generally and (ii) indemnification provisions under Federal and state securities laws; and that the remedy of specific forms of equitable relief may be subject to equitable defenses and the discretion of the court before which any such action may be brought. Neither the Company, the (xi) Neither the Company nor the Subsidiaries is in violation of any term or provision of their respective Certificate of Incorporation and By-laws, in each case as amended to the date hereof, or other governing documents, or of any franchise, license, permit, judgment, decree, order, statute, rule or regulation, where the consequences of such violation would have a Material Adverse Effect. Except as described in the Registration Statement or Prospectus, neither the Company nor any of the Subsidiaries intends to amend its Certificate of Incorporation and By-laws. (xii) Neither the execution, delivery and performance of this Agreement by the Company or the Subsidiaries nor the consummation of any of the transactions contemplated hereby (including, without limitation, the issuance and sale by the Company of the Shares) will give rise to a right to terminate or accelerate the due date of any payment due under, or conflict with or result in the breach of any term or provision of, or constitute a default (or an event which with notice or lapse of time or both would constitute a default) under, or require any consent or waiver under, or result in the execution or imposition of any lien, charge or encumbrance upon any properties or assets of the Company or any of the Subsidiaries pursuant to the terms of, any indenture, mortgage, deed of trust or other agreement or instrument to which the Company or any of the Subsidiaries is a party or by which it or any of its properties or businesses are bound, or any franchise, license, permit, judgment, decree, order, statute, rule or regulation applicable to the Company or any of the Subsidiaries or violate any provision of the Certificate of Incorporation and By-laws of the Company or any of the Subsidiaries, except for such consents or waivers which have already been obtained and are in full force and effect or as would not have a Material Adverse Effect. No consent, approval, authorization, order, registration or qualification of or with any United States court or governmental agency or body is required for the issue and sale of the Shares or the consummation of the other transactions contemplated by this Agreement, which have not been obtained prior to the ~~date hereof, except the registration under the Securities Act~~ termination of the ~~Shares, and such consents, approvals, authorizations, registrations or qualifications as may be required under state securities or Blue Sky laws -9- 10 in connection with the purchase and distribution~~ offering of the Shares by the Underwriters. (xiii) The authorized, issued and outstanding capital stock of the Company and the capital stock reserved or committed for issuance is as set forth under the caption "Capitalization" in the Prospectus. All of the outstanding shares of Stock have been duly and validly issued and are fully paid and nonassessable, none of them was issued in violation of any preemptive or other similar right and, to the Company's knowledge, since 1991, none of them were issued in violation of any Federal or state securities laws. The Shares, when issued and sold pursuant to this Agreement, will be duly and validly issued, fully paid and nonassessable, none of them will be issued in violation of any preemptive or other similar right, any contractual right, including, without limitation, rights of first refusal, and, since 1991, none of them were issued in violation of any (subject to compliance with Section 1(c) hereof), Federal or state securities laws. Except as disclosed in the Registration Statement and the Prospectus, there is no outstanding option, warrant or other right calling for the issuance of, and there is no commitment, plan or arrangement to issue, any shares of Common Stock of the Company or any security convertible into, or exercisable or exchangeable for, such shares of Stock. The shares of Stock conform in all material respects to all statements in relation thereto contained in the Registration Statement and the Prospectus. The Company has a sufficient number of authorized but unissued shares of Stock to enable the Company to issue, without further stockholder action, or approve all the Shares to be sold by the Company. (xiv) As of the date hereof, and as of each Closing Date, all of the outstanding shares of capital stock of the Subsidiaries are duly and validly authorized and issued, are fully paid and nonassessable and are and will be owned by the Company and there is and will be no outstanding option, warrant or other right calling for the issuance of, and no commitment, plan or arrangement to issue any share of capital stock of the Subsidiaries or any security convertible or exchangeable or exercisable for capital stock of the Subsidiaries, except as otherwise described in the Registration Statement and Prospectus. (xv) Except as set forth in the Registration Statement and Prospectus, no holder of any security of the Company has the right to have any security owned by such holder included in the Registration Statement or to demand registration of any security owned by such holder during the period ending 90 days after the date of this Agreement. Each Selling Stockholder and each director and executive officer of the Company has delivered to

Appears in 1 contract

Sources: Equity Underwriting Agreement (Tangoe Inc)

Appears in 1 contract

Sources: Underwriting Agreement (Advance Auto Parts Inc)

Representations and Warranties of the Company and the Selling Stockholders. (a) The Company ~~hereby~~ represents and warrants ~~to each Underwriter as follows~~to, and agrees with, the several Underwriters that: (i) On A registration statement (No. 333-123969) relating to the ~~Effective Date~~Offered Securities, including a form of prospectus, has been filed with the Securities and Exchange Commission ("Commission") and either (A) has been declared effective under the Securities Act of 1933 ("Act") and is not proposed to be amended or (B) is proposed to be amended by amendment or post-effective amendment. If such registration statement (the "initial registration statement") has been declared effective, either (A) an additional registration statement (the "additional registration statement") relating to the Offered Securities may have been filed with the Commission pursuant to Rule 462(b) ("Rule 462(b)") under the Act and, if so filed, has become effective upon filing pursuant to such Rule and the Offered Securities all have been duly registered under the Act pursuant to the initial registration statement and, if applicable, the ~~Registration Statement complied~~additional registration statement or (B) such an additional registration statement is proposed to be filed with the Commission pursuant to Rule 462(b) and will become effective upon filing pursuant to such Rule and upon such filing the Offered Securities will all have been duly registered under the Act pursuant to the initial registration statement and such additional registration statement. If the Company does not propose to amend the initial registration statement or if an additional registration statement has been filed and the Company does not propose to amend it, and ~~on the date of the Prospectus, on the date~~ if any post-effective amendment to ~~the Registration Statement shall become effective, on the date any supplement or amendment to the Prospectus is~~ either such registration statement has been filed with the Commission prior to the execution and ~~on each Closing Date~~delivery of this Agreement, the ~~Registration Statement and~~ most recent amendment (if any) to each such registration statement has been declared effective by the ~~Prospectus~~ Commission or has become effective upon filing pursuant to Rule 462(c) (~~and any amendment thereof or supplement thereto~~"Rule 462(c)") ~~will comply~~under the Act or, in ~~all material respects, with~~ the ~~applicable provisions~~ case of the ~~Securities Act~~ additional registration statement, Rule 462(b). For purposes of this Agreement, "Effective Time" with respect to the initial registration statement or, if filed prior to the execution and delivery of this Agreement, the ~~Rules;~~ additional registration statement means (iiA) ~~The documents~~ if the Company has advised the Representatives that ~~are incorporated~~ it does not propose to amend such registration statement, the date and time as of which such registration statement, or the most recent post-effective amendment thereto (if any) filed prior to the execution and delivery of this Agreement, was declared effective by ~~reference in~~ the ~~preliminary prospectus~~ Commission or has become effective upon filing pursuant to Rule 462(c), or (B) if the Company has advised the Representatives that it proposes to file an amendment or post-effective amendment to such registration statement, the date and ~~the Prospectus~~ time as of which such registration statement, as amended by such amendment or ~~from which information is so incorporated by reference, when they became~~ post-effective ~~or were filed with the Commission~~amendment, as the case may be, ~~complied~~ is declared effective by the Commission. If an additional registration statement has not been filed prior to the execution and delivery of this Agreement but the Company has advised the Representatives that it proposes to file one, "Effective Time" with respect to such additional registration statement means the date and time as of which such registration statement is filed and becomes effective pursuant to Rule 462(b). "Effective Date" with respect to the initial registration statement or the additional registration statement (if any) means the date of the Effective Time thereof. The initial registration statement, as amended at its Effective Time, including all information contained in the additional registration statement (if any) and deemed to be a part of the initial registration statement as of the Effective Time of the additional registration statement pursuant to the General Instructions of the Form on which it is filed and including all information (if any) deemed to be a part of the initial registration statement as of its Effective Time pursuant to Rule 430A(b) ("Rule 430A(b)") under the Act, is hereinafter referred to as the "Initial Registration Statement". The additional registration statement, as amended at its Effective Time, including the contents of the initial registration statement incorporated by reference therein and including all information (if any) deemed to be a part of the additional registration statement as of its Effective Time pursuant to Rule 430A(b), is hereinafter referred to as the "Additional Registration Statement". The Initial Registration Statement and the Additional Registration Statement are hereinafter referred to collectively as the "Registration Statements" and individually as a "Registration Statement". The form of prospectus relating to the Offered Securities, as first filed with the Commission pursuant to and in accordance with Rule 424(b) ("Rule 424(b)") under the Act or (if no such filing is required) as included in a Registration Statement, is hereinafter referred to as the "Prospectus". No document has been or will be prepared or distributed in reliance on Rule 434 under the Act. (ii) If the Effective Time of the Initial Registration Statement is prior to the execution and delivery of this Agreement: (A) on the Effective Date of the Initial Registration Statement, the Initial Registration Statement conformed in all material respects ~~with~~ to the requirements of the ~~Securities~~ Act ~~or the Securities Exchange Act of 1934, as amended (the "Exchange Act"), as applicable,~~ and the rules and regulations of the Commission ~~promulgated under~~ (the ~~Securities~~ "Rules and Regulations") and did not include any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein not misleading, (B) on the Effective Date of the Additional Registration Statement (if any), each Registration Statement conformed or will conform, in all material respects to the requirements of the Act and the ~~Exchange Act~~Rules and Regulations and did not include, ~~as applicable~~or will not include, ~~except as amended~~ any untrue statement of a material fact and ~~superseded by~~ did not omit, or will not omit, to state any material fact required to be stated therein or necessary to make the statements ~~made~~ therein not misleading, and (C) on the date of this Agreement, the Initial Registration Statement and, if the Effective Time of the Additional Registration Statement is prior to the execution and delivery of this Agreement, the Additional Registration Statement each conforms, and at the time of filing of the Prospectus pursuant to Rule 424(b) or (if no such filing is required) at the Effective Date of the Additional Registration Statement in which the Prospectus is included, each Registration Statement and the Prospectus will conform, in all material respects to the requirements of the Act and the Rules and Regulations, and neither of such documents includes, or will include, any untrue statement of a material fact or omits, or will omit, to state any material fact required to be stated therein or necessary to make the statements therein (in the case of the Prospectus, in light of the circumstances under which they were made) not misleading. If the Effective Time of the Initial Registration ~~Statement; and any documents so filed and incorporated by reference~~ Statement is subsequent to the execution and delivery of this Agreement, on the Effective Date ~~shall~~of the Initial Registration Statement, ~~when they are filed with~~ the ~~Commission,~~ Initial Registration Statement and the Prospectus will conform in all material respects ~~with~~ to the requirements of the ~~Securities Act or the Exchange Act, as applicable, and the rules and regulations of the Commission promulgated under the Securities~~ Act and the ~~Exchange Act~~Rules and Regulations, neither of such documents will include any untrue statement of a material fact or will omit to state any material fact required to be stated therein or necessary to make the statements therein (in the case of the Prospectus, in light of the circumstances under which they were made) not misleading, and no Additional Registration Statement has been or will be filed. The two preceding sentences do not apply to statements in or omissions from a Registration Statement or the Prospectus based upon written information furnished to the Company by any Underwriter through the Representatives specifically for use therein, it being understood and agreed that the only such information is that described as ~~applicable~~such in Section 7(c) hereof. (iii) The consolidated financial statements of the Company (including all notes and schedules thereto) included in the Registration Statement and Prospectus present fairly the financial position, the results of operations and cash flows and the stockholders' equity and the other information purported to be shown therein of the Company and its subsidiaries, listed on Schedule III hereto (the "Subsidiaries"), at the respective dates and for the respective (iv) KPMG Peat Marwick LLP, whose report is filed with the Commission as a part of the Registration Statement, is and, during the periods covered by its reports, was independent public accountants as required by the Securities Act and the Rules. (v) The Company has been duly incorporated and is ~~a validly~~ an existing corporation in good standing under the laws of the State of Delaware, with power and ~~the Subsidiaries have been duly incorporated~~ authority (corporate and ~~are validly existing corporations under the laws of their respective jurisdictions. Other than the Subsidiaries, the Company has no subsidiaries~~ other) to own its properties and ~~does not control, directly or indirectly, any corporation, partnership, joint venture, association or other~~ conduct its business ~~organization, except~~ as described in the ~~Registration Statement~~ Prospectus; and the ~~Prospectus. Each of the~~ Company ~~and the Subsidiaries~~ is duly qualified ~~and in good standing~~ to do business as a foreign corporation in ~~each jurisdiction~~ good standing in all other jurisdictions in which ~~the character~~ its ownership or ~~location~~ lease of ~~its assets or properties (owned, leased or licensed)~~ property or the ~~nature~~ conduct of its business ~~makes~~ requires such ~~qualification necessary~~ qualification, except ~~for such jurisdictions~~ where the failure to be so ~~qualify~~ qualified or in good standing would not individually or in the aggregate reasonably be expected to have a material adverse effect on the ~~assets or properties, business, results of operations or~~ condition (financial or ~~otherwise)~~ other), business, properties or results of operations of the Company and ~~the Subsidiaries,~~ its subsidiaries taken as a whole (a "Material Adverse Effect")~~. Except~~ . (A) Each subsidiary set forth on Schedule C hereto (each, a "Subsidiary" and collectively, the "Subsidiaries") has been duly organized or incorporated and is an existing company or corporation, as ~~disclosed~~ the case may be, in good standing under the Registration Statement and the Prospectus, neither the Company nor the Subsidiaries own, lease or license any material asset or property or conduct any material business outside the United States of America. Each laws of the ~~Company and the Subsidiaries have all requisite corporate~~ jurisdiction of its organization or incorporation, with power and ~~authority,~~ authority (corporate and ~~all necessary authorizations, approvals, consents, orders, licenses, certificates and permits of and from all governmental or regulatory bodies or any other person or entity,~~ other) to ~~own, lease and license their assets and~~ own its properties and conduct ~~their businesses as now being conducted and~~ its business as described in the ~~Registration Statement and~~ Prospectus; (B) each Subsidiary is duly qualified to do business as a foreign corporation in good standing in all other jurisdictions in which its ownership or lease of property or the ~~Prospectus~~ conduct of its business requires such qualification, except ~~for such authorizations, approvals, consents, orders, licenses, certificates and permits~~ where the failure to be so ~~obtain~~ qualified or in good standing would not individually or in the aggregate reasonably be expected to have a Material Adverse Effect; ~~no such authorization~~(C) all of the issued and outstanding capital stock of each Subsidiary has been duly authorized and validly issued and is fully paid and nonassessable; and (D) except for the security interests granted in connection with that certain Credit Agreement, ~~approval~~dated as of August 5, ~~consent~~2004, ~~order~~among Refco Finance Holdings LLC, ~~license~~New Refco Group Ltd., ~~certificate~~ LLC, and the lenders named therein, as amended, the capital stock of each Subsidiary owned by the Company, directly or ~~permit contains a materially burdensome restriction other than as disclosed~~ through Subsidiaries, is owned free from liens, encumbrances and defects, except for liens, encumbrances and defects that would not individually or in the ~~Registration Statement~~ aggregate reasonably be expected to have a Material Adverse Effect. (v) The Offered Securities and all other outstanding shares of capital stock of the Company have been duly authorized and validly issued, are fully paid and nonassessable and conform in all material respects to the description thereof contained in the Prospectus; and the stockholders of the Company ~~has all such corporate power and authority, and such authorizations, approvals, consents, orders, licenses, certificates and permits~~ have no preemptive rights with respect to ~~enter into, deliver and perform this Agreement and to issue and~~the Offered Securities. (vi) The Company and the Subsidiaries own or possess adequate and enforceable rights to use all patents, trademarks, trademark applications, trade names, service marks, copyrights, copyright applications, licenses, know-how and other similar rights and proprietary knowledge (collectively, "Intangibles") material to or necessary for the conduct of their business as described in the Registration Statement and the Prospectus. Except as disclosed in the ~~Registration Statement~~ Prospectus, there are no contracts, agreements or understandings between the Company and any person that would give rise to a valid claim against the Company or any Underwriter for a brokerage commission, finder's fee or other like payment in connection with the offer and sale of the Offered Securities. (vii) Except as disclosed in the Prospectus, ~~neither~~ there are no contracts, agreements or understandings between the Company ~~nor~~ and any person granting such person the right to require the Company to file a registration statement under the Act with respect to any securities of the Company owned or to be owned by such person or to require the Company to include such securities in the securities registered pursuant to a Registration Statement or in any securities being registered pursuant to any other registration statement filed by the Company under the Act. (viii) The Securities have been approved for listing subject to notice of issuance on The New York Stock Exchange. (ix) No consent, approval, authorization, or order of, or filing with, any governmental agency or body or any court is required to be obtained or made by the Company for the performance of this Agreement in connection with the sale of the Offered Securities, except such as have been obtained and made under the Act and such as may be required under state securities laws. (x) The execution, delivery and performance of this Agreement, and the consummation of the transactions herein contemplated will not result in a breach or violation of any of the terms and provisions of, or constitute a default under (or an event which the notice or passage of time or both would constitute a default under) (A) any statute, rule, regulation or order of any governmental agency or body or any court, domestic or foreign, having jurisdiction over the Company or any Subsidiary or any of their properties; (B) any material agreement or instrument to which the Company or its Subsidiaries is, or immediately following the transactions contemplated by the Prospectus will be, a party or by which the Company or any such Subsidiary is, or immediately following the transactions contemplated by the Prospectus will be, bound or to which any of the properties of the Company or any such Subsidiary is, or immediately following the transactions contemplated by the Prospectus will be, subject; or (C) the charter or by-laws (or similar organization documents) of the Company or any such Subsidiary. The Company has full power and authority to authorize, issue and sell the Offered Securities as contemplated by this Agreement. (xi) None of the Company or any of its Subsidiaries is (A) in violation of its charter or by-laws (or similar organizational documents) or (B) in default in the performance of any obligation, agreement, covenant or condition contained in any indenture, loan agreement, mortgage, lease or other agreement or instrument to which the Company or any Subsidiary is, or immediately following the transactions contemplated by the Prospectus will be, a party or by which the Company or any Subsidiary or their respective property is, or immediately following the transactions contemplated by the Prospectus will be, bound, except, in the case of clause (B), for defaults that would not individually or in the aggregate reasonably be expected to have a Material Adverse Effect. (xii) This Agreement has been duly authorized, executed and delivered by the Company. (xiii) Except as disclosed in the Prospectus, the Company and its Subsidiaries have good and marketable title to all real properties and all other properties and assets owned by them, in each case free from liens, encumbrances and defects that would affect the value thereof or interfere with the use made or to be made thereof by them, except for liens, encumbrances or defects that would not individually or in the aggregate reasonably be expected to have a Material Adverse Effect; and except as disclosed in the Prospectus, the Company and its Subsidiaries hold any leased real or personal property under valid and enforceable leases with no exceptions that would materially interfere with the use made or to be made thereof by them. (xiv) Except as disclosed in the Prospectus, the Company and its Subsidiaries possess adequate certificates, authorities or permits issued by appropriate governmental agencies or bodies necessary to conduct the business now conducted by them and have not received any notice ofof proceedings relating to the revocation or modification of any such certificate, authority or permit that, if determined adversely to the Company or any of its Subsidiaries, would individually or in the aggregate be reasonably expected to have a Material Adverse Effect. (xv) No labor dispute with the employees of the Company or any Subsidiary exists or, to the knowledge of the Company, is imminent that would reasonably be expected to have a Material Adverse Effect. (xvi) Except as disclosed in the Prospectus, the Company and its Subsidiaries own, possess or can acquire on reasonable terms, adequate trademarks, trade names and other rights to inventions, know-how, patents, copyrights, confidential information and other intellectual property (collectively, "intellectual property rights") necessary to conduct the business now conducted by them, or presently employed by them, and ~~to their knowledge are~~ have not ~~aware of,~~ received any notice of infringement of or conflict with asserted rights of others with respect to any ~~Intangibles which, singly or in the aggregate~~intellectual property rights that, if the subject of an unfavorable decision, ruling or finding, could be reasonably expected to have a Material Adverse Effect, and neither the Company nor the Subsidiaries know of any reasonable basis therefor. Except as disclosed in the Registration Statement and the Prospectus, to the knowledge of the Company, no Intangibles of the Company or the Subsidiaries are in dispute or are in any conflict with the right of any other person or entity and the Company and each of the Subsidiaries (A) has or will have the right (subject to applicable agreements, which agreements provide for use to the extent necessary and desirable for the conduct of its business as currently conducted and as proposed to be conducted) to use, free and clear of all liens, charges, claims, encumbrances, pledges, security interests, defects, restrictions or equities of any kind whatsoever all licenses and rights to the Intangibles used in the conduct of their business as now conducted or proposed to be conducted without infringing upon or otherwise acting determined adversely to the right or claimed right of any other person and (B) is not or will not become, as the case may be, obligated or in any way liable for any payment by way of royalties, fees or otherwise and to any owner or licensee of, or other claimant to, any Intangibles with respect to the use thereof or in connection with the conduct of their business or otherwise, except in each case as disclosed in the Prospectus and except for any such payments, claims, uses, liens, charges, encumbrances, pledges, security interests, defects, restrictions and equities which would not have a Material Adverse Effect. (vii) The Company and the Subsidiaries have good and marketable title to each of the items of personal property which are reflected in the financial statements referred to in Section 4(a)(ii) or are referred to in the Registration Statement and the Prospectus as being owned by them and valid and enforceable leasehold interests in each of the items of real and personal property which are referred to in the Registration Statement and the Prospectus as being leased by them, in each case free and clear of all liens, encumbrances, claims, security interests and defects, other than those described in the Registration Statement and the Prospectus and those which do not and will not have a Material Adverse Effect. (viii) Except as described in the Registration Statement and the Prospectus, there is no litigation or governmental or other proceeding or investigation before any court or before or by any public body or board pending or, to the Company's knowledge, threatened (and the Company does not know of any reasonable basis therefor) against, or involving the assets, properties or business of, the Company or the Subsidiaries which, if adversely determined, could be reasonably expected to have a Material Adverse Effect. (ix) Subsequent to the respective dates as of which information is given in the Registration Statement and the Prospectus, except as described therein, (A) there has not been any material adverse change in the assets or properties, business, results of operations, prospects or condition (financial or otherwise) of the Company or the Subsidiaries taken as a whole, whether or not arising from transactions in the ordinary course of business; (B) neither the Company nor any of the Subsidiaries has sustained any material loss or interference with its assets, businesses or properties (whether owned, leased or licensed) from fire, explosion, earthquake, flood or other calamity, whether or not covered by insurance, or from any labor dispute or any court or legislative or other governmental action, order or decree; and (C) since the date of the latest balance sheet included in the Registration Statement and the Prospectus, except as reflected therein, neither the Company nor any of the Subsidiaries has (x) issued any securities (other than options or shares issued pursuant to exercise of employee stock options or warrants described in the Registration Statement and Prospectus) or incurred any liability or obligation, direct or contingent, for borrowed money, except such liabilities or obligations incurred in the ordinary course of business, (y) entered into any transaction not in the ordinary course of business or (z) declared or paid any dividend or made any distribution on any shares of its stock or redeemed, purchased or otherwise acquired or agreed to redeem, purchase or otherwise acquire any shares of its stock. (x) There is no material document or contract of a character required to be described in the Registration Statement or Prospectus or to be filed as an exhibit to the Registration Statement which is not described or filed as required. Each agreement listed in the Exhibits to the Registration Statement is in full force and effect or has terminated in accordance with its terms or by amendment and such amendment has been filed as an Exhibit to the Registration Statement or has otherwise been provided to the Representatives and, if not so terminated, is valid and enforceable in all material respects by and against the Company or the Subsidiaries, as the case may be, in accordance with its terms, assuming the due authorization, execution and delivery thereof by each of the other parties thereto, except as the enforceability thereof may be limited by (i) bankruptcy, insolvency, reorganization, moratorium or other similar laws affecting the enforcement of creditors' rights generally and (ii) indemnification provisions under Federal and state securities laws; and that the remedy of specific forms of equitable relief may be subject to equitable defenses and the discretion of the court before which any such action may be brought. Neither the Company, the (xi) Neither the Company nor the Subsidiaries is in violation of any term or provision of their respective Certificate of Incorporation and By-laws, in each case as amended to the date hereof, or other governing documents, or of any franchise, license, permit, judgment, decree, order, statute, rule or regulation, where the consequences of such violation would have a Material Adverse Effect. Except as described in the Registration Statement or Prospectus, neither the Company nor any of the Subsidiaries intends to amend its Certificate of Incorporation and By-laws. (xii) Neither the execution, delivery and performance of this Agreement by the Company or the Subsidiaries nor the consummation of any of the transactions contemplated hereby (including, without limitation, the issuance and sale by the Company of the Shares) will give rise to a right to terminate or accelerate the due date of any payment due under, or conflict with or result in the breach of any term or provision of, or constitute a default (or an event which with notice or lapse of time or both would constitute a default) under, or require any consent or waiver under, or result in the execution or imposition of any lien, charge or encumbrance upon any properties or assets of the Company or any of the Subsidiaries pursuant to the terms of, any indenture, mortgage, deed of trust or other agreement or instrument to which the Company or any of the Subsidiaries is a party or by which it or any of its properties or businesses are bound, or any franchise, license, permit, judgment, decree, order, statute, rule or regulation applicable to the Company or any of ~~the Subsidiaries or violate any provision of the Certificate of Incorporation and By-laws of the Company or any of the~~ its Subsidiaries, ~~except for such consents~~ would individually or waivers which have already been obtained and are in full force and effect or as would not have a Material Adverse Effect. No consent, approval, authorization, order, registration or qualification of or with any United States court or governmental agency or body is required for the issue and sale of the Shares or the consummation of the other transactions contemplated by this Agreement, which have not been obtained prior to the date hereof, except the registration under the Securities Act of the Shares, and such consents, approvals, authorizations, registrations or qualifications as may be required under state securities or Blue Sky laws -9- 10 in connection with the purchase and distribution of the Shares by the Underwriters. (xiii) The authorized, issued and outstanding capital stock of the Company and the capital stock reserved or committed for issuance is as set forth under the caption "Capitalization" in the Prospectus. All of the outstanding shares of Stock have been duly and validly issued and are fully paid and nonassessable, none of them was issued in violation of any preemptive or other similar right and, to the Company's knowledge, since 1991, none of them were issued in violation of any Federal or state securities laws. The Shares, when issued and sold pursuant to this Agreement, will be duly and validly issued, fully paid and nonassessable, none of them will be issued in violation of any preemptive or other similar right, any contractual right, including, without limitation, rights of first refusal, and, since 1991, none of them were issued in violation of any (subject to compliance with Section 1(c) hereof), Federal or state securities laws. Except as disclosed in the Registration Statement and the Prospectus, there is no outstanding option, warrant or other right calling for the issuance of, and there is no commitment, plan or arrangement to issue, any shares of Common Stock of the Company or any security convertible into, or exercisable or exchangeable for, such shares of Stock. The shares of Stock conform in all material respects to all statements in relation thereto contained in the Registration Statement and the Prospectus. The Company has a sufficient number of authorized but unissued shares of Stock to enable the Company to issue, without further stockholder action, or approve all the Shares to be sold by the Company. (xiv) As of the date hereof, and as of each Closing Date, all of the outstanding shares of capital stock of the Subsidiaries are duly and validly authorized and issued, are fully paid and nonassessable and are and will be owned by the Company and there is and will be no outstanding option, warrant or other right calling for the issuance of, and no commitment, plan or arrangement to issue any share of capital stock of the Subsidiaries or any security convertible or exchangeable or exercisable for capital stock of the Subsidiaries, except as otherwise described in the Registration Statement and Prospectus. (xv) Except as set forth in the Registration Statement and Prospectus, no holder of any security of the Company has the right to have any security owned by such holder included in the Registration Statement or to demand registration of any security owned by such holder during the period ending 90 days after the date of this Agreement. Each Selling Stockholder and each director and executive officer of the Company has delivered toin

Appears in 1 contract

Sources: Underwriting Agreement (Refco Inc.)

Common use of Representations and Warranties of the Company and the Selling Stockholders Clause in Contracts