Representations and Warranties of the Selling Shareholder. The Selling Shareholder represents and warrants to and agrees with each of the Underwriters that: (a) This Agreement has been duly authorized, executed and delivered by the Selling Shareholder. (b) The execution and delivery by the Selling Shareholder of, and the performance by the Selling Shareholder of its obligations under, this Agreement will not contravene any provision of applicable law, or the memorandum and articles of association of the Selling Shareholder, or any agreement or other instrument binding upon the Selling Shareholder or any judgment, order or decree of any governmental body, agency or court having jurisdiction over the Selling Shareholder, and no consent, approval, authorization or order of, or qualification with, any governmental body or agency is required for the performance by the Selling Shareholder of its obligations under this Agreement, except such as may be required by the securities or Blue Sky laws of the various states in connection with the offer and sale of the Shares. (c) The Selling Shareholder has, and on the Closing Date will have, valid title to, or a valid “security entitlement” within the meaning of Section 8-501 of the New York Uniform Commercial Code (the “UCC”) in respect of, the Shares to be sold by the Selling Shareholder free and clear of all security interests, claims, liens, equities or other encumbrances and the legal right and power, and all authorization and approval required by law, to enter into this Agreement and to sell, transfer and deliver the Shares to be sold by the Selling Shareholder or a security entitlement in respect of such Shares. (d) Upon payment for the Shares to be sold by the Selling Shareholder pursuant to this Agreement, delivery of such Shares, as directed by the Underwriters, to Cede & Co. (“Cede”) or such other nominee as may be designated by the Depository Trust Company (“DTC”), registration of such Shares in the name of Cede or such other nominee and the crediting of such Shares on the books of DTC to securities accounts of the Underwriters (assuming that neither DTC nor any such Underwriter has notice of any adverse claim (within the meaning of Section 8-105 of the UCC) to such Shares), (A) DTC shall be a “protected purchaser” of such Shares within the meaning of Section 8-303 of the UCC, (B) under Section 8-501 of the UCC, the Underwriters will acquire a valid security entitlement in respect of such Shares and (C) no action based on any “adverse claim”, within the meaning of Section 8-102 of the UCC, to such Shares may be asserted against the Underwriters with respect to such security entitlement; for purposes of this representation, the Selling Shareholder may assume that when such payment, delivery and crediting occur, (x) such Shares will have been registered in the name of Cede or another nominee designated by DTC, in each case on the Company’s share register in accordance with its memorandum and articles of association and applicable law, (y) DTC will be registered as a “clearing corporation” within the meaning of Section 8-102 of the UCC and (z) appropriate entries to the accounts of the several Underwriters on the records of DTC will have been made pursuant to the UCC. (i) The Registration Statement, when it became effective, did not contain and, as amended or supplemented, if applicable, will not contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading and (ii) the Prospectus does not contain and, as amended or supplemented, if applicable, will not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading, provided that the representations and warranties set forth in this paragraph 2(e) are limited to statements or omissions in the Registration Statement or Prospectus made in reliance upon information relating to the Selling Shareholder furnished to the Company in writing by the Selling Shareholder expressly for use in the Registration Statement, the Prospectus or any amendments or supplements thereto.
Appears in 2 contracts
Sources: Underwriting Agreement (Seagate Technology), Underwriting Agreement (Seagate Technology Holdings)
Representations and Warranties of the Selling Shareholder. The Selling Shareholder represents and warrants to and agrees with each of the Underwriters that:
(ai) This Agreement has been duly authorized, executed and delivered by or on behalf of the Selling Shareholder.
(bii) The execution and delivery by the Selling Shareholder of, and the performance by the Selling Shareholder of its obligations underunder this Agreement, this Agreement will not contravene (i) any provision of applicable law, or the memorandum and articles of association of law applicable to the Selling Shareholder, (ii) the organizational documents of the Selling Shareholder (if the Selling Shareholder is a corporation, limited liability company, partnership or other entity), (iii) any agreement or other instrument binding upon the Selling Shareholder or (iv) any judgment, order or decree of any governmental body, agency or court having jurisdiction over the Selling Shareholder, except in the case of clauses (i), (iii) and (iv) as would not, singly or in the aggregate, have a material adverse effect on the ability of the Selling Shareholder to consummate the transactions contemplated by this Agreement and no consent, approval, authorization or order of, or qualification with, any governmental body or agency is required for the performance by the Selling Shareholder of its obligations under this AgreementAgreement of the Selling Shareholder, except (i) such as may have already been obtained, (ii) such as may be required by the securities or Blue Sky laws of the various states or foreign jurisdictions or the rules and regulations of FINRA in connection with the offer and sale of the SharesSecurities or (iii) such that would not reasonably be expected to have a material adverse effect on the ability of the Selling Shareholder to consummate the transactions contemplated by this Agreement.
(ciii) The Selling Shareholder has, and on at the Closing Date Time will have, valid title to, or a valid “security entitlement” within the meaning of (as defined in Section 8-501 102 of the New York Uniform Commercial Code (the “UCC”Code) in respect of, the Shares Securities to be sold by the Selling Shareholder free and clear of all security interests, claims, liens, equities or other encumbrances and the legal right and power, and all authorization and approval required by law, to enter into this Agreement and to sell, transfer and deliver the Shares Securities to be sold by the Selling Shareholder or a security entitlement in respect of such SharesSecurities.
(div) Upon payment for the Shares Securities to be sold by the Selling Shareholder pursuant to this Agreement, delivery of such SharesSecurities, as directed by the Underwriters, to Cede & Co. (“Cede”) or such other nominee as may be designated by the Depository Trust Company (“DTC”), registration of such Shares Securities in the name of Cede or such other nominee and the crediting of such Shares Securities on the books of DTC to the securities accounts of the several Underwriters (assuming that neither DTC nor any such Underwriter has notice of any adverse claim (within the meaning of Section 8-105 of the New York Uniform Commercial Code (the “UCC”)) to such SharesSecurities), (A) DTC shall be a “protected purchaser” of such Shares Securities within the meaning of Section 8-303 of the UCC, (B) under Section 8-501 of the UCC, the Underwriters will acquire a valid security entitlement in respect of such Shares Securities and (C) no action based on any “adverse claim”, within the meaning of (as defined in Section 8-102 of the UCC, ) to such Shares Securities may be asserted against the Underwriters with respect to such security entitlement; for purposes of this representation, the Selling Shareholder may assume that when such payment, delivery and crediting occur, (x) such Shares Securities will have been registered in the name of Cede or another nominee designated by DTC, in each case on the Company’s share register registry in accordance with its memorandum and articles certificate of association incorporation, bylaws and applicable law, (y) DTC will be registered as a “clearing corporation” within the meaning of (as defined in Section 8-102 of the UCC UCC) and (z) appropriate entries to the accounts of the several Underwriters on the records of DTC will have been made pursuant to the UCC.
(v) The Selling Shareholder has delivered to the Representatives an executed “lock-up” agreement in substantially the form attached hereto as Exhibit A (the “Lock-up Agreement”).
(i) The Registration Statement, when it became effective, did not contain and, as amended or supplemented, if applicable, will not contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading, (ii) the General Disclosure Package does not, and at the time of each sale of the Securities in connection with the offering when the Prospectus is not yet available to prospective purchasers and at the Closing Time (as defined in Section 2), the General Disclosure Package, as then amended or supplemented by the Company, if applicable, will not, contain any 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 and (iiiii) the Prospectus does not contain and, as amended or supplemented, if applicable, will not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading, provided except that the representations and warranties set forth in this paragraph 2(e1(b)(vi) are limited in all respects to statements or omissions in the Registration Statement or Prospectus made in reliance upon and in conformity with the information relating to the Selling Shareholder furnished to the Company in writing by or on behalf of the Selling Shareholder expressly for use in the Registration Statement, the General Disclosure Package or the Prospectus, it being understood and agreed that for purposes of this Agreement, the only information furnished by the Selling Shareholder consists of the name of the Selling Shareholder, the number of offered shares and the address and other information with respect to the Selling Shareholder (excluding percentages) which appear in the Registration Statement or the Prospectus or any amendments or supplements theretoin the table (and corresponding footnotes) under the caption “Principal and Selling Stockholders” (the “Selling Shareholder Information”).
Appears in 2 contracts
Sources: Underwriting Agreement (Convey Holding Parent, Inc.), Underwriting Agreement (Convey Holding Parent, Inc.)
Representations and Warranties of the Selling Shareholder. The Selling Shareholder represents and warrants to and agrees with each of the Underwriters as of the date hereof and as of the Closing Date that:
(a) This Agreement has been duly authorized, executed and delivered by or on behalf of the Selling Shareholder.
(b) The sale and delivery of the Firm Shares by the Selling Shareholder, the deposit of the Underlying Shares by the Selling Shareholder with the Depositary against issuance of the ADRs evidencing the ADSs to be delivered by the Selling Shareholder, the European Share Deposit and the execution and delivery by the Selling Shareholder of, and the performance by the Selling Shareholder of its obligations under, this Agreement will not contravene any provision of applicable law, or the memorandum and certificate of incorporation or articles of association (vedtekter) of the Selling Shareholder, or any agreement or other instrument binding upon the Selling Shareholder or any judgment, order or decree of any governmental body, agency or court having jurisdiction over the Selling Shareholder, and no consent, approval, authorization or order of, or qualification with, any governmental body or agency is required for the performance by the Selling Shareholder of its obligations under this Agreement, except such as may be required by the securities or Blue Sky laws of the various states in connection with the offer and sale of the SharesSecurities.
(c) The Selling Shareholder has, beneficially owns and on the Closing Date will have, beneficially own or has and will have on the Closing Date a valid title to, or a valid “security entitlement” within the meaning of Section 8-501 of the New York Uniform Commercial Code (the “UCC”) in respect of, the Securities and the Underlying Shares to be represented by the ADSs to be sold by the Selling Shareholder hereunder, free and clear of all security interests, claims, liens, equities or other encumbrances encumbrances; and the Selling Shareholder has the legal right and power, and all authorization and approval required by law, to enter into the Deposit Agreement and to deposit the Underlying Shares with the Depositary against the issuance of the ADRs evidencing the ADSs to be delivered by the Selling Shareholder; the Selling Shareholder has valid title to the Common Shares deposited in (as a result of the European Share Deposit), and to be transferred through, Euroclear NL, in the manner contemplated by this Agreement and the Prospectus.
(d) The Selling Shareholder has the legal right and power, and all authorization and approval required by law, to enter into this Agreement and to sell, transfer and deliver the Shares Securities to be sold by the Selling Shareholder or a security entitlement in respect of such SharesSecurities.
(de) Upon payment for The ADSs representing the Underlying Shares to be sold by were deposited in accordance with the Selling Shareholder pursuant to this Agreementprovisions of the Deposit Agreement and were duly issued, and, upon the sale and delivery of such Shares, as directed the ADRs to the person(s) procured by the Underwriters, the person(s) in whose name(s) the ADRs are registered will be entitled to Cede & Co. the rights in the ADSs representing the Underlying Shares specified in the Deposit Agreement.
(“Cede”f) No stamp, documentary, issuance, registration, transfer, withholding, capital gains, income or such other nominee as may be designated taxes or duties are payable by or on behalf of the Underwriters, the Company or any of its subsidiaries in Norway or to any taxing authority thereof or therein in connection with (i) the execution, delivery or consummation of this Agreement, (ii) the sale and delivery of the Securities to the Underwriters or purchasers procured by the Depository Trust Company Underwriters, or (“DTC”), registration iii) the resale and delivery of such Shares the Securities by the Underwriters in the name of Cede manner contemplated herein.
(g) The statements set forth under the heading “Material U.S. Federal Income Tax Considerations” in the Registration Statement or such other nominee and the crediting of such Shares on the books of DTC to securities accounts of the Underwriters (assuming that neither DTC nor any such Underwriter has notice of any adverse claim (within the meaning of Section 8-105 of the UCC) to such Shares), (A) DTC shall be a “protected purchaser” of such Shares within the meaning of Section 8-303 of the UCC, (B) under Section 8-501 of the UCC, the Underwriters will acquire a valid security entitlement in respect of such Shares and (C) no action based on any “adverse claim”, within the meaning of Section 8-102 of the UCCamendment thereto, to such Shares may be asserted against the Underwriters extent that they relate to matters of U.S. federal income tax law and legal conclusions with respect thereto, other than the statements under the heading “Passive Investment Company Rules” relating to such security entitlement; for purposes of this representation, the Selling Shareholder may assume that when such payment, delivery and crediting occur, (x) such Shares will have been registered in the name of Cede or another nominee designated by DTC, in each case on the Company’s share register status under the U.S. federal income tax rules defining the term “passive foreign investment company”, to the extent that they relate to matters of U.S. federal income tax law and legal conclusions with respect thereto, are accurate and complete in accordance with its memorandum and articles of association and applicable law, all material respects.
(yh) DTC will be registered as The Selling Shareholder Information in the Registration Statement or any amendment thereof constitutes a “clearing corporation” within the meaning of Section 8-102 fair summary of the UCC and (z) appropriate entries to the accounts of the several Underwriters on the records of DTC will have been made pursuant to the UCCmatters described therein.
(i) The Selling Shareholder has the power to submit, and pursuant to Section 19(a) has, to the extent permitted by law, legally, validly, effectively and irrevocably submitted, to the jurisdiction of the Specified Courts, and has the power to designate, appoint and empower, and pursuant to Section 19(c), has legally, validly and effectively designated, appointed and empowered an agent for service of process in any suit or proceeding based on or arising under this Agreement in any of the Specified Courts.
(j) The Selling Shareholder has no reason to believe that the representations and warranties of the Company contained in Section 1 are not true and correct, is familiar with the Registration Statement, the Time of Sale Prospectus and the Prospectus and has no knowledge of any material fact, condition or information not disclosed in the Time of Sale Prospectus that has had, or may have, a Material Adverse Effect.
(k) (i) Each document, if any, filed or to be filed pursuant to the Exchange Act and incorporated by reference in the Time of Sale Prospectus or the Prospectus complied or will comply when so filed in all material respects with the Exchange Act and the applicable rules and regulations of the Commission thereunder, (ii) each of the Registration Statement and the ADR Registration Statement, when it became effective, did not contain and, as amended or supplemented, if applicable, will not contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading, (iii) the Registration Statement, the ADR Registration Statement and the Prospectus comply and, as amended or supplemented, if applicable, will comply in all material respects with the Securities Act and the applicable rules and regulations of the Commission thereunder, (iv) the Time of Sale Prospectus does not, and at the time of each sale of the Securities in connection with the offering when the Prospectus is not yet available to prospective purchasers and at the Closing Date (as defined in Section 5), the Time of Sale Prospectus, as then amended or supplemented by the Company, if applicable, will not, contain any 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, (v) each live road show, if any, when considered together with the Time of Sale Prospectus, does not contain any 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 and (iivi) the Prospectus does not contain and, as amended or supplemented, if applicable, will not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading, provided except that the representations and warranties set forth in this paragraph 2(e2(k) are limited do not apply to statements or omissions in the Registration Statement or the Prospectus made in reliance based upon information relating to the Selling Shareholder any Underwriter furnished to the Company in writing by such Underwriter through you expressly for use therein.
(i) None of the Selling Shareholder expressly for or any of its subsidiaries, or, to the knowledge of the Selling Shareholder, any director, officer, employee, agent, representative, affiliate thereof, or other person associated with or acting on behalf of the Selling Shareholder or any of its subsidiaries, is a Person that is, or is owned or controlled by a Sanctioned Person, or located, organized or resident in a Sanctioned Country.
(ii) The Selling Shareholder will not, directly or indirectly, use the proceeds of the offering, or lend, contribute or otherwise make available such proceeds to any subsidiary, joint venture partner or other Person:
(A) to fund or facilitate any activities or business of or with any Sanctioned Person or in Sanctioned Countries; or
(B) in any other manner that will result in a violation of sanctions laws by any Person (including any Person participating in the Registration Statementoffering, whether as underwriter, advisor, investor or otherwise).
(iii) For the past five years, the Prospectus Selling Shareholder and its subsidiaries have not knowingly engaged in, are not now knowingly engaged in, and will not engage in, any dealings or transactions with any Sanctioned Person, or Sanctioned Country, other than such limited telecommunications-related transactions with Sanctioned Countries as are permitted under the terms of the relevant Sanctions (including, without limitation, those transactions disclosed in the Company’s Annual Report on Form 20-F for the fiscal year ended December 31, 2016).
(a) None of the Selling Shareholder or its subsidiaries, or, to the knowledge of the Selling Shareholder, any director, officer, employee, agent, representative, affiliate thereof, or other person associated with or acting on behalf of the Selling Shareholder has taken or will take any action in furtherance of an offer, payment, promise to pay, or authorization or approval of the payment, giving or receipt of money, property, gifts or anything else of value, directly or indirectly, to any Government Official in order to influence official action, or to any person in violation of any applicable Anti-Corruption Laws; (b) the Selling Shareholder and its subsidiaries have conducted their businesses in compliance with applicable Anti-Corruption Laws and have instituted and maintained, and will continue to maintain, policies and procedures reasonably designed to promote and achieve compliance with such laws and with the representations and warranties contained herein and (c) neither the Selling Shareholder nor any of its subsidiaries will use, directly or indirectly, the proceeds of the offering in furtherance of an offer, payment, promise to pay, or authorization of the payment or giving of money, or anything else of value, to any person in violation of any applicable Anti-Corruption Laws.
(v) The operations of the Selling Shareholder and its subsidiaries are and have been conducted at all times in compliance with all applicable Anti-Money Laundering Laws, and no action, suit or proceeding by or before any court or governmental agency, authority or body or any amendments arbitrator involving the Selling Shareholder or supplements theretoany of its subsidiaries with respect to the Anti-Money Laundering Laws is pending or, to the best knowledge of the Selling Shareholder, threatened.
(m) This Agreement is in proper form under the laws of Norway for the enforcement thereof against the Selling Shareholder, and to ensure the legality, validity, enforceability or admissibility into evidence in Norway of this Agreement.
(n) The courts of Norway would recognize as a valid judgment any final monetary judgment relating to the Agreement obtained against the Selling Shareholder in the courts of the State of New York.
(o) Neither the Selling Shareholder nor any of its subsidiaries nor any of its or their properties or assets has any immunity from the jurisdiction of any court or from any legal process (whether through service or notice, attachment prior to judgment, attachment in aid of execution or otherwise) under the laws of Norway. The irrevocable and unconditional waiver and agreement of the Selling Shareholder contained in Section 19(a) not to plead or claim any such immunity in any legal action, suit or proceeding based on this Agreement is valid and binding under the laws of Norway.
(p) The choice of law of the State of New York as the governing law of this Agreement is a valid choice of law under the laws of Norway and will be honored by the courts of Norway.
Appears in 2 contracts
Sources: Underwriting Agreement (VEON Ltd.), Underwriting Agreement (Telenor East Holding II As)
Representations and Warranties of the Selling Shareholder. The Selling Shareholder represents and warrants to and agrees with each of the Underwriters Underwriter that:
(a) This Agreement has been duly authorized, executed and delivered by the Selling Shareholder.
(b) The execution and delivery by the Selling Shareholder of, and the performance by the Selling Shareholder of its obligations under, this Agreement will not contravene any provision of applicable law, or the memorandum and articles of association of the Selling Shareholder, or any agreement or other instrument binding upon the Selling Shareholder or any judgment, order or decree of any governmental body, agency or court having jurisdiction over the Selling Shareholder, and no consent, approval, authorization or order of, or qualification with, any governmental body or agency is required for the performance by the Selling Shareholder of its obligations under this Agreement, except such as may be required by the securities or Blue Sky laws of the various states in connection with the offer and sale of the Shares.
(c) The Selling Shareholder has, and on the Closing Date will have, valid title to, or a valid “security entitlement” within the meaning of Section 8-501 of the New York Uniform Commercial Code (the “UCC”) in respect of, the Shares to be sold by the Selling Shareholder free and clear of all security interests, claims, liens, equities or other encumbrances and the legal right and power, and all authorization and approval required by law, to enter into this Agreement and to sell, transfer and deliver the Shares to be sold by the Selling Shareholder or a security entitlement in respect of such Shares.
(d) Upon payment for the Shares to be sold by the Selling Shareholder pursuant to this Agreement, delivery of such Shares, as directed by the UnderwritersUnderwriter, to Cede & Co. (“Cede”) or such other nominee as may be designated by the Depository Trust Company (“DTC”), registration of such Shares in the name of Cede or such other nominee and the crediting of such Shares on the books of DTC to securities accounts of the Underwriters Underwriter (assuming that neither DTC nor any such the Underwriter has notice of any adverse claim (within the meaning of Section 8-105 of the UCC) to such Shares), (A) DTC shall be a “protected purchaser” of such Shares within the meaning of Section 8-303 of the UCC, (B) under Section 8-501 of the UCC, the Underwriters Underwriter will acquire a valid security entitlement in respect of such Shares and (C) no action based on any “adverse claim”, within the meaning of Section 8-102 of the UCC, to such Shares may be asserted against the Underwriters Underwriter with respect to such security entitlement; for purposes of this representation, the Selling Shareholder may assume that when such payment, delivery and crediting occur, (x) such Shares will have been registered in the name of Cede or another nominee designated by DTC, in each case on the Company’s share register in accordance with its memorandum and articles of association and applicable law, (y) DTC will be registered as a “clearing corporation” within the meaning of Section 8-102 of the UCC and (z) appropriate entries to the accounts of the several Underwriters Underwriter on the records of DTC will have been made pursuant to the UCC.
(i) The Registration Statement, when it became effective, did not contain and, as amended or supplemented, if applicable, will not contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading and (ii) the Prospectus does not contain and, as amended or supplemented, if applicable, will not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading, provided that the representations and warranties set forth in this paragraph 2(e) are limited to statements or omissions in the Registration Statement or Prospectus made in reliance upon information relating to the Selling Shareholder furnished to the Company in writing by the Selling Shareholder expressly for use in the Registration Statement, the Prospectus or any amendments or supplements thereto.
Appears in 2 contracts
Sources: Underwriting Agreement (Seagate Technology), Underwriting Agreement (Seagate Technology)
Representations and Warranties of the Selling Shareholder. The Selling Shareholder represents and warrants to and agrees with each of the Underwriters that:
(a) This Agreement has been duly authorized, executed and delivered by or on behalf of the Selling Shareholder, and constitutes the valid and binding agreement of the Selling Shareholder.
(b) The At the Closing and upon execution and delivery of the Letter Agreement re: Share Sale (the “Letter Agreement”) between the Selling Shareholder, Oaktree Fund Administration, LLC and Oaktree Capital Management, L.P. (together with Oaktree Fund Administration, LLC, “Oaktree”), the execution and delivery by the Selling Shareholder of, and the performance by the Selling Shareholder of its obligations under, this Agreement Agreement, the custody agreement signed by the Selling Shareholder and Computershare Trust Company, N.A., as Custodian, relating to the deposit of the Shares (the “Custody Agreement”) will not contravene any provision of (i) applicable law, or (ii) the memorandum and articles certificate of association incorporation or by-laws of the Selling ShareholderShareholder (if the Selling Shareholder is a corporation), or (iii) any agreement or other instrument binding upon the Selling Shareholder or any judgment, order or decree of any governmental body, agency or court having jurisdiction over the Selling Shareholder, except that in the case of clauses (i) and (iii) as would not individually, or in the aggregate, have a material adverse effect on the Selling Shareholder or on the power and ability of the Selling Shareholder to perform its obligations under this Agreement; and no consent, approval, authorization or order of, or qualification with, any governmental body body, agency or agency court is required for the performance by the Selling Shareholder of its obligations under this AgreementAgreement or the Custody Agreement of the Selling Shareholder, except such as may be required by the securities or Blue Sky laws of the various states in connection with the offer and sale of the Shares.
(c) The Selling Shareholder (i) has, and on the Closing Date will have, valid title to, or a valid “security entitlement” within the meaning of Section 8-501 of the New York Uniform Commercial Code (the “UCC”) in respect of, the Shares to Shares, which will, as of the Closing Date and upon execution and delivery by Oaktree of the Letter Agreement, be sold by the Selling Shareholder free and clear of all security interests, claims, liens, equities or other encumbrances encumbrances, and (ii) has the legal right and power, and all authorization and approval required by law, to enter into this Agreement and the Custody Agreement and to sell, transfer and deliver the Shares to be sold by the Selling Shareholder or a security entitlement in respect of such Shares.
(d) The Custody Agreement has been duly authorized, executed and delivered by or on behalf of the Selling Shareholder and constitutes the valid and binding agreement of the Selling Shareholder.
(e) Upon payment for the Shares to be sold by the Selling Shareholder pursuant to this Agreement, delivery of such Shares, as directed by the Underwriters, to Cede & Co. (“Cede”) or such other nominee as may be designated by the Depository Trust Company (“DTC”), registration of such Shares in the name of Cede or such other nominee and the crediting of such Shares on the books of DTC to securities accounts of the Underwriters (assuming that neither DTC nor any such Underwriter has notice of any adverse claim (within the meaning of Section 8-105 of the UCC) to such Shares), (A) DTC shall be a “protected purchaser” of such Shares within the meaning of Section 8-303 of the UCC, (B) under Section 8-501 of the UCC, the Underwriters will acquire a valid security entitlement in respect of such Shares and (C) no action based on any “adverse claim”, within the meaning of Section 8-102 of the UCC, to such Shares may be asserted against the Underwriters with respect to such security entitlement; for purposes of this representation, the Selling Shareholder may assume that when such payment, delivery and crediting occur, (x) such Shares will have been registered in the name of Cede or another nominee designated by DTC, in each case on the Company’s share register registry in accordance with its memorandum and articles certificate of association incorporation, bylaws and applicable law, (y) DTC will be registered as a “clearing corporation” within the meaning of Section 8-102 of the UCC and (z) appropriate entries to the accounts of the several Underwriters on the records of DTC will have been made pursuant to the UCC.
(f) The Selling Shareholder has delivered to the Representative an executed lock-up agreement in substantially the form attached hereto as Exhibit A.
(g) The Selling Shareholder is familiar with the Registration Statement, the Time of Sale Prospectus and the Prospectus and has no knowledge of any material fact, condition or information not disclosed in the Registration Statement, the Time of Sale Prospectus or the Prospectus that has had, or may have, a material adverse effect on the Company and its subsidiaries, taken as a whole. The Selling Shareholder is not prompted by any information concerning the Company or its subsidiaries which is not set forth in the Registration Statement, the Time of Sale Prospectus or the Prospectus to sell the Shares pursuant to this Agreement.
(i) The Registration Statement, when it became effective, did not contain and, as amended or supplemented, if applicable, will not contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading, (iii) the Registration Statement and the Prospectus comply and, as amended or supplemented, if applicable, will comply in all material respects with the Securities Act, and the applicable rules and regulations of the Commission thereunder, (iv) the Time of Sale Prospectus does not, and at the time of each sale of the Shares in connection with the offering when the Prospectus is not yet available to prospective purchasers and at the Closing Date (as defined in Section 5), the Time of Sale Prospectus, as then amended or supplemented by the Company, if applicable, will not, contain any 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, with respect to the Selling Shareholder Information (v) each broadly available road show, if any, when considered together with the Time of Sale Prospectus, does not contain any 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 and (iivi) the Prospectus does not contain and, as amended or supplemented, if applicable, will not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading, provided that that the representations and warranties set forth in this paragraph 2(eSection 2(h) are limited do not apply to statements or omissions in the Registration Statement Statement, the Time of Sale Prospectus or the Prospectus based upon the Underwriter Information; and provided further that the representations and warranties set forth in this Section 2(h) apply only to statements or omissions made in reliance upon and in conformity with information relating to the Selling Shareholder furnished in writing to the Company in writing by the Selling Shareholder expressly specifically for use therein; it being understood that the only such information furnished in writing to the Company by the Selling Shareholder specifically for use therein is that information relating to the Selling Shareholder under the caption “Selling Shareholder” in the Registration Statement, the Time of Sale Prospectus or the Prospectus (such information, the “Selling Shareholder Information”).
(i) Neither the Selling Shareholder nor any amendments of its subsidiaries, nor, to the knowledge of the Selling Shareholder, any director, officer, employee, agent, representative, or supplements theretoaffiliate thereof, is a Person that is, or is owned or controlled by one or more Persons that are:
(A) the subject of any Sanctions, or
(B) located, organized or resident in a country or territory that is the subject of Sanctions (including, without limitation, Cuba, Iran, North Korea, Syria, the Crimea Region located in Ukraine, and the so-called Donetsk People’s Republic, the so-called Luhansk People’s Republic and any other Covered Region of Ukraine as may be determined by the U.S. Secretary of the Treasury pursuant to Executive Order 14065).
(ii) The Selling Shareholder will not, directly or indirectly, use the proceeds of the offering, or lend, contribute or otherwise make available such proceeds to any subsidiary, joint venture partner or other Person:
(A) to fund or facilitate any activities or business of or with any Person or in any country or territory that, at the time of such funding or facilitation, is the subject of Sanctions; or
(B) in any other manner that will result in a violation of Sanctions by any Person (including any Person participating in the offering, whether as underwriter, advisor, investor or otherwise).
(iii) The Selling Shareholder has not knowingly engaged in, is not now knowingly engaged in, and will not engage in, any dealings or transactions with any Person, or in any country or territory, that at the time of the dealing or transaction is or was the subject of Sanctions.
(a) None of the Selling Shareholder or any of its subsidiaries, or, to the knowledge of the Selling Shareholder, any director, officer, employee, agent, representative, or affiliate thereof has taken or will take any action in furtherance of an offer, payment, promise to pay, or authorization or approval of the payment giving or receipt of money, property, gifts or anything else of value, directly or indirectly, to any Government Official in order to influence official action, or to any person in violation of any applicable anti-corruption laws; (b) the Selling Shareholder and each of its subsidiaries have conducted their businesses in compliance with applicable anti-corruption laws and have instituted and maintained and will continue to maintain policies and procedures reasonably designed to promote and achieve compliance with such laws and with the representations and warranties contained herein; and (c) neither the Selling Shareholder nor any of its subsidiaries will use, directly or indirectly, the proceeds of the offering in furtherance of an offer, payment promise to pay, or authorization of the payment or giving of money, or anything else of value, to any person in violation of any applicable anti-corruption laws.
(v) The operations of the Selling Shareholder and each of its subsidiaries are and have been conducted at all times in material compliance with all applicable Anti-Money Laundering Laws, and no action, suit or proceeding by or before any court or governmental agency, authority or body or any arbitrator involving the Selling Shareholder or any of its subsidiaries with respect to the Anti-Money Laundering Laws is pending or to the knowledge of the Selling Shareholder, threatened.
(j) The Selling Shareholder represents and warrants that it is not (i) an employee benefit plan subject to Title I of the Employee Retirement Income Security Act of 1974, as amended (“ERISA”), (ii) a plan or account subject to Section 4975 of the Internal Revenue Code of 1986, as amended or (iii) an entity deemed to hold “plan assets” of any such plan or account under Section 3(42) of ERISA, 29 C.F.R. 2510.3-101, or otherwise.
(k) Except for any Swiss federal stamp duty on transfers of securities for consideration in the secondary market, which may be due by, or pertain to, such Underwriters or such purchasers procured by Underwriters that are qualified as Swiss securities dealers for purposes of Swiss federal stamp duty legislation, no stamp, documentary, issuance, registration, transfer, withholding, capital gains, income or other taxes or duties are payable by or on behalf of the Underwriters, the Company or any of its subsidiaries in Switzerland or to any taxing authority thereof or therein in connection with (i) the execution, delivery or consummation of this Agreement, (ii) the sale and delivery of the Shares to the Underwriters or purchasers procured by the Underwriters, or (iii) the resale and delivery of the Shares by the Underwriters in the manner contemplated herein.
(l) The Selling Shareholder has the power to submit, and pursuant to Section 18 has, to the extent permitted by law, legally, validly, effectively and irrevocably submitted, to the jurisdiction of the Specified Courts (as defined in Section 18), and has the power to designate, appoint and empower, and pursuant to Section 18, has legally, validly and effectively designated, appointed and empowered an agent for service of process in any suit or proceeding based on or arising under this Agreement in any of the Specified Courts.
(m) Neither the Selling Shareholder nor any of its subsidiaries has taken, directly or indirectly, without giving effect to the activities of the Underwriters, any action designed to or that would reasonably be expected to cause or result in stabilization or manipulation of the price of the Common Shares or of any “reference security” (as defined in Regulation M) with respect to the Common Shares, whether to facilitate the sale or resale of the Shares or otherwise, and has taken no action which would directly or indirectly violate Regulation M.
Appears in 2 contracts
Sources: Underwriting Agreement (ADC Therapeutics SA), Underwriting Agreement (Auven Therapeutics Holdings Lp)
Representations and Warranties of the Selling Shareholder. The Selling Shareholder represents and warrants to to, and agrees with with, the Company and each of the Underwriters that:Underwriter as set forth below in this Section 3.
(a) This Agreement has been duly authorized, executed and delivered by or on behalf of the Selling Shareholder.
(b) The execution and delivery by the Selling Shareholder ofhas full right, power and the performance by the Selling Shareholder of its obligations under, this Agreement will not contravene any provision of applicable law, or the memorandum and articles of association of the Selling Shareholder, or any agreement or other instrument binding upon the Selling Shareholder or any judgment, order or decree of any governmental body, agency or court having jurisdiction over the Selling Shareholder, and no consent, approval, authorization or order of, or qualification with, any governmental body or agency is required for the performance by the Selling Shareholder of its obligations under authority to enter into this Agreement, except such as may be required by and to sell, assign, transfer and deliver the securities or Blue Sky laws of the various states in connection with the offer and sale of the Shares.
(c) The Selling Shareholder has, and on the Closing Date will have, valid title to, or a valid “security entitlement” within the meaning of Section 8-501 of the New York Uniform Commercial Code (the “UCC”) in respect of, the Shares Offered Securities to be sold by the Selling Shareholder free and clear of all security interestshereunder; and, claims, liens, equities or other encumbrances and the legal right and power, and all authorization and approval required by law, to enter into this Agreement and to sell, transfer and deliver the Shares to be sold by the Selling Shareholder or a security entitlement in respect of such Shares.
(d) Upon upon payment for the Shares Offered Securities to be sold by the Selling Shareholder pursuant to this Agreement, delivery of such SharesOffered Securities, as directed by the UnderwritersRepresentatives, to Cede & Co. (“Cede”) or such other nominee as may be designated by the The Depository Trust Company (“DTC”), registration of such Shares Offered Securities in the name of Cede or such other nominee and the crediting of such Shares Offered Securities on the books of DTC to the securities accounts account of the Underwriters (assuming that neither DTC nor any such Underwriter the Underwriters has notice of any adverse claim (within the meaning of Section 8-105 of the New York Uniform Commercial Code (the “UCC”)) to such SharesOffered Securities), (A) DTC shall be a “protected purchaser” of such Shares Offered Securities within the meaning of Section 8-303 of the UCC, (B) under Section 8-501 of the UCC, the Underwriters will acquire a valid security entitlement in respect of such Shares Offered Securities and (C) no action based on any “adverse claim”, ,” within the meaning of Section 8-102 of the UCC, to such Shares Offered Securities may be asserted against the Underwriters with respect to such security entitlement; for purposes of this representation, the Selling Shareholder may assume that when such payment, delivery and crediting occur, (x) such Shares Offered Securities will have been registered in the name of Cede or another nominee designated by DTC, in each case on the Company’s share register registry in accordance with its memorandum and articles certificate of association incorporation, bylaws and applicable law, (y) DTC will be registered as a “clearing corporation” within the meaning of Section 8-102 of the UCC and (z) appropriate entries entry to the accounts account of the several Underwriters on the records of DTC will have been made pursuant to the UCC.
(c) The execution and delivery by the Selling Shareholder of, and the performance by the Selling Shareholder of its obligations under, this Agreement will not contravene or conflict with, result in a breach of, or constitute a default (or, with the giving of notice or lapse of time, would be in default) under, or require the consent of any other party to (i) The any agreement or instrument to which the Selling Shareholder is a party or by which it is bound or under which it is entitled to any right or benefit including any pledge of Offered Securities or (ii) any provision of applicable law or any judgment, order, decree or regulation applicable to the Selling Shareholder of any court, regulatory body, administrative agency, governmental body or arbitrator having jurisdiction over the Selling Shareholder, except, in the case of the foregoing clauses (i) and (ii) as would not, individually or in the aggregate, reasonably be expected to materially impact the Selling Shareholder’s ability to perform its obligations under this Agreement. No consent, approval, authorization or other order of, or registration or filing with, any court or other governmental authority or agency, is required for the consummation by the Selling Shareholder of the transactions contemplated in this Agreement, except such as may be required under the Securities Act, applicable state securities or blue sky laws and from the Financial Industry Regulatory Authority, Inc. (“FINRA”) and such other approvals as have been or will be made or obtained on or prior to the First Closing Date.
(d) All information furnished to the Company or the Underwriters by or on behalf of the Selling Shareholder in writing expressly for use in the Registration Statement, when it became effectivethe General Disclosure Package or the Final Prospectus is, did not contain andand on each Closing Date will be, as amended or supplementedtrue, if applicablecorrect and complete in all material respects, and on each Closing Date will not not, contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading and (ii) the Prospectus does not contain and, as amended or supplemented, if applicable, will not contain any 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, such information not misleading, provided it being understood and agreed that the representations and warranties set forth in this paragraph 2(e) are limited to statements or omissions in only such information consists of the Registration Statement or Prospectus made in reliance upon information relating with respect to the Selling Shareholder furnished to under the Company in writing by the caption “Selling Shareholder expressly for use Shareholder” in the Registration Statement, the General Disclosure Package and the Final Prospectus (such information, the “Selling Shareholder Information”).
(e) Prior to the completion of the Underwriters’ distribution of the Offered Securities, the Selling Shareholder has not distributed and will not distribute any offering material in connection with the offering and sale of the Offered Securities other than the Registration Statement, the General Disclosure Package and the Final Prospectus.
(f) The Selling Shareholder has not taken and will not take, directly or indirectly, any action that is designed to or that has constituted or that might 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 Offered Securities.
(g) The Selling Shareholder is a United States person (as the term is defined in 7701(a)(30) of the Internal Revenue Code of 1986, as amended) for U.S. federal income tax purposes. Any certificate signed by or on behalf of the Selling Shareholder and delivered to the Representatives or to counsel for the Underwriters in connection with the offering of the Offered Securities shall be deemed a representation and warranty by the Selling Shareholder to the Underwriters as to the matters covered thereby with respect to the Selling Shareholder. The Selling Shareholder has a reasonable basis for making each of the representations set forth in this Section 3. The Selling Shareholder acknowledges that the Company, Underwriters and, for purposes of the opinions to be delivered pursuant to Section 9(d), Section 9(e), Section 9(f) and Section 9(g) hereof, counsel to the Company, the Company’s general counsel or any amendments or supplements theretoassistant general counsel, the Selling Shareholder and counsel to the Underwriters, will rely upon the accuracy and truthfulness of the foregoing representations and hereby consents to such reliance.
Appears in 2 contracts
Sources: Underwriting Agreement (Fiserv Inc), Underwriting Agreement (Fiserv Inc)
Representations and Warranties of the Selling Shareholder. The Selling Shareholder represents represents, warrants and warrants covenants, solely with respect to himself and agrees with the number of Selling Shareholder Shares and the Selling Shareholder Option Shares set forth opposite his name on Schedule I hereto, to each of the Underwriters Underwriter that:
(a) This Agreement The Selling Shareholder has been duly authorizedvalid and unencumbered title to 2,300,000 shares of Class A Common Stock of the Company, executed and delivered by the Selling Shareholderthat are convertible into 2,300,000 Shares.
(b) The execution Such Selling Shareholder will have, valid and delivery unencumbered title to the Shares on each Applicable Closing Date, to be delivered by the Selling Shareholder ofon such Applicable Closing Date and full right, power and authority to enter into this Agreement and to sell, assign, transfer and deliver the performance Shares to be delivered by the Selling Shareholder on such Applicable Closing Date hereunder; and upon the delivery of its obligations underand payment for such Shares on each Applicable Closing Date hereunder, this Agreement the several Underwriters will not contravene any provision of applicable law, or acquire valid and unencumbered title to the memorandum and articles of association of the Selling Shareholder, or any agreement or other instrument binding upon Shares to be delivered by the Selling Shareholder on such Applicable Closing Date.
(c) No filing with, or any judgment, order or decree of any governmental body, agency or court having jurisdiction over the Selling Shareholder, and no consentauthorization, approval, authorization consent, license, order, registration, qualification or order decree of, any court or qualification with, any governmental body authority or agency is necessary or required for the performance by the Selling Shareholder of its his obligations under hereunder, in connection with the offering, issuance or sale of the Selling Shareholder Shares hereunder or the consummation of the transactions contemplated by this Agreement, except such as has been already obtained or may be required by under the Act or the Rules and Regulations, state securities laws or Blue Sky laws the bylaws and rules of the various states NASD in connection with the offer purchase and sale distribution by the Underwriters of the Shares.Selling Shareholder Shares and the Selling Shareholder Option Shares to be sold hereby;
(cd) The Selling Shareholder hashas the legal right, power and on all authorizations and approvals required by law to enter into the Closing Date will have, valid title to, or a valid “security entitlement” within Custody Agreement (as defined in Section 4(j) hereof). This Agreement and the meaning of Section 8-501 of the New York Uniform Commercial Code (the “UCC”) in respect of, the Shares to be sold Custody Agreement have been duly executed and delivered by the Selling Shareholder free and clear each such agreement is a legal, valid and binding agreement of all security intereststhe Selling Shareholder;
(e) The execution, claims, liens, equities or other encumbrances delivery and the legal right and power, and all authorization and approval required by law, to enter into performance of this Agreement and to sellthe consummation of the transactions contemplated by this Agreement and in the Registration Statement (including the issuance and sale of such Selling Shareholder Shares and the Selling Shareholder Option Shares, transfer if applicable) and deliver the Shares to be sold compliance by the Selling Shareholder with his obligations under this Agreement and the Custody Agreement, do not and will not, whether with or without the giving of notice or lapse of time or both, conflict with or constitute a security entitlement breach of, or default or Repayment Event under, or result in respect the creation or imposition of such Shares.
(d) Upon payment for the Shares to be sold by any lien, charge or encumbrance upon any property or assets of the Selling Shareholder pursuant to this Agreementany contract, delivery indenture, mortgage, deed of such Sharestrust, as directed by the Underwritersloan or credit agreement, note, lease or any other agreements or instrument, to Cede & Co. (“Cede”) or such other nominee as may be designated by the Depository Trust Company (“DTC”), registration of such Shares in the name of Cede or such other nominee and the crediting of such Shares on the books of DTC to securities accounts of the Underwriters (assuming that neither DTC nor any such Underwriter has notice of any adverse claim (within the meaning of Section 8-105 of the UCC) to such Shares), (A) DTC shall be a “protected purchaser” of such Shares within the meaning of Section 8-303 of the UCC, (B) under Section 8-501 of the UCC, the Underwriters will acquire a valid security entitlement in respect of such Shares and (C) no action based on any “adverse claim”, within the meaning of Section 8-102 of the UCC, to such Shares may be asserted against the Underwriters with respect to such security entitlement; for purposes of this representation, which the Selling Shareholder is a party or by which he may assume be bound, or to which any of the property or assets of the Selling Shareholder is subject (except for such conflicts, breaches, defaults, liens, charges or encumbrances that when such payment, delivery and crediting occur, (x) such Shares will would not have been registered in the name of Cede or another nominee designated by DTC, in each case a material adverse effect on the Company’s share register transactions contemplated herein), nor will such action result in accordance with its memorandum and articles any violation of association and 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 Selling Shareholder or any respective properties, assets or operations;
(yf) DTC The Selling Shareholder has not taken and will be registered as a “clearing corporation” within the meaning of Section 8-102 not take, directly or indirectly, any action which is designed to or which has constituted stabilization or manipulation of the UCC and (z) appropriate entries to the accounts price of any security of the several Underwriters on Company to facilitate the records sale or resale of DTC will have been made pursuant to the UCC.Shares;
(ig) The Neither the Registration Statement, when it became effectiveany Preliminary Prospectus, did not contain and, as amended the Prospectus or supplemented, if applicable, will not contain any amendment or supplement thereto contains any untrue statement of a material fact or omit omits to state therein a material fact required to be stated therein or necessary to make the statements therein not misleading and (ii) misleading, in each case to the extent, but only to the extent, that such untrue statement or omission was made in the Registration Statement, any Preliminary Prospectus, the Prospectus does not contain andor any amendment or supplement thereto in reliance upon and in conformity with written information furnished to the Company by the Selling Shareholder pertaining, as amended or supplementedsuch, if applicable, will not contain any untrue statement of a material fact or omit for use therein;
(h) The Selling Shareholder has no reason to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading, provided believe that the representations and warranties of the Company set forth in this paragraph 2(eSection 3 are not true and correct in all material respects;
(i) are limited The Selling Shareholder will deliver to statements you prior to or omissions at each Applicable Closing Date a properly completed and executed Internal Revenue Service Form W-8BEN (or other applicable Form W-8;
(j) Certificates in the Registration Statement or Prospectus made in reliance upon information relating to negotiable form representing all of the Selling Shareholder furnished Shares and the Selling Shareholder Option Shares to the Company in writing be sold by the Selling Shareholder expressly for use have been placed in custody under a Custody Agreement, in the Registration Statementform heretofore furnished to you (the "CUSTODY AGREEMENT"), duly executed and delivered by the Prospectus Selling Shareholder to American Stock Transfer & Trust Company as custodian (the "CUSTODIAN");
(k) The Selling Shareholder is not subject to any order or directive of, or party to any agreement with, any regulatory agency having jurisdiction with respect to him;
(l) The Shares represented by the certificates held in custody for the Selling Shareholder under the Custody Agreement are subject to the interests of the Underwriters hereunder and the arrangements made by the Selling Shareholder for such custody are to that extent irrevocable; the obligations of the Selling Shareholder hereunder shall not be terminated by operation of law, whether by the death or incapacity of the Selling Shareholder or, in the case of an estate or trust, by the death or incapacity of any executor or trustee or the termination of such estate or trust, or in the case of a partnership or corporation, by the dissolution of such partnership or corporation, or by the occurrence of any other event; if the Selling Shareholder or any amendments such executor or supplements theretotrustee should die or become incapacitated, or if any such estate or trust should be terminated, or if any such partnership or corporation should be dissolved, or if any other such event should occur, before the delivery of the Shares hereunder, certificates representing the Shares shall be delivered by or on behalf of the Selling Shareholder in accordance with the terms and conditions of this Agreement and the Custody Agreement and shall be as valid as if such death, incapacity, termination, dissolution or other event had not occurred, regardless of whether or not the Custodian shall have received notice of such death, incapacity, termination, dissolution or other event.
Appears in 2 contracts
Sources: Underwriting Agreement (R&g Financial Corp), Underwriting Agreement (R&g Financial Corp)
Representations and Warranties of the Selling Shareholder. The Selling Shareholder represents and warrants to and agrees with each of the Underwriters that:
(a) This Agreement has been duly authorized, executed and delivered by or on behalf of the Selling Shareholder.
(b) The execution and delivery by the Selling Shareholder of, and the performance by the Selling Shareholder of its obligations under, under this Agreement will not contravene any provision of applicable law, or the memorandum and articles of association of the Selling Shareholder, or any agreement or other instrument binding upon the Selling Shareholder or any judgment, order or decree of any governmental body, agency or court having jurisdiction over the Selling Shareholder, and no consent, approval, authorization or order of, or qualification with, any governmental body body, agency or agency court is required for the performance by the Selling Shareholder of its obligations under this Agreement, except such as may be required by the securities or Blue Sky laws of the various states in connection with the offer and sale of the Shares.
(c) The Selling Shareholder has, and on the Closing Date or the Option Closing Date, as applicable, will have, valid title to, or a valid “security entitlement” within the meaning of Section 8-501 of the New York Uniform Commercial Code (the “UCC”) in respect of, the Shares to be sold by the Selling Shareholder free and clear of all security interests, claims, liens, equities or other encumbrances and the legal right and power, and all authorization and approval required by law, to enter into this Agreement and to sell, transfer and deliver the Shares to be sold by the Selling Shareholder or a security entitlement in respect of such Shares.
(d) Upon payment for the Shares to be sold by the Selling Shareholder pursuant to this Agreement, delivery of such Shares, as directed by the UnderwritersUnderwriters in accordance with this Agreement, to Cede & Co. (“Cede”) or such other nominee as may be designated by the Depository Trust Company (“DTC”), registration of such Shares in the name of Cede or such other nominee and the crediting of such Shares on the books of DTC to securities accounts of the Underwriters (assuming that neither DTC nor any such Underwriter has notice of any adverse claim (within the meaning of Section 8-105 of the UCC) to such Shares), (A) DTC shall be a “protected purchaser” of such Shares within the meaning of Section 8-303 of the UCC, (B) under Section 8-501 of the UCC, the Underwriters will acquire a valid security entitlement in respect of such Shares and (C) no action based on any “adverse claim”, within the meaning of Section 8-102 of the UCC, to such Shares may be asserted against the Underwriters with respect to such security entitlement; for purposes of this representation, the Selling Shareholder may assume that when such payment, delivery and crediting occur, (x) such Shares being sold by the Selling Shareholder will have been registered in the name of Cede or another nominee as may be designated by DTC, in each case on the Company’s share register registry in accordance with its memorandum and articles certificate of association incorporation, bylaws and applicable law, (y) DTC will be registered as a “clearing corporation” and thus a “securities intermediary” within the meaning of Section 8-102 of the UCC and (z) appropriate entries to the accounts of the several Underwriters on the records of DTC will have been made pursuant to the UCC.
(e) The Selling Shareholder has delivered to M▇▇▇▇▇ S▇▇▇▇▇▇ & Co. LLC an executed lock-up agreement in substantially the form attached hereto as Exhibit A (the “Lock-up Agreement”).
(f) The Selling Shareholder is not prompted by any information concerning the Company or its subsidiaries which is not set forth in the Registration Statement, the Time of Sale Prospectus or the Prospectus to sell its Shares pursuant to this Agreement.
(i) The Registration Statement, when it became effective, did not contain and, as amended or supplemented, if applicable, will not contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading, (ii) the Registration Statement and the Prospectus comply and, as amended or supplemented, if applicable, will comply in all material respects with the Securities Act and the applicable rules and regulations of the Commission thereunder, (iii) the Time of Sale Prospectus does not, and at the time of each sale of the Shares in connection with the offering when the Prospectus is not yet available to prospective purchasers and at the Closing Date (as defined in Section 5), or the Option Closing Date, as applicable, the Time of Sale Prospectus, as then amended or supplemented by the Company, if applicable, will not, contain any 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, (iv) each broadly available road show, if any, when considered together with the Time of Sale Prospectus, does not contain any 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 and (iiv) the Prospectus does not contain and, as amended or supplemented, if applicable, will not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading, ; provided that the representations and warranties set forth in this paragraph 2(e) are limited in all respects to statements or omissions in the Registration Statement or Prospectus made in reliance upon and in conformity with information relating to the Selling Shareholder furnished to the Company in writing by the Selling Shareholder expressly for use in the Registration Statement, the Time of Sale Prospectus, the Prospectus or any amendments or supplements thereto, it being understood and agreed that the only information furnished by the Selling Shareholder is the name of the Selling Shareholder, the number of offered shares and the address and other information with respect to the Selling Shareholder (excluding percentages) that appear in the footnotes under the caption “Selling Stockholder) (the “Selling Shareholder Information”).
(i) None of the Selling Shareholder or any of its subsidiaries, or, to the knowledge of the Selling Shareholder, any director, officer, employee, agent, representative, or affiliate thereof, is a Person that is, or is owned or controlled by one or more Persons that are:
(A) the subject of any Sanctions, or
(B) located, organized or resident in a country or territory that is the subject of Sanctions (including, without limitation, Crimea, Cuba, Iran, North Korea and Syria).
(ii) The Selling Shareholder will not, directly or indirectly, use the proceeds of the offering, or lend, contribute or otherwise make available such proceeds to any subsidiary, joint venture partner or other Person:
(A) to fund or facilitate any activities or business of or with any Person or in any country or territory that, at the time of such funding or facilitation, is the subject of Sanctions; or
(B) in any other manner that will result in a violation of Sanctions by any Person (including any Person participating in the offering, whether as underwriter, advisor, investor or otherwise).
(iii) For the past 5 years, the Selling Shareholder has not knowingly engaged in, is not now knowingly engaged in, and will not engage in, any dealings or transactions with any Person, or in any country or territory, that at the time of the dealing or transaction is or was the subject of Sanctions.
(a) None of the Selling Shareholder or any of its subsidiaries, or, to the knowledge of the Selling Shareholder, any director, officer, employee, agent, representative, or affiliate thereof has taken or will take any action in furtherance of an offer, payment, promise to pay, or authorization or approval of the payment giving or receipt of money, property, gifts or anything else of value, directly or indirectly, to any Government Official in order to influence official action, or to any person in violation of any applicable anti-corruption laws; (b) the Selling Shareholder and each of its subsidiaries have conducted their businesses in compliance with applicable anti-corruption laws and have instituted and maintained and will continue to maintain policies and procedures reasonably designed to promote and achieve compliance with such laws and with the representations and warranties contained herein; and (c) neither the Selling Shareholder nor any of its subsidiaries will use, directly or indirectly, the proceeds of the offering in furtherance of an offer, payment, promise to pay, or authorization of the payment or giving of money, or anything else of value, to any person in violation of any applicable anti-corruption laws.
(j) The operations of the Selling Shareholder and each of its subsidiaries are and have been conducted at all times in material compliance with all applicable Anti-Money Laundering Laws, and no action, suit or proceeding by or before any court or governmental agency, authority or body or any arbitrator involving the Selling Shareholder or any of its subsidiaries with respect to the Anti-Money Laundering Laws is pending or, to the best knowledge of the Selling Shareholder, threatened.
(k) The Selling Shareholder represents and warrants that it is not (i) an employee benefit plan subject to Title I of ERISA, (ii) a plan or account subject to Section 4975 of the Internal Revenue Code of 1986, as amended or (iii) an entity deemed to hold “plan assets” of any such plan or account under Section 3(42) of ERISA, 29 C.F.R. 2510.3-101, or otherwise.
(l) No stamp, documentary, issuance, registration, transfer, withholding, capital gains, income or other taxes or duties are payable by or on behalf of the Underwriters, the Company or any of its subsidiaries in Luxembourg or to any taxing authority thereof or therein in connection with (i) the execution, delivery or consummation of this Agreement, (ii) the sale and delivery of the Shares to the Underwriters or purchasers procured by the Underwriters, or (iii) the resale and delivery of the Shares by the Underwriters in the manner contemplated herein.
(m) The Selling Shareholder has the power to submit, and pursuant to Section 17(a) has, to the extent permitted by law, legally, validly, effectively and irrevocably submitted, to the jurisdiction of the Specified Courts (as defined in Section 17(a)), and has the power to designate, appoint and empower, and pursuant to Section 17(b), has legally, validly and effectively designated, appointed and empowered an agent for service of process in any suit or proceeding based on or arising under this Agreement in any of the Specified Courts.
Appears in 2 contracts
Sources: Underwriting Agreement (WillScot Mobile Mini Holdings Corp.), Underwriting Agreement (WillScot Mobile Mini Holdings Corp.)
Representations and Warranties of the Selling Shareholder. The Selling Shareholder represents and warrants to and agrees with each of the Underwriters as of the date hereof and as of the Closing Date that:
(a) This Agreement has been duly authorized, executed and delivered by or on behalf of the Selling Shareholder.
(b) The sale and delivery of the Firm Shares by the Selling Shareholder, the deposit of the Underlying Shares by the Selling Shareholder with the Depositary against issuance of the ADRs evidencing the ADSs to be delivered by the Selling Shareholder, the European Share Deposit and the execution and delivery by the Selling Shareholder of, and the performance by the Selling Shareholder of its obligations under, this Agreement will not contravene any provision of applicable law, or the memorandum and certificate of incorporation or articles of association (vedtekter) of the Selling Shareholder, or any agreement or other instrument binding upon the Selling Shareholder or any judgment, order or decree of any governmental body, agency or court having jurisdiction over the Selling Shareholder, and no consent, approval, authorization or order of, or qualification with, any governmental body or agency is required for the performance by the Selling Shareholder of its obligations under this Agreement, except such as may be required by the securities or Blue Sky laws of the various states in connection with the offer and sale of the SharesSecurities.
(c) The Selling Shareholder has, beneficially owns and on the Closing Date will have, beneficially own or has and will have on the Closing Date a valid title to, or a valid “security entitlement” within the meaning of Section 8-501 of the New York Uniform Commercial Code (the “UCC”) in respect of, the Securities and the Underlying Shares to be represented by the ADSs to be sold by the Selling Shareholder hereunder, free and clear of all security interests, claims, liens, equities or other encumbrances encumbrances; and the Selling Shareholder has the legal right and power, and all authorization and approval required by law, to enter into the Deposit Agreement and to deposit the Underlying Shares with the Depositary against the issuance of the ADRs evidencing the ADSs to be delivered by the Selling Shareholder; the Selling Shareholder has valid title to the Common Shares deposited in (as a result of the European Share Deposit), and to be transferred through, Euroclear NL, in the manner contemplated by this Agreement and the Prospectus.
(d) The Selling Shareholder has the legal right and power, and all authorization and approval required by law, to enter into this Agreement and to sell, transfer and deliver the Shares Securities to be sold by the Selling Shareholder or a security entitlement in respect of such SharesSecurities.
(de) Upon payment for The ADSs representing the Underlying Shares to be sold by were deposited in accordance with the Selling Shareholder pursuant to this Agreementprovisions of the Deposit Agreement and were duly issued, and, upon the sale and delivery of such Shares, as directed the ADRs to the person(s) procured by the Underwriters, the person(s) in whose name(s) the ADRs are registered will be entitled to Cede & Co. the rights in the ADSs representing the Underlying Shares specified in the Deposit Agreement.
(f) No stamp, documentary, issuance, registration, transfer, withholding, capital gains, income or other taxes or duties are payable by or on behalf of the Underwriters, the Company or any of its subsidiaries in Norway or to any taxing authority thereof or therein in connection with (i) the execution, delivery or consummation of this Agreement, (ii) the sale and delivery of the Securities to the Underwriters or purchasers procured by the Underwriters, or (iii) the resale and delivery of the Securities by the Underwriters in the manner contemplated herein.
(g) The statements set forth under the heading “Material U.S. Federal Income Tax Considerations” in the Registration Statement or any amendment thereto, to the extent that they relate to matters of U.S. federal income tax law and legal conclusions with respect thereto, other than the statements under the heading “Passive Investment Company Rules” relating to the Company’s status under the U.S. federal income tax rules defining the term “passive foreign investment company”, to the extent that they relate to matters of U.S. federal income tax law and legal conclusions with respect thereto, are accurate and complete in all material respects.
(h) The Selling Shareholder is not (i) an employee benefit plan subject to Title I of the Employee Retirement Income Security Act of 1974, as amended (“Cede”) or such other nominee as may be designated by the Depository Trust Company (“DTCERISA”), registration of such Shares in the name of Cede (ii) a plan or such other nominee and the crediting of such Shares on the books of DTC account subject to securities accounts Section 4975 of the Underwriters Internal Revenue Code of 1986, as amended, or (assuming that neither DTC nor iii) an entity deemed to hold “plan assets” of any such Underwriter has notice of any adverse claim (within the meaning of Section 8-105 of the UCC) to such Shares), (A) DTC shall be a “protected purchaser” of such Shares within the meaning of Section 8-303 of the UCC, (B) plan or account under Section 83(42) of ERISA, 29 C.F.R. 2510.3-501 of the UCC101, the Underwriters will acquire a valid security entitlement in respect of such Shares and (C) no action based on any “adverse claim”, within the meaning of Section 8-102 of the UCC, to such Shares may be asserted against the Underwriters with respect to such security entitlement; for purposes of this representation, the Selling Shareholder may assume that when such payment, delivery and crediting occur, (x) such Shares will have been registered in the name of Cede or another nominee designated by DTC, in each case on the Company’s share register in accordance with its memorandum and articles of association and applicable law, (y) DTC will be registered as a “clearing corporation” within the meaning of Section 8-102 of the UCC and (z) appropriate entries to the accounts of the several Underwriters on the records of DTC will have been made pursuant to the UCCotherwise.
(i) The Selling Shareholder Information in the Registration Statement or any amendment thereof constitutes a fair summary of the matters described therein.
(j) The Selling Shareholder has the power to submit, and pursuant to Section 19(a) has, to the extent permitted by law, legally, validly, effectively and irrevocably submitted, to the jurisdiction of the Specified Courts, and has the power to designate, appoint and empower, and pursuant to Section 19(c), has legally, validly and effectively designated, appointed and empowered an agent for service of process in any suit or proceeding based on or arising under this Agreement in any of the Specified Courts.
(k) The Selling Shareholder has no reason to believe that the representations and warranties of the Company contained in Section 1 are not true and correct, is familiar with the Registration Statement, the Time of Sale Prospectus and the Prospectus and has no knowledge of any material fact, condition or information not disclosed in the Time of Sale Prospectus that has had, or may have, a Material Adverse Effect.
(l) (i) Each document, if any, filed or to be filed pursuant to the Exchange Act and incorporated by reference in the Time of Sale Prospectus or the Prospectus complied or will comply when so filed in all material respects with the Exchange Act and the applicable rules and regulations of the Commission thereunder, (ii) each of the Registration Statement and the ADR Registration Statement, when it became effective, did not contain and, as amended or supplemented, if applicable, will not contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading, (iii) the Registration Statement, the ADR Registration Statement and the Prospectus comply and, as amended or supplemented, if applicable, will comply in all material respects with the Securities Act and the applicable rules and regulations of the Commission thereunder, (iv) the Time of Sale Prospectus does not, and at the time of each sale of the Securities in connection with the offering when the Prospectus is not yet available to prospective purchasers and at the Closing Date (as defined in Section 5), the Time of Sale Prospectus, as then amended or supplemented by the Company, if applicable, will not, contain any 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, (v) each live road show, if any, when considered together with the Time of Sale Prospectus, does not contain any 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 and (iivi) the Prospectus does not contain and, as amended or supplemented, if applicable, will not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading, provided except that the representations and warranties set forth in this paragraph 2(e2(l) are limited do not apply to statements or omissions in the Registration Statement or the Prospectus made in reliance based upon information relating to the Selling Shareholder any Underwriter furnished to the Company in writing by such Underwriter through you expressly for use therein.
(i) None of the Selling Shareholder expressly for or any of its subsidiaries, or, to the knowledge of the Selling Shareholder, any director, officer, employee, agent, representative, affiliate thereof, or other person associated with or acting on behalf of the Selling Shareholder or any of its subsidiaries, is a Person that is, or is owned or controlled by a Sanctioned Person, or located, organized or resident in a Sanctioned Country.
(ii) The Selling Shareholder will not, directly or indirectly, use the proceeds of the offering, or lend, contribute or otherwise make available such proceeds to any subsidiary, joint venture partner or other Person:
(A) to fund or facilitate any activities or business of or with any Sanctioned Person or in Sanctioned Countries; or
(B) in any other manner that will result in a violation of sanctions laws by any Person (including any Person participating in the Registration Statementoffering, whether as underwriter, advisor, investor or otherwise).
(iii) For the past five years, the Prospectus Selling Shareholder and its subsidiaries have not knowingly engaged in, are not now knowingly engaged in, and will not engage in, any dealings or transactions with any Sanctioned Person, or Sanctioned Country, other than such limited telecommunications-related transactions with Sanctioned Countries as are permitted under the terms of the relevant Sanctions (including, without limitation, those transactions disclosed in the Company’s Annual Report on Form 20-F for the fiscal year ended December 31, 2016).
(a) None of the Selling Shareholder or its subsidiaries, or, to the knowledge of the Selling Shareholder, any director, officer, employee, agent, representative, affiliate thereof, or other person associated with or acting on behalf of the Selling Shareholder has taken or will take any action in furtherance of an offer, payment, promise to pay, or authorization or approval of the payment, giving or receipt of money, property, gifts or anything else of value, directly or indirectly, to any Government Official in order to influence official action, or to any person in violation of any applicable Anti-Corruption Laws; (b) the Selling Shareholder and its subsidiaries have conducted their businesses in compliance with applicable Anti-Corruption Laws and have instituted and maintained, and will continue to maintain, policies and procedures reasonably designed to promote and achieve compliance with such laws and with the representations and warranties contained herein and (c) neither the Selling Shareholder nor any of its subsidiaries will use, directly or indirectly, the proceeds of the offering in furtherance of an offer, payment, promise to pay, or authorization of the payment or giving of money, or anything else of value, to any person in violation of any applicable Anti-Corruption Laws.
(v) The operations of the Selling Shareholder and its subsidiaries are and have been conducted at all times in compliance with all applicable Anti-Money Laundering Laws, and no action, suit or proceeding by or before any court or governmental agency, authority or body or any amendments arbitrator involving the Selling Shareholder or supplements theretoany of its subsidiaries with respect to the Anti-Money Laundering Laws is pending or, to the best knowledge of the Selling Shareholder, threatened.
(n) This Agreement is in proper form under the laws of Norway for the enforcement thereof against the Selling Shareholder, and to ensure the legality, validity, enforceability or admissibility into evidence in Norway of this Agreement.
(o) The courts of Norway would recognize as a valid judgment any final monetary judgment relating to the Agreement obtained against the Selling Shareholder in the courts of the State of New York.
(p) Neither the Selling Shareholder nor any of its subsidiaries nor any of its or their properties or assets has any immunity from the jurisdiction of any court or from any legal process (whether through service or notice, attachment prior to judgment, attachment in aid of execution or otherwise) under the laws of Norway. The irrevocable and unconditional waiver and agreement of the Selling Shareholder contained in Section 19(a) not to plead or claim any such immunity in any legal action, suit or proceeding based on this Agreement is valid and binding under the laws of Norway.
(q) The choice of law of the State of New York as the governing law of this Agreement is a valid choice of law under the laws of Norway and will be honored by the courts of Norway.
Appears in 2 contracts
Sources: Underwriting Agreement (VEON Ltd.), Underwriting Agreement (Telenor East Holding II As)
Representations and Warranties of the Selling Shareholder. The Each Selling Shareholder represents and warrants to and agrees with each of the Underwriters Underwriter that:
(a) This Agreement has been duly authorized, executed and delivered by the or on behalf of such Selling Shareholder.
(b) The execution and delivery by the such Selling Shareholder of, and the performance by the such Selling Shareholder of its obligations under, this Agreement, the Custody Agreement signed by such Selling Shareholder and Calpine Corporation, as Custodian, relating to the deposit of the Shares to be sold by such Selling Shareholder (the “Custody Agreement”) and the Power of Attorney, if applicable, appointing certain individuals as such Selling Shareholder’s attorneys-in-fact to the extent set forth therein, relating to the transactions contemplated hereby and by the Registration Statement (the “Power of Attorney”) will not contravene any provision of applicable law, or the memorandum and articles certificate of association incorporation or by-laws of the such Selling ShareholderShareholder (if such Selling Shareholder is a corporation), or any agreement or other instrument binding upon the such Selling Shareholder or any judgment, order or decree of any governmental body, agency or court having jurisdiction over the such Selling Shareholder, and no consent, approval, authorization or order of, or qualification with, any governmental body or agency is required for the performance by the such Selling Shareholder of its obligations under this AgreementAgreement or the Custody Agreement or Power of Attorney of such Selling Shareholder, except such as may be required by the securities or Blue Sky laws of the various states in connection with the offer and sale of the Shares.
(c) The Such Selling Shareholder has, and on the Closing Date will have, valid title to, or a valid “security entitlement” within the meaning of Section 8-501 of the New York Uniform Commercial Code (the “UCC”) in respect of, the Shares to be sold by the such Selling Shareholder free and clear of all security interests, claims, liens, equities or other encumbrances and the legal right and power, and all authorization and approval required by law, to enter into this Agreement, the Custody Agreement and the Power of Attorney and to sell, transfer and deliver the Shares to be sold by the such Selling Shareholder or a security entitlement in respect of such Shares.
(d) The Custody Agreement and the Power of Attorney have been duly authorized, executed and delivered by such Selling Shareholder and are valid and binding agreements of such Selling Shareholder.
(e) Upon payment for the Shares to be sold by the such Selling Shareholder pursuant to this Agreement, delivery of such Shares, as directed by the UnderwritersUnderwriter, to Cede & Co. (“Cede”) or such other nominee as may be designated by the Depository Trust Company (“DTC”), registration of such Shares in the name of Cede or such other nominee and the crediting of such Shares on the books of DTC to securities accounts account of the Underwriters Underwriter (assuming that neither DTC nor any such the Underwriter has notice of any adverse claim (within the meaning of Section 8-105 of the New York Uniform Commercial Code (the “UCC”)) to such Shares), (A) DTC shall be a “protected purchaser” of such Shares within the meaning of Section 8-303 of the UCC, (B) under Section 8-501 of the UCC, the Underwriters Underwriter will acquire a valid security entitlement in respect of such Shares and (C) no action based on any “adverse claim”, within the meaning of Section 8-102 of the UCC, to such Shares may be asserted against the Underwriters Underwriter with respect to such security entitlement; for purposes of this representation, the Selling Shareholder may assume that when such payment, delivery and crediting occur, (x) such Shares will have been registered in the name of Cede or another nominee designated by DTC, in each case on the Company’s share register registry in accordance with its memorandum and articles certificate of association incorporation, bylaws and applicable law, (y) DTC will be registered as a “clearing corporation” within the meaning of Section 8-102 of the UCC and (z) appropriate entries to the accounts account of the several Underwriters Underwriter on the records of DTC will have been made pursuant to the UCC.
(i) The Registration Statement, when it became effective, did not contain and, as amended or supplemented, if applicable, will not contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading and (ii) the Prospectus does not contain and, as amended or supplemented, if applicable, will not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading, provided that the representations and warranties set forth in this paragraph 2(e) are limited to statements or omissions in the Registration Statement or Prospectus made in reliance upon information relating to the Selling Shareholder furnished to the Company in writing by the Selling Shareholder expressly for use in the Registration Statement, the Prospectus or any amendments or supplements thereto.
Appears in 2 contracts
Sources: Underwriting Agreement (Calpine Corp), Underwriting Agreement (Calpine Corp)
Representations and Warranties of the Selling Shareholder. The Selling Shareholder represents and warrants to to, and agrees with each of with, the Underwriters and the Company that:
(a) This Agreement has been duly authorized, executed and delivered The Selling Shareholder is the lawful owner of the Shares to be sold by the Selling ShareholderShareholder pursuant to this Agreement and has, and on the Closing Date will have, good and clear title to such Shares, free of all restrictions on transfer, liens, encumbrances, security interests and claims whatsoever.
(b) The execution Upon delivery of and delivery by the Selling Shareholder of, and the performance by the Selling Shareholder of its obligations under, this Agreement will not contravene any provision of applicable law, or the memorandum and articles of association of the Selling Shareholder, or any agreement or other instrument binding upon the Selling Shareholder or any judgment, order or decree of any governmental body, agency or court having jurisdiction over the Selling Shareholder, and no consent, approval, authorization or order of, or qualification with, any governmental body or agency is required payment for the performance by the Selling Shareholder of its obligations under such Shares pursuant to this Agreement, except good and clear title to such as may be required by Shares will pass to the securities or Blue Sky laws Underwriters, free of the various states in connection with the offer all restrictions on transfer, liens, encumbrances, security interests and sale of the Sharesclaims whatsoever.
(c) The Selling Shareholder has, and on the Closing Date will have, valid title tofull legal right, or a valid “security entitlement” within the meaning of Section 8-501 of the New York Uniform Commercial Code (the “UCC”) in respect of, the Shares to be sold by the Selling Shareholder free power and clear of all security interests, claims, liens, equities or other encumbrances and the legal right and power, and all authorization and approval required by law, authority to enter into this Agreement and the Custody Agreement between the Selling Shareholder and [______________], as Custodian (the "Custody Agreement") and to sell, assign, transfer and deliver such Shares in the Shares to be sold manner provided herein and therein, and this Agreement and the Custody Agreement have been duly authorized, executed and delivered by the Selling Shareholder or and each of this Agreement and the Custody Agreement is a security entitlement valid and binding agreement of the Selling Shareholder enforceable in respect of such Sharesaccordance with its terms, except to the extent which rights to indemnity and contribution provided hereunder may be limited by applicable law.
(d) Upon payment The power of attorney signed by the Selling Shareholder appointing [___________] and [____________], or either one of them, as the Selling Shareholder's attorney-in-fact, to the extent set forth therein with regard to the transactions contemplated hereby and by the Registration Statement, the Prospectus and the Custody Agreement, has been duly authorized, executed and delivered by or on behalf of the Selling Shareholder and is a valid and binding instrument of the Selling Shareholder enforceable in accordance with its terms, and, pursuant to such power of attorney, the Selling Shareholder has authorized [___________] and [____________], or either one of them, to execute and deliver, except for this Agreement, any document necessary or desirable in connection with the transactions contemplated hereby and to deliver the Shares to be sold by the Selling Shareholder pursuant to this Agreement.
(e) The Selling Shareholder has not taken, delivery and will not take, directly or indirectly, any action designed to, or which might reasonably be expected to, cause or result in stabilization or manipulation of such Sharesthe price of any security of the Company to facilitate the sale or resale of the Shares pursuant to the distribution contemplated by this Agreement, and other than as directed permitted by the Underwriters, to Cede & Co. (“Cede”) or such other nominee as may be designated by the Depository Trust Company (“DTC”), registration of such Shares in the name of Cede or such other nominee and the crediting of such Shares on the books of DTC to securities accounts of the Underwriters (assuming that neither DTC nor any such Underwriter has notice of any adverse claim (within the meaning of Section 8-105 of the UCC) to such Shares), (A) DTC shall be a “protected purchaser” of such Shares within the meaning of Section 8-303 of the UCC, (B) under Section 8-501 of the UCC, the Underwriters will acquire a valid security entitlement in respect of such Shares and (C) no action based on any “adverse claim”, within the meaning of Section 8-102 of the UCC, to such Shares may be asserted against the Underwriters with respect to such security entitlement; for purposes of this representationAct, the Selling Shareholder may assume that when such paymenthas not distributed and will not distribute any prospectus or other offering material in connection with the offering and sale of the Shares.
(f) The execution, delivery and crediting occurperformance of this Agreement by the Selling Shareholder, (x) such Shares will have been registered in compliance by the name of Cede or another nominee designated by DTC, in each case on Selling Shareholder with all the Company’s share register in accordance with its memorandum provisions hereof and articles of association and applicable law, (y) DTC will be registered as a “clearing corporation” within the meaning of Section 8-102 consummation of the UCC transactions contemplated hereby will not require any consent, approval, authorization or other order of any court, regulatory body, administrative agency or other governmental body (except as such may be required under the Act, state securities laws or Blue Sky laws) and (z) appropriate entries will not conflict with or constitute a breach of any of the terms or provisions of, or a default under, the charter or by-laws of the Selling Shareholder or any agreement, indenture or other instrument to which the Selling Shareholder is a party or by which the Selling Shareholder or property of the Selling Shareholder is bound, or violate or conflict with any laws, administrative regulation or ruling or court decree applicable to the accounts Selling Shareholder or property of the several Underwriters on the records of DTC will have been made pursuant to the UCCSelling Shareholder.
(ig) The Registration StatementStatement does not, when it became effective, did and will not contain and, as amended on the Closing Date (or supplementedthe Additional Closing Date, if applicableany), will not contain any untrue statement of a material fact or omit to state a any material fact required to be stated therein or necessary to make the statements therein not misleading and (ii) the Prospectus does not contain and, as amended or supplemented, if applicable, will not contain any 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.
(h) Neither the Selling Shareholder nor any of the Selling Shareholder's affiliates directly, provided that or indirectly through one or more intermediaries, controls, or is controlled by, or is under common control with, or had any other association with (within the meaning of Article I of the Bylaws of the National Association of Securities Dealers, Inc. (the "NASD")), any member firm of the NASD.
(i) At any time during the period described in Section 5(a)(ii) hereof, if there is any change in the information referred to in Section 2(g) above, the Selling Shareholder will immediately notify you of such change.
(j) The Selling Shareholder has been duly organized and is validly existing as a federally-chartered stock savings bank under the laws of the United States.
(k) To the best of the Selling Shareholder's knowledge, all of the Company's representations and warranties set forth in this paragraph 2(e) Section 1 above are limited to statements or omissions in the Registration Statement or Prospectus made in reliance upon information relating to the Selling Shareholder furnished to the Company in writing by the Selling Shareholder expressly for use in the Registration Statement, the Prospectus or any amendments or supplements theretotrue and correct.
Appears in 1 contract
Sources: Underwriting Agreement (Netbank Inc)
Representations and Warranties of the Selling Shareholder. The Selling Shareholder represents and warrants to each Underwriter and agrees with the Company on the date hereof, and shall be deemed to represent and warrant to each of Underwriter and the Underwriters Company on the Closing Date and the Additional Closing Date, that:
(a) This Agreement has been duly authorized, executed and delivered by the Selling Shareholder.
(b) The execution and delivery by the Such Selling Shareholder ofhas full right, power and the performance by the Selling Shareholder of its obligations under, this Agreement will not contravene any provision of applicable law, or the memorandum and articles of association of the Selling Shareholder, or any agreement or other instrument binding upon the Selling Shareholder or any judgment, order or decree of any governmental body, agency or court having jurisdiction over the Selling Shareholder, and no consent, approval, authorization or order of, or qualification with, any governmental body or agency is required for the performance by the Selling Shareholder of its obligations under this Agreement, except such as may be required by the securities or Blue Sky laws of the various states in connection with the offer and sale of the Shares.
(c) The Selling Shareholder has, and on the Closing Date will have, valid title to, or a valid “security entitlement” within the meaning of Section 8-501 of the New York Uniform Commercial Code (the “UCC”) in respect of, the Shares to be sold by the Selling Shareholder free and clear of all security interests, claims, liens, equities or other encumbrances and the legal right and power, and all authorization and approval required by law, to enter into this Agreement and authority to sell, assign, transfer and deliver the Shares to be sold by the such Selling Shareholder or a security entitlement in respect hereunder; and upon delivery of such SharesShares hereunder and payment of the purchase price as herein contemplated, each of the Underwriters purchasing such Shares in good faith and without notice of any lien, claim or encumbrance will obtain valid title to the Shares purchased by it from such Selling Shareholder, free and clear of any pledge, lien, security interest, encumbrance, claim or equitable interest, including any liability for estate or inheritance taxes, or any liability to or claims of any creditor, devisee, legatee or beneficiary of such Selling Shareholder.
(db) Upon payment for the Shares to be sold by the Such Selling Shareholder pursuant has duly authorized (if applicable), executed and delivered, in the form heretofore furnished to this the Representatives, a Power of Attorney (the "Power of Attorney") appointing ___________________________ and _________________ as attorneys-in-fact (collectively, the "Attorneys" and individually, an "Attorney") and a Letter of Transmittal and Custody Agreement (the "Custody Agreement") with Firstar Trust Company, delivery as custodian (the "Custodian"); each of the Power of Attorney and the Custody Agreement constitutes a valid and binding agreement of such SharesSelling Shareholder, as directed by the Underwriters, to Cede & Co. (“Cede”) or enforceable against such other nominee as may be designated by the Depository Trust Company (“DTC”), registration of such Shares in the name of Cede or such other nominee and the crediting of such Shares on the books of DTC to securities accounts of the Underwriters (assuming that neither DTC nor any such Underwriter has notice of any adverse claim (within the meaning of Section 8-105 of the UCC) to such Shares), (A) DTC shall be a “protected purchaser” of such Shares within the meaning of Section 8-303 of the UCC, (B) under Section 8-501 of the UCC, the Underwriters will acquire a valid security entitlement in respect of such Shares and (C) no action based on any “adverse claim”, within the meaning of Section 8-102 of the UCC, to such Shares may be asserted against the Underwriters with respect to such security entitlement; for purposes of this representation, the Selling Shareholder may assume that when such payment, delivery and crediting occur, (x) such Shares will have been registered in the name of Cede or another nominee designated by DTC, in each case on the Company’s share register in accordance with its memorandum and articles of association and applicable lawterms, (y) DTC will except as the enforcement thereof may be registered as a “clearing corporation” within the meaning of Section 8-102 of the UCC and (z) appropriate entries to the accounts of the several Underwriters on the records of DTC will have been made pursuant to the UCC.
(i) The Registration Statementlimited by bankruptcy, when it became effectiveinsolvency, did not contain andreorganization, as amended moratorium or supplemented, if applicable, will not contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading and (ii) the Prospectus does not contain and, as amended or supplemented, if applicable, will not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading, provided that the representations and warranties set forth in this paragraph 2(e) are limited to statements or omissions in the Registration Statement or Prospectus made in reliance upon information other similar laws relating to the Selling Shareholder furnished to the Company in writing by the Selling Shareholder expressly for use in the Registration Statement, the Prospectus or any amendments or supplements thereto.affecting
Appears in 1 contract
Sources: Underwriting Agreement (Insurance Management Solutions Group Inc)
Representations and Warranties of the Selling Shareholder. The Selling Shareholder represents and warrants to and agrees with each of the Underwriters that:
(a) This Agreement has been duly authorized, executed and delivered by or on behalf of the Selling Shareholder.
(b) The execution and delivery by the Selling Shareholder of, and the performance by the Selling Shareholder of its obligations under, this Agreement will not contravene (i) any provision of applicable law, or (ii) the memorandum and articles of association limited liability company agreement of the Selling Shareholder, or (iii) any agreement or other instrument binding upon the Selling Shareholder or (iv) any judgment, order or decree of any governmental body, agency or court having jurisdiction over the Selling Shareholder, and no except in the case of clauses (i), (iii) or (iv), as would not, singly or in the aggregate, reasonably be expected to have a material adverse effect on the ability of the Selling Shareholder to consummate the transactions contemplated by this Agreement. No consent, approval, authorization or order of, or qualification with, any governmental body body, agency or agency court is required for the performance by the Selling Shareholder of its obligations under this Agreement, except (x) such as have been obtained and made under the Securities Act or such as may be required by the Securities and Exchange Act of 1934, as amended (the “Exchange Act”), or the rules and regulations thereunder or (y) as may be required by the securities or Blue Sky laws of the various states or foreign jurisdictions in connection with the offer and sale of the Shares.
(c) The Selling Shareholder has, and on the Closing Date will have, valid title to, or a valid “security entitlement” within the meaning of Section 8-501 of the New York Uniform Commercial Code (the “UCC”) in respect of, the Shares to be sold by the Selling Shareholder free and clear of all security interests, claims, liens, equities or other encumbrances and the legal right and power, and all authorization and approval required by law, to enter into this Agreement and to sell, transfer and deliver the Shares to be sold by the Selling Shareholder or a security entitlement in respect of such Shares.
(d) Upon payment for the Shares to be sold by the Selling Shareholder pursuant to this Agreement, delivery of such Shares, as directed by the Underwriters, to Cede & Co. (“Cede”) or such other nominee as may be designated by the Depository Trust Company (“DTC”), registration of such Shares in the name of Cede or such other nominee and the crediting of such Shares on the books of DTC to securities accounts of the Underwriters (assuming that neither DTC nor any such Underwriter has notice of any adverse claim (within the meaning of Section 8-105 of the New York Uniform Commercial Code (the “UCC”)) to such Shares), (A) DTC shall be a “protected purchaser” of such Shares within the meaning of Section 8-303 of the UCC, (B) under Section 8-501 of the UCC, the Underwriters will acquire a valid security entitlement in respect of such Shares and (C) no action based on any “adverse claim”, within the meaning of Section 8-102 of the UCC, to such Shares may be asserted against the Underwriters with respect to such security entitlement; for purposes of this representation, the Selling Shareholder may assume that when such payment, delivery and crediting occur, (x) such Shares will have been registered in the name of Cede or another nominee designated by DTC, in each case on the Company’s share register in accordance with its memorandum and articles of association and applicable law, (y) DTC will be registered as a “clearing corporation” within the meaning of Section 8-102 of the UCC and (z) appropriate entries to the accounts of the several Underwriters on the records of DTC will have been made pursuant to the UCC.
(i) The Registration Statement, when it became effective, did not contain and, as amended or supplemented, if applicable, will not contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading and (ii) the Prospectus does not contain and, as amended or supplemented, if applicable, will not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading, provided that the representations and warranties set forth in this paragraph 2(e) are limited to statements or omissions in the Registration Statement or Prospectus made in reliance upon information relating to the Selling Shareholder furnished to the Company in writing by the Selling Shareholder expressly for use in the Registration Statement, the Prospectus or any amendments or supplements thereto.under
Appears in 1 contract
Sources: Underwriting Agreement (Intermedia Cloud Communications, Inc.)
Representations and Warranties of the Selling Shareholder. (a) The Selling Shareholder represents and warrants to and agrees with each is the lawful owner of the Underwriters that:
(a) This Shares of Common Stock to be sold by him pursuant to this Agreement has been duly authorizedand has, executed and delivered by on the Selling ShareholderOption Closing Date will have, good and clear title to such Shares, free of all restrictions on transfer, liens, encumbrances, security interests and claims whatsoever.
(b) The execution Upon delivery of and delivery by the Selling Shareholder of, and the performance by the Selling Shareholder of its obligations under, this Agreement will not contravene any provision of applicable law, or the memorandum and articles of association of the Selling Shareholder, or any agreement or other instrument binding upon the Selling Shareholder or any judgment, order or decree of any governmental body, agency or court having jurisdiction over the Selling Shareholder, and no consent, approval, authorization or order of, or qualification with, any governmental body or agency is required payment for the performance by the Selling Shareholder of its obligations under such Shares pursuant to this Agreement, except good and clear title to such as may be required by the securities or Blue Sky laws Shares will pass to you, free of the various states in connection with the offer all restrictions on transfer, liens, encumbrances, security interests and sale of the Sharesclaims whatsoever.
(c) The Selling Shareholder has, and on the Option Closing Date will have, valid title tofull legal right, or a valid “security entitlement” within the meaning of Section 8-501 of the New York Uniform Commercial Code (the “UCC”) in respect of, the Shares to be sold by the Selling Shareholder free power and clear of all security interests, claims, liens, equities or other encumbrances and the legal right and power, and all authorization and approval required by law, authority to enter into this Agreement and the Custody Agreement between the Selling Shareholder and U.S. Stock Transfer Corporation, Custodian (the "Custody Agreement") and to sell, assign, transfer and deliver such Shares in the Shares to be sold manner provided herein and therein, and this Agreement and the Custody Agreement have been duly authorized, executed and delivered by or on behalf of such Selling Shareholder and each of this Agreement and the Custody Agreement is a valid and binding agreement of the Selling Shareholder enforceable against the Selling Shareholder in accordance with its terms, except as rights to indemnity and contribution hereunder may be limited by applicable law and except as the enforcement thereof may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or a security entitlement in respect of such Sharesother similar laws relating to or affecting creditors' rights generally or by general equitable principles.
(d) Upon payment for the Shares to be sold All information furnished by or on behalf of the Selling Shareholder pursuant relating to this Agreement, delivery of such Shares, as directed by the Underwriters, to Cede & Co. (“Cede”) or such other nominee as may be designated by the Depository Trust Company (“DTC”), registration of such Shares in the name of Cede or such other nominee and the crediting of such Shares on the books of DTC to securities accounts of the Underwriters (assuming that neither DTC nor any such Underwriter has notice of any adverse claim (within the meaning of Section 8-105 of the UCC) to such Shares), (A) DTC shall be a “protected purchaser” of such Shares within the meaning of Section 8-303 of the UCC, (B) under Section 8-501 of the UCC, the Underwriters will acquire a valid security entitlement in respect of such Shares and (C) no action based on any “adverse claim”, within the meaning of Section 8-102 of the UCC, to such Shares may be asserted against the Underwriters with respect to such security entitlement; for purposes of this representation, the Selling Shareholder may assume and the Selling Shareholder's Shares that when such payment, delivery and crediting occur, (x) such Shares will have been registered is set forth in the name of Cede Registration Statement and the Prospectus is, and at the time the Registration Statement became or another nominee designated by DTCbecomes, in each as the case may be, effective and at all times subsequent thereto up to and on the Company’s share register in accordance with its memorandum Option Closing Date (hereinafter defined) was or will be, true, correct and articles of association complete, and applicable lawdoes not, (y) DTC will be registered and at the time the Registration Statement became or becomes, as a “clearing corporation” within the meaning of Section 8-102 of the UCC case may be, effective and (z) appropriate entries at all times subsequent thereto up to the accounts of the several Underwriters and on the records of DTC will have been made pursuant to the UCC.
(i) The Registration Statement, when it became effective, did not contain and, as amended or supplemented, if applicableOption Closing Date, will not not, contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make such information not misleading.
(e) Neither the statements therein Selling Shareholder nor any of the Selling Shareholder's affiliates directly, or indirectly through one or more intermediaries, controls, or is controlled by, or is under common control with, or had any other association with (within the meaning of Article I of the Bylaws of the National Association of Securities Dealers, Inc. (the "NASD")), any member firm of the NASD.
(f) This Agreement has been duly and validly authorized, executed and delivered by the Selling Shareholder, and assuming due execution by the other party or parties hereto and thereto, constitutes valid and binding obligations of the Selling Shareholder enforceable against the Selling Shareholder in accordance with their respective terms, except as rights to indemnity and contribution hereunder may be limited by applicable law and except as enforceability may be limited by bankruptcy, insolvency or other laws affecting the rights of creditors generally or by general equitable principles. The Selling Shareholder has full power and lawful authority to authorize, issue and sell the Securities to be sold by it hereunder on the terms and conditions set forth herein, and no consent, approval, authorization or other order of any governmental authority is required in connection with such authorization, execution and delivery or with the authorization, issue and sale of the Shares, except such as may be required under the Act or state securities laws.
(g) Except as described in the Prospectus, the Selling Shareholder is not misleading in material violation, breach or default of or under, and (ii) consummation of the Prospectus does not contain and, as amended or supplemented, if applicabletransactions herein contemplated and the fulfillment of the terms of this Agreement, will not contain conflict with, or result in a breach of, any untrue statement of the terms or provisions of, or constitute a default under, or result in the creation or imposition of any lien, charge or encumbrance pursuant to the terms of, any indenture, mortgage, deed of trust, loan agreement or other agreement or instrument to which the Selling Shareholder is a party or by which the Selling Shareholder may be bound or to which any of the property or assets of the Selling Shareholder are subject, which would have a material fact adverse effect on the business, properties or omit to state a material fact necessary to make the statements therein, in the light financial condition of the circumstances under which they were madeSelling Shareholder, not misleadingnor will such action result in any violation of any statute or any order, provided that the representations and warranties set forth in this paragraph 2(e) are limited to statements rule or omissions in the Registration Statement or Prospectus made in reliance upon information relating regulation applicable to the Selling Shareholder furnished of any court or of any regulatory authority or other governmental body having jurisdiction over the Selling Shareholder, which would have a material adverse effect on the business, properties or financial condition of the Selling Shareholder.
(h) The Selling Shareholder has not taken and will not take, directly or indirectly, any action designed to cause or result in, or which has constituted or which might reasonably be expected to constitute, the stabilization or manipulation of the price of the Shares or to facilitate the sale or resale of the Shares.
(i) The Selling Shareholder has not entered into any agreement pursuant to which any person is entitled either directly or indirectly to compensation from the Company for services as a finder in writing by connection with the Selling Shareholder expressly for use in the Registration Statement, the Prospectus or any amendments or supplements theretoproposed public offering.
Appears in 1 contract
Sources: Underwriting Agreement (Team Communication Group Inc)
Representations and Warranties of the Selling Shareholder. The Selling Shareholder represents and warrants to and agrees with each of the Underwriters that:
(a) This Agreement has been duly authorized, executed and delivered by or on behalf of the Selling Shareholder.
(b) The execution and delivery by the Selling Shareholder of, and the performance by the Selling Shareholder of its obligations under, this Agreement, the Custody Agreement signed by the Selling Shareholder and ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co. Incorporated, as Custodian, relating to the deposit of the Shares to be sold by the Selling Shareholder (the "Custody Agreement") and the Power of Attorney appointing certain individuals as attorneys-in-fact to the extent set forth therein, relating to the transactions contemplated hereby and by the Registration Statement (the "Power of Attorney") will not contravene any provision of applicable law, or the memorandum and articles of association of trust agreement governing the Selling Shareholder, or any agreement or other instrument binding upon the Selling Shareholder or any judgment, order or decree of any governmental body, agency or court having jurisdiction over the Selling Shareholder, and no consent, approval, authorization or order of, or qualification with, any governmental body or agency is required for the performance by the Selling Shareholder of its obligations under this AgreementAgreement or the Custody Agreement or Power of Attorney of the Selling Shareholder, except such as may be required by the securities or Blue Sky laws of the various states in connection with the offer and sale of the Shares.
(c) The Selling Shareholder has, and on the Closing Date will have, valid title to, or a valid “"security entitlement” " within the meaning of Section 8-501 of the New York Uniform Commercial Code (the “UCC”) in respect ofof (x) the shares of common stock of Old Journal that will, on the Shares Closing Date, automatically exchange into shares of Class B Common Stock pursuant to the Plan of Share Exchange and then that will automatically convert into shares of Class A Common Stock pursuant to the Company's articles of incorporation, and (y) the Shares, respectively, to be sold by the Selling Shareholder free and clear of all security interests, claims, liens, equities or other encumbrances and the legal right and power, and all authorization and approval required by law, to enter into this Agreement, the Custody Agreement and the Power of Attorney and to sell, transfer and deliver the Shares to be sold by the Selling Shareholder or a security entitlement in respect of such Shares.
(d) Upon payment for The Custody Agreement and the Power of Attorney have been duly authorized, executed and delivered by the Selling Shareholder and are valid and binding agreements of the Selling Shareholder.
(e) Delivery of the Shares to be sold by the Selling Shareholder and payment thereof pursuant to this Agreement, delivery of Agreement will pass valid title to such Shares, as directed by the Underwriters, to Cede & Co. (“Cede”) or such other nominee as may be designated by the Depository Trust Company (“DTC”), registration of such Shares in the name of Cede or such other nominee free and the crediting of such Shares on the books of DTC to securities accounts of the Underwriters (assuming that neither DTC nor any such Underwriter has notice clear of any adverse claim (within the meaning of Section 8-105 of the UCC) to such Shares), (A) DTC shall be a “protected purchaser” of such Shares within the meaning of Section 8-303 of the UCC, (B) under Section 8-501 of the UCC, the Underwriters will acquire a valid security entitlement in respect of such Shares and (C) no action based on any “adverse claim”, within the meaning of Section 8-102 of the UCCNew York Uniform Commercial Code, to each Underwriter who has purchased such Shares may be asserted against the Underwriters with respect to such security entitlement; for purposes without notice of this representation, the an adverse claim.
(f) The Selling Shareholder may assume has no reason to believe that when such paymentthe representations and warranties of the Company contained in Section 1 are not true and correct and has no knowledge of any material fact, delivery and crediting occur, (x) such Shares will have been registered condition or information not disclosed in the name of Cede Prospectus that has had, or another nominee designated by DTCmay have, in each case a material adverse effect on the Journal Enterprise. The Selling Shareholder is not prompted by any material information concerning the Company’s share register , Old Journal or their respective subsidiaries which is not set forth in accordance with the Prospectus to sell its memorandum and articles of association and applicable law, (y) DTC will be registered as a “clearing corporation” within the meaning of Section 8-102 of the UCC and (z) appropriate entries to the accounts of the several Underwriters on the records of DTC will have been made Shares pursuant to the UCCthis Agreement.
(i) The Registration Statement, when it became effective, did not contain and, as amended or supplemented, if applicable, will not contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading and (ii) the Prospectus does not contain and, as amended or supplemented, if applicable, will not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading, provided that the representations and warranties set forth in this paragraph 2(e2(g) are limited to statements or omissions in the Registration Statement or Prospectus made in reliance upon information relating to the Selling Shareholder furnished to the Company in writing by the Selling Shareholder expressly for use in the Registration Statement, the Prospectus or any amendments or supplements thereto.
Appears in 1 contract
Sources: Underwriting Agreement (Journal Co)
Representations and Warranties of the Selling Shareholder. The Each Selling Shareholder represents and warrants to and agrees with each of the Underwriters Underwriter that:
(a) Such Selling Shareholder now has, and on any Option Closing Date will have, valid and marketable title to the Shares to be sold by such Selling Shareholder, free and clear of any lien, claim, security interest or other encumbrance, including, without limitation, any restriction on transfer.
(b) Such Selling Shareholder now has, and on any Option Closing Date will have, full legal right, power and authorization, and any approval required by law, to sell, assign transfer and deliver such Shares in the manner provided in this Agreement, and upon delivery of and payment for such Shares hereunder, the several Underwriters will acquire valid and marketable title to such Shares free and clear of any lien, claim, security interest, or other encumbrance.
(c) This Agreement has and the Custody Agreement have been duly authorized, executed and delivered by or on behalf of such Selling Shareholder and are the valid and binding agreements of such Selling ShareholderShareholder enforceable against such Selling Shareholder in accordance with their terms, except to the extent enforceability may be limited by laws relating to creditors' rights generally or by general equitable principles, and except as rights to indemnity and contribution hereunder may be limited by federal or state securities laws.
(bd) The Neither the execution and delivery by the Selling Shareholder of, and the performance by the Selling Shareholder of its obligations under, this Agreement will not contravene any provision of applicable law, or the memorandum and articles Custody Agreement by or on behalf of association of the such Selling Shareholder, nor the consummation of the transactions herein or any agreement therein contemplated by or other instrument binding upon the on behalf of such Selling Shareholder or requires any judgment, order or decree of any governmental body, agency or court having jurisdiction over the Selling Shareholder, and no consent, approval, authorization or order of, or qualification filing or registration with, any court, regulatory body, administrative agency or other governmental body body, agency or agency is required for the performance by the Selling Shareholder of its obligations under this Agreement, official (except such as may be required by under the Act and the Exchange Act or such as may be required under state securities or Blue Sky laws of governing the various states in connection with the offer purchase and sale distribution of the Shares), or conflicts or will conflict with or constitutes or will constitute a breach of, or default under, or violates or will violate, any agreement, indenture or other instrument to which such Selling Shareholder is a party or by which such Selling Shareholder is or may be bound, or to which any of such Selling Shareholder's property or assets is subject, or any statute, law, rule, regulation, ruling, judgment, injunction, order or decree applicable to such Selling Shareholder or to any property or assets of such Selling Shareholder.
(c) The Selling Shareholder has, and on the Closing Date will have, valid title to, or a valid “security entitlement” within the meaning of Section 8-501 of the New York Uniform Commercial Code (the “UCC”) in respect of, the Shares to be sold by the Selling Shareholder free and clear of all security interests, claims, liens, equities or other encumbrances and the legal right and power, and all authorization and approval required by law, to enter into this Agreement and to sell, transfer and deliver the Shares to be sold by the Selling Shareholder or a security entitlement in respect of such Shares.
(d) Upon payment for the Shares to be sold by the Selling Shareholder pursuant to this Agreement, delivery of such Shares, as directed by the Underwriters, to Cede & Co. (“Cede”) or such other nominee as may be designated by the Depository Trust Company (“DTC”), registration of such Shares in the name of Cede or such other nominee and the crediting of such Shares on the books of DTC to securities accounts of the Underwriters (assuming that neither DTC nor any such Underwriter has notice of any adverse claim (within the meaning of Section 8-105 of the UCC) to such Shares), (A) DTC shall be a “protected purchaser” of such Shares within the meaning of Section 8-303 of the UCC, (B) under Section 8-501 of the UCC, the Underwriters will acquire a valid security entitlement in respect of such Shares and (C) no action based on any “adverse claim”, within the meaning of Section 8-102 of the UCC, to such Shares may be asserted against the Underwriters with respect to such security entitlement; for purposes of this representation, the Selling Shareholder may assume that when such payment, delivery and crediting occur, (x) such Shares will have been registered in the name of Cede or another nominee designated by DTC, in each case on the Company’s share register in accordance with its memorandum and articles of association and applicable law, (y) DTC will be registered as a “clearing corporation” within the meaning of Section 8-102 of the UCC and (z) appropriate entries to the accounts of the several Underwriters on the records of DTC will have been made pursuant to the UCC.
(ie) The Registration StatementStatement and the Prospectus, when it became effectiveinsofar as they relate to such Selling Shareholder, did do not contain and, as amended or supplemented, if applicable, and will not contain any an untrue statement of a material fact or omit to state a any material fact required to be stated therein or necessary to make the statements therein not misleading and misleading.
(iif) Such Selling Shareholder does not have any knowledge or any reason to believe that the Registration Statement or the Prospectus does not contain and, as amended (or supplemented, if applicable, will not contain any amendment or supplement thereto) contains any untrue statement of a material fact or omit omits to state a 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, therein not misleading, provided that the .
(g) The representations and warranties set forth in this paragraph 2(e) are limited to statements or omissions of such Selling Shareholder in the Registration Statement or Prospectus made in reliance upon information relating to Custody Agreement are, and on the Closing Date and any Option Closing Date will be, true and correct.
(h) Such Selling Shareholder furnished has not taken, directly or indirectly, any action designed to or that might reasonably be expected to cause or result in stabilization or manipulation of the Company in writing by price of the Selling Shareholder expressly Common Stock to facilitate the sale or resale of the Shares, except for use the lock-up arrangements described in the Registration Statement, the Prospectus or any amendments or supplements theretoProspectus.
Appears in 1 contract
Sources: Underwriting Agreement (International Speedway Corp)
Representations and Warranties of the Selling Shareholder. The Selling --------------------------------------------------------- Shareholder represents represents, warrants and warrants covenants to and agrees with each of the Underwriters Underwriter that:
(a) The Selling Shareholder has full power and authority to enter into this Agreement and the Selling Shareholder's Agreement (as defined below). All authorizations and consents necessary for the execution and delivery by the Selling Shareholder of this Agreement and the Selling Shareholder Agreement have been given. This Agreement has and the Selling Shareholder Agreement have each been duly authorized, executed and delivered by or on behalf of the Selling Shareholder.
(b) The execution Selling Shareholder has executed and delivery by delivered a Power of Attorney and caused to be executed and delivered on its behalf a Letter of Transmittal and Custody Agreement (hereinafter collectively referred to as the "Selling Shareholder's Agreement") and in connection herewith the Selling Shareholder offurther represents, warrants and the performance by agrees that the Selling Shareholder has deposited in custody, under the Selling Shareholder's Agreement, with the agent named therein (the "Agent") as custodian, certificates in negotiable form for the Shares, for the purpose of its obligations under, further delivery pursuant to this Agreement. The Selling Shareholder Agreement will not contravene any provision of applicable law, or the memorandum is a valid and articles of association binding agreement of the Selling Shareholder, enforceable against the Selling Shareholder in accordance with its terms, except (i) as the Selling Shareholder's obligations may be affected by bankruptcy, insolvency, reorganization, moratorium or similar laws, or by equitable principles relating to creditors' rights generally, and (ii) that the remedies of specific performance, injunction and other forms of equitable relief are subject to certain tests of equity, jurisdiction, equitable defenses and the discretion of the court before which any agreement proceeding therefor may be brought. The Selling Shareholder agrees that the Shares on deposit with the Agent are subject to the interests of the Underwriters, that the arrangements made for such custody are to that extent irrevocable, and that the obligations of the Selling Shareholder hereunder shall not be terminated, except as provided in this is Agreement or in the Selling Shareholder's Agreement, by any act of the Selling Shareholder, by operation of law, by the insolvency or other instrument binding incapacity of such Selling Shareholder or by the occurrence of any other event. If the Selling Shareholder should become insolvent, declare or have declared in respect thereof, bankruptcy, or if any other event should occur, before the delivery of the Shares hereunder, the documents evidencing Shares then on deposit with the Agent shall be delivered by the Agent in accordance with the terms and conditions of this Agreement as if such event had not occurred, regardless of whether or not the Agent shall have received notice thereof.
(c) The Selling Shareholder now has, and at the time of delivery thereof hereunder will have, (i) good and marketable title to the Shares, free and clear of all liens, encumbrances and claims whatsoever, and (ii) full legal right and power, and all authorizations and approvals required by law, to sell, transfer and deliver the Shares to the Underwriters hereunder and to make the representations, warranties and agreements made by the Selling Shareholder herein. Upon the delivery of and payment for the Shares hereunder, the Selling Shareholder will deliver good and marketable title thereto, free and clear of all liens, encumbrances and claims whatsoever.
(d) On each Closing Date, all stock transfer or other taxes (other than income taxes) which are required to be paid in connection with the sale and transfer of the Shares to the several Underwriters hereunder will have been fully paid or provided for by the Selling Shareholder and all laws imposing such taxes will have been fully complied with.
(e) The performance of this Agreement and the Selling Shareholder's Agreement and the consummation of the transactions contemplated hereby and thereby by the Selling Shareholder will not result in the creation or imposition of any lien, charge or encumbrance upon any of the Shares pursuant to the terms or provisions of, or result in a breach or violation of any of the terms or provisions of, or constitute a default under, or result in the acceleration of any obligation under any contract or other agreement to which the Selling Shareholder is a party (including without limitation, the indenture pursuant to which the Selling Shareholder has issued $90,000,000 aggregate principal amount of Senior Notes due 2004) or by which the Selling Shareholder or any of its property is bound or affected, or under any ruling, decree, judgment, order order, law, statute, rule or decree regulation of any court or other governmental body, agency or court body having jurisdiction over the Selling Shareholder or the property of the Selling Shareholder, and no . The Selling Shareholder is not in violation of any provision of its articles of incorporation or by-laws.
(f) No consent, approval, authorization or order of, or qualification any filing or declaration with, any court or governmental agency or body or agency is required for the performance consummation by the Selling Shareholder of the transactions on its obligations under this part contemplated herein or in the Selling Shareholder's Agreement, except such as have been obtained under the Act or the Rules and Regulations and such as may be required by the under state securities or Blue Sky laws or the by-laws and rules of the various states NASD in connection with the offer purchase and sale distribution by the Underwriters of the Shares.
(cg) The sale of the Shares is not prompted by the actual knowledge of the Board of Directors of Selling Shareholder has, and on of any material non-public information concerning the Closing Date will have, valid title to, or a valid “security entitlement” within the meaning of Section 8-501 of the New York Uniform Commercial Code Company.
(the “UCC”h) in respect of, the Shares to be sold All information provided by the Selling Shareholder free and clear of all security interests, claims, liens, equities or other encumbrances contained in the Registration Statement and the legal right and power, and all authorization and approval required by law, to enter into this Agreement and to sell, transfer and deliver the Shares to be sold by the Selling Shareholder or a security entitlement in respect of such Shares.
Prospectus (d) Upon payment for the Shares to be sold by the Selling Shareholder pursuant to this Agreement, delivery of such Shares, as directed by the Underwriters, to Cede & Co. (“Cede”) or such other nominee as may be designated by the Depository Trust Company (“DTC”), registration of such Shares in the name of Cede or such other nominee and the crediting of such Shares on the books of DTC to securities accounts of the Underwriters (assuming that neither DTC nor any such Underwriter has notice of any adverse claim (within the meaning of Section 8-105 of the UCC) to such Shares), (A) DTC shall be a “protected purchaser” of such Shares within the meaning of Section 8-303 of the UCC, (B) under Section 8-501 of the UCC, the Underwriters will acquire a valid security entitlement in respect of such Shares and (C) no action based on any “adverse claim”, within the meaning of Section 8-102 of the UCC, to such Shares may be asserted against the Underwriters with respect to such security entitlement; for purposes of this representation, the Selling Shareholder may assume that when such payment, delivery and crediting occur, (x) such Shares will have been registered in the name of Cede or another nominee designated by DTC, in each case on the Company’s share register in accordance with its memorandum and articles of association and applicable law, (y) DTC will be registered as a “clearing corporation” within the meaning of Section 8-102 of the UCC and (z) appropriate entries to the accounts of the several Underwriters on the records of DTC will have been made pursuant to the UCC.
(i) The Registration Statement, when it became effective, did not contain and, as amended or supplemented, if applicable, the Company shall have filed with the Commission any amendment or supplement thereto) complied and will not contain any untrue statement of a comply in all material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading and (ii) the Prospectus does not contain and, as amended or supplemented, if applicable, will not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in the light respects with all applicable provisions of the circumstances under which they were made, not misleading, provided Act and the Rules and Regulations and such information is true and accurate. The parties hereto agree that the representations and warranties set forth in this paragraph 2(e) are limited to statements or omissions only information provided by the Selling Shareholder contained in the Registration Statement or and the Prospectus made in reliance upon is the information relating to contained therein regarding the Selling Shareholder furnished to under the Company in writing by the caption "Beneficial Ownership of Securities and Selling Shareholder."
(i) The Selling Shareholder expressly for use in the Registration Statementhas not distributed and will not distribute any preliminary prospectus, the Prospectus or any amendments other offering material in connection with the offering and sale of the Shares. The Selling Shareholder has not taken, directly or supplements theretoindirectly, any action designed, or which might reasonably be expected, to cause or result in, under the Act or otherwise, or which has caused or resulted in, stabilization or manipulation of the price of any security of the Company to facilitate the sale or resale of the Shares.
Appears in 1 contract
Sources: Underwriting Agreement (Southern Pacific Funding Corp)
Representations and Warranties of the Selling Shareholder. The Selling Shareholder represents and warrants to and agrees with each of the Underwriters that:
(a) This Agreement has been duly authorized, executed and delivered by or on behalf of the Selling Shareholder.
(b) The execution and delivery by the Selling Shareholder of, and the performance by the Selling Shareholder of its obligations under, under this Agreement will not contravene any provision of applicable law, or the memorandum and articles of association of the Selling Shareholder, or any agreement or other instrument binding upon the Selling Shareholder or any judgment, order or decree of any governmental body, agency or court having jurisdiction over the Selling Shareholder, and no consent, approval, authorization or order of, or qualification with, any governmental body or agency is required for the performance by the Selling Shareholder of its obligations under this Agreement, except such as may be required by the securities or Blue Sky laws of the various states in connection with the offer and sale of the Shares.
(c) The Selling Shareholder haswill have, and on the Closing Date will haveDate, valid title to, or a valid “security entitlement” within the meaning of Section 8-501 of the New York Uniform Commercial Code (the “UCC”) in respect of, the Shares to be sold by the Selling Shareholder free and clear of all security interests, claims, liens, equities or other encumbrances and the legal right and power, and all authorization and approval required by law, to enter into this Agreement and to sell, transfer and deliver the Shares to be sold by the Selling Shareholder or a security entitlement in respect of such Shares.
(d) Upon payment for the Shares to be sold by the Selling Shareholder pursuant to this Agreement, delivery of such Shares, as directed by the Underwriters, to Cede & Co. (“Cede”) or such other nominee as may be designated by the Depository Trust Company (“DTC”), registration of such Shares in the name of Cede or such other nominee and the crediting of such Shares on the books of DTC to securities accounts of the Underwriters (assuming that neither DTC nor any such Underwriter has notice of any adverse claim (within the meaning of Section 8-105 of the New York Uniform Commercial Code (the “UCC”)) to such Shares), (A) DTC shall be a “protected purchaser” of such Shares within the meaning of Section 8-303 of the UCC, (B) under Section 8-501 of the UCC, the Underwriters will acquire a valid security entitlement in respect of such Shares and (C) no action based on any “adverse claim”, within the meaning of Section 8-102 of the UCC, to such Shares may be asserted against the Underwriters with respect to such security entitlement; for purposes of this representation, the Selling Shareholder may assume that when such payment, delivery and crediting occur, (x) such Shares will have been registered in the name of Cede or another nominee designated by DTC, in each case on the Company’s share register registry in accordance with its memorandum and articles certificate of association incorporation, bylaws and applicable law, (y) DTC will be registered as a “clearing corporation” within the meaning of Section 8-102 of the UCC and (z) appropriate entries to the accounts of the several Underwriters on the records of DTC will have been made pursuant to the UCC. |US-DOCS\140511620.6||
(e) The Selling Shareholder has no reason to believe that the representations and warranties of the Company contained in Section 1 are not true and correct, is familiar with the Registration Statement, the Time of Sale Prospectus and the Prospectus and has no knowledge of any material fact, condition or information not disclosed in the Time of Sale Prospectus or the Prospectus that has had, or may have, a material adverse effect on the Company and its subsidiaries, taken as a whole. The Selling Shareholder is not prompted by any information concerning the Company or its subsidiaries which is not set forth in the Time of Sale Prospectus to sell its Shares pursuant to this Agreement.
(f) (i) The the Registration Statement, when it became effective, did not contain and, as amended or supplemented, if applicable, will not contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading, (ii) the Registration Statement and the Prospectus comply and, as amended or supplemented, if applicable, will comply in all material respects with the Securities Act and the applicable rules and regulations of the Commission thereunder, (iii) the Time of Sale Prospectus does not, and at the time of each sale of the Shares in connection with the offering when the Prospectus is not yet available to prospective purchasers and at the Closing Date (as defined in Section 5), the Time of Sale Prospectus, as then amended or supplemented by the Company, if applicable, will not, contain any 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, (iv) each broadly available road show, if any, when considered together with the Time of Sale Prospectus, does not contain any 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 and (iiv) the Prospectus does not contain and, as amended or supplemented, if applicable, will not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading, ; provided that the representations and warranties set forth in this paragraph 2(e2(g) are limited to statements or omissions in the Registration Statement or Prospectus made in reliance upon information relating to the Selling Shareholder furnished to the Company in writing by the Selling Shareholder expressly for use in the Registration Statement, the Time of Sale Prospectus, the Prospectus or any amendments or supplements thereto.
(g) (i) The Selling Shareholder is not:
(A) the subject of any Sanctions, or
(B) located, organized or resident in a country or territory that is the subject of Sanctions (including, without limitation, the Crimea Region of Ukraine, the so-called Donetsk People’s Republic, the so-called Luhansk People’s Republic, and the non-government controlled areas of Kherson and Zaporizhzhia regions of Ukraine, Cuba, Iran, Syria, and North Korea).
(i) The Selling Shareholder will not, directly or indirectly, use the proceeds of the offering, or lend, contribute or otherwise make available such proceeds to any subsidiary, joint venture partner or other Person:
(A) to fund or facilitate any activities or business of or with any Person or in any country or territory that, at the time of such funding or facilitation, is the subject of Sanctions; or
(B) in any other manner that will result in a violation of Sanctions by any Person (including any Person participating in the offering, whether as underwriter, advisor, investor or otherwise). 15 |US-DOCS\140511620.6||
(ii) For the past 5 years, the Selling Shareholder has not knowingly engaged in, is not now knowingly engaged in, and will not engage in, any dealings or transactions with any Person, or in any country or territory, that at the time of the dealing or transaction is or was the subject of Sanctions.
(a) The Selling Shareholder has not taken or will take any action in furtherance of an offer, payment, promise to pay, or authorization or approval of the payment giving or receipt of money, property, gifts or anything else of value, directly or indirectly, to any Government Official in order to influence official action, or to any person in violation of any applicable anti-corruption laws; and (b) the Selling Shareholder will not use, directly or indirectly, the proceeds of the offering in furtherance of an offer, payment, promise to pay, or authorization of the payment or giving of money, or anything else of value, to any person in violation of any applicable anti-corruption laws.
(iv) the Selling Shareholder is in material compliance with all applicable Anti-Money Laundering Laws, and no action, suit or proceeding by or before any court or governmental agency, authority or body or any arbitrator involving the Selling Shareholder with respect to the Anti-Money Laundering Laws is pending or, to the best knowledge of the Selling Shareholder, threatened.
(h) The Selling Shareholder represents and warrants that it is not (i) an employee benefit plan subject to Title I of the Employee Retirement Income Security Act of 1974, as amended (“ERISA”), (ii) a plan or account subject to Section 4975 of the Internal Revenue Code of 1986, as amended or (iii) an entity deemed to hold “plan assets” of any such plan or account under Section 3(42) of ERISA, 29 C.F.R. 2510.3-101, or otherwise.
Appears in 1 contract
Representations and Warranties of the Selling Shareholder. The Selling Shareholder represents and warrants to and agrees with each of the Underwriters that:
(a) This Agreement has been duly authorized, executed and delivered by or on behalf of the Selling Shareholder.
(b) The execution and delivery by the Selling Shareholder of, and the performance by the Selling Shareholder of its obligations under, this Agreement, the Custody Agreement signed by the Selling Shareholder and ____________, as Custodian, relating to the deposit of the Shares to be sold by the Selling Shareholder (the "CUSTODY AGREEMENT") and the Power of Attorney appointing certain individuals as the Selling Shareholder's attorneys-in-fact to the extent set forth therein, relating to the transactions contemplated hereby and by the Registration Statement (the "POWER OF ATTORNEY") will not contravene any provision of applicable law, or the memorandum and articles certificate of association incorporation or by-laws of the Selling Shareholder, or any agreement or other instrument binding upon the Selling Shareholder or any judgment, order or decree of any governmental body, agency or court having jurisdiction over the Selling Shareholder, and no consent, approval, authorization or order of, or qualification with, any governmental body or agency is required for the performance by the Selling Shareholder of its obligations under this AgreementAgreement or the Custody Agreement or Power of Attorney of the Selling Shareholder, except such as may be required by the securities or Blue Sky laws of the various states in connection with the offer and sale of the Shares.
(c) The Selling Shareholder has, and on the Closing Date will have, valid title to, or a valid “security entitlement” within the meaning of Section 8-501 of the New York Uniform Commercial Code (the “UCC”) in respect of, to the Shares to be sold by the Selling Shareholder free and clear of all security interests, claims, liens, equities or other encumbrances and the legal right and power, and all authorization and approval required by law, to enter into this Agreement, the Custody 8 8 Agreement and the Power of Attorney and to sell, transfer and deliver the Shares to be sold by the Selling Shareholder or a security entitlement in respect of such SharesShareholder.
(d) The Custody Agreement and the Power of Attorney have been duly authorized, executed and delivered by the Selling Shareholder and are valid and binding agreements of the Selling Shareholder.
(e) Upon payment for delivery of the Shares to be sold by the Selling Shareholder pursuant to this Agreement, delivery of such Shares, as directed by the Underwriters, to Cede & Co. (“Cede”) or such other nominee as may be designated by the Depository Trust Company (“DTC”), registration of several Underwriters will acquire such Shares in the name of Cede or such other nominee and the crediting of such Shares on the books of DTC to securities accounts of the Underwriters (assuming that neither DTC nor any such Underwriter has notice free of any adverse claim thereto (within the meaning of Section 8-105 of the UCC) to such Shares), (A) DTC shall be a “protected purchaser” of such Shares within the meaning of Section 8-303 of the UCC, (B) under Section 8-501 of the UCC, the Underwriters will acquire a valid security entitlement in respect of such Shares and (C) no action based on any “adverse claim”, within the meaning of Section 8-102 of the UCC, to such Shares may be asserted against ).
(f) The information under the Underwriters with respect to such security entitlement; for purposes of this representation, caption "The Selling Shareholder" as well as any other information provided by the Selling Shareholder may assume that when such payment, delivery and crediting occur, (x) such Shares will have been registered in the name of Cede or another nominee designated by DTC, in each case on the Company’s share register in accordance with its memorandum and articles of association and applicable law, (y) DTC will be registered as a “clearing corporation” within the meaning of Section 8-102 of the UCC and (z) appropriate entries to the accounts of Company or the several Underwriters on the records of DTC will have been made pursuant to the UCC.
in writing expressly for use in (i) The the Registration Statement, when it became effective, did not contain and, as amended or supplemented, if applicable, will not contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading misleading, and (ii) the Prospectus Prospectus, does not contain and, as amended or supplemented, if applicable, will not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading, provided except, that the representations and warranties set forth in this paragraph 2(e2(g) are limited do not apply to statements or omissions in the Registration Statement or the Prospectus made in reliance based upon information relating to the Selling Shareholder any Underwriter furnished to the Company in writing by the Selling Shareholder such Underwriter through you expressly for use in the Registration Statement, the Prospectus or any amendments or supplements theretotherein.
Appears in 1 contract
Sources: Underwriting Agreement (Renaissancere Holdings LTD)
Representations and Warranties of the Selling Shareholder. The Selling Shareholder hereby represents and warrants to the Company and agrees with each of the Underwriters thatUnderwriter as follows:
(a) The Selling Shareholder has caused certificates for the number of Shares to be sold by the Selling Shareholder hereunder to be delivered to the Company (in such capacity, the "Custodian"), endorsed in blank or with blank stock powers duly executed, with a signature appropriately guaranteed, such certificates to be held in custody by the Custodian for delivery, pursuant to the provisions of this Agreement and an agreement dated on or about the date hereof between the Custodian and the Selling Shareholder (the "Custody Agreement").
(b) The Selling Shareholder has granted an irrevocable power of attorney (the "Power of Attorney") to the Company and Cra▇▇ ▇▇▇▇▇, ▇n behalf of the Selling Shareholder, to execute and deliver this Agreement and any other document necessary or desirable in connection with the transactions contemplated hereby and to deliver the shares to be sold by the Selling Shareholder pursuant hereto.
(c) This Agreement, the Custody Agreement, the Power of Attorney and the Lock-Up Agreement has have each been duly authorized, executed and delivered by or on behalf of the Selling Shareholder and, assuming due authorization, execution and delivery by the other parties hereto, each constitutes the valid and legally binding agreement of the Selling Shareholder, enforceable against the Selling Shareholder in accordance with its terms, except as the enforceability thereof may be limited by bankruptcy, insolvency, reorganization, moratorium or other similar laws affecting the -12- 13 enforcement of creditors' rights generally and by general equitable principals.
(bd) The execution and delivery by the Selling Shareholder of, of this Agreement and the performance by the Selling Shareholder of its obligations under, under this Agreement (i) will not contravene any provision of applicable law, statute, rule or the memorandum and articles of association of the Selling Shareholder, regulation or any agreement or other instrument binding upon the Selling Shareholder or any judgment, order or decree of any governmental body, agency or court having jurisdiction over the Selling Shareholder, and no (ii) does not require on the part of the Selling Shareholder any consent, approval, authorization or order of, of or qualification with, registration or filing with any court or governmental agency or body or agency is required for the performance by the Selling Shareholder of its obligations under this Agreementhaving jurisdiction over it, except such as may be required by the securities or Blue Sky laws of the various states or other jurisdiction in connection with the offer and sale of the SharesShares which have been or will be effected in accordance with this Agreement, and (iii) will not result in the creation or imposition of any lien, charge or encumbrance upon any property or assets of the Selling Shareholder pursuant to the terms of any agreement or instrument to which the Selling Shareholder is a party or by which the Selling Shareholder may be bound or to which any of the property or assets of the Selling Shareholder is subject.
(ce) The Selling Shareholder has, and on the each Closing Date on which Shares to be sold by the Selling Shareholder pursuant to this Agreement will have, valid and marketable title to, or a valid “security entitlement” within the meaning of Section 8-501 of the New York Uniform Commercial Code (the “UCC”) in respect of, to the Shares to be sold by the Selling Shareholder on such Closing Date, free and clear of all any lien, claim, security interests, claims, liens, equities interest or other encumbrances encumbrance, including, without limitation, any restriction on transfer, except as otherwise described in the Registration Statement and the legal right and powerProspectus.
(f) The Selling Shareholder has, and all authorization on each Closing Date on which Shares to be sold by the Selling Shareholder pursuant to this Agreement will have, full legal right, power and authorization, and any approval required by law, to enter into this Agreement and to sell, assign, transfer and deliver the Shares to be sold by the Selling Shareholder or a security entitlement on such Closing Date in respect of such Sharesthe manner provided by this Agreement.
(dg) Upon delivery of and payment for the Shares to be sold by the Selling Shareholder on any Closing Date pursuant to this Agreement, delivery of such Shares, as directed by the Underwriters, to Cede & Co. (“Cede”) or such other nominee as may be designated by the Depository Trust Company (“DTC”), registration of such Shares in the name of Cede or such other nominee and the crediting of such Shares on the books of DTC to securities accounts of the Underwriters (assuming that neither DTC nor any such Underwriter has notice of any adverse claim (within the meaning of Section 8-105 of the UCC) to such Shares), (A) DTC shall be a “protected purchaser” of such Shares within the meaning of Section 8-303 of the UCC, (B) under Section 8-501 of the UCC, the several Underwriters will acquire a receive valid security entitlement in respect of such Shares and (C) no action based on any “adverse claim”, within the meaning of Section 8-102 of the UCC, marketable title to such Shares may be asserted against the Underwriters with respect free and clear of any lien, claim, security interest or other encumbrance.
(h) All information relating to such security entitlement; for purposes of this representation, the Selling Shareholder may assume that when such payment, delivery and crediting occur, (x) such Shares will have been registered furnished in writing by the Selling Shareholder expressly for use in the name of Cede or another nominee designated Registration Statement and Prospectus is, and on each Closing Date on which Shares to be sold by DTC, in each case on the Company’s share register in accordance with its memorandum and articles of association and applicable law, (y) DTC will be registered as a “clearing corporation” within the meaning of Section 8-102 of the UCC and (z) appropriate entries to the accounts of the several Underwriters on the records of DTC will have been made Selling Shareholder pursuant to the UCC.
(i) The Registration Statementthis Agreement will be, when it became effectivetrue, did not contain andcorrect, as amended or supplementedand complete, if applicableand does not, and on each Closing Date will not not, contain any untrue statement of a material fact or omit to state a any material fact required to be stated therein or necessary to make such information not misleading.
(i) The Selling Shareholder has reviewed the statements therein not misleading Registration Statement and (ii) the Prospectus does not contain and, as amended although the Selling Shareholder has not independently verified the accuracy or supplementedcompleteness of all the information contained therein, if applicablenothing has come to the attention of the Selling Shareholder that would lead the Selling Shareholder to believe that (i) on the Effective Date, will not contain the Registration Statement contained any untrue statement of a material fact or omit omitted to state any material fact required to be stated therein in order to make the statements made therein not misleading and (ii) on the Effective Date, the Prospectus contained and, on each Closing Date contains, no untrue statement of a material fact or omitted or omits to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading, provided that the representations and warranties set forth in this paragraph 2(e.
(j) are limited to statements or omissions in the Registration Statement or Prospectus made in reliance upon information relating to the Selling Shareholder furnished to the Company in writing The sale of Shares by the Selling Shareholder expressly for use pursuant to this Agreement is not prompted by the Selling Shareholder's knowledge of any material information concerning the Company or the Subsidiary which is not set forth in the Registration StatementProspectus.
(k) The Selling Shareholder has not taken and will not take, directly or indirectly, any action designed to or that might reasonably be expected to cause or result in stabilization or manipulation of the Prospectus price of any security of the Company to facilitate the sale or resale of the Shares.
(l) The Selling Shareholder has no actual knowledge that any amendments representation or supplements theretowarranty of the Company set forth in Section 4 above is untrue or inaccurate in any material respect.
(m) The representations and warranties of the Selling Shareholder in the Custody Agreement are, and on each Closing Date on which Shares to be sold by the Selling Shareholder pursuant to this Agreement will be, true and correct.
Appears in 1 contract
Sources: Underwriting Agreement (Talx Corp)
Representations and Warranties of the Selling Shareholder. The Selling Shareholder represents and warrants to and agrees with each of the Underwriters that:
(a) This Agreement has been duly authorized, executed and delivered by or on behalf of the Selling Shareholder.
(b) The execution and delivery by the Selling Shareholder of, and the performance by the Selling Shareholder of its obligations under, this Agreement will not contravene any provision of applicable law, or the memorandum and articles of association of the Selling Shareholder, or any agreement or other instrument binding upon the Selling Shareholder or any judgment, order or decree of any governmental body, agency or court having jurisdiction over the Selling Shareholder, and no . No consent, approval, authorization or order of, or qualification with, any governmental body body, agency or agency court is required for the performance by the Selling Shareholder of its obligations under this Agreement, except such as may be required by the securities or Blue Sky laws of the various states in connection with the offer and sale of the Shares.
(c) The Selling Shareholder has, and on the Closing Date will have, valid title to, or a valid “security entitlement” within the meaning of Section 8-501 of the New York Uniform Commercial Code as in effect in the State of New York (the “UCC”) in respect of, the Shares to be sold by the Selling Shareholder free and clear of all security interests, claims, liens, equities or other encumbrances and the legal right and power, and all authorization and approval required by law, to enter into this Agreement and to sell, transfer and deliver the Shares to be sold by the Selling Shareholder or a security entitlement in respect of such Shares.
(d) Upon payment for the Shares to be sold by the Selling Shareholder to the Underwriters pursuant to this Agreement, delivery of such Shares, as directed by the Underwriters, to Cede & Co. (“Cede”) or such other nominee as may be designated by the Depository Trust Company (“DTC”), registration of such Shares in the name of Cede or such other nominee and the crediting of such Shares on the books of DTC to securities accounts of the Underwriters: (A) under Section 8-501 of the UCC, such Underwriters (assuming that neither DTC nor any such Underwriter has notice of any adverse claim will acquire a “security entitlement” (within the meaning of Section 8-102(a)(17) of the UCC) in respect of such Shares; and (B) assuming such Underwriters have so acquired such security entitlement without notice of any “adverse claim” (within the meaning of Sections 8-102(a)(1) and 8-105 of the UCC) to such Shares), (A) DTC shall be a “protected purchaser” of such Shares within the meaning of Section 8-303 of the UCC, (B) under Section 8-501 of the UCC, the Underwriters will acquire a valid security entitlement in respect of such Shares and (C) no action based on any “adverse claim”, ” (within the meaning of Section Sections 8-102 102(a)(1) and 8-105 of the UCC, ) to such Shares may be asserted against the Underwriters with respect to such security entitlement; for . For purposes of this representation, the Selling Shareholder may assume that when such payment, delivery delivery, registration and crediting occur, (x) such the Shares being sold by the Selling Shareholder will have been registered in the name of Cede or another such other nominee as may be designated by DTC, in each case on the Company’s share register registry in accordance with its memorandum and articles certificate of association incorporation, bylaws and applicable law, (y) DTC will be registered as a “clearing corporation” and thus a “securities intermediary” within the meaning of Section 8-102 of the UCC and its jurisdiction for purposes of Article 8 of the UCC will be the State of the New York and (z) appropriate entries to the accounts of the several Underwriters on the records of DTC will have been made pursuant to the UCC.
(ie) The Selling Shareholder has delivered to ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ an executed lock-up agreement in substantially the form attached hereto as Exhibit A (the “Lock-up Agreement”).
(f) To the extent that any statements or omissions made in the Registration Statement, when it became effectivethe Time of Sale Prospectus, did the Prospectus or any amendment or supplement thereto are made in reliance upon and in conformity with the written information relating to the Selling Shareholder furnished to the Company by the Selling Shareholder expressly for use therein, such Registration Statement, the Time of Sale Prospectus, the Prospectus and any further amendments or supplements thereto do not contain and, as amended or supplemented, if applicable, and will not contain any untrue statement of a material fact or omit to state a any material fact (in the case of the Registration Statement, required to be stated therein therein) or necessary to make the statements therein not misleading and (ii) in the Prospectus does not contain and, as amended or supplemented, if applicable, will not contain case of any untrue statement of a material fact or omit to state a material fact necessary to make the statements thereinProspectus, in the light of the circumstances under which they were made, ) not misleading, provided ; it being understood and agreed that the representations only such information furnished by the Selling Shareholder to the Company consists of (A) the legal name, address and warranties set forth in this paragraph 2(ethe number of Shares beneficially owned by the Selling Shareholder before and after the offering and (B) are limited to statements or omissions in the Registration Statement or Prospectus made in reliance upon other information relating with respect to the Selling Shareholder furnished to (excluding percentages) which appear in the table (and corresponding footnotes) under the captions “Selling Stockholder” and “Principal and Selling Stockholders” in the Prospectus (the “Selling Shareholder Information”).
(g) The Selling Shareholder is not prompted by information concerning the Company in writing by the Selling Shareholder expressly for use or its subsidiaries which is not set forth in the Registration Statement, the Time of Sale Prospectus or the Prospectus to sell its shares pursuant to this Agreement.
(i) Neither the Selling Shareholder, nor, to the knowledge of the Selling Shareholder, any amendments agent, representative, or supplements theretoaffiliate thereof, is a Person that is, or is owned or controlled by one or more Persons that are:
(A) the subject of any Sanctions, or
(B) located, organized or resident in a Sanctioned Country.
(ii) The Selling Shareholder will not, directly or indirectly, use the proceeds of the offering, or lend, contribute or otherwise make available such proceeds to any joint venture partner or other Person:
(A) to fund or facilitate any activities or business of or with any Person or in any country or territory that, at the time of such funding or facilitation, is the subject of Sanctions;
(B) in any other manner that would cause or result in a violation of any Anti-Corruption Laws, Anti-Money Laundering Laws or Sanctions by any Person (including any Party to this Agreement); or
(C) in furtherance of any offer, payment, promise to pay, or authorization of the payment or giving of money, or anything else of value, to any Person in violation of any Anti-Money Laundering Laws or any applicable anti-bribery or anti-corruption laws.
(iii) Neither the Selling Shareholder, nor, to the knowledge of the Selling Shareholder, any employee, agent, representative, or affiliate thereof has taken or will take any action in furtherance of an offer, payment, promise to pay, or authorization or approval of the payment giving or receipt of money, property, gifts or anything else of value, directly or indirectly, to any person in order to influence official action, or to any person in violation of the Anti-Corruption Laws.
(iv) No action, suit or proceeding by or before any court or governmental agency, authority or body or any arbitrator involving the Selling Shareholder with respect to the Anti-Money Laundering Laws, Anti-Corruption Laws, or Sanctions is pending or, to the best knowledge of the Selling Shareholder, threatened
Appears in 1 contract
Representations and Warranties of the Selling Shareholder. The Selling Shareholder represents and warrants to and agrees with each of the Underwriters that:
(a) This Agreement has been duly authorized, executed and delivered by or on behalf of the Selling Shareholder.
(b) The execution and delivery by the Selling Shareholder of, and the performance by the Selling Shareholder of its obligations under, this Agreement will not contravene any provision of applicable law, or the memorandum and articles certificate of association formation or formation agreement of the Selling Shareholder, or any agreement or other instrument binding upon the Selling Shareholder or any judgment, order or decree of any governmental body, agency or court having jurisdiction over the Selling Shareholder, and no consent, approval, authorization or order of, or qualification with, any governmental body or agency is required for the performance by the Selling Shareholder of its obligations under this Agreement, except (i) which would not have a material adverse effect on the Selling Shareholder's ability to perform its obligations under this Agreement or (ii) such as may be required by the securities or Blue Sky laws of the various states in connection with the offer and sale of the Shares.
(c) The On the Option Closing Date (as defined below) the Selling Shareholder has, and on the Closing Date will have, have valid title to, or a valid “security entitlement” within the meaning of Section 8-501 of the New York Uniform Commercial Code (the “UCC”) in respect of, to the Shares to be sold by the Selling Shareholder free and clear of all security interests, claims, liens, equities or other encumbrances and the legal right and power, and all authorization and approval required by law, to enter into this Agreement and to sell, transfer and deliver the Shares to be sold by the Selling Shareholder or a security entitlement in respect of such SharesShareholder.
(d) Upon payment for The delivery of the Shares to be sold by the Selling Shareholder pursuant to this AgreementAgreement will, upon the delivery of such Shares, as directed by the Underwriters, to Cede & Co. (“Cede”) or such other nominee as may be designated by the Depository Trust Company (“DTC”), registration of and payment for such Shares in the name of Cede or such other nominee and the crediting of such Shares on the books of DTC to securities accounts of the Underwriters (assuming that neither DTC nor any such Underwriter has notice of any adverse claim (within the meaning of Section 8-105 of the UCC) to such Shares)as contemplated herein, (A) DTC shall be a “protected purchaser” of such Shares within the meaning of Section 8-303 of the UCC, (B) under Section 8-501 of the UCC, the Underwriters will acquire a valid security entitlement in respect of such Shares and (C) no action based on any “adverse claim”, within the meaning of Section 8-102 of the UCC, pass title to such Shares may be asserted against to the Underwriters with respect to such free and clear of any security entitlement; for purposes of this representationinterests, the Selling Shareholder may assume that when such paymentclaims, delivery liens, equities and crediting occur, (x) such Shares will have been registered in the name of Cede or another nominee designated by DTC, in each case on the Company’s share register in accordance with its memorandum and articles of association and applicable law, (y) DTC will be registered as a “clearing corporation” within the meaning of Section 8-102 of the UCC and (z) appropriate entries to the accounts of the several Underwriters on the records of DTC will have been made pursuant to the UCCother encumbrances.
(ie) The All information under the captions "Principal and Selling Stockholders" and "Risk Factors--Shares Eligible for Future Sale" furnished by or on behalf of such Selling Shareholder for use in the Registration StatementStatement and Prospectus is, when it became effectiveand on the Closing Date and on the Option Closing Date will be, did not contain andtrue, as amended or supplementedcorrect, if applicableand complete, and does not, and on the Closing Date and on the Option Closing Date will not not, contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading and (ii) the Prospectus does not contain and, as amended or supplemented, if applicable, will not contain any 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, such information not misleading, provided that the representations and warranties set forth in this paragraph 2(e) are limited to statements or omissions in the Registration Statement or Prospectus made in reliance upon information relating to the Selling Shareholder furnished to the Company in writing by the Selling Shareholder expressly for use in the Registration Statement, the Prospectus or any amendments or supplements thereto.
Appears in 1 contract
Representations and Warranties of the Selling Shareholder. The Selling Shareholder hereby represents and warrants to each Underwriter on the date hereof, and agrees with shall be deemed to represent and warrant to each of Underwriter on the Underwriters Closing Date and the Additional Closing Date, as the case may be, that:
(a) The Selling Shareholder is the lawful owner of the Shares to be sold by such Selling Shareholder pursuant to this Agreement and has, and on the Closing Date and the Additional Closing Date, as the case may be, will have, good and valid title to such Shares, free of all restrictions on transfer, liens, encumbrances, security interests, equities and claims whatsoever.
(b) The Selling Shareholder has, and on the Closing Date and the Additional Closing Date, as the case may be, will have, full legal right, power and authority, and all authorization and approval required by law, to enter into this Agreement.
(c) This Agreement has been duly authorized, executed and delivered by the Selling Shareholder and is a valid and binding agreement of such Selling Shareholder, enforceable as to the Selling Shareholder in accordance with its terms, except to the extent enforceability may be limited by (i) the application of bankruptcy, reorganization, insolvency and other laws affecting creditors’ rights generally and (ii) equitable principles being applied at the discretion of a court before which a proceeding may be brought, except as rights to indemnity and contribution hereunder may be limited by federal or state securities laws.
(bd) The execution and delivery None of the sale of the Shares by the Selling Shareholder ofShareholder, and the execution, delivery or performance by the Selling Shareholder of its obligations underthis Agreement, this Agreement will not contravene any provision of applicable law, or the memorandum and articles of association of the Selling Shareholder, or any agreement or other instrument binding upon compliance by the Selling Shareholder with all the provisions hereof and thereof or any judgment, order or decree of any governmental body, agency or court having jurisdiction over the consummation by the Selling Shareholder, Shareholder of the transactions contemplated hereby and no thereby (i) requires any consent, approval, authorization or other order of, or qualification registration or filing with, any governmental court, regulatory body or administrative agency is required for the performance by the Selling Shareholder of its obligations under this Agreementor other governmental body, agency or official (except such as may be required by under the securities or Blue Sky laws of the various states states), (ii) conflicts with or will conflict with or constitutes or will constitute a breach of or a default under any agreement, indenture, lease or other instrument to which the Selling Shareholder is a party or by which the Selling Shareholder or any property of such Selling Shareholder is bound or (iii) violates any statute, law, regulation, ruling, filing, judgment, injunction, order or decree applicable to the Selling Shareholder or any property of the Selling Shareholder.
(e) The information in connection with the offer Prospectus under the caption “Selling Shareholder” that specifically relates to such Selling Shareholder does not, and will not on the Closing Date or the Additional Closing Date, if as the case may be, contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading.
(f) Other than excepted activity pursuant to Regulation M under the Exchange Act, such Selling Shareholder has not taken and will not take, directly or indirectly, any action that constituted, or any action designed to, or that might reasonably be expected to cause or result in or constitute, under the Act or otherwise, stabilization or manipulation of the price of the Common Stock to facilitate the sale or resale of the Shares.
(cg) The Selling Shareholder has, and on upon delivery of and payment for the Closing Date Shares to be sold by the Selling Shareholder pursuant to this Agreement will have, good and valid title to, to or a valid “security entitlement” within the meaning of Section 8-501 of the New York Uniform Commercial Code (the “UCC”) in respect of, the Shares to be sold by the Selling Shareholder hereunder on such Closing Date, free and clear of all security interestsliens, claims, liensencumbrances, equities or other encumbrances and the legal right and power, and all authorization and approval required by law, to enter into this Agreement and to sell, transfer and deliver the Shares to be sold by the Selling Shareholder or a security entitlement in respect of such Shares.
(d) claims. Upon payment for the Shares to be sold by the Selling Shareholder pursuant to this AgreementShareholder, delivery of such Shares, as directed by the Underwriters, to Cede & Co. (“Cede”) or such other nominee as may be designated by the Depository Trust Company (“DTC”), registration of such Shares in the name of Cede or such other nominee and the crediting of such Shares on the books of DTC to securities accounts of the Underwriters (assuming that neither DTC nor any such Underwriter has notice of any adverse claim (within the meaning of Section 8-105 of the UCC) UCC to such Shares), (A) DTC shall be a “protected purchaser” of such Shares within the meaning of Section 8-303 of the UCC, (B) under Section 8-501 of the UCC, the Underwriters will acquire a valid security entitlement in respect of such Shares and (C) no action based on any “adverse claim”, within the meaning of Section 8-102 of the UCC, to such Shares may be asserted against the Underwriters with respect to such security entitlement; for . For purposes of this representation, the Selling Shareholder may assume that when such payment, delivery and crediting occur, (xA) such Shares will have been registered in the name of Cede or another nominee designated by DTC, in each case on the Company’s share register registry in accordance with its memorandum and articles of association incorporation, bylaws and applicable law, (yB) DTC will be registered as a “clearing corporation” within the meaning of Section 8-102 of the UCC and (zC) appropriate entries to the accounts of the several Underwriters on the records of DTC will have been made pursuant to the UCC.
(h) The Selling Shareholder does not have any registration or other similar rights to have any equity or debt securities registered for sale by the Company under the Registration Statement or included in the offering contemplated by this Agreement, except for such rights as are being exercised in the offering contemplated by this Agreement or such rights as have been duly waived.
(i) The Selling Shareholder is not prompted to sell shares of Common Stock by any information concerning the Company that is not set forth in the Registration Statement.
(j) The Registration Statement did not as of the date and time it, or the most recent post-effective amendment thereto, if any, was declared effective by the Commission, the Prospectus will not as of its date and on the applicable Closing Date, the Time of Sale Information did not as of 4:30 pm (New York City time) on the date of this Agreement (the “Applicable Time”), and each Issuer Free Writing Prospectus (including, without limitation, any road show written communication that is a free writing prospectus under Rule 433), when it became effectiveconsidered together with the Time of Sale Information, did not as of the Applicable Time, contain and, as amended or supplemented, if applicable, will not contain any 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 (ii) the Prospectus does not contain and, as amended or supplemented, if applicable, will not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading, ; provided that the representations foregoing representation and warranties set forth warranty shall apply only to the extent that any statements in this paragraph 2(e) are limited to statements or omissions in the Registration Statement or Prospectus made in reliance upon information relating to the Selling Shareholder furnished to the Company in writing by the Selling Shareholder expressly for use in from the Registration Statement, the Prospectus Prospectus, the Time of Sale Information or any amendments Issuer Free Writing Prospectus, as applicable, are statements or supplements theretoomissions concerning the Selling Shareholder (it being understood that any statements or omissions concerning the Selling Shareholder for the purposes of this Section 6.2(j) refers only to information concerning the Selling Shareholder in his capacity as Selling Shareholder, and not to information concerning the Selling Shareholder in his capacity as an officer or director of the Company).
(k) On the Closing Date (and the Additional Closing Date, if any), all stock transfer and other taxes that are required to be paid in connection with the sale of the shares to be sold by the Selling Shareholder to the Underwriters will have been fully paid by the Selling Shareholder, and all laws imposing such taxes will have been complied with.
Appears in 1 contract
Sources: Underwriting Agreement (American Physicians Service Group Inc)
Representations and Warranties of the Selling Shareholder. The Selling Shareholder represents and warrants to the several Underwriters, as of the date hereof and as of each Closing Date, and agrees with each of the Underwriters several Underwriters, that:
(a) This Agreement has been duly authorized, executed and delivered by or on behalf of the Selling Shareholder.
(b) The execution and delivery by the Selling Shareholder of, and the performance by the Selling Shareholder of its obligations under, this Agreement will not contravene (i) any provision of applicable law, or the memorandum and articles of association of the Selling Shareholder, law or any agreement or other instrument binding upon the Selling Shareholder, (ii) the articles of incorporation or bylaws of the Selling Shareholder or (iii) any judgment, order or decree of any governmental body, agency or court having jurisdiction over the Selling Shareholder, except, with respect to clauses (i) and (iii), as would not, individually or in the aggregate, reasonable be expected to have a material adverse effect on the Selling Shareholder’s ability to perform its obligations under this Agreement, and no consent, approval, authorization or order of, or qualification with, any governmental body body, agency or agency court is required for the performance by the Selling Shareholder of its obligations under this Agreement, except for the registration of the Securities under the Securities Act and such consents, approvals, authorizations, orders, filings, registrations or qualifications as may be required by under the Exchange Act and applicable state or foreign securities or Blue Sky laws of the various states in connection with the offer and sale of the SharesSecurities.
(c) The Selling Shareholder hasis, and on immediately prior to each Closing Date, the Selling Shareholder will be, the record owner of the Securities to be delivered by the Selling Shareholder hereunder at such Closing Date, and the Selling Shareholder has full right, power and authority to enter into this Agreement and to sell, assign and transfer the Ordinary Shares to be delivered by the Selling Shareholder and the Ordinary Shares in the form of ADSs to be delivered by the Selling Shareholder and to deposit with the Depositary the Ordinary Shares to be sold in the form of the Offered ADSs by such Selling Shareholder at such Closing Date.
(d) Upon delivery of and payment for the Securities to the Selling Shareholder at each Closing Date hereunder, the several Underwriters will have, acquire valid title to, or including a valid “security entitlement” within the meaning of Section 8-501 of the New York Uniform Commercial Code (the “UCC”) in respect of, the Shares to be sold by the Selling Shareholder Securities free and clear of all security interestsliens, claims, liensencumbrances, equities or other encumbrances and the legal right and powerclaims, and upon delivery of such Securities and payment therefor pursuant hereto, valid title to such Securities, free and clear of all authorization and approval required by lawliens, encumbrances, equities or claims, will pass to enter into this Agreement and the Underwriters.
(e) The Selling Shareholder will, prior to selleach Closing Date, transfer and deliver deposit the Ordinary Shares to be sold represented by the Selling Shareholder or a security entitlement Offered ADSs with the Depositary in respect accordance with the provisions of the Deposit Agreement and otherwise complies with the Deposit Agreement so that ADSs will be executed (and, if applicable, countersigned) and issued by the Depositary against receipt of such SharesOrdinary Shares and delivered to the Underwriters at such Closing Date.
(df) Upon payment for the Shares to be sold by the The Selling Shareholder has not taken, directly or indirectly, any action that is designed to or that has constituted or would 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 Securities.
(g) The Selling Shareholder has delivered to the Representatives an executed lock-up agreement in substantially the form attached hereto as Exhibit I (the “Lock-up Agreement”).
(h) The Selling Shareholder is not prompted by any information concerning the Company or its subsidiaries which is not set forth in the Registration Statement, the General Disclosure Package or the Prospectus to sell its Securities pursuant to this Agreement, delivery of such Shares, as directed by the Underwriters, to Cede & Co. (“Cede”) or such other nominee as may be designated by the Depository Trust Company (“DTC”), registration of such Shares in the name of Cede or such other nominee and the crediting of such Shares on the books of DTC to securities accounts of the Underwriters (assuming that neither DTC nor any such Underwriter has notice of any adverse claim (within the meaning of Section 8-105 of the UCC) to such Shares), (A) DTC shall be a “protected purchaser” of such Shares within the meaning of Section 8-303 of the UCC, (B) under Section 8-501 of the UCC, the Underwriters will acquire a valid security entitlement in respect of such Shares and (C) no action based on any “adverse claim”, within the meaning of Section 8-102 of the UCC, to such Shares may be asserted against the Underwriters with respect to such security entitlement; for purposes of this representation, the Selling Shareholder may assume that when such payment, delivery and crediting occur, (x) such Shares will have been registered in the name of Cede or another nominee designated by DTC, in each case on the Company’s share register in accordance with its memorandum and articles of association and applicable law, (y) DTC will be registered as a “clearing corporation” within the meaning of Section 8-102 of the UCC and (z) appropriate entries to the accounts of the several Underwriters on the records of DTC will have been made pursuant to the UCC.
(i) The (i) Each part of the Registration Statement, when it such part became effective, did not contain contain, and, as amended or supplemented, if applicable, did not or will not not, as the case may be, contain at the time of such amendment or supplement, any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading, (ii) 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 light of the circumstances under which they were made, not misleading and (iiiii) the Prospectus does not or will not, as the case may be, as of the date of the Prospectus and as at each Closing Date, contain and, as amended or supplemented, if applicable, at the time of such amendment or supplement, will not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading, ; provided that the representations and warranties set forth in this paragraph 2(e3(i) are limited only to statements or omissions in the Registration Statement or Prospectus made in reliance upon information relating to the Selling Shareholder furnished to the Company in writing by the Selling Shareholder expressly for use in the Registration Statement, the General Disclosure Package, the Prospectus or any amendments or supplements thereto, it being understood and agreed that the only such information furnished by the Selling Shareholder consists of Selling Shareholder Information. Each Underwriter, the Company and the Selling Shareholder agree that the “Selling Shareholder Information” with respect to the Selling Shareholder consists solely of the information expressly furnished by the Selling Shareholder for use in connection with the offering the Registration Statement, the General Disclosure Package and the Prospectus, which consists solely of (x) the name, address and number of Ordinary Shares and Restricted Shares owned by the Selling Shareholder, before and after the offering, and (y) the other information with respect to the Selling Shareholder that appears in the table (and corresponding footnotes) under the caption “Selling Securityholder,” in each case, in the Registration Statement, the General Disclosure Package or the Prospectus.
(i) None of the Selling Shareholder, any of its subsidiaries, or any director and officer thereof, nor to the Selling Shareholder’s knowledge any other employee, agent, affiliate, or representative of the Selling Shareholder or any of its subsidiaries, is a Person that is, or is owned or controlled by one or more Persons that are:
(A) the subject of any Sanctions; or
(B) organized or resident in a country or territory that is the subject of comprehensive territorial Sanctions (including, without limitation, the so-called Donetsk People’s Republic, the so-called Luhansk People’s Republic, or any other Covered Region of Ukraine identified pursuant to Executive Order 14065, Crimea, Cuba, Iran, North Korea and Syria).
(ii) The Selling Shareholder and each of its subsidiaries have not for the past five years, engaged in, and are not now engaged in, any dealings or transactions with any Person, or with any country or territory, that at the time of the dealing or transaction is or was the subject of Sanctions, except to the extent permitted by applicable law. It is understood that the Selling Shareholder does not make or repeat, as appropriate, the representation and warranty contained in this Section 3(j)(ii) and/or the representation and warranty given by the Selling Shareholder in Section 3(j)(ii) to the extent that such provisions are or would be unenforceable or would result in a violation of (i) Council Regulation (EC) 2271/96 (including as it forms part of UK domestic law by virtue of the European Union (Withdrawal) Act 2018) and/or any applicable national law or regulation which purports to create liability in respect of such violation in any member state of the European Union or any similar anti-boycott law in the United Kingdom. The representations and warranties given in this clause are only sought by and given to any Underwriter incorporated in or organized under the laws of the Federal Republic of Germany to the extent that to do so would not result in a violation of or a conflict with the German Foreign Trade Regulation (Außenwirtschaftsverordnung – AWV).
(k) The Selling Shareholder will not, directly or indirectly, use the proceeds of the offering, or lend, contribute or otherwise make available such proceeds to any subsidiary, joint venture partner or other Person:
(i) to fund or facilitate any activities or business of or with any Person or in any country or territory that, at the time of such funding or facilitation, is the subject of Sanctions, except to the extent permitted by applicable law;
(ii) fund or facilitate any money laundering or terrorist financing activities; or
(iii) in any other manner that would cause or result in a violation of any applicable Anti-Corruption Laws, Anti-Money Laundering Laws, or Sanctions by any Person (including any Person participating in the offering, whether as underwriter, advisor, investor or otherwise), it being understood that the Selling Shareholder, to the extent it is subject to Council Regulation (EC) 2271/96, does not make or repeat, as appropriate, the representation and warranty contained in this paragraph 3(k) to the extent that this would result in a violation of the EU Blocking Regulation or any law or regulation implementing the EU Blocking Regulation in any member state of the European Union.
(l) For the past five years, none of the Selling Shareholder or any of its subsidiaries, or any director, officer, or employee thereof, or, to the Selling Shareholder’s knowledge, any agent or representative of the Selling Shareholder or of any of its subsidiaries, has (i) taken any action in furtherance of an offer, solicitation, payment, promise to pay, or authorization of any direct or indirect unlawful payment or benefit, to any foreign or domestic government official or employee, including of any government-owned or controlled entity or of a public international organization, or any person acting in an official capacity for or on behalf of any of the foregoing, or any political party or party official or candidate for political office, or (ii) violated (a) the U.S. Foreign Corrupt Practices Act of 1977, (b) the UK Bribery Act 2010 and (c) other than immaterial violations, any other applicable anti-bribery or anti-corruption law.
(m) The operations of the Selling Shareholder and its subsidiaries are and have been conducted at all times in material compliance with all applicable Anti-Money Laundering Laws.
(n) No investigation, inquiry, action, suit or proceeding by or before any court or governmental agency, authority or body or any arbitrator involving the Selling Shareholder or any of its subsidiaries with respect to the Anti-Money Laundering Laws, Anti-Corruption Laws, or Sanctions is pending or, to the knowledge of the Selling Shareholder, threatened. The Selling Shareholder and its subsidiaries and affiliates have instituted and maintained and will continue to maintain policies and procedures reasonably designed to promote and achieve compliance with the Anti-Corruption Laws, the Anti-Money Laundering Laws and Sanctions.
(o) The Selling Shareholder is a “United States person” within the meaning of Section 7701(a)(30) of the United States Internal Revenue Code of 1986, as amended, and is not treated as resident in any non-U.S. jurisdiction for tax purposes (including any double tax treaty arrangement).
(p) The Selling Shareholder (i) has not alone engaged in any Testing-the-Waters Communication with any person other than Testing-the-Waters Communications with the consent of the Representatives with entities that are reasonably believed to be qualified institutional buyers within the meaning of Rule 144A under the Securities Act or institutions that are reasonably believed to be accredited investors within the meaning of Rule 501 under the Securities Act and (ii) has not authorized anyone other than the Representatives to engage in Testing-the-Waters Communications. The Selling Shareholder reconfirms that the Representatives have been authorized to act on its behalf in undertaking Testing-the-Waters Communications. The Selling Shareholder has not distributed or approved any Testing-the-Waters Communication that is a written communication within the meaning of Rule 405 under the Securities Act other than those listed on Schedule C.
Appears in 1 contract
Representations and Warranties of the Selling Shareholder. The --------------------------------------------------------- Selling Shareholder represents and warrants to to, and agrees with with, each of the several Underwriters and the Company that:
(a) This Agreement has been duly authorized, executed and delivered by the Selling Shareholder.
(b) A. The execution and delivery by the Selling Shareholder ofhas full right, power and the performance by the Selling Shareholder of its obligations under, this Agreement will not contravene any provision of applicable law, or the memorandum and articles of association of the Selling Shareholder, or any agreement or other instrument binding upon the Selling Shareholder or any judgment, order or decree of any governmental body, agency or court having jurisdiction over the Selling Shareholder, and no consent, approval, authorization or order of, or qualification with, any governmental body or agency is required for the performance by the Selling Shareholder of its obligations under authority to enter into this Agreement, except such the Power of Attorney and the Custody Agreement (as may be required by hereinafter defined) and to sell, assign, transfer and deliver to the securities or Blue Sky laws of the various states in connection with the offer and sale of the Shares.
(c) The Selling Shareholder has, and on the Closing Date will have, valid title to, or a valid “security entitlement” within the meaning of Section 8-501 of the New York Uniform Commercial Code (the “UCC”) in respect of, Underwriters the Shares to be sold by the Selling Shareholder free and clear of all security interests, claims, liens, equities or other encumbrances hereunder; and the legal right execution and powerdelivery of this Agreement, the Power of Attorney and the Custody Agreement have been duly authorized by all necessary action of the Selling Shareholder.
B. The Selling Shareholder has duly executed and delivered this Agreement, the Power of Attorney and the Custody Agreement, and all authorization each constitutes the valid and approval required by lawbinding agreement of the Selling Shareholder enforceable against the Selling Shareholder in accordance with its terms, subject, as to enforcement, to enter into applicable bankruptcy, insolvency, reorganization and moratorium laws and other laws relating to or affecting the enforcement of creditors' rights generally and to general equitable principles and except to the extent enforcement of the indemnification provisions set forth in Section 8 of this Agreement and to sellmay be limited by federal or state securities laws or public policy underlying such laws.
C. No consent, transfer and deliver approval, authorization, order or declaration of or from, or registration, qualification or filing with, any court or governmental agency or body is required for the sale of the Shares to be sold by the Selling Shareholder or a security entitlement in respect the consummation of the transactions contemplated by this Agreement, the Power of Attorney or the Custody Agreement, except the registration of such SharesShares under the 1933 Act (which, if the Registration Statement is not effective as of the time of execution hereof, shall be obtained as provided in this Agreement) and such as may be required under state securities or blue sky laws in connection with the offer, sale and distribution of such Shares by the Underwriters.
(d) Upon payment for D. The sale of the Shares to be sold by such Selling Shareholder and the performance of this Agreement, the Power of Attorney and the Custody Agreement and the consummation of the transactions herein and therein contemplated will not conflict with, or (with or without the giving of notice or the passage of time or both) result in a breach or violation of any of the terms or provisions of, or constitute a default under, any indenture, mortgage, deed of trust, loan agreement, lease or other agreement or instrument to which the Selling Shareholder pursuant is a party or to this Agreementwhich any of its properties or assets is subject, delivery of nor will such Shares, as directed by the Underwriters, to Cede & Co. (“Cede”) action conflict with or such other nominee as may be designated by the Depository Trust Company (“DTC”), registration of such Shares in the name of Cede or such other nominee and the crediting of such Shares on the books of DTC to securities accounts violate any provision of the Underwriters (assuming that neither DTC nor charter or bylaws or other governing instruments of the Selling Shareholder, if any, or any such Underwriter has notice statute, rule or regulation or any order, judgment or decree of any adverse claim (within court or governmental agency or body having jurisdiction over the meaning of Section 8-105 Selling Shareholder or any of the UCC) to such SharesSelling Shareholder's properties or assets.
E. At the Closing Time (as defined in Section 3 hereof), (A) DTC shall be a “protected purchaser” of such Shares within the meaning of Section 8-303 of the UCC, (B) under Section 8-501 of the UCC, the Underwriters will acquire a valid security entitlement in respect of such Shares and (C) no action based on any “adverse claim”, within the meaning of Section 8-102 of the UCC, to such Shares may be asserted against the Underwriters with respect to such security entitlement; for purposes of this representation, the Selling Shareholder may assume that when such payment, delivery and crediting occur, (x) such Shares will have been registered in the name of Cede or another nominee designated by DTC, in each case on the Company’s share register in accordance with its memorandum good and articles of association and applicable law, (y) DTC will be registered as a “clearing corporation” within the meaning of Section 8-102 of the UCC and (z) appropriate entries valid title to the accounts Selling Shareholder Shares free and clear of all liens, security interests, pledges, charges, encumbrances, defects, shareholders' agreements, voting trusts and claims of any nature whatsoever; and, upon delivery of such Selling Shareholder Shares against payment therefor as provided herein, good and valid title to such Selling Shareholder Shares, free and clear of all liens, security interests, pledges, charges, encumbrances, defects, shareholders' agreements, voting trusts, equities or claims of any nature whatsoever, will pass to the several Underwriters on the records of DTC will have been made pursuant to the UCCUnderwriters.
F. The Selling Shareholder has not (i) The taken, directly or indirectly, any action designed to cause or result in, or that has constituted or might reasonably be expected to constitute, the stabilization or manipulation of the price of any security of the Company to facilitate the sale or resale of the Shares or (ii) since the filing of the Registration StatementStatement (A) sold, when bid for, purchased or paid anyone any compensation for soliciting purchases of, the Shares or (B) paid or agreed to pay to any person any compensation for soliciting another to purchase any other securities of the Company.
G. When any Preliminary Prospectus was filed with the Commission (i) it became effectivecontained all statements required to be stated therein regarding the Selling Shareholder in accordance with, and complied in all material respects regarding the Selling Shareholder with the requirements of, the 1933 Act and the rules and regulations of the Commission thereunder, and (ii) such statements in the Preliminary Prospectus as are made in reliance upon and in conformity with written information furnished to the Company by the Selling Shareholder for use therein did not contain and, as amended or supplemented, if applicable, will not contain include any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading and (ii) the Prospectus does not contain and, as amended or supplemented, if applicable, 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 which they were made, not misleading, provided that the representations and warranties set forth in this paragraph 2(e) are limited to statements or omissions in . When the Registration Statement or Prospectus made in reliance upon information relating any amendment thereto or any 462(b) Registration Statement or any amendment thereto was or is declared effective and at the Closing Time or the Date of Delivery, as the case may be, (i) it contained or will contain all statements required to be stated therein regarding the Selling Shareholder furnished to the Company in writing by accordance with, and complied or will comply in all material respects regarding the Selling Shareholder expressly for use Shareholders with the requirements of, the 1933 Act and the rules and regulations of the Commission thereunder and (ii) such statements in the Registration Statement, any 462(b) Registration Statement or any amendment thereto as are made in reliance upon and in conformity with written information furnished to the Company by the Selling Shareholder specifically for use therein did not or will not include any untrue statement of a material fact or omit to state any material fact necessary to make the statements therein not misleading. When the Prospectus or any amendments amendment or supplements theretosupplement thereto is filed with the Commission 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 amendment thereto containing such amendment or supplement to the Prospectus was or is declared effective), and at the Closing Time or the Date of Delivery, as the case may be, (i) the Prospectus, as amended or supplemented at any such time, contained or will contain all statements required to be stated therein regarding the Selling Shareholder in accordance with, and complied or will comply in all material respects regarding the Selling Shareholder with the requirements of, the 1933 Act and the rules and regulations of the Commission thereunder and (ii) such statements in the Prospectus, as amended or supplemented at any such time, as are made in reliance upon and in conformity with written information furnished to the Company by the Selling Shareholder specifically for use therein 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, in the light of the circumstances under which they were made, not misleading. In order to document the Underwriters' compliance with the reporting and withholding provisions of the Internal Revenue Code of 1986, as amended, with respect to the transactions herein contemplated, the Selling Shareholder agrees to deliver to you prior to or at the Closing Time (as hereinafter defined) a properly completed and executed United States Treasury Department form W-9 (or other applicable form or statement specified by Treasury Department regulations in lieu thereof). The Selling Shareholder represents and warrants that the certificates in negotiable form representing the Selling Shareholder Shares have been placed in custody under a custody agreement (the "Custody Agreement"), in the form heretofore furnished to and approved by you, duly executed and delivered by such Selling Shareholder to Union Planters Bank, N.A. as custodian (the "Custodian"), and that such Selling Shareholder has duly executed and delivered a power of attorney (the "Power of Attorney"), in the form heretofore furnished to and approved by you, appointing ▇▇▇▇▇ ▇. Fair and ▇▇▇▇ ▇. ▇▇▇▇▇▇ as such Selling Shareholder's attorneys-in-fact (the "Attorneys-in-Fact") with authority to execute and deliver this Agreement on behalf of such Selling Shareholder, to determine the purchase price to be paid by the Underwriters to the Selling Shareholder as provided in Section 3 hereof, to authorize the delivery of the Shares to be sold by such Selling Shareholder hereunder and otherwise to act on behalf of such Selling Shareholder in connection with the transactions contemplated by this Agreement and the Custody Agreement. The Selling Shareholder specifically agrees that the Shares represented by the certificates held in custody for the Selling Shareholder under the Custody Agreement are subject to the interests of the Underwriters hereunder, and that the arrangements made by such Selling Shareholder for such custody, and the appointment by the Selling Shareholder of the Attorneys-in-Fact by the Power of Attorney, are irrevocable. The Selling Shareholder specifically agrees that the obligations of the Selling Shareholder hereunder shall not be terminated by operation of law, whether by the dissolution of the Selling Shareholder, or by the occurrence of any other event.
Appears in 1 contract
Representations and Warranties of the Selling Shareholder. The Selling Shareholder represents and warrants to and agrees with each of the Underwriters that:
(a) This Agreement has been duly authorized, executed and delivered by or on behalf of the Selling Shareholder.
(b) The execution and delivery by the Selling Shareholder of, and the performance by the Selling Shareholder of its obligations under, this Agreement will not contravene any provision of applicable law, or the memorandum and articles certificate of association incorporation or by-laws of the Selling ShareholderShareholder (if such Selling Shareholder is a corporation), or any agreement or other instrument binding upon the Selling Shareholder or any judgment, order or decree of any governmental body, agency or court having jurisdiction over the Selling Shareholder, and no consent, approval, authorization or order of, or qualification with, any governmental body or agency is required for the performance by the Selling Shareholder of its obligations under this Agreement, except such as may be required by the securities or Blue Sky laws of the various states in connection with the offer and sale of the Shares.
(c) The Selling Shareholder has, and on the Closing Date will have, valid title to, or have a valid “security entitlement” within the meaning of Section 8-501 102(a)(17) of the New York Uniform Commercial Code (the “UCC”) NY UCC in respect of, of the Shares to be sold by the Selling Shareholder free and clear of all security interests, claims, liens, equities or other encumbrances and the legal right and power, and all authorization and approval required by law, to enter into this Agreement Agreement, and to sell, transfer and deliver the Shares to be sold by the Selling Shareholder or a security entitlement in respect of such SharesShareholder.
(d) Upon payment for the Shares to be sold by the Selling Shareholder pursuant to this Agreement, delivery of such Shares, as directed by the Underwriters, to Cede & Co. (“Cede”) or such other nominee as may be designated by the Depository Trust Company (“DTC”), registration of such Shares in the name of Cede or such other nominee and the crediting of such Shares on the books of DTC the Depository Trust Company (the “DTC”) to securities accounts of the Underwriters and payment therefor by the Underwriters (assuming that neither DTC nor any such no Underwriter has notice of any adverse claim (within the meaning of Section 8-105 of the NY UCC) to such Shares), (A) DTC shall be a “protected purchaser” of such Shares within the meaning of Section 8-303 of the UCC, (B) under Section 8-501 of the NY UCC, the Underwriters will acquire a valid security entitlement in respect of such Shares and (CB) no action based on any “adverse claim”, within the meaning of Section 8-102 of the NY UCC, to such Shares may be asserted against the Underwriters with respect to such security entitlement; for purposes of this representation, the Selling Shareholder may assume that when such payment, delivery and crediting occur, (x) such Shares will have been registered in the name of Cede or another nominee designated by DTC, in each case on the Company’s share register in accordance with its memorandum and articles of association and applicable law, (yi) DTC will be registered as a “clearing corporation” within the meaning of Section 8-102 of the NY UCC and (zii) appropriate entries to the accounts of the several Underwriters on the records of DTC will have been made pursuant to the NY UCC.
(e) The Selling Shareholder has not taken and will not take, directly or indirectly, any action which is designed to or which has constituted or which might reasonably be expected to cause or result in stabilization or manipulation of the price of any security of the Company to facilitate the sale or resale of the Securities.
(i) The Registration Statement, when it became effective, did not contain and, as amended or supplemented, if applicable, will not contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading and (ii) the Prospectus does not contain and, as amended or supplemented, if applicable, will not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading, ; provided that the representations and warranties set forth in this paragraph 2(e2(f) are limited apply only to statements or omissions in the Registration Statement or Prospectus made in reliance upon and in conformity with information relating to the Selling Shareholder furnished to the Company in writing by the Selling Shareholder (or on the Selling Shareholder’s behalf) to the Company or the Managers expressly for use in the Registration Statement, any preliminary prospectus, the Prospectus or any amendments or supplements thereto.
Appears in 1 contract
Representations and Warranties of the Selling Shareholder. The Selling Shareholder represents and warrants to the several Underwriters, as of the date hereof and as of each Closing Date, and agrees with each of the Underwriters several Underwriters, that:
(a) This Agreement has been duly authorized, executed and delivered by or on behalf of the Selling Shareholder.
(b) The execution and delivery by the Selling Shareholder of, and the performance by the Selling Shareholder of its obligations under, this Agreement will not contravene (i) any provision of applicable law, or the memorandum and articles of association of the Selling Shareholder, law or any agreement or other instrument binding upon the Selling Shareholder, (ii) the articles of incorporation or bylaws of the Selling Shareholder or (iii) any judgment, order or decree of any governmental body, agency or court having jurisdiction over the Selling Shareholder, except, with respect to clauses (i) and (iii), as would not, individually or in the aggregate, reasonable be expected to have a material adverse effect on the Selling Shareholder’s ability to perform its obligations under this Agreement, and no consent, approval, authorization or order of, or qualification with, any governmental body body, agency or agency court is required for the performance by the Selling Shareholder of its obligations under this Agreement, except for the registration of the Securities under the Securities Act and such consents, approvals, authorizations, orders, filings, registrations or qualifications as may be required by under the Exchange Act and applicable state or foreign securities or Blue Sky laws of the various states in connection with the offer and sale of the SharesSecurities.
(c) The Selling Shareholder hasis, and on immediately prior to each Closing Date, the Selling Shareholder will be, the record owner of the Securities to be delivered by the Selling Shareholder hereunder at such Closing Date, and the Selling Shareholder has full right, power and authority to enter into this Agreement and to sell, assign and transfer the Ordinary Shares to be delivered by the Selling Shareholder and the Ordinary Shares in the form of ADSs to be delivered by the Selling Shareholder and to deposit with the Depositary the Ordinary Shares to be sold in the form of the Offered ADSs by such Selling Shareholder at such Closing Date.
(d) Upon delivery of and payment for the Securities to the Selling Shareholder at each Closing Date hereunder, the several Underwriters will have, acquire valid title to, or including a valid “security entitlement” within the meaning of Section 8-501 of the New York Uniform Commercial Code (the “UCC”) in respect of, the Shares to be sold by the Selling Shareholder Securities free and clear of all security interestsliens, claims, liensencumbrances, equities or other encumbrances and the legal right and powerclaims, and upon delivery of such Securities and payment therefor pursuant hereto, valid title to such Securities, free and clear of all authorization and approval required by lawliens, encumbrances, equities or claims, will pass to enter into this Agreement and the Underwriters.
(e) The Selling Shareholder will, prior to selleach Closing Date, transfer and deliver deposit the Ordinary Shares to be sold represented by the Selling Shareholder or a security entitlement Offered ADSs with the Depositary in respect accordance with the provisions of the Deposit Agreement and otherwise complies with the Deposit Agreement so that ADSs will be executed (and, if applicable, countersigned) and issued by the Depositary against receipt of such SharesOrdinary Shares and delivered to the Underwriters at such Closing Date.
(df) Upon payment for the Shares to be sold by the The Selling Shareholder has not taken, directly or indirectly, any action that is designed to or that has constituted or would 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 Securities.
(g) The Selling Shareholder has delivered to the Representatives an executed lock-up agreement in substantially the form attached hereto as Exhibit I (the “Lock-up Agreement”).
(h) The Selling Shareholder is not prompted by any information concerning the Company or its subsidiaries which is not set forth in the Registration Statement, the General Disclosure Package or the Prospectus to sell its Securities pursuant to this Agreement, delivery of such Shares, as directed by the Underwriters, to Cede & Co. (“Cede”) or such other nominee as may be designated by the Depository Trust Company (“DTC”), registration of such Shares in the name of Cede or such other nominee and the crediting of such Shares on the books of DTC to securities accounts of the Underwriters (assuming that neither DTC nor any such Underwriter has notice of any adverse claim (within the meaning of Section 8-105 of the UCC) to such Shares), (A) DTC shall be a “protected purchaser” of such Shares within the meaning of Section 8-303 of the UCC, (B) under Section 8-501 of the UCC, the Underwriters will acquire a valid security entitlement in respect of such Shares and (C) no action based on any “adverse claim”, within the meaning of Section 8-102 of the UCC, to such Shares may be asserted against the Underwriters with respect to such security entitlement; for purposes of this representation, the Selling Shareholder may assume that when such payment, delivery and crediting occur, (x) such Shares will have been registered in the name of Cede or another nominee designated by DTC, in each case on the Company’s share register in accordance with its memorandum and articles of association and applicable law, (y) DTC will be registered as a “clearing corporation” within the meaning of Section 8-102 of the UCC and (z) appropriate entries to the accounts of the several Underwriters on the records of DTC will have been made pursuant to the UCC.
(i) The (i) Each part of the Registration Statement, when it such part became effective, did not contain contain, and, as amended or supplemented, if applicable, did not or will not not, as the case may be, contain at the time of such amendment or supplement, any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading, (ii) 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 light of the circumstances under which they were made, not misleading and (iiiii) the Prospectus does not or will not, as the case may be, as of the date of the Prospectus and as at each Closing Date, contain and, as amended or supplemented, if applicable, at the time of such amendment or supplement, will not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading, ; provided that the representations and warranties set forth in this paragraph 2(e3(h) are limited only to statements or omissions in the Registration Statement or Prospectus made in reliance upon information relating to the Selling Shareholder furnished to the Company in writing by the Selling Shareholder expressly for use in the Registration Statement, the General Disclosure Package, the Prospectus or any amendments or supplements thereto, it being understood and agreed that the only such information furnished by the Selling Shareholder consists of Selling Shareholder Information. Each Underwriter, the Company and the Selling Shareholder agree that the “Selling Shareholder Information” with respect to the Selling Shareholder consists solely of the information expressly furnished by the Selling Shareholder for use in connection with the offering the Registration Statement, the General Disclosure Package and the Prospectus, which consists solely of (x) the name, address and number of Ordinary Shares and Restricted Shares owned by the Selling Shareholder, before and after the offering, and (y) the other information with respect to the Selling Shareholder that appears in the table (and corresponding footnotes) under the caption “Selling Securityholder,” in each case, in the Registration Statement, the General Disclosure Package or the Prospectus.
(i) None of the Selling Shareholder, any of its subsidiaries, or any director and officer thereof, nor to the Selling Shareholder’s knowledge any other employee, agent, affiliate, or representative of the Selling Shareholder or any of its subsidiaries, is a Person that is, or is owned or controlled by one or more Persons that are:
(A) the subject of any Sanctions; or
(B) organized or resident in a country or territory that is the subject of comprehensive territorial Sanctions (including, without limitation, the so-called Donetsk People’s Republic, the so-called Luhansk People’s Republic, or any other Covered Region of Ukraine identified pursuant to Executive Order 14065, Crimea, Cuba, Iran, North Korea and Syria).
(ii) The Selling Shareholder and each of its subsidiaries have not for the past five years, engaged in, and are not now engaged in, any dealings or transactions with any Person, or with any country or territory, that at the time of the dealing or transaction is or was the subject of Sanctions, except to the extent permitted by applicable law. It is understood that the Selling Shareholder does not make or repeat, as appropriate, the representation and warranty contained in this Section 3(j)(ii) and/or the representation and warranty given by the Selling Shareholder in Section 3(j)(ii) to the extent that such provisions are or would be unenforceable or would result in a violation of (i) Council Regulation (EC) 2271/96 (including as it forms part of UK domestic law by virtue of the European Union (Withdrawal) Act 2018) and/or any applicable national law or regulation which purports to create liability in respect of such violation in any member state of the European Union or any similar anti-boycott law in the United Kingdom. The representations and warranties given in this clause are only sought by and given to any Underwriter incorporated in or organized under the laws of the Federal Republic of Germany to the extent that to do so would not result in a violation of or a conflict with the German Foreign Trade Regulation (Außenwirtschaftsverordnung – AWV).
(k) The Selling Shareholder will not, directly or indirectly, use the proceeds of the offering, or lend, contribute or otherwise make available such proceeds to any subsidiary, joint venture partner or other Person:
(i) to fund or facilitate any activities or business of or with any Person or in any country or territory that, at the time of such funding or facilitation, is the subject of Sanctions, except to the extent permitted by applicable law;
(ii) fund or facilitate any money laundering or terrorist financing activities; or
(iii) in any other manner that would cause or result in a violation of any applicable Anti-Corruption Laws, Anti-Money Laundering Laws, or Sanctions by any Person (including any Person participating in the offering, whether as underwriter, advisor, investor or otherwise), it being understood that the Selling Shareholder, to the extent it is subject to Council Regulation (EC) 2271/96, does not make or repeat, as appropriate, the representation and warranty contained in this paragraph 3(k) to the extent that this would result in a violation of the EU Blocking Regulation or any law or regulation implementing the EU Blocking Regulation in any member state of the European Union.
(l) For the past five years, none of the Selling Shareholder or any of its subsidiaries, or any director, officer, or employee thereof, or, to the Selling Shareholder’s knowledge, any agent or representative of the Selling Shareholder or of any of its subsidiaries, has (i) taken any action in furtherance of an offer, solicitation, payment, promise to pay, or authorization of any direct or indirect unlawful payment or benefit, to any foreign or domestic government official or employee, including of any government-owned or controlled entity or of a public international organization, or any person acting in an official capacity for or on behalf of any of the foregoing, or any political party or party official or candidate for political office, or (ii) violated (a) the U.S. Foreign Corrupt Practices Act of 1977, (b) the UK Bribery Act 2010 and (c) other than immaterial violations, any other applicable anti-bribery or anti-corruption law.
(m) The operations of the Selling Shareholder and its subsidiaries are and have been conducted at all times in material compliance with all applicable Anti-Money Laundering Laws.
(n) No investigation, inquiry, action, suit or proceeding by or before any court or governmental agency, authority or body or any arbitrator involving the Selling Shareholder or any of its subsidiaries with respect to the Anti-Money Laundering Laws, Anti-Corruption Laws, or Sanctions is pending or, to the knowledge of the Selling Shareholder, threatened. The Selling Shareholder and its subsidiaries and affiliates have instituted and maintained and will continue to maintain policies and procedures reasonably designed to promote and achieve compliance with the Anti-Corruption Laws, the Anti-Money Laundering Laws and Sanctions.
(o) The Selling Shareholder is a “United States person” within the meaning of Section 7701(a)(30) of the United States Internal Revenue Code of 1986, as amended, and is not treated as resident in any non-U.S. jurisdiction for tax purposes (including any double tax treaty arrangement).
(p) The Selling Shareholder (i) has not alone engaged in any Testing-the-Waters Communication with any person other than Testing-the-Waters Communications with the consent of the Representatives with entities that are reasonably believed to be qualified institutional buyers within the meaning of Rule 144A under the Securities Act or institutions that are reasonably believed to be accredited investors within the meaning of Rule 501 under the Securities Act and (ii) has not authorized anyone other than the Representatives to engage in Testing-the-Waters Communications. The Selling Shareholder reconfirms that the Representatives have been authorized to act on its behalf in undertaking Testing-the-Waters Communications. The Selling Shareholder has not distributed or approved any Testing-the-Waters Communication that is a written communication within the meaning of Rule 405 under the Securities Act other than those listed on Schedule C.
Appears in 1 contract
Sources: Underwriting Agreement (Anheuser-Busch InBev SA/NV)
Representations and Warranties of the Selling Shareholder. The Selling Shareholder represents and warrants to and agrees with each of the Underwriters that:
(a) This Agreement has been duly authorized, executed and delivered by or on behalf of the Selling Shareholder.
(b) The deposit of the Underlying Shares by the Selling Shareholder with the Depositary against issuance of the ADRs evidencing the ADSs to be delivered by the Selling Shareholder and the execution and delivery by the Selling Shareholder of, and the performance by the Selling Shareholder of its obligations under, this Agreement will not contravene any provision of applicable law, or the memorandum and certificate of incorporation or articles of association (vedtekter) of the Selling Shareholder, or any agreement or other instrument binding upon the Selling Shareholder or any judgment, order or decree of any governmental body, agency or court having jurisdiction over the Selling Shareholder, and no consent, approval, authorization or order of, or qualification with, any governmental body or agency is required for the performance by the Selling Shareholder of its obligations under this Agreement, except such as may be required by the securities or Blue Sky laws of the various states in connection with the offer and sale of the SharesSecurities.
(c) The Selling Shareholder has, beneficially owns and on the Closing Date will have, beneficially own or has and will have on the Closing Date a valid title to, or a valid “security entitlement” within the meaning of Section 8-501 of the New York Uniform Commercial Code (the “UCC”) in respect of, the Underlying Shares to be represented by the ADSs to be sold by the Selling Shareholder hereunder, free and clear of all security interests, claims, liens, equities or other encumbrances encumbrances; and the Selling Shareholder has the legal right and power, and all authorization and approval required by law, to enter into the Deposit Agreement and to deposit the Underlying Shares with the Depositary against the issuance of the ADRs evidencing the ADSs to be delivered by the Selling Shareholder.
(d) The Selling Shareholder has the legal right and power, and all authorization and approval required by law, to enter into this Agreement and to sell, transfer and deliver the Shares Securities to be sold by the Selling Shareholder or a security entitlement in respect of such SharesSecurities.
(de) Upon payment for The ADSs representing the Underlying Shares to be sold by were deposited in accordance with the Selling Shareholder pursuant to this Agreementprovisions of the Deposit Agreement and were duly issued, and, upon the sale and delivery of such Shares, as directed the ADRs to the person(s) procured by the Underwriters, the person(s) in whose name(s) the ADRs are registered will be entitled to Cede & Co. the rights in the ADSs representing the Underlying Shares specified in the Deposit Agreement.
(“Cede”f) No stamp, documentary, issuance, registration, transfer, withholding, capital gains, income or such other nominee as may be designated taxes or duties are payable by or on behalf of the Underwriters, the Company or any of its subsidiaries in Norway or to any taxing authority thereof or therein in connection with (i) the execution, delivery or consummation of this Agreement, (ii) the sale and delivery of the Securities to the Underwriters or purchasers procured by the Depository Trust Company Underwriters, or (“DTC”), registration iii) the resale and delivery of such Shares the Securities by the Underwriters in the name of Cede manner contemplated herein.
(g) The statements set forth under the heading “Material U.S. Federal Income Tax Considerations” in the Registration Statement or such other nominee and the crediting of such Shares on the books of DTC to securities accounts of the Underwriters (assuming that neither DTC nor any such Underwriter has notice of any adverse claim (within the meaning of Section 8-105 of the UCC) to such Shares), (A) DTC shall be a “protected purchaser” of such Shares within the meaning of Section 8-303 of the UCC, (B) under Section 8-501 of the UCC, the Underwriters will acquire a valid security entitlement in respect of such Shares and (C) no action based on any “adverse claim”, within the meaning of Section 8-102 of the UCCamendment thereto, to such Shares may be asserted against the Underwriters extent that they relate to matters of U.S. federal income tax law and legal conclusions with respect thereto, other than the statements under the heading “Passive Investment Company Rules” relating to such security entitlement; for purposes of this representation, the Selling Shareholder may assume that when such payment, delivery and crediting occur, (x) such Shares will have been registered in the name of Cede or another nominee designated by DTC, in each case on the Company’s share register status under the U.S. federal income tax rules defining the term “passive foreign investment company”, to the extent that they relate to matters of U.S. federal income tax law and legal conclusions with respect thereto, are accurate and complete in accordance with its memorandum and articles of association and applicable law, all material respects.
(yh) DTC will be registered as The Selling Shareholder Information in the Registration Statement or any amendment thereof constitutes a “clearing corporation” within the meaning of Section 8-102 fair summary of the UCC and (z) appropriate entries to the accounts of the several Underwriters on the records of DTC will have been made pursuant to the UCCmatters described therein.
(i) The Selling Shareholder has the power to submit, and pursuant to Section 19(a) has, to the extent permitted by law, legally, validly, effectively and irrevocably submitted, to the jurisdiction of the Specified Courts, and has the power to designate, appoint and empower, and pursuant to Section 19(c), has legally, validly and effectively designated, appointed and empowered an agent for service of process in any suit or proceeding based on or arising under this Agreement in any of the Specified Courts.
(j) The Selling Shareholder has no reason to believe that the representations and warranties of the Company contained in Section 1 are not true and correct, is familiar with the Registration Statement, the Time of Sale Prospectus and the Prospectus and has no knowledge of any material fact, condition or information not disclosed in the Time of Sale Prospectus that has had, or may have, a Material Adverse Effect.
(k) (i) Each document, if any, filed or to be filed pursuant to the Exchange Act and incorporated by reference in the Time of Sale Prospectus or the Prospectus complied or will comply when so filed in all material respects with the Exchange Act and the applicable rules and regulations of the Commission thereunder, (ii) each of the Registration Statement and the ADR Registration Statement, when it became effective, did not contain and, as amended or supplemented, if applicable, will not contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading, (iii) the Registration Statement, the ADR Registration Statement and the Prospectus comply and, as amended or supplemented, if applicable, will comply in all material respects with the Securities Act and the applicable rules and regulations of the Commission thereunder, (iv) the Time of Sale Prospectus does not, and at the time of each sale of the Securities in connection with the offering when the Prospectus is not yet available to prospective purchasers and at the Closing Date (as defined in Section 5), the Time of Sale Prospectus, as then amended or supplemented by the Company, if applicable, will not, contain any 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, (v) each live road show, if any, when considered together with the Time of Sale Prospectus, does not contain any 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 and (iivi) the Prospectus does not contain and, as amended or supplemented, if applicable, will not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading, provided except that the representations and warranties set forth in this paragraph 2(e2(j) are limited do not apply to statements or omissions in the Registration Statement or the Prospectus made in reliance based upon information relating to the Selling Shareholder any Underwriter furnished to the Company in writing by such Underwriter through you expressly for use therein.
(i) None of the Selling Shareholder expressly for or any of its subsidiaries, or, to the knowledge of the Selling Shareholder, any director, officer, employee, agent, representative, affiliate thereof, or other person associated with or acting on behalf of the Selling Shareholder or any of its subsidiaries, is a Person that is, or is owned or controlled by a Sanctioned Person, or located, organized or resident in a Sanctioned Country.
(ii) The Selling Shareholder will not, directly or indirectly, use the proceeds of the offering, or lend, contribute or otherwise make available such proceeds to any subsidiary, joint venture partner or other Person:
(A) to fund or facilitate any activities or business of or with any Sanctioned Person or in Sanctioned Countries; or
(B) in any other manner that will result in a violation of sanctions laws by any Person (including any Person participating in the Registration Statementoffering, whether as underwriter, advisor, investor or otherwise).
(iii) For the past five years, the Prospectus Selling Shareholder and its subsidiaries have not knowingly engaged in, are not now knowingly engaged in, and will not engage in, any dealings or transactions with any Sanctioned Person, or Sanctioned Country, other than such limited telecommunications-related transactions with Sanctioned Countries as are permitted under the terms of the relevant Sanctions (including, without limitation, those transactions disclosed in VimpelCom’s Annual Report on Form 20-F for the fiscal year ended December 31, 2015).
(iv) (a) None of the Selling Shareholder or its subsidiaries, or, to the knowledge of the Selling Shareholder, any director, officer, employee, agent, representative, affiliate thereof, or other person associated with or acting on behalf of the Selling Shareholder has taken or will take any action in furtherance of an offer, payment, promise to pay, or authorization or approval of the payment, giving or receipt of money, property, gifts or anything else of value, directly or indirectly, to any Government Official in order to influence official action, or to any person in violation of any applicable Anti-Corruption Laws; (b) the Selling Shareholder and its subsidiaries have conducted their businesses in compliance with applicable Anti-Corruption Laws and have instituted and maintained, and will continue to maintain, policies and procedures reasonably designed to promote and achieve compliance with such laws and with the representations and warranties contained herein and (c) neither the Selling Shareholder nor any of its subsidiaries will use, directly or indirectly, the proceeds of the offering in furtherance of an offer, payment, promise to pay, or authorization of the payment or giving of money, or anything else of value, to any person in violation of any applicable Anti-Corruption Laws.
(v) The operations of the Selling Shareholder and its subsidiaries are and have been conducted at all times in compliance with all applicable Anti-Money Laundering Laws, and no action, suit or proceeding by or before any court or governmental agency, authority or body or any amendments arbitrator involving the Selling Shareholder or supplements theretoany of its subsidiaries with respect to the Anti-Money Laundering Laws is pending or, to the best knowledge of the Selling Shareholder, threatened.
(m) This Agreement is in proper form under the laws of Norway for the enforcement thereof against the Selling Shareholder, and to ensure the legality, validity, enforceability or admissibility into evidence in Norway of this Agreement.
(n) The courts of Norway would recognize as a valid judgment any final monetary judgment relating to the Agreement obtained against the Selling Shareholder in the courts of the State of New York.
(o) Neither the Selling Shareholder nor any of its subsidiaries nor any of its or their properties or assets has any immunity from the jurisdiction of any court or from any legal process (whether through service or notice, attachment prior to judgment, attachment in aid of execution or otherwise) under the laws of Norway. The irrevocable and unconditional waiver and agreement of the Selling Shareholder contained in Section 19(a) not to plead or claim any such immunity in any legal action, suit or proceeding based on this Agreement is valid and binding under the laws of Norway.
(p) The choice of law of the State of New York as the governing law of this Agreement is a valid choice of law under the laws of Norway and will be honored by the courts of Norway.
Appears in 1 contract
Sources: Underwriting Agreement (Telenor East Holding II As)
Representations and Warranties of the Selling Shareholder. The Selling Shareholder represents and warrants to and agrees with each of the Underwriters Underwriter that:
(a) This Agreement has been duly authorized, executed and delivered The Selling Shareholder is the sole record owner of the Shares to be sold by such Selling Shareholder under this Agreement; upon delivery of the Shares to be sold by the Selling Shareholder under this Agreement and payment of the purchase price therefor as contemplated by this Agreement, assuming the Underwriters have purchased the Shares for value in good faith and without notice of any adverse claim or actual knowledge of a restriction on transfer, the Underwriters will have acquired all rights of such Selling Shareholder in the Shares free of any adverse claim, any lien in favor of the Company and any restrictions on transfer imposed by the Company. The owner of the Shares, if other than such Selling Shareholder, is precluded from asserting against the Underwriters the ineffectiveness of any unauthorized endorsement or instruction, assuming the Underwriters purchased the Shares for value in good faith and without notice of any adverse claim.
(b) The execution Upon delivery of and delivery payment for the Shares to be sold by the Selling Shareholder of, and the performance by the Selling Shareholder of its obligations under, this Agreement will not contravene any provision of applicable law, or the memorandum and articles of association of the Selling Shareholder, or any agreement or other instrument binding upon the Selling Shareholder or any judgment, order or decree of any governmental body, agency or court having jurisdiction over the Selling Shareholder, and no consent, approval, authorization or order of, or qualification with, any governmental body or agency is required for the performance by the Selling Shareholder of its obligations under Company pursuant to this Agreement, except good and marketable title to such as may Shares will pass to the Underwriters, free and clear of all restrictions on transfer, liens, encumbrances, security interests and claims whatsoever other than pursuant to the Shareholders' Agreement, which, with respect to the Firm Shares, will be required by the securities or Blue Sky laws of the various states in connection with the offer and sale of the Sharesterminated concurrently therewith.
(c) The Selling Shareholder has, and on the Closing Date will have, valid title tofull legal right and authority to enter into this Agreement, or a valid “security entitlement” within and to sell, assign, transfer and deliver such Shares in the meaning of Section 8-501 of the New York Uniform Commercial Code (the “UCC”) in respect ofmanner provided herein, the Shares to be sold and this Agreement has been duly authorized, executed and delivered by the Selling Shareholder free and clear of all security interests, claims, liens, equities or other encumbrances and the legal right and power, and all authorization and approval required by law, to enter into this Agreement is a valid and to sell, transfer and deliver the Shares to be sold by binding agreement of the Selling Shareholder enforceable in accordance with its terms, except as rights to indemnity and contribution hereunder may be limited by applicable law or public policy grounds, and except as enforcement (i) may be limited by bankruptcy, insolvency, reorganization or other similar laws affecting creditors' rights generally and (ii) is subject to general principles of equity and public policy (regardless of whether such enforceability is considered in a security entitlement proceeding in respect of such Sharesequity or at law).
(d) Upon payment for Other than as contemplated by this Agreement, the Selling Shareholder has not taken, and will not take, directly or indirectly, any action designed to, or which might 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 Shares pursuant to be sold the distribution contemplated by this Agreement, and other than as permitted by the Act, the Selling Shareholder has not distributed and will not distribute any prospectus or other offering material in connection with the offering and sale of the Shares.
(e) The execution, delivery and performance of this Agreement by the Selling Shareholder, compliance by the Selling Shareholder pursuant to this Agreementwith all the provisions hereof and the consummation of the transactions contemplated hereby will not require any consent, delivery approval, authorization or other order of any court, regulatory body, administrative agency or other governmental body (except as such Shares, as directed by the Underwriters, to Cede & Co. (“Cede”) or such other nominee as may be designated required under (i) the Act, (ii) the Exchange Act of 1934, or (iii) the securities or Blue Sky laws of the various states) and will not conflict with or constitute a breach of any of the terms or provisions of, or a default under, or any agreement, indenture or other instrument to which the Selling Shareholder is a party or by which the Depository Trust Company Selling Shareholder or property of the Selling Shareholder is bound, or violate or conflict with any laws, administrative regulation or ruling or court decree applicable to the Selling Shareholder or property of the Selling Shareholder.
(“DTC”f) Such parts of the Registration Statement under the caption "Principal and Selling Shareholders" which specifically relate to the Selling Shareholder do not, and will not on the Closing Date (and any Option Closing Date, if applicable), registration contain any untrue statement of such Shares a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein, in light of circumstances under which they were made, not misleading.
(g) At any time during the period described in paragraph 5(e) hereof, if there is any change in the name of Cede or such other nominee and information referred to in paragraph 7(f) above, except as contemplated in the crediting of such Shares on the books of DTC to securities accounts of the Underwriters (assuming that neither DTC nor any such Underwriter has notice of any adverse claim (within the meaning of Section 8-105 of the UCC) to such Shares), (A) DTC shall be a “protected purchaser” of such Shares within the meaning of Section 8-303 of the UCC, (B) under Section 8-501 of the UCC, the Underwriters will acquire a valid security entitlement in respect of such Shares and (C) no action based on any “adverse claim”, within the meaning of Section 8-102 of the UCC, to such Shares may be asserted against the Underwriters with respect to such security entitlement; for purposes of this representationProspectus, the Selling Shareholder may assume that when will immediately notify you of such payment, delivery and crediting occur, (x) such Shares will have been registered in the name of Cede or another nominee designated by DTC, in each case on the Company’s share register in accordance with its memorandum and articles of association and applicable law, (y) DTC will be registered as a “clearing corporation” within the meaning of Section 8-102 of the UCC and (z) appropriate entries to the accounts of the several Underwriters on the records of DTC will have been made pursuant to the UCCchange.
(ih) The To the best knowledge of the Selling Shareholder, the representations and warranties of the Company contained in Section 6 hereof are true and correct; the Selling Shareholder has reviewed and is familiar with the Registration StatementStatement as filed with the Commission and any preliminary prospectuses contained therein and has no knowledge of any material fact, when it became effectivecondition or information not disclosed in such preliminary prospectus which has adversely affected or could adversely affect the condition, did not contain andfinancial or otherwise, or the earnings, business affairs, or business prospects of the Company and its subsidiaries considered as amended or supplementedone enterprise; to the best knowledge of the Selling Shareholder, if applicable, will such preliminary prospectuses do not contain any untrue statement of a material fact or omit to state a any material fact required to be stated therein or necessary to make the statements therein not misleading and (ii) the Prospectus does not contain and, as amended or supplemented, if applicable, will not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading, provided that the representations and warranties set forth in this paragraph 2(e) are limited to statements or omissions in the Registration Statement or Prospectus made in reliance upon information relating to the Selling Shareholder furnished to the Company in writing by the Selling Shareholder expressly for use in the Registration Statement, the Prospectus or any amendments or supplements thereto.
Appears in 1 contract
Representations and Warranties of the Selling Shareholder. The Selling Shareholder represents and warrants to to, and agrees with with, each of the Underwriters that:Underwriter as set forth below in this Section 2.
(a) This Agreement has been duly authorized, executed and delivered by the or on behalf of such Selling Shareholder.
(b) The execution Immediately following the IPO Conversion and delivery by the conversion of multiple voting shares into subordinate voting shares, such Selling Shareholder of, shall have good and valid title to the performance Securities to be sold by the Selling Shareholder of its obligations under, this Agreement will not contravene any provision of applicable law, or the memorandum and articles of association of the Selling Shareholder, or any agreement or other instrument binding upon the Selling Shareholder or any judgment, order or decree of any governmental body, agency or court having jurisdiction over the Selling Shareholder, and no consent, approval, authorization or order of, or qualification with, any governmental body or agency is required for the performance by the Selling Shareholder of its obligations under it pursuant to this Agreement, except such as may be required by the securities or Blue Sky laws free and clear of the various states in connection with the offer and sale of the Sharesall Liens.
(c) The Selling Shareholder has, and on Upon payment for the Closing Date will have, valid title to, or a valid “security entitlement” within the meaning of Section 8-501 of the New York Uniform Commercial Code (the “UCC”) in respect of, the Shares Securities to be sold by the Selling Shareholder free and clear of all security interests, claims, liens, equities or other encumbrances and the legal right and power, and all authorization and approval required by law, to enter into this Agreement and to sell, transfer and deliver the Shares to be sold by the Selling Shareholder or a security entitlement in respect of such Shares.
(d) Upon payment for the Shares to be sold by the Selling Shareholder pursuant to this Agreement, delivery of such SharesSecurities, as directed by the UnderwritersRepresentatives, to Cede & Co. (“Cede”) or such other nominee as may be designated by the The Depository Trust Company (“DTC”) or CDS Clearing and Depository Services Inc. (“CDS”), as applicable, registration of such Shares Securities in the name of Cede or such other nominee and the crediting of such Shares Securities on the books of DTC or CDS to the securities accounts account of the Underwriters (assuming that neither DTC DTC, CDS nor any such Underwriter the Underwriters has notice of any adverse claim (within the meaning of Section 8-105 of the New York Uniform Commercial Code (the “UCC”)) to such SharesSecurities), (A) DTC or CDS, as applicable, shall be a “protected purchaser” of such Shares Securities within the meaning of Section 8-303 of the UCC, (B) under Section 8-501 of the UCC, the Underwriters will acquire a valid security entitlement in respect of such Shares and Securities, (C) no action based on any “adverse claim”, within the meaning of Section 8-102 of the UCC, to such Shares Securities may be asserted against the Underwriters with respect to such security entitlement; and (D) the Underwriters will otherwise acquire good and valid title to such Securities free and clear of all Liens; for purposes of this representation, the such Selling Shareholder may assume that when such payment, delivery and crediting occur, (x) such Shares Securities will have been registered in the name of Cede or another nominee designated by DTCDTC or CDS, in each case on the Company’s share register registry in accordance with its memorandum and articles of association articles, bylaws and applicable law, (y) DTC or CDS, as applicable, will be registered as a “clearing corporation” within the meaning of Section 8-102 of the UCC and (z) appropriate entries entry to the accounts account of the several Underwriters on the records of DTC or CDS, as applicable, will have been made pursuant to the UCC.
(d) The execution and delivery by such Selling Shareholder of, and the performance by such Selling Shareholder of its obligations under, this Agreement will not contravene or conflict with, result in a breach of, or constitute a default (or, with the giving of notice or lapse of time, would be in default) under, or require the consent of any other party to, (i) The the [articles, by-laws, limited partnership agreement, limited liability company agreement or other organizational documents], as the case may be, of such Selling Shareholder, (ii) any other agreement or instrument to which such Selling Shareholder is a party or by which it is bound or (iii) any provision of applicable law or any judgment, order, decree or regulation applicable to such Selling Shareholder of any court, regulatory body, administrative agency, governmental body or arbitrator having jurisdiction over such Selling Shareholder, except, in the case of the foregoing clauses (ii) and (iii) as would not, individually or in the aggregate, reasonably be expected to materially impact such Selling Shareholder’s ability to perform its obligations under this Agreement. No consent, approval, authorization or other order of, or registration or filing with, any court or other governmental authority or agency, is required for the consummation by such Selling Shareholder of the transactions contemplated in this Agreement, except such as may be required under the Securities Act, applicable state securities or blue sky laws and from the FINRA and such other approvals as have been or will be made or obtained on or prior to the Closing Date.
(e) All information furnished to the Company or the Underwriters by or on behalf of such Selling Shareholder in writing expressly for use in the Registration Statement, when it became effectivethe Disclosure Package and the Prospectuses is, and on the Closing Date will be, true, correct and complete in all material respects, and did not contain andnot, and as amended or supplementedof the Closing Date will not, if applicable, will not contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading and (ii) the Prospectus does not contain and, as amended or supplemented, if applicable, will not contain any 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, such information not misleading, provided it being understood and agreed that the representations and warranties set forth in this paragraph 2(e) are limited only such information consists of the information with respect to statements or omissions in the Registration Statement or Prospectus made in reliance upon information relating to the such Selling Shareholder furnished to under the Company in writing by the caption “Principal and Selling Shareholder expressly for use Shareholders” in the Registration Statement, the Prospectus Pricing Disclosure Package and the Prospectuses (such information, the “Selling Shareholder Information”).
(f) Prior to the completion of the Underwriters’ distribution of the Securities, such Selling Shareholder has not distributed and will not distribute any offering material in connection with the offering and sale of the Securities other than the Disclosure Package and the Prospectuses.
(g) Such Selling Shareholder has not taken and will not take, directly or indirectly, any amendments action that is designed to or supplements theretothat has constituted or that might 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 Securities. Any certificate signed by or on behalf of such Selling Shareholder and delivered to the Representatives or to counsel for the Underwriters in connection with the offering of the Securities shall be deemed a representation and warranty by such Selling Shareholder to the Underwriters as to the matters covered thereby with respect to such Selling Shareholder. Such Selling Shareholder has a reasonable basis for making each of the representations set forth in this Section 2. The Selling Shareholder further acknowledges that the Underwriters will rely upon the accuracy and truthfulness of the foregoing representations and hereby consents to such reliance.
Appears in 1 contract
Sources: Underwriting Agreement (GFL Environmental Holdings Inc.)
Representations and Warranties of the Selling Shareholder. The Selling Shareholder represents and warrants to and agrees with each of the Underwriters that:
(a) This Agreement has been duly authorized, executed and delivered by or on behalf of the Selling Shareholder.
(b) The execution and delivery by the Selling Shareholder of, and the performance by the Selling Shareholder of its obligations under, this Agreement and the Letter of Transmittal and Custody Agreement signed by the Selling Shareholder and First Union National Bank Corporate Trust, as Custodian, relating to the deposit of the Shares to be sold by the Selling Shareholder (the "CUSTODY AGREEMENT") and the consummation of the transactions contemplated thereby will not contravene any provision of applicable law, or the memorandum Last Will and articles Testament of association of Alfred I. duPont, by which the Selling ShareholderSellin▇ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇s established, or any agreement or other instrument binding upon the Selling Shareholder or any judgment, order or decree of any governmental body, agency or court having jurisdiction over the Selling Shareholder, and no consent, approval, authorization or order of, or qualification with, any governmental body or agency is required for the performance by the Selling Shareholder of its obligations under this Agreement or the Custody Agreement, except such as may be required by the securities or Blue Sky laws of the various states in connection with the offer and sale of the Shares.
(c) The Selling Shareholder has, and on the Closing Date will have, valid title to, or a valid “"security entitlement” " within the meaning of Section 8-501 of the New York Uniform Commercial Code (the “UCC”) in respect of, the Shares to be sold by the Selling Shareholder free and clear of all security interests, claims, liens, equities or other encumbrances and the legal right and power, and all authorization and approval required by law, to enter into this Agreement and the Custody Agreement and to sell, transfer and deliver the Shares to be sold by the Selling Shareholder or a security entitlement in respect of such Shares.
(d) Upon payment for The Custody Agreement has been duly authorized, executed and delivered by the Selling Shareholder and is a valid and binding agreement of the Selling Shareholder.
(e) Delivery of the Shares to be sold by the Selling Shareholder and payment therefor pursuant to this Agreement, delivery of Agreement will pass valid title to such Shares, as directed by the Underwriters, to Cede & Co. (“Cede”) or such other nominee as may be designated by the Depository Trust Company (“DTC”), registration of such Shares in the name of Cede or such other nominee free and the crediting of such Shares on the books of DTC to securities accounts of the Underwriters (assuming that neither DTC nor any such Underwriter has notice clear of any adverse claim (within the meaning of Section 8-105 of the UCC) to such Shares), (A) DTC shall be a “protected purchaser” of such Shares within the meaning of Section 8-303 of the UCC, (B) under Section 8-501 of the UCC, the Underwriters will acquire a valid security entitlement in respect of such Shares and (C) no action based on any “adverse claim”, within the meaning of Section 8-102 of the UCCNew York Uniform Commercial Code, to each Underwriter who has purchased such Shares may be asserted against the Underwriters with respect to such security entitlement; for purposes without notice of this representation, the an adverse claim.
(f) The Selling Shareholder may assume that when such paymenthas not taken and will not take, delivery and crediting occurdirectly or indirectly, (x) such Shares will have been registered any action which is designed to or which has constituted or which might reasonably be expected to cause or result in the name of Cede stabilization or another nominee designated by DTC, in each case on the Company’s share register in accordance with its memorandum and articles of association and applicable law, (y) DTC will be registered as a “clearing corporation” within the meaning of Section 8-102 manipulation of the UCC and (z) appropriate entries to the accounts price of any security of the several Underwriters on Company to facilitate the records sale or resale of DTC will have been made pursuant to the UCCShares.
(i) The To the best of the knowledge of the Selling Shareholder, after due inquiry, the Registration Statement, when it became effective, did not contain and, as amended or supplemented, if applicable, will not contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading misleading, (ii) the Registration Statement and the Prospectus comply and, as amended or supplemented, if applicable, will comply in all material respects with the Securities Act and the applicable rules and regulations of the Commission thereunder and (iiiii) the Prospectus does not contain and, as amended or supplemented, if applicable, will not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading, provided except that the representations and warranties set forth in this paragraph 2(e2(g) are limited do not apply to statements or omissions in the Registration Statement or the Prospectus made in reliance based upon information relating to the Selling Shareholder any Underwriter furnished to the Company in writing by the Selling Shareholder such Underwriter through you expressly for use therein.
(h) the statements in the Registration StatementBase Prospectus under the caption "Alfred I. duPont Testamentary Trust," ▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇pectus Supplement under the captions "Summary -- Alfred I. duPont Testamentary Trust" ▇▇▇ "▇▇lling Shareholder" insofar as such statements constitute summaries of the legal matters, documents or proceedings referred to therein, fairly present the Prospectus or any amendments or supplements theretoinformation called for with respect to such legal matters, documents and proceedings and fairly summarize the matters referred to therein.
Appears in 1 contract
Sources: Underwriting Agreement (St Joe Co)
Representations and Warranties of the Selling Shareholder. The Selling Shareholder represents and warrants to and agrees with each of the Underwriters that:
(a) This Agreement has been duly authorized, executed and delivered by or on behalf of the Selling Shareholder.
(b) The execution and delivery by the Selling Shareholder of, and the performance by the Selling Shareholder of its obligations under, under this Agreement will not contravene any provision of applicable law, or the memorandum and articles certificate of association incorporation or by-laws of the Selling ShareholderShareholder (if the Selling Shareholder is a corporation), or any agreement or other instrument binding upon the Selling Shareholder or any judgment, order or decree of any governmental body, agency or court having jurisdiction over the Selling Shareholder, and no consent, approval, authorization or order of, or qualification with, any governmental body or agency is required for the performance by the Selling Shareholder of its obligations under this Agreement, except such as may be required by the securities or Blue Sky laws of the various states in connection with the offer and sale of the Shares.
(c) The Selling Shareholder has, and on the Closing Date will have, valid title to, or a valid “security entitlement” within the meaning of Section 8-501 of the New York Uniform Commercial Code (the “UCC”) in respect of, the Shares to be sold by the Selling Shareholder free and clear of all security interests, claims, liens, equities or other encumbrances and the legal right and power, and all authorization and approval required by law, to enter into this Agreement and to sell, transfer and deliver the Shares to be sold by the Selling Shareholder or a security entitlement in respect of such Shares.
(d) Upon payment for the Shares to be sold by the Selling Shareholder pursuant to this Agreement, delivery of such Shares, as directed by the Underwriters, to Cede & Co. (“Cede”) or such other nominee as may be designated by the Depository Trust Company (“DTC”), registration of such Shares in the name of Cede or such other nominee and the crediting of such Shares on the books of DTC to securities accounts of the Underwriters (assuming that neither DTC nor any such Underwriter has notice of any adverse claim (within the meaning of Section 8-105 of the New York Uniform Commercial Code (the “UCC”)) to such Shares), (A) DTC shall be a “protected purchaser” of such Shares within the meaning of Section 8-303 of the UCC, (B) under Section 8-501 of the UCC, the Underwriters will acquire a valid security entitlement in respect of such Shares and (C) no action based on any “adverse claim”, within the meaning of Section 8-102 of the UCC, to such Shares may be asserted against the Underwriters with respect to such security entitlement; for purposes of this representation, the Selling Shareholder may assume that when such payment, delivery and crediting occur, occur (x) such Shares will have been registered in the name of Cede or another nominee designated by DTC, in each case on the Company’s share register registry in accordance with its memorandum and articles certificate of association incorporation, bylaws and applicable law, (y) DTC will be registered as a “clearing corporation” within the meaning of Section 8-102 of the UCC and (z) appropriate entries to the accounts of the several Underwriters on the records of DTC will have been made pursuant to the UCC.
(e) The Shares to be sold by the Selling Shareholder pursuant to this Agreement have been placed in custody, for delivery pursuant to the terms of this Agreement, under a Custody Agreement duly authorized, executed and delivered by the Selling Shareholder in the form heretofore furnished to you (the “Custody Agreement”) with Computershare Inc., as custodian (the “Custodian”); the Shares so held in custody for the Selling Shareholder are subject to the interests hereunder of the Underwriters.
(f) The Selling Shareholder has no reason to believe that the representations and warranties of the Company contained in Section 1 of this Agreement and of the Adviser contained in Sections 1 and 2 of this Agreement are not true and correct, is familiar with the Registration Statement, the Time of Sale Prospectus and the Prospectus and has no knowledge of any material fact, condition or information not disclosed in the Time of Sale Prospectus or the Prospectus that has had, or reasonably may be expected to have, a material adverse effect on the Company and its subsidiaries, taken as a whole. The Selling Shareholder is not prompted by any information concerning the Company or its subsidiaries which is not set forth in the Time of Sale Prospectus to sell its Shares pursuant to this Agreement.
(i) The Registration Statement, when it became effective, did not contain and, as amended or supplemented, if applicable, will not contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading, (ii) the Time of Sale Prospectus does not, and at the time of each sale of the Shares in connection with the offering when the Prospectus is not yet available to prospective purchasers and at the Closing Date (as defined in Section 6), the Time of Sale Prospectus, as then amended or supplemented by the Company, if applicable, will not, contain any 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 and (iiiii) the Prospectus does not contain and, as amended or supplemented, if applicable, will not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading, ; provided that the representations and warranties and any agreements set forth in this paragraph 2(e3(g) are limited to statements or omissions in the Registration Statement or Prospectus made in reliance upon information relating to the Selling Shareholder furnished to the Company in writing by or on behalf of the Selling Shareholder Stockholder expressly for use in the Registration Statement, the Time of Sale Prospectus, the Prospectus or any amendments or supplements thereto.
Appears in 1 contract
Sources: Underwriting Agreement (Horizon Technology Finance Corp)
Representations and Warranties of the Selling Shareholder. The Selling Shareholder represents and warrants to and agrees with each of the Underwriters that:
(a) This Agreement has been duly authorized, executed and delivered by or on behalf of the Selling Shareholder.
(b) The execution and delivery by the Selling Shareholder of, and the performance by the Selling Shareholder of its obligations under, this Agreement will not contravene any provision of applicable law, or the memorandum and articles of association of the Selling Shareholder, or any agreement or other instrument binding upon the Selling Shareholder or any judgment, order or decree of any governmental body, agency or court having jurisdiction over the Selling Shareholder, and no consent, approval, authorization or order of, or qualification with, any governmental body or agency is required for the performance by the Selling Shareholder of its obligations under this Agreement, except such as may be required by the securities or Blue Sky laws of the various states in connection with the offer and sale of the Shares.
(c) The Selling Shareholder has, and on the Closing Date will have, valid title to, or a valid “security entitlement” within the meaning of Section 8-501 of the New York Uniform Commercial Code (the “UCC”) in respect of, the Shares to be sold by the Selling Shareholder free and clear of all security interests, claims, liens, equities or other encumbrances and the legal right and power, and all authorization and approval required by law, to enter into this Agreement and to sell, transfer and deliver the Shares to be sold by the Selling Shareholder or a security entitlement in respect of such Shares.
(dc) Upon payment for the Shares to be sold by the Selling Shareholder pursuant to this Agreement, delivery of such Shares, as directed by the Underwriters, to Cede & Co. (“Cede”) or such other nominee as may be designated by the Depository Trust Company (“DTC”), registration of such Shares in the name of Cede or such other nominee and the crediting of such Shares on the books of DTC to securities accounts of the Underwriters (assuming that neither DTC nor any such Underwriter has notice of any adverse claim (within the meaning of Section 8-105 of the New York Uniform Commercial Code (the “UCC”)) to such Shares), (A) DTC shall be a “protected purchaser” of such Shares within the meaning of Section 8-303 of the UCC, (B) under Section 8-501 of the UCC, the Underwriters will acquire a valid security entitlement in respect of such Shares and (C) no action based on any “adverse claim”, within the meaning of Section 8-102 of the UCC, to such Shares may be asserted against the Underwriters with respect to such security entitlement; for purposes of this representation, the Selling Shareholder may assume that when such payment, delivery and crediting occur, (x) such Shares will have been registered in the name of Cede or another nominee designated by DTC, in each case on the Company’s share register registry in accordance with its memorandum and articles certificate of association incorporation, bylaws and applicable law, (y) DTC will be registered as a “clearing corporation” within the meaning of Section 8-102 of the UCC and (z) appropriate entries to the accounts of the several Underwriters on the records of DTC will have been made pursuant to the UCC.
(id) The Selling Shareholder has no reason to believe that the representations and warranties of the Company contained in Section 1 are not true and correct, is familiar with the Registration Statement, the Time of Sale Prospectus and the Prospectus and has no knowledge of any material fact, condition or information not disclosed in the Time of Sale Prospectus or the Prospectus that has had, or may have, a material adverse effect on the Company and its subsidiaries, taken as a whole. The Selling Shareholder is not prompted by any information concerning the Company or its subsidiaries which is not set forth in the Time of Sale Prospectus to sell its Shares pursuant to this Agreement.
(e) The Registration Statement, when it became effective, did not contain and, as amended or supplemented, if applicable, will not contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading, (i) the Registration Statement and the Prospectus comply and, as amended or supplemented, if applicable, will comply in all material respects with the Securities Act and the applicable rules and regulations of the Commission thereunder, (ii) the Time of Sale Prospectus does not, and at the time of each sale of the Shares in connection with the offering when the Prospectus is not yet available to prospective purchasers and at the Closing Date (as defined in Section 5), the Time of Sale Prospectus, as then amended or supplemented by the Company, if applicable, will not, contain any 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, (iii) each broadly available road show, if any, when considered together with the Time of Sale Prospectus, does not contain any 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 and (iiiv) the Prospectus does not contain and, as amended or supplemented, if applicable, will not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading, provided except that the representations and warranties set forth in this paragraph 2(e(g) are limited do not apply to statements or omissions in the Registration Statement or the Prospectus made in reliance based upon information relating to the Selling Shareholder any Underwriter furnished to the Company in writing by the Selling Shareholder such Underwriter through you expressly for use in the Registration Statement, the Prospectus or any amendments or supplements theretotherein.
Appears in 1 contract
Representations and Warranties of the Selling Shareholder. The Selling Shareholder represents and warrants to and agrees with each of the Underwriters Underwriter that:
(a) This The Selling Shareholder (together with his spouse) is the lawful owner of the Shares to be sold by him pursuant to this Agreement has been duly authorizedand has, executed and delivered by on the Selling ShareholderClosing Date (and Option Closing Date, if applicable) will have, good and clear title to such Shares, free of all restrictions on transfer, liens, encumbrances, security interests and claims whatsoever, other than pursuant to the Shareholders' Agreement dated October 1, 1994 (the "Shareholders' Agreement") and this Agreement.
(b) The execution Upon delivery of and delivery by the Selling Shareholder of, and the performance by the Selling Shareholder of its obligations under, this Agreement will not contravene any provision of applicable law, or the memorandum and articles of association of the Selling Shareholder, or any agreement or other instrument binding upon the Selling Shareholder or any judgment, order or decree of any governmental body, agency or court having jurisdiction over the Selling Shareholder, and no consent, approval, authorization or order of, or qualification with, any governmental body or agency is required payment for the performance by the Selling Shareholder of its obligations under such Shares pursuant to this Agreement, except good and marketable title to such as may Shares will pass to the Underwriters, free and clear of all restrictions on transfer, liens, encumbrances, security interests and claims whatsoever other than pursuant to the Shareholders' Agreement, which, with respect to the Firm Shares, will be required by the securities or Blue Sky laws of the various states in connection with the offer and sale of the Sharesterminated concurrently therewith.
(c) The Selling Shareholder has, and on the Closing Date will have, valid title to, or a valid “security entitlement” within the meaning of Section 8-501 of the New York Uniform Commercial Code (the “UCC”) in respect of, the Shares to be sold by the Selling Shareholder free and clear of all security interests, claims, liens, equities or other encumbrances and the full legal right and power, and all authorization and approval required by law, authority to enter into this Agreement and the Custody Agreement between the Selling Shareholder and American Securities Transfer & Trust, Inc., as Custodian (the "Custody Agreement"), and to sell, assign, transfer and deliver such Shares in the Shares to be sold manner provided herein and therein, and this Agreement and the Custody Agreement have been duly authorized, executed and delivered by the Selling Shareholder and each of this Agreement and the Custody Agreement is a valid and binding agreement of the Selling Shareholder enforceable in accordance with its terms, except as rights to indemnity and contribution hereunder may be limited by applicable law or public policy grounds, and except as enforcement (i) may be limited by bankruptcy, insolvency, reorganization or other similar laws affecting creditors' rights generally and (ii) is subject to general principles of equity and public policy (regardless of whether such enforceability is considered in a security entitlement proceeding in respect of such Sharesequity or at law).
(d) Upon payment for Other than as contemplated by this Agreement, the Selling Shareholder has not taken, and will not take, directly or indirectly, any action designed to, or which might 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 Shares pursuant to be sold the distribution contemplated by this Agreement, and other than as permitted
(e) The execution, delivery and performance of this Agreement by the Selling Shareholder, compliance by the Selling Shareholder pursuant to this Agreementwith all the provisions hereof and the consummation of the transactions contemplated hereby will not require any consent, delivery approval, authorization or other order of any court, regulatory body, administrative agency or other governmental body (except as such Shares, as directed by the Underwriters, to Cede & Co. (“Cede”) or such other nominee as may be designated required under (i) the Act, (ii) the Exchange Act of 1934, or (iii) the securities or Blue Sky laws of the various states) and will not conflict with or constitute a breach of any of the terms or provisions of, or a default under, or any agreement, indenture or other instrument to which the Selling Shareholder is a party or by which the Depository Trust Company Selling Shareholder or property of the Selling Shareholder is bound, or violate or conflict with any laws, administrative regulation or ruling or court decree applicable to the Selling Shareholder or property of the Selling Shareholder.
(“DTC”f) Such parts of the Registration Statement under the caption "Principal and Selling Shareholders" which specifically relate to the Selling Shareholder do not, and will not on the Closing Date (and any Option Closing Date, if applicable), registration contain any untrue statement of such Shares a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein, in light of circumstances under which they were made, not misleading.
(g) At any time during the period described in paragraph 5(e) hereof, if there is any change in the name of Cede or such other nominee and information referred to in paragraph 7(f) above, except as contemplated in the crediting of such Shares on the books of DTC to securities accounts of the Underwriters (assuming that neither DTC nor any such Underwriter has notice of any adverse claim (within the meaning of Section 8-105 of the UCC) to such Shares), (A) DTC shall be a “protected purchaser” of such Shares within the meaning of Section 8-303 of the UCC, (B) under Section 8-501 of the UCC, the Underwriters will acquire a valid security entitlement in respect of such Shares and (C) no action based on any “adverse claim”, within the meaning of Section 8-102 of the UCC, to such Shares may be asserted against the Underwriters with respect to such security entitlement; for purposes of this representationProspectus, the Selling Shareholder may assume that when will immediately notify you of such payment, delivery and crediting occur, (x) such Shares will have been registered in the name of Cede or another nominee designated by DTC, in each case on the Company’s share register in accordance with its memorandum and articles of association and applicable law, (y) DTC will be registered as a “clearing corporation” within the meaning of Section 8-102 of the UCC and (z) appropriate entries to the accounts of the several Underwriters on the records of DTC will have been made pursuant to the UCCchange.
(ih) The To the best knowledge of the Selling Shareholder, the representations and warranties of the Company contained in Section 6 hereof are true and correct; the Selling Shareholder has reviewed and is familiar with the Registration StatementStatement as filed with the Commission and any preliminary prospectuses contained therein and has no knowledge of any material fact, when it became effectivecondition or information not disclosed in such preliminary prospectus which has adversely affected or could adversely affect the condition, did not contain andfinancial or otherwise, or the earnings, business affairs, or business prospects of the Company and its subsidiaries considered as amended or supplementedone enterprise; to the best knowledge of the Selling Shareholder, if applicable, will such preliminary prospectuses do not contain any untrue statement of a material fact or omit to state a any material fact required to be stated therein or necessary to make the statements therein not misleading and (ii) the Prospectus does not contain and, as amended or supplemented, if applicable, will not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading, provided that the representations and warranties set forth in this paragraph 2(e) are limited to statements or omissions in the Registration Statement or Prospectus made in reliance upon information relating to the Selling Shareholder furnished to the Company in writing by the Selling Shareholder expressly for use in the Registration Statement, the Prospectus or any amendments or supplements thereto.
Appears in 1 contract
Representations and Warranties of the Selling Shareholder. The Selling Shareholder represents and warrants to and agrees with each of the Underwriters that:
(a) This Agreement has been duly authorized, executed and delivered by or on behalf of the Selling Shareholder.
(b) The Intercompany Agreements have been duly authorized by the Selling Shareholder and, when executed and delivered by the Selling Shareholder, will constitute, valid and binding agreements of the Selling Shareholder enforceable in accordance with their terms except as enforceability thereof may be limited by bankruptcy, insolvency or similar laws affecting creditors' rights generally and the availability of equitable remedies may be limited by equitable principles of general applicability and except to the extent that the provisions relating to indemnification and contribution contained in the Registration Rights Agreement may be deemed unenforceable.
(c) The execution and delivery by the Selling Shareholder of, and the performance by the Selling Shareholder of its obligations under, this Agreement and the Power of Attorney appointing certain individuals as the Selling Shareholder's attorneys-in-fact to the extent set forth therein, relating to the transactions contemplated hereby and by the Registration Statement (the "Power of Attorney"), will not contravene any provision of applicable law, the certificate of incorporation or the memorandum and articles of association by-laws of the Selling Shareholder, or any agreement or other instrument binding upon the Selling Shareholder or any judgment, order or decree of any governmental body, agency or court having jurisdiction over the Selling Shareholder, and no consent, approval, authorization or order of, or qualification with, any governmental body or agency is required for the performance by the Selling Shareholder of its obligations under this AgreementAgreement or the Power of Attorney of the Selling Shareholder, except such as may have been obtained and such as may be required by the securities or Blue Sky laws of the various states or foreign jurisdictions in connection with the offer and sale of the Shares.
(cd) The Selling Shareholder has, and on the Closing Date will have, valid title to, or a valid “security entitlement” within the meaning of Section 8-501 of the New York Uniform Commercial Code (the “UCC”) in respect of, to the Shares to be sold by the Selling Shareholder free and clear of all security interests, claims, liens, equities or other encumbrances and the legal right and power, and all authorization and approval required by law, to enter into this Agreement and the Power of Attorney and the Intercompany Agreements and to sell, transfer and deliver the Shares to be sold by the Selling Shareholder or a security entitlement in respect of such SharesShareholder.
(de) Upon payment for The Power of Attorney has been duly authorized, executed and delivered by the Selling Shareholder and is a valid and binding agreement of the Selling Shareholder.
(f) Delivery of the Shares to be sold by the Selling Shareholder pursuant to this Agreement, delivery of such Shares, as directed by Agreement will pass title to the Underwriters, to Cede & Co. (“Cede”) or such other nominee as may be designated by the Depository Trust Company (“DTC”), registration of such Shares in the name of Cede or such other nominee free and the crediting of such Shares on the books of DTC to securities accounts of the Underwriters (assuming that neither DTC nor any such Underwriter has notice clear of any adverse claim (within the meaning of Section 8-105 of the UCC) to such Shares)security interests, (A) DTC shall be a “protected purchaser” of such Shares within the meaning of Section 8-303 of the UCCclaims, (B) under Section 8-501 of the UCCliens, the Underwriters will acquire a valid security entitlement in respect of such Shares equities and (C) no action based on any “adverse claim”, within the meaning of Section 8-102 of the UCC, to such Shares may be asserted against the Underwriters with respect to such security entitlement; for purposes of this representation, the Selling Shareholder may assume that when such payment, delivery and crediting occur, (x) such Shares will have been registered in the name of Cede or another nominee designated by DTC, in each case on the Company’s share register in accordance with its memorandum and articles of association and applicable law, (y) DTC will be registered as a “clearing corporation” within the meaning of Section 8-102 of the UCC and (z) appropriate entries to the accounts of the several Underwriters on the records of DTC will have been made pursuant to the UCCother encumbrances.
(i) The Registration Statement, when it became effective, did not contain and, as amended or supplemented, if applicable, will not contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading misleading, (ii) the Registration Statement and the Prospectus comply and, as amended or supplemented, if applicable, will comply in all material respects with the Securities Act and the applicable rules and regulations of the Commission thereunder and (iiiii) the Prospectus does not contain and, as amended or supplemented, if applicable, will not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading, provided except that the representations and warranties set forth in this paragraph 2(e2(g) are limited shall apply only to statements or omissions in the Registration Statement or the Prospectus made in reliance based upon information relating to the Selling Shareholder furnished to the Company in writing by the Selling Shareholder expressly for use in the Registration Statement, the Prospectus or any amendments or supplements theretotherein.
Appears in 1 contract
Sources: Underwriting Agreement (Depuy Inc)
Representations and Warranties of the Selling Shareholder. The Selling Shareholder hereby represents and warrants to each Underwriter on the date hereof (except as otherwise set forth herein), and agrees with shall be deemed to represent and warrant to each of Underwriter on the Underwriters Closing Date and the Additional Closing Date, that:
a. All consents, approvals, authorizations and orders necessary for the execution and delivery by the Selling Shareholder of this Agreement and the Custody Agreement (aincluding the Power of Attorney provided for in such Custody Agreement) referred to in the last paragraph of this Section 7 (the "Custody Agreement"), and for the sale and delivery of the Shares to be sold by the Selling Shareholder hereunder, have been obtained; and the Selling Shareholder has full right, power and authority to enter into this Agreement and the Custody Agreement, and to sell, assign, transfer and deliver the Shares to be sold by such Selling Shareholder hereunder.
b. This Agreement has and the Custody Agreement have been duly authorized, executed and delivered by the Selling Shareholder and this Agreement and the Custody Agreement constitute the valid and binding agreements of the Selling Shareholder enforceable against the Selling Shareholder in accordance with their respective terms, except as may be limited by bankruptcy, insolvency, reorganization or other laws of general application relating to or affecting enforcement of creditors' rights generally or the availability of equitable remedies, regardless of whether such enforcement is considered in a proceeding in equity or at law; the performance of this Agreement and the Custody Agreement and the consummation of the transactions contemplated herein and therein will not result in a breach or violation of any of the terms or provisions of, or constitute a default under, any indenture, mortgage, deed of trust, voting trust agreement, note agreement, lease or other agreement or instrument to which the Selling Shareholder is a party or by which the Selling Shareholder or the Selling Shareholder's properties are bound, or under any law, statute, order, rule or regulation of any court or governmental agency or body applicable to the Selling Shareholder or the business or property of the Selling Shareholder.
c. The Selling Shareholder has, and immediately prior to the Closing Date (band the Additional Closing Date, if any) The execution the Selling Shareholder will have, good and delivery marketable title to the Shares to be sold by the Selling Shareholder ofhereunder, free and clear of all liens, encumbrances, equities, shareholder agreements, voting trusts, adverse claims or other claims of any nature whatsoever, and, upon delivery of the Shares and payment therefor pursuant hereto, good and marketable title to the Shares, free and clear of all liens, encumbrances, equities, 15 shareholder agreements, voting trusts, adverse claims or other claims of any nature whatsoever (other than those arising by or through the Underwriters), will pass to the several Underwriters.
d. The Selling Shareholder will not, for a period of 120 days after the commencement of the public offering of the Shares by the Underwriters, directly or indirectly, sell, offer or contract to sell, or otherwise dispose of or transfer any shares of Common Stock or rights to purchase shares of Common Stock otherwise than hereunder or with the prior written consent of Raym▇▇▇ ▇▇▇e▇ & ▇ssociates, Inc.
e. The Selling Shareholder has not taken, and the performance by the Selling Shareholder of its obligations under, this Agreement will not contravene take, directly or indirectly, any provision of applicable law, action designed to or the memorandum and articles of association which has constituted nor which might reasonably be expected to cause or result in stabilization or manipulation of the Selling Shareholder, or any agreement or other instrument binding upon the Selling Shareholder or any judgment, order or decree price of any governmental body, agency security of the Company to facilitate the sale or court having jurisdiction over resale of the Selling Shareholder, and no Shares or otherwise.
f. No consent, approval, authorization or order of, or qualification any filing or declaration with, any court or governmental agency or body or agency is required for the performance consummation by the Selling Shareholder of its obligations under this the transactions on his part contemplated herein or in the Custody Agreement, except such as have been obtained under the Act and such as may be required by the under state securities or Blue Sky laws or the by-laws and rules of the various states NASD in connection with the offer purchase and sale distribution by the Underwriters of the Shares.
(c) The Selling Shareholder has, and on the Closing Date will have, valid title to, or a valid “security entitlement” within the meaning of Section 8-501 of the New York Uniform Commercial Code (the “UCC”) in respect of, the Shares to be sold by the Selling Shareholder.
g. The Selling Shareholder free and clear of all security interestsis familiar with the Registration Statement, claims, liens, equities or other encumbrances the Prepricing Prospectus and the legal right Prospectus and powerhas no knowledge of any material fact or condition not set forth in the Registration Statement, the Prepricing Prospectus or the Prospectus which has adversely affected, or may adversely affect, the business, properties, business prospects, condition (financial or otherwise) or results of operations of the Company, and all authorization and approval required by law, to enter into this Agreement and to sell, transfer and deliver the sale of the Shares proposed to be sold by the Selling Shareholder or a security entitlement in respect of is not prompted by any such Sharesknowledge.
(d) Upon payment for the Shares h. All information with respect to be sold by the Selling Shareholder pursuant to this Agreement, delivery of such Shares, as directed by the Underwriters, to Cede & Co. (“Cede”) or such other nominee as may be designated by the Depository Trust Company (“DTC”), registration of such Shares contained in the name of Cede or such other nominee and the crediting of such Shares on the books of DTC to securities accounts of the Underwriters (assuming that neither DTC nor any such Underwriter has notice of any adverse claim (within the meaning of Section 8-105 of the UCC) to such Shares), (A) DTC shall be a “protected purchaser” of such Shares within the meaning of Section 8-303 of the UCC, (B) under Section 8-501 of the UCC, the Underwriters will acquire a valid security entitlement in respect of such Shares and (C) no action based on any “adverse claim”, within the meaning of Section 8-102 of the UCC, to such Shares may be asserted against the Underwriters with respect to such security entitlement; for purposes of this representation, the Selling Shareholder may assume that when such payment, delivery and crediting occur, (x) such Shares will have been registered in the name of Cede or another nominee designated by DTC, in each case on the Company’s share register in accordance with its memorandum and articles of association and applicable law, (y) DTC will be registered as a “clearing corporation” within the meaning of Section 8-102 of the UCC and (z) appropriate entries to the accounts of the several Underwriters on the records of DTC will have been made pursuant to the UCC.
(i) The Registration Statement, when it became effective, did not contain and, the Prepricing Prospectus and the Prospectus (as amended or supplemented, if applicablethe Company shall have filed with the Commission any amendment or supplement thereto) complied and will comply in all material respects with all applicable provisions of the Act, contains and will contain all statements required to be stated therein in accordance with the Act, and does not and will not contain any an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary in order to make the statements therein not misleading and (ii) misleading.
i. To the Prospectus does not contain andbest knowledge of such Selling Shareholder, as amended or supplemented, if applicable, will not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading, provided that the representations and warranties set forth of the Company contained in this paragraph 2(e) Section 6 hereof are limited to statements or omissions in true and correct.
j. Other than as permitted by the Registration Statement or Prospectus made in reliance upon information relating to Act and the Rules and Regulations, the Selling Shareholder furnished to the Company in writing by the Selling Shareholder expressly for use in the Registration Statement, the Prospectus or has not distributed and will not distribute any amendments or supplements thereto.Prepricing Prospectus,
Appears in 1 contract
Representations and Warranties of the Selling Shareholder. The Selling Shareholder represents and warrants to and agrees with each of the Underwriters that:
(a) The Selling Shareholder has all requisite power and authority to execute, deliver and perform its obligations under this Agreement. This Agreement has been duly authorized, executed and delivered by or on behalf of the Selling Shareholder.
(b) The execution and delivery by the Selling Shareholder of, and the performance by the Selling Shareholder of its obligations under, this Agreement will not contravene (i) any provision of applicable law, (ii) the certificate of incorporation, by-laws, limited partnership agreement or the memorandum and articles of association other constitutive documents of the Selling Shareholder, or (iii) any agreement or other instrument binding upon the Selling Shareholder or (iv) any judgment, order or decree of any governmental body, agency or court having jurisdiction over the Selling Shareholder, and no except in the case of clause (iii) where such contravention would not impair in any material respects the consummation of the Selling Shareholder’s obligations under this Agreement. No consent, approval, authorization or order of, or qualification with, any governmental body or agency is required for the performance by the Selling Shareholder of its obligations under this Agreement, except such as may be required by under the Exchange Act and the securities or Blue Sky laws of the various states of the United States in connection with the offer and sale of the Shares.
(c) The Selling Shareholder has, and on the Closing Date will have, valid title to, or a valid “security entitlement” within the meaning of Section 8-501 of the New York Uniform Commercial Code (the “UCC”) in respect of, the Shares to be sold by the Selling Shareholder free and clear of all security interests, claims, liens, equities or other encumbrances and the legal right and power, and all authorization and approval required by law, to enter into this Agreement Agreement, and to sell, transfer and deliver the Shares to be sold by the Selling Shareholder or a security entitlement in respect of such the Shares.
(d) Upon payment for the Shares to be sold by the Selling Shareholder pursuant to this Agreement, delivery of such Shares, as directed by the Underwriters, to Cede & Co. (“Cede”) or such other nominee as may be designated by the Depository Trust Company (“DTC”), registration of such Shares in the name of Cede or such other nominee and the crediting of such Shares on the books of DTC to securities accounts of the Underwriters (assuming that neither DTC nor any such Underwriter has notice of any adverse claim (within the meaning of Section 8-105 of the New York Uniform Commercial Code (the “UCC”)) to such Shares), (Ai) DTC shall be a “protected purchaser” of such Shares within the meaning of Section 8-303 of the UCC, (Bii) under Section 8-501 of the UCC, the Underwriters will acquire a valid security entitlement in respect of such Shares and (Ciii) no action based on any “adverse claim”, ,” within the meaning of Section 8-102 of the UCC, to such Shares may be asserted against the Underwriters with respect to such security entitlement; for purposes of this representation, the Selling Shareholder may assume that when such payment, delivery and crediting occur, (xA) such Shares will have been registered in the name of Cede or another nominee designated by DTC, in each case on the Company’s share register registry in accordance with its memorandum and articles certificate of association incorporation, bylaws and applicable law, (yB) DTC will be registered as a “clearing corporation” within the meaning of Section 8-102 of the UCC and (zC) appropriate entries to the accounts of the several Underwriters on the records of DTC will have been made pursuant to the UCC.
(e) The Selling Shareholder is not prompted by any information concerning the Company or its subsidiaries which is not set forth in the Time of Sale Prospectus and the Prospectus to sell its Shares pursuant to this Agreement.
(i) The Registration Statement, when it became effective, did not contain and, as amended or supplemented, if applicable, will not contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading, (ii) the Registration Statement as of the date hereof does not contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading, (iii) as of the Applicable Time, the Time of Sale Prospectus does not, and at the time of each sale of the Shares in connection with the offering when the Prospectus is not yet available to prospective purchasers and at the Closing Date (as defined in Section 5), the Time of Sale Prospectus, as then amended or supplemented by the Company, if applicable, will not, contain any 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, (iv) each broadly available road show, if any, when considered together with the Time of Sale Prospectus, does not contain any 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 and (iiv) the Prospectus does not contain and, as amended or supplemented, if applicable, will not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading, provided ; except that the representations and warranties set forth in this paragraph 2(e(g) are limited apply only to statements or omissions in the Registration Statement Statement, Time of Sale Prospectus, a broadly available road show or the Prospectus made in reliance upon information relating that relate to the Selling Shareholder and are based upon information furnished to the Company in writing by the Selling Shareholder expressly for use therein.
(g) The Selling Shareholder does not have any registration or other similar rights to have any equity or debt securities registered for sale by the Company under the Registration Statement or included in the offering of the Shares, except for such rights as have been waived or which are described in the Registration Statement, Time of Sale Prospectus and Prospectus (and which have been complied with).
(h) The Selling Shareholder does not own any warrants, options or similar rights to acquire, and does not have any right or arrangement to acquire, any capital stock, right, warrants, options or other securities from the Company, other than those described in the Registration Statement, the Time of Sale Prospectus and the Prospectus.
(i) There are no contracts, agreements or understandings between the Selling Shareholder 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 or, to the Selling Shareholder’s knowledge, any other arrangements, agreements, understandings, payments or issuance with respect to the Company or any of its officers, directors, shareholders, partners, employees, Subsidiaries or affiliates that may affect the Underwriters’ compensation as determined by FINRA.
(j) There are no affiliations or associations between any member of FINRA and the Selling Shareholder, except as disclosed in the Registration Statement, Time of Sale Prospectus and Prospectus or as set forth in a questionnaire completed by the Selling Shareholder and delivered to the Underwriters prior to the date of this Agreement; none of the proceeds received by the Selling Shareholder from the sale of the Shares pursuant to this Agreement will be paid to a member of FINRA or any amendments affiliate of (or supplements theretoperson “associated with,” as such terms are used in the Rules of FINRA) such member.
(k) The Selling Shareholder has not prepared or had prepared on its behalf or used or referred to, any free writing prospectus, and represents that it has not distributed any written materials in connection with the offer or sale of the Shares.
(l) Any certificate signed by the Selling Shareholder and delivered to the Underwriters or counsel for the Underwriters in connection with the Shares shall be deemed a representation and warranty by the Selling Shareholder, as to matters covered thereby, to each Underwriter.
(m) The Selling Shareholder will not, directly or indirectly, use the proceeds of the offering, or lend, contribute or otherwise make available such proceeds to any subsidiary, joint venture partner or other Person:
(A) to fund or facilitate any activities or business of or with any Person or in any country or territory that, at the time of such funding or facilitation, is the subject of Sanctions; or
(B) in any other manner that will result in a violation of Sanctions by any Person (including any Person participating in the offering, whether as underwriter, advisor, investor or otherwise).
Appears in 1 contract
Sources: Underwriting Agreement (Fabrinet)
Representations and Warranties of the Selling Shareholder. The Selling --------------------------------------------------------- Shareholder represents represents, warrants and warrants covenants to and agrees with each the Agent, as of the Underwriters date hereof and as of the Closing Date, that:
(a) The Selling Shareholder has full power and authority to enter into this Agreement and the Selling Shareholder's Agreement (as defined below). All authorizations and consents necessary for the execution and delivery by the Selling Shareholder of this Agreement and the Selling Shareholder Agreement have been given. This Agreement has and the Selling Shareholder Agreement have each been duly authorized, executed and delivered by or on behalf of the Selling Shareholder.
(b) The execution Selling Shareholder has executed and delivery by delivered a Letter of Transmittal and Custody Agreement (hereinafter referred to as the "Selling Shareholder's Agreement") and in connection herewith the Selling Shareholder offurther represents, warrants and the performance by agrees that the Selling Shareholder has deposited in custody, under the Selling Shareholder's Agreement, with the transfer agent and registrar named therein (the "Transfer Agent") as custodian, certificates in negotiable form for the Shares, for the purpose of its obligations under, further delivery pursuant to this Agreement. The Selling Shareholder Agreement will not contravene any provision of applicable law, or the memorandum is a valid and articles of association binding agreement of the Selling Shareholder, enforceable against the Selling Shareholder in accordance with its terms, except (i) as the Selling Shareholder's obligations may be affected by bankruptcy, insolvency, reorganization, moratorium or similar laws, or by equitable principles relating to creditors' rights generally, and (ii) that the remedies of specific performance, injunction and other forms of equitable relief are subject to certain tests of equity, jurisdiction, equitable defenses and the discretion of the court before which any agreement proceeding therefor may be brought. The Selling Shareholder agrees that the Shares on deposit with the Transfer Agent are subject to the interests of the Agent, that the arrangements made for such custody are to that extent irrevocable, and that the obligations of the Selling Shareholder hereunder shall not be terminated, except as provided in this Agreement or in the Selling Shareholder's Agreement, by any act of the Selling Shareholder, by operation of law, by the insolvency or other instrument binding incapacity of such Selling Shareholder or by the occurrence of any other event. If the Selling Shareholder should become insolvent, declare or have declared in respect thereof, bankruptcy, or if any other event should occur, before the delivery of the Shares hereunder, the documents evidencing Shares then on deposit with the Transfer Agent shall be delivered by the Transfer Agent in accordance with the terms and conditions of this Agreement as if such event had not occurred, regardless of whether or not the Transfer Agent shall have received notice thereof.
(c) The Selling Shareholder now has, and at the time of delivery thereof hereunder will have, (i) good and marketable title to the Shares, free and clear of all liens, encumbrances and claims whatsoever, and (ii) full legal right and power, and all authorizations and approvals required by law, to sell, transfer and deliver the Shares to the purchasers thereof and to make the representations, warranties and agreements made by the Selling Shareholder herein. Upon the delivery of and payment for the Shares as contemplated herein, the Selling Shareholder will deliver good and marketable title thereto, free and clear of all liens, encumbrances and claims whatsoever.
(d) On the Closing Date, all stock transfer or other taxes (other than income taxes) which are required to be paid in connection with the sale and transfer of the Shares to the purchasers thereof will have been fully paid or provided for by the Selling Shareholder and all laws imposing such taxes will have been fully complied with.
(e) The performance of this Agreement and the Selling Shareholder's Agreement and the consummation of the transactions contemplated hereby and thereby by the Selling Shareholder will not result in the creation or imposition of any lien, charge or encumbrance upon any of the Shares pursuant to the terms or provisions of, or result in a breach or violation of any of the terms or provisions of, or constitute a default under, or result in the acceleration of any obligation under any contract or other agreement to which the Selling Shareholder is a party (including without limitation, the indenture pursuant to which the Selling Shareholder has issued Senior Notes due 2004 and the indenture pursuant to which the Selling Shareholder has issued Senior Notes due 2007) or by which the Selling Shareholder or any of its property is bound or affected, or under any ruling, decree, judgment, order order, law, statute, rule or decree regulation of any court or other governmental body, agency or court body having jurisdiction over the Selling Shareholder or the property of the Selling Shareholder, and no . The Selling Shareholder is not in violation of any provision of its articles of incorporation or by-laws.
(f) No consent, approval, authorization or order of, or qualification any filing or declaration with, any court or governmental agency or body or agency is required for the performance consummation by the Selling Shareholder of the transactions on its obligations under this part contemplated herein or in the Selling Shareholder's Agreement, except such as have been obtained under the Act or the Rules and Regulations and such as may be required by the under state securities or Blue Sky laws or the by-laws and rules of the various states NASD in connection with the offer and sale of the SharesShares as contemplated herein.
(cg) The sale of the Shares is not prompted by the actual knowledge of the Board of Directors of Selling Shareholder has, and on of any material non-public information concerning the Closing Date will have, valid title to, or a valid “security entitlement” within the meaning of Section 8-501 of the New York Uniform Commercial Code Company.
(the “UCC”h) in respect of, the Shares to be sold All information provided by the Selling Shareholder free and clear of all security interests, claims, liens, equities or other encumbrances contained in the Registration Statement and the legal right and power, and all authorization and approval required by law, to enter into this Agreement and to sell, transfer and deliver the Shares to be sold by the Selling Shareholder or a security entitlement in respect of such Shares.
Prospectus (d) Upon payment for the Shares to be sold by the Selling Shareholder pursuant to this Agreement, delivery of such Shares, as directed by the Underwriters, to Cede & Co. (“Cede”) or such other nominee as may be designated by the Depository Trust Company (“DTC”), registration of such Shares in the name of Cede or such other nominee and the crediting of such Shares on the books of DTC to securities accounts of the Underwriters (assuming that neither DTC nor any such Underwriter has notice of any adverse claim (within the meaning of Section 8-105 of the UCC) to such Shares), (A) DTC shall be a “protected purchaser” of such Shares within the meaning of Section 8-303 of the UCC, (B) under Section 8-501 of the UCC, the Underwriters will acquire a valid security entitlement in respect of such Shares and (C) no action based on any “adverse claim”, within the meaning of Section 8-102 of the UCC, to such Shares may be asserted against the Underwriters with respect to such security entitlement; for purposes of this representation, the Selling Shareholder may assume that when such payment, delivery and crediting occur, (x) such Shares will have been registered in the name of Cede or another nominee designated by DTC, in each case on the Company’s share register in accordance with its memorandum and articles of association and applicable law, (y) DTC will be registered as a “clearing corporation” within the meaning of Section 8-102 of the UCC and (z) appropriate entries to the accounts of the several Underwriters on the records of DTC will have been made pursuant to the UCC.
(i) The Registration Statement, when it became effective, did not contain and, as amended or supplemented, if applicable, the Company shall have filed with the Commission any amendment or supplement thereto) complied and will not contain any untrue statement of a comply in all material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading and (ii) the Prospectus does not contain and, as amended or supplemented, if applicable, will not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in the light respects with all applicable provisions of the circumstances under which they were made, not misleading, provided Act and the Rules and Regulations and such information is true and accurate. The parties hereto agree that the representations and warranties set forth in this paragraph 2(e) are limited to statements or omissions only information provided by the Selling Shareholder contained in the Registration Statement or and the Prospectus made in reliance upon is the information relating to contained therein regarding the Selling Shareholder furnished to under the Company in writing by the caption "Beneficial Ownership of Securities and Selling Shareholder."
(i) The Selling Shareholder expressly for use in the Registration Statementhas not distributed and will not distribute any preliminary prospectus, the Prospectus or any amendments other offering material in connection with the offering and sale of the Shares. The Selling Shareholder has not taken, directly or supplements theretoindirectly, any action designed, or which might reasonably be expected, to cause or result in, under the Act or otherwise, or which has caused or resulted in, stabilization or manipulation of the price of any security of the Company to facilitate the sale or resale of the Shares.
Appears in 1 contract
Sources: Placement Agency Agreement (Southern Pacific Funding Corp)
Representations and Warranties of the Selling Shareholder. The Selling Shareholder represents and warrants to and agrees with with, each of the International Underwriters as of the Time of Execution, Time of Sale, Closing Date and each Additional Closing Date that:
(a) Neither the Time of Sale Prospectus nor the Prospectus or any amendments or supplements thereto includes any untrue statement of a material fact or omits to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading, provided that such representations and warranties set forth in this subsection (a) apply only to statements or omissions made in reliance upon and in conformity with information relating to the Selling Shareholder furnished in writing by or on behalf of the Selling Shareholder expressly for use in the Registration Statement, the Time of Sale Prospectus, the Prospectus or any other Issuer free writing prospectus or any amendment or supplement thereto, thereto, it being understood that the only such information consists of (i) the name of and the number of shares owned by the Selling Shareholder and (ii) the third sentence in the first paragraph under the heading, “Principal and Selling Shareholders—Selling Shareholder” in the Time of Sale Prospectus and the Prospectus (the “Selling Shareholder Information”); the Selling Shareholder is not prompted to sell the ADSs to be sold by the Selling Shareholder hereunder by any information concerning the Company or any subsidiary of the Company which is not set forth in the Time of Sale Prospectus or the Prospectus.
(b) This Agreement has and the Brazilian Underwriting Agreement have been duly authorized, executed and delivered by or on behalf of the Selling Shareholder.
(bc) Cede & Co. (“Cede”) or such other nominee as may be designated by The Depository Trust Company (“DTC”) is in possession of the ADSs, the ADSs are credited on the books of DTC to one or more securities accounts beneficially owned by the Selling Shareholder and such ADSs are not “restricted securities” as defined in the Securities Act or the rules and regulations promulgated thereunder.
(d) The execution and delivery of this Agreement and the Brazilian Underwriting Agreement and the sale and delivery of the ADSs to be sold by the Selling Shareholder of, and the performance consummation of the transactions contemplated herein and compliance by the Selling Shareholder of with its obligations hereunder do not and will not, whether with or without the giving of notice or passage of time or both, (i) conflict with or constitute a breach of, or default under, this Agreement will not contravene or result in the creation or imposition of any provision of applicable lawtax, lien, charge or encumbrance upon (A) the memorandum and articles of association ADSs to be sold by the Selling Shareholder or (B) any other property or assets of the Selling Shareholder, in each case, pursuant to any contract, indenture, mortgage, deed of trust, loan or any credit agreement, note, license, lease or other agreement or instrument to which the Selling Shareholder is a party or by which the Selling Shareholder may be bound, or to which any of the property or assets of the Selling Shareholder is subject, (ii) result in any violation of the provisions of the charter or by-laws or other organizational instrument binding upon of the Selling Shareholder, if applicable, or (iii) result in any violation of any applicable treaty, law, statute, rule, regulation, judgment, order, writ or decree of any government, government instrumentality or court, domestic or foreign, having jurisdiction over the Selling Shareholder or any judgmentof its properties, order or decree except in the case of clauses (i)(B) and (iii) as would not adversely affect in any governmental body, agency or court having jurisdiction over material respect the Selling Shareholder, and no consent, approval, authorization or order of, or qualification with, any governmental body or agency is required for the performance by the Selling Shareholder of ’s ability to perform its obligations hereunder and under this the Brazilian Underwriting Agreement, except such as may be required by the securities or Blue Sky laws of the various states in connection with the offer and sale of the Shares.
(ce) The Selling Shareholder has, and on at the Closing Date and each Additional Closing Date, as the case may be, will have, (i) valid title to, or a valid “security entitlement” within to the meaning of Section 8-501 of the New York Uniform Commercial Code (the “UCC”) in respect of, the Shares ADSs to be sold by the Selling Shareholder free and clear of all security interests, claims, liens, equities or other encumbrances and the legal right and power, and (ii) all authorization and approval required by law, to enter into this Agreement and the Brazilian Underwriting Agreement and to sell, transfer and deliver the Shares ADSs to be sold by the Selling Shareholder or a valid security entitlement in respect of such SharesADSs.
(df) Upon payment of the purchase price for the Shares ADSs to be sold by the Selling Shareholder pursuant to this Agreement, delivery of such SharesADSs, as directed by the International Underwriters, to Cede & Co. (“Cede”) or such other nominee as may be designated by the Depository Trust Company DTC (“DTC”unless delivery of such ADSs is unnecessary because such ADSs are already in possession of Cede or such nominee), registration of such Shares ADSs in the name of Cede or such other nominee (unless registration of such ADSs is unnecessary because such ADSs are already registered in the name of Cede or such nominee), and the crediting of such Shares ADSs on the books of DTC to securities accounts (within the meaning of Section 8-501(a) of the UCC) of the International Underwriters (assuming that neither DTC nor any such International Underwriter has notice of any “adverse claim (claim,” within the meaning of Section 8-105 of the Uniform Commercial Code then in effect in the State of New York (“UCC) ”), to such SharesADSs), (A) DTC shall be a “protected purchaser” of such Shares within the meaning of Section 8-303 of the UCC, (B) under Section 8-501 of the UCC, the International Underwriters will acquire a valid “security entitlement entitlement” in respect of such Shares ADSs and (CB) no action (whether framed in conversion, replevin, constructive trust, equitable lien, or other theory) based on any “adverse claim”, ,” within the meaning of Section 8-102 of the UCC, to such Shares ADSs may be asserted against the International Underwriters with respect to such security entitlement; for purposes of this representation, the Selling Shareholder may assume that when such payment, delivery and crediting occur, (xI) such Shares ADSs will have been registered in the name of Cede or another nominee designated by DTC, in each case on the CompanyDepositary’s share register registry in accordance with its memorandum and articles of association the Deposit Agreement and applicable law, (yII) DTC will be registered as a “clearing corporation,” within the meaning of Section 8-102 of the UCC and UCC, (zIII) appropriate entries to the accounts of the several International Underwriters on the records of DTC will have been made pursuant to the UCC, (IV) to the extent DTC, or any other securities intermediary which acts as “clearing corporation” with respect to the ADSs, maintains any “financial asset” (as defined in Section 8-102(a)(9) of the UCC in a clearing corporation pursuant to Section 8-111 of the UCC, the rules of such clearing corporation may affect the rights of DTC or such securities intermediaries and the ownership interest of the International Underwriters, (V) claims of creditors of DTC or any other securities intermediary or clearing corporation may be given priority to the extent set forth in Section 8-511(b) and 8-511(c) of the UCC and (VI) if at any time DTC or other securities intermediary does not have sufficient ADSs to satisfy claims of all of its entitlement holders with respect thereto then all holders will share pro rata in the ADSs then held by DTC or such securities intermediary.
(g) The Selling Shareholder has not taken, and will not take, directly or indirectly, any action which is designed to or which constituted or would 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 ADSs.
(h) The Selling Shareholder does not have any registration or other similar rights to have any equity or debt securities registered for sale by the Company under the Registration Statement or included in the offering contemplated by this Agreement.
(i) The Registration StatementSelling Shareholder has not prepared or had prepared on its behalf or used or referred to, when it became effectiveany “free writing prospectus” (as defined in Rule 405), did and has not contain anddistributed any written materials in connection with the offer or sale of the ADSs.
(j) Neither the Selling Shareholder nor any of its affiliates directly, or indirectly through one or more intermediaries, controls, or is controlled by, or is under common control with any member firm of FINRA or is a person associated with a member (within the meaning of the FINRA By-Laws) of FINRA.
(k) The Selling Shareholder has the power to submit, and pursuant to Section 15(c) of this Agreement has legally, validly, effectively and irrevocably submitted to the exclusive jurisdiction of the federal and state courts in the Borough of Manhattan in The City of New York in any suit, action or proceeding arising out of or relating to the application or enforcement of Section 15(c) of this Agreement or for purposes of seeking provisional remedies, and to the non-exclusive jurisdiction of such courts in any suit, action or proceeding arising out of or relating to the enforcement of any award made pursuant to Section 15(c) of this Agreement, and the Selling Shareholder has validly and irrevocably waived any objection to the laying of venue of any such proceeding in such courts to the fullest extent permissible by law, and has validly and irrevocably appointed Corporation Service Company as amended its authorized agent in the Borough of Manhattan in The City of New York upon which process may be served pursuant to Section 15(c) of this Agreement.
(l) Neither the Selling Shareholder nor any of its subsidiaries, nor, to the best knowledge of the Selling Shareholder, any director, officer, agent, employee or supplementedother person associated with or acting on behalf of the Selling Shareholder or any of its subsidiaries (any such person, if applicablean “Associated Person”), will nor, to the knowledge of the Selling Shareholder, its affiliates (but not contain including (A) any untrue statement agency or other entity or body constituting part of a material fact the government of the State of Qatar or omit any political subdivision thereof (together, “Qatar”); or (B) any entity related to state a material fact required Qatar for which the Qatar Investment Authority provides no operational management or control and subsidiaries of such entities (together with Qatar “Excluded Persons”);or any official, agent or employee thereof, except to be stated therein the extent any such official, agent or necessary employee is an Associated Person) have (i) used any corporate funds for any unlawful contribution, gift, entertainment or other unlawful expense relating to make the statements therein not misleading and political activity; (ii) the Prospectus does not contain and, as amended made any direct or supplemented, if applicable, will not contain indirect unlawful payment to any untrue statement foreign or domestic government official or employee from corporate funds; (iii) violated or is in violation of a material fact or omit to state a material fact necessary to make the statements therein, in the light any provision of the circumstances under which they were madeForeign Corrupt Practices Act of 1977, not misleading, provided that to the representations and warranties set forth in this paragraph 2(e) are limited to statements or omissions in the Registration Statement or Prospectus made in reliance upon information relating extent applicable to the Selling Shareholder furnished to the Company in writing by Shareholder, or any applicable Brazilian law or regulation regarding illegal payments and corrupt practices; or (iv) made any bribe, illegal rebate, illegal payoff, illegal influence payment, kickback or other unlawful payment.
(m) The operations of the Selling Shareholder expressly for use and its subsidiaries, and to the knowledge of the Selling Shareholder, its affiliates (but not including any Excluded Persons or any official, agent or employee thereof, except to the extent any such official, agent or employee is an Associated Person), are and have been conducted at all times in compliance with the Registration StatementMoney Laundering Laws and no action, suit or proceeding by or before any court or governmental agency, authority or body or any arbitrator involving the Selling Shareholder or any of its subsidiaries with respect to the Money Laundering Laws is pending or, to the best knowledge of the Selling Shareholder, threatened.
(n) None of the Selling Shareholder, any of its subsidiaries, or, to the knowledge of the Selling Shareholder, any director, officer, agent, employee or affiliates (but not including any Excluded Persons or any official, agent or employee thereof, except to the extent any such official, agent or employee is an Associated Person) of the Selling Shareholder or any of its subsidiaries is an individual or entity currently the subject of any sanctions administered or enforced by the United States Government, including, without limitation, the Prospectus OFAC, the UNSC, the European Union, HMT, Switzerland, or other relevant sanctions authority (collectively “Sanctions”); and the Selling Shareholder will not directly or indirectly use the proceeds of the sale of the ADSs hereunder, or lend, contribute or otherwise make available such proceeds to any amendments subsidiary, joint venture partner or supplements theretoother person or entity, for the purpose of financing the activities of any person currently subject to any U.S., United Nations, European Union, English or Swiss sanctions administered by OFAC, UNSC, the European Union, HMT or Switzerland, respectively, in violation of such Sanctions.
Appears in 1 contract
Sources: International Underwriting and Placement Agreement (Banco Santander (Brasil) S.A.)
Representations and Warranties of the Selling Shareholder. The Selling Shareholder hereby represents and warrants to the Company and agrees with each of the Underwriters thatUnderwriter as follows:
(a) The Selling Shareholder has caused certificates for the number of Shares to be sold by the Selling Shareholder hereunder to be delivered to the Company (in such capacity, the "Custodian"), endorsed in blank or with blank stock powers duly executed, with a signature appropriately guaranteed, such certificates to be held in custody by the Custodian for delivery, pursuant to the provisions of this Agreement and an agreement dated on or about the date hereof between the Custodian and the Selling Shareholder (the "Custody Agreement").
(b) The Selling Shareholder has granted an irrevocable power of attorney (the "Power of Attorney") to the Company and Cra▇▇ ▇▇▇▇▇, ▇n behalf of the Selling Shareholder, to execute and deliver this Agreement and any other document necessary or desirable in connection with the transactions contemplated hereby and to deliver the shares to be sold by the Selling Shareholder pursuant hereto.
(c) This Agreement, the Custody Agreement, the Power of Attorney and the Lock-Up Agreement has have each been duly authorized, executed and delivered by or on behalf of the Selling Shareholder and, assuming due authorization, execution and delivery by the other parties hereto, each constitutes the valid and legally binding agreement of the Selling Shareholder, enforceable against the Selling Shareholder in accordance with its terms, except as the enforceability thereof may be limited by bankruptcy, insolvency, reorganization, moratorium or other similar laws affecting the enforcement of creditors' rights generally and by general equitable principals.
(bd) The execution and delivery by the Selling Shareholder of, of this Agreement and the performance by the Selling Shareholder of its obligations under, under this Agreement (i) will not contravene any provision of applicable law, statute, rule or the memorandum and articles of association of the Selling Shareholder, regulation or any agreement or other instrument binding upon the Selling Shareholder or any judgment, order or decree of any governmental body, agency or court having jurisdiction over the Selling Shareholder, and no (ii) does not require on the part of the Selling Shareholder any consent, approval, authorization or order of, of or qualification with, registration or filing with any court or governmental agency or body or agency is required for the performance by the Selling Shareholder of its obligations under this Agreementhaving jurisdiction over it, except such as may be required by the securities or Blue Sky laws of the various states or other jurisdiction in connection with the offer and sale of the SharesShares which have been or will be effected in accordance with this Agreement, and (iii) will not result in the creation or imposition of any lien, charge or encumbrance upon any property or assets of the Selling Shareholder pursuant to the terms of any agreement or instrument to which the Selling Shareholder is a party or by which the Selling Shareholder may be bound or to which any of the property or assets of the Selling Shareholder is subject.
(ce) The Selling Shareholder has, and on the each Closing Date on which Shares to be sold by the Selling Shareholder pursuant to this Agreement will have, valid and marketable title to, or a valid “security entitlement” within the meaning of Section 8-501 of the New York Uniform Commercial Code (the “UCC”) in respect of, to the Shares to be sold by the Selling Shareholder on such Closing Date, free and clear of all any lien, claim, security interests, claims, liens, equities interest or other encumbrances encumbrance, including, without limitation, any restriction on transfer, except as otherwise described in the Registration Statement and the legal right and powerProspectus.
(f) The Selling Shareholder has, and all authorization on each Closing Date on which Shares to be sold by the Selling Shareholder pursuant to this Agreement will have, -13- 14 full legal right, power and authorization, and any approval required by law, to enter into this Agreement and to sell, assign, transfer and deliver the Shares to be sold by the Selling Shareholder or a security entitlement on such Closing Date in respect of such Sharesthe manner provided by this Agreement.
(dg) Upon delivery of and payment for the Shares to be sold by the Selling Shareholder on any Closing Date pursuant to this Agreement, delivery of such Shares, as directed by the Underwriters, to Cede & Co. (“Cede”) or such other nominee as may be designated by the Depository Trust Company (“DTC”), registration of such Shares in the name of Cede or such other nominee and the crediting of such Shares on the books of DTC to securities accounts of the Underwriters (assuming that neither DTC nor any such Underwriter has notice of any adverse claim (within the meaning of Section 8-105 of the UCC) to such Shares), (A) DTC shall be a “protected purchaser” of such Shares within the meaning of Section 8-303 of the UCC, (B) under Section 8-501 of the UCC, the several Underwriters will acquire a receive valid security entitlement in respect of such Shares and (C) no action based on any “adverse claim”, within the meaning of Section 8-102 of the UCC, marketable title to such Shares may be asserted against the Underwriters with respect free and clear of any lien, claim, security interest or other encumbrance.
(h) All information relating to such security entitlement; for purposes of this representation, the Selling Shareholder may assume that when such payment, delivery and crediting occur, (x) such Shares will have been registered furnished in writing by the Selling Shareholder expressly for use in the name of Cede or another nominee designated Registration Statement and Prospectus is, and on each Closing Date on which Shares to be sold by DTC, in each case on the Company’s share register in accordance with its memorandum and articles of association and applicable law, (y) DTC will be registered as a “clearing corporation” within the meaning of Section 8-102 of the UCC and (z) appropriate entries to the accounts of the several Underwriters on the records of DTC will have been made Selling Shareholder pursuant to the UCC.
(i) The Registration Statementthis Agreement will be, when it became effectivetrue, did not contain andcorrect, as amended or supplementedand complete, if applicableand does not, and on each Closing Date will not not, contain any untrue statement of a material fact or omit to state a any material fact required to be stated therein or necessary to make such information not misleading.
(i) The Selling Shareholder has reviewed the statements therein not misleading Registration Statement and (ii) the Prospectus does not contain and, as amended although the Selling Shareholder has not independently verified the accuracy or supplementedcompleteness of all the information contained therein, if applicablenothing has come to the attention of the Selling Shareholder that would lead the Selling Shareholder to believe that (i) on the Effective Date, will not contain the Registration Statement contained any untrue statement of a material fact or omit omitted to state any material fact required to be stated therein in order to make the statements made therein not misleading and (ii) on the Effective Date, the Prospectus contained and, on each Closing Date contains, no untrue statement of a material fact or omitted or omits to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading, provided that the representations and warranties set forth in this paragraph 2(e.
(j) are limited to statements or omissions in the Registration Statement or Prospectus made in reliance upon information relating to the Selling Shareholder furnished to the Company in writing The sale of Shares by the Selling Shareholder expressly for use pursuant to this Agreement is not prompted by the Selling Shareholder's knowledge of any material information concerning the Company or the Subsidiary which is not set forth in the Registration StatementProspectus.
(k) The Selling Shareholder has not taken and will not take, directly or indirectly, any action designed to or that might reasonably be expected to cause or result in stabilization or manipulation of the Prospectus price of any security of the Company to facilitate the sale or resale of the Shares.
(l) The Selling Shareholder has no actual knowledge that any amendments representation or supplements theretowarranty of the Company set forth in Section 4 above is untrue or inaccurate in any material respect. -14- 15
(m) The representations and warranties of the Selling Shareholder in the Custody Agreement are, and on each Closing Date on which Shares to be sold by the Selling Shareholder pursuant to this Agreement will be, true and correct.
Appears in 1 contract
Sources: Underwriting Agreement (Talx Corp)
Representations and Warranties of the Selling Shareholder. The Selling Shareholder represents and warrants to and agrees with each of the Underwriters that:
(a) This Agreement has been duly authorized, executed and delivered by the or on behalf of such Selling Shareholder.
(b) The execution and delivery by the Selling Shareholder of, and the performance by the Selling Shareholder of its obligations under, this Agreement will not contravene any provision of applicable law, or the memorandum and articles of association of the Selling Shareholder, or any agreement or other instrument binding upon the Selling Shareholder or any judgment, order or decree of any governmental body, agency or court having jurisdiction over the Selling Shareholder, and no consent, approval, authorization or order of, or qualification with, any governmental body or agency is required for the performance by the Selling Shareholder of its obligations under this Agreement, except such as may be required by the securities or Blue Sky laws of the various states in connection with the offer and sale of the Shares.
(c) The Such Selling Shareholder has, and on the Closing Date will have, valid title to, or a valid “security entitlement” within the meaning of Section 8-501 of the New York Uniform Commercial Code (the “UCC”) in respect of, the Shares to be sold by the such Selling Shareholder free and clear of all security interests, claims, liens, equities or other encumbrances and the legal right and power, and all authorization and approval required by law, to enter into this Agreement and to sell, transfer and deliver the Shares to be sold by the such Selling Shareholder or a security entitlement in respect of such Shares.
(dc) Upon payment for the Shares to be sold by the such Selling Shareholder pursuant to this Agreement, delivery of such Shares, as directed by the Underwriters, to Cede & Co. (“Cede”) or such other nominee as may be designated by the Depository Trust Company (“DTC”), registration of such Shares in the name of Cede or such other nominee and the crediting of such Shares on the books of DTC to securities accounts of the Underwriters (assuming that neither DTC nor any such Underwriter has notice of any adverse claim (within the meaning of Section 8-105 of the New York Uniform Commercial Code (the “UCC”)) to such Shares), (A) DTC shall be a “protected purchaser” of such Shares within the meaning of Section 8-303 of the UCC, (B) under Section 8-501 of the UCC, the Underwriters will acquire a valid security entitlement in respect of such Shares and (C) no action based on any “adverse claim”, within the meaning of Section 8-102 of the UCC, to such Shares may be asserted against the Underwriters with respect to such security entitlement; for purposes of this representation, the such Selling Shareholder may assume that when such payment, delivery and crediting occur, (x) such Shares will have been registered in the name of Cede or another nominee designated by DTC, in each case on the Company’s share register registry in accordance with its memorandum and articles certificate of association incorporation, bylaws and applicable law, (y) DTC will be registered as a “clearing corporation” within the meaning of Section 8-102 of the UCC and (z) appropriate entries to the accounts of the several Underwriters on the records of DTC will have been made pursuant to the UCC.
(d) Such Selling Shareholder has no reason to believe that the representations and warranties of the Company contained in Section 1 are not true and correct, is familiar with the Registration Statement, the Time of Sale Prospectus and the Prospectus and has no knowledge of any material fact, condition or information not disclosed in the Registration Statement, the Time of Sale Prospectus or the Prospectus that has had, or may have, a material adverse effect on the Company and its subsidiaries, taken as a whole. Such Selling Shareholder is not prompted by any information concerning the Company or its subsidiaries which is not set forth in the Registration Statement, the Time of Sale Prospectus or the Prospectus to sell its Shares pursuant to this Agreement.
(i) The Registration Statement, when it became effective, did not contain and, as amended or supplemented, if applicable, will not contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading, (ii) the Registration Statement and the Prospectus comply and, as amended or supplemented, if applicable, will comply in all material respects with the Securities Act and the applicable rules and regulations of the Commission thereunder, (iii) the Time of Sale Prospectus does not, and at the time of each sale of the Shares in connection with the offering when the Prospectus is not yet available to prospective purchasers and at the Closing Date (as defined in Section 5), the Time of Sale Prospectus, as then amended or supplemented by the Company, if applicable, will not, contain any 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, (iv) each broadly available road show, if any, when considered together with the Time of Sale Prospectus, does not contain any 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 and (iiv) the Prospectus does not contain and, as amended or supplemented, if applicable, will not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading, provided that the representations and warranties set forth in this paragraph 2(e) are limited to statements or omissions in the Registration Statement or Prospectus made in reliance upon information relating to the such Selling Shareholder furnished to the Company in writing by the such Selling Shareholder expressly for use in the Registration Statement, the Time of Sale Prospectus, the Prospectus or any amendments or supplements thereto.
(f) (i) None of such Selling Shareholder or any of its subsidiaries, or, to the knowledge of such Selling Shareholder, any director, officer, employee, agent, representative, or affiliate thereof, is a Person that is, or is owned or controlled by one or more Persons that are:
(A) the subject of any Sanctions, or
(B) located, organized or resident in a country or territory that is the subject of Sanctions (including, without limitation, Crimea, Cuba, Iran, North Korea and Syria).
(ii) Such Selling Shareholder will not, directly or indirectly, use the proceeds of the offering, or lend, contribute or otherwise make available such proceeds to any subsidiary, joint venture partner or other Person:
(A) to fund or facilitate any activities or business of or with any Person or in any country or territory that, at the time of such funding or facilitation, is the subject of Sanctions; or
(B) in any other manner that will result in a violation of Sanctions by any Person (including any Person participating in the offering, whether as underwriter, advisor, investor or otherwise).
(iii) Such Selling Shareholder has not knowingly engaged in, is not now knowingly engaged in, and will not engage in, any dealings or transactions with any Person, or in any country or territory, that at the time of the dealing or transaction is or was the subject of Sanctions.
(a) None of such Selling Shareholder or any of its subsidiaries, or, to the knowledge of such Selling Shareholder, any director, officer, employee, agent, representative, or affiliate thereof has taken or will take any action in furtherance of an offer, payment, promise to pay, or authorization or approval of the payment giving or receipt of money, property, gifts or anything else of value, directly or indirectly, to any Government Official in order to influence official action, or to any person in violation of any applicable anti-corruption laws; (b) such Selling Shareholder and each of its subsidiaries have conducted their businesses in compliance with applicable anti-corruption laws and have instituted and maintained and will continue to maintain policies and procedures reasonably designed to promote and achieve compliance with such laws and with the representations and warranties contained herein; and (c) neither the Selling Shareholder nor any of its subsidiaries will use, directly or indirectly, the proceeds of the offering in furtherance of an offer, payment, promise to pay, or authorization of the payment or giving of money, or anything else of value, to any person in violation of any applicable anti-corruption laws.
(v) The operations of such Selling Shareholder and each of its subsidiaries are and have been conducted at all times in material compliance with all applicable Anti-Money Laundering Laws, and no action, suit or proceeding by or before any court or governmental agency, authority or body or any arbitrator involving such Selling Shareholder or any of its subsidiaries with respect to the Anti-Money Laundering Laws is pending or, to the best knowledge of the Selling Shareholder, threatened.
(g) Such Selling Shareholder represents and warrants that it is not (i) an employee benefit plan subject to Title I of the Employee Retirement Income Security Act of 1974, as amended (“ERISA”), (ii) a plan or account subject to Section 4975 of the Internal Revenue Code of 1986, as amended or (iii) an entity deemed to hold “plan assets” of any such plan or account under Section 3(42) of ERISA, 29 C.F.R. 2510.3-101, or otherwise.
(h) No stamp, documentary, issuance, registration, transfer, withholding, capital gains, income or other taxes or duties are payable by or on behalf of the Underwriters, the Company or any of its subsidiaries in the United Kingdom or to any taxing authority thereof or therein in connection with (i) the execution, delivery or consummation of this Agreement, (ii) the sale and delivery of the Shares to the Underwriters or purchasers procured by the Underwriters, or (iii) the resale and delivery of the Shares by the Underwriters in the manner contemplated herein.
(i) Such Selling Shareholder has the power to submit, and pursuant to Section 15(a) has, to the extent permitted by law, legally, validly, effectively and irrevocably submitted to the jurisdiction of the Specified Courts (as defined in Section 15(a)), and has the power to designate, appoint and empower, and pursuant to Section 15(b), has legally, validly and effectively designated, appointed and empowered an agent for service of process in any suit or proceeding based on or arising under this Agreement in any of the Specified Courts.
Appears in 1 contract
Representations and Warranties of the Selling Shareholder. The Selling Shareholder represents and warrants to and agrees with each of the Underwriters that:
(a) This Agreement has been duly authorized, executed and delivered by or on behalf of the Selling Shareholder.
(b) The execution and delivery by the Selling Shareholder of, and the performance by the Selling Shareholder of its obligations under, this Agreement Agreement, will not contravene any provision of applicable law, or the memorandum and certificate of incorporation or articles of association or equivalent organizational document of the Selling Shareholder, or any agreement or other instrument binding upon the Selling Shareholder or any judgment, order or decree of any governmental body, agency or court having jurisdiction over the Selling ShareholderShareholder except for such contraventions as would not, individually or in the aggregate, reasonably, be expected to have a material adverse effect on the ability of the Selling Shareholder to perform its obligations under this Agreement, and no consent, approval, authorization or order of, or qualification with, any governmental body or agency is required for the performance by the Selling Shareholder of its obligations under this Agreement, except such as have been obtained and made under the Securities Act and such as may be required under the Exchange Act or the rules and the regulations thereunder by the securities or Blue Sky laws of the various states state or foreign jurisdictions in connection with the offer and sale of the Shares.
(c) The Selling Shareholder has, and on the Closing Date will have, full right, power and authority to enter into this Agreement and to sell, assign, transfer and deliver the Shares to be delivered by the Selling Shareholder on such Closing Date hereunder, and valid title to, to or a valid “security entitlement” entitlement (within the meaning of Section 8-501 of the New York Uniform Commercial Code (the “UCC”Code) in respect ofof such Shares, the Shares to be sold by the Selling Shareholder free and clear of all security interests, claims, liens, equities or other encumbrances and the legal right and power, and all authorization and approval required by law, to enter into this Agreement and to sell, transfer and deliver the Shares to be sold by the Selling Shareholder or a security entitlement in respect of such Sharesencumbrances.
(d) Upon payment for the Shares to be sold by the Selling Shareholder pursuant to this Agreement, delivery of such Shares, as directed by the Underwriters, to Cede & Co. (“Cede”) or such other nominee as may be designated by the Depository Trust Company (“DTC”), registration of such Shares in the name of Cede or such other nominee and the crediting of such Shares on the books of DTC to securities accounts of the Underwriters (assuming that neither DTC nor any such Underwriter has notice of any adverse claim (within the meaning of Section 8-105 of the New York Uniform Commercial Code (the “UCC”)) to such Shares), (A) DTC shall be a “protected purchaser” of such Shares within the meaning of Section 8-303 of the UCC, (B) under Section 8-501 of the UCC, the Underwriters will acquire a valid security entitlement in respect of such Shares and (C) no action based on any “adverse claim”, within the meaning of Section 8-102 of the UCC, to such Shares may be asserted against the Underwriters with respect to such security entitlement; for purposes of this representation, the Selling Shareholder may assume that when such payment, delivery and crediting occur, (x) such Shares will have been registered in the name of Cede or another nominee designated by DTC, in each case on the Company’s share register in accordance with its memorandum and articles of association and applicable law, (y) DTC will be registered as a “clearing corporation” within the meaning of Section 8-102 of the UCC and (z) appropriate entries to the accounts of the several Underwriters on the records of DTC will have been made pursuant to the UCC.
(e) (i) The Each document, if any, filed or to be filed pursuant to the Exchange Act and incorporated by reference in the Time of Sale Prospectus or the Prospectus complied or will comply when so filed in all material respects with the Exchange Act and the applicable rules and regulations of the Commission thereunder, (ii) each part of the Registration Statement, when it such part became effective, did not contain andcontain, and each such part, as amended or supplemented, if applicable, will not contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading, (iii) the Registration Statement as of the date hereof does not contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading, (iv) the Registration Statement and the Prospectus comply, and as amended or supplemented, if applicable, will comply in all material respects with the Securities Act and the applicable rules and regulations of the Commission thereunder, (v) the Time of Sale Prospectus does not, and at the time of each sale of the Shares in connection with the offering when the Prospectus is not yet available to prospective purchasers and at the Closing Date (as defined in Section 5), the Time of Sale Prospectus, as then amended or supplemented by the Company, if applicable, will not, contain any 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, (vi) each broadly available road show, if any, when considered together with the Time of Sale Prospectus, does not contain any 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 and (iivii) the Prospectus does not contain and, as amended or supplemented, if applicable, will not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading, provided that the representations and warranties set forth in this paragraph 2(e) are limited to statements or omissions in the Registration Statement or Prospectus made in reliance upon information relating to the Selling Shareholder furnished to the Company in writing by or on behalf of the Selling Shareholder; it being understood and agreed that the only such information furnished by the Selling Shareholder expressly for use consists of the following information in the Registration StatementProspectus: the Selling Shareholder’s name and the information relating to the principal shareholders and Selling Shareholder’s holdings of Shares set forth in the section entitled “Selling Shareholder”.
(f) The Selling Shareholder has not taken and will not take, directly or indirectly, any action that is designed to or that might reasonably be expected to cause or result in unlawful stabilization or manipulation of the Prospectus price of any security of the Company to facilitate the sale or resale of the Shares.
(g) The Selling Shareholder is not (i) an employee benefit plan subject to Title I of the Employee Retirement Income Security Act of 1974, as amended (“ERISA”), (ii) a plan or account subject to Section 4975 of the Internal Revenue Code of 1986, as amended or (iii) an entity deemed to hold “plan assets” of any amendments such plan or supplements theretoaccount under Section 3(42) of ERISA, 29 C.F.R. 2510.3-101, or otherwise.
Appears in 1 contract
Sources: Underwriting Agreement (Atento S.A.)
Representations and Warranties of the Selling Shareholder. The Selling Shareholder represents and warrants to and agrees with each of the Underwriters on the date hereof and on the Closing Date that:
(a) This Agreement has been duly authorized, executed and delivered by the Selling Shareholder.
(b) The execution and delivery by the Such Selling Shareholder of, is the record and beneficial owner of and has valid and marketable title to the performance by the Selling Shareholder of its obligations under, this Agreement will not contravene any provision of applicable law, or the memorandum and articles of association of the Selling Shareholder, or any agreement or other instrument binding upon the Selling Shareholder or any judgment, order or decree of any governmental body, agency or court having jurisdiction over the Selling Shareholder, and no consent, approval, authorization or order of, or qualification with, any governmental body or agency is required for the performance by the Selling Shareholder of its obligations under this Agreement, except such as may be required by the securities or Blue Sky laws of the various states in connection with the offer and sale of the Shares.
(c) The Selling Shareholder has, and on the Closing Date will have, valid title to, or a valid “security entitlement” within the meaning of Section 8-501 of the New York Uniform Commercial Code (the “UCC”) in respect of, the Firm Shares to be sold by the such Selling Shareholder Shareholder, free and clear of all security interests, claims, liens, restrictions on transferability, legends, proxies, equities or other encumbrances encumbrances, other than the Custody Agreement (as defined below). Upon delivery of and payment for the legal right Firm Shares to be sold by such Selling Shareholder hereunder, the several Underwriters will acquire valid and powermarketable title thereto, free and clear of any security interests, claims, liens, restrictions on transferability, proxies, equities or other encumbrances. Such Selling Shareholder is selling the Firm Shares to be sold by such Selling Shareholder for such Selling Shareholder’s own account and is not selling such Firm Shares, directly or indirectly, for the benefit of the Company, and all authorization no part of the proceeds of such sale received by such Selling Shareholder will inure, either directly or indirectly, to the benefit of the Company other than as described in the Registration Statement and approval required by law, Prospectus.
(b) Such Selling Shareholder has the power and authority to enter into this Agreement and to sell, transfer and deliver the Firm Shares to be sold by the such Selling Shareholder.
(c) This Agreement has been duly authorized, executed and delivered by or on behalf of such Selling Shareholder or and constitutes a security entitlement in respect valid and binding agreement of such SharesSelling Shareholder, enforceable in accordance with its terms, except as rights to indemnity hereunder may be limited by federal or state securities laws and except as such enforceability may be limited by any Enforcement Limitation.
(d) Upon payment Such Selling Shareholder has duly authorized, executed and delivered to ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, as attorney-in-fact (the “Attorney-in-Fact”), an irrevocable power of attorney (a “Power of Attorney”) substantially in the form attached hereto as Exhibit B, authorizing and directing the Attorney-in-Fact, or either of them, to effect the sale and delivery of the Firm Shares being sold by such Selling Shareholder and to take all such other action as may be necessary hereunder. The Power of Attorney has been duly authorized, executed and delivered by or on behalf of such Selling Shareholder and constitutes a valid and binding obligation of such Selling Shareholder enforceable in accordance with its terms, except to the extent enforceability may be limited by any Enforcement Limitation.
(e) Such Selling Shareholder has duly authorized, executed and delivered a Letter of Transmittal and Custody Agreement (“Custody Agreement”) to ▇▇▇▇▇ Fargo Shareholder Services, substantially in the form attached hereto as Exhibit C, as Custodian (the “Custodian”). Pursuant to the Custody Agreement, such Selling Shareholder has in custody with the Custodian, for delivery under this Agreement, the certificates representing the Firm Shares to be sold by such Selling Shareholder; such certificates represent fully paid and nonassessable shares of Common Stock, and such certificates were duly and properly endorsed in blank for transfer, or were accompanied by all documents duly and properly executed that are necessary to validate the Selling Shareholder pursuant transfer of title thereto, to this Agreement, delivery of such Shares, as directed by the Underwriters, to Cede & Co. (“Cede”) free of any legend, restriction on transferability, proxy, lien or such other nominee as may be designated claim, whatsoever. The Custody Agreement has been duly authorized, executed and delivered by the Depository Trust Company (“DTC”), registration or on behalf of such Shares in the name of Cede or such other nominee Selling Shareholder and the crediting constitutes a valid and binding obligation of such Shares on the books of DTC to securities accounts of the Underwriters (assuming that neither DTC nor any such Underwriter has notice of any adverse claim (within the meaning of Section 8-105 of the UCC) to such Shares), (A) DTC shall be a “protected purchaser” of such Shares within the meaning of Section 8-303 of the UCC, (B) under Section 8-501 of the UCC, the Underwriters will acquire a valid security entitlement in respect of such Shares and (C) no action based on any “adverse claim”, within the meaning of Section 8-102 of the UCC, to such Shares may be asserted against the Underwriters with respect to such security entitlement; for purposes of this representation, the Selling Shareholder may assume that when such payment, delivery and crediting occur, (x) such Shares will have been registered in the name of Cede or another nominee designated by DTC, in each case on the Company’s share register enforceable in accordance with its memorandum terms, except to the extent enforceability may be limited by any Enforcement Limitation.
(f) The execution and articles delivery of association this Agreement, the Power of Attorney and applicable the Custody Agreement, and the performance of the terms thereof and the consummation of the transactions therein contemplated will not result in a (A) breach or violation of any of the terms and provisions of, or constitute a default under, any agreement or instrument to which such Selling Shareholder is a party or by which such Selling Shareholder is bound, unless such conflict, breach, violation or default would not adversely affect such Selling Shareholder’s ability to perform any of his or its obligations under this Agreement, the Custody Agreement and the Power of Attorney or any of the transactions contemplated hereby and thereby; or (B) violation of any law, regulation, order or decree applicable to such Selling Shareholder. No consent, approval, authorization or order of, or filing with, any court or governmental agency or body is required for the execution, delivery and performance by such Selling Shareholder thereof or for the consummation of the transactions contemplated hereby or thereby, including the sale of the Firm Shares being sold by such Selling Shareholder, except such as may be required under the Securities Act or state securities laws or blue sky laws.
(yg) DTC Such Selling Shareholder does not have any registration or other similar rights to have any equity or debt securities registered for sale by the Company under the Registration Statement or included in the offering contemplated by this Agreement.
(h) Such Selling Shareholder has not distributed and will not distribute any prospectus or other offering material in connection with the offering and sale of the Firm Shares other than any Preliminary Prospectus, the Time of Sale Prospectus or the Prospectus or other materials permitted by the Securities Act to be registered as distributed by such Selling Shareholder; provided, however, that no Selling Shareholder has made nor will make any offer relating to the Firm Shares that would constitute a “clearing corporationfree writing prospectus” within as defined in Rule 405 under the meaning of Section 8-102 of Securities Act except a Permitted Free Writing Prospectus authorized for distribution by the UCC Company and (z) appropriate entries to the accounts of the several Underwriters on the records of DTC will have been made pursuant to the UCCUnderwriters.
(i) The Such Selling Shareholder has reviewed the Registration Statement, when it became effectivethe Time of Sale Prospectus and the Prospectus and neither the Registration Statement, did not contain and, as amended or supplemented, if applicable, will not contain the Time of Sale Prospectus nor the Prospectus contains any untrue statement of a material fact or omit omits to state a any material fact required to be stated therein or necessary to make the statements therein not misleading and (ii) the Prospectus does not contain and, as amended or supplemented, if applicable, will not contain any 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 are made, not misleadingmisleading regarding such Selling Shareholder, provided that and, to the knowledge of such Selling Shareholder, the Company or otherwise.
(j) To the knowledge of such Selling Shareholder, the representations and warranties set forth in this paragraph 2(e) are limited to statements or omissions in the Registration Statement or Prospectus made in reliance upon information relating to the Selling Shareholder furnished to of the Company contained in writing by the Selling Shareholder expressly for use in the Registration Statement, the Prospectus or any amendments or supplements theretoSection 1 are true and correct.
Appears in 1 contract
Sources: Purchase Agreement (Datalink Corp)
Representations and Warranties of the Selling Shareholder. The Selling Shareholder represents and warrants to and agrees with each of the Underwriters that:
(a) This Agreement has been duly authorized, executed and delivered by the or on behalf of such Selling Shareholder.
(b) The execution and delivery by the such Selling Shareholder of, and the performance by the of such Selling Shareholder of its Shareholder’s obligations under, this Agreement will not contravene any provision provisions of applicable law, or the memorandum and articles of association of the Selling Shareholder, or any agreement or other instrument binding upon the such Selling Shareholder or any judgment, order or decree of any governmental body, agency or court having jurisdiction over such Selling Shareholder, in each case, except as would not impair in any material respect the Selling Shareholder, and no consent, approval, authorization or order of, or qualification with, any governmental body or agency is required for ’s ability to consummate the performance transactions to be consummated by the Selling Shareholder of its obligations him under this Agreement, except such as may be required by the securities or Blue Sky laws of the various states in connection with the offer and sale of the Shares.
(c) The Such Selling Shareholder has, and on the any Option Closing Date will havehave (assuming due issuance of any Shares to be issued upon the exercise of options to purchase shares of common stock), valid title to, or a valid “security entitlement” within the meaning of Section 8-501 of the New York Uniform Commercial Code (the “UCC”) in respect of, the Shares to be sold by the such Selling Shareholder free and clear of all security interests, claims, liens, equities or other encumbrances (other than as created by this Agreement to be entered into by the Selling Shareholder in connection with this Agreement) and the legal right and power, and all authorization and approval required by law, to enter into this Agreement and to sell, transfer and deliver the Shares to be sold by the such Selling Shareholder or a security entitlement in respect of such Shares.
(d) Upon payment for the Shares to be sold by the such Selling Shareholder pursuant to this Agreement, delivery of such Shares, as directed by the Underwriters, to Cede & Co. (“Cede”) or such other nominee as may be designated by the Depository Trust Company (“DTC”), registration of such Shares in the name of Cede or such other nominee and the crediting of such Shares on the books of DTC to securities accounts of the Underwriters (assuming that neither DTC nor any such Underwriter has notice of any adverse claim (within the meaning of Section 8-105 of the UCC) to such Shares), (A) DTC shall be a “protected purchaser” of such Shares within the meaning of Section 8-303 of the UCC, (B) under Section 8-501 of the UCC, the Underwriters will acquire a valid security entitlement in respect of such Shares and (C) no action based on any “adverse claim”, within the meaning of Section 8-102 of the UCC, to such Shares may be successfully asserted against the Underwriters with respect to such security entitlement; for purposes of this representation, the such Selling Shareholder may assume that when such payment, delivery and crediting occur, (x) such Shares will have been registered in the name of Cede or another nominee designated by DTC, in each case on the Company’s share register registry in accordance with its memorandum and articles of association incorporation, bylaws and applicable law, (y) DTC will be registered as a “clearing corporation” within the meaning of Section 8-102 of the UCC and (z) appropriate entries to the accounts of the several Underwriters on the records of DTC will have been made pursuant to the UCC.
(e) Such Selling Shareholder is not prompted to sell his Shares pursuant to this Agreement by any material non-public information concerning the Company or its subsidiaries which is not set forth in the Time of Sale Prospectus.
(i) The Registration Statement, when it became effective, did not contain and, as amended or supplemented, if applicable, will not not, as of the date of such amendment or supplement, contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading, (ii) the Time of Sale Prospectus does not, and at the time of each sale of the Shares held by the Selling Shareholder in connection with the offering of such Shares when the Prospectus is not yet available to prospective purchasers and at the Closing Date (as defined in Section 5), the Time of Sale Prospectus, as then amended or supplemented by the Company, if applicable, will not, contain any 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, (iii) each broadly available road show, if any, when considered together with the Time of Sale Prospectus, does not contain any 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 and (iiiv) the Prospectus does not contain and, as amended or supplemented, if applicable, will not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading, provided except that the representations and warranties set forth in this paragraph 2(e2(g) are limited (y) do not apply to statements or omissions in the Registration Statement Statement, the Time of Sale Prospectus or any Prospectus based upon information relating to any Underwriter furnished to the Company in writing by such Underwriter through you expressly for use in the Registration Statement, the Time of Sale Prospectus, the Prospectus or any amendments or supplements thereto and (z) are limited in all respects to statements or omissions made in reliance upon and in conformity with information relating to the Selling Shareholder furnished to the Company in writing by the Selling Shareholder expressly for use in the Registration Statement, the Time of Sale Prospectus, the Prospectus or any amendments or supplements thereto, it being understood and agreed that the only information furnished by such Selling Shareholder consists of the name of such Selling Shareholder, the number of offered shares and the address and other information with respect to such Selling Shareholder (excluding percentages) which appear in the Registration Statement or any Prospectus in the table (and corresponding footnotes) under the caption “Selling Shareholder” (with respect to the Selling Shareholder, the “Selling Shareholder Information”).
(g) Such Selling Shareholder has executed a “lock-up” agreement with the Managers, substantially in the form of Exhibit A hereto, relating to sales and certain other dispositions of shares of Common Stock or certain other securities, that is in full force and effect as of the date hereof and shall be in full force and effect as of the Closing Date.
(h) The Selling Shareholder is not a person that is: (i) the subject of any Sanctions or (ii) located or resident in a country or territory that is the subject of Sanctions (including, without limitation, Cuba, Iran, North Korea, Syria and the Crimea region of Ukraine). For the past 5 years, the Selling Shareholder has not knowingly engaged in and is not now knowingly engaged in any dealings or transactions with any Person, or in any country or territory, that at the time of the dealing or transaction is or was the subject of Sanctions.
Appears in 1 contract
Sources: Underwriting Agreement (INSMED Inc)
Representations and Warranties of the Selling Shareholder. The Selling Shareholder represents and warrants to and agrees with each of the Underwriters that:
(a) This Agreement has been duly authorized, executed and delivered by or on behalf of the Selling Shareholder.
(b) The execution and delivery by the Selling Shareholder of, and the performance by the Selling Shareholder of its obligations under, this Agreement and the Letter of Transmittal and Custody Agreement signed by the Selling Shareholder and Wachovia Bank, N.A., as Custodian, relating to the deposit of the Shares to be sold by the Selling Shareholder (the “Custody Agreement”) and the consummation of the transactions contemplated thereby will not contravene any provision of applicable law, or the memorandum Last Will and articles Testament of association of ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, by which the Selling ShareholderShareholder was established, or any agreement or other instrument binding upon the Selling Shareholder or any judgment, order or decree of any governmental body, agency or court having jurisdiction over the Selling Shareholder, and no consent, approval, authorization or order of, or qualification with, any governmental body or agency is required for the performance by the Selling Shareholder of its obligations under this Agreement or the Custody Agreement, except such as may be required by the securities or Blue Sky laws of the various states in connection with the offer and sale of the Shares.
(c) The Selling Shareholder has, and on the Closing Date will have, valid title to, or a valid “security entitlement” within the meaning of Section 8-501 of the New York Uniform Commercial Code (the “UCC”) in respect of, the Shares to be sold by the Selling Shareholder free and clear of all security interests, claims, liens, equities or other encumbrances and the legal right and power, and all authorization and approval required by law, to enter into this Agreement and the Custody Agreement and to sell, transfer and deliver the Shares to be sold by the Selling Shareholder or a security entitlement in respect of such Shares.
(d) Upon payment for The Custody Agreement has been duly authorized and when executed and delivered by the Selling Shareholder will be a valid and binding agreement of the Selling Shareholder.
(e) Delivery of the Shares to be sold by the Selling Shareholder and payment therefor pursuant to this Agreement, delivery of Agreement will pass valid title to such Shares, as directed by the Underwriters, to Cede & Co. (“Cede”) or such other nominee as may be designated by the Depository Trust Company (“DTC”), registration of such Shares in the name of Cede or such other nominee free and the crediting of such Shares on the books of DTC to securities accounts of the Underwriters (assuming that neither DTC nor any such Underwriter has notice clear of any adverse claim (within the meaning of Section 8-105 of the UCC) to such Shares), (A) DTC shall be a “protected purchaser” of such Shares within the meaning of Section 8-303 of the UCC, (B) under Section 8-501 of the UCC, the Underwriters will acquire a valid security entitlement in respect of such Shares and (C) no action based on any “adverse claim”, within the meaning of Section 8-102 of the UCCNew York Uniform Commercial Code, to each Underwriter who has purchased such Shares may be asserted against the Underwriters with respect to such security entitlement; for purposes without notice of this representation, the an adverse claim.
(f) The Selling Shareholder may assume that when such paymenthas not taken and will not take, delivery and crediting occurdirectly or indirectly, (x) such Shares will have been registered any action which is designed to or which has constituted or which might reasonably be expected to cause or result in the name of Cede stabilization or another nominee designated by DTC, in each case on the Company’s share register in accordance with its memorandum and articles of association and applicable law, (y) DTC will be registered as a “clearing corporation” within the meaning of Section 8-102 manipulation of the UCC and (z) appropriate entries to the accounts price of any security of the several Underwriters on Company to facilitate the records sale or resale of DTC will have been made pursuant to the UCCShares.
(i) The To the best of the knowledge of the Selling Shareholder, after due inquiry, the Registration Statement, when it became effective, did not contain and, as amended or supplemented, if applicable, will not contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading misleading, (ii) the Registration Statement and the Prospectus comply and, as amended or supplemented, if applicable, will comply in all material respects with the Securities Act and the applicable rules and regulations of the Commission thereunder and (iiiii) the Prospectus does not contain and, as amended or supplemented, if applicable, will not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading, provided except that the representations and warranties set forth in this paragraph 2(e2(g) are limited do not apply to statements or omissions in the Registration Statement or the Prospectus made in reliance based upon information relating to the Selling Shareholder either Underwriter furnished to the Company in writing by the Selling Shareholder such Underwriter expressly for use therein.
(h) the statements in the Registration Statement, Base Prospectus under the caption “▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ Testamentary Trust,” and in the Prospectus Supplement under the captions “Prospectus Summary and Recent Developments— ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ Testamentary Trust” and “Selling Shareholder” insofar as such statements constitute summaries of the legal matters, documents or any amendments or supplements theretoproceedings referred to therein, fairly present the information called for with respect to such legal matters, documents and proceedings and fairly summarize the matters referred to therein.
Appears in 1 contract
Sources: Underwriting Agreement (Dupont Alfred I Testamentary Trust)
Representations and Warranties of the Selling Shareholder. The Selling Shareholder represents and warrants to and agrees with each of the Underwriters that:
(a) This Agreement has been duly authorized, executed and delivered by or on behalf of the Selling Shareholder.
(b) The execution and delivery by the Selling Shareholder of, and the performance by the Selling Shareholder of its obligations under, this Agreement Agreement, will not contravene any provision of applicable law, or the memorandum and articles certificate of association incorporation or by-laws or equivalent organizational document of the Selling Shareholder, or any agreement or other instrument binding upon the Selling Shareholder or any judgment, order or decree of any governmental body, agency or court having jurisdiction over the Selling ShareholderShareholder except for such contraventions as would not, individually or in the aggregate, reasonably, be expected to have a material adverse effect on the ability of the Selling Shareholder to perform its obligations under this Agreement, and no consent, approval, authorization or order of, or qualification with, any governmental body or agency is required for the performance by the Selling Shareholder of its obligations under this Agreement, except such as have been obtained and made under the Securities Act and such as may be required under the Exchange Act or the rules and the regulations thereunder by the securities or Blue Sky laws of the various states state or foreign jurisdictions in connection with the offer and sale of the Shares.
(c) The Selling Shareholder has, and on the Closing Date will have, valid title tofull right, power and authority to enter into this Agreement and to sell, assign, transfer and deliver the Shares to be delivered by the Selling Shareholder on such Closing Date hereunder or a valid “security entitlement” entitlement (within the meaning of Section 8-501 of the New York Uniform Commercial Code (the “UCC”Code) in respect ofof such Shares, the Shares to be sold by the Selling Shareholder free and clear of all security interests, claims, liens, equities or other encumbrances and the legal right and power, and all authorization and approval required by law, to enter into this Agreement and to sell, transfer and deliver the Shares to be sold by the Selling Shareholder or a security entitlement in respect of such Sharesencumbrances.
(d) Upon payment for the Shares to be sold by the Selling Shareholder pursuant to this Agreement, delivery of such Shares, as directed by the Underwriters, to Cede & Co. (“Cede”) or such other nominee as may be designated by the Depository Trust Company (“DTC”), registration of such Shares in the name of Cede or such other nominee and the crediting of such Shares on the books of DTC to securities accounts of the Underwriters (assuming that neither DTC nor any such Underwriter has notice of any adverse claim (within the meaning of Section 8-105 of the New York Uniform Commercial Code (the “UCC”)) to such Shares), (A) DTC shall be a “protected purchaser” of such Shares within the meaning of Section 8-303 of the UCC, (B) under Section 8-501 of the UCC, the Underwriters will acquire a valid security entitlement in respect of such Shares and (C) no action based on any “adverse claim”, within the meaning of Section 8-102 of the UCC, to such Shares may be asserted against the Underwriters with respect to such security entitlement; for purposes of this representation, the Selling Shareholder may assume that when such payment, delivery and crediting occur, (x) such Shares will have been registered in the name of Cede or another nominee designated by DTC, in each case on the Company’s share register registry in accordance with its memorandum and articles of association and applicable law, (y) DTC will be registered as a “clearing corporation” within the meaning of Section 8-102 of the UCC and (z) appropriate entries to the accounts of the several Underwriters on the records of DTC will have been made pursuant to the UCC.
(i) The Registration Statement, when it became effective, did not contain and, as amended or supplemented, if applicable, will not contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading, (ii) the Time of Sale Prospectus does not, and at the time of each sale of the Shares in connection with the offering when the Prospectus is not yet available to prospective purchasers and at the Closing Date (as defined in Section 5), the Time of Sale Prospectus, as then amended or supplemented by the Company, if applicable, will not, contain any 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, (iii) each broadly available road show, if any, when considered together with the Time of Sale Prospectus, does not contain any 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 and (iiiv) the Prospectus does not contain and, as amended or supplemented, if applicable, will not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading, provided that the representations and warranties set forth in this paragraph 2(e2(f) are limited to statements or omissions in the Registration Statement or Prospectus made in reliance upon information relating to the Selling Shareholder furnished to the Company in writing by the Selling Shareholder; it being understood and agreed that the only such information furnished by the Selling Shareholder expressly for use consists of the following information in the Registration StatementProspectus furnished in writing on behalf of the Selling Shareholder: the Selling Shareholder’s name and the information relating to the principal shareholders and Selling Shareholder’s holdings of Shares set forth in the section entitled “Principal and Selling Shareholders”. The Selling Shareholder has not taken and will not take, directly or indirectly, any action that is designed to or that might reasonably be expected to cause or result in unlawful stabilization or manipulation of the Prospectus price of any security of the Company to facilitate the sale or any amendments or supplements theretoresale of the Shares.
Appears in 1 contract
Sources: Underwriting Agreement (Atento S.A.)
Representations and Warranties of the Selling Shareholder. The Each of ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇ (“Motto”) and the Selling Shareholder Shareholder, jointly and severally, represents and warrants to to, and agrees with each of with, the Underwriters Underwriter that:
(a) This Agreement has been duly authorized, executed and delivered by or on behalf of the Selling Shareholder and is a valid and binding agreement of the Selling Shareholder, enforceable in accordance with its terms, except as rights to indemnification hereunder may be limited by applicable law and except as the enforcement hereof may be limited by bankruptcy, insolvency, reorganization, moratorium or other similar laws relating to or affecting the rights and remedies of creditors or by general equitable principles.
(b) The Selling Shareholder has, and on the Closing Date will have, good and valid title to the Selling Shareholder Shares pursuant to this Agreement on such date and the legal right and power to sell, transfer and deliver all of the Firm Securities that may be sold by such Selling Shareholder pursuant to this Agreement and to comply with its other obligations hereunder and thereunder.
(c) Upon payment therefore pursuant hereto, delivery of the Selling Shareholder Shares pursuant to this Agreement will pass good and valid title to such Selling Shareholder Shares, free and clear of any security interest, mortgage, pledge, lien, encumbrance or other adverse claim.
(d) The execution and delivery by the Selling Shareholder of, and the performance by the such Selling Shareholder of its obligations under, this Agreement will not contravene any provision of applicable lawor conflict with, result in a breach of, or the memorandum and articles of association of the Selling Shareholderconstitute a default under, or require the consent of any agreement other party to, the charter or by-laws or other instrument binding upon organizational documents of the Selling Shareholder or any other agreement or instrument to which a Selling Shareholder is a party or by which it is bound or under which it is entitled to any right or benefit, any provision of applicable law or any judgment, order order, decree or decree regulation applicable to such Selling Shareholder of any governmental court, regulatory body, agency administrative agency, governmental body or court arbitrator having jurisdiction over the such Selling Shareholder, and no . No consent, approval, authorization or other order of, or qualification registration or filing with, any court or other governmental body authority or agency agency, is required of or by a Selling Shareholder for the performance consummation by the such Selling Shareholder of its obligations under the transactions contemplated in this Agreement, except such as may be required have been obtained or made and are in full force and effect under the Securities Act, applicable state securities or blue sky laws.
(e) The Selling Shareholder (i) does not, other than with respect to the Motto Agreement, have any registration or other similar rights to have any equity or debt securities registered for sale by the securities Company under the Registration Statement or Blue Sky laws included in the offering contemplated by this Agreement, except for the Selling Shareholder Shares, (ii) does not have any preemptive right, co-sale right or right of first refusal or other similar right to purchase any of the various states Company Shares to be sold to the Underwriter pursuant to this Agreement, and (iii) does not own any warrants, options or similar rights to acquire, and does not have any right or arrangement to acquire, any capital stock, right, warrants, options or other securities from the Company, other than those described in the Registration Statement and the Prospectus.
(f) Except for such consents, approvals and waivers which have been obtained by the Selling Shareholder on or prior to the date of this Agreement, no consent, approval or waiver is required under any instrument or agreement to which a Selling Shareholder is a party or by which it is bound or under which it is entitled to any right or benefit, in connection with the offer and offering, sale or purchase by the Underwriter of any of the SharesFirm Securities that may be sold by a Selling Shareholder under this Agreement or the consummation by a Selling Shareholder of any of the other transactions contemplated hereby.
(cg) The All information furnished by or on behalf of the Selling Shareholder hasfor use in the Registration Statement and Prospectus is, and on the Closing Date will havebe, valid title totrue, or a valid “security entitlement” within the meaning of Section 8-501 of the New York Uniform Commercial Code (the “UCC”) in respect of, the Shares to be sold by the Selling Shareholder free and clear of all security interests, claims, liens, equities or other encumbrances and the legal right and powercorrect, and complete in all authorization material respects, and approval required by lawdoes not, to enter into this Agreement and to sell, transfer and deliver the Shares to be sold by the Selling Shareholder or a security entitlement in respect of such Shares.
(d) Upon payment for the Shares to be sold by the Selling Shareholder pursuant to this Agreement, delivery of such Shares, as directed by the Underwriters, to Cede & Co. (“Cede”) or such other nominee as may be designated by the Depository Trust Company (“DTC”), registration of such Shares in the name of Cede or such other nominee and the crediting of such Shares on the books of DTC to securities accounts of the Underwriters (assuming that neither DTC nor any such Underwriter has notice of any adverse claim (within the meaning of Section 8-105 of the UCC) to such Shares)Closing Date will not, (A) DTC shall be a “protected purchaser” of such Shares within the meaning of Section 8-303 of the UCC, (B) under Section 8-501 of the UCC, the Underwriters will acquire a valid security entitlement in respect of such Shares and (C) no action based on any “adverse claim”, within the meaning of Section 8-102 of the UCC, to such Shares may be asserted against the Underwriters with respect to such security entitlement; for purposes of this representation, the Selling Shareholder may assume that when such payment, delivery and crediting occur, (x) such Shares will have been registered in the name of Cede or another nominee designated by DTC, in each case on the Company’s share register in accordance with its memorandum and articles of association and applicable law, (y) DTC will be registered as a “clearing corporation” within the meaning of Section 8-102 of the UCC and (z) appropriate entries to the accounts of the several Underwriters on the records of DTC will have been made pursuant to the UCC.
(i) The Registration Statement, when it became effective, did not contain and, as amended or supplemented, if applicable, will not contain any untrue statement of a material fact or omit to state a any material fact necessary to make such information not misleading. The Selling Shareholder confirms as accurate the number of Firm Securities set forth opposite such Selling Shareholder’s name in the Prospectus under the caption “Selling Shareholder” (both prior to and after giving effect to the sale of the Firm Securities).
(h) Other than excepted activity pursuant to Regulation M of the Exchange Act, the Selling Shareholder has not taken any action designed to or that might be reasonably expected to cause or result in stabilization or manipulation of the price of shares of Common Stock or any other reference security, whether to facilitate the sale or resale of the Firm Securities or otherwise, or has taken any action that would directly or indirectly violate any provision of Regulation M.
(i) There are no transfer taxes or other similar fees or charges under Federal law or the laws of any state, or any political subdivision thereof, required to be stated therein paid by or necessary on behalf of the Selling Shareholder in connection with the execution and delivery of this Agreement or the sale by either Selling Shareholder of the Firm Securities.
(j) The Selling Shareholder has not distributed and will not distribute, prior to make the statements therein not misleading later of (i) the completion of the Underwriter’s distribution of the Firm Securities and (ii) the expiration of 25 days after the date of the Prospectus, any offering material in connection with the offering and sale of the Firm Securities other than the Prospectus does not contain or the Registration Statement.
(k) The Selling Shareholder acknowledges that the Underwriter and, as amended or supplemented, if applicable, will not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in the light for purposes of the circumstances under which they were madeopinions to be delivered pursuant to Section 9 hereof, not misleading, provided that the representations and warranties set forth in this paragraph 2(e) are limited to statements or omissions in the Registration Statement or Prospectus made in reliance upon information relating counsel to the Selling Shareholder furnished and counsel to the Company in writing by Underwriter, will rely upon the Selling Shareholder expressly for use in accuracy and truthfulness of the Registration Statement, the Prospectus or any amendments or supplements theretoforegoing representations and hereby consents to such reliance.
Appears in 1 contract
Representations and Warranties of the Selling Shareholder. The Selling Shareholder represents and warrants to to, and agrees with with, each of the Underwriters as of the date hereof and as of the Closing Date and each Additional Closing Date that:
(a) The Selling Shareholder has full right, power and authority to execute and deliver this Agreement, to perform its obligations hereunder and to consummate the transactions of the Selling Shareholder contemplated by this Agreement, the Registration Statement and the Prospectus. This Agreement and the transactions of the Selling Shareholder contemplated by this Agreement, the Registration Statement and the Prospectus have been duly and validly authorized by the Selling Shareholder. This Agreement has been duly authorized, and validly executed and delivered by the Selling Shareholder and constitutes the legal, valid and binding obligation of the Selling Shareholder.
(b) The execution Selling Shareholder has full right, power and delivery authority to execute and deliver a Custody Agreement and Power of Attorney substantially in the form of Exhibits B and C hereto (such Selling Shareholder's "Custody Agreement" and "Power of Attorney", respectively), to perform its obligations thereunder and to consummate the transactions of the Selling Shareholder contemplated thereby. The Custody Agreement and Power of Attorney and the transactions contemplated thereby have been duly and validly authorized by the Selling Shareholder. The Custody Agreement and Power of Attorney have each been duly and validly executed and delivered by the Selling Shareholder ofand constitute the legal, valid and the performance by the Selling Shareholder of its obligations under, this Agreement will not contravene any provision of applicable law, or the memorandum and articles of association binding obligation of the Selling Shareholder, or any agreement enforceable in accordance with its terms, except as enforceability may be limited by bankruptcy, insolvency, reorganization, moratorium or other instrument binding upon the Selling Shareholder similar laws relating to or any judgment, order affecting creditors' rights generally and except as enforceability may be subject to general principles of equity (regardless of whether such enforceability is considered in a proceeding in equity or decree at law). Counterparts of any governmental body, agency or court having jurisdiction over the Selling Shareholder's Custody Agreement, duly signed by (i) the Company, as custodian (in such capacity, the "Custodian") and no consent(ii) Roger I. MacFarlane, approvalPeter Thorrington and Lawrence R. Samuels, authorization as the ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇r'▇ ▇▇▇▇▇▇▇▇▇-▇▇-▇▇ct (e▇▇▇, ▇▇ ▇▇▇▇ ▇▇▇▇▇▇ty, an "Attorney-In-Fact") have been delivered to the Company and the Lead Manager on or order of, or qualification with, any governmental body or agency is required for prior to the performance by the Selling Shareholder date of its obligations under this Agreement, except such as may be required by the securities or Blue Sky laws of the various states in connection with the offer and sale of the Shares.
(c) The Selling Shareholder hasagrees that the Shares and the Additional Shares, if any, to be sold by the Selling Shareholder, whether or not on deposit with the Custodian, are subject to the interests of the Underwriters, that the arrangements made for such custody are to that extent irrevocable, and on that the Closing Date will have, valid title to, or a valid “security entitlement” within the meaning of Section 8-501 obligations of the New York Uniform Commercial Code Selling Shareholder hereunder shall not be terminated, except as provided in this Agreement or in the Custody Agreement and Power of Attorney, by any act of the Selling Shareholder, by operation of law or by the occurrence of any other event.
(d) The Selling Shareholder is the “UCC”) in respect of, lawful owner of the Shares and Additional Shares, if any, to be sold by the Selling Shareholder hereunder and upon sale and delivery of, and payment for, such Shares and Additional Shares as provided herein, the Selling Shareholder will convey to the Underwriters good and marketable title to such Shares and Additional Shares, free and clear of all security interestsvoting trust arrangements, claimspledges, liens, equities or other encumbrances encumbrances, equities, claims and the legal right and power, and security interests whatsoever. Certificates for all authorization and approval required by law, to enter into this Agreement and to sell, transfer and deliver the Shares to be sold by the Selling Shareholder or a security entitlement in respect of such Shares.
(d) Upon payment for the Shares to be sold by the Selling Shareholder pursuant to this Agreement, in suitable form for transfer by delivery or accompanied by duly executed instruments of transfer or assignment in blank with signatures guaranteed, have been placed in custody with the Custodian with irrevocable conditional instructions to deliver such Shares to the Underwriters pursuant to this Agreement.
(e) The Selling Shareholder has and, on the Closing Date and the Additional Closing Date, if any, will have, good and valid title to all of the Shares and Additional Shares, as directed if any, which are to be sold by the UnderwritersSelling Shareholder pursuant to this Agreement on such date and the legal right and power, and all authorizations and approvals required by law, to Cede & Co. enter into this Agreement and the applicable Custody Agreement and Power of Attorney, to sell, transfer and deliver all of the Shares and Additional Shares, if any, which may be sold by the Selling Shareholder pursuant to this Agreement and to comply with its other obligations hereunder and thereunder, free and clear of all voting trust arrangements, pledges, liens, encumbrances, equities, claims and security interests to the extent created or suffered to exist by the Selling Shareholder.
(“Cede”f) No consent, approval, authorization, order, registration, filing, qualification, license or permit of or with any court or any public, governmental or regulatory agency or body or any third party is required for the execution, delivery and performance by the Selling Shareholder of this Agreement or the Custody Agreement and Power of Attorney or the consummation by the Selling Shareholder of the transactions of the Selling Shareholder contemplated herein or therein, except such other nominee as have been obtained under the Act and such as may be designated required under the state securities laws or the blue sky laws of any jurisdiction in connection with the purchase and distribution of the Selling Shareholder Shares and the Selling Shareholder Additional Shares, if any, by the Depository Trust Company (“DTC”), registration of such Shares in the name of Cede or such other nominee Underwriters and the crediting of such Shares on the books of DTC to securities accounts rules of the Underwriters NASD.
(assuming that neither DTC nor any such Underwriter has notice g) The execution, delivery and performance of any adverse claim (within this Agreement, the meaning Custody Agreement and Power of Section 8-105 Attorney by the Selling Shareholder and the consummation of the UCC) to such Shares), transactions contemplated herein and therein by the Selling Shareholder will not (A) DTC shall be conflict with, result in a “protected purchaser” breach or violation of, or constitute a default (or an event that with notice or lapse of such Shares within time, or both, would constitute a default) under, or result in the meaning creation or imposition of Section 8-303 any lien, charge or encumbrance upon any property or assets of the UCCSelling Shareholder pursuant to any law, statute, rule or regulation or the terms of any indenture or other agreement or instrument to which the Selling Shareholder is a party or bound, or to which any of the property or assets of the Selling Shareholder is subject, or (B) under Section 8-501 result in any violation of the UCCprovisions of any memorandum or articles of association, the Underwriters will acquire a valid security entitlement in respect charter or by-laws or certificate of such Shares and (C) no action based on any “adverse claim”formation, within the meaning trust agreement, partnership agreement, articles of Section 8-102 partnership or other organizational documents, as applicable, of the UCCSelling Shareholder, or any judgment, order, decree, statute, rule or regulation applicable to such Shares may be asserted against the Underwriters with respect to such security entitlement; for purposes of this representation, the Selling Shareholder may assume that when of any court or any public or governmental or regulatory agency or body having jurisdiction over the Selling Shareholder.
(h) The Selling Shareholder does not have any registration or other similar rights to have any equity or debt securities registered for sale by the Company under the Registration Statement or included in the offering of the Shares and the Additional Shares, if any, except for such payment, delivery and crediting occur, (x) such Shares will rights as have been registered waived or which are described in the name of Cede or another nominee designated by DTC, in each case on the Company’s share register in accordance with its memorandum Prospectus (and articles of association and applicable law, (y) DTC will be registered as a “clearing corporation” within the meaning of Section 8-102 of the UCC and (z) appropriate entries to the accounts of the several Underwriters on the records of DTC will which have been made pursuant to the UCCcomplied with).
(i) The Selling Shareholder does not have, or has waived prior to the date hereof, any preemptive right, co-sale right or right of first refusal or other similar right to purchase any of the Shares that are to be sold by the Company to the Underwriters pursuant to this Agreement; and the Selling Shareholder does not own any warrants, options or similar rights to acquire, and does not have any right or arrangement to acquire, any capital stock, rights, warrants, options or other securities from the Company, other than those described in the Registration StatementStatement and the Prospectus.
(j) Except as disclosed in the Prospectus and other than this Agreement, when it became effectivethere are no contracts, did agreements or understandings between the Selling Shareholder 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 transactions contemplated by this Agreement, the Registration Statement and the Prospectus.
(k) All information furnished by or on behalf of the Selling Shareholder in writing for use in the Registration Statement and the Prospectus is true, correct, and complete in all material respects and does not contain and, as amended or supplemented, if applicable, and will not contain any untrue statement of a material fact fact; provided that this representation and warranty is made only as to information contained in the Registration Statement or omit the Prospectus under the caption "Selling Shareholder" and relating to state the Selling Shareholder.
(l) The Selling Shareholder has not taken and will not take, directly or indirectly, any action designed to, or that might be reasonably expected to, cause or result in stabilization or manipulation of the price of the Ordinary Shares to facilitate the sale or resale of the Shares or Additional Shares, if any.
(m) The Selling Shareholder has not distributed and will not distribute, prior to the later of the Additional Closing Date, if any, and the completion of the Underwriters' distribution of the Shares, any offering material in connection with the offering and sale of the Shares and the Additional Shares, if any, by the Selling Shareholder other than a preliminary prospectus, the Prospectus or the Registration Statement.
(n) The Selling Shareholder has reviewed and is familiar with the Registration Statement, the Prospectus and the information incorporated by reference therein and (i) has no knowledge of any material fact required adverse information with regard to be stated the Company or the Subsidiaries which is not disclosed in the Registration Statement, the Prospectus or any document incorporated therein or necessary to make the statements therein not misleading and by reference, (ii) the Prospectus does not contain and, as amended or supplemented, if applicable, will not contain has no knowledge of any untrue statement misstatement of a material fact or omit failure to state a material fact necessary to make the statements thereinin the Prospectus, in the light of the circumstances under which they were made, not misleading, provided that and (iii) is not prompted to sell the representations Shares and warranties set forth in this paragraph 2(e) are limited the Additional Shares, if any, to statements or omissions in the Registration Statement or Prospectus made in reliance upon information relating to the Selling Shareholder furnished to the Company in writing be sold by the Selling Shareholder expressly for use by any information concerning the Company or any of the Subsidiaries which is not set forth in the Registration Statement, the Prospectus or any amendments document incorporated therein by reference.
(o) The representations and warranties of the Selling Shareholder in its Custody Agreement and Power of Attorney are, and on the Closing Date and Additional Closing Date, if any, will be, true and correct. Any certificate signed by or supplements theretoon behalf of the Selling Shareholder and delivered to the Representatives or to counsel for the Underwriters shall be deemed to be a representation and warranty by the Selling Shareholder to each Underwriter as to the matters covered thereby.
Appears in 1 contract
Representations and Warranties of the Selling Shareholder. The Selling Shareholder represents and warrants to and agrees with each of the Underwriters that:
(a) This Agreement has been duly authorized, executed and delivered by or on behalf of the Selling Shareholder.
(b) The execution and delivery by the Selling Shareholder of, and the performance by the Selling Shareholder of its obligations under, this Agreement will not contravene any provision of applicable law, or the memorandum and articles certificate of association incorporation or by-laws of the Selling Shareholder, or any agreement or other instrument binding upon the Selling Shareholder or any judgment, order or decree of any governmental body, agency or court having jurisdiction over the Selling Shareholder, and no consent, approval, authorization or order of, or qualification with, any governmental body or agency is required for the performance by the Selling Shareholder of its obligations under this Agreement, Agreement except such as may be required by the securities or Blue Sky laws of the various states in connection with the offer and sale of the SharesOffered ADSs.
(c) The Selling Shareholder has, has and on at the Closing Date will havehave (A) good and marketable title to the Ordinary Shares underlying the Offered ADSs to be delivered by the Selling Shareholder, valid title tofree and clear of any liens, encumbrances, equities and claims and (B) full right, power and authority to effect the sale and delivery of such Offered ADSs.
(d) Upon payment for the Offered ADSs sold by such Selling Shareholder under this Agreement and the delivery by such Selling Shareholder to DTC or its agent of the ADSs in book entry form to securities accounts maintained by the Underwriters at the DTC or its nominee, and payment therefor in accordance with this Agreement, the Underwriters will acquire a valid “security entitlement” securities entitlement (within the meaning of Section 8-501 of the New York Uniform Commercial Code (the “UCC”) in with respect of, the Shares to be sold by the Selling Shareholder free and clear of all security interests, claims, liens, equities or other encumbrances and the legal right and powersuch Offered ADSs, and all authorization and approval required by law, to enter into this Agreement and to sell, transfer and deliver the Shares to be sold by the Selling Shareholder or a security entitlement in respect of such Shares.
(d) Upon payment for the Shares to be sold by the Selling Shareholder pursuant to this Agreement, delivery of such Shares, as directed by the Underwriters, to Cede & Co. (no action based on an “Cede”) or such other nominee as may be designated by the Depository Trust Company (“DTC”), registration of such Shares in the name of Cede or such other nominee and the crediting of such Shares on the books of DTC to securities accounts of the Underwriters (assuming that neither DTC nor any such Underwriter has notice of any adverse claim (claim” within the meaning of Section 8-105 of the UCC) to such Shares), (A) DTC shall be a “protected purchaser” of such Shares within the meaning of Section 8-303 of the UCC, (B) under Section 8-501 of the UCC, the Underwriters will acquire a valid security entitlement in respect of such Shares and (C) no action based on any “adverse claim”, within the meaning of UCC Section 8-102 of the UCC, to such Shares may be asserted against the Underwriters with respect to such security entitlement; for purposes entitlement if, at such time, the Underwriters do not have notice of this representation, any adverse claim within the meaning of UCC Section 8-102.
(e) The Ordinary Shares represented by the Offered ADSs to be sold by the Selling Shareholder may assume that when such payment, delivery and crediting occur, (x) such Shares will have been registered in be freely deposited by the name of Cede Selling Shareholder with the Depositary or another its nominee designated by DTC, in each case on the Company’s share register in accordance with its memorandum the Deposit Agreement against the issuance of ADRs evidencing ADSs representing such Ordinary Shares so deposited by the Selling Shareholder.
(f) Except as disclosed in the Time of Sale Prospectus and articles of association and applicable lawRegistration Statement, (y) DTC the Offered ADSs, as well as the Ordinary Shares underlying such Offered ADSs, delivered at the Closing Date by the Selling Shareholder will be registered as a “clearing corporation” within freely transferable by the meaning of Section 8-102 Selling Shareholder.
(g) The Selling Shareholder has not taken, directly or indirectly, any action designed, or which has constituted or might reasonably be expected to cause or result in, under the Exchange Act or otherwise, the stabilization or manipulation of the UCC and (z) appropriate entries to the accounts price of any security of the several Underwriters on Company to facilitate the records sale or resale of DTC will have been made pursuant to Ordinary Shares or the UCCOffered ADSs.
(h) The Selling Shareholder has no affiliations or associations with any member of the Financial Industry Regulatory Authority.
(i) There are no contracts, agreements or understandings between the Selling Shareholder and any person that would give rise to a valid claim against the Selling Shareholder or any Underwriter for a brokerage commission, finder’s fee or other like payment in connection with this offering.
(j) Except as disclosed in the Time of Sale Prospectus and the Registration Statement, no transaction, stamp, capital or other issuance, registration, transaction, transfer or withholding taxes or duties are payable by or on behalf of the Underwriters in connection with (A) the sale and delivery of the Ordinary Shares represented by the Offered ADSs by the Selling Shareholder, the issuance of such Offered ADSs by the Depositary, and the delivery of such Offered ADSs to or for the account of the Underwriters, (B) the purchase from the Selling Shareholder and the initial sale and delivery by the Underwriters of the Offered ADSs to purchasers thereof, (C) the deposit by the Selling Shareholder of the Ordinary Shares with the Depositary and the Custodian and the issuance and delivery of the ADRs evidencing the Offered ADSs, or (E) the execution and delivery of this Agreement.
(k) The Selling Shareholder has no reason to believe that the representations and warranties of the Company contained in Section 1 are not true and correct, is familiar with the Registration Statement, the Time of Sale Prospectus and the Prospectus and has no knowledge of any material fact, condition or information not disclosed in the Time of Sale Prospectus or the Prospectus that has had, or may have, a material adverse effect on the Company and its subsidiaries, taken as a whole. The Selling Shareholder is not prompted by any information concerning the Company or its subsidiaries which is not set forth in the Time of Sale Prospectus to sell its Ordinary Shares pursuant to this Agreement.
(l) (i) Each document, if any, filed or to be filed pursuant to the Exchange Act and incorporated by reference in the Time of Sale Prospectus or the Prospectus complied or will comply when so filed in all material respects with the Exchange Act and the applicable rules and regulations of the Commission thereunder, (ii) each part of the Registration Statement, when it such part became effective, did not contain andcontain, and each such part, as amended or supplemented, if applicable, will not contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading misleading, (iii) the Registration Statement as of the date hereof does not contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading, (iv) the Registration Statement and the Prospectus comply, and as amended or supplemented, if applicable, will comply in all material respects with the Securities Act and the applicable rules and regulations of the Commission thereunder, (v) the Time of Sale Prospectus does not, and at the time of each sale of the Offered ADSs in connection with the offering when the Prospectus is not yet available to prospective purchasers and at the Closing Date (as defined in Section 5), the Time of Sale Prospectus, as then amended or supplemented by the Company, if applicable, will not, contain any 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, and (iivi) the Prospectus does not contain and, as amended or supplemented, if applicable, will not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading, provided except that the representations and warranties set forth in this paragraph 2(e) are limited do not apply to statements or omissions in the Registration Statement Statement, the Time of Sale Prospectus or the Prospectus made in reliance based upon information relating to the Selling Shareholder any Underwriter furnished to the Company in writing by such Underwriter through the Managers expressly for use therein.
(m) Neither the Selling Shareholder expressly for use in the Registration Statement, the Prospectus or any amendments of its subsidiaries or, to the knowledge of the Selling Shareholder, any director, officer, agent, employee, affiliate, or supplements theretoperson acting on behalf of the Selling Shareholder or any of its subsidiaries is currently subject to any U.S. sanctions administered by OFAC; and the Selling Shareholder will not use the proceeds of the offering for the purpose of financing the activities of any person known to the Selling Shareholder to be currently subject to any U.S. sanctions administered by OFAC.
Appears in 1 contract
Sources: Underwriting Agreement (Ctrip Com International LTD)
Representations and Warranties of the Selling Shareholder. The Selling Shareholder represents and warrants to and agrees with each of the Underwriters that:
(a) This Agreement has been duly authorized, executed and delivered by or on behalf of the Selling Shareholder.
(b) The execution and delivery by the Selling Shareholder of, and the performance by the Selling Shareholder of its obligations under, this Agreement and the Letter of Transmittal and Custody Agreement signed by the Selling Shareholder and First Union National Bank Corporate Trust, as Custodian, relating to the deposit of the Shares to be sold by the Selling Shareholder (the "Custody Agreement") and the consummation of the transactions contemplated thereby will not contravene any provision of applicable law, or the memorandum Last Will and articles Testament of association of ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, by which the Selling ShareholderShareholder was established, or any agreement or other instrument binding upon the Selling Shareholder or any judgment, order or decree of any governmental body, agency or court having jurisdiction over the Selling Shareholder, and no consent, approval, authorization or order of, or qualification with, any governmental body or agency is required for the performance by the Selling Shareholder of its obligations under this Agreement or the Custody Agreement, except such as may be required by the securities or Blue Sky laws of the various states in connection with the offer and sale of the Shares.
(c) The Selling Shareholder has, and on the Closing Date will have, valid title to, or a valid “"security entitlement” " within the meaning of Section 8-501 of the New York Uniform Commercial Code (the “UCC”) in respect of, the Shares to be sold by the Selling Shareholder free and clear of all security interests, claims, liens, equities or other encumbrances and the legal right and power, and all authorization and approval required by law, to enter into this Agreement and the Custody Agreement and to sell, transfer and deliver the Shares to be sold by the Selling Shareholder or a security entitlement in respect of such Shares.
(d) Upon payment for The Custody Agreement has been duly authorized, executed and delivered by the Selling Shareholder and is a valid and binding agreement of the Selling Shareholder.
(e) Delivery of the Shares to be sold by the Selling Shareholder and payment therefor pursuant to this Agreement, delivery of Agreement will pass valid title to such Shares, as directed by the Underwriters, to Cede & Co. (“Cede”) or such other nominee as may be designated by the Depository Trust Company (“DTC”), registration of such Shares in the name of Cede or such other nominee free and the crediting of such Shares on the books of DTC to securities accounts of the Underwriters (assuming that neither DTC nor any such Underwriter has notice clear of any adverse claim (within the meaning of Section 8-105 of the UCC) to such Shares), (A) DTC shall be a “protected purchaser” of such Shares within the meaning of Section 8-303 of the UCC, (B) under Section 8-501 of the UCC, the Underwriters will acquire a valid security entitlement in respect of such Shares and (C) no action based on any “adverse claim”, within the meaning of Section 8-102 of the UCCNew York Uniform Commercial Code, to each Underwriter who has purchased such Shares may be asserted against the Underwriters with respect to such security entitlement; for purposes without notice of this representation, the an adverse claim.
(f) The Selling Shareholder may assume that when such paymenthas not taken and will not take, delivery and crediting occurdirectly or indirectly, (x) such Shares will have been registered any action which is designed to or which has constituted or which might reasonably be expected to cause or result in the name of Cede stabilization or another nominee designated by DTC, in each case on the Company’s share register in accordance with its memorandum and articles of association and applicable law, (y) DTC will be registered as a “clearing corporation” within the meaning of Section 8-102 manipulation of the UCC and (z) appropriate entries to the accounts price of any security of the several Underwriters on Company to facilitate the records sale or resale of DTC will have been made pursuant to the UCCShares.
(i) The To the best of the knowledge of the Selling Shareholder, after due inquiry, the Registration Statement, when it became effective, did not contain and, as amended or supplemented, if applicable, will not contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading misleading, (ii) the Registration Statement and the Prospectus comply and, as amended or supplemented, if applicable, will comply in all material respects with the Securities Act and the applicable rules and regulations of the Commission thereunder and (iiiii) the Prospectus does not contain and, as amended or supplemented, if applicable, will not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading, provided except that the representations and warranties set forth in this paragraph 2(e2(g) are limited do not apply to statements or omissions in the Registration Statement or the Prospectus made in reliance based upon information relating to the Selling Shareholder any Underwriter furnished to the Company in writing by the Selling Shareholder such Underwriter through you expressly for use therein.
(h) the statements in the Registration StatementProspectus under the captions "Summary--▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ Testamentary Trust", "▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ Testamentary Trust," and "Selling Shareholder" insofar as such statements constitute summaries of the Prospectus legal matters, documents or any amendments or supplements theretoproceedings referred to therein, fairly present the information called for with respect to such legal matters, documents and proceedings and fairly summarize the matters referred to therein.
Appears in 1 contract
Sources: Underwriting Agreement (Dupont Alfred I Testamentary Trust)
Representations and Warranties of the Selling Shareholder. The Selling Shareholder hereby represents and warrants to the Company and agrees with each of the Underwriters thatUnderwriter as follows:
(a) The Selling Shareholder has caused certificates for the number of Shares to be sold by the Selling Shareholder hereunder to be delivered to the Company (in such capacity, the "Custodian"), endorsed in blank or with blank stock powers duly executed, with a signature appropriately guaranteed, such certificates to be held in custody by the Custodian for delivery, pursuant to the provisions of this Agreement and an agreement dated on or about the date hereof between the Custodian and the Selling Shareholder (the "Custody Agreement").
(b) The Selling Shareholder has granted an irrevocable power of attorney (the "Power of Attorney") to the Company and Cra▇▇ ▇▇▇▇▇, ▇n behalf of the Selling Shareholder, to execute and deliver this Agreement and any other document necessary or desirable in connection with the transactions contemplated hereby and to deliver the shares to be sold by the Selling Shareholder pursuant hereto.
(c) This Agreement, the Custody Agreement, the Power of Attorney and the Lock-Up Agreement has have each been duly authorized, executed and delivered by or on behalf of the Selling Shareholder and, assuming due authorization, execution and delivery by the other parties hereto, each constitutes the valid and legally binding agreement of the Selling Shareholder, enforceable against the Selling Shareholder in accordance with its terms, except as the enforceability thereof may be limited by bankruptcy, insolvency, reorganization, moratorium or other similar laws affecting the enforcement of creditors' rights generally and by general equitable principals.
(bd) The execution and delivery by the Selling Shareholder of, of this Agreement and the performance by the Selling Shareholder of its obligations under, under this Agreement (i) will not contravene any provision of applicable law, statute, rule or the memorandum and articles of association of the Selling Shareholder, regulation or any agreement or other instrument binding upon the Selling Shareholder or any judgment, order or decree of any governmental body, agency or court having jurisdiction over the Selling Shareholder, and no (ii) does not require on the part of the Selling Shareholder any consent, approval, authorization or order of, of or qualification with, registration or filing with any court or governmental agency or body or agency is required for the performance by the Selling Shareholder of its obligations under this Agreementhaving jurisdiction over it, except such as may be required by the securities or Blue Sky laws of the various states or other jurisdiction in connection with the offer and sale of the SharesShares which have been or will be effected in accordance with this Agreement, and (iii) will not result in the creation or imposition of any lien, charge or encumbrance upon any property or assets of the Selling Shareholder pursuant to the terms of any agreement or instrument to which the Selling Shareholder is a party or by which the Selling Shareholder may be bound or to which any of the property or assets of the Selling Shareholder is subject.
(ce) The Selling Shareholder has, and on the each Closing Date on which Shares to be sold by the Selling Shareholder pursuant to this Agreement will have, valid and marketable title to, or a valid “security entitlement” within the meaning of Section 8-501 of the New York Uniform Commercial Code (the “UCC”) in respect of, to the Shares to be sold by the Selling Shareholder on such Closing Date, free and clear of all any lien, claim, security interests, claims, liens, equities interest or other encumbrances encumbrance, including, without limitation, any restriction on transfer, except as otherwise described in the Registration Statement and the legal right and powerProspectus.
(f) The Selling Shareholder has, and all authorization on each Closing Date on which Shares to be sold by the Selling Shareholder pursuant to this Agreement will have, full legal right, power and authorization, and any approval required by law, to enter into this Agreement and to sell, assign, transfer and deliver the Shares to be sold by the Selling Shareholder or a security entitlement on such Closing Date in respect of such Sharesthe manner provided by this Agreement.
(dg) Upon delivery of and payment for the Shares to be sold by the Selling Shareholder on any Closing Date pursuant to this Agreement, delivery of such Shares, as directed by the Underwriters, to Cede & Co. (“Cede”) or such other nominee as may be designated by the Depository Trust Company (“DTC”), registration of such Shares in the name of Cede or such other nominee and the crediting of such Shares on the books of DTC to securities accounts of the Underwriters (assuming that neither DTC nor any such Underwriter has notice of any adverse claim (within the meaning of Section 8-105 of the UCC) to such Shares), (A) DTC shall be a “protected purchaser” of such Shares within the meaning of Section 8-303 of the UCC, (B) under Section 8-501 of the UCC, the several Underwriters will acquire a receive valid security entitlement in respect of such Shares and (C) no action based on any “adverse claim”, within the meaning of Section 8-102 of the UCC, marketable title to such Shares may be asserted against the Underwriters with respect free and clear of any lien, claim, security interest or other encumbrance.
(h) All information relating to such security entitlement; for purposes of this representation, the Selling Shareholder may assume that when such payment, delivery and crediting occur, (x) such Shares will have been registered furnished in writing by the Selling Shareholder expressly for use in the name of Cede or another nominee designated Registration Statement and Prospectus is, and on each Closing Date on which Shares to be sold by DTC, in each case on the Company’s share register in accordance with its memorandum and articles of association and applicable law, (y) DTC will be registered as a “clearing corporation” within the meaning of Section 8-102 of the UCC and (z) appropriate entries to the accounts of the several Underwriters on the records of DTC will have been made Selling Shareholder pursuant to the UCC.
(i) The Registration Statementthis Agreement will be, when it became effectivetrue, did not contain andcorrect, as amended or supplementedand complete, if applicableand does not, and on each Closing Date will not not, contain any untrue statement of a material fact or omit to state a any material fact required to be stated therein or necessary to make such information not misleading.
(i) The Selling Shareholder has reviewed the statements therein not misleading Registration Statement and (ii) the Prospectus does not contain and, as amended although the Selling Shareholder has not independently verified the accuracy or supplementedcompleteness of all the information contained therein, if applicablenothing has come to the attention of the Selling Shareholder that would lead the Selling Shareholder to believe that (i) on the Effective Date, will not contain the Registration Statement contained any untrue statement of a material fact or omit omitted to state any material fact required to be stated therein in order to make the statements made therein not misleading and (ii) on the Effective Date, the Prospectus contained and, on each Closing Date contains, no untrue statement of a material fact or omitted or omits to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading, provided that the representations and warranties set forth in this paragraph 2(e.
(j) are limited to statements or omissions in the Registration Statement or Prospectus made in reliance upon information relating to the Selling Shareholder furnished to the Company in writing The sale of Shares by the Selling Shareholder expressly for use pursuant to this Agreement is not prompted by the Selling Shareholder's knowledge of any material information concerning the Company or the Subsidiary which is not set forth in the Registration StatementProspectus.
(k) The Selling Shareholder has not taken and will not take, directly or indirectly, any action designed to or that might reasonably be expected to cause or result in stabilization or manipulation of the Prospectus price of any security of the Company to facilitate the sale or resale of the Shares.
(l) The Selling Shareholder has no actual knowledge that any amendments representation or supplements theretowarranty of the Company set forth in Section 4 above is untrue or inaccurate in any material respect.
(m) The representations and warranties of the Selling Shareholder in the Custody Agreement are, and on each Closing Date on which Shares to be sold by the Selling Shareholder pursuant to this Agreement will be, true and correct.
Appears in 1 contract
Sources: Underwriting Agreement (Talx Corp)
Representations and Warranties of the Selling Shareholder. The Selling Shareholder represents and warrants to and agrees with each of the Underwriters that:
(a) This Agreement has been duly authorized, executed and delivered by or on behalf of the Selling Shareholder.
(b) The execution and delivery by the Selling Shareholder of, and the performance by the Selling Shareholder of its obligations under, this Agreement and the Letter of Transmittal and Custody Agreement signed by the Selling Shareholder and First Union National Bank Corporate Trust, as Custodian, relating to the deposit of the Shares to be sold by the Selling Shareholder (the "CUSTODY AGREEMENT") and the consummation of the transactions contemplated thereby will not contravene any provision of applicable law, or the memorandum Last Will and articles Testament of association of Alfred I. duPont, by which the Selling ShareholderShareholder was establ▇▇▇▇▇, or any agreement ▇▇ ▇▇▇ ▇▇reement or other instrument binding upon the Selling Shareholder or any judgment, order or decree of any governmental body, agency or court having jurisdiction over the Selling Shareholder, and no consent, approval, authorization or order of, or qualification with, any governmental body or agency is required for the performance by the Selling Shareholder of its obligations under this Agreement or the Custody Agreement, except such as may be required by the securities or Blue Sky laws of the various states in connection with the offer and sale of the Shares.
(c) The Selling Shareholder has, and on the Closing Date will have, valid title to, or a valid “"security entitlement” " within the meaning of Section 8-501 of the New York Uniform Commercial Code (the “UCC”) in respect of, the Shares to be sold by the Selling Shareholder free and clear of all security interests, claims, liens, equities or other encumbrances and the legal right and power, and all authorization and approval required by law, to enter into this Agreement and the Custody Agreement and to sell, transfer and deliver the Shares to be sold by the Selling Shareholder or a security entitlement in respect of such Shares.
(d) Upon payment for The Custody Agreement has been duly authorized, executed and delivered by the Selling Shareholder and is a valid and binding agreement of the Selling Shareholder.
(e) Delivery of the Shares to be sold by the Selling Shareholder and payment therefor pursuant to this Agreement, delivery of Agreement will pass valid title to such Shares, as directed by the Underwriters, to Cede & Co. (“Cede”) or such other nominee as may be designated by the Depository Trust Company (“DTC”), registration of such Shares in the name of Cede or such other nominee free and the crediting of such Shares on the books of DTC to securities accounts of the Underwriters (assuming that neither DTC nor any such Underwriter has notice clear of any adverse claim (within the meaning of Section 8-105 of the UCC) to such Shares), (A) DTC shall be a “protected purchaser” of such Shares within the meaning of Section 8-303 of the UCC, (B) under Section 8-501 of the UCC, the Underwriters will acquire a valid security entitlement in respect of such Shares and (C) no action based on any “adverse claim”, within the meaning of Section 8-102 of the UCCNew York Uniform Commercial Code, to each Underwriter who has purchased such Shares may be asserted against the Underwriters with respect to such security entitlement; for purposes without notice of this representation, the an adverse claim.
(f) The Selling Shareholder may assume that when such paymenthas not taken and will not take, delivery and crediting occurdirectly or indirectly, (x) such Shares will have been registered any action which is designed to or which has constituted or which might reasonably be expected to cause or result in the name of Cede stabilization or another nominee designated by DTC, in each case on the Company’s share register in accordance with its memorandum and articles of association and applicable law, (y) DTC will be registered as a “clearing corporation” within the meaning of Section 8-102 manipulation of the UCC and (z) appropriate entries to the accounts price of any security of the several Underwriters on Company to facilitate the records sale or resale of DTC will have been made pursuant to the UCCShares.
(i) The To the best of the knowledge of the Selling Shareholder, after due inquiry, the Registration Statement, when it became effective, did not contain and, as amended or supplemented, if applicable, will not contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading misleading, (ii) the Registration Statement and the Prospectus comply and, as amended or supplemented, if applicable, will comply in all material respects with the Securities Act and the applicable rules and regulations of the Commission thereunder and (iiiii) the Prospectus does not contain and, as amended or supplemented, if applicable, will not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading, provided except that the representations and warranties set forth in this paragraph 2(e2(g) are limited do not apply to statements or omissions in the Registration Statement or the Prospectus made in reliance based upon information relating to the Selling Shareholder any Underwriter furnished to the Company in writing by the Selling Shareholder such Underwriter through you expressly for use therein.
(h) the statements in the Registration StatementProspectus under the captions "Summary--Alfred I. duPont Testamentary Trust", "Alfred I. duPont Testa▇▇▇▇▇▇▇ ▇▇▇▇▇," and "Selling Shareholde▇" ▇▇▇▇▇▇▇ ▇▇ ▇▇ch statements constitute summaries of the Prospectus legal matters, documents or any amendments or supplements theretoproceedings referred to therein, fairly present the information called for with respect to such legal matters, documents and proceedings and fairly summarize the matters referred to therein.
Appears in 1 contract
Sources: Underwriting Agreement (St Joe Co)
Representations and Warranties of the Selling Shareholder. The Selling Shareholder represents and warrants to and agrees with each of the Underwriters that:
(a) This Agreement has been duly authorized, executed and delivered by or on behalf of the Selling Shareholder.
(b) The execution and delivery by the Selling Shareholder of, and the performance by the Selling Shareholder of its obligations under, this Agreement will not contravene (i) any provision of applicable law, or (ii) the memorandum and articles of association organizational documents of the Selling Shareholder, or (iii) any agreement or other instrument binding upon the Selling Shareholder or (iv) any judgment, order or decree of any governmental body, agency or court having jurisdiction over the Selling Shareholder, except in the case of (i), (iii) and no (iv), as would not reasonably be expected to materially impact the Selling Shareholder’s ability to perform its obligations under this Agreement.
(c) No material consent, approval, authorization or order of, or qualification with, any governmental body or agency is required for the performance by the Selling Shareholder of its obligations under this Agreement, except such as may be required by will have been obtained on or prior to the securities or Blue Sky laws time of delivery of the various states in connection with the offer and sale of the SharesShares pursuant to Section 5.
(cd) The Selling Shareholder has, and on the Closing Date will have, valid title to, or a valid “security entitlement” within the meaning of Section 8-501 8‑501 of the New York Uniform Commercial Code (the “UCC”) in respect of, the Shares to be sold by the such Selling Shareholder free and clear of all security interests, claims, liens, equities or other encumbrances and the legal right and power, and all authorization and approval required by law, to enter into this Agreement and to sell, transfer and deliver the Shares to be sold by the Selling Shareholder or a security entitlement in respect of such Shares.
(de) Upon payment for the Shares to be sold by the Selling Shareholder pursuant to this Agreement, delivery of such Shares, as directed by the Underwriters, to Cede & Co. (“Cede”) or such other nominee as may be designated by the Depository Trust Company (“DTC”), registration of such Shares in the name of Cede or such other nominee and the crediting of such Shares on the books of DTC to securities accounts of the Underwriters (assuming that neither DTC nor any such Underwriter has notice of any adverse claim (within the meaning of Section 8-105 8‑105 of the UCC) to such Shares), (A) DTC shall be a “protected purchaser” of such Shares within the meaning of Section 8-303 8‑303 of the UCC, (B) under Section 8-501 8‑501 of the UCC, the Underwriters will acquire a valid security entitlement in respect of such Shares and (C) no action based on any “adverse claim”, within the meaning of Section 8-102 8‑102 of the UCC, to such Shares may be asserted against the Underwriters with respect to such security entitlement; for purposes of this representation, the Selling Shareholder may assume that when such payment, delivery and crediting occur, (x) such Shares will have been registered in the name of Cede or another nominee designated by DTC, in each case on the Company’s share register registry in accordance with its memorandum and articles certificate of association incorporation, bylaws and applicable law, (y) DTC will be registered as a “clearing corporation” within the meaning of Section 8-102 8‑102 of the UCC and (z) appropriate entries to the accounts of the several Underwriters on the records of DTC will have been made pursuant to the UCC.
(if) The Registration Statement, when it became effective, did not contain and, as amended or supplemented, if applicable, will not contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading and (ii) the Prospectus does not contain and, as amended or supplemented, if applicable, will not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading, provided that the representations and warranties set forth in this paragraph 2(e) are limited to statements or omissions in the Registration Statement or Prospectus made in reliance upon information relating to Neither the Selling Shareholder furnished nor, to the Company in writing knowledge of the Selling Shareholder, any director or officer or employee or affiliate of such Selling Shareholder is currently subject to any Sanctions; and the Selling Shareholder will not, directly or indirectly, use the proceeds of the offering of the Shares sold by the Selling Shareholder expressly hereunder, or lend, contribute or otherwise make available such proceeds to any subsidiary, joint venture partner or other person or entity, for use in the Registration Statement, purpose of financing the Prospectus or activities of any amendments or supplements theretoperson currently subject to Sanctions.
Appears in 1 contract
Sources: Underwriting Agreement (CapGen Capital Group III LP)
Representations and Warranties of the Selling Shareholder. The Selling Shareholder represents and warrants to and agrees with each of the Underwriters that:
(a) This Agreement has been duly authorized, executed and delivered by or on behalf of the Selling Shareholder.
(b) The execution and delivery by the Selling Shareholder of, and the performance by the Selling Shareholder of its obligations under, this Agreement, the Custody Agreement signed by the Selling Shareholder and [•], as Custodian, relating to the deposit of the Shares to be sold by the Selling Shareholder (the “Custody Agreement”) and the Power of Attorney appointing certain individuals as the Selling Shareholder’s attorneys-in-fact to the extent set forth therein, relating to the transactions contemplated hereby and by the Registration Statement (the “Power of Attorney”) will not contravene any provision of applicable law, or the memorandum and of association, articles of association association, certificate of incorporation, by-laws or similar governing documents of the Selling Shareholder, or any agreement or other instrument binding upon the Selling Shareholder or any judgment, order or decree of any governmental body, agency or court having jurisdiction over the Selling Shareholder, and no consent, approval, authorization or order of, or qualification with, any governmental body body, agency or agency court is required for the performance by the Selling Shareholder of its obligations under this AgreementAgreement or the Custody Agreement or Power of Attorney of the Selling Shareholder, except such as may be required by the securities or Blue Sky laws of the various states in connection with the offer and sale of the Shares.
(c) The Selling Shareholder has, and on the Closing Date will have, valid title to, or a valid “security entitlement” within the meaning of Section 8-501 of the New York Uniform Commercial Code (the “UCC”) in respect of, the Shares to be sold by the Selling Shareholder free and clear of all security interests, claims, liens, equities or other encumbrances and the legal right and power, and all authorization and approval required by law, to enter into this Agreement, the Custody Agreement and the Power of Attorney and to sell, transfer and deliver the Shares to be sold by the Selling Shareholder or a security entitlement in respect of such the Shares.
(d) The Custody Agreement and the Power of Attorney have been duly authorized, executed and delivered by the Selling Shareholder and are valid and binding agreements of the Selling Shareholder.
(e) Upon payment for the Shares to be sold by the Selling Shareholder pursuant to this Agreement, delivery of such Shares, as directed by the Underwriters, to Cede & Co. (“Cede”) or such other nominee as may be designated by the Depository Trust Company (“DTC”), registration of such Shares in the name of Cede or such other nominee and the crediting of such Shares on the books of DTC to securities accounts of the Underwriters (assuming that neither DTC nor any such Underwriter has notice of any adverse claim (within the meaning of Section 8-105 of the UCC) to such Shares), (A) DTC shall be a “protected purchaser” of such Shares within the meaning of Section 8-303 of the UCC, (B) under Section 8-501 of the UCC, the Underwriters will acquire a valid security entitlement in respect of such Shares and (C) no action based on any “adverse claim”, within the meaning of Section 8-102 of the UCC, to such Shares may be asserted against the Underwriters with respect to such security entitlement; for purposes of this representation, the Selling Shareholder may assume that when such payment, delivery and crediting occur, (x) such Shares will have been registered in the name of Cede or another nominee designated by DTC, in each case on the Company’s share register registry in accordance with its memorandum and articles certificate of association incorporation, bylaws and applicable law, (y) DTC will be registered as a “clearing corporation” within the meaning of Section 8-102 of the UCC and (z) appropriate entries to the accounts of the several Underwriters on the records of DTC will have been made pursuant to the UCC.
(f) The Selling Shareholder has delivered to the Representatives an executed lock-up agreement in substantially the form attached hereto as Exhibit A.
(g) The Selling Shareholder has no reason to believe that the representations and warranties of the Company contained in Section 1 are not true and correct, is familiar with the Registration Statement, the Time of Sale Prospectus and the Prospectus and has no knowledge of any material fact, condition or information not disclosed in the Registration Statement, the Time of Sale Prospectus or the Prospectus that has had, or may have, a material adverse effect on the Company and its subsidiaries, taken as a whole. The Selling Shareholder is not prompted by any information concerning the Company or its subsidiaries which is not set forth in the Registration Statement, the Time of Sale Prospectus or the Prospectus to sell its Shares pursuant to this Agreement.
(h) (i) The Each document, if any, filed or to be filed pursuant to the Exchange Act and incorporated by reference in the Time of Sale Prospectus or the Prospectus complied or will comply when so filed in all material respects with the Exchange Act and the applicable rules and regulations of the Commission thereunder, (ii) the Registration Statement, when it became effective, did not contain and, as amended or supplemented, if applicable, will not contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading, (iii) the Registration Statement and the Prospectus comply and, as amended or supplemented, if applicable, will comply in all material respects with the Securities Act and the applicable rules and regulations of the Commission thereunder, (iv) the Time of Sale Prospectus does not, and at the time of each sale of the Shares in connection with the offering when the Prospectus is not yet available to prospective purchasers and at the Closing Date (as defined in Section 5), the Time of Sale Prospectus, as then amended or supplemented by the Company, if applicable, will not, contain any 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, (v) each broadly available road show, if any, when considered together with the Time of Sale Prospectus, does not contain any 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 and (iivi) the Prospectus does not contain and, as amended or supplemented, if applicable, will not contain any 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, except that the representations and warranties set forth in this paragraph do not apply to statements or omissions in the Registration Statement, the Time of Sale Prospectus or the Prospectus based upon information relating to any Underwriter furnished to the Company in writing by such Underwriter through ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co. LLC expressly for use therein; provided that the representations and warranties set forth in this paragraph 2(e2(h) are limited to statements or omissions in the Registration Statement or Prospectus made in reliance upon information relating to the Selling Shareholder furnished to the Company in writing by the Selling Shareholder expressly for use in the Registration Statement, the Time of Sale Prospectus, the Prospectus or any amendments or supplements theretothereto (the “Selling Shareholder Information”); it being understood that the Selling Shareholder Information shall be limited to the legal name and address of, and the number of shares beneficially owned and offered by, such Selling Shareholder, and the other information with respect to such Selling Shareholder that appears under the caption “Principal and Selling Stockholders” in the Registration Statement, the Time of Sale Prospectus, and the Prospectus.
(i) (i) None of the Selling Shareholder, any of its subsidiaries, or any director, officer, or employee thereof, or, to the Selling Shareholder’s knowledge, any agent, controlled affiliate or representative of the Selling Shareholder or any of its subsidiaries, is a Person that is, or is owned or controlled by one or more Persons that are:
(A) the subject of any Sanctions, or
(B) located, organized or resident in a country or territory that is the subject of Sanctions (including, without limitation, Crimea, Cuba, Iran, North Korea, Syria, and the Donetsk People’s Republic and Luhansk People’s Republic located in Ukraine).
(ii) The Selling Shareholder will not, directly or indirectly, use the proceeds of the offering, or lend, contribute or otherwise make available such proceeds to any subsidiary, joint venture partner or other Person:
(A) to fund or facilitate any activities or business of or with any Person or in any country or territory that, at the time of such funding or facilitation, is the subject of Sanctions; or
(B) in any other manner that will result in a violation of Sanctions by any Person (including any Person participating in the offering, whether as underwriter, advisor, investor or otherwise).
(iii) The Selling Shareholder and each of its subsidiaries have not knowingly engaged in, are not now knowingly engaged in, and will not engage in, any dealings or transactions with any Person, or in any country or territory, that at the time of the dealing or transaction is or was the subject of Sanctions.
(i) None of the Selling Shareholder or any of its subsidiaries or affiliates, or any director, officer, or employee thereof, nor, to the Selling Shareholder’s knowledge, any agent or representative of the Selling Shareholder or of any of its subsidiaries or controlled affiliates, has taken or will take any action in furtherance of an offer, payment, promise to pay, or authorization or approval of the payment, giving or receipt of money, property, gifts or anything else of value, directly or indirectly, to any Government Official in order to influence official action, or to any person in violation of any applicable anti-corruption laws; (ii) the Selling Shareholder and each of its subsidiaries and each of its controlled affiliates has conducted their businesses in compliance with applicable anti-corruption laws and have instituted and maintained and will continue to maintain policies and procedures reasonably designed to promote and achieve compliance with such laws and with the representations and warranties contained herein; and (iii) neither the Selling Shareholder nor any of its subsidiaries will use, directly or indirectly, the proceeds of the offering in furtherance of an offer, payment, promise to pay, or authorization of the payment or giving of money, or anything else of value, to any person in violation of any applicable anti-corruption laws.
(k) The operations of the Selling Shareholder and each of its subsidiaries are and have been conducted at all times in material compliance with all applicable Anti-Money Laundering Laws, and no action, suit or proceeding by or before any court or governmental agency, authority or body or any arbitrator involving the Selling Shareholder or any of its subsidiaries with respect to the Anti-Money Laundering Laws is pending or, to the best knowledge of the Selling Shareholder, threatened.
(l) The Selling Shareholder represents and warrants that it is not (i) an employee benefit plan subject to ERISA, (ii) a plan or account subject to the Code or (iii) an entity deemed to hold “plan assets” of any such plan or account under Section 3(42) of ERISA, 29 C.F.R. 2510.3-101, or otherwise.
(m) No stamp, documentary, issuance, registration, transfer, withholding, capital gains, income or other taxes or duties are payable by or on behalf of the Underwriters, the Company or any of its subsidiaries in the British Virgin Islands or to any taxing authority thereof or therein in connection with (i) the execution, delivery or consummation of this Agreement, (ii) the sale and delivery of the Shares to the Underwriters or purchasers procured by the Underwriters, or (iii) the resale and delivery of the Shares by the Underwriters in the manner contemplated herein.
(n) The Selling Shareholder has the power to submit, and pursuant to Section 19 has, to the extent permitted by law, legally, validly, effectively and irrevocably submitted, to the jurisdiction of the Specified Courts (as defined in Section 19), and has the power to designate, appoint and empower, and pursuant to Section 19, has legally, validly and effectively designated, appointed and empowered an agent for service of process in any suit or proceeding based on or arising under this Agreement in any of the Specified Courts.
Appears in 1 contract
Representations and Warranties of the Selling Shareholder. The Selling Shareholder represents and warrants to and agrees with each of the Underwriters Underwriter that:
(a) This Agreement has been duly authorized, executed and delivered by or on behalf of the Selling Shareholder.
(b) The execution and delivery by the Selling Shareholder of, and the performance by the Selling Shareholder of its obligations underunder this Agreement, this Agreement will not contravene any provision of applicable law, or the memorandum and articles certificate of association incorporation or by-laws of the Selling Shareholder, or any agreement or other instrument binding upon the Selling Shareholder or any judgment, order or decree of any governmental body, agency or court having jurisdiction over the Selling Shareholder, and no consent, approval, authorization or order of, or qualification with, any governmental body or agency is required for the performance by the Selling Shareholder of its obligations under this Agreement, except such as may be required by the securities or Blue Sky laws of the various states in connection with the offer and sale of the Shares.
(c) The Selling Shareholder has, and on the Closing Date (as defined in Section 5 hereof) will have, valid title to, or a valid “security entitlement” within the meaning of Section 8-501 of the New York Uniform Commercial Code (the “UCC”) in respect of, the Shares to be sold by the Selling Shareholder free and clear of all security interests, claims, liens, equities or other encumbrances and the legal right and power, and all authorization and approval required by law, to enter into this Agreement and to sell, transfer and deliver the Shares to be sold by the Selling Shareholder or a security entitlement in respect of such Shares.
(d) Upon payment for the Shares to be sold by the Selling Shareholder pursuant to this Agreement, delivery of such Shares, as directed by the UnderwritersUnderwriter, to Cede & Co. (“Cede”) or such other nominee as may be designated by the Depository Trust Company (“DTC”), registration of such Shares in the name of Cede or such other nominee and the crediting of such Shares on the books of DTC to securities accounts of the Underwriters Underwriter (assuming that neither DTC nor any such the Underwriter has notice of any adverse claim (within the meaning of Section 8-105 of the UCC) to such Shares), (A) DTC shall be a “protected purchaser” of such Shares within the meaning of Section 8-303 of the UCC, (B) under Section 8-501 of the UCC, the Underwriters Underwriter will acquire a valid security entitlement in respect of such Shares and (C) no action based on any “adverse claim”, within the meaning of Section 8-102 of the UCC, to such Shares may be asserted against the Underwriters Underwriter with respect to such security entitlement; for purposes of this representation, the Selling Shareholder may assume that when such payment, delivery and crediting occur, (x) such Shares will have been registered in the name of Cede or another nominee designated by DTC, in each case on the Company’s share register registry in accordance with its memorandum and articles certificate of association incorporation, bylaws and applicable law, (y) DTC will be registered as a “clearing corporation” within the meaning of Section 8-102 of the UCC and (z) appropriate entries to the accounts account of the several Underwriters Underwriter on the records of DTC will have been made pursuant to the UCC.
(e) The Selling Shareholder has no reason to believe (without independent investigation) that the representations and warranties of the Company contained in Section 1 are not true and correct, is familiar with the Registration Statement and Prospectus and has no knowledge of any material fact, condition or information not disclosed in the Prospectus that has had, or may have, a Material Adverse Effect. The Selling Shareholder is not prompted by any information concerning the Company or its Subsidiaries which is not set forth in the Prospectus to sell its Shares pursuant to this Agreement.
(i) The Registration Statement, when it became effective, did not contain and, as amended or supplemented, if applicable, will not contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading misleading, and (ii) the Prospectus does not contain and, as amended or supplemented, if applicable, will not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading, provided except that the representations and warranties set forth in this paragraph 2(e2(f) are limited apply only to statements or omissions in or incorporated by reference in the Registration Statement or the Prospectus made in reliance upon information relating to the Selling Shareholder furnished to the Company in writing by or on behalf of the Selling Shareholder expressly for use therein. The Company and the Underwriter acknowledge that the information on the Selling Shareholder appearing in the Prospectus in constitute the only information furnished by or on behalf of the Selling Shareholder to the Company expressly for use in the Registration StatementStatement and the Prospectus.
(g) There are no legal or governmental proceedings pending or, to the knowledge of the Selling Shareholder, threatened to which the Selling Shareholder is a party or to which any of the properties of the Selling Shareholder is subject other than proceedings that would not have a material adverse effect on the power or ability of the Selling Shareholder to perform its obligations under this Agreement or to consummate the transactions contemplated by the Prospectus.
(h) The Selling Shareholder has not taken, and will not take, directly or indirectly, any action designed to, or which might reasonably be expected to, cause or result in stabilization nor manipulation of the price of any security of the Company to facilitate the sale or resale of the Shares pursuant to the distribution contemplated by this Agreement, and other than as permitted by the Securities Act, the Prospectus Selling Shareholder has not distributed and will not distribute any prospectus or any amendments or supplements theretoother offering material in connection with the offering and sale of the Shares.
Appears in 1 contract
Representations and Warranties of the Selling Shareholder. The Selling Shareholder represents and warrants to and agrees with each of the Underwriters that:
(a) This Agreement has been duly authorized, executed and delivered by or on behalf of the Selling Shareholder.
(b) The execution and delivery by the Selling Shareholder of, and the performance by the Selling Shareholder of its obligations under, this Agreement will not contravene any provision of applicable law, or the memorandum and articles of association of the Selling Shareholder, law or any agreement or other instrument binding upon the Selling Shareholder or any judgment, order or decree of any governmental body, agency or court having jurisdiction over the Selling Shareholder, except in the case of such conflicts, breaches and violations that would not reasonably be expected to affect the validity of the Shares or have a material adverse effect on the ability of the Selling Shareholder to consummate the transactions contemplated by this Agreement, and no consent, approval, authorization or order of, or qualification with, any governmental body body, agency or agency court is required for the performance by the Selling Shareholder of its obligations under this AgreementAgreement of the Selling Shareholder, except such as (A) may be required by the securities or Blue Sky laws of the various states in connection with the offer and sale of the SharesShares or (B) have already been obtained.
(c) The Selling Shareholder has, and on the Closing Date will have, valid title to, or a valid “security entitlement” within the meaning of Section 8-501 of the New York Uniform Commercial Code (the “UCC”) in respect of, the Shares to be sold by the Selling Shareholder free and clear of all security interests, claims, liens, equities or other encumbrances and the legal right and power, and all authorization and approval required by law, to enter into this Agreement and to sell, transfer and deliver the Shares to be sold by the Selling Shareholder or a security entitlement in respect of such Shares.
(d) Upon payment for the security entitlement in respect of the Shares to be sold by the Selling Shareholder pursuant to this Agreement, delivery of such Shares, as directed by the Underwriters, to Cede & Co. (“Cede”) or such other nominee as may be designated by the Depository Trust Company (“DTC”), registration of such Shares in the name of Cede or such other nominee Agreement and the crediting of such Shares on the books of DTC The Depository Trust Company (“DTC”) to securities accounts of the Underwriters (assuming that neither DTC nor any such Underwriter has notice of any adverse claim (within the meaning of Section 8-105 of the New York Uniform Commercial Code (the “UCC”)) to such Shares), (A) DTC shall be a “protected purchaser” of such Shares within the meaning of Section 8-303 of the UCC, (B) under Section 8-501 of the UCC, the Underwriters will acquire a valid security entitlement in respect of such Shares and (C) no action based on any “adverse claim”, within the meaning of Section 8-102 of the UCC, to such Shares may be asserted against the Underwriters with respect to such security entitlement; for purposes of this representation, the Selling Shareholder may assume that when such payment, delivery payment and crediting occur, (x) such Shares will have been registered in the name of Cede & Co. or another nominee designated by DTC, in each case on the Company’s share register registry in accordance with its memorandum and articles certificate of association incorporation, bylaws and applicable law, (y) DTC will be registered as a “clearing corporation” within the meaning of Section 8-102 of the UCC and (z) appropriate entries to the accounts of the several Underwriters on the records of DTC will have been made pursuant to the UCC.
(e) The Selling Shareholder has delivered to the Representatives an executed lock-up agreement in substantially the form attached hereto as Exhibit A (the “Lock-up Agreement”).
(f) The Selling Shareholder has no reason to believe that the representations and warranties of the Company contained in Section 1 are not true and correct. The Selling Shareholder is not prompted by any information concerning the Company or its subsidiaries that is not set forth in the Registration Statement, the Time of Sale Prospectus or the Prospectus to sell its Shares pursuant to this Agreement.
(g) (i) The Each document, if any, filed or to be filed pursuant to the Exchange Act and incorporated by reference in the Time of Sale Prospectus or the Prospectus complied or will comply when so filed in all material respects with the Exchange Act and the applicable rules and regulations of the Commission thereunder, (ii) the Registration Statement, when it became effective, did not contain and, as amended or supplemented, if applicable, will not contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading, (iii) the Registration Statement and the Prospectus comply and, as amended or supplemented, if applicable, will, as of the date of such amendment or supplement, comply in all material respects with the Securities Act and the applicable rules and regulations of the Commission thereunder, (iv) the Time of Sale Prospectus does not, and at the time of each sale of the Shares in connection with the offering when the Prospectus is not yet available to prospective purchasers and at the Closing Date and at the Option Closing Date, as the case may be, the Time of Sale Prospectus, as then amended or supplemented by the Company, if applicable, will not, contain any 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, (v) each broadly available roadshow, if any, when considered together with the Time of Sale Prospectus, does not contain any 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 and (iivi) the Prospectus does not contain and, as amended or supplemented, if applicable, will not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading, provided except that the representations and warranties set forth in this paragraph 2(e) are limited do not apply to statements or omissions in the Registration Statement Statement, the Time of Sale Prospectus or the Prospectus made in reliance based upon information relating to the Selling Shareholder any Underwriter furnished to the Company in writing by such Underwriter through the Representatives expressly for use therein, it being understood and agreed that the only such information furnished by any Underwriter consists of the Underwriter Information.
(i) None of the Selling Shareholder expressly for or, to the knowledge of the Selling Shareholder, any employee, agent, representative, or affiliate thereof, is a Person that is, or is owned or controlled by one or more Persons that are:
(A) the subject of any Sanctions, or
(B) located, organized or resident in a country or territory that is the subject of Sanctions (including, without limitation, Crimea, the so-called Donetsk and Luhansk People’s Republics, Cuba, Iran, North Korea and Syria).
(ii) The Selling Shareholder will not, directly or indirectly, use the proceeds of the offering, or lend, contribute or otherwise make available such proceeds to any subsidiary, joint venture partner or other Person:
(A) to fund or facilitate any activities or business of or with any Person or in any country or territory that, at the time of such funding or facilitation, is the subject of Sanctions; or
(B) in any other manner that will result in a violation of Sanctions by any Person (including any Person participating in the Registration Statementoffering, whether as underwriter, advisor, investor or otherwise).
(iii) The Selling Shareholder has not knowingly engaged in, is not now knowingly engaged in, and will not engage in, any dealings or transactions with any Person, or in any country or territory, that at the time of the dealing or transaction is or was the subject of Sanctions.
(a) Neither the Selling Shareholder nor, to the knowledge of the Selling Shareholder, any employee, agent, representative, or affiliate thereof has taken or will take any action in furtherance of an offer, payment, promise to pay, or authorization or approval of the payment giving or receipt of money, property, gifts or anything else of value, directly or indirectly, to any Government Official in order to influence official action, or to any person in violation of any applicable anti-corruption laws; and (b) the Selling Shareholder has conducted its business in compliance with applicable anti-corruption laws and will not use, directly or indirectly, the Prospectus proceeds of the offering in furtherance of an offer, payment, promise to pay, or authorization of the payment or giving of money, or anything else of value, to any amendments person in violation of any anti-corruption laws applicable to the Selling Shareholder.
(i) The Selling Shareholder represents and warrants that it is not (i) an employee benefit plan subject to Title I of the Employee Retirement Income Security Act of 1974, as amended (“ERISA”), (ii) a plan or supplements theretoaccount subject to Section 4975 of the Internal Revenue Code of 1986, as amended or (iii) an entity deemed to hold “plan assets” of any such plan or account under Section 3(42) of ERISA, 29 C.F.R. 2510.3-101, or otherwise.
(j) The Selling Shareholder has, pursuant to Section 20(a), to the extent permitted by law, legally, validly, effectively and irrevocably submitted, to the jurisdiction of the Specified Courts, and has, pursuant to Section 20(c), legally, validly and effectively designated, appointed and empowered an agent for service of process in any suit or proceeding based on or arising under this Agreement in any of the Specified Courts.
Appears in 1 contract
Representations and Warranties of the Selling Shareholder. The Selling Shareholder represents and warrants to and agrees with each of the Underwriters that:
(a) This Agreement has been duly authorized, executed and delivered by or on behalf of the Selling Shareholder.
(b) The execution and delivery by the Selling Shareholder of, and the performance by the Selling Shareholder of its obligations under, this Agreement will not contravene any provision of applicable law, law or the memorandum and articles of association partnership agreement of the Selling Shareholder, Shareholder or any agreement or other instrument binding upon the Selling Shareholder or any judgment, order or decree of any governmental body, agency or court having jurisdiction over the Selling Shareholder, and no consent, approval, authorization or order of, or qualification with, any governmental body or agency is required for the performance by the Selling Shareholder of its obligations under this Agreement, except such as may be required by the securities or Blue Sky laws of the various states in connection with the offer and sale of the SharesShares or has been obtained prior to the date of this Agreement.
(c) The Selling Shareholder has, and on the Option Closing Date (as defined below) will have, valid title to, or a valid “"security entitlement” " within the meaning of Section 8-501 of the New York Uniform Commercial Code (the “UCC”) in respect of, the Shares to be sold by the Selling Shareholder Shareholder, free and clear of all security interests, claims, liens, equities or other encumbrances encumbrances, and the legal right and power, and all authorization and approval required by law, to enter into this Agreement and to sell, transfer and deliver the Shares to be sold by the such Selling Shareholder or a security entitlement in respect of such Shares.
(de) Upon payment for the Additional Shares to be sold by the Selling Shareholder pursuant to this Agreement, delivery of such Additional Shares, as directed by the Underwriters, to Cede & Co. (“"Cede”") or such other nominee as may be designated by the The Depository Trust Company (“"DTC”"), registration of such Additional Shares in the name of Cede or such other nominee and the crediting of such Additional Shares on the books of DTC to securities accounts of the Underwriters (assuming that neither DTC nor any such Underwriter has notice of any adverse claim (within the meaning of Section 8-105 of the New York Uniform Commercial Code (the "UCC")) to such Additional Shares), (A) DTC shall be a “"protected purchaser” " of such Additional Shares within the meaning of Section 8-303 of the UCC, (B) under Section 8-501 of the UCC, the Underwriters will acquire a valid security entitlement in respect of such Additional Shares and (C) no action based on any “"adverse claim”", within the meaning of Section 8-102 of the UCC, to such Additional Shares may be asserted against the Underwriters with respect to such security entitlement; for purposes of this representation, the such Selling Shareholder may assume that when such payment, delivery and crediting occur, (x) such Additional Shares will have been registered in the name of Cede or another nominee designated by DTC, in each case on the Company’s 's share register registry in accordance with its memorandum and articles certificate of association incorporation, bylaws and applicable law, (y) DTC will be registered as a “"clearing corporation” " within the meaning of Section 8-102 of the UCC and (z) appropriate entries to the accounts of the several Underwriters on the records of DTC will have been made pursuant to the UCC.
(f) The Selling Shareholder is not prompted by any information concerning the Company or its subsidiaries which is not set forth in the Prospectus to sell its Additional Shares pursuant to this Agreement.
(i) The Registration Statement, when it became effective, did not contain and, as amended or supplemented, if applicable, will not contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading and (ii) the Prospectus does not contain and, as amended or supplemented, if applicable, will not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading, ; provided that the representations and warranties set forth in this paragraph 2(e2(g) are limited to statements or omissions in the Registration Statement or Prospectus made in reliance upon information relating to the Selling Shareholder furnished to the Company in writing by the Selling Shareholder expressly for use in the Registration Statement, the Prospectus or any amendments or supplements thereto.
(h) The Selling Shareholder has not taken and will not take, directly or indirectly, any action which is designed to or which has constituted or which might reasonably be expected to cause or result in stabilization or manipulation of the price of any security of the Company or LLC Holdings to facilitate the sale or resale of its Additional Shares.
(i) Except as disclosed by the Selling Shareholder in writing to ▇▇▇▇▇▇ ▇▇▇▇▇▇▇, neither the Selling Shareholder nor any of his, her or its affiliates directly, or indirectly through one or more intermediaries, controls, or is controlled by, or is under common control with, or has any other association with (within the meaning of Article 1(q) of the Bylaws of the National Association of Securities Dealers, Inc. (the "NASD")), any member firm of the NASD.
Appears in 1 contract
Representations and Warranties of the Selling Shareholder. The Selling Shareholder represents and warrants to and agrees with each of the Underwriters Underwriter that:
(a) This Agreement has been duly authorized, executed and delivered by the Selling Shareholder.
(b) The execution and delivery by the Selling Shareholder of, and the performance by the Selling Shareholder of its his obligations under, under this Agreement will not contravene any provision of applicable law, or the memorandum and articles of association of the Selling Shareholder, or any agreement or other instrument binding upon the Selling Shareholder or any judgment, order or decree of any governmental body, agency or court having jurisdiction over the Selling Shareholder, and other than the order of effectiveness issued by the Commission with respect to the Registration Statement, no consent, approval, authorization or order of, or qualification with, any governmental body or agency is required for the performance by the Selling Shareholder of its his obligations under this Agreement, except such as may be required by the securities or Blue Sky laws of the various states in connection with the offer and sale of the Shares.
(c) The Selling Shareholder hasShareholder, and on the Closing Date Date, will have, have valid title to, or a valid “security entitlement” within the meaning of Section 8-501 of the New York Uniform Commercial Code (the “UCC”) in respect of, to the Shares to be sold by the Selling Shareholder free and clear of all security interests, claims, liens, equities or other encumbrances and the legal right and power, and all authorization and approval required by law, to enter into this Agreement and to sell, transfer and deliver the Shares to be sold by the Selling Shareholder or a security entitlement in respect of such SharesShareholder.
(d) Upon payment for the Shares to be sold by the Selling Shareholder pursuant to this Agreement, delivery of such Shares, as directed by the UnderwritersUnderwriter, to Cede & Co. (“"Cede”") or such other nominee as may be designated by the Depository Trust Company (“"DTC”"), registration of such Shares in the name of Cede or such other nominee and the crediting of such Shares on the books of DTC to securities accounts of the Underwriters Underwriter (assuming that neither DTC nor any such the Underwriter has notice of any adverse claim (within the meaning of Section 8-105 of the New York Uniform Commercial Code (the "UCC")) to such Shares), (A) DTC shall be a “"protected purchaser” " of such Shares within the meaning of Section 8-303 of the UCC, (B) under Section 8-501 of the UCC, the Underwriters Underwriter will acquire a valid security entitlement in respect of such Shares and (C) no action based on any “"adverse claim”", within the meaning of Section 8-102 of the UCC, to such Shares may be asserted against the Underwriters Underwriter with respect to such security entitlement; for purposes of this representation, the Selling Shareholder may assume that when such payment, delivery and crediting occur, (x) such Shares will have been registered in the name of Cede or another nominee designated by DTC, in each case on the Company’s 's share register registry in accordance with its memorandum and articles certificate of association incorporation, bylaws and applicable law, (y) DTC will be registered as a “"clearing corporation” " within the meaning of Section 8-102 of the UCC and (z) appropriate entries to the accounts account(s) of the several Underwriters Underwriter on the records of DTC will have been made pursuant to the UCC.
(ie) The Registration Statement, when it became effective, did Selling Shareholder has not contain and, as amended or supplemented, if applicable, taken and will not contain take, directly or indirectly, any untrue statement of a material fact action designed to or omit which might be reasonably expected to state a material fact required to be stated therein cause or necessary to make result, under the statements therein not misleading and (ii) the Prospectus does not contain and, as amended Exchange Act or supplemented, if applicable, will not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements thereinotherwise, in the light stabilization or manipulation of the circumstances under which they were madeprice of any security of the Company to facilitate the sale or resale of the Shares.
(f) The Selling Shareholder represents and warrants to, not misleadingand agrees with, provided that the Company and the Underwriter to the same effect as the representations and warranties of the Company set forth in Section 1 of this paragraph 2(eAgreement.
(g) are limited In order to statements or omissions in document the Registration Statement or Prospectus made in reliance upon information relating Underwriter's compliance with the reporting and withholding requirements of the Internal Revenue Code of 1986, as amended, with respect to the transactions herein contemplated, the Selling Shareholder furnished agrees to deliver to you prior to or on the Company Closing Date, a properly completed and executed United States Treasury Department Form W-8 or W-9 (or other applicable form or statement specified by Treasury Department regulations in writing by the Selling Shareholder expressly for use in the Registration Statement, the Prospectus or any amendments or supplements theretolieu thereof).
Appears in 1 contract
Representations and Warranties of the Selling Shareholder. The Each Selling Shareholder Shareholder, severally and not jointly, represents and warrants to and agrees with each of the Underwriters that:
(a) This Such Selling Shareholder has, and at the time of delivery of the Shares to be sold by such Selling Shareholder hereunder on any Closing Date will have and at the time of delivery of such Shares will have, valid title to such Shares and upon sale and delivery of, and payment for, such Shares, as provided herein, such Selling Shareholder will convey valid title to such Shares, free and clear of any security interests, liens, encumbrances, equities or claims.
(b) Such Selling Shareholder has full right, power and capacity to enter into this Agreement and the agreement dated May 5, 2010 between each of the Selling Shareholders and LLC Renaissance Broker, as the Russian broker (the “Brokerage Agreements”) and to perform its obligations hereunder and thereunder, and each of this Agreement and the Brokerage Agreements has been duly authorized, executed and delivered by the Selling Shareholder; and such Selling Shareholder has complied with the requirements of Russian law and regulations applicable to the offering of the Shares in the form of preferred shares in the Russian Federation in accordance with the Brokerage Agreements that the Selling Shareholder is a party to; and in deciding to sell the Shares or ADSs to be sold by him or it hereunder, such Selling Shareholder has relied upon his own judgment and such independent financial and legal advice as he, she or it has seen fit to obtain, and has not relied upon any of the Underwriters or their advisers for any such advice.
(bc) The deposit with the Depositary by such Selling Shareholder of the Shares to be sold by him, her or it against issuance of ADRs evidencing ADSs, the execution and delivery by the such Selling Shareholder of, of this Agreement and the performance by the such Selling Shareholder of its obligations underhereunder and under the Brokerage Agreements, this Agreement will (i) do not contravene require any provision of applicable law, or the memorandum and articles of association of the Selling Shareholder, or any agreement or other instrument binding upon the Selling Shareholder or any judgment, order or decree of any governmental body, agency or court having jurisdiction over the Selling Shareholder, and no consent, approval, authorization or order of, or qualification filing with, any governmental agency or body or agency is required for the performance by the Selling Shareholder of its obligations under this Agreement, any court except such as have been obtained and such as may be required by under the securities or Blue Sky “blue sky” laws of the various states any jurisdiction in connection with the offer purchase and sale distribution by the Underwriters of the SharesADSs in the manner contemplated herein and in the Prospectus and (ii) will not conflict with or result in a breach or violation of any of the terms and provisions of, or constitute a default under, (A) any statute, or any rule, regulation or order of any governmental agency or body or any court applicable to such Selling Shareholder, or (B) any agreement or instrument to which such Selling Shareholder is a party or by which such Selling Shareholder is bound or to which any of their respective properties is subject.
(cd) The Selling Shareholder has, and on the Closing Date will have, valid title Shareholders have not made any offer of Shares or ADSs to, nor solicited any offers to buy Shares or a valid “security entitlement” within ADSs from, any persons other than the meaning of Section 8-501 Underwriters and as required under any applicable laws and regulations.
(e) No stamp or other issuance or transfer taxes or duties and no withholding or other taxes are payable by or on behalf of the New York Uniform Commercial Code Underwriters (except any income, capital gains, withholding or other taxes imposed upon the “UCC”Underwriters that would not have been imposed but for a connection between the Underwriters and the jurisdiction imposing such taxes, other than a connection arising as a result of the transaction contemplated by this Agreement) in respect of, connection with (i) the sale and delivery by such Selling Shareholder of the Shares to be sold by him, her or it, (ii) the Selling Shareholder free and clear deposit with the Depositary of all security interests, claims, liens, equities or other encumbrances and the legal right and power, and all authorization and approval required by law, to enter into this Agreement and to sell, transfer and deliver the Shares to be sold by the such Selling Shareholder against the issuance of ADRs evidencing ADSs or a security entitlement in respect (iii) the sale and delivery by the Underwriters of such SharesShares or ADSs to the initial purchasers thereof in the manner contemplated in the Time of Sale Prospectus and the Prospectus.
(df) Upon payment for From the Shares to be sold by date and time at which the Selling Shareholder pursuant to this Agreement, delivery Registration Statement becomes effective and at all times subsequent thereto through the latest Closing Date or the termination of such the offering of the Shares, as directed by the UnderwritersRegistration Statement and Prospectus, to Cede & Co. (“Cede”) and any supplements or such other nominee as may be designated by the Depository Trust Company (“DTC”), registration of such Shares in the name of Cede or such other nominee and the crediting of such Shares on the books of DTC to securities accounts of the Underwriters (assuming that neither DTC nor any such Underwriter has notice of any adverse claim (within the meaning of Section 8-105 of the UCC) to such Shares), (A) DTC shall be a “protected purchaser” of such Shares within the meaning of Section 8-303 of the UCC, (B) under Section 8-501 of the UCC, the Underwriters will acquire a valid security entitlement in respect of such Shares and (C) no action based on any “adverse claim”, within the meaning of Section 8-102 of the UCC, to such Shares may be asserted against the Underwriters with respect to such security entitlement; for purposes of this representation, the Selling Shareholder may assume that when such payment, delivery and crediting occur, (x) such Shares will have been registered in the name of Cede or another nominee designated by DTCamendments thereto, in each case on the Company’s share register in accordance with its memorandum and articles of association and applicable law, (y) DTC will be registered as a “clearing corporation” within the meaning of Section 8-102 of the UCC and (z) appropriate entries to the accounts of the several Underwriters on the records of DTC will have been made pursuant to the UCC.
(i) The Registration Statement, when it became effective, did not contain andcase, as amended or supplemented, if applicablerelate to such Selling Shareholder, will not contain any 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 misleading.
(g) The execution and delivery by each Selling Shareholder of each transaction document to which it, he or she is a party, and the consummation of the transactions contemplated hereby or thereby by such Selling Shareholder, will not require the consent of any spouse of such Selling Shareholder pursuant to the applicable laws of any jurisdiction, including, but not limited to, those of the United States of America or the Russian Federation, except as have been obtained.
(h) Neither the Selling Shareholders nor any of its affiliates (as defined in Rule 405 under the Securities Act) has (i) taken, directly or indirectly, any action designed to cause or to result in, or that has constituted or might reasonably be expected to constitute, the stabilization or manipulation of the price of any security of the Selling Shareholders to facilitate the sale or resale of the Shares or the ADSs or (ii) paid or agreed to pay to any person any compensation for soliciting another to purchase any securities of the Prospectus does not contain andSelling Shareholders or otherwise entered into any contractual arrangement with respect to the distribution of any securities (except for the sale of ADSs by the Underwriters under this Agreement and the sale of the Shares under the Brokerage Agreements).
(i) The operations of the Selling Shareholders and their respective subsidiaries are and have been conducted at all times in material compliance with all applicable financial recordkeeping and reporting requirements, including those of the Bank Secrecy Act, as amended by Title III of the Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act of 2001 (USA PATRIOT Act), and the applicable Anti-Money Laundering Laws, and no action, suit or supplementedproceeding by or before any court or governmental agency, if applicableauthority or body or any arbitrator involving the Selling Shareholders or any of their respective subsidiaries with respect to the Anti-Money Laundering Laws is pending or, to the best knowledge of any of the Selling Shareholders, threatened.
(i) The Selling Shareholders represent that neither the Selling Shareholders nor any of their respective subsidiaries or affiliates, nor any director, officer, or employee (collectively, the “Selling Entity”) nor, to the any of the Selling Shareholders’ knowledge, any agent or representative of the Selling Entity, is an individual or entity (“Person”) that is, or is owned or controlled by a Person that is:
(A) the subject of any sanctions administered or enforced by OFAC, nor
(B) located, organized or resident in a country or territory that is the subject of any sanctions administered or enforced by OFAC (including, without limitation, Burma/Myanmar, Cuba, Iran, North Korea, Sudan and Syria).
(ii) The Selling Shareholders represent and covenant that they have not knowingly engaged in, are not now knowingly engaged in, and will not contain engage in, any untrue statement of a material fact dealings or omit to state a material fact necessary to make transactions with any Person, or in any country or territory, that at the statements therein, in the light time of the circumstances under which they were made, not misleading, provided that the representations and warranties set forth in this paragraph 2(e) are limited dealing or transaction is or was subject to statements any sanctions administered or omissions in the Registration Statement or Prospectus made in reliance upon information relating to the Selling Shareholder furnished to the Company in writing enforced by the Selling Shareholder expressly for use in the Registration Statement, the Prospectus or any amendments or supplements theretoOFAC.
Appears in 1 contract
Sources: Underwriting Agreement (Mechel OAO)
Representations and Warranties of the Selling Shareholder. The Selling Shareholder represents and warrants to to, and agrees with with, the Company and each of the Underwriters that:Underwriter as set forth below in this Section 3.
(a) This Agreement has been duly authorized, executed and delivered by or on behalf of the Selling Shareholder.
(b) The execution and delivery by the Selling Shareholder ofhas full right, power and the performance by the Selling Shareholder of its obligations under, this Agreement will not contravene any provision of applicable law, or the memorandum and articles of association of the Selling Shareholder, or any agreement or other instrument binding upon the Selling Shareholder or any judgment, order or decree of any governmental body, agency or court having jurisdiction over the Selling Shareholder, and no consent, approval, authorization or order of, or qualification with, any governmental body or agency is required for the performance by the Selling Shareholder of its obligations under authority to enter into this Agreement, except such as may be required by and to sell, assign, transfer and deliver the securities or Blue Sky laws of the various states in connection with the offer and sale of the Shares.
(c) The Selling Shareholder has, and on the Closing Date will have, valid title to, or a valid “security entitlement” within the meaning of Section 8-501 of the New York Uniform Commercial Code (the “UCC”) in respect of, the Shares Offered Securities to be sold by the Selling Shareholder free and clear of all security interestshereunder; and, claims, liens, equities or other encumbrances and the legal right and power, and all authorization and approval required by law, to enter into this Agreement and to sell, transfer and deliver the Shares to be sold by the Selling Shareholder or a security entitlement in respect of such Shares.
(d) Upon upon payment for the Shares Offered Securities to be sold by the Selling Shareholder pursuant to this Agreement, delivery of such SharesOffered Securities, as directed by the UnderwritersRepresentative, to Cede & Co. (“Cede”) or such other nominee as may be designated by the The Depository Trust Company (“DTC”), registration of such Shares Offered Securities in the name of Cede or such other nominee and the crediting of such Shares Offered Securities on the books of DTC to the securities accounts account of the Underwriters (assuming that neither DTC nor any such Underwriter the Underwriters has notice of any adverse claim (within the meaning of Section 8-105 of the New York Uniform Commercial Code (the “UCC”)) to such SharesOffered Securities), (A) DTC shall be a “protected purchaser” of such Shares Offered Securities within the meaning of Section 8-303 of the UCC, (B) under Section 8-501 of the UCC, the Underwriters will acquire a valid security entitlement in respect of such Shares Offered Securities and (C) no action based on any “adverse claim”, ,” within the meaning of Section 8-102 of the UCC, to such Shares Offered Securities may be asserted against the Underwriters with respect to such security entitlement; for purposes of this representation, the Selling Shareholder may assume that when such payment, delivery and crediting occur, (x) such Shares Offered Securities will have been registered in the name of Cede or another nominee designated by DTC, in each case on the Company’s share register registry in accordance with its memorandum and articles certificate of association incorporation, bylaws and applicable law, (y) DTC will be registered as a “clearing corporation” within the meaning of Section 8-102 of the UCC and (z) appropriate entries entry to the accounts account of the several Underwriters on the records of DTC will have been made pursuant to the UCC.
(c) The execution and delivery by the Selling Shareholder of, and the performance by the Selling Shareholder of its obligations under, this Agreement will not contravene or conflict with, result in a breach of, or constitute a default (or, with the giving of notice or lapse of time, would be in default) under, or require the consent of any other party to (i) The any agreement or instrument to which the Selling Shareholder is a party or by which it is bound or under which it is entitled to any right or benefit including any pledge of Offered Securities or (ii) any provision of applicable law or any judgment, order, decree or regulation applicable to the Selling Shareholder of any court, regulatory body, administrative agency, governmental body or arbitrator having jurisdiction over the Selling Shareholder, except, in the case of the foregoing clauses (i) and (ii) as would not, individually or in the aggregate, reasonably be expected to materially impact the Selling Shareholder’s ability to perform its obligations under this Agreement. No consent, approval, authorization or other order of, or registration or filing with, any court or other governmental authority or agency, is required for the consummation by the Selling Shareholder of the transactions contemplated in this Agreement, except such as may be required under the Securities Act, applicable state securities or blue sky laws and from the Financial Industry Regulatory Authority, Inc. (“FINRA”) and such other approvals as have been or will be made or obtained on or prior to the Closing Date.
(d) All information furnished to the Company or the Underwriters by or on behalf of the Selling Shareholder in writing expressly for use in the Registration Statement, when it became effectivethe General Disclosure Package or the Final Prospectus is, did not contain andand on the Closing Date will be, as amended or supplementedtrue, if applicablecorrect and complete in all material respects, and on the Closing Date will not not, contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading and (ii) the Prospectus does not contain and, as amended or supplemented, if applicable, will not contain any 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, such information not misleading, provided it being understood and agreed that the representations and warranties set forth in this paragraph 2(e) are limited to statements or omissions in only such information consists of the Registration Statement or Prospectus made in reliance upon information relating with respect to the Selling Shareholder furnished to under the Company in writing by the caption “Selling Shareholder expressly for use Shareholder” in the Registration Statement, the General Disclosure Package and the Final Prospectus (such information, the “Selling Shareholder Information”).
(e) Prior to the completion of the Underwriters’ distribution of the Offered Securities, the Selling Shareholder has not distributed and will not distribute any offering material in connection with the offering and sale of the Offered Securities other than the Registration Statement, the General Disclosure Package and the Final Prospectus.
(f) The Selling Shareholder has not taken and will not take, directly or indirectly, any action that is designed to or that has constituted or that might 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 Offered Securities.
(g) The Selling Shareholder is a United States person (as the term is defined in 7701(a)(30) of the Internal Revenue Code of 1986, as amended) for U.S. federal income tax purposes. Any certificate signed by or on behalf of the Selling Shareholder and delivered to the Representative or to counsel for the Underwriters in connection with the offering of the Offered Securities shall be deemed a representation and warranty by the Selling Shareholder to the Underwriters as to the matters covered thereby with respect to the Selling Shareholder. The Selling Shareholder has a reasonable basis for making each of the representations set forth in this Section 3. The Selling Shareholder acknowledges that the Company, Underwriters and, for purposes of the opinions to be delivered pursuant to Section 9(d), Section 9(e), Section 9(f) and Section 9(g) hereof, counsel to the Company, the Company’s general counsel or any amendments or supplements theretoassistant general counsel, the Selling Shareholder and counsel to the Underwriters, will rely upon the accuracy and truthfulness of the foregoing representations and hereby consents to such reliance.
Appears in 1 contract
Sources: Underwriting Agreement (Fiserv Inc)
Representations and Warranties of the Selling Shareholder. The Selling --------------------------------------------------------- Shareholder hereby represents and warrants to and agrees with each of the Underwriters thatUnderwriter as follows:
(a) The Selling Shareholder has caused certificates for the number of Shares to be sold by the Selling Shareholder hereunder to be delivered to ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, endorsed in blank or with blank stock powers duly executed, with a signature appropriately guaranteed, such certificates to be held in custody by the Custodian for delivery, pursuant to the provisions of this Agreement and an agreement dated June __, 1999 between the Custodian and the Selling Shareholder (the "Custody Agreement").
(b) The Selling Shareholder has granted an irrevocable power of attorney (the "Power of Attorney") to the person named therein, on behalf of the Selling Shareholder, to execute and deliver this Agreement and any other document necessary or desirable in connection with the transactions contemplated hereby and to deliver the shares to be sold by the Selling Shareholder pursuant hereto.
(c) This Agreement, the Custody Agreement has and the Power of Attorney have each been duly authorized, executed and delivered by or on behalf of the Selling Shareholder and, assuming due authorization, execution and delivery by the other parties hereto or thereto, each constitutes the valid and legally binding agreement of the Selling Shareholder, enforceable against the Selling Shareholder in accordance with its terms.
(bd) The execution and delivery by the Selling Shareholder of, of this Agreement and the performance by the Selling Shareholder of its obligations under, under this Agreement (i) will not contravene any provision of applicable law, statute, regulation or the memorandum and articles of association of the Selling Shareholder, filing or any agreement or other instrument binding upon the Selling Shareholder or any judgment, order or decree of any governmental body, agency or court having jurisdiction over the Selling Shareholder, and no (ii) does not require any consent, approval, authorization or order of, of or qualification with, registration or filing with any court or governmental agency or body or agency is required for the performance by the Selling Shareholder of its obligations under this Agreementhaving jurisdiction over it, except such as may be required by the securities or Blue Sky laws of the various states in connection with the offer and sale of the SharesShares which have been or will be effected in accordance with this Agreement, (iii) does not and will not violate any statute, law, regulation or filing or judgment, injunction, order or decree applicable to the Selling Shareholder and (iv) will not result in the creation or imposition of any lien, charge or encumbrance upon any property or assets of the Selling Shareholder pursuant to the terms of any agreement or instrument to which the Selling Shareholder is a party or by which the Selling Shareholder may be bound or to which any of the property or assets of the Selling Shareholder is subject.
(ce) The Selling Shareholder has, and on the Firm Shares Closing Date will have, valid and marketable title to, or a valid “security entitlement” within the meaning of Section 8-501 of the New York Uniform Commercial Code (the “UCC”) in respect of, to the Shares to be sold by the Selling Shareholder free and clear of all any lien, claim, security interests, claims, liens, equities interest or other encumbrances and the legal right and powerencumbrance, including any restriction on transfer.
(f) The Selling Shareholder has, and all authorization on the Firm Shares Closing Date will have, full legal right, power and authorization, and any approval required by law, to enter into this Agreement and to sell, assign, transfer and deliver the Shares to be sold by the Selling Shareholder or a security entitlement in respect of such Sharesthe manner provided by this Agreement.
(dg) Upon delivery of and payment for the Shares to be sold by the Selling Shareholder pursuant to this Agreement, delivery of such Shares, as directed by the Underwriters, to Cede & Co. (“Cede”) or such other nominee as may be designated by the Depository Trust Company (“DTC”), registration of such Shares in the name of Cede or such other nominee and the crediting of such Shares on the books of DTC to securities accounts of the Underwriters (assuming that neither DTC nor any such Underwriter has notice of any adverse claim (within the meaning of Section 8-105 of the UCC) to such Shares), (A) DTC shall be a “protected purchaser” of such Shares within the meaning of Section 8-303 of the UCC, (B) under Section 8-501 of the UCC, the several Underwriters will acquire a receive valid security entitlement in respect of such Shares and (C) no action based on any “adverse claim”, within the meaning of Section 8-102 of the UCC, marketable title to such Shares may be asserted against the Underwriters with respect free and clear of any lien, claim, security interest or other encumbrance.
(h) All information relating to such security entitlement; for purposes of this representation, the Selling Shareholder may assume that when such payment, delivery and crediting occur, (x) such Shares will have been registered furnished in writing by the Selling Shareholder expressly for use in the name of Cede or another nominee designated by DTCRegistration Statement and Prospectus is, in and on each case Closing Date will be, true, correct and complete, and does not, and on the Company’s share register in accordance with its memorandum and articles of association and applicable laweach Closing Date will not, (y) DTC will be registered as a “clearing corporation” within the meaning of Section 8-102 of the UCC and (z) appropriate entries to the accounts of the several Underwriters on the records of DTC will have been made pursuant to the UCC.
(i) The Registration Statement, when it became effective, did not contain and, as amended or supplemented, if applicable, will not contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading and (ii) the Prospectus does not contain and, as amended or supplemented, if applicable, will not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in the light such information not misleading.
(i) The Selling Shareholder has no reason to believe that any representation or warranty of the circumstances under which they were made, not misleading, provided that the Company set forth in Section 4 above is untrue or inaccurate in any material respect.
(j) The representations and warranties set forth in this paragraph 2(e) are limited to statements or omissions in the Registration Statement or Prospectus made in reliance upon information relating to of the Selling Shareholder furnished to the Company in writing by the Selling Shareholder expressly for use in the Registration StatementCustody Agreement are, the Prospectus or any amendments or supplements theretoand on each Closing Date will be, true and correct.
Appears in 1 contract
Sources: Underwriting Agreement (Financial Institutions Inc)
Representations and Warranties of the Selling Shareholder. The Selling Shareholder hereby represents and warrants to and agrees with each Underwriter as of the Underwriters thatdate hereof, as of the Firm Shares Closing Date and, if the Selling Shareholder is selling Option Shares, as of each such Option Shares Closing Date (if any), as follows:
(a) This Agreement has and the Lock-Up Agreement, have each been duly authorized, executed and delivered by the Selling Shareholder and, assuming due authorization, execution and delivery by the other parties thereto, constitutes the valid and legally binding agreement of the Selling Shareholder, enforceable against the Selling Shareholder in accordance with their respective terms.
(b) The execution and delivery by the Selling Shareholder of, of this Agreement and the performance by the Selling Shareholder of its obligations underunder this Agreement, this Agreement including the sale and delivery of the Shares to be sold by the Selling Shareholder and the consummation of the transactions contemplated herein and compliance by the Selling Shareholder with its obligations hereunder, do not and will not not, whether with or without the giving of notice or the passage of time or both, (i) violate or contravene any provision of applicable law, the charter or the memorandum and articles of association by-laws or other organizational instrument of the Selling Shareholder, if applicable, or any applicable law, statute, regulation, or filing or any agreement or other instrument binding upon the Selling Shareholder or any judgment, order or decree of any governmental body, agency or court having jurisdiction over the Selling Shareholder, and no (ii) conflict with or constitute a breach of, or default under, or result in the creation or imposition of any tax, lien, charge or encumbrance upon the shares to be sold by the Selling Shareholder or any property or assets of the Selling Shareholder pursuant to the terms of any agreement or instrument to which the Selling Shareholder is a party or by which the Selling Shareholder may be bound or to which any of the property or assets of the Selling Shareholder is subject or (iii) require any consent, approval, authorization or order of, of or qualification with, registration or filing with any court or governmental agency or body or agency is required for the performance by the Selling Shareholder of its obligations under this Agreementhaving jurisdiction over it, except such as have been obtained and made under the Securities Act and may be required by the securities or Blue Sky laws of the various states in connection with the offer and sale of the SharesShares which have been or will be effected in accordance with this Agreement.
(c) The Selling Shareholder has, and on the Firm Shares Closing Date and the Option Shares Closing Date, if applicable, will have, valid and marketable title to, or a valid “security entitlement” within the meaning of Section 8-501 of the New York Uniform Commercial Code (the “UCC”) in respect of, to the Shares to be sold by the Selling Shareholder free and clear of all any lien, claim, security interests, claims, liens, equities interest or other encumbrances encumbrance, including, without limitation, any restriction on transfer, except as otherwise described in the Registration Statement and Prospectus.
(d) The Selling Shareholder has, and on the Firm Shares Closing Date and the Option Shares Closing Date, if applicable, will have, full legal right right, power and powerauthority, and all authorization and any approval required by law, to enter into this Agreement and to sell, assign, transfer and deliver the Shares to be sold by the Selling Shareholder or a security entitlement in respect of such Sharesthe manner provided by this Agreement.
(de) Upon delivery of and payment for the Shares to be sold by the Selling Shareholder pursuant to this Agreement, delivery of such Shares, as directed by the Underwriters, to Cede & Co. (“Cede”) or such other nominee as may be designated by the Depository Trust Company (“DTC”), registration of such Shares in the name of Cede or such other nominee and the crediting of such Shares on the books of DTC to securities accounts of the Underwriters (assuming that neither DTC nor any such each Underwriter has no notice of any adverse claim (within the meaning of Section 8-105 of the UCC) to such Shares), (A) DTC shall be a “protected purchaser” of such Shares within the meaning of Section 8-303 of the UCC, (B) under Section 8-501 of the UCCclaim, the several Underwriters will acquire a receive valid security entitlement in respect of such Shares and (C) no action based on any “adverse claim”, within the meaning of Section 8-102 of the UCC, marketable title to such Shares may be asserted against the Underwriters with respect free and clear of any lien, claim, mortgage, pledge, security interest or other encumbrance.
(f) All information relating to such security entitlement; for purposes of this representation, the Selling Shareholder may assume that when such payment, delivery and crediting occur, (x) such Shares will have been registered furnished in writing by the Selling Shareholder expressly for use in the name of Cede or another nominee designated by DTC, in each case on the Company’s share register in accordance with its memorandum and articles of association and applicable law, (y) DTC will be registered as a “clearing corporation” within the meaning of Section 8-102 of the UCC and (z) appropriate entries to the accounts of the several Underwriters on the records of DTC will have been made pursuant to the UCC.
(i) The Registration Statement, when it became effectiveProspectus and any Issuer Free Writing Prospectus is, did not contain andand on each Closing Date will be, as amended or supplementedtrue, if applicablecorrect, and complete, and does not, and on each Closing Date will not not, contain any untrue statement of a material fact or omit to state a any material fact required to be stated therein or necessary to make such information not misleading.
(g) The Selling Shareholder has reviewed the statements therein not misleading Registration Statement, Prospectus and (ii) the any Issuer Free Writing Prospectus does not contain and, as amended although the Selling Shareholder has not independently verified the accuracy or supplementedcompleteness of all the information contained therein, if applicablenothing has come to the attention of the Selling Shareholder that would lead the Selling Shareholder to believe that: (i) on the Effective Date, will not contain the Registration Statement contained any untrue statement of a material fact or omit omitted to state any material fact required to be stated therein in order to make the statements made therein not misleading, (ii) on the Effective Date, the Prospectus contained and, on each Closing Date contains, untrue statements of a material fact or omitted or omits to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading, provided and (iii) as of the Applicable Time, the General Disclosure Package, or any individual Issuer Free Writing Prospectus, when considered together with the General Disclosure Package, included untrue statements of a material fact or omitted to state a 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, that the Selling Shareholder makes no representation and warranty with respect to any statements or omissions made in reliance upon and in conformity with the Underwriter Information.
(h) The sale of Shares by the Selling Shareholder pursuant to this Agreement is not prompted by the Selling Shareholder’s knowledge of any material information concerning the Company or any of its subsidiaries that is not set forth in the General Disclosure Package and the Prospectus.
(i) The Selling Shareholder has not taken, directly or indirectly, any action designed to or that might 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 Shares.
(j) The Selling Shareholder has no actual knowledge that any representation or warranty of the Company set forth in Section 2 above is untrue or inaccurate in any material respect, is familiar with the General Disclosure Package and Registration Statement and has no actual knowledge of any material fact, condition or information not disclosed in the General Disclosure Package and the Prospectus or any supplement thereto which has adversely affected or may adversely affect the businesses of the Company or any of its subsidiaries.
(k) The Selling Shareholder has not prepared, used or referred to, nor will it prepare, use or refer to, any “free writing prospectus” (as defined in Rule 405 of the Rules).
(l) The Selling Shareholder has the power to submit, and pursuant to Section 14 of this Agreement has legally, validly, effectively and irrevocably submitted, to the jurisdiction of any U.S. federal or New York state court located in the Borough of Manhattan in The City of New York and has the power to designate, appoint and empower, and pursuant to Section 14 of this Agreement, has legally, validly and effectively designated, appointed and empowered an agent for service of process in any suit or proceeding based on or arising under this Agreement in any U.S. federal or New York state court located in the Borough of Manhattan in The City of New York, and service of process effected in the manner set forth in this Agreement, assuming validity under the laws of the State of New York, will be effective under the laws of Luxembourg to confer valid personal jurisdiction over the Selling Shareholder.
(m) None of the Selling Shareholder or its subsidiaries or affiliates, or any director, officer, or employee thereof, or, to the Selling Shareholder’s knowledge, any agent or representative of the Selling Shareholder or of any of its subsidiaries or affiliates or any other person associated with or acting on behalf of the Selling Shareholder: (i) have taken or will take any action in furtherance of an offer, payment, promise to pay, or authorization or approval of the payment, giving or receipt of money, property, gifts or anything else of value, directly or indirectly, to any government official (including any officer or employee of a government or government-owned or controlled entity or of a public international organization, or any person acting in an official capacity for or on behalf of any of the foregoing, or any political party or party official or candidate for political office) in order to influence official action, or to any person in violation of any applicable anti-corruption laws; (ii) will use, directly or indirectly, the proceeds of the offering in furtherance of an offer, payment, promise to pay, or authorization of the payment or giving of money, or anything else of value, to any person in violation of any applicable anti-corruption laws; or (iii) have made any other unlawful payment.
(n) The Selling Shareholder conducts, and has conducted at all times, its business in compliance with applicable anti-corruption laws, including the FCPA or the U.K. B▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇, each as amended, or similar law of any relevant jurisdiction, or the rules or regulations thereunder and has instituted and maintained and will continue to maintain policies and procedures reasonably designed to promote and achieve compliance with such laws and with the representations and warranties set forth contained herein. No part of the proceeds of the offering will be used, directly or indirectly, in this paragraph 2(eviolation of the FCPA or the U.K. B▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇, each as may be amended, or similar law of any other relevant jurisdiction, or the rules or regulations thereunder.
(o) are limited to statements or omissions in the Registration Statement or Prospectus made in reliance upon information relating to The operations of the Selling Shareholder furnished to are and have been conducted at all times in compliance with applicable financial recordkeeping and reporting requirements of the Company in writing by Money Laundering Laws and the Selling Shareholder expressly for use has instituted and maintains policies and procedures designed to ensure continued compliance with such laws. No action, suit or proceeding by or before any court or governmental agency, authority or body or any arbitrator involving the Selling Shareholder with respect to the Money Laundering Laws is pending, or to the best knowledge of the Selling Shareholder, threatened.
(p) Neither the Selling Shareholder nor, to the knowledge of the Selling Shareholder, any director, officer, agent, employee or affiliate of the Selling Shareholder (i) is, or is controlled or 50% or more owned in the Registration Statementaggregate by or is acting on behalf of, one or more Sanctioned Persons, (ii) is located, organized or resident in a Sanctioned Country or (iii) will, directly or indirectly, use the Prospectus proceeds of this offering, or lend, contribute or otherwise make available such proceeds to any amendments subsidiary, joint venture partner or supplements theretoother person or entity, in any manner that would result in a violation of any Sanctions by, or could result in the imposition of Sanctions against, any individual or entity (including any individual or entity participating in the offering, whether as underwriter, advisor, investor or otherwise). The Selling Shareholder has not engaged in any dealings or transactions with or for the benefit of a Sanctioned Person, or with or in a Sanctioned Country, in the preceding three (3) years, nor does the Selling Shareholder have any plans to engage in dealings or transactions with or for the benefit of a Sanctioned Person, or with or in a Sanctioned Country.
(q) The Selling Shareholder represents and warrants that it is not (i) an employee benefit plan subject to Title I of the Employee Retirement Income Security Act of 1974, as amended (“ERISA”), (ii) a plan or account subject to Section 4975 of the Internal Revenue Code of 1986, as amended or (iii) an entity deemed to hold “plan assets” of any such plan or account under Section 3(42) of ERISA, 29 C.F.R. 2510.3-101, or otherwise.
Appears in 1 contract
Sources: Underwriting Agreement (Corporacion America Airports S.A.)
Representations and Warranties of the Selling Shareholder. The Selling Shareholder represents and warrants to and agrees with each of the Underwriters that:
(a) This Agreement has been duly authorized, executed and delivered by or on behalf of the Selling Shareholder.
(b) The execution and delivery by the Selling Shareholder of, and the performance by the Selling Shareholder of its obligations under, this Agreement will not contravene (i) any provision of applicable law, or (ii) the memorandum and articles of association organizational documents of the Selling Shareholder, or (iii) any agreement or other instrument binding upon the Selling Shareholder or (iv) any judgment, order or decree of any governmental body, agency or court having jurisdiction over the Selling Shareholder, except in the case of (i), (iii) and no (iv), as would not reasonably be expected to materially impact the Selling Shareholder’s ability to perform its obligations under this Agreement.
(c) No material consent, approval, authorization or order of, or qualification with, any governmental body or agency is required for the performance by the Selling Shareholder of its obligations under this Agreement, except such as may be required by will have been obtained on or prior to the securities or Blue Sky laws time of delivery of the various states in connection with the offer and sale of the SharesShares pursuant to Section 5.
(cd) The Selling Shareholder has, and on the Closing Date will have, valid title to, or a valid “security entitlement” within the meaning of Section 8-501 of the New York Uniform Commercial Code (the “UCC”) in respect of, the Shares to be sold by the such Selling Shareholder free and clear of all security interests, claims, liens, equities or other encumbrances and the legal right and power, and all authorization and approval required by law, to enter into this Agreement and to sell, transfer and deliver the Shares to be sold by the Selling Shareholder or a security entitlement in respect of such Shares.
(de) Upon payment for the Shares to be sold by the Selling Shareholder pursuant to this Agreement, delivery of such Shares, as directed by the Underwriters, to Cede & Co. (“Cede”) or such other nominee as may be designated by the Depository Trust Company (“DTC”), registration of such Shares in the name of Cede or such other nominee and the crediting of such Shares on the books of DTC to securities accounts of the Underwriters (assuming that neither DTC nor any such Underwriter has notice of any adverse claim (within the meaning of Section 8-105 of the UCC) to such Shares), (A) DTC shall be a “protected purchaser” of such Shares within the meaning of Section 8-303 of the UCC, (B) under Section 8-501 of the UCC, the Underwriters will acquire a valid security entitlement in respect of such Shares and (C) no action based on any “adverse claim”, within the meaning of Section 8-102 of the UCC, to such Shares may be asserted against the Underwriters with respect to such security entitlement; for purposes of this representation, the Selling Shareholder may assume that when such payment, delivery and crediting occur, (x) such Shares will have been registered in the name of Cede or another nominee designated by DTC, in each case on the Company’s share register registry in accordance with its memorandum and articles certificate of association incorporation, bylaws and applicable law, (y) DTC will be registered as a “clearing corporation” within the meaning of Section 8-102 of the UCC and (z) appropriate entries to the accounts of the several Underwriters on the records of DTC will have been made pursuant to the UCC.
(if) The Registration Statement, when it became effective, did not contain and, as amended or supplemented, if applicable, will not contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading and (ii) the Prospectus does not contain and, as amended or supplemented, if applicable, will not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading, provided that the representations and warranties set forth in this paragraph 2(e) are limited to statements or omissions in the Registration Statement or Prospectus made in reliance upon information relating to Neither the Selling Shareholder furnished nor, to the Company in writing knowledge of the Selling Shareholder, any director or officer or employee or affiliate of such Selling Shareholder is currently subject to any Sanctions; and the Selling Shareholder will not, directly or indirectly, use the proceeds of the offering of the Shares sold by the Selling Shareholder expressly hereunder, or lend, contribute or otherwise make available such proceeds to any subsidiary, joint venture partner or other person or entity, for use in the Registration Statement, purpose of financing the Prospectus or activities of any amendments or supplements theretoperson currently subject to Sanctions.
Appears in 1 contract
Sources: Underwriting Agreement (Seacoast Banking Corp of Florida)
Representations and Warranties of the Selling Shareholder. The Selling Shareholder represents and warrants to the Company and agrees with each of the Underwriters Underwriter, that:
(a) This Agreement has been duly authorized, executed and delivered by the Selling Shareholder.
(b) The execution and delivery by the Selling Shareholder ofhas placed in custody under a Custody Agreement ("Custody Agreement") with Securities Transfer Corporation, and the performance by the Selling Shareholder of its obligations underas Custodian ("Custodian"), this Agreement will not contravene any provision of applicable law, or the memorandum and articles of association of the Selling Shareholder, or any agreement or other instrument binding upon the Selling Shareholder or any judgment, order or decree of any governmental body, agency or court having jurisdiction over the Selling Shareholder, and no consent, approval, authorization or order of, or qualification with, any governmental body or agency is required for the performance by the Selling Shareholder of its obligations delivery under this Agreement, except such as may be required by certificates in negotiable form representing the securities or Blue Sky laws of the various states in connection with the offer and sale of the Shares.
(c) The Selling Shareholder has, and on the Closing Date will have, valid title to, or a valid “security entitlement” within the meaning of Section 8-501 of the New York Uniform Commercial Code (the “UCC”) in respect of, the Secondary Shares to be sold by the Selling Shareholder free hereunder. The Selling Shareholder specifically agrees that the Secondary Shares represented by the certificates so held in custody for such Selling Shareholder are subject to the interests of the Underwriter hereunder, that the arrangements made by the Selling Shareholder for such custody are to that extent irrevocable and clear not subject to termination and that the obligations of all security intereststhe Selling Shareholder hereunder shall not be terminated by any act of the Selling Shareholder, claimsby operation of law, liensor by the occurrence of any other event.
(b) All consents, equities or other encumbrances approvals, authorizations and orders necessary for the execution and delivery by the Selling Shareholder of this Agreement, and for the sale and delivery of the Secondary Shares to be sold by the Selling Shareholder hereunder, have been obtained; and the legal right Selling Shareholder has full right, power and power, and all authorization and approval required by law, authority to enter into this Agreement and to sell, assign, transfer and deliver the Shares to be sold by the Selling Shareholder or a security entitlement hereunder.
(c) This Agreement and the Custody Agreement have been duly authorized, executed and delivered by the Selling Shareholder and constitute valid and binding obligations of the Selling Shareholder enforceable against the Selling Shareholder in respect accordance with their terms except insofar as (i) the remedy of specific performance and injunctive and other forms of equitable relief may be subject to equitable defenses and to the discretion of the court before which any proceeding thereafter may be brought; and (ii) such Sharesenforcement may be subject to any limitations under applicable law which relate to the indemnification and contribution provisions of this Agreement.
(d) Upon payment for The sale of the Secondary Shares to be sold by the Selling Shareholder hereunder and the compliance by the Selling Shareholder with all of the provisions of this Agreement and the consummation of the transactions herein contemplated will not conflict with or result in a breach or violation of any of the terms or provisions of, or constitute a default under, any statute, indenture, mortgage, deed of trust, loan agreement or other agreement or instrument to which the Selling Shareholder is a party or by which the Selling Shareholder is bound, or to which any of the property or assets of the Selling Shareholder is subject, nor will such action result in any violation of the provisions of the Certificate of Incorporation or By-laws of the Selling Shareholder or any statute or any order, rule or regulation of any court or governmental agency or body having jurisdiction over the Selling Shareholder or the property of the Selling Shareholder.
(e) The Selling Shareholder has, and immediately prior to each Time of Delivery (as defined in Section 5 hereof) the Selling Shareholder will have, good and valid title to the Shares to be sold by the Selling Shareholder pursuant to this Agreementhereunder, free and clear of all liens, encumbrances, equities or claims; and, upon delivery of such Shares, as directed by the Underwriters, to Cede & Co. (“Cede”) or such other nominee as may be designated by the Depository Trust Company (“DTC”), registration of such Shares in the name of Cede or such other nominee and the crediting of such Shares on the books of DTC to securities accounts of the Underwriters (assuming that neither DTC nor any such Underwriter has notice of any adverse claim (within the meaning of Section 8-105 of the UCC) to such Shares), (A) DTC shall be a “protected purchaser” of such Shares within the meaning of Section 8-303 of the UCC, (B) under Section 8-501 of the UCC, the Underwriters will acquire a valid security entitlement in respect of such Shares and (C) no action based on any “adverse claim”payment therefor pursuant hereto, within the meaning of Section 8-102 of the UCC, good and valid title to such Shares may be asserted against Shares, free and clear of all liens, encumbrances, equities or claims, will pass to the Underwriters with respect Underwriter.
(f) The information pertaining to such security entitlement; for purposes of this representation, the Selling Shareholder may assume that when such payment, delivery and crediting occur, (x) such Shares will have been registered under the caption "Selling Shareholder" in the name of Cede or another nominee designated by DTC, in each case on the Company’s share register in accordance with its memorandum and articles of association and applicable law, (y) DTC will be registered as a “clearing corporation” within the meaning of Section 8-102 of the UCC and (z) appropriate entries to the accounts of the several Underwriters on the records of DTC will have been made pursuant to the UCC.
(i) The Registration Statement, when it became effective, did not contain and, as amended or supplemented, if applicable, will Prospectus does not contain any untrue statement of a material fact or omit to state a any material fact required to be stated therein or necessary to make the statements therein not misleading misleading.
(g) In order to document the Underwriter's compliance with the reporting and withholding provisions of the Tax Equity and Fiscal Responsibility Act of 1982 with respect to the transactions herein contemplated, such Selling Shareholder will deliver to you prior to or at the First Time of Delivery (iias hereinafter defined) a properly completed and executed United States Treasury Department Form W-9 (or other applicable form or statement specified by Treasury Department regulations in lieu thereof).
(h) The Selling Shareholder has not taken, nor will it take, directly or indirectly, any action designed to or which has constituted or which might reasonably be expected to cause or result, under the Prospectus does not contain andExchange Act or otherwise, as amended in stabilization or supplemented, if applicable, will not contain manipulation of the price of any untrue statement security of a material fact the Company to facilitate its sale or omit resale of the Shares.
(i) The Selling Shareholder agrees to state a material fact cooperate to the extent reasonably necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading, provided that the representations and warranties set forth in this paragraph 2(e) are limited to statements or omissions in cause the Registration Statement or Prospectus made in reliance upon information relating and any post-effective amendment thereto to become effective at the earliest possible time. The Selling Shareholder furnished agrees to the Company in writing do or perform all things reasonably required to be done or performed by the Selling Shareholder expressly prior to the First Closing Date to satisfy all conditions precedent to the delivery of and the payment for use in the Registration Statement, Secondary Shares being sold by the Prospectus or any amendments or supplements theretoSelling Shareholder pursuant to this Agreement.
Appears in 1 contract
Representations and Warranties of the Selling Shareholder. The Selling Shareholder represents and warrants to and agrees with each of the Underwriters Underwriter that:
(a) This Agreement has been duly authorized, executed and delivered by the Selling Shareholder.
(b) The execution and delivery by the Selling Shareholder of, and the performance by the Selling Shareholder of its obligations under, this Agreement will not contravene any provision of applicable law, or the memorandum and articles of association formations or limited liability company agreement of the Selling Shareholder, or any agreement or other instrument binding upon the Selling Shareholder or any judgment, order or decree of any governmental body, agency or court having jurisdiction over the Selling Shareholder, and no consent, approval, authorization or order of, or qualification with, any governmental body or agency is required for the performance by the Selling Shareholder of its obligations under this Agreement, except such as may be required by the securities or Blue Sky laws of the various states in connection with the offer and sale of the Shares.
(c) The Selling Shareholder has, and on the Closing Date will have, valid title to, or a valid “security entitlement” within the meaning of Section 8-501 8‑501 of the New York Uniform Commercial Code (the “UCC”) in respect of, the Shares to be sold by the Selling Shareholder free and clear of all security interests, claims, liens, equities or other encumbrances and the legal right and power, and all authorization and approval required by law, to enter into this Agreement and to sell, transfer and deliver the Shares to be sold by the Selling Shareholder or a security entitlement in respect of such the Shares.
(d) Upon payment for the Shares to be sold by the Selling Shareholder pursuant to this Agreement, delivery of such the Shares, as directed by the UnderwritersUnderwriter, to Cede & Co. (“Cede”) or such other nominee as may be designated by the Depository Trust Company (“DTC”), registration of such the Shares in the name of Cede or such other nominee and the crediting of such the Shares on the books of DTC to securities accounts account of the Underwriters Underwriter (assuming that neither DTC nor any such the Underwriter has notice of any adverse claim (within the meaning of Section 8-105 8‑105 of the New York Uniform Commercial Code (the “UCC”)) to such the Shares), (A) DTC shall be a “protected purchaser” of such the Shares within the meaning of Section 8-303 8‑303 of the UCC, (B) under Section 8-501 8‑501 of the UCC, the Underwriters Underwriter will acquire a valid security entitlement in respect of such the Shares and (C) no action based on any “adverse claim”, ,” within the meaning of Section 8-102 8‑102 of the UCC, to such the Shares may be asserted against the Underwriters Underwriter with respect to such security entitlement; for purposes of this representation, the Selling Shareholder may assume that when such payment, delivery and crediting occur, (x) such the Shares will have been registered in the name of Cede or another nominee designated by DTC, in each case on the Company’s share register registry in accordance with its memorandum and articles certificate of association incorporation, bylaws and applicable law, (y) DTC will be registered as a “clearing corporation” within the meaning of Section 8-102 8‑102 of the UCC and (z) appropriate entries to the accounts account of the several Underwriters Underwriter on the records of DTC will have been made pursuant to the UCC.
(e) The Selling Shareholder has no reason to believe that the representations and warranties of the Company contained in Section 1 are not true and correct, is familiar with the Registration Statement, the Time of Sale Prospectus and the Prospectus and has no knowledge of any material fact, condition or information not disclosed in the Time of Sale Prospectus or the Prospectus that has had, or may have, a material adverse effect on the Company and its subsidiaries, taken as a whole. The Selling Shareholder is not prompted by any information concerning the Company or its subsidiaries that is not set forth in the Time of Sale Prospectus to sell its Shares pursuant to this Agreement.
(f) (i) The Each document, if any, filed or to be filed pursuant to the Exchange Act and incorporated by reference in the Time of Sale Prospectus or the Prospectus complied or will comply when so filed in all material respects with the Exchange Act and the applicable rules and regulations of the Commission thereunder, (ii) the Registration Statement, when it became effective, did not contain and, as amended or supplemented, if applicable, will not contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading, (iii) the Registration Statement and the Prospectus comply and, as amended or supplemented, if applicable, will comply in all material respects with the Securities Act and the applicable rules and regulations of the Commission thereunder, (iv) the Time of Sale Prospectus does not, and at the time of each sale of the Shares in connection with the offering when the Prospectus is not yet available to prospective purchasers and at the Closing Date (as defined in Section 5), the Time of Sale Prospectus, as then amended or supplemented by the Company, if applicable, will not, contain any 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, (v) each broadly avai lable road show, if any, when considered together with the Time of Sale Prospectus, does not contain any 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 and (iivi) the Prospectus does not contain and, as amended or supplemented, if applicable, will not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading, provided except that the representations and warranties set forth in this paragraph 2(e2(f) are limited do not apply to statements or omissions in the Registration Statement or the Prospectus made in reliance based upon information relating to the Selling Shareholder Underwriter furnished to the Company in writing by the Selling Shareholder Underwriter through you expressly for use therein.
(i) Neither the Selling Shareholder nor any of its subsidiaries, or, to the knowledge of the Selling Shareholder, any director, officer, employee, agent, representative, or affiliate thereof, is a Person that is, or is owned or controlled by one or more Persons that are:
(A) the subject of any Sanctions, or
(B) located, organized or resident in a country or territory that is the subject of Sanctions (including, without limitation, Crimea, Cuba, Iran, North Korea, Sudan and Syria).
(ii) the Selling Shareholder will not, directly or indirectly, use the proceeds of the offering, or lend, contribute or otherwise make available such proceeds to any subsidiary, joint venture partner or other Person:
(A) to fund or facilitate any activities or business of or with any Person or in any country or territory that, at the time of such funding or facilitation, is the subject of Sanctions; or
(B) in any other manner that will result in a violation of Sanctions by any Person (including any Person participating in the Registration Statementoffering, whether as underwriter, advisor, investor or otherwise).
(iii) For the past 5 years, the Prospectus Selling Shareholder has not knowingly engaged in, is not now knowingly engaged in, and will not engage in, any dealings or transactions with any Person, or in any country or territory, that at the time of the dealing or transaction is or was the subject of Sanctions.
(a) Neither the Selling Shareholder nor its subsidiaries, or, to the knowledge of the Selling Shareholder, any director, officer, employee, agent, representative, or affiliate thereof has taken or will take any action in furtherance of an offer, payment, promise to pay, or authorization or approval of the payment giving or receipt of money, property, gifts or anything else of value, directly or indirectly, to any Government Official in order to influence official action, or to any person in violation of any applicable anti-corruption laws; (b) the Selling Shareholder and its subsidiaries have conducted their businesses in compliance with applicable anti-corruption laws and have instituted and maintained and will continue to maintain policies and procedures reasonably designed to promote and achieve compliance with such laws and with the representations and warranties contained herein; and (c) neither the Selling Shareholder nor any of its subsidiaries will use, directly or indirectly, the proceeds of the offering in furtherance of an offer, payment, promise to pay, or authorization of the payment or giving of money, or anything else of value, to any person in violation of any applicable anti-corruption laws.
(v) The operations of the Selling Shareholder and its subsidiaries are and have been conducted at all times in material compliance with all applicable Anti-Money Laundering Laws, and no action, suit or proceeding by or before any court or governmental agency, authority or body or any amendments arbitrator involving the Selling Shareholder or supplements theretoany of its subsidiaries with respect to the Anti-Money Laundering Laws is pending or, to the best knowledge of the Selling Shareholder, threatened.
(h) The Selling Shareholder represents and warrants that it is not (i) an employee benefit plan subject to Title I of the Employee Retirement Income Security Act of 1974, as amended (“ERISA”), (ii) a plan or account subject to Section 4975 of the Internal Revenue Code of 1986, as amended or (iii) an entity deemed to hold “plan assets” of any such plan or account under Section 3(42) of ERISA, 29 C.F.R. 2510.3-101, or otherwise.
Appears in 1 contract
Representations and Warranties of the Selling Shareholder. The Selling Shareholder represents and warrants to and agrees covenants with each of the Underwriters Underwriter that:
(a) The Selling Shareholder now has and on the Closing Dates (as hereinafter defined) will have good and valid title to all the shares of the Stock to be sold by such Selling Shareholder hereunder, free and clear of all liens, encumbrances, equities, security interests and claims whatsoever, with full legal right, power and authority to enter into this Agreement and that upon the delivery of and payment for such shares of the Stock hereunder, the Underwriter will receive good and valid title to the shares of the Stock to be sold by the Selling Shareholder, free and clear of all liens, encumbrances, equities, security interests and claims whatsoever.
(b) The Selling Shareholder has not taken and will not take, directly or indirectly, any action designed to stabilize or manipulate, or which has constituted or which might in the future reasonably be expected to cause or result in stabilization or manipulation of, the price of the Stock of the Company in order to facilitate the sale or resale of the Stock or otherwise.
(c) The Selling Shareholder is disposing of shares of the Stock for his own account. The Selling Shareholder is not selling shares of the Stock, directly or indirectly, for the benefit of the Company or the Underwriter, and no part of the proceeds of the sale to be received by the Selling Shareholder will inure, either directly or indirectly, to the benefit of the Company.
(d) This Agreement has been duly authorized, executed and delivered by or on behalf of the Selling ShareholderShareholder and this Agreement is a valid and binding obligation of the Selling Shareholder enforceable in accordance with its terms.
(be) The execution and delivery All information furnished to the Company by the Selling Shareholder of, and included in the Preliminary Prospectus and the performance by Prospectus or any amendment or supplement thereto, under the captions "Compensation Committee Interlocks, Insider Participation and Certain Transactions" and "Selling Shareholder and Beneficial Ownership" is true and correct and does not contain any untrue statement of its obligations under, this Agreement will a material fact nor does it omit to state any material fact required to be stated therein or necessary to make such information not contravene any provision of applicable law, or misleading.
(f) To the memorandum and articles of association best knowledge of the Selling Shareholder, or any agreement or other instrument binding upon without independent investigation, neither the Selling Shareholder or any judgment, order or decree of any governmental body, agency or court having jurisdiction over Registration Statement nor the Selling Shareholder, and no consent, approval, authorization or order of, or qualification with, any governmental body or agency is required for the performance by the Selling Shareholder of its obligations under this Agreement, except such as may be required by the securities or Blue Sky laws of the various states in connection with the offer and sale of the Shares.
(c) The Selling Shareholder has, and on the Closing Date will have, valid title to, or a valid “security entitlement” within the meaning of Section 8-501 of the New York Uniform Commercial Code (the “UCC”) in respect of, the Shares to be sold by the Selling Shareholder free and clear of all security interests, claims, liens, equities or other encumbrances and the legal right and power, and all authorization and approval required by law, to enter into this Agreement and to sell, transfer and deliver the Shares to be sold by the Selling Shareholder or a security entitlement in respect of such Shares.
(d) Upon payment for the Shares to be sold by the Selling Shareholder pursuant to this Agreement, delivery of such Shares, as directed by the Underwriters, to Cede & Co. (“Cede”) or such other nominee as may be designated by the Depository Trust Company (“DTC”), registration of such Shares in the name of Cede or such other nominee and the crediting of such Shares on the books of DTC to securities accounts of the Underwriters (assuming that neither DTC Prospectus nor any such Underwriter has notice of any adverse claim (within the meaning of Section 8-105 of the UCC) to such Shares), (A) DTC shall be a “protected purchaser” of such Shares within the meaning of Section 8-303 of the UCC, (B) under Section 8-501 of the UCC, the Underwriters will acquire a valid security entitlement in respect of such Shares and (C) no action based on any “adverse claim”, within the meaning of Section 8-102 of the UCC, to such Shares may be asserted against the Underwriters with respect to such security entitlement; for purposes of this representation, the Selling Shareholder may assume that when such payment, delivery and crediting occur, (x) such Shares will have been registered in the name of Cede amendment or another nominee designated by DTC, in each case on the Company’s share register in accordance with its memorandum and articles of association and applicable law, (y) DTC will be registered as a “clearing corporation” within the meaning of Section 8-102 of the UCC and (z) appropriate entries to the accounts of the several Underwriters on the records of DTC will have been made pursuant to the UCC.
(i) The Registration Statement, when it became effective, did not contain and, as amended or supplemented, if applicablesupplement thereto, will not contain include any untrue statement of a material fact or omit to state a any material fact required to be stated therein or necessary to make the statements therein not misleading misleading.
(g) The execution and (ii) performance of this Agreement and the Prospectus does not contain and, as amended or supplemented, if applicable, consummation of the transactions herein and therein contemplated and the fulfillment of the terms hereof and thereof will not contain conflict with, result in a breach of, or constitute a default under any untrue statement will, trust (constructive or other), agreement, indenture, mortgage, note, deed, rule, regulation, order, injunction, judgment, decree or other instrument to which the Selling Shareholder is a party or by which he is bound.
(h) All consents, approvals, authorizations and orders necessary for the execution and delivery by the Selling Shareholder of a material fact or omit to state a material fact necessary to make this Agreement and for the statements therein, in the light sale and delivery of the circumstances under which they were madeStock to be sold by the Selling Shareholder hereunder, have been obtained.
(i) Without independent investigation, the Selling Shareholder is not misleading, provided aware that any of the representations and warranties of the Company set forth in this paragraph 2(e) are limited to statements Section 6 hereof is untrue or omissions inaccurate in the Registration Statement or Prospectus made in reliance upon information relating to the Selling Shareholder furnished to the Company in writing by the Selling Shareholder expressly for use in the Registration Statement, the Prospectus or any amendments or supplements theretomaterial respect.
Appears in 1 contract
Sources: Underwriting Agreement (Metropolitan Financial Corp /Oh/)
Representations and Warranties of the Selling Shareholder. The Selling Shareholder represents and warrants to and agrees with each of the Underwriters Underwriter that:
(a) This Agreement has been duly authorized, executed and delivered by the Selling Shareholder.
(b) The execution and delivery by the Selling Shareholder of, and the performance by the Selling Shareholder of its obligations under, this Agreement will not contravene any provision of applicable law, or the memorandum and articles of association of the Selling Shareholder, or any agreement or other instrument binding upon the Selling Shareholder or any judgment, order or decree of any governmental body, agency or court having jurisdiction over the Selling Shareholder, and no consent, approval, authorization or order of, or qualification with, any governmental body or agency is required for the performance by the Selling Shareholder of its obligations under this Agreement, except such as may be required by the securities or Blue Sky laws of the various states in connection with the offer and sale of the Shares.
(c) The Selling Shareholder has, and on the Closing Date will have, valid title to, or a valid “security entitlement” within the meaning of Section 8-501 of the New York Uniform Commercial Code (the “UCC”) in respect of, the Offered Shares to be sold by the Selling Shareholder are, and on the Closing Date will be, duly and validly authorized and validly issued, fully paid and nonassessable; the certificates for such Selling Shareholder Offered Shares will be genuine; the Selling Shareholder has on the date hereof and will have on the Closing Date valid, marketable title to such Selling Shareholder Offered Shares, free and clear of all liens, encumbrances, equities, security interestsinterests and claims whatsoever, with full right and authority to sell and deliver such Selling Shareholder Offered Shares; and upon the delivery of and payment for such Selling Shareholder Offered Shares as herein contemplated the Underwriter will receive valid, marketable title thereto, free and clear of all liens, encumbrances, equities, security interests and claims, liens, equities or other encumbrances and except any that may be created by their own action.
(b) All information furnished to the legal right and power, and all authorization and approval required by law, to enter into this Agreement and to sell, transfer and deliver the Shares to be sold Company in writing by the Selling Shareholder for use in, or a security entitlement in respect of such Shares.
(d) Upon payment for connection with the Shares to be sold by the Selling Shareholder pursuant to this Agreement, delivery of such Shares, as directed by the Underwriters, to Cede & Co. (“Cede”) or such other nominee as may be designated by the Depository Trust Company (“DTC”), registration of such Shares in the name of Cede or such other nominee and the crediting of such Shares on the books of DTC to securities accounts of the Underwriters (assuming that neither DTC nor any such Underwriter has notice of any adverse claim (within the meaning of Section 8-105 of the UCC) to such Shares), (A) DTC shall be a “protected purchaser” of such Shares within the meaning of Section 8-303 of the UCC, (B) under Section 8-501 of the UCCpreparation of, the Underwriters will acquire a valid security entitlement in respect of such Shares and (C) no action based on any “adverse claim”, within Registration Statement or the meaning of Section 8-102 of the UCC, to such Shares may be asserted against the Underwriters with respect to such security entitlement; for purposes of this representation, the Selling Shareholder may assume that when such payment, delivery and crediting occur, (x) such Shares will have been registered in the name of Cede or another nominee designated by DTC, in each case on the Company’s share register in accordance with its memorandum and articles of association and applicable law, (y) DTC will be registered as a “clearing corporation” within the meaning of Section 8-102 of the UCC and (z) appropriate entries to the accounts of the several Underwriters on the records of DTC will have been made pursuant to the UCC.
(i) The Registration Statement, when it became effective, did Prospectus does not contain and, as amended or supplemented, if applicable, will not contain any 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 (ii) misleading. The Selling Shareholder hereby furnishes to the Prospectus does not contain and, as amended or supplemented, if applicable, will not contain any untrue statement of a material fact or omit to state a material fact necessary to make Company for such use the statements therein, in the light of the circumstances under which they were made, not misleading, provided that the representations and warranties set forth in this paragraph 2(e) are limited to statements or omissions in the Registration Statement or Prospectus made in reliance upon information relating with respect to the Selling Shareholder furnished under "Principal and Selling Shareholder" in the Prospectus and in Item 26 for Form SB-2 of the Registration Statement.
(c) The Selling Shareholder has not taken and will not take, directly or indirectly, any action designed to or which might reasonably be expected to cause or result in stabilization or manipulation of the price of the Common Shares of the Company in writing connection with, or to facilitate, the distribution of the Shares.
(d) The Selling Shareholder has duly authorized the Company to act as attorney-in-fact (the "Attorney-in-Fact") for the Selling Shareholder pursuant to a power of attorney executed by the Selling Shareholder expressly (and, by the execution by it of this Agreement on behalf of the Selling Shareholder, the Attorney-in-Fact represents and warrants that it has been duly appointed as Attorney-in-Fact by the Selling Shareholder) pursuant to which the Attorney-in-Fact is authorized on behalf of the Selling Shareholder to execute this Agreement and any other documents necessary or desirable in connection with the sale of the Selling Shareholder Offered Shares, to make delivery of the certificates for use the Selling Shareholder Offered Shares, to receive the proceeds of the sale of the Selling Shareholder Offered Shares and to give a receipt therefor and to distribute the proceeds to the Selling Shareholder. The Selling Shareholder has caused a certificate or certificates for the number of Selling Shareholder Offered Shares to be sold by the Selling Shareholder hereunder to be delivered to the Attorney-in-Fact with irrevocable authority to purchase all requisite stock transfer tax stamps and to hold such certificate or certificates in custody for delivery, or for exchange for other certificates in proper form for delivery, pursuant to the provisions hereof on the Closing Date.
(e) This Agreement constitutes the valid and binding obligation of the Selling Shareholder, enforceable against the Selling Shareholder in accordance with its terms subject, as to enforcement of remedies, to applicable bankruptcy, fraudulent conveyance, insolvency, reorganization, moratorium and other laws affecting the rights of creditors generally and the discretion of courts in granting equitable remedies and except that enforceability of the indemnification provisions set forth in Section 8 hereof and the contribution provisions set forth in Section 9 hereof may be limited by the United States federal and state securities laws or public policy underlying such laws.
(f) All authorizations and consents necessary for the execution and delivery by the Selling Shareholder of this Agreement and the sale and delivery hereunder of the Selling Shareholder Offered Shares have been obtained and are in full force and effect on the date hereof and will be in full force and effect at the Closing Date.
(g) The sale of such Selling Shareholder Offered Shares by the Selling Shareholder pursuant to this Agreement is not prompted by any material information concerning the Company known by the Selling Shareholder which is not set forth in the Registration Statement, Prospectus. Any certificate signed by the Prospectus Selling Shareholder and delivered to the Underwriter or any amendments or supplements theretoto Underwriter's counsel shall be deemed to be a representation and warranty by the Selling Shareholder as to the matters covered thereby.
Appears in 1 contract
Sources: Underwriting Agreement (On Stage Entertainment Inc)
Representations and Warranties of the Selling Shareholder. The Selling Shareholder represents and warrants to and agrees with each of the Underwriters that:
(a) This Agreement has been duly authorized, executed and delivered by or on behalf of the Selling Shareholder.
(b) The execution and delivery by the Selling Shareholder of, and the performance by the Selling Shareholder of its obligations under, this Agreement, the Custody Agreement and the [Power of Attorney] appointing certain individuals as the Selling Shareholder's attorneys-in-fact to the extent set forth therein, relating to the transactions contemplated hereby and by the Registration Statement [(the "POWER OF ATTORNEY")] will not contravene any provision (i) the certificate of applicable law, incorporation or the memorandum and articles of association by-laws of the Selling Shareholder, Shareholder or (ii) any agreement or other instrument binding upon the Selling Shareholder or any applicable law, judgment, order or decree of any governmental body, agency or court having jurisdiction over the Selling Shareholder, except for the contravention of an agreement, instrument or applicable law which would not materially and adversely affect the consummation of the transactions contemplated by this Agreement by the Selling Shareholder, and no consent, approval, authorization or order of, or qualification with, any governmental body or agency is required for the performance by the Selling Shareholder of its obligations under this AgreementAgreement or the Custody Agreement or [Power of Attorney] of the Selling Shareholder, except such as may be required by the securities or Blue Sky laws of the various states in connection with the offer and sale of the SharesShares and except for any filing or disclosure that may be required of the Selling Shareholder under Canadian securities laws or the rules of the Toronto Stock Exchange, PROVIDED that any failure to make such a filing or disclosure would not materially and adversely affect the transactions contemplated by this Agreement.
(c) The Custody Agreement and the [Power of Attorney] have been duly authorized, executed and delivered by the Selling Shareholder and are valid and binding agreements of the Selling Shareholder except as the enforcement thereof may be limited by bankruptcy, insolvency, reorganization, moratorium or other similar laws relating to or affecting the rights and remedies of creditors or by general equitable principles.
(d) The Selling Shareholder has, and on the Closing Date will have, valid title to, or a valid “"security entitlement” " within the meaning of Section 8-501 102 of the New York Uniform Commercial Code (the “"UCC”") in respect of, the Shares to be sold by the Selling Shareholder free and clear of all security interests, claims, liens, equities or other encumbrances and the legal right and power, and all authorization and approval required by law, to enter into this Agreement, the Custody Agreement and the [Power of Attorney] and to sell, transfer and deliver the Shares to be sold by the Selling Shareholder or a security entitlement in respect of such Shares.
(de) Upon payment for the Shares to be sold by the Selling Shareholder pursuant to this Agreement, delivery of such Shares, as directed by the Underwriters, to Cede & Co. (“Cede”"CEDE") or such other nominee as may be designated by the Depository Trust Company (“"DTC”"), registration of such Shares in the name of Cede or such other nominee and the crediting of such Shares on the books records of DTC to securities accounts of the Underwriters (assuming that neither DTC nor any such Underwriter has notice of any adverse claim (within the meaning to such Shares or any security entitlement in respect of Section 8-105 of the UCC) to such Shares), (A) DTC shall be a “"protected purchaser” " of such Shares within the meaning of Section 8-303 of the UCC, UCC and (B) under Section 8-501 of the UCC, the Underwriters will acquire a valid security entitlement in respect of such Shares free and (C) no action based on clear of any “adverse claim”, within the meaning of Section 8-102 of the UCC, to such Shares may be asserted against the Underwriters with respect to such security entitlement; for purposes of this representation, the .
(f) The Selling Shareholder may assume that when such payment, delivery and crediting occur, (x) such Shares will have been registered is not prompted by any information concerning the Company or its subsidiaries which is not set forth in the name of Cede or another nominee designated by DTC, in each case on the Company’s share register in accordance with Prospectus to sell its memorandum and articles of association and applicable law, (y) DTC will be registered as a “clearing corporation” within the meaning of Section 8-102 of the UCC and (z) appropriate entries to the accounts of the several Underwriters on the records of DTC will have been made Shares pursuant to the UCCthis Agreement.
(i) The Registration Statement, when it became effective, did not contain and, as amended or supplemented, if applicable, will not contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading and (ii) the Prospectus does not contain and, as amended or supplemented, if applicable, will not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading, provided ; PROVIDED that the representations and warranties set forth in this paragraph 2(e) are limited to statements or omissions in the Registration Statement or Prospectus made in reliance upon information relating to the Selling Shareholder furnished to the Company in writing by the Selling Shareholder expressly for use in the Registration Statement, the Prospectus or any amendments or supplements thereto. It is understood and agreed that the only written information furnished to the Company by the Selling Shareholder specifically for use in the Registration Statement is the information relating to the Selling Shareholder set forth in the table under the caption "Principal and Selling Shareholders" in the Prospectus.
(h) The Selling Shareholder has not taken, and will not take, directly or indirectly, any action designed to, or which might 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 Shares pursuant to the distribution contemplated by this Agreement, and the Selling Shareholder has not distributed and will not distribute any prospectus or other offering material in connection with the offering and sale of the Shares.
Appears in 1 contract
Sources: Underwriting Agreement (White Mountains Insurance Group LTD)
Representations and Warranties of the Selling Shareholder. The Selling Shareholder hereby represents and warrants to and agrees with each of the Underwriters thatUnderwriter as follows:
(a) This The Selling Shareholder has delivered an irrevocable exercise notice with respect to the Warrant to the Company, and has delivered or caused to be delivered to Citibank, N.A. (the "Custodian") a blank stock power with respect to the Shares to be sold by the Selling Shareholder, duly executed and with a signature appropriately guaranteed, and a certificate representing such Shares, to be held in custody by the Custodian for delivery pursuant to the provisions of this Agreement and an agreement dated March 13, 2000 between the Custodian and the Selling Shareholder (the "Custody Agreement").
(b) The Selling Shareholder has granted an irrevocable power of attorney (the "Power of Attorney") to Arth▇▇ ▇. ▇▇▇ Prad▇ and Rinse de Jong, on behalf of the Selling Shareholder, to execute and deliver this Agreement and any other document necessary or desirable in connection with the transactions contemplated hereby and to deliver the Shares to be sold by the Selling Shareholder pursuant hereto.
(c) Each of this Agreement, the Custody Agreement, the Power of Attorney and the Lock-Up Agreement has been duly authorized, executed and delivered by or on behalf of the Selling Shareholder.Shareholder and, assuming due authorization,
(bd) The execution and delivery by the Selling Shareholder of, of this Agreement and the performance by the Selling Shareholder of its obligations underunder this Agreement, this Agreement does not and will not (i) violate or contravene any provision of applicable law, statute, regulation or the memorandum and articles of association of the Selling Shareholder, filing or any agreement or other instrument binding upon the Selling Shareholder or any judgment, order or decree of any governmental body, agency or court having jurisdiction over the Selling Shareholder, and no ; (ii) require any consent, approval, authorization or order of, of or qualification with, registration or filing with any court or governmental agency or body or agency is required for the performance by the Selling Shareholder of its obligations under this Agreementhaving jurisdiction over it, except such as may be required by the securities or Blue Sky blue sky laws of the various states in connection with the offer and sale of the SharesShares which have been or will be effected in accordance with this Agreement; or (iii) result in the creation or imposition of any lien, charge or encumbrance upon the Shares to be sold by the Selling Shareholder pursuant to the terms of any agreement or instrument to which the Selling Shareholder is a party or by which the Selling Shareholder may be bound or to which any of the property or assets of the Selling Shareholder is subject.
(ce) The Selling Shareholder hasis the holder of and has the right to exercise the Warrant. On the Firm Shares Closing Date, the Selling Shareholder will have valid and on the Closing Date will have, valid marketable title to, or a valid “security entitlement” within the meaning of Section 8-501 of the New York Uniform Commercial Code (the “UCC”) in respect of, to the Shares to be sold by the Selling Shareholder free and clear of all any lien, claim, security interests, claims, liens, equities interest or other encumbrances encumbrance, including, without limitation, any restriction on transfer.
(f) On the Firm Shares Closing Date, the Selling Shareholder will have full legal right, power and the legal right and powerauthorization, and all authorization and any approval required by law, to enter into this Agreement and to sell, assign, transfer and deliver the Shares to be sold by the Selling Shareholder or a security entitlement in respect of such Sharesthe manner provided by this Agreement.
(dg) Upon delivery of and payment for the Shares to be sold by the Selling Shareholder pursuant to this Agreement, delivery of such Shares, as directed by the Underwriters, to Cede & Co. (“Cede”) or such other nominee as may be designated by the Depository Trust Company (“DTC”), registration of such Shares in the name of Cede or such other nominee and the crediting of such Shares on the books of DTC to securities accounts of the Underwriters (assuming that neither DTC nor any such Underwriter has notice of any adverse claim (within the meaning of Section 8-105 of the UCC) to such Shares), (A) DTC shall be a “protected purchaser” of such Shares within the meaning of Section 8-303 of the UCC, (B) under Section 8-501 of the UCC, the several Underwriters will acquire a receive valid security entitlement in respect of such Shares and (C) no action based on any “adverse claim”, within the meaning of Section 8-102 of the UCC, marketable title to such Shares may be asserted against free and clear of any lien, claim, security interest or other encumbrance.
(h) The responses set forth in the Underwriters with respect to such security entitlement; for purposes of this representation, questionnaire completed by the Selling Shareholder may assume that when such paymentat the Company's request in connection with this offering, delivery and crediting occur, (x) such Shares will have been registered the information regarding the Selling Shareholder in the name of Cede or another nominee designated by DTC, Prospectus in each case on the Company’s share register in accordance with its memorandum Section entitled "Principal and articles of association Selling Shareholders," and applicable law, (y) DTC will be registered as a “clearing corporation” within the meaning of Section 8-102 of the UCC and (z) appropriate entries any other information relating to the accounts of Selling Shareholder furnished in writing by the several Underwriters Selling Shareholder expressly for use in the Registration Statement and Prospectus (collectively, the "Selling Shareholder Information") is, and on the records of DTC each Closing Date will have been made pursuant to the UCC.
(i) The Registration Statementbe, when it became effectivetrue, did not contain andcorrect, as amended or supplementedand complete, if applicableand does not, and on each Closing Date will not not, contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading and (ii) the Prospectus does not contain and, as amended or supplemented, if applicable, will not contain any 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, such information not misleading, provided that .
(i) The principal reason for the representations and warranties set forth in this paragraph 2(e) are limited to statements or omissions in the Registration Statement or Prospectus made in reliance upon information relating to the Selling Shareholder furnished to the Company in writing participation by the Selling Shareholder expressly for use in the Registration Statementproposed public offering is to permit diversification of the Selling Shareholder's investments;
(j) The Selling Shareholder has not taken and will not take, directly or indirectly, any action designed to or that might reasonably be expected to cause or result in stabilization or manipulation of the Prospectus price of any security of the Company to facilitate the sale or any amendments or supplements theretoresale of the Shares.
(k) The representations and warranties of the Selling Shareholder in the Power of Attorney are, and on each Closing Date will be, true and correct.
Appears in 1 contract
Representations and Warranties of the Selling Shareholder. The Selling Shareholder hereby represents and warrants to each Underwriter on the date hereof (except as otherwise set forth herein), and agrees with shall be deemed to represent and warrant to each of Underwriter on the Underwriters Closing Date and the Additional Closing Date, that:
a. All consents, approvals, authorizations and orders necessary for the execution and delivery by the Selling Shareholder of this Agreement and the Power of Attorney (athe "Power of Attorney") referred to in the last paragraph of this Section 7, and for the sale and delivery of the Firm Shares to be sold by the Selling Shareholder hereunder, have been obtained; and the Selling Shareholder has full right, power and authority to enter into this Agreement and the Power of Attorney, and to sell, assign, transfer and deliver the Firm Shares to be sold by the Selling Shareholder hereunder.
b. This Agreement has and the Power of Attorney have been duly authorized, executed and delivered by the Selling Shareholder.
(b) The execution Shareholder and delivery by this Agreement and the Power of Attorney constitute the valid and binding agreements of the Selling Shareholder of, and the performance by enforceable against the Selling Shareholder in accordance with their respective terms, except to the extent that the enforceability of its obligations underthe indemnification and contribution provisions of Section 9 hereof may be limited by securities laws or by public policy considerations as expressed in such laws as construed by courts of competent jurisdiction, and except as enforceability may be limited by bankruptcy, insolvency, reorganization or other laws of general application relating to or affecting enforcement of creditors' rights generally or the availability of equitable remedies, regardless of whether such enforcement is considered in a proceeding in equity or at law; the performance of this Agreement and the Power of Attorney and the consummation of the transactions contemplated herein and therein will not contravene result in a breach or violation of any provision of applicable law, or the memorandum and articles of association of the Selling Shareholder, terms or any agreement or other instrument binding upon the Selling Shareholder or any judgment, order or decree of any governmental body, agency or court having jurisdiction over the Selling Shareholder, and no consent, approval, authorization or order provisions of, or qualification withconstitute a default under, any governmental body or agency is required for the performance by the Selling Shareholder statute, indenture, mortgage, deed of its obligations under this Agreementtrust, except such as may be required by the securities or Blue Sky laws of the various states in connection with the offer and sale of the Shares.
(c) The Selling Shareholder has, and on the Closing Date will have, valid title to, or a valid “security entitlement” within the meaning of Section 8-501 of the New York Uniform Commercial Code (the “UCC”) in respect of, the Shares to be sold by the Selling Shareholder free and clear of all security interests, claims, liens, equities or other encumbrances and the legal right and power, and all authorization and approval required by law, to enter into this Agreement and to sell, transfer and deliver the Shares to be sold by the Selling Shareholder or a security entitlement in respect of such Shares.
(d) Upon payment for the Shares to be sold by the Selling Shareholder pursuant to this Agreement, delivery of such Shares, as directed by the Underwriters, to Cede & Co. (“Cede”) or such other nominee as may be designated by the Depository Trust Company (“DTC”), registration of such Shares in the name of Cede or such other nominee and the crediting of such Shares on the books of DTC to securities accounts of the Underwriters (assuming that neither DTC nor any such Underwriter has notice of any adverse claim (within the meaning of Section 8-105 of the UCC) to such Shares), (A) DTC shall be a “protected purchaser” of such Shares within the meaning of Section 8-303 of the UCC, (B) under Section 8-501 of the UCC, the Underwriters will acquire a valid security entitlement in respect of such Shares and (C) no action based on any “adverse claim”, within the meaning of Section 8-102 of the UCC, to such Shares may be asserted against the Underwriters with respect to such security entitlement; for purposes of this representation, the Selling Shareholder may assume that when such payment, delivery and crediting occur, (x) such Shares will have been registered in the name of Cede or another nominee designated by DTC, in each case on the Company’s share register in accordance with its memorandum and articles of association and applicable law, (y) DTC will be registered as a “clearing corporation” within the meaning of Section 8-102 of the UCC and (z) appropriate entries to the accounts of the several Underwriters on the records of DTC will have been made pursuant to the UCC.
(i) The Registration Statement, when it became effective, did not contain and, as amended or supplemented, if applicable, will not contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading and (ii) the Prospectus does not contain and, as amended or supplemented, if applicable, will not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading, provided that the representations and warranties set forth in this paragraph 2(e) are limited to statements or omissions in the Registration Statement or Prospectus made in reliance upon information relating to the Selling Shareholder furnished to the Company in writing by the Selling Shareholder expressly for use in the Registration Statement, the Prospectus or any amendments or supplements thereto.voting trust
Appears in 1 contract
Sources: Underwriting Agreement (Inspire Insurance Solutions Inc)
Representations and Warranties of the Selling Shareholder. The Selling Shareholder represents and warrants to and agrees with each of the several Underwriters and the Company, and shall be deemed to represent and warrant to the several Underwriters and the Company on the First Closing Date, that:
(a) This The Selling Shareholder has duly executed a durable power of attorney and custody agreement ("Durable Power of Attorney" and Custody Agreement", respectively) naming Gerald L. Connelly and Kevin J. Brown, or either of them, as th▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇der's ▇▇▇▇▇▇▇▇(▇)-▇n-fact ("Attorneys-in-Fact") for the purpose of entering into and carrying out this Agreement has been duly authorized, executed and delivered by naming the Company as custodian ("Custodian") of the Shares of the Selling ShareholderShareholder for the purpose of selling such Shares to the Underwriters on the First Closing Date and receiving payment therefor.
(b) The All consents, approvals, authorizations and orders necessary for the execution and delivery by the Selling Shareholder of, and the performance by the Selling Shareholder of its obligations under, this Agreement will not contravene any provision of applicable law, or the memorandum and articles of association of the Selling Shareholder, or any agreement or other instrument binding upon the Selling Shareholder or any judgment, order or decree of any governmental body, agency or court having jurisdiction over the Selling Shareholder, and no consent, approval, authorization or order of, or qualification with, any governmental body or agency is required for the performance by the Selling Shareholder of its obligations under this Agreement, except such as may be required by the securities or Blue Sky laws Durable Power of Attorney and the various states in connection with the offer and sale of the Shares.
(c) The Selling Shareholder hasCustody Agreement, and on for the Closing Date will have, valid title to, or a valid “security entitlement” within the meaning sale and delivery of Section 8-501 of the New York Uniform Commercial Code (the “UCC”) in respect of, the Shares to be sold by the Selling Shareholder free and clear of all security interestshereunder, claimsas set forth on Schedule I annexed hereto, liens, equities or other encumbrances and the legal right and powerhave been obtained. The Selling Shareholder has, and all authorization at the time of delivery thereof hereunder the Selling Shareholder will have, good and approval required by law, valid title to enter into this Agreement and to sell, transfer and deliver the Shares proposed to be sold by the Selling Shareholder hereunder, free and clear of all voting trust arrangements, liens, encumbrances, security interests, equities, claims and community or a marital property rights, other than any created by the Durable Power of Attorney, the Custody Agreement or this Agreement for the benefit of the Underwriters. The Selling Shareholder has full right, power and authority to enter into this Agreement, the Durable Power of Attorney and the Custody Agreement and to sell, assign, transfer and deliver such Shares hereunder, free and clear of all voting trust arrangements, liens, encumbrances, security entitlement interests, equities, claims and community or marital property rights, other than any created by the Durable Power of Attorney, the Custody Agreement or this Agreement for the benefit of the Underwriters. Upon delivery of and payment for such Shares hereunder, the Underwriters will acquire good and valid title thereto, free and clear of all voting trust arrangements, liens, encumbrances, security interests, equities, claims and community or marital property rights.
(c) The Selling Shareholder has not distributed and will not distribute any Preliminary Prospectus, the Prospectus or any other material in respect connection with the offering and sale of such the Shares. The Selling Shareholder has not taken and will not take, directly or indirectly, any action designed to or which could cause or result in, under the Exchange Act or otherwise, stabilization or manipulation of the price of any security of the Company to facilitate the sale or resale of the Common Shares.
(d) Upon payment The execution, delivery and performance by the Selling Shareholder of this Agreement, the Durable Power of Attorney and the Custody Agreement will not, if applicable, result in the violation of any provisions of the Articles of Incorporation, By-laws or other governing documents of the Selling Shareholder, or constitute a breach, or be in contravention, of any provision of any agreement, franchise, license, indenture, mortgage, deed of trust or other instrument to which the Selling Shareholder is a party or by which the Selling Shareholder or the Selling Shareholder's property may be bound or affected, or any statute, rule or regulation applicable to the Selling Shareholder, or violate any order or decree of any court, regulatory body, administrative agency or other governmental body having jurisdiction over the Selling Shareholder or any of the Selling Shareholder's property. No consent, approval, authorization or other order of any court, regulatory body, administrative agency or other governmental body is required for the execution and delivery of, and performance under, this Agreement by the Selling Shareholder or the consummation by the Selling Shareholder of the transactions contemplated by this Agreement, except for compliance with the Act, the Exchange Act, the Blue Sky Laws applicable to the public offering of the Shares by the Underwriters and the clearance of such offering with the NASD. The Selling Shareholder hereby represents and warrants that each Attorney-in-Fact has been duly appointed as attorney-in-fact by the Selling Shareholder for the purpose of entering into and carrying out this Agreement, and the Durable Power of Attorney and the Custody Agreement have been duly executed and delivered by or on behalf of the Selling Shareholder to the Representatives.
(e) This Agreement, the Durable Power of Attorney and the Custody Agreement are each valid and binding agreements of the Selling Shareholder enforceable in accordance with their respective terms.
(f) The Selling Shareholder has deposited in custody, under the Durable Power of Attorney and the Custody Agreement, certificates in negotiable form for the 450,000 Shares to be sold hereunder by the Selling Shareholder for the purpose of further delivery pursuant to this Agreement. The Selling Shareholder agrees that the Shares of the Selling Shareholder on deposit with the Custodian are subject to the interests of the Company and the Underwriters, that the arrangements made for such custody, and the appointment of the Attorneys-in-Fact pursuant to the Durable Power of Attorney and the Custody Agreement, are to that extent irrevocable, and that the obligations of the Selling Shareholder hereunder and under the Durable Power of Attorney and the Custody Agreement shall not be terminated, except as provided in this Agreement, the Durable Power of Attorney and the Custody Agreement, by any act of the Selling Shareholder, by operation of law, whether by the dissolution, winding up or other event affecting the legal life of the Selling Shareholder, or by the occurrence of any other event. If the Selling Shareholder should be wound up or dissolved, or if any other event should occur before the delivery of the Shares hereunder, the certificates for Shares then on deposit with the Custodian shall, to the extent the Shares are purchased by the Underwriters, be delivered by the Custodian in accordance with the terms and conditions of this Agreement, the Durable Power of Attorney and the Custody Agreement as if such winding up, dissolution or other event had not occurred, regardless of whether or not the Custodian shall have received notice thereof. The Selling Shareholder represents that each Attorney-in-Fact has been authorized by the Selling Shareholder to execute and deliver this Agreement and the Custodian has been authorized to receive and acknowledge receipt of the proceeds of sale of the Shares sold by the Selling Shareholder pursuant against delivery thereof and otherwise to this Agreementact on behalf of the Selling Shareholder.
(g) Insofar as it relates to the Selling Shareholder, delivery of such Shareseach Preliminary Prospectus, as directed by of its date, has conformed in all material respects with the Underwritersrequirements of the Act and, as of its date, has not included any untrue statement of a material fact or omitted to Cede & Co. state a material fact necessary to make the statements therein not misleading; and on the effective date of the Registration Statement and at all times subsequent thereto up to the First Closing Date, (“Cede”i) or such other nominee as may be designated by the Depository Trust Company (“DTC”), registration of such Shares in the name of Cede or such other nominee Registration Statement and the crediting of such Shares on Prospectus, as they relate to the books of DTC Selling Shareholder, did or will conform to securities accounts the requirements of the Underwriters (assuming that neither DTC nor any such Underwriter has notice of any adverse claim (within the meaning of Section 8-105 of the UCC) to such Shares)Act, (A) DTC shall be a “protected purchaser” of such Shares within the meaning of Section 8-303 of the UCC, (B) under Section 8-501 of the UCC, the Underwriters will acquire a valid security entitlement in respect of such Shares and (Cii) no action based on any “adverse claim”, within neither the meaning of Section 8-102 of Registration Statement nor the UCC, Prospectus as it relates to such Shares may be asserted against the Underwriters with respect to such security entitlement; for purposes of this representation, the Selling Shareholder may assume that when such payment, delivery and crediting occur, (x) such Shares did or will have been registered in the name of Cede or another nominee designated by DTC, in each case on the Company’s share register in accordance with its memorandum and articles of association and applicable law, (y) DTC will be registered as a “clearing corporation” within the meaning of Section 8-102 of the UCC and (z) appropriate entries to the accounts of the several Underwriters on the records of DTC will have been made pursuant to the UCC.
(i) The Registration Statement, when it became effective, did not contain and, as amended or supplemented, if applicable, will not contain include any untrue statement of a material fact or omit to state a any material fact required to be stated therein or necessary to make the statements therein not misleading misleading.
(h) The information contained in the Selling Shareholder's Selling Shareholder's Questionnaire completed in connection with the Company's public offering of Shares and (ii) delivered to the Prospectus does not contain andRepresentatives was, as amended or supplemented, if applicable, will not contain any 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 madedate of such questionnaire, not misleadingand is, provided that as of the representations date of this Agreement, true and warranties set forth in this paragraph 2(e) are limited to statements correct. A certificate signed by or omissions in the Registration Statement or Prospectus made in reliance upon information relating to on behalf of the Selling Shareholder furnished as such and delivered to the Company in writing Representatives or to counsel for the Underwriters shall be deemed a representation and warranty by the Selling Shareholder expressly to the Underwriters as to the matters covered thereby. A certificate delivered by or on behalf of the Selling Shareholder to counsel for use the Selling Shareholder for purposes of enabling such counsel to render the opinion referred in Section 10(e) will also be furnished to the Registration Statement, Representatives and counsel for the Prospectus or any amendments or supplements theretoUnderwriters and shall be deemed to be additional representations and warranties to the Underwriters by the Selling Shareholder as to the matters covered thereby.
Appears in 1 contract
Representations and Warranties of the Selling Shareholder. The Selling Shareholder represents and warrants to and agrees with each of the Underwriters that:
(a) This Agreement has been duly authorized, executed and delivered by or on behalf of the Selling Shareholder.
(b) The execution and delivery by the Selling Shareholder of, and the performance by the Selling Shareholder of its obligations under, this Agreement will not contravene any provision of applicable law, or the memorandum and articles of association of the Selling Shareholder, law or any agreement or other instrument binding upon the Selling Shareholder or any judgment, order or decree of any governmental body, agency or court having jurisdiction over the Selling Shareholder, except in the case of such conflicts, breaches and violations that would not reasonably be expected to affect the validity of the Shares or have a material adverse effect on the ability of the Selling Shareholder to consummate the transactions contemplated by this Agreement, and no consent, approval, authorization or order of, or qualification with, any governmental body body, agency or agency court is required for the performance by the Selling Shareholder of its obligations under this AgreementAgreement of the Selling Shareholder, except such as (A) may be required by the securities or Blue Sky laws of the various states in connection with the offer and sale of the SharesShares or (B) have already been obtained.
(c) The Selling Shareholder has, and on the Closing Date will have, valid title to, or a valid “security entitlement” within the meaning of Section 8-501 of the New York Uniform Commercial Code (the “UCC”) in respect of, the Shares to be sold by the Selling Shareholder free and clear of all security interests, claims, liens, equities or other encumbrances and the legal right and power, and all authorization and approval required by law, to enter into this Agreement and to sell, transfer and deliver the Shares to be sold by the Selling Shareholder or a security entitlement in respect of such Shares.
(d) Upon payment for the Shares to be sold by the Selling Shareholder pursuant to this Agreement, delivery of such Shares, as directed by the Underwriters, to Cede & Co. (“Cede”) or such other nominee as may be designated by the Depository Trust Company (“DTC”), registration of such Shares in the name of Cede or such other nominee and the crediting of such Shares on the books of DTC to securities accounts of the Underwriters (assuming that neither DTC nor any such Underwriter has notice of any adverse claim (within the meaning of Section 8-105 of the New York Uniform Commercial Code (the “UCC”)) to such Shares), (A) DTC shall be a “protected purchaser” of such Shares within the meaning of Section 8-303 of the UCC, (B) under Section 8-501 of the UCC, the Underwriters will acquire a valid security entitlement in respect of such Shares and (C) no action based on any “adverse claim”, within the meaning of Section 8-102 of the UCC, to such Shares may be asserted against the Underwriters with respect to such security entitlement; for purposes of this representation, the Selling Shareholder may assume that when such payment, delivery and crediting occur, (x) such Shares will have been registered in the name of Cede or another nominee designated by DTC, in each case on the Company’s share register registry in accordance with its memorandum and articles certificate of association incorporation, bylaws and applicable law, (y) DTC will be registered as a “clearing corporation” within the meaning of Section 8-102 of the UCC and (z) appropriate entries to the accounts of the several Underwriters on the records of DTC will have been made pursuant to the UCC.
(e) The Selling Shareholder has delivered to the Representatives an executed lock-up agreement in substantially the form attached hereto as Exhibit A (the “Lock-up Agreement”).1
(f) The Selling Shareholder has no reason to believe that the representations and warranties of the Company contained in Section 1 are not true and correct, is familiar with the Registration Statement, the Time of Sale Prospectus and the Prospectus and has no knowledge of any material fact, condition or information not disclosed in the Registration Statement, the Time of Sale Prospectus or the Prospectus that has had, or may have, a material adverse effect on the Company and its subsidiaries, taken as a whole. The Selling Shareholder is not prompted by any information concerning the Company or its subsidiaries that is not set forth in the Registration Statement, the Time of Sale Prospectus or the Prospectus to sell its Shares pursuant to this Agreement. 1 NTD: To be confirmed what other existing shareholders are to be locked up and whether shares of Cartrack need also to be locked up.
(i) The Registration Statement, when it became effective, did not contain and, as amended or supplemented, if applicable, will not contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading, (ii) the Registration Statement and the Prospectus comply and, as amended or supplemented, if applicable, will comply in all material respects with the Securities Act and the applicable rules and regulations of the Commission thereunder, (iii) the Time of Sale Prospectus does not, and at the time of each sale of the Shares in connection with the offering when the Prospectus is not yet available to prospective purchasers and at the Closing Date (as defined in Section 5), the Time of Sale Prospectus, as then amended or supplemented by the Company, if applicable, will not, contain any 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, (iv) each broadly available road show, if any, when considered together with the Time of Sale Prospectus, does not contain any 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 and (iiv) the Prospectus does not contain and, as amended or supplemented, if applicable, will not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading, provided except that the representations and warranties set forth in this paragraph 2(e) are limited do not apply to statements or omissions in the Registration Statement Statement, the Time of Sale Prospectus or the Prospectus made in reliance based upon information relating to the Selling Shareholder any Underwriter furnished to the Company in writing by such Underwriter through the Representatives expressly for use therein.
(i) None of the Selling Shareholder expressly for or, to the knowledge of the Selling Shareholder, any employee, agent, representative, or affiliate thereof, is a Person that is, or is owned or controlled by one or more Persons that are:
(A) the subject of any Sanctions, or
(B) located, organized or resident in a country or territory that is the subject of Sanctions (including, without limitation, Crimea, Cuba, Iran, North Korea and Syria).
(ii) The Selling Shareholder will not, directly or indirectly, use the proceeds of the offering, or lend, contribute or otherwise make available such proceeds to any subsidiary, joint venture partner or other Person:
(A) to fund or facilitate any activities or business of or with any Person or in any country or territory that, at the time of such funding or facilitation, is the subject of Sanctions; or
(B) in any other manner that will result in a violation of Sanctions by any Person (including any Person participating in the Registration Statementoffering, whether as underwriter, advisor, investor or otherwise).
(iii) The Selling Shareholder has not knowingly engaged in, is not now knowingly engaged in, and will not engage in, any dealings or transactions with any Person, or in any country or territory, that at the time of the dealing or transaction is or was the subject of Sanctions.
(a) Neither the Selling Shareholder nor, to the knowledge of the Selling Shareholder, any employee, agent, representative, or affiliate thereof has taken or will take any action in furtherance of an offer, payment, promise to pay, or authorization or approval of the payment giving or receipt of money, property, gifts or anything else of value, directly or indirectly, to any Government Official in order to influence official action, or to any person in violation of any applicable anti-corruption laws; and (b) the Selling Shareholder has conducted their business in compliance with applicable anti-corruption laws and will not use, directly or indirectly, the Prospectus proceeds of the offering in furtherance of an offer, payment, promise to pay, or authorization of the payment or giving of money, or anything else of value, to any amendments person in violation of any anti-corruption laws applicable to the Selling Shareholder.
(i) The Selling Shareholder represents and warrants that it is not (i) an employee benefit plan subject to Title I of the Employee Retirement Income Security Act of 1974, as amended (“ERISA”), (ii) a plan or supplements theretoaccount subject to Section 4975 of the Internal Revenue Code of 1986, as amended or (iii) an entity deemed to hold “plan assets” of any such plan or account under Section 3(42) of ERISA, 29 C.F.R. 2510.3-101, or otherwise.
(j) No stamp, documentary, issuance, registration, transfer withholding, capital gains, income or other similar taxes or duties are payable by or on behalf of the Underwriters in the Republic of Singapore or the Republic of South Africa or to any taxing authority thereof or therein in connection with (i) the sale and delivery of the Shares by the Selling Shareholder to the Underwriters or purchasers procured by the Underwriters, or (ii) the resale and delivery of such Shares by the Underwriters in the manner contemplated herein, provided that all electronic records and any information relating to transfers of the Shares are not electronically received by persons in Singapore, stored on any server or device in Singapore or made accessible to any person in Singapore.
(a) The Selling Shareholder has the power to submit, and pursuant to Section 20(a) has, to the extent permitted by law, legally, validly, effectively and irrevocably submitted, to the jurisdiction of the Specified Courts (as defined in Section 20(a)), and has the power to designate, appoint and empower, and pursuant to Section 20(c), has legally, validly and effectively designated, appointed and empowered an agent for service of process in any suit or proceeding based on or arising under this Agreement in any of the Specified Courts.
Appears in 1 contract
Representations and Warranties of the Selling Shareholder. The Selling Shareholder represents and warrants to and agrees with each of the Underwriters that:
(a) This Agreement has been duly authorized, executed and delivered by or on behalf of the Selling Shareholder.
(b) The execution and delivery by the Selling Shareholder of, and the performance by the such Selling Shareholder of its obligations under, this Agreement and the Power of Attorney and Custody Agreement of the Selling Shareholder will not contravene any provision of applicable law, or the memorandum and articles of association of the Selling Shareholder, or any agreement or other instrument binding upon the Selling Shareholder or or, to the Selling Shareholder's knowledge, any judgment, order or decree of any governmental body, agency or court having jurisdiction over the Selling Shareholder, and no consent, approval, authorization or order of, or qualification with, any governmental body or agency is required for the performance by the Selling Shareholder of its obligations under this AgreementAgreement or the Power of Attorney and Custody Agreement of the Selling Shareholder, except such as may be required by the securities or Blue Sky laws of the various states in connection with the offer and sale of the Shares.
(c) The Selling Shareholder has, and on the Closing Date will have, valid title to, or a valid “security entitlement” within the meaning of Section 8-501 of the New York Uniform Commercial Code (the “UCC”) in respect of, to the Shares to be sold by the Selling Shareholder free and clear of all security interests, claims, liens, equities or other encumbrances and the legal right and power, and all authorization and approval required by law, to enter into this Agreement, the Power of Attorney and Custody Agreement of the Selling Shareholder and to sell, transfer and deliver the Shares to be sold by the Selling Shareholder or a security entitlement in respect of such SharesShareholder.
(d) Upon payment for The Shares to be sold by the Selling Shareholder pursuant to this Agreement have been duly authorized and are validly issued, fully paid and non-assessable.
(e) The Power of Attorney and Custody Agreement of the Selling Shareholder has been duly authorized, executed and delivered by the Selling Shareholder and is a valid and binding agreement of the Selling Shareholder, enforceable in accordance with its terms, subject to applicable bankruptcy, insolvency or similar laws affecting creditors' rights generally and general principles of equity.
(f) Delivery of the Shares to be sold by the Selling Shareholder pursuant to this Agreement, delivery of such Shares, as directed by the Underwriters, to Cede & Co. (“Cede”) or such other nominee as may be designated by the Depository Trust Company (“DTC”), registration of such Shares in the name of Cede or such other nominee and the crediting of such Shares on the books of DTC to securities accounts of the Underwriters (assuming that neither DTC nor any such Underwriter has notice of any adverse claim (within the meaning of Section 8-105 of the UCC) to such Shares), (A) DTC shall be a “protected purchaser” of such Shares within the meaning of Section 8-303 of the UCC, (B) under Section 8-501 of the UCC, the Underwriters Agreement will acquire a valid security entitlement in respect of such Shares and (C) no action based on any “adverse claim”, within the meaning of Section 8-102 of the UCC, pass title to such Shares may be asserted against the Underwriters with respect to such free and clear of any security entitlement; for purposes of this representationinterests, the Selling Shareholder may assume that when such paymentclaims, delivery liens, equities and crediting occur, (x) such Shares will have been registered in the name of Cede or another nominee designated by DTC, in each case on the Company’s share register in accordance with its memorandum and articles of association and applicable law, (y) DTC will be registered as a “clearing corporation” within the meaning of Section 8-102 of the UCC and (z) appropriate entries to the accounts of the several Underwriters on the records of DTC will have been made pursuant to the UCCother encumbrances.
(i) The Each document, if any, filed or to be filed pursuant to the Securities Exchange Act of 1934, as amended (the "Exchange Act") and incorporated by reference in the Prospectus complied or will comply when so filed in all material respects with the Exchange Act and the applicable rules and regulations of the Commission thereunder, (ii) the Registration Statement, when it became effective, did not contain and, as amended or supplemented, if applicable, will not contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading misleading, (iii) the Registration Statement and the Prospectus comply and, as amended or supplemented, if applicable, will comply in all material respects with the Securities Act and the applicable rules and regulations of the Commission thereunder and (iiiv) the Prospectus does not contain and, as amended or supplemented, if applicable, will not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading, provided except that the representations and warranties set forth in this paragraph 2(e2(g) are limited do not apply to statements or omissions in the Registration Statement or the Prospectus made in reliance based upon information relating to the Selling Shareholder any Underwriter furnished to the Company in writing by the Selling Shareholder such Underwriter through you expressly for use in the Registration Statement, the Prospectus or any amendments or supplements theretotherein.
Appears in 1 contract
Sources: Underwriting Agreement (Mastec Inc)
Representations and Warranties of the Selling Shareholder. The Selling Shareholder represents and warrants to and agrees with each of the Underwriters that:
(a) This Agreement has been duly authorized, executed and delivered by or on behalf of the Selling Shareholder.
(b) The execution and delivery by the Selling Shareholder of, and the performance by the Selling Shareholder of its obligations under, this Agreement, the Custody Agreement signed by the Selling Shareholder and American Stock Transfer & Trust Company, LLC, as Custodian, relating to the deposit of the Shares to be sold by the Selling Shareholder (the “Custody Agreement”) and the Power of Attorney appointing certain individuals as the Selling Shareholder’s attorneys-in-fact to the extent set forth therein, relating to the transactions contemplated hereby and by the Registration Statement (the “Power of Attorney”) will not contravene any provision of applicable law, or the memorandum and articles certificate of association incorporation or by-laws of the Selling ShareholderShareholder (if the Selling Shareholder is a corporation) or the limited partnership agreement or certificate of limited partnership (if the Selling Shareholder is a limited partnership), or any agreement or other instrument binding upon the Selling Shareholder or any judgment, order or decree of any governmental body, agency or court having jurisdiction over the Selling Shareholder, and no consent, approval, authorization or order of, or qualification with, any governmental body or agency is required for the performance by the Selling Shareholder of its obligations under this AgreementAgreement or the Custody Agreement or Power of Attorney of the Selling Shareholder, except such as may be required by the securities or Blue Sky laws of the various states in connection with the offer and sale of the Shares.
(c) The Selling Shareholder has, and on the Closing Date will have, valid title to, or a valid “security entitlement” within the meaning of Section 8-501 of the New York Uniform Commercial Code (the “UCC”) in respect of, the Shares to be sold by the Selling Shareholder free and clear of all security interests, claims, liens, equities or other encumbrances and the legal right and power, and all authorization and approval required by law, to enter into this Agreement, the Custody Agreement and the Power of Attorney and to sell, transfer and deliver the Shares to be sold by the Selling Shareholder or a security entitlement in respect of such Shares.
(d) The Custody Agreement and the Power of Attorney have been duly authorized, executed and delivered by the Selling Shareholder and are valid and binding agreements of the Selling Shareholder.
(e) Upon payment for the Shares to be sold by the Selling Shareholder pursuant to this Agreement, delivery of such Shares, as directed by the Underwriters, to Cede & Co. (“Cede”) or such other nominee as may be designated by the Depository Trust Company (“DTC”), registration of such Shares in the name of Cede or such other nominee and the crediting of such Shares on the books of DTC to securities accounts of the Underwriters (assuming that neither DTC nor any such Underwriter has notice of any adverse claim (within the meaning of Section 8-105 of the New York Uniform Commercial Code (the “UCC”)) to such Shares), (A) DTC shall be a “protected purchaser” of such Shares within the meaning of Section 8-303 of the UCC, (B) under Section 8-501 of the UCC, the Underwriters will acquire a valid security entitlement in respect of such Shares and (C) no action based on any “adverse claim”, within the meaning of Section 8-102 of the UCC, to such Shares may be asserted against the Underwriters with respect to such security entitlement; for purposes of this representation, the Selling Shareholder may assume that when such payment, delivery and crediting occur, (x) such Shares will have been registered in the name of Cede or another nominee designated by DTC, in each case on the Company’s share register registry in accordance with its memorandum and articles certificate of association incorporation, bylaws and applicable law, (y) DTC will be registered as a “clearing corporation” within the meaning of Section 8-102 of the UCC and (z) appropriate entries to the accounts of the several Underwriters on the records of DTC will have been made pursuant to the UCC.
(f) The Selling Shareholder has no reason to believe that the representations and warranties of the Company contained in Section 2 are not true and correct, is familiar with the Registration Statement, the Time of Sale Prospectus and the Prospectus and has no knowledge of any material fact, condition or information not disclosed in the Time of Sale Prospectus or the Prospectus that has had, or may have, a material adverse effect on the Company and its subsidiaries, taken as a whole. The Selling Shareholder is not prompted by any information concerning the Company or its subsidiaries which is not set forth in the Time of Sale Prospectus to sell its Shares pursuant to this Agreement.
(g) (i) The the Registration Statement, when it became effective, did not contain and, as amended or supplemented, if applicable, will not contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading, (ii) the Registration Statement and the Prospectus comply and, as amended or supplemented, if applicable, will comply in all material respects with the Securities Act and the applicable rules and regulations of the Commission thereunder, (iii) the Time of Sale Prospectus does not, and at the time of each sale of the Shares in connection with the offering when the Prospectus is not yet available to prospective purchasers and at the Closing Date (as defined in Section 5), the Time of Sale Prospectus, as then amended or supplemented by the Company, if applicable, will not, contain any 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, (iv) each broadly available road show, if any, when considered together with the Time of Sale Prospectus, does not contain any 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 and (iiv) the Prospectus does not contain and, as amended or supplemented, if applicable, will not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading, ; provided that the representations and warranties set forth in this paragraph 2(e2(g) are limited to statements or omissions in the Registration Statement or Prospectus made in reliance upon information relating to the Selling Shareholder furnished to the Company in writing by the Selling Shareholder expressly for use in the Registration Statement, the Time of Sale Prospectus, the Prospectus or any amendments or supplements thereto.
(i) None of the Selling Shareholder or any of its subsidiaries, or, to the knowledge of the Selling Shareholder, any director, officer, employee, agent, representative, or affiliate thereof, is a Person that is, or is owned or controlled by one or more Persons that are:
(A) the subject of any Sanctions, or
(B) located, organized or resident in a country or territory that is the subject of Sanctions (including, without limitation, Crimea, Cuba, Iran, North Korea and Syria).
(ii) The Selling Shareholder will not, directly or indirectly, use the proceeds of the offering, or lend, contribute or otherwise make available such proceeds to any subsidiary, joint venture partner or other Person:
(A) to fund or facilitate any activities or business of or with any Person or in any country or territory that, at the time of such funding or facilitation, is the subject of Sanctions; or
(B) in any other manner that will result in a violation of Sanctions by any Person (including any Person participating in the offering, whether as underwriter, advisor, investor or otherwise).
(iii) For the past 5 years, the Selling Shareholder has not knowingly engaged in, is not now knowingly engaged in, and will not engage in, any dealings or transactions with any Person, or in any country or territory, that at the time of the dealing or transaction is or was the subject of Sanctions.
(a) None of the Selling Shareholder or its subsidiaries, or, to the knowledge of the Selling Shareholder, any director, officer, employee, agent, representative, or affiliate thereof has taken or will take any action in furtherance of an offer, payment, promise to pay, or authorization or approval of the payment giving or receipt of money, property, gifts or anything else of value, directly or indirectly, to any Government Official in order to influence official action, or to any person in violation of any applicable anti-corruption laws; (b) the Selling Shareholder and its subsidiaries have conducted their businesses in compliance with applicable anti-corruption laws and have instituted and maintained and will continue to maintain policies and procedures reasonably designed to promote and achieve compliance with such laws and with the representations and warranties contained herein; and (c) neither the Selling Shareholder nor any of its subsidiaries will use, directly or indirectly, the proceeds of the offering in furtherance of an offer, payment, promise to pay, or authorization of the payment or giving of money, or anything else of value, to any person in violation of any applicable anti-corruption laws.
(v) The operations of the Selling Shareholder and its subsidiaries are and have been conducted at all times in material compliance with all applicable Anti-Money Laundering Laws, and no action, suit or proceeding by or before any court or governmental agency, authority or body or any arbitrator involving the Selling Shareholder or any of its subsidiaries with respect to the Anti-Money Laundering Laws is pending or, to the best knowledge of the Selling Shareholder, threatened.
(i) The Selling Shareholder represents and warrants that it is not (i) an employee benefit plan subject to Title I of the Employee Retirement Income Security Act of 1974, as amended (“ERISA”), (ii) a plan or account subject to Section 4975 of the Internal Revenue Code of 1986, as amended or (iii) an entity deemed to hold “plan assets” of any such plan or account under Section 3(42) of ERISA, 29 C.F.R. 2510.3-101, or otherwise.
Appears in 1 contract
Representations and Warranties of the Selling Shareholder. The Selling Shareholder represents and warrants to and agrees with each of the Underwriters that:
(a) This Agreement has been duly authorized, executed and delivered by or on behalf of the Selling Shareholder.
(b) The deposit of the Underlying Shares by the Selling Shareholder with the Depositary against issuance of the ADRs evidencing the ADSs to be delivered by the Selling Shareholder and the execution and delivery by the Selling Shareholder of, and the performance by the Selling Shareholder of its obligations under, this Agreement will not contravene any provision of applicable law, or the memorandum and certificate of incorporation or articles of association (vedtekter) of the Selling Shareholder, or any agreement or other instrument binding upon the Selling Shareholder or any judgment, order or decree of any governmental body, agency or court having jurisdiction over the Selling Shareholder, and no consent, approval, authorization or order of, or qualification with, any governmental body or agency is required for the performance by the Selling Shareholder of its obligations under this Agreement, except such as may be required by the securities or Blue Sky laws of the various states in connection with the offer and sale of the SharesSecurities.
(c) The Selling Shareholder has, beneficially owns and on the Closing Date will have, beneficially own or has and will have on the Closing Date a valid title to, or a valid “security entitlement” within the meaning of Section 8-501 of the New York Uniform Commercial Code (the “UCC”) in respect of, the Underlying Shares to be represented by the ADSs to be sold by the Selling Shareholder hereunder, free and clear of all security interests, claims, liens, equities or other encumbrances encumbrances; and the Selling Shareholder has the legal right and power, and all authorization and approval required by law, to enter into the Deposit Agreement and to deposit the Underlying Shares with the Depositary against the issuance of the ADRs evidencing the ADSs to be delivered by the Selling Shareholder.
(d) The Selling Shareholder has the legal right and power, and all authorization and approval required by law, to enter into this Agreement and to sell, transfer and deliver the Shares Securities to be sold by the Selling Shareholder or a security entitlement in respect of such SharesSecurities.
(de) Upon payment for The ADSs representing the Underlying Shares to be sold by were deposited in accordance with the Selling Shareholder pursuant to this Agreementprovisions of the Deposit Agreement and were duly issued, and, upon the sale and delivery of such Shares, as directed the ADRs to the person(s) procured by the Underwriters, the person(s) in whose name(s) the ADRs are registered will be entitled to Cede & Co. the rights in the ADSs representing the Underlying Shares specified in the Deposit Agreement.
(“Cede”f) No stamp, documentary, issuance, registration, transfer, withholding, capital gains, income or such other nominee as may be designated taxes or duties are payable by or on behalf of the Underwriters, the Company or any of its subsidiaries in Norway or to any taxing authority thereof or therein in connection with (i) the execution, delivery or consummation of this Agreement, (ii) the sale and delivery of the Securities to the Underwriters or purchasers procured by the Depository Trust Company Underwriters, or (“DTC”), registration iii) the resale and delivery of such Shares the Securities by the Underwriters in the name of Cede manner contemplated herein.
(g) The statements set forth under the heading “Material U.S. Federal Income Tax Considerations” in the Registration Statement or such other nominee and the crediting of such Shares on the books of DTC to securities accounts of the Underwriters (assuming that neither DTC nor any such Underwriter has notice of any adverse claim (within the meaning of Section 8-105 of the UCC) to such Shares), (A) DTC shall be a “protected purchaser” of such Shares within the meaning of Section 8-303 of the UCC, (B) under Section 8-501 of the UCC, the Underwriters will acquire a valid security entitlement in respect of such Shares and (C) no action based on any “adverse claim”, within the meaning of Section 8-102 of the UCCamendment thereto, to such Shares may be asserted against the Underwriters extent that they relate to matters of U.S. federal income tax law and legal conclusions with respect thereto, other than the statements under the heading “Passive Investment Company Rules” relating to such security entitlement; for purposes of this representation, the Selling Shareholder may assume that when such payment, delivery and crediting occur, (x) such Shares will have been registered in the name of Cede or another nominee designated by DTC, in each case on the Company’s share register status under the U.S. federal income tax rules defining the term “passive foreign investment company”, to the extent that they relate to matters of U.S. federal income tax law and legal conclusions with respect thereto, are accurate and complete in accordance with its memorandum and articles of association and applicable law, all material respects.
(yh) DTC will be registered as The Selling Shareholder Information in the Registration Statement or any amendment thereof constitutes a “clearing corporation” within the meaning of Section 8-102 fair summary of the UCC and (z) appropriate entries to the accounts of the several Underwriters on the records of DTC will have been made pursuant to the UCCmatters described therein.
(i) The Selling Shareholder has the power to submit, and pursuant to Section 19(a) has, to the extent permitted by law, legally, validly, effectively and irrevocably submitted, to the jurisdiction of the Specified Courts, and has the power to designate, appoint and empower, and pursuant to Section 19(c), has legally, validly and effectively designated, appointed and empowered an agent for service of process in any suit or proceeding based on or arising under this Agreement in any of the Specified Courts.
(j) The Selling Shareholder has no reason to believe that the representations and warranties of the Company contained in Section 1 are not true and correct, is familiar with the Registration Statement, the Time of Sale Prospectus and the Prospectus and has no knowledge of any material fact, condition or information not disclosed in the Time of Sale Prospectus that has had, or may have, a Material Adverse Effect.
(i) Each document, if any, filed or to be filed pursuant to the Exchange Act and incorporated by reference in the Time of Sale Prospectus or the Prospectus complied or will comply when so filed in all material respects with the Exchange Act and the applicable rules and regulations of the Commission thereunder, (ii) each of the Registration Statement and the ADR Registration Statement, when it became effective, did not contain and, as amended or supplemented, if applicable, will not contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading, (iii) the Registration Statement, the ADR Registration Statement and the Prospectus comply and, as amended or supplemented, if applicable, will comply in all material respects with the Securities Act and the applicable rules and regulations of the Commission thereunder, (iv) the Time of Sale Prospectus does not, and at the time of each sale of the Securities in connection with the offering when the Prospectus is not yet available to prospective purchasers and at the Closing Date (as defined in Section 5), the Time of Sale Prospectus, as then amended or supplemented by the Company, if applicable, will not, contain any 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, (v) each live road show, if any, when considered together with the Time of Sale Prospectus, does not contain any 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 and (iivi) the Prospectus does not contain and, as amended or supplemented, if applicable, will not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading, provided except that the representations and warranties set forth in this paragraph 2(e2(k) are limited do not apply to statements or omissions in the Registration Statement or the Prospectus made in reliance based upon information relating to the Selling Shareholder any Underwriter furnished to the Company in writing by such Underwriter through you expressly for use therein.
(i) None of the Selling Shareholder expressly for or any of its subsidiaries, or, to the knowledge of the Selling Shareholder, any director, officer, employee, agent, representative, affiliate thereof, or other person associated with or acting on behalf of the Selling Shareholder or any of its subsidiaries, is a Person that is, or is owned or controlled by a Sanctioned Person, or located, organized or resident in a Sanctioned Country.
(ii) The Selling Shareholder will not, directly or indirectly, use the proceeds of the offering, or lend, contribute or otherwise make available such proceeds to any subsidiary, joint venture partner or other Person:
(A) to fund or facilitate any activities or business of or with any Sanctioned Person or in Sanctioned Countries; or
(B) in any other manner that will result in a violation of sanctions laws by any Person (including any Person participating in the Registration Statementoffering, whether as underwriter, advisor, investor or otherwise).
(iii) For the past five years, the Prospectus Selling Shareholder and its subsidiaries have not knowingly engaged in, are not now knowingly engaged in, and will not engage in, any dealings or transactions with any Sanctioned Person, or Sanctioned Country, other than such limited telecommunications-related transactions with Sanctioned Countries as are permitted under the terms of the relevant Sanctions (including, without limitation, those transactions disclosed in VimpelCom’s Annual Report on Form 20-F for the fiscal year ended December 31, 2015).
(a) None of the Selling Shareholder or its subsidiaries, or, to the knowledge of the Selling Shareholder, any director, officer, employee, agent, representative, affiliate thereof, or other person associated with or acting on behalf of the Selling Shareholder has taken or will take any action in furtherance of an offer, payment, promise to pay, or authorization or approval of the payment, giving or receipt of money, property, gifts or anything else of value, directly or indirectly, to any Government Official in order to influence official action, or to any person in violation of any applicable Anti-Corruption Laws; (b) the Selling Shareholder and its subsidiaries have conducted their businesses in compliance with applicable Anti-Corruption Laws and have instituted and maintained, and will continue to maintain, policies and procedures reasonably designed to promote and achieve compliance with such laws and with the representations and warranties contained herein and (c) neither the Selling Shareholder nor any of its subsidiaries will use, directly or indirectly, the proceeds of the offering in furtherance of an offer, payment, promise to pay, or authorization of the payment or giving of money, or anything else of value, to any person in violation of any applicable Anti-Corruption Laws.
(v) The operations of the Selling Shareholder and its subsidiaries are and have been conducted at all times in compliance with all applicable Anti-Money Laundering Laws, and no action, suit or proceeding by or before any court or governmental agency, authority or body or any amendments arbitrator involving the Selling Shareholder or supplements theretoany of its subsidiaries with respect to the Anti-Money Laundering Laws is pending or, to the best knowledge of the Selling Shareholder, threatened.
(m) This Agreement is in proper form under the laws of Norway for the enforcement thereof against the Selling Shareholder, and to ensure the legality, validity, enforceability or admissibility into evidence in Norway of this Agreement.
(n) The courts of Norway would recognize as a valid judgment any final monetary judgment relating to the Agreement obtained against the Selling Shareholder in the courts of the State of New York.
(o) Neither the Selling Shareholder nor any of its subsidiaries nor any of its or their properties or assets has any immunity from the jurisdiction of any court or from any legal process (whether through service or notice, attachment prior to judgment, attachment in aid of execution or otherwise) under the laws of Norway. The irrevocable and unconditional waiver and agreement of the Selling Shareholder contained in Section 19(a) not to plead or claim any such immunity in any legal action, suit or proceeding based on this Agreement is valid and binding under the laws of Norway.
(p) The choice of law of the State of New York as the governing law of this Agreement is a valid choice of law under the laws of Norway and will be honored by the courts of Norway.
Appears in 1 contract
Representations and Warranties of the Selling Shareholder. The Selling Shareholder represents and warrants to to, and agrees with with, each of the Underwriters that:Underwriter as set forth below in this Section 2.
(a) This The Selling Shareholder has been duly organized and is validly existing and in good standing as a company or a partnership, as the case may be, in its jurisdiction of formation.
(b) The Selling Shareholder has and on the Closing Date hereinafter mentioned will have valid and unencumbered title to the Underwritten Securities to be delivered by the Selling Shareholder on the Closing Date and full right, power and authority to enter into this Agreement and to sell, assign, transfer and deliver the Ordinary Shares underlying the Underwritten Securities to be delivered by the Selling Shareholder on the Closing Date hereunder; and upon the delivery of and payment for the Underwritten Securities on the Closing Date hereunder the several Underwriters will acquire valid and unencumbered title to the Underwritten Securities to be delivered by the Selling Shareholder on the Closing Date.
(c) The Ordinary Shares represented by the Underwritten Securities to be sold by the Selling Shareholder may be freely deposited by the Selling Shareholder with the Depositary in accordance with the Deposit Agreement against the issuance of ADRs evidencing the Underwritten Securities representing such Ordinary Shares so deposited by the Selling Shareholder.
(d) No consent, approval, authorization, filing with or order of any court or governmental agency or body is required to be obtained or made by the Selling Shareholder for the consummation of the transactions contemplated by this Agreement in connection with the offering and sale of the Underwritten Securities sold by the Selling Shareholder, except such as have been obtained and made under the Act and such as may be required under state securities laws.
(e) 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 result in the imposition of any lien, charge or encumbrance upon any property or assets of the Selling Shareholder pursuant to, any statute, any rule, regulation or order of any governmental agency or body or any court having jurisdiction over the Selling Shareholder or any properties of the Selling Shareholder or any agreement or instrument to which the Selling Shareholder is a party or by which the Selling Shareholder is bound or to which any of the properties of the Selling Shareholder is subject, or the organizational documents the Selling Shareholder that is a corporation.
(f) Each of this Agreement and the Lock-up Agreement has been duly authorized, executed and delivered by the Selling ShareholderShareholder and constitutes the valid and legally binding obligation of the Selling Shareholder enforceable in accordance with their terms, subject to bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and similar laws of general applicability relating to or affecting creditors’ rights and to general equity principles.
(bg) The execution statements in the sections entitled “Principal and delivery by Selling Shareholders” relating to the Selling Shareholder of, in the Disclosure Package and the performance by the Selling Shareholder of its obligations under, this Agreement will not contravene any provision of applicable law, or the memorandum and articles of association of the Selling Shareholder, or any agreement or other instrument binding upon the Selling Shareholder or any judgment, order or decree of any governmental body, agency or court having jurisdiction over the Selling Shareholder, and no consent, approval, authorization or order of, or qualification with, any governmental body or agency is required for the performance by the Selling Shareholder of its obligations under this Agreement, except such as may be required by the securities or Blue Sky laws of the various states in connection with the offer and sale of the Shares.
(c) The Selling Shareholder has, and on the Closing Date will have, valid title to, or a valid “security entitlement” within the meaning of Section 8-501 of the New York Uniform Commercial Code (the “UCC”) in respect of, the Shares to be sold by the Selling Shareholder free and clear of all security interests, claims, liens, equities or other encumbrances and the legal right and power, and all authorization and approval required by law, to enter into this Agreement and to sell, transfer and deliver the Shares to be sold by the Selling Shareholder or a security entitlement in respect of such Shares.
(d) Upon payment for the Shares to be sold by the Selling Shareholder pursuant to this Agreement, delivery of such Shares, as directed by the Underwriters, to Cede & Co. (“Cede”) or such other nominee as may be designated by the Depository Trust Company (“DTC”), registration of such Shares in the name of Cede or such other nominee and the crediting of such Shares on the books of DTC to securities accounts of the Underwriters (assuming that neither DTC nor any such Underwriter has notice of any adverse claim (within the meaning of Section 8-105 of the UCC) to such Shares), (A) DTC shall be a “protected purchaser” of such Shares within the meaning of Section 8-303 of the UCC, (B) under Section 8-501 of the UCC, the Underwriters will acquire a valid security entitlement in respect of such Shares and (C) no action based on any “adverse claim”, within the meaning of Section 8-102 of the UCC, to such Shares may be asserted against the Underwriters with respect to such security entitlement; for purposes of this representation, the Selling Shareholder may assume that when such payment, delivery and crediting occur, (x) such Shares will have been registered in the name of Cede or another nominee designated by DTC, in each case on the Company’s share register in accordance with its memorandum and articles of association and applicable law, (y) DTC will be registered as a “clearing corporation” within the meaning of Section 8-102 of the UCC and (z) appropriate entries to the accounts of the several Underwriters on the records of DTC will have been made pursuant to the UCC.
(i) The Registration Statement, when it became effective, Prospectus did not contain and, as amended or supplemented, if applicable, will and do not contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading and (ii) the Prospectus does not contain and, as amended or supplemented, if applicable, will not contain include 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 which they were made, not misleading, provided .
(h) The sale of the Underwritten Securities by the Selling Shareholder pursuant to this Agreement is (i) not prompted by any material information concerning the Company or any of its Subsidiaries that the representations and warranties is not set forth in the Disclosure Package and the Prospectus and (ii) except as disclosed in the Disclosure Package and the Prospectus, complies with all applicable law and the Company’s policy relating to the sale of securities by its affiliates.
(i) There are no contracts, agreements or understandings between the Selling Shareholder and any person that would give rise to a valid claim against the Selling Shareholder or any Underwriter for a brokerage commission, finder’s fee or other like payment in connection with this paragraph 2(eoffering.
(j) The Selling Shareholder has not taken, directly or indirectly, any action that is designed to or that has constituted or that would reasonably be expected to cause or result in the stabilization or manipulation of the price of any security of the Company to facilitate the sale or resale of the Underwritten Securities.
(k) Upon payment for the Underwritten Securities sold by the Selling Shareholder under this Agreement and the delivery by the Selling Shareholder to DTC (as defined below) or its agent of the Underwritten Securities in book entry form to a securities account maintained by the Representatives at the DTC or its nominee, and payment therefor in accordance with this Agreement, the Underwriters will acquire a securities entitlement (within the meaning of Section 8-501 of the Uniform Commercial Code (the “UCC”)) with respect to such Underwritten Securities, and no action based on an “adverse claim” (as defined in UCC Section 8-102) may be asserted against the Underwriters with respect to such security entitlement if, at such time, the Underwriters do not have notice of any adverse claim within the meaning of UCC Section 8-105.
(l) The questionnaire containing certain information regarding the Selling Shareholder completed by the Selling Shareholder and submitted to the Company on or before the date hereof does not and as of the Closing Date will not contain any untrue statement of material fact nor does it omit to state any material fact required to be stated therein or necessary to make the statements therein not misleading.
(m) The Selling Shareholder has no affiliations or associations with any member of FINRA; and none of the proceeds received by the Selling Shareholder from the sale of the Underwritten Securities to be sold by the Selling Shareholder hereunder will be paid to a member of the FINRA or any affiliate (or person “associated with,” as such terms are limited used in the rules of the FINRA).
(n) Except as disclosed in the Disclosure Package and the Prospectus, no transaction, stamp, capital or other issuance, registration, transfer or withholding taxes, duties or charges are payable in the PRC, Hong Kong, the British Virgin Islands or the Cayman Islands by or on behalf of the Underwriters to statements any PRC, Hong Kong, British Virgin Islands or omissions Cayman Islands taxing authority in connection with (A) the sale and delivery of the Ordinary Shares represented by the Underwritten Securities by the Selling Shareholder, the issuance of the Securities by the Depositary, and the delivery of the Underwritten Securities sold by the Selling Shareholder to or for the account of the Underwriters; (B) the purchase from the Selling Shareholder and the initial sale and delivery by the Underwriters of the Underwritten Securities to purchasers thereof, (C) the deposit of the Ordinary Shares with the Depositary and the Custodian (each as defined in the Deposit Agreement) and the issuance and delivery of the ADRs, or (D) the execution and delivery of this Agreement.
(o) The Selling Shareholder has not distributed and will not distribute, prior to the later of the Closing Date and the completion of the Underwriters’ distribution of the Securities, any offering material in connection with the offering and sale of the Underwritten Securities by the Selling Shareholder, including any “free writing prospectus” (as defined in Rule 405).
(p) The Selling Shareholder does not have any registration or other similar rights to have any equity or debt securities registered for sale by the Company under the Registration Statement or Prospectus made included in reliance upon information relating the offering of the Securities.
(q) The Selling Shareholder does not have, or has waived prior to the date hereof, any preemptive right, co-sale right or right of first refusal or other similar right to purchase any of the Ordinary Shares that are to be sold by the Company to the Underwriters pursuant to this Agreement; and the Selling Shareholder furnished does not own any warrants, options or similar rights to acquire, and does not have any right or arrangement to acquire, any capital shares, right, warrants, options or other securities from the Company, other than those described in the Disclosure Package and the Prospectus.
(r) Neither the Selling Shareholder nor any of its respective officers, employees, directors, representatives, consultants or agents or any person acting on behalf of the Selling Shareholder is currently subject to any sanctions administered by OFAC; and the Selling Shareholder will not directly or indirectly use the proceeds from the sale of the Underwritten Securities to the Company Underwriters hereunder, or lend, contribute or otherwise make available such proceeds to any subsidiary, joint venture partner or other person or entity, for the purpose of financing the activities of any person currently subject to any U.S. sanctions administered by OFAC.
(s) None of the Selling Shareholder, its subsidiaries or any of their respective officers and executive directors has violated, and the Selling Shareholder’s participation in writing this offering will violate any Money Laundering Laws and no action, suit or proceeding by or before any court or government agency, authority or body or any arbitrator involving the Company, any of its Subsidiaries, the Selling Shareholder or any of its subsidiaries with respect to the Money Laundering Laws is pending or threatened.
(t) Neither the Selling Shareholder nor its properties, assets or revenues has any right of immunity from the jurisdiction of any court or from any legal process (whether through service or notice, attachment prior to judgment, attachment in aid of execution or otherwise) under the laws of the Cayman Islands, the British Virgin Islands, Hong Kong, the PRC, New York or United States federal law; and, to the extent that the Selling Shareholder or any of its properties, assets or revenues may has or may hereafter become entitled to any such right of immunity in any such court in which proceedings may at any time be commenced, the Selling Shareholder waives or will waive such right to the extent permitted by law and has consented to such relief and enforcement as provided in Section 20 of this Agreement and Section 7.6 of the Deposit Agreement. Any certificate signed by any officer or director of the Selling Shareholder and delivered to the Representatives or counsel for the Underwriters as required or contemplated by this Agreement shall constitute a representation and warranty hereunder by the Selling Shareholder expressly for use in the Registration StatementShareholder, the Prospectus or any amendments or supplements theretoas to matters covered thereby, to each Underwriter.
Appears in 1 contract
Sources: Underwriting Agreement (Linkage Technologies International Holdings LTD)
Representations and Warranties of the Selling Shareholder. The Such Selling Shareholder represents and warrants to and agrees with each of the Underwriters that:
(a) This Agreement has been duly authorized, executed and delivered by the or on behalf of such Selling Shareholder.
(b) The execution and delivery by the Selling Shareholder of, and the performance by the Selling Shareholder of its obligations under, this Agreement will not contravene any provision of applicable law, or the memorandum and articles of association of the Selling Shareholder, or any agreement or other instrument binding upon the Selling Shareholder or any judgment, order or decree of any governmental body, agency or court having jurisdiction over the Selling Shareholder, and no consent, approval, authorization or order of, or qualification with, any governmental body or agency is required for the performance by the Selling Shareholder of its obligations under this Agreement, except such as may be required by the securities or Blue Sky laws of the various states in connection with the offer and sale of the Shares.
(c) The Such Selling Shareholder has, and on the Closing Date will have, valid title to, or a valid “security entitlement” within the meaning of Section 8-501 of the New York Uniform Commercial Code (the “UCC”) in respect of, the Shares to be sold by the such Selling Shareholder free and clear of all security interests, claims, liens, equities or other encumbrances and the legal right and power, and all authorization and approval required by law, to enter into this Agreement and to sell, transfer and deliver the Shares to be sold by the such Selling Shareholder or a security entitlement in respect of such Shares.
(dc) Upon payment for the Shares to be sold by the such Selling Shareholder pursuant to this Agreement, delivery of such Shares, as directed by the Underwriters, to Cede & Co. (“Cede”) or such other nominee as may be designated by the Depository Trust Company (“DTC”), registration of such Shares in the name of Cede or such other nominee and the crediting of such Shares on the books of DTC to securities accounts of the Underwriters (assuming that neither DTC nor any such Underwriter has notice of any adverse claim (within the meaning of Section 8-105 of the UCC) to such Shares), (A) DTC shall be a “protected purchaser” of such Shares within the meaning of Section 8-303 of the UCC, (B) under Section 8-501 of the UCC, the Underwriters will acquire a valid security entitlement in respect of such Shares and (C) no action based on any “adverse claim”, within the meaning of Section 8-102 of the UCC, to such Shares may be asserted against the Underwriters with respect to such security entitlement; for purposes of this representation, the such Selling Shareholder may assume that when such payment, delivery and crediting occur, (x) such Shares will have been registered in the name of Cede or another nominee designated by DTC, in each case on the Company’s share register registry in accordance with its memorandum and articles certificate of association incorporation, bylaws and applicable law, (y) DTC will be registered as a “clearing corporation” within the meaning of Section 8-102 of the UCC and (z) appropriate entries to the accounts of the several Underwriters on the records of DTC will have been made pursuant to the UCC.
(d) Such Selling Shareholder has no reason to believe that the representations and warranties of the Company contained in Section 1 or of the Trust contained in Section 2 are not true and correct, is familiar with the Registration Statement, the Time of Sale Prospectus and the Prospectus and has no knowledge of any material fact, condition or information not disclosed in the Time of Sale Prospectus or the Prospectus that has had a material adverse effect on the Company and the Businesses, taken as a whole. Such Selling Shareholder is not prompted by any information concerning the Company or the Businesses which is not set forth in the Time of Sale Prospectus to sell its Shares pursuant to this Agreement.
(e) (i) The Each part of the Registration Statement, when it such part became effective, did not contain and, as amended or supplemented, if applicable, will not contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading, (ii) the Time of Sale Prospectus does not, and at the time of each sale of the Shares in connection with the offering when the Prospectus is not yet available to prospective purchasers and at the Closing Date (as defined in Section 6), the Time of Sale Prospectus, as then amended or supplemented by the Company, if applicable, will not, contain any 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 and (iiiii) the Prospectus does not contain and, as amended or supplemented, if applicable, will not contain any 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; except that the representations and warranties and any agreements set forth in this paragraph 3(e) do not apply to statements or omissions in the Registration Statement, the Time of Sale Prospectus or the Prospectus, or any amendments or supplements thereto, based upon information relating to any Underwriter furnished to the Company in writing by such Underwriter through you expressly for use therein; and provided that the representations and warranties and any agreements set forth in this paragraph 2(e3(e) are limited to statements or omissions in the Registration Statement or Prospectus made in reliance upon information relating to the such Selling Shareholder furnished to the Company in writing by the such Selling Shareholder expressly for use in the Registration Statement, the Time of Sale Prospectus, the Prospectus or any amendments or supplements thereto.
Appears in 1 contract
Sources: Underwriting Agreement (Compass Diversified Holdings)
Representations and Warranties of the Selling Shareholder. The Selling Shareholder represents and warrants to and agrees with each of the Underwriters that:
(a) This Agreement has been duly authorized, executed and delivered by or on behalf of the Selling Shareholder.
(b) The execution and delivery by the Selling Shareholder of, and the performance by the Selling Shareholder of its obligations under, this Agreement Agreement, will not contravene any provision of applicable law, or the certificate of incorporation, the memorandum and articles of association or any other organizational document of the Selling Shareholder, or any agreement or other instrument binding upon the Selling Shareholder or any judgment, order or decree of any governmental body, agency or court having jurisdiction over the Selling Shareholder, and no consent, approval, authorization or order of, or qualification with, any governmental body or agency is required for the performance by the Selling Shareholder of its obligations under this Agreement, except such as may be required by the securities or Blue Sky laws of the various states in connection with the offer and sale of the Shares.
(c) The Selling Shareholder has, and on the Closing Date will have, valid title to, or a valid “security entitlement” within the meaning of Section 8-501 of the New York Uniform Commercial Code (the “UCC”) in respect of, the Shares to be sold by the Selling Shareholder free and clear of all security interests, claims, liens, equities or other encumbrances and the legal right and power, and all authorization and approval required by law, to enter into this Agreement and to sell, transfer and deliver the Shares to be sold by the Selling Shareholder or a security entitlement in respect of such Shares.
(d) Upon payment for the Shares to be sold by the Selling Shareholder pursuant to this Agreement, delivery of such Shares, as directed by the Underwriters, to Cede & Co. (“Cede”) or such other nominee as may be designated by the Depository Trust Company (“DTC”), registration of such Shares in the name of Cede or such other nominee and the crediting of such Shares on the books of DTC to securities accounts of the Underwriters (assuming that neither DTC nor any such Underwriter has notice of any adverse claim (within the meaning of Section 8-105 of the New York Uniform Commercial Code (the “UCC”)) to such Shares), (A) DTC shall be a “protected purchaser” of such Shares within the meaning of Section 8-303 of the UCC, (B) under Section 8-501 of the UCC, the Underwriters will acquire a valid security entitlement in respect of such Shares and (C) no action based on any “adverse claim”, within the meaning of Section 8-102 of the UCC, to such Shares may be asserted against the Underwriters with respect to such security entitlement; for purposes of this representation, the Selling Shareholder may assume that when such payment, delivery and crediting occur, (x) such Shares will have been registered in the name of Cede or another nominee designated by DTC, in each case on the Company’s share register registry in accordance with its certificate of incorporation, memorandum and articles of association of the Company and applicable law, (y) DTC will be registered as a “clearing corporation” within the meaning of Section 8-102 of the UCC and (z) appropriate entries to the accounts of the several Underwriters on the records of DTC will have been made pursuant to the UCC.
(e) The Selling Shareholder has no reason to believe that the representations and warranties of the Company contained in Section 1 are not true and correct, is familiar with the Registration Statement, the Time of Sale Prospectus and the Prospectus and has no knowledge of any material fact, condition or information not disclosed in the Time of Sale Prospectus or the Prospectus that has had, or may have, a Material Adverse Effect. The Selling Shareholder is not prompted by any information concerning the Company or its subsidiaries which is not set forth in the Time of Sale Prospectus and the Prospectus to sell its Shares pursuant to this Agreement.
(i) The Each part of the Registration Statement, when it such part became effective, did not contain andand each such part, as amended or supplemented, if applicable, will not contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading, (ii) the Registration Statement as of the date hereof does not contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading, (iii) the Registration Statement and the Prospectus comply and, as amended or supplemented, if applicable, will comply in all material respects with the Securities Act and the applicable rules and regulations of the Commission thereunder, (iv) the Time of Sale Prospectus does not, and at the time of each sale of the Shares in connection with the offering when the Prospectus is not yet available to prospective purchasers and at the Closing Date (as defined in Section 5), the Time of Sale Prospectus, as then amended or supplemented by the Company, if applicable, will not, contain any 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, (v) each broadly available road show, if any, when considered together with the Time of Sale Prospectus, does not contain any 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 and (iivi) the Prospectus does not contain and, as amended or supplemented, if applicable, will not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading, ; provided that the representations and warranties set forth in this paragraph 2(e2(f) are limited to statements or omissions in the Registration Statement or Prospectus made in reliance upon information relating to the Selling Shareholder furnished to the Company in writing by the Selling Shareholder expressly for use in the Registration Statement, the Time of Sale Prospectus, the Prospectus or any amendments or supplements thereto.
Appears in 1 contract
Sources: Underwriting Agreement (Fresh Del Monte Produce Inc)
Representations and Warranties of the Selling Shareholder. The Selling Shareholder represents and warrants to and agrees with each of the Underwriters Underwriter that:
(a) This The Selling Shareholder is the lawful owner of the Shares to be sold by it pursuant to this Agreement has been duly authorizedand has, executed and delivered by on the Selling Shareholder.Closing Date or the Additional Closing Date, as applicable, will have, good, valid and clear title to such Shares, free of any and all restrictions on transfer, liens, encumbrances, security interests, equities, claims and other defects whatsoever;
(b) The execution and delivery by the Selling Shareholder of, and the performance by the Selling Shareholder of its obligations under, this Agreement will not contravene any provision of applicable law, or the memorandum and articles of association of the Selling Shareholder, or any agreement or other instrument binding upon the Selling Shareholder or any judgment, order or decree of any governmental body, agency or court having jurisdiction over the Selling Shareholder, and no consent, approval, authorization or order of, or qualification with, any governmental body or agency is required for the performance by the Selling Shareholder of its obligations under this Agreement, except such as may be required by the securities or Blue Sky laws of the various states in connection with the offer and sale of the Shares.
(c) The Selling Shareholder has, and on the Closing Date or the Additional Closing Date, as applicable, will have, valid title tofull legal right, or a valid “security entitlement” within the meaning of Section 8-501 of the New York Uniform Commercial Code (the “UCC”) in respect of, the Shares to be sold by the Selling Shareholder free power and clear of all security interests, claims, liens, equities or other encumbrances and the legal right and powerauthority, and all authorization authorizations and approval approvals required by law, to enter into this Agreement and to sell, assign, transfer and deliver the Shares to be sold by it in the manner provided herein;
(c) This Agreement has been duly executed and delivered by or on behalf of the Selling Shareholder or a security entitlement in respect of such Shares.and is its legal, valid and binding agreement;
(d) Upon delivery of and payment for the Shares to be sold by the Selling Shareholder pursuant to this Agreement, delivery of good, valid and clear title to such Shares, as directed by Shares will pass to the Underwriters, free and clear of all restrictions on transfer, liens, encumbrances, security interests, equities, claims and defects whatsoever;
(e) The execution, delivery and performance of this Agreement by the Selling Shareholder, the compliance by the Selling Shareholder with all the provisions hereof and the consummation by the Selling Shareholder of the transactions contemplated hereby will not (i) require the Selling Shareholder to Cede & Co. obtain any consent, approval, authorization or other order of, or qualification with, any court or governmental body or agency (“Cede”) or except as such other nominee as may be designated by required under the Depository Trust Company (“DTC”), registration of such Shares in the name of Cede securities or such other nominee and the crediting of such Shares on the books of DTC to securities accounts blue sky laws of the Underwriters (assuming that neither DTC nor any such Underwriter has notice of any adverse claim (within the meaning of Section 8-105 of the UCC) to such Sharesvarious states or as have been or will be obtained), (Aii) DTC shall be conflict with or constitute a “protected purchaser” breach of such Shares within the meaning of Section 8-303 any of the UCCterms or provisions of, (B) under Section 8-501 or a default under, any indenture, loan agreement, mortgage, deed of the UCCtrust, the Underwriters will acquire a valid security entitlement in respect of such Shares and (C) no action based on any “adverse claim”lease, within the meaning of Section 8-102 of the UCC, license or other agreement or instrument to such Shares may be asserted against the Underwriters with respect to such security entitlement; for purposes of this representation, which the Selling Shareholder may assume that when such paymentis a party or by which the Selling Shareholder or any of its properties is bound or (iii) to its knowledge, delivery and crediting occurviolate or conflict with any applicable federal, state, local or foreign law, statute, rule, regulation or judgment, order or decree of any court or any governmental body or agency having jurisdiction over the Selling Shareholder or any property of the Selling Shareholder;
(xf) such Shares will have been registered The information in the name of Cede or another nominee designated by DTCRegistration Statement and Prospectus does not, in each case and will not on the Company’s share register in accordance with its memorandum and articles of association and applicable lawClosing Date or the Additional Closing Date, (y) DTC will be registered as a “clearing corporation” within the meaning of Section 8-102 of the UCC and (z) appropriate entries to the accounts of the several Underwriters on the records of DTC will have been made pursuant to the UCC.
(i) The Registration Statement, when it became effective, did not contain and, as amended or supplemented, if applicable, will not contain any untrue statement of a material fact or omit to state a any material fact required to be stated therein or necessary to make the statements therein not misleading and (ii) the Prospectus does not contain and, as amended or supplemented, if applicable, will not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading, provided that the representations misleading and warranties set forth in this paragraph 2(e) are limited to statements or omissions in the Registration Statement or Prospectus made in reliance upon information relating to the Selling Shareholder furnished has agreed to immediately notify the Company if, at any time during the period when a Prospectus is required by law to be delivered in connection with sales of the Shares by an Underwriter or a dealer, there is any material change in such information;
(g) The Selling Shareholder has not taken, and will not take, directly or indirectly, any action designed to, or which might 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 Shares pursuant to the Company distribution contemplated by this Agreement, and, other than as permitted by the Act, the Selling Shareholder has not distributed and will not distribute any prospectus or other offering material in writing connection with the offering and sale of the Shares; and
(h) Each certificate signed by or on behalf of the Selling Shareholder and delivered to the Underwriters or counsel of the Underwriters shall be deemed to be a representation and warranty by the Selling Shareholder expressly for use in to the Registration Statement, Underwriters as to the Prospectus or any amendments or supplements theretomatters covered thereby.
Appears in 1 contract
Representations and Warranties of the Selling Shareholder. The Selling Shareholder represents and warrants to the Underwriters, solely with respect to itself and the Option Shares to be sold by it, and agrees with each of the Underwriters that:
(a) This Agreement the Selling Shareholder has been duly authorizedgood and valid title to the Shares to be sold by the Selling Shareholder hereunder free and clear of all liens, executed encumbrances or claims, and delivered immediately prior to the Closing Time the Selling Shareholder will have good and valid title to the Shares to be sold by the Selling Shareholder hereunder free and clear of all liens, encumbrances or claims; and upon delivery of such Shares and payment therefor pursuant hereto, good and valid title to such Shares, free and clear of all liens, encumbrances, equities or claims created by the Selling Shareholder., will pass to the several Underwriters;
(b) The execution and the Selling Shareholder has placed in custody under a custody arrangement with ▇▇▇▇▇ Fargo Bank Minnesota, N.A. for delivery under this Agreement, securities in negotiable form (with signature guaranteed by a commercial bank or trust company having an office or correspondent in the United States or a member firm of the New York or American Stock Exchanges) representing the Shares to be sold by the Selling Shareholder ofhereunder;
c) the Selling Shareholder has duly and irrevocably executed and delivered a power of attorney (the "Power of Attorney") appointing certain officers of the Company as attorneys-in-fact, with full power of substitution, and with full authority on the terms set forth therein (exercisable by any one or more of them) to execute and deliver this Agreement and to take such other action as may be necessary or desirable to carry out the provisions hereof on behalf of the Selling Shareholder;
d) the Selling Shareholder has full right, power and authority to enter into this Agreement and the Power of Attorney; the execution, delivery and performance of this Agreement and the Power of Attorney by the Selling Shareholder and the consummation by the Selling Shareholder of its obligations the transactions contemplated hereby will not constitute a default under, this Agreement will not contravene any provision indenture, mortgage, deed of applicable lawtrust, loan agreement or other agreement or instrument to which the memorandum and articles Selling Shareholder is a party or by which the Selling Shareholder is bound or to which any of association the property or assets of the Selling ShareholderShareholder is subject, nor will such actions result in any violation of any statute or any agreement order, rule or other instrument binding upon the Selling Shareholder or any judgment, order or decree regulation of any court or governmental body, agency or court body having jurisdiction over the Selling Shareholder or the property or assets of the Selling Shareholder; and, except for the registration of the Shares under the Act and such consents, approvals, authorizations, registrations or qualifications as may be required under applicable state securities laws in connection with the purchase and distribution of the Shares by the Underwriters, no consent, approval, authorization or order of, or qualification filing or registration with, any such court or governmental agency or body or agency is required for the execution, delivery and performance of this Agreement or the Power of Attorney by the Selling Shareholder and the consummation by the Selling Shareholder of its obligations under this Agreementthe transactions contemplated hereby, except where such as may be required by default, violation or failure to obtain any such consent, approval, authorization, order or to make such filing or registration would not have a material adverse effect on the securities or Blue Sky laws ability of the various states in connection with the offer and sale of the Shares.
(c) The Selling Shareholder has, and on to consummate the Closing Date will have, valid title to, transactions contemplated hereby;
e) to the extent that any statements or a valid “security entitlement” within omissions made in the meaning of Section 8-501 of the New York Uniform Commercial Code (the “UCC”) in respect ofRegistration Statement, the Shares Prospectus or any amendment or supplement thereto are made in reliance upon and in conformity with written information furnished to be sold the Company by the Selling Shareholder free and clear of all security interestsspecifically for use therein, claims, liens, equities or other encumbrances the Registration Statement and the legal right Prospectus and powerany amendments or supplements thereto will not, and all authorization and approval required by law, to enter into this Agreement and to sell, transfer and deliver when they become effective or are filed with the Shares to be sold by the Selling Shareholder or a security entitlement in respect of such Shares.
(d) Upon payment for the Shares to be sold by the Selling Shareholder pursuant to this Agreement, delivery of such SharesCommission, as directed by the Underwriterscase may be, to Cede & Co. (“Cede”) or such other nominee as may be designated by the Depository Trust Company (“DTC”), registration of such Shares in the name of Cede or such other nominee and the crediting of such Shares on the books of DTC to securities accounts of the Underwriters (assuming that neither DTC nor any such Underwriter has notice of any adverse claim (within the meaning of Section 8-105 of the UCC) to such Shares), (A) DTC shall be a “protected purchaser” of such Shares within the meaning of Section 8-303 of the UCC, (B) under Section 8-501 of the UCC, the Underwriters will acquire a valid security entitlement in respect of such Shares and (C) no action based on any “adverse claim”, within the meaning of Section 8-102 of the UCC, to such Shares may be asserted against the Underwriters with respect to such security entitlement; for purposes of this representation, the Selling Shareholder may assume that when such payment, delivery and crediting occur, (x) such Shares will have been registered in the name of Cede or another nominee designated by DTC, in each case on the Company’s share register in accordance with its memorandum and articles of association and applicable law, (y) DTC will be registered as a “clearing corporation” within the meaning of Section 8-102 of the UCC and (z) appropriate entries to the accounts of the several Underwriters on the records of DTC will have been made pursuant to the UCC.
(i) The Registration Statement, when it became effective, did not contain and, as amended or supplemented, if applicable, will not contain any untrue statement of a material fact or omit to state a any material fact required to be stated therein or necessary to make the statements therein not misleading and (ii) the Prospectus does not contain and, as amended or supplemented, if applicable, will not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading, provided that the representations and warranties set forth misleading in this paragraph 2(erelation to such written information; and
f) are limited to statements or omissions in the Registration Statement or Prospectus made in reliance upon information relating to the Selling Shareholder furnished has not taken and will not take, directly or indirectly, any action that is designed to or that has constituted or that might reasonably be expected to cause or result in the stabilization or manipulation of the price of any security of the Company in writing by to facilitate the Selling Shareholder expressly for use in sale or resale of the Registration Statement, the Prospectus or any amendments or supplements theretoShares.
Appears in 1 contract
Sources: Underwriting Agreement (Rli Corp)